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2022 DIGILAW 151 (MAN)

Manoj Kumar Sharma v. Union of India

2022-08-09

M.V.MURALIDARAN

body2022
JUDGMENT 1. This writ petition has been filed by the petitioner to issue a writ of certiorarified mandamus to quash the impugned denovo enquiry dated 20.07.2021 and to direct the disciplinary authority to pass appropriate order in terms of the enquiry report submitted by the Inquiry Officer, Presenting Officer and defence brief of the charge officer within a stipulated period of three months, failing which, the memorandum of charge dated 27.11.2019 be automatically cancelled. 2. Briefly stated, the case of the petitioner is as follows: The petitioner joined in the Central Reserve Police Force on 1.12.1994 as Assistant Commandant and was promoted to the rank of Deputy Commandant in the year 2001 and as Second Commandant in the year 2007 and then to the post of Commandant in the year 2012. Presently, the petitioner is posted at the office of the IGP, M&N Sector, CRPF, Langjing, Imphal, Manipur as Commandant. 2.1. Throughout his service, the petitioner has earned outstanding grading in the Annual Performance Grading Appraisals and he has been awarded seven times DG CRPF Commendation Disc Roll, 2 DG Manipur Commendation Disc Roll, 42 DG CRPF Commendation Certificates, 2 Army Chief Commendation, 2 Union Secretary Commendation and many more awards till now and there are no adverse remarks against him till date. While so, when the petitioner was working at GC, CRPF, Gwalior, on 27.11.2019, he was issued with memorandum under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 for the misconduct and misbehavior for holding the departmental enquiry. Upon receipt of the memorandum, the petitioner submitted a written statement denying each and every line of the Article of charges framed. 2.2. On 11.3.2020, Shri Ajay Kumar Singh, DIG (IRLA- 3630) GC, CRPF, Bhopal and Shri Hari Kant Singh, Commandant (IRLA - 4739), 41 Bn, CRPF were appointed as Enquiry Officer and Presenting Officer respectively to inquire into charges. From 14.7.2020 to 3.11.2020, the disciplinary proceedings against the petitioner was conducted by the Enquiry Officer in the presence of the Presenting Officer and the petitioner. Upon examination of the prosecution and defence witnesses, the enquiry was concluded on 3.11.2020. On 19.11.2020, the Presenting Officer submitted the written prosecution to the Inquiry Authority for doing the needful with copy to the petitioner on 20.11.2020 asking him to submit any defence brief within 15 days. 2.3. Upon examination of the prosecution and defence witnesses, the enquiry was concluded on 3.11.2020. On 19.11.2020, the Presenting Officer submitted the written prosecution to the Inquiry Authority for doing the needful with copy to the petitioner on 20.11.2020 asking him to submit any defence brief within 15 days. 2.3. After the receipt of the written prosecution, on 16.12.2020 the petitioner submitted the defence brief to the Enquiry Officer, GC, Bangrasia, Bhopal for further course of action stating that all the allegations levelled against the petitioner are false. While so, on 20.7.2021, the DIG (CR &Vig), Directorate General, CRPF, New Delhi issued the de-novo inquiry under Rule 15(1) of CCS (CCA) Rules against the petitioner in connection with the memorandum dated 27.11.2019 without applying the mind. Challenging the same, the petitioner has filed the writ petition. 3. The respondents filed affidavit-in-opposition stating that after obtaining approval of the disciplinary authority to initiate major penalty proceedings, memorandum of articles of charge was issued against the petitioner on 27.11.2019 with a direction to submit statement of defence. Upon receipt of statement of defence, the Enquiry Officer and the Presenting Officer were appointed and after completion of the enquiry, the Enquiry Officer submitted his report on 29.1.2021. It is stated that on enquiry, it was notified that the departmental enquiry against thepetitoner was fraud with contradictions in the statements of witnesses, besides non-examination of evidences by the Enquiry Officer resulting in serious infirmities in the enquiry report. Therefore, the departmental enquiry report was remitted to the Enquiry Officer Shri Ajay Kumar Singh for conducting enquiry de-novo from the stage of examination of prosecution witnesses vide order dated 20.7.2021. 