Chattisgarh High Court
Prakash Sinha vs State Of Chhattisgarh on 23 August, 2024
Author: Narendra Kumar Vyas
Bench: Narendra Kumar Vyas
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2024:CGHC:32140
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
WPS No. 4017 of 2022
Order Reserved on : 14.06.2024
Order Delivered on : 23.08.2024
Prakash Sinha S/o Late Narayan Sinha, Aged about 59 years,
R/o Adarsh Nagar Near Shiv Mandir, College Road, Kawardha,
District - Kabirdham (C.G.)
---- Petitioner
Versus
1. State of Chhattisgarh, Through the Secretary, Department of
Home (Police), Mantralaya, Mahanadi Bhavan, Nawa Raipur,
Atal Nagar, District - Raipur (C.G.)
2. Director General of Police, Chhattisgarh, Sector-19, Nawa
Raipur, Atal Nagar, District - Raipur (C.G.)
3. Inspector General of Police, Office of Inspector General of Police
Baster Range, Lalbagh, Jagdalpur - 494001 (C.G.)
4. Superintendent of Police, Office of Superintendent of Police,
District - North Baster Kanker (C.G.)
---- Respondents
For Petitioner : Mr. Vinod Deshmukh, Advocate For State : Mr. Rishabh Bisen, Panel Lawyer Hon'ble Shri Justice Narendra Kumar Vyas (CAV Order)
1. The petitioner has filed the present writ petition under Article 226 of the Constitution of India challenging the order dated 03.12.2014 (Annexure P/1) passed by the Superintendent of Police, North Bastar Kanker/respondent No. 4 by which the services of the petitioner have been terminated treating the Page 2 of 24 period from 01.12.2011 till issuance of punishment order as unauthorized absence. The petitioner has also challenged appellate order dated 21.03.2017 (Annexure - P/2) passed by the Inspector General of Police/Respondent No. 3 by which the appeal filed by the petitioner has been rejected and order dated 05.04.2018 (Anneuxre - P/3) which has been communicated to the petitioner on 04.03.2022 passed by the Director General of Police by which the Mercy Appeal filed by the petitioner has also been rejected.
2. The facts reflected from records are that the petitioner was initially appointed on the post of Constable on 13.02.1992 and due to ill health/medical issues of his wife as well as his mental problem (severe headache/brain tumor) he could not attend the duty from 01.12.2011 till date of issuance of charge sheet dated 13.07.2012. The petitioner was charge sheeted for unauthorized absent from duty and violation of General Condition of Service as prescribed in para 64 of the Police Regulation. The petitioner was directed to submit explanation within 7 days, but he could not submit the same proper reply to the charge-sheet though he has informed to the authority with regard to medical condition of his wife as well as his medical condition as he is suffering from brain tumor. The departmental enquiry was initiated against the petitioner and the disciplinary authority/respondent No. 4 conducted the department enquiry ex-parte wherein all the charges levelled against the petitioner have been found proved.
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3. It has been contended by the petitioner that copy of inquiry report was not supplied to the petitioner and while conducting exparte departmental enquiry as well as imposition of punishment, they ought to have verified the facts whether the alleged unauthorized absent w.e.f. 01.12.2011 till 13.07.2012 i.e. about 7 months, is willfully or bonafide and if the same is due to ill-health or medical treatment, it should not be held that the petitioner is guilty of unauthorized absent. However, the authority did not examine the case of the petitioner from the said aspect. He would further submit that the entire disciplinary proceeding has been conducted without giving him proper opportunity of hearing and statements of the witnesses have been recorded in his absence and no opportunity to cross examine the witness has been given to the petitioner. It has been further contended that the respondents have not appointed Presenting Officer and the Inquiry Officer has acted as prosecutor and judge which is illegality, as such, entire inquiry proceedings and consequent punishment orders deserves to be set aside on account of violation of principle of natural justice as well as violation of the statutory rules as Rule 14 of the Chhattisgarh Civil Service (Classification, Control and Appeal) Rules, 1966 which mandatorly provides for appointment of Presenting Officer.
