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2002 DIGILAW 162 (KER)

Sumindra Prasad Singh v. Commandant

2002-03-07

K.RAMACHANDRIAH

body2002
Judgment :- Challenging EXT. P12 penalty order, and Ext.P17 appellate order, the petitioner who is a Constable in the Central Industrial Security Force has filed this original petition. The punishment that had been awarded to him is that reduction of pay by one stage for a period of six months with cumulative effect. It was also directed that he will not earn any increment during the period of reduction and the reduction will have the effect of postponing his future increment, counsel for the petitioner submits that punishment was highly disproportionate to the allegations, and in fact it was not a single punishment, but three punishments combined together. He also submits that the enquiry that had been held was vitiated by bias since the person who was inferior in rank to the complainant had been entrusted with the duty of holding enquiry. The third objection raised by Sri. Dinesh Rao appearing for the petitioner is that the enquiry was held in violation of the principles of natural justice in so far as the delinquent had not been given the documents that had been requested for and adequate time was not granted to him to avail of the help of a defence helper. No steps had been taken to summon for him a defence witness or make him his presence available and it is also, according to the petitioner, a vitiating circumstance, affecting the root of the proceedings. 2. To fortify his contentions, he had relied on a decision of this court in W.A.Nos.811 and 780 of 1993 wherein it was held that when the complaint came from a superior officer, enquiry by a lower officer is erroneous. Before going to such details, the essential facts may be looked into. The allegation against the workman was that on an inspection held at the Oil Transfer Berth where he had been deputed for night shift duty, on 26/3/1993 at night, he was found sleeping, by the deputy Commandant who had inspected the spot along with the Assistant sub Inspector one K.P.Soman. The memo of charges is produced as Ext . P1 which shows the circumstances under which the charge sheet was given. The list of witnesses has been submitted and handed over to the petitioner and also a list of documents. 3. The memo of charges is produced as Ext . P1 which shows the circumstances under which the charge sheet was given. The list of witnesses has been submitted and handed over to the petitioner and also a list of documents. 3. The defence of the employee was that since he felt unwell the superior officer had permitted him to take rest and at that time, the inspection had been made and hence the allegations were wholly unsustainable, and baseless. 4. It is not in dispute that the Deputy Commandant along with the Assistant sub Inspector inspected the premises and he had made a report to the Commandant about the deficiency he had come across. Commandant is the highest Officer available in the unit and the Deputy Commandant comes below the Commandant. It is pointed out that the Enquiry Officer, who is the Inspector comes below the Deputy Commandant by two stages. The submission is that when a complaint is filed by the Deputy Commandant, in all probability, it may not be possible for the Enquiry Officer to come to a different finding, and the conclusions were practically forgone. 5. Apart from the contention that Sri. Jayakumar is a junior Officer, there has been no allegation of bias. It is evident that what was offered was an opportunity to the petitioner to meet the charges which will constitute a misconduct. It was for him to state him case before the notified officer. The principle of natural justice is that no person shall be a judge in his own cause. The rule has its origin from the maxim Debit Esse Judex in propria causa- the principle that justice not only be done but should manifestly be seen to be done (2000 AIR SCW 295 – Amarnath v. Braithwalk and Company Limited). Neither pecuniary, personal or a bias about subject matter is alleged. As rightly pointed out by the respondent, doctrine of necessity has full application here. When an officer is entrusted with a duty, it has to be presumed that he will discharge the functions impartially and on the materials that are placed before him. A pre-conception in fact is to cast aspersion on the integrity of the officer. 6. We can postulate a situation that the Deputy Commandant may have to make routine inspective, and will also have to submit reports to the Commandant. A pre-conception in fact is to cast aspersion on the integrity of the officer. 6. We can postulate a situation that the Deputy Commandant may have to make routine inspective, and will also have to submit reports to the Commandant. In his discretion, the latter may have to take remedial action, including enquiry. If the petitioner’s contention is accepted, only the Commandant is empowered to hold enquiry on such reports and no one else. In the concerned area, there is only one Commandant, and import of personnel from outside for every such enquiry is not envisaged. The basic fallacy of the petitioner’s argument is that the Deputy Commandant does not lodge complaint, he makes a report. The commandant selects the appropriate officer to hold an enquiry. The proceedings of the enquiry are well defined, and participation is permitted. The basic issue is not bias, but whether there is opportunity offered to partake. The over emphasis to procedural entanglements, and bias are resorts when the delinquent may find it difficult to meet the charges. The circumstances of the case therefore do not justify a declaration that the enquiry held is illegal. 