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2012 DIGILAW 748 (GAU)

Tirtha Nath Das v. State of Assam

2012-06-15

ADARSH KUMAR GOEL, C.R.SARMA

body2012
JUDGMENT C.R. Sarma, J. 1. The judgment and order, dated 27.3.2009, passed by a learned Single Judge of this Court, in WP(C) 4705/2003, is in challenge in this appeal. The appellant, as writ appellant, by preferring the said writ petition, challenged the order, dated 19.12.1999, issued by the Superintendent of Police, Dibrugarh, whereby and whereunder the writ appellant was dismissed from service, following a regular departmental proceeding, held against him. By issuing the first show cause notice in the said departmental proceeding No. 13/1998, initiated against the appellant, the Superintendent of Police, Dibrugarh, vide charge memo dated 3.10.1998, alleged that, on 16.9.1998, the writ appellant, along with three Sub-Inspectors, three Armed Constables and five Unarmed Constables were entrusted with duty to check vehicles at the Madhupur Tiniali, in connection with anti insurgency operation. It has been alleged that, at about 5.40 P.M., two unidentified youths, who were riding a motor cycle, were stopped by Sub-Inspector Shri Khagen Konwar, Officer-in-charge Duliajan Police Station and Sub-Inspector Shri Pranab Buragohain and on being so intercepted, the said youths opened fire on the police party, as a result of which Sub-Inspector Shri Khagen Konwar and Sub-Inspector Shri Pranab Buragohain sustained bullet injuries. 2. In the first charge, brought against the appellant, it has been charged that, while the appellant, along with Sub-Inspector Haresh Kumar Borgohain and three other constables, were standing at a distance of about 15 metres from the place of occurrence, for the purpose of protecting the officers, on duty, despite opening of fire, by the miscreants, at the Police party, on duty, the appellant failed to retaliate by firing even a single shot, as a result of which the assailants could escape, on foot, leaving behind their motor cycle. It has been charged that the said acts/lapses, on the part of the appellant, amounted to gross negligence of duty, gross misconduct and dereliction of duty. In the second charge, brought against the appellant, it has been alleged that, while both the injured officers were lying injured, on the ground, the appellant, instead of taking any initiative for taking them for treatment, left the place of occurrence, along with S.I. Haresh Kumar Borgohain and few other constables in their vehicle, bearing registration No. AS 06A/3055, out of fear. It has been alleged in the charge memo that the said act, on the part of the appellant amounted to serious negligence of lawful duty and cowardice, for which it was undesirable to retain him in the Force. With the said charge memo, a list of witnesses and a list of documents, in support of the charges, brought against the appellant, were furnished to him. On receipt of the said charge memo, the appellant submitted his reply taking the defence, therein, that at the relevant time he was performing his duty at a distance of 50 yards from the place of incidence and that hearing sound of gun fire, though he had pointed his firearm towards the place of occurrence, due to darkness and also obstruction, could not take appropriate aim to fire through his weapon. In reply to the second charge, the appellant stated that, he along with other constables, rushed to the place of occurrence, put the injured Sub-Inspector Shri Khagen Konwar, Officer-in-charge Duliajan Police Station and Sub-Inspector Shri Pranab Buragohain into a Gypsy vehicle and, on being directed by Sub-Inspector Shri Khagen Konwar, Officer-in-charge Duliajan Police Station, he along with others, went ahead in the second Police vehicle (Venet) to clear the road towards Duliajan Hospital, where the injured Police Officers were taken in the Gypsy. According to the appellant, he along with other Constables and Sub-Inspector Haresh Kumar Borgohain, proceeded to the Duliajan Hospital, followed by the vehicle carrying injured Sub-Inspector Shri Khagen Konwar, Officer-in-charge Duliajan Police Station and Sub-Inspector Shri Pranab Buragohain. 3. The reply to the said show cause notice, not been found to be satisfactory, Mr. Imran Hussain Bora, the then Additional Superintendent of Police, Dibrugarh, was appointed as the Enquiry Officer for holding an enquiry, on the charges, brought against the appellant. The appellant also participated in the said enquiry and raised certain grievances with regard to the manner in which the enquiry was conducted. At the close of the enquiry, the report was submitted by the Enquiry Officer holding that both the charges were proved. Accordingly, the appellant was furnished with a copy of the enquiry report asking him to show cause as to why the same should not be accepted. On consideration of the reply, submitted by the appellant on 6/7/1999, the Superintendent of Police, Dibrugarh, by his order dated 19.12.1999 imposed penalty of dismissal from service. 