Page No.# 1/ vs The Union Of India And 3 Ors
2021 Latest Caselaw 1900 Gua

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GAHC010024972015




                       THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                          Case No. : WP(C)/6827/2015

         FORCE NO. 075047288 CT/GD TRINATH RANA
         S/O- SRI ASHIKANDA RANA, R/O- GHADAGDHA PALI, P.O.-
         BONBULAPALLI, P.S.- BEHARMPUR, DIST.- GANJAM, ORISHA, PIN- 761020.

         2: FORCE NO. 981243208 CT/GD THANU BHARALI
          S/O- LT. JOGAI BHARALI
          JOKAI BONKUMARGAON
          BONGAON
          BARBARUAH
          DIBRUGARH
         ASSAM
          PIN- 786003.

         3: FORCE NO. 055038712 CT/GD B. SARVAN KUMAR
          S/O- P. VELUSWAMI
          R/O- RAVANPURAM
          DHALI
          COIMBATORE
         TAMILNADU
          PIN- 642207.

         4: FORCE NO. 030350035 CT/BUG NABA KUMAR DAS
          S/O- RAMESH CHANDRA DAS
          BAGHMARA
          PATACHARKUCHI
          BARPETA
         ASSAM
          PIN- 781328.

         5: FORCE NO. 031494032 CT/GD JAYANTA HAZARA
          S/O- AMARNATH HAZARA
          PANJOYA KOTWA
          BARDWAN
         WEST BENGAL
                                                                           Page No.# 2/10

             PIN- 713143

            VERSUS

            THE UNION OF INDIA and 3 ORS
            REP. BY THE SECY., MINISTRY OF HOME AFFAIRS, NEW DELHI- 110003.

            2:THE DIRECTOR GENERAL
             CENTRAL RESERVE POLICE FORCE
             CENTRAL GOVT. OFFICE COMPLEX
             NEW DELHI 110001.

            3:THE INSPECTOR GENERAL OF POLICE
             CENTRAL RESERVE POLICE FORCE
             NORTH EAST SECTOR
             BISHOP COTTON ROAD
             SHILLONG
             MEGHALAYA
             793001.

            4:THE COMMANDANT
             149 BATTALION
             JOYSAGAR
             SIVASAGAR
            ASSAM
             PN- 785665

Advocate for the Petitioner   : MRU SARMA

Advocate for the Respondent : MRS A GAYAN




                                   BEFORE
                   HONOURABLE MR. JUSTICE KALYAN RAI SURANA

                                        ORDER

Date : 19.08.2021

Heard Mr. R. Mazumdar, learned counsel for the petitioners. Also heard Ms. A. Gayan, learned CGC appearing for the respondents.

2. By filing this writ petition under Article 226 of the Constitution of Page No.# 3/10

India, the petitioners have challenged the disciplinary enquiry report dated 24.09.2014 as well as the disciplinary proceedings, which has culminated in order dated 16.10.2014 passed by the Commandant, 149 Battalion CRPF (respondent no.4), thereby dismissing the petitioners from service. It appears that the petitioners have not exhausted the appellate remedy available to them.

3. The learned counsel for the petitioners has submitted that the petitioners were served with memorandum of charges dated 19.07.2014 by which it was proposed that a joint enquiry would be conducted against all the petitioners, alleging that they were guilty of misconduct within the meaning of section 11(1) of the Central Reserve Police Force Act, 1949 (CRPF Act for short). The allegation against the petitioners was in course of their scuffle with the Company Commander, the latter had suffered injuries. It is submitted that the enquiry proceedings was vitiated owing to procedural irregularity as the Enquiry Officer has purportedly acted as both as the Presenting Officer as well as the Judge. It is submitted that as no Presenting Officer was appointed, the proceedings against the petitioners was biased and not sustainable.

4. The learned CGC, per contra, has supported the action of the respondents in conducting the Disciplinary Enquiry and she has also submitted that there was no infirmity in the impugned order under challenge. The learned CGC has extensively referred to the stand taken in the affidavit-in-opposition. It is also submitted that the Assistant Commander, who was at that point of time was acting as the Company Commander, had been assaulted by the petitioners and that he had sustained grievous injury on his head, ears and near his eyes. It is submitted that after conducting an initial enquiry, the petitioners were placed under suspension on 07.07.2014. Accordingly, it is submitted that on Page No.# 4/10

grave misconduct, a joint Departmental Enquiry was held under Rule 18 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 (hereinafter referred to as "CCS CCA Rules" for short). The said proceeding was initiated vide memorandum dated 19.07.2014, which was served on the petitioners on 20.07.2014, accompanied with the Article of Charges (Annexure- I), Statement of Imputation (Annexure-II), List of Documents by which the article of charges was framed (Annexure-III), and List of Witnesses by whom the Article of Charges was proposed to be substantiated (Annexure-IV). It is submitted that the petitioners had submitted their reply and in the Departmental Enquiry, the Deputy Commandant was appointed as the Enquiry Officer vide order dated 28.07.2014. It is submitted that despite opportunity being granted, no Defence Assistant was engaged by the petitioners. It is also submitted that the petitioners were allowed to cross-examine the departmental witnesses and thereafter, 4 (four) defence witnesses were examined by the petitioners. On conclusion of enquiry, the Enquiry Report was submitted to the Disciplinary Authority vide letter dated 24.09.2014 and within extended time, the petitioners had submitted their representation against the Enquiry Report. Thereafter, on consideration of the materials available on record, the petitioners were awarded punishment of dismissal from service which was in exercise of power conferred under the CRPF Rules read with provisions of section 11(1) of the CRPF Act. Accordingly, it was submitted that there was no infirmity in the proceedings and that no interference was warranted by the Court.

