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2006 DIGILAW 574 (GAU)

S. B. Yambem v. Union of India

2006-06-16

T.NANDAKUMAR SINGH

body2006
JUDGMENT T.NK. Singh, J. 1. Heard Mr. H.NK Singh, learned senior counsel assisted by Mr. Babulindro, learned Counsel for the petitioner as well as Mr. N. Ibotombi, learned CGSC for the respondents. 2. Neglecting all the unnecessary details, but the precise fact of the petitioner's case, which will be sufficient for deciding the present writ petition are that: (i) The petitioner joined service in the Central Reserved Police Force ('CRPF') as Deputy Superintendent of Police in the year, 1971 and ultimately promoted to the rank of Commandant in the year, 1994 and posted at 61 Bn CRPF located at Mantripukhri, Imphal, Manipur. (ii) While the petitioner was posted as Commandant in the 61 Bn. CRPF there was a proceeding of court of inquiry against the petitioner and later on under memorandum No. D.IX-33/95 CR Cell dated 14.5.1998 issued by the Assistant Director (Estt.), Directorate General, CRPF, New Delhi, a regular Departmental Enquiry under Rule 14 of the Central Civil Services (Classification, Control & Appeal) Rules, 1965 was initiated against the petitioner for the (3) three articles of charges against him. The said three articles of charges against the petitioner are annexed in the said memorandum dated 14.5.1998, The Inquiry Officer after completing the departmental enquiry submitted a report with the finding that the said three articles of charges were proved beyond all shadow of reasonable doubt against the petitioner. Copy of the said report is available at Annexure-A/10 to the present writ petition. 3. Copy of the said report is available at Annexure-A/10 to the present writ petition. 3. By this writ petition, the petitioner is assailing the whole proceeding of the departmental enquiry under the said memorandum dated 15.4.1998 and also the report of the Inquiry Officer only on the three main, interalia grounds that: (i) Complete copies of the proceedings of the court of inquiry against the petitioner which had been relied upon by the Inquiry Officer in the said regular Disciplinary Proceeding against him for the said three articles of changes were not furnished to the petitioner, and as a result thereof, a serious prejudice has been caused to the petitioner in defending his case in the said regular Disciplinary Proceeding; (ii) The petitioner, who is resident of Manipur, i.e., Manipuri has no sufficient knowledge of the language Hindi for full understanding of the statements of witnesses recorded in Hindi and also the documents recorded in Hindi which had been relied upon by the Inquiry Officer for the purpose of effective cross-examination of the witnesses and also for effectively putting his case; and even after his repeated request, for furnishing English translated copies of the statement of witnesses recorded in Hindi and those documents recorded in Hindi relied Upon by the Inquiry Officer were not furnished to the writ petitioner, as a result thereof, there was no fair proceeding in the said Departmental Enquiry against the petitioner; and (iii) The principles of natural justice and fair play had been violated in the proceeding of the regular Departmental Enquiry. 4. Paragraph Nos. 18, 19, 20 and 21 of the present writ petition, which deal with the first ground for challenging the regular Departmental Enquiry against the petitioner are quoted as follows: 18. That the writ petitioner submitted another application dated 5.11.1999 to the Inquiry Officer for furnishing the complete copies of the proceedings of the court of Inquiry, CRPF but it has been turned down only on the ground that the copies were voluminous and as such, not feasible. 19. That by the personal observation on seeing the proceedings of the court of Inquiry, the number of pages may not be more than 200, but certainly it may be between 150 to 200. 20. 19. That by the personal observation on seeing the proceedings of the court of Inquiry, the number of pages may not be more than 200, but certainly it may be between 150 to 200. 20. That the aforesaid copies are taken as the main basis of the departmental enquiry by the authorities and as such, it is legally obligatory on the part of the Inquiry Authority to furnish the copies of the aforesaid documents. 21. That above besides, the opportunity of inspection of the aforesaid documents was granted in name sake, but the very inspection was not allowed whenever he desired for the purpose of his defence. 5. Paragraph Nos. 26, 27, 28, 29, 30 and 31 of the writ petition which deal with the 2nd ground for challenging the proceeding of the Departmental Enquiry against the petitioner read as follows: 26. That another worse grievance is that he had been completely deprived of language communication, understanding, inasmuch as most of the statements of the witnesses (PWs) were taken and examined in Hindi of which the humble petitioner has no sufficient and workable knowledge for the purpose of full/thorough understanding for cross-examination. 27. That in view of the language communication problem, the humble petitioner submitted an application dated 22.8.2004 before the inquiry authority to furnish English version of the aforesaid statements and also such other documents, but the same had been unreasonably and capriciously rejected without assigning reason thereof. 