S.r. Chhari Vs State Of Chhattisgarh and Ors.

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NAFR

HIGH COURT OF CHHATTISGARH, BILASPUR WPS No.1222 of 2014

Shyam Lal Patel S/o Late M.R. Patel Aged About 55 Years Working As Head Constable, P.S. Farasgaon, Distt. Kondagaon, C.G. , Chhattisgarh ---- Petitioner

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Versus

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1. State Of Chhattisgarh Through its Secretary Department Of Home and Police, Mahanadi Bhawan,New Raipur, Distt. Raipur C.G.

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2. The Director General Of Police, P.H.Q. Raipur C.G.,

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3. The Inspector General Of Police, Bastar Range, Jagdalpur Chhattisgarh ---- Respondents

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with

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WPS No. 1223 of 2014

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S.R. Chhari S/o Late K.R. Chhari, Aged About 59 Years Working As Sub Inspector, At Police Lines, Kondagaon, C.G. Distt. Kondagaon. C.G. , Chhattisgarh ---- Petitioner

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Versus

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1. State Of Chhattisgarh Through its Secretary, Department of Home and Police, Mantralaya, Mahanadi Bhawan New Raipur C.G., Chhattisgarh

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2. The Director General Of Police, Chhattisgarh P.H.Q. Raipur C.G., District : Raipur, Chhattisgarh

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3. The Inspector General Of Police Bastar Range, Jagdalpur Distt. Bastar C.G., District : Bastar(Jagdalpur), Chhattisgarh

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---- Respondents

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with

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WPS No.1224 of 2014

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Santosh Kumar Sharma S/o Late U.P. Sharma Aged About 43 Years Working As Head Constable, At - District Police, Bilaspur, P.S. Civil Line Bilaspur , Distt. Bilaspur C.G. , Chhattisgarh

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---- Petitioner

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Versus

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1. State Of Chhattisgarh Through Its Secretary, Department Of Home Police Mantralaya Mahanadi Bhawan, Naya Raiur C.G., Chhattisgarh

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2. The Director General Of Police State Of Chhattisgarh P.H.Q. Raipur C.G., District : Raipur, Chhattisgarh

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3. The Inspector General Of Police Bastar Range, Jagdalpur Distt. Bastar C.G., District : Bastar(Jagdalpur), Chhattisgarh

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---- Respondents

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(Cause-title taken from Case Information System)

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For Petitioners : Ms. Juhi Anguria, Advocate holding brief of Mr. Rajesh Kumar Kesharwani, Advocate For State : Mr. Satish Gupta, G.A.

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Hon'ble Shri Justice Rakesh Mohan Pandey Order on Board

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23.07.2024

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Heard.

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1. In these three petitions, the petitioners have challenged the order dated 28.05.2013 passed by respondent No. 3/the Inspector General of Police whereby punishment of deduction of one rank was passed against the petitioners.

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2. Ms. Anguria, the learned counsel appearing for the petitioners submitted that the petitioner/Shyam Lal Patel was demoted from the post of Assistant Sub-Inspector to Head Constable, the petitioner/S.R. Chhari was demoted from the post of Inspector to Sub-Inspector and the petitioner/Santosh Kumar Sharma was demoted from the post of Assistant Sub-Inspector to Head Constable. She further submitted that at the relevant time, the petitioners were attached to the Police StationDarbha and the joint article of charges was served upon the petitioners on 27.06.2011 by respondent No. 3/the Inspector General of Police. The allegations were as under:-

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1- fnukad 26-02-2009 dks izkFkhZ ihywjke ;kno firk LoQkxwjke ;kno }kjk eksVj lk;dy pkyd jktwjke c?ksy dh Fkkuk njHkk ds lkeus yxs csfj;j ls Vdjk tkus ds dkj.k eR;q gksuk crk;s tkus ds ckotwn Hkh izkFkhZ ihywjke ;kno ij ncko Mkydj eux<ar Vd ls Vdjk tkus ds dkj.k eR;q gksuk izFke lwpuk i= ys[k djk;k tkdj okLrfod ?kVuk dks Nqikdj iqfyl jsX;wys’ku dh dafZMdk 64 ¼2½ o e-iz-@N-x- flfoy lsok vpkj.k fu;e 1965 ds fu;e 3 ¼1½ ,oa ¼2½ ¼nks½ ds foijhr vkpj.k iznf’kZr fd;kA

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2- e`rd jktwjke c?ksy ds ‘ko dks ?kVukLFky ls gVokdj

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3

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e`rd jktwjke c?ksy ds iMs [kwu ds /kCcs dks ikuh ls /kqyokdj lk{; dks foyksfir dj vius inh; drZO; ds izfr ?kksj ykijokgh cjrh xbZA

