Srinagar: While quashing an order withholding promotion to an official of J&K Board of School Education, High Court of J&K and Ladakh has held that the penalty imposed on him in absence of a departmental “regular enquiry” was arbitrary and abuse of the power.
The order debarring the petitioner, a senior assistant, from any further promotion for a period of two years with effect from the date he became eligible for the next promotion, was passed on 28 July 2009 by the Secretary J&K State Board of School Education Srinagar. The penalty so imposed on the offical was for dereliction of his duty.
“The enquiry which was held in the matter was a preliminary enquiry which is always done in the cases of such incidents to find out who was responsible for the same,” a bench of Justice M. A. Chowdhary said.
While the court underlined that the “findings reached by the enquiry committee, as a result of the preliminary enquiry, cannot be said to be findings made against the petitioner in a departmental enquiry initiated against him for alleged negligence of duty or violation of the statutory rules, it said: “The authorities concerned took the view that the departmental enquiry into the incident was enough but that clearly is not right.” With regard to the departmental enquiry, the court said, nobody is accused of negligence or dereliction of duty. “It is a kind of investigation made by the department under statutory rules.”
The purpose behind holding preliminary enquiry, the court said, was only to take prima facie view as to whether there can be some substance in the allegations made against an employee, which may warrant regular enquiry.
The Court pointed out that the “evidence recorded in the preliminary enquiry cannot be used in regular departmental enquiry, as the delinquent is not associated with it and opportunity to cross examine the persons examined in such enquiry is not given.”
While the court said the inquiry cannot be conducted with a closed mind, it said the enquiry officer has to be unbiased.
“The rules of natural justice are required to be observed to ensure not only that justice is done but it is manifestly seen to be done”.
Underscoring that the object of rules of natural justice is to ensure that a government servant is treated fairly in proceedings which may culminate in imposition of punishment, the court said: “Holding departmental proceedings and recording finding of guilt against any delinquent and imposing punishment for the same, is quasi-judicial function and not administrative function.”
The Court came to the conclusion that the penalty of withholding promotion of the petitioner was “arbitrary” and “not sustainable” for the reason that no departmental regular enquiry was conducted into his alleged misconduct.
The Court pointed out that the petitioner was stated to have superannuated and there was no question of conducting any enquiry against him at this stage.
“The penalty imposed on the petitioner in absence of being held guilty in regular enquiry is the abuse of power by the respondents (JKBOSE) and this arbitrary action on the part of the respondents cannot be upheld,” the court said.