(1.) THIS writ petition deserves to be allowed on the short ground that there has been denial of a reasonable and fair opportunity to the
petitioner to defend himself and the rules of natural justice have been
respected in their breach during the departmental enquiry at all material
(2.) THE facts are simple but revealing. The petitioner, at the relevant time, was working as a Carpet Training Officer in the
Handicrafts Departments at Kachberi, Badgam. He was placed under
suspension vide order No.20/8(l8)/80 -adm -ll dated 10 -12 -1981 as
disciplinary proceedings, on allegations of certain misconduct and
misbehavior, were contemplated against him. The petitioner was thereafter
served with a memorandum of charges and as many as five charges were
leveled against him. Along with the memorandum of charges, a list of
documents on which the charges were framed, was appended and as many as
12 documents were cited in the said list. The copy of the memorandum of charges, according to the petitioner, was received by him on 18 -1 -1982.
He was granted 10 days time to submit his written statement. He,
thereafter addressed a communication to the disciplinary authority,
respondent No. 1, on 25 -1 -1V82, stating therein that the charges leveled
against him were motivated and were an effort on the part of the
administration to punish him for his trade union activities In the same
communication the petitioner also requested the disciplinary authority to
supply him Photostat copies of the relevant documents and the statements
of witnesses, so that he was in a position to file his written statement.
The documents, however, were not supplied and instead on 19 -3 -1982, the
Section Officer (Vigilance) with the approval of respondent No. 1,
informed the petitioner vide memorandum No. 20/8 -(18)/80 -Adm -H/77 that
his request for supply of the document etc cannot be acceded to at this
stage. He is specifically required to admit or deny each article of
charge mentioned in memo No. 20/8 -(18)/80 -Adm II dated 7 -1 -1982."
On the same day i.e. on 19 -3 -1982, the disciplinary authority, respondent No. 1, issued an order bearing No. 20/8 -(18)/80 -Adm -lI/71 appointing Sh. K. S. Kamble, Joint Director, as the enquiring authority to enquire into the charges framed against the petitioner and through yet another order of the same date bearing No. 20/8 -(18)/80 -Adm -Il/74, Shri S. S. Sharma, Asstt. Development Officer (Wool), was appointed as the Presenting officer on behalf of the department in the departmental enquiry to be conducted against the petitioner under rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. On 30 -3 -1982, the enquiry officer addressed his memo No. JD (M)/Inq /RLR)/82 -83/420 informing the petitioner that he shall be proceeding with the enquiry under rule 14 of the 1965 Rules against the petitioner and directed him to present himself before the enquiry officer at 11 a.m. on 8 -4 -i982 in the F. A. C. Office, Srinagar. On 1 -4 -1982 the enquiry officer informed the petitioner that the enquiry proceeding scheduled to be held on 8 -4 1982, had been postponed The petitioner thereafter en 19 -4 -1982, addressed yet another communication to the disciplinary authority stating therein that he was being asked to submit his written statement without being supplied with the documents and the evidence which were supposed to sustain the charges against him and that since the written statement was required to rebut and refute the charges against him, in the absence of the copies of the documents and the evidence being supplied to him, he could not make any effective written statement. The petitioner accordingly prayed in the same letter that in the circumstances, I may kindly be permitted access to the documents as requested by me earlier so that I am in a position to examine the validity of the allegations in light of the evidence available with the prosecution and prepare my statement of defence, if necessary."
The section officer, with approval of the disciplinary authority, replied the said communication vide his memo dated 22 -5 -1982 informing the petitioner that his request for supply of relevant documents could not be acceded to at this stage, However, he would get full opportunity to inspect the relevant documents at the time of enquiry."
