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Madhya Pradesh High Court · body

2008 DIGILAW 371 (MP)

Ram Prakash v. State of M. P.

2008-03-04

S.C.SHARMA

body2008
ORDER 1. The petitioner before this Court is working in the police department in the State of Madhya Pradesh. Initially, petitioner filed this petition before the State Administrative Tribunal and on abolition of the Tribunal, the matter stands transferred to this Court. 2. The petitioner has challenged the order dated 29th November, 1997 (Annexure A -13) passed by the Superintendent of Police, Gwalior by which he has been reverted from the post of Head Constable to the post of Constable and the order dated 5th February, 1998 passed by the Deputy Inspector General of Police, Gwalior (Annexure A -14) by which his appeal has been dismissed. It the case of the petitioner that the petitioner was initially appointed as Constable and by virtue of his excellent service record, he was promoted to the post of Head Constable vide order dated 16th November, 1996. 3. The petitioner while he was posted at the Police Station, Dabra on the directions of SDM, he accompanied one Shri Harkishore to his village Barotha. While, the petitioner was accompanying Harkishore, some miscreants assaulted him and he succumbed to the injuries. A preliminary enquiry was conducted by the SDOP, Dabra and the report was submitted on 12th March, 1997. On the basis of the preliminary enquiry report, a charge sheet was issued to the petitioner on 22nd March, 1997. It was alleged in the charge sheet that the petitioner has shown dereliction of the duties by way of not protecting one Harkishore on 16th November, 1996. The petitioner denied the charges levelled against him. The disciplinary authority not being satisfied with the reply filed by the petitioner directed for a departmental enquiry. The Enquiry Officer conducted the enquiry and examined large number of witnesses and finally submitted enquiry report to the Superintendent of Police, Gwalior. The Superintendent of Police, Gwalior has issued a notice to the petitioner on 12th November, 1997 (Annexure P-11) along with the enquiry report and the petitioner submitted reply to the said show cause notice and denied the charges levelled against him. The disciplinary authority, i.e., the Superintendent of Police holding guilt of the petitioner proved inflicted the punishment of reversion from the post of Head Constable to the post of Constable vide order dated 29th November, 1997. The disciplinary authority, i.e., the Superintendent of Police holding guilt of the petitioner proved inflicted the punishment of reversion from the post of Head Constable to the post of Constable vide order dated 29th November, 1997. The petitioner being aggrieved by the impugned order passed by the disciplinary authority preferred an appeal before the Deputy Inspector General of Police, Gwalior and the same was rejected vide order dated 5th February, 1998 (Annexure A-14). The petitioner in this petition has assailed the order passed by the disciplinary authority and the order passed by the appellate authority on various grounds. The first ground raised was that the appointing authority of the petitioner is the Deputy Inspector General of Police, and therefore, the entire action of issuing charge sheet and reversion of the petitioner from the post of Head Constable to the post of Constable is unsustainable. The second ground urged by the petitioner was that various other employees were also charged along with him, therefore, the competent authority should have passed an order under rule 18 of the Madhya Pradesh Civil Service (Classification, Control and Appeal) Rules, 1966 (hereinafter referred to as the CCA Rules of 1966) for holding a joint enquiry and as the same was not done, the entire enquiry proceeding against the petitioner is vitiated. It was further contended by the petitioner that the Enquiry Officer during the course of enquiry has acted as presenting officer and has examined and cross-examined the petitioner whereby acted as prosecutor, therefore, the entire enquiry stands vitiated. Besides the aforesaid grounds, it has also been alleged by the petitioner that the orders had been been passed by the competent authority without affording proper opportunity of hearing and without considering the evidence on record and the defence deposed during the enquiry by the petitioner. The petitioner has thus prayed for quashing the order of reversion passed by the disciplinary authority and the order passed by the appellate authority dismissing his appeal. 4. The respondents have filed a detailed return and it has been stated in the return that the petitioner was assigned the duty to escort for the safety of one Harkishore on the instructions of SDOP. 4. The respondents have filed a detailed return and it has been stated in the return that the petitioner was assigned the duty to escort for the safety of one Harkishore on the instructions of SDOP. However, while on duty, the petitioner has not discharged the duties effectively to protect the life of one Harkishore who succumbed to the injuries on account of gun shot fired by some miscreants, and therefore, the petitioner showed dereliction of duties. It has been further stated that a preliminary enquiry was conducted by the SDOP, and on the basis of the preliminary enquiry, the Superintendent of Police, Gwalior constituted the departmental enquiry. The respondents have further stated that the disciplinary enquiry has been conducted as per the provisions of law extending the principles of natural justice and the disciplinary authority found proved guilt of the petitioner, therefore rightly inflicted the punishment of reversion from the post of Head Constable to the post of Constable and the appeal also met dismissal. 5. Learned counsel were heard at length and perused the original record relating to the disciplinary proceedings. 6. The petitioner has raised various grounds before this Court assailing the order of reversion and the order passed by the appellate authority. It has been urged by the petitioner that no Presenting Officer was appointed by the disciplinary authority and the Enquiry Officer himself has acted as the Presenting Officer conducting the chief examination of prosecution witnesses and cross-examining the defence witnesses. The Enquiry Officer himself has conducted the examination and cross-examination of the petitioner. 