Research › Search › Judgment

Uttarakhand High Court · body

2022 DIGILAW 351 (UTT)

Subhash Chandra v. State of Uttarakhand

2022-10-18

R.C.KHULBE, VIPIN SANGHI

body2022
JUDGMENT : VIPIN SANGHI, J. 1. The present special appeal is directed against the detailed judgment rendered by the learned Single Judge in WP (SS) No. 1300 of 2011 preferred by the appellant. The learned Single Judge has dismissed the said writ petition and declined to interfere with the order of termination dated 09.03.2010 as well as the orders dated 16.09.2010 and 30.07.2011, passed in the revision and the appeal respectively, post the termination of the appellant’s services on 09.03.2010. The said orders dismissed the challenge to the termination. 2. The background facts are that the appellant was serving as a Constable in the Police. On 11.04.2009, one FIR was registered against him under Sections 376, 420, 307 and 506 IPC. The appellant, with a view to get out of the charge got his marriage registered with the victim on 28.04.2009 and on that premise the said criminal case was compounded. Pertinently, the victim also gave birth to a child on 26.07.2009, out of the relationship that the appellant had with the victim. On the basis of the complaint made by the victim, an enquiry was initiated against the appellant. The victim appeared in the proceedings and gave her statement against the appellant. The appellant was repeatedly given the opportunity to cross-examine the witnesses of the department and also to lead his own evidence, if he so desires. The appellant did neither. He also stated that he does not wish to make any submissions. The Enquiry Officer found the appellant guilty and recommended that the appellant be punished. The Disciplinary Authority gave an opportunity to the appellant to show-cause with regard to the imposition of punishment. After that opportunity, the petitioner was terminated from his service. 3. As noticed above, his departmental revision and appeal were dismissed, whereafter he preferred the aforesaid writ petition. 4. The submission of the appellant that the charge-sheet had been issued not by the Disciplinary Authority, but by the Enquiry Officer was examined by the learned Single Judge and he found that the charge-sheet had been approved by the Disciplinary Authority and that it was merely issued by the Enquiry Officer. Therefore, learned Single Judge did not find merit in the submission that the charge-sheet has been issued under the Authority of an officer, lower in rank to the Disciplinary Authority. We find no merit in the challenge to the said findings. Therefore, learned Single Judge did not find merit in the submission that the charge-sheet has been issued under the Authority of an officer, lower in rank to the Disciplinary Authority. We find no merit in the challenge to the said findings. What is of importance is the fact that the charge sheet was approved by the Disciplinary Authority. It is not that the Enquiry Officer has issued the same on his own. 5. One other infirmity pointed out by the appellant qua the enquiry proceedings, was that after issuance of the charge-sheet, the Enquiry Officer was appointed straightway and the appellant was not given an opportunity to respond to the charges levelled against him. The further submission is that during the course of enquiry, the Enquiry Officer first called upon the appellant to make his statement, and state whether he would lead any evidence and cross-examine the witnesses. 6. These submissions have been rejected by the learned Single Judge, and we also do not find any merit in the same. From a point when mere irregularity in conduct of the departmental enquiry, and denial of principles of natural justice were considered sufficient to quash the enquiry proceedings, the law has progressed, and in all such cases, the question that the Court would now ask is as to what is the prejudice suffered by the charged officer, even if, there are some irregularities in the procedure adopted in the conduct of the departmental proceedings. 7. In this light, we may examine the aforesaid submissions of the appellant. It is not the appellant’s case that he ever admitted his guilt in respect of the charges levelled against him. Therefore, denial of the so-called opportunity to respond to the charges before initiation of a formal enquiry is neither here, nor there. 8. Moreover, the Enquiry Officer himself called upon the appellant to state what he had to, in response to the charges levelled against him, and that itself tantamounts to an opportunity to him to say what he would have said, if prior to appointment of the Enquiry Officer, he had been given a similar opportunity by the Disciplinary Authority himself. 9. Another submission of the appellant is that he was asked to disclose his defence right in the beginning by stating what he had to and also whether he would cross-examine the witnesses of the department, and lead his own evidence. 10. 9. Another submission of the appellant is that he was asked to disclose his defence right in the beginning by stating what he had to and also whether he would cross-examine the witnesses of the department, and lead his own evidence. 