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2019 DIGILAW 190 (ORI)

Subash Chandra Sahu v. Union Of India

2019-03-07

B.R.SARANGI

body2019
JUDGMENT B.R. Sarangi, J. - The petitioner, while serving as Head Constable/ GD at Central Industrial Security Force (CISF) Unit. Nalco, Angul, having faced with a departmental proceeding, was imposed with major penalty of dismissal from service by the disciplinary authority vide Annexure-16 dated 15.09.2009, which was confirmed by the appellate authority, vide order dated 16.12.2009 in Annexure-18, as well as revisional authority vide order dated 31.03.2010 in Annexure-20, which are subject matter of challenge before this Court. 2. The factual matrix of the case, in hand, is that the petitioner, while serving as Head Constable/GD at CISF Unit, Nalco, Angul, on 26.12.2008 was detailed for duty in 'B' shift, i.e., from 13:00 hours to 2100 hours at Expansion Gate of Nalco, Angul, along with Sub-Inspector K.K. Pallai and Lady Constable Kameli Khatun. At about 16:30 hours of the same day, a tipper bearing registration number OR-06-E-2919 laden with 27 nos. of rejected aluminium ANODE Stem arrived at the said gate to go outside the plant premises, but due to protest of the duty personnel, the said tipper was seized and handed over to Nalco Nagar, Police Station. First Information Report was lodged at 9.30 PM alleging theft against driver of the said tipper. On the basis of his statement recorded under Section 161, Cr.P.C., 1973 by the concerned police, the petitioner was arrested in connection with Nalco P.S. Case No. 144 dated 26.12.2008 for alleged commission of offence under Sections 379/34, IPC 2.1 The above fact was intimated by Officer in-Charge, Nalco Police Station, vide letter no. 1252/PS dated 28.12.2008, to the Senior Commandant, CISF Unit, Nalco, Angul, who, in exercise of power conferred by sub-rule (2)(a) of Rule 33 of CISF Rules, 2001 placed the petitioner under suspension with effect from 27.12.2008 vide office order dated 29.12.2008. While continuing with the criminal proceeding, the disciplinary authority drawn up a proceeding against the petitioner and issued memorandum of charge on 17.02.2009 framing one article of charge, i.e., an act of gross dereliction in duty on the part of the petitioner with mala fide intention. In response thereto, the petitioner submitted written statement on 28.02.2009 to the disciplinary authority denying the allegations. Having not satisfied with such explanation, the disciplinary authority appointed an inquiry officer to cause enquiry and submit report. In response thereto, the petitioner submitted written statement on 28.02.2009 to the disciplinary authority denying the allegations. Having not satisfied with such explanation, the disciplinary authority appointed an inquiry officer to cause enquiry and submit report. 2.2 In course of enquiry, the petitioner submitted an application on 26.03.2009 to the inquiry officer regarding engagement of defence assistance. As the petitioner failed to get the service of a defence assistance from the local Unit, after best efforts, he could get a defence assistance from a Unit other than his own Unit, but the same was rejected. Therefore, the petitioner submitted an application to the apex authority of CISF for the selfsame purpose, but the disciplinary authority, vide letter dated 01.04.2009, intimated to the petitioner that the defence assistance from other Unit is not permissible and the application submitted by the petitioner to D.G., CISF was withheld. 2.3 As regards payment of subsistence allowance, the disciplinary authority issued office order dated 11.04.2009 intimating that it has been decided. By review committee to continue the suspension for a further period of 90 days and the subsistence allowance will be raised by another 50% of the initial grant. Being aggrieved by the reduction of subsistence allowance, the petitioner submitted an appeal to the Deputy Inspector General, CISF Headquarter, Eastern Zone, Patna on 13.07.2009. Pending disposal of the appeal, the petitioner submitted defence statement on 07.08.2009, but, subsequently on 02.09.2009, the appellate authority rejected the appeal of the petitioner dated 13.07.2009. 2.4 On consideration of the defence statement, the inquiry officer submitted its enquiry report to the disciplinary authority, who in turn called for representation from the petitioner by supplying copy of the report, vide letter dated 26.08.2009. In response to the same, the petitioner submitted his representation on 09.09.2009 to the disciplinary authority, who passed final order on 15.09.2009 by imposing major penalty of dismissal from service, and further directed that the period of suspension from 27.12.2008 to 15.02.2009 would be treated as not on duty for all purposes. 2.5 Against imposition of major penalty by the disciplinary authority, the petitioner preferred appeal on 18.09.2009 before the Deputy Inspector General, CISF Group Headquarter, Patna, who, vide order dated 16.12.2009, rejected the same. 2.5 Against imposition of major penalty by the disciplinary authority, the petitioner preferred appeal on 18.09.2009 before the Deputy Inspector General, CISF Group Headquarter, Patna, who, vide order dated 16.12.2009, rejected the same. Being aggrieved by such confirming appellate order, the petitioner preferred revision on 11.01.2010 before the revisional authority, i.e., Inspector General, CISF Group Headquarter, Patna, who, vide order dated 31.03.2010, rejected the revision upholding the orders passed by the disciplinary authority imposing major penalty of dismissal from service and treating the period of suspension as such, as well as the order passed by the appellate authority confirming the same, hence this writ application. 