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SC Issues Notice To Uttarakhand HC Over ADJ's Plea Of Non-Admission Of Evidence In Disciplinary Proceeding, Also Stays Inquiry
Mehal Jain
13 Feb 2021 11:14 AM IST
The Supreme Court has issued notice to the Uttarakhand High Court on the plea of an Additional District Judge in Uttarakhand for non-admission in evidence of a case diary in his disciplinary inquiry, the Inquiry Officer being a sitting judge of the High Court.The petitioner was aggrieved of the February 1 decision of the High Court wherein the High Court, on the one side, admitted the fact...
The Supreme Court has issued notice to the Uttarakhand High Court on the plea of an Additional District Judge in Uttarakhand for non-admission in evidence of a case diary in his disciplinary inquiry, the Inquiry Officer being a sitting judge of the High Court.
The petitioner was aggrieved of the February 1 decision of the High Court wherein the High Court, on the one side, admitted the fact that the Petitioner filed the case dairy, the certified copy of which was received by him under RTI, and the same was denied to be admitted by the Presenting Officer, and on the other side, neither passed any direction to the Presenting Officer to admit it or verify the genuineness of the said the document.
The bench of Justices L. Nageswara Rao and Ravindra Bhat also stayed the inquiry from being proceeded with.
Senior Advocate Dev Dutt Kamat and Advocate Sachin Sharma argued for the petitioners.
The facts in brief are since some of the documents, which were filed by the Petitioner in an ongoing departmental proceeding, for admission and denial, were not admitted by the Presenting Officer. Being aggrieved by the same, on 24.11.2020, the Petitioner filed the application before the Enquiry Officer that, inter alia, the Original Document i.e. copy made from the original case dairy provided and received under RTI may be treated as admissible in law and exhibit be marked on the said document.
"The aforesaid applications were erroneously rejected by the Enquiry Officer on the same day vide order dated 24.11.2020. That thereafter being aggrieved by the order dated 24.11.2020 passed by the Learned Enquiry officer wherein he rejected to take these documents as admissible in defence, the Petitioner filed Applications dated 09.01.2021 to call on witnesses who can prove the admissibility of those documents, however the same was also rejected on the same date vide order dated 09.01.2021", it is narrated.
Being aggrieved by the order dated 24.11.2020 and 09.01.2021, the Petitioner approached the High Court, wherein after hearing at length the High Court observed that one more opportunity be given to the Petitioner to prove the said documents. "That here it is pertinent to mention that despite heavily arguing on the admissibility of case dairy dated 06.04.2018 in Crime No. 58 of 2018 PS: SIDCUL, which is a certified copy received by the Petitioner under the Right to Information Act., the Hon'ble High Court refrained from passing any order and thereby rejected the admissibility of said document. Hence being only aggrieved by the non-admissibility of the said document the Petitioner is filing the present Special Leave Petition", it is urged.
It is mentioned that the case diary relates to a Criminal Case which has been closed as the prosecution has withdrawn the case and the accused i.e Ms. Dipali Sharma has been discharged vide judgment dated 05.09.2020. Hence, pursuant to the closure of case and discharge of accused, the case dairy in question is a public document and also as per Section 22 of the Right to Information Act., the provision of RTI Act has an overriding effect on all legislation including Official Secret Act. Hence the original information with true copy of the case dairy and prepared from original case dairy, has been submitted on 19.09.2020, therefore, the said copy can be considered as certified copy and is therefore admissible in law.
It is pointed out that the case diary dated 06-04-2018 is important in the departmental enquiry against the petitioner because, Ms. Deepali Sharma, who was also posted as Civil Judge (Senior Division) in Haridwar District Court and was suspended on 30-01-2018 on the charges of torture, beating and keeping a minor girl as slave in her house, had on 06-04-2018 informed on official mobile number of the investigation officer in the criminal case against Ms. Deepali Sharma, that one complaint has been received against the petitioner herein and that enquiry is going on against the petitioner. The said investigating Officer even confronted the same with the Petitioner on 17-04-2018. The petitioner was totally unaware about the said allegations and clearly denied it. Subsequently, on 23-04-2018 the petitioner was placed suspension.
"That now the very important question how a suspended judicial officer is aware of any complaint and enquiry against her senior officer, when the complete matter was kept 'most confidential' and even the petitioner was also not aware of any such complaint and enquiry. That this points to the fact that the conspiracy was hatched against petitioner and Ms. Deepali Sharma was also involved in the group which hatched the conspiracy against petitioner. That initially it was not clear as to who all are involved in conspiracy and manipulation of false complaint, but with the passage of time, it got clear that under the guidance and directions of Hon'ble Inquiry Officer (i.e the sitting Judge of the Hon'ble High Court) , the then District Judge Haridwar Sri Rajendra Singh, Ms. Deepali Sharma, the then central Nazir Sri Mitra Bhaskar Shah and one or two class IV employees in Nazarat executed the conspiracy which was hatched by Justice Lok Pal Singh", it is submitted.