28. That it is the normal practice to record such statements in English translation in presence of witnesses and also in presence of charged/delinquent officer and more so, when the inquiring authority and presenting officer are all well educated and well versed in English having long term experience in their services, the statements should have been recorded in English, so that the charged officer, the present petitioner should have fair chance of understanding the same. 29. That in the aggravation of the aforesaid grievances, the Investigating Authority had relentlessly indulged in bias and adamant attitude against the humble petitioner herein in may other various wages. 30. That by the aforesaid denial, the humble petitioner herein is completely deprived of his right of defence, inasmuch as no defence can be set up without knowing gravity of the statements against him. 31. 30. That by the aforesaid denial, the humble petitioner herein is completely deprived of his right of defence, inasmuch as no defence can be set up without knowing gravity of the statements against him. 31. That again while furnishing copies of the prosecution brief as submitted at the closing of the D.E. by the presenting officer, the aforesaid copies of the statements of the PWs in Hindi version are supplied to him without English translation or otherwise language in version of the writ petitioner herein (copies of Hindi version shall be placed before the hon'ble court at the time of hearing). 6. The respondents also filed affidavit-in-opposition. Paras 18, 19, 20 and 21 of the affidavit-in-opposition read as follows: 18. That with regard to para No. 18 of the writ petition, it is submitted that as per order sheet dated 5.11.1999 (R-3) the proceedings of court of Inquiry were quite voluminous, hence copy of entire proceedings of court of Inquiry could not be given to the petitioner. However, the Enquiry authority had given full opportunity to the petitioner to peruse the documents. 19. That with regard to para No. 19 of the writ petition, the averments of the petitioner has no relevance in this case. 20. That with regard to para No. 20 of the writ petition, the comments furnished in para-18 ibid are relevant in this regard. 21. That with regard to para No. 21 of the writ petition, the averments of the petitioner are not correct and denied. In fact the Enquiry Officer had given full opportunity to the petitioner for inspection of documents whenever request made by him for the purpose of his defence. 7. In para Nos. 26 and 27 of the affidavit-in-opposition it is stated that as the petitioner has served in the force for more than 31 (thirty-one) years it is not appropriate for the writ petitioner to show lack of understanding in Hindi language. It is also stated that the Inquiry Officer as well as the Presenting Officer assured the petitioner that they will assist him in understanding any words or expression in Hindi which he find it difficult to understand. It is also stated that the Inquiry Officer as well as the Presenting Officer assured the petitioner that they will assist him in understanding any words or expression in Hindi which he find it difficult to understand. In para No. 27 of the affidavit-in-opposition, it is also stated that the Inquiry Authority vide Signal No. D.IX-l/2003-ES-PA dated 1.9.2004 (R-4) had sent reply of application of the petitioner dated 22.8.2004 that he will be provided necessary assistance to understand/note down in English contents of the statements which are in Hindi and that of documents in Departmental Enquiry, proceedings in Group Centre, CRPF, Imphal. 8. The Inquiry Officer passed an order dated 5.11.1999 in the Departmental Enquiry against the petitioner that the charged officer wanted to have copies of the C.O.I proceedings conducted by Shri A.V. Liddle. As the proceedings are quite voluminous, copy of the entire proceedings can not be given to him. He was however given full opportunity to peruse document.... The charged officer requested that the statement of the witnesses which are in Hindi may be got translated into English and given to him. The request of the Charged Officer was however overruled and he was informed that he is in possession of the Hindi version of the statements and he can get them translated at his own resources. 9. The Apex Court in Roshan Deen v. Preet Lal (2002) 1 SCC 100 held that the purpose of power in the High Court under Articles 226 and 227 of the Constitution of India is to advance justice, not to thwart it. Whenever justice is the by-product of such infraction of law, the High Court ought not wipe out such justice in the name of correcting the error of law. The Apex Court in Air India Statutory Corporation v. United Labour Union and Ors. 1997 (2) SC 165 held that the arm of the court is long enough to reach injustice wherever it is found. The Apex Court in State of Maharashtra v. Digambar (1995) 4 SCC 683 held that power of High Court to exercise under Article 226 of the Constitution, if it is discretionary, its exercise must be judicious and reasonable. 10. The power of judicial review of the High Court of the proceedings of the Departmental Enquiry and finding of the Inquiry Officer are now well settled. 