3. Mr. L. Samantray, learned counsel for the petitioner contended that denial of defence assistance to the petitioner amounts to violation of principles of natural justice. The inquiry officer concluded the inquiry without recording oral evidence and without giving opportunity of hearing to the petitioner to cross-examine the witnesses examined in support of the charge. The statement recorded by the authority during the preliminary inquiry was adopted as evidence and immediately the petitioner was directed to crossexamine the witnesses, which is against the known procedure of law, as the statement recorded in preliminary inquiry is not a part of record nor has it been exhibited, particularly when the inquiry officer is not authorized under law to accept the same as evidence. So far as allegation of mala fide intention is concerned, neither it has been discussed, nor any material was produced or examined and, as such, no finding has been arrived at to that extent, thereby, the same cannot sustain in the eye of law. 4. It is further contended that the allegation of gross negligence and dereliction in duty are based on no evidence and, as such, none of the witnesses examined have stated anything either about the mala fide intention or with regard to allegation of gross negligence and dereliction in duty by the petitioner Therefore, the report submitted by the inquiry officer cannot have any leg to stand and on that basis the imposition of major penalty of removal from service by disciplinary authority and confirmation made thereof by the appellate authority as well as revisional authority, cannot sustain in the eye of law. Furthermore, such punishment is grossly disproportionate to the charge levelled against the petitioner. Therefore, he seeks for quashing of the entire proceeding initiated against the petitioner. 4.1. Mr. Furthermore, such punishment is grossly disproportionate to the charge levelled against the petitioner. Therefore, he seeks for quashing of the entire proceeding initiated against the petitioner. 4.1. Mr. B. Dash, learned Central Government Counsel supported the orders imposing major penalty by the disciplinary authority, as well the confirmation made thereof by the appellate and revisional authorities, with reference to the materials available on record, and contended that since the petitioner was rendering discipline service, any step taken by him affects the dignity of the organization and more particularly when the petitioner was involved in theft of materials, to keep the image of the organization high, if action has been taken in consonance with the provisions of law, in that case, no illegality or irregularity has been committed by the authority so as to warrant interference of this Court in exercise of extra ordinary jurisdiction. 5. It is further contended that sub-rule (8) (a) of Rule-36 of the Central Industrial Security Force Rules, 2001 provides that the enrolled member of the force so charged may be permitted by the inquiring authority to present his case with the assistance of any other member of the force posted at the place of inquiry. Fie will give three choices for his defence assistance and the controlling officer will depute anyone of the three indicated by him. Since the petitioner desired to have assistance of a member of the force outside the place of inquiry, the inquiry officer has rightly rejected the claim of defence assistance, Thereby, no illegality or irregularity has been committed by the authority, rather the authority has acted in consonance with the provisions of Rules. 6. This Court heard Mr. L. Samantray, learned counsel for the petitioner and Mr. B. Dash, learned Central Government Counsel for opposite parties. and perused the record. Since pleadings have been exchanged, with the consent of learned counsel for the parties, the matter is disposed of finally at the stage of admission. 7. On the basis of the undisputed pleaded facts, it is to be examined whether the petitioner has been provided with opportunity of hearing in compliance of principles of natural justice. 8. Since pleadings have been exchanged, with the consent of learned counsel for the parties, the matter is disposed of finally at the stage of admission. 7. On the basis of the undisputed pleaded facts, it is to be examined whether the petitioner has been provided with opportunity of hearing in compliance of principles of natural justice. 8. In Bhagawan vs. Ramchand, AIR 1965 SC 1767 , the apex Court held that the rule of law demand that the power to determine questions affecting rights of citizens would impose the limitation that the power should be exercised in conformity with the principles of natural justice. 9. In Sukdev Singh vs. Bhagatram, AIR 1975 SC 1331 . the apex Court held that whenever a man's rights are affected by decisions taken under statutory powers, the Court would presume the existence of a duty to observe the rules of natural justice. 10. The soul of natural justice is 'fair play in action'. In Maneka Gandhi vs. Union of India, (1978) 1 SCC 24 , the Hon'ble Justice PN Bhagwati, J, as his lordship then was, has countered natural justice with 'fair play in action'. 11. In HK (An Infant) in re, (1967) 1 All ER 226 (DC) , Lord Parker, CJ, preferred to describe natural justice as 'a duty to act fairly'. 