10. Departmental proceedings are not a criminal trial, where strict rules of procedure and evidence are required to be followed. The appellant denied the charges levelled against him. He was not coerced into disclosing, or stating something adverse to his defence or interest. It is not that he was asked whether he would lead his evidence, or cross-examine the witness of the department, only once in the beginning, and not at the later relevant stages. Even after the statements of the departmental witnesses were recorded, the appellant was again given the opportunity and asked whether he would like to cross-examine the witnesses of the department, and lead his own evidence and also to make his submission. To all such opportunities, the response of the appellant was in the negative. Therefore, no prejudice was caused to the appellant due to the so-called infirmities. 11. The further submission of the appellant is that the Enquiry Officer himself stated as to what punishment should be inflicted upon the appellant. That observation of the Enquiry Officer could, at the highest, be considered as a recommendation, which was not binding on the Disciplinary Authority and it was for the Disciplinary Authority to decide the fate of the appellant based on his appreciation of the inquiry report, in light of the evidence recorded during the inquiry. 12. The main plank of the appellant’s submission is that the Disciplinary Authority, after receipt of the inquiry report did not give a copy of the enquiry report to the appellant, and without calling for the appellant’s submission proceeded to conclude that the appellant was guilty of the charges levelled against him. 13. Mr. Saharia has argued that on this aspect of the matter even the learned Single Judge has found in favour of the appellant. He has placed heavy reliance on the judgment of the Hon’ble Supreme Court in Managing Director, ECIL, Hyderabad and Others vs. B. Karunakar and Others, (1993) 4 SCC 727 . 14. 13. Mr. Saharia has argued that on this aspect of the matter even the learned Single Judge has found in favour of the appellant. He has placed heavy reliance on the judgment of the Hon’ble Supreme Court in Managing Director, ECIL, Hyderabad and Others vs. B. Karunakar and Others, (1993) 4 SCC 727 . 14. Perusal of the impugned judgment shows that the learned Single Judge has observed that the observation made by the Disciplinary Authority while forwarding the inquiry report to the appellant-and calling for his response on the aspect of the punishment, does not tantamount to him actually making up his mind on the guilt of the appellant. 15. However, even if this submission of Mr. Saharia in this regard were to be accepted, once again, we have to examine as to what is the prejudice suffered by the appellant in the facts of the present case. 16. As noticed above, the appellant hardly contested the disciplinary proceedings. He neither cross-examined the departmental witnesses, including the complainant, nor led his own evidence. He also did not avail of the opportunity to make his submissions. On the other hand, the evidence of the department was sufficient to find the appellant guilty of the charges levelled against him. The star witness of the department was the complainant herself. Pertinently, the appellant does not deny the fact that he was in a relationship with the complainant, and she gave birth to his child. He also does not dispute that he did register his marriage with the complainant, on the basis of which, the serious case registered against him was compounded. He also does not dispute that he has actually not accepted the complainant as his wife and the child as his own. 17. In this view of the matter, even if one were to proceed on a strict application of the rule that the Disciplinary Authority should not make up his mind with regard to the guilt of the Delinquent Officer, till an opportunity is given to him to meet the findings in the inquiry report and, even if, the penalty order were to be quashed and the matter remanded back for reconsideration from the stage when the said so-called infirmity kept into the disciplinary proceedings, the position would be no different and ultimately the same result would follow. 18. 18. This is for the reason that the appellant did not contest the proceedings when the inquiry was conducted by the Inquiry Officer. Pertinently, even in the writ-petition, the appellant has not disclosed as to what is it that he would have stated before the Disciplinary Authority to say that he was not guilty of the charge levelled against him, which would have made a difference in the finding of guilt arrived at against him by the Disciplinary Authority. 19. We are, therefore, of the view that, in fact, no prejudice has been caused to the appellant. Rules of procedure are handmaidens of justice, and they cannot be exploited by a person-such as the appellant, to defeat justice. With conduct as has been found against the appellant and which is writ large from the record, the appellant certainly does not deserve to remain in the police force, in any capacity whatsoever. 20. We are, therefore, not inclined to interfere with the impugned judgment and the same is, accordingly, dismissed.