4. Aggrieved by the order dated 20.7.2021, the petitioner has submitted a representation on 3.10.2021 to reconsider the issue and to accept the inquiry report of the previous enquiry officer. The said representation was rejected and the same was informed through letter dated 3.11.2021 with a request to participate in the enquiry proceedings. On 1.12.2021, the petitioner submitted another representation and vide signal dated 7.12.2021 the position was explained to the petitioner. Despite that, the petitioner submitted another representation on 7.12.2021 and vide signal dated 10.12.2021, the factual position was explained to him. Since the petitioner sought documents to defend his case in the departmental enquiry, the same were sent to the Presenting Officer to make available to the petitioner on 1.2.2022. Despite that, the petitioner submitted another representation on 7.12.2021 and vide signal dated 10.12.2021, the factual position was explained to him. Since the petitioner sought documents to defend his case in the departmental enquiry, the same were sent to the Presenting Officer to make available to the petitioner on 1.2.2022. However, the petitioner has filed the present writ petition, which is not maintainable and the same is liable to be dismissed. 5. Assailing the impugned order, Mr. M. Devananda, the learned counsel for the petitioner submitted that the impugned order dated 20.7.2021 was issued is in violation of Rule 159(1) of the CCS (CCA) Rules, 1965 and the said Rule, nowhere speaks about the de-novo enquiry. If the authority is not satisfied with the enquiry report submitted by the Enquiry Officer, the disciplinary authority can direct for further enquiry in continuation of the proceedings. 6. The learned counsel further submitted that if the disciplinary authority is of the view that the enquiry is incomplete or irregular, he can only remit the case for further enquiry and cannot order de-novo enquiry and there is words of difference between de-novo enquiry and further enquiry. He would submit that in the further enquiry, whatever omission was there in the enquiry which can be supplied as per rules, can be supplied by adducing further evidence. But if it is a de-novo enquiry, whatever was recorded at the earlier enquiry would not form part of the enquiry file which is likely to prejudice the Government servant facing the charge. If that is allowed, the disciplinary authority if he finds that the evidence at the enquiry is in favour of the charged officer, can wipe them off by ordering a de-novo enquiry to be commenced with a clean state. 7. The learned counsel urged that under Rule 15 (1) or (2), no power has been given to the disciplinary authority to reject the report of the Enquiry Officer and order de-novo enquiry and it can only direct further enquiry that too by recording reasons in writing. But in this case, no reason has been recorded for holding the de-novo enquiry. 8. But in this case, no reason has been recorded for holding the de-novo enquiry. 8. The learned counsel next submitted that the change of the Enquiry Officer in the place of Shri Ajay Kumar Singh on the ground of administrative reason, again seems to be incongruity to the stipulated rules, as the original Enquiry Officer is very much available in the Department and is presently posted in the Directorate General, CRPF itself. According to learned counsel, after completion of the enquiry proceedings, the Enquiry Officer did not furnish the enquiry report to the petitioner till date without any reason, instead issued the de-novo enquiry without considering the enquiry report, the prosecution brief of the Presenting Officer and the written defence. Thus, the learned counsel prayed for setting aside the impugned order and to direct the disciplinary authority to pass orders in terms of the enquiry report submitted by the Enquiry Officer. 9. Per contra, Mr. Kh. Samarjit, the learned ASG submitted that on examination of the enquiry report, it was found that the departmental enquiry against the petitioner was not done in proper manner and was with contradictions in the statements of witnesses, besides non-examination of evidence by the Enquiry Officer. Thus, there is serious infirmities in the enquiry report. Therefore, the departmental enquiry report was remitted to the Enquiry Officer for conducting enquiry de-novo from the stage of examination of prosecution witnesses. 10. The learned ASG further submitted that since Shri Ajay Kumar Singh requested for exemption as Enquiry Officer and he had been transferred and was assigned duties of SSO to DG, CRPF with number of engagements, his request was considered and in his place another Enquiry Officer namely Shri Mohinder Kumar, DIG was appointed on 2.8.2021 and that there is no infirmity in it. Arguing so, the learned ASG prayed for dismissal of the writ petition. 11. This Court considered the rival submissions and also perused the materials available on record. 