IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  4531 OF 2007

State of Uttaranchal & Ors.       .... Appellant (s)

Versus

Kharak Singh        .... Respondent(s)

JUDGMENT

P. Sathasivam, J.

1) This appeal is directed against the judgment and order

dated 15.5.2006 of the High Court of Uttaranchal at Nainital

in Writ Petition No. 606 of 2003 (SS) whereby the writ petition

filed  by  the  respondent  herein  was  allowed  quashing  the

orders dated 5.3.1986 passed by the Divisional Forest Officer,

Haldwani Forest Division, Dist. Nainital and dated 27.4.1991

passed by the Conservator of Forest, Western Circle, Nainital

dismissing the respondent from service.

2) The brief facts are stated as under:

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The respondent herein was a temporary Forest Guard and was

posted  in  Nandhaur  Range  of  Haldwani  Forest  Division,

Nainital.    In 1984, when he was incharge of Asani Beat in

Nandhor Range of Haldwani Forest Division, illegal felling of

11 Sal trees and 24 Kokat species took place in Asani Beat

Nos.  1,  3  and  5  which  were  allotted  to  the  U.P.  Forest

Corporation  for  felling  of  marked  dead,  dying  and diseased

trees.  In the diary maintained by the Department, during the

months of March and April, 1984, the respondent visited the

above compartments regularly and certified that there was no

illicit  felling  of  trees  in  his  beat  during  the  period  under

reporting.   On  23.5.1984,  sub-Divisional  Forest  Officer,

Nandhaur seized 27 logs of Sal bearing transit hammer mark

of Dolpokhra Transit  Barrier  in Haldwani.  Having seen the

hammer  marks  on  the  seized  logs,  on  24.5.1984  the  SDO

directed Range Officer to trace the illicit felling of trees in and

around  Dolpokhra.   On  being  questioned  by  the  SDO,  the

respondent could not satisfy the SDO.  Having confirmed the

involvement of the respondent in the illicit felling of trees, the

Division Forest Officer, Haldwani Forest Division by letter No.

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40/25  dated  1.6.1984,  suspended  the  respondent.   On

19.12.1984,  the  Division  Forest  Officer  served  the  charge

sheet upon the respondent and the respondent gave his reply

on 9.4.1985.   Thereafter,  enquiry was entrusted to Sri  P.V.

Lohni,  who  submitted  his  report  on  16.11.1985  to  the

Divisional  Forest  Officer,  Haldwani.   On  the  basis  of  the

inquiry report, the Divisional Forest Officer vide order dated

6.3.1986 dismissed the respondent herein.  Feeling aggrieved,

the respondent preferred an appeal before the Conservator of

Forest, Western Circle, Nainital, Appellant No.2 herein and the

same was dismissed vide order dated 27.4.1981.  Questioning

the said order, the respondent herein preferred writ petition

before the High Court praying for issuing a writ of certiorari.

The High Court vide order dated 15.5.2005 issued a writ of

certiorari quashing the orders dated 5.3.1986 passed by the

Divisional  Forest  Officer,  Haldwani  as  well  as  order  dated

27.4.1991  passed  by  the  Conservator  of  Forest,  Western

Circle, Nainital.  The High Court has directed the appellants to

reinstate  the  respondent  in  service  with  all  consequential

benefits.  Aggrieved by the said order, this appeal by special

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leave  has  been  preferred  by  the  State  of  Uttaranchal,

Conservator of Forest, Western Circle, Nainital and Divisional

Forest Officer, Haldwani Forest Division, Nainital.   

3) We  heard  Mr.  S.S.  Shamshy,  learned  counsel,  for  the

appellants and Mr. P. Vinay Kumar, learned counsel, for the

respondent.   

4) Learned  counsel  appearing  for  the  appellants  mainly

contended  that  the  High  Court  committed  an  error  in

quashing  the  order  of  dismissal  of  the  respondent  on  the

ground that the enquiry was not properly conducted and was

not free from bias.  On the other hand, according to him, the

enquiry  was  conducted  according  to  rules  and  the

punishment  was  awarded  based  on  the  gravity  of  charges

proved.   Per  contra,  learned  counsel  for  the  respondent

supported the impugned order of the High Court by pointing

out the infirmities in conducting enquiry.

5) Before  analyzing  the  correctness  of  the  above

submissions, it is useful to refer various principles laid down

by this Court as to how enquiry is to be conducted and which

procedures are to be followed.  

