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2014 DIGILAW 840 (JHR)

Union of India v. Zileh Singh Sagar

2014-08-06

AMITAV K.GUPTA, R.BANUMATHI

body2014
JUDGMENT Amitav K. Gupta, J. The instant Letters Patent Appeal has been preferred against the judgment dated 04.04.2007 passed in W.P(S) NO.4860 of 2006 whereby the learned Single Judge allowed the writ application of the respondent/petitioner. 2. In the aforesaid writ application the respondent/petitioner stated that he was posted as Deputy Inspector General, CISF Unit, DSP, Durgapur and on 10.06.2005 theft of nut coke by a dumper took place; that on receiving the information from the General Manager (Service) the respondent/petitioner directed Sri K.K.Singh, the Commandant to apprehend the driver and his accomplices; that Sri K.K.Singh immediately rushed and saw the said dumper and on checking the dumper, found to be empty and brought the dumper alongwith the driver, Sheikh Mustaza, to the CISF complex and information of the same was sent to the General Manager who, alongiwth other officials came to CISF complex of Durgapur Steel Plant. In the meantime, the police of Durgapur Police Station also arrived and the driver was interrogated and the dumper and driver was handed over to the police on 10.06.2005; that the written complaint was sent to the petitioner after endorsement by the petitioner and on the basis of the complaint an F.I.R was drawn. On the direction of the petitioner, a preliminary enquiry was conducted by P.K.Basu, Asstt. Commandant; that the petitioner had also suspended 6 CISF personnel and he had sent the incident report to the Force Headquarters on 11.06.2005 and a second report on 12.06.2005 vide message nos.547,550 and 551 respectively; that the petitioner was transferred on 14.06.2005 to Force Headquarters, New Delhi and he relinquished his charge on 16.06.2005; by that time Sri P.K.Basu had not submitted the preliminary enquiry report; that since the petitioner had relinquished his charge, he could not submit any further report. It is alleged that appellant/respondent no.6 conducted a second preliminary enquiry and the respondent/petitioner was not examined in the second preliminary enquiry; that there was no occasion for setting up a second preliminary enquiry as the respondent/petitioner had already ordered for a preliminary enquiry. It is alleged that appellant/respondent no.6 was biased as the respondent/petitioner had filed writ petition being W.P(S) NO.1504/2003 before Calcutta High Court whereafter the promotion of appellant/respondent no.6 was made conditional subject to the final result of the writ petition. That the appellant/respondent no.6 motivatedly conducted the second preliminary enquiry to falsely implicate the petitioner/respondent. 3. It is alleged that appellant/respondent no.6 was biased as the respondent/petitioner had filed writ petition being W.P(S) NO.1504/2003 before Calcutta High Court whereafter the promotion of appellant/respondent no.6 was made conditional subject to the final result of the writ petition. That the appellant/respondent no.6 motivatedly conducted the second preliminary enquiry to falsely implicate the petitioner/respondent. 3. That thereafter charge memorandum dated 13.01.2006 was served with allegation that petitioner/respondent did not lodge any F.I.R despite the written complaint given by the management officials on 10.06.2005, consequently, he failed to discharge his supervisory role having been entrusted with security of the entire plant and did not maintain devotion towards his duty which was unbecoming of an officer of his rank. The second charge was that the petitioner/respondent failed to maintain proper command and control over his staff and personnel posted at Gate no.2 A of Durgapur Steel Plant who connived with the dumper driver and allowed the aforesaid dumper carrying stolen Nut Coke to go out of the plant without verification; that the CISF personnel have also tampered with the record to cover their lapses; that the incident tarnished the image of the CISF in the eyes of the public which is indicative that the petitioner/respondent failed to exercise his command and control over his subordinates. The third charge was that the petitioner/respondent sent a false report to the CISF Headquarters with an intention to mislead his senior officers after a lapse of 2 days, on 12.06.2005 and he intentionally did not point out the connivance of CISF personnel posted at the gate neither did he verify the record maintained in the register which had been tampered by overwriting by the CISF personnel and the petitioner/respondent did this with a view to shield the corrupt CISF personnel. By the aforesaid memorandum, the petitioner/respondent was directed to submit his written statement within ten days. That the petitioner/respondent vide letter dated 25.01.2006 requested the DIG,CISF Headquarters to supply him the copies of the fax message sent by him on 11.06.2005 and 