Rohit v. District & Session Judge Sbs Nagar (Nawanshahr) And ANR

-1IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision:06.07.2017 Rohit ... Petitioner Vs.

District and Sessions Judge SBS Nagar (Nawanshahr) and another ... Respondents CORAM : HON'BLE MR. JUSTICE P.B. BAJANTHRI Present :

Mr. Raman Sharma, Advocate for the petitioner. Mr. Satish Chaudhary, Advocate for the respondents. P.B. BAJANTHRI J. (Oral) In the instant petition, the petitioneer has assailed orders dated 7.1.2016 and 4.5.2016 (Annexures P-1 and P-2) respectively. The petitioneer is stated to have been appointed as Peon in the office of District and Sessions Court, SBS Nagar (Nawanshahr) on 4.1.2011. His services were drafted and attached to the Judicial Officer who was on training on 20.10.2014. On 18.11.2014 Reader of the Court made a complaint before the Judicial Officer (Civil Judge) (Jr. Division), SBS Nagar stating that petitioner was not obeying instructions of the Reader. In other words, petitioner was not performing duties assigned by the Reader. The said oral complaint submitted by the Reader has been taken note of by the Civil Judge (Jr.

Division) SBS Nagar who in turn in writing submitted report to the District and Sessions Judge, SBS Nagar that the petitioner's behaviour while dischrging the duties is not upto to the mark etc. Based on the written complaint dated 18.11.2014 by the Civil Judge (Jr.

-2thereafter he has been charge-sheeted on 20.11.2014. After completion of disciplinary proceedings, disciplinary authority proceeded to impose the penalty of removal from service under Rule 12 (2) (viii) of Punjab Subordinate Courts Establishment (Recruitment and General Conditions of Service) Rules 1997 read with Rule 5 (viii) Punjab Civil Services (Punishment and Appeal) Rules 1970. Further suspension period has been treated as leave of the kind due. Feeling aggrieved by the order of removal from service, petitioner is stated to have submitted administrative appeal before the competent authority. Petitioner's administrative appeal was dismissed on 4.5.2016 (Annexure P-2). Hence, the present petition. Learned counsel for the petitioner submitted that charges are not very specific.

In this regard, petitioner has taken specific plea for charge-memo and in the disciplinary proceedings the said contention is either accepted or rejected by the respondents. Written complaint submitted by the Civil Judge (Jr. Division) dated 18.11.2014 has not been marked in the inquiry which is the prime document in support of the alleged charge. Since the entire initiation of charge memo is based on the complaint dated 18.11.2014. It was further submitted that even assuming that the petitioner has not obeyed certain instructions issued by the Reader on a particular date gist of the allegations are not forth-coming and that does not warrant imposition of penalty of removal from service.

It is also submitted that the other charges relating to habit of remaining absent from place of duty and behaviour of the petitioner was rude, in this regard, there is no date of allegations and incident cited in the charge-memo. Therefore, charges levelled against the petitioner are vague and not supported by dates and events.

-3authorities and such contention was not at all considered. Therefore, imposition of penalty of removal from service and rejection of the administrative appeal are liable to be set aside. Per contra, learned counsel for the respondent submitted that judicial officer submitted written report to District and Sessions Judge and perusal of the same by the disciplinary authority proceeded to hold inquiry. Therefore, there is no substance in contending that charges are not specific. Perusal of the evidence adduced by the witnesses, it is evident that petitioner was disobeying the instructions issued for the purpose of discharging his duties. Thus, based on the evidence adduced in the inquiry, disciplinary authority has imposed the penalty of removal from service. Therefore, there is no infirmity.

It was further contended that from the charges, it is crystal clear that the petitioner did not perform his duties as he was arguing with the Presiding Officer in the open Court. That apart as stated by the Reader to the extent that whatever the instructions given to the petitioner is being disobeyed and further petitioner used to argue with the officials to the extent that if they are not satisfactory with the work, in that event, he be transferred to some other section or Court. Having regard to the conduct of the petitioner, no interference is called for in respect of removal from service as well as rejection of administrative appeal of the petitioner. He relied on a decision of the Supreme Court passed in Transport Commissioner, Madras-5 v. A.

Radha Krishna Moorthy; (1995) 1 LLN 776 (Para-10) to contend that even assuming that the charges are vague, matter requires remand to the disciplinary authority to particularized the charges and then to proceed with the disciplinary proceedings. Moreover, petitioner has admittted the guilt and sought for unconditional apology.

-4Heard learned counsel for the parties and perused the documents.

Before adverting to the contention of the petitioner, it is necessary to extract the charges framed against the petitioner which reads as under:

"Whereas Sh. Harshbir Sandhu, Civil Judge (Jr. Division) (TJO), SBS Nagar, vide letter No.23 dated 18.11.2014 intimated that you (Sh. Rohit, Peon) did not perform your duties, rather argued with the Presiding Officer in the open Court. You were also in the habit of remaining absent from your place of duty and whenever you were called for, you made excuses and often answered in rude tone."

