Manipur High Court
Shri Lalit Kishore vs The Union Of India on 18 October, 2022
IN THE HIGH COURT OF MANIPUR
LHAINEI Digitally signed
by
CHONG LHAINEICHONG
HAOKIP AT IMPHAL
Date: 2022.10.18
HAOKIP 14:57:28 +05'30'
W.P.(C) No. 1061 of 2019
Shri Lalit Kishore, aged about 37 years, S/o Shri. Shree Krishna,
permanent resident of Ratanpaurwa, Post-Beniganj, District
Hardoi, U.P., temporary address at Yaishkul Chingakham Leirak,
C/o. A. Mohendro Singh, P.O. & P.S. Imphal, District Imphal West.
... Petitioner
-Versus -
1. The Union of India, through the Secretary, Home Affairs,
Ministry of Home, New Delhi., 110001.
2. The Director General of CRPF, Govt. of India, Lodhi Road,
Newl Delhi, 110003.
3. The Inspector General of Police, Manipur & Nagaland Sector,
CRPF, Imphal, Manipur, Langjing, 795113.
4. The Deputy Inspector General of Police, Rang Office, CRPF,
Imphal, Langjing. 795113.
5. The Commandant 165 Battalion, CRPF, Tangasoi, Salua, West
Midnipur, West Bengal, 721145.
........Respondents
B E F O R E
HON'BLEMR. JUSTICE AHANTHEMBIMOL SINGH
For the Petitioner : Mr.Th. Khagemba, Adv.
For the respondents : Mr. Boboy Potsangbam,
CGSC.
Date of Hearing : 06.09.2022.
Date of Judgment &Order : 18.10.2022.
Judgment & Order
[1] Heard Mr.Th. Khagemba, learned counsel appearing for the petitioner
and Mr. Boboy Potsangbam, learned CGSC appearing for the respondents.
WP(C) No. 1061 of 2019 Page 1
The present writ petition had been filed with a prayer for
quashing and setting aside the impugned orders dated 07.05.2011 passed by
the Commandant 165 Battalion, CRPF Tangasole, Salua, West Midnapur,
West Bengal terminating the service of the petitioner from the CRPF, order
dated 24.10.2011 passed by the Dy. Inspector General, CRPF, Imphal
Range, Manipur dismissing the appeal filed by the petitioner against his
termination order an order dated 24.10.2019 passed by the Inspector General
of Police (Manipur & Nagaland) Sector, CRPF, Imphal, Manipur, rejecting the
Revision Petitions filed by the petitioner.
[2] The petitioner was appointed as a G.D. Constable in the CRPF on
01.06.2004 and while he was posted at the 165 Battalion located at West
Bangal, he applied for granting earned leave for a period of 30 days. The
request for granting earned leave made by the petitioner was allowed by the
concerned authority by granting earned leave to the petitioner for a period of
30 days w.e.f. 12.10.2009 to 10.11.2009.While the petitioner was on leave, he
fell ill and was suffering from Jaundice (Hepatitis) and he was adviced to take
complete rest by the concerned Doctor from 10.11.2009 to 19.01.2010. Due
to his illness, the petitioner could not report for duty after expiry of the period
of his earned leave and the petitioner reported for joining duty only on
14.07.2010 after obtaining medical fitness certificate from the concerned
Doctor.
WP(C) No. 1061 of 2019 Page 2
[3] On account of his unauthorised absence from duty, a departmental
enquiry was initiated against the petitioner under Rule 27 of the CRPF Rules
1955 by issuing a Memorandum dated 27.08.2010 by the Commandant, 165
Battalion, CRPF, Tangasole, Salua, West Midnapur, enclosing therein Article
of charges, statement of misconduct or misbehaviour in support of the Article
charges framed against the petitioner, copy of the documentary evidence and
list of witnesses. Thereafter, after conducting an enquiry, the enquiry officer
submitted a report to the Commandant 165 Battalion, CRPF on 14.01.2011
thereby holding that the charges levelled against the petitioner were found
proved. Based on the report submitted by the enquiry officer, the disciplinary
authority issued the impugned order dated 07.05.2011 thereby awarding to
the petitioner the punishment of removal from service w.e.f 07.05.2011.
