High Court
Case Details
WP(C) 7013/2004 BEFORE HON’BLE MR. JUSTICE UJJAL BHUYAN J U D G M E N T AND O R D E R (ORAL) This writ petition has been filed by the petitioner for quashing of order dated 29-01-2001 passed by Commandant, 8th Assam Police Battalion, Abhayapuri in the d istrict of Bongaigaon imposing the penalty of stoppage of three increments in th e pay scale of Constable with cumulative effect as punishment for gross-miscondu ct and indisciplined behaviour with a warning to be careful in future. Case of the petitioner is that at the relevant point of time he 2. was serving as Constable in the Assam Police and was posted at 8th Assam Police Battalion, Abhayapuri. He was served with a show-cause notice dated 14-11-2000 i ssued by his disciplinary authority i.e. the Commandant of the Battalion to show -cause u/s 7 of the Police Act, 1861 read with Rule 66 of the Assam Police Manua l Part-III and Article 311 of the Constitution of India as to why any of the pen alties prescribed therein should not be inflicted on him for the charge brought against him. The allegation against the petitioner was that while he was detaile d for duty at Gossaigaon Railway Station for railway security duty on 09-11-2000 , during evening roll-call, he quarrelled with the platoon commander and gave hi m blows because of which the platoon commander sustained injuries requiring medi cal treatment. Petitioner was, therefore, charged with gross-misconduct and indi sciplined behaviour. The show-cause notice was accompanied by statement of alleg ation, list of witnesses and list of documents to prove the charge. 3. Though petitioner submitted his show-cause reply denying the all egation, the disciplinary authority decided to draw-up departmental proceeding a gainst the petitioner. By order dated 30-11-2000, Shri A.K. Modak, 21/C 8th Assa m Police Battalion was appointed as the Enquiry Officer. 4. The Enquiry Officer thereafter conducted the enquiry and after c onclusion of the same, submitted his report to the disciplinary authority holdin g that the charge against the petitioner stood proved beyond any doubt. 5. The disciplinary authority by his forwarding letter dated 03-01- 2001 furnished a copy of the enquiry report to the petitioner with the observati on that he agreed with the views of the Enquiry Officer and that he was of the t entative view that petitioner should be dismissed from service. 6. Petitioner submitted his representation taking the plea that the platoon commander was the aggressor and that he had acted only in self defence. Enquiry Officer did not examine this aspect of the matter. He, therefore, praye d for dropping of the proceeding. 7. Thereafter, the disciplinary authority passed the impugned order dated 29-01-2001 imposing the punishment as indicated above. 8. Aggrieved, petitioner has filed the present writ petition. 9. ion and had called for the record of the case. This Court by order dated 21-09-2004 had admitted the writ petit Respondent No.4 i.e. the disciplinary authority has filed affida 10. vit. Stand taken in the said affidavit is that during enquiry in connection with the departmental proceeding drawn up against the petitioner, the charge of gros s-misconduct and indisciplined behaviour on the part of the petitioner was prove d beyond any doubt. Petitioner was granted reasonable opportunity to defend hims elf in the enquiry by the Enquiry Officer as well as by the disciplinary authori ty. During the enquiry, petitioner was informed and briefed about the charge and
Legal Reasoning
he cross examined some of the prosecution witnesses. Punishment was imposed aft er due consideration of all relevant aspects and following the laid down procedu re. There is no infirmity in the departmental proceeding as well as in the punis hment imposed. 11.
Legal Reasoning
Heard Mr. M.H. Ahmed, learned Counsel for the petitioner and Mr. J. Handique, learned Government Advocate, Assam. 12. Learned Counsel for the petitioner has argued that the Enquiry O fficer as well as the disciplinary authority failed to consider that it was the platoon commander who was the aggressor and that the petitioner had only acted i n self defence. Failure to consider this aspect of the matter has vitiated the e nquiry and the consequential punishment. He has also argued that the punishment of stoppage of three increments in the pay scale of Constable with cumulative ef fect is beyond the punishment prescribed in the Police Manual. Disciplinary auth ority cannot go beyond the punishment imposed. In support of his submission, Mr. Ahmed, learned Counsel for the petitioner has placed reliance on the decisions of the Apex Court in Hukam Chand Shyam Lal -Vs- Union of India and others report ed in AIR 1976 SC 789 and Haresh Dayaram Thakur -Vs- State of Maharashtra and ot hers reported in (2000) 6 SCC 179. On the other hand, learned Government Advocat e has justified the imposition of penalty and has also produced the relevant rec ord of enquiry. He submits that there was no procedural impropriety in the depar tmental proceeding to warrant any interference by the Court. The punishment impo sed cannot also be said to be disproportionate to the gravity of the offence or shocking to the judicial conscience. Petitioner is a member of a disciplined for ce and he is required to maintain the highest standard of discipline. He, theref ore, prays for dismissal of the writ petition. 13. been perused. Submissions made have been considered. Record produced has also 14. Assam Police Manual Volume-I Part-III deals with punishments, pr ocedure to be followed in awarding punishments and filing of appeal against orde r of punishment. Rule 66 provides for proceedings to be drawn up in case of majo r punishment. Withholding of increment or promotion is a major penalty. As per t he procedure prescribed, no order of major punishment shall be passed unless the delinquent has been informed in writing of the grounds on which it is proposed to take action and has been afforded an adequate opportunity to defend himself. The grounds shall be reduced to the form of definite charge or charges based on the statement of allegation. The delinquent shall be given reasonable time to su bmit written statement of defence and to hear him in person, if he so desires. H e will have the right to cross-examine the witnesses as well as to produce witne sses in his defence, including to give evidence by himself. The proceedings shal l contain a sufficient record of the evidence and statement of the findings and the grounds thereof. As already noticed above, withholding of increment or incre ments is a major penalty. As per Rule 68, there is a provision for appeal.
