Punjab-Haryana High Court
Tejwant Singh vs State Of Punjab And Anr. on 13 December, 1999
Equivalent citations: (2000)125PLR49
Author: R.L. Anand
Bench: R.L. Anand
JUDGMENT R.L. Anand, J.
1. Whether a person can be a Judge in his own case, will be the first point for determination in the present writ petition and, secondly, justice should not only be done but seems to have been done, will be the other point for consideration. In this case, though both the points may over-lap to some extent but have been viewed by me independently, in the light of the circumstances of this case.
2. Shri Tejwant Singh, Assistant Superintendent of Jail, has filed the present writ petition under Articles 226/227 of the Constitution of India for the issuance of a writ of certiorari, mandamus or any other writ or direction of this Court for the quashment of the order of dismissal dated 9.8.1996 passed by the Director General of Prisons, Punjab, confirmed in appeal on 5.6.1997 and the petitioner has further prayed that he may be treated in continuous, service with all rights, benefits and privileges which had already accrued to him.
3. The case set up by the petitioner is that when he was posted as Accountant in the District Jail, Sangrur, he filed a Civil Suit No.323 of 1987 dated 7.8.1987 seeking a declaration to the effect that action of the defendant of not giving a promotion orders to the plaintiff due to his seniority and gradation list, was illegal, mala fide and against the rules. The suit of the plaintiff was partly decreed. The petitioner worked in the Security Jail, Sangrur, as Accountant with effect from May, 1986 to May, 1988. In the month of December, 1988 to August, 1989, the petitioner was posted at High Security Jail, Nabha, as Assistant Superintendent and received threats from the terrorists that he would be liquidated. Resultantly, the petitioner along with other officials who received the similar threats represented to the Superintendent of the concerned jail with a request to provide weapons of the safety. Keeping in view the threats to the officials serving in the jails, the Government issued instructions regarding the policy of the transfer of those Government employees who were under the threat of terrorism to safer places of their choice. These instructions were issued on 9.1.1990 vide Endorsement No.807/868/GI/E.4/P.16-1. The petitioner, in pursuance of these instructions, requested the I.G. Prisons, Punjab, Chandigarh, through proper channel that he may be transferred to Sangrur Jail. The petitioner also represented to Chief Minister, Punjab regarding his transfer. At the relevant time, the petitioner was posted at Amritsar as Assistant Superintendent of Jail, but he was transferred to Central Jail, Ludhiana. He submitted his joining report at Ludhiana on 17.8.1994. On 5.9.1994, the transfer orders of the petitioner were cancelled. On 21.11.1994, Shri Bikram Jit Singh Sandhu was the I.G. Prisons, Punjab and he was present at Camp in Central Jail, Amritsar while on tour. The petitioner returned from his casual leave and met the I.G. Prisons, Punjab at Amritsar and requested to him for his transfer to any of the places like Malerkotla, Sangrur and Nabha as the petitioner was due to retire within five years. I.G. Prisons was annoyed with the petitioner because of the filing of the suit against the Department and, therefore, his request was not accepted and he was directed to go outside from the room. Thereafter, an order of suspension was passed against the petitioner. The petitioner requested to Shri Devinder Singh Randhawa, Assistant Superintendent, Central Jail, Amritsar and Shri Sardul Singh, Assistant Superintendent to meet I.G. Prisons. He was allowed accordingly and the petitioner prayed for the withdrawal of the suspension order. However, I.G. Prisons got annoyed and remarked that petitioner was disobeying and disrespecting the officers of the Department and he was placed under suspension. The petitioner was taken out from the room forcibly by the subordinate staff of I.G. Prisons and at the instance of I.G. Prisons, the petitioner was given severe beatings and he suffered injuries. The petitioner was kept in illegal custody up to 27.11.1994 as a result of which the petitioner had to file a criminal complaint against the officials on 13.12.1994. The petitioner was finally served with a charge sheet. The charge sheet was ignored and inquiry proceedings were initiated against the petitioner in pursuance of the order of I.G. Prisons and Shri Dhanna Singh was appointed as Inquiry Officer. The petitioner even made a representation against Shri Dhanna Singh for the change of the Inquiry Officer. The petitioner than made a representation to the Inquiry Officer not to hold an inquiry as the Inquiry Officer was biased against him. The petitioner made a representation also for the inspection of the certain record. The permission was granted to the petitioner for the inspection of the said record. When his request for the inspection of the record was still pending, the petitioner was served with a show cause notice. He submitted reply to the show cause notice and again made a request for the inspection of the record and this request was allowed. Before the inspection of the record the impugned order of the dismissal was passed on 9.8.1996. The petitioner filed an appeal before the Secretary to Government which was also dismissed on 5.6.1997 and rejection was conveyed to the petitioner on 18.11.1997. The petitioner submitted that the order of dismissal dated 9.8.1996 and the order dated 5.6.1996 are illegal, arbitrary and in violation of the principles of natural justice and are the outcome of mala fides. Though the petitioner has taken many grounds for the setting aside of these orders but the ground which was passed by the petitioner at the time of the arguments, was that the punishing authority was the Judge in its own cause and in these circumstances, the order of dismissal is violative of the principles of natural justice because it is inherent in the principles of natural justice that the justice should not only be done but seems to have been done. The petitioner even alleged that he was not supplied with the report of the Inquiry Officer before passing the impugned order.