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6) The following observations and principles laid down by

this Court in Associated Cement Co. Ltd. vs. The Workmen

and Anr. [1964] 3 SCR 652 are relevant:

“… … In the present case, the first serious infirmity from which the enquiry suffers proceeds from the fact  that  the  three  enquiry  officers  claimed  that  they themselves had witnessed the alleged misconduct of Malak Ram. Mr. Kolah contends that if the Manager and the other officers saw Malak Ram committing the act of misconduct, that  itself  would  not  disqualify  them  from  holding  the domestic  enquiry.   We  are  not  prepared  to  accept  this argument.  If  an  officer  himself  sees  the  misconduct  of  a workman, it is desirable that the enquiry should be left to be held by some other person who does not claim to be an eye- witness  of  the  impugned  incident.  As  we  have  repeatedly emphasised, domestic enquiries must be conducted honestly and bona fide with a view to determine whether the charge framed against a particular employee is proved or not, and so, care must be taken to see that these enquiries do not become empty formalities. If  an officer claims that he had himself seen the misconduct alleged against an employee, in fairness steps should be taken to see that the task of holding an  enquiry  is  assigned  to  some  other  officer.  How  the knowledge  claimed  by  the  enquiry  officer  can  vitiate  the entire proceedings of the enquiry is illustrated by the present enquiry itself. … …..  

….. ….. It is necessary to emphasise that in domestic enquiries,  the  employer  should  take  steps  first  to  lead evidence against the workman charged, give an opportunity to the workman to cross-examine the said evidence and then should the workman be asked whether he wants to give any explanation about the evidence led against him. It seems to us that it is not fair in domestic enquiries against industrial employees that at the very commencement of the enquiry, the employee should be closely cross-examined even before any  other  evidence  is  led  against  him.   In  dealing  with domestic  enquiries  held  in  such  industrial  matters,  we cannot overlook the fact that in a large majority of cases, employees are likely to be ignorant, and so, it is necessary not to expose them to the risk of cross-examination in the

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manner  adopted  in  the  present  enquiry  proceedings. Therefore,  we  are  satisfied  that  Mr.  Sule  is  right  in contending that the course adopted in the present enquiry proceedings  by  which  Malak  Ram  was  elaborately  cross- examined at the outset constitutes another infirmity in this enquiry.”

7) In  Managing Director, ECIL, Hyderabad and Others

vs.  B.  Karunakar  and  Others,  (1993)  4  SCC 727,  it  was

held:  

“Where  the  enquiry  officer  is  other  than  the  disciplinary authority, the disciplinary proceedings break into two stages. The first stage ends when the disciplinary authority arrives at  its  conclusions  on  the  basis  of  the  evidence,  enquiry officer’s report and the delinquent employee’s reply to it. The second stage begins when the disciplinary authority decides to  impose  penalty  on  the  basis  of  its  conclusions.  If  the disciplinary  authority  decides  to  drop  the  disciplinary proceedings, the second stage is not even reached.

While the right to represent against the findings in the report is  part  of  the  reasonable  opportunity  available  during  the first  stage  of  the  inquiry  viz.,  before  the  disciplinary authority takes into consideration the findings in the report, the right to show cause against the penalty proposed belongs to  the  second  stage  when  the  disciplinary  authority  has considered the findings in the report and has come to the conclusion  with  regard  to  the  guilt  of  the  employee  and proposes to award penalty on the basis of its conclusions. The first right is the right to prove innocence. The second right  is  to  plead for  either no penalty  or  a  lesser  penalty although the conclusion regarding the guilt is accepted. It is the second right exercisable at the second stage which was taken  away  by  the  Forty-second  Amendment.  The  second stage consists of the issuance of the notice to show cause against the proposed penalty and of considering the reply to the notice and deciding upon the penalty. What is dispensed with  is  the  opportunity  of  making  representation  on  the penalty  proposed  and  not  of  opportunity  of  making representation on the report of the enquiry officer. The latter

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right  was  always  there.  But  before  the  Forty-second Amendment of the Constitution, the point of time at which it was to be exercised had stood deferred till the second stage viz., the stage of considering the penalty. Till that time, the conclusions  that  the  disciplinary  authority  might  have arrived at both with regard to the guilt of the employee and the penalty to be imposed were only tentative. All that has happened  after  the  Forty-second  Amendment  of  the Constitution is  to  advance the point  of  time at  which the representation of the employee against the enquiry officer’s report would be considered. Now, the disciplinary authority has to consider the representation of the employee against the report before it arrives at its conclusion with regard to his guilt or innocence in respect of the charges.

