1993 PLP (C (PLC(CS))

(1) Where an Enquiry Officer is appointed the Authority shall‑‑ (a) frame a charge and communicate it to the accused together with statement of the allegations explaining the charge and any other relevant circumstances which are to be taken into consideration; (b) require the accused, within seven days from the day the charge has been communicated to him, to put in a written defence and to state at the same time whether he desires to be heard in person. (2) The Enquiry Officer shall inquire into the charge and may examine such oral or documentary evidence in support of the charge or in defence of the accused as may be considered necessary and the accused shall be entitled to cross‑examine the witness against him. (3) The Enquiry Officer shall hear the case from day‑to‑day and no adjournment shall be given except for reasons to be recorded in writing and where any adjournment is given‑‑ (a) it shall not be for a period of more than a week; and (b) the reasons there for shall be reported forthwith to the Authority. (4) Where the Enquiry Officer is satisfied that the accused is hampering, or attempting to hamper, the progress of the inquiry he shall administer a warning and if, thereafter, he is satisfied that the accused is acting in disregard of this warning he shall record a finding to that effect and proceed to complete the inquiry ex parte. (5) If the accused absents himself from the inquiry on medical grounds, he shall be deemed to have hampered or attempted to hamper the progress of the inquiry unless medical leave applied for by him is sanctioned on the recommendation of a Medical Officer nominated by the Authority: Provided that the Authority may, in his discretion, sanction medical leave upto seven days without the recommendation of the Medical Officer. (6) The Enquiry Officer shall within ten days of the conclusion of the proceedings or such longer period as may be allowed by the Authority, submit his findings and grounds thereof to the Authority."

3. We have perused the relevant record produced before us and observed that procedure as laid down in the above rule 7 was not complied with. No formal charge was communicated to the appellant together with statement of allegations. The appellant was not given any opportunity to defend the case during enquiry proceedings. It is also admitted fact that the appellant was not given copy of the enquiry report with a final show‑cause notice. The appellant had a right to‑ know as to which charge stood proved against him and this he could discover only‑ from a final show cause which is indispensable. The respondents in para 6 of "Grounds" in their written statement have taken a plea that "after issuing show‑cause notice and obtaining reply of the appellant another charge‑sheet was not necessary". We do not agree with the above arguments put forth by the respondents for the reasons that once the Authority in this case decided that in the light of facts of the case an enquiry should be conducted through an enquiry officer, he was required to ensure, that the procedure prescribed in rule 7 was followed. Rule 7(1)(a) makes it incumbent upon the Authority to frame a charge and communicate the same to the accused along-with statement of the allegations explaining the charge and any other relevant circumstances which are to be taken into consideration. The Enquiry Officer was also required to ensure that: (1) the procedure laid down in Rule 7(2) to (6) was strictly adhered to during the inquiry proceedings. (2) the enquiry proceedings being of judicial nature in terms of rule 8, he had recorded the statement of witnesses on oath. (3) the accused officer was allowed to cross‑examine the witnesses produced against him during the proceedings. (4) the accused officer was afforded reasonable opportunity to produce his defence. (5) the findings were recorded after due analysis and appreciation of evidence on record. We thus feel that while initiating departmental action against the appellant no proper procedure was observed as laid down in the abovesaid rules.

4. In the circumstances of the case, the impugned order of dismissal dated 22‑1‑1992 is not sustainable on the ground of procedural defect and is hence set aside with no order as to costs. The case is remanded back to the Authority concerned to proceed afresh against the appellant in accordance with the aforesaid rules. Pending the taking of fresh action the appellant will continue to remain under suspension until the competent authority decides otherwise. H.B.T./393/Sr.S Order accordingly.