Jharkhand High Court
Zileh Singh Sagar vs Union Of India (Uoi) Through The ... on 4 April, 2007
Equivalent citations: 2007(2)BLJR2321, [2007(3)JCR596(JHR)], 2007 LAB. I. C. (NOC) 562 (JHAR.) = 2007 (2) AIR JHAR R 593, 2007 (2) AIR JHAR R 593, (2007) 2 JLJR 597, (2007) 3 JCR 596 (JHA)
Author: Narendra Nath Tiwari
Bench: Narendra Nath Tiwari
JUDGMENT Narendra Nath Tiwari, J.
Page 2323
1. The petitioner, a Deputy Inspector General of Central Industrial Security Force (for short C.I.S.F), aggrieved by the initiation of departmental proceeding by Memorandum dated 13th January 2006, has preferred this writ petition praying for quashing the entire departmental proceeding including the charge sheet on the ground of bias and malafide and the same being wholly unfounded and uncalled for.
2. The grievance of the petitioner is that he has been malicouously implicated in the departmental proceedings by Shri H.V. Chaturvedi, I.G.NES-the respondent No. 6 who has been promoted to the rank of Inspector General of Police by superceding the petitioner and his promotion is subject to final result of the writ petition filed by the petitioner now pending in the Calcutta High Court, being W.P No. 1504/03 (admitted by the respondent in Para 40 of C.A). Actuated by the said malice and bias, the petitioner has been falsely roped in a departmental proceeding on frivolous charges framed on the basis of report of the preliminary enquiry submitted by the respondent No. 6. It has been stated that the impugned Memorandum of charge contains three articles of charges against the petitioner which are related to an incident which took place in Durgapur Steel Plant on 10.6.05, while the petitioner was posted as the Deputy Inspector General of Police, C.I.S.F, Unit Durgapur Steel Plant. The incident was a reported theft of Nut Coke by Dumper No. WB-39/1939. According to the petitioner when he received the information about the said occurrence at about 1800 Hrs., he immediately directed the Commandant Mr. K.K. Singh to come in action and apprehend the said Dumper. According to the petitioner, the Commandant took immediate steps and apprehended the empty dumper and brought the same with the driver to the C.I.S.F Complex Bhiringi. The General Manager (Services) of Durgapur Steel Plant was immediately informed about the seizure of the Dumper, who on getting information came to the C.I.S.F Complex with two other officials. In the mean time, the local police had also arrived and the driver was interrogated in their presence. The officials of Durgapur Steel Plant, Mr. T.K. Sarkar, Assistant General Manager (Raw Materials) and Mr. A. Ghosh, Manager (Raw Materials) thereafter submitted a written complaint to the petitioner. On the said complaint, the petitioner gave a written instruction to the Commandant to hand over the Dumper and driver to the local police. At about 2015 Hrs. on 10.6.05, the Commandant informed the Faridpur Police Station, Durgapur about the same. An F.I.R was then drawn up by the local police on the basis of a written report of the officials of Durgapur Steel Plant being F.I.R No. 171 of 05 and case was registered under Sections 379/409 & 120B of the I.P.C.
3. It has been stated that in order to ascertain as to whether the C.I.S.F personnel had any hand and connivance in the said incident, the Inspector, C.I.W, was detailed by the petitioner to make an enquiry on 10.6.05. On the basis of the report, six C.I.S.F personnel were arrested. A senior officer to the rank of Assistant Page 2324 Commandant, Mr. P.K. Basu, was deputed to conduct the preliminary enquiry on 12.6.05. But in the mean while, the petitioner was transferred to the C.I.S.F Head Quarters on 14.6.05. Before he left the place, six C.I.S.F personnel were suspended on the direction of the petitioner.
