Research › Search › Judgment

Gauhati High Court · body

2015 DIGILAW 1502 (GAU)

Rajesh Kr. Rai v. Director General of Police

2015-12-08

UJJAL BHUYAN

body2015
JUDGMENT AND ORDER Ujjal Bhuyan, J. Heard Mr. S.S. Sharma, learned senior counsel for the petitioner and Mr. D.C. Borah, learned Central Government counsel for the respondents. 2. This petition has been filed under Article 226 of the Constitution of India for quashing of order dated 02.10.2002 passed by the respondent No. 3 dismissing the petitioner from the service of Central Reserve Police Force (CRPF) and for a direction to the respondents for his re-instatement in service. 3. Case of the petitioner is that following a due selection process, he was appointed as Constable in the CRPF on 08.11.1990. Initially he was stationed at Shivpur. 4. In April, 2000, petitioner was transferred from Group Centre, Shivpur to Salakathi in the district of Kokrajhar, Assam where he was stationed in the 16th Battalion of CRPF. 5. Commandant of the said Battalion, Sri Ram Sumer Singh compelled the petitioner to work as domestic servant in his quarter. Thinking that it was a temporary arrangement as the Commandant had nobody to carry out such work, petitioner initially did not raise objection and obediently complied with whatever instructions were issued to him by the said Commandant. However, as days progressed, petitioner realised that the Commandant wanted to make it a regular arrangement. Petitioner was appointed as a Constable in the CRPF and not as a domestic servant of the Commandant. Ultimately, petitioner gathered courage and told the Commandant that it was not his duty to work as his domestic servant. 6. According to the petitioner such assertion by him annoyed the Commandant and he became very angry with the petitioner. Since then trouble started befalling on the petitioner. As a matter of fact, the said Commandant openly threatened the petitioner that he would teach him a lesson for such insubordination. Apprehending that the Commandant may not be fair towards him in his dealings, petitioner submitted a representation to the respondent No. 2 on 09.10.2001 requesting that he be transferred elsewhere in view of the open expression of anger shown by the Commandant towards him. Petitioner has stated that upon consideration of his representation, respondent No. 2 transferred the petitioner to the 2nd Battalion of CRPF at Delhi and requested the Commandant vide letter dated 19.02.2002 to release the petitioner from the 16th Battalion so that he could join his new Battalion at Delhi. However, the Commandant did not release the petitioner. Petitioner has stated that upon consideration of his representation, respondent No. 2 transferred the petitioner to the 2nd Battalion of CRPF at Delhi and requested the Commandant vide letter dated 19.02.2002 to release the petitioner from the 16th Battalion so that he could join his new Battalion at Delhi. However, the Commandant did not release the petitioner. Consequently, petitioner could not join his new place of posting. 7. Petitioner came to know that in the last week of April, 2002 a complaint was lodged against him before the Commandant by Havildar Vijay Chand but the contents of the complaint were not known to the petitioner. Ultimately, it was decided by respondent No. 3 (Commandant) to hold enquiry against the petitioner and a show-cause notice containing 4 articles of charges were served upon him. In this connection an order dated 17.05.2002 was issued by him appointing one Sri Rajendra Singh, Second-in-Command of the Unit as enquiry officer to enquire into the charges framed against the petitioner. From the said order dated 17.05.2002, it appears that the said Sri Rajendra Singh was directed to submit proceedings of the departmental enquiry to the respondent No. 3 within 15 days from receipt of the said order. At this stage, substance of the four charges framed against the petitioner may be noted. As per charge No. 1, petitioner while deployed for Naka duty on 06.02.2002 had remained absent from the place of duty and had consumed liquor. Charge No. 2 was regarding failure of the petitioner to abide by instructions/orders of his Section Commander to remain positioned along with arms while performing Naka duty on 06.02.2002. The 3rd charge related to misbehaviour with the Section Commander, Vijay Chand. As per charge No. 4, petitioner disobeyed the lawful orders/instructions of his immediate superior i.e. Section Commander and threatened him as well as other members of the section with assault. 8. Petitioner has stated that an enquiry into the above charges was conducted in which all the independent witnesses deposed that behaviour of the petitioner was good, that he never misbehaved with his superiors or with anyone else, that he reported for duty regularly and that he never consumed liquor in the course of duty. According to the petitioner, the enquiry officer had absolved him of the charges but copy of the enquiry report was not available with him. According to the petitioner, the enquiry officer had absolved him of the charges but copy of the enquiry report was not available with him. Not satisfied by the enquiry report, respondent No. 3 issued another memorandum of charges dated 27.09.2002 to the petitioner. However, the departmental proceeding on the basis of such subsequent charge memo was kept in abeyance to be revived in the event petitioner was re-instated in service following appeal, review or on order of the Court in connection with the first departmental proceeding. 