TMI Blog2013 (9) TMI 922X X X X Extracts X X X X X X X X Extracts X X X X ..... ion, that proceedings were allowed to be terminated only on the ground of delay in their conclusion. Already 14 years have passed from the date of the incident and the petitioner was found not guilty in the first enquiry and now, it may be very difficult for the petitioner to lead complex evidence in defense and it may also be difficult for the department to lead such complex evidence in support of the allegation and, more importantly, when on the charge, penalty of dismissal or removal from service was not awarded by the department itself, we do not consider it to be a fit case to remit the matter for completing the enquiry again, particularly, when the petitioner had already retired from service and had served on the post pursuant to interim order of this Court. Opportunity of Being Heard – Held that:- The petitioner was deprived of an opportunity of personal hearing in the re-inquiry that was ordered - No material had been brought on record - ordinarily, where a person pleaded innocence and denies the charges, a date was fixed for leading of evidence - Taking a reply from a Government servant charged with such charges which may result in imposition of a major penalty and p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndra, Mohan Nagar, at about 1:50 A.M., a truck No. HR 06/9425 crossed the gate, without stopping, at a fast speed. As a result, it was chased by the mobile squad and with the help of police was apprehended. Upon inspection, the truck was found to be loaded with "Mobil Oil" and did not have valid documents for transport. It is alleged that despite the aforesaid fact, a gate pass for the said truck was issued by the petitioner at 4:34 A.M. whereas the "Panji No.1" (Register), maintained at the Sahayata Kendra, disclosed its entry at serial No.180 at 1:31 A.M., which reflected collusion of the petitioner as well as complete negligence on his part in performance of his duties. 5. The second charge was to the effect that the "Trip Sheet" of the concerned truck No. HR 06/9425 had "Import Declaration Form" of M/s. Bharat Traders and "Bilty" of M/s. Jai Mata Transport Service appended to it even though the trade tax registration of M/s. Bharat Traders, Ghaziabad was canceled by the Trade Tax Officer, Khand -V, on 14.07.2009, and the information of which was given by the Deputy Commissioner, Ghaziabad, vide letter dated on 30.07.1999, which was received at the Sahayata Kendra on 31.07.199 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t was further found that the petitioner had passed the papers in due course, as they carried seal and signature of the Trade Tax Officer, T.P. Nagar giving a green channel to the vehicle concerned. It was observed that as per common practice physical verification of a vehicle is done by the clerk stationed at the window and not by an officer, to whom papers are forwarded for verification. The charge no.1 was thus found not proved. 9. In respect of charge no.2, the Inquiry Officer came to the conclusion that information about cancellation of registration of M/s Bharat Traders was entered at the Sahayata Kendra on 07.08.1999 whereas the documents were passed in the night of 5/6.08.1999, therefore, while passing the documents, it cannot be said that the petitioner committed any misconduct. Accordingly, charge no.2 was also not found proved. 10. The Commissioner Trade Tax (Disciplinary Authority), vide order dated 01.10.2001 (Annexure 5 to the writ petition), rejected the inquiry report and remitted the case for re-inquiry to the Additional Commissioner, Grade-I, Trade Tax, Noida, in exercise of his power under Rule 9 (1) of the U.P. Government Servant (Discipline and Appeal) Rules ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... basis to conclude that there was any collusion of the petitioner with him. It was specifically stated that if the authority concerned was not satisfied with the explanation of the petitioner, then personal hearing be provided to the petitioner. 15. In reference to the observations of the disciplinary authority with regards to charge No.2, the petitioner represented that information regarding cancellation of the registration of M/s. Bharat Traders was received at the Kendra on 07.08.1999. The responsibility to make entry in the Register is that of the clerk, as per Chapter IV, para 5 of the Manual. Moreover, the concerned clerk was under the direct supervision of Kendra Prabhari, which office was not held by the petitioner. It was pleaded that there was no basis to form an opinion that there was any collusion for deliberately not entering the information/ letter in the Register. It was, again, specifically requested that if the authority concerned was not satisfied with the explanation of the petitioner, then personal hearing be provided to the petitioner. 16. According to the petitioner, after submission of his representation /explanation, the Inquiry Officer did not fix any d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esses. Thereafter, the Inquiry Officer is required to call and record the oral evidence which the charged Government servant desired in his written statement to be produced in his defense provided that the Inquiry Officer may for reasons to be recorded in writing refuse to call a witness. 