Case BriefsHigh Courts

Uttaranchal High Court: The Division Bench of Narayan Singh Dhanik and Ramesh Chandra Khulbe, JJ., disposed of a writ petition while giving certain directions in the matter filed by an officer in the Higher Judicial Service of the State of Uttarakhand seeking a writ of certiorari to quash the orders dated 24-11-2020 and 9-1-2021.

The petitioner was appointed as the Civil Judge (Junior Division)/Judicial Magistrate, Ist Class in the State of Uttarakhand in September, 2003 and he had joined his duties on 23-9-2003. He was promoted in the High Judicial Cadre in the year 2011. When he was posted as Ist Additional District Judge, Haridwar, a complaint was lodged against him on 19-3-2018 for the incidents allegedly happened on 31-1-2018 and 2-2-2018. The petitioner was placed under suspension by the High Court vide its order dated 22-4-2018. A chargesheet was thereafter issued to him and a sitting Judge of this Court was appointed as Enquiry Officer to enquire into the charges levelled against the petitioner.

The Court noticed that the Presenting Officer did not admit the official documents which were issued on the administrative side by the District Judge, Haridwar. Same was the position regarding the e-mail which was sent by the delinquent officer to the official e-mail account of the Hon’ble High Court. The Enquiry Officer had rejected the said application on the ground that none of the documents, in question, had been filed by the delinquent officer. The Court mentioned that in the Supreme Court judgment of M.V. Bijlani v. Union of India, (2006) 5 SCC 88 it was held that departmental enquiry was a quasi-criminal in nature. The Court further explained that the distinction between the departmental enquiry and a criminal trial has been considered elaborately by the Supreme Court in Karnataka Power Transmission Corporation v. Sri C. Nagarju, (2019) 10 SCC 367 and held that this Court would, ordinarily, not interdict a departmental enquiry during its progress, as it is always open to the delinquent officer to question the mode and manner, in which the disciplinary enquiry is conducted, even after the enquiry is concluded and before the final order is passed. The court held that although the disciplinary proceedings are quasi-criminal in nature, the charges are not required to be proved like a criminal trial i.e. beyond all reasonable doubt.

Bench while disposing of the petition held that since the above documents had already been filed by the delinquent officer before the Enquiry Officer, one more opportunity should be given to the delinquent officer to prove the said documents submitted in defence while issuing certain directions:

  • The Registrar General will provide the video recording/CCTV footage of the enquiry proceedings to the delinquent officer within a period of ten days from the date of completion of the enquiry proceedings. The cost thereof shall be borne by the delinquent officer.
  • The Presenting Officer will verify the genuineness of the documents dated 13.11.2017, 31.1.2018 and 19.3.2018 as mentioned in the impugned orders within a period of three days and the Presenting Officer will submit its report regarding genuineness of these documents before the Enquiry Officer on or before 5th February, 2021.
  • The Presenting Officer will produce the concerned official of the Computer Section of the High Court before the Enquiry Officer on 5.2.2021 as the defence witness. In case the Enquiry Officer is not available on 5.2.2021, the Enquiry Officer would be at liberty to fix another date for recording the statement of the said witness.

[Kanwar Amninder Singh v. High Court of Uttarakhand, 2021 SCC OnLine Utt 157, decided on 01-02-2021]

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Case BriefsHigh Courts

Uttaranchal High Court: Lok Pal Singh, J., allowed a writ petition which was filed in the nature of the certiorari, seeking quashing of the order passed by the Uttarakhand Technical Education Board (Respondent 3) and subsequent order by the Additional Director of Education.

An advertisement was issued by Respondent 3 inviting applications for appointment on the, including Mathematics, post of Assistant Teacher L.T. Grade in various subjects at both the Region i.e. Garhwal region and Kumaon region. Petitioners had applied for the post of Assistant Teacher L.T. Grade (Maths) and had given their option for Kumaon region and second option for Garhwal region. After completion of counseling, the petitioners, on being selected against the vacant posts, as per their merits and preference, were selected for Kumaon Region by the Selecting Body. On the basis of the recommendation of the Selecting Body, the Appointing Authority, namely, the Additional Director (Secondary Education), Kumaon Mandal, appointed the petitioners as Assistant Teacher L.T. Grade at Kumaon Region. Petitioners had joined their duties as Assistant Teacher L.T. Grade at their respective postings. Thereafter, Respondent 5 raised his grievance before respondent 3 that as per his merit and option, he was entitled for Kumaon Region but he has been allotted Garhwal Region and the candidates who were less meritorious to him, belonging to same category were allotted Kumaon Region. When his case was not considered he had filed a writ where the co-ordinate Bench of this Court had directed respondent 3 to decide the representation of the petitioners. Consequently, respondent 3 passed an order stating that the four candidates who were lower in merit; their region is being changed with the candidates who were higher in merit. Thus, the instant petition was filed.