The petitioner continues to urge that with the passage of time i.e. by October 2020, it became clear that the Inquiry Officer has a soft corner, affinity and affection towards Ms. Deepali Sharma.
He presses that Ms. Deepali Sharma was unaware of the fact that the Petitioner got case diary dated 06th April 2018 through RTI till 04th November 2020. It is only after the filing of said case diary by the petitioner as defence document before the Inquiry Officer, that Ms. Deepali Sharma came to know about it and sent a detailed letter to Secretary, Home, Government of Uttarakhand complaining against the Public Information Officer, Prosecution Office, Haridwar.
"It makes it abundantly clear that someone associated with the departmental proceedings against petitioner disclosed the filing of case diary dated 6th April 2018 to Ms. Deepali Sharma", it is argued.
Background
The Supreme Court had in October last year refused to interfere on the plea of an Additional District Judge in the state of Uttarakhand for a change of the Inquiry Officer (a sitting judge of the Nainital High Court) examining the charges against him, on the ground that latter was also the Chairman of the Committee which had recommended a full-fledged disciplinary inquiry against the petitioner.
"You can raise the ground of bias even after the inquiry is over and argue on that. Nothing stops you from doing that", observed the bench headed by Justice L. Nageswara Rao. However, the bench refused to incorporate a clarification this effect in the order, stating that "it will operate differently".
"You are quite adventurous", remarked Justice Rao at the outset.
"Your Lordships are inferring that from the allegation? It is not correct! It was made because I was a strict officer and they were out to embarrass me...I have an outstanding record...I was the registrar of the High Court for the longest time!", argued Senior Advocate P. S. Patwalia for the petitioner.
"The High Court on September 30, instead of issuing formal notice, had just asked the Standing Counsel to take my petition for a change of the Inquiry Officer. The very next day, the Officer closes the defence and started proceeding ex-parte! I may be good or bad, but can I not ask the HC to change the Inquiry Officer?", he argued.
He urged that considering the Inquiry Officer had been part of the committee which directed the inquiry in the first place, any inquiry so conducted could not be said to be fair.
He relied on the 2006 apex court decision in Inderpreet Singh Kahlon, where writ petitions levelling allegations against the Punjab Public Service Commission Chairman, that he got a large number of persons appointed on extraneous consideration including monetary consideration, ultimately came up for hearing before a Full Bench of the P & H High Court. Two of the members of the said Bench were Chairmen of the two earlier committees appointed by the HC Chief Justice to examine the answer-sheets etc.
"We fail to understand as to why two senior Judges who had headed the Committee should have been made part of the Bench. It was not a case where the doctrine of necessity was required to be invoked", the top court had wondered, observing that "it is important to maintain purity of administration of justice both on the judicial side as also the administrative side". "The writ petitioners might have waived their right to raise a contention as regard bias on the part of the Hon'ble Judges but the same would not mean that this Court would ignore such a vital fact. It was clearly a case where the Hon'ble Judges should have recused themselves from hearing the matter", the top court had ruled.
"Kahlon was different. You yourself said that if an administrative action has been taken, then the matter can't be dealt with on the judicial side", pointed out Justice Hemant Gupta.
"I am an outstanding officer. Please see my record!", urged Mr. Patwalia. "Since you said we shouldn't look into the allegations to avoid any bias, we will not look at your record to see how good you are", said Justice Rao.
"At what stage is the inquiry? Is it proceeding ex-parte?', asked the Judge.
"It is at the stage of final arguments. And I have not been allowed to lead any evidence!", urged the senior counsel.
"Why did you not tell the HC?", asked the Justice Rao.
"I did. I made an application to the CJ and then also moved the HC. But the HC said that my application before the CJ was rejected and now it is too late to make allegations of bias! But I had never raised the ground of bias earlier! I had only said that since this Inquiry Officer has also dealt with the matter on the administrative side, someone else may be appointed...('You said everything without saying it', remarked Justice Gupta)...the CJ said 'no'. Then the HC also said it cannot do anything. No stay was given...Thereafter, 6 of my applications have been outrightly rejected for any reason! I sought a recusal of the Inquiry Officer, but he also said I am not bias, why should I recuse...my argument of bias has been foreclosed forever!", argued Mr. Patwalia.
"Bias is a state of mind. Justice must not only be done but also be seen to be done! A witness turned hostile, he refused to show up! And the Inquiry Officer says he will issue warrants of arrest? This is not a criminal trial, it is a departmental inquiry! If the witness is not coming, please draw an inference!", he pressed.
"We can't interfere in inquiries. We can ask the HC to decide your plea and pass an order. If you have a good case on bias, you will succeed", noted Justice Rao.
"You can argue on bias even after the inquiry is over. There is nothing to stop you", said the bench, disposing off the SLP asking the HC to decide the petitions before it.
The Petition has been filed through Advocate Sachin Sharma
