Chandra Shekhar Kandpal vs State Of Uttarakhand & Others

Lok Pal Singh, J

1) Petitioner has invoked the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India seeking following reliefs, among

others:

i) Issue a writ, order or direction in the nature of certiorari quashing and setting aside the impugned orders dated 06.12.2014 and 07.08.2015, passed by

the District Magistrate, Almora and Commissioner, Kumaun Division, Nainital (contained as Annexure nos. 1 and 2 to the writ petition).

ii) Issue a writ, order or direction in the nature of mandamus commanding the respondents to grant benefit of 1st ACP to the petitioner, on completion

of 10 years service, with all other consequential benefits of service.

2) Brief facts, as mentioned in the writ petition, are that the petitioner was initially appointed on the post of Patwari by an order dated 15.05.2007. The

petitioner joined the post immediately thereafter and started to discharge the duties on the post of Patwari. The post of Patwari was re-designated as

Revenue Sub-Inspector in the year 2011. It is averred in the writ petition that in the month of June 2014, the petitioner was conducting investigation in

three criminal cases. Two criminal cases were of the year 2014 and one criminal case was of the year 2013 which was of another Patwari Police

Circle, but had been transferred to the petitioner for investigation. In Criminal case no. 2 of 2014, registered under Sections 302/120B/504/506 of IPC,

one Prakash Singh s/o Dhan Singh was informant / complainant. The second criminal case was registered under Section 420/467/468/471 & 120B of

IPC and the third criminal case was under Section 323, 504 of IPC read with Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes

(Prevention of Atrocities) Act. It is further averred that in the criminal case no. 02 of 2014, FIR was lodged on 26.06.2014, when petitioner was

posted at Patwari Police Circle, Garad, Tehsil Bhanoli, District Almora. Postmortem in the said criminal case was conducted on 26.06.2014 and since

cause of death could not be ascertained, viscera was preserved for being chemically examined by F.S.L. The petitioner had to carry the preserved

viscera to F.S.L. Dehradun for forensic examinations and for obtaining report thereon. It is also averred that as there was huge pressure of the

inhabitants of the local area as well as of Departmental authorities on the petitioner to complete investigation on criminal case no. 02 of 2014 u/s 302

IPC, the petitioner had to proceed further in concluding the investigation at the earliest. It is contended that had the petitioner been to Dehradun at

F.S.L. immediately after postmortem being conducted with the preserved viscera, the locals would have apprehended that he was not serious about

the mater, instead he is interested in lingering the investigation of said criminal case and on the other hand the departmental authorities would have

blamed him for disobeying their directions. Therefore, the petitioner had no better option than to continue with the investigation of the criminal case

registered under Section 302 IPC and not to leave the investigation circle for any reason whatsoever. The petitioner continued his investigation in the

said case till 31.07.2014 besides conducting investigation of other two criminal cases also.

3) It is averred that due to 15 days ‘Shravani Mela’ commencing from 14.07.2014, the departmental authorities had directed the petitioner to

make all necessary arrangements of maintaining law and order in the area and to make security arrangements for VIP guests and other guests. It is

for the said reason that the petitioner was not in a position to leave his police circle even for a single day as it would take at least three days in

carrying the viscera to F.S.L. Dehradun. In the meantime, employees Union of Revenue Sub-Inspectors went on indefinite strike w.e.f. 01.08.2014,

which continued till 15.08.2014. It is specifically averred that on 01.08.2014, the petitioner had handed over all criminal cases in which investigation

was going on to his immediate superior i.e. Dy. Superintendent of Police. The petitioner had also informed the Dy.S.P. at the time of handing over the

investigation of criminal case no. 02 of 2014, that viscera was preserved in said criminal case which has to be sent to FSL Dehradun for examination.

