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2011 DIGILAW 22 (GAU)

Union of India v. Ram Lakhan Sharma

2011-01-10

A.C.UPADHYAY, UTPALENDU BIKAS SAHA

body2011
ORDER U.B. SAHA, J. 1. This writ appeal is preferred against the judgment and order dated 12.04.2010 passed by the learned Single Judge of this Court in WP(C) 14/2006 whereby and where under the learned Single Judge while allowing the writ petition filed by the Respondent-Petitioner set aside the order dated 19.03.2000 whereby and where under the Respondent-Petitioner was removed from service w.e.f. 19.03.2000 (AN) consequent to a disciplinary proceeding and also the order dated 22.07.2004 whereby and where under the appellate authority rejected the appeal preferred by the Respondent-Petitioner against the order of the disciplinary authority and the order of the revision authority dated 02.03.2005 wherein the revision authority rejected the revision petition filed against the order of the appellate authority. 2. Heard Mr. A Lodh, learned Asst. SG for the Appellant as well as Ms K Roy, learned Counsel for the Respondent-Petitioner. 3. Factual background of the case needed to be discussed is as follows: - The Petitioner was appointed to the post of Constable in the Central Reserve Police Force (for short, "CRPF") on 10.04.1991 and when he was working in the said capacity at Agartala on 23.10.1999 one Smt. Gita Rani Paul lodged an ejahar at the Airport PS alleging that the Respondent-Petitioner had committed rape on her at about 10.00 AM at Chinaihani under Airport PS. On receipt of the ejahar a criminal case was registered against the Respondent-Petitioner and upon investigation the investigating authority filed the charge sheet against the Respondent-Petitioner for the offence under Section 376 IPC. 4. While the criminal case was going on, vide order No. F.V.III-1/99-CII dated 23.10.1999 issued by the Commandant, 11 BN CRPF the Respondent-Petitioner was placed under suspension w.e.f. the date of issue of the said order in contemplation of a disciplinary proceeding against him. Vide another office order No. P.VIII-1/99-EC-II dated 04.12.1999 charge sheet was communicated to the Respondent-Petitioner for initiating a departmental inquiry against him. The charges labelled against the Respondent-Petitioner are as follows: - Charge-I That the Petitioner while functioning as constable (GD) has committed an offence of disobedience of order/misconduct in his capacity as a member of the force under Section 11(1) CRPF Act, 1949 in that he remained absent from lines from 0900 hrs to 09.30 hrs on 23.10.1999 from DIGP CRPF Agartala Office complex without proper permission of competent authority with consent of his Guard Commander. Charge-II That the Petitioner while functioning as constable (GD) has committed an act of misconduct in his capacity as a member of the force under Section11(1) CRPF Act, 1949 in that he tried to do sexual intercourse with an woman with mutual consent by given money which is an act of indiscipline/moral turpitude as a member of the force. 5. After framing of charge one Sri SS Bisht, Second-in-command, 11 BN CRPF was appointed as an Inquiry Officer vide office order No. PVIII/1/99-EC-II dated 18.12.1999 by the Disciplinary Authority, Commandant, 11 BN CRPF for conducting the said disciplinary proceeding against the Respondent. Admittedly, no Presenting Officer was appointed for the said disciplinary inquiry/proceeding against the Respondent. After completion of the inquiry the Inquiry Officer submitted his report on 15.01.2000 vide letter No. P.VIII-1/99-II-EC-2 dated 07.02.2000 stating that the charges against the Respondent-Petitioner were held proved. The disciplinary authority on the basis of the said report imposed penalty of removal from services exercising his power under Section 11(1) of the CRPF Act, 1949 read with Rule 27(A) of the CRPF Rule, 1955 upon the Respondent-Petitioner on 19.03.2000. 6. In the meantime, the Session Judge, West Tripura district, before whom the trial relating to the alleged offence committed by the Respondent-Petitioner was pending, passed the judgment and order on 20.09.2001 in Sessions Trial No. 127(W/T/A) of 2000 acquitting the Respondent from the charges labelled against him under Section 376 of the IPC for the incident alleged in the ejahar by Smt. Gita Rani Paul and the said order of acquittal ultimately reached finality. Thereafter, the Respondent-Petitioner challenged the order of the disciplinary authority dated 19.03.2000 wherein the Disciplinary Authority imposed penalty of dismissal from service to him before the Hon'ble High court of Allahabad by filing a writ petition which had been disposed of by the said High Court vide order dated 20.05.2004 directing the Respondent-Petitioner to file appeal under the CRPF Rules, 1955 before the appropriate authority within two weeks and the appellate authority was also further directed to decide the same by a reasoned and speaking order in accordance with law within a period of one month thereafter. 