JUDGMENT R. R. K. Trivedi and Devkant Trivedi, JJ.
1. By means of this writ petition, Girija Shanker Pant petitioner has prayed for quashing of the order of dismissal dated 26.11.1993 whereby, he was dismissed from service by the respondent No. 2 Managing Director of the respondent No. 4 Kumayun Mandal Vikas Nigam Limited.
2. The petitioner was appointed as a Stenographer in the year 1972 in Kumayun Mandal Vikas Nigam Limited, (hereinafter to be referred as the Nigam). He was promoted with effect from 1.4.1987 in the pay scale of Rs. 1,350-2,100 and since 1993, he was designated as the General Manager Tourist. According to the petitioner, the respondent No. 2 got annoyed with the petitioner. Several incidents in this regard have been mentioned in the writ petition. A show-cause notice was served on 1.10.1993 requiring his explanation by 19.10.1939 with a direction to appear on 20.10.1993.
3. Powers of the petitioner as General Manager of the Nigam were withdrawn earlier by means of an order dated 28.9.1993. The respondent No. 3 was appointed inquiry officer by means of an order dated 12.10.1993 passed by the respondent No. 2. No documents were supplied to the petitioner even after the appointment of the inquiry officer. The petitioner applied for looking into the records by means of the letters dated 15.10.1993 and 22.10.1993. No papers were given by the Inquiry officer though the respondent No. 2 vide his letter dated 25.10.1993, permitted the petitioner to inspect the record. The files, however, have already been sent to the Inquiry officer and the same were not available in the office and the petitioner could not inspect the papers. The respondent No. 2 directed him to meet the clerk of Tourism section but no papers were made available to him by the said clerk. The petitioner had no option but to submit his explanation without looking into the record on 30.10.1993.
4. The petitioner claims that he was not given any notice of the date fixed in the inquiry nor any opportunity of being heard was made available to him and that the inquiry was conducted behind his back simply on the basis of the explanation dated 30.10.1993 submitted by the petitioner.
5. It is alleged that Sri N, K. Arya, inquiry officer, did not act Independently and submitted his report without application of mind to the matter in issue. It is further alleged that in fact no charge-sheet was served on the petitioner nor any papers were made available. According to the petitioner, the principles of natural Justice were not followed inspite of the inquiry officer having been appointed on 12.10.1993.
6. It was alleged that the petitioner was asked to appear before the respondent No. 2, the Managing Director for personal hearing on 19.11.1993 which shows a personal prejudice and bias. The report of the inquiry officer was made available to the petitioner with letter dated 9.11.1993 and required the reply by the date 10.11.1993. The petitioner again, it is alleged, asked the respondent No. 2 to make available necessary record to him on 10.11.1993. No orders were, however, passed and several dates were fixed. On 25.11.1993, the respondent No. 2 sent a letter to the petitioner which was received on 26.11.1993 at 12.00 noon, whereby the defence of witness were required to be produced by 4.00 p.m. on the same date. The respondent No. 2 passed the dismissal order on 26.11.1993 itself which was served on the petitioner the same date at 6.30 p.m. This order has been challenged by the petitioner in the present writ petition.
7. Counter-affidavit has been filed by the personnel officer of the Nigam. According to the respondent No. 4, the conduct and integrity of the petitioner was doubtful and the petitioner was found indulged into the activities detrimental to the interest of Nigam. According to the counter-affidavit, a preliminary investigation was conducted and it was found that the tourism section has been incurring a continuous loss for the last successive years due to the act of commission and omission on the part of the petitioner and, therefore, a notice to show cause was served on the petitioner on 1.10.1993.
8. It is admitted that the inquiry officer was appointed to evaluate the said charges in the light of the explanation of the petitioner who was given an opportunity to examine the relevant documents. It is alleged that the show-cause notice is, in fact, the charge-sheet. It is further alleged that relevant documents were supplied and enough time was also granted to inspect the papers. It is, however, admitted that the inquiry officer proceeded solely on the basis of the explanation submitted by the petitioner with the help of necessary documents, record and that the inquiry officer on the basis of record and the explanation of the petitioner, submitted the inquiry report and recommended personal hearing.
9. According to the respondents, the petitioner was found not only guilty of administrative incompetence but also of financial irregularities causing a great deal of loss to the Nigam.
10. We have Beard the learned counsel for the parties and have perused the record.
11. Before we proceed further in the matter, it may be of interest to note that the respondent No. 4 had adopted certain service rules framed by Public Enterprises Bureau and the same are approved by the State Government by means of a G.O. No. 3331/28-6/41 MI/14.9.1962. The respondents, however, failed to show whether these Service Rules were ever enforced by the respondent No. 4.
