Sh. Ram Mehar vs Food Corporation Of India & Others
2016 Latest Caselaw 7234 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         W.P.(C) No. 3409/1998

%                                                       5th December, 2016

SH. RAM MEHAR                                                   .....Petitioner

                          Through:       Dr. Ashwani Bhardwaj, Advocate.

                          versus

FOOD CORPORATION OF INDIA & OTHERS                          ..... Respondents

                          Through:       Mr. Rajeev Sharma, Advocate.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1. This writ petition under Article 226 of the Constitution of India

impugns the orders passed the by departmental authorities; of the

disciplinary authority dated 21.4.1989 and the appellate authority dated

7.1.1997; whereby petitioner was imposed the penalty of reduction in rank

from Assistant Manager (Depot) to the post of Assistant Grade I (Depot) in

the minimum time scale of the pay of Assistant Grade I (Depot).

2. Learned counsel for the petitioner has argued that the Inquiry

proceedings against the petitioner which culminated in the order of the

disciplinary authority dated 23.4.1988 is liable to be set aside on account of

the violation of principles of natural justice in which the petitioner was

proceeded ex-parte and the evidence of the petitioner was closed i.e not

allowed to be led. What is argued is that within a period of three days; the

evidence of one witness of the department was closed on the first date,

evidence of other witnesses was recorded on the second day and on the third

day the case was fixed for petitioner's evidence and the evidence of the

petitioner was closed on account of petitioner not being present and not

leading evidence.

3. What is argued on behalf of the petitioner is that if the

department could have been given around three opportunities to lead

evidence then there was no reason as to why on the first opportunity the

evidence of the petitioner was closed, and that too on the date which was

fixed within one day of the evidence of the department being concluded.

4. In support of the arguments urged on behalf of the petitioner

reliance is placed upon the order sheets of the Inquiry Officer dated

9.3.1988, 4.4.1988, 5.4.1988 and 6.4.1988 and which read as under:-

     "                    Order Sheet dated 9.3.1988

     No.A/Inq. (1260)/87-88                                    Chandigarh.
                                                                 9.3.88
                          ORDER      SHEET

Sub :- Departmental inquiry against Sh. Ram Mehar, AM(D), Distt. Ferozpur.

Present :

1. Sh. M.S. Aggarwal, AM(G) .... PO

2. Sh. Ram Mehar, AM(D) ......CO

Hearing has been taken up today in continuation of the order sheet recorded yesterday. The CO state that the Corrigendum of the charge-sheet issued by the disciplinary authority has been received by him from the Presenting Officer today morning. Statement of the PW namely, PW1 Sh. A.S> Murthy, DM(QC) has been recorded. S/Sh. P.P.H. Sunder Singh and V.K. Tondon, PWs are present but have been given up by the Presenting Officer as unnecessary. No other PW is present nor any acknowledgements regarding receipt of notices have been received from him. It is an old case, pertains to Action Plan No. I and has, therefore, to be disposed of at the earliest as per the directions of the authorities. Presenting Officer requests for adjournment. In the interest of justice, one adjournment is granted and the Presenting Officer will produce his witnesses at his own responsibility on the next date.

Hearing will, now, be taken up on 4.4.1988. Notices to all concerned be issued. Not possible to give a shorter date as other cases pertaining to Action Plans already stand fixed during intervening dates. A copy of this Order sheet is furnished to the PO as well as to the CO for information.

Sd/-

(Kiran Anand Lall) Inquiry Officer.

PO : Sd/-

CO : Sd/-

Order Sheet dated 4.4.1988

No.A/Inq. (1260)/87-88 Chandigarh.

                                                                          4.4.88
                                    ORDER         SHEET

Sub :- Departmental inquiry against Sh. Ram Mehar, AM(D), Distt. Ferozpur.

Present :

1. Sh. M.S. Aggarwal, AM(G) .... PO

2. Sh. Ram Mehar, AM(D) ...... CO (Absent)

Hearing has been taken up today in pursuance of notice of even no. dated 11.3.88. The C.O. who was present on the last date, is absent today. No intimation regarding his absence has been received. The PWs summoned for today, S/Sh. H.S. Rajpoor and S.N. Sen Gupta are not present. This inquiry pertains to Action Plan No. 1 and already one adjournment for prosecution evidence was granted on the last date. The Presenting Officer should, therefore, ensure the presence of the said two PWs, on 5.4.88 i.e. tomorrow when the file is to be taken up for recording the statements of other PWs. It is made clear that no further adjournment will be granted in view of the facts that

one adjournment has already been granted and also because the inquiry pertains to Action Plan No. 1 and has, therefore to be disposed of at the earliest, as per the directive of the authorities. Hearing is adjourned today and will, now, be taken up tomorrow.

