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i. Ramesh Ao Vs. State of Nagaland and ors. - Court Judgment

LegalCrystal Citation
Subject;Labour and Industrial
CourtGuwahati High Court
Decided On
Judge
Appellanti. Ramesh Ao
RespondentState of Nagaland and ors.
Excerpt:
.....violation of the rules as well as the principles of natural justice ;and that he was intimated the date of hearing as 22-4-76 but instead it was heard on 12-4-76 behind his back and on that day as many as 18 material witnesses were examined and the inquiry was virtually closed and his representation to re-open the inquery was illegally rejected which caused prejudice to him, 7. mr. mokokchung failed to turn up and the inquiry was adjourned to 8-3-76 on which date mr. zulu failed to appear. zulu, at kohima, on which date the petitioner failed to appear and in his absence shri j. this clearly indicates that notice was only sent by post, otherwise why the executive engineer was requested to inform the petitioner to appear on 12-4-76. there are in the file copies of other w. sub-rule (6) of..........dated 6-1-76 (annexure 2 the petition) of the joint secretary to the government of nagaland, as inquiry officer, intimating the appointment of shri lanu chuba ao, as presenting officer in place of shri m.j. rishud; the fact that the replies received from the petitioner, had not yet been furnished to him; recording no intimation as to whether notice to the petitioners to appear at 9.30 a.m. at kohima on 6-1-76 was actually served or not: and refusing to proceed ex pane with without knowing whether he actually received the summons and the amendment to the charges, and fixing 9-30 a.m. on 20th january, 1976 as the next date for preliminary hearing at kohima. it was ordered that notice should be served through the c.e. (p.w.d.) on the accused officer personally taking receipt. annexure 3.....
Judgment:

K.N. Saikia, J.

1. The writ petitioner herein impugns the order passed by the Deputy Secretary to the Government of Nagaland in a departmental proceeding dismissing him from service.

2. The petitioner obtained Diploma in Civil Engineering from the Board of Technical Education, Assam and was appointed as Overseer, Grade I, by the Government of Nagaland in the year 1960 and was posted to serve under the B.D.O. of Mangkalemba, Nagaland, wherefrom he was later transferred and posted at Mokokchung where he served till 1962, and then transferred to Zunhoboto P.W.D. Subdivision where he served till 1967. Meanwhile, in 1964 he was awarded medal and commandation certificate for his good service. He was promoted as Sub-Divisional Officer, P.W.D. in March, 1967 and was posted at Satakha wherefrom he was transferred to East P.W.D. Sub-Division, Mokokchung in July, 1967, wherefrom he was transferred to a new Sub-Division at Mangkalemba in December 1967. The petitioner was again transferred and posted in Mokokchung Division-I as S.D.O., T.C. in the last part of 1968 and he served till 1971 whereafter he was transferred and posted in Mokokchung East Sub-Division wherefrom he was transferred to Kohima as S.D.O., T.C. under Kohima S.E. Circle II in June, 1974. From 3-9-75 to 16-2-76 the petitioner availed leave and stayed at his residence at Nakachari in Sibsagar District of Assam. Before his leave he received the Articles of charge. While on leave he was transferred and posted as S.D.O., T.C. at Zunhoboto where he joined at the expiry of his leave on 17-2-76 when the petitioner received an order dated 6-1-76 (Annexure 2 the petition) of the Joint Secretary to the Government of Nagaland, as Inquiry Officer, intimating the appointment of Shri Lanu Chuba Ao, as Presenting Officer in place of Shri M.J. Rishud; the fact that the replies received from the petitioner, had not yet been furnished to him; recording no intimation as to whether notice to the petitioners to appear at 9.30 A.M. at Kohima on 6-1-76 was actually served or not: and refusing to proceed ex pane with without knowing whether he actually received the summons and the amendment to the charges, and fixing 9-30 A.M. on 20th January, 1976 as the next date for preliminary hearing at Kohima. It was ordered that notice should be served through the C.E. (P.W.D.) on the accused officer personally taking receipt. Annexure 3 is an intimation from the Joint Secretary to the Government of Nagaland, Mr. L.Toshi Ao as Inquiry Officer dated 12-1-76 addressed to the petitioner informing him that the preliminary hearing of the case would be held on 20th January, 1976 at 9-30 A.M. at Kohima and asking the Presenting Officer also to be present, and requiring the petitioner to intimate the name, designation and address of the Government servant who would be assisting him. By Annexure 4, a letter from the Deputy Secretary to the Government of Nagaland, Mr.C.N. Meren, addressed to the petitioner, the latter was requested to appear before the Inquiry Officer on 20th January, 1976 at 9-30 A.M. at Kohima.

