AI Structured Summary
Not yet generated for this judgment
Judgment
The petitioner has approached this Court with the following prayers:- "(A)quash and set aside the impugned punishment order dated 21.08.2013, Annexure-A to this petition and
(B) quash and set aside the order of the appellant authority dated 30.01.2014, Annexure-B to this petition and
(C) quash and set aside the report of the Inquiry Officer dated 07.11.2011, Annexure- L to this petition, and consequently quash and set aside all subsequent proceedings"
Heard learned advocates.
Relevant facts, as emerging from record are as under. 3.1 The petitioner had joined the service of the respondent Board as Additional Assistant Engineer on 17.8.1982.
3.2 The date of birth of the petitioner is 12.1.1956 and thus, the petitioner was to retire from service on 31.1.2014 on attaining the age of superannuation.
3.3 While the petitioner was holding the additional charge of the post of Deputy Executive Engineer, the petitioner was placed under suspension vide order dated 31.1.2009, on the allegation that in the housing colony constructed by the respondent Board, there was some unauthorized occupation / construction.
3.4 After departmental inquiry, the impugned punishment order was passed on 21.08.2013 ordering removal from service.
3.5 Against the said punishment order dated 21.8.2013, the petitioner had preferred an appeal before the appellate authority, which came to be rejected vide order dated 30.1.2014.
1 Learned advocate for the petitioner has taken this Court through the contents of the show cause notice, replies of the petitioner, the contents of the charge sheet, the inquiry report, the final reply of the petitioner and the punishment order. Reference is also made to the preliminary inquiry report which is relied by the respondent. Learned advocate for the petitioner has submitted that, there are various illegalities and improprieties in the initiation, continuation and conclusion of the departmental inquiry. Learned advocate for the petitioner has also submitted that there has been gross violation of principles of natural justice. It is further submitted that there has been inordinate and unexplained delay in continuing and concluding the departmental inquiry, which has operated against the petitioner and which has prejudiced the defence of the petitioner. Learned advocate for the petitioner has vehemently submitted that, the Inquiry Officer shifted the burden on the petitioner to disprove the charge, which is illegal. It is further submitted that even on merits no case is made out against the petitioner and the petitioner ought not to have been charge sheeted at all for the alleged misconduct. It is submitted that, the charges leveled against the petitioner are vague and that the same are leveled on the basis of conjectures and surmises. Learned advocate for the petitioner has submitted that even from the perusal of the list of documents supplied to the petitioner, along with the charge sheet, no material is supplied to the petitioner. It is submitted that, the suspension order and the show cause notice can not be said to be evidence which would substantiate the allegations levelled against the petitioner. It is submitted that except that there is no material in support of the charge leveled against the petitioner. It is submitted that the punishment order is a non-speaking and unreasoned order and that the points raised in the detailed representation made pursuant to the show cause notice issued to the petitioner have not been taken into consideration, much less the same are dealt with. 4.2 It is further submitted that, the petitioner is singled out by the respondent Board as would be evident from the fact that so far as the alleged misconduct is concerned, out of the total 19 employees, including 3 Executive Engineer, 2 Deputy Engineers, 1 Site Manager and other employee of the respondent Board, whose responsibility was more than that of the present petition, all of them have been exonerated of the charge leveled against them. Learned advocate for the petitioner has submitted that, the details with regard to the office orders of atleast 17 employees are placed on record with the additional affidavit, which would reveal that all of them are exonerated of the charge leveled against them. Even from the report of High level committee, placed on record by the respondent Board along with their affidavit in reply, it is evident that during the course of preliminary inquiry it was found that in all 19 employees / officers were entrusted with the responsibility in question, on different occasion. It is submitted that therefore it is the case of the petitioner that the petitioner is victimised by the respondent authorities. Learned advocate for the petitioner has submitted that, out of those 19 employees only the petitioner is singled out were by, he is meted out with punishment of removal from service, just 5 months prior to the date of his superannuation retirement.
4.3 Without prejudice to the above, it is further submitted that, having regard to the unblemished track record of the petitioner of more than 32 years of service, the punishment of removal from service is shockingly disproportionate to the nature of the charge leveled against the petitioner.
Learned advocate for the respondent Board has submitted that, before passing the punishment order of removal form service, departmental inquiry is conducted by following the principles of natural justice. It is submitted that the inquiry report held that the charges leveled against the petitioner are proved. It is contended that the petitioner is provide sufficient opportunity before passing of the punishment order. It is submitted that no interference be made by this Court.
Having heard the Learned advocates for the respective sides and having considered the material on record this Court finds as under. 6.1 The impugned punishment order is based on the finding of the inquiry officer against the petitioner. The inquiry officer has held that the petitioner has not disproved the charges against him. Though the charges in the Departmental Inquiry need not be proved beyond doubt and only preponderance of probability is sufficient, equally true is the preposition of law that, the burden of proving the charge is on the disciplinary authority and the delinquent need not prove his innocence. The inquiry officer thus fell in error on this basic parameter. This Court has taken into consideration the contents of the inquiry report which is on record and it transpires that there is no legally acceptable material which could take the inquiry officer to the conclusion where he reached. This is the case of no evidence and perversity on the part of the inquiry officer. The findings of the inquiry report therefore need to be set aside. Consequently, the impugned punishment order would also be unsustainable. From record it also transpires that the contentions raised by the petitioner in his reply are not dealt with by the disciplinary authority and thus it is an unreasoned order.
6.2 With the above findings, the matter could be remanded back to the disciplinary authority, however there are other factors also, which need to be taken into consideration. They are as under.
6.3 The petitioner had joined the service of the respondent Board on 17.8.1982 and had unblemished service record of more than 32 years. At the time of removal, the petitioner was to retire within less than six months time. The charges against the petitioner were of supervisory lapse.
6.4 The basis for the initiation of the proceedings was a complaint regarding some encroachment / unauthorized construction in the colony. Preliminary inquiry named about 19 employees / officers, including the present petitioner. Persons junior to the petitioner and senior to him ? both were named. Except the petitioner none else is touched by the authorities. The officers with more tenure are also not touched by the respondent. The petitioner was holding only additional charge for a very short period and qua him the punishment of removal is imposed. In this factual background, this Court finds that, there is substance in the grievance of the petitioner that he was victimised. The matter therefore need not be remanded back to the authorities. The petitioner could not have been discriminated like this. This petition therefore needs to be allowed.
For the reasons recorded above, the following order is passed. 7.1 The report of the Inquiry Officer dated 07.11.2011, is quashed.
7.2 Consequently, the impugned punishment order dated 21.08.2013, Annexure-A to this petition is quashed and set aside.
7.3 The order of the appellant authority dated 30.01.2014, Annexure-B to this petition would not survive and stands quashed.
7.4 The petitioner would be treated to be in service till the date of his retirement and he shall be entitled to all consequential benefits, except the arrears of pay for the period from 22.08.2013 to 31.01.2014.
7.5 The retirement dues of the petitioner shall be paid to him within a period of three months from the date of receipt of this order.
7.6 Rule is made absolute in above terms. No order as to costs.