4. Accordingly, the appellant was furnished with a copy of the enquiry report asking him to show cause as to why the same should not be accepted. On consideration of the reply, submitted by the appellant on 6/7/1999, the Superintendent of Police, Dibrugarh, by his order dated 19.12.1999 imposed penalty of dismissal from service. 4. Aggrieved by the said penalty of dismissal, the appellant preferred an appeal before the Appellate Authority and the Appellate Authority, by an order dated 12.11.2002, dismissed the appeal. 5. Dissatisfied with the said order of the Appellant Authority, the appellant, as the writ appellant, filed the writ petition aforesaid, contending, therein, that the appellant was not allowed to cross-examine the witnesses examined in support of the charges, that he was not allowed to lead defence evidence, that no Presenting Officer was appointed to present the case against the appellant, that the appellant was not allowed to avail the services of a defence assistant, that additional witnesses, whose names did not appear in the list, were examined in support of the charges. 6. The respondents contested the said claim, made by the appellant, by filing an affidavit in opposition contending, therein, that all necessary opportunities to cross-examine the witnesses, examined in support of the charges, were afforded to the appellant. 7. Having heard the learned counsel, appearing for both the parties and perusing the original records, more particularly the statements of the witnesses examined, the learned Single Judge found that all the witnesses, examined in support of the charges, were offered for cross-examination by the appellant, but the appellant declined to cross examine the witnesses. Perusing the order sheet maintained by the Enquiry Officer, the learned Single Judge found that all the witnesses were examined in presence of the appellant and the appellant was granted opportunity to adduce defence evidence, which opportunity was not availed by the appellant. Both the parties submitted additional affidavit, in support of their counter claims. As observed by the learned Single Judge, the respondents, in their additional affidavit, averred that in respect of the same incident separate departmental proceedings were drawn up against other persons, involved and all the proceedings were conducted simultaneously by the same Enquiry Officer. Both the parties submitted additional affidavit, in support of their counter claims. As observed by the learned Single Judge, the respondents, in their additional affidavit, averred that in respect of the same incident separate departmental proceedings were drawn up against other persons, involved and all the proceedings were conducted simultaneously by the same Enquiry Officer. It was also found by the learned Single Judge that the Enquiry Officer recorded the statement of the witnesses at one time with adequate copies of such statements and placed copies of such statements in the records of the individual departmental proceedings against each delinquent officer, after obtaining their respective signatures on such copies. 8. The petitioner, in his additional affidavit, alleged that the witnesses were examined by the Enquiry Officer asking the delinquent officers to wait outside the office and after recording the statements of the witnesses, the delinquent officers were called one by one and, thereafter, they were asked to sign on papers, which were at times in original and at times copies of the originals. It has also been alleged, in the said additional affidavit, that signatures were taken some times on blank papers and some times signatures were obtained, while the appellant was in Police Reserve. 9. Having heard the learned counsel, appearing for both the parties and considering the materials on record, the learned Single Judge, relying on the decision of the Supreme Court held in the case of State Bank of Patiala & Ors. Vs S.K. Sharma, reported in (1996) 3 SCC 364 , came to the findings that no prejudice was caused to the appellant in the said departmental proceeding. The learned Single Judge also held that the contention of the appellant, that the enquiry got vitiated on account of failure of the disciplinary authority to appoint a Presenting Officer cannot be accepted. In view of the said decision of the Apex Court, the learned Single Judge also held that the ground urged, with regard to examination of witnesses as well as alleged denial of the services of Defence Assistance, to the appellant, cannot be accepted. With regard to the allegation of not allowing to cross-examine the witnesses and lead defence evidence, the learned Single Judge found that the said allegations stood belied by the record of the enquiry proceeding i.e. order sheet maintained by the