Punjab-Haryana High Court
Ram Parkash_ vs Union Of India And Others on 16 January, 2014
Bench: Sanjay Kishan Kaul, Arun Palli
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Civil Writ Petition No. 18873-CAT of 2001 (O&M)
Date of Decision: 16.01.2014
Ram Parkash_ ..Petitioner
Versus
Union of India and others ..Respondents
CORAM: HON'BLE MR. JUSTICE SANJAY KISHAN KAUL, CHIEF JUSTICE.
HON'BLE MR. JUSTICE ARUN PALLI
1. Whether Reporters of local papers may be allowed to see the judgment?
2. Whether to be referred to the Reporters or not ?
3. Whether the judgment should be reported in the Digest?
Present : Mr. Mohan Singla, Advocate for
Mr. ADS Bal, Advocate, for the petitioner.
Mr. Karminder Singh, Sr. Standing Counsel for Union of India-
respondents No.1 to 4.
****
ARUN PALLI J.
The petitioner, while working as Driver-cum-Mechanic Grade-II, was served with a charge-sheet on 27.10.1992, on the charges that 20 liters of diesel have been taken out of the official vehicle No. MRC-5245 which was under the charge of the petitioner and the same had been recovered. It was alleged that the petitioner had allowed a contractor man to take out that diesel from his vehicle on 25.08.1992 while he himself was present with the intention of misappropriation.
2. After the petitioner filed reply to the charge-sheet, an inquiry under Rule 9 of the Railways Servants (Discipline and Appeal) Rules, 1968 (hereinafter referred to as 'the Rules of 1968') was held. The Inquiry Officer submitted his report and found the petitioner guilty of the charges leveled against him. A notice was served on the petitioner for imposition of penalty informing him that he is reverted as a Driver at the lower stage in the scale Sharma Ravinder 2014.01.28 17:08 I attest to the accuracy and integrity of this document CWP No. 18873-CAT of 2001 2 of ` 950-1500 for a period of three years with cumulative effect. The departmental appeal preferred against the order of punishment failed before the Appellate Authority and was accordingly dismissed on 28.05.1993.
3. That the principal issue raised by the petitioner for consideration before the Tribunal was that concededly the respondents failed to appoint any Presenting Officer to present its case, though, the respondents could do so, under sub Rule 9(9)(c) of the Rules of 1968. Resultantly, the Inquiry Officer played a dual role of a Prosecutor and of a Judge. The inquiry proceedings were assailed being in flagrant violation of the principles of natural justice and on the ground of bias.
It may be expedient and necessary, at this stage, to refer to the specific averments set out by the petitioner in this regard, in the Original Application, filed before the Tribunal, which read as thus:-
"iv) The learned Inquiry Officer did not follow any procedure prescribed under the Railways Servants (Discipline and Appeal) Rules, 1968, for the reasons best known to him and adopted a peculiar procedure unknown to law. He not only acted as Inquiry Officer, but also acted as a Prosecutor on behalf of the department. Under Sub Rule 9(9)(C) of the ibid Rules, the competent authority, may by an order, in writing, appoint a Railway or any other Government servant, to be known as Presenting Officer, to present on behalf of the Department the case is support of the articles of charges, but the Department never appointed any Presenting Officer and this duty was also performed by the Inquiry Officer himself.
v) The Inquiry Officer in contravention of Rules 17(1) of the ibid Rules, first of all recorded the statement of Harjit Singh, driver, on 11.12.1992 and then put leading questions to him and put the whole case of the department and immediately thereafter, Inquiry Sharma Ravinder 2014.01.28 17:08 I attest to the accuracy and integrity of this document CWP No. 18873-CAT of 2001 3 Officer put searching questions to the applicant. The said Harjit Singh, witness, did not support the case of the department, at all on 11.12.1992, and the department served him with a charge-sheet vide No. 72/RCF/Mech/TPT-60 dated 2.1.1993. Again on 1.2.1992, i.e. after about one month of the service of charge-sheet to Harjit Singh he was recalled as a witness, and the Inquiry Officer examined him and put leading questions and also cross-examined the applicant. There was no request from the department to recall and re-examine Harjit Singh who was earlier examined as a witness on 11.12.199_. The procedure adopted by the Inquiry Officer is unknown to law. According to Rule 9(17) of the Railway Servants (Discipline and Appeal) Rule, 1960, the evidence in support of the Articles of charge is to be produced by the department on behalf of the Punishing Authority and the witnesses are to be examined by or on behalf the Presenting Officer, if any, and may be cross-examined by or on behalf of the Railway Servant. The procedure adopted by the Inquiry Officer is not only against the Rules, but also against the principle of natural justice. He did not examine the witnesses on oath.
