Madhya Pradesh High Court
Santosh Kumar Daharia vs Union Of India & Ors. on 16 November, 2022
Author: Maninder S. Bhatti
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE MANINDER S. BHATTI
ON THE 16th OF NOVEMBER, 2022
WRIT PETITION No. 1399 of 2000
BETWEEN:-
SANTOSH KUMAR DAHARIA (MADHYA
PRADESH)
.....PETITIONER
(BY SHRI DEVENDRA KUMAR GANGRADE, ADVOCATE )
AND
1. UNION OF INDIA & ORS. (MADHYA PRADESH)
2. DIRECTOR GENERAL CENTRAL INDUSTRIAL
SECURITY FORCE HEADQUARTER NEW DELHI
(DELHI)
3. COMMANDANT CENTRAL INDUSTRIAL
SECURITY FORCE C.C.L. KARGALI, BARMO,
DISTRICT-BOKARO, BIHAR (BIHAR)
4. SHRI S.C. DAS(INQUIRY OFFICER)
INSPECTOR/EXE D, CENTRAL INDUSTRIAL
SECURITY FORCE UNIT C.C.L. KARGALI,
BARMO, DISTRICT-BOKARO, BIHAR (BIHAR)
.....RESPONDENTS
(BY SHRI GOPI CHOURASIA, ADVOCATE)
This petition coming on for final hearing this day, the court passed the
following:
ORDER
The petitioner has filed this petition under Article 226/227 of the
Constitution of India while praying for following reliefs:-
"(i) That this Hon'ble Court may graciously be pleased to issue a writ in
the nature of Certiorari and quash the order of removal from the service
dated 13.08.1999 (Annexure P/9) and appellate order dated 31.12.1999
(Annexure P/11) in the interest of justice.
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(ii) That this Hon'ble Court may further be pleased to issue a writ in the
nature of Mandamous and may direct the respondents to reinstate the
petitioner on his post with all consequential benefits in the interest of
justice.
(iii) Any other relief which this Hon'ble Court deems fit and proper may
also be granted to the petitioner."
The contents as elaborated in the petition reflect that the petitioner herein
who was initially appointed against the post of Constable with the respondents,
in the year of 1999, applied for granted of leave for a period of 31 days as he
had to visit to his native place. The respondents sanctioned 21 days of leave as
earned leave and 10 days leave as half paid leave, therefore, the total sanctioned
leave was of 31 days w.e.f. 04.01.1999. It is also averred in the petition that as
the petitioner fell sick on 01.02.1999, after examination by the Doctor of District
Hospital Hoshangabad, it was found that the petitioner had suffered hepatitis
(jaundice), accordingly, the petitioner instructed his brother to inform the
respondents by telegram and seek extension of his leave. The brother of the
petitioner sent telegram on 05.02.1999 (Annexure P/1) and as the petitioner was
advised bed rest for minimum 58 days, upon recovering from his illness, the
petitioner reported on duty. However, the petitioner was served with a charge-
sheet dated 10.05.1999 (Annexure P/3) in which the allegation pertaining to
unathorised absence of 61 days was levelled against the petitioner. The charge-
sheet was ultimately ensued in holding of Departmental Inquiry and upon
conclusion of Departmental Inquiry, the petitioner was served with the
impugned order of removal from service dated 13.08.1999 (Annexure P/9). The
said order dated 13.08.1999 (Annexure P/9) was assailed by the present
petitioner by filing an appeal and the Appellate Authority also dismissed the
appeal vide order dated 31.12.1999 (Annexure P/11). Thus, assailing the order
passed by the disciplinary authority as well as the Appellate Authority, the
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present petition has been filed with a further prayer that the respondents be
directed to reinstate the petitioner in service.
It is contended by Shri Gangrade, counsel for the petitioner that in the
present case, the entire disciplinary proceedings have been conducted in
contravention of the settled principle of service jurisprudence. It is contended
by Shir Gangrade, Advocate that Inquiry Officer cannot act as Presenting
Officer and in the present case, there was no Presenting Officer on behalf of
department and the Inquiry Officer stepped into the shoes of Presenting Officer
as well and examined the departmental witnesses and also cross-examined the
present petitioner and later on, himself reduced the inquiry report in writing. It is
further contended by the counsel for the petitioner that this recourse which was
adopted by the Inquiry Officer, vitiated the entire inquiry proceedings inasmuch
as, the Inquiry Officer could not have acted as an employee of the department.