12.06.2005, the preliminary enquiry report of P.K.Basu and the documents of the 2nd preliminary enquiry report with the name and designation of the officer who had conducted the said enquiry and the police investigation report but his request was turned down by letter dated 22.02.2006 of Addl. Deputy Inspector General, CISF, Eastern Sector Headquarters, Patna; that after the receipt of the aforesaid letter, the petitioner/respondent wrote to the Director General, CISF for providing all the documents so as to submit his defence statement whereafter, by letter dated 08.05.2006, he was supplied some documents but his request for all documents was not entertained as being not relevant and he was informed that no preliminary enquiry has been cited as list of documents; that the petitioner/respondent vide letter dated 20.05.2006 again requested the Director General to supply him all the copies but it was not supplied to him. 4. On the said ground, the respondent/petitioner filed the aforesaid writ petition praying for quashing of the entire departmental proceedings including the charge sheet alleging that the same has been initiated on the basis of the preliminary enquiry conducted by the appellant/respondent no.6, who is biased, as his promotion has become conditional on account of the writ filed by the petitioner/respondent and the learned Single Judge was pleased to allow the writ petition. 5. Learned counsel for the appellant has argued that the learned Single Judge failed to appreciate that the F.I.R was not lodged by the respondent/petitioner nor was it lodged when requested by the management officials. That the learned Single Judge overlooked the fact that the incident of theft of Nut Coke by a dumper took place and the said dumper was allowed to pass through the gate without checking by the CISF personnel and the respondent/petitioner, as Supervising Officer, was entrusted to ensure the security of the entire plant but he failed in his supervisory duty and there was dereliction of duty and negligence in performing the duty by the respondent/petitioner. 6. Learned counsel has further submitted that the learned Single Judge failed to appreciate the fact that preliminary enquiry is a non-statutory enquiry and it is settled proposition of law that requirement of principle of natural justice and observance of principles of justice are required in a non-statutory enquiry; that the learned Single Judge erred by over-looking the fact that the departmental enquiry was not initiated on the basis of preliminary enquiry conducted by the appellant/respondent no.6 and the articles of charges were framed on the facts which were known to the disciplinary authority from the available records and there was no bias on the part of Disciplinary Authority. Accordingly, the conclusion reached by the learned Single Judge that the preliminary enquiry was conducted by an officer who was interested in the case and the preliminary enquiry had nexus with the departmental proceeding is incorrect. 7. In support of the contention learned counsel has relied on the decision in the case of Champaklal vs. UOI, reported in AIR 1964 SC, 1854 and submitted that the holding of the departmental enquiry is the exclusive prerogative of the disciplinary authority and it is not for the courts to question the validity of the disciplinary authority. 8. Another limb of argument advance by the learned counsel for the appellant is that the learned Single Judge committed error in law by quashing the entire disciplinary proceeding consisting of three charges without appreciating that out of the three charges the appellant/respondent no.6 in the preliminary enquiry report had imputed blame on the respondent/petitioner with respect to Charge no.1 only and there was no iota of blame or suggestion in the matter of charge nos.2 or 3. Thus the finding of the learned Single Judge that the appellant/respondent no.6 had made a report finding the petitioner responsible for supervisory lapses is incorrect because the appellant/respondent no.6 had concluded by stating “DIG, CISF only showed reluctancy against registering the criminal case.” 9. It is pointed out that the respondent/petitioner had not suspended six CISF personnel as stated by the respondent/petitioner. On the contrary, the respondent/petitioner had tried to shield the CISF personnel in his incident report dated 12.06.2005 wherein he did not find them blameworthy and pleaded their case for protection under Section 197 Cr.P.C. That in fact, the arrest of the CISF personnel is deemed to be automatic suspension and on the order of the respondent/petitioner. 10. Learned counsel, while relying on the decision of the Apex Court in the case of Secretary to Government of T.N. Vs. Dr. Subramanyan Rajadevan, reported in 1996 Vol.5 SCC 334 contended that in the said case the Supreme Court has held that there is no requirement to hold a preliminary enquiry every time before instituting the departmental enquiry. 