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2013 DIGILAW 465 (GAU)

Nandeswar Borah v. State of Assam and Ors.

2013-07-16

UJJAL BHUYAN

body2013
This writ petition has been filed by the petitioner for quashing of order dated 29.1.2001 passed by Commandant, 8th Assam Police Battalion, Abhayapuri in the district of Bongaigaon imposing the penalty of stoppage of three increments in the pay scale of Constable with cumulative effect as punishment for gross-misconduct and indisciplined behaviour with a warning to be careful in future. 2. Case of the petitioner is that at the relevant point of time he was serving as Constable in the Assam Police and was posted at 8th Assam Police Battalion, Abhayapuri. He was served with a show-cause notice dated 14.11.2000 issued by his disciplinary authority, i.e., the Commandant of the Battalion to show-cause under section 7 of the Police Act, 1861 read with rule 66 of the Assam Police Manual Part-Ill and article 311 of the Constitution of India as to why any of the penalties prescribed therein should not be inflicted on him for the charge brought against him. The allegation against the petitioner was that while he was detailed for duty at Gossaigaon Railway Station for railway security duty on 9.11.2000, during evening roll-call, he quarrelled with the platoon commander and gave him blows because of which the platoon commander sustained injuries requiring medical treatment. Petitioner was, therefore, charged with gross-misconduct and indisciplined behaviour. The show-cause notice was accompanied by statement of allegation, list of witnesses and list of documents to prove the charge. 3. Though petitioner submitted his show-cause reply denying the allegation, the disciplinary authority decided to draw-up departmental proceeding against the petitioner. By order dated 30.11.2000, ShriA.K. Modak, 21/C 8th Assam Police Battalion was appointed as the Enquiry Officer. 4. The Enquiry Officer thereafter conducted the enquiry and after conclusion of the same, submitted his report to the disciplinary authority holding that the charge against the petitioner stood proved beyond any doubt. 5. The disciplinary authority by his forwarding letter dated 3.1.2001 furnished a copy of the enquiry report to the petitioner with the observation that he agreed with the views of the Enquiry Officer and that he was of the tentative view that petitioner should be dismissed from service. 6. Petitioner submitted his representation taking the plea that the platoon commander was the aggressor and that he had acted only in self defence. Enquiry Officer did not examine this aspect of the matter. He, therefore, prayed for dropping of the proceeding. 7. 6. Petitioner submitted his representation taking the plea that the platoon commander was the aggressor and that he had acted only in self defence. Enquiry Officer did not examine this aspect of the matter. He, therefore, prayed for dropping of the proceeding. 7. Thereafter, the disciplinary authority passed the impugned order dated 29.1.2001 imposing the punishment as indicated above. 8. Aggrieved, petitioner has filed the present writ petition. 9. This court by order dated 21.9.2004 had admitted the writ petition and had called for the record of the case. 10. Respondent No.4, i.e., the disciplinary authority has filed affidavit. Stand taken in the said affidavit is that during enquiry in connection with the departmental proceeding drawn up against the petitioner, the charge of gross-misconduct and indisciplined behaviour on the part of the petitioner was proved beyond any doubt. Petitioner was granted reasonable opportunity to defend himself in the enquiry by the Enquiry Officer as well as by the disciplinary authority. During the enquiry, petitioner was informed and briefed about the charge and he cross-examined some of the prosecution witnesses. Punishment was imposed after due consideration of all relevant aspects and following the laid down procedure. There is no infirmity in the departmental proceeding as well as in the punishment imposed. 11. Heard Mr. M.H. Ahmed, learned counsel for the petitioner and Mr. J. Handique, learned Government Advocate, Assam. 12. Learned counsel for the petitioner has argued that the Enquiry Officer as well as the disciplinary authority failed to consider that it was the platoon commander who was the aggressor and that the petitioner had only acted in self defence. Failure to consider this aspect of the matter has vitiated the enquiry and the consequential punishment. He has also argued that the punishment of stoppage of three increments in the pay scale of Constable with cumulative effect is beyond the punishment prescribed in the Police Manual. Disciplinary authority cannot go beyond the punishment imposed. In support of his submission, Mr. Ahmed, learned Counsel for the petitioner has placed reliance on the decisions of the Apex Court in Hukam Chand Shyam Lal v. Union of India and Others, AIR 1976 SCC 789 and Haresh Dayaram Thakur v. State of Maharashtra and Others, (2000) 6 SCC 179 . On the other hand, learned Government Advocate has justified the imposition of penalty and has also produced the relevant record of enquiry. On the other hand, learned Government Advocate has justified the imposition of penalty and has also produced the relevant record of enquiry. He submits that there was no procedural impropriety in the departmental proceeding to warrant any interference by the court. The punishment imposed cannot also be said to be disproportionate to the gravity of the offence or shocking to the judicial conscience. Petitioner is a member of a disciplined force and he is required to maintain the highest standard of discipline. He, therefore, prays for dismissal of the writ petition. 