Article  311(2)  says  that  the  employee  shall  be  given  a “reasonable  opportunity  of  being  heard  in  respect  of  the charges against him”. The findings on the charges given by a third person like the enquiry officer, particularly when they are  not  borne  out  by  the  evidence  or  are  arrived  at  by overlooking  the  evidence  or  misconstruing  it,  could themselves  constitute  new  unwarranted  imputations.  The proviso  to  Article  311(2)  in  effect  accepts  two  successive stages of differing scope. Since the penalty is to be proposed after the inquiry, which inquiry in effect is to be carried out by the disciplinary authority (the enquiry officer being only his delegate appointed to hold the inquiry and to assist him), the  employee’s  reply  to  the  enquiry  officer’s  report  and consideration of such reply by the disciplinary authority also constitute an integral part of such inquiry.  

Hence,  when  the  enquiry  officer  is  not  the  disciplinary authority, the delinquent employee has a right to receive a copy  of  the  enquiry  officer’s  report  before  the disciplinary authority arrives at its conclusions with regard to the guilt or innocence of the employee with regard to the charges levelled against him.  That right is a part of the employee’s right to defend himself against the charges levelled against him. A denial of the enquiry officer’s report before the disciplinary authority takes its decision on the charges,  is a denial of reasonable  opportunity  to  the  employee  to  prove  his innocence  and  is  a  breach  of  the  principles  of  natural justice.  

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8) In  Radhey  Shyam  Gupta vs.  U.P.  State  Agro

Industries Corporation Ltd. and Another, (1999) 2 SCC 21,

it was held:

“34. But in cases where the termination is preceded by an enquiry  and  evidence  is  received  and  findings  as  to misconduct of a definitive nature are arrived at behind the back of the officer and where on the basis of such a report, the  termination  order  is  issued,  such  an  order  will  be violative of the principles of natural justice inasmuch as the purpose  of  the  enquiry  is  to  find  out  the  truth  of  the allegations  with  a  view to  punish  him and  not  merely  to gather evidence for a future regular departmental enquiry. In such  cases,  the  termination  is  to  be  treated  as  based or founded upon misconduct and will  be punitive.  These are obviously not cases where the employer feels that there is a mere  cloud against  the  employee’s  conduct  but  are  cases where the employer has virtually accepted the definitive and clear findings of the enquiry officer, which are all arrived at behind  the  back  of  the  employee  —  even  though  such acceptance  of  findings  is  not  recorded  in  the  order  of termination. That is why the misconduct is the  foundation and not merely the motive in such cases.”

9) In  Syndicate  Bank  and  Others vs.  Venkatesh

Gururao Kurati, (2006) 3 SCC 150, the following conclusion

is relevant:

“18. In our view, non-supply of documents on which the enquiry officer does not rely during the course of enquiry does not create any prejudice to the delinquent. It is only those documents, which are relied upon by the enquiry officer to arrive at his conclusion, the non-supply of which would cause prejudice, being violative of principles of natural justice. Even then, the non-supply of those documents prejudice the case of the delinquent officer must be established by the delinquent officer. It is well-settled law that the doctrine of principles of natural justice are not embodied rules. It cannot be put in a straitjacket formula. It depends upon the facts and  circumstances  of  each  case.  To  sustain  the  allegation  of violation of principles of natural justice, one must establish that

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prejudice  has  been  caused  to  him  for  non-observance  of principles of natural justice.”

10) In regard to the question whether an enquiry officer can

indicate the proposed punishment in his report, this Court, in

a  series  of  decisions  has  pointed  out  that  it  is  for  the

punishing/disciplinary  authority  to  impose  appropriate

punishment  and  enquiry  officer  has  no  role  in  awarding

punishment.  It is useful to refer to the decision of this Court

in  A.N.D’Silva vs.  Union of India, (1962) Supp 1 SCR 968

wherein it was held:

“In  the  communication  addressed  by  the  Enquiry  Officer  the punishment proposed to be imposed upon the appellant if he was found guilty of the charges could not properly be set out.   The question of imposing punishment can only arise after enquiry is made and the report of the Enquiry Officer is received.  It is for the punishing authority to propose the punishment and not for the enquiring authority.”

11) From the above decisions, the following principles would

emerge:

i) The enquiries must be conducted bona fide and care

must be taken to see that the enquiries do not become

empty formalities.

ii) If an officer is a witness to any of the incidents which

is the subject matter of the enquiry or if the enquiry

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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.

iii) In an enquiry, the employer/department should take

steps  first  to  lead  evidence  against  the

workman/delinquent charged, give 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.

iv) 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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12) Now, let us consider the merits of the case on hand and

whether  the  High  Court  is  justified  in  quashing  the  orders

passed by the disciplinary authority as well as the appellate

authority  dismissing  the  respondent  from  service.   In  the

proceedings Letter No. 1644/8 Haldwani dated December 19,

1984  (Annexure-P1)  after  furnishing  certain  factual  details,

the  following  charges  have  been  levelled  against  the

delinquent:

“Charge  1:   You have  concealed  the  illegal  cutting  which  took place in Asani Block from your higher officials deliberately which caused huge financial loss to the department.  

