Patna High Court
Choudhary Murli Manohar Prasad Roy vs The State Of Bihar And Ors. on 27 March, 2008
Author: Navin Sinha
Bench: Navin Sinha
JUDGMENT Navin Sinha, J.
1. The petitioner was issued memo of charges on seven counts. In the departmental proceeding a finding of guilt was returned with regard to charges No. 1(d), 2, 4 & 6. A second show cause notice was issued replied to by the petitioner when the punishment of dismissal has been imposed by order dated 26.9.1997, presently assailed.
2. Learned Senior Counsel, Shri Chitranjan Sinha with regard to charge 1(d) submitted that the Inquiry Officer relied upon an enquiry report of the Anchal Adhikari, who in turn was stated to have recorded the statement of two employees making allegations against the petitioner of having demanded illegal gratification. The petitioner denied the charge in his reply. It was, therefore, necessary for the Inquiry Officer to have examined the Anchal Adhikari and the other two employees as witnesses to prove the allegations. Irrespective of the fact that the petitioner may have made no request to summon them for cross-examination does not detract from the primary responsibility of the prosecution to prove its own case and for the Inquiry Officer to examine them and record their statements for the purpose. In absence of the same, it becomes the mere ipse fixit of the Inquiry Officer and an basis of materials outside the inquiry, making the finding unsustainable as based on conjectures and surmises. Reliance was placed on a Bench decision of this Court reported in 2000 (3) PLJR 10 Kumar Upendra Singh Parimar v. B.S. Co-Opt Land Dev. Bank Ltd. and Ors. in support thereof. With regard to charge No. 2, learned Counsel submitted that the statement of the person whom the petitioner is alleged to have assaulted and the witnesses in whose presence the assault is alleged to have been made have not been examined. The Inquiry Officer has relied upon an enquiry report submitted by the Anchal Adhikari. The Inquiry Officer then imports his personal knowledge to hold that during his site visit he had inquired from people generally who had confirmed the occurrence. Thus becoming a witness himself vitiating the whole enquiry. With regard to charge No. 4, it was submitted that the petitioner was on casual leave on 10.5.1995. No material was placed before the Inquiry Officer to arrive at the finding that the petitioner had been directed to report for duty on 11.5.1995 when it was a Gazetted holiday from the latter date till 14.5.1995. To hold him guilty the Inquiry Officer simply states that employees at the District headquarters and Anchal headquarters are aware of their deputation during important festival like Bakrid. The petitioner, therefore, had no right to remain on a Gazetted holiday. The submission, therefore, was that in absence of proof for direction to be present on 11.5.1995 the finding was perverse. No order of 11.5.1995 had been brought on record. On charge No. 6, it was submitted that the petitioner had submitted his report on basis of an order passed of Deputy Collector, Land Reforms in Bataidari Case No. 6 of 1992-1993. That aspect of the matter has not been considered at all before returning a finding of guilt making it perverse.
3. It was lastly submitted that even if the disciplinary authority agreed with a Inquiry Officer and decided to impose punishment after issuance of second show cause notice, it could not have been done in the manner presently sought to be done. The Disciplinary Authority was required to briefly discuss the case, the defence of the delinquent, materials before the Inquiry Officer and reply to the second show cause notice to indicate consideration of the matter by independent application of mind. That also not having been done, the order of punishment was bad. Reliance was placed on and . Learned Counsel for the respondents urged that the petitioner never made any request to cross examine any prosecution witness. He did not ever participate in the enquiry effectively. There have been no procedural irregularities in the proceeding or denial of the principles of natural justice to prejudice the petitioner.
4. Charge No. 1(d) alleged that the petitioner had demanded illegal gratification of Rs. 200/- from two Halka Karamchari for verification of Register III A and IIIAA during preparation of Return II entries for the years 1994-95. Charge 2 alleged that the petitioner assaulted the Nazir and abused him for his failure to have the salary encashed. Charge 4 alleged that he went on casual leave on 10.4.1995 and despite directions to be present for duty on 11.5.1995 for law and order duty, a Gazetted holiday, on account of Bakrid, he absented himself. Charge 6 related to his report that the lands in question were free from ceiling leading to declaration as raiyat of a person. At the time of grant of revenue receipt, it was discovered that the lands had already been declared surplus and parwana issued and, therefore, an incorrect report was submitted by him.
