High Court · 2012

olice Station and Sub-Inspector Shri Pranab Buragohain. The reply to the said show cause notice, not been found to be sa 4. tisfactory, Mr. Imran Hussain Bora, the then Additional Superintendent of Police , Dibrugarh, was appointed as the Enquiry Officer for holding an enquiry, on the charges, brought against the appellant. The appellant also participated in the said enquiry and raised certain grievances with regard to the manner in which th e enquiry was conducted. At the close of the enquiry, the report was submitted b y the Enquiry Officer holding that both the charges were proved. Accordingly, the appellant was furnished with a copy of the enquiry report askin g him to show cause as to why the same should not be accepted. On consideration of the reply, submitted by the appellant on 6/7/1999, the Superintendent of Poli ce, Dibrugarh, by his order dated 19/12/1999 imposed penalty of dismissal from s ervice. 5. Aggrieved by the said penalty of dismissal, the appellant prefer red an appeal before the Appellate Authority and the Appellate Authority, by an order dated 12/11/2002, dismissed the appeal. 6. Dissatisfied with the said order of the Appellant Authority, the appellant, as the writ appellant, filed the writ petition aforesaid, contending , therein, that the appellant was not allowed to cross-examine the witnesses exa mined in support of the charges, that he was not allowed to lead defence evidenc e, that no Presenting Officer was appointed to present the case against the appe llant, that the appellant was not allowed to avail the services of a defence ass istant, that additional witnesses, whose names did not appear in the list, were examined in support of the charges. 7. The respondents contested the said claim, made by the appellant, by filing an affidavit in opposition contending, therein, that all necessary op portunities to cross-examine the witnesses, examined in support of the charges, were afforded to the appellant. 8. Having heard the learned counsel, appearing for both the parties and perusing the original records, more particularly the statements of the witn esses examined, the learned Single Judge found that all the witnesses, examined in support of the charges, were offered for cross-examination by the appellant, but the appellant declined to cross examine the witnesses. Perusing the order sh eet maintained by the Enquiry Officer, the learned Single Judge found that all t he witnesses were examined in presence of the appellant and the appellant was gr anted opportunity to adduce defence evidence, which opportunity was not availed by the appellant. Both the parties submitted additional affidavit, in support of t heir counter claims. As observed by the learned Single Judge, the respondents, i n their additional affidavit, averred that in respect of the same incident separ ate departmental proceedings were drawn up against other persons, involved and a ll the proceedings were conducted simultaneously by the same Enquiry Officer. It was also found by the learned Single Judge that the Enquiry Officer recorded the statement of the witnesses at one time with adequate copies of such statemen ts and placed copies of such statements in the records of the individual departm ental proceedings against each delinquent officer, after obtaining their respect ive signatures on such copies. 9. The petitioner, in his additional affidavit, alleged that the wi tnesses were examined by the Enquiry Officer asking the delinquent officers to w ait outside the office and after recording the statements of the witnesses, the delinquent officers were called one by one and, thereafter, they were asked to s ign on papers, which were at times in original and at times copies of the origin als. It has also been alleged, in the said additional affidavit, that signatures were taken some times on blank papers and some times signatures were obtained, while the appellant was in Police Reserve. 10. Having heard the learned counsel, appearing for both the parties and considering the materials on record, the learned Single Judge, relying on t he decision of the Supreme Court held in the case of State Bank of Patiala and o thers versus S.K. Sharma, reported in (1996) 3 SCC 364, came to the findings tha t no prejudice was caused to the appellant in the said departmental proceeding. The learned Single Judge also held that the contention of the appellant, that th e enquiry got vitiated on account of failure of the disciplinary authority to ap point a Presenting Officer cannot be accepted. In view of the said decision of t he Apex Court, the learned Single Judge also held that the ground urged, with re gard to examination of witnesses as well as alleged denial of the services of De fence Assistance, to the appellant, cannot be accepted. With regard to the alleg ation of not allowing to cross-examine the witnesses and lead defence evidence, the learned Single Judge found that the said allegations stood belied by the rec ord of the enquiry proceeding i.e. order sheet maintained by the enquiry officer . Considering the entire aspect of the matter, the learned Single Judge held tha t there was no merit in the writ petition. Accordingly, the writ petition was di smissed without cost. 11. Aggrieved by the said judgment and order, the writ appellant, as appellant, has come up with the present appeal. It is the contention of the appellant that the learned Single Judge failed to ap preciate that, in view of Rule 9 (5) of the Rules, the appointment of a Presenti ng Officer is a mandatory requirement and that the Government servant is entitle d to get the assistance of any other Government servant and that failure to comp ly with the said provision has caused prejudice to the delinquent officer and as such the impugned judgment and order is liable to be interfered with. It has al so been contended, by