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IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
Barin Ghosh,Sunil Hali, JJ.
High Court Of J&K & Anr. - Appellant
Versus
Vijay Kumar Atri & Anr. - Respondent
LPASW No. 91/2009 & LPASW No. 99/2009
Decided On : 07 December, 2009
Writ petition allowed in part. Order of removal from service passed against the respondent No.1, is upheld with a direction to the authority that the inquiry proceedings shall continue afresh from the stage of issuance of a fresh show cause notice by the said authority. Respondent No.1 shall be provided a copy of the proceedings which shall include the inquiry report, record of evidence, statement of the findings and the grounds thereof along with the reasons of the authority for differing with the recommendation of inquiry officer so far as charge No.1 is concerned. Respondent No.1 shall stand reinstated only for the purposes of inquiry as stated above, and his status as a suspended employee shall continue till the inquiry is completed and appropriate orders are passed by the authority concerned. Observations of the learned Single Judge regarding the conduct of Sh A.K. Shan, the then District & Sessions Judge, Leh, and for placing the same on his personal file are set aside. Final order to be passed by respondent-State shall be subject to the outcome of the recommendation of the authority after taking into consideration the reply of respondent No. 1 to the second show cause notice which shall be issued to him along with the material referred to above.
Fact of the Case:
The writ petitioner, respondent in these appeals, a Munsiff appointed on December 8, 1980, was promoted to the post of Sub-Judge in the year 1988. On July 28, 1994, he was suspended pending inquiry. On October 29, 1994, he received a charge sheet. The same contained eleven charges. He replied the charge sheet by a letter dated December 22, 1994, whereby he denied all eleven charges. The charges were thus inquired into, first by a Honble Judge and later, on his Lordships transfer from this Court to another Court, by another Honble Judge, who concluded the inquiry and submitted his report. On April 10, 1998, the second show cause notice was issued, a copy of the inquiry report was enclosed therewith. The said show cause notice indicated that the Honble Court has agreed with the report of the Inquiry Officer that the charges 8 and 11 stand proved and further the Honble Court has come to the conclusion that charge no. 1 is also proved on evidence. The said show cause, however, did not indicate the reasons to support the said conclusion. The said show cause expressed that the Honble Court has provisionally come to the conclusion that the respondent is not a fit person to be retained in service and that a major penalty of removal from service should be imposed upon him. The show cause gave an opportunity to the respondent to make representation on the penalty proposed. Respondent represented on February 5, 1998 against the proposed punishment. On August 29, 2000, an order was passed by the order of the Governor of the State of J&K, whereby and under the respondent was removed from service with immediate effect.
Finding of the Court:
The order of removal from service passed against the respondent No.1 is upheld with a direction to the authority that the inquiry proceedings shall continue afresh from the stage of issuance of a fresh show cause notice by the said authority. Respondent No.1 shall be provided a copy of the proceedings which shall include the inquiry report, record of evidence, statement of the findings and the grounds thereof along with the reasons of the authority for differing with the recommendation of inquiry officer so far as charge No.1 is concerned. Respondent No.1 shall stand reinstated only for the purposes of inquiry as stated above, and his status as a suspended employee shall continue till the inquiry is completed and appropriate orders are passed by the authority concerned. Observations of the learned Single Judge regarding the conduct of Sh A.K. Shan, the then District & Sessions Judge, Leh, and for placing the same on his personal file are set aside. Final order to be passed by respondent-State shall be subject to the outcome of the recommendation of the authority after taking into consideration the reply of respondent No. 1 to the second show cause notice which shall be issued to him along with the material referred to above.
Issues: 1. Whether the actual prejudice caused to respondent No.1 was required to be determined after going into the question as to whether the charges were seperable or not. 2. Whether the punishment could be sustained on the basis of the separable charge having been proved by the authority on the recommendation of the Enquiry Officer alone. 3. That while recording certain adverse comments against the appellant in LPA No.99/09, whether the reliance placed by the writ court on the report of the Enquiry Officer was uncalled for as the conduct of the officer was not the subject matter of probe in the said inquiry; and 4. Whether the learned Single Judge while passing the order impugned could enter into an arena of appreciating and sifting of evidence recorded by the Enquiry Officer, which was not its domain while hearing the petition under Article 226 of the Constitution of India.