4. The State took the stand vis-a-vis the suit of the plaintiff that though the appeal of the State was dismissed by the first appellate Court yet the second appeal is pending in the High Court. It was admitted by the respondents that petitioner appeared before the I.G. Prisons, Punjab during his visit to Central Jail, Amritsar for his transfer but the petitioner was told that he could not be transferred due to the ban imposed by the Government on mid-term transfers. The petitioner misbehaved with the then I.G. Prisons, Punjab and other officers present at that time. The petitioner raised slogans of Murdabad against the I.G. Prisons and other officers. The petitioner also scuffled with other officers and during the course of scuffle, Assistant Superintendent Shri Devinder Singh suffered one injury. For these reasons, the petitioner was put under suspension for misbehaving and creating in discipline and violating the provisions of Punjab Jail Manual and Government Employees Conduct Rules, 1966. Thereafter, an inquiry was initiated against the petitioner' and he was charge sheeted. The petitioner was never beaten or kept in illegal custody by the Jail Officers. A criminal case was also registered against the petitioner. The petitioner filed a reply to the charge sheet which was found unsatisfactory and he was dismissed from service on the basis of the report of inquiry conducted by Shri Dhanna Singh, Superintendent Central Jail, Ludhiana. The representation of the petitioner to change the Inquiry Officer and the presenting Officer was also considered. After considering his reply the Presenting Officer was changed. Since there was no force in the contention of the petitioner to change the Inquiry Officer, therefore, the inquiry officer was not changed. The petitioner was permitted to inspect the relevant record. The petitioner was served with a show cause notice. The petitioner was directed to submit the reply to the show cause notice. The record which was asked for, for inspection, was not relevant. For that reasons it was not shown to the petitioner. The inquiry report was already with the punishing authority. No reply was received from the side of the petitioner and dismissal order was passed on 9.8.1996.
5. The petitioner filed an appeal which was dismissed. It was also found during the course of appeal that the petitioner did not participate in the inquiry deliberately and failed to rebut the allegations against him. He became absent in the inquiry proceedings on several dates. Even the past record of the petitioner was not very good. The annual confidential reports for the years 1965, 1966, 1967, 1968, 1969, 1973, 1975, 1978, 1981, 1994-95, were poor, below average and contained adverse remarks. The petitioner was also earlier awarded punishment of stoppage of one annual increment with cumulative effect in the year 1965-66 and was given the punishment of stoppage of four increments in the year 1977. The order of dismissal and rejection of the appeal of the petitioner were not illegal, arbitrary and in violation of the principles of natural justice. A regular inquiry was conducted against the petitioner under Rule 8 of the Punjab Punishment and Appeals Rules, 1970. On the broad allegations, the respondents have prayed for the dismissal of the writ petition.
6. In support of his case the petitioner has placed on record several annexures starting from P-1 to P-18 but I shall deal with only those annexures which are relevant to the controversy and points for determination already highlighted in the first para of the judgment.
