TMI Blog2018 (7) TMI 2268X X X X Extracts X X X X X X X X Extracts X X X X ..... an appointment or are silent. When the statutory Rules are silent with regard to the applicability of any facet of principles of natural justice the applicability of principles of natural justice which are not specifically excluded in the statutory scheme are not prohibited. When there is no express exclusion of particular principle of natural justice, the said principle shall be applicable in a given case to advance the cause of justice. The question which was debated before this Court was that since Regulation 7(2) does not contain any provision for giving an opportunity to the delinquent officer to represent before disciplinary authority who reverses the findings which were in favour of the delinquent employee, the Rules of natural justice are not applicable. This Court held that principle of natural justice has to be read in Regulation 7(2) even though Rule does not specifically require hearing of delinquent officer. 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 noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s constable 11 Bn., CRPF at Agartala, Tripura he went out from Guard duty at 09.00 a.m. and returned back at 09.50 a.m. In the afternoon, an allegation was made by one lady Smt. Gita Paul making allegation of rape against the Respondent and First Information Report was registered on 23.10.1999 at the Police Station Under Section 376 Indian Penal Code. 3. On 23.10.1999 the Appellant was placed under suspension. On 04.12.1999 chargesheet was issued to the Respondent containing articles of charges I and II. First charge was that the Appellant remained absent without proper permission of competent authority with consent of his Guard Commander from his duty on 23.10.1999 from 0900 hrs. to 0930 hrs. Second charge was that he while functioning as constable (Guard) has committed an act of misconduct in his capacity as a member of the force in that he tried to do sexual intercourse with a woman with mutual consent by giving money which amounts to indiscipline/moral turpitude. 4. The disciplinary authority appointed one Shri S.S. Bisht, Second-in-Command, 11 Bn CRPF as Inquiry Officer. The Inquiry Officer recorded the prosecution evidence. The Inquiry Report was submitted which was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess similar they need to be only briefly noted. Civil Appeal No. 6745 of 2013 8. Union of India has filed this appeal challenging the judgment of the Division Bench dated 18.01.2013 by which Writ Appeal No. 1 of 2013 filed by the Union of India questioning the judgment of the learned Single Judge was dismissed. The Respondent, Shri T. Lupheng while posted at Manipur on 24.03.2008 sought permission from his senior during his duty hours for going to the Bank to withdraw his salary. He was allowed to go and directed to report back to his duties. On his return he was found under the influence of alcohol. On 07.04.2008 the personnel was suspended. On four articles of charges inquiry was held. The Inquiry Officer recorded the evidence of prosecution. The inquiry was completed and report was submitted on 19.06.2008. The disciplinary authority vide its order dated 05.07.2008 awarded the punishment of dismissal from service. An appeal was filed which was dismissed by DIG, CRPF on 07.11.2008. The revision was also dismissed by IGP-C/S, CRPF on 05.06.2009. Writ Petition No. 556 of 2009 was filed in the Gauhati High Court which was allowed by the learned Single Judge by judgment da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not reported in the Unit, the inquiry proceeded ex parte. Charges levelled against the Respondent were found proved. An order dated 20.05.2008 was passed awarding dismissal from service to the Respondent. Thereafter, he submitted appeal before DIG, CRPF. A writ petition was filed by the Respondent. The writ petition was disposed of on 29.05.2013 setting aside the dismissal order and directing for reinstatement. The appeal has been filed against the above said judgment. 11. The Gauhati High Court had allowed the writ petition filed by the Respondents on the ground that in the disciplinary inquiry the principles of natural justice were violated. The High Court found that no Presenting Officer was appointed and the Inquiry Officer acted as prosecutor which violates the principles of natural justice and the entire inquiry was set aside on the aforesaid ground with liberty to the Respondent to hold afresh inquiry from the stage of appointing of the Presenting Officer. 12. All the appeals filed by the Union of India raises almost similar question of law and facts and the learned Counsel for the Union of India has also raised common submission in all the appeals. 13. Learn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evant to look into the reasons given by the High Court for allowing the writ petitions filed by the Respondents. 18. In Civil Appeal No. 2608 of 2012(leading appeal) judgment of learned Single Judge allowing the writ petition is dated 12.04.2010 which is filed at Annexure P-7 to the appeal. After elaborately considering the facts of the case, the nature of charges and affidavit filed in the writ petition, learned Judge proceeded to decide the writ petition. Learned Single Judge had directed to make available the proceedings of the disciplinary inquiry and on perusal of the proceedings of the disciplinary inquiry Learned Single Judge came to the conclusion that no Presenting Officer was appointed in the said proceedings and the Enquiry Officer himself led the examination in chief of the prosecution witness by putting questions. The High Court further came to the conclusion that Enquiry Officer acted himself as prosecutor and Judge in the said disciplinary enquiry. It is useful to extract paragraphs 9 and 10 of the judgment which are to the following effect: (9) This Court directed the learned Asstt. S.G. appearing for the Respondents to make available the proceedings of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after