9. By the order dated 02.10.2002, respondent No. 3 held that the charges framed against the petitioner stood proved and thereafter imposed the penalty of dismissal from service on the petitioner. 10. Petitioner, who is a resident of UP, had challenged the legality and validity of the dismissal order before the Allahabad High Court by filing Writ Petition No. 43556/2003. By order dated 31.08.2009, Allahabad High Court held that it did not have the territorial jurisdiction to adjudicate the said writ petition and accordingly the writ petition was dismissed for want of territorial jurisdiction. 11. Thereafter present writ petition has been filed before this Court seeking the relief as indicated above. 12. Respondents have filed a common affidavit. In the said affidavit it is stated that petitioner was enlisted in the CRPF on 08.11.1990. In April 2000, he joined the 16th Battalion, CRPF on transfer from Shivpur. Memorandum dated 18.04.2002 was served on the petitioner containing four articles of charges against him. The charges centered around consumption of liquor while on duty on 06.02.2002, disobedience to lawful orders of the Section Commander and misbehaving with him by threatening to shoot him. Sri Rajendra Singh, Second-in-Command of the Unit was appointed as the enquiry officer. In the course of the said enquiry, another departmental proceeding was drawn up against the petitioner vide charge memo dated 27.09.2002. Disciplinary authority i.e. respondent No. 3 on due consideration ordered petitioner's dismissal from service w.e.f. 02.10.2002. Petitioner has not preferred any appeal or revision but straight away has approached the High Court under Article 226 of the Constitution. Statements of the petitioners made in the writ petition have been denied. It is stated that petitioner was all along assigned duties of Constable and at no stage was he asked or detailed to perform the duties of domestic servant. Statements of the petitioners made in the writ petition have been denied. It is stated that petitioner was all along assigned duties of Constable and at no stage was he asked or detailed to perform the duties of domestic servant. It is admitted that petitioner was interviewed by the Deputy Inspector General of Police, CRPF, Jammu Range in connection with his request for transfer. But it is stated that the relevant record is not traceable. It is also admitted that petitioner was transferred to Second Battalion, CRPF, New Delhi but in the meantime since a departmental enquiry was ordered against him, petitioner was not released on transfer. It is stated that the disciplinary authority had examined the record of enquiry and representation of the petitioner and upon due consideration passed the impugned order. All reasonable opportunity of hearing was given to the petitioner to defend himself in the enquiry by the enquiry officer. It is stated that petitioner had consumed liquor in the evening of 06.02.2002 which was substantiated by his medical examination. Further contention of the respondents is that while the aforesaid departmental proceeding was going on petitioner committed further misconduct due to consumption of liquor on 12.09.2002 and caused injuries to a fellow Constable Surender Kumar on 12.09.2002. He had deserted the campus on 13.09.2002 but was brought back after being apprehended by the civil police. Further action in the subsequent departmental proceeding was kept in abeyance to be revived in the event order of re-instatement was passed by the appellate or revisional authorities or by the Court in connection with the first departmental proceeding. Impugned penalty is proportionate to the gravity of the misconduct. Respondents have stated that the writ petition lacks merit and should be dismissed. It is also stated that without availing alternative remedy by way of filing appeal or revision petition as provided under the statute, petitioner has straight away approached this Court by filing the writ petition. Therefore, on this ground alone writ petition should be dismissed. 13. Mr. Sharma, learned counsel for the petitioner submits that petitioner is a victim of high handedness of the Commandant. The Commandant had clearly misused and abused his position as a superior authority of the men in uniform. Petitioner was appointed to be a Constable in the CRPF and not to be domestic servant of the Commandant. 