On 3 -5 -1980, the enquiry officer informed the petitioner that he would be proceeding with the enquiry and directed him to appear before him on 28 -5 -1982. On 28 -5 -1982, the petitioner addressed another communication to the enquiry officer in response to the memorandum dated 2 -5 -1982 stating therein, inter alia, that he had approached the disciplinary authority seeking access to the documents etc. which were required to sustain the charges against him. He stressed before the disciplinary authority that unless he was permitted to examine the documents etc. he was not in a position to submit his written statement or deny the charges He requested the enquiry officer that since he had not been granted the requisite permission till then the enquiry may be deferred till his representation for access to the documents etc. was disposed of by the disciplinary authority. On 29 -5 -1982, the enquiry officer, however, informed the petitioner that he should appear before him on 31 -5 -1982 at 10.00 his in the office of the FAC, Srinagar and that on his failure to do so the enquiry proceedings shall be held exparte. In response to the aforesaid communication of the enquiry officer, dated 29 -5 -1982, the petitioner placed on record his version of the manner in which the enquiry officer had death with the case on 28 -5 -1982 and 29 -5 -1982 and how his request for being supplied with the copies of the documents and statements of the witnesses cited in the charge sheet were denied to him. He pointed out that the enquiry officer had been aggressive and hostile and even refused to consider his request for engaging lawyer. He informed the enquiry officer that:
"I feel constrained to approach the disciplinary authority with the plea that the present enquiry officer is quite biased against me and, therefore, no justice could be expected from him. I am further requesting the disciplinary authority to furnish me with the requisite documents and necessary permission to engage a lawyer, so that I am in a position to defend my case after examining the documents."
He, accordingly, requested the suspension of the enquiry proceedings so that the disciplinary authority was in a position to pass appropriate orders. He followed this letter with a telegram seeking the stay of enquiry proceedings. Oil the same day, he also sent a telegram to the disciplinary authority bringing to its notice his grievance against the manner in which the enquiry was being conducted and for change of the enquiry officer. He also a sent a copy of his communication addressed to the enquiry officer to the disciplinary authority and requested the authority to allow him to engage a lawyer. He also reiterated that: -
I further request that copies of documents (or inspection) and statements of witnesses the case may please be furnished to enable me to cross -examine the witnesses in the case during the enquiry."
The enquiry officer in response to the telegram sent by petitioner informed him, vide, letter dated 2 -6 -1982 that he was adopting delaying tactics and that he had bean forced to proceed exparte against him with effect from 31 -5 -1982 and that:
"Enquiry proceedings are now at an advanced stage and are likely to be closed within a day or two. Please note that no further notice of exparte proceedings shall be given to you."
The enquiry officer proceeded with enquiry and submitted his report on 26 -6 -1982. The disciplinary authority, vide communication dated 2/3rd August, 1982, forwarded a copy of the enquiry report to the petitioner and informed him that he agrees with the findings of the enquiry officer and holds that charges Nos. 1. 3 and 5 are proved against him. The petitioner was further informed that the disciplinary authority had provisionally came to the conclusion that: -
"Shri Rattan Lal Razdan is not a fit person to be retained in the service and so the undersigned proposes to impose on him the penalty of dismissal from service"
The petitioner was told that he could make a representation on the proposed penalty but only on the basis of the evidence adduced during the enquiry. The communication further directed the petitioner to state whether he desired to be heard in person This show cause notice was received by the petitioner on 13 -8 -1982 and he submitted his reply on 19 -8 -1982. Vide impugned order the disciplinary authority respondent No. 1, ordered the removal of the petitioner from service. Hence this petition.
(3.) MR . Handoo learned counsel for the petitioner, firstly argued that the non -supply of the copies of the documents and the evidence on
the basis of which the department wanted to sustain the charges against
the petitioner by the disciplinary authority vitiated the enquiry
inasmuch as the petitioner was denied a reasonable and fair opportunity
to defend himself. The next submission of Mr. Handoo was that the enquiry
officer was biased and his bias has vitiated the enquiry. He also argued
that the enquiry officer had traveled beyond the scope of the enquiry,
thus, invalidating the enquiry and the order of termination of services
A reference to the sequences of events which has been noticed in the earlier part of this judgment unmistakably shows that time and
again the petitioner was requesting the disciplinary authority to supply
the copies of the documents and the evidence on which the department
proposed to rely in support of charges but id vain. lam at a loss to
understand how the disciplinary authority expected the petitioner to
submit his written statement without supplying the material asked for by
the petitioner or at least allowing him access to that material It is,
indeed, strange that while the request of the petitioner for supply of
the copies of documents and copies of the statements of witnesses was
pending with the disciplinary authority, it proceeded ahead and on 19 -3 -
982 appointed the presenting officer as well as (he enquiry officer. The. petitioner was also informed, vide communication of the same date
i.e.19 -3 -1982, that this request for supply of the documents could not be
acceded to and that he is required to admit or deny each article of
charge mentioned in the memorandum dated 7 -1 -1982. To say the least, this
was most improper manner of dealing with the request of the petitioner.