12. The petitioner initially joined in the CRPF on 1.12.1994 as Assistant Commandant and got promotion to the post of Deputy Commandant and then to the post of Commandant in the year 2012. While the petitioner was serving at GC, CRPF, Gwalior, on 27.11.2019, the petitioner was issued with memorandum of charge under Rule 14 of the CCS (CCA) Rules, 1965 for misconduct and misbehavior. 13. While the petitioner was serving at GC, CRPF, Gwalior, on 27.11.2019, the petitioner was issued with memorandum of charge under Rule 14 of the CCS (CCA) Rules, 1965 for misconduct and misbehavior. 13. The following are the charges levelled against the petitioner: 'Article-I That the Shri Major Majoy Kumar Sharma, Comdt. (IRLA:4004) while functioning as Comdt. In CTC, CRPF, Gwalior committed an act of misconduct in that on 17.03.2019 at about 2300-2330 hours he pelted stones on the Govt. Quarters of Dr. Ashok Narayan, CMO (IRLA:4169) and WAT of GC, CRPF, Gwalior. Thus, Shri Majo Kumar Sharma, Comdt. (IRLA:4004) of CTC Gwalior has committed an act unbecoming of a Government servant in violation of provision of Rule 3(1)(iii) of CCS (Conduct) Rules, 1964. Article-II That during the aforesaid period and while functioning in the aforesaid office, the said Shri Manoj Kumar Sharma, Comdt. (IRLA 4004) committed an act of misconduct in that on 17.03.209 at about 2300-2330 hours, he tried to snatch Rifle of No.055254956 CT/GD Hanvate Yogesh Kondiram of GC, CRPF, Gwalior who was on Sentry duty near Govt. Quarters of Dr. Ashok Narayan, CMO of GC Gwalior. Thus, Shri Manoj Kumar Sharma, Comdt. (IRLA:4004) of CTC Gwalior has committed an act unbecoming of a Government servant in violation of provision of Rule 3(1)(iii) of CCS (Conduct) Rules, 1964. Article-III That during the aforesaid period and while functioning in the aforesaid office, the said Shri Manoj Kumar Sharma, Comdt. (RLA 4004) committed an act of misconduct in that on 17.03.2019 at 2300-2330 hours, he slapped No.920340509 HC/GD Raj Kishore Sharma of GC, Gwalior (the Guard Commander) and pushed down his personal Motor Cycle due to which HC/GD Raj Kishore Sharma sustained minor injury in his left leg. Thus, Shri Manoj Kumar Sharma, Comdt. Of CTC Gwalior has committed an act unbecoming of a Government servant in violation of provision of Rule 3(1)(iii) of CCS (Conduct) Rules, 1964.' 14. It is an admitted fact that on receiving the memorandum dated 27.11.2019, the petitioner had submitted his written statement and on 11.3.2020, the DIGP (CR & Vig), Directorate General, CRPF, appointed Shri Ajay Kumar Singh, DIG, GC, CRPF, Bhopal as an Enquiry Officer and Shri Hari Kant Singh, Commandant, 41 Bn, CRPF as Presenting Officer to enquire into the charges levelled against the petitioner. 15. 15. There is no dispute that the enquiry proceedings were conducted from 14.7.2020 to 03.11.2020 and during the course of enquiry, the Enquiry Officer recorded the statement of 4 prosecution witnesses and one defence witness and concluded the proceedings on 3.11.2020. After the conclusion, the Presenting Officer submitted his written prosecution brief to the Inquiry Authority for further action. According to the petitioner, in the written brief dated 19.11.2020, the Presenting Officer stated that charges against the petitioner are not proved. 16. On 20.11.2020, the Presenting Officer prepared the written prosecution brief in the departmental enquiry conducted against the petitioner and furnished copy of the same to the petitioner calling upon him to furnish his defence brief within 15 days. On 16.12.2020, the petitioner submitted the defence brief to the Enquiry Officer for further course of action stating that the allegations levelled against him are false and do not stand scrutiny of evidence and deserve to be disproved. 17. While things stood thus, by the impugned order dated 20.7.2021 the 5th respondent ordered de-novo enquiry under Rule 15(1) of CCS (CCA) Rules, 1965 against the petitioner in connection with the charge memo dated 27.11.2019. According to the petitioner, the issuance of the impugned order is in violation of the Rules provided in the CCS (CCA) Rules, 1965. 18. At this juncture and for proper appreciation, it would be appropriate to extract the operative portion of the impugned order: '4. AND WHEREAS, The Disciplinary Authority is bound to consider the entire records of inquiry carefully in an independent and impartial manner and reach an independent conclusion regarding question of guilt or innocence of CO. The disciplinary authority cannot mechanically accept the inquiry report and it should not be vitiated by any bias as the principles of impartiality and fairness is equally applicable to both the parties and every authority is required to act in a judicial manner. In the instant case, given the shortcomings and contradictions noticed, the Disciplinary Authority is convinced that there are infirmities in the inquiry proceedings, which need to be rectified. 