vi) The Inquiry Officer, without any application or request from the department, of his own inspected the spot i.e. Katcha building to record a finding of guilt as is evident from the report of the Inquiry Officer annexed as Annexure A-4."
4. That in response to the afore extracted assertions and the allegations made by the petitioner, the respondents submitted an extremely vague and uncertain response as is evident from the relevant paragraphs of the written statement before the Tribunal, as extracted below:-
"iv) The assertions made in the para are vague and denied. However, it is submitted that the enquiry was conducted as per Discipline and Appeal Rules.Sharma Ravinder 2014.01.28 17:08 I attest to the accuracy and integrity of this document CWP No. 18873-CAT of 2001 4
The appointment of Presenting Officer is not mandatory. The Enquiry Officer can put questions to the delinquent employee to ascertain the true facts.
v) The assertions made in the para are denied.
However, it is not denied that in different case, charge-sheets have been issued to Shri Harjeet Singh which has no relevance with this case. The allegations of putting leading and searching questions by the enquiry officer are denied. The statement of the witnesses was recorded strictly in compliance with the Rules.
vi) The para is not denied. However, it is mentioned that Enquiry Officer does not need any permission to inspect any area inside RCF premises to know true position of the case. The inspection of spot is not barred by any provisions of D&A Rules. The Enquiry Officer has acted more diligently than mere relying on the documents alone."
5. That a reading of the order, which is being assailed before us, reveals that the Tribunal perused the original file of the inquiry proceedings and was of the view that the allegation that no Presenting Officer was appointed in the present case would not vitiate the proceedings. Rule 9(9)(c) afore-discussed provides that the Disciplinary Authority may appoint a Railway or any other Government Servant to be known as the Presenting Officer to present the case on its behalf in support of the articles of charges. However, if the Presenting Officer is not appointed, that alone will not vest any right in favour of the charged official unless he can show the prejudice caused on account of such non-appointment. It was further observed that the examination of the records shows that the petitioner was duly afforded every opportunity in the course of the inquiry. Spot inspection by the Inquiry Officer with an intent to understand the situation and for proper adjudication, which was his duty while functioning as a quasi-judicial Sharma Ravinder 2014.01.28 17:08 I attest to the accuracy and integrity of this document CWP No. 18873-CAT of 2001 5 authority, does not vitiate the proceedings. Resultantly, the Tribunal dismissed the application (O.A.) of the petitioner being devoid of merits.
This is how the petitioner is before this Court and assailed the order passed by the Tribunal dated 13.03.2001 (Annexure P-3) in the instant petition.
6. We have heard learned counsels for the parties and have perused the records.
7. Learned counsel for the petitioner submits that concededly no Presenting Officer was appointed by the respondents to present its case before the Inquiry Officer. The petitioner had set out a specific case before the Tribunal that the Inquiry Officer, in the situation, also played a role of a Presenting Officer. Thus, in these circumstances, he could not have been presumed to have acted without bias against the petitioner. He submits that on this short ground alone, the Inquiry proceedings in its entirety stand vitiated. In support of his submissions, learned counsel has placed reliance upon a decision of this Court reported as State of Punjab and another Vs. Mam Chand 1993(3) Recent Services Judgments, 238 and also a Division Bench judgment of Madhya Pradesh High Court, namely, Union of India through its Secretary, Ministry of Railway, New Delhi and others Vs. Mohd. Naseem Siddiqui 2005(1) LLJ 931.
