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2009 DIGILAW 163 (GAU)

Yomka Sora v. State of Arunachal Pradesh

2009-03-03

P.K.MUSAHARY

body2009
JUDGMENT P.K. Musahary, J. 1. Heard Mr. R. Saikia, learned Counsel for the petitioner and Ms. G. Deka, learned Addl. Senior Government Advocate for the respondent authorities. 2. The material facts, in short, for the purpose of disposal of this case are as follows: The writ-petitioner was appointed as Constable in the year 1988 and was promoted to the post of Head Constable in the year 1997. While he was serving so in the establishment of 2nd AAPBn, a group of Head Constables, Naik and Constables including the petitioner, were nominated and directed to proceed to Harchura (Assam) for undergoing training in field tactics of Jungle Warfare and Counter insurgency Operations w.e.f. 7.5.2007-2.6.2007. At that relevant point of time, the petitioner was facing some personal difficulties as his wife deserted him leaving behind 4 minor children with him and he was not in a position to move for the aforesaid training and, therefore, he made a representation dated 25.6.2007 through proper channel before the Commandant, 2nd Bn. BHQ, Aalo, and requested to exempt him from undergoing the said training. The said request on being rejected, the petitioner approached the Deputy Inspector General of Police (Bn.), Government of Arunachal Pradesh, Itanagar (respondent No. 3 herein), by filing a representation dated 29.6.2007 for cancellation of his nomination for the said Counter Insurgency (C.I.) Course but no decision in this regard, was communicated to the petitioner. Thereafter, a Memorandum dated 18.7.2007 under No. DE-012/2nd/Bn/YS/07 was served upon the writ-petitioner stating therein that an inquiry is proposed to be held and directed him to submit, within 10 days, a written statement of his defence to the inquiry authority. The Disciplinary Authority appointed one Sri Reli Loyi, A/C, 2nd Bn, Aalo, as Inquiry Officer vide order dated 19.7.2007. The writ petitioner submitted his written statement on 30.7.2007 to the respondent Commandant. The inquiry proceeding was, thus, initiated and after completion of the said inquiry, the Inquiry Officer submitted his report on 2.8.2007. The Inquiry Officer came to a conclusion that the writ-petitioner did not proceed with the party for training at Harchura, Assam, and remained absent without any intimation and permission of the authority and the same has been proved in the inquiry proceeding. The Inquiry Officer came to a conclusion that the writ-petitioner did not proceed with the party for training at Harchura, Assam, and remained absent without any intimation and permission of the authority and the same has been proved in the inquiry proceeding. On the basis of the said Inquiry Report, the Disciplinary Authority vide order dated 23.08.2007, imposed upon the petitioner penalty of reduction in rank from Head Constable to Naik for a period of 3 years with cumulative effect and after expiry of 3 years, he could be restored back to the rank of Head Constable subject to improvement of his conduct, performance and discipline. It was also ordered that the petitioner shall earn future normal increment of Naik during his reverted period. On receipt of the aforesaid penalty order, the petitioner filed a statutory appeal dated 29.9.2007 before the Deputy Inspector General of Police (Bn.), Government of Arunachal Pradesh, Itanagar, but the same was rejected vide order dated 4.12.2007 upholding the punishment awarded by the Disciplinary Authority, The writ-petitioner is thus, before this Court challenging the aforesaid order dated 23.8.2007 whereby penalty of reduction in rank, as aforesaid, was awarded by the Disciplinary Authority and also order dated 4.12.2007 whereby the petitioner's statutory appeal was rejected by the Deputy Inspector General of Police (Bn.). 