TMI Blog2008 (8) TMI 1026X X X X Extracts X X X X X X X X Extracts X X X X ..... d to the U.P. Forest Corporation for felling of marked dead, dying and diseased trees. In the diary maintained by the Department, during the months of March and April, 1984, the respondent visited the above compartments regularly and certified that there was no illicit felling of trees in his beat during the period under reporting. On 23.5.1984, sub-Divisional Forest Officer, Nandhaur seized 27 logs of Sal bearing transit hammer mark of Dolpokhra Transit Barrier in Haldwani. Having seen the hammer marks on the seized logs, on 24.5.1984 the SDO directed Range Officer to trace the illicit felling of trees in and around Dolpokhra. On being questioned by the SDO, the respondent could not satisfy the SDO. Having confirmed the involvement of the respondent in the illicit felling of trees, the Division Forest Officer, Haldwani Forest Division by letter No. 40/25 dated 1.6.1984, suspended the respondent. On 19.12.1984, the Division Forest Officer served the charge sheet upon the respondent and the respondent gave his reply on 9.4.1985. Thereafter, enquiry was entrusted to Sri P.V. Lohni, who submitted his report on 16.11.1985 to the Divisional Forest Officer, Haldwani. On the basis of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d not disqualify them from holding the domestic enquiry. We are not prepared to accept this argument. If an officer himself sees the misconduct of a workman, it is desirable that the enquiry should be left to be held by some other person who does not claim to be an eyewitness of the impugned incident. As we have repeatedly emphasised, domestic enquiries must be conducted honestly and bona fide with a view to determine whether the charge framed against a particular employee is proved or not, and so, care must be taken to see that these enquiries do not become empty formalities. If an officer claims that he had himself seen the misconduct alleged against an employee, in fairness steps should be taken to see that the task of holding an enquiry is assigned to some other officer. How the knowledge claimed by the enquiry officer can vitiate the entire proceedings of the enquiry is illustrated by the present enquiry itself.... ...It is necessary to emphasise that in domestic enquiries, the employer should take steps first to lead evidence against the workman charged, give an opportunity to the workman to cross-examine the said evidence and then should the workman be asked whether he wants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ering the reply to the notice and deciding upon the penalty. What is dispensed with is the opportunity of making representation on the penalty proposed and not of opportunity of making representation on the report of the enquiry officer. The latter right was always there. But before the Forty-second Amendment of the Constitution, the point of time at which it was to be exercised had stood deferred till the second stage viz., the stage of considering the penalty. Till that time, the conclusions that the disciplinary authority might have arrived at both with regard to the guilt of the employee and the penalty to be imposed were only tentative. All that has happened after the Forty-second Amendment of the Constitution is to advance the point of time at which the representation of the employee against the enquiry officer's report would be considered. Now, the disciplinary authority has to consider the representation of the employee against the report before it arrives at its conclusion with regard to his guilt or innocence in respect of the charges. Article 311(2) says that the employee shall be given a reasonable opportunity of being heard in respect of the charges against him . T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all arrived at behind the back of the employee - even though such acceptance of findings is not recorded in the order of termination. That is why the misconduct is the foundation and not merely the motive in such cases. 9. In Syndicate Bank and Ors. v. Venkatesh Gururao Kurati (2006) ILLJ 988 SC, the following conclusion is relevant: 18. In our view, non-supply of documents on which the enquiry officer does not rely during the course of enquiry does not create any prejudice to the delinquent. It is only those documents, which are relied upon by the enquiry officer to arrive at his conclusion, the non-supply of which would cause prejudice, being violative of principles of natural justice. Even then, the non-supply of those documents prejudice the case of the delinquent officer must be established by the delinquent officer. It is well-settled law that the doctrine of principles of natural justice are not embodied rules. It cannot be put in a straitjacket formula. It depends upon the facts and circumstances of each case: To sustain the allegation of violation of principles of natural justice, one must establish that prejudice has been caused to him for non-observance of principles of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exure-P1) after furnishing certain factual details, the following charges have been levelled against the delinquent: Charge 1: You have concealed the illegal cutting which took place in Asani Block from your higher officials deliberately which caused huge financial loss to the department. Charge 2: You have not obeyed the orders of your higher officials and you have traveled leaving your working without any reason in arbitrary manner. Charge 3: You have shown negligence in discharging your duties. Though a detailed explanation has been submitted controverting the above charges, no enquiry in terms of the above-mentioned principles was ever conducted. On the other hand, one Mr. P.C. Lohani, Dy. Divisional Forest Officer, Nadhor 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 answers from the delinquent by putting some questions. It is clear that the Enquiry Officer himself has ..... X X X X Extracts X X X X X X X X Extracts X X X X
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