Punjab-Haryana High Court
Rajesh Sharma vs State Of Punjab And Others on 19 January, 2024
Author: Sanjeev Prakash Sharma
Bench: Sanjeev Prakash Sharma
Neutral Citation No:=2024:PHHC:007310
CWP-1190-2024 2024:PHHC:007310
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP-1190-2024
Date of Decision: 19.01.2024
Rajesh Sharma
. . . . Petitioner
Vs.
State of Punjab and others
. . . . Respondents
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CORAM: HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA
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Present: Mr. A.P.S. Sandhu, for the petitioner.
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SANJEEV PRAKASH SHARMA, J.(Oral)
1. Learned counsel for the petitioner by way of this writ petition has
prayed to set aside the charge-sheet dated 10.05.2023 and the enquiry
proceedings initiated vide charge-sheet dated 10.05.2023.
2. Learned counsel submits that the copy of the charge-sheet was not
served upon the petitioner, and without providing him a chance to file a
reply to the charge-sheet, the disciplinary authority appointed the
enquiry officer to conduct an enquiry. The petitioner appeared before
the enquiry officer and demanded a copy of the charge-sheet and was
thereafter supplied the copy of the charge-sheet.
3. However, learned counsel submits that supplying copy of the charge-
sheet to the petitioner while conducting enquiry would be in violation
of Rule 8 of the Punjab Civil Service (Punishment and Appeal) Rules,
1970 as the chance to examine the reply of the petitioner to the
charge-sheet by the disciplinary authority has not been provided. It is
submitted that the Rule has to be followed strictly and the disciplinary
authority could not have appointed enquiry officer to conduct the
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enquiry before giving him an opportunity to file reply to the
charge-sheet. Learned counsel submits that the petitioner has been left
to face enquiry without putting up his defence.
4. Learned counsel has relied on judgment passed by the Supreme Court
in Uttar Pradesh Government and others vs. Sabir Hussain, 1975(4)
SCC 703, wherein he has taken this Court to para 10 as under:
"10. It is to be noted that the section requires not only
the giving of an opportunity to show cause, but further enjoins
that the opportunity should be "reasonable". What then is
"reasonable opportunity" within the contemplation of Section
240(3)? How is it distinguished from an opportunity which is
not reasonable? The question has to be answered in the context
of each case, keeping in view the object of this provision and the
fundamental principle of natural justice subserved by it. As
pointed out by this Court in State of Gujarat v. Teredesai
(supra), "the entire object of supplying a copy of the report of
the enquiring officer is to enable the delinquent officer to satisfy
the punishing authority that he is innocent of the charges
framed against him and that even if the charges are held to have
been proved the punishment proposed to be inflicted is unduly
severe. If the enquiry officer had also made recommendations in
the matter of punishment, that is likely to affect the mind of the
punishing authority even with regard to penalty or punishment
to be imposed on such officer. The requirement of reasonable
opportunity, therefore would not be satisfied unless the entire
report of the Enquiry Officer including his views in the matter of
punishment are disclosed to the 'delinquent servant". Thus the
broad test of "reasonable opportunity" is, whether in the given
case, the show cause notice issued to the delinquent servant
contained or was accompanied by so much information as was
necessary to enable him to clear himself of the guilt, if possible,
even at that stage, or, in the alternative, to show that the penalty
proposed was much too harsh and disproportionate to the
nature of the charge established against him."
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5. Learned counsel has also relied on judgment of this Court in Dr. Ved
Parkash Pathak vs. State of Punjab, 2004(1) PLR 663, wherein he
has taken this Court to para 9 as under:
"9. In my opinion, there is no merit in the submission of
the learned Deputy Advocate General. The procedure
prescribed under Rules 8 and 9 of the Rules for holding enquiry
which constitutes a condition precedent for imposition of any of
the major penalties specified in Rule 5 of the Rules is mandatory
and represents the statutory embodiment of the rules of natural
justice and concept of reasonable opportunity enshrined in
Article 311 of the Constitution. Therefore, the wholesale
infraction of the procedure laid down by the rule-making
authority has the effect of vitiating the order of punishment. A
trivial violation of one or the other steps envisaged under Rules
8 and 9 of the Rules may not be sufficient to invalidate the order
of punishment, but where the procedure is vitiated at every stage
and results in prejudice to the delinquent, as has happened in
the present case, there is no choice left with the Court except to
nullify the order of punishment."
