Delhi High Court
Nahar Singh vs Union Of India & Others on 30 July, 1991
Equivalent citations: 1991(21)DRJ171, (1992)IILLJ573DEL
Author: B.N. Kirpal
Bench: Devendra Kumar Jain, B.N. Kirpal
JUDGMENT B.N. Kirpal, J.
1. This is a Letters Patent Appeal where by the appellant challenges judgment of the learned Single Judge who had dismissed the appellant's writ petition which had sought to quash the order dated January 21, 1983 passed by the Deputy Commissioner of Police, Delhi setting aside the departmental enquiry against the appellant and directing the ab initio initiation of disciplinary proceedings against the appellant.
2. On an enquiry conducted by the Vigilance Branch it has been found that Constable Nahar Singh had appeared for 'A' list test on May 12, 1978 for selection to Lower School Course but could not succeed as per the result declared on February 8, 1979. Constable Nahar Singh submitted an application on March 31, 1979 to the Additional Commissioner of Police(A), through proper channel, requesting that he was given 33 makes for the service record, whereas he deserved for 39 marks as he had no major or minor punishment to his credit. On examination of his Fauji Missal and character roll by the office of the Deputy Commissioner of Police, Central District, Delhi, received from West District Office, it was noticed that all the punishment paper appealed in the Fauji Missal had been detached. The constable had four warnings and had also been given Punishment Drill four times. The Index form had also been changed and repaged. Pages 23 to 28 and 37 to 43 were missing. Page 11 containing entry of 15 days Punishment Drill in the character roll had been found torn. Constable Nahar Singh was working as main diarist in the West District Office during this period, whereas constable Daya Chand was posted as Fauji Missal Clerk. There is a suspicion that the above misconduct has been done by them jointly. With these averments, the Disciplinary Authority by an order dated January 7, 1980 directed under Section 21 of the Delhi Police Act, 1978, that the department enquiry against the petitioner and Constable Daya Chand be initiated and conducted after observing all usual formalities. In pursuance of this order, summary of allegations were served on the petitioner on May 2, 1981. These are :
"It is alleged that Constable Daya Chand No. 657/W was posted as Fauji Missal Clerk in the office of DCP West Dist., during August '78 and before the April 18, 1979. During this period all the punishment papers appended in the Fauji Missal of Constable Nahar Singh No. 455/W had been detached. The index form had also been changed and repaged. Page Nos. 23 to 28 and 37 to 40 are missing. Page No. 11 pertaining to the enquiry of 15 days Punishment Drill in the character rolls had been found torn. There is a suspicion that misconduct had been done by you Constable Daya Chand No. 657/W in connivance with Constable Nahar Singh No. 455/W."
The Enquiry Officer in due course framed a charge on January 5, 1982 to the following effect :
"I, Inspr. Hawa Singh S.I./West District Lines, charge you, Const. Daya Chand No. 657/W that while you posted as Fauji Missal Clerk in the Office of DCP/West District, all the punishment papers appended in the Fauji Missal of Constable Nahar Singh No. 455/389/W had been detached during this period. The index form had been changed and repaged. Page No. 23 to 28 and 37 to 40 are missing. Page No. 11 pertaining to the entry of 15 days Punishment Drill in the character rolls had been found torn. This had been done by you at the instance of Const. Nahar Singh No. 455/389/W after Const. Nahar Singh No. 455/389/W had been unsuccessful in the selection test for Lower school Course held on May 12, 1978 and after later on Const. Nahar Singh No. 455/389/W moved an application for re-examination of his Character roll Marks. This misconduct had been done by you Const. Daya Chand No. 657/W posted as Main Diarist in the same office at that time.
You, both Const. Daya Chand No. 657/W and Const. Nahar Singh No. 455/389/W, have thus committed gross mis-conduct and remissness, which renders you both liable for under Section 21 of D.P. Act, 1978."