3. Thus the disciplinary proceeding was already drawn, the Memorandum of Articles of charge and the show-cause notice already issued before the petitioner joined at Zunhoboto on 17-2-76. Admittedly, the petitioner did not file any written statement and he did not appear on 20-1-76 before the Enquiry Officer at Kohima. On 10-2-76 PWs 3, 4, 5 and 6 were examined in absence of the petitioner and the next date fixed was 24-2-76. The petitioner appeared at the inquiry for the first time on 19-3-76 and 26-3-76 was fixed for cross-examination of the Executive Engineer. The petitioner, however, could not attend on that date and sent an application accompanied by a medical certificate informing his inability to attend. The petitioner received a wireless message informing him to appear at the inquiry at Dimapur on 22-4-76. The message was sent to him by the Executive Engineer, Zunhoboto. Accordingly the petitioner along with one Shri A.B. Das, Head Assistant, East Sub-Division, reported his arrival at the Circuit House, Dimapur on 21-4-76 and stayed there till 23-4-76 but no Enquiry Officer came to hold an inquiry, So he left Dimapur in the evening of 23-4-76. Later he learnt that contrary to what he was informed by the wireless message, the inquiry was held on 12-4-76 on which date as many as 18 witnesses were examined in his absence. On 14-5 76 the petitioner submitted a representation to the Inquiry Officer praying for rehearing of the inquiry stating that after attending the inquiry on 19-3-76 at Kohima, he could not appear on 26-3-76 for cross-examination of Mr. J.T. Zulu Ao, as he was compelled to remain absent as his 2nd daughter was very badly injured with knife and had to attend on her in the Government Hospital upto 2nd April, 1976, which fact was informed to the inquiring authority ; and that thereafter he received a signal from the Secretary, Works, Kohima, vide Signal No. PW/CON/5/74 dated 7/4 informing him to attend at Dimapur on 22-4-76 but no inquiry was held on that date ; but subsequently he received a bundle of registered letter containing 18 statements of witnesses examined on 12-4-76 and he learnt thereafter from reliable source that prosecution evidence was closed. He further stated 'Perhaps all these things happened only because of bad communication in keeping correspondences by post at a place like Zunhoboto. As such I as an accused Officer, should be given enough opportunities to argue with the then superior officer who had put such blames on me for a matter of Rs. 9,000 approximately. Though I had to sign 'as paid by me' in the imprest account (which was actually forced by Mr. Zulu) at the end of financial year, not a single cheque for labour payment was made to me, i.e., to the S.D.O. East Sub-Division. This can clearly be verified from the cash book/cheque of E.E. MKG-II office as all then dealing staffs are still serving there'. He accordingly prayed that he be allowed re -hearing of the matter with Mr. Zulu Ao, Executive Engineer, who was then service at Kohima and stated that the petitioner would attend along with his assisting staff, Mr. A.B. Das, who, he stated, would disclose everything in presence of both.

4. The Enquiry Officer, in his reply dated 4th June, 1976 said that the petitioner failed to appear at the inquiry proceedings except once and the proceeding was already closed and also said 'I, therefore, cannot re-open the case as it is not permissible under the Rules.'

5. The petitioner was then served a Memorandum dated 7th July along with a copy of the inquiry report stating that the , Governor agreed with the findings of the Inquiry Officer and held that the articles of charge were proved and that the Governor had, therefore, provisionally came to the conclusion that the petitioner was not a fit person to be retained in service and he be imposed the penalty of dismissal from service. The petitioner was asked to show cause within 15 days from receipt there of. The petitioner showed cause by his representation dated 22nd July, 1976 (Annexure II to the petition) mainly stating that he had no opportunity to cross-examine the PWs as the evidence was recorded in his absence ; that he could not be penalised on the basis of such evidence; and that the proceeding was also vitiated by mistake, irregularities and violation of departmental rules. He also contended that simply because he signed with the official rubber stamp 'paid by me', he could not be held liable as the money was not drawn or disbersed(sic) by him; and that there was no proof of drawal of the money by him or of the money having come into his possession. The petitioner, despite his representation, received the impugned order stating that in the light of the findings of the inquiry officer and after taking into consideration the advice of the Vigilance Commissioner, Nagaland and all other facts including representation dated 22nd July, 1976, on the second show-cause notice, the Governor considered that the petitioner was not a fit person to be retained in service and ordered under Sub-rule (ix) of Rule 7 of the Nagaland Service (Discipline and Appeal) Rules, 1967 that he be dismissed from service with immediate effect. Hence this petition.

