BEFORE THE UTTARAKHAND PUBLIC SERVICES TRIBUNAL

BENCH AT DEHRADUN

Present: Hon’ble Mr. Ram Singh

------ Vice Chairman (J)

Hon’ble Mr. D.K.Kotia

-------Vice Chairman (A)

CLAIM PETITION NO. 04/ DB/2015

Anand Singh Chauhan, S/o Late Sri Gabar Singh Chauhan, aged about 46 years,
Plant Mechanic, Livestock Development Board, Shyampur, Rishikesh, Dheradun.

….…………Petitioner
Versus

1. State of Uttarakhand through Secretary (Animal Husbandry) Secretariat,

Subhash Road, Dehradun.
2. Director, Animal Husbandry Department, Uttarakhand, Dehradun.

…….Respondents.

Present: Sri L.K.Maithani, Ld. Counsel

for the petitioner.
Sri Umesh Dhaundiyal, Ld. A.P.O.
for the respondents.

JUDGMENT

DATED: FEBRUARY 08, 2017

(Hon’ble Mr. D.K.Kotia, Vice Chairman (A)

1. The petitioner has filed this claim petition for seeking the following
relief:-
“
 2

2.1 The petitioner is a “Plant Mechanic” in the Department of Animal

Husbandry, Government of Uttarakhand.

2.2 The petitioner was suspended on 09.09.2010 (Annexure: A 6) on

charges related to non-compliance of the orders of the higher
authorities, unauthorized absence from duty, non-compliance of
Government Rules, working in a careless manner and violation of the
Uttarakhand Government Servant Conduct Rules, 2002.

2.3 The petitioner was issued a charge sheet containing ten charges on
08.10.2010 (Annexure: A 7) under the signature of the Director, Animal
Husbandry, Government of Uttarakhand and was asked to submit the
reply to the charge sheet within 30 days.

2.4 The Director, Animal Husbandry appointed Dr. Ashok Kumar, Additional
Director, Animal Husbandry as Inquiry Officer vide letter dated
11.10.2010. In this letter, the Inquiry Officer was also sent the charge
sheet and he was directed to serve the charge sheet upon the
petitioner. The letter dated 11.10.2010 reads as under:-

“
 3

2.5 The Inquiry Officer vide letter dated 19.11.2010 provided the charge
sheet to the petitioner and directed him to give his statement with
evidences before the inquiry officer within 15 days. The letter dated
19.11.2010 is reproduced below:-

”
 4

2.6 The petitioner has contended that the documentary evidences which
were mentioned in the charge sheet were not provided to him. He has
also contended that some other information/ documents required to
reply to the charge sheet, which he requested vide letters dated
24.11.2010 and 17.01.2011 were also not provided to him. The
respondents have contended that all necessary documents were
provided to the petitioner. The petitioner did not reply to the charge
sheet. The inquiry officer proceeded ex-parte and submitted his report
on 25.03.2011 and found all the charges proved against the petitioner.
Thereafter, a show cause notice was issued to the petitioner along with
the copy of the inquiry report on 25.04.2011. The petitioner replied to
the show cause notice on 17.05.2011. The Director, Animal Husbandry
found reply to the show cause notice unsatisfactory and passed the
punishment order on 01.07.2011 (Annexure: A 1). The petitioner was
awarded the punishment of withholding of two increments with
cumulative effect.

2.7 The petitioner also filed appeal against the punishment order on
29.09.2011 (Annexure: A 13). A reminder was also given by the
petitioner to the respondents to decide the appeal on 25.03.2013(
Annexure: A 14). Counsel for the petitioner also gave notice under
Section 4(6) of the Public Services Tribunal Act to decide the appeal on
05.08.2014 (Annexure: A 17). The Respondent No.1 decided the appeal
on 30.06.2015 ( during the pendency of the claim petition ) and the
appeal of the petitioner was rejected (Annexure: A19).

3. The petitioner in his claim petition has challenged the punishment

order mainly on the ground that the inquiry officer was appointed even
before the charge sheet was served upon the petitioner in gross
violation of the rules and the principles of natural justice and,
therefore, the whole proceedings are void ab initio.

4. The respondents in their joint written statement have opposed the

petition and contended that the inquiry has been conducted as per
rules and sufficient opportunity was afforded to the petitioner to
 5

defend himself. There was sufficient evidence against the petitioner

and he has rightly been found guilty. The appeal of the petitioner was
also duly considered and the same was rejected by passing a reasoned
order by the Appellate Authority.

5. The petitioner has also filed the rejoinder and the same averments have
been reiterated in it which were stated in the claim petition.

6. We have heard both the parties and perused the record including the
original file of inquiry.

7. The question before us for consideration is whether the appointment

of inquiry officer is in accordance with rules/ law of not.