3. The Enquiry Officer held the enquiry, recorded the evidence of the parties, took the defense evidence after the framing of the charge and heard the parties. The Enquiry Officer found that there is ample circumstantial evidence on the file which go to presume that the papers were removed by Constable Nahar Singh from his Fauji Missal and character rolls, that no doubt there is no direct evidence against Constable Nahar Singh but his conduct before and after the occurrence is highly important i.e. his posting in the same office, sitting late in the evening and coming early in the morning, his easy access to the files and later on submitting an application to Additional Commissioner of Police (Administration), Delhi through DCP/West for remarking of record marks allotted to him in the 'A' List test; that all these circumstances are further backed by a strong motive which is very clear in getting more marks in the remarking after removing the punishment papers and that his motive is clearly established during the enquiry. The Enquiry Officer held that the charge against the appellant of removing the papers from his files is established on the basis of circumstantial evidence.
4. When the finding of the Enquiry Officer were submitted to the Disciplinary Authority, it was found that while issuing of the summary of allegations to the appellant, there was failure to incorporate the details of allegations, ordered vide office order dated January 7, 1980 established by vigilance enquiry. It was also found that the Enquiry Officer had not correctly framed the charge against the appellant. A proposal was made to withdraw the charge sheet and to order de novo proceedings from the stage of the charge. The Disciplinary Authority by order dated November 18, 1982 directed initiation of de novo departmental proceedings against the appellant from the date of charge.
5. When the matter was entrusted to the Enquiry Officer, it was felt entrusted to the Enquiry officer, it was felt that the summary of allegations against the appellant had not been correctly framed and the departmental enquiry is defective ab initio. It was suggested that ab initio departmental enquiry proceedings be initiated against the delinquent officials. The Disciplinary Authority against reconsidered the matter and directed the cancellation of the earlier departmental enquiry and initiation of de novo departmental enquiry against the appellant by the impugned order.
6. The appellant then filed a writ petition challenging the aforesaid action of the Disciplinary Authority seeking to set aside the departmental proceedings which had already taken place and ordering of the proceedings de novo. The learned Single Judge dismissed the writ petition by the observing that the summary all allegations which was initially served on the appellant were defective and that is why the Disciplinary Authority was justified in ordering de novo enquiry.
7. It is contended by Shri Saini that the powers of the Disciplinary Authority are circumscribed by the provisions of Rule 16(x) of the Delhi Police Punishment and Appeal Rules, 1980. The submission of the learned Counsel is that the said rule does not empower or authorise the Disciplinary Authority to order de novo enquiry.
8. Before examining the aforesaid submissions it may be relevant and important to refer to the procedure for holding of the departmental enquiry as laid down by Rule 16. The said Rule, though elaborate, is as follows :
16. Procedure in Departmental Enquiries.
The following procedure shall be observed in all departmental enquiries against Police Officers of subordinate rank where prima facie the misconduct is such that, if proved, it is likely to result in a major punishment being awarded to the accused officer :
(i) A Police Officer accused of misconduct shall be required to appear before the disciplinary authority, or such Enquiry Officer as may be appointed by the disciplinary authority. The Enquiry Officer shall prepare a statement summarizing the misconduct alleged against the accused officer in such manner as to give full notice to him of the circumstances is regards to which evidence is to be recorded. Lists of prosecution witnesses together with brief details of the evidence to be led by them and the documents to be relied upon for prosecution shall be attached to the summary of misconduct. A copy of the summary of misconduct and lists of prosecution witnesses together with the brief details of the evidence to be led by them and the documents to be relied upon for prosecution will be given to the defaulter free of charge. The contents of the summary and the other documents shall be explained to him. He shall be required to submit to the enquiry officer a written report within 7 days indicating whether he admits the allegations and if not, whether he wants to produce defense to refute the allegations against him.