6. He has also relied on the judgment of this Court in Hans Raj Gupta vs.
State of Punjab, 1992 SCT 258, wherein he has taken this Court to
para 6 as under:
"6. Coming to the next point of violation of rules of
natural justice, learned counsel took me through the enquiry
report. As observed earlier, only Charanpal Singh Bawa was
cited as a witness in the list of witnesses. Bhag Singh and
Kishan Gopal, two officials of the Food and Supplies
Department were also examined by the enquiry officer. Rules 8
(3) and (4) of the Punishment and Appeal Rules require that the
list of witnesses and the list of reliance of documents is to be
supplied to the delinquent officer. The purpose of this Rule is
that the delinquent officer should not be taken by surprise and
he should know as to who are the witnesses who are to appear
against him and what documents will be produced to prove a
particular charge. It is not clear from the record as to whether
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any previous statements of these two witnesses were ever
recorded. None of the previous statements, if any, which may
have been recorded earlier were supplied to the petitioner.
Examining of witnesses beyond the list of witnesses certainly
prejudiced the petitioner. Even if it is assumed that there was no
previous statement of Charanpal Singh Bawa, who had held the
preliminary enquiry, the preliminary enquiry itself should be
treated to be the previous statement of Charanpal Singh Bawa
and it ought to have been supplied to the petitioner so that he
should effectively cross- examine the said witness. As observed
above, the report of the preliminary enquiry was not supplied to
the petitioner. That being so, enquiry on this point also stands
vitiated."
7. He has also relied on the judgment of this Court in Gurdip Singh vs.
State of Punjab and another, 2005(3) SCT 271, wherein he has taken
this Court to para 6 as under:
"6. It is true that for imposition of a minor punishment,
regular enquiry is not envisaged by the 1970 Rules. However,
the Rules mandate issuance of a charge-sheet, consideration of
the reply thereto and a discretion to the competent authority to
hold an enquiry, if so required, to resolve some disputed
questions of fact. Of course, the competent authority is not
precluded from taking a decision only on consideration of reply
to the charge-sheet. In my view, there is a basic distinction
between the issuance of a charge-sheet and then to give an
opportunity to an employee to tender his explanation on one
hand and affording a post-decisional hearing to such an
employee on the other hand. If, on the basis of the material on
record, the competent authority has already formed an opinion
with regard to commission of a misconduct by the petitioner,
show-cause notice under Rule 10 of the Rules was merely a
post-decisional hearing which does not satisfy the rules of
natural justice as held by the Hon'ble Supreme Court in Shri
H.L. Trehan and others v. Union of India and others, 1989(1)
SLR 7. It is not disputed that the complaint was entertained and
enquiry thereupon was conducted behind the back of the
petitioner and no copy thereof was supplied to him. It is also
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evident that the said enquiry report is based upon statements of
various persons, to whom the petitioner could never cross-
examine."
8. From perusal, this Court finds that departmental proceedings were
initiated against the petitioner and when the enquiry officer summoned
the petitioner, he appeared before the enquiry officer and informed the
enquiry officer that he has not been provided copy of the charge-sheet.
The petitioner was therefore provided with the copy of the
charge-sheet whereafter he was required to submit a reply to the
charge-sheet before the enquiry officer, which he has not done. Instead,
his submission is that the reply could have been filed by him to the
disciplinary authority alone i.e. Principal Secretary, and thereafter the
Principal Secretary was required to examine his reply and then appoint
the enquiry officer.
9. Rule 8 of the Rules provide that if there is a delinquency alleged
against any government servant, the disciplinary authority shall issue a
show cause and after considering the reply, may close the case against
the concerned delinquent or may appoint enquiry officer or conduct the
enquiry himself. However, the provision does not bar the disciplinary
authority to issue a charge-sheet and appoint enquiry officer at the
same time. In the judgment passed by the Supreme Court in the case of
Sabir Hussain (supra), the Supreme Court has taken a similar view.
The petitioner is not prevented from submitting a reply to the
charge-sheet before the enquiry officer, as it is the enquiry officer who
has to examine his defence. Therefore, the contention of the learned
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counsel that the petitioner has been left defenceless is also found to be
without any basis.
10.At this stage, merely because the charge-sheet was not served upon the
petitioner, as alleged by the petitioner, before appointing of enquiry
officer, it cannot be said that the contents of the charge-sheet are
baseless, and therefore no case is made out to set aside the
charge-sheet dated 10.05.2023 or the enquiry proceedings initiated on
the basis of the charge-sheet dated 10.05.2023.
11.The judgments which have been cited by the petitioner are not relevant
for the disposal of the issue raised by him in the present case.
12.In view thereof, writ petition is found to be wholly misconceived and
is accordingly dismissed.
(SANJEEV PRAKASH SHARMA)
JUDGE
January 19, 2024
Mohit goyal
1. Whether speaking/reasoned? Yes/No
2. Whether reportable? Yes/No
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