Gujarat High Court
Dilipkumar M.Rathod vs Union Of India on 8 October, 2021
Author: Sonia Gokani
Bench: Sonia Gokani, Sangeeta K. Vishen
C/SCA/16255/2005 JUDGMENT DATED: 08/10/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 16255 of 2005
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE SONIA GOKANI
and
HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
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1 Whether Reporters of Local Papers may be allowed YES
to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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DILIPKUMAR M.RATHOD
Versus
UNION OF INDIA & 2 other(s)
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Appearance:
MR KK SHAH(767) for the Petitioner(s) No. 1
MR YS RAJPUT(1383) for the Petitioner(s) No. 1
MR NIRAL R MEHTA(3001) for the Respondent(s) No. 1,2,3
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CORAM:HONOURABLE MS. JUSTICE SONIA GOKANI
and
HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
Date : 08/10/2021
ORAL JUDGMENT
(PER : HONOURABLE MS. JUSTICE SONIA GOKANI)
1.The petitioner while working as a Head Constable/ Driver in the respondent - Department at Centre Industrial Security Page 1 of 51 Downloaded on : Sun Jan 16 22:54:46 IST 2022 C/SCA/16255/2005 JUDGMENT DATED: 08/10/2021 Force was chargesheeted on 10.07.2001, which was issued by Commandant, CISF Unit, NFC,Hyderabad.
2.Brief facts leading to the present petition are as follow:
2.1 The statement of imputation of misconduct reveals that the role of the petitioner was of a Driver and while performing the duty, his immediate officer, Inspector, Shri Rajive Trivedi directed him to take the jeep at labour colony and he along with Inspector, Shri Rajiv Trivedi visited the labour colony, collected four number of liquor bottles and ten number of liquor pouches from the hut of Shri Kashinathan and also collected Rs.150/- as illegal gratification from Shri Kashinathan, who was the hut owner.Page 2 of 51 Downloaded on : Sun Jan 16 22:54:46 IST 2022
C/SCA/16255/2005 JUDGMENT DATED: 08/10/2021 2.2 The petitioner on receipt of chargesheet requested for Hindi version since he was not conversant with English for not having been qualified. His request was turned down vide communication dated 17.08.2001. 2.3 On 28.09.2001 the Inquiry Officer was appointed, who was Shri N.J.Madhusudan, Deputy Commandant, CISF.
2.4 On 17.10.2001, the petitioner received a letter from the respondent for fixing the inquiry within 48 hours and thereafter on 01.01.2002, the petitioner received another inquiry notice for fixing the inquiry on 07.01.2002 and again the notice was sent for fixing the inquiry on 28.01.2002. Thereafter, the notice was given on 14.02.2002 for fixing the inquiry on 27.02.2002 and on 28.02.2002 notice was issued for fixing the inquiry on 08.03.2002. Page 3 of 51 Downloaded on : Sun Jan 16 22:54:46 IST 2022 C/SCA/16255/2005 JUDGMENT DATED: 08/10/2021 2.5 It is further averred that on 18.03.2002, the petitioner was directed to give his defence statement by 21.03.2002. During the preliminary inquiry, he did not accept the charges levelled against him. The inquiry was not conducted as per the Rules, Practice and Procedure as he was not knowing the regional language, the documents were listed more particularly of the statement of key witness Shri Kashinathan, translation of which was done by the Inspector, which was also in English. He was from Gujarat and posted at Andhra Pradesh. He could not get the defence counsel, who can understand Hindi and despite his desire to engage the defence counsel, he could not get and the office has eventually told him that they would be finalizing the inquiry and nothing would happen to him. Therefore, he proceeded with the inquiry.
Page 4 of 51 Downloaded on : Sun Jan 16 22:54:46 IST 2022 C/SCA/16255/2005 JUDGMENT DATED: 08/10/2021 2.6 It is also averred by the petitioner that while examining the prosecution witnesses, the Inquiry Officer has not called upon the prosecution witnesses to state anything about their earlier statement and whether they are confirming the same or not. 2.7 It is further the say of the petitioner that the Presenting Officer was not appointed. The Inquiry Officer played triple role in the instant case and has exceeded his jurisdiction. The Inquiry Officer without calling upon the prosecution witnesses and without confirming that whether the statements had been recorded, which are the bases for framing of chargesheet, took the statement of the prosecution witnesses and he simply cross examined prosecution witnesses without giving a chance to the delinquent to cross examined. The petitioner was knowing Hindi and the Inquiry Officer and the prosecution witnesses were knowing Page 5 of 51 Downloaded on : Sun Jan 16 22:54:46 IST 2022 C/SCA/16255/2005 JUDGMENT DATED: 08/10/2021 English and Telugu-the regional language of the Andhra Pradesh. The Inquiry Officer also took petitioner in his confidence and conveyed that he will take care of his case also and he cross examined the prosecution witnesses and thereafter, he once again examined the prosecution witnesses. Thus the entire inquiry was just an eyewash. The Inquiry Officer on the basis of such inquiry prepared the report and the same was furnished along with the memorandum on 09.04.2002.
2.8 The petitioner gave an application on 04.01.2002 to give the documents in Hindi. The petitioner also gave his reply in Hindi on 03.05.2002. The penalty imposed by the respondent No.3 on 27.05.2002 was of removal from service.
2.9 The Departmental Appeal was preferred on 10.07.2002, the appellate Page 6 of 51 Downloaded on : Sun Jan 16 22:54:46 IST 2022 C/SCA/16255/2005 JUDGMENT DATED: 08/10/2021 authority rejected the appeal allegedly without any consideration and without following the principles of natural justice and fair play.
2.10 The petitioner being aggrieved by this preferred the Revision Petition on 04.02.2003, the same has also been rejected by the Revisional Authority on 20.06.2003. Various grounds have raised questioning the inquiry, more particularly, alleging that the entire inquiry was unilateral, predetermined and without following the natural justice and fair play.
3.Accordingly, the petitioner has sought the following reliefs:
"10...
(A) This Hon'ble Court may be pleased issued writ or Mandamus or any other appropriate writ, order or direction by quashing and setting aside the impugned order dated 27.05.2002 passed by the disciplinary authority at Annexure-"C", order dated 27.11.2002 Page 7 of 51 Downloaded on : Sun Jan 16 22:54:46 IST 2022 C/SCA/16255/2005 JUDGMENT DATED: 08/10/2021 passed by the appellate authority at Annexure-"E" and order dated 20.06.2003 passed by the revisional authority at Annexure-"G" and further be pleased to vitiate the entire inquiry holding the same as illegal, against the principle of natural justice and fair-play and direct the respondents to reinstate the petitioner with continuity of service along with consequential benefits in the interest of justice.
(B) Pending admission, hearing and final disposal of this petition, the respondents be called upon to produce the disciplinary proceedings of the petitioner and also of Shri Rajiv Trivedi.
(C) This Hon'ble Court may be pleased to pass such other and further order/s as deemed fit, just and proper in the interest of justice."
4.Affidavit-in-reply has been filed by the Commandant, resident of CISF Unit, NFC, Hyderabad. He has denied all the contentions raised by the petitioner. According to him, while serving at CISF Unit, NPC, Kaiga, the petitioner was dealt with under Rule 34 of CISF Rules, 1969 (now revised Rule 36 of CISF Rules, 2001 and Amendment Rule, 2003) vide charge memorandum. The article of charge was as follows:
Page 8 of 51 Downloaded on : Sun Jan 16 22:54:46 IST 2022
C/SCA/16255/2005 JUDGMENT DATED: 08/10/2021 ARTICLE OF CHARGE:
"An act prejudicial to good order and discipline of the Force in that No.953200070 HC/Dvr D.K.Rathod of CISF Unit, NPC, Kaiga while performing duty in Jeep No.CTE 3411 along with Insp/Exe Rajiv Trivedi of CISF Unit, NPC Kaiga visited a hut in labour colony at about 1500 hrs on 19.03.2001 unauthorisedly by CISF Jeep. He along with Inp/Exe Rajiv Trivedi collected four quarter bottles and ten poches (100ml each) of liquor from the hut and also collected Rs.150/- as illegal gratification from Shri Kashinathan owner of the said hut. Further HC/Dvr D.K.Rathod along with Insp/Exe Rajiv Trivedi arrived at the main gate and HC/Dvr D.K.Rathod failed to inform the incident to his superiors and suppressed the facts. The above act on the part of No.953200070 HC/Dvr D.K.Rathod tantamounts to gross indiscipline, misconduct and corrupt practice, quite unbecoming of a member of an armed Force of the Union. Hence the charge".