On the contrary, in the capacity of an Inquiry Officer, he was expected to act
fairly and should not have shown any favoritisms to the employer. In the
present case, the principle that no one shall be a judge in his own case is
squarely applicable to the case in hand inasmuch as, a perusal of examination of
witnesses PW-2 and PW-3 which is at page 34 and 36 of the petition as well as
cross-examination of the present petitioner which is at page 39 by the Inquiry
Officer, is ample enough to establish that the entire proceedings have been
vitiated. It is also contended by the counsel for the petitioner that the inquiry, in
the present case was conducted in terms of Rule 34 of Central Industrial
Security Force Rules, 1969 (hereinafter referred to as 'ÂœRules of 1969'Â for
the sake of brevity). It is also contended by Shir Gangrade, Advocate that
though it may not be specifically worded in Rule 34 that there has to be
appointment of Presenting Officer, yet the Inquiry Officer in all fairness ought
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to have appointed Presenting Officer as representative of the department.
Therefore, counsel submits that in view of law laid down by the Apex Court in
the case of Krushnakant B. Parmar vs. Union of India and Another
reported in (2012) 3 SCC 178 the impugned order deserves to be quashed and
the petitioner deserves to be reinstated back in service with all consequential
benefits.
Shri Gangrade, Advocate has also placed reliance on the decision of the
Apex Court in the case of Krushnakant B. Parmar vs. Union of India and
Another reported in (2012) 3 SCC 178 to substantiate that in order to impose
a major penalty, the department is required to prove that the absence of the
concerned employee was willful whereas in the present case, since the petitioner
intimated well in advance the factum as regards his illness and when the telegram
sent by the brother of the petitioner is not disputed by the respondents and also
the medical certificates produced by the petitioner during conduct of the inquiry
which are contained in Annexure P/2 have also not been controverted, there was
no occasion with the respondents to impose the major penalty of removal.
Thus, counsel for the petitioner submits that the petition deserves to be allowed.
Per contra, Shri Chourasia, counsel for the respondents submits that in
Rules of 1969, there is no provisions of appointment of a Presenting Officer,
therefore, there is no violation of any statutory provisions. It is further
contended by Shri Chourasia, Advocate that in absence of any such provisions
in the statutory Rules, the Inquiry Officer did not commit any error while
himself examining the witnesses of the department as well as cross-examining
the present petitioner. The scope of interference in exercise of powers of
judicial review with the disciplinary proceedings is limited. Therefore, counsel
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submits that in view of the law laid down by the Apex Court in the case of B.C.
Chaturvedi vs. Union of India reported in (1995) 6 SCC 749, Bank of
India vs. Degala Suryanarayana reported in (1999) 5 SCC 762, M.V.
Bijlani vs. Union of India reported in (2006) 5 SCC 88, Mazdoor Sangh
vs. Usha Breco Ltd. reported in (2008) 5 SCC 554, SBI vs. Narendra
Kumar Pandey reported in (2013) 2 SCC 740, SBI vs. R. Periyasamy
reported in (2015) 3 SCC 101, Manoj H. Mishra vs. Union of India
reported in (2013) 6 SCC 313 and Delhi Transport Corporation vs.
Shyamlal reported in (2004) 8 SCC 88, no interference is warranted inasmuch
as, the petitioner failed to explain his prolong unauthorized absence of 61 days
beyond the sanctioned period of leave.
No other point is pressed by the parties.
Heard the rival submissions of both the parties and perused the record.
The sole charge which was levelled against the petitioner pertains to
unauthorized absence of 61 days. It is not in dispute that a leave of 31 days
commencing from 04.01.1999 to 03.02.1999 was sanctioned and thereafter,
since the petitioner was supposed to report back on duty on 04.02.1999,
remained absent for total 61 days till 05.04.1999, the employer invoked the
power conferred under Section 18(1) of the Central Industrial Security Force
Act, 1968.
The stand of petitioner that as he fell ill, therefore, through his brother a
telegram was sent to the respondents, is not disputed by the respondents. It is
also noteworthy to take note of the fact that the petitioner produced the medical
certificate which is contained in Annexure P/2 issued by the doctor while
diagnosing the petitioner's illness of being hepatitis affected.