[4] Having been aggrieved, the petitioner preferred an appeal dated
01.07.2011 to the DIGP (Range) CRPF, Imphal to set aside the aforesaid
punishment order issued by the Commandant 165 Battalion CRPF, however,
the appellate authority did not find any ground for interfering with the order
passed by the Commandant and dismissed the said appeal by issuing an
order dated 24.10.2011. The petitioner again submitted two Revision Petitions
dated 03.07.2019 and 03.08.2019 to the IGP, Manipur & Nagaland Sector,
CRPF, to set aside the order of his removal from service and to reinstate him
into the service. The said Revision Petitions were also rejected by the IGP as
being devoid of merit by issuing the order dated 24.10.2019. Having been
WP(C) No. 1061 of 2019 Page 3
aggrieved, the petitioner approached this Court by filing the present writ
petition for redressing his grievances.
[5] The learned counsel for the petitioner raised only one ground in
assailing the impugned orders. It has been submitted by Mr. Th. Khagemba,
learned counsel appearing for the petitioner that the departmental enquiry
against the petitioner was conducted without appointing a presenting officer
and the enquiry officer himself acted as a presenting officer and conducted
the examination in Chief of the prosecution witnesses and led them through
the facts so as to present the case of the disciplinary authority against the
petitioner and that the enquiry officer acted as a Judge and Prosecutor in the
said enquiry. It has also been vehemently submitted by the learned counsel
for the petitioner that such act of the enquiry officer has greatly prejudiced the
petitioner's rights to a fair enquiry and that a reasonable opportunity of being
heard has also been deprived of. The learned counsel further submitted that
non appointment of presenting officer vitiates the whole departmental enquiry
and accordingly, the impugned orders are unsustainable in the eye of law and
are liable to be quashed and set aside and the respondents be directed to
reinstate the petitioner in service and to hold a fresh enquiry by appointing a
presenting officer and by following the principles of natural justice and to
complete the said enquiry within a stipulated period.
[6] The learned counsel for the petitioner submitted that even if there is no
provisions under the CRPF Rules 1955 for appointing a presenting officer to
WP(C) No. 1061 of 2019 Page 4
conduct the departmental enquiry on behalf of the disciplinary authority, the
conduct and action of the enquiry officer in the departmental enquiry against
the petitioner by assuming the role of a Judge and Prosecutor greatly
prejudiced the rights of the petitioner to have a fair trial and accordingly,
vitiates the departmental enquiry held against the petitioner.
In support of his contentions, the learned counsel relied on the
following judgments:
(i) "Union of India Vs. Ram Lakhan Sharma" reported in
(2018) 7 SCC670:-
"18. In Civil Appeal No. 2608 of 2012(leading appeal) judgment of
learned Single Judge allowing the writ petition is dated 12.04.2010 which
is filed at Annexure P-7 to the appeal. After elaborately considering the
facts of the case, the nature of charges and affidavit filed in the writ
petition, the learned Judge proceeded to decide the writ petition. The
learned Single Judge had directed to make available the proceedings of
the disciplinary inquiry and on perusal of the proceedings of the
disciplinary inquiry the learned Single Judge came to the conclusion that
no Presenting Officer was appointed in the said proceedings and the
Enquiry Officer himself led the examination in chief of the prosecution
witness by putting questions. The High Court further came to the
conclusion that the Enquiry Officer acted himself as prosecutor and Judge
in the said disciplinary enquiry.
"19.It is useful to extract paragraphs 9 and 10 of the judgment
which are to the following effect:
"(9) This Court directed the learned Asstt. S.G. appearing for
the respondents to make available the proceedings of the
disciplinary enquiry against the petitioner. On perusal of the
proceeding, it is crystal clear that no Presenting Officer was
appointed in the said proceedings and the Enquiry Officer himself
led the examination in chief of the prosecution witness by putting
questions. This fact is not disputed by the learned Asstt. S.G.
appearing for the respondents, but his only submission is that all
opportunities were given to the writ petitioner to put up his defence
case and also the writ petitioner had pleaded guilty for both the
charges levelled against him.