13. Mr. Sharma, learned counsel for the petitioner submits that petitioner is a victim of high handedness of the Commandant. The Commandant had clearly misused and abused his position as a superior authority of the men in uniform. Petitioner was appointed to be a Constable in the CRPF and not to be domestic servant of the Commandant. But the Commandant forced the petitioner to work as a servant in his quarter. As the petitioner found it to be highly demeaning and humiliating he had told the Commandant that he should not be asked to work as his servant. Instead of appreciating the feelings of the petitioner, the Commandant took offence and unleashed a vicious attack on the petitioner by orchestrating lodging of a complaint against the petitioner. Though petitioner was transferred by the higher authority, he was not released by the Commandant. It was on the basis of such manufactured complaint that a departmental proceeding was initiated against the petitioner which led to his dismissal from service. All the independent witnesses in their deposition before the enquiry officer clearly stated that no such incident as charged had taken place and that conduct of the petitioner was exemplary. Therefore, imposition of the impugned penalty is illegal and untenable and requires interference by the Court. He submits that the procedure adopted in the departmental proceeding was not fair. Additionally, no presenting officer was appointed in the enquiry which vitiated the departmental proceeding drawn up against the petitioner. On the objection as to maintainability of the writ petition for non-availing the alternative remedy, learned counsel for the petitioner submits that on wrong legal advice, petitioner had approached a wrong forum i.e. Allahabad High Court. After 6 years, Allahabad High Court held that it lacked territorial jurisdiction where after present writ petition was filed. This writ petition is pending before this Court since the year 2010. Therefore, at this stage it would neither be fair nor just to decline adjudication of the writ petition on the ground of availability of alternative remedy. In any case, availability of alternative remedy is no bar for invoking the writ jurisdiction by the High Court, learned counsel submits. 14. Submissions made by Mr. Sharma, learned counsel for the petitioner has been strongly opposed by Mr. Borah, learned Central Govt. Counsel. Mr. In any case, availability of alternative remedy is no bar for invoking the writ jurisdiction by the High Court, learned counsel submits. 14. Submissions made by Mr. Sharma, learned counsel for the petitioner has been strongly opposed by Mr. Borah, learned Central Govt. Counsel. Mr. Borah submits that preliminary objection raised as to maintainability of the writ petition is a valid one in as much as without availing the statutory alternative remedies, which are both adequate and efficacious, petitioner has straight away invoked the writ jurisdiction of the Court. On procedure followed, learned Central Govt. Counsel submits that respondents had followed the due procedure while holding departmental proceeding against the petitioner. Reasonable opportunity of hearing was given to the petitioner in the course of the departmental proceeding. Following a full fledged departmental proceeding charges against the petitioner stood proved where after impugned penalty was imposed. There is no infirmity in the decision making process and therefore no interference is called for. He finally submits that the charges framed against the petitioner were very serious and on such proven misconduct, the disciplinary authority rightly imposed the penalty of dismissal from service on the petitioner. Penalty imposed is proportionate to the gravity of the misconduct. He therefore submits that no interference is called for and the writ petition should be dismissed. Mr. Borah, learned Central Govt. Counsel has also produced the relevant record. 15. Submissions made by learned counsel for the parties have received the due consideration of the Court. Also perused the materials on record, including the record produced. 16. Upon due consideration, Court is of the view that following issues arise for decision in the case:- 1. Whether the writ petition is maintainable for non-availing of alternative remedy by the petitioner? 2. Whether a fair procedure was followed while conducting the departmental proceeding against the petitioner? 3. Whether from the materials on record including the evidence of the witnesses, can it be said that the charges against the petitioner stood proved? 17. Before attempting to answer the above three issues, it would be apposite to briefly refer to the relevant provisions of the CRPF Act, 1949 and CRPF Rules, 1955 having a bearing on the present case. 18. 17. Before attempting to answer the above three issues, it would be apposite to briefly refer to the relevant provisions of the CRPF Act, 1949 and CRPF Rules, 1955 having a bearing on the present case. 18. As per Section 11 of the CRPF Act, the Commandant or any other prescribed authority may award the penalties prescribed therein on any member of the force (CRPF) who is found guilty of disobedience, negligence of duty or remissness in the discharge of duty or committing misconduct in his capacity as a member of the force. The penalties include dismissal from service but imposition of punishment is subject to Rules made under the CRPF Act. Section 18 empowers the Central Government to make Rules amongst others for regulating award of punishment under Section 11 and providing for appeals etc. 19. In exercise of powers conferred by Section 18 of the CRPF Act, the Central Government has made the CRPF Rules. Rule 27 deals with the procedure for award of punishment. In case of dismissal or removal from service of a Constable, the authority competent to do so is the Commandant. However, such penalty can be inflicted only after holding formal departmental enquiry. As per explanation (a) to Clause (a) of Rule 27, dismissal of a member of the force precludes him from being re-employed in Government service. The procedure for conducting a departmental enquiry is laid down in Clause (c) of Rule 27. The procedure prescribed comprises of six distinct stages in conducting a departmental enquiry. At the first stage the substance of the accusation shall be reduced to the form of a written charge which should be as precise as possible. The charge is required to be read out to the accused and copy thereof given to him at least 48 hours before commencement of the enquiry. 