5. In the instant case, given the shortcomings and contradictions noticed, the Disciplinary Authority is convinced that there are infirmities in the inquiry proceedings, which need to be rectified. 5. NOW, THEREFORE, in terms of Rule 15(1) of CCS (CCA) Rules, 1965, the Disciplinary Authority hereby directs that a de-novo inquiry in the case may be held by Shri Ajay Kumar Singh, DIG (the IO) and Shri Hari Kant Singh, Commandant (PO) as per procedure laid down in CCS (CCA) Rules, 1965 from the stage of examination of prosecution witnesses.' 19. It would also be appropriate to extract Rule 15(1) of CCS (CCA) Rules, 1965, which reads thus: '15. Action on inquiry report (1) The disciplinary authority, if it is not itself the inquiring authority may, for reasons to be recorded by it in writing, remit the case to the inquiring authority for further inquiry and report and the inquiring authority shall thereupon proceed to hold the further inquiry according to the provisions of Rules 14, as for as may be. (2) The disciplinary authority shall forward or cause to be forwarded a copy of the report of the inquiry, if any, held by the Disciplinary Authority or where the Disciplinary Authority is not the Inquiring Authority, a copy of the report of the Inquiring Authority together with its own tentative reasons for disagreement, if any, with the findings of Inquiring Authority on any article of charge to the Government Servant who shall be required to submit, if he so desires, his written representation or submission to the Disciplinary Authority within fifteen days, irrespective of whether the report is favourable or not in the Government servant. (2-A) The Disciplinary Authority shall consider the representation, if any submitted by the Government servant and record its findings before proceedings further in the matter as specified in sub-rules (3) and (4). (2-A) The Disciplinary Authority shall consider the representation, if any submitted by the Government servant and record its findings before proceedings further in the matter as specified in sub-rules (3) and (4). (3) If the disciplinary authority having regard to its findings on all or any of the articles of charge is of the opinion that any of the penalties specified in clauses (i) to (iv) of Rule 11 should be imposed on the Government Servant, it shall, notwithstanding anything contained in Rule 16, make an order imposing such penalty: Provided that in every case where it is necessary to consult the commission the record of the inquiry shall be forwarded by the disciplinary authority to the Commission for its advice and such advice shall be taken into consideration before making any order imposing ay penalty on the Government Servant. (4) If the disciplinary authority having regard to its findings on all or any of the articles of charge and on the basis of the evidence adduced during the inquiry is of the opinion that any of the penalties specified in clauses (v) to (ix) of Rule 11 should be imposed on the Government Servant, it shall make an order imposing such penalty and it shall not be necessary to give the Government Servant any opportunity of making representation on the penalty proposed to be imposed: Provided that in every case where it is necessary to consult the commission, the record of the inquiry shall be forwarded by the disciplinary authority to the commission for its advice and such advice shall be taken into consideration before making an order imposing any such penalty on the Government servant.' 20. On a reading of Rule 15(1) of the CCS (CCA) Rules, 1965, it is clear that Rule 15(1) stipulates about 'further enquiry' and not any de-novo enquiry. However, the respondents states by misinterpreting that the word 'further inquiry' mentioned in Rule 15(1) contains wide scope and it may not be appropriate to restrict the meaning of word 'further' to one of its dictionary meanings i.e. 'from the beginning' alone. On careful analysis, the interpretation given by the respondents is unacceptable. 21. In the case on hand, after completing the enquiry, the Presenting Officer submitted his written prosecution brief to the Inquiry Authority for further action on 19.11.2020. On careful analysis, the interpretation given by the respondents is unacceptable. 