Lachchhan Ram Giri v. State Of Chhattisgarh And ORS.

NAFR HIGH COURT OF CHHATTISGARH, BILASPUR Writ Petition (S) No. 4539 of 2012 Lachchhan Ram Giri, aged 54 years, S/o late Shri S. R. Giri, Assistant Sub Inspector, at PS Bhatapara, District Baloda Bazar (CG) R/o village - Kosamsara, PS Kasdol, District Baloda Bazar (CG) ---- Petitioner

Versus

1. State of Chhattisgarh through its Secretary, Department of Home & Police, Mantralaya, D. K. S. Bhawan, Raipur (CG)

2. The Director General of Police, Chhattisgarh, H. Q. - P. H. Q. Raipur (CG)

3. The Inspector General of Police, Raipur Range, Raipur (CG)

4. The Senior Superintendent of Police, Raipur, District Raipur (CG)

5. The Superintendent of Police, District - Baloda Bazar (CG) ---- Respondents For Petitioner : Shri R. K. Kesharwani, Advocate For Respondent/State : Shri S. P. Kale, Dy. Advocate General Hon'ble Shri Justice P. Sam Koshy Order On Board 11.05.2018 The challenge in the present writ petition is to the order of punishment dated 13.07.2011 Annexure P-2 passed by the Inspector General of Police whereby the petitioner has been inflicted with the punishment of reversion from the post of Assistant Sub Inspector to the post of Head Constable for a period of one year with cumulative effect and also stoppage of one increment. The petitioner preferred a departmental appeal against the said order of punishment before the Director General of

Police which stood rejected vide order dated 13.09.2012 Annexure P-1 leading to the filing of the present writ petition. 2.

It is a case where the petitioner had been served with a charge sheet on 29.03.2010 Annexure P-6 wherein the allegation/charge against the petitioner was that of negligence in his duty. 3.

The petitioner in response to the charge sheet filed a detail reply. Thereafter the respondents appointed an Additional SP as the Enquiry Officer. No Presenting Officer was appointed to present the case on behalf of the prosecution. The Enquiry Officer himself acted as a Presenting Officer also as an Enquiry Officer and submitted his enquiry report based upon which the Disciplinary Authority vide Annexure-2 dated 13.07.2011 passed the order of punishment of reversion from the post of Assistant Sub Inspector to the post of Head Constable for a period of one year with cumulative effect and also stoppage of one increment. The petitioner immediately challenged the said order of punishment before the Appellate Authority and the appellate authority has rejected the appeal vide Annexure P-1 dated 13.09.2012 leading to the filing of the present writ petition. 4.

At the outset, counsel for the petitioner submits that the entire departmental enquiry and the proceedings stand vitiated on the ground of not appointment of Presenting Officer. The Enquiry Officer himself has acted as a prosecutor as well as a judge and submitted the enquiry report. In the absence of a Presenting Officer, the Enquiry Officer himself has discharged the functions of a Presenting Officer and simultaneously has also as an Enquiry Officer submitted the enquiry report. Thus, there is a great element of prejudice caused to the interest of the petitioner while the enquiry was being conducted. Counsel for the petitioner submits that in the

absence of a Presenting Officer, the enquiry report is not sustainable. He submits that it is by now settled position of law that the basic requirement in a departmental enquiry is that of appointment of an Enquiry Officer as well as a Presenting Officer. The role of an Enquiry Officer is that of a quasi judicial authority where he exercises quasi judicial powers. It is always expected that the Enquiry Officer should be impartial and independent and should give a report based upon the evidences which are led by the delinquent employee so also by the department through Presenting Officer.

He further submits that in the instant case, the Enquiry Officer himself on the one hand was presenting the case of the department and at the same time elaborately cross-examining the witnesses produced by the department and also has cross-examined the delinquent employee which shows that the Enquiry Officer could not have acted in an independent, impartial manner and therefore the chances of bias is writ large on the face of record. Counsel for the petitioner relied upon the judgment of the Supreme Court in the case of Moni Shankar Vs. Union of India and another reported in 2008 (3) SCC 484. 5.

