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2007 DIGILAW 656 (GAU)

Bhubon Singh v. State of Manipur

2007-09-28

MAIBAM B.K.SINGH

body2007
JUDGMENT M.B.K. Singh, J. 1. Heard Mr. Kh. Tarunkumar, learned Counsel appearing on behalf of the petitioner and Mr. Jagjit, learned Additional G.A. appearing on behalf of the Government respondents. 2. The petitioner, who was serving as a Rifleman being No. 9750 of the 9th Battalion, Manipur Rifles, Government of Manipur, has filed this writ petition praying mainly for quashing the order of the Commandant of 9th Bn., Manipur Rifles dated 12.1.2001 and the order of the Deputy Inspector General of Police (Ops.-II) Manipur dated 28.3.2001 by which, inter-alia, the petitioner was dismissed from his service and his appeal as against the said dismissal order was rejected respectively. According to the petitioner, the impugned dismissal order, dated 12.1.2001, was based on findings of the inquiry proceeded as against him and others and the said inquiry was proceeded illegally and in-violation of the principles of natural justice and as such the impugned dismissal order passed on the said findings in the said inquiry and the impugned order dated 28.3.2001 rejecting the appeal filed as against the said dismissal order are not sustainable in the eyes of law. 3. On perusal of the relevant Departmental inquiry file being DE-12/99-9 MR which has been submitted to the Court by the learned Counsel appearing on behalf of the Government respondents, it is ascertained that no Presenting Officer was appointed by the concerned authority during the inquiry. The division bench of this Court, while disposing of the W.A. No. 267/2002 and many other analogous appeals on 18.4.2005, held at para 7 of the judgment as follows: 7. So far as the appointment of Presenting Officer, the learned Government Advocate for the appellants and also the counsels for the respondents stated at the bar that no such presenting officer was appointed by the authorities in all the departmental proceedings. The records produced by the learned Government Advocate also shows that there was no presenting officer appointed in all the departmental proceedings held against the writ petitioners respondents. The question then is what will be the consequence of not appointing the presenting officer. It is settled law that the inquiry officer while sitting as a judge, he cannot be also sitting as the prosecution to examine the witnesses by himself. The inquiry officer cannot assume the role of a judge and also the prosecutions. The question then is what will be the consequence of not appointing the presenting officer. It is settled law that the inquiry officer while sitting as a judge, he cannot be also sitting as the prosecution to examine the witnesses by himself. The inquiry officer cannot assume the role of a judge and also the prosecutions. Even there is no such provisions under Rule 66 for appointment of the presenting officer, the simple question is that, who is to present the case of the department when there is no presenting officer, therefore, absence of presenting officer will make the inquiry totally vitiated as the inquiry officer cannot assumed the role of the judge as well as prosecution. 4. Further, it is also ascertained that no Defence Assistance was appointed to represent the petitioner. There is nothing to show that the inquiry officer informed the petitioner about his right to appoint a Defence Assistance to defend his case. There is nothing to show that under any provision of the relevant rules, the delinquent was prohibited from engaging a Defence Assistance of his choice. There is no reason as to why the said right should not be supplemented in the relevant rules in the interest of justice. The petitioner was only asked whether he wanted to be heard personally or to engage any Defence counsel. The above said question cannot be considered as giving information to the petitioner about his entitlement to appoint a Defence Assistance to defend his case. None of the witnesses produced on behalf of the department for substantiating the changes was cross examined by or on behalf of the petitioner. There cannot be any doubt that the petitioner was prejudiced in making his defence. Although Rule 16 part-in of Assam Police Manual is silent about the appointment of a Defence Assistance, in the facts and circumstances, fairness demands that the petitioner ought to have been allowed to defend by a Defence Assistance in the proceeding before the Inquiry Officer. The petitioner was only a Rifleman at the relevant time and he, being in the lower rung of Manipur Rifles, one cannot reasonably think that he must be knowing about the relevant rules of the Departmental Inquiry and also about the proper steps required to be taken for his defence. The petitioner was only a Rifleman at the relevant time and he, being in the lower rung of Manipur Rifles, one cannot reasonably think that he must be knowing about the relevant rules of the Departmental Inquiry and also about the proper steps required to be taken for his defence. Apparently, not knowing the effect or Consequences of statements of witnesses produced on behalf of the department when they were not subjected to cross examination, the petitioner did not cross-examine any of the witnesses. 