Allowed

Harvir Singh v. Union of India New Delhi and Ors.

Rajasthan HC8 Feb 2019CW/6400/2002

Case brief

AI extract

What is this about?

This High Court held that a departmental enquiry authority cannot act as a court of record to declare the validity of a marriage when a competent criminal court has acquitted the employee. Relying on Supreme Court precedents, the court also quashed the disciplinary proceedings because the Inquiry Officer violated natural justice by acting as both judge and prosecutor.

What did the court decide?

Impugned punishment orders dated 20/08/2000, 05/02/2001 and 24/07/2002 are quashed. Petitioner is directed to be reinstated in service with all consequential benefits within three months.

Harvir Singh Vs Union of India New Delhi and Ors. — Service and Employment | Rajasthan HC (2019)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Civil Writs No. 6400/2002

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Harvir Singh S/o Shri Mohan Singh, Village And Post Savora Via Nadbai District Bharatpur (Rajasthan).

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----Petitioner

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Versus

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Union Of India Through Secretary, Ministry Of Home Affairs, New Delhi

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Inspector General, central Industrial Security Force,eastern Zone Headquarters, Boring Road,patliputra,patna (Bihar)

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Deputy Inspector General,central Industrial Security Force,eastern Zone Headquarters, South Patliputra Colony, Patna (Bihar)

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The Commandant,central Industrial Security Force, Commanding Othpp, O-12,sonbhadra (U.p.)

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----Respondents

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For Petitioner(s) : Mr. Ashwini Jaiman, Adv. For Respondent(s) : Mr. Anand Sharma Adv.

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HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA

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Judgment / Order

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Reserved on 5/02/2019 Pronounced on 08/02/2019

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The short point involved in the present matter is whether conduct of the petitioner, against whom allegations were levelled of having entered into a second marriage while his spouse from the first marriage is alive, could be examined in departmental enquiry while the same was also a subject matter of inquest and trial in the criminal case preferred against the petitioner by his alleged first wife.

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(2 of 6)

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[CW-6400/2002]

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The petitioner has challenged the action and the order passed on the basis of the departmental enquiry whereby he has been punished by dismissal from service vide order impugned dated 20/08/2000 and the orders dt. 05/02/2001 and 24/07/2002 passed in departmental appeal and review petition on the ground that in Sessions Trial No.163/1998, the Additional Sessions Judge, Dhanbad vide his judgment dated 11/10/2001 has acquitted the petitioner from the charges of procuring miscarriage of child of the complainant and marrying informant Asha Devi and torturing her mentally & physically.

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The learned Additional Sessions Judge, after examining the evidence of Asha Devi on oath, in his judgment arrived at a finding that Asha Devi, after death of her husband Davendra Prasad, did not marry anyone and accordingly acquitted the petitioner honorably.

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On the complaint of Asha Devi, the charge-sheet was issued by the respondents to the petitioner alleging that the petitioner had entered into marriage with one Meena Devi in April, 1996 by performing marriage according to Hindu rites while he was already married to Smt. Asha Devi with whom he had maintained relations and had also got her forcefully aborted.

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While arguments were advanced by learned counsel for the petitioner to submit that the departmental enquiry could not have been conducted in light of the law laid down by the Apex Court in the case of Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd. and anr.: (1999) 3 SCC 679 and G.M. Tank Vs. State of Gujarat and ors.: (2006) 5 SCC 446 and also that under the provisions of the CRPF Rules, 1955, no Presenting Officer was appointed and the Enquiry Officer himself acted as a prosecution

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(3 of 6)

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[CW-6400/2002]

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officer and relied on the judgment passed by the Apex Court in the case of Union of India & ors. Vs. Ram Lakhan Sharma: 2018(7) SCC 670 and also found that there was no evidence available to prove that marriage took place between petitioner and Asha Devi. The ancilliary question arise whether in departmental enquiry where the stand of proof for proving the charge is not to be beyond doubt, can a charge of bigamy be examined and a finding can be arrived at of an act of bigamy.

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In the opinion of this Court, the charge of bigamy, if proved, has consequential effects whereby civil rights are also created. In such cases where proof of ‘Saptapadi’ is an essential feature, to hold that a marriage has taken place, would not be appropriate for the enquiry authority or the disciplinary authority to venture into an arena where evidence has to be produced to prove the second marriage (or the first marriage as in the present case) beyond doubt.