(ii) If the accused Police Officer after receiving the summary of allegations, admits the misconduct alleged against him, the enquiry officer may proceed forthwith to frame charge, record the accused officer's pleas and any statement he may wish to make and then pass final order after observing the procedure laid down in Rule 6 (xii) below if it is within his power to do so. Alternatively the findings in duplicate shall be forwarded to the Officer empowered to decide the case.
(ii) If the accused Police Officer does not admit the misconduct, the Enquiry Officer shall proceed to record evidence in support of the accusation, as is available and necessary to support the charge. As far as possible the witnesses shall be examined direct and the in the presence of the accused, who shall be given opportunity to take notes of their statements and cross-examine them. The Enquiry Officer is empowered, however, to bring on record the earlier statement of any witness whose presence cannot, in the opinion of such officer, be procured without undue delay, inconvenience or expense if he considers such statement necessary, provided that it has been recorded and attested by a Police Officer superior in rank to the accused Officer, or by a magistrate and is either signed by the person making it or has been recorded by such officer during an investigation or a judicial enquiry or trial. The statements and documents so brought on record in the departmental proceedings shall also be read out to the accused officer and he shall be given an opportunity to take notes. Unsigned statements shall be brought on record only through recording the statement of the officer or magistrate who had recorded the statement of the witness concerned. The accused shall be bound to answer any questions which the enquiry officer may deem fit to put to him with a view to elucidating the facts referred to in the statements or documents thus brought on record.
(iv) When the evidence in the support of the allegations has been recorded, the enquiry officer shall :
(a) if he considers that such allegations are not substantiated either discharge to the accused himself, if he is empowered to punish him or recommend his discharge to the Deputy Commissioner of Police or other Officer, who may be so empowered or.
(b) proceed to frame a formal charge or charges in writing, explain them to the accused officer and call upon him to answer.
(v) the accused officer shall be required to state the defense witnesses whom he wished to call and may be given time, not exceeding two working days, to prepare a list of such witnesses together with a summary of the facts they will testify and to produce them at his expense in 10 days. The enquiry officer is empowered to refuse to hear any witness whose evidence he considers to be irrelevant or unnecessary in regard to the specific charge. He shall record the statements of those witnesses whom he decides to admit in the presence of the accused officer who shall be allowed to address question to them, the answers to which shall be recorded; provided that the enquiry officer may cause to be recorded by any other Police Officer superior in rank to the accused officer the statements of a witness whose presence cannot be secured without delay, expense or inconvenience and may bring such statements on record. When such a procedure is adopted, the accused officer may be allowed to draw up a list of questions he wished to be answered by such witnesses. The enquiry officer shall also frame questions which he may wish to put to the witnesses to clear ambiguities or to test their veracity. Such statements shall also be read over to the accused officer and he will be allowed to take notes.
(vi) The accused officer shall, for the purpose of preparing his defense, be permitted to inspect and take extracts form such official documents as he may specify, provided that the such permission may be refused to reasons to be recorded in writing, if in the opinion of the enquiry officer such records are not relevant for the purpose or against the public interest to allow him access thereto. The latest orders of the Government shall be applicable with regard to the charging of copying the fees, etc.
(vii) At the end of the defense evidence or if the Enquiry Officer so directs, at an earlier stage after the framing of charge, the accused officer shall be required to submit his own version of facts. He may file a written statement for which he may be given a week's time, but he shall be bound to answer orally all questions arising out of the charge, the recorded evidence, his own written statement or any other relevant matter, which the enquiry officer may deem fit to ask.
(viii) After the defense evidence has been recorded and after the accused officer has submitted his final statement the Enquiry Officer may examine any other witness to be called 'Court Worthiness' whose testimony he considers necessary for clarifying certain facts not already covered by the evidence brought on record in the presence of the accused officer who shall be permitted to cross examine all such witnesses and then to make supplementary final defense statement, if any, in case he so desires.
