Dismissed

Khelan Singh Tande v. State Of Chhattisgarh and Ors.

Chhattisgarh HC1 Jan 2025WPS/1170/2013

Case brief

AI extract

What is this about?

A police constable dismissed for taking money on the pretext of providing jobs challenged his dismissal and appeal upheld, arguing lack of Presenting Officer vitiated enquiry. The court held substantial compliance occurred, no prejudice caused, and dismissed the writ petition.

What the court decided

AI extract

Khelan Singh Tande Vs State Of Chhattisgarh and… — Service and Employment | Chhattisgarh HC (2025)

2025:CGHC:66

NAFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

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WPS No. 1170 of 2013

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1 - Khelan Singh Tande S/o Ganjan Singh Tande, Aged About 34 Years, Working As Ex-Constable No.179, P.S. Sihawa, Distt Dhamtari, R/o Village Funda, PS Ranchirai, Tahsil Gundarehi, Dist Balod Chhattisgarh

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... Petitioner(s)

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versus

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1 - State Of Chhattisgarh, Through Secretary, Home Department, PS Rakhi, Tahsil Arang, New Mantralaya, Distt Raipur Chhattisgarh

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2 - Director General Of Police Raipur, P.S. Raipur District Raipur (CG)

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3 - Inspector General Of Police, Durg Range, Bhilai, P.S. Bhilai, Distt Durg (CG)

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4 - Superintendent Of Police Dhamtari, PS Dhamtari, District Dhamtari, Chhattisgarh

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5 - Enquiry OfÏcer/ Sub Divisional OfÏcer of Police, Kurud, PS Kurud, Distt Dhamtari (CG)

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... Respondent(s) Digitally signed For Petitioner : Mr. Abhishek Pandey, Advocate by SHYNA AJAY Date: 2025.01.03 ForRespondent/State : Mr. Ajit Singh, Government Advocate 15:08:18 +0530

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SB.: Hon'ble Mr. Justice Deepak Kumar Tiwari

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Order On Board

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02/01/2025

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This petition has been filed assailing the validity and correctness of the order dated 6.3.2013 passed in the Departmental Appeal by the Inspector General of Police, Durg Range, Bhilai (Annexure P/1), whereby, the order dated 30.12.2012 (Annexure P/2) passed by the Disciplinary Authority – Superintendent of Police, District Dhamtari, terminating the services of the petitioner, was afÏrmed and thereby, the appeal was dismissed.

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The quintessential facts for adjudication of the controversy in the petition are that the petitioner was appointed in the Police Department as Constable and while being posted on the said post at Police Station Sehawa District Dhamtari, he committed serious misconduct to the effect that he took some amount from Devvrath Daharia and Sanjay Kurre on the pretext of providing them job in the Police Department. The charge sheet in regard was issued on 7.11.2011. The petitioner/delinquent employee denied the aforesaid charges. In the matter, Suresh Pauranik, Sub Divisional OfÏcer (Police), Kurud was appointed as an Enquiry ofÏcer and Crime No.13/12 for the offence under Section 420 of the IPC was also registered at Police Station Newai District Durg. During the Departmental Enquiry, 10 departmental witnesses were examined, however, the delinquent employee did not examine any witness. The Enquiry OfÏcer, after conclusion of the proceedings, prepared an

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Enquiry Report and the charges were found proved. A copy of the Enquiry Report was supplied to the delinquent employee. On consideration of the representation submitted by the petitioner, the same was not found satisfactory. Considering the serious nature of charges, the Disciplinary Authority imposed the penalty of dismissal from service vide the order dated 30.12.2012, against which, a Departmental Appeal was preferred and the same was also dismissed by the order dated 6.3.2013. Hence, this petition.

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Learned counsel for the petitioner would submit that in the criminal case, the complainants have entered into an agreement with the petitioner. As the complainants themselves compounded the offences, the petitioner was acquitted from the charges under Section 420 of the IPC. He would further submit that during the Departmental Enquiry, the petitioner was in custody in the Central Jail, Durg, therefore, he could not make proper defence in the said enquiry. He would further submit that no Presenting OfÏcer has been appointed and the Enquiry OfÏcer himself acted in the capacity of the prosecutor as also a Judge, which is not permissible. For the above submission, he would place reliance on the matter of Smt. Anita Thakur Vs. The State Government of Chhattisgarh and 2 others (order dated 1.10.2018 passed in WPS No.1166/2011), in which, reliance has been made on the judgment rendered in the matter of Union of India thro’ its Secretary, Ministry of Railway, New Delhi and Others Vs . Mohd. Naseem Siddique¹ . He would further submit that while examining the delinquent employee, the Enquiry OfÏcer had put certain suggestive questions to establish the

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1 . 2005 -I-LLJ 931

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prosecution against the employee, therefore, considering all these aspects, the whole enquiry is vitiated.