the appellant, that the learned Single Judge failed to con sider and appreciate that the witnesses were examined keeping the delinquent off icer outside the office of the Enquiry Officer and that they were called in to p ut their signatures on the papers, which were either in original or duplicate co py and that some times their signatures were taken on blank papers. The further contention of the delinquent officer was that the learned Single Jud ge failed to appreciate and consider that the delinquent officer was not allowed to cross-examine the witnesses and thus the principles of natural justice was v iolated. In view of the above, the appellant has prayed for setting aside the im pugned judgment and order aforesaid as well as the orders dated 19/9/1999 and 17 /11/2001, issued by respondent Nos. 3 and 5 and to pass order for reinstating th e appellant with all service benefits, including back wages etc. 12. We have heard Mr. P.J. Saikia, learned counsel appearing for the appellant and Mr. A. Gogoi, learned Government Advocate. The learned counsel, for the appellant, taking us through the re cord has submitted that the learned Single Judge committed error by failing to a ppreciate that no specific charge was framed against the appellant, that the app ellant was not given opportunity to cross-examine the witnesses and adduce defen ce evidence, that no Presenting Officer as well as Defence Assistance were appoi nted and that the witnesses were examined keeping the appellant outside the offi ce of the Enquiry Officer and thereafter his signature was taken, some times in original or some times in duplicate copies. The learned counsel has argued that the said procedural error and non-compliance of the mandatory provision of Rule 9(5), which required appointment of a Presenting Officer, amounted to violation of the mandatory procedure and that the said lapse caused much prejudice to him. In view of the above, learned counsel, for the appellant, has pr ayed for setting aside the impugned judgment and order and the orders of dismiss al, passed by the disciplinary authority and consequently to reinstate the appel lant with all service benefits. 13. Resisting the said argument, advanced by the learned counsel for the appellant, the learned Government Advocate has submitted that the learned S ingle Judge, at the time of dismissing the writ petition, considered entire aspe ct of the matter and relying on the decision rendered by the Apex Court in the c ase of State Bank of Patiala (supra) rightly came to the conclusion that no prej udice was caused to the appellant and as such the appellant was not entitled to get the relief, claimed in the writ petition. Therefore, the learned Government Advocate has submitted that the impugned judgment and order needs no interferenc e. 14. Having heard the learned counsel for both the parties and perusi ng the materials on record, we find that the basic grievances, raised by the wri t appellant/appellant, are that no Presenting Officer was appointed by the disci plinary authority to present the case of the disciplinary authority, that the ap pellant was not allowed to engage any defence assistant, that no specific charge was framed against the appellant, that additional witnesses were examined from outside the list, that the appellant/appellant was not allowed to cross-examine the witnesses and also to adduce defence evidence. It is also the contention of the appellant that the witnesses were examined, keeping the appellant appellant outside the office of the Enquiry Officer and, thereafter, his signature was tak en, some times in original and some times in copy of the deposition. Those grounds were taken in the writ petition also, before the learned Single Ju dge. The learned Single Judge, perusing the record, which was placed before the Court, more particularly, the order sheets, maintained by the Enquiry Officer, f ound that all the witnesses were examined in presence of the appellant and the a ppellant was afforded the opportunity to adduce the defence witnesses, which opp ortunity was not availed of. Therefore, the allegation regarding examination of the witnesses in the absence of the appellant, i.e. keeping him outside the offi ce and subsequently taking his signature in the deposition, stood belied by the record. From the impugned judgment and order, it transpires that the learned counsel app earing for the appellant, after inspecting the record, contended, before the lea rned Single Judge, that some of the signatures of the appellant appeared in the original statement of the witnesses and some signatures appeared in carbon copy. A clarification being sought by the Court, the respondent filed an affidavit in dicating, therein, that several departmental proceedings were drawn up against o ther persons, involved in the said incident and as all the proceedings were simu ltaneously conducted by the same Enquiry Officer, the statements of the witnesse s were recorded at one time with adequate copies of such statement and that the copies of such statements were kept in the record of the respective departmenta l proceedings, against each delinquent, after obtaining their signatures in such copies. The said explanation, put forward by the respondents, was found to be a cceptable. From the record it was found that the witnesses were examined in pres ence of the delinquent employee and that he declined to cross-examine the witnes ses. Therefore, there is no force in the contention of the appellant that the wi tnesses were examined keeping him outside the office, without affording him oppo rtunity of cross-examining the witnesses. Regarding failure of the disciplinary authority to appoint a Presenting Officer and the Enquiry Officer, himself, performing the role of the Prosecutor, the lea rned Single Judge relied on the following observation made by the