4. It has been further stated that while the preliminary enquiry conducted by Mr. P.K. Basu, Assistant Commandant, was in process, the respondent No. 6, who had personal bias against the petitioner, deliberately started another preliminary enquiry regarding the said incident behind the back of the petitioner. The same was intended to implicate the petitioner in a departmental proceeding in order to create another impediment in his due promotion. The said respondent No. 6 submitted a report alleging supervisory failure on the part of the petitioner. On the said basis the impugned memorandum of charges dated 13.1.06 containing three articles of charges was served on the petitioner initiating major penalty proceeding under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. The Articles of charges are as follows:
STATEMENT OF ARTICLES OF CHARGE FRAMED AGAINST SHRI Z.S. SAGAR, D.I.G, C.I.S.F ARTICLE-1 That the said Shri Z.S. Sagar, while posted and functioning as D.I.G, C.I.S.F Unit, D.S.P, Durgapur from 11.6.2002 to 16.6.2005, committed a gross misconduct in that when the management officials reported to him regarding theft of Nut Coke by a private Dumper No. WB-39/1291, at about 1750 hrs. on 10.6.2005, through the 'Out Gate' No. 2 A of DSP Durgapur, with the connivance of CISF personnel, he failed to lodge an FIR with the Police. Even after the Management officials gave him written complaint regarding the said theft, he did not take steps to lodge an FIR, and failed to discharge his supervisory role as a DIG, entrusted with the security of the entire Plant under his charge.
Thus, Shri Z.S. Sagar, did not maintain absolute devotion to duty and acted in a manner unbecoming of an officer in his rank and service in an Armed Force of the Union, like CISF.
ARTICLE-2 That the said Shri Sagar, while posted and functioning during the aforesaid period failed to maintain proper command and control over his staff. The CISF personnel posted at Gate No. 2A of Durgapur Steel Plant, connived with a Dumper Driver and allowed to the above said Dumper carrying stolen Nut Coke to go out of the Plant without verification and checking on 10.6.2005 at about 1750 hrs. They also tampered with records maintained at the Gate to cover their lapses. The CISF personnel, instead of protecting the Plant, were involved in the theft of Plant property in connivance with the Dumper Driver and others. This incident tarnished the image of the CISF in the eyes of the public. This clearly indicates that Shri Sagar, did not exercise proper command and control over his subordinates.
Thus, Shri Z.S. Sagar, failed in his supervisory duty and thereby acted in a manner unbecoming of a Government servant of his rank in an Armed Force of the Union like CISF.
Page 2325 ARTICLE-3 That, the said Shri Sagar, while posted and functioning in the aforesaid capacity during the aforesaid period, committed a deliberate misconduct by sending a false report to C.I.S.F H. Qrs. with an intention to mislead his senior officers. He sent an incident report after a lapse of two days vide message No. E-42011/1/CIW/DSP/2005-551 dated 12.06.2005 wherein he intentionally did not point out the connivance of CISF personnel posted at the gale when the theft took place. He also did not check and verify the records maintained in the register where the CISF personnel had tampered with the records by overwriting. He did this with a view to shield corrupt CISF personnel.
Thus Shri Z.S. Sagar failed to maintain absolute devotion to duty and acted in a manner unbecoming of an officer of his rank and service in an Armed Force of the Union like CISF.