20. As per the second stage, at the commencement of the enquiry the accused shall be asked to enter a plea of "guilty" or "not guilty" after which evidence either oral or documentary or both, relied upon by the disciplinary authority should be let in. The accused shall be allowed to cross-examine the witnesses. 21. The third stage deals with exhibiting the documents relied upon by the disciplinary authority in support of the charge with the accused having the right of inspection. 22. The accused shall be allowed to cross-examine the witnesses. 21. The third stage deals with exhibiting the documents relied upon by the disciplinary authority in support of the charge with the accused having the right of inspection. 22. After the above three stages are over, the most crucial stage is reached which is elaborately set out in Sub-clause (4) of Clause (c) of Rule 27. After evidence of the disciplinary authority is over, the accused is required to be examined and his statement recorded by the enquiry officer. If the accused pleads "guilty" at this stage and does not challenge the evidence adduced on behalf of the disciplinary authority, the proceeding shall be closed and necessary order may be passed. However, if the accused pleads "not guilty", he shall be required to file a written statement and a list of such witnesses whose evidence he would like to rely upon in his defence within such period not less than a fort-night. If the accused declines to file a written statement, he shall again be examined by the enquiry officer on the expiry of the period allowed. 23. In the fifth stage, if the accused produces any evidence, the same shall be considered by the enquiry officer. But if the accused refuses to cite any witness or to produce any evidence in his defence, the proceeding shall be closed for orders. 24. At the final stage, the enquiry officer is required to forward his report together with the record of proceeding to the Commandant who shall record his findings and pass orders. 25. In sum and substance, this is the procedure laid down under the CRPF Rules for conducting a departmental enquiry. First and foremost requirement is a written charge against the accused which should be precise. At the commencement of the enquiry, the accused is required to enter a plea of "guilty" or "not guilty" irrespective of which evidence on behalf of the disciplinary authority is required to be tendered. Once evidence on behalf of the disciplinary authority is over, the enquiry officer is required to examine the accused and to record his statement. At this stage plea of "guilty" or "not guilty" is relevant and determinative. If the accused pleads "guilty" at this stage and does not challenge the evidence on record, the proceeding shall be closed and necessary order may be passed. At this stage plea of "guilty" or "not guilty" is relevant and determinative. If the accused pleads "guilty" at this stage and does not challenge the evidence on record, the proceeding shall be closed and necessary order may be passed. If however, the accused pleads "not guilty", he shall be required to file a written statement and a list of his witnesses. If the accused declines to file a written statement, he shall again be examined by the enquiry officer. If the accused refuses to produce any evidence in his defence, the proceeding shall be closed for orders. The enquiry officer shall thereafter forward his report together with the record of enquiry to the Commandant for his findings and orders. 26. Rule 28 provides for filing of appeal against orders of penalty. Procedure for filing such appeal is also mentioned therein. Rule 29 on the other hand provides for filing of revision petition by a member of the force whose appeal has been rejected by the appellate authority. 27. Having noticed the relevant legal provisions as above, the framed issues may now be examined. Issue No. 1 28. Question to be considered while examining this issue is regarding maintainability of the writ petition in view of non-availing of alternative remedy by the petitioner. Petitioner was dismissed from service by order dated 02-10-2002. As noticed above, Rule 28 of the CRPF Rules, 1955 provides for filing of appeal against such an order of penalty. In the event of rejection of such appeal by the appellate authority, the aggrieved member of the force may prefer a petition for revision before the next superior authority under Rule 29 of the said Rules. The scope and ambit of the power of revision is mentioned in the Rule itself. Thus the CRPF Rules, 1955 provides for statutory remedy against an order of penalty imposed on a member of the force. 