Jharkhand High Court
Harish Mohan vs Central University Of Jharkhand ... on 17 October, 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (S) No. 4691 of 2018
Harish Mohan............ Petitioners
Versus
1. Central University of Jharkhand through its Registrar, Ranchi
2. Executive Council, Central University of Jharkhand through its
Chairman-cum-Vice Chancellor, Ranchi
3. Prof. Nand Kumar Yadav, 'Indu'
4. Prof. Ratan Kumar Dey
5. Lt. Cdr. Ujjawal Kumar (Retd.)............ Respondents
......
Coram: Hon'ble Mr. Justice Ananda Sen
......
For the Petitioner : Mr. Indrajeet Sinha, Advocate
Mr. Kaushik Sarkhel, Advocate
For the Respondents : Mr. Manoj Tandon, Advocate
For the Intervener : Mr. Rajendra Krishna, Advocate
......
15/17.10.2022 This writ application can be disposed of on a very short question
of law.
2. Mr. Indrajeet Sinha, learned counsel appearing on behalf of the
petitioner submits that the punishment order has been passed against the
petitioner considering the departmental inquiry report, which is based on
several documents, which were not exhibited as admittedly, no oral
evidence was adduced by the Department. Relying upon the judgment of
the Hon'ble Supreme Court passed in the case of "Roop Singh Negi- versus-
Punjab National Bank and others, reported in (2009) 2 SCC 570", he submits that
since no oral evidence has been adduced by the Department, the enquiry
report and the punishment order is vitiated as those documents could not
be said to be proved by the department in enquiry.
3. Mr. Manoj Tandon, learned counsel appearing on behalf of the
respondent-Central University of Jharkhand, submits that admittedly, the
proceeding was exparte against the petitioner. In an exparte proceeding
when in spite of service of notice, the petitioner did not chose to appear
before the authority, the petitioner now cannot challenge the enquiry
report, which is against him. He submits that the documents were
produced by the Presenting Officer and the same was taken note of by the
Enquiry Officer and the order was passed. He submits that since the
petitioner did not appear before the Enquiry Officer, it will be deemed that
he has no objection to all the materials and the documents produced
before the Enquiry Officer.
4. Mr. Rajendra Krishna, learned counsel appears on behalf of the
Intervener. He submits that after dismissal of the petitioner from service,
the Central University has appointed him. Thus, he has interest in this
litigation. He submits that the order is exparte against the petitioner. The
documents were produced before the Presenting Officer and now the
petitioner, after being removed from service, cannot take a ground that the
proceeding is vitiated. He submits that if the petitioner had any objection,
he could have appeared before the Enquiry Officer and objected the
procedure, which the petitioner failed to do so.
5. Since the legal issue, involved in this case is very short, I am not
inclined to deal with the nature of the allegation and other aspects.
6. The facts remains that the petitioner was charge sheeted and a
departmental enquiry was set up. Before the Departmental Enquiry
Officer, the petitioner did not appear therefore, the proceeding was
exparte. Several documents were produced by the Presenting Officer,
which were taken note of by the Enquiry Officer, which is evident from the
enquiry report and has also been admitted by the parties. It is also
admitted that the Presenting Officer has not adduced any oral evidence.
This fact has also been noted by the Enquiry Officer in Para-14 of the
enquiry report.
7. A departmental Eqnuiry Officer is an independent adjudicator. He
is a quasi-judicial authority. The said Officer is not supposed to be a
representative of the department or the Disciplinary Authority. His
function is to examine the evidence presented by the Department. Even in
the absence of the delinquent employee, the enquiry officer has to perform,
his duty to find out independently as to whether charges are proved or not.
If the case of the department is based on some documents, those
documents also needs to be proved. Some witnesses must be produced by
the department and must be examined to prove the documents relied by
the department. A document which is not proved by oral evidence could
not have been taken into consideration to arrive at a conclusion that the
charge is proved. The Hon'ble Supreme Court in para 14 of Roop Singh Negi
(Supra) has held as under:-
"14. Indisputably, a departmental proceeding is a quasi judicial
proceeding. The enquiry officer performs a quasi judicial function. The
charges leveled against the delinquent officer must be found to have
been proved. The enquiry officer has a duty to arrive at a finding upon
taking into consideration the materials brought on record by the
parties. The purported evidence collected during investigation by the
investigating officer against all the accused by itself could not be
treated to be evidence in the disciplinary proceeding. No witness was
examined to prove the said documents. The management witnesses
merely tendered the documents and did not prove the contents thereof.
Reliance, inter alia, was placed by the enquiry officer on the FIR which
could not have been treated as evidence."
8. Further in the case of "State of Uttar Pradesh and others -versus- Saroj
Kumar Sinha, reported in (2010) 2 SCC 772", the Hon'ble Supreme Court has held
that the documents which were produced before the Enquiry Officer needs
to be proved. Paragraph 28 of the aforesaid judgment reads as under:-
"28. An inquiry officer acting in a quasi judicial authority is in the
position of an independent adjudicator. He is not supposed to be a
representative of the department/ disciplinary authority/Government.
His function is to examine the evidence presented by the department,
even in the absence of the delinquent official to see as to whether the
unrebutted evidence is sufficient to hold that the charges are proved. In
the present case the aforesaid procedure has not been observed. Since
no oral evidence has been examined the documents have not been
proved, and could not have been taken into consideration to conclude
that the charges have been proved against the respondents."
9. Be it noted that in the case of Roop Singh Negi (Supra) the document
which the Hon'ble Supreme Court was dealing with, was the FIR and the
charge sheet. While dealing with the charge sheet and the FIR, the Hon'ble
Supreme Court was of the view that the same also has to be proved
through oral evidence in the departmental proceeding. In this case, the
documents, which were relied upon, are the letters, instructions etc. etc.
Since charge sheet and the FIR, as per the judgment of Roop Singh Negi
(Supra), needs to be exhibited through oral evidence in a departmental
proceeding. Thus, these documents should have also been exhibited
through oral evidence, but the department failed to do so.
10. In both the judgments, the Hon'ble Supreme Court has held that
non-examination of witnesses, where some documents are to be proved,
will result in violation of the principle of natural justice, which will mean
that no reasonable opportunity has been given to the delinquent to defend
his/her case. Thus the entire proceeding and the enquiry stand vitiated.
11. Considering the aforesaid judgments, as the case in hand is
squarely covered by the law laid down, as admittedly none proved the
documents. I am inclined to allow this petition. Accordingly, this writ
application is allowed. Consequently, the entire enquiry report as well as
the order of punishment dated 24.10.2018 as contained in Annexure-39 is
hereby quashed. The respondents are directed to extend all the
consequential benefits to the petitioner immediately.
12. This writ application stands allowed.
(Ananda Sen, J)
Mukund/-cp.2