5. The Enquiry officer did not examine the Anchal Adhikari in support of the charge 1-D. Neither were the two employees from whom the petitioner was alleged to have demanded illegal gratification examined by the Enquiry Officer. The statement of the latter two was recorded by the Anchal Adhikari who then submitted a report too the Enquiry Officer. In fact, what was being done was an enquiry within an enquiry. The failure to examine the Anchal Adhikari and the latter two persons assumes importance in view of the denial by the petitioner of the demand for illegal gratification by him. The question of the petitioner cross-examining them would have arisen only if they had appeared to depose and their statements were recorded by the Enquiry Officer. Had that been done and the petitioner had refused to participate in the enquiry or cross examine them the matter may have been entirely different. In so far as Charge No. 2 is concerned similar is the situation. Again the Enquiry officer has relied upon the report submitted to him by the Anchal Adhikari. None of the persons who are alleged to have witnessed the assault by the petitioner nor the person assaulted has been examined. To this Court, what is fatal is the Enquiry Officer turning into a witness himself in the enquiry when he recites that he also visited the place and made local enquiry which confirmed that the allegations were true. Surely the Enquiry Officer could not turn as a witness himself in the very same enquiry. Such action sets at naught the entire concept of fairness.
6. One of the facets of natural justice is Bias. A real apprehension of bias as distinct from a general apprehension of bias. It does not necessarily connote an enemical disposition or predetermined state of mind for certain specified reasons. What exactly will be the connotation of bias will depend on the fact circumstances obtaining in each case. The principle of personal bias in the facts and circumstances of the present case will primarily mean a mind clouded on the issue for reasons making it difficult to separate the grain from the chaff and hold that though the mind may be clouded on one issue, yet this does not affect the mind on other issues so as to segregate the decisions of the same mind between good and bad. This is a fundamental issue of jurisdiction. If compliance with the principles of natural justice is vitiated, the matter goes to the root of the jurisdiction. It is trite law that justice must not only be done but it must also appear to be done.
7. It will be very difficult for this Court to arrive at any conclusion that mind of the Enquiry Officer was not clouded in the decision making process and that segregation in the action of the Enquiry Officer with regard to the present charge and the other charges could be made. This Court has therefore no hesitation in holding that this act of the Enquiry Officer hits at the very root of the enquiry report.
8. With regard to charge No. 4 also, it is not in controversy that no material was placed before the Enquiry Officer to arrive at the conclusion that the petitioner unauthorisedly absented himself from duty on 11.5.1995, the same being a gazetted holiday in absence of any formal order requiring him to be present on duty. The conclusion of the Enquiry Officer therefore, suffers from conjectures and surmises besides being perverse based on no materials at all. In so far as Charger No. 6 is concerned, submission on behalf of the petitioner is that his defence that he had acted in pursuance of the orders passed in Bataidari Case No. 6 of 1992-1993 has not been considered.
9. The effect of the Enquiry Officer becoming a witness and giving evidence himself came up for consideration before the Supreme Court in AIR 1958 SC 86 State of U.P. v. Mohammad Nooh. The delinquent questioned his order of dismissal on the ground that the Superintendent of Police who was examining the allegations of the delinquent being the sole beneficiary of the forged letter, also gave his own evidence in the proceeding and had thus become disqualified from continuing as the Judge, as in the circumstances he was bound to be biased against the respondent. The High Court held for that reason that Rules of natural Justice and fair play had been disregarded after the Superintendent of Police recorded his own testimony against that of another witness. He had, therefore, become disqualified on the grounds of bias from acting as the Presiding Officer vitiating the departmental enquiry. The Apex Court held that the Presiding Officer could not unite the two roles within himself. His act in having his own testimony recorded in the case indubitably evidences stage of mind which clearly discloses considerable bias against the respondent. To quote
8. ...If it shocks our notions of judicial propriety and fair play, as indeed it does, it was bound to make a deeper impression on the mind of the respondent as to the unreality and futility of the proceedings conducted in this fashion. We find ourselves in agreement with the High Court that the rules of natural justice were completely discarded and all cannons of fair play were grievously violated by Shri B.N. Bhalla continuing to preside over the trial. Decision arrived at by such process and order founded on such decision cannot possibly be regarded as valid or binding.
