Allowed

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

Rajasthan HC21 Feb 2019CW/7141/2002

Case brief

AI extract

What is this about?

This writ pettion challenges a removal from service order. The High Court quashed the punishment order and recovery for violation of natural justice, noting bias where the enquiry officer acted as a prosecuting cross-examiner and the disciplinary authority relied on its own previous enquiry report.

What did the court decide?

Punishment order dated 18.04.2001 quashed; recovery set aside; petitioner reinstated with monetary benefits; amount returned with 9% interest.

Amar Singh Vs Union of India New Delhi and Ors. — Writ and Judicial Review | 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. 7141/2002

Amar Singh

----Petitioner

Versus

Union Of India New Delhi And Ors

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----Respondent

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For Petitioner(s) : Mr. M.R.Yadav For Respondent(s) : Mr. B.S.Chhaba,Asst. Solicitor General

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HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA

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Order Judgment Reserved on :: 05/02/2019 Judgment Pronounced on :: 21/02/2019

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The petitioner by way of present writ petition challenges the order dated 18^th April, 2001 passed by the respondent by which he has been removed from service.

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Brief facts which need to be noted are that the petitioner was holding the post of Head Constable Driver. When he was driving vehicle No. PAT 1083, Tata Truck, 3/5 Tonner on 4^th June, 2000 after leaving the sick personnel at the Medical College Hospital, the vehicle on way back to unit Headquarters met with an accident in front of Science College, Jammu at Canal Road. The vehicle climbed over the divider and then fell on the left side of the road. Along with the petitioner two more persons were sitting in driver cabin who fell down from the vehicle and then the vehicle fell over them and they were trapped. Resultantly both of them crushed and later on succumbed to injuries and died. Board of Officers was

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(2 of 6)

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[CW-7141/2002]

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constituted for conducting court of enquiry to enquire into the accident and after giving findings reached to the conclusion that the accident caused due to carelessness and negligent driving by the petitioner on account of which the vehicle suddenly hit the road divider, as a result vehicle overturned resulting into serious injuries and subsequently death of Mahaveer Singh and Rajendra Paswan. The petitioner-driver had sustained minor injuries on his head. FIR was lodged and subsequent the case had been closed as accidental. The Motor Vehicle was inspected by the Motor Vehicle Inspector and also by Unit Fitter.

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The Board consisting of five members which included Presiding Officer who was Commandant Shri K.R.Bangra, 79BN, while others were Deputy Commandant, Assistant Commandant and Inspector of the same Battalion was formed for conducting court of inquiry and from the record it noticed that accidental vehicle was checked and examined by the Motor Vehicle Inspector who had given its report that brakes of the vehicle were not satisfactory. The Fitter of the Unit has, however, given a statement that the brake was satisfactory and relying upon the said statement, finding was given that there was no chance of failure of brake system and it recommended 50% of the incurred amount of the cost to be recovered from the driver and necessary disciplinary action be taken against the driver.

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The petitioner by way of this writ petition has submitted that after having conducted inspection of the vehicle the Inspector reached to the conclusion that it was a case of accident. The petitioner had given a statement on 27.11.2000 wherein he has stated that as soon as he reached near the Science College, Jammu, a scooter on which two persons were riding suddenly

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(3 of 6)

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came in front of vehicle and in order to save them the petitioner had applied brakes but the brakes were not properly functioning and therefore he moved the steering of the vehicle towards the right side and the vehicle crashed into the divider. As soon as the vehicle came on the divider the persons who were sitting next to the petitioner jumped out of vehicle in the left side. However, the vehicle overturned and fell on them, resultantly crushing them. The version of the petitioner was however, not noticed by the Board conducting enquiry.

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It is submitted that regular departmental enquiry was conducted by issuing charge sheet to the petitioner by the Commandant on 22.9.2000. He submitted his reply pointing out that it was not on account of his carelessness and negligence that the accident had occurred. The Shri D.C.Nagar, 2 I/C of the Unit was appointed as enquiry officer to conduct the enquiry. The statement of the petitioner was recorded by the enquiry officer who was also the presenting officer. The enquiry Officer also put up questions in cross-examination to the petitioner and to other witnesses and to support this aspect the petitioner has placed Annexure 10 on record, where questions have been asked directly by the enquiry officer whereafter the Commandant has passed the order on 18^th April, 2001 holding the petitioner guilty of the charge and exercising power under section 11(1) of the CRPF Act, 1949 read with Rule 27 of the CRPF Rules 1955, imposed a penalty of removal from service on the petitioner.