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3- Fkkuk izHkkjh tSls ftEesnkj vf/kdkjh ds in ij jgrs gq, ? kVuk ds laca/k e s a vius ofj”B vf/kdkfj;ksa dks fdlh izdkj dh tkudkjh u nsdj ofj”B vf/kdkfj;ksa ,oa e`rd ds ifjtuksa o xzkeh.kksa dks ?kVuk ds ckjs esa xqejkg fd;k x;k ftlls dkuwu&O;oLFkk dh fLFkfr fufeZr gqbZA

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vipkjh l-m-fu-] Jh ‘;ke iVsy ,oa l-m-fu- Jh larks”k ‘kekZ us %&

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1-erd jktwjke c?ksy ds ‘ko dks ?kVukLFky ls gVkdj erd jktwjke c?ksy ds iM+s [kwu ds /kCcks dks ikuh ls /kqyokdj lk{; dks foyksfir dj vius inh; drZO; ds izfr ?kksj ykijokgh cjr dj iqfyl jsX;wys’ku dh dafMdk 64 ¼2½ o e-iz-@N-xflfoy lsok vkpj.k fu;e 1965 ds fu;e 3 ¼1½ ,oa ¼2½ ¼nks½ ds foijhr vkpj.k iznf’kZr fd;kA

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2-?kVuk ds laca/k esa e`rd ds ifjtuks o xzkeh.kks dks ?kVuk ds ckjs esa xqejkg fd;k x;k ftlls dkuwu&O;oLFkk dh fLFkfr fufeZr gqbZA**

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3. The Additional Superintendent of Police, Jagdalpur (C.G.) was appointed as Inquiry Officer vide order dated 21.10.2011 but no Presenting Officer was appointed. The petitioners filed a reply to the article of charges and denied all the allegations made against them. An Inquiry was conducted. The prosecution witnesses were examined by the Inquiry Officer himself and the petitioners were permitted to crossexamine those witnesses. After the conclusion of the inquiry, punishment of deduction of one rank was passed against the petitioners.

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4. The petitioners preferred a joint appeal before respondent No.2/ Director General of Police but the same was also dismissed vide order dated 09.01.2014. In the appeal, a specific plea was raised that no Presenting Officer was appointed and the Inquiry Officer himself examined the witnesses and thus acted as a prosecutor as well as a judge. The Appellate Authority while dealing with the issue held that according to the Service Rules, it was not necessary to appoint a Presenting Officer and ultimately, dismissed the joint appeal preferred by the petitioners. Ms. Anguria also submitted that the Presenting Officer

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was not appointed and the Inquiry Officer acted as a prosecutor as well as a judge. In support of her submissions, she placed reliance upon the judgment passed by the Coordinate Bench of this Court in the matter of Lachchhan Ram Giri Vs. State of Chhattisgarh and others, Writ Petition(S) No. 4539 of 2012 .

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5. On the other hand, Mr. Gupta, the learned Government Advocate appearing for the State would oppose the submissions made by Ms. Anguria. Mr. Gupta submitted that according to the Police Regulation, there is no need to appoint a Presenting Officer and this aspect has already been considered by the Appellate Authority. He further submitted that a full-fledged inquiry was conducted; 17 prosecution witnesses were examined and the petitioners were permitted to cross-examine those witnesses. He also submitted that a show cause notice was issued to the petitioners before imposing punishment and a reply was also filed and thus, it is not a case where principles of natural justice were not followed. He also argued that the order of punishment has been affirmed by the Appellate Authority and thus, there is a concurrent finding and these petitions are liable to be dismissed.

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6. I have heard learned counsel appearing for the parties and perused the documents placed on record.

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7. Admittedly, as per the Police Regulation, Chhattisgarh Civil Services (Classification, Control and Appeal) Rules, 1966 (for short ‘the CCA Rules, 1966’) applies in the Police department also and this fact is not disputed by the learned counsel appearing for the State. Sub-rule 5(c) of Rule 14 of the CCA Rules, 1966 deals with the appointment of the Presenting Officer. It says that where the disciplinary authority itself

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inquires into any article of charges or appoints an inquiring authority for holding an inquiry into such charge, it may, by an order, appoint a Government servant or a legal practitioner, to be known as the “Presenting Officer” to present on its behalf the case in support of the articles of charge.

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8. From a bare reading of the provisions, as stated above, it is quite vivid that it is a mandatory requirement to appoint a Presenting Officer.

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9. From a perusal of the memo of appeal preferred by the petitioners, it is apparent that a specific ground was raised with regard to the nonappointment of the Presenting Officer and prejudice caused to the petitioners.