which evidence necessary to establish the charge shall be let in. The evidence shall be material to the charge and may either be oral or documentary, if oral: (i) it shall be direct: (ii) it shall be recorded by the Officer conducting, the enquiry himself in the presence of the Accused: (iii) the Accused shall be allowed to cross examine the witnesses. (3) When documents are relied upon in support of the charge, they shall be put in evidence as exhibits and the Accused shall, before he is called upon to make his defence be allowed to inspect such exhibits. (4) The Accused shall then be examined and his statement recorded by the officer conducting the enquiry. If the Accused has pleaded guilty and does not challenge the evidence on record, the proceedings shall be closed for orders. If he pleads Not guilty , he shall be required to file a written statement and a list of such witnesses as he may wish to cite in his defence within such period, which shall in any case be not less than a fortnight, as the officer conducting enquiry may deem reasonable in the circumstances of the case. If he declines to file a written statement, he shall again be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to have adopted malpractice in the examination. In paragraph 7 this Court held that the question whether the requirements of natural justice have been met by the procedure adopted in a given case must depend to a great extent on the facts and circumstances of the case in point, the constitution of Tribunal and the Rules under which it functions. Following was held in paragraphs 7 and 8: 7....The Rules of natural justice are not embodied rules. The question whether the requirements of natural justice have been met by the procedure adopted in a given case must depend to a great extent on the facts and circumstances of the case in point, the constitution of the Tribunal and the Rules under which it functions. 8. In Russel v. Duke of Norfolk, Tucker, L.J. observed: There are, in my view, no words which are of universal application to every kind of inquiry and every kind of domestic tribunal. The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the Rules under which the tribunal is acting, the subject matter that is being dealt with, and so forth. Accordingly, I do not derive much assistance from the definitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. 30. When a departmental 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 inquiry 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. 27. When the statutory Rule does not contemplate appointment of Presenting Officer whether non-appointment 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 Present ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unsel for the workman further contended that the questions put by the Enquiry Officer to the Management's witnesses themselves suggest that he was biased and prejudiced against the workman. There has been no explanation as to why no Presenting Officer was appointed and as to why the Enquiry Officer took upon himself the burden of putting questions to the Management witnesses. The enquiry proceedings at Ext. A-6 disclose that after the cross-examination of the Management's witnesses by the defence the Enquiry Officer has further put certain questions by way of explanation but from their nature an inference arises that they are directed to fill in the lacuna. The Learned Counsel for the Management contended that the Enquiry Officer has followed the principles of natural justice and that the domestic enquiry is quite valid. I am of the view that the fact that the Enquiry Officer has himself taken up the role of the Presenting Officer for the management goes to the root of the matter and vitiates the enquiry, As far as position in law is concerned, it is common ground that if the Inquiring Authority plays the role of a Prosecutor and cross-examines defence witnesses or p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpartial 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. 31. The Division Bench further held that where the Inquiry Officer acts as Presenting Officer, bias can be presumed. In paragraph 9 is as follows: 9. A domestic inquiry must be held by an unbiased person who is unconnected with the incident so that he can be impartial and objective in deciding the subject matters of inquiry. He should have an open mind till the inquiry is completed and should neither act with bias nor give an impression of bias. Where the Inquiry Officer acts as the Presenting Officer, bias can be presumed. At all events, it clearly gives an impression of bias ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing Officer, will have to be decided with reference to the manner in which the evidence is let in and recorded in the inquiry. 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. 33. We fully endorse the principles as enumerated above, however, the principles have to be carefully applied in facts situation of a particular case. There is no requirement of appointment of Presenting Officer in each and every case, whether statutory Rules enable the authorities to make an appointment or are silent. When the statutory Rules are silent with regard to the applicability of any facet of principles of natural justice the applicability of principles of natural justice which are not specifically excluded in the statutory scheme are not prohibited. When there is no express exclusion of particular principle of natural justice, the said principle shall be applicable in a g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thority disagrees with the enquiry authority on any Article of charge, then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the enquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the enquiry officer. The principles of natural justice, as we have already observed, require the authority which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer. 35. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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