6. Mr. S. Ali, the learned Counsel for the petitioner, inter alia, submits that the petitioner was not given reasonable opportunity to state and defend his case in violation of the Rules as well as the principles of natural justice ; and that he was intimated the date of hearing as 22-4-76 but instead it was heard on 12-4-76 behind his back and on that day as many as 18 material witnesses were examined and the inquiry was virtually closed and his representation to re-open the inquery was illegally rejected which caused prejudice to him,

7. Mr. J.P. Bhattacharjee, the learned Advocate-General, Nagaland demurs submitting that the petitioner has suppressed material facts in his petition; that he was given reasonable opportunity to state and defend his case and there was no violation of Rules and principles of natural justice that there was no obligation on the part of the disciplinary authority to inform the petitioner every date of hearing even though it did inform; that the W.T. message intimating the date of inquiry as 22-4-76 could not have misled the petitioner who was otherwise informed of the date of inquiry as 12-4-76; and that when the petitioner has not filed his written statement and absented himself on all the dates of hearing except one, it is not open to him to allege violation of principle of natural justice

8. The controversy relating to facts, we have perused the records in File No. PW / CON/5/74 of the Establishment Branch of Department of Works and Housing pertaining to the disciplinary proceeding against the petitioner, Part File No. PW/CON/5/74 containing the relevant original documents relating to the disciplinary proceedings against the petitioner, and the order sheets of the departmental proceeding along with the statements made in the petition, in the affidavit-in-opposition and the affidavit-in reply. It appears that after receipt of the Articles of charges the petitioner applied for two months' time for filing written statement and permission to inspect the relevant documents, but before receiving any reply to his application he went on leave from 3-9-75 to 16-2-76 and stayed at his residence at Nakachari. In the district of Sibsagar. Assam. While at home the petitioner was transferred to Zunhoboto; and after his transfer and before he joined, though the petitioner was at Nakachari the letters were sent to Zunhoboto and according to the petitioner nobody came to him to deliver any paper at Nakachari. From the fact that the petitioner applied for extension of time to submit his written statement and also expressed desire to inspect the documents, it cannot be said that he was not participating in the inquiry. Though he did not submit any written statement, he attended the inquiry on 19-3-76 and explained his absence on 23-6-76. On 20-1-76 the Inquiring Authority decided to proceed with the enquiry ex pane and fixed 22-1-76 on which date PWs 1 and 2 were examined ex pane and discharged. On the next date, i.e., 29-1-76 no witness appeared and the inquiry was adjourned to 10-2-76 on which date PWs 3, 4, 5 and 6 were examined ex parte. On the next date, i.e., 24-2-76 the additional PWs including Shri J.T. Zulu Ao, the then Executive Engineer, P.W.D., Mokokchung Division II, Mokokchung and Shri A.B. Das, Sub-divisional Head Assistant, Mokokchung East Sub-division, P.W.D. Mokokchung failed to turn up and the inquiry was adjourned to 8-3-76 on which date Mr. J.T. Zulu. Executive Engineer, did not appear but Shri A.B. Das appeared and was examined and discharged. The next date was 19-3-76 on which date the petitioner appeared. P-W-8. Shri J.B. Pradhan, S.E. appeared and he was examined but Shri J.T. Zulu failed to appear. The inquiry was adjourned to 26-3-76 for examination of Shri J.T. Zulu, at Kohima, on which date the petitioner failed to appear and in his absence Shri J.T. Zulu was examined as PW-9. A list of 32 PWs was filed by the Presenting Officer and summons were ordered to be issued to them to appear on 12-4-76. The petitioner having been absent on that day, he would necessarily not know about the next date, i.e.. 12-4-76. In the order sheet there is no indication of any intimation being served on the petitioner. In the Part file we do not find any evidence of any communication intimating the petitioner about the next date as 12-4-76. The petitioner annexes a copy of the W.T. ('message Annexure-6) which is as follows:

W/T Message

To : Secy. Works KMA

FR : EE PWD ZBTO

No. ZBT/CON 14.../DT 9-4-76 Refer your Signal No. PW/CON/5/74 Dt. 7/74. Shri Romesh Ao is told to attend enquiry in Dimapur on 22-4-76

Copy to:

O.C. W/T Station P.R.O. Zunhoboto for early transmission of the message early.