29. It is true that the High Court should not ordinarily entertain a petition under Article 226 of the Constitution of India if an adequate and efficacious alternative remedy is available to the aggrieved person. However, this Rule cannot be said to be an inflexible one knowing no exception. It is a self imposed limitation exercised by the superior Courts to maintain discipline and uniformity in the judicial process by ensuring that a litigant complies with the statutory mandate before invoking the writ jurisdiction. However, this Rule cannot be said to be an inflexible one knowing no exception. It is a self imposed limitation exercised by the superior Courts to maintain discipline and uniformity in the judicial process by ensuring that a litigant complies with the statutory mandate before invoking the writ jurisdiction. Having said that, it must also be borne in mind having regard to the extent of writ jurisdiction that in an appropriate case, presence of alternative remedy would be no bar to invoke the writ jurisdiction of the High Court under Article 226 of the Constitution of India. Law is well settled on this point and would require no re-statement. It would depend on the facts and circumstances of each case and therefore application of this Rule would vary from case to case. 30. Coming back to the facts of the present case, it is seen that petitioner is a resident of Uttar Pradesh. As per legal advice tendered to him, he had preferred a writ petition against the order of dismissal before the Allahabad High Court which was registered as Writ Petition No. 43556/2003. For whatever reason, this case was taken up for consideration by the Court 6 years after its institution. By order dated 31-08-2009, the Allahabad High Court dismissed the writ petition for want of territorial jurisdiction. Petitioner has stated on oath that because of the mental stress and agony which he suffered because of his dismissal from service, he fell ill and had to take treatment in the District Hospital, Ghazipur during September and October, 2009. After his recovery, petitioner came to Guwahati and thereafter the present writ petition was filed on 04-01-2010. This Court by order dated 06-01-2010 had issued notice keeping open the question of delay and laches. Long 5 years thereafter, the writ petition was admitted for hearing vide order dated 20-05-2010 again keeping open the question of delay and laches on the part of the petitioner. Thereafter the case was heard on merit. 31. Thus from the above it is seen that grievance of the petitioner vis-a-vis his dismissal from service remained pending before the Court for 11 years, 6 years at Allahabad and 5 years at Guwahati. This is a case where petitioner has been dismissed from service. The penalty of dismissal from service would act as a bar for future employment of the petitioner under the Government. This is a case where petitioner has been dismissed from service. The penalty of dismissal from service would act as a bar for future employment of the petitioner under the Government. He has stated that after his dismissal from CRPF he is without any employment. After 11 years of pendency in the Court, now if the petitioner is told that his writ petition cannot be adjudicated on merit because of provision for appeal and revision which he did not avail, I am afraid such a view would be contrary to the spirit of justice. Moreover, this Court has held in a number of decisions that once a writ petition is admitted for hearing, adjudication on merit should not be declined on the ground of availability of alternative remedy. It is true that petitioner ought to have availed the alternative remedy provided under the statute but in the peculiar facts and circumstances of the case, the same may not be a good and sufficient ground to non-suit the petitioner. In that view of the matter, objection raised by the respondents as to the maintainability of the writ petition is overruled. Issue No.1 is accordingly answered in the affirmative and in favour of the petitioner. Issue No. 2 32. The second issue to be decided is whether a fair procedure was followed while conducting the departmental proceeding against the petitioner. The procedure for conducting departmental enquiry against a member of the force is elaborately laid down in Rule 27 (c) of the Rules which has been noted down in the preceding part of the judgment. The language employed in Rule 27(c) clearly indicates the mandatory/obligatory nature of the procedure prescribed. Each of the distinctive stages of the procedure laid down are mandatorily required to be followed since those provide for a fair and reasonable procedure in determining whether the charge(s) framed against the delinquent (referred to as accused in the Rules) have been established or not. From a perusal of the contents of the record it does not appear that the procedure prescribed under Rule 27(c) was complied with in letter and spirit. Record does not disclose that all the steps that were mandatorily required to be complied with as mentioned above were followed. 33. From a perusal of the contents of the record it does not appear that the procedure prescribed under Rule 27(c) was complied with in letter and spirit. Record does not disclose that all the steps that were mandatorily required to be complied with as mentioned above were followed. 