4. It has been contended that it is also settled law that an enquiry officer acting in a quasi-judicial authority is in the position of an independent adjudicator. He is not supposed to be a Page 4 of 24 representative of the department/ disciplinary authority/ Government. His function is to examine the evidence presented by the Department, even in 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.
5. It has been further contended that punishment of dismissal/termination from service is shockingly disproportionate, particularly when the petitioner could not attend the duty due to his ill health as well as regular medical treatment of his wife and also subsequently it was found that the petitioner was suffering from brain tumor for which he has also been operated, therefore, the impugned orders are bad in law and would pray for allowing the writ petition. Hence, this petition.
6. The respondent/State has filed its return wherein it has been stated that the petitioner while posting as a Constable in North Bastar Kanker had been allotted the work of night patrolling on 01.12.2011 but the petitioner was reported absent from the said duty without any intimation, therefore, the petitioner was served notice dated 16.12.2011 regarding his absence but the petitioner remained absent, which shows the grave misconduct and indiscipline on the part of the petitioner, therefore, the preliminary enquiry was initiated against the petitioner wherein it was found that the petitioner along with ASI Mr. Tulsiram and Page 5 of 24 other constables had been allotted duty of night patrolling but the petitioner remained absent in the duty without any information and on account of his absence from the duty, the petitioner was served notices on three occasions on 15.01.2012, 24.01.2012 & 31.01.2012, but the petitioner did not give reply to the aforesaid notices. During course of enquiry, it was also found that on earlier occasion also the petitioner had remained absent from duty, which shows that the petitioner is a habitual offender and he used to remain absent from duty, therefore, looking to the conduct of the petitioner, the petitioner was served with charge-sheet on 13.07.2012 containing two charges, which are as under:-
"(i) fnukad 01-12-2011 dks jf{kr dsUnz dkadsj ls jkf= vkmV xLr M;wVh ls fcuk fdlh lwpuk ds vkjksi i= tkjh fnukad rd vukf/kd`r :i ls xSjgkftj gksdj drZO; ds izfr ?kksj ykijokgh ,oa vuq'kklughurk cjrukA
(ii) iqfyl jsX;qys'ku ds iSjk Øekad & 64 esa fn;s x;s lsok fd lkekU; lsok 'krZ ds dafMdk ¼2½ ,oa ¼4½ dk mYya?ku djukA"
7. It has been further contended that on the basis of aforesaid charges, the departmental enquiry was initiated against the petitioner whereby the then SDOP, Kanker (Shri Mukesh Thakur was appointed as enquiry officer. Thereafter, enquiry was conducted against the petitioner by the Inquiry Officer and vide notice dated 12/09/2012, the petitioner was asked to remain present for Departmental Enquiry but the petitioner vide has letter dated 18.09.2012 sent information that on account of ill- health of his wife and due terminal examination of his children, Page 6 of 24 he will attend the office on 24, 25.09.2012, but on the said date also he did not come to the office and no information was given, therefore, the inquiry proceeding was adjourned for 03.10.2012 but the petitioner again remained absent. Thereafter, notices dated 16.11.2012, 29.11.2012 & 13.12.2012 were served to the petitioner and again on 28.12.2012, the petitioner was served notice to remain present in the enquiry but the petitioner did not attend the enquiry proceedings giving the reasons of his wife's illness and the petitioner requested for next date and, therefore, looking to the request of the petitioner, the petitioner was given last opportunity by giving him notice dated 21.01.2013 for his presence in the Departmental Enquiry proceedings but the petitioner again remained absent and on 12.02.2013, the petitioner sent some papers regarding medical treatment but did not attend the proceedings.