8. We have gone through the Division Bench judgment of the High Court of Madhya Pradesh in Mohd. Naseem Siddiqui's case (supra). A reading of the same suggests that the question involved for consideration before the Division Bench of the High Court of Madhya Pradesh was similar as is the case here. Even in the said case, Mohd. Naseem Siddiqui, who was the respondent in the writ petition before the High Court and had assailed the domestic inquiry by filing an O.A. before the Central Administrative Sharma Ravinder 2014.01.28 17:08 I attest to the accuracy and integrity of this document CWP No. 18873-CAT of 2001 6 Tribunal, had, inter-alia, contended that since the Disciplinary Authority did not appoint any Presenting Officer, the Inquiry Officer himself acted as the Presenting Officer and conducted regular examination-in-chief of the prosecution witnesses and put questions suggestive of answers supporting the charges. He also cross examined the defence witnesses. Thus, the action of the Inquiry Officer acting also as the Presenting Officer amounts to Judge acting as a prosecutor which is opposed to the principles of natural justice.
9. The Division Bench on a thorough consideration of law on the issue observed that one of the fundamental principles of natural justice is that no man shall be a Judge in his own cause. It was further observed that this principle consists of seven well recognized facets which read as thus:-
"7 (i) The adjudicator shall be impartial and free from bias,
ii) The adjudicator shall not be the prosecutor,
iii) The complainant shall not be an adjudicator,
iv) A witness cannot be the Adjudicator,
v) The Adjudicator must not import his personal knowledge of the facts of the case while inquiring into charges,
vi) The Adjudicator shall not decide on the dictates of his Superiors or others,
vii) The Adjudicator shall decide the issue with reference to material on record and not reference to extraneous material or on extraneous considerations. If any one of these fundamental rules is breached, the inquiry will be vitiated.
We also find that in para No. 9 of the judgment cited supra, the Division Bench had made extremely crucial observations and thus the same are equally essential to be referred to and are accordingly reproduced hither to below:-
Sharma Ravinder2014.01.28 17:08 I attest to the accuracy and integrity of this document CWP No. 18873-CAT of 2001 7
"9. A domestic inquiry must be held by an unbiased person who is unconnected with the incident so that he can be impartial and objective in deciding the subject matters of inquiry. He should have an open mind till the inquiry is completed and should neither act with bias nor give an impression of bias. Where the Inquiry Officer acts as the Presenting Officer, bias can be presumed. At all events, it clearly gives an impression of bias. An Inquiry Officer is in position of a Judge or Adjudicator. The Presenting Officer is in the position of a Prosecutor. If the Inquiry Officer acts as a Presenting Officer, then it would amount to Judge acting as the prosecutor. When the Inquiry Officer conducts the examination-in- chief of the prosecution witnesses and leads them through the facts so as to present the case of the disciplinary authority against the employee or cross- examines the delinquent employee or his witnesses to establish the case of the employer/disciplinary authority evidently, the Inquiry Officer cannot be said to have an open mind. The very fact that he presents the case of the employer and supports the case of the employer is sufficient to hold that the Inquiry Officer does not have an open mind."
In the final analysis, the Division Bench summarized the entire principle in five separate categories which read as thus:-
"16 (i) The Inquiry Officer, who is in the position of a Judge shall not act as a Presenting Officer, who is in the position of a prosecutor.
(ii) It is not necessary for the Disciplinary Authority to appoint a Presenting Officer in each and every inquiry. Non- appointment of a Presenting Officer, by Sharma Ravinder 2014.01.28 17:08 itself will not vitiate the inquiry.I attest to the accuracy and integrity of this document CWP No. 18873-CAT of 2001 8
(iii) The Inquiry Officer, with a view to arrive at the truth or to obtain clarifications, can put questions to the prosecution witnesses as also the defence witnesses. In the absence of a Presenting Officer, if the Inquiry Officer puts any questions to the prosecution witnesses to elicit the facts, he should thereafter permit the delinquent employee to cross-
examine such witnesses on those clarifications.
(iv) If the Inquiry Officer conducts a regular examination-in-chief by leading the prosecution witnesses through the prosecution case, or puts leading questions to the departmental witnesses pregnant with answers, or cross-examines the defence witnesses or puts suggestive questions to establish the prosecution case employee, the Inquiry Officer acts as prosecutor thereby vitiating the inquiry.