12. In Fairmount Investment Ltd. vs. Secretary of State of Environment, (1976) 2 All ER 865 (HL) , Lord Russej of Kilowen described the natural justice as 'a fair crack of the whip'. 13. In R. vs. Secretary of State for Home Affairs, (1977) 3 All ER 452 (DC & CA) , Geoffery Lane, LJ, in defining the natural justice used the phrase ecommon fairness. 14. In Swadeshi Cotton Mills vs. Union of India, AIR 1981 SCI 81 , the apex Court considered the meaning of 'natural justice' to the following effect:- The phrase is not capable of a static and precise definition. Ill cannot be imprisoned in the straight-jacket of a cast-iron formula. Historically, natural justice has been used in a way "which implies the existence of moral principles of self-evident and unarguable truth", "Natural Justice" by Paul Jackson, 2nd Ed., Page 1. In course of time, judges nurtured in the traditions of British jurisprudence often invoked it in the conjunction with a reference to "equity and good conscience ". Historically, natural justice has been used in a way "which implies the existence of moral principles of self-evident and unarguable truth", "Natural Justice" by Paul Jackson, 2nd Ed., Page 1. In course of time, judges nurtured in the traditions of British jurisprudence often invoked it in the conjunction with a reference to "equity and good conscience ". Legal experts of earlier generations did not draw any distinction between "natural justice" and "natural law". "Natural justice" was considered as g" that part of natural law which relates to the administration of justice." 15. In Swadeshi Cotton Mills (supra), the apex Court held as follows: "Principles of natural justice are principles ingrained into the conscience of men. Justice being based substantially on natural ideals and human values, the administration of justice here is freed from the narrow and restricted considerations which are usually associated with a formulated law involving linguistic technicalities and grammatical niceties. Principles/rules of natural justice are not embodied principles/ rules. Being means to an end and not an end in them, it is not possible to make an exhaustive catalogue of such rules (Principles). 16. In State of U.P. vs. Vijay Kumar Tripathy, AIR 1995 SC 1130 , the apex Court further held that it is important to note that the normal rule that whenever it is necessary to ensure against the failure of justice, the principles of natural justice must be read into a provision. Such a course is not permissible where the rule excludes expressly or by necessary intendment, the application of the principle of natural justice, but in that event the validity of that rule may fail for consideration. 17. In Nagarjuna Construction Company Limited vs. Government of Andhra Pradesh, (2008) 16 SCC 276 , the apex Court held that over the years by a process of judicial interpretation two rules have been evolved as representing the fundamental principles of natural justice in judicial process including therein quasi-judicial and administrative process, namely, an adjudicator should be disinterested and unbiased (nemo judex in causa sua) and that the parties must be given adequate notice and opportunity to be heard (audi alteram partem). They constitute the basic elements of a fair hearing, having their roots in the innate sense of man for fair play and justice which is not the preserve of any particular race 1 or country but is shared in common by all men. 18. They constitute the basic elements of a fair hearing, having their roots in the innate sense of man for fair play and justice which is not the preserve of any particular race 1 or country but is shared in common by all men. 18. Therefore, principles of natural justice are those rules which I have been laid down by the courts as being the minimum protection of the rights of the individual against the arbitrary procedure that may be adopted by a judicial, quasi-judicial and administrative authority while making an order affecting those rights. These rules are intended to prevent such authority from doing injustice. The supreme Court has time and again equated the principles of natural justice with fairness in action, therefore, the Court has insisted upon not so much to act judicially but acting fairly, justly, reasonably and impartially. 19. In D.K. Yadav vs. J.M.A. Industries Ltd. (1993) 3 SCC 259 the apex Court insisted" that in arriving at a decision, the procedure adopted must be just, fair and reasonable in the particular circumstances of the case. Therefore, it is further held that the order of termination of the service of an employee visits him with civil consequences of jeopardizing not only his livelihood but also career and livelihood of dependents. Therefore, before taking any action putting an end to the tenure of an employee, fair play requires that a reasonable opportunity to put forth his case is given and domestic enquiry conducted complying with the principles of natural justice. 