12. At any rate, in these Service Rules, no provision has been made for holding disciplinary inquiries or for imposing any penalty minor or major on its employees. No doubt, Rule 3 (ix) defines the term 'Inquiry officer' as an officer so appointed by the competent authority to conduct inquiry in relation to an act of commission or/and omission by an employee. The term 'competent authority' has also been defined. A provision has been made in Rule 23 for termination from employment of an employee which entitles the Nigam to terminate the services of an employee without assigning any reason on giving him not less than 3 months notice in writing or on payment of somo equivalent amount of salary for the period of notice or as the case may be, for the period for which the said notice falls short of the said period of 3 months. In sub-rule (4) of Rule 23, it has been provided that no other notice or pay in lieu thereof as aforesaid, will be required to be paid when the services of an employee is terminated by way of punishment for any act of misconduct,
13. There is no dispute that the provisions of Rule 23 (2) of the Service Rules have not been taken recourse to, while dispensing with services of the petitioner as the service of the petitioner has been terminated by way of punishment for acts of misconduct as provided under sub-rule (4) of Rule 23. No provisions have been made in these rules for holding the disciplinary inquiry though inquiry officer has been defined in the rules.
14. Reliance has also not been placed by any of the parties on these service rules. The rules have, however, been referred to by us only as we tried to seek help of the provisions of the rules as it could have given us an indicator while dealing with the matters before us. In absence of there being anything in the service rules, we have to fall back upon the principles of natural Justice and fair play while dealing with the present writ petition.
15. The petitioner has been in the service of the respondent No. 4 since the year 1972. He started his career as Stenographer from the year 1972 and was regularised. Subsequently, he was promoted as Assistant Secretary in the year 1976. He was given additional charge of Divisional Manager Tourism in the year 1985 and was further promoted to the pay scale of Rs. 1,350-2,100 with effect from 1.4.1987. In the year 1993, the petitioner was designated as General Manager Tourism. Thus, the petitioner has put in more than 20 years of service when show-cause notice was given to him and during this period of 20 years, he rose the ladder from ministerial post to the rank of the General Manager. It is in this background that the controversy between the parties is to be looked into. On 1.10.1993, the petitioner who was working as General Manager, at that lime, was served with a show-cause notice by the respondent No. 2 Managing Director of the Nigam. The show-cause notice referred to 13 charges. While referring to those 13 charges, the respondent No. 2 concluded that the petitioner was not taking into consideration the welfare of the Corporation on account of his personal selfish reasons. It was also concluded by the respondent No. 2 that the petitioner has no control over his subordinates on account of his corrupt conduct. He also concluded that the petitioner did not look to the interest of the Corporation nor did he show any interest in the implementation of various schemes. The respondent No. 2 further came to the conclusion that on account of the actions of the petitioner, the Tourism Division incurred consistent losses. The respondent No. 2 further came to the conclusion that the Tourism Division was being used by the petitioner in his self-interest and for his personal advantage. He further came to the conclusion that the conduct of the petitioner and so also his integrity were wholly doubtful. He also came to the conclusion that the petitioner was not capable of continuing on his post. For arriving at the last conclusion, the respondent No. 2 referred to 3 causes, firstly, there were irregularities in purchases : secondly, no action was taken to run the Tourism Division as a profit earning unit and thirdly, the Tourism Division was not properly protected by the petitioner. The show-cause notice as such, shows that the respondent No. 2 had already made up his mind, recorded adverse findings and held that the petitioner was selfish, corrupt, disinterested in official work and lacked integrity.
16. It is really strange that the respondent No. 2 holding the high office of the Managing Director of the respondent No. 4, a Government Company had recorded his findings against the petitioner without affording any opportunity whatsoever to the petitioner before arriving at the adverse conclusion. Respondent No. 2 thus, clearly acted against the principles of natural Justice in denying the opportunity of hearing to the petitioner.
17. We fall to understand the logic behind the order dated 1.10.1993 and reaching these conclusions without affording an opportunity to the petitioner and then asking the petitioner to appear for personal hearing.
18. Before we look into the charges levelled against the petitioner which we ordinarily would have refrained from doing. It seems necessary and expedient to look into the letter dated 12.10.1993 contained in Annexure-4 whereby, the respondent No. 4 appointed Sri Nand Kishore Arya, General Manager of Kumayun Mandal Vikas Nigam, Nainital as inquiry officer to make a detailed inquiry on the basis of the letter dated 1.10.1993. We do not know that what prompted the respondent No. 2 to pass the order dated 12.10.1993 appointing an inquiry officer when he had already drawn the conclusions against the petitioner. We fall to understand and appreciate as to what inquiry was further required to be made into the allegations when the respondent No. 2 had already given his findings and had expressed himself in so many words that the petitioner was not fit to hold the office of General Manager. We, therefore, find that the order dated 12.10.1993 was an empty formality to give a colour of some authenticity to the order of dismissal subsequently made on 26.11.1993.
19. We fall to understand as to why an officer of another Corporation was appointed as an inquiry officer and that too, when the inquiry officer was of a rank equivalent to that of the petitioner himself. We find substance in the arguments advanced on behalf of the petitioner that this appointment of inquiry officer was a mere show.