(ix) The Enquiry Officer shall then proceed to record the finding. He shall pass orders of acquittal or punishment if himself is empowered to do so, on the basis of evaluation of evidence. If he proposes to punish the defaulter he shall follow the procedure as laid down in Rule 16 (xii). If not so empowered, he shall forward the case with the reasons therefore, to the officer having the necessary powers. If the enquiry indicated on each of the charges together with the reasons therefore, established charges different from those originally framed he may record findings on such charges, provided that findings on such charges shall be recorded only if the accused officer has admitted the facts constituting them or has an opportunity of defending himself against him.
(x) On receipt of the Enquiry Officer's report the disciplinary authority shall consider the record of the enquiry and pass his order on the enquiry on each charge. If in the opinion of the disciplinary authority, some important evidence having a bearing on the charges has not been recorded or brought on the file he may record the evidence himself or send back the enquiry to the same or some other enquiry officer, according to the circumstances of the case, for such evidence to be duly recorded. In such an event, at the end of such supplementary enquiry, the accused offices shall again be given an opportunity to lead further defense, if he so desires, and to submit a supplementary statement, which he may wish to make.
(ix) If it is considered necessary to award a severe punishment to the defaulting officer to taking into consideration his previous had record, in which case the previous bad record shall form the basis of a definite charge against him and he shall be given opportunity to defend himself as required by rules.
(xii) If the disciplinary authority, having regard to his findings on the charges, is of the opinion that a major punishment is to be awarded, he shall :
(a) furnish to the accused officer free of the charge a copy of the report of the Enquiry Officer, together with the brief reasons for disagreement, if any, with the finding of the Enquiry Officer.
(b) Where the disciplinary authority is himself the Enquiry Officer, statement of his own findings, and
(c) give him a show cause notice stating the punishment proposed to be award to him and calling upon him to submit within 15 days such representation as he may wish to made against the proposed action."
9. The aforesaid rule inter alia provides that :
(a) Disciplinary authority shall appoint the Enquiry Officer.
(b) Enquiry Officer shall prepare a statement summarizing the misconduct alleged and serve a copy of the statement and the documents on the delinquent officer.
(c) the delinquent officer would be required to submit a written report within seven days indicating whether he admits the allegations;
(d) if the allegations are not admitted, then the Enquiry Officer will record evidence in support of accusations by examining the witnesses and giving opportunity to the accused officer to cross-examine;
(e) after the evidence is recorded and if the Enquiry Office is of the opinion that the delinquent officer should not be discharged then formal charges will be framed which will be explained to the accused officer who will be called upon to answer them;
(f) the accused officer then any examine defense witnesses;
(g) after the examination of defense witnesses, written statement can be filed by the accused officer;
(h) report is then submitted by the Enquiry Officer;
(i) the disciplinary authority considers the report and passes his orders on each of the charges; and
(j) the disciplinary authority will then issue a show cause notice to the accused officer before imposing a major penalty.
We are informed that the requirements of issuing a second show-case notice has now been abolished, but at the relevant time the said portion of the Rule existed.
10. It is thus evident that the prosecution evidence is led on the basis of the summary of allegations which is prepared and is completed before the framing of the charge. Once the report is submitted by the Enquiry Officer to the disciplinary authority, it will be then for the disciplinary authority to act in accordance with the said rules. While referring to Sham Lal v. Director, Military Farms, and State of Uttar Pradesh v. Babu Ram Upadhya, it has been contended by learned Counsel for the appellation that the aforesaid rules are self-contained Code and the rules have to be strictly complied with. The submission of the learned Counsel is that only jurisdiction which the disciplinary authority has, is contained in sub-rule (x) of Rule 16, after the disciplinary authority has received the findings from the Enquiry Officer. It is contended that Rule-16 does not give the disciplinary authority jurisdiction for ordering de novo enquiry.
