Union Of India vs Hari Om Sharma
2021 Latest Caselaw 3613 Chatt

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                                                                 AFR

         HIGH COURT OF CHHATTISGARH BILASPUR

                     Writ Appeal No.12 of 2020

1.   Union of India through The Secretary, Ministry of Home
      Affairs, New Delhi
2.   DIG, CISF Unit BSP, Bhilai, District Durg, Chhattisgarh
3.   CISF Bhilai, Supela Bhilai, Tahsil and Disrict Durg,
      Chhattisgarh
                                                      ---- Appellants
                               Versus
Hari Om Sharma, S/o Shri Harish Chandra Bhardwaj, Age 45
years (as per order sheet) Constable No.914524616 CISF, BSP
Bhilai, Rolling Mill Gate, R/o 90C, Camp-1, BSP Bhilai, Tahsil and
District Durg, Chhattisgarh
                                                   ---- Respondent

For Appellants                : Mr. Rajkumar Gupta, Advocate
For Respondent                : Mr. Ajay Shrivastava, Advocate

Date of hearing               : 09.11.2021
Date of Judgment              : 10.12.2021

Hon'ble Shri Arup Kumar Goswami, Chief Justice

Hon'ble Shri Goutam Bhaduri, Judge

C A V Judgment

Per Arup Kumar Goswami, Chief Justice

This writ appeal is presented against an order dated

19.07.2019 passed by the learned Single Judge in Writ Petition

No.450 of 2006, whereby, while allowing the writ petition, respondents/

appellants were directed to reinstate the petitioner forthwith without

back wages, but providing that the intervening period shall be counted

as continuous service for all other purposes and that the petitioner be

given benefits by notional fixation.

2. The challenge in the writ petition was to an order dated

26.06.2003 issued by the Commandant, Central Industrial Security

Force (for short 'CISF'), Bhilai, removing the petitioner from service

and the order dated 29.09.2003 passed by the Deputy Inspector

General of Police, CISF, Bhilai Steel Plant, Bhilai, rejecting the appeal.

Prayer was also made for payment of arrears along with interest at the

rate of 18% as well as damages and litigation charges of Rs.50,000/-.

3. The petitioner was appointed as a Constable in CISF, Bhilai on

22.03.1991. While working in CISF Unit, Bhilai Steel Plant, Bhilai, a

charge-sheet dated 14.02.2003 was issued on three charges. The

charge No.1 relates to an allegation that on 11.01.2003, in the second

shift, he did not attend duty without prior permission of competent

officer. The charge No.2 contains an allegation that on 11.01.2003, he

was absent in the evening roll-call without permission of the competent

officer and the charge No.3 is that on 11.01.2003, without any

information/permission of the competent officer, he absconded from

the government accommodation and Unit Line and thus, the aforesaid

conduct shows negligence, indiscipline in duty and lack of

responsibility as well as disobedience of orders of the superior officers.

4. The pleadings in the writ petition is very sketchy. No reply was

also filed by the appellants.

5. In the writ petition, it is stated that after receiving a telegram

dated 11.01.2003, through which he was intimated regarding

"seriousness" of his mother, who was at Aligarh (U.P.), he submitted a

casual leave application on 11.01.2003 wherein endorsement was

made by his superior officer that "if the case is genuine spare him".

The petitioner had challenged the charge-sheet dated 14.02.2003 and

departmental inquiry initiated against him by filing a writ petition,

registered as Writ Petition No.1806 of 2003, and during the pendency

of the writ petition, as the departmental inquiry had culminated in

removal from service, the writ petition was dismissed as infructuous by

an order dated 15.07.2005.

6. From the order of removal dated 26.06.2003, it appears that

the petitioner had submitted his written statement, denying the

allegations. Not being satisfied with the explanation furnished, an

Inquiry Officer came to be appointed on 05.03.2003. It appears that

five witnesses were examined on behalf of the Department and Inquiry

Officer submitted his report on 17.05.2003 holding the charges to be

proved. By a letter dated 23.05.2003, Inquiry Report was furnished to

the petitioner asking him to respond to the same within a period of 15

days and the petitioner submitted his response vide his letter dated

09.06.2003 and thereafter, the Disciplinary Authority concurred with

the findings recorded by the Inquiry Officer and resultantly, the order of

removal dated 26.06.2003 came to be passed.

7. In the order of removal dated 26.06.2003, it is noted that the

petitioner had returned to duty on 13.02.2003.

8. The appeal preferred by the petitioner came to be dismissed

by an order dated 29.09.2003.

9. In the writ petition, it is pleaded that petitioner had submitted

an application dated 28.04.2003 for summoning three defence

witnesses. It is also stated that the Presenting Officer was not

appointed and that the Inquiry Officer was discharging the role of the

Prosecutor, which is contrary to the principles of natural justice. By

another application dated 01.05.2003, petitioner also prayed for

providing a Defence Assistant. By an application dated 04.04.2003,

petitioner had requested to furnish him copy of documents, but they

were also not furnished to him.