10. The power of judicial review of the High Court of the proceedings of the Departmental Enquiry and finding of the Inquiry Officer are now well settled. The High Court while exercising the power under Article 226 in a Writ proceeding against the proceedings of the Departmental Enquiry and finding of the Inquiry Officer is not functioning as appellate authority and is also not making an inquiry as to whether there were insufficient or sufficient evidence for coming to the finding by the Inquiry Officer in his report. The Apex Court in State of Andhra Pradesh and Ors. v. S. Sree Rama Rao AIR 1963 SC 1723 had considered the power of High Court under Article226 to interfere with the findings of the Inquiry Officer after holding Departmental Enquiry and also the power to interference with the proceeding of the Departmental Enquiry. The Apex Court in State of Andhra Pradesh and Ors. v. S. Sree Rama Rao (supra) held that the High Court may undoubtedly interfere where the departmental authorities have hold the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the Statutory rules prescribing the mode of Inquiry or where the authorities have disabled themselves from reaching a fair decision by some consideration extraneous to the evidence and merit of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very face of it, so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion or on similar ground. 11. The ratio laid down by the Apex Court in State of Andhra Pradesh and Ors. v. S. Sree Rama Rao (supra) had been followed in B.C. Chatturvedi v. Union of India (1996) 6 SCC 749 and the High Court of Judicature at Bombay v. Shashikant S. Patil and Anr. (2000) 1 SCC 416 . The Apex Court in the High Court of Judicature at Bombay v. Shashikant S. Patil and Anr. v. S. Sree Rama Rao (supra) had been followed in B.C. Chatturvedi v. Union of India (1996) 6 SCC 749 and the High Court of Judicature at Bombay v. Shashikant S. Patil and Anr. (2000) 1 SCC 416 . The Apex Court in the High Court of Judicature at Bombay v. Shashikant S. Patil and Anr. (supra) also reiterated that the High Court while exercising the jurisdiction under Article 226 of the Constitution of India is not functioning as an appellate authority against the finding of the Inquiry Officer and also that if there are some legal evidences on which the findings can be based, then adequacy or even reliability of that evidence is not the matter for canvassing before the High Court in a writ petition filed under Article 226 of the Constitution. From the above ratio laid down by the Apex Court we can safely infer that the High Court can interfere with the proceedings of the Departmental Enquiry in case on the very face of it is wholly arbitrary or capricious that no reasonable person could have arrived at such a conclusion or ground or similar to the above, i.e., violation of principles of natural justice or violation of statutory regulations prescribing the mode of such inquiry. 12. The Apex Court in Yoginath D. Bagde v. State of Maharashtra and Anr. (1999) 7 SCC 739 had considered the applicability of principles of natural justice, i.e., "opportunity of being heard" in the proceedings of the Departmental Enquiry and held that where the rules are silent about the applicability of principles of natural justice, "Principles of Natural Justice" may have to be read into the Rule. The Apex Court is of the similar view in State Govt. Houseless Harijan Employees Assn. v. State of Karnataka and Ors. (2001) 1 SCC 610 . Paras 27 and 28 of the judgment in State Government Houseless Harijan Employees Assn v. State of Karnataka and Ors. (supra) reads as follows: 27. This Court has consistently held that the requirements of natural justice will be read into statutory provisions unless excluded expressly or by necessary implication. 28. In the case of Union of India v. Col. J.N. Sinha this Court said : (SCC p. 461, para 8). (supra) reads as follows: 27. This Court has consistently held that the requirements of natural justice will be read into statutory provisions unless excluded expressly or by necessary implication. 28. In the case of Union of India v. Col. J.N. Sinha this Court said : (SCC p. 461, para 8). It is true that if a statutory provision can be read consistently with the principles of natural justice, the courts should do so because it must be presumed that the Legislatures and the statutory authorities intend to act in accordance with the principles of natural justice. But if on the other hand a statutory provision either specifically or by necessary implication excludes the application of any or all the principles of natural justice then the court cannot ignore the mandate of Legislature or the statutory authority and read into the provisions concerned the principles of natural justice. 13. The Apex also discussed the applicability of the principles of natural justice in the proceeding of Departmental Enquiry against the delinquent in Kumaon Mandal Vikas Nigal Ltd. v. Girija Shankar Pant and Ors. (2001) 1 SCC 182 . Para 20 of the judgment in Kumaon Mandal Vikas Nigal Ltd. (supra) reads as follows: 20. It is a fundamental requirement of law that the doctrine of natural justice be complied with and the same has, as a matter of fact, turned out to be an integral part of administrative jurisprudence of this country. The judicial process itself embraces a fair and reasonable opportunity to defend though, however, we may hasten to add that the same is dependent upon the facts and circumstances of each individual case. The facts in the matter under consideration is singularly singular. The entire chain of events smacks of some personal clash and adaptation of a method unknown to law in hottest of haste; this is however, apart from the issue of bias which would be presently dealt with hereinafter. It is on this context, the observations of this Court in the case of Sayeedur Rehman v. State of Bihar seem to be rather apposite. This Court observed : (SCC p. 338, para 11). It is on this context, the observations of this Court in the case of Sayeedur Rehman v. State of Bihar seem to be rather apposite. This Court observed : (SCC p. 338, para 11). The omission of express requirement of fair hearing in the rules or other source of power claimed for reconsidering the order, dated 22.4.1960, is supplied by the rule of justice which is considered as an integral part of our judicial process which also governs quasi-judicial authorities when deciding controversial points affecting rights of parties. 