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On the contrary, learned State Counsel would submit that merely because the Presenting OfÏcer has not been appointed, it cannot be said that any prejudice has been caused to the interest of the employee in any manner as he has been granted sufÏcient opportunity for cross-examination of the Departmental witnesses. He would submit that the prime witnesses Devvrath Daharia and Sanjay Kurre categorically stated that the present petitioner accepted the amount for providing them job in the Police Department and thereafter, a criminal case was also registered and only because the complainants had entered into an agreement with the petitioner, the offence was compounded and on such ground, the petitioner was acquitted. Hence, with such admitted facts, no prejudice can therefore be said to have been caused to the delinquent employee. He would further submit that there is a serious charge against the delinquent employee of accepting the money from the general public on the pretext of providing job in the Police Department and the same has also been established, therefore, the Disciplinary Authority and the Appellate Authority have taken a correct approach and awarded punishment of dismissal from service, which is just and proportionate. He submits that in the Police Regulation, there is no such mandatory provision for appointment of a ‘Presenting OfÏcer’. He would submit that even sub-rule 5(c) of Rule 14 of the CG Civil Services (Classification, Control and Appeal) Rules, 1966, which deals with appointment of the Presenting OfÏcer, says that when the Disciplinary Authority itself inquires into any article of charge or

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appoints an inquiring authority for holding any inquiry into such charge, it may, by an order, appoint a Government Servant or a legal Practitioner, to be known as the ‘Presenting OfÏcer’ to present on its behalf the case in support of the articles of charge. He further submits that even in Mohd. Naseem Siddique (supra) , which was relied upon by the petitioner, it has been categorically held that absence of a Presenting OfÏcer itself will not vitiate the enquiry and it is recognised that the enquiry ofÏcer can put questions to any or all the witnesses to receipt the truth.

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Heard learned counsel for the parties at length and also perused the documents annexed with the petition as also the documents filed by the parties and the original record of the enquiry proceedings.

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It is well settled that in a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible. It is true that departmental authorities and Administrative Tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Indian Evidence Act. The essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice. Of course, fair play is the basis, however, perversity or arbitrariness, bias or surrender of independence of judgment vitiate the conclusions reached. It is also well settled that whenever infraction of any statutory provision, rule and regulation is highlighted and the same is not fundamental in nature, the applicability of test of prejudice can be applied. In the

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matter of State of U.P. Vs. Harendra Arora and Another² , the Hon’ble Supreme Court has examined the said issue and relevant para-13 is reproduced hereunder:-

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“ 13 . The matter may be examined from another view point. There may be cases where there are infractions of statutory provisions, rules and regulations. Can it be said that every such infraction would make the consequent action void and/or invalid? The statute may contain certain substantive provisions, e.g., who is the competent authority to impose a particular punishment on a particular employee. Such provision must be strictly complied with as in these cases the theory of substantial compliance may not be available. For example, where a rule specifically provides that the delinquent ofÏcer shall be given an opportunity to produce evidence in support of his case after the close of the evidence of the other side and if no such opportunity is given, it would not be possible to say that the inquiry was not vitiated. But in respect of many procedural provisions, it would be possible to apply the theory of substantial compliance or the test of prejudice, as the case may be. Even amongst procedural provisions, there may be some provisions of a fundamental nature which have to be complied with and in whose case the theory of substantial compliance may not be available, but the question of prejudice may be material. In respect of procedural provisions other than of a fundamental nature, the theory of substantial compliance would be available and in such cases objections on this score have to be judged on the touchstone of prejudice. The test would be, whether the delinquent ofÏcer had or did not have a fair hearing. In the case of Russel vs. Duke of Norfolk & Ors., 1949 (1) All E.R. 109, it was laid down by the Court of Appeal that the principle of natural justice cannot be reduced to any hard and fast formulae and the same cannot be put in a straitjacket as its applicability depends upon the context and the facts and circumstances of each case.”