After 01.08.2014, criminal investigation in criminal case no. 02 of 2014 was taken up by the then Naib Tehsildar, while discharging the duties of

Dy.S.P., who conducted investigation and fulfilled required formalities in Purcha no. 9 and Purcha no.10. It is alleged that though the Dy.S.P. was

having sufficient number of staff with him to get the preserved viscera remitted to the FSL for examination and for obtaining report, but he did not

deem it necessary to remit the preserved viscera to the FSL Dehradun for examination. After joining his duties, the petitioner visited High Court at

Nainital on 23.08.2014 with a narrative of said criminal case of murder, in which viscera was preserved. In the meantime, the accused persons of said

criminal case filed bail petition before this Court and petitioner had to come again to Nainital on 01.09.2014 to file counter affidavit in the bail

application. The petitioner reached FSL Dehradun on 08.09.2014 along with the preserved viscera, but on 09.09.2014, the same was returned as the

seal of CJM court was not legible. The petitioner again submitted the viscera to FSL Dehradun on 11.09.2017, which was accepted for chemical

examination.

4) In the meanwhile, accused persons in criminal case no. 02 of 2014 registered under Sections 302/120B/504/506 of IPC applied for bail in the lower

court, which was rejected and thereafter they filed bail application before this Court, inter alia, on the ground that viscera report in said case had not

been sent for examination to FSL and the cause of death of deceased could not be ascertained, therefore, there is no good ground to detain the

accused persons in jail. The High Court vide order dated 11.09.2014 enlarged the accused persons on bail on the ground of not sending the viscera to

the FSL. Thereafter, the second respondent by order dated 20.09.2014 directed the SDM, Bhanoli, District Almora to get an inquiry conducted into the

matter in regard to negligence on the part of the petitioner in not sending the preserved viscera on time to the FSL. In pursuance of order dated

20.09.2014, SDM, Bhanoli appointed the Naib Tehsildar, Bhanoli as Inquiry Officer to conduct inquiry into the allegations of willful negligence on the

part of the petitioner. The Inquiry Officer wrote a letter dated 01.10.2014 to the petitioner to submit his reply within three days. Petitioner submitted

his reply to the Inquiry Officer on 02/04.10.2014 explaining the delay caused, as also the circumstances under which he could not carry the viscera to

FSL Dehradun within time. Having gone through the reply submitted by the petitioner and having considered the circumstances under which the

petitioner was discharging his duties as Revenue Sub-Inspector, the Inquiry Officer submitted his report dated 09.10.2014 to SDM, Bhanoli and

concluded that there was no deliberate or willful negligence on the part of the petitioner. It is alleged that despite the report of the Inquiry Officer

exonerating the petitioner of the allegations of willful negligence, the second respondent (disciplinary authority) did not accept the said report and by

order dated 10.12.2014 awarded one special adverse entry against the petitioner on the allegations of negligence levelled against him.

5) Feeling aggrieved by the punishment order dated 06.12.2014, passed by the second respondent, petitioner preferred a departmental appeal before

the Commissioner, Kumaun Division, Nainital, which was rejected by said authority vide order dated 07.08.2015. It is alleged in the writ petition that

neither any opportunity of hearing was afforded to the petitioner by the disciplinary authority in disagreeing with the report of Inquiry Officer, nor

sufficient reasons were recorded by the disciplinary authority for his disagreement with the findings of the Inquiry Officer. It is also alleged that

tentative reasons for disagreement were also not supplied to the petitioner in adherence of the principle of natural justice. It is specially averred that

allegation of willful negligence against the petitioner does not stand proved in accordance with law and the power exercised by the disciplinary

authority to award punishment is beyond jurisdiction. It is also alleged that even the allegations were not reduced in the form of charge sheet nor the

same was ever approved by the disciplinary authority. Lastly, it is alleged that due to the impugned punishment order, the petitioner has not been paid

the benefit of his first ACP, which became due and payable w.e.f. 15.05.2017, on completion of 10 years service, whereas juniors to the petitioner

have been paid the benefit of first ACP.

4) Respondent no. 2 filed her counter affidavit stating therein that when the petitioner was posted as Patwari, Patwari Kshetra Gairar, Tehsil Bhanoli,

District Almora, he has failed to send the viscera to the Forensic Science Laboratory within time in connection with case crime no. 02 of 2004,

registered under Sections 302/120B/504/506 of IPC against the accused persons. It is contended that it is a case of dereliction of duty on the part of

the petitioner. Since the viscera was not sent by the petitioner, an adverse entry was given to him. It is also stated that the petitioner was the

Investigating Officer of the case aforementioned and it is his duty to send the viscera immediately to the FSL for chemical examination so that the

cause of death could be ascertained in the postmortem report, but the same could not be done. As such, the petitioner has failed to discharge his duties

properly. Averments made in paragraph nos. 31 to 34 of the writ petition have not been specifically denied by the respondent no. 2.