7. Pursuant to the order of the Allahabad High Court, as stated supra, the Respondent-Petitioner preferred appeal before the appellate authority which was ultimately dismissed on 22.07.2004. 7. Pursuant to the order of the Allahabad High Court, as stated supra, the Respondent-Petitioner preferred appeal before the appellate authority which was ultimately dismissed on 22.07.2004. Being aggrieved by the said order of the appellate authority, the Respondent preferred the revision petition before the revisional authority, Inspector General of Police, CRPF, Bihar Sector, Patna-14 (Bihar) which was again rejected vide order dated 02.03.2005. 8. Being aggrieved by the said order of the Disciplinary Authority dated 19.03.2000, order of the Appellate Authority dated 22.07.2004 and the order of the revisional authority dated 02.03.2005 as stated supra, the Respondent-Petitioner filed a writ petition before this Court for quashing those orders and also for a direction to the authorities to reinstate the Petitioner in the post held by him with all back wages. The said writ petition was registered as WP(C) 14/2006. 9. Upon hearing the learned Counsel for the parties, the learned Single Judge of this Court vide his judgment and order dated 12.04.2010 in the aforesaid writ petition allowed the petition of the Respondent/Petitioner wherein the aforesaid orders of the Disciplinary Authority, Appellate authority as well as the order of the Revisional Authority were set aside. Learned Single Judge while setting aside the orders of the Disciplinary Authority, Appellate authority and the Revisional Authority also directed the Respondents in that writ petition, who are Appellants herein, to reinstate the Respondent-Petitioner to his service within one month from the date of receipt of the certified copy of the judgment and order of the learned Single Judge and if the departmental proceeding is required to started afresh then the Petitioner shall be placed under suspension and during the period of suspension subsistence allowance should be paid to him and whether the arrear of pay and allowances would be paid to the Respondent-Petitioner or not was left to the wisdom of the authority. Being aggrieved by the aforesaid order of the learned Single Judge, the Appellants preferred the instant appeal. 10. Mr. Lodh while urging for setting aside the judgment of the learned Single Judge submits that the learned Single Judge committed gross error in not considering the CRPF Act and Rules which prescribe the detailed procedure to be followed in a disciplinary proceeding against a CRPF Personnel. He further contended that in the CRPF Rules there is no procedure prescribed for appointment of a Presenting Officer. He further contended that in the CRPF Rules there is no procedure prescribed for appointment of a Presenting Officer. Therefore, in absence of Presenting Officer the Inquiring Officer has the power to put the question on behalf of the Disciplinary Authority to the delinquent officer like the Respondent-Petitioner. According to him, Respondent/Petitioner was not prejudiced in any way for the action of the Inquiry Officer. 11. While responding to the submission of Mr. Lodh, Ms Roy placed reliance on the decision of the Apex Court which was referred by the learned Single Judge in his decision, particularly paragraphs 11 to 15 wherein the learned Single Judge taking note of the decision of this Court as well as the Apex Court elaborately discussed the question involved in the matter and not only that, his Lordship also took note of a case decided by this Court in Mutum Shantikumar Singh v. Union of India and Ors. reported in 2005 (1) GLT 413wherein it was held that though Rule 27 of the CRPF Rules, 1955 is silent on appointment or non appointment of a Presenting Officer it does not expressly exclude application of principle of natural justice and fair procedures and the principles of natural justice have to be read into rules unless law expressly or by necessary implication excludes the application of principles of natural justice and further held that non appointment of Presenting officer amounts to violation of principle of natural justice and in that given case appointment of Presenting Officer is a must in the disciplinary proceedings against the CRPF constable. 12. She further contended that the Inquiry officer in a disciplinary proceeding should not be allowed to act as a disciplinary authority or take the responsibility of the Presenting Officer. She further urges that even where Rule is silent so far the appointment of the Presenting Officer is silent in that case the Inquiry officer should ask the Disciplinary Authority to appoint a Presenting Officer to place the case of the Disciplinary Authority before the Inquiry Officer but he cannot act as an agent of the Disciplinary Authority while he is inquiring and recording the evidences in a disciplinary proceeding. She further contended that the judgment of the learned Single Judge is a well reasoned one and hence it is not necessary to interfered with by this Court. 