33. Both the enquiry officer as well as the disciplinary authority placed heavy reliance on a document which they marked as exhibit 1 in support of the charge that petitioner had consumed liquor while on duty. A perusal of this document, which is at page 18 of the record, shows that it is a photocopy. Interestingly both the pages preceding and following the said document are marked as page 19 with over-writing of page numbers in the record. It is a clear indication that this document was inserted in the record subsequently. Though this document is marked as exhibit 1, it was not exhibited as per well known legal procedure. It doesn't appear to have been verified from the original. The signatures of the doctors who had allegedly issued the said certificate were also not verified. The document discloses that petitioner was examined at RNB Civil Hospital at Kokrajhar on 06-02-2002 at 10 P.M. An opinion was rendered that petitioner was under the influence of "alcoholic intoxication and not under control". RNB Civil Hospital, Kokrajhar is an established Government hospital. It is not expected that such a hospital will issue a medical certificate on plain paper instead of formal letterhead mentioning various sub-heads of medical examination. Thus the contents of the said document as well as the signature of the author of the said document cannot be said to have been proved. 34. The charge of an uniformed personnel absenting from duty and consuming liquor is a very serious charge, having damaging consequences. In view of the seriousness of the charge, it was incumbent upon the authority to have proved the said charge in a manner acceptable in law. It is true that in a departmental proceeding, provisions of the Indian Evidence Act may not be strictly applicable. It is also true that standard of proof in a domestic enquiry is not so strict like in a criminal proceeding but nonetheless, the materials adduced or relied upon in such proceeding by the disciplinary authority will have to be proved in accordance with law. It is also true that standard of proof in a domestic enquiry is not so strict like in a criminal proceeding but nonetheless, the materials adduced or relied upon in such proceeding by the disciplinary authority will have to be proved in accordance with law. Therefore, both the enquiry officer and the disciplinary authority erred in relying upon the said document which was not proved and which in any case does not inspire much confidence because of the manner in which it is positioned in the record. 35. From a perusal of the impugned order dated 02-10-2002 and the record of enquiry it is seen that the enquiry officer held that charge No.2 stood partially proved and further held that charge No.4 was not proved. While charge No. 2 was relating to failure of the petitioner to abide by orders of the superior authority, as per charge No. 4, petitioner not only disobeyed orders of his superior authority but threatened him and others with assault. However, the disciplinary authority disagreed with such findings of the enquiry officer and held that both the two charges stood fully proved against the petitioner. Thereafter he proceeded to impose the penalty of dismissal from service on the petitioner. Law on this point is well settled that when the disciplinary authority disagrees with the findings of the enquiry officer, he has to record his points of disagreement with the enquiry officer and thereafter give an opportunity to the delinquent to respond to such points of disagreement. After considering the response of the delinquent, disciplinary authority can pass appropriate order as may be deemed fit and proper. From the record as well as from the impugned order it is evident that such procedure was not followed by the disciplinary authority while disagreeing with the findings of the enquiry officer. This has clearly vitiated the impugned order. 36. There is one more aspect which needs to be highlighted, which was also argued to some extent by Mr. Sharma, learned counsel for the petitioner. This is regarding absence of Presenting Officer in the departmental enquiry. 37. A departmental enquiry is a part of the disciplinary proceeding. This is more pronounced in the case of a disciplinary proceeding under Rule 27 of the CRPF Rules. Sharma, learned counsel for the petitioner. This is regarding absence of Presenting Officer in the departmental enquiry. 37. A departmental enquiry is a part of the disciplinary proceeding. This is more pronounced in the case of a disciplinary proceeding under Rule 27 of the CRPF Rules. There cannot be any dispute to the proposition that a departmental enquiry is a quasi-judicial proceeding where principles of natural justice which includes a fair procedure are inbuilt. It is in such context that the role of Presenting Officer assumes significance. Regarding the role of Presenting Officer in a departmental enquiry, this Court in (2014) 4 GLR 111 Anil Baishya v. State of Assam held as follows:- "(24) 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 functions 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. He has to marshal the facts and to 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. 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". 38. Rule 27 of the CRPF Rules does not expressly provide for appointment of a Presenting Officer. However, a Single Bench of this Court in Mutum Shantikumar Singh v. Union of India reported in (2005) 3 GLR 243 interpreted Rule 27 of the CRPF Rules by reading the requirement of fair procedure and rules of natural justice in Rule 27. 