4.1 The petitioner after receipt of the charge memorandum dated 10.07.2001, submitted an application on 20.07.2001 requesting to supply the charge memorandum in Hindi language. Such request was not entertained on the ground that ordinarily Page 9 of 51 Downloaded on : Sun Jan 16 22:54:46 IST 2022 C/SCA/16255/2005 JUDGMENT DATED: 08/10/2021 in Group C employees working in the office located in Hindi speaking area, if they so desired to conduct the proceedings in Hindi. Due to non-availability of translation facilities or lack of working knowledge of Hindi, the Inquiry Officer or Disciplinary Authority could not accede to such request. This was otherwise in consonance with the instructions of use of Hindi by Government of India.
4.2 According to the respondent, the administration was not equipped enough to translate the charge memorandum in Hindi and accordingly, the request was rejected on 17.08.2001.
4.3 According to the respondent, the Disciplinary Authority took all possible steps to see that the charge memorandum was explained to the petitioner in Hindi language through the Assistant Commandant, Page 10 of 51 Downloaded on : Sun Jan 16 22:54:46 IST 2022 C/SCA/16255/2005 JUDGMENT DATED: 08/10/2021 Mr.A.D.Arandev,, CIFS Unit. By way of certificate dated 22.09.2001, it has been conveyed that the charge memorandum has been explained to him in Hindi language and he has understood the charge.
4.4 The charge memorandum has been issued on 17.07.2001 whereas the Inquiry Officer was appointed on 28.09.2001. Thus, there was sufficient time to attend to the inquiry. Again the Inquiry Officer had also fixed the date for preliminary hearing. So far as issue of the Presenting Officer is concerned, it is contended that the Presenting Officer was not appointed as there was no provision to appoint Presenting Officer under Rule 34 of the CISF Rules and therefore, the Inquiry Officer was himself empowered to cross examine the prosecution witnesses. Rule 34 of the CISF Rule, 1969 since had no provision to appoint the Presenting Page 11 of 51 Downloaded on : Sun Jan 16 22:54:46 IST 2022 C/SCA/16255/2005 JUDGMENT DATED: 08/10/2021 Officer under Rule 34, the Inquiry Officer is empowered to cross examine the prosecution witnesses. It is reiterated that there is no provisions under Rule 34 of the CISF Rule for appointing the Presenting Officer; however, the said clause has been included in the Revised CSF Rules,1969 issued and published in the Gazette of India on 05.11.2001, they are called Central Industrial Security Force Rules, 2001. According to the respondents, the petitioner was given ample opportunity to cross examine the witnesses. The Inquiry Officer belongs to State of Kerala and prosecution witnesses belong to various States in India. The ample opportunity was given to the petitioner to defend his case effectively and he has also utilized such opportunities. Therefore, it cannot be said that the Inquiry Officer conducted Page 12 of 51 Downloaded on : Sun Jan 16 22:54:46 IST 2022 C/SCA/16255/2005 JUDGMENT DATED: 08/10/2021 the inquiry and prepared the findings against him.
4.5 The report of the Inquiry Officer has been supplied on 19.04.2002, under proper acknowledgment. There were no requests to give the documents and the rest of the papers were in Hindi. It is further the say of the respondent that though the proceedings of the inquiry are normally to be done in English language, he in short has urged that the petition does not deserve any entertainment.
5.Affidavit-in-rejoinder has also been filed by the petitioner.
6.This Court has heard extensively the learned advocates on both the sides.
7.According to the learned advocate, Mr.K.K.Shah, the delinquent must understand Page 13 of 51 Downloaded on : Sun Jan 16 22:54:46 IST 2022 C/SCA/16255/2005 JUDGMENT DATED: 08/10/2021 the language. He has also urged that no one was appointed as Presenting Officer. He has relied on the decision of this Court rendered in case of SATISH S/O RAMPRASAD AGNIHOTRI Versus UNION OF INDIA passed in Special Civil Application No.7466 of 2019, wherein this Court has observed as under:
"29.Shri K.K.Shah, learned counsel for the petitioner has raised the following arguments. We are recording the arguments in brief and would elaborate the same on the basis of the pleadings and the material on record at a later stage while discussing the same:-
(i) Repeated orders for preliminary inquiry are not contemplated under law and it smacks of malice and is apparently for extra legal considerations.
(ii) The conduct of the Officers of RPF in dealing withthe entire matter is unwarranted in law and was only with the motive to somehow or the other punish the petitioner, that is to say that the petitioner was being victimised.
(iii) The report of the Inquiry Officers, the orders passed by the Disciplinary Authority, the Appellate Authority and the Revisional Authority are vitiated in law as relevant material has been ignored whereas reliance has been placed on irrelevant material. The orders passed by the above authorities are also vitiated being non-speaking and cryptic.
(iv) The penalty imposed by the Deputy Chief Security Commissioner is by an Officer below the rank of the Disciplinary Authority and, therefore, the punishment order is without the authority of law.
(v) The Inquiry Officer has been appointed without waiting for reply to the charge sheet and as such, the charge sheet is vitiated.
(vi) The Inquiry Officer and the Presenting Officer were one and the same and as such, the entire inquiry is vitiated, being quasi-judicial proceedings in which the prosecution and the Judge are the same.Page 14 of 51 Downloaded on : Sun Jan 16 22:54:46 IST 2022
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(vii) The impugned proceedings are in violation of the principles of natural justice and fair play, arbitrary and discriminatory and as such, violate the fundamental rights guaranteed under Articles 14, 16, 21 and 311 of the Constitution of India.
(viii) The first two preliminary inquiry reports were not made part of the proceedings.
(ix) The entire proceedings were carried on, right from the stage of first preliminary inquiry, on the basis of a xerox copy of the complaint as the original was submitted before the Inquiry Officer only at the stage when Constable Satyavir Krishaniya was examined. Thus also, the proceedings are vitiated.
(x) The entire proceedings are the result of mala fide and influence brought about by Constable Satyavair Krishaniya, who had an axe to grind against the petitioner for having filed a complaint against him and his friend Constable Darshan Singh.
(xi) The respondents have not come out with clean hands even in the counter affidavit and have tried to misguide and mislead the Court.
56. The above development on the part of the respondents raises a pertinent question regarding the propriety, authority and jurisdiction of the Senior Divisional Security Commissioner, RPF, Vadodara, to initiate disciplinary proceedings and issue the Memorandum and the charge- sheet. Before we deal with this aspect, relevant provisions under the 1987 Rules need to be considered.