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The version of the petitioner about the scooterist having come in front of vehicle was not accepted as no one else except the delinquent deposed of having seen scooter coming in front of vehicle. The statement of the petitioner that brakes of the

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(4 of 6)

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[CW-7141/2002]

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accidental vehicle were not working properly was also not accepted in view of the statement of the constable fitter.

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Learned counsel for the respondent has supported the impugned order passed and states that fair opportunity was given to the petitioner who has not been able to prove that brakes of the vehicle were not working properly or that the scooterist had come in front of the vehicle and therefore there was no occasion to interfere with the orders. 8. I have considered the rival submissions and find that the order impugned dated 18^th April, 2001 taking into consideration the finding of the court of enquiry to reject the submissions of the petitioner about the brakes of the accidental vehicle to be not working satisfactory. It is noticed that the Disciplinary Authority i.e. Shri K.R.Bangra is the same person who had earlier presided over the Court of enquiry and had submitted a report against the petitioner. It is also noticed that enquiry officer has acted as a prosecuting officer and thus this court is of the view that the petitioner has not been given fair treatment.

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It is settled principle of natural justice that no one can be a judge in his own case. In the case of “ Union of India & Ors. Vs. Ram Lakhan Sharma” reported in 2018(7) SCC 670, after noticing the law laid down by the Constitution Bench in the case of A.K.Kraipak Vs. Union of India reported in AIR 1970 SC 150 and State of Uttar Pradesh Vs. Saroj Kumar Sinha , reported in 2010(2) SCC 772 it has been held as under:

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“27. 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

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(5 of 6)

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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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In the present case, not only the enquiry officer has acted as the presenting officer but the Disciplinary Authority has also relied upon his earlier court of enquiry report, in enquiry proceedings to hold the charges against the petitioner resulting in breach of natural justice. The version of the petitioner of the brakes not working properly has been refuted. Although, there was a report of an independent Motor Vehicle Inspector of the State Government which mentioned that the brakes of the vehicle were not working satisfactory. Thus, it is apparent that there is inherent bias and there is inherent violation of principle of natural justice.

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In view of the above this Court finds that the enquiry Officer who acts in a quasi judicial capacity ought not to be allowed to act as a presenting officer and his action of cross-examining the petitioner would amount to presenting himself as a prosecutor. Whilst it is true that in each case presenting officer may not be required to be appointed, however it is noticed that on account of such action of the enquiry officer in acting as a prosecutor and putting up questions to the delinquent gives no room for

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(6 of 6)

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[CW-7141/2002]

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independent cross-examination. It would an cause inherent bias vitiating the entire proceedings. In view thereof, the enquiry report as submitted by the enquiry officer holding that the petitioner had driven the vehicle carelessly and negligently causing accident resulting in death of persons has to be ignored. 13. Apart from above, it is also noticed that the Disciplinary Authority was the same person who was the presiding officer of the Board conducting the court of enquiry and he has while relied upon his own report prepared after court of enquiry proceedings to hold the petitioner guilty at both places. Thus, there is apparently a serious prejudice caused to the petitioner and the order therefore passed by the Disciplinary Authority is held to be illegal.

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Accordingly on the basis of aforesaid findings that enquiry conducted against the petitioner was contrary to the principles of natural justice and fair play, the punishment order dated 18^th April, 2001 suffers from inherent prejudice and is accordingly quashed and set aside. The consequential recovery made is also set aside.

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The writ petition is accordingly allowed with all consequential benefits of reinstatement together with all monetary benefits etc. to the petitioner. Amount recovered from the petitioner shall be returned with interest @9%.

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No costs.

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Compliance of the order shall be made by the respondents within three months henceforth.

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(SANJEEV PRAKASH SHARMA),J

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Anu

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

Case brief

What is this about?

What did the court decide?

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

Case brief

What is this about?

What did the court decide?

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