Charge 2:  You have not obeyed the orders of your higher officials and you have traveled leaving your working without any reason in arbitrary manner.

Charge  3:   You  have  shown  negligence  in  discharging  your duties.”

Though  a  detailed  explanation  has  been  submitted

controverting the above charges,  no enquiry in terms of the

above-mentioned principles was ever conducted.  On the other

hand,  one  Mr.  P.C.  Lohani,  Dy.  Divisional  Forest  Officer,

Nadhor  acting  as  an  enquiry  officer  after  putting  certain

questions  and  securing  answers  submitted  a  report  on

16.11.1985.  No witnesses were examined.  Apparently there

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was not  even  a  presenting  officer.   A  perusal  of  the  report

shows that the enquiry officer himself inspected the areas in

the forest and after taking note of certain alleged deficiencies

secured some answers from the delinquent by putting some

questions.   It  is  clear  that  the  Enquiry  Officer  himself  has

acted  on  the  Investigator,  Prosecutor  and  Judge.   Such  a

procedure is opposed to principles of natural justice and has

been frowned upon by this Court.   

13) Another infirmity in the report of the enquiry officer is

that  he  concluded  the  enquiry  holding  that  all  the  charges

have been proved and he recommended for dismissal of the

delinquent  from  service.   The  last  paragraph  of  his  report

dated 16.11.1985 reads as under:-

“During the course of above inquiry, such facts have come into light from which it is proved that the employee who has doubtful character and does not obey the order, does not have the right to continue in the government service  and it is recommended to dismiss  him  from  the  service  with  immediate  effect.” (emphasis supplied)

Though  there  is  no  specific  bar  in  offering  views  by  the

enquiry  officer,  in  the  case  on  hand,  the  enquiry  officer

exceeded his limit by saying that the officer has no right to

continue  in  the  government  service  and  he  has  to  be

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dismissed from service with immediate effect.  As pointed out

above,  awarding  appropriate  punishment  is  the  exclusive

jurisdiction  of  the  punishing  /disciplinary  authority  and  it

depends  upon  the  nature  and  gravity  of  the  proved

charge/charges and other attended circumstances.  It is clear

from the materials, the officer, who inspected and noted the

shortfall of trees, himself conducted the enquiry, arrived at a

conclusion  holding  the  charges  proved  and  also  strongly

recommended  severe  punishment  of  dismissal  from service.

The  entire  action  and  the  course  adopted  by  the  enquiry

officer cannot be accepted and is contrary to the well-known

principles enunciated by this Court.  

14) A  reading  of  the  enquiry  report  also  shows  that  the

respondent  herein  was  not  furnished  with  the  required

documents.  The department’s witnesses were not examined

in  his  presence.  Though  the  respondent  who  was  the  writ

petitioner specifically stated so in the affidavit before the High

Court  in  the  writ  proceedings,  those  averments  were

specifically  controverted  in  the  reply  affidavit  filed  by  the

department.   Mere  denial  for  the  sake  of  denial  is  not  an

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answer  to  the  specific  allegations  made  in  the  affidavit.

Likewise, there is no evidence to show that after submission of

the report by the enquiry officer to the disciplinary authority,

the respondent herein was furnished with the copy of the said

report  along with all  the relied upon documents.   When all

these infirmities were specifically pleaded and brought to the

notice of the appellate authority (i.e. Forest Conservator), he

rejected the same but has not pointed the relevant materials

from  the  records  of  the  enquiry  officer  and  disciplinary

authority  to  support  his  decision.   Hence,  the  appellate

authority  has  also  committed  an  error  in  dismissing  the

appeal of the respondent.

15) After taking note of all the infirmities and in the light of

the  various  principles  enunciated  by  this  Court,  the  High

Court  has  rightly  interfered  and  quashed  the  orders  dated

05.03.1986 passed by the Divisional Forest Officer, Haldwani

as well as order dated 27.04.1991 passed by the Conservator

of Forest, Western Circle, Nainital.   

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16) In  view  of  the  above  discussion  and  conclusion,  the

appeal fails and the same is dismissed.  However, there will be

no order as to costs.          

         .…………………………………J.                                                    (R.V. Raveendran)

   ..…………………………………J. New Delhi;                                 (P. Sathasivam) August 13, 2008.     

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