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2019 Supreme(Raj) 103
IN THE HIGH COURT OF RAJASTHAN, JAIPUR BENCH
Sanjeev Prakash Sharma, J.
G.P. Joshi - Appellant
Vs.
Raj Financial Corp - Respondent
Civil Writs No. 4544 of 1999
Decided On : 22-01-2019
J.K. Yadav, Adv., Virendra Lodha, Adv., Atishay Jain, Adv.
The principles of natural justice must be followed in departmental enquiries. The Enquiry Officer must act independently and impartially, and must not rely on evidence that is not made available to the delinquent.
Headnote:
NATURAL JUSTICE - ENQUIRY OFFICER - EVIDENCE - PRINCIPLES OF NATURAL JUSTICE - DEPARTMENTAL ENQUIRY - EVIDENCE - WITNESSES - INTERESTED WITNESSES - CROSS-EXAMINATION - PRELIMINARY ENQUIRY REPORT - DISCIPLINARY AUTHORITY - APPELLATE AUTHORITY - JUDICIAL REVIEW - WRIT PETITION - SERVICE BENEFITS - RETIREMENT BENEFITS - SALARY - INTEREST.
Fact of the Case:
The petitioner, a Deputy Manager (Finance), was served with a charge-sheet containing 11 charges. An Enquiry Officer conducted the enquiry and submitted a report, which was served upon the petitioner. The petitioner submitted his objection relating to the enquiry report and the Disciplinary Authority passed an order accepting the findings of the Enquiry Officer and punished the petitioner with dismissal from service. The petitioner filed an appeal before the Board, but the same was also dismissed. The petitioner filed a writ petition challenging the order of dismissal.
Finding of the Court:
The court found that the Enquiry Officer had not followed the principles of natural justice while conducting the enquiry. The Enquiry Officer had relied upon the statements of five witnesses, who were all interested witnesses. The Enquiry Officer had also relied upon the preliminary enquiry report, which was not made available to the petitioner. The Disciplinary Authority had failed to take notice of the petitioner's submissions against the enquiry report. The Appellate Authority had also failed to perform its duty of re-examining and re-considering the case of the petitioner.
Issues: 1. Whether the Enquiry Officer had followed the principles of natural justice while conducting the enquiry? 2. Whether the Enquiry Officer had relied upon the statements of interested witnesses? 3. Whether the Enquiry Officer had relied upon the preliminary enquiry report, which was not made available to the petitioner? 4. Whether the Disciplinary Authority had failed to take notice of the petitioner's submissions against the enquiry report? 5. Whether the Appellate Authority had failed to perform its duty of re-examining and re-considering the case of the petitioner?
Ratio Decidendi: 1. The Enquiry Officer had not followed the principles of natural justice while conducting the enquiry. 2. The Enquiry Officer had relied upon the statements of interested witnesses. 3. The Enquiry Officer had relied upon the preliminary enquiry report, which was not made available to the petitioner. 4. The Disciplinary Authority had failed to take notice of the petitioner's submissions against the enquiry report. 5. The Appellate Authority had failed to perform its duty of re-examining and re-considering the case of the petitioner.
Final Decision: The court allowed the writ petition to the extent of quashing the orders passed by the Disciplinary Authority and the Appellate Authority. The petitioner was entitled to continuity of service upto the date of superannuation with all service benefits on that basis. However, he was only entitled to 50% salary for the period between the date of his dismissal to the date of superannuation. All retiral benefits were also to be released in his favour on the basis of arriving at the actual pay fixation and the full salary which he would have drawn on the date when he superannuated. The petitioner was also entitled to interest on the retiral benefits including gratuity @ 9% per annum as provided in the State Service Rules.
Sanjeev Prakash Sharma, J.
This writ petition has been remanded back to this court by the Division Bench vide order dated 10.5.2018 which reads as under:
"It is submitted by learned counsel for both the parties that many argument were raised before the learned Single Juge but have not been dealt with and even all the arguments have not been referred thus a joint prayer has been made to remand the case back to the learned Single Judge by causing interference in the matter, which may be again considered in the light of the arguments made by the parties.
As prayed, the order dated 7.11.2017 is set aside with the remand of the case to the Single Bench.
With the aforesaid, appeal stands disposed of."
2. This Court is of the view that the matter which has attained finality by a judgment passed by Single Judge, ought not be remanded merely on the basis of a joint prayer made by counsel appearing before the Division Bench. In the case reported by Hon'ble Apex Court in Roma Sonkar Vs. Madhya Pradesh State Public Service Commission and anr., (2018) 10 Scale 222, wherein the Apex Court held as under:
"3. We have very serious reservations whether the Division Bench in an intra court appeal could have remitted a writ petition in the matter of moulding the relief. It is the exercise of jurisdiction of the High Court under Article 226 of the Constitution of India. The learned Single Judge as well as the Division Bench exercised the same jurisdiction. Only to avoid inconvenience to the litigants, another tier of screening by the Division Bench is provided in terms of the power of the High Court but that does not mean that the Single Judge is subordinate to the Division Bench. Being a writ proceeding, the Division Bench was called upon, in the intra court appeal, primarily and mostly to consider the correctness or otherwise of the view taken by the learned Single Judge. Hence, in our view, the Division Bench needs to consider the appeals on merits by deciding on the correctness of the judgment of the learned Single Judge, instead or remitting the matter to the learned Single Judge."
3. Be that as it may, as the earlier order dated 7.11.2017 has been set aside by the Division Bench, it has become necessary for this court to again decide this matter which has been pending since 1999 for adjudication.
4. The brief facts which have been placed on record before this court are that the petitioner, who was holding the post of Deputy Manager (Finance) was served with a charge-sheet vide memorandum dated 18.5.1994 wherein 11 charges were leveled. The Enquiry Officer conducted the enquiry wherein the petitioner participated and submitted his reply. The Enquiry Officer submitted his report on 25.4.1997 which was served upon the petitioner vide letter dated 29.4.1997. The petitioner submitted his objection relating to the enquiry report and the Disciplinary Authority passed the order dated 29.8.1998 accepting the findings of the Enquiry Officer and punished the petitioner of dismissal from service. The payment for the period of suspension beyond the subsistence allowance was also dis-entitled. The petitioner filed an appeal before the Board, but same was also dismissed by the Board and communication to this effect was sent to the petitioner vide letter dated 23.12.1998. The review petition preferred was also rejected.
5. The counsel for the petitioner submits that the Enquiry Officer has not followed the principles of natural justice while conducting the enquiry and the petitioner was held guilty of the charges wrongfully based on evidence recorded by the Enquiry Officer of five witnesses produced by the respondents in support of the charges. The counsel submits that the five witnesses namely B.L. Chhabra, Manoj Modwal, Ram Babu Gupta, R.P. Meena and K.K. Sharma, were examined who were interested witnesses and there was no independent witness examined. The counsel points out that B.L. Chhabra and Ram Babu Gupta were those officers who had conducted the p