It appears that the disciplinary authority, in fact, did not want to give
any chance to the petitioner to submit his written statement and that is
the only inference deducible from the non -supply of the copies of the
documents end statement of witnesses to the petitioner. It is pertinent
to note that along with the articles of charges a list of as many as 12
documents was cited on which the charges were proposed to be sustained
The petitioner had a right to get copies of those documents or at least
to have access to those documents before being asked to submit his
statement of defence but that opportunity was unjustifiably denied to
him. The argument of Mr. Ashok Bhan, appearing for the respondents, that
the petitioner had been told that he could inspect the documents etc,
during the enquiry cannot, in any case, cure the defect particularly when
even during the enquiry, admittedly, neither the copies of documents nor
the copies of the statements of the witnesses recorded at the stage,
previous to holding of the enquiry, were either supplied to the
petitioner nor the petitioner permitted access to those documents and
statement etc. The enquiry against the petitioner was being conducted
under Rule 14 of the 1965 Rules and, let alone the requirements of the
principles of natural justice, even the mandate of those Rules has been
respected in its breach. In this connection it is pertinent to note
sub -rules (3), (4), (5) and (11) of Rule 14. They read thus:
"(3) Where it is proposed to hold an inquiry against a Government servant under this rule and Rule 15, the disciplinary authority shall draw up or cause to be drawn up.
(i) the substance of the imputation of misconduct or misbehavior into definite and distinct articles of charge ;
(ii) a statement of the imputations of misconduct or misbehavior in support of each article of charge, which shall contain -
(a) a statement of all relevant facts including any admission or confession made by the Government servant.
(b) a list of documents by which, and a list of witnesses by whom, the articles of charge are proposed to be sustained.
(4) The disciplinary authority shall deliver or cause to be delivered to the Government servant a copy of the articles of charge, the statement of imputations of misconduct or misbehaviouur and a list of documents and witnesses by which each article charges is proposed to be sustained and shall require the Government servant to submit, within such time as may be specified, a written statement of his defence and to state whether he desires to be heard in person.
(5) (a) On receipt of the written statement of defence, the disciplinary authority may itself inquire in to such of the articles of charge as are not admitted, or, if it considers it necessary so to do, appoint, under sub -rule (2). an inquiring authority for the purpose, and where all the articles of charge have been admitted by the Government servant in his written statement of defence, the disciplinary authority shall record its findings on each charge after taking such evidence as it may think fit and shall act in the manner laid down in Rule 15.
(b) If no written statement of defence is submitted by the Government servant the disciplinary authority may itself inquire into the articles of charge or may, if it considers it necessary to do so, appoint, under sub -rule (2), an enquiring authority for the purpose.
(c) Whether the disciplinary authority itself inquires into any articles of charge or appoints an inquiring authority for holding an inquiry into such charge, it may, by an order, appoint a Government servant or a legal practitioner, to be known as "Presenting officer" to present on its behalf the case In support of the articles of charge.
(11) The inquiring authority shall, if the Government servant fails to appear within the specified time or refuses or omits to plead, require the Presenting officer to produce the evidence by which be proposes to prove the articles of charge, and shall adjourn the case to a later date not exceeding thirty days, after recording an order that the Government servant may, for the purposes of preparing his defence -
(i) inspect within five days of the order or within such further time not exceeding five days as the inquiring authority may allow the documents specified in the list referred to in sub -rule (3)
(ii) submit a list of witnesses to be examined on his behalf;
Note: - If the Government servant applies orally or in writing for the supply of copies of the statements of witnesses mentioned in the list referred to in sub -rule (3), the inquiring authority shall furnish him with such copies as early as possible and in any case not later than three days before the commencement of the examination of (he witnesses on behalf of the disciplinary authority.
(iii) give a notice within ten days of the order or within such further time not exceeding the days as the inquiring authority may allow for the discovery or production of any documents which are in possession of Government but not mentioned in the list referred to in sub rule (3).
Note: - The Government servant shall indicate the relevance of the documents required by him to be discovered or produced by the Government."