Dismissed

Jain Shiksha Samiti v. Hem Chand and Ors.

Rajasthan HC27 Jan 2015SAW/844/2001

Case brief

AI extract

What is this about?

This intra-court appeal challenges a Single Judge order upholding the Rajasthan Tribunal's decision quashing an employee's dismissal. The court observed that the employee was denied a reasonable hearing opportunity after departmental witnesses' statements were not shared with him for cross-examination. Upholding the lower courts, the appeal was dismissed.

What did the court decide?

Appeal dismissed with directions that no re-enquiry will be permitted.

Jain Shiksha Samiti Vs Hem Chand and Ors. — Pension and Retirement Benefits | Rajasthan HC (2015)

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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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DB Civil Special Appeal No.844/2001 Jain Shiksha Samiti

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Vs.

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Shri Hem Chand Sharma & ors.

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Date of Order :: 27/01/2015

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PRESENT HON'BLE MR. JUSTICE AJAY RASTOGI HON'BLE MR. JUSTICE J.K. RANKA

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Mr. Ashvini Jaiman, counsel for the appellants Mr. Tarun Verma, counsel for respondent No.1. Mr. DV Tholia, AAG, counsel for the respondent No.2.

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Instant intra-court appeal has been preferred against

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order of the ld. Single Judge dt.02/05/2001.

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The salient facts, which can be noticed and relevant for our consideration, are that the respondent-employee joined service in the cadre of Class IV in July, 1991 in the educational institution run by the appellant-Samiti which, as informed, is an aided institution getting 60% aid from the Government.

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For some alleged misconduct, explanation of the respondent-employee was called for on 16^th September, 1994 followed with explanation dt.26^th September,1994. In compliance thereof, written explanation was submitted by him on 17^th September, 1994 and 27^th September,1994 respectively and since his written explanation was not found satisfactory to the management of the institution, after placing him under

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suspension on 21^st November, 1994, a charge sheet dt.18^th

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January, 1995 was served upon him.

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In all eight allegations were levelled and most of

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them were in respect of his misbehaviour with one or the other staff member and in the regular course of enquiry, statement of departmental witnesses were recorded in the form of questionnaire which was made available to each of them and the departmental witness filled their questionnaire and was supplied to the inquiry officer but no regular examination in chief of the department witnesses was recorded in the course of enquiry and since it was submitted at the back of the delinquent employee, he wrote a letter to the Chairman of Jain Shikshi Samiti, Tijara on 30/09/1995 (Exhibit-15) and made a request that the statement of departmental witnesses submitted to enquiry officer are recorded at his back and at least he may be served with copy of the statement recorded of the departmental witnesses so that he may also submit his reply but indisputably that was not submitted to him. However, finally the respondent-employee was held guilty and punished with penalty of removal from service vide order dt. 2^nd December, 1995 and that was the subject matter of challenge by filing of appeal before the Rajasthan Non-Government Educational Institutions Tribunal (for short, 'Tribunal') under the Rajasthan Non-Government Educational Institutions Act,

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1989 (for short, the 'Act of 1989').

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After the matter came to be examined on merits, the

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ld. Tribunal arrived at a conclusion that despite the written

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request made by the delinquent employee, neither the statement of the departmental witnesses were made available to him nor he was provided an opportunity of cross-examine such of the departmental witnesses and the ld. Tribunal finally arrived to a conclusion that since the reasonable opportunity of

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hearing to the delinquent has not been afforded, the order of dismissal dt.2^nd December, 1995, passed on the basis of the departmental enquiry, was laconic & not sustainable and while quashing the same, the ld. Tribunal directed the appellantinstitution to reinstate the respondent-employee in service with all consequential benefits flowing thereof which was the subject matter of challenge by filing writ petition before the ld. Single Judge of this Court and the ld. Single Judge also, on the basis of material available and considered by the ld. Tribunal, came to the conclusion that denial of opportunity of cross examine the departmental witnesses is denial of reasonable opportunity of hearing which is the requirement to be followed in a procedure contemplated under R.39 2 (d) of the Rajasthan Non-Government Educational Institutions (Recognition, Grantin-aid and Service conditions etc.) Rules, 1993 (for short, 'Rules of 1993') and while upholding the order of the Ld. Tribunal,

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dismissed the writ petition preferred by the appellant vide order impugned dt.02/05/2001.