20. It has been submitted that clause (x) of Rule 7 provides that where the charged Government servant does not appear on the date fixed in the enquiry or at any stage of the proceeding in spite of service of notice on him or having knowledge of the date, the Inquiry Officer is entitled to proceed with the inquiry ex parte. In such a case, the Inquiry Officer is required to record the statement of witnesses mentioned in the charge-sheet in absence of the charged Government servant. 21. It has been submitted that under Rule 9 (1), the Disciplinary Authority has the power, for reasons to be recorded in writing, to remit the case for re-inquiry to the same or any other Inquiry Officer under intimation to the charged Government servant. The Inquiry Officer shall thereupon proceed to hold the enquiry from such stage as directed by the Disciplinary Authority, according to the provisions of Rule 7. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted, which we find at page 72 of the paper book, that a prayer was made by the petitioner that if his written explanation is not found to be satisfactory, then the petitioner may be given opportunity of personal hearing to set up his defense. In paragraph Nos. 23, 24 and 25 of the writ petition, the petitioner has stated as follows:- "23. That pursuant to order dated 1 October, 2001, the petitioner appeared before the Inquiry Officer and submitted his explanation with a prayer that if the disciplinary authority was disagreed with the finding of the earlier enquiry report, he may call the petitioner to give his explanation with regard to the charges. Photostat copy of the explanation of the petitioner dated 27.11.2001 is being attached herewith and marked as Annexure No.6 to this writ petition. 24. That after submission of explanation by the petitioner, the Inquiry Officer has not fixed any date for hearing and the petitioner has never been informed regarding further progress in the enquiry. 25. That it is material to point out here that the Inquiry Officer has proceeded with the explanation and at no point of time, the petitioner has been given any notice or opportunity to pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... examine the charged officer. Cross-examination is underwent by a person only when that person examines himself as a witness. No record has been produced before us to show that the petitioner examined himself as a witness on that day and that his statement was recorded, which he signed. Thus, the stand taken in the counter affidavit that the petitioner was personally heard and given opportunity to lead evidence is not acceptable. Even otherwise, cross examination is to be done by the presenting officer and not the inquiry officer. In the case of State of Uttaranchal v. Kharak Singh, (2008) 8 SCC 236, it has been observed that an inquiry officer should not act as an investigator and prosecutor. In paragraph 17 of the report it has been observed: "17. On the other hand, one Mr P.C. Lohani, Dy. Divisional Forest Officer, Nandhaur 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ilable at the Kendra that the truck concerned has been apprehended. From the record, we find that this material, by way of circumstance, was already there with the inquiry officer at the conclusion of the first inquiry, which, perhaps, was not found sufficient. Had the aforesaid circumstance been sufficient to record finding of guilt, the disciplinary authority would not have directed for a re-inquiry but would have straight away recorded a finding against the petitioner after recording his disagreement, in exercise of his power under Rule 9(2) of the Rules, 1999. Therefore, if there was no such evidence to infer collusion of the petitioner with other officials, till submission of first inquiry report, it was all the more necessary to collect additional evidence in that regard in the re-inquiry, as was directed. In the instant case, we find nothing in the counter-affidavit or on the record, which may show that after receipt of reply from the petitioner, on 27.11.2001, evidence was led by either side. 32. We are, therefore, of the view that the subsequent enquiry report stands vitiated for violation of the provisions of Rule 7 read with Rule 9(1) of the U.P. Government Servant (Di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onerated of both the charges. The allegation against the petitioner is of endorsing the papers on the basis of which the gate pass was issued by another officer. Whether the petitioner was in collusion with other officers and, as such, guilty of endorsing the papers for issuance of gate pass depends on several factors, like as to whether physical verification of a vehicle seeking a pass is to be carried out by an employee of a lower grade stationed at the window, as found in the first inquiry report, or by an officer like the petitioner. It also depends on the evidence whether the petitioner was duly informed about the cancellation of the registration of M/s. Bharat Traders or not. Admittedly, as per the record, the information about the cancellation of registration of M/s. Bharat Traders was entered on 07.08.1999 whereas the documents were cleared by the petitioner on 05/6.08.1999. Therefore, whether this information was wrongly entered on 07.08.1999 is a matter, which, again, requires leading of specific and detailed evidence. Admittedly, there is no allegation that the petitioner was responsible for receiving and entering of information. Another factor which would be relevant is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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