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VIRENDRA SINGH v STATE & ORS - SAW Case No. 428 of 1998 [2007] RD-RJ 5673 (3 December 2007)



D.B. SPL. APPL. WRIT No. 428 of 1998




Mr. AK RAJVANSHY, for the appellant / petitioner

Mr. OP RATHI, DY. G.A., for the respondent

Date of Order : 3.12.2007





By this appeal, the appellant seeks to challenge the order of the learned Single Judge dt. 20.2.1998, whereby the petitioner's writ petition was dismissed summarily.

The facts of the case are, that the petitioner was served with charge-sheet, which included the charge about willful absence for time to time for a period of 101 days, while on duty of night patrolling. To this charge-sheet no reply was filed, thereupon regular enquiry was initiated, enquiry officer ultimately submitted the enquiry report, which was sent to him along with show cause notice of proposed penalty, which was received by the petitioner on 31.5.1996, but no reply was filed, and the Disciplinary

Authority, vide Annexure-1, imposed punishment of dismissal from service. Against this order an appeal was filed, being

Annexure-6, which too has been dismissed vide order of the

Appellate Authority dt. 13.12.1996, Annexure-7. Then, the review petition was also filed, which too has been dismissed vide order dt. 26.8.97, Annexure-8.

It has been found by the learned Single Judge, that in the order passed by the Disciplinary Authority, no error is spelt out, as the petitioner was found to be willfully absent from duty. It was also found, that the petitioner was afforded reasonable opportunity of hearing, and he deliberately and willfully avoided to avail the same, and as such there was no option left, except to proceed exparte, and that his conduct to avoid willfully to avail the opportunity of hearing, afforded to him, does not entitle him to any relief.

A look at the writ petition shows, that the stock argument given by the petitioner is, that an exparte false report was given, neither any notice of any enquiry, nor the notice after enquiry, was served on the petitioner, prior to removal, thus no opportunity of hearing was afforded to him. Then, it is contended, that on application of the petitioner, photo stat copy of the so called enquiry report, and notice dt. 30.3.1996 and 17.5.96, were supplied to the petitioner, which are not attested, and the same have been produced as Annexures 3, 4, and 5. Then, the contentions have been raised on merits about absence, and factual improbability, of service of notice, is highlighted on the basis of the geographical distances of various places.

We have gone through the entire record of the writ petition. A look at the punishment order Annexure-1 shows, that vide memo dt. 16.6.1995, charge sheet was sent, which was received on 30.6.1995, but no reply was filed, thereupon enquiry was initiated, delinquent was granted to permission to obtain copy of any document or have the inspection, and enquiry officer was appointed vide order dt. 25.7.95, but then despite repeatedly addressing the letters, the delinquent employee did not participate in the enquiry, the delinquent employee was asked in connection with appointment of defence counsel, but then he did not appear. Thereupon ultimately exparte enquiry was conducted, and enquiry report was submitted, after recording the evidence. It has also been mentioned, that after receipt of the enquiry report, vide communication dt. 17.5.96, show cause notice was sent with proposed punishment, which notice was received by the delinquent officer on 31.5.1996, but no reply has been submitted.

In this background a look at the memo of appeal,

Anexure-6, shows, that in para-4, a vague averment has been made, about the petitioner having not been given any written or oral information about the enquiry, rather the departmental officers, by forming a group, have undertaken false proceedings, malafide, but then, the recitals in the punishment order, about service of various communications, have not been denied. Even it is not averred, that he did not receive enquiry report, or the notice sent, about proposed punishment, enclosing enquiry report, rather same arguments had been raised, on the basis of some dates, and geographical locations, or the like. It is also significant to note, that the appeal that was filed was time barred, and the same was dismissed, as the same having been filed after three months of the receipt of punishment order.

Significantly, it is not the averment, that the petitioner did not receive the punishment order. Then, a look at the order, Annexure-8, whereby his review petition is dismissed, also shows, that the reviewing authority considered the contention, about non service of notice also; even on merits, and after perusal of the record, it was found, that the contention is without any basis, inasmuch as, in the first instance notice was given by enclosing memorandum of 16.6.1995, which received on 30.6.1995, but no reply was filed. Then, after appointment of enquiry officer also various letters were given, and on 26.8.95 the petitioner appeared before the enquiry officer, and on that date itself he was informed about the earlier letter dt. 21.8.95, and he was also informed to appoint the defence nominee, and was directed to appear on 1.9.1995, and was told that in the event of failure to appear, the enquiry will proceed exparte, still he did not appear, and thus exparte enquiry was conducted. Then, it has also been found, that the charges are clearly established on merits.

In our view, the Review Officer has examined the matter, threadbare, and when it has been found, that the petitioner himself had appeared in the enquiry, before enquiry officer on 26.8.1995, and was directed to appear on the next date being 1.9.95, it is clear, that the averments made in the writ petition about non-supply of notice, or enquiry having been conducted in his absence, exparte, and fraudulently, and without any intimation having been given to the petitioner, are all, to say the least, wholly unreliable, and the finding of fact recorded by the learned authorities, about the aspects of non-supply of notice, or enquiry having been conducted in his absence, do not require any interference by this Court, and even on merits also no interference is required to be made, as the learned

Single Judge cannot be said to have committed any error in dismissing the writ petition.

The appeal is, therefore, dismissed.

Before parting with the appeal, it may be observed, that vide order dated 27.4.98, only show cause notice was issued, fixing the case on 13.10.98, and according to the reports made in the margin, the notice had been received by then. Then the next order-sheet is of 13.10.98, to the effect, that all served, notice be exhibited, and put up with report on 15.12.98. Then the notice was exhibited (obviously under Rule 181 of the High

Court Rules), and ultimately on 15.10.99 the matter was ordered to be put up in due course for preparation of paper book, as per rules. It is strange, that the appeal was never listed for admission, after service of notice, and has straightway come up for hearing. Dy. Registrar (Judl.) is, therefore, directed to appropriately look into the matter, as to how the things had moved, and who is the person concerned responsible for not ordering the matter to be listed for admission, and allowing the appeal to be listed for hearing, straightway without admission. After identifying the person delinquent, strong disciplinary action be taken against the delinquent, and out come be reported to this Court. The matter be listed for the report, after three months.



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