WP(C) No. 1061 of 2019 Page 5
(10) It is, therefore, crystal clear that the Enquiry Officer
acted himself as Prosecutor and Judge in the said disciplinary
enquiry against the writ petitioner. From this admitted fact, it may
not be wrong to infer that there were no fair procedures in the
disciplinary proceedings as a result of which principle of natural
justice were undisputedly denied to the writ petitioner."
"26.A Constitution Bench of this Court has elaborately considered
and explained the principles of natural justice in A.K. Kraipak and others
vs. Union of India. This Court held that the aim of the rules of natural
justice is to secure justice or to put it negatively to prevent miscarriage of
justice. The concept of natural justice has undergone a great deal of
change in recent years. Initially recognised as consisting of two principles
that is no one shall be a judge in his own cause and no decision shall be
given against a party without affording him a reasonable hearing, various
other facets have been recognised. In paragraph 20 following has been
held: (SCCP.272)
"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 debetes sejudex 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...."
"27. In State of Uttar Pradesh and others vs. Saroj Kumar Sinha,
this Court had laid down that inquiry officer is a quasi-judicial authority, he
has to act as independent adjudicator and he is not a representative of the
department/disciplinary authority/Government. In paragraphs 28 and 30
following has been held: (SCC p. 782)
"28. An inquiry officer acting in a quasi-judicial authority is
in the position of an independent adjudicator. He is not supposed
to be a representative of the department/disciplinary authority/
Government. His function is to examine the evidence presented by
the Department, even in the absence of the delinquent official to
see as to whether the unrebutted evidence is sufficient to hold that
the charges are proved. In the present case the aforesaid
procedure has not been observed. Since no oral evidence has
been examined, the documents have not been proved, and could
not have been taken into consideration to conclude that the
charges have been proved against the respondents.
WP(C) No. 1061 of 2019 Page 6
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 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."
"28. When the statutory rule does not contemplate appointment of
Presenting Officer whether non-appointment of Presenting Officer ipso
facto vitiates the inquiry? We have noticed the statutory provision of Rule
27 which does not indicate that there is any statutory requirement of
appointment of Presenting Officer in the disciplinary inquiry. It is thus clear
that statutory provision does not mandate appointment of Presenting
Officer. When the statutory provision does not require appointment of
Presenting Officer whether there can be any circumstances where
principles of natural justice can be held to be violated is the broad
question which needs to be answered in this case. We have noticed
above that the High Court found breach of principles of natural justice in
Inquiry Officer acting as the prosecutor against the respondents. The
Inquiry Officer who has to be independent and not representative of the
disciplinary authority if starts acting in any other capacity and proceed to
act in a manner as if he is interested in eliciting evidence to punish an
employee, the principle of bias comes into place.
"36. Thus, the question as to whether Inquiry Officer who is
supposed to act independently in an inquiry has acted as prosecutor or
not is a question of fact which has to be decided on the facts and
proceedings of particular case. In the present case we have noticed that
the High Court had summoned the entire inquiry proceedings and after
perusing the proceedings the High Court came to the conclusion that
Inquiry Officer himself led the examination in chief of the prosecution
witness by putting questions. The High Court further held that the Inquiry
Officer acted himself as prosecutor and Judge in the said disciplinary
enquiry. The above conclusion of the High Court has already been noticed
from paragraphs 9 and 10 of the judgment of the High Court giving rise to
Civil Appeal No.2608 of 2012.
"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 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.
WP(C) No. 1061 of 2019 Page 7
(ii) Judgment and order dated 09.07.2009 passed by a
Division Bench of the Hon'ble Gauhati High Court, Imphal Bench in Writ
Appeal No. 59 of 2008 :-
"[9] In the present case, there is no dispute that no presenting
officer was also appointed. This fact is confirmed from the relevant
records of the disciplinary proceeding produced by the learned Govt.