7. In this context, guidance could be received from a decision of the Supreme Court rendered in G.N.Nayak V. Goa University (2002 AIR SCW 442). Of course, it was a case of bias by preference. In view of the good remarks made by a member of the interviewing committee on an earlier occasion, in favour of a candidate, the apprehension was that it would have weighed with the assessment in the selection . The Court approved the observation of Frank,J in Linahan (1943) 138F 2nd 650, 652 and held: “33. Bias may be generally defined as partiality or preference . It is true that any person or authority required to act in a judicial or quasi judicial matter must act impartially. “If however, ‘bias’ and ‘partiality’ be defined to mean the total absence of preconceptions in the mind of the judge, then no one has ever had a flair trial and no one ever will. The human mind, even at infancy, is no blank piece of paper. We are born with predispositions and the processes of education, formal and informal, created attitudes which precede reasoning in particular instances and which, therefore by definition are prejudices.” 34. The human mind, even at infancy, is no blank piece of paper. We are born with predispositions and the processes of education, formal and informal, created attitudes which precede reasoning in particular instances and which, therefore by definition are prejudices.” 34. It is not every kind of bias which in law is taken to vitiate an act. It must be a prejudice which is not founded on reason, and actuated by self interest --- whether pecuniary or personal. Because of this element of personal internet, bias is also seen as an extension of the principle of natural justice that no man should be a judge in his own cause. Being a state of mind, a bias is sometimes impossible to determine. Therefore, the Courts have evolved the principle that it is sufficient for a litigant to successfully impugn an action by establishing a reasonable possibility of bias or proving circumstances from which the operation of influences affecting a fair assessment of the merits of the case can be inferred. 8. In the aforesaid background, the apprehension voiced by the petitioner as regards the competence of the Officer appears to be out of place. 9.The next submission is that explanation submitted by Mr.Thampi was not given to him. For his lapses, Thampi was charge sheeted. Considering the facts of the case, I am of the view that it would not have been relevant to take on record whatever be the explanation that had been submitted by the said officer. It is for the petitioner to show that he has been permitted to take rest at the time of duty, by a person who had authority to act in that manner. But however, it is not shown that Thampi was authorized to grant permission to the petitioner to sleep and the facts necessarily will lead to the position that the request for such a document as explanation was clearly outside the scope of the enquiry. 10. The next argument is that petitioner was not given adequate opportunity to avail help of a defence helper. The Rule only provides for assistance to be given, but tat does not mandate that enquiry is to be adjourned when the person nominated by himself is not available when the enquiry is posted. Petitioner had requested Naik Sri.T.M. Nair to assist him as defence Witness in the enquiry. The Rule only provides for assistance to be given, but tat does not mandate that enquiry is to be adjourned when the person nominated by himself is not available when the enquiry is posted. Petitioner had requested Naik Sri.T.M. Nair to assist him as defence Witness in the enquiry. But he was on long leave and therefore, he was not available in the region. The allegation is that there was a ‘mad hurry’ shown by the Enquiry Officer to finish the proceedings. The circumstances of the case do not show that there was a ‘mad hurry’, but there was an attempt to conform to the principles of natural justice and the petitioner may not be able to spin out violation of principles of natural justice from the sequence of events. 11.The last submission of the petitioner is that it was not possible for him to examine a defence witness. The Enquiry Officer did not make available to him, Sri.K.V. Thampi as defence witness. It is well settled that neither the prosecution nor the Enquiry Officer has any duty to make available a witness for the delinquent worker. He has to himself secure the presence of witnesses. It is also pointed out by the Standing Counsel that after the enquiry, petitioner had been asked as to whether there was any further document to be produced or evidence to be laid in and he had answered it in negative. The allegation and accusation are therefore only a afterthought. 12. According to the petitioner, he had been placed under suspension during the period of enquiry and it shows that there is a mala fide approach by the respondents. But, suspension as such is not a punishment and it was the discretion of the Force to place an officer under suspension and no adverse inference can be drawn from the context. 13. The last contention urged is that the punishment was severe. As pointed out by the standing Counsel. It would have been permissible to impose the capital punishment to such an employee. I do not think that it is necessary to interface in this matter. Sleeping while on duty is not a minor lapse. Especially, he was member of an armed Force, and the safety and security of the installation dependent on him. His story of permission for such rest has not been substantiated. I do not think that it is necessary to interface in this matter. Sleeping while on duty is not a minor lapse. Especially, he was member of an armed Force, and the safety and security of the installation dependent on him. His story of permission for such rest has not been substantiated. Instead of sleeping at the duty post, if unwell, he could have asked for posting of a substitute. Indeed a stern action alone was expected, and the petitioner has been let off with a minor penalty. 14. The challenge against Exts.p12 and p17 is not sufficiently strong or sustainable. The Original Petition is dismissed. No order as to costs.