20. Applying the above law, so far as principles of natural justice is concerned, as laid down by the apex Court, to the present context it is observed that admittedly the petitioner had applied for taking defence assistance, but the same was denied in view of the provisions contained under sub-rule (8)(a) of Rule-36 of the Central Industrial Security Force Rules, 2001, as the petitioner sought defence assistance from outside the unit. But fact remains, while conducting inquiry, the inquiry officer did not record any oral evidence, rather he depended upon the preliminary inquiry report without permitting the petitioner to cross examine the witnesses in support of the charge. The inquiry officer relied upon the statement recorded by the authority during preliminary inquiry and adopted the same in evidence and, as such, called upon the petitioner to cross-examine the witnesses, which itself is not permissible under law. 21. The inquiry officer relied upon the statement recorded by the authority during preliminary inquiry and adopted the same in evidence and, as such, called upon the petitioner to cross-examine the witnesses, which itself is not permissible under law. 21. In the case of Narayan Dattatraya Ramteerthakhr vs. State of Maharastra, (1997) 1 SCC 299 the apex Court held as follows:- " The preliminary enquiry has nothing to do with the enquiry conducted after the issue of the charge-sheet. The former action would be to find whether disciplinary enquiry should be initiated against the delinquent. After full-fledged enquiry was held, the preliminary enquiry had lost its importance. " 22. In the case of Nirmala J. Jhala vs. State of Gujarat, (2013) 4 SCC 301 , in which reference has also been made to the case of Narayan Dattatraya Ramteerthakhar (supra), in paragraphs 23 and 25 the apex Court held as follows:- "23. In view of the above, it is evident that the evidence recorded in preliminary inquiry cannot be used in regular inquiry as the delinquent is not associated with it, and opportunity to cross-examine the persons examined in such inquiry is not given. Using such evidence would be violative of the principles of natural justice. xx xx xx 25. The preliminary enquiry may be useful only to take a prima facie view, as to whether there can be some substance in the allegation made against an employee which may warrant a regular enquiry." 23. In view of the law laid down by the apex Court mentioned supra it is evident that the evidence recorded in the preliminary inquiry cannot be used in regular inquiry, as the delinquent was not associated with it and opportunity of cross-examination of the persons examined in such inquiry was not given. Therefore, using such evidence would be violative of principles of natural justice. The preliminary inquiry may be useful only to take a prima facie view as to whether there can be some substance in the allegations levelled against the employee, which may warrant a regular inquiry. But that ipso facto cannot give a right to the inquiry officer to proceed without affording opportunity of hearing to the delinquent employee particularly when the preliminary inquiry has nothing to do with the inquiry conducted after issuance of the charge sheet. 24. But that ipso facto cannot give a right to the inquiry officer to proceed without affording opportunity of hearing to the delinquent employee particularly when the preliminary inquiry has nothing to do with the inquiry conducted after issuance of the charge sheet. 24. The purpose of preliminary inquiry is to find out whether the disciplinary proceeding should be initiated against the delinquent or not. After full-fledged enquiry was held, the preliminary enquiry lost its importance. More particularly, the preliminary inquiry report is neither part of the record nor has it been exhibited. Therefore, the inquiry officer cannot utilize the statement made in the preliminary inquiry against the petitioner by accepting the same as evidence, as the same would amount to gross violation of principles of natural justice. 25. Needless to say that for the selfsame allegation, criminal case was also instituted against the petitioner and by the time the departmental proceeding was initiated against the petitioner, the criminal case was pending before the appropriate forum. Though law is well settled that departmental proceeding is not a bar during pendency of the criminal case, but it has got its bearing while imposing major penalty of dismissal from service in a departmental proceeding. In any case, since the inquiry officer has not acted in compliance of the principles of natural justice, while conducting inquiry, and submitted the inquiry report, this Court is of the considered view that relying upon the report of the inquiry officer, if the disciplinary authority imposed major penalty of dismissal from service, which has been confirmed by the appellate authority and revisional authority, even though this point was raised and the same was not considered in proper perspective by the said authorities, the order so passed cannot sustain in the eye of law. 26. Accordingly, the inquiry report in Annexure-14 dated 26.08.2009 basing upon which the order of major penalty has been passed by the disciplinary authority in Annexure-16 dated 15.09.2009 and confirmation thereof by the appellate authority in Annexure-18 dated 16.12.2009 as well as revisional authority in Annexure-20 dated 31.03.2010 are hereby quashed and the matter is relegated to the stage of inquiry. The inquiry officer is directed to cause a de novo inquiry on the basis of the materials available on record, by affording opportunity of hearing to the petitioner, in compliance of principles of natural justice, and submit a fresh report as expeditiously as possible. The inquiry officer is directed to cause a de novo inquiry on the basis of the materials available on record, by affording opportunity of hearing to the petitioner, in compliance of principles of natural justice, and submit a fresh report as expeditiously as possible. With the above observation and direction, the writ petition stands disposed of. No order to cost.