5. In the similar facts and situation, in the above referred writ appeal, the Division bench held at para 9: 9. With regard to the question of providing, the defence assistant to the petitioners respondents during the enquiry, the records produced by the learned G.A. for the appellants show that in the inquiry proceeding, the writ petitioners were not afforded an opportunity of appointing their defence assistant. Although Rule 66 is silent about the appointment of the defence assistant, but the rule of natural justice requires that the writ petitioners cannot be allowed to be left undefendant before the Inquiry Officer. In the case in hand, all the writ petitioners are Havildars, Constables, Riflemen, etc. they are the lowest rank of the Manipur Rifles. The petitioners are not supposed to know about the provisions of the rules. It is incumbent on the part of the Inquiry Officer to afford minimum justice to inform them that they are entitled to appoint a defence assistant to defend their case. No such record is also available in the departmental enquiries that the Inquiry Officer has informed the petitioners of their right to appoint the defence assistant to represent their cases in the departmental inquiry. The petitioners respondents were not represented by defence assistant this has caused prejudiced to them resulting in miscarriage of justice. 6. The object underlying the rule of natural justice is to prevent miscarriage of justice and secure fair play in action. The fact that the statements of the witnesses were not cross-examined by the petitioner clearly shows that despite his denial of the charge against him, he was not knowing the effect of not cross-examining the said witnesses. Though in the counter-affidavit of the respondent Nos. 2 and 3, it is said that one defence witness, namely, Shri N. Kaikho Mao, Dy. Though in the counter-affidavit of the respondent Nos. 2 and 3, it is said that one defence witness, namely, Shri N. Kaikho Mao, Dy. Director (TD) was examined as a defence witness as prayed by the petitioner, the said statement is not found in the file. In my opinion, the petitioner was immensely prejudiced in his defence as a result of not appointing a Defence Assistance for his defence. The inquiry is vitiated for non-affording of reasonable opportunity of being heard and thereby for non-following of the principles of natural justice. 7. As observed in Khemchand v. Union of India (1959) ILLJ 167 SC, all that the Courts have to see is whether there was non observance of any of the principles of natural justice in a given case and whether the same has resulted in defeating the course of justice and that what principles of natural justice should be applied in a given case depends on the facts and circumstances of that case. In my considered view, in the facts and circumstances of the case, the petitioner was immensely prejudiced in his defence due to failure to provide sufficient opportunity for engaging a Defence Assistance. 8. It is also ascertained that not only the present petitioner but also five other Riflemen said to have been involved in the same occurrence were dismissed by the same impugned dismissal order dated 12.1.2001 passed by the Commandant of 9th Battalion, Manipur Rifles. One of the said Riflemen, namely, Okran Ningthemjao Singh filed W.P. (C) No. 252/2002 challenging the said dismissal order in so far as he was concerned. A single bench of this Court, vide common order dated 25.9.2002, disposed of the said W.P. (C) No. 252/2002 and other similar cases in favour of the concerned petitioners by dismissing the impugned dismissal orders and related orders of the appellate authority. Appeals filed against the said common orders of the Single Bench dated 25.9.2002 were dismissed by a Division bench of this Court vide order dated 18.4.2005 which has been already mentioned above. 9. In the present case also, the findings in the said Departmental Inquiry were made on the basis of the statement of witnesses who were never cross examined. Nor reasonable opportunity was provided to the petitioner for appointing a Defence Assistance for his defence. No Presenting Officer was appointed by the authority in connection with the inquiry. 9. In the present case also, the findings in the said Departmental Inquiry were made on the basis of the statement of witnesses who were never cross examined. Nor reasonable opportunity was provided to the petitioner for appointing a Defence Assistance for his defence. No Presenting Officer was appointed by the authority in connection with the inquiry. The proceeding of the said inquiry as against the petitioner was not proceeded fairly in as much as the same was made in-violation of the principles of natural justice. The findings made in the inquiry are hereby quashed. At the same time, the impugned orders, which were based on the said findings, are also hereby set aside and quashed. 10. Since the findings of the inquiry and the impugned dismissal order are not quashed on the ground that the charges against the petitioner have not been made out but on the finding that the proceedings have not been proceeded fairly and in compliance with the principles of natural justice. Nothing prevents the concerned authority from initiating a fresh inquiry against the petitioner in respect of the charges fairly and in compliance with the principles of natural justice within a reasonable time which is not to be more than four months from today. 11. If fresh Departmental Inquiry is held against the petitioner, he shall be treated as under suspension from the date of his first suspension and he shall be paid the subsistence allowances according to Rules. The subsistence allowances so far due shall be paid within a period of three months from today, if not paid earlier. If no such inquiry is initiated within the period prescribed, the petitioner is to be reinstated in his service with all the consequential benefits. 12. With this order and direction, this wit petition stands disposed of. 13. No order as to costs.