Allowed

Bhunesh Gandharwa v. State Of Chhattisgarh

Chhattisgarh HC24 Nov 2023WPS/2487/2017

Case brief

AI extract

What is this about?

High Court quashed orders terminating petitioner service for violating principles of natural justice due to non-supply of charge sheet and documents. Petitioner to be reinstated; authority to initiate proper enquiry afresh.

What did the court decide?

Impugned orders set aside, petitioner reinstated with all consequential benefits; authorities directed to initiate proper enquiry.

Bhunesh Gandharwa Vs State Of Chhattisgarh — Service and Employment | Chhattisgarh HC (2023)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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WPS No. 2487 of 2017

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Bhunesh Gandharwa, S/o Sonsingh Gandharwa, aged about 52 years, R/o Ward No.13, Post – Chhuriya, Nagar Panchayat Chhuriya, District - Rajnandgaon (Chhattisgarh)

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---- Petitioner

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Versus

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State Of Chhattisgarh Through Secretary, Department of Urban Administration and Development, Naya Raipur, Mahanadi Bhawan, Raipur, District Raipur (C.G.)

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Collector, Rajnandgaon, District Rajnandgaon (C.G.)

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Chief Municipal Officer, Nagar Panchayat Chhuriya, District Rajnandgaon (C.G.).

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---- Respondents

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For Petitioner : Mr. Anup Majumdar, Advocate For State/Respondents : Mr. Soumya Rai, Panel Lawyer.

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Hon'ble Smt Justice Rajani Dubey Order on Board

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24/11/2023

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1 . The Petitioner has filed this petition under Article 226 of the Constitution of India against Appellate order dated 21.02.2017 passed by the Additional Collector, Rajnandgaon, District Rajnandgaon (C.G.) arising out of order dated 31.11.2016 passed by the Chief Municipal Officer, Nagar Panchayat Chhuriya, District Rajnandgaon (C.G.) seeking following relief(s) :-

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“10.1 That, this Hon’ble Court may kindly be pleased to quash the order, for termination of

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service and recovery of money, dated 31.11.2016 passed by respondent authority no.3 and appellate order dated 21.02.2017 passed by respondent authority no.2.

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10.2 That, the respondent No.3 may be directed to reinstate back the petitioner in service along with full back wages and interest at rate of 9% annually upon it, till date of payment.

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10.3 Any other relief or reliefs may also be granted to the petitioner which this Hon’ble Court deems fit and proper in the facts and circumstances of the case.”

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2 . Learned counsel for the petitioner submits that the impugned order passed by the respondent authorities against the petitioner is illegal, arbitrary and liable to be quashed. The respondent authorities did not consider the factual position that the petitioner was appointed in Gram Panchayat Chhuriya about 25 years prior to establishment of Nagar Panchayat. At that time, the petitioner did not have financial power and even the work of Accountant has not been delegated to him. In the year 2012-13 and 201314, the transaction of money from the bank for the commercial and income tax deduction, was done on behalf of the Respondent No.3 by the employees, except the petitioner, and in the year 2013-14 for the Uttarakhand Baadh Trasadi Rahat Kosh, one day salary of employees

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was donated and deposited in Mukhyamantri Rahat Kosh and this work was done by the Chhannuram Sahu and not by the petitioner. Learned counsel also submits that no proper charge sheet was served to the petitioner and no documents were given to the petitioner & the respondent authorities terminated the services of the petitioner without following the principles of natural justice. Therefore, the instant petition is liable to be allowed.

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3 . Learned State counsel strongly opposed the prayer of the petitioner and fairly submits that in compliance to the Court’s order dated 03.10.2017 and 02.11.2023, the required record is available and after inspecting the record, learned State counsel submits that in this record, no acknowledgment of the petitioner for receiving the charge sheet and document is available but he pointed out the note sheet dated 17.08.2015, wherein on the said date the petitioner was present and admitted that he received the charge sheet relating to the Departmental Enquiry, which he read over. Note sheet dated 17.08.2015 further reflects the fact that the petitioner also said that he does not want to keep anyone as a defence witness and the petitioner signature is available in this note sheet.

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4 . Learned counsel for the petitioner rebutted this contention of learned State counsel and submits that the petitioner is

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posted as Revenue Inspector in the Department and at the relevant time he was under suspension and Enquiry Officer had taken his signature on various note sheets, which he was not aware. Petitioner also pointed out that at the time of incident, one Sajida Khan was posed as Cashier and the Department did not initiate any proceeding against the Cashier and Accountant & the said Sajida Khan was departmental witnesses in the Departmental Enquiry.

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5 . Heard both the counsel for the parties and perused the material available on record.

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6 . Hon’ble Apex Court in the matter of State of Uttaranchal & Others Vs. Kharak Singh reported in (2008) 8 SCC 236, held in para 15, which reads thus :-

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“15. From the above decisions, the following principles would emerge :

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(i) The enquiries must be conducted bona fide and care must be taken to see that the enquiries do not become empty formalities.

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(ii) If an officer is a witness to any of the incidents which is the subject-matter of the enquiry or if the enquiry was initiated on a report of an officer, then in all fairness he should not be the enquiry officer. If the said position becomes known after the appointment of the enquiry officer, during the enquiry, steps should be taken to see that the task of holding an enquiry is assigned to some other officer.