57. Chapter-XII of the 1987 Rules deals with disciplinary and penal punishments. Rule 148.2 enlists the major punishments. The first major punishment mentioned is dismissal from service in Clause (a) thereof. Rule 151 describes the disciplinary authority. Rule 151.1 states that the disciplinary authority in respect of any enrolled member would be as specified in this behalf in Schedule-III of the Rules. Further, Rule 152 speaks of authority empowered to institute proceedings. According to it, the appointing authority or any authority otherwise empowered by general or special order may institute disciplinary proceedings against any enrolled member or direct a disciplinary authority to institute disciplinary proceedings against any enrolled member of the force. This clearly means that any authority otherwise empowered by general or special order would be superior to disciplinary authority or even the appointing authority would be superior to disciplinary authority. Page 15 of 51 Downloaded on : Sun Jan 16 22:54:46 IST 2022 C/SCA/16255/2005 JUDGMENT DATED: 08/10/2021
58. Rule-153 deals with procedure for imposing major punishment and under the relevant sub-rules of Rule-153, the word used everywhere is disciplinary authority. As such it would be essential to examine as to who is the disciplinary authority. For the said purpose, it would be relevant to refer to Schedule-III. In ScheduleIII, relevant for the present matter would be the reference to the authorities mentioned for awarding punishment of dismissal at serial No.2. The Divisional Security Commissioner/Security Commissioner/Commanding Officer/Senior Security Commissioner are authorized to award punishment of dismissal to all enrolled members of the force below the rank of Sub-Inspector. The petitioner was promoted as Sub- Inspector prior to the issuance of the Memorandum dated 09.09.2016 i.e. the initiation of the disciplinary proceedings. Further, according to Schedule-III Additional/Deputy Chief Security Commissioner/Principal, RPF Academy would be the disciplinary authority for awarding punishment of dismissal to all enrolled members of the force below the rank of Inspector. It is this authority under which the petitioner would fall being a Sub-Inspector. The Memorandum dated 09.09.2016 refers to the petitioner as Sub-Inspector, Protection Force and therefore, the disciplinary authority on the relevant date of initiation of disciplinary proceedings would be Deputy/Additional Chief Security Commissioner and not Senior Divisional Security Commissioner. Therefore, the very initiation of proceedings would be in jeopardy having been initiated by an officer below the rank of disciplinary authority.
59. For the benefit of the above, we hereby reproduce Rules-151, 152 and 153, sub-rules 153.1 upto 153.5 and relevant extract of Schedule-III of the 1987 Rules:
"151. Disciplinary Authority:
151.1 The disciplinary authority in respect of any enrolled member of the Force for the purpose of imposing any particular punishment o r the passing of any disciplinary order shall be the authority specified in this behalf in Schedule III in whose administrative control the member is serving and sh all include any superior to such authority.
151.2 The disciplinary authority, in the case of an enrolled member of the Force officiating in a higher rank, shall be determined with reference to the officiating post held by him at the time of taking action.
152. Authority to institute proceedings: 152.1 The appointing authority or any authority otherwise empowered by general of special order, may -Page 16 of 51 Downloaded on : Sun Jan 16 22:54:46 IST 2022
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(a) institute disciplinary proceedings against any enrolled member; or
(b) direct a disciplinary authority to institute disciplinary proceedings against any enrolled member of the Force on whom the disciplinary authority is competent to impose, under these rules, any of the punishment s specified in rules 148 and 149. 152.2 A disciplinary authority competent under these rules to impose any of the minor punishments may institute disciplinary proceedings for the imposition of any of the major punishments notwithstanding that such disciplinary authority is not competent, under these rules, to impose any of the latter punishments.
153. Procedure for imposing major punishments: 153.1 Without prejudice to the provisions of the Public Servants Inquires act, 1850, no order of dismissal, removal, compulsory retirement or reduction in ranks shall be passed on any enrolled member of the Force (save as mentioned in rule 161 ) without holding an inquiry, as far as may be in the manner provided hereinafter, in which he has been informed in writing of the grounds on which h it is proposed to take action, and has been afforded a reasonable opportunity of defending himself. 153.2.1. Whenever the disciplinary authority is of the opinion that there are grounds for inquiring into the truth of any imputation of m is conduct or misbehaviour against an enrolled member of the Force, it may itself inquire into or appoint an Inquiry Officer higher in rank to the enrolled member charged but not below the rank of Inspector, or institute a Court of Inquiry to inquire in to the truth thereof.
153.2.2. Where the disciplinary authority itself holds the inquiry, any reference to the Inquiry Officer in these rules shall be construed as reference to the disciplinary authority. 153.3. On receipt of complaint or otherwise, the disciplinary authority on going through the facts alleged or brought out shall decide whether it is a case for major punishment. No attempt shall be made to convert cases punishable under section 16 A or section 17 into disciplinary cases nor divert cases in respect of which major punishments are imposable to the category of cases where minor or petty punishments are imposable. 153.4 Where it is proposed to hold an inquiry against an enrolled member of the Force under this rule, the disciplinary authority may order that the enrolled member shall not be transferred to any other place nor given leave without its written permission till the conclusion of the disciplinary proceedings, and the disciplinary authority shall draw up or cause to be drawn up - Page 17 of 51 Downloaded on : Sun Jan 16 22:54:46 IST 2022 C/SCA/16255/2005 JUDGMENT DATED: 08/10/2021
(a) the substance of the imputations of misconduct or misbehaviour into definite and distinct articles of charge;
(b) a statement of the imputations of misconduct or misbehaviour in support or each article or charge which shall contain,-
(i) a statement of all relevant facts including any admission or confession made by the enrolled member of the Force;
(ii) a list of document by which and a list of witness by whom the articles of charge are proposed to be sustained. 153.5 The disciplinary authority shall to be delivered to the delinquent member, at least seventy-two hours before the commencement of the inquiry, a copy of the articles of charge, the statement of imputations of misconduct or misbehaviour and a list of documents and witness by which each article of charge is proposed to be sustained and fix a date when the inquiry is to commence; subsequent dates being fixed by the Inquiry Officer.
SCHEDULE-III DISCIPLINARY AUTHORITIES AND THEIR POWERS (See rules 25 & 133) Sr.No Nature of powers Director Chief Security Additional / Dy. Divisional Deputy/ . General Commissioner Chief Security Security Assistant Commissioner / Commissioner/ Security Principal, RPF Security Commissioner/ Academy Commissioner Assistant Commanding Commandant Officer/Senior of Security RPSF/Adjutant Commissioner 1 Suspension All All enrolled All enrolled members All enrolled All under enrolled members of the of the Force members of officers and members Force the Force below of the Force 2 Dismissal -do- -d- All enrolled members All enrolled No powers of the Force below members of the rank of Inspector the Force below the rank of Sub-
Inspector 3 Removal -do- -do- -do- -do- -do-
4 *** *** *** *** *** *** Page 18 of 51 Downloaded on : Sun Jan 16 22:54:46 IST 2022 C/SCA/16255/2005 JUDGMENT DATED: 08/10/2021
60. From the above, it is more than apparent that the rules mandated for the proceedings are that the disciplinary inquiries are to be initiated by the disciplinary authority only. Consistently, the word used in the above Rules is disciplinary authority. Even Rule 152 which talks of appointing authority or any other authority authorized or empowered in that behalf, to be an authority superior to the disciplinary authority. Once the relevant rules and Schedule-III of the 1987 Rules provides for Deputy/ Additional Chief Security Commissioner to be the disciplinary authority for the petitioner who was a Sub-Inspector initiation of the proceedings and issuance of the charge-sheet, would itself be by a lower authority not empowered or competent to do so and therefore the entire inquiry would stand vitiated being without jurisdiction.
61. Now coming to the next question with regard to the correctness of the inquiry report, the orders passed by the Disciplinary Authority, Appellate Authority and the Revisional Authority. Insofar as the inquiry report is concerned, it has already been observed that the 83 pages inquiry report contains discussion of the 3 charges only in 10 pages. The rest of the 73 pages are the recording of the inquiry proceedings of the witnesses produced by the complainant as also the petitioner. Out of the 3 pages discussion, in only 3 pages the discussion on the first charge has been made and a finding of guilt has been recorded. The other 7 pages of the discussion part deals with the charge Nos.2 and 3 in which the petitioner has been found to be not guilty. This makes the inquiry extremely cryptic. Non- consideration of the evidence led during the inquiry in particular the cross examination of the witnesses by the petitioner as also the statement of the petitioner recorded in the inquiry.
