Ashwani Kumar Dhurw Vs State Of Chhattisgarh and Ors.

10.1 That, this Hon'ble Court may kindly be pleased to setaside the impugned order dated 14.2.1013 and also arising of the termination order dated 16.5.2012 further be pleased to direct the respondent authorities to reinstate the petitioner in service, with all consequential monetary benefits.

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10.2 That, any other relief/order which may deem fit and just in the facts and circumstances of the case including award of the costs of the petition may be given.

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2. The facts of the present case are that the petitioner was initially appointed to the post of Constable (General Duty) on 19.01.2000. The petitioner remained absent from duty from 25.01.2011 till 15.02.2012,

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thereafter, he joined his services on 16.02.2012; he was placed under suspension on 17.02.2012 and subsequently, the article of charges was issued against him on 21.03.2012. The Inquiry Officer was appointed on 02.04.2012. An inquiry was conducted by the inquiry Officer and the petitioner was provided with an opportunity to crossexamine the witnesses but he refused to do so, thereafter, the order of termination from service was passed against the petitioner on 16.05.2012 by The Senani, 4th Battalion, C.G. Armed Forces, Mana, Raipur (disciplinary authority) i.e. respondent No. 3. The petitioner preferred a departmental appeal which was also dismissed vide order dated 14.02.2013 by The Inspector General Of Police, C.G. Armed Forces, Police Headquarter, Raipur i.e. respondent No. 2.

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3. Mr. Bharat Rajput, the learned counsel appearing on behalf of the petitioner submits that the absence of the petitioner from duty was not willful as an application for leave was moved on 19.01.2011 wherein he sought leave for 5 days on account of ill health of his wife. He further submits that the petitioner’s wife met with an accident and her condition was not improving, therefore, the petitioner could not join the service for a considerable period. He also submits that medical documents were produced before the Inquiry Officer but those documents were not taken into consideration. He further argues that no Presenting Officer was appointed, thus, on this count alone, the entire proceeding was vitiated. In support thereof, he placed reliance on the judgment passed by the Coordinate Bench of this Court in the matter of Smt. Anita Thakur Vs. State Government of Chhattisgarh & Ors, WPS 1166 of 2011 dated 01.10.2018 . He contends that the quantum of punishment

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is shocking and disproportionate looking into the misconduct on the part of the petitioner.

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4. On the other hand, Mr. Satish Gupta, the learned counsel appearing on behalf of the State opposes the submissions made by Mr. Rajput. He submits that a full-fledged inquiry was conducted and punishment was imposed. He further submits that the petitioner did not raise any objection with regard to the non-appointment of the Presenting Officer. He also submits that the petitioner has to plead and establish prejudice caused on account of the non-appointment of the Presenting Officer. It is further argued that earlier on five occasions, minor punishments were inflicted upon the petitioner citing absenteeism and abscondence. He contends that there is a concurrent finding recorded by the disciplinary authority and the appellate authority and the scope of interference while exercising the power conferred under Section 226 of the Constitution of India is very limited.

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5. I have heard learned counsel appearing for the parties and perused the documents available on the record.

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6. It is not in dispute that the petitioner remained absent from 25.01.2011 till 15.02.2012 i.e. for 386 days; he joined his services on 16.02.2012 and he was placed under suspension on 17.02.2012. An article of charges was issued on 21.03.2012 making allegations to the effect that the petitioner remained absent without intimating the department for a total period of 386 days and earlier on various occasions, the opportunity was granted to the petitioner to reform his conduct.

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7. The record of the departmental inquiry was called which would show that on 02.04.2012, Mr. S. N. Shukla, Company Commander, 4^th Battalion, Mana, Raipur was appointed as Inquiry Officer but the record would also show that no presenting officer was appointed. With regard to the other grounds raised by counsel for the petitioner to the effect that the absence of the petitioner was not willful, there are concurrent findings recorded by the Inquiry Officer, Disciplinary authority and the Appellate authority stating that no intimation was given by the petitioner to the department while he remained absent for long 386 days and his conduct was found contrary to the service rules of forces. The record would further show that notices were issued to petitioner 14 times to join the duty but he failed to do so. Witnesses were examined by the prosecution but these witnesses were not cross-examined by the petitioner, therefore the argument raised by counsel for the petitioner to the effect that the opportunity of hearing and cross-examination was not afforded to the petitioner is misplaced.

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8. The sufficient opportunity was afforded to the petitioner; the article of charges along with the other documents was duly supplied and the petitioner was permitted to cross-examine the witnesses and notice along with the inquiry report was also served upon the petitioner twice and thereafter, the decision was taken.

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9. Be that as it may, the issue remains that the Presenting Officer was not appointed. The Hon’ble Supreme Court as well as this Court in various decisions has held that non-appointment of Presenting Officer would vitiate the entire departmental inquiry. An Inquiry Officer cannot act as a

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prosecutor as well as a judge. In the present case, no Presenting Officer was appointed and the Inquiry Officer himself recorded the statement of prosecution witnesses.