Supreme Court in the case of State Bank of Patiala. (cid:28)33. on. (These are by no means intended to be exhaustive and are evolved keeping in view the context of disciplinary enquiries and orders of punishment imposed by a n employer upon the employee): We may summaries the principles emerging from the above discussi (1) An order passed imposing a punishment on an employee consequent upon a disciplinary/departmental enquiry in violation of the rules/ regulations/ sta tutory provisions governing such enquiries should not be set aside automatically . The Court or the Tribunal should enquiry whether (a) the provision violated is of a substantive nature or (b) whether it is procedural in character. (2) A substantive provision has normally to be complied with as explaine d hereinbefore and the theory of substantial compliance of the test of prejudice would not be applicable in such a case. (3) In case of violation of a procedural provision, the position is this : procedural provisions are generally meant for affording a reasonable and adequ ate opportunity to the delinquent officer/ employee. They are, generally speakin g, conceived in his interest. Violation of any and every procedural provision ca nnot be said to automatically vitiate the enquiry held or order passed. Except c ases falling under- (cid:28)no notice (cid:29), (cid:28)no opportunity (cid:29) and (cid:28)no hearing (cid:29) categories, t he complaint of violation of procedural provision should be examined from the po int of view of prejudice, vize. whether such violation has prejudiced the delinq uent officer/ employee in defending himself properly and effectively. If it is f ound that he has been so prejudiced, appropriate orders have to be made to repai r and remedy the prejudice including setting aside the enquiry and/ or the order of punishment. It no prejudice is established to have resulted therefrom, it is obvious, no interference is callef for. In this connection, it may be remembere d that there may be certain procedural provisions which are of a fundamental cha racter, whose violation is by itself proof of prejudice in such cases. As explai ned in the body of the judgment, take a case where there is a provision expressl y providing that after the evidence of the employer/ government is over, the emp loyee shall be given an opportunity to lead defence in his evidence, in a case, the enquiry officer does not give that opportunity in spite of the delinquent of ficer/ employee asking for it. The prejudice is self-evident. No proof of prejud ice, i.e. , whether the person has received a fair hearing considering all thing s. Now, this very aspect can also be looked at from the point of view of directo ry and mandatory provisions, if one is so inclined. The principle stated under ( 4) hereinbelow is only another way of looking at the same aspect as is dealt wit h herein and not a different or distinct principle. (4)(a) In the case of a procedural provision which is not of a mandatory charact er, the complaint of violation has to be examined from the standpoint of substan tial compliance. Be that as it may, the order passed in violation of such a prov ision can be set aside only where such violation has occasioned prejudice to the delinquent employee. (b) in the case of violation of a procedural provision, which is of a mandatory character, it has to be ascertained whether the provision is conceived in the in terest of the persons proceeded against or in public interest. It it is found to be the former, then it must be seen whether the delinquent officer has waived t he said requirement, either expressly or by his conduct. If he is found to have waived it, then the order of punishment cannot be set aside on the ground of the said violation. If, on the other hand, it is found that the delinquent officer/ employee has not waived it or that the provision could not be waived by him, th en the Court or Tribunal should make appropriate directions (include the setting aside of the order of punishment), keeping in mind the appropriate adopted by t he Constitution Bench in B. Karunakar. The ultimate test is always the same, viz e., test of prejudice or the test of fair hearing, as it may be called. (5) Where the enquiry is not governed by any rules/ regulations/ statutory provi sions and the only obligation is to observe the principles of natural justice or , for that matter, wherever such principles are held to be implied by the very n ature and impact of the order/ action- the Court or the Tribunal should make a d istinction between a total violation of natural justice (rule of audi alteram pa rtem) and violation of a facet of the said rule, as explained in the body of the judgment. In other words, a distinction must be made between (cid:28)no opportunity (cid:29) a nd no adequate opportunity, i.e., between (cid:28)no notice (cid:29)/ (cid:28)no hearing (cid:29) and (cid:28)no fair hearing (cid:29). (a) In the case of former, the order passed would undoubtedly be inva lid (one may call it ’void’ or a nullity if one chooses to). In such cases, norm ally, liberty will be reserved for the Authority to take proceedings afresh acco rding to law, i.e., in accordance with the said rule (audi alteram partem). (b) But in the later cases, the effect of vilation (of a facet of the rule of audi a lteram partem) has to be examined from the standpoint of prejudice; in other wor ds, what the Court or Tribunal has to see is whether in the totality of the circ umstances, the delinquent officer/ employee did or did not have a fair hearing a nd the orders to be made shall depend upon the answer to the said query. (It is made clear that this principle (No. 5) does not apply in the case of rule agains t bias, the test in which behalf are laid down elsewhere.) (6) While applying the rule of audi alteram partem (the primary principle of nat ural