14. In he present case, admittedly, copies of the proceedings of the court of inquiry, which are said to he voluminous, and relied upon by the Inquiry Officer, are not furnished to the writ petitioner but he was allowed to inspect those voluminous documents, Such voluminous documents will not be able to remember by a person of reasonable prudent. Such being the procedures adopted by the departmental authority in the regular Departmental Enquiry against the petitioner, the conclusion of the Inquiry Officer in the report, after completing the Departmental Enquiry against the petitioner would be wholly arbitrary and capricious. 15. The Apex Court in Krishna Chandra Tandon v. Union of India AIR 1974 SC 1589 had discussed the cases in which the copies of the report of the preliminary inquiry are required to be furnished to the delinquent at the time of holding regular Departmental Enquiry. The Apex Court in Kumaon Mandal Vikas Nigal Ltd. (supra) held that copies of the report of the preliminary inquiry would be required to be furnished to the delinquent officer only when the report of the preliminary Inquiry had been considered by the Inquiry Officer or/by the disciplinary authority and failure to do so would amount to denial of reasonable opportunity to the delinquent to defend or put his case in the proceeding of regular Departmental Enquiry/disciplinary inquiry. The fact, in the case of Committee of Management Kisan Degree College v. Shambhu Saran Pandey and Ors. (1995) 1 SCC 404 are that copies of the documents need to be supplied to the delinquent are voluminous and cannot be supplied to the delinquent but an opportunity had been given to him for inspection of the documents and no opportunity was given to the delinquent to obtain copies of those voluminous documents even at the cost of the delinquent. The Apex Court in Committee of Management Kisan Degree College (supra) held that non-supplying of copies of voluminous documents and not giving opportunity to the delinquent to get the copies of the voluminous documents at his cost would amount to violation of principles of natural justice and further, held that it would open to the disciplinary authority to conduct the inquiry afresh after supplying those documents. The relevant portion of para 5 of the judgment in Committee of Management Kisan Degree College; Pandey and Ors. (supra) reads as follows: 5. On the facts and circumstances, we are of the view that at the earliest the respondent sought for the inspection of documents mentioned-in the charge-sheet and relied on by the appellant. It is settled law that after the charge-sheet with necessary particulars, the specific averments in respect of the charge shall be made. If the department or the management seeks to rely on any documents in proof of the charge, the principles of natural justice require that such copies of those documents need to be supplied to the delinquent. If the documents are voluminous and cannot be supplied to the delinquent, an opportunity has got to be given to him for inspection of the documents. It would be open to the delinquent to obtain appropriate extracts at his own expense. If that opportunity was not given, it would violate the principles of natural justice. At the enquiry, if the delinquent seeks to support his defence with reference to any of the documents in the custody of the management or the department, then the documents either may be summoned or copies thereof may be given at this request and cost of the delinquent.... 16. In the present case, failure on the part of the Disciplinary Authority to furnish copies of the voluminous proceeding of the court of inquiry to the writ petitioner and also failure on the part of the Disciplinary Authority even to give a chance to the writ petitioner to obtain copies of the said voluminous documents at his own cost, if at all necessary would amount to denial of the principles of natural justice to the writ petitioner in the Departmental Enquiry against the petitioner. 17. 17. In order to substantiate the 2nd ground for challenging the proceeding of the Departmental Enquiry against the writ petitioner, i.e., failure on the part of the Inquiry Officer to furnish English translated copies of the statement of witnesses recorded in Hindi and documents recorded in Hindi to the writ petitioner, the learned senior counsel had referred to the Rule 7 of the "Official Languages (Use for Official Purposes of the Union)" Rules, 1976 and submits that it is the bounden duty of the Inquiry Officer to furnish English translated copies of the documents to the writ petitioner so as to enable him to effectively put up his case in the Departmental Enquiry against him. For easy reference Rule 7 of the "Official Languages (Use for official purposes of the Union) Rules, 1976" is quoted hereunder: 7. Applications, representations etc. - (1) An employee may submit an application, appeal or representation in Hindi or in English. (2) Any application, appeal or representation referred to in Sub-rule (1) when made or signed in Hindi, shall be replied to in Hindi. (3) Where an employee desires any order or notice relating to service matters (including disciplinary proceedings) required to be served on him to be in Hindi, or, as the case may be, in English, it shall be given to him in that language without undue delay. 