enquiry officer. With regard to the allegation of not allowing to cross-examine the witnesses and lead defence evidence, the learned Single Judge found that the said allegations stood belied by the record of the enquiry proceeding i.e. order sheet maintained by the enquiry officer. Considering the entire aspect of the matter, the learned Single Judge held that there was no merit in the writ petition. Accordingly, the writ petition was dismissed without cost. 10. Aggrieved by the said judgment and order, the writ appellant, as appellant, has come up with the present appeal. It is the contention of the appellant that the learned Single Judge failed to appreciate that, in view of Rule 9 (5) of the Rules, the appointment of a Presenting Officer is a mandatory requirement and that the Government servant is entitled to get the assistance of any other Government servant and that failure to comply with the said provision has caused prejudice to the delinquent officer and as such the impugned judgment and order is liable to be interfered with. It has also been contended, by the appellant, that the learned Single Judge failed to consider and appreciate that the witnesses were examined keeping the delinquent officer outside the office of the Enquiry Officer and that they were called in to put their signatures on the papers, which were either in original or duplicate copy and that some times their signatures were taken on blank papers. The further contention of the delinquent officer was that the learned Single Judge failed to appreciate and consider that the delinquent officer was not allowed to cross-examine the witnesses and thus the principles of natural justice was violated. In view of the above, the appellant has prayed for setting aside the impugned judgment and order aforesaid as well as the orders dated 19/9/1999 and 17/11/2001, issued by respondent Nos. 3 and 5 and to pass order for reinstating the appellant with all service benefits, including back wages etc. 11. We have heard Mr. P. J. Saikia, learned counsel appearing for the appellant and Mr. A. Gogoi, learned Government Advocate. 3 and 5 and to pass order for reinstating the appellant with all service benefits, including back wages etc. 11. We have heard Mr. P. J. Saikia, learned counsel appearing for the appellant and Mr. A. Gogoi, learned Government Advocate. The learned counsel, for the appellant, taking us through the record has submitted that the learned Single Judge committed error by failing to appreciate that no specific charge was framed against the appellant, that the appellant was not given opportunity to cross-examine the witnesses and adduce defence evidence, that no Presenting Officer as well as Defence Assistance were appointed and that the witnesses were examined keeping the appellant outside the office of the Enquiry Officer and thereafter his signature was taken, some times in original or some times in duplicate copies. The learned counsel has argued that the said procedural error and noncompliance of the mandatory provision of Rule 9(5), which required appointment of a Presenting Officer, amounted to violation of the mandatory procedure and that the said lapse caused much prejudice to him. In view of the above, learned counsel, for the appellant, has prayed for setting aside the impugned judgment and order and the orders of dismissal, passed by the disciplinary authority and consequently to reinstate the appellant with all service benefits. 12. Resisting the said argument, advanced by the learned counsel for the appellant, the learned Government Advocate has submitted that the learned Single Judge, at the time of dismissing the writ petition, considered entire aspect of the matter and relying on the decision rendered by the Apex Court in the case of State Bank of Patiala (supra) rightly came to the conclusion that no prejudice was caused to the appellant and as such the appellant was not entitled to get the relief, claimed in the writ petition. Therefore, the learned Government Advocate has submitted that the impugned judgment and order needs no interference. 13. Therefore, the learned Government Advocate has submitted that the impugned judgment and order needs no interference. 