Madhya Pradesh High Court
Parmal Singh Tomar vs The State Of Madhya Pradesh on 13 December, 2018
1
THE HIGH COURT OF MADHYA PRADESH
W.P. No.2918/2017
(Parmal Singh Tomar Vs. State of M.P. and others)
Gwalior, dated: 13.12.2018
Shri D.P. Singh, learned counsel for the petitioner.
Shri Prakhar Dhengula, learned Government Advocate
for the respondents/State.
1. The writ jurisdiction of this Court under Article 226 of the Constitution of India is invoked to assail the order dated 10.08.2016 (Annexure P/1), by which the Inspector General of Police, Gwalior Zone exercising his revisional powers under Clause 270(4) of the M.P. Police Regulations set aside the penalty of withholding of one increment cumulatively imposed upon the petitioner by order dated 18.07.2016 and instead has inflicted major penalty of compulsory retirement.
2. Learned counsel for petitioner while assailing the aforesaid order has raised various grounds which include perversity of findings as based on evidence which was in admissible on the anvil of preponderance of probability and also that the Inquiry Officer stepped into the shoes of the prosecutor by not only cross-examining the petitioner but also cross-examining the defence witness Dharmendra produced by petitioner in support of his defence.
3. Since, this Court after hearing learned for the rival parties is of the considered view that the ground of the Inquiry Officer being a judge of his own cause appears to be appealing, this Court refrains from going into the other grounds as it may adversely affect the further inquiry before the Disciplinary Authority, which this Court proposes to 2 direct.
4. The petitioner placed reliance on the decision of the Division Bench of this Court in Union of India Vs. Mohd. Naseem Siddiqui, 2005(1) LLJ 931 para 16 of which is relevant to emphasise the extent to which the Inquiry Officer can ask questions to different stakeholders in a departmental inquiry and as to when such questioning can become a legitimate cause for delinquent employees to the ground of bias on the part of Inquiry Officer. Relevant para 16 of the said judgment is reproduced below:-
We may summarise the principles thus:
(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 itself will not vitiate the inquiry.
(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 illicit 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-if-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 recognized that the Inquiry Officer can put questions to any or all witnesses to elicit the truth, the question 3 whether an Inquiry Officer acted as a Presenting Officer, will have to be decided with reference to the manner in which the evidence is led in any recorded in the inquiry.
Whether an Inquiry Officer has merely acted only as an Inquiry Officer or has also acted as a Presenting Officer depends on the facts of each case. To avoid any allegations of bias and running the risk of inquiry being declared as illegal and vitiate, the present trend appears to be to invariably appoint Presenting Officers, except in simple cases
5. Issue of similar kind was considered by a coordinate Bench of this Court in the case of Ram Prakash Gaya Prasad Vs. State of M.P. and others, 2008(4) MPLJ 35 and Ramesh Chand Rathore V. State of M.P. and others, 2010 (II) MPWN 80, relevant paras of which are reproduced below:-
Ram Prakash Gaya Prasad Vs. State of M.P. and others:
11. In the present case, it is evident from a perusal of the enquiry proceedings that no Presenting Officer was appointed by the disciplinary authority. The evidence on behalf of the disciplinary authority has been presented by the Enquiry Officer, by conducting a regular examination-if-chief of prosecution witnesses by taking them through the prosecution case. The Enquiry Officer has also conducted in the present case regular cross-examination of the defence witnesses. The Enquiry Officer has also conducted the cross-examination of the delinquent government servant. It is not a case where the Enquiry Officer in the absence of the Presenting Officer has simply put clarificatory questions to the delinquent government servant.
Ramesh Chand Rathore V. State of M.P. and others:
6. Keeping in view the judgment delivered by this Court and also keeping in view the record relating to Departmental Enquiry Proceedings, it is evident that the Inquiry Officer has in the present 4 case conducted regular cross-examination of witness and he has also conducted the cross- examination of the delinquent government servant. It is not a case where the Inquiry Officer has simply asked clarificatory questions to the delinquent government servant. Meaning thereby, the Inquiry Officer, has assumed the role of the prosecutor while acting as a judge in the departmental enquiry proceedings.
6. Before reverting to the factual matrix of the present case, a bare perusal of statement dated 24.05.2016 of DW Dharmendra who was the driver of tractor reveals that the said DW was cross-examined by the Inquiry Officer despite the Presenting Officer having been appointed in the said inquiry.
7. The Inquiry Officer is an independent arbiter who ordinarily is supposed to remain aloof and not involve himself especially in the process of examination or cross- examination of any particular witness much less a defence witness. However, the Inquiry Officer is authorized to ask question on certain exceptional occasions where things have to be clarified or where Inquiry Officer feels that asking of question to a witness would be in the interest of justice and to ascertain the truth behind the charges. 7.1 In the instant case, Inquiry Officer has indulged in the act of cross-examining the defence witness which reflects his partisan character. The Inquiry Officer herein gives an impression that he is favourably inclined towards the prosecution and therefore, became biased against the defence.
8. In view of above, procedure adopted by the Inquiry Officer vitiates the inquiry and it's result and, therefore, this Court is of the considered view that the matter deserves to 5 be relegated to the Disciplinary Authority to conduct free and fair inquiry from the stage of examination of DW.
9. Consequently, present petition stands allowed in the following terms:-
1. The order of the Superintendent of Police, Gwalior dated 18.07.2016 (Annexure P/2), order of Inspector General of Police, Gwalior Zone dated 07.10.2016 (Annexure P/1) and the order of Director General of Police dated 31.03.2017 (Annexure P/4), Bhopal are set aside.
2. The matter is relegated to the Disciplinary Authority who shall ensure conduction of free and fair inquiry from the stage of examination of defence witness conducted by Presenting Officer.
3. Fresh order be passed of penalty or exoneration as the case may be within an outer limit of six (6) months from the date of receipt of copy of this order.
4. The period of absence would be considered by passing appropriate order in that regard by competent authority after the end of further inquiry as directed by this court and in terms of law.
(Sheel Nagu) Judge SS SATEESH KUMAR SEN 2018.12.18 10:00:08
-08'00'