5. The petitioner has contended that the charge sheet is based on the deliberate and malicious preliminary enquiry report of the respondent No. 6 and the same is unsustainable and vitiated being violative of the rule of fair play and principle of natural justice. By implicating the petitioner in the departmental proceeding, the respondent No. 6, who is junior to the petitioner, will enjoy the rank of I.G who has been promoted by superseding the petitioner. The petitioner has also refuted the allegation of supervisory lapse on his part relating to the aforesaid incident. It has been stated that the supervisory failure on the part of the petitioner has been alleged on the plea that he failed to lodge F.I.R in spite of being informed about the aforesaid occurrence even after submission of a written compliant by the Management/officials of Durgapur Steel Plant. It has been alleged that he also failed to maintain command and control over the staff of the C.I.S.F who connived with the driver of the Dumper in the said incident and that he had deliberately sent a false report to the C.I.S.F Head Quarters in order to protect the corrupt C.I.S.F personnel. It has been submitted that the charges are baseless and malicious. The petitioner being the D.I.G was the Head of the Unit and no such duty is cast by any rule on the Head of the Unit to lodge an F.I.R in case of any theft or loss of Plant's property. In fact, the C.I.S.F is not supposed to lodge an F.I.R in the matter of theft of the Plant's property, except in case, a culprit is apprehended red banded with the material by the C.I.S.F personnel. In the instant case, the incident was complained by the Management and on their complaint, the petitioner took immediate action and directed the C.I.S.F Commandant Mr. K.K. Singh to take quick steps to seize the Dumper. The driver with the Dumper, on chase, was apprehended and were handed over to the local police. The Management thereafter lodged the formal F.I.R. In any view an F.I.R is to be lodged by a person who is acquainted with the incident and who has firstly (Sic) information and not by the D.I.G, the Head of the Unit who was himself informed by others. It has been stated that not a single F.I.R in the matter of any crime has been lodged by the D.I.G himself in Durgapur Steel Plant. The allegation of not lodging the F.I.R by the petitioner cannot be termed as any lapse on his part and the same cannot be a cause for initiating departmental proceeding. The same cannot be brought within the ambit of misconduct in the facts and circumstances of the instant case and that too on the basis of the report of the respondent No. 6 whose action is actuated with malafide. It has been stated that in the past three junior officers have been given promotion by superseding Page 2326 the petitioner on one plea or the other and this time also the petitioner is being made a victim of malafide and bias only in order to deprive him of his due promotion. The petitioner has submitted that the suppression of first preliminary enquiry conducted by Mr. P.K. Basu, the immediate transfer of the petitioner from that place debarring him from supervising the further investigation and second uncalled for preliminary enquiry by respondent No. 6, basing the charges on the report of respondent No. 6 taken together clearly indicate the deliberate conspiracy against the petitioner to illegally deprive him of his due promotion. The said facts prima facie go to demonstrate the bias and malafide against the plaintiff and the same vitiates the entire departmental proceeding including the charges levelled against the petitioner and the same are liable to be quashed by this Court.
6. A counter affidavit has been filed by the respondents denying the said contentions of the petitioner and stating, inter alia, that though it is correct that promotion of Shri H.V. Chaturvedi, I.G (NES)-respondent No. 6 is subject to final order in the writ petition filed by the petitioner, he had not conducted the preliminary enquiry on his own, but he was directed by the D.G, C.I.S.F to conduct the preliminary enquiry. The preliminary enquiry conducted by the respondent No. 6 is free and fair. There was nothing wrong in conducting preliminary enquiry by the respondent No. 6. In the said P.E the role of the petitioner, along with others, was found blameworthy and he was found responsible for the lapses mentioned in the articles of charges and on that basis the competent authority ordered major penalty proceeding under Rule 14 of the CCS (CCA) Rule, 1965 against the petitioner. It has been further stated that the charges levelled against the petitioner are based on the reported facts which demonstrate supervisory lapses on the part of the petitioner. The petitioner, in spite of the written information, did not lodge the F.I.R and that on his failure, the F.I.R was lodged by the General Manager of the Durgapur Steel Plant reporting the said incident of theft. The petitioner had submitted the report to the Head Quarters, but the said report did not contain the correct description or the incidence. The petitioner directed Mr. P.K. Basu, the Assistant Commandant, to conduct the preliminary enquiry and even in the preliminary enquiry conducted by Mr. P.K. Basu, the C.I.S.F personnel were blamed for the said incidence. Subsequently, the Director General, C.I.S.F directed the I.G (NES) to conduct the fresh preliminary enquiry into the incidence and on the basis thereof, the disciplinary authority directed for initiation of the departmental proceeding against the petitioner. The charges have been named on the basis of the materials available on record and by a decision of the disciplinary authority and this Court has got no jurisdiction to enter into the said question and to interfere with the impugned departmental proceeding. It has been further stated that the writ petition is wholly frivolous and the same is fit to be dismissed by this Court.
7. The main grievance of the petitioner in this case, is that the impugned departmental proceeding is based on the second preliminary enquiry conducted by the respondent No. 6 who had personal bias against the petitioner as his promotion to the rank of the Inspector General of Police was dependant on the result of the writ petition filed by the petitioner in Calcutta High Court and in order to create further impediment in the petitioner's promotion, he has been deliberately sought to be involved in another departmental proceeding on frivolous charges. The allegation of the said respondent Page 2327 No. 6 regarding the supervisory failure on the part of the petitioner is the result of the said personal bias and the same is wholly without any basis.