S/d- D. Bhattacharjee,

Executive Engineer: PWD.

Zunhoboto Division.

9. Counsel for the petitioner has shown us the original copy of the W.T. message received by him intimating the next date of hearing as 22-4-76 at Dimapur. We find the original copy of Annexure-6 to the petition in the establishment file No. PW/CON/5/74 at page 107 There can, therefore, be no doubt that the Executive Engineer informed the petitioner about the next date of hearing as 22-4-76 at Dimapur and he also intimated the 'Secretary Works KMA'. That the petitioner was told to attend the inquiry on 22-4-76 at Dimapur Annexure-6 is dated 9-4-76. It also indicates that it was sent with reference to Secretary, Work's Signal No. PW/CON/5/75 dt. 7-74. If the Secretary asked the Executive Engineer to inform the petitioner about the next date of hearing and the Executive Engineer committed a mistake, the authority who asked him to intimate cannot but be bound by the information. The learned Advocate-General, however, submits that the petitioner was otherwise informed of the date as 12-4-76. The petitioner in his affidavit-in-reply has denied this. We find no paper in File No. PW/CON/5/74 about any such intimation being given. We find a copy of the W.T. message at page 101 of that file which is as follows :

Immediate

W/T: Message D.T.O. 05

FR : Joint Sec Home (Inquiries) KAM

TO : EE Zbto

RPT: Secretary Works & Housing KMA (By Hand; No. INQ-27/75/B. Shri I Ramesh Ao's case fixed for hearing on 12th April at Dimapur New Circuit House at 10 A.M. Notice already served on him by post. Request inform him to appear accordingly.

This clearly indicates that notice was only sent by post, otherwise why the Executive Engineer was requested to inform the petitioner to appear on 12-4-76. There are in the file copies of other W.T. Message sent to S.E. Mokokchung and E.E., P.W.D. Mokokchung to ensure presence of the prosecution witnesses as per list already furnished to appear at Dimapur on 12th April, 1976. But we do not find any W.T. message sent directly to the petitioner. The petitioner categorically denies having received any intimation otherwise. Nothing has been shown to us to prove that the petitioner had notice of 12-4-76 as the hearing date. In para 13 of the Affidavit-in-opposition it is stated that the copy of the proceeding fixing 12-4-76 as the next date for hearing had been sent by the Inquiry Officer to the petitioner vide Memo No Inq. 27/75 dated Kohima the 26th March, 1976. It is further said that a copy of the letter No Inq. 27/75 dated 19-3-76 was sent by the Inquiry Officer to the petitioner from which he could learn about the date as 12-4-76. The petitioner in para 8 of his Affidavit-in reply says that intimation was given to him by the Executive Engineer, P.W.D. Zunhoboto, by wireless directing him to appear on 22-4-76 at Dimapur and not on 12-4-76 as alleged; and that prior to 12-4-76 no sufficient notice was given to him about the inquiry. The petitioner's version appears to be credible. If, as stated, notice was already sent to the petitioner informing him the date as 12 4-76, there would be no need to request the Executive Engineer, Zunhobato to inform the petitioner again. Secondly, even if the petitioner received information, he would be surely misled by the W.T. message dated 9 4-76 sent by the Executive Engineer. Thirdly, the Executive Engineer by Annexure 6 dated 9-4-76 informed the Secretary, Works, Kohima that the petitioner was told to attend inquiry in Dimapur on 22-4-76, and yet no measure was taken to send correct information to the petitioner before the hearing began on 12-4-76.

10. The learned Advocate General's submission that the authorities had no obligation to intimate every date of hearing may not be disputed. But it should be observed that it is one thing not to inform and it is entirely a different thing to inform wrongly so as to mislead the delinquent officer. In the instant case there is positive evidence that the petitioner was misled by the W.T. message the sanding of which has not been denied by the respondents. It has also not been denied that as many as 18 witnesses were examined on that particular date and the prosecution case was brought to a close thereafter by an application on 23-4-76 without examining any further witness. The petitioner submitted his representation dated 14-5-76 enclosing a copy of the W.T. message stating that he came to Dimapur on 21-4-76 to attend the enquiry and as no inquiry was held at the Dimapur Circuit House on 22-4-76 he waited there upto 23-4-76 and left Dimapur by the evening and thereafter he received a bundle of registered letter containing 18 numbers of statements of witnesses examined on 12-4-76 instead of on 22-4-76 as information given to him. He prayed for re-hearing of the matter with Mr. J.T. Zulu Ao, Executive Engineer, who was then serving at Kohima and that he would attend along with his Assisting staff Mr. A.B. Das. The Inquiry Officer M.L. Toshi Ao, by his letter dated 4th June, 1976 (Annexure-8) refused to re-open the case as he said, it was not permissible under the Rules. The second show-cause notice was given and replied by the petitioner and the proceeding ultimately resulted in the issue of the impugned order.