62. The disciplinary authority although records the order in 9 pages but it after recording the facts narrated by the petitioner in his representation does not deal with each aspects of the matter. The order thus appears to be vitiated on account of non- consideration of the various objections and grounds taken by the petitioner.
63. Before the Appellate Authority, after submitting the appeal, the petitioner had submitted a representation attaching along with it a copy of the statement of the complainant Virendra Yadav dated 06.11.2017 before the Inquiry Officer in the inquiry instituted against Inspector Niraj Singh Parihar. The Appellate Authority also does not deal with the various arguments advanced by the petitioner in his appeal. It even fails to take into consideration the additional evidence led by the petitioner.
64. Even the Revisional Authority passed a cryptic order of one and a half pages without dealing with all aspects raised in the grounds of revision. It although refers to the statement of Page 19 of 51 Downloaded on : Sun Jan 16 22:54:46 IST 2022 C/SCA/16255/2005 JUDGMENT DATED: 08/10/2021 complainant dated 06.11.2017, but proceeded to ignore the same on the ground that it was an afterthought.
65. Under the 1987 Rules, Chapter-13 provides for appeals and revisions. Rule-217 thereof describes the manner in which the appeals are to be heard and decided. Rule-217.3 in terms provides that the Appellate Authority shall consider and decide an appeal imposing punishment specified in Rules-148 and 149 which includes major punishment by taking into consideration the various aspects elaborated in sub-clauses (a), (b) and (c). Rule-217 of the 1987 Rules is reproduced below :
"217. Consideration of appeals:
217.1 While considering the appeal, the appellate authority may, on request, grant personal hearing to the aggrieved enrolled member of the Force in case it considers it in the interest of administration and justice.
217.2 In the case of an appeal against an order of suspension, the appellate authority shall consider whether, in the light of the provisions of rules 134 and 135 and having regard to the circumstances of the case, the order of suspension is justified or not and confirm or revoke the order accordingly.
217.3 In the case of an appeal against an order imposing any of the punishments specified in rules 148 and 149 or enhancing any penalty imposed under the said rules the appellate authority shall consider:-
(a) Whether the procedure prescribed in these rules has been complied with, and if not whether such noncompliance has resulted in violation of any constitutional provisions or in miscarriage of Justice;
(b) Whether the findings are warranted and based on evidence on record; and
(c) Whether the punishment or the enhanced punishment imposed is adequate or inadequate or severe and pass speaking orders for-
(i) setting aside, confirming, reducing or enhancing the punishment, or
(ii) remitting the case to the authority which imposed or enhanced the punishment or to any other authority with such directions as it may deem fit in the circumstances of the case:
Provided that -Page 20 of 51 Downloaded on : Sun Jan 16 22:54:46 IST 2022
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(h) no order imposing an enhanced punishment shall be passed unless the appellant is given an opportunity of making any representation which he may wish to make against such enhanced punishment; and
(iii) if the enhanced punishment, which the appellate authority purpose, is one of the punishments specified in clause(a) to (d) of rule 148.2 and an inquiry under rule 153 has not already been held in the case, the appellate authority shall, subject to the provisions of rule 153 itself hold such inquiry or direct that such inquiry be held and thereafter on a consideration of the proceedings of such inquiry pass such orders as it may deem fit."
66. Further, filing of revision is provided in Rule-219 under the 1987 Rules. Rule-219.2 lays down that the procedure prescribed for consideration of appeal under Rule 217 would be applicable to application for revision.
67. From a perusal of the above provisions, what is to be noticed is that the Appellate Authority and Revisional Authority are under a mandate to deal with all aspects of the matter. If the statutory provisions laid down in Rule217 are not strictly adhered to, the order passed by the Appellate and Revisional Authority would stand vitiated. Law on this point has been elaborately dealt with by the Supreme Court in the case of R.P.Bhatt vs. Union of India, reported in AIR 1986 SC 1040. The judgment in the case of R.P.Bhatt (supra) had relied upon a Constitution Bench judgment in the case of State of Madras vs. A.R.Srinivasan, reported in AIR 1966 SC 187. It would be gainful to reproduce the extract on the above point from the judgment of A.R.Srinivasan (supra):
"Mr. Setalvad for the respondent attempted to argue that the impugned order gives no reasons why the appellant accepted the findings of the Tribunal. Disciplinary proceedings taken against the respondent, says Mr.Setalvad, are in the nature of quasi- judicial proceedings and when the appellant passed the impugned order against the respondent, it was acting in a quasi- judicial character. That being so, the appellant should have indicated some reasons as to why it accepted the findings of the Tribunal; and since no reasons are given,the order should be struck down on that ground alone."
We are not prepared to accept this argument. In dealing with the question as to whether it is obligatory on the State Government to give reasons in support of the order imposing a penalty on the delinquent officer, we cannot overlook the fact that the Page 21 of 51 Downloaded on : Sun Jan 16 22:54:46 IST 2022 C/SCA/16255/2005 JUDGMENT DATED: 08/10/2021 disciplinary proceedings against such a delinquent officer begin with an enquiry conducted by an officer appointed in that behalf. That enquiry is followed by a report and the Public Service Commission is consulted where necessary. Having regard to the material which is thus made available to the State Government and which is made available to the delinquent officer also, it seems to us somewhat unreasonable to suggest that the State Government must record its reasons why it accepts the findings of the Tribunal. It is conceivable that if the State Government does not accept the findings of the Tribunal which may be in favour of the delinquent officer, and propose to imposes a penalty on the delinquent officer, it should give reasons why it differs from the conclusions of the Tribunal, though even in such a case, it is not necessary that the reasons should be detailed or elaborate. But where the State Government agrees with the findings of the Tribunal which are against the delinquent officer, we do not think as a matter of law, it could be said that the State Government cannot impose the penalty against the delinquent officer in accordance with the findings of the Tribunal unless it gives reasons to show why the said findings were accepted by it. The proceedings are, no doubt, quasi-judicial; but having regard to the manner in which these enquiries are conducted, we do not think an obligation can be imposed on the State Government to record reasons in every case."
68. The judgment of R.P.Bhatt (supra) further relied upon another Constitution Bench judgment of the Supreme Court in the case of Som Datta vs. Union of India and others, reported in AIR 1969 SC 414 and also another decision of the Supreme Court in the case of Tara Chand Khatri vs. Municipal Corporation of Delhi and others, reported in AIR 1977 SC 567. In the case of R.P.Bhatt (supra), the Supreme Court had set aside the orders passed by the Director General, Boarder Roads Organization on the ground that the various points raised by the appellant before the appellate authority had not been adverted to by the authority. Thus, in view of the law laid down by the Supreme Court and the statutory provisions, the orders passed by the Disciplinary Authority, Appellate Authority and the Revisional Authority are liable to be set aside.