Decision
15. Though there is provision for appeal against an order imposing m ajor penalty, petitioner did not prefer such appeal. However, on this ground, Co urt would not like to non-suit the petitioner as a more fundamental and importan t issue has cropped up in this proceeding which the Court would like to examine. Moreover, the writ petition was admitted for hearing way back on 21-09-2004 and , therefore, at this stage after rule having been issued, it would neither be fa ir nor justified to decline adjudication on this ground. 16. The charge against the petitioner has already been noticed above . Petitioner was given opportunity to show-cause and he submitted his show-cause reply, which was, however, not found satisfactory. In the enquiry, six prosecut ion witnesses were examined. Some of them were cross-examined by the petitioner. From the defence side two witnesses gave evidence. Statement of the petitioner was also recorded. After conclusion of the enquiry, Enquiry Officer submitted hi s report. The findings and conclusion of the Enquiry Officer are as under:- (cid:28) Findings:- On careful analysis of the evidence both oral and documentary accum ulated during the enquiry following facts now reveal:- (1) Raising of complain on the roll-call on 09-11-2000 for non-availability of w ater in the engine/coach by the delinquent was very genuine. (2) Communicating the problem of water by the P.C. A.B.S.I. Gangadhar Borah to t he higher authority or to the Station Master was also a fact. (3) The delinquent started altercation with the P.C. A.B.S.I. Gangadhar Borah on the problem of water and hit the P.C. first (P/W-5). (4) During the altercation the P.C. A.B.S.I. Gangadhar Borah caught hold on the chest of the delinquent first who was about to fall on the ground (D/W-1 & 2). (5) After return of the delinquent to the camp on the next i.e. on 10-11-2000 so me bandage was found at the finger of his foot (P/W-6). (6) Cause of injury sustained by the P.C. on his eye was due to the blow given b y the delinquent as stated by the P.Ws-5 & 6 while the cause of injury sustained by the delinquent on the finger of his foot was not known by any of the P/Ws & D/Ws. (7) Whatever might have been the provocation, the delinquent could have exercise d his self control instead of hitting the P.C. on his eye and could have reporte d the matter of provocation to his other superior officers if so warranted. (8) The situation did not lead to endanger the life of the delinquent for which he exercised the so called right of private defence by hitting the P.C. Conclusion:- In summing up the above it now transpires that the charge leveled a gainst the delinquent Const. 338 Nandeswar Borah for gross misconduct and indisc iplined behaviour has been proved beyond any doubt. (cid:29) 17. arent. No Presenting Officer was appointed in the enquiry. I have perused the record. From the record one thing becomes app 18. Question for consideration is what would be the effect of non-ap pointment of Presenting Officer on the enquiry and consequently on the departmen tal proceeding. 19. Though this issue was not argued by the learned Counsel for the petitioner, Court is of the view that this issue is of crucial importance having a definite bearing on the departmental proceeding itself. Moreover, this aspect has come out glaringly from the record and cannot be wished away. Further, the petitioner in his representation on the enquiry report dated 14-01-2001 had clea rly taken this ground in paragraph 9 that the enquiry was conducted by the Enqui ry Officer without the help of any Presenting Officer and the same has vitiated the enquiry. The disciplinary authority in his impugned order dated 29-01-2001, however, did not address this aspect of the matter. Rule 66 of Assam Police Manual Volume-I Part-III, which lays dow 20. n the procedure for imposition of major penalty, is silent about appointment of Presenting Officer. A departmental enquiry is a quasi-judicial proceeding. Principle 21. s of natural justice, which includes a fair procedure, is inbuilt in such a proc eeding. The Enquiry Officer has to discharge his function in a quasi-judicial ma nner. He has to act fairly and impartially. The role of the Presenting Officer i s to present the case of the disciplinary authority before the Enquiry Officer. He is the representative of the disciplinary authority. He has to assist the Enq uiry Officer by presenting before him the case of the disciplinary authority. Hi s duty is to marshal the facts and examine and cross-examine the witnesses produ ced during the enquiry. It is he who has to produce and prove the listed documen ts during the enquiry and lead the oral evidence in support of the charge. There fore, in the absence of the Presenting Officer, it is the Enquiry Officer who wi ll have to produce the documents and present the witnesses. In such a case, he w ill assume the role of the judge as well as that of the prosecutor, which will b e a total negation of the avowed principles of natural justice and fair procedur e. Absence of the Presenting Officer will certainly not be a fair procedure. 