TMI Blog2006 (3) TMI 809X X X X Extracts X X X X X X X X Extracts X X X X ..... ntee notice dated 23.2.1999 was issued to him and was served upon his wife. Thereafter, another notice dated 10.3.1999 was issued to him directing him to resume duties. The petitioner sent a letter stating that he was sick and because of his illness he cannot resume duty. The respondents vide memo dated 7.4.1999 asked the petitioner to undergo medical examination. This memo was sent through a Special Messenger for service at the house of the petitioner. The brother of the petitioner, Mr. Sat Pal Singh, informed the Special Messenger that the whereabouts of the petitioner were not known, as he had not been coming home for the last one month. 3. In these circumstances, disciplinary proceedings were initiated against the petitioner for willfully absenting himself from duty vide order dated 18.4.1999. It was also noticed in the charge-sheet that the petitioner had absented himself earlier on 13 different occasions for which he had been reprimanded but he had failed to mend himself and was in a habit of absenting himself unauthorisedly. It may be relevant to state here that till the time of initiation of disciplinary proceedings the petitioner had not reported back for duty. 4. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om service to punishment from removal from service. 8. The petitioner challenged the impugned findings/orders passed by the enquiry officer, disciplinary authority and the appellate authority in O. A. No. 2098/2001 before the learned Central Administrative Tribunal. The Central Administrative Tribunal dismissed the said Original Application and also upheld the validity of Rule 16 including various sub-rules of the Rules. CONTENTIONS 9. The learned Counsel appearing for the petitioner before us has challenged the virus of Rule 16 including the sub rules. The main argument of the learned Counsel for the petitioner was that in view of Rule 16 the enquiry officer had acted as a presenting officer also and this according to the learned Counsel was contrary to the principles of natural justice and Therefore, Rule 16 was/is liable to be struck down. It was also submitted that after framing of the charge by the enquiry officer, the delinquent was/is not permitted under the Rules and allowed to cross examine the witnesses. It was submitted in this regard that the enquiry officer had prepared the list of witnesses and also prepared a list of documents relied upon by him to prove t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther that his whereabouts were not known as he was not coming home. It was further argued that it was an admitted fact that the petitioner never rejoined his duty. We may in order to decide the controversy, refer to the Rules. RULE 15 15. Preliminary enquiries (1) A preliminary enquiry is a fact finding enquiry. Its purpose is (i) to establish the nature of default and identity of defaulter(s), (ii) to collect prosecution evidence, (iii) to judge quantum of default, and (iv) to bring relevant documents on record to facilitate a regular departmental enquiry. In cases where specific information covering the above mentioned points exists a preliminary enquiry need not be held and departmental enquiry may be ordered by the disciplinary authority straight away. In all other cases a preliminary enquiry shall normally precede a departmental enquiry. (2)In cases in which a preliminary enquiry discloses the commission of a cognizable offence by a police officer of subordinate rank in his official relations with the public, departmental enquiry shall be ordered after obtaining prior approval of the Addl. Commissioner of Police concerned as to whether a criminal cases should ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the accused officer's pleas and any statement he may wish to make and then pass a final order after observing the procedure laid down in Rule 15(xii) below if it is within his power to do so. Alternatively the finding in duplicate shall be forwarded to the officer empowered to decide the case. (iii) If the accused police officer does not admit the misconduct, the Enquiry Officer shall proceed to record evidence in support of the accusation, as is available and necessary to support the charge. As far as possible the witnesses shall be examined direct and in the presence of the accused, who shall be given opportunity to take notes of their statements and cross-examine them. The Enquiry Officer is empowered, however, to bring on record the earlier statement of any witness whose presence cannot in the opinion of such officer, be procured without undue delay, inconvenience or expense if he considers such statement necessary provided that it has been recorded and attested by a police officer superior in rank to the accused officer, or by a magistrate and is either signed by the person making it or has been recorded by such officer during an investigation or a judicial enquiry ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the purpose of preparing his defense, be permitted to inspect and take entreats from such official documents as he may specify, provided that such permission may be refused for reasons to be recorded in writing, if in the opinion of the Enquiry Officer such records are not relevant for the purpose or against the public interest to allow him access thereto. The latest orders of the Government shall be applicable with regard to the charging of copying fees, etc. (vii)At the end of the defense evidence or if the Enquiry Officer so directs, at an earlier stage after the framing of charge the accused officer shall be required to submit his own version of facts. He may file a written statement for which he may be given a week's time, but he shall be bound to answer orally all questions arising out of the charge, the recorded evidence, his own written statement or any other relevant matter, which the Enquiry Officer may deem fit to ask. (viii)After the defense evidence has been recorded and after the accused officer has submitted his final statement, the Enquiry Officer may examine any other witness to be called court witness whose testimony he considers necessary for clar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith the finding of the Enquiry Officer, (b) Where the disciplinary authority is himself the Enquiry Officer, a statement of his own findings, and (c) Give him a show cause notice stating the punishment proposed to be awarded to him and calling upon him to submit within 15 days such representation as he may wish to make against the proposed action. 