8. Mr. Y.V. Giri, learned Sr. counsel appearing on behalf of the petitioner, submitted that the impugned departmental proceeding against the petitioner is vitiated on account of malice and bias as the same is grounded on the said second preliminary enquiry conducted in absence of the petitioner by the respondent No. 6. The said respondent No. 6 was promoted to the rank of the Inspector General of Police by superceding the petitioner as the petitioner's promotion order was under sealed cover and the promotion of the respondent No. 6 to the rank of the Inspector General of Police was conditional subject to the result of the writ petition pending before the Calcutta High Court being W.P No. 1504/03, the said respondent No. 6 was thus actuated with malice in creating the said second preliminary enquiry report in which supervisory failure on the part of the petitioner was baselessly alleged and as such the contention of the respondents that the second preliminary enquiry report has no bearing on the initiation of the impugned departmental proceeding has no substance. Learned Counsel submitted that none of the allegations makes out any case of alleged misconduct, yet the departmental proceeding has been initiated on the basis of the malicious report of the respondent No. 6. If the same is allowed to continue, it would be an abuse of process and blatant violation of rule of fair play and principle of natural justice. Learned Counsel submitted that the petitioner's allegation of bias is not unfounded as in the circumstances of the case, he has got conspicuous reason to complain bias and to protest against the departmental proceeding initiated against him which is likely to affect his promotion, the third time. Learned Counsel submitted that there are ample materials to prove reasonable apprehension of bias which is sufficient to vitiate the entire proceeding and that it is not necessary to prove actual bias. Learned Counsel placed reliance on a decision of the Supreme Court in Kumaon Mandal Vikas Nigam Ltd. v. Girja Shank Pant and Ors. reported in (2001) 1 SCC 182. He submitted that in the past also, the petitioner's promotion orders had been kept under sealed cover on three occasions and consequently three persons, junior to him, were promoted by superceding the petitioner and this time also, the departmental proceeding has been deliberately initiated against the petitioner only in order to deprive him of his long due promotion. Earlier, the petitioner was proceeded against the minor punishment charges and was punished. But the same was set aside by the Allahabad High Court in Civil Miscellaneous Writ Petition No. 18726/93 by order dated 18.9.06. The petitioner's allegation of malafide is not unfounded and without any basis. The petitioner, this time has been charge-sheeted for the alleged supervisory failure on his part for not lodging an F.I.R by himself. In Union of India and Ors. v. J. Ahmed , it has been held by the Apex Court that failure to maintain absolute devotion to duty and action in a manner unbecoming of an officer cannot be basis of the disciplinary proceeding unless and until there is evidence that some real act leading to such charge was done because of some improper motive or extraneous consideration. It has been further held that mere omission to do a particular act would not constitute a failure to devotion to duty. Testing on the said principle, the imputation even accepted, does not constitute any basis of disciplinary proceeding. He further referred to and relied on a decision of the Supreme Court in Zunjarrao Bhikaji Nagarkar v. Union of India and Ors. and submitted that vague and indefinite information can not be the basis of a disciplinary proceeding and that there Page 2328 must exist reasonable basis for disciplinary authority to proceed against an employee and that the failure to exercise quasi judicial power properly itself is not a misconduct as a wrong decision is subject to the judicial review. For bringing an act or omission within the ambit of misconduct, the negligence should not be of mere carelessness, indulgence or omission, but also a palpable negligence. He further referred (Sic) respondent No. 6 was biased as it is difficult to prove the state of mind of a person, but it is sufficient if there is a reasonable likelihood of bias. It has been stated that the Supreme Court in the said decision, inter alia, has held that if the decision of the Selection Board is vitiated, the final recommendation must also be vitiated and they cannot be dissociated from the selection made by the Selection Board which is the foundation of the recommendation of the U.P.S.C. Learned Counsel contended that the very basis of initiation of the proceeding in the instant case is preliminary enquiry report of respondent No. 6 which is tainted with bias. Any decision made by the concerned authority at the subsequent stage on the said basis, is also vitiated. Learned Counsel thus concluded that the departmental proceeding against the petitioner being founded on P.E of respondent No. 6 the reasonable apprehension of bias cannot be excluded and the entire proceeding is thus vitiated and is liable to be quashed by this Court for the ends of justice.
