It is well settled that one fact can make all the difference - If the inquiry report was not supplied to the petitioner, it had no legal value without due communication - Petition premature, hence dismissed: HC
By TIOL News Service
CHANDIGARH, DEC 13, 2015: THE petitioner was working as a Block Level Extension Officer in the Department of Industries & Commerce, Punjab. His official duties involved checking illegal mining in his beat. He gave a contract of Raipur KalanKhud (Gorge) comprising an area of 9 acres, 3 kanals and 12 marlas to one Parshant Joshi for a period of 3 years till June 30, 2014. A spot inspection was conducted on July 30, 2013 by the Committee constituted by the Deputy Commissioner, Amritsar and it was discovered that sand mining had reached the depth of 15 to 18 feet which was more than the approved limit of 10 feet under the contract. Therefore, in two years' time the auction party had excavated in excess by 5 to 8 ft. of the permissible limit. The imputation against the petitioner was that he took no steps to stop the illegal mining and, therefore, he was guilty of negligence in performance of duties.
The petitioner was issued a charge sheet for major misconduct on August 29, 2013. The inquiry was marked to the Joint Director (Infrastructure) to be the Inquiry Officer.
This petition has been filed before the High Court to assail an order passed on August 13, 2015 by the Principal Secretary, Industries & Commerce, Punjab endorsed to the petitioner on August 26, 2015. The office order says nothing more except that Sh. R.C. Nayyar, I.A.S. (Retired) is appointed as Inquiry Officer to find out the truth in the charges levelled in the charge-sheet issued to the petitioner on August 29, 2013 and to enquire into the culpability of the then General Manager-cum-Mining Officer, Amritsar as well. The order appoints Kuldip Singh, Superintendent (Technical) as Presenting Officer. The impugned order recites nothing more than that.
It is the submission of the petitioner that the office order dt. 13.08.2015 amounts to holding a de novo inquiry which is not legally permissible and is hit by the principles laid down in the case of K.R. Deb vs. Collector of Central Excise, Shillong, AIR 1971 SC 1447 . Inasmuch as Daljit Singh Sidhu, Joint Director (Infrastructure)was appointed as Inquiry Officer and statements of prosecution witnesses were recorded; documents were placed by the delinquent on record and a statement was made by him;that the inquiry report was drawn which is placed as Annexure P-13 with the petition; photocopy of the inquiry report in original Punjabi is placed on record; photocopy bears signature but no date.
When asked by the Court as to whether the inquiry report had been communicated to the petitioner and from where had the petitioner obtained its photocopy; whether Daljit Singh Sidhu was in service or had retired the petitioner could not dispute that Daljit Singh Sidhu had retired from service.
Nonetheless, there was a clear admission in the petition that -
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"27. That after the enquiry report was submitted by the Inquiry Officer not proving the charges against the petitioner, no copy of the enquiry report was supplied to the petitioner. The petitioner applied under the RTI Act to get copy of the enquiry report which was supplied to him at a later stage on 15.09.2015."
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The High Court, therefore, made the following observations –
++ The petitioner was not communicated with the inquiry report. Thus, there was no question of officially submitting a reply to it. The inquiry report came to the knowledge of the petitioner for the first time when he received information together with a photocopy of the inquiry report on an application filed under the Right to Information Act, 2005. This was on September 15, 2015. The petition has been filed thereaftermaking out a case against de novo inquiry by relying on the ruling in K.R. Deb.
++ Information supplied under the Right to Information Act, 2005 may be true to record but a case of the present kind cannot be built on its foundations since the Public Information Officer is duty bound to supply photocopies of the record as it exists on Government files without any comment or explanations.
++ If the inquiry report was not supplied to the petitioner it had no legal value without due communication on the petitioner. In the absence of communication, the inquiry report adds up to nothing even if it is in favour of the petitioner.
++ The Disciplinary Authority was well within its rights to ignore the inquiry report which was not communicated to it officially for comments and further action.
++ The petitioner cannot have any advantage of an un-communicated inquiry report and it remains at best nothing more than papers under consideration [PUC] and the Disciplinary Authority was well within its rights to issue the impugned office order August 13, 2015 endorsed to the petitioner on August 26, 2015.
++ When Daljit Singh Sidhu retired from service and the inquiry was not completed by him and the report signed, the inquiry had, by the very nature of things to be entrusted to someone else and, therefore, rule was not breached.
++ When the petitioner admits that the inquiry report was not supplied to him he cannot build a case on the superstructure of K.R. Deb since in K.R. Deb the present fact situation did not arise and, therefore, the case is distinguishable on facts.
The petition was consequently dismissed as premature.
(See 2015-TIOL-2771-P&H-SERVICE)