22. Rule 27 of the CRPF Rules, 1955, which deals with departmental p roceeding in respect of CRPF personnel, also does not provide for appointment of Presenting Officer. 23. Examining Rule 27 of the CRPF Rules, this Court in the case of M utum Shantikumar Singh -Vs- Union of India and others reported in 2005 (1) GLT 4 13 held that Rule 27 does not bar the competent authority from appointing a Pres enting Officer in the disciplinary proceeding for conducting the same in a fair manner in accordance with the principles of natural justice. After referring to various judicial pronouncements, it was held that in a departmental proceeding w here no Presenting Officer is appointed, the Enquiry Officer assumes the role of the judge as well as prosecution in as much as in the absence of the Presenting Officer, the Enquiry Officer must examine the witnesses and exhibit the documen ts, which will be in total violation of the principles of natural justice. It wa s finally held that appointment of Presenting Officer is a must in a disciplinar y proceeding against a CRPF Constable. In that case, because of non-appointment of Presenting Officer, the disciplinary proceeding against the petitioner, who w as a Constable in the CRPF, leading to his dismissal, was declared as illegal an d quashed. He was directed to be reinstated in service. 24. In Union of India and others -Vs- Ram Lakhan Sharma reported in 2011 (3) GLT 281, the issue before the Court was removal from service of a CRPF Constable following a disciplinary proceeding, which was affirmed in appeal and revision. A Division Bench of this Court held that even when the statute does no t prescribe for appointment of a Presenting Officer in a disciplinary proceeding , then also same is required to be made to comply with the principles of natural justice. In the facts of that case, it was held that the Enquiry Officer in the absence of the Presenting Officer had put all the questions to the delinquent. Thus, the Enquiry Officer acted beyond his jurisdiction. If an authority acts be yond his jurisdiction and submits his report, the disciplinary authority should not act on such report. The Court held as under :- (cid:28)(18) We are of the further opinion that in various disciplinary proceedings the statutory authority is working like an administrative authority when they have to act independently and discharge their duty as the statute prescribed applying their judicial mind. It is a settled position of law that the disciplinary proc eeding is a quasi-judicial proceeding and the Inquiry Officer while acting in a disciplinary proceeding is to act like a judicial authority. We are of the furth er opinion that the Inquiry Officer should not act either for the Disciplinary A uthority or for the delinquent officer. He is to act independently to take the i nference of facts which is placed before him by the parties. He should not put q uestions like a Presenting Officer to the delinquent officer to prove the charge s levelled against the delinquent officer. From such action of the inquiring off icer it can be easily said that the inquiring officer is to the extent biased to the delinquent officer, which is unwarranted in law. If the statutory authority acted beyond the power vested on him then where the delinquent officer will go except to the Court of law, which course really has been taken by the respondent -writ petitioner to prove the biasness of the inquiring officer in the writ peti tion and ultimately succeeded. (cid:29) In W. Birbal Singh -Vs- State of Manipur and others reported in 25. 2010 (5) GLT 371, a Division Bench of this Court held as under:- (cid:28)(15). This Court in the above cases held that the enquiry officer has assumed t he role of the Judge as well as the prosecutor, inasmuch as, in absence of the p resenting officer, the enquiry officer himself examined the witnesses and exhibi ted documents and it would be violative of the rules and the fundamental princip les of natural justice. Admittedly, in the disciplinary proceeding against the a ppellant-writ petitioner for the said 2 articles of charges no presenting office r was appointed and the enquiry officer himself assumed the role of Judge as wel l as prosecution. Accordingly, we are of the considered view, that the disciplin ary proceeding against the appellant-writ petitioner is liable to be quashed onl y on this score. (cid:29) That was a case of dismissal from service of a police constable following a disc iplinary proceeding where no Presenting Officer was appointed. 26. Thus, following the above decisions, I am also of the considered view that failure to appoint a Presenting Officer had fundamentally affected th e disciplinary proceeding drawn up against the petitioner and going by the findi ng recorded by the Enquiry Officer, petitioner was clearly prejudiced by such om ission. The same has vitiated the enquiry and the consequential punishment impos ed. 27. de and quashed. In view of the above, impugned order dated 29-01-2001 is set asi 28. 29. Writ petition is accordingly allowed. However, there shall be no order as to cost.