The impugned order of removal reveals that the disciplinary authority, in
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paragraph 7 recorded that the petitioner has not produced any certificate to
show that as to what was the disorder with which the petitioner was suffering ?
The disciplinary authority also ventured upon to hold that the petitioner in
collusion with doctor, has obtained a medical certificate. The relevant findings
as arrived at by the disciplinary authority in paragraph 7 are reproduced
hereinunder:-
"7................bruh yEch fpfdRlk foJke dh vof/k ds nkSjku og ,d ckj Hkh fpfdRlky; esa
HkrhZ ugha Fkk vkSj u gh mlus fdlh vU; ijh{k.k lEcfU/kr fjiksVZ ,oa D;k chekjh Fkh mldk
dgh Hkh mYys[ k ugha fd;k] ftlls mldh chekjh dh lR;rk vLi"V gS vkSj ;g izrhr gksrk gS
fd og fcuk fdlh mfpr dkj.k ds vodk'k ls vf/kd Bgjko fcuk fdlh iwoZ lwpuk ,oa l{ke
vf/kdkjh ds cxSj vuqe fr ds fd;k vkSj vodk'k ls vf/kd Bgjko dh vof/k dks doj djus ds
fy, Mk0 ls esy feyki dj fpfdRlk ize k.k i= izkIr fd;k gSA "
Thereafter, the Inquiry Officer proceeded to recommend removal of the
petitioner from service. Though, the petitioner did not take recourse to stand as
regards the conduct of the Inquiry Officer in reply to the show cause notice
which was issued to the petitioner by the disciplinary authority and also in
memorandum of appeal which was preferred by the petitioner before the
Appellate Authority, but this specific ground has been taken by the petitioner in
paragraph 5.17 of the writ petition. Therefore, since this question which goes to
the root of the matter is required to be dealt with.
The Apex Court in the case of Union of India and Others vs. Ram
Lakhan Sharma reported in (2018) 7 SCC 670 in paragraphs 28, 34 and 36
has held as under:-
"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
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Enquiry Officer acting as the prosecutor against the respondents. The
Enquiry Officer who has to be independent and not representative of the
disciplinary authority if 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 principle of bias comes into place.
* * *
34. We fully endorse the principles as enumerated above, however, the
principles have to be carefully applied in fact 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 v. Kunj Behari Misra [Punjab National Bank v. Kunj
Behari Misra, (1998) 7 SCC 84 : 1998 SCC (L&S) 1783] . In the above
case, this Court had occasion to consider the provisions of the Punjab
National Bank Officer Employees' (Discipline and Appeal) Regulations,
1977. Regulation 7 provides for action on the enquiry report. Regulation 7
as extracted in para 10 of the judgment is as follows: (SCC p. 90)
10..............7. Action on the enquiry report.-ÂÂÂ"(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.
(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.'
* * *
36. Thus, the question as to whether the Enquiry 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 a
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 the Enquiry
Officer himself led the examination-in-chief of the prosecution witness by
putting questions. The High Court further held that the Enquiry Officer
acted himself as prosecutor and Judge in the said disciplinary enquiry. The
above conclusion of the High Court has already been noticed from paras 9
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and 10 of the judgment of the High Court giving rise to Civil Appeal No.
2608 of 2012. "
The Apex Court in the case of A.K. Kraipak and Ors vs. Union of India
and Ors. reported in (1969) 2 SCC 262 in paragraph 20 has held as under:-
"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 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. But in the course of
years many more subsidiary rules came to be added to the rules of natural
justice. Till very recently it was the opinion of the courts that unless the
authority concerned was required by the law under which it functioned to
act judicially there was no room for the application of the rules of natural
justice. The validity of that limitation is now questioned. If the purpose of
the rules of natural justice is to prevent miscarriage of justice one fails to
see why those rules should be made inapplicable to administrative
enquiries. Often times it is not easy to draw the line that demarcates
administrative enquiries from quasi-judicial enquiries. Enquiries which
were considered administrative at one time are now being considered as
quasi-judicial in character. Arriving at a just decision is the aim of both
quasi-judicial enquiries as well as administrative enquiries. An unjust
decision in an administrative enquiry may have more far reaching effect
than a decision in a quasi-judicial enquiry. As observed by this Court in
Suresh Koshy George v. University of Kerala [ Civil Appeal No. 990/68,
decided on15-7-1968] the rules of natural justice are not embodied rules.