Advocate. It is well settled that an Enquiry Officer, while sitting as a
Judge, cannot be also sitting as a prosecutor to examine the witnesses by
himself. The Enquiry Officer cannot assume the role of a Judge and also
the prosecutor. Even if the relevant service rules is silent about the
appointment of a presenting officer, absence of a presenting officer will
make the enquiry totally vitiated as the Enquiry Officer cannot be allowed
to assume the role of a Judge as well as a prosecutor. In this connection,
one may refer to various decisions of this court such as Dr. Rajya Mallu
Buzar Barua vs. State of Assam Administrative Tribunal &ors, 1983 (1)
GLR (NOC) 71; Chelfrumog vs. State of Tripura &ors., 2002(2) GLR 604;
Vaharulisham (CT) vs. Union of India &ors. 2001(1) GLT 621 and State of
Manipur &ors. Vs. Chongtham Homendro Singh, 2005(3) GLT 154. The
Hon'ble Apex Court also in Kumuan Mandal Vikas Nigam Ltd. vs. Girija
Shankar Pant &ors. (2001) 1 SCC 182 held to the same effect."
(iii) Judgment and order dated 01.02.2019 passed by a
Division Bench of the Hon'ble Gauhati High Court in Writ Appeal No. 305 of
2017 :-.
"(2) The question that arose for consideration before the
learned Single Judge, among others, was with regard to the enquiry being
vitiated for want of appointment of a Presenting Officer in the enquiry
proceedings. The contention in that regard was with regard to Rule 27 of
the CRPF Rules, 1955 which lays down the procedure for conducting
disciplinary proceedings.
"(3) The appellants herein have contended that the said Rule
does not contemplate appointment of a Presenting Officer and therefore,
the enquiry is not vitiated if the Presenting Officer is not appointed. The
learned Single Judge was, however, of the opinion that non-appointment
of the Presenting Officer would vitiate the proceedings and it is in that
view, the learned Single was of the opinion that the order dated 31.5.2004
passed pursuant to such defective enquiry could not be sustained and
also the dismissal of the appeal by the appellate authority through the
order dated 21.8.2013 is not sustainable.
"(4) The instant appeal is filed claiming to be aggrieved by
such order passed by the learned Single Judge. The contention in the
WP(C) No. 1061 of 2019 Page 8
instant appeal is also with regard to the very same issue wherein the
appellants contend that non-appointment of the Presenting Officer is not
contrary to the procedure laid down under Rule 27 of the CRPF Rules,
1955 and therefore, it is contended that the learned Single Judge was not
justified.
"(5) Though such contention is urged in the instant appeal, the
position at present is that the very issue was pending before the Hon'ble
Supreme Court where the appellants herein being the appellant in the
said proceedings had raised the very contention relating to the provisions
as contained in Rule 27 of the CRPF Rules, 1955. The Hon'ble Supreme
Court while deciding the issue in case of Union of India Vs. Ram Lakhan
Sharma, reported in (2018) 7 SCC 670, has clarified that non-
appointment of the Presenting Officer would vitiate the enquiry
proceedings and therefore, consequential order passed by the
disciplinary authority would not be sustainable.
"(6) If that be the position, when the position of law has been
settled by the Hon'ble Supreme Court, the same would also apply to the
present facts as well. If that be the position, we see no error committed by
the learned Single Judge so as to call for interference in this appeal.
Accordingly, the instant appeal being devoid of merit, stands disposed of.
[7] Mr. Boboy Potsangbam, learned CGSC appearing for the respondents
submitted that the departmental enquiry was conducted as per Rules and laid
down procedures and that during the course of enquiry, the petitioner pleaded
guilty to the charge framed against him. It has also been submitted that the
petitioner was given all opportunities to defend his case by the enquiry officer
at every stage of the enquiry proceeding and accordingly, there is no question
of violation of principle of natural justice and no prejudice had been caused to
the petitioner during the whole departmental enquiry and that the charge
framed against the petitioner had been proved in the enquiry proceedings and
on the basis of the enquiry report, the petitioner was awarded the punishment
of removal from service.