7. From a bare perusal of the enquiry proceedings which took place before the Enquiry Officer, it is evident that the Enquiry Officer has acted as the Presenting Officer conducting the chief examination of the prosecution witnesses as well as cross-examination of the defence witnesses. The enquiry has been conducted examining and cross-examining the delinquent Government servant by the Enquiry Officer. 8. Rule 14 of the CCA Rules of 1966 provides procedure for imposing penalties. Relevant Rule 14 (5) (c) reads as under: "Where the disciplinary authority itself inquires into any article of charge or appoints an inquiring authority for holding an inquiry into such charge, it may, by an order, appoint a Government servant or a legal practitioner, to be known as the "Presenting Officer" to present on its behalf the case in support of the articles of charge." 9. The Presenting Officer appointed under Rule 14 (5) (c) of the CCA Rules of 1966 is in fact is a person appointed like a prosecutor and the person has to prove the misconduct before the Enquiry Officer. It is the Presenting Officer who conducts the chief examination of the prosecution witnesses as well as cross-examination of the defence witnesses. It is again the Presenting Officer who conducts the cross-examination of the delinquent Government servant in order to arrive at a finding of guilt. In the present case after going through the record minutely, it is evident that the Enquiry Officer has conducted the chief examination and he has conducted the cross-examination ofthe defence witnesses as well as cross-examined the delinquent Government servant. Thus, the Enquiry Officer himself has played the role of the prosecutor. 10. A Division Bench of this Court in the case of Union of India through its Secretary, Ministry of Railway, New Delhi and others v. Mohd. Naseem Siddiqui [ 2005 (1) LLJ 931 ] in paragraph 16 has held as under: We may summarise the principles thus: (i) The Inquiry Officer, who is in the position of a Judge shall not act as a Presenting Officer, who is in the position of a prosecutor. (ii) It is not necessary for the Disciplinary Authority to appoint. a Presenting Officer in each and every inquiry. Non-appointment of a Presenting Officer by itself will not vitiate the enquiry. (iii) The Inquiry Officer, with a view to arrive at the truth or to obtain clarifications, can put questions to the prosecution witnesses as also the defence witnesses. In the absence of a Presenting Officer, if the Inquiry Officer puts any questions to the prosecution witnesses to elicit the facts, he should thereafter permit the delinquent employee to cross-examine such witnesses on those clarifications. (iv) If the Inquiry Officer conducts a regular examination-in-chief by leading the prosecution witnesses through the prosecution case, or puts leading questions to the departmental witnesses pregnant with answers, or cross-examines the defence witnesses or puts suggestive questions to establish the prosecution case employee the Inquiry Officer acts as prosecutor thereby vitiating the inquiry. (iv) If the Inquiry Officer conducts a regular examination-in-chief by leading the prosecution witnesses through the prosecution case, or puts leading questions to the departmental witnesses pregnant with answers, or cross-examines the defence witnesses or puts suggestive questions to establish the prosecution case employee the Inquiry Officer acts as prosecutor thereby vitiating the inquiry. (v) As absence of a Presenting Officer by itself will not vitiate the inquiry and it is recognised that the Inquiry Officer can put questions to any or all witnesses to elicit the truth, the question whether an Inquiry Officer acted as a Presenting Ofticer, will have to be decided with reference to the manner in whcih the evidence is let in and recorded in the inquiry. Whether an Inquiry Officer has merely acted only as an Inquiry Officer or has also acted as a Presenting Officer depends on the facts of each case. To avoid any allegations of bias and running the risk of inquiry being declared as illegal and vitiated, the present trend appears to be to invariably appoint Presenting Officers, except in simple cases. Be that as it may. . 11. In the present case, it is evident from a perusal of the enquiry proceedings that no Presenting Officer was appointed by the disciplinary authority. The evidence on behalf of the disciplinary authority has been presented by the Enquiry Officer, by conducting a regular examination in-chief of prosecution witnesses by taking them through the prosecution case. The Enquiry Officer has also conducted in the present case regular cross-examination of the defence witnesses. The Enquiry Officer has also conducted the cross-examination of the delinquent Government servant. It is not a case where the Enquiry Officer in the absence of the Presenting Officer has simply put c1arificatory questions to the delinquent Government servant. 12. Thus, in the present case, the Enquiry Officer has acted as the Presenting Officer which is evident from the departmental enquiry proceedings, and therefore, relying upon the principle laid down by a Division Bench of this Court in the case of Union of India through its Secretary, Ministry of Railway, New Delhi and others (supra) and adverting to the sacred principle that no man can be a good judge of his own cause, the enquiry proceedings stand vitiated. Resultantly, the order of re,:.ersion dated 29th November, 1997 (Annexure A-13) passed by the disciplinary authority and the order passed by the appellate authority dated 5th February, 1998 (AnnexureA-14) are quashed. However, the respondents are free to resume the enquiry proceedings from the stage of appointing the Presenting Officer and conclude the disciplinary proceedings initiated against the petitioner in accordance with law. 13. Petition stands allowed and disposed of with the aforesaid. No order as to cost.