13. Having heard the learned counsel for both the parties and perusing the materials on record, we find that the basic grievances, raised by the writ appellant/appellant, are that no Presenting Officer was appointed by the disciplinary authority to present the case of the disciplinary authority, that the appellant was not allowed to engage any defence assistant, that no specific charge was framed against the appellant, that additional witnesses were examined from outside the list, that the appellant/appellant was not allowed to cross-examine the witnesses and also to adduce defence evidence. It is also the contention of the appellant that the witnesses were examined, keeping the appellant outside the office Or the inquiry officer and, thereafter, his signature was taken, some times in original and some times in copy of the deposition. Those grounds were taken in the writ petition also, before the learned Single Judge. The learned Single Judge, perusing the record, which was placed before the Court, more particularly, the order sheets, maintained by the Enquiry Officer, found that all the witnesses were examined in presence of the appellant and the appellant was afforded the opportunity to adduce the defence witnesses, which opportunity was not availed of Therefore, the allegation regarding examination of the witnesses in the absence of the appellant, i.e. keeping him outside the office and subsequently taking his signature in the deposition, stood belied by the record. From the impugned judgment and order, it transpires that the learned counsel appearing for the appellant, after inspecting the record, contended, before the learned Single Judge, that some of the signatures of the appellant appeared in the original statement of the witnesses and some signatures appeared in carbon copy. A clarification being sought by the Court, the respondent filed an affidavit indicating, therein, that several departmental proceedings were drawn up against other persons, involved in the said incident and as all the proceedings were simultaneously conducted by the same Enquiry Officer, the statements of the witnesses were recorded at one time with adequate copies of such statement and that the copies of such statements were kept in the record of the respective departmental proceedings, against each delinquent, after obtaining their signatures in such copies. The said explanation, put forward by the respondents, was found to be acceptable, from the record it was found that the witnesses were examined in presence of the delinquent employee and that he declined to cross-examine the witnesses. Therefore, there is no force in the contention of the appellant that the witnesses were examined keeping him outside the office, without affording him opportunity of cross-examining the witnesses. Regarding failure of the disciplinary authority to appoint a Presenting Officer and the Enquiry Officer, himself, performing the role of the Prosecutor, the learned Single Judge relied on the following observation made by the Supreme Court in the case of State Bank of Patiala. 33. We may summaries the principles emerging from the above discussion. (These are by no means intended to be exhaustive and are evolved keeping in view the context of disciplinary enquiries and orders of punishment imposed by an employer upon the employee): (1) An order passed imposing a punishment on an employee consequent upon a disciplinary/departmental enquiry in violation of the rules/regulations/statutory provisions governing such enquiries should not be set aside automatically. The Court or the Tribunal should enquiry whether (a) the provision violated is of a substantive nature or (b) whether it is procedural in character. (2) A substantive provision has normally to be complied with as explained hereinbefore and the theory of substantial compliance of the test of prejudice would not be applicable in such a case. (3) In case of violation of a procedural provision, the position is this: procedural provisions are generally meant for affording a reasonable and adequate opportunity to the delinquent officer/employee. They are, generally speaking, conceived in his interest. Violation of any and every procedural provision cannot be said to automatically vitiate the enquiry held or order passed. Except cases falling under-"no notice", "no opportunity" and "no hearing" categories, the complaint of violation of procedural provision should be examined from the point of view of prejudice, vize. whether such violation has prejudiced the delinquent officer/employee in defending himself properly and effectively. If it is found that he has been so prejudiced, appropriate orders have to be made to repair and remedy the prejudice including setting aside the enquiry and/or the order of punishment. It no prejudice is established to have resulted therefrom, it is obvious, no interference is call of for. If it is found that he has been so prejudiced, appropriate orders have to be made to repair and remedy the prejudice including setting aside the enquiry and/or the order of punishment. It no prejudice is established to have resulted therefrom, it is obvious, no interference is call of for. In this connection, it may be remembered that there may be certain procedural provisions which are of a fundamental character, whose violation is by itself proof of prejudice in such cases. As explained in the body of the judgment, take a case where there is a provision expressly providing that after the evidence of the employer/government is over, the employee shall be given an opportunity to lead defence in his evidence, in a