This view has been followed in Arjun Choubey v. Union of India and Ors. relied upon by the Counsel for the petitioner. A decision to dispense with domestic enquiry was taken. The Senior Commercial Officer served notice upon the delinquent to give explanation in regard to 12 charges of gross indiscipline. The appellant submitted his explanation. On the next day the Deputy Chief Commercial Superintendent served notice on the appellant that explanation offered by him was not convincing giving him another chance to offer explanation. Further explanation was given. The Deputy Chief Commercial Superintendent then passed the order of dismissal without enquiry. It was held that no person can be a judge in his own cause. Any one who has a personal stake in the enquiry must keep himself aloof from the conduct of the enquiry. No witness can certify that his own testimony is true. In Rattanlal Sharma v. Managing Committee one of the members of the Enquiry Committee Shri Maru Ram himself deposed against the delinquent as a witness in respect of one of the charges. The Single Bench of the High Court held that the departmental proceeding was vitiated for flagrant violation of the principles of natural justice. The order of dismissal was set aside. The Division Bench of the High Court upset the finding on principles of waiver by the delinquent to object. The Supreme Court it upheld the contention of the delinquent that the whole proceeding stood vitiated as the bias of one of the members of the Enquiry Committee had percolated throughout the enquiry proceeding thereby vitiating the principles of natural justice and the enquiry report was the product of a biased and prejudiced mind leaving an indelible stamp of infirmity on the decision.
10. Learned Counsel for the petitioner has rightly relied upon a Bench decision of this Court reported in 2000(3) PLJR 10 Kumar Upendra Singh Parimar v. B.S. Cooperative Land Development Bank Ltd. and Ors. in support of his submission that quite irrespective of the question of his not cross-examining the witnesses etc it would be for the prosecution to prove its case on its own steam. This Court can do no better than to quote Para 12 and 14 of the judgment hereinafter:
12. Under those rules there are detailed provisions for holding regular departmental enquiry. In holding of a departmental enquiry it is required to prove the charges against the delinquent employee by producing the departmental witnesses and by examining them by the enquiry officer. If the delinquent employee does not attend the enquiry even then the department has to prove the charges by examining the witnesses in support of its own documents. In the departmental enquiry no onus is cast upon the delinquent employee to prove the charges. The charges have to be proved by the department. If no witness is called by the department in support of the charges in that case it should be held that the department has not proved its case and in such a situation the enquiry officer cannot record the findings with regard to guilt against the delinquent employee just because the delinquent employee is absent.
14. It is obviously true that the departmental proceeding cannot be equated with a criminal trial, and the technicalities of the Evidence Act are not applicable to a departmental enquiry. But one cannot lose sight of the fact that on the outcome of the said enquiry depends the livelihood of the employee. Therefore, before holding that the charges are proved scrupulous care should be taken to see that an innocent man is not punished.
11. In conclusion, this Court holds that entire enquiry is vitiated. The reliance by the Presiding Officer on materials collected outside the enquiry without examining witnesses in the enquiry to prove those materials, the absence of documentary evidence in support of the charges and finally the Enquiry Officer himself assuming the role of a witness in the enquiry, are all matters which vitiate the departmental enquiry completely. In that view of the matter the impugned order of punishment dated 26.9.1997 is set aside and the writ application stands allowed.
12. The petitioner stands reinstated from the date of termination with seniority and continuity of service. The petitioner shall be at liberty to make application for grant of back wages which shall be examined by the authorities in the light of the settled principle for grant of back wages and appropriate orders passed thereupon within a maximum period of three months from the date of receipt and/or production of a copy of this judgment provided the petitioner cooperates in consideration of his claim for back wages. The writ petition stands allowed.