69. Now coming to the next aspect i.e. the Inquiry Officer performing a dual role, that of the Presenting Officer and of the Inquiry Officer, whether such dual role would vitiate the inquiry. In the judgment of the Supreme Court in the case of Union of India and Ors. vs. Ram Lakhan Sharma, reported in (2018) 7 SCC 670, a similar provision in the CRPF Rules, 1955 was dealt with where there was no provision for appointing a Presenting Officer Page 22 of 51 Downloaded on : Sun Jan 16 22:54:46 IST 2022 C/SCA/16255/2005 JUDGMENT DATED: 08/10/2021 and it was the Inquiry Officer alone who was acting in dual capacity. After discussing the law on the point, it was held in paragraph 35 of the judgment that the question as to whether Inquiry Officer, who is supposed to act independently in an inquiry has acted as prosecutor or not is a question of fact which has to be decided on the facts and proceedings of particular case. Paragraph 33 to 35 of the judgment are reproduced below :-
"33. We fully endorse the principles as enumerated above, however, the principles have to be carefully applied in facts situation of a particular case. There is no requirement of appointment of Presenting Officer in each and every case, whether statutory rules enable the authorities to make an appointment or are silent. When the statutory rules are silent with regard to the applicability of any facet of principles of natural justice the applicability of principles of natural justice which are not specifically excluded in the statutory scheme are not prohibited. When there is no express exclusion of particular principle of natural justice, the said principle shall be applicable in a given case to advance the cause of justice. In this context reference is made of a case of this Court in Punjab National Bank and others vs. Kunj Behari Misra, 1998 (7) SCC 84. In the above case, this Court had occasion to consider the provisions of Punjab National Bank Officer Employees' (Discipline and Appeal) Regulations, 1977. Regulation 7 provides for action on the enquiry report. Regulation 7 as extracted in paragraph 10 of the judgment is as follows:
"7.Action on the enquiry report.--(1) The disciplinary authority, if it is not itself the enquiring authority, may, for reasons to be recorded by it in writing, remit the case to the enquiring authority for fresh or further enquiry and report and the enquiring authority shall thereupon proceed to hold the further enquiry according to the provisions of Regulation 6 as far as may be.
(2) The disciplinary authority shall, if it disagrees with the findings of the enquiring authority on any article of charge, record its reasons for such disagreement and record its own findings on such charge, if the evidence on record is sufficient for the purpose.
(3) If the disciplinary authority, having regard to its findings on all or any of the articles of charge, is of the opinion that any of the penalties specified in Regulation 4 should be imposed on the officer employee, it shall, notwithstanding anything contained in Regulation 8, make an order imposing such penalty.Page 23 of 51 Downloaded on : Sun Jan 16 22:54:46 IST 2022
C/SCA/16255/2005 JUDGMENT DATED: 08/10/2021 (4) If the disciplinary authority having regard to its findings on all or any of the articles of charge, is of the opinion that no penalty is called for, it may pass an order exonerating the officer employee concerned."
34. The question which was debated before this Court was that since Regulation 7(2) does not contain any provision for giving an opportunity to the delinquent officer to represent before disciplinary authority who reverses the findings which were in favour of the delinquent employee, the rules of natural justice are not applicable. This Court held that principle of natural justice has to be read in Regulation 7(2) even though rule does not specifically require hearing of delinquent officer. In paragraph 19 following was held:-
"19. The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7(2). As a result thereof, whenever the disciplinary authority disagrees with the enquiry authority on any article of charge, then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the enquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the enquiry officer. The principles of natural justice, as we have already observed, require the authority which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer."
35. Thus, the question as to whether Inquiry Officer who is supposed to act independently in an inquiry has acted as prosecutor or not is a question of fact which has to be decided on the facts and proceedings of particular case. In the present case we have noticed that the High Court had summoned the entire inquiry proceedings and after perusing the proceedings the High Court came to the conclusion that Inquiry Officer himself led the examination in chief of the prosecution witness by putting questions. The High Court further held that the Inquiry Officer acted himself as prosecutor and Judge in the said disciplinary enquiry. The above conclusion of the High Court has already been noticed from paragraphs 9 and 10 of the judgment of the High court giving rise to Civil Appeal No.2608 of 2012." Page 24 of 51 Downloaded on : Sun Jan 16 22:54:46 IST 2022 C/SCA/16255/2005 JUDGMENT DATED: 08/10/2021
70. For all the reasons recorded above, the petition deserves to succeed. The entire proceedings including the impugned orders passed by the respective authorities are accordingly quashed. The petitioner shall be reinstated in service with all consequential benefits.
71. In view of the findings recorded above, this is a fit case where costs should be imposed which we quantify at Rs.5,00,000/- (Rupees Five Lacs only) to be paid by the respondent - Railway Protection Force to the petitioner.
72. The petition stands allowed as above." 7.1 He has also relied on the decisions of HADIBANDHU DAS VS. DISTRICT MAGISTRATE, reported in 1968 AIR (Ori) 148 and ALLEN BERRY AND COMPANY, LTD., VS. WORKMEN, reported in (1953) 2 LLJ 299.
8.Learned advocate, Mr.Niral Mehta has urged that if there is no mandatory requirement, the Rules cannot be relaxed, each matter has to be decided on the basis of fact, the facts which are essential so that no prejudice is caused.
9.Taking first the decision of the Apex Court rendered in case of UNION OF INDIA VS. RAM LAKHAN SHARMA, reported in (2018) 7 SCC 670, Page 25 of 51 Downloaded on : Sun Jan 16 22:54:46 IST 2022 C/SCA/16255/2005 JUDGMENT DATED: 08/10/2021 the appeal was filed by the Union of India questioning the judgment of Guwahati High Court by which the writ petitions filed by the respondent challenging their orders of removal were allowed by setting aside the removal/dismissal order and respondents were directed to be reinstate. The Guwahati High Court allowed the writ petitions, it was a case where one of the respondents was appointed as Constable in the Central Reserve Police Force (CRPF) there were allegations of rape against him and First Information Report was lodged.
9.1 He was placed under suspension and chargesheet was issued containing article of charges. He was alleged of committing an act of misconduct in his capacity as a member of force.
9.2 The Disciplinary Authority has appointed the Inquiry Officer and Inquiry Officer Page 26 of 51 Downloaded on : Sun Jan 16 22:54:46 IST 2022 C/SCA/16255/2005 JUDGMENT DATED: 08/10/2021 recorded the prosecution evidence. The inquiry report was submitted and supplied to the delinquent. The penalty of removal was imposed from service; however, on the basis of the FIR, learned Sessions Judge had acquitted him from the charges levelled against him.After the acquittal, the delinquent challenged the order of removal. High Court permitted the appeal under the CRPF Rules and dismissed the petition. His appeal was rejected by the Appellate Authority and a revision was also filed before the Inspector General of Police, which too was rejected.
9.3 Learned Single Judge, when he challenged the order of removal, had set aside the removal order and directed reinstatement of the respondent. It was also directed further that the Disciplinary Inquiry should be initiated a fresh from the stage of appointing Presenting Officer. Page 27 of 51 Downloaded on : Sun Jan 16 22:54:46 IST 2022 C/SCA/16255/2005 JUDGMENT DATED: 08/10/2021 9.4 It was contended that High Court committed an error by setting aside the dismissal order on the ground of non- appointing of Presenting Officer, Rule 27 of the CRPF Rules does not provide for appointment of Presenting Officer.
According to the Union, sufficient
opportunity was provided in the
Disciplinary Inquiry. There was no
mandate under Rule 27 of the CRPF Rules to appoint the Presenting Officer to hold the inquiry. The High Court on perusal of Rule 27 of the CRPF Rules has held that the Rule does not indicate or contemplates appointment of Presenting Officer. Service conditions including punishment and appeal procedure of an employee are governed by statutory rules. The Court further held that the disciplinary proceedings are quasi- judicial proceedings and Inquiry Officer is in the position of an independent Page 28 of 51 Downloaded on : Sun Jan 16 22:54:46 IST 2022 C/SCA/16255/2005 JUDGMENT DATED: 08/10/2021 adjudicator and is obliged to act fairly, impartially. The authority concerned has to act in good faith without bias, in a fair and impartial manner.