11. There can be no dispute with the proposition that whatever rules are framed they have to be strictly adhered to. It is correct that the said rules do not specifically state that the disciplinary authority can order de nono enquiry. On the other hand the rules do not prohibit any such order being passed. Sub-rule (x), inter alia, provides that on the receipt of the enquiry report the disciplinary authority shall pass his orders on the enquiry on each charge. This provision is very widely worded and does not indicate as to what type of order may be passed. That apart, there are atleast three observations of the Supreme Court wherein it has been that the disciplinary authority can always order fresh enquiry.
12. In That State of Assam and Anr. v. J. N. Roy Biswas, (1976-II-LLJ-17) it was observed by the Supreme Court at page 19 as follows;
"We may however make it clear that no Government servant can urge that if for some technical or other good ground, procedural or other, the first enquiry or punishment or exoneration is found bad in law that a second enquiry cannot be launched.
The aforesaid decision was followed by the Supreme Court in a case of Anand Narain Shukla v. State of Madhya Pradesh. 1979 (2) S.L.R. 228. In this case enquiry proceedings had been completed, but on a writ petition being filed the same were quashed. Then fresh proceedings on the same charges were held and the officer concerned was found guilty of certain charges. Punishment was again awarded. The second writ petition was filed in which it was, inter alia, contended that on the same old charges a fresh enquiry could not have been held. The High Court dismissed the writ petition. The Supreme Court upheld the decision of the High Court and observed that :
"The earlier order was quashed on the technical ground. On merits, a second enquiry could be held. It was rightly held."
13. Lastly reference may be made to K. R. Deb v. The Collector of Central Excise, Shillong, (1971-I-LLJ-427) on which reliance was initially placed by Shri Saini. We, however, find that the following observations of the Supreme Court, in fact, support the case of the respondent (p 430) :
"It seems to us that Rule 15, on the fact of it, really provides for one inquiry, but it may be possible if in a particular case there has been no proper enquiry because some serious defect has crept into the inquiry or some important witnesses were not available time of the inquiry or were not examined for some other reason, the Disciplinary Authority may ask the Inquiry officer to record further evidence. But there is no provision in Rule 15 for completely settings aside the previous inquiries on the ground that the report of the Inquiring Officer or Officers does not appeal to the Disciplinary Authority. The Disciplinary Authority has enough powers to reconsider the evidence itself and come to its owns conclusion under Rule 9."
14. From the aforesaid decisions of the Supreme Court it would follow that, depending on the facts of each case it is possible to order de novo enquiry if there has been no proper enquiry because of any serious defect. If, for example, principle of natural justice have been violated then it is open to the disciplinary authority to come to the conclusion that a de novo enquiry should be held.
15. In the present case the Enquiry Officer had found that the charges against the appellant had been proved. Nevertheless the disciplinary authority came to the conclusion that the summary of allegations which had initially been prepared did not bring out all the relevant facts. In the absence of detailed summary of allegations the appellant must have been placed at a disadvantage. It is on the basis of the summary of allegations that evidence of prosecution witnesses was recorded and opportunity granted to cross-examine them. Such right cannot be effectively exercised if the summary of allegations is vague. Realizing this serious infirmity, the disciplinary authority ordered the re-framing of the summary of allegations and de novo enquiry. We find no illegality have been committed. Apart from the law laid down by the Supreme Court we find that even Section 21 of the General Clauses Act, 1897 would give a power to an authority to rescind, amend or revoke an order passed by it. What has happened, in effect, in the present cases is that the order dated January 17, 1980, whereby the enquiry was initially ordered, has been rescinded and a fresh enquiry ordered. The principles enshrined in Section 21 of the General Clauses Act, are clearly applicable and it cannot be said that the disciplinary authority could not act in the manner in which he did. Rather we do no find any infirmity in the decision of the learned Single Judge and in our opinion he rightly came to the conclusion that the disciplinary authority has not acted contrary to law. No other contention is raised. This appeal is accordingly dismissed. There will be no order as to costs.