8. It has been further contended that as the Enquiry Officer Mr. Mukesh Thakur was transferred, therefore, Mr. Virendra Sharma was appointed as Inquiry Officer who issued a notice to the petitioner on 07.10.2013 for conclusion of the Departmental Enquiry and the petitioner was not attending the enquiry proceeding, still he was given last opportunity vide notice dated 03.12.2013 to remain present in the proceeding but the petitioner did not attend, therefore, exparte proceeding was initiated and the prosecution witnesses were asked to remain present on 11.07.2014. On 11.07.2014, the prosecution witnesses were remained present and after recording their Page 7 of 24 statements, it was revealed that the petitioner was absent on patrolling duty on 01.12.2011 and in spite of giving so many notices, the petitioner did not give reply to the same and never attend the departmental enquiry proceedings though he was served with notices on various occasions and the charged which had been leveled against the petitioner were found proved on the basis of statement of prosecution witnesses. Therefore, on the basis of enquiry report submitted by the enquiry officer, services of the petitioner have been terminated vide order dated 03.12.2014 due to his grave misconduct. Being aggrieved with the order dated 03.12.2014, the petitioner preferred an appeal before the respondent No. 3 which was rejected by a reasoned order, against which petitioner preferred a mercy appeal before the respondent No. 2 and the same has also been rejected with a finding that in spite of giving so many opportunities and notices, the petitioner did not participated in the inquiry proceedings, the petitioner did not give reply to the notices he remained absent unauthorizely without any intimation, therefore, the mercy appeal of the petitioner was also rejected.
9. It has been further contended that impugned orders have passed as per provisions of Police Regulations as the petitioner is a member of disciplined force where discipline is paramount consideration which has been violated by the petitioner. It has also been contended that the disciplinary proceedings were conducted in accordance with the principle of natural justice giving proper opportunity to the petitioner which the petitioner Page 8 of 24 miserably failed to avail of it, thus, the impugned orders are legal, justified and do not warrant interfere by this Court.
10. It has been further contended that the power of punishment to an employee is within the discretion of the employer and ordinarily, the courts do not interfere, unless it is found that either the enquiry, proceedings or punishment is vitiated because of non-observance of the relevant rules and regulations or principles of natural justice or denial of reasonable opportunity to defend, etc. or that the punishment is totally disproportionate to the proved misconduct of an employee. This issue has already been considered by the Hon'ble Supreme Court in case of Indian Oil Corpr. Ltd. Vs. Ashok Kumar Arora and Lalit Popli Vs. Canara Bank 2003 (3) SCC 583 and in the present case there is no violation of rules, natural justice, as such prayed for dismissal of the writ petition.
11. The petitioner has also filed rejoinder reiterating the same facts which have already been mentioned by this Court in foregoing paragraphs.
12. Learned counsel for the petitioner would submit that the respondents have conducted ex-parte departmental enquiry and while conducting the ex-parte departmental enquiry as well as imposition of punishment, they ought to have verified the facts whether the alleged unauthorized absent w.e.f. 01.12.2011 till 13.07.2012 i.e. about 7 months, is willfully or bonafide and if Page 9 of 24 the same is due to ill-health or medical treatment, it cannot be said the guilty of unauthorized absent and the same could be treated as bonafide absent. However, the authority did not examine the case of the petitioner from the said aspect. He would further submit that the entire disciplinary proceeding has been initiated ex-parte against the petitioner without giving proper opportunity of hearing as the same has been concluded in absence of the petitioner and statements of the witnesses have been recorded in his absence and no opportunity to cross examine the witness has been given to the petitioner.
13. He would further submit the respondent authorities have conducted the departmental enquiry without following the procedure prescribed under Rule 14 of the Chhattisgarh Civil Service (Classification, Control and Appeal) Rules, 1966 as no Presenting Officer was appointed by the respondents, without following the principle of natural justice while conducting the inquiry. In support of his contention, he would refer to the judgment rendered by Hon'ble the Supreme Court in case of Chamoli Co-operative Bank Ltd. Vs. Raghunath Singh Rana & others reported in 2016 (12) SCC 204 (para 19, 20, 21, 221) & State of U.P. Vs. Saroj Kumar Sinha reported in 2010 (2) SCC 772.