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In the instant intra-court appeal as well, counsel for

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the appellant is unable to dispute the factual position which has come on record and indisputably, opportunity to cross-examine the departmental witnesses was not afforded to the delinquent employee. However, submission of counsel for the appellant is that the statements were recorded in the presence of the

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delinquent-employee and he never made a request to the enquiry officer that he wants to cross-examine the departmental witnesses and as such, it cannot be said to be a denial of reasonable opportunity of hearing. Counsel further submits that the delinquent, being a temporary employee, there was no requirement under law to hold a regular departmental enquiry and could have been terminated by invoking provisions of R. 39(1) of the Rules of 1993 but if regular enquiry has been held and the opportunity afforded to him can be considered to be a reasonable opportunity in compliance of the principles of natural justice and in support of

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submission, placed reliance on the judgment of Apex Court in the case of State Bank of Patiala and others Vs. S.K. Sharma: 1996(3) SCC 364.

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Mr. Amit Choudhary, ld counsel for the respondentemployee, while supporting order of the ld. Single Judge,

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submits that the respondent is a poor class IV employee and if the statement of the departmental witnesses were recorded in the form of questionnaire at his back, at least he was supposed

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to be served with copy of such statement and despite a request being made for cross-examining the witnesses, that too was not afforded to him and that being so, there was a clear violation of the principles of natural justice and passing order of dismissal from service, in the facts and circumstances,

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was not sustainable and this what the ld. Tribunal observed and confirmed by the ld. Single Judge and does not call for any further interference by this Court in the intra-court appeal.

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Mr. DV Tholia, AAG, appearing for the State, submits that the action of the appellant-institution has been approved by the State authority and it is in conformity with law and neither the ld. Tribunal nor the ld. Single Judge has appreciated the procedure followed in the departmental enquiry and as regards reasonable opportunity, which is to be afforded as contemplated u/R. 39(2)d of the Rules of 1993, that has been afforded in its true spirit and the dismissal order dt. 2^nd December, 1995, after being finally approved by the Government, may not require to be interfered by this Court.

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It is brought to our notice that during pendency of the proceedings, execution application came to be filed by the delinquent employee and the executing court passed an order

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on 21^st April, 2010, which has been challenged by the appellant

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in a separate writ petition No.2650/2010 pending before the ld. Single Bench for adjudication. Since it is a separate proceeding,

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we are not supposed to examine the validity of the order of the executing court and certainly be considered independently by the ld. Single Bench in the pending proceedings.

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We have heard ld. counsel for the parties and also perused the material available on record.

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This fact remained indisputed that the respondentemployee joined in the cadre of Class IV in July, 1991 and for alleged misconduct after calling for his explanation dt. 16^th September, 1994 read with dt. 26^th September, 1994, he tendered his explanation on 17^th September, 1994 and 27^th September,1994 respectively, but was not found to be satisfactory and was placed under suspension on 21^st November, 1994 and a charge sheet was served upon him on 18^th January, 1995 and in all there were eight allegations levelled against him and most of them are for his alleged misbehaviour with the staff of the institution and in the course of enquiry, the statement of such of the departmental witnesses were recorded in the form of questionnaire which was submitted to the enquiry officer and despite a request made by the delinquent vide application dt.13^th September, 1995 (Exhibit-15) that the copies of such of the statements

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recorded and made available to the enquiry officer at the back of the delinquent be made available, neither copy was made available to him nor opportunity to cross examine the departmental witnesses was afforded and indisputably on the basis of the statement of the departmental witnesses, which were recorded by the enquiry officer during the course of the enquiry, in the form of questionnaire that was made to be a basis for the enquiry officer in holding the charges proved and

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which was finally confirmed by the management of the institution and treating it to be a case of gross mis-conduct, he was dismissed from service vide order dt.2^nd December, 1995 which was subject matter of challenge before the ld. Tribunal in appeal.

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Before we examine the question raised for our consideration, it will be appropriate to take note of Sec. 18 of the Act of 1989 read with Rule 39(2)(d) of the Rules of 1993, which provides ad-infra:-

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“Sec.18. Removal, dismissal or reduction in rank of employees- Subject to any rules that may be made in this behalf, no employee of a recognized institution shall be removed, dismissed or reduced in rank unless he has been given by the management a reasonable opportunity of being heard against the action proposed to be taken:

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Provided further that this action shall

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not apply,-

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(i)to a person who is dismissed or removed on the ground of conduct which led to his conviction on a criminal charge, or

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(ii)where it is not practicable or expedient to give that employee an opportunity of showing cause, the consent of Director of Education has been obtained in writing before the action is taken, or (iii)Where the managing committee is of unanimous opinion that the services of an employee cannot be continued without prejudice to the interest of the institution, the services of such employee are terminated after giving him six months notice or salary in lieu thereof and the consent of the Director of Education is obtained in writing.”