13. Submissions made have been considered. Record produced has also been perused. 14. Assam Police Manual Volume-I Part-III deals with punishments, procedtire to be followed in awarding punishments and filing of appeal against order of punishment. Rule 66 provides for proceedings to be drawn up in case of major punishment. Withholding of increment or promotion is a major penalty. As per the procedure prescribed, no order of major punishment shall be passed unless the delinquent has been informed in writing of the grounds on which it is proposed to take action and has been afforded an adequate opportunity to defend himself. The grounds shall be reduced to the form of definite charge or charges based on the statement of allegation. The delinquent shall be given reasonable time to submit written statement of defence and to hear him in person, if he so desires. He will have the right to cross-examine the witnesses as well as to produce witnesses in his defence, including to give evidence by himself. The proceedings shall contain a sufficient record of the evidence and statement of the findings and the grounds thereof. As already noticed above, withholding of increment or increments is a major penalty. As per rule 68, there is a provision for appeal. 15. Though there is provision for appeal against an order imposing major penalty, petitioner did not prefer such appeal. However, on this ground, court would not like to non-suit the petitioner as a more fundamental and important issue has cropped up in this proceeding which the court would like to examine. Moreover, the writ petition was admitted for hearing way back on 21.9.2004 and, therefore, at this stage after rule having been issued, it would neither be fair nor justified to decline adjudication on this ground. 16. The charge against the petitioner has already been noticed above. Moreover, the writ petition was admitted for hearing way back on 21.9.2004 and, therefore, at this stage after rule having been issued, it would neither be fair nor justified to decline adjudication on this ground. 16. The charge against the petitioner has already been noticed above. Petitioner was given opportunity to show-cause and he submitted his show-cause reply, which was, however, not found satisfactory. In the enquiry, six prosecution witnesses were examined. Some of them were cross-examined by the petitioner. From the defence side two witnesses gave evidence. Statement of the petitioner was also recorded. After conclusion of the enquiry, Enquiry Officer submitted his report. The findings and conclusion of the Enquiry Officer are as under : "Findings: On careful analysis of the evidence both oral and documentary accumulated during the enquiry following facts now reveal: (1) Raising of complain on the roll-call on 9.11.2000 for non-availability of water in the engine/coach by the delinquent was very genuine. (2) Communicating the problem of water by the P.C. A.B.S.I. Gangadhar Borah to the higher authority or to the Station Master was also a fact. (3) The delinquent started altercation with the P.C. A.B.S.I. Gangadhar Borah on the problem of water and hit the PC. first (P/W-5). (4) During the altercation the PC. A.B.S.I. Gangadhar Borah caught hold on the chest of the delinquent first who was about to fall on the ground (D/W-1 & 2). (5) After return of the delinquent to the camp on the next, i.e., on 10.11.2000 some bandage was found at the finger of his foot (P/W-6). (6) Cause of injury sustained by the PC. on his eye was due to the blow given by the delinquent as stated by the PWs 5 and 6 while the cause of injury sustained by the delinquent on the finger of his foot was not known by any of the P/Ws & D/Ws. (7) Whatever might have been the provocation, the delinquent could have exercised his self control instead of hitting the P.C. on his eye and could have reported the matter of provocation to his other superior officers if so warranted. (8) The situation did not lead to endanger the life of the delinquent for which he exercised the so called right of private defence by hitting the PC. Conclusion : In summing up the above it now transpires that the charge leveled against the delinquent Const. (8) The situation did not lead to endanger the life of the delinquent for which he exercised the so called right of private defence by hitting the PC. Conclusion : In summing up the above it now transpires that the charge leveled against the delinquent Const. 338 Nandeswar Borah for gross misconduct and indisciplined behaviour has been proved beyond any doubt." 17. I have perused the record. From the record one thing becomes apparent. No Presenting Officer was appointed in the enquiry. 18. Question for consideration is what would be the effect of non-appointment of Presenting Officer on the enquiry and consequently on the departmental proceeding. 19. Though this issue was not argued by the learned counsel for the petitioner, court is of the view that this issue is of crucial importance having a definite bearing on the departmental proceeding itself. Moreover, this aspect has come out glaringly from the record and cannot be wished away. Further, the petitioner in his representation on the enquiry report dated 14.1.2001 had clearly taken this ground in paragraph 9 that the enquiry was conducted by the Enquiry Officer without the help of any Presenting Officer and the same has vitiated the enquiry. The disciplinary authority in his impugned order dated 29.1.2001, however, did not address this aspect of the matter. 20. Rule 66 of Assam Police Manual Volume-I Part-III, which lays down the procedure for imposition of major penalty, is silent about appointment of Presenting Officer. 