A copy of this Order Sheet is furnished to the PO and be sent to the CO for information.

Sd/-

(Kiran Anand Lall) Inquiry Officer.

PO : Sd/-

     CO : (absent)

                            Order Sheet dated 5.4.1988

     No.A/Inq. (1260)/88                                                Chandigarh.
                                                                         5.4.88
                                 ORDER         SHEET

Sub :- Departmental proceedings against Sh. Ram Mehar, AM(D), Distt. Ferozpur.

Present :

1. Sh. M.S. Aggarwal, AM(G) .... PO

2. Sh. Ram Mehar, AM(D) ...... CO (Absent)

Hearing has been taken up today in continuation of the order sheet recorded yesterday and the notice of even no. dated 14.5.88. The C.O. has not turned up even today. Statements of 2 PWs, namely PW-2 Sh. D.N. Mahajan and PW-3 Sh. M.S. Rajpoot, have been recorded. Presenting Officer has closed evidence after giving up remaining PWs who are not present. Hearing is adjourned today and will be taken up tomorrow for recording defence evidence, as scheduled earlier.

A copy of this Order Sheet is furnished to the PO and be sent to the CO for information.

Sd/-

(Kiran Anand Lall) Inquiry Officer.

PO : Sd/-

     CO : (absent)

                            Order Sheet dated 6.4.1988

     No.A/Inq. (1260)/88                                                Chandigarh.
                                                                         6.4.88



                                  ORDER          SHEET

Sub :- Departmental proceedings against Sh. Ram Mehar, AM(D), Distt. Ferozpur.

Present :

1. Sh. M.S. Aggarwal, AM(G) .... PO

2. Sh. Ram Mehar, AM(D) ...... CO (Absent)

Hearing has been taken up today in continuation of the Order Sheet recorded yesterday and notice of even no. dated 14.5.88. The C.O. has not put in appearance even today nor any DW is present. Proceedings, thus, stand closed.

PO wants to file written brief. He shall file written brief within three days. A copy of this Order Sheet is furnished to the PO and be sent to the C.O. for information.

Sd/-

(Kiran Anand Lall) Inquiry Officer.

PO : Sd/-

CO : (absent)" (underlining added)

5. A reading of the aforesaid order sheets show that 9.3.1988 was

fixed for department's evidence and which was not concluded and therefore

the matter was fixed before the Inquiry Officer after roughly a month on

4.4.1988. On 4.4.1988 department's evidence was not completed so the

matter was fixed for department's evidence on 5.4.1988. On 5.4.1988

department's evidence was closed and the very next day being 6.4.1988 was

fixed for petitioner's/charged officer's evidence and which was closed on

the same date on 6.4.1988 on account of absence of the petitioner.

6. Though, counsel for the petitioner argued that petitioner had

valid reasons for non-appearance on 4.4.1988 and 5.4.1988 when petitioner

was proceeded ex-parte on account of the fact that petitioner had sent a

letter dated 2.4.1988 under UPC to the Inquiry Officer that the petitioner

would not be able to attend the disciplinary proceedings on 4.4.1988 on

account of illness of his wife, this Court however disbelieves the letter dated

2.4.1988 sent under UPC because UPC is a convenient method of claiming

that a letter has been posted and there is no reason why this Court should

believe the letter of the petitioner dated 2.4.1988 was sent for seeking

adjournment on 4.4.1988. Be that as it may, even if the petitioner was not

justified in non-appearing on 4.4.1988 there was no reason that from

4.4.1988 to 6.4.1988 i.e within three days the evidence of the department

could be closed and even the petitioner's/charged officer's evidence could

be closed because not only the date of 6.4.1988, when the case was fixed for

petitioner's/charged officer's evidence was the very next date to 5.4.1988

when the evidence of the department was closed, but also 6.4.1988 was the

first and only date when the case was fixed for petitioner's/charged officer's

evidence.

7. The issue of violation of the principles of natural justice stands

concluded also by the fact that the petitioner in fact never knew of the short

dates fixed of 5.4.1988 and 6.4.1988 after the date of hearing of 4.4.1988.