So far as the merits of the case is concerned, counsel for the petitioner submits that the charge itself would reveal that there was no negligence as such committed by the petitioner. He submits that the enquiry also stands vitiated on account of non providing of the relevant documents which were relied upon by the authorities during the course of enquiry and in spite of specific request being made, the documents have not been supplied to the petitioner thereby the petitioner has not been able to effectively defend his case on merits. In respect of this contention counsel for the petitioner relied upon the judgment of the Supreme Court in

the case of State of Uttar Pradesh and others vs. Saroj Kumar Sinha reported in (2010) 2 SCC 772.

6.

State counsel, however, opposing the writ petition submits that a perusal of the records filed along with the writ petition i.e. enquiry proceedings would clearly reflect that the petitioner has been granted ample and sufficient opportunity by the Enquiry Officer in the enquiry proceeding. All the prosecution witnesses has been elaborately cross-examined and during the course of enquiry, the petitioner has never raised any objection in respect of the non appointment of the Presenting Officer. Thus, it is difficult to hold that the petitioner has been denied with the principles of natural justice and therefore, the plea taken by the petitioner not being sustainable the petition deserves to be rejected.

State counsel submits that perusal of the order of punishment as also the order passed by the appellate authority would clearly reveal that the petitioner has in fact committed misconduct in the course of registration of the FIR and has also shown undue favour to the complainant in the said case. He further submits that merely because the Presenting Officer has not been appointed that by itself would not prejudice the case of the petitioner in any manner as sufficient and ample opportunities have been provided by the Enquiry Officer to the petitioner in the course of departmental enquiry. Thus, the enquiry cannot be said to be bad in law in any manner and prayed for rejection of the writ petition.

In addition, state counsel also raised the issue of an alternative statutory remedy available to the petitioner and having not availed the same, the petition deserves to be rejected on the ground of availability of alternative remedy.

7.

Having heard the contentions put forth on either side and on perusal

of the record, dealing with the question of alternative remedy first, this Court is not inclined to entertain the said contention of the State Government at this juncture when the writ petition has already been entertained by this Court and it is more than 6 years that the petition is pending consideration before this Court. In addition the petitioner did avail the remedy of appeal to the appellate authority. Moreover, by efflux of time, the petitioner has also crossed the age of superannuation and it would not be worthwhile now to relegate the matter permitting the petitioner to prefer a revision. Considering the aforesaid factual matrix, the plea of alternative remedy raised by the State deserves to be and is accordingly rejected.

8.

Further perusal of the record would reveal that the petitioner during the course of enquiry had moved applications i.e. Annexures P-9 & P-10 seeking for documents from the Enquiry Officer which are being relied upon by the Department against the petitioner but the same has not been supplied to the petitioner. Therefore, prima facie, the petitioner has been denied the documents which has been relied upon by the authority concerned to punish the petitioner. At this juncture, it would be relevant to refer to the judgment of the Supreme Court in the case Govt. of A.P. and others vs. A. Venkata Raidu reported in (2007) 1 SCC 338 where in paragraph-9 it has been held as under:

"9. We respectfully agree with the view taken by the High Court. It is a settled principle of nature justice that if any material is sought to be used in an enquiry, then copies of that material should be supplied to the party against whom such enquiry is held. In Charge 1, what is mentioned is that the respondent violated the orders issued by the Government. However, no details of these orders have been mentioned in Charge 1. It is well settled that a charge-sheet should ;not be vague but should be specific. The authority should have mentioned the date of the GO which is said to have been

violated by the respondent, the number of that Go, etc. but that was not done. Copies of the said Gos or directions of the Government were not even placed before the enquiry officer. Hence, Charge 1 was not specific and hence no finding of guilt can be fixed on the basis of that charge. Moreover, as the High Court has found, the respondent only renewed the deposit already made by his predecessors. Hence, we are of the opinion that the respondent cannot be found guilty for the offence charged."

Similar view has been taken by the Supreme Court in the case of Saroj Kumar Sinha (supra) where in paragraph-34 it has been held as under:

"34. This Court in the case of Kashinath Dikshita vs. Union of India, (1986) 3 SCC page 229, had clearly stated the rationale for the rule requiring supply of copies of the documents, sought to be relied upon by the authorities to prove the charges levelled against a Government servant. In that case the enquiry proceedings had been challenged on the ground that non supply of the statements of the witnesses and copies of the documents had resulted in the breach of rules of natural justice. The appellant therein had requested for supply of the copies of the documents as well as the statements of the witnesses at a preliminary enquiry. The request made by the appellant was in terms turned down by the disciplinary authority." 9.