11. The Nagaland Service (Discipline and Appeal) Rules provided for appeals but the petitioner did not appeal and it is submitted by the learned Advocate General that this petition should be rejected on that ground alone.

12. Under Article 311(2) no person who is a member of a Civil Service of the Union or an All India Service or a Civil Service or a State shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. Reasonable opportuniy besides observance of the rules and procedure, implies a fair hearing. Indeed, the Rules also ensure a fair hearing. Where a fair hearing is denied to a delinquent officer it may amount to violation of Article 311(2) and the principles of natural justice; and the inquiry would be liable to be quashed, if the delinquent officer has been misled into not appearing at the hearing, it may even amount to fraudulent deprivation of reasonable opportunity by disabling him, and, as such, violation of the principle of natural justice.

13. A disciplinary power is a power to inflict punishment for misconduct and it demands a fair procedure and a right of defence. No holder of a public office should be removed from it without notice of the charge and a fair hearing as was emphasised in Ridge v. Baldwin [1964] A.C. 40. The distinction between the administrative function and quasi-judicial function has gradually been wiped out, as was observed in A.K. Kripak's Case : [1970]1SCR457 . Disciplinary powers, which affect rights of the delinquent officer must be exercised fairly, i.e., in accordance with the Rules and principles of natural justice giving a fair hearing. A decision contrary to natural justice may be declared void The duty to observe the rules of natural justice should be inferred from the nature of the power conferred upon the authority. It is implicit in the expression 'reasonable opportunity' in Article 311(2) of the Constitution of India Denial of reasonable opportunity will also include deprivation and disablement of the delinquent officer by acts of the disciplinary authority. Denial of opportunity to cross examine witnesses amounts to violation of the principles of natural justice and denial of fair hearing. Sub-rule (6) of Rule 9 of the Nagaland Services (Discipline and Appeal) Rules, 1967, as amended in 1971, clearly provides that 'the Government servant shall be entitled to cross-examine witnesses examined in support of the charges and to give evidence in person, and to adduce documentary and oral evidence in his defence. 'The right to cross examine witnesses who give evidence against a delinquent officer, is a very valuable right and in this case the effective exercise of this right had been prevented by the W.T. message informing the petitioner that the next date of inquiry was 22-4-76 while the witnesses were examined on 12-4-76. This would amount to violation of the Sub-rule (6). True that the petitioner did not appear on several other dates. That by itself, however, would not justify his being deprived of his right to cross-examine the witnesses that deposed against him, by informing him a wrong date of hearing.

14. The Rules provide for appeal and even review by the Governor, Even so, if a delinquent officer can satisfy the writ Court that the disciplinary proceeding is vitiated by violation of the principles of natural justice, it will be open to the writ Court to interfere and if deemed fit to quash the proceeding even before it is concluded. It may also be quashed after completion. The fact that the petitioner has not appealed according to the Rules will by itself be no bar in case of violation of principles of natural justice, Whether the principles of natural justice have been violated or not will of course be questions of fact In the instant case we are satisfied that the principles of natural justice have been violated and fair hearing denied by giving wrong information to the petitioner about the next date of hearing and by examining as many as 18 witnesses prior to the informed date behind the back of the petitioner, and refusing to re-open that hearing on prayer of the petitioner.

15. In the result the impugned order of dismissal is set aside and the part of the disciplinary proceeding beginning from 12-4-76 onwards is quashed, It will, however, be open for the disciplinary authority either to proceed with the same inquiry from that stage giving the petitioner opportunity to cross examine the eighteen witnesses who were examined on 12-4-76 instead of on 22-4-76 and those examined on subsequent dates, if any, or to institute a fresh inquiry on the same articles of charge, if it is so inclined.

16. The petition is accordingly allowed : and the Rule is made absolute. Under the facts and circumstances of the case, we make no order as to costs.


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