This is clear from the letter of the department itself dated 14.4.1988 and by

which copy of the order sheets dated 4.4.1988, 5.4.1988 and 6.4.1988 along

with the statement of three PWs was sent to the petitioner. The letter dated

19.7.1988 of the petitioner to the Inquiry Officer which records this aspect

reads as under:-

"To, Mrs. Kiran Anand Lall, Officer on Spl. Duty (Inq.) F.C.I., R/o (Punjab) Chandigarh.

Sub : Departmental Proceeding against Ram Mehar, A.M. (D) Distt. Firozpur-

Defense brief-submission thereof.

R/Madam, Kindly refer to your Memo No. A-Inq. (1260)/88 dated 14.4.88 forwarding therewith the copy of order sheet dated 4 to 6-4-88 and statement of 3 PWs recorded by your honours.

In this connection I am to request your honour that due to serious illness of my wife I could not read on due date 4.4.88 and now I request your honour that I may kindly be given a period of 15 days for submission of my defence brief and oblige. Medical certificate is enclosed herewith in original.

      Encl.: One                                                   Yours faithfully,

                                                                       Sd/- 19.7.88
                                                                      (Ram Mehar)
                                                               Asstt. Manager (D)
                                                                Ex. Distt. Firozpur
                                                              Now at Nagaur.(Raj)"

                                                                  (underlining added)

8. The present is a classic case of justice hurried is justice buried.

I fail to understand as to how the Inquiry Officer gave the date of 5.4.1988

on 4.4.1988 and even assuming giving the date of 5.4.1988 for department's

remaining evidence was justified, yet, there was no justification for giving

the very next date on 6.4.1988 for petitioner's/charged officer's evidence

when earlier the department was given a date of one month to get its

evidence recorded. Even assuming adjournment could be given of only 24

hours for the petitioner to lead evidence, considering that 6.4.1988 was only

the first date fixed for the petitioner to lead evidence, there was no reason

why evidence of the petitioner was closed on the first date of 6.4.1988 itself,

especially when for the department various dates were given for leading of

evidence of its witnesses and that too dates which were spread for more than

a month.

9. I may note that in the present case the lack of respect of the

department to the procedure of law is also clear from the fact that the

disciplinary authority which passed the penalty order against the petitioner

on 21.4.1989 did so without even giving any personal hearing to the

petitioner and without even giving a copy of the Inquiry Report to the

petitioner. This becomes clear not only from the order of the disciplinary

authority dated 21.4.1989 which does not refer to any show cause notice

being issued to the petitioner attaching therewith the Inquiry Report but also

from the fact that this order dated 21.4.1989 of the disciplinary authority

does not even refer to any hearing being granted to the petitioner. Petitioner

had noted such aspects in the appeal filed by the petitioner and so stated in

the para 26 of his appeal dated 1.11.1989 to the competent authority.

However, I am not deciding the present petition on this aspect and this

aspect has been stated herein only to show the hurry in which the

department in the present case went ahead with the departmental

proceedings.

10. In view of the above this writ petition is allowed and Inquiry

Officer will now fix the case for the petitioner to lead evidence. This Court

clarifies that though proceedings are being remanded to the Inquiry Officer

for leading of the evidence of the petitioner, in view of above discussion, it

is clarified that no cross-examination is permitted by the petitioner of the

witnesses of the department more so because it will be almost impossible

for the department to bring the witnesses for cross-examination and which

witnesses deposed way back in the year 1988. Petitioner, however, can lead

all evidence in support of his case and the departmental proceedings will be

decided as per the principle of preponderance of probabilities, and which

principle is applicable in departmental proceedings.

11. It is further clarified that in case the Inquiry Officer gives a

report against the petitioner then the disciplinary authority will issue a show

cause notice to the petitioner attaching the Inquiry Officer's report for

seeking response of the petitioner before the disciplinary authority proceeds

to pass any order in the matter.

12. In view of the aforesaid discussion, this writ petition is allowed

by remanding the case to the Inquiry Officer from the stage of leading of

petitioner's/charged officer's evidence and thereafter for Inquiry Report to

be given and orders to be passed by the disciplinary authority after hearing

the petitioner. It is clarified that respondent no. 1/employer/department can

always appoint a new Inquiry Officer in case the Inquiry Officer who

conducted the earlier proceedings is unavailable for some reason or is not

able to take up inquiry proceedings. Parties are left to bear their own costs.

DECEMBER 05, 2016                                  VALMIKI J. MEHTA, J
AK