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10. The Coordinate Bench of this Court in the matter of Lachchhan Ram Giri (supra) while dealing with the issue of non-appointment of Presenting Officer in paras 8,9,10,11 & 12 held as under:-

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“ 8 . Further perusal of the record would reveal that the petitioner during the course of enquiry had moved applications i.e. Annexures P-9 & P-10 seeking for documents from the Enquiry Officer which are being relied upon by the Department against the petitioner but the same has not been supplied to the petitioner. Therefore, prima facie, the petitioner has been denied the documents which has been relied upon by the authority concerned to punish the petitioner. At this juncture, it would be relevant to refer to the judgment of the Supreme Court in the case Govt. of A.P. and others vs. A. Venkata Raidu reported in (2007) 1 SCC 338 where in paragraph-9 it has been held as under:

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"9. We respectfully agree with the view taken by the High Court. It is a settled principle of nature justice that if any material is sought to be used in an enquiry, then copies of that material should be supplied to the party against whom such enquiry is held. In Charge 1, what is mentioned is that the respondent violated the orders issued by the Government. However, no details of these orders have been mentioned in Charge 1. It is well settled that a charge-sheet should not be vague but should be specific. The authority should have mentioned the date of the GO which is said to have been violated by the respondent, the number of that Go, etc. but that was not done. Copies of the said Gos

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or directions of the Government were not even placed before the enquiry officer. Hence, Charge 1 was not specific and hence no finding of guilt can be fixed on the basis of that charge. Moreover, as the High Court has found, the respondent only renewed the deposit already made by his predecessors. Hence, we are of the opinion that the respondent cannot be found guilty for the offence charged."

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Similar view has been taken by the Supreme Court in the case of Saroj Kumar Sinha (supra) where in paragraph-34 it has been held as under:

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"34. This Court in the case of Kashinath Dikshita vs. Union of India, (1986) 3 SCC page 229, had clearly stated the rationale for the rule requiring supply of copies of the documents, sought to be relied upon by the authorities to prove the charges levelled against a Government servant. In that case the enquiry proceedings had been challenged on the ground that non supply of the statements of the witnesses and copies of the documents had resulted in the breach of rules of natural justice. The appellant therein had requested for supply of the copies of the documents as well as the statements of the witnesses at a preliminary enquiry. The request made by the appellant was in terms turned down by the disciplinary authority."

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9 . So far as the non-appointment of Presenting Officer is concerned. undisputedly the record shows that no Presenting Officer was in fact appointed. The law so far as non appointment of Presenting Officer is concerned, it would be relevant at this juncture to refer to the judgment of the Supreme Court in the case of Union of India through its Secretary. Ministry of Railway, New Delhi and Others v. Mohd. Naseem Siddiqui reported in (2005) 1 LLJ 931 wherein paragraph-7 the Hon'ble Supreme Court dealing with the issue has held as under:

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"7. One of the fundamental principles of natural justice is that no man shall be a judge in his own cause. This principle consists of seven well recognised facets: (i) The adjudicator shall be impartial and free from bias, (i) The adjudicator shall not be the prosecutor, (iii) The complainant shall not be an adjudicator, (lv) A witness cannot be the Adjudicator, (v) The Adjudicator must not import his personal knowledge of the facts of the case while inquiring into charges, (vi) The Adjudicator shall not decide on the dictates of his Superiors or others, (vii) The Adjudicator shall decide the issue with reference to material on record and not reference to extraneous material or on extraneous considerations. If any one of these fundamental rules is breached, the inquiry will be vitiated.

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Further, in paragraph-16, Their Lordships summarized the legal position by observing as under:-

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(i) The Inquiry Officer, who is in the position of a Judge shall not act as a Presenting Officer, who is in the

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position of a prosecutor.

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(ii) It is not necessary for the Disciplinary Authority to appoint a Presenting Officer in each and every inquiry. Non- appointment of a Presenting Officer, by itself will not vitiate the inquiry.

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(iii) The Inquiry Officer, with a view to arrive at the truth or to obtain clarifications, can put questions to the prosecution witnesses as also the defence witnesses. In the absence of a Presenting Officer, if the Inquiry Officer puts any questions to the prosecution witnesses to elicit the facts, he should thereafter permit the delinquent employee to cross-examine such witnesses on those clarifications.

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(iv) If the Inquiry Officer conducts a regular examination-in chief by leading the prosecution witnesses through the prosecution case, or puts leading questions to the departmental witnesses pregnant with answers, or cross- examines the defence witnesses or puts suggestive questions to establish the prosecution case employee, the Inquiry Officer acts as prosecutor thereby vitiating the inquiry.