18. It is also equally well settled that law/regulation is made not be to broken but to be obeyed according to the decisions of the Apex Court in a catena of cases, one of which is the decision of the Apex Court, i.e., a Constitution Bench in Kartar Singh v. State of Punjab : (1994) 3 SCC 569 . Para 36 of SCC in Kartar Singh (supra) reads as follows: 36. Law is made not to be broken but to be obeyed and the respect for law is not retained by demonstration of strength but by better appreciation of the reasons, better understanding of its reality and implicit, obedience. It goes without saying that the achievements of law in the past are considerable, its protection in the present is imperative and its potential for the future is immense. It is very unfortunate that on account of lack of respect, lack of understanding, lack of effectiveness, lack of vision and lack of proper application in the present day affairs, law sometimes falls in crises. 19. It is very unfortunate that on account of lack of respect, lack of understanding, lack of effectiveness, lack of vision and lack of proper application in the present day affairs, law sometimes falls in crises. 19. We may also refer to the decision of the Apex Court in Shri Mandir Sita Ramji v. Governor of Delhi and Ors. AIR 1974 SC 1868 that "when a procedure is prescribed by the Legislature it is not for the court to substitute a different one according to its notion of justice. When the Legislature has spoken. Judge cannot afford to be wiser." 20. No doubt, the termination of service of an employee is a very drastic measure taken by the concerned authority/employer against the employee. According to well-settled principle of law when a drastic power is to be exercised, it should be save and except according to prescribed procedure. The Constitution Bench of the Apex Court in Hukam Chand Shyam Lal v. Union of India and Ors. AIR 1976 SC 789 held that it is well settled that where a power is required to be exercised by a certain authority in a certain way, it should be exercised in that manner or not at all, and all other modes of performance are necessarily forbidden. It is all the more necessary to observe this rule where the power is of a drastic nature and it exercises in a mode other than the one provided will be violative of the fundamental right of natural justice. Para 18 of the AIR in Hukam Chand Shyam Lal (supra) is quoted as follows: 18. It is well settled that where a power is required to be exercised by a certain authority in a certain way, it should be exercised in that manner or not at all, and all other modes of performance are necessarily forbidden. It is all the more necessary to observe this rule where power is of drastic nature and its exercise in a mode other than the one provided, will be violative of the fundamental principles of natural justice. Now, in the present case, if the telephones of the appellants were to be disconnected on the ground of misuse, then they had to give, in consonance with the principles of natural justice, opportunity to the appellants to explain their conduct before taking action under Rule 427 read with Rules 416 and 421. Now, in the present case, if the telephones of the appellants were to be disconnected on the ground of misuse, then they had to give, in consonance with the principles of natural justice, opportunity to the appellants to explain their conduct before taking action under Rule 427 read with Rules 416 and 421. Resort to the wrong and more drastic course provided in Rule 422, on a ground which was not germane to an action under that rule, vitiates the impugned order, particularly when it is manifest that in making the impugned order, the General Manager was influenced more by this ground and less, if at all, by the existence of public emergency' certified by the Delhi Administration. 21. For the reasons discussed above, this Court is of the considered view that failure on the part of the Disciplinary Authority to furnish English translated copies of those documents to the writ petitioner in the proceedings of the Departmental Enquiry again him will amount to denial of fair procedure to the writ petitioner and thereby resulting to serious prejudice to the writ petitioner in defending his case in the Departmental Enquiry. This Court is of the considered view that the "Official Languages (Use for the official purposes of the Union) Rules, 1976 is made to be obeyed. 22. In the result, for the reasons discussed above, this Court is of the considered view that this writ petition has merit, accordingly, allowed by quashing the departmental proceeding initiated under memorandum No. D.IX-33/95-CR Cell dated 14.5.1998 issued by the. Asstt. Director (Estt), Directorate General, CRPF (Annexure-A/2 to the present writ petition) and report of the Inquiry Officer at Annexure-A/10 to the present will petition. However, it is open to the Disciplinary Authority/Inquiry Officer to conduct the Departmental Enquiry afresh, after supplying the copies of the proceedings of the court of Inquiry and also the English translated copies of the statements of the witnesses and documents recorded in Hindi to the present petitioner. Parties are to bear their own costs. Petition allowed.