9.5 The Court while citing different decisions of the Apex Court held that when the statutory rule does not contemplate appointment of Presenting Officer whether non-appointment of Presenting Officer ipso facto vitiates the inquiry. The Court also noticed that the High Court found that the Inquiry Officer acting as a prosecutor against the respondent. The Court held that the statutory provision when does not mandate appointment of Presenting Officer, the Inquiry Officer, who has to be independent and not representative of the Disciplinary Authority if starts acting in any other capacity and proceed Page 29 of 51 Downloaded on : Sun Jan 16 22:54:46 IST 2022 C/SCA/16255/2005 JUDGMENT DATED: 08/10/2021 to act in a manner as if he is interested in eliciting evidence to punish an employee, the principle of bias comes into place. The Court had revisited law on the subject and principles enumerated on this have been reiterated by holding that the principles have been to be carefully applied in facts situation of a particular case. There is no requirement of appointment of Presenting Officer in each and every case, whether statutory rules enable the authorities to make an appointment or are silent. When the statutory rules are silent with regard to the applicability of any facet of principles of natural justice, the applicability of principles of natural justice which are not specifically excluded in the statutory scheme are not prohibited. When there is no express exclusion of particular principle of Page 30 of 51 Downloaded on : Sun Jan 16 22:54:46 IST 2022 C/SCA/16255/2005 JUDGMENT DATED: 08/10/2021 natural justice, the said principle shall be applicable in a given case to advance the cause of justice. The Court held that the question as to whether the Inquiry Officer, who is supposed to act independent in an inquiry has acted as a prosecutor or not is a question of fact which has to be decided on the facts and proceedings of particular case. The High Court, if come to the conclusion that Inquiry Officer has acted as a prosecutor also, the capacity of independent adjudicator was lost which adversely affecting his independent role of adjudicator. The Court held that the principle of bias shall come into play and the High Court was right in setting aside the dismissal orders by giving liberty to the appellant to proceed with inquiry afresh.
9.6 It would be profitable to reproduce Page 31 of 51 Downloaded on : Sun Jan 16 22:54:46 IST 2022 C/SCA/16255/2005 JUDGMENT DATED: 08/10/2021 relevant findings and observations of the Apex Court .
"25. Rules of natural justice have been recognised and developed as principles of administrative law. Natural justice has many facets. Its all facets are steps to ensure justice and fair play. This Court in Suresh Koshy George vs. University of Kerala and others, AIR 1969 SC 198 had occasion to consider the principles of natural justice in the context of a case where disciplinary action was taken against a student who was alleged to have adopted malpractice in the examination. In paragraph 7 this Court held that the question whether the requirements of natural justice have been met by the procedure adopted in a given case must depend to a great extent on the facts and circumstances of the case in point, the constitution of Tribunal and the rules under which it functions. Following was held in paragraphs 7 and 8:
"7....The rules of natural justice are not embodied rules. The question whether the requirements of natural justice have been met by the procedure adopted in a given case must depend to a great extent on the facts and circumstances of the case in point, the constitution of the Tribunal and the rules under which it functions.
8. In Russel v. Duke of Norfolk, Tucker, L. J. observed:
"There are, in my view, no words which are of universal application to every kind of inquiry and every kind of domestic tribunal. The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the Page 32 of 51 Downloaded on : Sun Jan 16 22:54:46 IST 2022 C/SCA/16255/2005 JUDGMENT DATED: 08/10/2021 tribunal is acting, the subject matter that is being dealt with, and so forth. Accordingly, I do not derive much assistance from the definitions of natural justice which have been from time to time used, but, whatever standard is adopted, one essential is that the person concerned should have a reasonable opportunity of presenting his case."
26. A Constitution Bench of this Court has elaborately considered and explained the principles of natural justice in A.K. Kraipak and others vs. Union of India and others, AIR 1970 SC 150. This Court held that the aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. The concept of natural justice has undergone a great deal of change in recent years. Initially recognised as consisting of two principles that is no one shall be a judge in his own cause and no decision shall be given against a party without affording him a reasonable hearing, various other facets have been recognised. In paragraph 20 following has been held:
"20. The aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words they do not supplant the law of the land but supplement it. The concept of natural justice has undergone a great deal of change in recent years. In the past it was thought that it included just two rules namely (1) no one shall be a judge in his own case (Nemo debet esse judex propria Page 33 of 51 Downloaded on : Sun Jan 16 22:54:46 IST 2022 C/SCA/16255/2005 JUDGMENT DATED: 08/10/2021 causa) and (2) no decision shall be given against a party without affording him a reasonable hearing (audi alteram partem).Very soon thereafter a third rule was envisaged and that is that quasi-
judicial enquiries must be held in good faith, without bias and not arbitrarily or unreasonably...."
27. In State of Uttar Pradesh and others vs. Saroj Kumar Sinha, 2010 (2) SCC 772, this Court had laid down that inquiry officer is a quasi- judicial authority, he has to act as independent adjudicator and he is not a representative of the department/disciplinary authority/Government. In paragraphs 28 and 30 following has been held:
"28. An inquiry officer acting in a quasi-judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the department/disciplinary authority/ Government. His function is to examine the evidence presented by the Department, even in the absence of the delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved. In the present case the aforesaid procedure has not been observed. Since no oral evidence has been examined the documents have not been proved, and could not have been taken into consideration to conclude that the charges have been proved against the respondents.
30. When a departmental enquiry is conducted against the government servant it cannot be treated as a casual exercise. The enquiry proceedings also cannot be conducted with a closed mind. The inquiry officer has to be wholly unbiased. The rules of natural justice are required Page 34 of 51 Downloaded on : Sun Jan 16 22:54:46 IST 2022 C/SCA/16255/2005 JUDGMENT DATED: 08/10/2021 to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that a government servant is treated fairly in proceedings which may culminate in imposition of punishment including dismissal/removal from service."
28. When the statutory rule does not contemplate appointment of Presenting Officer whether non- appointment of Presenting Officer ipso facto vitiates the inquiry? We have noticed the statutory provision of Rule 27 which does not indicate that there is any statutory requirement of appointment of Presenting Officer in the disciplinary inquiry. It is thus clear that statutory provision does not mandate appointment of Presenting Officer. When the statutory provision does not require appointment of Presenting Officer whether there can be any circumstances where principles of natural justice can be held to be violated is the broad question which needs to be answered in this case. We have noticed above that the High Court found breach of principles of natural justice in Inquiry Officer acting as the prosecutor against the respondents. The Inquiry Officer who has to be independent and not representative of the disciplinary authority if starts acting in any other capacity and proceed to act in a manner as if he is interested in eliciting evidence to punish an employee, the principle of bias comes into place.
29. M.Rama Jois, J. of the Karnataka High Court had occasion to consider the above aspect in Bharath Electronics Ltd. vs. K. Kasi, ILR 1987 Karnataka 366. In the above case the order of domestic inquiry was challenged before the Labour and Industrial Tribunal. The grounds taken were, that inquiry is vitiated since Presenting Officer was not appointed and further Inquiry Officer played the role of prosecutor. This Court held that there is no Page 35 of 51 Downloaded on : Sun Jan 16 22:54:46 IST 2022 C/SCA/16255/2005 JUDGMENT DATED: 08/10/2021 legal compulsion that Presenting Officer should be appointed but if the Inquiry Officer plays the role of Presenting Officer, the inquiry would be invalid. Following was held in paragraphs 8 and 9:
"8. One other ground on which the domestic inquiry was held invalid was that Presenting Officer was not appointed. This view of the Tribunal is also patently untenable. There is no legal compulsion that Presenting Officer should be appointed. Therefore, the mere fact that the Presenting Officer was not appointed is no ground to set aside the inquiry See :
Gopalakrishna Reddy v. State of Karnataka (ILR 1980 Kar 575). It is true that in the absence of Presenting Officer if the Inquiring Authority plays the role of the Presenting Officer, the inquiry would be invalid and this aspect arises out of the next point raised for the petitioner, which I shall consider immediately hereafter.