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“Rule 39(2)(d) During the enquiry by such enquiry committee the employee shall be given a reasonable opportunity of being heard and to defend himself by means of written statement as well as by leading evidence, if any.”

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The scheme of the Act of 1989 and Sec. 18 in

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particular, clearly envisages that before any action is to be taken against an employee of inflicting major penalty of dismissal, removal and reduction of rank, of a recognized institution, the management is under obligation to afford reasonable opportunity of being heard to the delinquent before taking any proposed action against him and as regards the procedure provided under Rule 39(2)(d) of the Rules of 1993,

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it is a mechanism provided to be followed by the institution while finally arriving to a conclusion as to whether the delinquent has committed misconduct which may entail major

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penalty of dismissal/removal or reduction in rank to be imposed upon him.

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The main stress of the appellant and also of the Government Counsel is on requirement of Section 39(2)(d) of the Rules of 1993, which clearly envisages that during the course of enquiry, the enquiry committee constituted has to afford a reasonable opportunity of being heard to defend to the delinquent and if he intends to lead any evidence, that may also be afforded to him and even in the scheme of R. 39 of the Rules of 1993, inbuilt mechanism has been provided which is in compliance of the principles of natural justice and that is otherwise the requirement of law that no one should be condemned unheard and be afforded reasonable opportunity of being heard before any adverse action is to be taken against him.

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In the instant case, indisputably the statement of the

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departmental witnesses were recorded during the course of the enquiry in the form of the questionnaire, which was filled by the departmental witnesses and made available to the enquiry officer and despite copy of such of the statement of the departmental witnesses being sought by the delinquent vide

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his application 30/09/1995 (Exhibit-15) for submitting his

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written explanation, the same were not made available to him and as such, no opportunity was afforded to the delinquent to

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cross examine the departmental witnesses which was certainly in violation of Rule 39(2)(d) of the Scheme of Rules of 1993 and that clearly contemplate that a reasonable opportunity of hearing is to be afforded to the delinquent employee and in the instant case, if he has not been afforded opportunity to cross examine departmental witnesses which was the sole basis in holding the charge proved against him, the later punishment inflicted upon him, certainly caused prejudice to him and in our considered view, the respondent employee has been denied a reasonable opportunity of being heard during the course of the disciplinary enquiry and that being so, the order of punishment, based on the domestic enquiry, which indisputably was defective, cannot be upheld and that is what the ld. Tribunal observed in its order dt.20/11/1999 and confirmed by the ld. Single Judge of this Court under order impugned dt.02/05/2001 passed in the writ petition filed at the instance of the present appellant and after going through both the orders, we do not find any error being committed by the ld. Tribunal or the ld. Single Judge which may call for interference of this Court in the instant appeal.

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As regards the judgment relied upon by counsel for

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the appellant of State Bank of Patiala and others Vs. S.K. Sharma (supra), in our considered view, may not be of any assistance for the reason that in a case where affording

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opportunity remains an empty formality and rights are not to be prejudiced or it may not going to adversely affect in any manner, certainly that may not undo or vitiate the procedure followed during the course of domestic enquiry but in the instant case, where opportunity to cross examine the departmental witnesses, which has not been afforded to the delinquent, certainly his right of fair opportunity to defend has been denied to him and that vitiates the order of punishment.

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At last, submission has been made that since the enquiry has been held defective, at least liberty may be given to the appellant to take note of the defence of the appellant and proceed with the departmental enquiry in accordance with

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law.

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In the ordinary course, what is being submitted by counsel for the appellant, deserves consideration but in the facts of the instant case, the respondent-employee, being a Class IV and fighting for his cause for last twenty years before the ld. Tribunal and the ld. Single Judge and we have also looked into the gravity & nature of the allegations levelled against him are not of such a grave nature which may be considered to grant indulgence as prayed for by the appellant.

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Consequently, the prayer made does not call for indulgence to be afforded at this stage.

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Consequently, in our considered view, the appeal,

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being wholly devoid of merit, is accordingly dismissed.

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(J.K. Ranka), J.

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(Ajay Rastogi), J.

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Raghu

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Certificate:All corrections made in the judgment/order have been incorporated in the judgment/order being e-mailed. Raghu, Sr. PA.

Jain Shiksha Samiti v. Hem Chand and Ors.

Case brief

What is this about?

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Jain Shiksha Samiti v. Hem Chand and Ors.

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