Uttaranchal High Court: The Division Bench of Sudhanshu Dhulia and Alok Kumar Verma, JJ., dismissed a writ petition which was filed in the nature of certiorari and mandamus for quashing of certain orders passed by the enquiry officer and with a prayer to change the enquiry officer on grounds of bias.
The petitioner who is a judicial officer is facing departmental proceedings before an Enquiry Officer, who is a sitting Judge of this Court. By the means of the petition he had challenged the charge-sheet which has been filed against him, the second challenge was regarding the order dated 01-10-2020, by which the defence of the Delinquent Officer has been closed by the Enquiry Officer as he was not prepared to place his defence on the date fixed and sought an adjournment and the third challenge being to change of the Enquiry Officer. A complaint was filed against the petitioner by a IV class employee alleging that the petitioner made an attempt to sodomise him which led to departmental proceeding against him. The counsel for the petitioner, P.S. Patwalia submitted that he was not pressing his challenge to the charge- sheet but liberty may be given to the petitioner to challenge the same, in case the occasion so arises. He further submitted that the Committee, constituted by the Full Court also had the present Enquiry Officer as its member and therefore the Enquiry Officer was biased against him, since he recommended for a full Departmental proceeding due to which petitioner moved an application to change the Enquiry Officer which was rejected by the Chief Justice. He further that five applications of the petitioner, including the application for recusal were rejected by the Enquiry Officer and this shows that the Enquiry Officer is biased against the petitioner.
The Court held that it would not be proper to change the Enquiry Officer at that stage of the inquiry. The Court quoted the observations of the Division Bench of this Court about the change of Enquiry Officer in Writ Petition (S/B) No. 442 of 2019, where the earlier petition of the petitioner (which was primarily for seeking a writ of certiorari to quash the order passed by the Enquiry Officer dated 23-08-2019), was dismissed on 25-09-2019,
“28. Since the claim of the petitioner that he has suffered prejudice on the failure of the Enquiry Officer to defer cross-examination of PW2 is required to be examined by the Disciplinary Authority in the first instance after completion of the inquiry, and as this Court would ordinarily not interfere with the inquiry proceedings at an interlocutory stage, we see no reason to entertain this Writ Petition. While declaring the law in this regard on whether or not prejudice is suffered on the failure of the Enquiry Officer to defer cross-examination of a witness, suffice it to make it clear that it is open to the petitioner on completion of the inquiry, and on his being afforded an opportunity to put forth his objections to the inquiry report, to also raise this contention of having suffered prejudice, on the failure of the Enquiry Officer to defer cross-examination of PW2. We have no reason to doubt that, on any such objection being raised, the Disciplinary Authority would consider such contentions uninfluenced by any observations made in this order.”
The Court while dismissing the petition stated that after perusal of records they find that Enquiry Officer has shown a lenient approach in giving opportunity to the petitioner, considering the numbers of adjournments granted to the petitioner. The Court further added that they have no doubt as to any question of bias as alleged, nor do they feel that any principles of natural justice and fair play will be violated if the learned Enquiry Officer continues to hear the matter.[Kanwar Amninder Singh v. High Court of Uttaranchal, 2020 SCC OnLine Utt 722, decided on 31-10-2020]
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