21. A departmental enquiry is a quasi-judicial proceeding. Principles of natural justice, which includes a fair procedure, is inbuilt in such a proceeding. The Enquiry Officer has to discharge his function in a quasi-judicial manner. He has to act fairly and impartially. The role of the Presenting Officer is to present the case of the disciplinary authority before the Enquiry Officer. He is the representative of the disciplinary authority. He has to assist the Enquiry Officer by presenting before him the case of the disciplinary authority. His duty is to marshal the facts and examine and cross-examine the witnesses produced during the enquiry. It is he who has to produce and prove the listed documents during the enquiry and lead the oral evidence in support of the charge. Therefore, in the absence of the Presenting Officer, it is the Enquiry Officer who will have to produce the documents and present the witnesses. It is he who has to produce and prove the listed documents during the enquiry and lead the oral evidence in support of the charge. Therefore, in the absence of the Presenting Officer, it is the Enquiry Officer who will have to produce the documents and present the witnesses. In such a case, he will assume the role of the judge as well as that of the prosecutor, which will be a total negation of the avowed principles of natural justice and fair procedure. Absence of the Presenting Officer will certainly not be a fair procedure. 22. Rule 27 of the CRPF Rules, 1955, which deals with departmental proceeding in respect of CRPF personnel, also does not provide for appointment of Presenting Officer. 23. Examining rule 27 of the CRPF Rules, this court in the case of Mutum Shantikumar Singh v. Union of India and Others, 2005 (1) GLT 413 (2005) 3 GLR 243 held that rule 27 does not bar the competent authority from appointing a Presenting Officer in the disciplinary proceeding for conducting the same in a fair manner in accordance with the principle&of natural justice. After referring to various judicial pronouncements, it was held that in a departmental proceeding where no Presenting Officer is appointed, the Enquiry Officer assumes the role of the judge as well as prosecution inasmuch as in the absence of the Presenting Officer, the Enquiry Officer must examine the witnesses and exhibit the documents, which will be in total violation of the principles of natural justice. It was finally held that appointment of Presenting Officer is a must in a disciplinary proceeding against a CRPF Constable. In that case, because of non-appointment of Presenting Officer, the disciplinary proceeding against the petitioner, who was a Constable in the CRPF, leading to his dismissal, was declared as illegal and quashed. He was directed to be reinstated in service. 24. In Union of India and Others v. Ram Lakhan Sharma, 2011 (3) GLT 281, the issue before the court was removal from service of a CRPF Constable following a disciplinary proceeding, which was affirmed in appeal and revision. A Division Bench of this court held that even when the statute does not prescribe for appointment of a Presenting Officer in a disciplinary proceeding, then also same is required to be made to comply with the principles of natural justice. A Division Bench of this court held that even when the statute does not prescribe for appointment of a Presenting Officer in a disciplinary proceeding, then also same is required to be made to comply with the principles of natural justice. In the facts of that case, it was held that the Enquiry Officer in the absence of the Presenting Officer had put all the questions to the delinquent. Thus, the Enquiry Officer acted beyond his jurisdiction. If an authority acts beyond his jurisdiction and submits his report, the disciplinary authority should not act on such report. The court held as under : "(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 levelled 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 petitioner to prove the biasness of the inquiring officer in the writ petition and ultimately succeeded." 25. In W. Birbal Singh v. State of Manipur and Others, 2010 (5) GLT 371, (2011) 4 GLR 112. a Division Bench of this court held as under : "(15). In W. Birbal Singh v. State of Manipur and Others, 2010 (5) GLT 371, (2011) 4 GLR 112. a Division Bench of this court held as under : "(15). This court in the above cases held that the enquiry officer has assumed the role of the Judge as well as the prosecutor, inasmuch as, in absence of the presenting officer, the enquiry officer himself examined the witnesses and exhibited documents and it would be violative of the rules and the fundamental principles of natural justice. Admittedly, in the disciplinary proceeding against the appellant-writ petitioner for the said 2 articles of charges no presenting officer was appointed and the enquiry officer himself assumed the role of Judge as well as prosecution. Accordingly, we are of the considered view, that the disciplinary proceeding against the appellant-writ petitioner is liable to be quashed only on this score." That was a case of dismissal from service of a police constable following a disciplinary proceeding where no Presenting Officer was appointed. 26. Thus, following the above decisions, I am also of the considered view that failure to appoint a Presenting Officer had fundamentally affected the disciplinary proceeding drawn up against the petitioner and going by the finding recorded by the Enquiry Officer, petitioner was clearly prejudiced by such omission. The same has vitiated the enquiry and the consequential punishment imposed. 27. In view of the above, impugned order dated 29.1.2001 is set aside and quashed. 28. Writ petition is accordingly allowed. 29. However, there shall be no order as to cost.