13. She further contended that the judgment of the learned Single Judge is a well reasoned one and hence it is not necessary to interfered with by this Court. 13. She finally contended that admission of a writ appeal is not a matter of right like in a Civil First Appeal or a Criminal Appeal. Only when a prima facie case is made out for examining the judgment and order of the learned Single Judge, then only the Court of appeal can admit the appeal for hearing. In the instant case as the appeal failed to make out a prima facie case for examination, it would be proper on the part of this Court to dismiss the appeal at this stage. In support of her aforesaid contention she relied on a judgment of the division Bench of this Court which was delivered at the Principal Seat in WA 288/2010 in which one of us is a party (Saha J) wherein the Division Bench of this Court held that the admission of a writ appeal is not a right like the civil first Appeal or a Criminal Appeal but when a prima facie case is made out for examining the judgment and order of the learned Single Judge, then only the Court should admit the appeal for hearing. Even if the opinion of the learned single Judge is erroneous then also the Appellate court cannot interfere with the order of the learned Single Judge unless it is totally perverse and violative of the provisions of law. At the time of admission of the appeal, the appellate court should be more cautious to examine the prima facie merit of the appeal and when there is no prima facie merit in the appeal the Court should avoid admitting the same. 14. We have carefully gone through the judgment of the learned Single Judge wherein the learned Single Judge took note of the judgment of this Court as well as Apex Court, passed on the subject, inter alia, that even when the statute does not prescribe for appointment of a presenting officer in a disciplinary proceeding then also the same is required to fulfill the principle of natural justice. One of those cases is the case of Baharul Islam (CT) V. Union of India and Ors. One of those cases is the case of Baharul Islam (CT) V. Union of India and Ors. reported in 2001 (1) GLT 621 wherein while deciding the case of the Petitioner therein, the Court took note of the decision of the Apex court in the case of Dr. Rash Lal Yadav v. State of Bihar and Ors., 1994 (5) SCC 267 wherein the Apex Court laid down when and where the principle of natural justice would be applicable. 15. In the case of Dr. Rajyamalla Buzarbarua v. The Assam Administrative Tribunal and Ors. reported in 1983 LAB I.C. 1839, wherein it was held, inter alia, It appears that the Enquiry Officer himself questioned the delinquent officer before he inspective the documents he wanted to inspect. On the day of enquiry also it was the Enquiry Officer alone who put all the questions to the Petitioner. The delinquent officer was not asked as to whether he liked to examine witnesses in defence. No witnesses having been examined there was no question of the delinquent officer being given any opportunity to cross-examine. 16. In the instant case, it is the admitted position that the Inquiry Officer in absence of the Presenting Officer put all the questions to the delinquent officer, Respondent herein. Therefore, according to us the Inquiry Officer acted beyond his jurisdiction and when an authority acts beyond his jurisdiction and finally passes his report then on that report the Disciplinary Authority should not act, being the Inquiry Officer did not act independently as required under the statute. In the case of Punjab National Bank and Ors. Therefore, according to us the Inquiry Officer acted beyond his jurisdiction and when an authority acts beyond his jurisdiction and finally passes his report then on that report the Disciplinary Authority should not act, being the Inquiry Officer did not act independently as required under the statute. In the case of Punjab National Bank and Ors. v. Kunj Behari Misra, (1998) 7 SCC 84 while the Apex Court considered two appeals being Civil Appeal No. 1884 of 1993 and Civil Appeal No. 7433 of 1995 considering a common question, inter alia, that when the Inquiry officer, during the course of disciplinary proceedings, come to a conclusion that all or some of the charge's alleging misconduct against an official are not proved then can the disciplinary authority differ from that and give a contrary finding without affording any opportunity to the delinquent officer, noted that though the Punjab National Bank Employees (Discipline and Appeal) Regulations 1977 does not require an opportunity of being hearing being given to the delinquent officers if the Disciplinary Authority disagreed with the findings of the Inquiring Authority once the Inquiring Authority had given hearing to them but held that the principle of natural justice will have to be read into regulation. The Apex Court further held that even where the regulation does not require to give an opportunity of