Case title: Parveen Kumar Vs Export Inspection Council & Ors.
Case no.: W.P. (C) 3940/2017 & CM APPL.14022/2021
Decision on: March 6th, 2024
Quoram: Justice Tushar Rao Gedela
Facts of the case
The Petitioner, Parveen Kumar was working as a Technical Officer in Export Inspection Agency under the respondent office. The Petitioner, in the course of his employment exposed a recruitment scam in his department in which sixteen Assistant Director was recruited fraudulently. In 2013, the Petitioner was directed to proceed to sub-office (SO), Kanpur to hold charge but he requested to not depute him on tour to SO Kanpur. The same was rejected by the respondents and the Petitioner stood relieved from EIA Delhi Head Office. Further, he filed the tour programme which was approved by the respondent.
In 2014, the Respondent again directed the Petitioner to be deputed on tour to SO, Kanpur till further orders. He immediately filed a tour programme but the same was rejected for not having a termination date of tour. The respondents repeatedly intimated the petitioner to rectify the improper tour programme but the petitioner was unable to do it and requested the respondents to co-operate and help him in the same. However, the respondents issued a charge memorandum against the Petitioner alleging disobedience of the order.
A disciplinary enquiry was initiated against the Petitioner in which he made a representation against the illegal appointment of an ineligible person, being a retired public servant, as Inquiry Officer in contravention of Rule 11 of the EIA Rules. But, the representation was rejected by the Respondent. The Disciplinary Authority passed an order of penalty of reduction in rank from Technical Officer to Lower Post of Junior Scientific Assistant against the petitioner. Consequently, the Petitioner preferred a statutory appeal which was dismissed by the Appellate Authority. Aggrieved by the same, the Petitioner filed the present Writ Petition, challenging the impugned orders of the Disciplinary Authority and the Appellate Authority.
Contentions of the Petitioner
Praveen Kumar appearing in person challenged the Disciplinary Authority (DA) primarily on two grounds which violated the Principles of Natural Justice and Rules and Regulations of the Export Inspection Agency (EIA). He submitted that the appointment of the Inquiry Officer was invalid as it violated Rule 11 (2) of the respondent (EIA Rules). Rule 11(2) prescribes the Inquiry Officer to be a “Public Servant” but submitted that the Inquiry Officer in the present case was a retired employee and was not in active duty. As such, retired employees cannot be called a Public Servant. Further, the petitioner contended that he was not granted any opportunity of hearing by the Disciplinary Authority before passing the impugned order, because according to Rule 11 (4) of the EIA Rules, after the written Statement of Defence is submitted, if the Charged Officer seeks hearing, the Disciplinary Authority must grant such hearing before passing the final order. However, he was not granted any Personal Hearing in spite of his requisition, which according to the petitioner not only violated the statutory rules but also the well settled Principles of Natural Justice.
Contentions of the Respondents
The Counsel, on the contrary submitted that even the retired officer can be construed as a public servant and as such, the Inquiry Officer was appointed is in accordance with the EIA Rules. The Inquiry Officer was paid remuneration for the purposes of conducting inquiry against the Petitioner who is a public servant and the disciplinary proceedings itself would fall within the public duty of the Respondent. Further, with respect to the violation of Rule 11(4) the Counsel submitted that there was no defence raised by the Petitioner in the defence statement except making allegations except against the officers and authorities. He opined that if personal hearing was granted, the Petitioner would have simply continued the tirade of baseless allegations and thus, the denial of the same cannot be termed as a violation of the said rule.
Court’s Analysis and Judgement
The Court considering the arguments of the parties notes that the issue in present petition revolves around the interpretation of the provisions of Rule 11(2) and Rule 11 (4) of the EIA Rules, 1978.
The Bench, on perusal of Rule 11(2) of the EIA Rules, asserted two key aspects. According to the rule, firstly, the Disciplinary Authority may itself inquire into the truth of any imputation of misconduct against agency employee; and secondly, that it may appoint under that sub rule ‘a public servant’ to inquire into such truth thereof. The court adopting a plain and simple reading of the provision emphasized that the term such person / Inquiry Officer must be a servant of the public and not a person who ‘was’ a servant of the public and thereby rejected the argument of the respondent. The Inquiry Officer, who was a retired officer of the respondent, did not fulfil the criteria of a ‘public servant’ and held such appointment to be violative of Rule 11 (2) of the EIA Rules. Thus, it ruled that a public servant occupying the position of Inquiry Officer cannot be a retired person.
The Court further adjudicated on the issue of violation of the Rule 11(4) of the EIA Rules wherein the Charged Officer was permitted to seek personal hearing before the DA. The said Rule prescribed the e procedure as to how the DA would proceed after the conclusion of the Inquiry Officer’s report. The Court referring to the rule asserted that the DA was mandated to afford the Charged Officer (CO) an opportunity to tender a written Statement of Defence against the Articles of Charge and the proposed penalty. Moreover, even in accordance with the principles of natural justice the DA ought to afford an opportunity of personal hearing to the CO, if he desires. It highlighted that the opportunity of personal hearing is not a mere formality. It is intrinsic and intertwined not only with the disciplinary proceedings but also with the principles of natural justice. But however, in the instant case it was observed that even on the receipt of requisition no such an opportunity was afforded to the petitioner by the respondent, thus violating Rule 11 (4) of the EIA Rules, 1978.
The Delhi High Court in view of the above violations remitted the matter back to the Disciplinary Authority for adjudication.
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Judgement Reviewed by – Keerthi K