5. Considered the materials available in the writ petition, affidavit- in-opposition filed by the respondents as well as affidavit-in-reply filed by the petitioners.

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6. In paragraph 18 of the writ petition, it has been alleged that the Presenting Officer was not appointed and the Enquiry Officer had acted as the Presenting Officer by examining the departmental witnesses as well as the defence witnesses. Accordingly, the learned counsel for the petitioners has urged that by discharging the role of the Presenting Officer as well as the Prosecutor, the Departmental Enquiry proceeding was vitiated by bias. While the statement made in paragraph 18 of the writ petition was denied by paragraph 40 of the affidavit-in- opposition filed by the respondents. However, it is seen that it has not been denied that no Presenting Officer was appointed in course of the proceeding. Moreover, in the sub-paragraph 32 of affidavit-in-opposition, it has been mentioned by the respondents as follows - " Hence, decision of the disciplinary authority for not appointing of the presenting officer was beneficial to the petitioners only...."

7. On the similar point as to whether the departmental enquiry against the petitioner was vitiated by non-appointing of the Presenting Officer, it is seen that the issue is squarely covered by the decision of this Court rendered in the following cases: (1) The Union of India Vs. Ex-Constable GD Sri Atul Chandra Kalita, WA 305/2017, decided by the Division Bench of this Court on 01.02.2019, (2) Arshad Hussain Laskar Vs. The Union of India & Ors., WP(C) 7870/2015, decided on 30.03.2021, and (3) Manoj Kumar Dutta Vs. The Union of India & Ors., WP(C) 62/2012, decided on 08.04.2021. It is also seen that the same issue is also covered by the judgment rendered in the case of Union of India & Ors. Vs. Ram Lakhan Sharma, (2018) 7 SCC 670: 2018 STPL 8265 SC. Relevant parts of paragraph 31 to 34 and 37 thereof (as extracted from 2018 STPL 8265 SC) is quoted below:

31. A Division Bench of the Madhya Pradesh High Court speaking through Page No.# 6/10

Justice R.V. Raveendran, CJ (as he then was) had occasion to consider the question of vitiation of the inquiry when the Inquiry Officer starts himself acting as prosecutor in Union of India and ors. vs. Mohd. Naseem Siddiqui, ILR (2004) MP

821. In the above case the Court considered Rule 9(9) (c) of the Railway Servants (Discipline & Appeal) Rules, 1968. The Division Bench while elaborating fundamental principles of natural justice enumerated the seven well recognised facets in paragraph 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,

(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 Page No.# 7/10

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."

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 Page No.# 8/10

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 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.

     35. ***            ***            ***

     36. ***            ***            ***

37. The High Court having come to the conclusion that Inquiry Officer has acted as prosecutor also, the capacity of independent adjudicator was lost which adversely affecting his independent role of adjudicator. In the circumstances, the Page No.# 9/10

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."

8. The aforesaid decision was followed in the herein before referred cases decided by this Court, viz., (i) Ex-Constable GD Sri Atul Chandra Kalita, (ii) Arshad Hussain Laskar, and (iii) Manoj Kumar Dutta.

9. It is seen that in the present case in hand, no Presenting Officer had been appointed. Hence, in light of the ratio of the hereinbefore referred cases, the learned counsel for the petitioners has successfully been able to demonstrate that the Enquiry Officer had acted as the Prosecutor and a Judge by examining both prosecution witnesses as well as defence witnesses. Accordingly, the Court has no hesitation to hold that the Disciplinary Enquiry proceeding against the petitioners was vitiated by non appointment of Presenting Officer.

10. Resultantly, the Disciplinary Enquiry as well as the Enquiry Report dated 24.09.2014 stands vitiated and both are liable to be set aside and quashed. Consequently, the order dated 16.10.2014 passed by the respondent no. 4, thereby dismissing the petitioners from service also stands vitiated and the same is also liable to be quashed. Accordingly, the said Disciplinary Enquiry against the petitioners, the Enquiry Report dated 24.09.2014 and the dismissal order dated 16.10.2014 by the respondent no. 4, thereby dismissing the petitioners from service are hereby set aside and quashed.

11. Consequent upon the quashing as aforesaid, the matter stands remanded back to the Disciplinary Authority (respondent no.4), who is directed Page No.# 10/10

to issue appropriate orders for holding a fresh Disciplinary Enquiry proceedings against the petitioners, if so advised. The proceedings shall be de novo and would be initiated within a period of 2 (two) months from the date of receipt of downloaded copy of this order. Issuance of certified copy of this order is dispensed with.

12. Consequent to the setting aside and quashing of the order of 16.10.2014, issued by the respondent no.4, thereby dismissing the petitioners, the respondents are directed to reinstate the petitioners and treat the period the petitioners were removed from service as suspension period, but without pay. However, the petitioners shall only be entitled to notional benefit of their pay, other emoluments and pension and other pensionary benefits.

13. It is further clarified that as the Court has taken up and adjudicated the case only on one point, i.e. regarding non-appointment of Presenting Officer. Thus, other factual matrix has not been gone into by this Court.

14. The writ petition stands allowed to the extent as indicated above, leaving the parties to bear their own loss.

JUDGE

Comparing Assistant