10. The learned Single Judge recorded that it is not in dispute that

no Presenting Officer was appointed by the Department and that the

Inquiry Officer alone had examined and cross-examined the witnesses

including the petitioner. Relying upon Rule 36(5)(C) of the Central

Industrial Security Force Rules, 2001 (for short 'CISF Rules'), which is

framed under the Central Industrial Security Force Act, 1968 (for short

'CISF Act'), which provides for "Appointment of a member of the Force

as Presenting Officer" to present the case on behalf of the Disciplinary

Authority in support of the charges, it was held that on the ground of

non-appointment of Presenting Officer alone, the inquiry stands

vitiated. Reliance was placed upon various authorities including in the

judgment of High Court of Madhya Pradesh in Union of India and

Others v. Mohd. Naseem Siddiqui, reported in 2005 (1) LLJ 931, to

hold that the disciplinary proceeding initiated against the petitioner as

well as the inquiry proceeding stood vitiated. While setting aside the

impugned orders challenged in the writ petition, liberty was granted to

the respondents therein to initiate fresh proceeding, if so advised, in

accordance with CISF Rules.

11. Mr. Raj Kumar Gupta, learned counsel for the appellants

submits that the petitioner had submitted an application on 11.01.2003

applying for casual leave for 15 days w.e.f. 13.01.2003 on the ground

of "serious illness" of his mother and in the said application, Deputy

Commandant, CISF has endorsed that "if the case is genuine spare

him" and accordingly, his leave was sanctioned from 20.01.2003

enabling the petitioner to proceed on leave w.e.f. 16.01.2003 after

availing permission, but before sanction of leave, the petitioner left the

Unit Line without any permission on 11.01.2003 itself and as such, the

same was a serious act of indiscipline. Charges having been proved in

the inquiry, he was removed from service. Learned counsel submits

that Rule 36(5)(C) of CISF Rules came into effect from 09.06.2003,

whereas the charge memo was issued on 14.02.2003 and therefore, at

that relevant point of time, the extant CISF Rules did not prescribe

appointment of a Presenting Officer and the learned Single Judge

committed error of law in relying upon the amended Rule 36(5)(C) of

CISF Rules and therefore, the impugned order passed by the learned

Single Judge is not sustainable in law. It is submitted that merely

because the Presenting Officer was not appointed, same is not

enough to hold that the inquiry proceeding is vitiated or that there is

failure of principles of natural justice. It is also submitted that the

petitioner has not pointed out as to how non-appointment of

Presenting Officer had caused any prejudice to him and in absence

thereof, at any rate, no case was made out for interference with the

order of removal and the appellate order confirming the same. In the

aforesaid facts and circumstances, the learned Single Judge was

wholly wrong in holding that the disciplinary proceeding initiated

against the petitioner is bad in law and such a finding cannot be

sustained in law. Learned counsel places reliance on the decision of

the Hon'ble Supreme Court in the case of Union of India and Others v.

Ram Lakhan Sharma, reported in (2018) 7 SCC 670 in support of his

contention.

12. Mr. Ajay Shrivastava, learned counsel for the

respondent/petitioner, while supporting the order of the learned Single

Judge, submits that the appellants failed to point out before the

learned Single Judge when Rule 36(5)(C) of CISF Rules came into

force and therefore, such a plea cannot be raised in the appeal. It is

submitted that the assertion of the petitioner that the Inquiry Officer

was also discharging the role of the Prosecutor was not denied by

filing any affidavit and that apart, denial of a Defence Assistant and

refusal to summon the defence witnesses as well as refusal to supply

documents vitiated the inquiry proceeding and therefore, no

interference is called for with regard to the order of the learned Single

Judge.

13. We have heard the learned counsel appearing for the parties

and have perused the materials on record.

14. It is correct that the Rule 36(5)(C) had come into force on

09.06.2003. Neither of the parties had apprised the learned Single

Judge about the aforesaid aspect and it was on the premise that there

is a provision to appoint a Presenting Officer under the CISF Rules at

the time of holding of inquiry, the learned Single Judge proceeded to

hold that the inquiry proceeding is vitiated for non-appointment of the

Presenting Officer. It is to be noted that the petitioner had challenged

the charge-sheet in the earlier writ petition filed by him registered as

Writ Petition No.1806 of 2003, but the same was dismissed as

infructuous by an order dated 15.07.2005. Appointment of a

Presenting Officer comes into picture after the decision is taken by the

Disciplinary Authority to hold an inquiry. As such, for non-appointment

of Presenting Officer, initiation of disciplinary proceeding cannot be

held to be vitiated and therefore, we set aside the aforesaid finding

recorded by the learned Single Judge.

15. Though Mr. Shrivastava had submitted that plea raised by Mr.

Gupta that the learned Single Judge passed his judgment on the basis

of a provision which was inserted after the inquiry was over ought not

to be considered by us, we are of the opinion that the issue needs to

be addressed for securing the ends of justice.

16. Rule 36(5)(C) of the CISF Rules reads as follows :

"36. Procedure for imposing major penalties -

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                 (5)   *     *       *   *

(c) Where the Disciplinary Authority itself inquiries

into any article of charge or appoints an Inquiring

Authority for holding any inquiry into such charge,

it may, by an order, appoint a member of the

Force to be known as the 'Presenting Officer' to

present on its behalf the case in support of the

articles of charge."