38. Rule 27 of the CRPF Rules does not expressly provide for appointment of a Presenting Officer. However, a Single Bench of this Court in Mutum Shantikumar Singh v. Union of India reported in (2005) 3 GLR 243 interpreted Rule 27 of the CRPF Rules by reading the requirement of fair procedure and rules of natural justice in Rule 27. It was held that in the absence of the Presenting Officer, the enquiry officer assumes the role of judge as well as of prosecution in as much the enquiry officer will have to examine the witnesses and the exhibited documents which will be in 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, dismissal of a CRPF Constable was declared illegal and was quashed because of non-appointment of Presenting Officer. 39. The judgment in Mutum Shantikumar Singh was delivered on 09-02-2005. More than 10 years have gone by since then. For over a decade this judgment is holding the field. Not only that, at least three subsequent Division Bench judgments have endorsed the above view taken in Mutum Shantikumar Singh. In W. Birbal Singh v. State of Manipur reported in 2010 (5) GLT 371, in Salam Kesho Singh v. State of Manipur reported in 2011 (1) GLT 287 and in Union of India v. Ram Lakhan Sharma reported in 2011 (3) GLT 281, the Division Bench of this Court held that even when the statute does not prescribe for appointment of a Presenting Officer, then also such appointment is required to be made to comply with the principles of natural justice. Absence of Presenting Officer will totally vitiate the enquiry. Penalties imposed were interfered with on the ground of non-appointment of Presenting Officer. Ram Lakhan Sharma is a case relating to removal from service of a CRPF Constable following a disciplinary proceeding. The above decisions have been followed in a number of subsequent decisions by this Court. This Bench being a Single Bench is bound by the law laid down by the Division Bench and by the Single Bench of this Court. If any authority is required for this proposition, reference may be made to the case of Official Liquidator v. Dayanand (2008) 10 SCC 1 (paras 78, 90, 91 and 92). This Bench being a Single Bench is bound by the law laid down by the Division Bench and by the Single Bench of this Court. If any authority is required for this proposition, reference may be made to the case of Official Liquidator v. Dayanand (2008) 10 SCC 1 (paras 78, 90, 91 and 92). Coming back to the facts of the present case, it is evident that absence of Presenting Officer has clearly vitiated the departmental enquiry in as much as the enquiry officer virtually acted like the disciplinary authority by examining the witnesses. As noticed above, enquiry officer committed material omission in the conduct of the enquiry which fundamentally affected the proceeding. Therefore, in the absence of the Presenting Officer, the role of the enquiry officer clearly got blurred. Thus the enquiry clearly stood vitiated and therefore the penalty imposed based on report of the enquiry officer cannot be sustained. 40. In that view of the matter, there can be no doubt that the mandatory and fair procedure was not followed while conducting the departmental proceeding against the petitioner and this has vitiated the impugned penalty. Accordingly, issue No.2 is answered in the negative and in favour of the petitioner. Issue No. 3 41. Issue No. 3 is whether on the basis of the materials on record, can the charges framed against the petitioner be said to have been proved. In view of the finding arrived at in respect of issue No.2, it may not be necessary to proceed further with issue No.3. However, certain aspects which are clearly discernible from the record may be mentioned to put the record straight. While issuing the order dated 17-05-2002 appointing Shri Rajender Singh as the enquiry officer, the disciplinary authority i.e. the Commandant directed the enquiry officer that the proceedings of the departmental enquiry should be furnished/submitted to him within 15 days from receipt of the said order. On the face of it such a direction was clearly impermissible having regard to the procedure prescribed in Rule 27(c) and the time span that would ordinarily be required to complete the proceeding following such prescribed procedure. This only goes to show that the disciplinary authority had already decided/made up his mind as to what he would do with the petitioner. This view stands reinforced from a perusal of the impugned order of the disciplinary authority, particularly paragraph 9 thereof. This only goes to show that the disciplinary authority had already decided/made up his mind as to what he would do with the petitioner. This view stands reinforced from a perusal of the impugned order of the disciplinary authority, particularly paragraph 9 thereof. In the said paragraph, the disciplinary authority referred to a subsequent incident of alleged misconduct by the petitioner on 12-09-2002 for which it was stated that charge memo was issued to the petitioner on 28-09-2002. The disciplinary authority stated that in view of the impugned order, the subsequent departmental proceeding was kept pending to be revived immediately if petitioner is reinstated in service following appeal, review or Court judgment. Such stand of the disciplinary authority is a clear indication of his pre-disposition and hostile attitude towards the petitioner. These two instances clearly point out the biasness of the disciplinary authority towards the petitioner and