hearing to the delinquent the opportunity should be given in compliance of the principles of natural justice to the delinquent officer when the disciplinary authority disagrees with the findings of the Inquiry Officer. Here though the facts are not similar but the learned Single Judge considered the aforesaid case to show how and in what situation the employer is to provide the principle of natural justice to the delinquent officer. The relevant paragraphs of Punjab National Bank and Ors. (supra) which need to be reproduced are as follows: 7. The only contention urged by Shri V.R. Reddy, learned senior counsel for the Appellant, was that the Punjab National Bank Employees' (Discipline and Appeal) Regulations, 1977 (for short, "the Regulations") did not require and opportunity of being heard being given to the delinquent officers when the disciplinary authority disagreed with the findings of the enquiring authority once the enquiring authority had given a hearing to them. It was further submitted by the learned Counsel that the requirement of giving such a hearing could not be read into the said Regulations and no prejudice could be said to have been caused to the Respondents inasmuch as the enquiring authority had given full opportunity to them. 19. The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7(2). As a result thereof, whenever the disciplinary authority disagrees with the enquiry authority on any article of charge, then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the enquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favorable conclusion of the enquiry officer. The principles of natural justice, as we have already observed, require the authority which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer. 17. It appears from the impugned judgment and order that the learned Single Judge also took note of Union of India v. HC Goel, AIR 1964 SC 364 and Moni Shankar v. Union of India, 2008 3 SCC 484 wherein the Apex Court held that a departmental proceeding is a quasi-judicial one proceeding and the Inquiry Officer performs a quasi judicial function. Although the provisions of evidence Act are not applicable in such proceedings, principles of Natural Justice are required to be complied with. The apex Court, in the case of Roop Singh Negi v. Punjab National Bank and Ors. reported in (2009) 2 SCC 570 while considering the case of the Appellant Roop Singh Negi who was working as a peon in the Respondent-Bank also noted that the tenor of the report demonstrates that the Inquiry officer had made up his mind to find the Appellant guilty as otherwise he would not have proceeded on the basis that the offence was committed in such a manner that no evidence was left. It would be profitable to reproduce the paragraphs 15, 16 and 17 of the Roop Singh Negi (supra) as the same was also reproduced by the learned Single Judge in his judgment. Accordingly, those paragraphs are reproduced herein under for better appreciation: - 15. We have noticed hereinbefore that the only basic evidence whereupon reliance has been placed by the enquiry office was the purported confession made by the Appellant before the police. According to the Appellant, he was forced to sign on the said confession, as he was tortured in the police station. The Appellant being an employee of the Bank, the said confession should have been proved. Some evidence should have been brought on record to show that he had indulged in stealing the bank draft book. Admittedly, there was no direct evidence. Even there was no indirect evidence. The tenor of the report demonstrates that the enquiry officer had made up his mind to find him guilty as otherwise he would not have proceeded on the basis that the offence was committed in such a manner that no evidence was left. 16. In Union of India V. HC Goel it was held: (AIR 369 70 , paras 22-23) 22....... The two infirmities are separate and distinct though, conceivably, in some cases both may be present. There may be cases of no evidence when where the Government is acting bona fide; the said infirmity may also exist where the Government is acting mala fide and in that case, the conclusion of the Government not supported by any evidence may be the result of mala fides but that does not mean that if it is proved that there is no evidence to support the conclusion of the Government, a writ of certiorari will not issue without further proof or mala fides. That is why we are not prepared to accept the learned Attorney General's argument that since no mala fides are alleged against the Appellant in the present case, no writ of certiorari can be issued in favour of the Respondent. 23. That taken us to the merits of the Respondent's contention that the conclusion of the Appellant that the third charge framed against the Respondent had been proved, is based on no evidence. 