case, the enquiry officer does not give that opportunity in spite of the delinquent officer/employee asking for it. The prejudice is self-evident. No proof of prejudice, i.e., whether the person has received a fair hearing considering all things. Now, this very aspect can also be looked at from the point of view of directory and mandatory provisions, if one is so inclined. The principle stated under – (4) hereinbelow is only another way of looking at the same aspect as is dealt with herein and not a different or distinct principle. (4)(a) In the case of a procedural provision which is not of a mandatory character, the complaint of violation has to be examined from the standpoint of substantial compliance. Be that as it may, the order passed in violation of such a provision can be set aside only where such violation has occasioned prejudice to the delinquent employee. (b) in the case of violation of a procedural provision, which is of a mandatory character, it has to be ascertained whether the provision is conceived in the interest of the persons proceeded against or in public interest. It is found to be the former, then it must be seen whether the delinquent officer has waived the said requirement, either expressly or by his conduct. If he is found to have waived it, then the order of punishment cannot be set aside on the ground of the said violation. It is found to be the former, then it must be seen whether the delinquent officer has waived the said requirement, either expressly or by his conduct. If he is found to have waived it, then the order of punishment cannot be set aside on the ground of the said violation. If, on the other hand, it is found that the delinquent officer/employee has not waived it or that the provision could not be waived by him, then the Court or Tribunal should make appropriate directions (include the setting aside of the order of punishment), keeping in mind the appropriate adopted by the Constitution Bench in B. Karunakar. The ultimate test is always the same, vize., test of prejudice or the test of fair hearing, as it may be called. (5) Where the enquiry is not governed by any rules/regulations/statutory provisions and the only obligation is to observe the principles of natural justice or, for that matter, wherever such principles are held to be implied by the very nature and impact of the order/action-the Court or the Tribunal should make a distinction between a total violation of natural justice (rule of audi alteram partem) and violation of a facet of the said rule, as explained in the body of the judgment. In other words, a distinction must be made between "no opportunity" and no adequate opportunity, i.e., between "no notice"/"no hearing" and "no fair hearing", (a) In the case of former, the order passed would undoubtedly be invalid (one may call it 'void' or a nullity if one chooses to). In such cases, normally, liberty will be reserved for the Authority to take proceedings afresh according to law, i.e., in accordance with the said rule (audi alteram partem), (b) But in the later cases, the effect of vilation (of a facet of the rule of audi alteram partem) has to be examined from the standpoint of prejudice; in other words, what the Court or Tribunal has to see is whether in the totality of the circumstances, the delinquent officer/employee did or did not have a fair hearing and the orders to be made shall depend upon the answer to the said query. (It is made clear that this principle (No. 5) does not apply in the case of rule against bias, the test in which behalf are laid down elsewhere.) (6) While applying the rule of audi alteram partem (the primary principle of natural justice) the Court/tribunal/authority must always bear in the ultimate and overriding objective underlying the said rule, viz., to ensure a fair hearing and to ensure that there is no failure of justice. It is this objective which should guide them in applying the rule to varying situations that arise before them. (7) There may be situations where the interests of State or public interest may call for a curtailing of the rule of audi alteram partem. In such situations, the court may have to balance public/State interest with the requirement of natural justice and arrive at an appropriate decision. As observed by the learned Single Judge, the appellant petitioner at no point of time requested the authority to appoint a Presenting Officer indicating that failure to appoint a Presenting Officer would cause prejudice to him. Admittedly, as observed by the learned Single Judge, the appellant did not plead prejudice either in the writ petition or at the departmental proceeding. In view of the above, referring to said observation, made by the Supreme Court, in the case of State Bank of Patiala (supra), the learned Single Judge came to the findings that the appellant's plea, that failure to appoint a Presenting Officer vitiated the enquiry