10. Learned counsel, while relying on the decision of the Apex Court in the case of Secretary to Government of T.N. Vs. Dr. Subramanyan Rajadevan, reported in 1996 Vol.5 SCC 334 contended that in the said case the Supreme Court has held that there is no requirement to hold a preliminary enquiry every time before instituting the departmental enquiry. He has also placed reliance in the reported decision in Civil Appeal no.5287/2005 in the case of Union of India vs. M.S. Gulair dated 08.12.2006 and submitted that it has been held by the Supreme court that a non-statutory recommendation by the C.V.C in which even if there are some violation of the principles of natural justice will not vitiate the final decision taken by the disciplinary authority because such decision is not binding on the disciplinary authority. 11. To conclude his argument, it is contended that in view of the settled proposition of law, there is no necessity for holding a preliminary enquiry before instituting a departmental enquiry; that the principles of natural justice is not required to be observed in such preliminary enquiry. It is contended that the appellant/respondent no.6 did not take up the enquiry suo moto rather he held the preliminary enquiry on the direction of Director General, CISF (Appellant no.2); that in the first preliminary enquiry lapses on the part of C.I.S.F personnel was found and the second preliminary enquiry was in consonance with the first preliminary enquiry. Thus, the finding of the learned Single Judge that appellant/respondent no.6 submitted a biased preliminary enquiry report is against the facts on record and on this score, the impugned order is not sustainable in law or in facts. 12. Thus, the finding of the learned Single Judge that appellant/respondent no.6 submitted a biased preliminary enquiry report is against the facts on record and on this score, the impugned order is not sustainable in law or in facts. 12. Learned counsel for the respondent/petitioner submitted that the contention of learned counsel for the appellant that the petitioner/respondent had not taken any action for the occurrence of theft on 10.06.2005 is fallacious as the FIR was lodged with the Durgapur Police on the basis of the written report of the management officials which was endorsed by the respondent/petitioner; that in fact the petitioner/respondent had directed the Assistant Commander, K.K.Singh to intercept the dumper and it was intercepted and brought to the CISF complex alongwith the driver; that the argument of the learned counsel for the appellant that the respondent/petitioner had shielded the C.I.S.F personnel, who had connived in letting the dumper pass through Gate no.2A without checking the paper is controverted by the fact that the respondent/petitioner had himself suspended the six C.I.S.F personnel and in fact the respondent/petitioner had sent the incident report to the Headquarter on 11.06.2005 and on 12.06.2005 endorsing therein that further reports shall be submitted but the respondent/petitioner was transferred on 14.06.2005 and he relinquished his charge on 15.06.2005 which prevented him from sending the further report; that the respondent/ petitioner had appointed Sri P.K.Basu to conduct an enquiry who had submitted the preliminary enquiry report on 29.07.2005 but appellant/respondent no.6 sat on the report for three months and sent the report on 16.11.2005 to the Headquarters; that the appellant/respondent no.6 was subsequently appointed to conduct the second preliminary enquiry and there was no justification for conducting the second preliminary enquiry; that the respondent/petitioner had filed a writ petition in the Kolkata High Court against the promotion of appellant/respondent no.6 who was promoted superseding the respondent/petitioner and his promotion was made subject to the final result of the writ petition; that appellant/respondent no.6 was bent upon to stall the promotion of the respondent/petitioner due to which he had submitted the second preliminary enquiry report motivatedly to falsely and deliberately implicate the petitioner/respondent and the preliminary enquiry was done by the appellant/respondent no.6 with bias and a motive to ruin his career. 13. 13. It has been argued by the learned counsel for the respondent/petitioner that the entire departmental proceeding was founded on the second preliminary enquiry which was conducted behind the back and in the absence of the petitioner; that the petitioner/respondent’s promotion order was under seal cover and, as stated above, the promotion of appellant/respondent no.6 to the rank of Inspector General was made conditional subject to the outcome of W.P.NO.1504/2003 pending before the Kolkata High Court which actuated appellant/respondent no.6 to allege supervisory failure on the part of the petitioner/respondent on account of the motive being harbored by appellant/respondent no.6. Thus, the learned Single Judge has rightly quashed the departmental proceeding and the same needs no interference. 