9. Mr. Vikas Singh, learned Additional Solicitor General of India, on the other hand, submitted that holding of enquiry is the exclusive prerogative of the superior authority and this Court has no jurisdiction to interfere with the decision of the disciplinary authority. He submitted that any defect in the preliminary enquiry does not in any manner vitiate the departmental enquiry. The petitioner's objection that the departmental proceeding is based on the second preliminary enquiry and on the recommendation of the respondent No. 6, who had bias against the petitioner, has no relevance as the same was not an statutory enquiry. He relied upon a decision of the Supreme Court in Vijay Kumar Nigam v. State of M.P and Ors. and also in Narayan Dattatraya Ramteerthakhar v. State of Maharashtra and Ors. . Learned Additional Solicitor General further submitted that preliminary enquiry was not at all required for initiating the departmental enquiry. He placed his reliance on a decision of the Supreme Court in Secretary to Government of T. N. v. Dr. Subramanyan Rajadevan . He further relied on an unreported decision of the Supreme Court dated 8.12.06 rendered in Civil Appeal No. 5287/2005 in the case of Union of India v. M.S. Gulair and submitted that a non-statutory recommendation by the C.V.C will not vitiate the final decision taken by the disciplinary authority, even if there are some violation of principle of natural justice in the recommendation. In the instant case the preliminary enquiry was not required for initiating the departmental proceeding and as such any allegation of bias against the respondent No. 6, who had recommended for initiating the departmental proceeding against the petitioner, does not vitiate the impugned departmental proceeding in view of the aforementioned decisions of the Supreme Court and no interference is warranted by this Court.
10. I have considered the facts and material on record, rival contentions and submissions made by learned Counsel for the parties and the case laws referred to and relied on by them. The petitioner has alleged that the impugned departmental proceeding is based on the Preliminary Enquiry (P.E) report submitted by the Page 2329 respondent No. 6 who alleged supervisory lapse on the part of the petitioner. The respondent No. 6 is none else but one whose promotion to the rank of the Inspector General of Police was made subject to the result of the writ petition filed by the petitioner in Calcutta High Court. The petitioner has claimed that the said respondent No. 6, was junior to him, and the petitioner's promotion was kept under sealed cover and the said respondent No. 6 was conditionally promoted to the rank of the Inspector General of Police. The promotion and seniority of the said respondent No. 6 is unquestionable so long the petitioner is not promoted and on the ground of pendency of the proceeding his promotion has been withheld/kept in sealed cover and juniors have been promoted. The respondent No. 6 is thus an interested person. The proceeding is initiated after submission of P.E report by the respondent who found supervisory lapse on the part of the petitioner. The petitioner contested that there was absolutely no lapse on his part. He took all required steps on getting information regarding the incident dated 10.6.05. He directed the Commandant Mr. K.K. Singh to take immediate action. He had taken steps and apprehended the driver and the alleged Dumper. The General Manager was informed about the seizure of the Dumper who came to the C.I.S.F Complex with two officials and witnessed the same. The officials of the Durgapur Steel Plant thereafter submitted a written complaint to the petitioner. The petitioner gave a written instruction to the Commandant to hand over the Dumper and driver to the local police and subsequently on the written report of the officers of Durgapur Steel Plant, an F.I.R was drawn up and the case was registered under Sections 379/409 & 120B I.P.C. It has been further stated that in order to ascertain as to whether the C.I.S.F personnel had any connivance with the said incident, the senior officer to the rank of the Assistant Commandant Mr. P.K. Basu was detailed to inquire into the matter. In the mean while, the petitioner was transferred to the C.I.S.F Head Quarters on 14.6.05. By the time he was relieved, six C.I.S.F personnel were put under suspension at the direction of the petitioner. It has been stated that Mr. P.K. Basu, Assistant Commandant, did not find anything wrong against the petitioner. In the mean while, the respondent No. 6 started another preliminary enquiry in absentia and submitted his report alleging supervisory failure on the part of the petitioner.