Perusal of the above charge, it is evident that charges were supported by letted dated 18.11.2014 of the Civil Judge (Jr. Division) SBS Nagar which was addressed to the District and Sessions Judge, SBS Nagar. To prove the contents of the letter/complaint dated 18.11.2014, it was bounden duty of the disciplinary authority to place on record in the disciplinary proceedings and mark it as document so as to prove the same while examination and cross examination of the author of the complaint/letter dated 18.11.2014. Admittedly letter dated 18.11.2014 of the Civil Judge (Jr. Division) SBS Nagar has not been marked. In the absence of marking letter dated 18.11.2014, the same cannot be taken into consideration for the purpose of proving the charges levelled against the petitioner in respect of gist of the complaint stated in the letter dated 18.

11.2014. Further remaining absent from place of duty and petitioner was rude, in this regard, no specific incidents have been cited in the chargememo so as to content that the petitioner remained absent so also he was rude with the officials.

-5remaining absent whenever he was placed on duty so also rude behaviour with the officials. Thus, the charges levelled against the petitioner are itselt are very vague which do not contain the date and events constituting charge/s. Inquiry officer relied on the evidence adduced in the inquiry cannot be taken into consideration. In other words, appreciating the evidence by the inquiry officer as well as disciplinary authority are only on presumption and assumption for the reasons that complaint dated 18.11.2014 has not been marked as a document and furhter examination and cross examination of the author of the letter dated 18.11.2014 was required since foundation of framing of charges against the petitioner is based on the letter dated 18.11.2014.

Even perusal of the statement of Ved Parkash, it does not disclose dates and events of the allegations made by him to the Civil Judge (Jr. Division) SBS Nagar. Thus, entire inquiry proceedings is based on the vague charges levelled against the petitioner. Supreme Court in number of judgments has held that ingredients of the charge must contain dates and events of allegations. In the absence of the same, one has to draw inference that the charges are vague, since root of the matter itself is not in accordance with law. Therefore, entire action is farce. Supreme Court in Union of India and others v.

"34. In Sawai Singh v. State of Rajasthan, this Court held that even in a domestic enquiry, the charge must be clear, definite and specific as it would be difficult for any delinquent to meet the vague charges. Evidence adduced should not be perfunctory even if the delinquent does not take the defence or make a protest against that the charges are vague, that does not save the enquiry from being vitiated for the reason that there must be fair play in action, particularly, in respect of an

-6order involving adverse or panel consequences.

35. In view of the above, law can be summarised that an enquiry is to be conducted against any person giving strict adherence to the statutory provisions and principles of natural justice. The charges should be specific, definite and giving details of the incident which formed the basis of charges. No enquiry can be sustained on vague charges. Enquiry has to be conducted fairly, objectively and not subjectively. Finding should not be perverse or unreasonable, nor the same should be based on conjuectures and surmises. There is a distinction in proof and suspicion. Every act or omission on the part of the delinquent cannot be a misconduct. The authority must record reasons for arriving at the finding of fact in the context of the statute definding the misconduct."

In case of Anant R. Kulkarni v. Y.P. Education Society and others; 2013 (3) S.C.T. 188, Supreme Court has held in para 9 as under: "9. In Surath Chandra Chakravarty v. The State of West Bengal, AIR 1971 SC 752 this Court held that it is not permissible to hold an enquiry on vague charges, as the same do not give a clear picture to the delinquent to make out an effective defence as he will be unaware of the exact nature of the allegations against him, and what kind of defence he should put up for rebuttal thereof.

The Court observed as under:- "The grounds on which it is proposed to take action have to be reduced to the form of a definite charge or charges which have to be communicated to the person charged together with a statement of the allegations on which each charge is based and any other circumstance which it is proposed to be taken into consdieration in passing orders has to be stated. This rule embodies a principle which is one of the specific contents of a reasonable or adequate opportunity for defending oneself.

-7he cannot possibly, by projecting his own imagination, discover all the facts and circumstances that may be in the contemplation of the authorities to be established against him." (Emphasiss added)"

Petitioner in his reply to charge-memo and in appeal memo specifically contended that alleged incident must be part of article of charges and that charge-sheet is not in accordance with law. Both disciplinary and appellate authorities have not dealt with the above contention and other contentions which were raised. When clause (i) subrule (3) of Rule 8 of Punjab & Appeal Rules, 1970 provides for Punishing Authority to "the substance of imputation of misconduct or misbehaviour into definite and distinct articles of charges" and Rule 19-Consideration of Appeals provides that "Appellate authority shall consider: "(a) whether the procedure laid down in these rules has been complied with, and if not, whether such non-compliance has relucted in the violation of any provision of the Constitution of India or in the failure of justice.

The above provision has not been dealt by the appellate authority. Having regard to the contention of the petitioner that there is no specific and definite charges. Hence, impugned actions are liable to be set aside. Insofar as seeking unconditional apology is concerned, it is not with reference to any particular charge and it is in general nature. Therefore, one cannot draw inference that there is a admission of charge. If admission in reply to charge memo is to be taken into consdieration in that event question of holding inquiry would not have warranted. Hence, order of removal from service dated 7.1.2016 and rejection of administrative appeal dated 4.5.2016 (Annexures P-1 and P-2 respectively) are hereby set aside. Petitioner be reinstated with all service and monetary benefits during the period from 7.1.

-8into service. Reserving liberty to the disciplinary authority to issue specific charges and proceed with enquiry afresh, if it is warranted. Petition stands allowed.

06.07.2017 (P.B. Bajanthri) rajeev Judge Whether speaking/reasoned Yes/No Whether reportable Yes/No