7. I have heard Shri S.K. Sharma, Advocate, appearing on behalf of the petitioner and Mrs. S.K. Bhatia, D.A.G., Punjab, appearing on behalf of the State and with their assistance have gone through the record of this case.
8. As I stated above that two points for determination in this case would be whether one can be a judge in his own cause and whether the salutary principle of natural justice that the justice not only should be done but seems to have been done, have been violated in this case or not?
9. I would like to refer to the list of allegations which were framed against the petitioner and those are at Page No. 38 of the file. The allegations run as follows:-
"You have appeared before the undersigned on 21.11.1994 at Central Jail, Amritsar and requested for your transfer to Sub Jail Malerkotla. While doing so you have violated the provisions of Punjab Jail Manual Para 167(1).
2. On 21.11.1994 you have appeared before me in the office of the Superintendent, Central Jail, Amritsar and requested for your transfer to Sub Jail Malerkotla and due to the midterms transfer ban request was not accepted and you have misbehaved with the undersigned and adopted a rude behaviour and on my orders you have not left the place. While doing so you have violated the provisions of Punjab Jail Manual Para 165 and 174(f).
3. You have raised slogans of Murdabad in a loud voice against Shri Tarsem Lal, Supdt. Central Jail, Amritsar and while doing so you have violated the provisions of Punjab Jail Manual Para 168(2) and Rules 3 and 7 of the Government Employees (Conduct) Rules, 1966.
4. While Shri Devinder Singh Randhawa, Asstt. Superintendent Captain Gurdev Singh, Dy, Superintendent Central Jail, Amritsar and Shri Charan Singh Dy. Suptd. Security Jail, Amritsar overpowered you and you were to be taken out then you have caused injury to the eye of Davinder Singh Randhawa and you had a scuffle with him. While doing so you have violated the provisions of Rule 3 of the Government Employee (Conduct) Rules, 1966.
6.3.1995. Sd/- I.G. Prisons, Pb."
10. It may be mentioned that Shri Bikramjit Singh Sandhu was I.G. Prisons, Punjab, at the time of the incident dated 21.11.1994 and also at the time when the list of allegations was issued on 6.3.1995.
11. The other document I would like to discuss is the order of dismissal passed by Shri Bikramjit Singh Sandhu himself on 9.8.1996, which is Annexure P-15 on the record at page 49. In this order also, there is a reference to the proceedings dated 21.11.1994 when the punishing authority had made the following reference:-
"On 21.11.1994 when the undersigned after finishing tour of Central Jail, Amritsar, stayed in the office of Superintendent, Central Jail, Amritsar, at that time Shri Tarshem Lal. Superintendent, Central Jail was present. The undersigned was listening the grievances/requests of the Warders and Head Warders and Shri Devinder Singh Randhawa was producing such employees before me. Shri Tejwant Singh, Assistant Superintendent of Police, also made a request to me without uniform that he may be transferred to Sub Jail, Malerkotla. He was told that there is a ban by the Government on the midterm transfer, thus, he cannot be transferred. Thereafter, he was ordered to go out from the office but instead of going out from the office, he misbehaved with the undersigned and Shri Tarsem Lal, Superintendent, Central Jail. When Shri Devinder Singh tried to push him out, Shri Tejwant Singh scuffled with him. Shri Tejwant Singh going out in the premises started to speak Murdabad in the premises (Deohri) against the undersigned and Shri Tarsem Lal Superintendent, Central Jail, Amritsar loudly."
12. Thus, it would be clear that Shri Bikramjit Singh Sandhu was the principal witness against whom the alleged misconduct was shown by the petitioner. The alleged misbehaviour attributed to the petitioner was qua Shri Bikram Jit Sandhu and qua Shri Tarsem Lal. Further the alleged derogatory remarks like Murdabad etc. allegedly uttered by the petitioner in the Deohri of the jail, were also qua the punishing authority itself and Shri Tarsem Lal.
13. In these circumstances, was it appropriate on the part of Shri Bikramjit Singh Sandhu, Additional Director General, Jail Department, who was exercising the powers as a punishing authority, to pass an order of dismissal or not and whether passing of the order by Shri Birkamjit Singh Sandhu himself vide Annexure P.15 dated 9.8.1996, has yiolated the principles of natural justice or not.