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10. The prosecution witnesses were examined by the Inquiry Officer itself which vitiates the inquiry and in this regard in the matter of Smt. Anita Thakur (supra), the Coordinate bench of this Court held in paras- 9 to 13 as under:-

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“ 9. So far as the non-appointment of the Presenting Officer is concerned, the law by now is well settled by a series of decisions and the latest decision in this regard by the Hon'ble Supreme Court being the case of Union of India & others Vs. Ram Lakhan Sharma decided on 2nd July, 2018 in Civil Appeal No. 2608 of 2012, wherein the Hon'ble Supreme Court in paragraphs 29 and 36 has held as follows:

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“29. This Court had occasion to observe in Workmen of Lambabari Tea Estate vs. Lambabari Tea Estate, 1966 (2) LLJ 315, that if Inquiry Officer did not keep his function as Inquiry Officer but becomes prosecutor, the inquiry is vitiated. Following was observed:

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"The inquiry which was held by the management on the first charge was presided over by the manager himself. It was conducted in the presence of the assistant manager and two others. The enquiry was not correct in its procedure. The manager recorded the statements, cross- examined the labourers who were the offenders and made and recorded his own statements on facts and questioned the offending labourers about the truth of his own statements recorded by himself. The manager did not keep his function as the enquiring officer distinct but became witness, prosecutor and manager in turns. The record of the enquiry as a result is staccato and unsatisfactory."

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xxx xxx xxx xxx xxx xxx

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36. The High Court having come to the conclusion that Inquiry Officer has acted as prosecutor also, the capacity of independent adjudicator was lost which adversely affecting his independent role of adjudicator. In the circumstances, the principle of bias shall come into play and the High Court was right 33 in setting aside the dismissal orders by giving liberty to the appellants to proceed with inquiry afresh. We make it clear that our observations as made above are in the facts of the present cases.”

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10. The same view has further been relied upon by this Court in WPS No. 1019/2017 decided on 1.3.2017 in the case of Bablu Mishra v. State of Chhattisgarh & Ors. and again in WPS No. 6418/2007 decided on 6.4.2018 in the case of Ashok Kumar Dwivedi v. State of Chhattisgarh & Others so also in WPS No. 4539/2012 decided on 11/05/2018 in the case of Lachchhan Ram Giri v. State of Chhattisgarh & Others.

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11. A similar view also has been taken in WPS No. 1828/2003 decided on 10.1.2018 in the case of M.M.Mishra v. State of Chhattisgarh & Others, that is the case of a person who was in the police department of the rank of Assistant Sub Inspector.

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12. In all these aforesaid orders, this Court had relied upon the judgment of the Hon'ble Supreme Court in the case of Union of India & Others Vs. Mohd. Naseem Siddiqui, 2005 (1) LLJ 931 , wherein this Court has held as under:

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“4. The leading decision of which is 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 where in the Supreme Courtin paragraph 7 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, (ii) The adjudicator shall not be the prosecutor, (iii) The complainant shall not be an adjudicator, (iv) 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 position of a prosecutor. (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

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thereafter permit the delinquent employee to crossexamine 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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13. In addition to this, there is a decision of Karnataka High Court in the of N. R. Dhananjayan v. Management of Indian Overseas Bank & Another, 2006 LLR 726, wherein in paragraph 8 it has been held as under:

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“8. From a reading of the entire proceedings what is clear to us is that the Enquiry Officer seemed to be under the impression that he was representing the management as is evident from these proceedings. The way in which the proceedings were conducted by the Enquiry Officer and the way in which the questions were posed by him, witnesses were examined prove in unmistakable terms that the Enquiry Officer has assumed the role of a prosecutor and a Judge in the case on hand. Law is fairly well-settled that the Enquiry Officer can only seek clarification. Clarification has to be a real clarification in the real sense but not examination-in-Chief/crossexamination etc., as is done in the present case.”

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11. Taking into consideration the fact that the Presenting Officer was not appointed, the penalties inflicted upon the petitioner by the Disciplinary Authority and affirmed by the Appellate Authority are hereby quashed. Consequently, the petitioner is reinstated in service.

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12. With regard to back wages and arrears of salary, the petitioner has not pleaded in the present petition that he was not gainfully employed anywhere, therefore, he is permitted to make a suitable representation before the concerned authority and would be at liberty to place material to prove the fact that he was not gainfully employed anywhere. If upon an inquiry, it is found that the petitioner was not gainfully employed anywhere, the appointing authority shall take a decision with regard to back wages and arrears of salary. The petitioner would also be entitled to get consequential benefits.

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13. Consequently, this petition is allowed.

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Sd~

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Rakesh Mohan Pandey JUDGE

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Ajinkya

Ashwani Kumar Dhurw v. State Of Chhattisgarh and Ors.

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Ashwani Kumar Dhurw v. State Of Chhattisgarh and Ors.

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