14. Learned counsel for the State would submit that the departmental inquiry has been conducted in accordance with principle of natural justice and the punishment imposed upon the Page 10 of 24 petitioner is proportionate to the misconduct and thus, he would pray for dismissal of the writ petition.
15. I have heard learned counsel for the parties and perused the record of the departmental inquiry also which has been requisitioned by this Court on 04.04.2024 and the same has been produced by the State for perusal of this Court.
16. Before examining the rival contention of the parties it is necessary for this Court to go through the records of the departmental inquiry. The inquiry proceeding would reveal that the petitioner has submitted reply to the charge-sheet narrating the serious illness of his wife and thereafter, proceedings were adjourned on various occasions. On 18.09.2012 the petitioner has submitted an application for adjournment of inquiry proceeding on account of illness of his wife thereafter the inquiry proceedings were adjourned on various date and on 28.12.2012 the petitioner submitted another application regarding serious illness of his wife. Again on 12.12.2013 the petitioner has also submitted records of OPD and application wherein he has attached the medical prescription of hospital and also prayed for adjourned of 10-12 days. Thereafter the proceedings were adjourned to various dates on account of absentism of the applicant and on 24.09.2013 new inquiry officer was appointed who has issued notice to the petitioner on 07.10.2013, 23.12.2023 and on 30.06.2014 ex-parte proceedings were initiated against the petitioner and on Page 11 of 24 31.07.2014 the respondents have examined three witnesses namely Amrit Kujur, Sub-Inspector, Constable Tameshwar Masihare, Constable Hiramanjuri and Constable Umesh Kawde. On 09.01.2014 the Sub Inspector Tulsi Ram Kashyap was examined and thereafter the inquiry officer submitted his report on 20.08.2014 which was replied by the petitioner on 22.09.2014, thereafter the impugned order terminating the petitioner from service was passed on 03.12.2014. The record of the case would show that the petitioner has submitted reply to the inquiry report alongwith records regarding illness of his wife and himself.
17. Persual of the order sheets which have been referred to above clearly demonstrates that the petitioner from the very first day giving reason for his absentism is illness, but the same was not supported from the medical record to justify his absent. The medical records attached in the writ petition are subsequent to passing of the order of punishment, as such it cannot be considered by this Court. On this count the absent of the petitioner cannot be condoned.
18. The further submission of the petitioner is that the inquiry officer has acted as prosecutor and judge is to be examined by this Court. From the record itself, it is quite vivid that no presenting officer was appointed which is against the basic principle of natural justice that the inquiry officer has acted as a judge and prosecutor which is against the well settled position of law that Page 12 of 24 the Inquiry Officer cannot act as judge and prosecutor. The Inquiry has been conducted in violation of Rule 14(5) of the Chhattisgarh Civil Services (Classification, Control and Appeal) Rules, 1966 (in short "Rules of 1966") which provides procedure to be followed in the inquiry, the relevant rules reads as under:-
"Rule 14 (5) Appointment of Enquiry and Presenting Officers:-
14. (5) (a) On receipt of the written statement of defence, the disciplinary authority may itself inquire into such of the articles of charge as are not admitted, or if it considers it necessary to do so, appoint under sub-rule (2), an inquiring authority for the purpose, and where all the articles of charge have been admitted by the Government servant in his written statement of defence, the disciplinary authority shall record its findings on each charge after taking such evidence as it may think fit and shall act in the manner laid down in Rule 15.
(b) If no written statement of defence is submitted by the Government servant the disciplinary authority may itself inquire into the articles of charge, or may, if it considers it necessary to do so, appoint, under sub-rule (2), an inquiring authority for the purpose.