9. The third ground on which the Industrial Tribunal held that the domestic inquiry was invalid was that the Inquiry Officer had played the role of the Presenting Officer. The relevant part of the findings reads :
"The Learned Counsel for the workman further contended that the questions put by the Enquiry Officer to the Management's witnesses themselves suggest that he was biased and prejudiced against the workman. There has been no explanation as to why no Presenting Officer was appointed and as to why the Enquiry Officer took upon himself the burden of putting questions to the Management witnesses. The enquiry proceedings at Ext. A-6 disclose that after the cross-examination of the Management's Page 36 of 51 Downloaded on : Sun Jan 16 22:54:46 IST 2022 C/SCA/16255/2005 JUDGMENT DATED: 08/10/2021 witnesses by the defence, the Enquiry Officer has further put certain questions by way of explanation, but from their nature an inference arises that they are directed to fill in the lacuna. The Learned Counsel for the Management contended that the Enquiry Officer has followed the principles of natural justice and that the domestic enquiry is quite valid. I am of the view that the fact that the Enquiry Officer has himself taken up the role of the Presenting Officer for the management goes to the root of the matter and vitiates the enquiry,"
As far as position in law is concerned, it is common ground that if the Inquiring Authority plays the role of a Prosecutor and cross-examines defence witnesses or puts leading questions to the prosecution witnesses clearly exposing a biased state of mind, the inquiry would be opposed to principles of natural justice. But the question for consideration in this case is : Whether the Inquiry Officer did so ? It is also settled law that an Inquiring Authority is entitled to put questions to the witnesses for clarification wherever it becomes necessary and so long the delinquent employee is permitted to cross-examine the witnesses after the Inquiring Authority questions the witnesses, the inquiry proceedings cannot be impeached as unfair."
30. This Court had occasion to observe in Workmen of Lambabari Tea Estate vs. Lambabari Tea Estate, 1966 (2) LLJ 315, that if Inquiry Officer did not keep his function as Inquiry Officer but becomes prosecutor, the inquiry is vitiated. Following was observed:
"The inquiry which was held by the management on the first charge was presided over by the manager himself. It was conducted in the presence of the assistant manager and two others. The enquiry was not correct in its Page 37 of 51 Downloaded on : Sun Jan 16 22:54:46 IST 2022 C/SCA/16255/2005 JUDGMENT DATED: 08/10/2021 procedure. The manager recorded the statements, cross-examined the labourers who were the offenders and made and recorded his own statements on facts and questioned the offending labourers about the truth of his own statements recorded by himself. The manager did not keep his function as the enquiring officer distinct but became witness, prosecutor and manager in turns. The record of the enquiry as a result is staccato and unsatisfactory."
31. A Division Bench of the Madhya Pradesh High Court speaking through R.V.Raveendran, C.J. (as he then was) had occasion to consider the question of vitiation of the inquiry when the Enquiry Officer starts himself acting as prosecutor in Union of India vs. Mohd. Naseem Siddiqui. In the above case the Court considered Rule 9(9)(c) of the Railway Servants (discipline and Appeal) Rules, 1968. The Division Bench while elaborating fundamental principles of natural justice enumerated the seven well-recognised facets in para 7 of the judgment which is to the following effect:
"7. One of the fundamental principles of natural justice is that no man shall be a judge in his own cause. This principle consists of seven well recognised facets:
(i) The adjudicator shall be impartial and free from bias, (ii) The adjudicator shall not be the prosecutor, (iii) The complainant shall not be an adjudicator,
(iv) A witness cannot be the Adjudicator,
(v) The Adjudicator must not import his personal knowledge of the facts of the case while inquiring into charges,
(vi) The Adjudicator shall not decide on the dictates of his Superiors or others, Page 38 of 51 Downloaded on : Sun Jan 16 22:54:46 IST 2022 C/SCA/16255/2005 JUDGMENT DATED: 08/10/2021
(vii) The Adjudicator shall decide the issue with reference to material on record and not reference to extraneous material or on extraneous considerations.
If any one of these fundamental rules is breached, the inquiry will be vitiated."
32. The Division Bench further held that where the Inquiry Officer acts as Presenting Officer, bias can be presumed. In paragraph 9 is as follows:
"9. A domestic inquiry must be held by an unbiased person who is unconnected with the incident so that he can be impartial and objective in deciding the subject matters of inquiry. He should have an open mind till the inquiry is completed and should neither act with bias nor give an impression of bias. Where the Inquiry Officer acts as the Presenting Officer, bias can be presumed. At all events, it clearly gives an impression of bias. An Inquiry Officer is in position of a Judge or Adjudicator. The Presenting Officer is in the position of a Prosecutor. If the Inquiry Officer acts as a Presenting Officer, then it would amount to Judge acting as the prosecutor. When the Inquiry Officer conducts the examination-in- chief of the prosecution witnesses and leads them through the facts so as to present the case of the disciplinary authority against the employee or cross- examines the delinquent employee or his witnesses to establish the case of the employer/disciplinary authority evidently, the Inquiry Officer cannot be said to have an open mind. The very fact that he presents the case of the employer and supports the case of the employer is sufficient to hold that the Inquiry Officer does not have an open mind."Page 39 of 51 Downloaded on : Sun Jan 16 22:54:46 IST 2022
C/SCA/16255/2005 JUDGMENT DATED: 08/10/2021
33. The Division Bench after elaborately considering the issue summarised the principles in paragraph 16 which is to the following effect:
"16. 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 elicit 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-in-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 recognised that the Inquiry Officer can put questions to any or all witnesses to elicit the truth, the question whether an Inquiry Officer acted as a Presenting Officer, will have to be decided with reference to the manner in which the evidence is let in and recorded in the inquiry.Page 40 of 51 Downloaded on : Sun Jan 16 22:54:46 IST 2022
C/SCA/16255/2005 JUDGMENT DATED: 08/10/2021 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 vitiated, the present trend appears to be to invariably appoint Presenting Officers, except in simple cases. Be that as it may."
34. We fully endorse the principles as enumerated above, however, the principles have to be carefully applied in facts situation of a particular case. There is no requirement of appointment of Presenting Officer in each and every case, whether statutory rules enable the authorities to make an appointment or are silent. When the statutory rules are silent with regard to the applicability of any facet of principles of natural justice the applicability of principles of natural justice which are not specifically excluded in the statutory scheme are not prohibited. When there is no express exclusion of particular principle of natural justice, the said principle shall be applicable in a given case to advance the cause of justice. In this context reference is made of a case of this Court in Punjab National Bank and others vs. Kunj Behari Misra, 1998 (7) SCC
84. In the above case, this Court had occasion to consider the provisions of Punjab National Bank Officer Employees' (Discipline and Appeal) Regulations, 1977. Regulation 7 provides for action on the enquiry report. Regulation 7 as extracted in paragraph 10 of the judgment is as follows:
"7. Action on the enquiry report.(1) The disciplinary authority, if it is not itself the enquiring authority, may, for reasons to be recorded by it in writing, remit the case to the enquiring authority for fresh or further enquiry and report and the enquiring authority shall thereupon proceed to hold the further enquiry according to the provisions of Regulation 6 as far as may be.Page 41 of 51 Downloaded on : Sun Jan 16 22:54:46 IST 2022
C/SCA/16255/2005 JUDGMENT DATED: 08/10/2021 (2) The disciplinary authority shall, if it disagrees with the findings of the enquiring authority on any article of charge, record its reasons for such disagreement and record its own findings on such charge, if the evidence on record is sufficient for the purpose. (3) If the disciplinary authority, having regard to its findings on all or any of the articles of charge, is of the opinion that any of the penalties specified in Regulation 4 should be imposed on the officer employee, it shall, notwithstanding anything contained in Regulation 8, make an order imposing such penalty.
(4) If the disciplinary authority having regard to its findings on all or any of the articles of charge, is of the opinion that no penalty is called for, it may pass an order exonerating the officer employee concerned."
10. What is far important is that there has to be a conclusion that the Inquiry Officer has acted as a prosecutor, where the capacity of independent adjudicator is lost while adversely affecting his independent role of his adjudicator and in such circumstances, there would a principles of bias, which can be applied.