21. In the case on hand, after completing the enquiry, the Presenting Officer submitted his written prosecution brief to the Inquiry Authority for further action on 19.11.2020. On a perusal of the written brief, this Court finds that the opinion of the Presenting Officer that the charges stands not proved was after analyzing the articles and the evidences of both the prosecution and the defence. While so, if the disciplinary authority is of the view that there are infirmities in the enquiry proceedings, the disciplinary authority ought not to have ordered do-novo enquiry. On the other hand, the disciplinary authority, by recording reasons, may remit the case to the Enquiry Officer for 'further enquiry' and the examination of prosecution witnesses from the beginning is not warranted. 22. In K.R.Deb v. The Collector of Central Excise, Shillong, 1971 (2) SCC 102 relied on by the learned counsel for the petitioner, it has been held as under: '12. It seems to us that Rule 15, on the face of it, really provides for one inquiry but it may be possible if in a particular case there has been no proper enquiry because some serious defect has crept into the inquiry or some important witnesses were not available at the time of the inquiry or were not examined for some other reason, the Disciplinary Authority may ask the Inquiry Officer to record further evidence. But there is no provision in Rule 15 for completely setting aside previous inquiries on the ground that the report of the Inquiring Officer or Officers does not appeal to the Disciplinary Authority. The Disciplinary Authority has enough powers to re-consider the evidence itself and come to its own conclusion under Rule 9.' 23. At this juncture, the learned ASG submitted that it may not be appropriate to restrict the meaning of word 'de-novo' to one of its dictionary meaning i.e. 'from the beginning'. It needs to be interpreted with the procedure for conducting the departmental enquiry as laid down in Rule 14 of CCS (CCA) Rules. The de-novo enquiry ordered vide the impugned order dated 20.7.2021 from the stage of examination of prosecution witnesses afresh is within the ambit of further enquiry provided under Rule 15(1). 24. It is not in dispute that the term 'de-novo' means from the beginning. The de-novo enquiry ordered vide the impugned order dated 20.7.2021 from the stage of examination of prosecution witnesses afresh is within the ambit of further enquiry provided under Rule 15(1). 24. It is not in dispute that the term 'de-novo' means from the beginning. As per the de-novo enquiry, the departmental enquiry has to be commenced afresh. In the instant case, no patent irregularity or illegality in the enquiry has been established. On the other hand, the disciplinary authority in the impugned order simply stated that the Presenting Officer has failed to brought on record the contradictions in the statements of prosecution witnesses to the Inquiry Officer and some of the aspects have not been properly examined by the Presenting Officer. When such being the view of the disciplinary authority, he ought not to have ordered de-novo enquiry. Without pointing out any patent irregularity or illegality in the enquiry proceedings, the disciplinary authority has passed an order for de-novo enquiry, which is not sustainable in law. 25. It is settled law that in case the disciplinary authority differs with the findings of the Enquiry Officer, he has to record his tentative findings with reasons therefor and communicate them along with the enquiry report and afford an opportunity to the delinquent to give his reply. After considering the reply only, the disciplinary authority has to pass appropriate order imposing the penalty or otherwise. It will be illegal on the part of the disciplinary authority to order a fresh de-novo enquiry just because he does not agree with the finding of the Enquiry Officer or the Presenting Officer, as the case may be. 26. It is settled proposition of law that mere irregularity in the enquiry report is not sufficient for ordering 'de-novo' enquiry and the sine quo nan or pre-condition required for ordering 'denovo' enquiry are: (1) The authority ordering 'de novo' enquiry must be empowered with the power of setting aside the enquiry report, submitted by the enquiry officer and the order passed by disciplinary authority, either as appellate or revisional authority. (2) Further, to order 'de novo' enquiry, there should be patent irregularity or illegality in the earlier enquiry report submitted by the enquiry officer, and (3) Without setting aside the earlier report, based on adequate reasoning, 'de novo' enquiry cannot be ordered by the authority.' 27. (2) Further, to order 'de novo' enquiry, there should be patent irregularity or illegality in the earlier enquiry report submitted by the enquiry officer, and (3) Without setting aside the earlier report, based on adequate reasoning, 'de novo' enquiry cannot be ordered by the authority.' 