Ratio Decidendi: 1. Non-observance of principles of natural justice and denial of reasonable opportunity vitiates the order only when some real prejudice is caused to the delinquent official. 2. The principle underlying this concept is that the delinquent official must show that some prejudice has been caused to him by non-observance of the rules of natural justice. 3. The said principle is applied taking into consideration the facts and circumstances of each case. 4. The earlier pronouncements on this issue are that even a small violation of the said principles would be fatal. 5. The principles of natural justice cannot be put in a straitjacket formula. 6. It has separate facets. 7. It has in recent time also undergone a sea change. 8. In view of later decisions, the principle of law is that some real prejudice must have been caused to the complainant. 9. The Court has shifted from tis earlier concept that even a small violation shall render the order a nullity. 10. The principle/doctrine of audi alteram partem, a clear distinction has been laid down between the cases where there was no hearing at all and the cases where there was mere technical infringement of the principle. 11. The Court applies the principles of natural justice having regard to the fact situation obtaining in each case. 12. It is not applied in a vacuum without reference to the relevant facts and circumstances of the case. 13. It is no unruly horse.
Final Decision: Writ petition allowed in part. Order of removal from service passed against the respondent No.1, is upheld with a direction to the authority that the inquiry proceedings shall continue afresh from the stage of issuance of a fresh show cause notice by the said authority. Respondent No.1 shall be provided a copy of the proceedings which shall include the inquiry report, record of evidence, statement of the findings and the grounds thereof along with the reasons of the authority for differing with the recommendation of inquiry officer so far as charge No.1 is concerned. Respondent No.1 shall stand reinstated only for the purposes of inquiry as stated above, and his status as a suspended employee shall continue till the inquiry is completed and appropriate orders are passed by the authority concerned. Observations of the learned Single Judge regarding the conduct of Sh A.K. Shan, the then District & Sessions Judge, Leh, and for placing the same on his personal file are set aside. Final order to be passed by respondent-State shall be subject to the outcome of the recommendation of the authority after taking into consideration the reply of respondent No. 1 to the second show cause notice which shall be issued to him along with the material referred to above.
1. The writ petitioner, respondent in these appeals, a Munsiff appointed on December 8, 1980, was promoted to the post of Sub-Judge in the year 1988. On July 28, 1994, he was suspended pending inquiry. On October 29, 1994, he received a charge sheet. The same contained eleven charges. He replied the charge sheet by a letter dated December 22, 1994, whereby he denied all eleven charges. The charges were thus inquired into, first by a Honble Judge and later, on his Lordships transfer from this Court to another Court, by another Honble Judge, who concluded the inquiry and submitted his report. On April 10, 1998, the second show cause notice was issued, a copy of the inquiry report was enclosed therewith. The said show cause notice indicated that the Honble Court has agreed with the report of the Inquiry Officer that the charges 8 and 11 stand proved and further the Honble Court has come to the conclusion that charge no. 1 is also proved on evidence. The said show cause, however, did not indicate the reasons to support the said conclusion. The said show cause expressed that the Honble Court has provisionally come to the conclusion that the respondent is not a fit person to be retained in service and that a major penalty of removal from service should be imposed upon him. The show cause gave an opportunity to the respondent to make representation on the penalty proposed. Respondent represented on February 5, 1998 against the proposed punishment. On August 29, 2000, an order was passed by the order of the Governor of the State of J&K, whereby and under the respondent was removed from service with immediate effect.
2. The respondent then approached this Court and filed a writ petition, which was registered as SWP no. 126/2001. In the writ petition the following contentions were put forward.
(a) For the purpose of inquiry, suspension, punishment, etc. no separate Rules are prescribed or framed to govern the services of Subordinate Judicial Officers. For this purpose, Rules contained in the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956 are followed. In such view of the matter, the Disciplinary Authority is His Excellency the Governor and the Government and not the High Court;
(b) The Honble Court has not recorded its reasons and grounds for differing with the inquiry officer in relation to charge no. 1 and/or reaching to a different conclusion;
(c) The Government appears to have differed with the finding and proposed punishment of removal from service with the High Court for good and sufficient reasons and communicated its views but the Honble High Court, thereafter, did not consider the matter in a detached manner; and
(d) Findings on charges no. 1, 8 and 11 are based on no evidence and are perverse in nature.
3. To support the last contention, it was contended that Shri Ashok Kumar Shan, the then District Judge, Leh was the person responsible for framing the petitioner. Shri Ashok Kumar Shan was, however, not a party to the writ petition.
4. In the counter affidavit filed by the High Court, it had denied the material averments made in the writ petition.
5. A learned Single Judge, by an order dated December 17, 2007, directed Shri Ashok Kumar Shan, the then District and Sessions Judge, Leh, to be impleaded as a respondent to the writ petition. The said order was appealed against by Shri Ashok Kumar Shan and a Division Bench in LPA no. 176/2007, set aside the said order. Shri Ashok Kumar Shan thus remained a non-party to the writ petition. The writ petition was then heard and decided by the judgment and order under appeal dated June 2, 2009, whereby order dated August 29, 2000 was quashed with certain consequential directions and a copy of the said judgment and order was directed to be communicated to the Registrar General for placing the same on the personal file of Shri Ashok Kumar Shan, the then District and Sessions Judge, Leh.
6. A look at the judgment and order under appeal would show t
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