it may not be unreasonable to take the view that the departmental proceeding against the petitioner was prejudged. Coupled with the above two instances is the factum of non-release of the petitioner by the Commandant (respondent No. 3) following his transfer to the 2nd Battalion. Respondents in their counter affidavit have admitted interview of the petitioner by the Deputy Inspector General of Police, CRPF, Jammu in connection with his request for transfer from 16th Battalion under respondent No. 3. Transfer of the petitioner to 2nd Battalion has also been admitted. But it is stated that the relevant record in this regard is not traceable. Further stand taken is that since departmental enquiry was ordered, petitioner was not released. Such stand besides being factually untenable, has also raised serious question mark on the fairness of the disciplinary proceeding itself. Firstly, respondents have stated that the relevant record relating to transfer of petitioner is not traceable. This makes the conduct of the Commandant highly suspicious. However, from the materials placed before the Court, it is evident that petitioner made the request for transfer on 09.10.2001. Thereafter, petitioner was transferred and in this connection, respondent No. 3 was requested to release the petitioner on 19.02.2002. Show-cause notice leading to the impugned order was issued more than two months thereafter on 18.04.2002. Moreover, departmental enquiry was ordered only on 17.05.2002. Therefore, petitioner's transfer was much before initiation of departmental proceeding. Thereafter, petitioner was transferred and in this connection, respondent No. 3 was requested to release the petitioner on 19.02.2002. Show-cause notice leading to the impugned order was issued more than two months thereafter on 18.04.2002. Moreover, departmental enquiry was ordered only on 17.05.2002. Therefore, petitioner's transfer was much before initiation of departmental proceeding. In such circumstances, non-release of the petitioner from the 16th Battalion by taking the plea of pendency of departmental proceeding was not at all justified. Such conduct of the disciplinary authority clearly cast a shadow of doubt over the bonafides of the departmental proceeding drawn up against the petitioner. From the above, a reasonable inference may be drawn that the Commandant had abused his power, position and authority while dealing with the petitioner. 42. At this stage, it may be useful to briefly refer to the depositions of some of the witnesses. Constable GP Hundare (witness No.5) in his evidence stated that Havildar Vijay Chand was the Section Commander and that he usually tortured the petitioner. On that evening, petitioner was on duty. He specifically stated that there was no argument between Havildar Vijay Chand and the petitioner on that evening. Petitioner did not threaten to shoot Vijay Chand from his rifle. He also stated that he did not see the petitioner consuming liquor. There was no mis-behaviour or abusive behaviour by the petitioner towards Havildar Vijay Chand. Behaviour of the petitioner was good. Constable Ram Brij Bhar (witness No. 7) also stated that behaviour of the petitioner was good but the Section Commander used to torture him. He also did not see petitioner consuming liquor or going anywhere. He stated that there was no scuffle between the petitioner and the Section Commander but a hot conversation had taken place between the two. He specifically stated that petitioner did not give any type of threatening to shoot any jawan. He further stated that only on a possibility of consuming liquor, petitioner was taken for medical examination. Sub-Inspector T. Sharma of civil police clearly stated that petitioner was on duty along with him on 06-02-2002. He was categorical in his statement that petitioner was on duty along with him on that day. Petitioner's behaviour was good, he stated. Witness No. 3 Md. Saddik in his evidence stated that he had never seen the petitioner either drunk or under intoxication. He was categorical in his statement that petitioner was on duty along with him on that day. Petitioner's behaviour was good, he stated. Witness No. 3 Md. Saddik in his evidence stated that he had never seen the petitioner either drunk or under intoxication. He further stated that petitioner did not have the habit of leaving the camp or coming late from leave. Witness No.3 stated that as Head Constable he had enquired into the matter and during his enquiry none of the jawans told him that petitioner had consumed liquor or had misbehaved with Vijay Chand. Such evidence would only go to show the hollowness of the charges framed against the petitioner. 43. Thus from the above evidence on record coupled with the biasness of the disciplinary authority towards the petitioner, there can be no manner of doubt that the disciplinary authority was pre-determined to punish the petitioner. This has rendered the impugned order wholly untenable. Accordingly the third issue is also decided in favour of the petitioner. 44. In view of above, impugned order of penalty dated 02-10-2002 cannot be sustained. It is accordingly set aside and quashed. Petitioner shall be re-instated in service and would be entitled to 50% of the back wages. 45. Writ petition is allowed. No cost. 46. Record produced by learned Central Government Counsel is returned back.