27. In the instant case, no such opportunity was given to the petitioner seeking his reply. On the other hand, by the order dated 2.8.2021, the disciplinary authority changed the Enquiry Officer for de-novo enquiry. Assuming that further enquiry needed, it cannot be remitted to a new Enquiry Officer and the further enquiry should be done by the same Enquiry Officer, if original Enquiry Officer is available. That apart, the reason for change of the Enquiry Officer namely Shri Mohinder Kumar, DIG, Range Headquarters, CRPF, Neemuch in the place of Shri Ajay Kumar Singh stated by the respondents is due to administrative reasons. In this regard, the Central Vigilance Manual stipulates that the case for further enquiry cannot be remitted to new Enquiry Officer. The reason for changing the Enquiry Officer stated in the order dated 2.8.2021 is unacceptable. 28. As per Rule 15(1) of the CCS (CCA) Rules, 1965, the disciplinary authority, if it disagrees with the findings of the enquiry authority on any article of charge, record its reasons for such disagreement and also its own findings on such charge if the evidence on record is sufficient for the purpose. Whatever omission was there in the enquiry which can be supplied as per rules, can be supplied by adducing further evidence. 29. As rightly argued by learned counsel for the petitioner, if it is a de-novo enquiry, whatever was recorded at the earlier enquiry would not form part of the enquiry file which is likely to prejudice the delinquent facing the charge. If that is allowed, the disciplinary authority, if he finds that the evidence at the enquiry is in favour of the charged officer, can wipe them off by ordering a den-novo enquiry to be commenced with a clean state. 30. As stated supra, a careful reading of Rule 15(1), the disciplinary authority can remit the case to the Enquiry Officer who enquired the case for 'further enquiry' and the word 'further' implies that the earlier enquiry cannot be dumped for good and a fresh enquiry be conducted. 31. 30. As stated supra, a careful reading of Rule 15(1), the disciplinary authority can remit the case to the Enquiry Officer who enquired the case for 'further enquiry' and the word 'further' implies that the earlier enquiry cannot be dumped for good and a fresh enquiry be conducted. 31. The learned counsel for the petitioner submitted that after insertion of Rule 14(24) of CCS (CCA) Rules, 1965, vide notification dated 2.6.2017, the Government laid down a statutory period of 6 months for completion of department enquiries against Government servants. In the instant case, the departmental enquiry was proceeding since 2019 and when the departmental enquiry is conducted against the employee, the said departmental enquiry cannot be treated as casual exercise. He further added that the disciplinary authority has to be wholly unbiased, impartial and fair. 32. As could be seen from the materials produced, this Court is of the view that the holding of de-novo enquiry is not in the interest of public, but it is in the interest of some vested officer. It is also the submission of learned counsel for the petitioner that disciplinary authority has taken for more than two years to complete the disciplinary proceedings and the delay in completion of the disciplinary proceedings deny the petitioner for his promotion for consideration in the next higher post which is also in violation of Article 21 of the Constitution of India. We find some force in the said argument of learned counsel for the petitioner. 33. For the foregoing discussions, this Court is of the view that there is difference between 'de-novo enquiry' and 'further enquiry'. As stated supra, in the further enquiry, whatever omission was there in the enquiry which can be supplied as per rules, can be supplied by adducing further evidence. But if it is a de-novo enquiry, whatever was recorded at the earlier enquiry would not form part of the enquiry file which is likely to prejudice the petitioner who faced the charge. Therefore, the de-novo enquiry ordered by the respondent authority is not warranted in this case. Thus, the impugned order dated 20.7.2021 issued by the disciplinary authority is not sustainable in the eye of law and therefore, the same is liable to the set aside. 34. Therefore, the de-novo enquiry ordered by the respondent authority is not warranted in this case. Thus, the impugned order dated 20.7.2021 issued by the disciplinary authority is not sustainable in the eye of law and therefore, the same is liable to the set aside. 34. In the result, a) the writ petition is allowed, b) the impugned order dated 20.7.2021 ordering de-novo enquiry is set aside, c) the disciplinary authority is directed to pass an appropriate order in terms of the enquiry report submitted by the Enquiry Officer and the Presenting Officer, within a period of two months from the date of receipt of a copy of this order. No costs.