17. In case of Union of India and Others v. T.B. Jankiraman ,

reported in (1991) 4 SCC 109, Hon'ble Supreme Court held that a

disciplinary proceeding commences against an employee when the

charge-sheet is issued to the employee.

18. Though the learned Single Judge has reproduced paragraphs-

7 & 16 of Mohd. Naseem Siddiqui (supra), which was approved by the

Hon'ble Supreme Court in the case of Ram Lakhan Sharma (supra), it

is considered appropriate to reproduce the same in this judgment also

for proper appreciation of the issue :

"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, (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.

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                 *     *     *      *


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 recognized

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 Officers,

except in simple cases. Be that as it may."

19. The disciplinary proceedings are quasi-judicial proceedings

and Inquiry Officer is in the position of an independent adjudicator and

he is obligated to act fairly, impartially and without any bias. Rules of

natural justice have been recognized and developed as principles of

administrative law. The rules of natural justice is meant for securing

justice or to put it negatively, to prevent miscarriage of justice. The

concept of natural justice has undergone changes over a period of

time. In the past, it was thought that principles of natural justice

included just two principles, namely, (1) no one shall be a judge in his

own case and (2) no decision shall be given against a party without

affording him a reasonable hearing. Later on, a third principle was

envisaged, which prescribes that quasi-judicial inquiries must be held

in good faith, without bias and not arbitrarily or unreasonably. In State

of Uttar Pradesh and Others v. Saroj Kumar Sinha , reported in (2010)

2 SCC 772, Hon'ble Supreme Court had laid down that Inquiry Officer

is a quasi-judicial authority and that he has to act as an independent

adjudicator and that he is not a representative of the Department /

Disciplinary Authority.

20. In Ram Lakhan Sharma (supra), the question that had fallen

for consideration was whether non-appointment of Presenting Officer

ipso facto vitiates the inquiry when the statutory rule does not

contemplate appointment of a Presenting Officer. The said question

had fallen for consideration in view of Rule 27(c) of the Central

Reserve Police Force Rules, 1955, which while prescribing the

procedure for conducting a departmental inquiry, did not contemplate

appointment of a Presenting Officer. Further question that had fallen

for consideration was whether there can be any circumstance where

principles of natural justice can be held to be violated when statutory

provision does not require appointment of a Presenting Officer. The

Hon'ble Supreme Court in Ram Lakhan Sharma (supra) held that as

the Inquiry Officer had to be independent and he is not a

representative of the Disciplinary Authority, if he starts acting in any

other capacity and proceeds to act in a manner as if he is interested in

eliciting evidence to punish an employee, the principles of bias will

come into play.

21. The legal position that emerges is that 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. 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, but he can with a view to arrive at the truth or to obtain

clarifications, put questions to the prosecution witnesses as also the

defence witnesses. In the absence of a Presenting Officer, if the

Inquiry Officer puts any question to the prosecution witnesses to elicit

the facts, he should, thereafter, permit the delinquent employee to

cross-examine such witnesses on those questions/clarifications. 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 against the employee, the Inquiry

Officer acts as Prosecutor and in that event, the inquiry gets vitiated.

Whether or not the Inquiry Officer has acted as a Presenting Officer,

however, has to be decided with reference to the manner in which the

evidence was brought in and recorded during the course of the inquiry.

22. As in the instant case, the inquiry itself was concluded on

17.05.2003 before the amendment to Rule 36(5)(C) of CISF Rules,

whereby requirement of appointment of a Presenting Officer was

introduced to the CISF Rules on 09.06.2003, setting aside the order of

removal and the order of the Appellate Authority on the ground of non-

appointment of the Presenting Officer cannot be sustained.

23. But there is another aspect of the matter.

24. The learned Single Judge had also observed that the Inquiry

Officer had examined the witnesses and also cross-examined the

witnesses including the petitioner.

25. The averments of the petitioner in the writ petition that the

Inquiry Officer was discharging the role of the Prosecutor was not

denied by filing any affidavit. If the Inquiry Officer acts as a Presenting

Officer, the principle of bias comes into play and that itself is prejudice

enough to vitiate the inquiry.

26. In view of the above discussion, we do not interfere with the

order of the learned Single Judge directing reinstatement of the

petitioner without any back wages. We also uphold the directions that

the period from the date of his removal till his reinstatement shall be

counted as continuous service for all other purposes and that the

petitioner would be granted the benefits by notional fixation. However,

we interfere with the order of the learned Single Judge granting

opportunity to the appellants to initiate fresh proceeding, if so advised,

but would grant liberty to the appellants to continue with the inquiry

proceeding afresh from the stage of appointment of Inquiry Officer and

Presenting Officer.

27. The writ appeal is, accordingly, disposed of. No cost.

                        Sd/-                                   Sd/-
            (Arup Kumar Goswami)                        (Goutam Bhaduri)
                   Chief Justice                               Judge

Anu