3. The challenge of the writ-petitioner, according to Mr. Saikia, learned Counsel for the petitioner, is confined to the irregularity and illegality committed by the Disciplinary Authority in conducting the Inquiry Proceeding against the petitioner. It is submitted by the learned Counsel that the Disciplinary Authority, though no doubt appointed the Inquiry Officer, did not appoint a Presenting Officer to present the documents before the Inquiry Officer during the Inquiry Proceeding as required under the existing Rules. The petitioner was also not provided with the Defence Assistant to assist him during the course of inquiry. The delinquent official being a plain policeman in the lowest rank, according to Mr. Saikia, learned Counsel, was not aware of his right to claim for the Defence Assistant and the requirement of appointment of a Presenting Officer for which the petitioner could not make any representation and/or request to the Disciplinary Authority for appointment of such Presenting Officer and Defence Assistant. Saikia, learned Counsel, was not aware of his right to claim for the Defence Assistant and the requirement of appointment of a Presenting Officer for which the petitioner could not make any representation and/or request to the Disciplinary Authority for appointment of such Presenting Officer and Defence Assistant. But it is the duty of the Disciplinary Authority or for that matter, the Inquiry Officer to apprise the delinquent about the right of having the service of a Defence Assistant. The Disciplinary Authority having failed to appoint the Presenting Officer and provide the opportunity of having the assistance of a Defence Assistant to the delinquent writ-petitioner, has vitiated the entire Inquiry Proceeding so conducted by the respondents and on that ground alone, the impugned punishment order dated 23.8.2007, is liable to be set aside and consequently, the order of the Deputy Inspector General of Police (Bn.) dated 4.12.2007 rejecting the writ-petitioner's statutory appeal should also be quashed. 4. Moreover, it is submitted by Mr. Saikia, learned Counsel for the petitioner, that the Inquiry Officer arrived at a conclusion that the misconduct alleged against the writ-petitioner stood proved without considering the relevant materials on record, particularly without considering his first representation dated 25.6.2007 submitted before the respondent Commandant and the second representation dated 29.6.2007 submitted before the Deputy Inspector General of Police (Bn.), Government of Arunachal Pradesh, Itanagar, wherein all the genuine difficulties of the writ-petitioner were apprised and a request for exemption from the said training was also made therein. Therefore, the learned Counsel contends that it is not correct to say that the petitioner remained absent from the aforesaid training without any intimation and/or without any authority. The learned Counsel further contends that this fact has been recorded in the findings of the Inquiry Officer wherein it was also recorded that the petitioner's request for such exemption was rejected by the Commandant, 2nd Bn., Aalo, and necessary order from the Deputy Inspector General of Police, Itanagar, in this regard, was awaited. 5. On the contrary, it is submitted by Ms. Deka, learned Addl. Senior Government Advocate that appointment of a Presenting Officer is not a mandatory requirement and any inquiry conducted and punishment awarded to the delinquent official cannot be vitiated on the ground of non-appointment of a Presenting Officer. 5. On the contrary, it is submitted by Ms. Deka, learned Addl. Senior Government Advocate that appointment of a Presenting Officer is not a mandatory requirement and any inquiry conducted and punishment awarded to the delinquent official cannot be vitiated on the ground of non-appointment of a Presenting Officer. So far the allegation of not affording any chance to the petitioner for appointing/ engaging a Defence Assistant is concerned, it is submitted by Ms. Deka, learned Addl. Senior Government Advocate that on 26.7.2007, at the initial stage of the Inquiry Proceeding, the petitioner was informed that he is at liberty to engage a legal assistant and to produce witness in his favour in connection with the said Inquiry Proceeding. She further submits that the petitioner was also asked to submit his reply and produce the list of witnesses, etc., within 5 days, but the petitioner did not avail the said opportunity so offered by the Disciplinary Authority. The aforesaid Notice/Communication dated 26.7.2007, has been shown before this Court from the connected record produced by the learned Government Advocate. Since the petitioner, according to Ms. G. Deka, learned Addl. Senior Government Advocate, did not avail the opportunity so offered, the petitioner now, therefore, cannot make any grievance that the chance of engaging a Defence Assistant was not provided to him and he also cannot make a submission to the effect that the Inquiry Proceeding is liable to be quashed on that score as the same is not legally tenable. 