23. That taken us to the merits of the Respondent's contention that the conclusion of the Appellant that the third charge framed against the Respondent had been proved, is based on no evidence. The learned Attorney General has stressed before us that in dealing with this question, we ought to bear in mind the fact that the Appellant is acting with the determination to root out corruption, and so, if it is shown that the view taken by the Appellant is a reasonably possible view this Court should not sit in appeal over that decision and seek to decide whether this Court would have taken the same view or not. This contention is no doubt absolutely sound. The only test which we can legitimately apply in dealing with this part of the Respondent's case is, is there any evidence on which a finding can be made against the Respondent that Charge 3 was proved against him? In exercising its jurisdiction under Article 226 on such a plea, the High Court cannot consider the question about the sufficiency or adequacy of evidence in support of a particular conclusion. That is a matter which is within the competence of the authority which deals with the question; but the High Court can and must enquire whether there is any evidence at all in support of the impugned conclusion. In other words, if the whole of the evidence led in the enquiry is accepted as true, does the conclusion follow that the charge in question is proved against the Respondent? This approach will avoid weighing the evidence. It will take the evidence as it stands and only examine whether on the evidence legally the impugned conclusion follows or not. Applying this test, we are inclined to hold that the Respondent's grievance is well founded, because, in our opinion, the finding which is implicit in the Appellant's order dismissing the Respondent that Charge 3 is proved against him is based on no evidence. 17. In Moni Shankar v. Union of India this Court held: (SCC p. 492 Para 17) 17. The departmental proceeding is a quasi-judicial one. Although the provisions of the Evidence Act are not applicable in the said proceeding, principles of natural justice are required to be complied with. 17. In Moni Shankar v. Union of India this Court held: (SCC p. 492 Para 17) 17. The departmental proceeding is a quasi-judicial one. Although the provisions of the Evidence Act are not applicable in the said proceeding, principles of natural justice are required to be complied with. The courts exercising power of judicial review are entitled to consider as to whether while inferring commission of misconduct on the part of a delinquent officer relevant piece or evidence has been taken into consideration and irrelevant facts have been excluded there from. Inference on facts must be based on evidence which meet the requirements of legal principles. The Tribunal was, thus, entitled to arrive at its own conclusion on the premise that the evidence adduced by the Department, even it is taken in its face value to be correct in its entirety, meet the requirements of burden of proof, namely, preponderance of probability. If on such evidences, the test of the doctrine of proportionality has not been satisfied, the Tribunal was within its domain to interfere. We must place on record that the doctrine of unreasonableness is giving way to the doctrine of proportionality. 18. We are of the further opinion that in various disciplinary proceedings the statutory authority is working like an administrative authority when they have to act independently and discharge their duty as the statute prescribed applying their judicial mind. It is a settled position of law that the disciplinary proceeding is a quasi-judicial proceeding and the Inquiry Officer while acting in a disciplinary proceeding is to act like a judicial authority. We are of the further opinion that the Inquiry Officer should not act either for the Disciplinary Authority or for the delinquent officer. He is to act independently to take the inference of facts which is placed before him by the parties. He should not put questions like a Presenting Officer to the delinquent officer to prove the charges labelled against the delinquent officer. From such action of the inquiring officer it can be easily said that the inquiring officer is to the extent biased to the delinquent officer, which is unwarranted in law. He should not put questions like a Presenting Officer to the delinquent officer to prove the charges labelled against the delinquent officer. From such action of the inquiring officer it can be easily said that the inquiring officer is to the extent biased to the delinquent officer, which is unwarranted in law. If the statutory authority acted beyond the power vested on him then where the delinquent officer will go except to the Court of law, which course really has been taken by the Respondent-writ petition to prove the biasness of the inquiring officer in the writ petition and ultimately succeeded. 19. In view of the above, we are of the opinion that the learned Single Judge did not commit any error while deciding the matter and no interference is called for. 20. Hence, the writ appeal is dismissed being devoid of merit. No order as to costs. Appeal dismissed.