What particular rule of natural justice should apply to a given case must
depend to a great extent on the facts and circumstances of that case, the
framework of the law under which the enquiry is held and the constitution
of the Tribunal or body of persons appointed for that purpose. Whenever a
complaint is made before a court that some principle of natural justice had
been contravened the court has to decide whether the observance of that
rule was necessary for a just decision on the facts of that case."
Thereafter, the Apex Court in the case of State of U.P. and Ors. vs.
Saroj Kumar Sinha reported in (2010) 2 SCC 772 in paragraph 28 and 30 has
held as under:-
"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
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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 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. "
Therefore, the aforesaid enunciation of law by the Apex Court makes it
abundantly clear that the Court is required to deal with the question as to
whether the Inquiry officer who is suppose to act independently, has acted as
prosecutor or not ? The Apex Court in the case of Ram Lakhan Sharma (supra)
has also held that the aforesaid question is a question of fact which has to be
decided on the basis of facts and proceedings of a particular case.
In the present case, the Inquiry Officer undisputedly examined PW-2 and
PW-3 and thereafter, there is a detailed cross-examination by the Inquiry Officer
of the petitioner which is in questionnaire form. A perusal of the same reflects
that the petitioner herein was subjected to as many as eight questions. It would
not be out of place to assume that the said questionnaire was prepared by the
Inquiry Officer himself and the petitioner was subjected to answer the said
questions. Thus, preparation of the questionnaire, at the instance of the Inquiry
Officer required application of mind. Therefore, the question No.2 and question
No.5 reveal that the Inquiry Officer sought clarification of the petitioner as
regards the allegation of unauthorized absence. The Inquiry Officer also cross-
examined the petitioner on the issue of non-production of bills as well as cash
memo of the medicines. It is further necessary to refer the examination of PW-2
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and PW-3 by the Inquiry Officer and the same further reveals that on the
strength of the testimony of PW-2 and PW-3, the Inquiry Officer reduced his
report in writing and concluded that the charge against the petitioner was proved
beyond reasonable doubt.
The Inquiry Officer while arriving at the findings in inquiry report, has
concluded in operative paragraph that the present petitioner failed to produce
any bills or cash memo in respect of the medications and also failed to produce
other investigations report in order to demonstrate that he was indisposed
during the period of unauthorized absence. Thus, if the findings as arrived in
sub-para 2 of discussions on disputed issues are perused, it would reveal that
the question which was posed by Inquiry Officer i.e question No.2 was
ultimately made basis for submission of inquiry report against the present
petitioner.
Therefore, the examination of PW-2 and PW-3 on the basis of which, the
charge against the petitioner was also found to be proved by the Inquiry Officer
as well as cross-examination of the petitioner, this Court is of the considered
view that the Inquiry Officer could not have stepped into the shoes of
Presenting Officer. Thus, while taking into consideration the conduct of the
Inquiry Officer, this Court has no hesitation in drawing inference that the inquiry
proceedings stood vitiated on account of conduct of the Inquiry officer while
stepping into the shoes of Presenting Officer. Therefore, in the considered view
of this Court, the inquiry proceedings have been vitiated in the present case.
So far as the decisions which have been relied upon by the counsel for
the respondents, undoubtedly enunciate limited exercise of powers of judicial
review by this Court with the disciplinary proceedings, but since, in the present
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case, the inquiry has been vitiated on account of conduct of the Inquiry Officer
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which in the considered view of this Court is in direct conflict with the settled
principle of service jurisprudence, interference is warranted.
Ordinarily, this Court would have remitted back the matter to the
respondents to initiate the inquiry afresh, but taking into consideration the fact
that the allegations pertain to unauthorize absence in the year of 1999, the
remittal of the matter after a lapse of 23 years, in the considered view of this
Court is not appropriate and proper. Therefore, the impugned order dated
13.08.1999 (Annexure P/9) and order dated 31.12.1999 (Annexure P/11) are
quashed.
The respondents are directed to reinstate the petitioner in service within a
period of 90 days from the date of production of certified copy of the order
passed today. However, the petitioner shall not be entitled for any back wages.
Accordingly, the petition stands disposed of.
(MANINDER S. BHATTI)
JUDGE
sp
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