(c) Where the disciplinary authority itself inquires into any article of charge or appoints an inquiring authority for holding any inquiry into such charge, it may, by an order, appoint a Government servant or a legal practitioner, to be known as the 'Presenting Officer' to present on its behalf the case in support of the articles of charge." The Government of Madhya Pradesh as adopted by the State of Chhattisgarh has also issued instructions in compliance of Rules 14(5) of Rules of 1966 regarding appointment of Presenting Officer which clearly establishes that non- appointment of Presenting Officer may vitiate the inquiry. The relevant paras of the circular are described as under:- Page 13 of 24
(1) izR;sd foHkkx vius dk;kZy; esa foHkkx ds lsokfuo`Rr ,sls vf/kdkfj;ksa dh lwph j[ksaxs ftudks foHkkxh; fu;eksa ,oa foHkkxh;
tkap ls lacaf/kr fu;eksa @izfØ;k dk vPNk Kku dks ,oa bl izdkj ds izdj.kksa ds fuiVkjs esa n{k gksaA (2) tkapdrkZ rFkk izLrqrdrkZ vf/kdkfj;ksa dh fu;qfDr lsokfuo`Rr vf/kdkfj;ksa ds iSuy esa ls dh tkosA (3) foHkkxh; tkap ds ekeyksa esa fu;qDr tkapdrkZ@izLrqrdrkZ vf/kdkjh dks ;g dk;Z djus ds fy;s rFkk ikfjJfed@ekuns; fn;k tk;s] mlds laca/k esa iz'kkldh; foHkkx foÙk foHkkx ls ijke'kZ izkIr dj mudk ekuns;@ikfjJfed fu/kkZfjr djsaA (4) lsokfuo`fÙk vf/kdkjh dh tkapdrkZ@izLrqrdrkZ vf/kdkjh ds :i esa fu;qfä djrs le; ;g lko/kkuh cjrh tk;s fd ,slk vf/kdkjh vipkjh lsod ds in dh rqyuk esa ofj"B in ls lsokfuo`Ùk gqvk gksA (5) mijksDr dk;Z ds fy;s lacaf/kr foHkkx }kjk dk;Zy;hu lqfo/kk miyC/k djkbZ tk;sA and also directed for strict compliance of the above instructions.
19. Hon'ble Supreme Court in case of Union of India & Others vs. Ram Lakhan Sharma reported in 2018 (7) SCC 670 in paragraphs 27, 29, 30 and 37 has held as under :-
"27. In State of U.P. v. Saroj Kumar Sinha¹, this Court had laid down that Enquiry Officer is a quasi-judicial authority, he has to act as an independent adjudicator and he is not a representative of the department/disciplinary authority/Government. In paras 28 and 30 the following has been held: (SCC p. 782) "28. An Enquiry 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 f 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 Page 14 of 24 against the respondents.
30. When a departmental enquiry is conducted against the government g servant it cannot be treated as a casual exercise. The enquiry proceedings also cannot be conducted with a closed mind. The Enquiry Officer has to be wholly unbiased. The rules of natural justice are required 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."
29. M. Rama Jois, J. of the Karnataka High Court had occasion to consider the above aspect in Bharath Electronics Ltd. v. K. Kasi5. 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 Enquiry Officer played the role of prosecutor. This Court held that there is no legal compulsion that Presenting Officer should be appointed but if the Enquiry Officer plays the role of Presenting Officer, the inquiry would be invalid. The following was held in paras 8 and 9: (SCC OnLine Kar) "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 Raju v. State of Karnataka). 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 Enquiry Officer had played the role of the Presenting Officer. The relevant part of the findings read:
'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 Page 15 of 24 been no explanation as to why no Presenting Officer was appointed and as to why the Inquiry Officer took upon himself the burden of putting questions to the management's witnesses. The enquiry proceedings at Ext. A-6 disclose that after the cross-examination of the management's 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 enquiry officer has followed the principles of natural justice and 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 the 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 Enquiry 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. (See Mulchandani Electrical and Radio Industries Ltd. v. Workmen.)"