So far as the non-appointment of Presenting Officer is concerned, undisputedly the record shows that no Presenting Officer was in fact appointed. The law so far as non appointment of Presenting Officer is concerned, it would be relevant at this juncture to refer to the judgment of the Supreme Court in 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 paragraph-7 the Hon'ble Supreme Court dealing with the issue 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 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. Further, in paragraph-16, Their Lordships summarized 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 Officerin 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-inchief by leading the prosecution witnesses through the prosecution case, or puts leading questions to the departmental witnesses pregnant with answers, or crossexamines 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 Officerby 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 Officerdepends 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."

10.

A similar view has been taken by the Supreme Court in the case of

Moni Shankar (supra) where in paragraph-30 it has been held as under: "30. For the aforementioned purpose, the manner in which the enquiry proceeding was conducted was required to be taken into consideration by the High Court. The trap was not conducted in terms of the Manual; the Enquiry Officer acted as a prosecutor and not as an independent quasi-judicial authority; he did not comply with Rule 9 (21) of the Rules, evidently, therefore, it was not a case where the order of the Tribunal warranted interference at the hands of the High Court."

11.

The Supreme Court had again in a similar situation in the case of State of Uttaranchal and others v. Kharak Singh reported in (2008) 8 SCC 236 in paragraph-17 has held as under:

"17. On the other hand, one Mr. P.C. Lohani, Dy. Divisional Forest Officer, Nandhaur acting as an inquiry officer after putting certain questions and securing answers submitted a report on 16/11/1985. No witnesses were examined. Apparently, there was not even a presenting officer. A perusal of the report shows that the inquiry officer himself inspected the areas in the forest and after taking note of certain alleged deficiencies secured some answers from the delinquent by putting some questions. It is clear that the inquiry officer himself has acted as the investigator, prosecutor and judge. Such a procedure is opposed to principles of natural justice and has been frowned upon by this Court."

12.

The Hon'ble Supreme Court again in the case of State of Uttar Pradesh and others vs. Saroj Kumar Sinha reported in (2010) 2 SCC 772, in paragraphs- 27 to 30 has held as under: "27.......But nonetheless in order to establish the charges the Department is required to produce the necessary evidence before the inquiry officer. This is so as to avoid the charge that the inquiry officer has acted as a prosecutor as well as a judge.

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 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.

29. Apart from the above by virtue of Article 311 (2) of the Constitution of India the departmental inquiry had to be conducted in accordance with rules of natural justice. It is a basic requirement of rules of natural justice that an employee be given a reasonable opportunity of being heard in any proceeding which may culminate in punishment being imposed on the employee.

30. When a department 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 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."

13.

This High Court also had the occasion of dealing with the similar situations. This Court in WPS No. 1691/2011 decided on 13.01.2016 in the case of Vinod Kumar Kori v. State of Chhattisgarh & others considering the aforesaid judgments of the Supreme Court has held that non appointment of Presenting Officer and the enquiry being conducted entirely by Enquiry Officer himself and submitted an enquiry report had struck down the disciplinary action. This Court again in WPS No. 1019/2017

decided on 01.03.2017, WP No. 1828/2003 decided on 10.01.2018 and also WPS 6418/2007 decided on 06.04.2018 have reiterated the aforesaid position laid down by the Supreme Court wherein the enquiry proceeding and the action taken subsequently have been struck down on the ground of non appointment of Presenting Officer and the Enquiry Officer acting both as Presenting Officer as well as Enquiry Officer. 14.

Given the aforesaid legal position as it stands, the order of punishment as well as the order passed by the appellate authority i.e. Annexures P-2 & P-1 respectively would not be sustainable under law and the same deserve to be and are accordingly set aside/quashed. 15.

Since the order of punishment is being quashed on the ground of enquiry itself being vitiated, this court does not think it proper to go into the merits and veracity of the charges which has been raised by the petitioner. 16.

The writ petition accordingly stands allowed with consequences to follow.

Sd/- P. Sam Koshy Judge Bhola