14. The learned counsel appearing on behalf of the petitioner relied upon a judgment of the Hon'ble Supreme Court reported as A.I.R. 1984 S.C. 1356 Arjun Chaubey v. Union of India and Ors. and submits that if the order of dismissal has been passed by a person who was the Judge in his own cause, such an order cannot sustain in the eyes of law and even on this score the order of appeal is liable to be struck.
15. On the contrary, the learned counsel appearing on behalf of the respondents submitted that no prejudice has been caused to the petitioner even if the order of dismissal has been passed by Shri Bikramjit Singh Sandhu as a regular inquiry was conducted against the petitioner by Shri Dhanna Singh. The decision of the punishing authority has even been upheld by the appellate authority. The petitioner has committed a grave act of in-discipline and the witnesses have corroborated the allegations of the Department and the evidence was enough before the Inquiry Officer to give a finding of guilt against the petitioner and in these circumstances, the impugned orders cannot be interfered with by the High Court.
16. 1 have considered the rival submissions of the parties and am of the opinion that the impugned orders dated 9.8.1996 and 5.6.1997, passed by the punishing authority as well as by the appellate authority, are liable to be quashed as Shri Bikramjit Singh Sandhu, in this case, had become the Judge in his own cause and the principles of natural justice have been violated. The incident dated 21.11.1994 had taken place qua Shri Birkarhjit Singh Sandhu. He was not only an eye witness of the first part of the transaction of the incident but he was also a witness with regard to the second part of the transaction whereby some allegations were raised by the petitioner in defiance to the dignity of Shri Sandhu. In such a situation, it would also be lurking in the mind of Shri Sandhu that the petitioner had committed a breach of the Jail Manual and that he showed his insubordination vis-a-vis him and also misbehaved with his colleagues; The proceedings in an inquiry though not fully judicial but definitely it is expected from the side of the Inquiry Officer. Punishing Authority as well as the appellate authority that these authorities must behave in a quasi-judicial manner at least. The employee must be given an opportunity to rebut the case of the Department and the punishing authority must apply its mind unbiased to the proved allegations before awarding the punishment. After all. a human body is made of cells, blood and flesh. He is not a divine power. If, on judicial scrutiny the Court comes to this conclusion that something extraneous might have prevailed upon in the mind of the punishing authority before awarding the punishment, such an order cannot be accepted or endorsed on the parameter of judicial scrutiny. How Shri Bikramjit Singh Sandhu could remain aloof while passing the order of dismissal when he was aware of the alleged incident which took place on 21.11.1994. In this regard, the observation of the Hon'ble Supreme Court given in Arjun Chaubey's case (supra) are relevant. In the cited case, the allegations against the public servant was that he entered the office of respondent No.3 and challenged him in an offensive and derogatory language. In that context the Hon'ble Supreme Court was pleased to hold "therefore, it was not open to the fatter to sit in judgment over the explanation offered by the appellant and decide that the explanation was untrue. Mo person can be a judge in his own cause and no witness can certify that his own testimony is true. Any one who has a personal stake in an enquiry must keep aloof from the conduct of the inquiry. The order of dismissal passed against the appellant stands vitiated for the simple reason that the issue as to who, between the appellant and respondent No.3 was speaking the truth was decided by respondent No.3 himself." The ratio of the Hon'ble Supreme Court is fully applicable to the facts in hand. Even I go to this extent that if the punishing authority had a personal knowledge with regard to an incident, such punishing authority should try to keep himself aloof from that matter because sub-consciously his personal knowledge can affect the verdict. In such a situation Shri Bikramjit Singh Sandhu ought to have placed the file before his superior with a prayer for passing an appropriate orders according to law. Even in this case it is not shown that alongwith show cause notice the report of the inquiry was given to the petitioner. In this view of the matter also, the impugned orders are liable to be quashed.
17. Resultantly, the present petition is allowed the impugned orders dated 9.8.1996 and 5.6.1997 are set aside with a clear observation that it will not detract the Department to pass an appropriate order according to law against the petitioner by a competent authority.
18. If Shri Bikramjit singh is no longer in service, the fresh orders on the basis of the inquiry report may be passed by another competent authority who can do so uninfluenced by the earlier findings given by Shri Birkamjit Singh Sandhu.