11. In view of the facts and circumstances of this case, the core issue needs to be answered is as to whether the petitioner could make out a case of reasonable apprehension of bias having vitiating effect on the impugned departmental proceeding in view of the violation of the doctrine of Nemo Zudex in Causa Sua i.e. freedom for bias. In A.I.R 1999 S.C 1316, the Supreme Court has viewed the doctrine of bias vis-a-vis a judicial tribunal and held that no man shall be Judge of his own cause and that justice should not only be done but manifestly and undoubtedly seen to be done. In the case of A.K. Karaipak (supra), the Supreme Court has held that it is to be seen as to whether there is a reasonable likelihood of bias and in deciding such question, human probability, propriety and ordinary course of human conduct must be taken into consideration. In State of U.P v. Mohammad Nooh reported in A.I.R 1958 S.C 86, the Apex Court has held that if an enquiry officer himself examined as a witness in the enquiry, it was a case of strong bias and was gross violation of the principle of natural justice, in Narinderjit Singh and Ors. v. The State of U.P and Ors. , the Allahabad High Court concluded that if an officer takes up Page 2330 cudgels on behalf of the party and gives him undue diligence, it would reflect strong indication of bias. The Supreme Court has further held in A.I.R. 1987 S.C 544 that the question is not of actual bias or partiality, but as to whether there is likelihood of bias. The strict test which is applied to the authorities exercising judicial power is being increasingly applied to the administrative bodies in order to decide as to whether there is likelihood of bias. The Apex Court further provided a test observing that the proper approach of the Judge is not to look at his own mind and ask himself 'am I biased', but to look at the mind of the party before him. What is thus relevant is the reasonableness of the apprehension in that regard in the mind of the party. Converging to the principles, which constitute minimum requirement of justice, is the principle of natural justice. The word 'Judge' within the word 'Justice' means upright, fair or proper. The fundamental quality of fairness is that the justice will not be only done, but also appears to be done. It has been repeatedly said that the fair play in action is the soul of natural justice. In Mohinder Singh Gill and Ors. v. The Chief Election Commissioner, New Delhi and Ors. , the Supreme Court made it clear that natural justice is pervasive facet of secular law. Hon'ble Justice Shah, as then was, speaking for the Supreme Court in the case of State of Orissa v. Dr. (Miss) Binapani Dei and Ors. observed that "if there is power to decide and determine the prejudice of a person, duty to act judicially is implicit in exercise of such power".
12. In the instant case the respondent No. 6 conducted the preliminary enquiry and concluded with report of supervisory lapse on the part of the petitioner, which led to the impugned departmental proceeding against the petitioner. The said report having direct nexus with the impugned departmental proceeding thus leads to a reasonable apprehension of bias. The very existence of the element of bias goes to the root of the departmental proceeding and has a vitiating effect. The decision having been taken on that basis by the disciplinary authority to initiate the departmental proceeding against the petitioner, whether the said P.E is statutory on non-statutory has no much relevance. The ground taken by learned Additional Solicitor General that the same was not a statutory enquiry may be academically acceptable, but the same has no relevance in the facts and circumstances of this case. The decisions referred to and relied upon by him in the cases of Narayan Dattatraya, M.S. Gulair and Vijay Kumar Nigam (supra) too, have hardly any relevance in the instant case.
13. In view of the foregoing discussions, I hold that the petitioner has been able to prove the reasonable apprehension of bias in initiating the impugned departmental proceeding against him. The existence of danger of bias being opposite to the rules of fair play and the principle of natural justice, which aims not only at achieving justice but also to prevent the miscarriage of justice, vitiates the impugned departmental proceeding. The impugned departmental proceeding is thus, hereby, quashed. This writ petition is allowed. It is made clear that this Court has not gone into the merit of other factual allegations and rival contentions of the parties.