justice) the Court/ tribunal/authority must always bear in the ultimate and overriding objective underlying the said rule, viz., to ensure a fair hearing a nd to ensure that there is no failure of justice. It is this objective which sho uld guide them in applying the rule to varying situations that arise before them . (7) There may be situations where the interests of State or public interest may call for a curtailing of the rule of audi alteram partem. In such situations, th e court may have to balance public/ State interest with the requirement of natur al justice and arrive at an appropriate decision (cid:29) As observed by the learned Single Judge, the appellant petitioner at no point of time requested the authority to appoint a Presenting Officer indicating that fa ilure to appoint a Presenting Officer would cause prejudice to him. Admittedly, as observed by the learned Single Judge, the appellant did not plead prejudice e ither in the writ petition or at the departmental proceeding. In view of the abo ve, referring to said observation, made by the Supreme Court, in the case of Sta te Bank of Patiala (supra), the learned Single Judge came to the findings that t he appellant’s plea, that failure to appoint a Presenting Officer vitiated the e nquiry itself, cannot be accepted. There is nothing, on record, to show that fai lure to appoint a Presenting Officer caused any prejudice to the appellant. The record also does not support the contention that the appellant/writ appellant wa s denied the opportunity of engaging defence assistance. There is nothing to sho w that the appellant had asked for permission to engage a defence assistant and that such prayer was rejected. Further, as observed by the learned Single Judge, the appellant was given opportunity to cross-examine the witnesses, and he decl ined to do so. As the appellant declined to cross-examine the witnesses, it cann ot be held that any prejudice was caused to him for not engaging a defence assis tance and due to examination of additional witnesses, if any. Therefore, no prej udice being caused to the appellant, in the teeth of the said Principles, held b y the Supreme Court in the case of State Bank of Patiala (supra), the failure to engage Presenting Officer, defence assistant can’t be held to be violation of a ny mandatory procedure, causing miscarriage of justice. Hence, there is no mater ial to show there was violation of principles of natural justice. Therefore, in our considered opinion, the learned Single Judge committed no error by holding t hat failure to appoint a Presenting Officer as well as the alleged denial of the services of the Defence Assistant amounted to prejudice to the appellant. In view of the contention made in the charge memo, dated 3/10/1998 and the speci fic charges mentioned therein against the appellant, his plea that no specific c harge was levelled against him cannot be accepted. It has also been contended, on behalf of the appellant, that SI Haresh Kumar Bor gohain, a co-delinquent, who was also dismissed from service virtually on the sa me charges, had filed a writ petition, being WP(C) 2311/2000 and the same was al lowed directing reinstatement of the said co-delinquent. The learned Single Judg e, perusing the judgment passed in the said writ petition, found that the same w as allowed on the ground that the record of the departmental proceeding was not placed before the Court at the time of hearing of that case and as such, in abse nce of the records, the Court had no option but to come to the conclusion that t he stand of the appellant, that the enquiry was held without giving him any oppo rtunity of cross-examination and of adducing evidence in defence, stood establis hed so as to warrant interference with the dismissal and to further direct for h olding a de-novo enquiry. But, as observed by the learned Single Judge, in the case at hand, the records o f the enquiry was placed before the Court and the learned Single Judge, perusing the records came to the findings that the witnesses were examined in presence o f the writ appellant and that he was granted opportunity to cross-examine the wi tnesses, but the appellant declined to cross examine the witness, examined on be half of the disciplinary authority. Hence the decision rendered in the said case does not help the appellant.

15. As observed by the Supreme Court in the case of Government of In dia and another versus George Philip, reported in (2006) 13 SCC 1, the High Cour t, exercising jurisdiction under Article 226 of the Constitution is not hearing an appeal against the decision of the disciplinary authority imposing punishment upon the delinquent employee. The jurisdiction of High Court in exercising judi cial review extends to the cases where there has been a substantial non-complian ce with the rules or procedure or a gross violation of rules of natural justice, which has resulted in miscarriage of justice or that punishment is shockingly d isproportionate. In the case at hand, as discussed above, there is nothing on rec ord, to show that prejudice has been caused, resulting miscarriage of justice. T hat apart, considering the gravity of charge, brought and proved against the app ellant, who was a member of a disciplinary force i.e. State Police, the punishme nt of dismissal from service does not appear to be shockingly disproportionate. 16. In view of the above discussion and in the light of the decision s rendered by the Supreme Court in the above referred cases, we do not find it t o be a fit case requiring interference by a writ court. Therefore, in our consid ered opinion, the learned Single Judge has rightly come to the conclusion that n o prejudice was caused to the appellant requiring interference with the impugned order of dismissal. Therefore, we find no merit in this appeal. Accordingly the appeal is dismissed. No costs.