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(v) As absence of a Presenting Officer by itself will not vitiate the inquiry and it is recognised that the Inquiry Officer can put questions to any or all witnesses to elicit the truth, the question whether an Inquiry Officer acted as a Presenting Officer, will have to be decided with reference to the manner in which the evidence is let in and recorded in the inquiry.

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Whether an Inquiry Officer has merely acted only as an Inquiry Officer or has also acted as a Presenting Officer depends on the facts of each case. To avoid any allegations of bias and running the risk of inquiry being declared as illegal and vitiated, the present trend appears to be to invariably appoint Presenting Officers, except in simple cases. Be that as it may."

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10. A similar view has been taken by the Supreme Court in the case of Moni Shankar (supra) where in paragraph-30 it has been held as under.

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“30.For the aforementioned purpose, the manner in which the enquiry proceeding was conducted was required to be taken into consideration by the High Court. The trap was not conducted in terms of the Manual; the Enquiry Officer acted as a prosecutor and not as an independent quasi-judicial authority; he did not comply with Rule 9 (21) of the Rules, evidently, therefore, it was not a case where the order of the Tribunal warranted interference at the hands of the High Court."

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11 .The Supreme Court had again in a similar situation in the case of State of Uttaranchal and others v. Kharak Singh reported in (2008) 8 SCC 236 in paragraph-17 has held as under:

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17. On the other hand, one Mr. P.C. Lohani, Dy.

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Divisional Forest Officer, Nandhaur acting as an inquiry officer after putting certain questions and securing answers submitted a report on 16/11/1985. No witnesses were examined. Apparently, there was not even a presenting officer. A perusal of the report shows that the inquiry officer himself inspected the areas in the forest and after taking note of certain alleged deficiencies secured some answers from the delinquent by putting some questions. It is clear that the inquiry officer himself has acted as the investigator, prosecutor and judge. Such a procedure is opposed to principles of natural justice and has been frowned upon by this Court."

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12 . The Hon'ble Supreme Court again in the case of State of Uttar Pradesh and others vs. Saroj Kumar Sinha reported in (2010) 2 SCC 772 , in paragraphs-27 to 30 has held as under:

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"27.......But nonetheless in order to establish the charges the Department is required to produce the necessary evidence before the inquiry officer. This is so as to avoid the charge that the inquiry officer has acted as a prosecutor as well as a judge.

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28. An enquiry officer acting in a quasi judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the department/disciplinary authority/Government. His function is to examine the evidence presented by the department, even in the absence of the delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved. In the present case the aforesaid procedure has not been observed. Since no oral evidence has been examined the documents have not been proved, and could not have been taken into consideration to conclude that the charges have been proved against the respondents.

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29. Apart from the above by virtue of Article 311 (2) of the Constitution of India the departmental inquiry had to be conducted in accordance with rules of natural justice. It is a basic requirement of rules of natural justice that an employee be given a reasonable opportunity of being heard in any proceeding which may culminate in punishment being imposed on the employee.

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30. When a department enquiry is conducted against the Government servant it cannot be treated as a casual exercise. The enquiry proceedings also cannot be conducted with a closed mind. The enquiry officer has to be wholly unbiased. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that a government servant is treated fairly in proceedings which may culminate in imposition of punishment including dismissal/removal from service."

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11. As per Rule 3 of the CCA Rules,1966 and 213 of the Chhattisgarh Police Regulation, it is quite vivid that the CCA Rules,1966 would apply in the matter of departmental inquiry pertaining to the police officials.

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12. From the above-discussed facts and the law laid down by the Hon’ble Supreme Court in a catena of judgments, it can safely be held that the non-appointment of the Presenting Officer and the inquiry being conducted entirely by the Inquiry Officer himself was against the principles of natural justice. The serious allegations were made against the petitioners and the inquiry officer has acted as a prosecutor as well as a judge. An enquiry officer acting in a quasi-judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the department/disciplinary authority/Government. His function is to examine the evidence presented by the department, even in the absence of the delinquent official. The disciplinary inquiry conducted by the Inquiry Officer and its outcome got vitiated on account of the non-appointment of the presenting officer, therefore, the punishment imposed upon the petitioners and its affirmation by the Appellate Authority are not sustainable in the eyes of law, therefore, orders dated 28.05.2013 and 09.01.2014 are hereby quashed.

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13. These petitions are accordingly allowed. No order as to cost(s).

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Sd/-

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(Rakesh Mohan Pandey) Judge

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Rekha

S.r. Chhari v. State Of Chhattisgarh and Ors.

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S.r. Chhari v. State Of Chhattisgarh and Ors.

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