20. Inspite of repeated efforts made by the petitioner, it appears that no papers were supplied to him. The petitioner was made to run from administrative officer to a clerk, from his office to the administrative officer and then, to a clerk of the petitioner's own Division and then, was made to suffer the humiliation by facing an inquiry before an officer equivalent to his rank who in his turn also had no control over the staff of the Nigam and who could not have provided the papers even if he did so wish.
21. Now coming to the inquiry itself, it is admitted to the respondents that no inquiry worth the name, was made by the inquiry officer and that the inquiry officer had submitted a report on the basis of the explanation submitted by the petitioner and the record of the Nigam. It is really strange that the petitioner was not provided with any opportunity whatsoever by the inquiry officer to participate in the inquiry. Admittedly, no witness was ever examined. No papers were made available to the petitioner and the inquiry officer in fact did not embark upon the inquiry at all.
22. The inquiry report contained in Annexure-13 shows that it is based on the reply submitted by the petitioner and some record. No other inquiry whatsoever was held. It may be worthwhile to note that the findings on charge No. 1, "Jaankaari karney par yeh vidit hua ki vibhin paryatak-avas grihon mein season/off season ke liye koi aise mapdand nirdharit nahein kiye gaye hain jinke adhar par karyrat staff ki samiksha keeja sake," there is nothing to show as to from whom the inquiry officer had received this knowledge. He has given some examples at the end but no record has been referred nor any reference is made to any record whatsoever and then a blatant finding has been given. The findings on charge No. 2 are mere conjuctures. The findings on charge No. 3 are really amazing. The Managing Director of the Corporation did not pass any order inspite of a request having been made by the petitioner and returned the papers after endorsing, "seen" and then the petitioner is being fastened with the liability that it was for him to request the Managing Director "to pass specific orders". Without referring it to the petitioner, the inquiry officer has given finding that he should have gone to Delhi and should have met the I.T.D.C. officials. Without entering into the details of the findings recorded by the inquiry officer, it would be evident that inquiry officer has himself given a free ride to his own imagination without giving any opportunity to the petitioner. In fact, the inquiry report is based on no cogent material or any reliable evidence and the same does not appear to have any material bearing on the case of the petitioner. So far the charge No. 4 is concerned. It was a vague charge and as much is vague is the finding. Similar is the case with the charge No. 5. Inspite of a Government Order dated 9.6.1992 that the Kaliash Mansarovar Trekking is not to be treated as a financial venture for the purposes of earning profit, yet the findings have been giver, that since the subsidy has not been given by the State Government in this regard, it was necessary for the petitioner to have acted with a profit motive only.
23. We would not like to go into each and every allegation in detail as it is evident from the very assertions made in the counter-affidavit that in fact no Inquiry whatsoever, was made by the inquiry officer except on the basis of the certain records. Hence we are of the opinion that in fact no inquiry was made and the inquiry report is of no substance.
24. In the present case. In fact, no inquiry was made and the inquiry officer did not act in accordance with settled principles of natural Justice. The inquiry officer did not afford proper opportunity to the petitioner to defend himself and the findings recorded by him cannot be used as against the petitioner.
25. We fall to appreciate the letter dated 9.11.1993 wherein after the inquiry was completed, the respondent No. 2 wrote to the petitioner that there was no occasion to examine Sri K. N. Joshl, Sri S. S. Pandey and Sri K. P. Singh. The Job which was to be carried out by the inquiry officer, was taken upon himself by the respondent No. 2, the Managing Director.
26. We are of the opinion that the petitioner was not afforded reasonable opportunity to defend himself during the inquiry and in fact, no evidence was brought against him to substantiate the charges and no opportunity was afforded to adduce evidence in defence. Thus, the inquiry report is of no consequence.
27. Since the respondent No. 2 had reached the conclusion at the time of issuing a show-cause notice which is now being used as a charge-sheet. It is evident that the inquiry in question was sham and the inquiry report is worthless. The findings recorded by the respondent No. 2 on the basis of the said inquiry report, are, therefore, liable to be quashed.
28. Since the respondent No. 2 has initially made up his mind to dispense with the services of the petitioner, the subsequent appointment of inquiry officer or asking for the explanation of the petitioner, carry little weight. The respondent in the present case has acted in a most arbitrary manner and has, thus, failed to discharge his obligations as the disciplinary authority. The orders passed by the Managing Director suffer from apparent prejudice and the same have been passed in contravention of the principles of natural Justic'e. The respondent failed to discharge his functions in an objective independent, Just and in equitable manner. The impugned order of dismissal suffers from serious. Infirmities and the dismissal order cannot be upheld. We have no option but to quash the dismissal order in question.
29. The writ petition is allowed. The order dated 26.11.1993 is quashed and it is directed that the petitioner will be reinstated forthwith and he will be entitled to the salary and all other consequential benefits admissible to him. In view of our observations with regard to the conduct of the respondent No. 2, it will be open to the Nigam to take any action as it deems fit against the respondent No. 2.