14. Having heard the submissions of the parties in extenso, it is not disputed that the respondent/petitioner had appointed Mr. P.K. Basu to conduct the preliminary enquiry and the respondent/petitioner was transferred on 14.06.2005 and relinquished his charge on 16.06.2005, thereafter, appellant/respondent no.6 was appointed to conduct the preliminary enquiry. No doubt the holding of enquiry is the exclusive prerogative of the superior authority. But the appellant/respondent no.6 should have informed his superior about the earlier appointment of Mr. P.K. Basu by respondent/respondent for conducting the preliminary enquiry prior to his appointment to conduct the second preliminary enquiry. The contention of the learned counsel for the appellant that the departmental enquiry was initiated on the basis of facts already known and not on the basis of the facts as disclosed in the preliminary enquiry is contradicted by his own admission in the arguments advanced by him that out of the three charges the appellant/respondent no.6 in his preliminary enquiry report has imputed some blame on the respondent/petitioner only with respect to Charge no.1 and he did not make an iota of suggestion regarding Charge nos.2 and 3. This contention of the learned counsel for the appellant amounts to tacit admission that the departmental proceedings and charges made therein were based on the second preliminary enquiry report submitted by the appellant /respondent no.6. The decision relied upon by the appellant in the case of Vijay Kumar Nigam vs. State of M.P. & ors, reported in 1996(11) SCC 599 . The decision relied upon by the appellant in the case of Vijay Kumar Nigam vs. State of M.P. & ors, reported in 1996(11) SCC 599 . In para 3 of the said decision it has been held;- “3…………….The preliminary enquiry report is only to decide and assess whether it would be necessary to take any disciplinary action against the delinquent officer and it does not form any foundation for passing the order of dismissal against the employee…….” 15. The above contention lends support to the fact that the preliminary enquiry brings out the fact for initiation of disciplinary action and such disciplinary action can be taken after the departmental enquiry on the charges frame therein. In the case of Champaklal(Supra) relied upon by the learned counsel for the appellant, in para 12 thereof, it has been held:- “12. Generally therefore a preliminary enquiry is usually held to determine whether a prima facie case for a formal departmental enquiry is made out………….” Thus, the above decision substantiates the procedure that the departmental enquiry follows after the submission of the preliminary enquiry report. 16. Due to the writ petition filed by the Ist respondent/petitioner in Calcutta High Court, the appellant/respondent no.6 was given conditional promotion subject to the result of the writ petition filed by the Ist respondent/petitioner. The respondent/writ petitioner’s promotion was kept in a sealed cover and appellant/respondent no.6 had submitted the second preliminary enquiry report alleging supervisory lapse on the part of the respondent/writ petitioner which is admitted by the appellant in their arguments, as noticed above. The counsel for the respondent/petitioner has submitted that the petitioner/respondent had reasonable apprehension of bias as the appellant/respondent no.6 had already faced the litigation/writ petition filed by the respondent and therefore, respondent no.6 submitted a motivatedly false report. The learned Single Judge has referred to the decision of the Supreme Court in the case of A.K. Kraipak and others vs. UOI and others, reported in 1969(2) SCC 262 wherein it has been held that it is to be seen as to whether there is a reasonable likelihood of bias and in deciding such question, human probability, propriety and ordinary cause of human conduct must be taken into consideration. It is also settled proposition, as discussed by the learned Single Judge, is that what is relevant is the reasonableness of apprehension in that regard meaning thereby the likelihood of bias in the mind of the party and the fundamental quality of fairness demands that justice should not only be done but also seem to be done. 17. Having considered the judicial pronouncements and the facts, as enumerated above, we agree with the findings of the learned Single Judge that the respondent/petitioner had made out a case to show that there was reasonable apprehension of bias with regard to the initiation of the impugned departmental proceeding on the basis of the preliminary enquiry report submitted by the appellant/respondent no.6 and such bias goes to the root of fair play and principles of natural justice. We do not find any cogent or reasonable grounds warranting interference in the impugned judgment of the learned Single Judge. 18. In the result, the appeal is hereby dismissed.