WP(C) No. 1061 of 2019 Page 9
So far as the non appointment of a presenting officer is
concerned, the respondents have not denied the fact that no presenting
officer was appointed in the said departmental enquiry. Mr. Boboy
Potsangbam, the learned CGSC placed before this Court a Circular Order No.
07/2018 dated 23.05.2018 issued by the Director General of CRPF containing
orders with regard to appointment of presenting officer and defence
assistance in the departmental enquiries against the members of the force
under CRPF Act, 1949 and CRPF Rules 1955 which, inter-alia, provides as
under:-
"(IV) At the time of appointment of the E.O., the Disciplinary
Authority shall also issue an order appointing any member
of the Force below the rank of Assistant Commandant,
posted in the same Unit/Establishment, as Presenting
Officer (P.O.) to present the case on behalf of the
Disciplinary Authority in support of the Article(s) of charge
in the Departmental Enquiry with information to the Enquiry
Officer.
After the evidence on behalf of prosecution and defence is
completed, the E.O. shall hear the P.O. or permit him/her to submit
written brief within a period not exceeding ten days. E.O. will thereafter
forward copy of the same to the C.O. for submitting his defence brief, if
any, within a period not exceeding ten days."
[8] Mr. Boboy Potsangbam, learned CGSC also submitted that if in case
the impugned orders are to be quashed on the technical ground of non
appointment of a presenting officer, the respondent may be given liberty to
hold a fresh departmental enquiry against the petitioner on the charges
levelled against him.
[9] I have heard the rival submissions of the learned counsel appearing for
the parties at length and I have also carefully perused and examined the
WP(C) No. 1061 of 2019 Page 10
record of the present case. In the present case, it is an undisputed fact that no
presenting officer was appointed to conduct the said departmental enquiry on
behalf of the disciplinary authority despite the fact that there is a Circular
Order dated 23.05.2018 for appointing a presenting officer to present the case
on behalf of the Disciplinary Authority in the Departmental Enquiry held under
the CRPF Act and Rules and that the enquiry officer himself conducted the
said departmental enquiry on behalf of the disciplinary authority and assumed
the role of a Judge and Prosecutor. In my considered view, such conduct and
act of the enquiry officer greatly prejudiced the petitioner's valuable rights to
have a fair trial and it also violates the well established principle of natural
justice. In such circumstances, non-appointment of the presenting officer
would vitiates the entire departmental enquiry against the petitioner. In my
considered view, the issue raised in the present case is squarely covered by
the principle of law laid down by the Hon'ble Apex Court and High Court in its
judgment relied on by the counsel for the petitioner and quoted hereinabove.
[10] In the result, the impugned removal order dated 07.05.2011, the
impugned appellate order dated 24.10.2011 and the impugned Revision order
dated 24.11.2019 are hereby quashed and set aside.
It is, however, made clear that as the impugned orders have
been quashed and set aside only on the technical ground of non appointment
of a presenting officer, the respondents are at liberty to initiate a fresh enquiry
against the writ petitioner in respect of the same charges if they so wishes to
WP(C) No. 1061 of 2019 Page 11
do so. In the event of initiating such an enquiry, the respondents should
conduct the said departmental enquiry fairly and in compliance with the
principles of natural justice and conclude the same within a reasonable time
which should not be more than four months from today. It is also made clear
that if in case a fresh departmental enquiry is held against the petitioner, he
shall be treated as under suspension and that if no such enquiry is initiated
within the period prescribed, the petitioner is to be reinstated to his service
with all the consequential benefits.
[11] With the above directions, the present petition is allowed.
Parties are to bear their own costs.
JUDGE
FR/NFR
Lhaineichong
WP(C) No. 1061 of 2019 Page 12