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It is also well settled that in the enquiry proceeding, the Enquiry OfÏcer can put questions to the witnesses for clarification whenever necessary. In the matter of Mulchandani Electrical and Radio Industries Ltd. Vs. Workmen³ , the following observation was made at

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para-5 :-

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2 (2001) 6 SCC 392

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3 (1975) 4 SCC 731 (3 Judges)

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“ 5 ………………………………….It was reasonable and also necessary to look for some explanation for the contradictory statements. If, therefore, the Enquiry OfÏcer had put certain questions to these two witnesses by way of clarification, it could not be said that he had done something that was not fair or proper. The witnesses were allowed to be cross-examined on behalf of the union after they had answered the questions asked by the Enquiry OfÏcer. In our opinion the note made by the Enquiry OfÏcer stating that the witnesses had turned hostile meant only that they had stated before him something that was inconsistent with what appeared in the memorandum signed by them. We do not think that the enquiry was vitiated because the Enquiry OfÏcer put some questions to the said witnesses by way of clarification in the circumstances stated above. This Court in Workmen v. Buckingham and Carnatic Mills, Madras1 held that the Enquiry OfÏcer in a domestic enquiry can put questions to the witnesses for clarification wherever necessary and if he allows the witnesses to be crossexamined thereafter, the enquiry proceedings cannot be impeached as unfair. We are therefore unable to accept that the enquiry in this case had not been conducted in a fair and proper manner.”

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In the matter of Pravin Kumar Vs. Union of India⁴ , same argument was canvassed before a Three Judge Bench that the Enquiry OfÏcer could not have put his own questions to the prosecution witnesses and could also not have cross-examined the witnesses. In the said case, it was argued that the same would amount to making the prosecutor the Judge. The said argument was negatived by the Court by observing in para-31 as under:-

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“ 31 . Significant emphasis has been placed by the appellant on the fact that the enquiry ofÏcer put his own questions to the prosecution witness and that he crossexamined the witnesses brought forth by the defence. This, it is claimed, amounts to making the prosecutor the Judge, in violation of the natural justice principle of “nemo judex in sua causa”. However, such a plea is misplaced. It must be recognised that, under Section 165, Evidence Act, Judges have the power to ask any question to any witness or party about any fact, in order to discover or to obtain proper proof of relevant facts. While strict rules of evidence are inapplicable to disciplinary proceedings, enquiry ofÏcers often put questions to witnesses in such proceedings in order to discover the truth. Indeed, it may be necessary to do such direct

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4 (2020) 9 SCC 471

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questioning in certain circumstances. Further, the learned counsel for the appellant, except for making a bald allegation that the enquiry ofÏcer has questioned the witnesses, did not point to any specific question put by the ofÏcer that would indicate that he had exceeded his jurisdiction. No specific malice or bias has been alleged against the enquiry ofÏcer, and even during the enquiry no request had been made to seek a replacement, thus, evidencing how these objections are nothing but an afterthought.”

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In view of the above, the law is well settled that an Enquiry OfÏcer cannot act as a Presenting OfÏcer, who is in the position of a Prosecutor.

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10.It is also well settled that absence of a Presenting OfÏcer by itself will not vitiate the enquiry and the Enquiry OfÏcer can put questions to any or all the witnesses to receipt the truth. Whether, in a given case, the enquiry is vitiated or not would depend on the facts and circumstances of each case.

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In the instant matter, there is specific allegation against the petitioner about his accepting the money for providing job to the general public and Devvrath Daharia and Sanjay Kurre categorically deposed the same and the said fact has not been rebutted by them in their cross-examination. Thus, after going through the proceeding conducted by the Enquiry OfÏcer, it is explicit that the Enquiry OfÏcer wanted to elicit the truth. Even the Judges may ask any question to any witness or party in order to discover or to obtain proof of relevant facts.

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12.For the foregoing, this Court is of the opinion that the present is not a case of no evidence. Furthermore, this Court is not entitled to reassess the adequacy or reliability of the evidence and the facts relevant thereto, which is not permissible while exercising powers

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under Article 226 of the Constitution of India. The procedure has been substantially complied with in the present case and no prejudice was caused to the delinquent employee and the Appellate Authority has rightly reached to a conclusion that there is ample evidence to prove the serious charges and the charges were rightly proved and the punishment awarded is just and proper. This Court is not inclined to disturb the findings recorded by the Enquiry OfÏcer, Disciplinary Authority and the Appellate Authority.

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Resultantly, the Writ Petition being bereft of any substance deserves to be and is hereby dismissed.

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Sd/-

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(Deepak Kumar Tiwari)

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Judge

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Shyna

Khelan Singh Tande v. State Of Chhattisgarh and Ors.

Case brief

What is this about?

What the court decided

Khelan Singh Tande v. State Of Chhattisgarh and Ors.

Case brief

What is this about?

What the court decided

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