Govt Employee Can't Be Punished Merely On Basis Of Preliminary Inquiry, Must Hold Departmental Enquiry With Reasonable Opportunity: J&K&L High Court

Quashing an order issued by Secretary J&K State Board of School Education (BOSE) Srinagar against the petitioner, who was working as Senior Assistant in the Board, the court has observed that the penalty of withholding promotion of the petitioner from the date he becomes due for next promotion, is arbitrary and is not sustainable for the reason that no departmental enquiry was conducted into the alleged misconduct.

The bench headed by Justice M.A Chowdhary recorded that the penalty imposed on the petitioner in absence of being held guilty in regular enquiry is abuse of power by the respondents and this arbitrary action on the part of the respondents cannot be upheld.

The court noted that only preliminary enquiry had been conducted and the purpose behind holding preliminary enquiry is only to take prima facie view as to whether there can be some substance in the allegations made against an employee, which may warrant regular enquiry.

Placing reliance on Supreme Court directives in Amalendu Ghosh Vs. North Eastern Railway, the court recorded that a government servant cannot be punished on the findings of preliminary enquiry without holding a disciplinary enquiry after serving a charge sheet.

The Respondent J&K Board of School Education in its objections to the plea contended that the petitioner while posted at Branch Office allowed a candidate to fill the examination form of SSE (10th Class) Session-2008 Bi-Annual at late stage and entertained it notwithstanding the fact that the said candidate had already passed the SSE in the year 2003. The respondents further stated that they constituted a Fact Finding Committee to probe and fix the responsibility of the erring official. The Committee in its report held the said candidate guilty of unfair means and also held the petitioner responsible for the said irregularity.

Perusing the material on record, the court observed that it is crystal clear that no disciplinary committee was constituted by the respondents to conduct regular enquiry into the charges against the petitioner and the committee so constituted was only preliminary in nature and had been asked to pinpoint and probe into the irregularity committed by the officials of the Sub Office and to fix responsibility.

The court further noted that the respondents by acting upon the preliminary report without conducting the disciplinary enquiry to look into the charge against the petitioner have completely bypassed the Service Law Jurisprudence. The could reiterated that the settled position of law is that the official having committed misconduct during his service is to be charge-sheeted by framing articles of charge and to lead evidence before the enquiry officer as appointed, where the delinquent official must have a right to cross examine the witnesses and also lead evidence in his defense.

The court further observed that the evidence recorded in the preliminary enquiry cannot be used in regular departmental enquiry, as the delinquent is not associated with it and opportunity to cross examine the persons examined in such enquiry is not given. Using of such evidence has been held by the Hon'ble Apex Court in the case Nirmala J.Jhala Vs. State of Gujarat & Anr., (AIR 2013 SC 1513), as violative of the principles of natural justice, the court said.

The bench recorded that it was in this context incumbent upon the respondents to appoint an enquiry officer, serve charge sheet upon the petitioner as delinquent, lead evidence in support of the charge of misconduct and allow him to bring evidence in his defense.

"Respondents have thus committed grave irregularity by not conducting regular enquiry and imposing penalty of withholding next promotion of the petitioner for the period of two years from the date he becomes due for next promotion," the court said.

Allowing the plea, the bench recorded that the petitioner is stated to have superannuated and there is no question of conducting any enquiry against him at this stage and thus the order issued by the Board having been passed in arbitrary manner without conducting disciplinary enquiry into the alleged misconduct against the petitioner, is not sustainable and is accordingly quashed.

Case Title: Abdul Rehman Dar Vs. State of J&K & Anr

Citation : 2022 LiveLaw (JK) 40

Click Here To Read/Download Judgment