8. The question whether inquiry officer can be appointed before reply to

the charge sheet is received or not had come up for consideration
before the Division Bench of Hon’ble High Court of Uttarakhand in Writ
Petition No. 118(SB) 2008, Lalita Verma Vs. State of Uttarakhand in
which the interim order was passed on 30.06.2008 interpreting the Rule
7 of the Uttarakhand Government Servants (Discipline and Appeal)
Rules, 2003 giving a detailed reasoning as to why the enquiry officer
cannot be appointed before the reply to the charge sheet. Hon’ble High
Court in para 7 of the judgment held as under:
“7.Under Rule 7 of the aforesaid 2003 Rules, a procedure has
been prescribed for imposing major penalties. In practical terms,
Rule 7 (supra) is in para materia to Rule 14 of Central Civil
Services (Classification, Control and Appeal) Rules 1965 and most
of the other such Rules of various State Governments except that
in the aforesaid 2003 Rules, the prescription is that the Inquiry
Officer may be appointed by the Disciplinary Authority at the very
initiation of the inquiry, even before the charge sheet is served
upon the delinquent officer. In the aforesaid Rule 14 (Sub Rule 5)
of C.C.A. of 1965 Central Rules, there is a clear indication that the
Disciplinary Authority appoints an Inquiry Officer only if the
charged officer pleads “not guilty” to the charges, whereas in
2003 Rules the clear indication is that even before framing and
 6

service of the charge sheet and before the charged officer pleads
guilty” or “not guilty”, an Inquiry Officer is appointed. This, in our
prima facie opinion, is a contradiction in terms because the
question of appointment of an Inquiry Officer would arise only if
the charged officer pleads “not guilty” to the charges. If the
charged officer pleads guilty to the charges there may not be
any need for appointment of any Inquiry Officer.”
The interpretation, which has been made in the interim relief order by
the Division Bench of the Hon’ble High Court has been made absolute
by subsequent judgment of the Division Bench in writ petition No.
118(SB) of 2008, Lalita Verma Vs. State of Uttarakhand on 17.05.2013

9. In case of Dr. Harendra Singh Vs. State Public Services Tribunal &
others in wirt petition No. 80 of 2009 (S/B), the Division Bench of
Hon’ble High Court at Nainital has also held as under:-

“In the judgment dated 30th June, 2008 passed by a Division Bench
of this Court in writ petition No. 118(S/B) of 2008; Smt. Lalital Verma
Vs. State and another, inter alia, this court had laid down the
following three propositions of law:

i. ……..
ii. By referring to Rule 7 of the aforesaid 2003 Rules in comparison
to Rule 14 of Central Civil Services (Classification Control and Appeal)
Rules, 1965, the Inquiry Officer should be appointed only after the
charge sheet is served upon the delinquent and he pleads “not
guilty” to the charges. There is no reason or occasion to appoint an
Inquiry Officer before the delinquent officer pleads “guilty” or “not
guilty” to the charge sheet (refer to para 7 of the aforesaid
judgment.)
iii. …....”
10. Subsequently, the State Government has also amended the Rules of
2003 known as ‘ The Uttarakhand Government Servant (Discipline and
Appeal) Amendment Rules, 2010. The Relevant part of amended Rule 7,
is extracted as under:-

“7. Procedure for imposing major punishment.

 7

Before imposing any major punishment on any government

servant, an inquiry shall be conducted in the following
manner:-
(1) Whenever the Disciplinary Authority is of the opinion that
there are grounds to inquire into the charge of misconduct or
misbehaviour against the government servant, he may
conduct an inquiry.

(2) The facts constituting the misconduct on which it is proposed

to take action shall be reduced in the form of definite charge or
charges to be called charge sheet. The charge sheet shall be
signed by the Disciplinary Authority.

(6) Where on receipt of the written defence statement and the

government servant has admitted all the charges mentioned in the
charge sheet in his written statement, the Disciplinary Authority in
view of such acceptance shall record his findings relating to each
charge after taking such evidence he deems fit if he considers such
evidence necessary and if the Disciplinary Authority having regard
to its findings is of the opinion that any penalty specified in Rule 3
should be imposed on the charged government servant, he shall
give a copy of the recorded findings to the charged government
servant and require him to submit his representation, if he so
desires within a reasonable specified time. The Disciplinary
Authority shall, having regard to all the relevant records relating to
the findings recorded related to every charge and representation of
charged government servant, if any, and subject to the provisions
of Rule 16 of these rules, pass a reasoned order imposing one or
more penalties mentioned in Rule 3 of these rules and
communicate the same to the charged government servant.

(7) If the government servant has not submitted any written

statement in his defence, the Disciplinary Authority may, himself
inquire into the charges or if he considers necessary he may
appoint an Inquiry Officer for the purpose under sub rule (8)
 8

(8) The Disciplinary Authority may himself inquire into those

charges not admitted by the government servant or he may
appoint any authority subordinate to him at least two stages
above the rank of the charged government servant who shall be
Inquiry Officer for the purpose.