(v) As absence of a Presenting Officer by itself will not vitiate the inquiry and it is recognised that the Inquiry Officer can put questions to any or all witnesses to elicit the truth, the question whether an Inquiry Officer acted as a Presenting Officer, will have to be decided with reference to the manner in which the evidence is let in and recorded in the inquiry."
10. That a bare analysis of the order being assailed before us, particularly in the wake of the ratio of law recorded by the Division Bench (supra), leads the matter to an irresistible and inescapable conclusion that the Tribunal failed to examine and deal with the issue in question to its required length and desired depth in law.
11. The petitioner had pleaded before the Tribunal in no uncertain terms that the respondents had failed to appoint any Presenting Officer. Thus, the Inquiry Officer not only acted as an Inquiry Officer but also as a Prosecutor on behalf of the Department. The Inquiry Officer in Sharma Ravinder 2014.01.28 17:08 I attest to the accuracy and integrity of this document CWP No. 18873-CAT of 2001 9 contravention of Rule 17 (i) of the Rules of 1968 firstly recorded the statement of Harjit Singh, driver, on 11.12.1992 and then put leading questions to him. Not just that, he put the whole case of the Department and immediately thereafter, the Inquiry Officer put searching questions to the petitioner. Since said Harjit Singh, witness, did not support the case of the department at all, the Department served him with a charge-sheet vide No. 72/RCF/Mech/TPT-60 dated 2.1.1993. He was again recalled as a witness and the Inquiry Officer not only examined him but put leading questions and also cross examined the petitioner. This was so, particularly when there was no request from the Department to recall and re-examine Harjit Singh. It just does not stop here. The Inquiry Officer without there being any application or request by the Department, of his own, inspected the spot i.e. kacha building to record a finding of guilt.
We may reiterate that the respondents in the written statement before the Tribunal had not seriously disputed these assertions and allegations. We may also notice that even in the instant petition, the petitioner laid out a detailed challenge to the inquiry proceedings on the same ground. However, no written statement to the instant petition was filed by the respondents to controvert the same.
12. In view of the above, we unhesitatingly record that the Inquiry Officer, in the matter in hand, indeed actively and diligently played a dual role of a Prosecutor and also of a Judge. We also record that the Tribunal failed to consider the issue in question in the context it ought to have been dealt with. At this stage, we are also reminded of an age old maxim 'nemo debet esse iudex in propria causa' which means that no man shall be a Judge in his own cause, or the deciding authority must be impartial and without bias.
Sharma Ravinder2014.01.28 17:08 I attest to the accuracy and integrity of this document CWP No. 18873-CAT of 2001 10
We may also add, the Hon'ble Supreme Court in case Mineral Development Ltd. Vs. State of Bihar 1960(2) SCR 609 has held that the principles governing the 'doctrine of bias' vis-à-vis judicial Tribunals are well settled and they are : (1) no man shall be a Judge in his own cause; (2) justice should not only he done but manifestly and undoubtedly seen to be done. It was further held that these principles are equally applicable to the authorities, though they are not Courts of justice or judicial Tribunals, who have to act judicially in deciding the rights of others, i.e. authorities who are empowered to discharge quasi-judicial functions.
13. In view of the above, we find that the matter in question squarely falls and is covered by Clause (i) and (iv) of the principles, culled out by the Division Bench of the High Court of Madhya Pradesh (as extracted at page No. 7, para No.9 above). Hence the inquiry in question has to meet the inevitable result and is accordingly vitiated on account of bias.
14. This being so, the present petition is allowed. The impugned orders dated 13.02.2001 (Annexure P-3) are set aside. The petitioner is held entitled to all the consequential benefits. However, we reserve liberty for the respondents to proceed with the inquiry, if they so desire, from an appropriate stage in law.
Parties are left to bear their own costs.
(SANJAY KISHAN KAUL) (ARUN PALLI)
CHIEF JUSTICE JUDGE
16.01.2014
'ravinder'
Whether to be referred to the Reporter : √
Yes No.
Sharma Ravinder
2014.01.28 17:08
I attest to the accuracy and
integrity of this document