The counsel for the petitioner, Maneesh Bisht submitted that the Co-ordinate Bench of this Court had only directed to decide the representation of respondent 5 and that it was incumbent upon respondent 3 to give an opportunity of hearing to the petitioners at that point of time. He further submitted that the petitioners had joined their services at the place where they have been appointed at the recommendation of respondent 3 and which after being implemented the respondent 3 becomes functus officio.

The Court while allowing the appeal explained that it is a fundamental rule of law that no decision must be taken which will affect the rights of any person without first giving him an opportunity of putting forward his case. In the present case, while passing the impugned order, opportunity of hearing was not given to the petitioners, which was against the principle of natural justice and the order impugned is not sustainable in the eye of the law. Petitioners were permitted to continue their services in Kumaon Region.[Kamal Kapri v. State of Uttarakhand, 2019 SCC OnLine Utt 1832, decided on 13-12-2019]

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Case BriefsHigh Courts

Uttaranchal High Court: N.S. Dhanik, J., partly allowed a criminal revision which was preferred against the Judgment and order passed by the District and Sessions Judge whereby he had confirmed the judgment and order passed by Chief Judicial Magistrate and also against the judgment and order passed by Chief Judicial Magistrate in a Criminal Case under Section 3/7 of the Essential Commodities Act, whereby the revisionist were convicted for the offence punishable under Section 3/7 of the Essential Commodities Act and sentenced to undergo one-year simple imprisonment and to pay a fine of Rs 5,000.

The informant lodged an FIR alleging therein that on information, the informant came to know that two Nepali people who often smuggling the cement, compost, kerosene oil, etc from Tankpur to Nepal upon their motorcycles. The informant along with other police officials reached the Gandhi Park and seeing two persons who were tying the plastics canes in their motorcycles outside the warehouse of Naresh Chandra Gupta. Both tried to run away, but they were arrested on the spot. From the possession of the accused persons, Jaricanes were recovered and on asking regarding the said recovery, they told that they had purchased the Kerosene oil from the Naresh Chandra Gupta (present revisionist) and 20 litres kerosene oil was also recovered from the warehouse of Naresh Chandra Gupta. After investigation, the charge sheet against the accused revisionist for the offence punishable under Section 3/7 of the Essential Commodities Act was filed. The Counsel for the revisionist, Mr. Bhuwanesh Joshi submitted his arguments only on the quantum of sentence. He submitted that the revisionist had served about 27 days in the jail and that he was a poor person and the matter relates back to the year 2008.

The Court while partly allowing the revision modified and reduced the sentence to three months considering the contention that matter related back to the year 2008 and ends of justice would be sub-served if the jail sentence of the revisionist is reduced adjusting the period already undergone by him, although the sentence of the fine was enhanced from Rs 5,000 to Rs 10,000.[Naresh Chandra Gupta v. State of Uttarakhand, 2020 SCC OnLine Utt 550, decided on 16-09-2020]

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Case BriefsHigh Courts

Uttaranchal High Court: The Uttaranchal High Court has banned all water sports, paragliding, and white river rafting in the State until a policy is framed to regulate these activities. The Court directed the State Government to “prepare a transparent policy in this regard within a period of two weeks”. The Court also took note of rafting deaths every year due to the capsizing of boat and said that it should only be permitted to be managed by highly trained professionals.

In this case, the petitioner brought to light the fact that the State Government was issuing illegal leases in favour of the private respondents in the river bed of Ganga. According to the petitioner, the temporary structures were being permitted to be set up on the banks of river Ganga and rafting was being carried out by the private entrepreneurs without any law. Court pointed out the dangerous and serious nature of these sports if not regulated while highlighting the requirement of their regulation. Besides this, the Court observed that the issue of environment pollution and ecology of the river and the surrounding areas could not be ignored. The Court was shocked to know that the State Government was permitting camping sites on the river beds.

The Court reprimanded State Government that river beds cannot be leased out for a song and pressed that there has to be transparent procedure for inviting the applications after fixing the minimum rates for using the water. The Court observed that the tourism must be promoted but it is required to be regulated as the sports for pleasure cannot be permitted to end in disaster. Therefore, the Court recommended State Government to make suitable legislation for regulating the white river rafting, paragliding, and other water sports throughout the state. [Hari Om Kashyap v. State of Uttarakhand, WP PIL No. 27 of 2014, order dated 18.06.2018]