(9) Where the Disciplinary Authority has appointed Inquiry Officer

under sub rule (8) he will forward the following to the Inquiry
Officer, namely:

(a) A copy of charge sheet and details of misconduct or

misbehaviour,

(b) A copy of written defence statement, if any submitted by the

government servant;

(c) Evidence as a proof of the delivery of the documents referred

to in the charge sheet to the government servant;

(d) A copy of statements of evidence referred to in the charge sheet .”

11. Subsequently, this matter came for consideration before the Single
Judge of the Uttarakhand High Court in Writ Petition Nos. 999 (S/S), 1364
(S/S) and 1365 (S/S) of 2011 in Uday Pratap Singh Vs. State of Uttarakhand
and Others. The Hon’ble High Court while disposing of the mater, has
held as under :-
“13. Rule 7(6) and (8) of the Rules contemplate that after
submission of the reply to the charge sheet, it would be open
to the disciplinary authority to inquire into the charges himself
or may appoint an Enquiry Officer for the purpose of sub-rule
(8). Sub-rule (8) provides that the disciplinary authority or the
Enquiry Officer would inquire into the charges. The reason for
the appointment of an Enquiry Officer after the service of the
charge sheet and the reply of the charged officer has a
purpose, namely, that in the event the charged officer pleads
guilty to the charges, in that event, it would not be necessary
for the disciplinary authority to appoint an Enquiry Officer and
 9

it would be open to the disciplinary authority to proceed and

impose a penalty contemplated under the Rules.
Consequently, the earlier Rules, which contemplated that an
Enquiry Officer could be appointed even before the submission
of the charge sheet, was done away under the amended
Rules. The amended Rules clearly indicate that an Enquiry Officer
can only be appointed after the charge sheet is served upon the
charged officer and after a reply is given by the charged officer.”
12. The Division Bench of the Hon’ble High Court at Nainital in the case of
Ram Lal Vs. State of Uttarakhand and others Special Appeal No. 300 of
2015 decided on 03.07.2015 [2015(2) U.D., 25] has also held as under:---
“As far as the appointment of an Inquiry Officer is
concerned, it is settled law, by virtue of the Rules prevailing
in the State and decisions of the court interpreting them, that
in Inquiry Officer can be appointed only after the
disciplinary authority issues a charge sheet calling upon the
delinquent officer to submit his explanation and, if, after
considering the explanation of the delinquent officer, it is
found necessary to hold an inquiry, only at that stage, an
Inquiry Officer can be appointed…….. Therefore, in the light
of these settled principles, if we examine the impugned
order; it is clear that it is afflicted by two vices. Firstly, even
without issuing a charge sheet and calling for an
explanation, an Inquiry Officer has been appointed. This
part of the order cannot be sustained. Equally without legal
foundation and contrary to law is the direction to the Inquiry
Officer to serve the charge sheet upon the appellant. These
portions are clearly unsustainable and, therefore, they
deserve to be quashed.”
13. In the case at hand, the inquiry officer was appointed on 11.10.2010
and the inquiry officer was directed to serve the charge sheet (dated
08.10.2010) upon the petitioner. The inquiry officer served the
charge sheet upon the petitioner on 19.11.2010. It is clear that the
inquiry officer was appointed before the charge sheet was served
upon the petitioner which cannot be sustained as per settled position
of law. In the instant case, Rule 7(7) of the Government Servant
 10

(Discipline and Appeal) Amendment Rules, 2010 (reproduced in

paragraph 10 of this order) read with Rule 7(8) and Rule 7(9) were
not followed and the inquiry officer was appointed at the initial stage
even before the charge sheet was served upon the petitioner. Thus,
the respondents have taken a wrong path to conduct the inquiry. In
view of settled legal position, we find that the process of inquiry,
adopted by the respondents, was not in accordance with law.
14. For the reasons stated above, the petition deserves to be allowed.

ORDER

The claim petition is hereby allowed. The punishment order dated

01.07.2011 (Annexure: A 1) and the order of the Appellate Authority
dated 30.06.2015 (Annexure: A 19) are hereby set aside. However, it
would be open to the competent authority to proceed afresh against
the petitioner in accordance with law. The respondents would be at
liberty to suspend the petitioner if they find that he is liable to be
suspended in accordance with law. If the said inquiry is started
against the petitioner, the same would be concluded according to
rules and law expeditiously, preferable within a period of six months
from the date of this order. Before parting with the matter, it is
clarified that no opinion has been expressed on the merits of the case.
No order as to costs.

(RAM SINGH) (D.K.KOTIA)

VICE CHAIRMAN (J) VICE CHAIRMAN (A)

DATE: FEBRUARY 08, 2017

DEHRADUN

VM