itself, cannot be accepted. There is nothing, on record, to show that failure to appoint a Presenting Officer caused any prejudice to the appellant. The record also does not support the contention that the appellant/writ appellant was denied the opportunity of engaging defence assistance. There is nothing to show that the appellant had asked for permission to engage a defence assistant and that such prayer was rejected. Further, as observed by the learned Single Judge, the appellant was given opportunity to cross-examine the witnesses, and he declined to do so. As the appellant declined to cross-examine the witnesses, it cannot be held that any prejudice was caused to him for not engaging a defence assistance and due to examination of additional witnesses, if any. Further, as observed by the learned Single Judge, the appellant was given opportunity to cross-examine the witnesses, and he declined to do so. As the appellant declined to cross-examine the witnesses, it cannot be held that any prejudice was caused to him for not engaging a defence assistance and due to examination of additional witnesses, if any. Therefore, no prejudice being caused to the appellant, in the teeth of the said Principles, held by the Supreme Court in the case of State Bank of Patiala (supra), the failure to engage Presenting Officer, defence assistant can't be held to be violation of any mandatory procedure, causing miscarriage of justice. Hence, there is no material to show there was violation of principles of natural justice. Therefore, in our considered opinion, the learned Single Judge committed no error by holding that failure to appoint a Presenting Officer as well as the alleged denial of the services of the Defence Assistant amounted to prejudice to the appellant. In view of the contention made in the charge memo, dated 3.10.1998 and the specific charges mentioned therein against the appellant, his plea that no specific charge was levelled against him cannot be accepted. It has also been contended, on behalf of the appellant, that SI Haresh Kumar Borgohain, a co-delinquent, who was also dismissed from service virtually on the same charges, had filed a writ petition, being WP(C) 2311/2000 and the same was allowed directing reinstatement of the said co-delinquent The learned Single Judge, perusing the judgment passed in the said writ petition, found that the same was allowed on the ground that the record of the departmental proceeding was not placed before the Court at the time of hearing of that case and as such, in absence of the records, the Court had no option but to come to the conclusion that the stand of the appellant, that the enquiry was held without giving him any opportunity of cross-examination and of adducing evidence in defence, stood established so as to warrant interference with the dismissal and to further direct for holding a de-novo enquiry. But, as observed by the learned Single Judge, in the case at hand, the records of the enquiry was placed before the Court and the learned Single Judge, perusing the records came to the findings that the witnesses were examined in presence of the writ appellant and that he was granted opportunity to cross-examine the witnesses, but the appellant declined to cross examine the witness, examined on behalf of the disciplinary authority. Hence the decision rendered in the said case does not help the appellant. 14. As observed by the Supreme Court in the case of Government of India & Anr. Vs. George Philip, reported in (2006) 13 SCC 1, the High Court, exercising jurisdiction under Article 226 of the Constitution is not hearing an appeal against the decision of the disciplinary authority imposing punishment upon the delinquent employee. The jurisdiction of High Court in exercising judicial review extends to the cases where there has been a substantial non-compliance with the rules or procedure or a gross violation of rules of natural justice, which has resulted in miscarriage of justice or that punishment is shockingly disproportionate. In the case at hand, as discussed above, there is nothing on record, to show that prejudice has been caused, resulting miscarriage of justice. That apart, considering the gravity of charge, brought and proved against the appellant, who was a member of a disciplinary force i.e. State Police, the punishment of dismissal from service does not appear to be shockingly disproportionate. In view of the above discussion and in the light of the decisions rendered by the Supreme Court in the above referred cases, we do not find it to be a fit case requiring interference by a writ court. Therefore, in our considered opinion, the learned Single Judge has rightly come to the conclusion that no prejudice was caused to the appellant requiring interference with (he impugned order of dismissal. Therefore, we find no merit in this appeal. Accordingly the appeal is dismissed. No costs. Appeal dismissed.