30. This Court had occasion to observe in Workmen v. Lambabari Tea Estates8, that if the Enquiry Officer did not keep his function as Enquiry Officer but becomes prosecutor, the inquiry is vitiated. The following was observed: (FLR p. 362) "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 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 Page 16 of 24 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."
37. The High Court having come to the conclusion that the Enquiry Officer has acted as prosecutor also, the capacity of independent adjudicator was lost while adversely affecting his independent role of adjudicator. In the circumstances, 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 appellants to proceed with inquiry afresh. We make it clear that our observations as made above are in the facts of the present cases."
20. The Hon'ble High Court of Madhya Pradesh in case of Union of India & Ors. Mohd. Naseem Siddiqui reported in 2005 (1) LLJ 931 has held as under:-
"4. The leading decision of which is the case of Union of India through its Secretary, Ministry of Railway, New Delhi and Others v. Mohd. Naseem Siddiqui reported in 2005 (1) LLJ 931 wherein the Supreme Court in paragraph 7 has held as under:- 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 facts: (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, (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.
Further, in paragraph-16, Their Lordship summerized the legal position by observing as under:-
(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.
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(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.
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 Officer, except in simple cases. Be that as it may." Likewise, the Division Bench of Madhya Pradesh High Court in the case of G.M.Telecom Factory, Jabalpur Vs. P.V. Upadhyay & Anr reported in 1991 MPST 204 in similar circumstances in paragraph 6 has held as under:-
"6. Apart from the above facts there are reasons to believe that the Enquiry Officer was biased against respondent No.1. In this connection, it may be pointed out that Enquiry Officer did not allow the representatives of respondents No.1 to examine the respondent and his witnesses first in examination in Chief but they were straightway confronted with the cross-examination by a searching cross-examination by Enquiry Officer and then by the Presenting Officer probably under the impression that they were inducted as untruthful witnesses. This procedure and such a conduct cannot be approved on Page 18 of 24 any count. There would be no illegality if the Enquiry Officer questions the delinquent or his witnesses after they made their statement on behalf of the delinquent; but straightway to confront the delinquent and his witnesses with the cross-examination by the Enquiry Officer is derogatory which would certainly cause great prejudice to the delinquent. Learned counsel appearing for the petitioner after going through the record of Enquiry Officer, which was available with him, could not conrovert the above state of things and on the contrary affirmed the same. This is not all but the Enquiry Officer looked into the W.O. Register which did not form part of the enquiry and he formed his opinion on the basis of this piece of evidence also to which respondent No.1 had neither any access nor any opportunity to meet the entries contained therein. These facts clearly revealed the mind of the Enquiry Officer that he was against respondent No.1. In the facts and circumstances, stated above, the view taken by the Tribunal cannot be said to be erroneous but perfectly justified."
Similarly, the division Bench of Karnataka High Court in the case of N.R. Dhananjayan Vs. Management of Indian Overseas Ban & Anr. reported in 2006 LLR 726 in paragraph 8 has held as under:-
"8. From a reading of the entire proceedings what is clear to us is that the Enquiry Officer seemed to be under the impression that he was representing the management as is evident from these proceedings. The way in which the proceedings were conducted by the Enquiry Officer and the way in which the questions were posed by him, witnesses were examined prove in unmistakable terms that the Enquiry Officer has assumed the role of a prosecutor and a Judge in the case on hand. Law is fairly well-settled that the Enquiry Officer can only seek clarification. Clarification has to be a real clarification in the real sense but not examination-in- Chief/cross- examination etc., as is done in the present case."
21. As such, the entire inquiry deserves to be vitiated by this Court due to non-compliance of statutory rules and law laid down by the Hon'ble Supreme Court and various High Courts. Normally this Court remands the matter to the disciplinary authority for Page 19 of 24 deciding afresh from the stage where the defect has been pointed out, but since the services of the petitioner were terminated in the years 2014, more than 10 years have already lapsed and also considering the fact that when this petition was filed at that time the petitioner's age was 59 years, now he is going to be shortly due for retirement, therefore, this Court is examining the issues of quantum of punishment as this Court can substitute its own decision over imposition of punishment.