11. Apt would be to refer to some of the Page 42 of 51 Downloaded on : Sun Jan 16 22:54:46 IST 2022 C/SCA/16255/2005 JUDGMENT DATED: 08/10/2021 decisions, which learned advocate, Mr.Shah has relied on. In case of Hadibandhu Das vs. District Magistrate, reported in 1968 AIR (Ori) 148 the question before the Court was whether the petitioner had understood the grounds, which were communicated to him at the time of detention, were in English language. Reference is made of decision of the Apex Court rendered in case of Harikisan vs. State of Maharashtra, reported in 1962 AIR (SC) 911, the Supreme Court did not agree with the High Court in its conclusion that in every case the communication of order of detention in English language, so long as it continues to be the official language of the State, is enough compliance with the requirements of the Constitution.
11.1 In the case before the Orissa High Court, the grounds in Oria language were Page 43 of 51 Downloaded on : Sun Jan 16 22:54:46 IST 2022 C/SCA/16255/2005 JUDGMENT DATED: 08/10/2021 communicated to him as required by the law. The case is of the delayed communication of the grounds in the language which he understood and not a case of non-communication of the grounds in that language. The Apex Court laid special emphasis on the principle that detained person should be given earliest opportunity to have effective knowledge of the grounds imparted to him.
11.2 In case of Harikisan vs. State of Maharashtra (supra), it was a case of preventive detention, the grounds communicated in English language not known to the detenue, the Court held that it prevented him from effectively representing against the order of detention. The communication, according to the Court, must being imparting to the detenue sufficient knowledge of all the grounds on which the order of Page 44 of 51 Downloaded on : Sun Jan 16 22:54:46 IST 2022 C/SCA/16255/2005 JUDGMENT DATED: 08/10/2021 detention is based. Any oral translation or explanation given by the Police Officer servicing those on the detenue would not amount to communicating the grounds. Communication must mean bringing home to the detenue effective knowledge of the facts and circumstances on which the order of detention is based.
12. It is thus to be examined on the strength of the principles laid down in various decisions, which have been discussed above, by this Court as to whether the issues raised by the present petitioner working as a Head Constable/Driver in the department were justifiable and have caused serious prejudice to his case.
13. The petitioner is alleged to have worked as a Driver, while performing the duty as a Driver of Inspector, Shri Rajiv Trivedi, who directed him to take the jeep at labour Page 45 of 51 Downloaded on : Sun Jan 16 22:54:46 IST 2022 C/SCA/16255/2005 JUDGMENT DATED: 08/10/2021 colony. As per the imputation of misconduct, Shri Rajiv Trivedi collected four liquor bottles and ten liquor pouches from the hut of Shri Kashinathan and also collected Rs.150/- as illegal gratification. The petitioner asked for the Hindi version of the chargesheet since he was not conversant with the English language, this request was turned down by letter dated 17.08.2000.
14. The Inquiry Officer was appointed on 28.09.2001, Shri N.J.Madhusudan, Deputy Commandant, CISF only has acted as a Presenting Officer. The petitioner since was from Gujarat and posted at Andhra Pradesh, he could not get the defence counsel who could understand Hindi and despite his desire to engage the defence counsel, he could not do so. The officer made it clear that the department would be finalizing the inquiry and nothing could happen and the petitioner, therefore,forcibly needed to proceed with the inquiry. While examining the prosecution Page 46 of 51 Downloaded on : Sun Jan 16 22:54:46 IST 2022 C/SCA/16255/2005 JUDGMENT DATED: 08/10/2021 witnesses, it is alleged that the Inquiry Officer had not called upon the prosecution witness to state about the earlier statement given by such witnesses. The Inquiry Officer is alleged to have acted as if he was freshly investigating the matter, whereby he recorded the statement of prosecution witness afresh and he himself had done the cross examination. The Inquiry Officer is alleged to have claimed the role of Investigating Officer, Presenting Officer and that of the Inquiry Officer. The Inquiry Officer and the prosecution witnesses were having the knowledge of English language and Telugu. He, thus, had prepared on the strength of such inquiry the report and penalty has also been issued by the Senior Commandant on the strength of the report.
15. The Court needs to make a note of the fact that the petitioner had done his matriculation from Gujarat and he was not much conversant with English language. He was Page 47 of 51 Downloaded on : Sun Jan 16 22:54:46 IST 2022 C/SCA/16255/2005 JUDGMENT DATED: 08/10/2021 performing the duty of driver and was posted at Andhra Pradesh. He, therefore, was not in knowledge of Telugu and he had made a request of Hindi version of the chargesheet, which is the national language. The said request was rejected on 17.08.2001.
16. Paragraph No.3.31 of Chapter III of the Discipline and Appeal Manual, according to the petitioner, the action of non-granting of permission for Hindi version of the chargesheet is against the concept of national language. It can be also noticed that the repeated allegations, which have come against the Inquiry Officer is that without calling upon prosecution witnesses to affirm their statements given initially soon after the incident, the inquiry proceeded without defence counsel and that too, in English language. He has himself examined the prosecution witnesses and cross examined and obtained the signatures of the witnesses. The Page 48 of 51 Downloaded on : Sun Jan 16 22:54:46 IST 2022 C/SCA/16255/2005 JUDGMENT DATED: 08/10/2021 inquiry seems to have been conducted unilaterally and without bearing in mind the principle of fair play.
17. It is also to be noted that the son of Shri Kashinathan namely Raghav has stated that his father informed him about the incident. However, Shri Kashinathan's statement does not reflect that the petitioner had demanded Rs.150/- from him, but in his statement, he has stated that Rs.100/- was given to Shri Rajiv Trivedi, Inspector and then he gave Rs.50/- to Shri Kashinathan.
18. This is a classic case, where the petitioner was not knowing the language, he did make a request to give version of chargesheet in national language; however, that request was not acceded to and moreover, there was no Presenting Officer to conduct the inquiry.
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19. In each and every matter since appointment of Presenting Officer is not a must unless provided by the rules, as held by the Apex Court in case of UNION OF INDIA VS. RAM LAKHAN SHARMA (supra), Court shall need to examine the facts to determine whether the dual role of the inquiry officer has caused prejudice and also breached principle of natural justice. Discussion herein-before in this judgment on careful analysis of facts leads to single most conclusion of such dual role being surely prejudicial to the case of petitioner and that also resulted in losing impartiality expected of the inquiry officer concerned.
20. Resultantly, this Court is of the opinion that the ratio laid down in decision of the Apex Court rendered in case of UNION OF INDIA VS. RAM LAKHAN SHARMA (supra) shall need to be applied clearly in the case of the petitioner and consequently,, the impugned orders dated 27.05.2002 passed by the Disciplinary Authority and by the Revisional Authority on dated 20.06.2003 are to be Page 50 of 51 Downloaded on : Sun Jan 16 22:54:46 IST 2022 C/SCA/16255/2005 JUDGMENT DATED: 08/10/2021 quashed and set aside.
21. The petition has been filed in the year 2005, challenging the order dated 27.05.2002; as also the order dated 27.11.2002 passed by the Appellate Authority; and the order dated 20.06.2003 passed by the Revisional Authority. Noticing the role of the petitioner being a driver and the higher officer having alleged of indulging in corruption, on overall consideration of the facts involved and applicable law, we are driven to give the present matter a quietus. Considering the age of the litigation, this Court is not proposing to relegate the petitioner once again to face the proceedings. Therefore, we chose to reinstate the petitioner on his original post with 25% of backwages. The respondents are directed to reinstate the petitioner within eight weeks from the date of receipt of the copy of this order.
22. With the above direction, present petition stands disposed of.
Sd/-
(SONIA GOKANI, J) Sd/-
(SANGEETA K. VISHEN,J) M.M.MIRZA Page 51 of 51 Downloaded on : Sun Jan 16 22:54:46 IST 2022