6. I have perused the records produced by the learned Addl. Senior Government Advocate and also gone through the averments made in the counter affidavit filed by the respondent authorities. In the instant case, I am not examining the legality, validity or correctness of the impugned award and/or the order rejecting the statutory appeal but preferring to examine the decision making process, i.e., as to whether the disciplinary authority, while conducting the inquiry proceeding, complied with the statutory requirements and principles of natural justice. 7. I have closely scanned the records submitted by the learned Addl. Senior Government Advocate. From the records, it does not reflect at all that at any stage, before the inquiry proceeding started or after the Inquiry Officer was appointed, the disciplinary authority ever contemplated to appoint any Presenting Officer to present the documents before the Inquiry Officer during the said inquiry proceeding. Senior Government Advocate. From the records, it does not reflect at all that at any stage, before the inquiry proceeding started or after the Inquiry Officer was appointed, the disciplinary authority ever contemplated to appoint any Presenting Officer to present the documents before the Inquiry Officer during the said inquiry proceeding. No averment has also been made in the affidavit-in-opposition filed by the respondent authorities that a Presenting Officer was actually appointed. It is, therefore, the admitted position that no Presenting Officer was appointed in the matter at hand. Similarly, in regard to appointment of a Defence Assistant, it is also the admitted position that although notice was given to the petitioner regarding appointment of a Defence Assistant, he was, however, not apprised of the fact that he has a right to appoint a Defence Assistant to defend his case. It is also the admitted position that the Government of Arunachal Pradesh follows the Central Civil Services (Classification, Control and Appeal) Rules, 1965, in the matter of conducting inquiry proceeding. Rule 11(5)(c) of the aforesaid Rules provides for appointment of an Inquiry Officer as well as a Presenting Officer. It is, therefore, a statutory requirement. Even if such requirement is not provided specifically in the Rules, the principles of natural justice demands appointment of a Presenting Officer. It is because, in case where a Presenting Officer is not appointed, the Inquiry Officer becomes a prosecutor and a Judge himself. This is not at all permissible under the law and for the sake of a fair inquiry, the appointment of a Presenting Officer is made mandatory and statutory requirement under the Rules. In this regard, a Division Bench of this Court, has settled the law in the State of Manipur v. Chongtham Homendro Singh (2005) 2 GLJ 568, wherein it is held as under: ...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. 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 assume the role of the Judge as well as Prosecution. 8. In view of the above position, I am not inclined to accept the submissions made by Ms. G. Deka, learned Addl. Senior Government Advocate to the effect that the appointment of Presenting Officer is not mandatory and for that matter, the inquiry conducted cannot be vitiated. 9. Having found that the disciplinary authority conducted the inquiry without appointing any Presenting Officer, the principles of natural justice have been violated inasmuch as the mandatory requirement under the Central Civil Services (Classification, Control and Appeal) Rules, 1965, have been violated in conducting the appeal/inquiry proceeding. There is sufficient ground to hold that the inquiry proceeding so conducted is vitiated and consequently, the impugned punishment order dated 23.8.2007 and the rejection of statutory appeal by the appellate authority vide order dated 4.12.2007, cannot be allowed to stand. The inquiry proceeding, the impugned punishment order dated 23.8.2007 and the impugned order dated 4.12.2007 passed by the appellate authority rejecting the appeal, are therefore, liable to be quashed and the same are, accordingly, quashed. It is further directed that the writ petitioner shall be retained to the post of Head Constable with all consequential benefits. However, it is provided that the respondent authorities are left with liberty to initiate fresh inquiry from the stage of evidence, against the writ petitioner, if so advised, in accordance with law, established procedure and principles of natural justice. 10. With the above observations and directions, this writ petition stands allowed to the extent as indicated above. There shall be no order as to cost. Petition allowed