22. It is well settled position of law that even in cases where the punishment imposed by the disciplinary authority is found to be shocking to the conscience of the Court, normally the disciplinary authority or the appellate authority should be directed to reconsider the question of imposition of penalty. The scope of judicial review on the quantum of punishment is available but with a limited scope. It is only when the penalty imposed appears to be shockingly disproportionate to the nature of misconduct that the Courts would frown upon. Even in such a case, after setting aside the penalty order, it is to be left to the disciplinary/appellate authority to take a call and it is not for the Court to substitute its decision by prescribing the quantum of punishment. However, it is only in rare and exceptional cases where the court might to shorten the litigation may think of substituting its own view as to the quantum of punishment in place of punishment awarded by the competent authority that too after assigning cogent reasons. This issue has been considered by the Hon'ble Supreme Court in case of Page 20 of 24 Union of India & Others vs. Ex. Constable Ram Karan reported in 2022 (1) SCC 373. The Hon'ble Supreme Court has held in paragraph 25 which reads as under:-
"25. The principles have been culled out by a three- Judge Bench of this Court way back in B.C. Chaturvedi vs. Union of India and Others2 wherein it was observed as under:-
"18. A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof."
23. In light of the abovestated legal position as well as Police Regulation which has been framed under the power conferred under the Police Act, 1851 by the State, the quantum of punishment imposed upon the petitioner has to be considered by the State. It is pertinent to mention that the Police Act of 1951 has been repealed by Chhattisgarh Police Act, 2007, but Section 50 of the Act of 2007 provides that existing police regulation shall continue to be in force till altered or repealed by the State. As such, the police regulations made under the Act of 1851 are in existence and still applicable in the Police Department. The Police Regulation 226 provides that the Page 21 of 24 dismissal from service should be last recourse and normally it should not be imposed when all the attempts to correct the member of police force is exhausted. The relevant provisions of Police regulation 226 reads as under:-
"226- naM vijk/k ftuds fy, fn;k tkuk & ;g fu'p; djus ds fy, fd fdlh fo'ks"k vijk/k ds fy, D;k 'kkfLr vkjkssfir fd;k tkuk pkfg, fuEufyf[kr fu;eksa dk ikyu fd;k tkuk pkfg,&
(i) ¼v½ inP;qr vfUre voyEc (recourse) gS vkSj lk/kkj.kr;k vkjksfir ugh fd;k tkuk pkfg, tc rd fd lq/kkj ds lHkh tfj, vlQy u gks tk,aA ¼c½ ;fn mi fujh{kd ds fy, inP;qfr ¼cj[kkLrxh½ cgqr dM+k n.M le>k tkrk gS] rc og pkgs rks lsok ls fudky fn;k tk, ¼;g inP;qfr ugha ekuk tkrk½ ;k fd nf'kZr vof/k ds fy, ifjoh{kk/khu mi fujh{kd ds in ij inkour dj fn;k tk,A uksV & (i) inP;qfr ds vkns'kksa dk izHkko ml fnukad ls gksxk ftl fnukad dks os ikfjr fd, x, ml fnukad ls izHkko gksxk ftl fnukad dks inP;qfr O;fDr dk;Z ls eqDr fd;k tkrk gS tks Hkh ckn dk gksA"
24. Now this Court has to examine whether the punishment is proportionate or disproportionate to misconduct committed by the petitioner coupled with the facts that the inquiry has been conducted in violation of statutory rules and also taking note of the fact that as per Regulation 226 dismissal of constables from service should be last recourse to be followed by the authorities, as well as in light of the parameters laid down by the Hon'ble Supreme Court regarding power of interference in disciplinary matter by this Court. This Court can interfere in the punishment and impose punishment instead of remitting the matter to the disciplinary authority for fresh adjudication in view of the law laid down by the Hon'ble Supreme Court in case of Ram Karan (Supra). It is well settled that power of interference Page 22 of 24 is very limited unless suffers from procedure impropriety or shocks the consciousness of Court or it was defines of logic and moral standards as held by the Hon'ble Supreme Court in case of Union of India v. K.G. Soni reported in 2006 (6) SCC 794 wherein the Hon'ble Supreme Court has held as under:-
"14. The common thread running through in all these decisions is that the court should not interfere with the administrator's decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the court, in the sense that it was in defiance of logic or moral standards. In view of what has been stated in Wednesbury case [Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn., (1948) 1 KB 223: (1947) 2 All ER 680 (CA)] the court would not go into the correctness of the choice made by the administrator open to him and the court should not substitute its decision to that of the administrator. The scope of judicial review is limited to the deficiency in the decision-making process and not the decision.