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(iii) In an enquiry, the

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employer/department should take steps first to lead evidence against the workman/delinquent charges and given an opportunity to him to cross-examine the witnesses of the employer. Only thereafter, the workman/delinquent be asked whether he wants to lead any evidence and asked to give any explanation about the evidence led against him.

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(v) On receipt of the enquiry report, before proceeding further, it is incumbent on the part of the disciplinary/punishing authority to supply a copy of the enquiry report and all connected materials relied on by the enquiry officer to enable him to offer his views, if any.

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7 . Again Hon’ble Apex Court in the matter of State of Uttar

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Pradesh & Others Vs. Saroj Kumar Sinha reported in (2010) 9 SCC 772 , held in paras 35, 36 and 39 as under :-

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“35. In considering the importance of access to documents in statements of witnesses to meet the charges in an effective manner this Court observed as follows: (Kashinath Dikshita case2, SCC pp. 234-35, para 10)

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"10. ... When a government servant is facing a disciplinary proceeding, he is entitled to be afforded a reasonable opportunity to meet the charges against him in an effective manner. And no one facing a departmental enquiry can effectively meet the charges unless the copies of the relevant statements and documents to be used against him are made available to him. In the absence of such copies, how can the employee concerned

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prepare his defence, cross-examine the witnesses, and point out the inconsistencies with a view to show that the allegations are incredible? It is difficult to comprehend why the disciplinary authority assumed an intransigent posture and refused to furnish the copies notwithstanding the specific request made by the appellant in this behalf. Perhaps the disciplinary authority made it a prestige issue. If only the disciplinary authority had asked itself the question: "What is the harm in making available the material?' and weighed the pros and cons, the disciplinary authority could not reasonably have adopted such a rigid and adamant attitude. On the one hand there was the risk of the time and effort invested in the departmental enquiry being wasted if the courts came to the conclusion that failure to supply these materials would be tantamount to denial of reasonable opportunity to the appellant to defend himself. On the other hand by making available the copies of the documents and statements the disciplinary authority was not running any risk. There was nothing confidential or privileged in it."

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36. On an examination of the facts in that case, the submission on behalf of the authority that no prejudice had been caused to the appellant, was rejected, with the following observations: (Kashinath Dikshita case, SCC p. 236, para 12)

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"12. Be that as it may, even without going into minute details it is evident that the appellant was entitled to have an access to the documents and statements throughout the course of the inquiry. He would have needed these documents and statements in order to cross-examine the 38 witnesses who were produced at the inquiry to establish the charges against him. So also

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at the time of arguments, he would have needed the copies of the documents. So also he would have needed the copies of the documents to enable him to effectively cross-examine the witnesses with reference to the contents of the documents. It is obvious that he could not have done so if copies had not been made available to him. Taking an overall view of the matter we have no doubt in our mind that the appellant has been denied a reasonable opportunity of exonerating himself."

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39. The proposition of law that a government employee facing a departmental enquiry is entitled to all the relevant statements, documents and other materials to enable him to have a reasonable opportunity to defend himself in the departmental enquiry against the charges is too well established to need any further reiteration. Nevertheless given the facts of this case we may re-emphasise the law as stated by this Court in State of Punjab v. Bhagat Ram: (SCC p. 156, paras 6-8)

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"6. The State contended that the respondent was not entitled to get copies of statements. The reasoning of the State was that the respondent was given the opportunity to cross-examine the witnesses and during the cross-examination the respondent would have the opportunity of confronting the witnesses with the statements. It is contended that the synopsis was adequate to acquaint the respondent with the gist of the evidence.

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7. The meaning of a reasonable opportunity of showing cause against the action proposed to be taken is that the government

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servant is afforded a reasonable opportunity to defend himself against charges on which inquiry is held. The government servant should be given an opportunity to deny his guilt and establish his innocence. He can do so when he is told what the charges against him are. He can do so by cross-examining the witnesses produced against him. The object of supplying statements is that the government servant will be able to refer to the previous statements of the witnesses proposed to be examined against the government servant. Unless the statements are given to the government servant he will not be able to have an effective and useful cross- examination.

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8. It is unjust and unfair to deny the government servant copies of statements of witnesses examined during investigation and produced at the inquiry in support of the charges levelled against the government servant. A synopsis does not satisfy the requirements of giving the government servant a reasonable opportunity of showing cause against the action proposed to be taken."

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8 . Looking to the aforesaid guidelines of Hon’ble Apex Court, it is clear from whole Departmental Enquiry record that neither proper charge sheet was issued/supplied to the petitioner nor documents relating to the Departmental Enquiry were provided so as to enable him to put his stand clearly and the major penalty of removal from service was imposed upon the petitioner. The act of the respondent authorities, in view of the law laid down by Hon’ble Apex Court, is against the

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principles of natural justice.

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9 . In view of the aforesaid discussion, the instant petition is allowed. The impugned order dated 30.11.2016 (Annexure P/3) and appellate order dated 21.02.2017 (Annexure P/4) are hereby set aside. The petitioner is reinstated in the service with all consequential benefits. However, the respondent authorities will be at liberty to initiate proper Departmental Enquiry, and after affording proper opportunity of hearing, pass the order, in accordance with law.

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Sd/-

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(Rajani Dubey) Judge

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pkd

Bhunesh Gandharwa v. State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Bhunesh Gandharwa v. State Of Chhattisgarh

Case brief

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