5) In the rejoinder affidavit, the petitioner denied most of the averments made in the counter affidavit and has reiterated the averments made in the

writ petition.

6) Heard learned counsel for the parties and perused the entire documents brought on record.

7) Learned Senior Advocate appearing on behalf of the petitioner placed reliance on the judgment passed by Hon’ble Apex Court in Lav Nigam

Vs Chairman and M.D., ITI Ltd. and another, (2006) 9 SCC 440. Paragraph 10 of said judgment is reproduced hereunder:

“The conclusion of the High Court was contrary to the consistent view taken by this Court that in case the disciplinary authority differs with the

view taken by the inquiry officer, he is bound to give a notice setting out his tentative conclusions to the appellant. It is only after hearing the appellant

that the disciplinary authority would at all arrive at a final finding of guilt. Thereafter, the employee would again have to be served with a notice

relating to the punishment proposed.â€​

8) Attention of this Court is also drawn to paragraph 19 of the judgment rendered by Hon’ble Supreme Court in the case of Punjab National

Bank and others Vs Kunj Behari Misra, (1998) 7 SCC 84. The same reads as under:

“19. The result of aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7(2). As a result thereof

whenever the disciplinary authority disagrees with the inquiry authority on any article of charge then before it records its own findings on such charge,

it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings.

The report of the inquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the

disciplinary authority to accept the favourable conclusion of the inquiry officer. The principles of natural justice, as we have already observed, require

the authority, which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a

representation before the disciplinary authority records its findings on the charges framed against the officer.â€​

9) Having heard learned counsel for the parties and on perusal of the record it would reveal that the Enquiry Officer submitted the inquiry report and

exonerated the petitioner from the charges levelled against him. If the Disciplinary Authority disagreed with the enquiry report it should have recorded

its disagreement and thereafter by providing opportunity of hearing to the petitioner only then it could have taken decision contrary to the enquiry

report, but the same has not been done in the instant case.

10) A further perusal of the contents of paragraph 32 of the writ petition would reveal that the petitioner has to suffer financially due to the impugned

punishment order. The same are reproduced hereunder for brevity:

“That due to the impugned punishment order, the petitioner has not been paid the benefit of his first ACP, which became due and payable to him

w.e.f. 15th May 2017, on completion of 10 years service. Therefore, the petitioner is suffering due to the impugned punishment order. Several

persons, junior to the petitioner, have been paid the benefit of first ACP.â€​

The averments made in paragraph 32 of the writ petition have not been refuted specifically by the respondents and general denial has been made.

11) Special adverse entry was given to the petitioner vide order dated 06.12.2014 and by order dated 07.08.2015, the appeal filed by the petitioner has

been dismissed. A perusal of the order dated 06.12.2014 would reveal that the special adverse entry has been passed without affording opportunity of

hearing to the petitioner. The appellate authority affirmed the order dated 06.12.2014 by dismissing the appeal filed by the petitioner vide order dated

07.08.2015. It has come in record that the petitioner was earlier exonerated in the enquiry conducted by the Enquiry Officer, therefore, there was no

occasion for the respondent no. 2 to pass the order impugned without affording show cause notice to the petitioner.

12) The principles of natural justice requires that an authority, which has to take a final decision and can impose a penalty, should give an opportunity

to the officer charged of misconduct to file a representation before the disciplinary authority, which is lacking in the instant case. Thus the order dated

06.12.2014, whereby special adverse entry was given to the petitioner, as also the order dated 07.08.2015, passed by the appellate authority dismissing

the appeal of the petitioner are against the principle of natural justice and are liable to the quashed. The same are hereby quashed. The writ petition

stands allowed.

13) Mandamus is issued to the respondent no. 2 directing him to grant benefit of 1st ACP to the petitioner on completion of ten years service, along

with all consequential benefits.

14) No order as to costs.