15. To put it differently, unless the punishment imposed by the disciplinary authority or the Appellate Authority shocks the conscience of the court/tribunal, there is no scope for interference. Further, to shorten litigations it may, in exceptional and rare cases, impose appropriate punishment by recording cogent reasons in support thereof. In the normal course if the punishment imposed is shockingly disproportionate, it would be appropriate to direct the disciplinary authority or the Appellate Authority to reconsider the penalty imposed.
(emphasis supplied)"
Similarly, the Hon'ble Supreme Court in the case of State of Uttar Pradesh v. Man Mohan Nath Sinha reported in 2009 (8) SCC 310 has held as under:-
"15. The legal position is well settled that the power of judicial review is not directed against the decision but is confined to the decision-making process. The court does not sit in judgment on merits of the decision. It is not open to the High Court to reappreciate and reappraise the evidence led before the inquiry officer and examine the findings recorded by the inquiry officer as a court of appeal and reach its own conclusions. In the instant Page 23 of 24 case, the High Court fell into grave error in scanning the evidence as if it was a court of appeal. The approach of the High Court in consideration of the matter suffers from manifest error and, in our thoughtful consideration, the matter requires fresh consideration by the High Court in accordance with law. On this short ground, we send the matter back to the High Court."
Similarly, the Hon'ble Supreme Court in the case of Bharti Airtel Limited v. A.S. Raghavendra reported in 2024 (6) SCC 418 has held as under:-
"29. As regards the power of the High Court to reappraise the facts, it cannot be said that the same is completely impermissible under Articles 226 and 227 of the Constitution. However, there must be a level of infirmity greater than ordinary in a tribunal's order, which is facing judicial scrutiny before the High Court, to justify interference. We do not think such a situation prevailed in the present facts. Further, the ratio of the judgments relied upon by the respondent in support of his contentions, would not apply in the facts at hand."
(emphasis supplied)
25. Considering the parameters laid down by the Hon'ble Supreme Court also considering the fact that the inquiry has been conducted in violation of Rule 14 of the Rules of 1966 and also considering the fact that the petitioner was initially appointed on 13.02.1992 and his services were terminated on 03.12.2014 and he has completed about 22 years services and prior to issuance of charge-sheet, no misconduct was alleged against the petitioner and also considering the fact that the petitioner is due for retirement shortly and also considering the fact that punishment is harsh looking to the reason assigned by the petitioner, I am of the view that in place of termination from service the, lesser punishment can be imposed upon the petitioner converting the punishment of termination from service Page 24 of 24 into the compulsory retirement from the service w.e.f. 03.12.2014, as such, the petitioner is entitled to get minimum pension and other admissible retiral dues. Accordingly, the impugned orders dated 03.12.2014 (Annexure P/1), order dated 21.03.2017 (Annexure P/2) and order dated 05.04.2018 (Annexure P/3) are quashed and punishment imposed upon the petitioner is converted into compulsory retirement.
26. Consequently, the writ petition is allowed in part.
Sd/-
(Narendra Kumar Vyas) Judge Manish