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As has come on record, the competent court has recorded evidence on oath and reached to the conclusion that Asha Devi never married to the petitioner, however, in departmental enquiry Asha Devi has been considered as wife of the petitioner who claims to have only got married to Meena Devi in April, 1996. The result of the findings of the departmental enquiry which are not based on strict proof, would be that Meena Devi would lose her marital status while Asha Devi, who has been declared not to be the wife of the petitioner by a competent court of law, would be treated as wife of the petitioner. Thus, this Court is of the view that it would not be proper for the departmental authorities to convert themselves into a Court under the Hindu Marriage Act and declare upon the validity of an equipped with expertees to do so

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(4 of 6)

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[CW-6400/2002]

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nor they have been provided authority under the Act to declare or grant a decree of nullity or validity of an award. It would be thus best left for the authorities to got an adjudication from a competent court of law with regard to the disputes.

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The coordinate Bench of this Court in the case of Prakash Babu Bajpai Vs. Union of India and ors.: 1995(3)WLC (Raj.) 307 has also opined holding that marriage or bigamy can only be proved on the basis of the doctrine of factum-valet. Once there is also a judgment of the competent Court holding otherwise, the findings of the departmental authorities would have to give way to such findings of a competent court.

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In view thereof, the order passed by the authorities holding the petitioner guilty of having married again with Meena Devi in April, 1996 while he was already married and had his spouse living and also of having treated his wife Asha Devi with cruelty and forcefully aborted her is wholly vitiated in law and the departmental proceedings initiated vide memorandum dated 04/09/1998 and the punishment order passed thereto as well as the orders passed in departmental appeal and review petition have to be set aside.

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The argument advanced by learned counsel for the petitioner with regard to the departmental enquiry being conducted by the enquiry officer who acted also as a Presenting Officer is also found to be correct. The Supreme Court in the case of Union of India and others Vs. Ram Lakhan Sharma: 2018(7) SCC 670, while examining the enquiry conducted by the Enquiry Officer, has held as under:-

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“23. A perusal of the aforesaid Rule does not indicate that Rule contemplates appointment of Presenting Officer. Service conditions including punishment and

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(5 of 6)

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[CW-6400/2002]

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appeal procedure of an employee are governed by statutory rules. The CRPF Act, 1949 has been enacted by the Parliament for the constitution and Regulation of an armed Central Reserve Police Force. Section 18 of the Act empowers the Central Government to make Rules for carrying out the purposes of this Act.

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The disciplinary proceedings are quasi-judicial proceedings and Inquiry Officer is in the position of an independent adjudicator and is obliged to act fairly, impartially. The authority exercises quasi-judicial power has to act in good faith without bias, in a fair and impartial manner.

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When the statutory Rule does not contemplate appointment of Presenting Officer whether nonappointment of Presenting Officer ipso facto vitiates the inquiry? We have noticed the statutory provision of Rule 27 which does not indicate that there is any statutory requirement of appointment of Presenting Officer in the disciplinary inquiry. It is thus clear that statutory provision does not mandate appointment of Presenting Officer. When the statutory provision does not require appointment of Presenting Officer whether there can be any circumstances where principles of natural justice can be held to be violated is the broad question which needs to be answered in this case. We have noticed above that the High Court found breach of principles of natural justice in Inquiry Officer acting as the prosecutor against the Respondents. The Inquiry Officer who has to be independent and not representative of the disciplinary authority if starts acting in any other capacity and proceed to act in a manner as if he is interested in eliciting evidence to punish an employee, the principle of bias comes into place.

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Thus, the question as to whether Inquiry Officer who is supposed to act independently in an inquiry has acted as prosecutor or not is a question of fact which has to be decided on the facts and proceedings of particular case. In the present case we have noticed that the High Court had summoned the entire inquiry proceedings and after perusing the proceedings the High Court came to the conclusion that Inquiry Officer himself led the examination in chief of the prosecution witness by putting questions. The High Court further held that the Inquiry Officer acted himself as prosecutor and Judge in the said disciplinary enquiry. The above conclusion of the High Court has already been noticed from paragraphs 9

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(6 of 6)

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[CW-6400/2002]

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and 10 of the judgment of the High court giving rise to Civil Appeal No. 2608 of 2012.”

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In the present case too, this Court finds that the enquiry officer has himself conducted cross-examination of the witnesses and has acted as a prosecutrix and Judge in the disciplinary enquiry. Thus, the enquiry proceedings on that count are also held to be vitiated.

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In view of the above findings, the writ petition is allowed. The orders impugned dated 20/08/2000, 05/02/2001 and 24/07/2002 passed by the disciplinary authority, appellate authority and reviewing authority respectively are hereby quashed and set aside. The respondents are directed to reinstate the petitioner in service with all consequential benefits including monetary benefits. The compliance of this order be made by the respondents within three months of receipt of certified copy of this order in their office.

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(SANJEEV PRAKASH SHARMA),J

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Raghu/

Harvir Singh v. Union of India New Delhi and Ors.

Case brief

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Harvir Singh v. Union of India New Delhi and Ors.

Case brief

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