12. Under Rule 15, normally a preliminary fact finding enquiry is required to be held to bring on record relevant documents to facilitate a regular departmental enquiry. A preliminary enquiry, however, need not be held where specific information regarding the nature of default or the identity of the defaulter, prosecution evidence and relevant documents to facilitate regular departmental enquiry are already on record and it is also possible on the basis of the evidence available to prima facie adjudge quantum of default. It is after a preliminary enquiry is held or where there is sufficient material already available that a regular departmental enquiry can be initiated under Rule 16. 13. Under Rule 16, a delinquent officer charged with misconduct is required to appear before the disciplinary authority or the enquiry offic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... makes entire enquiry procedure void ab initio on account of bias. It was further submitted that the enquiry officer also had right to cross-examine the defense witnesses and even the list of witnesses and list of documents was prepared by the enquiry officer, who had thus shed his cloak of an independent and a fair adjudicator but was an interested party. Bias and validity of the Rules 15. Doctrine that No man should be a judge of his own cause - (Nemo Judex in Recausa) is well known. Is the procedure prescribed in the Rule 16 bad in law being at variance to the said doctrine? In other words, is an enquiry officer under the Rules, a judge of his own cause? Can the Rule 16 be struck down on the ground of per-se bias? 16. To answer the above questions, we are required to examine Article 311(2) of the Constitution of India, which reads as under: No such person as aforesaid shall be dismissed or removed or reduced in rank except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. 17. There are two requirements of the said Article: (i) Delinquent officer should be su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . It is not correct to state that the provisions of Rule 16, fail the test of reasonableness and are unconstitutional because defense evidence is only recorded after charge is framed. Charge is framed under Rule 16(4) only on the basis of the evidence produced till that stage and when the enquiry officer is of the opinion that the allegations have been substantiated on the basis of evidence available till that stage. Once defense evidence is produced and recorded, the enquiry officer is to examine the entire matter including the defense evidence and give his final findings. It is not possible to accept the contention that once charge is framed, the enquiry officer has bias and, Therefore, the said provision should be struck down. In fact, the enquiry officer is required to go into and examine the evidence and material at different stages to prevent harassment and is a given case drop or recommend the proceedings, once before the defense evidence is recorded and thereafter at the end, after the entire evidence including defense evidence has already been recorded. At the first stage, in case an enquiry officer comes to conclusion that the allegations are not substantiated, he need no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e falls under the exceptions. Therefore, in most of the cases in the preliminary enquiry proceedings necessary evidence, material and details of documents and list of witnesses required to be examined are collected and after the preliminary enquiry has come to an end, disciplinary proceedings are initiated. On the basis of the preliminary enquiry report, a list of witnesses is to be prepared. In other cases, the requirement of Rule 15 is that these details or materials should be already available. The enquiry officer is only required to make summary of the allegations and forward the list of witnesses and documents etc. to the delinquent officer facing charges. The mere fact that the enquiry officer is required to examine witnesses himself, put questions to the witnesses and cross-examine the defense witnesses cannot by any stretch be regarded as violation of Articles 311(2) and 14 of the Constitution. 24. Principles of natural justice have to give way when the statutory provisions are to the contrary. It may be also stated here that Doctrine of bias is not an absolute doctrine and is subject to well known exceptions as it is only propounded on the basis of principles of natural ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be defined to mean the total absence of preconceptions in the mind of the judge, then no one has ever had a fair trial, and no one ever will. The human mind, even at infancy, is no blank piece of paper. We are born with predispositions and the processes of education, formal and informal, create attitudes which precede reasoning in particular instances and which, Therefore, by definition, are prejudices. 27. An administrative adjudicator will not for obvious reasons have the same kind of objectivity or neutral stand as that of a Judge but his by itself cannot be a ground to strike down Rule 16. There are number of provisions in fiscal and other statute under which departmental officers act as both investigators and adjudicators. Challenge to the jurisdiction of the Government officers acting as both an adjudicator and an investigator was rejected by the Supreme Court way back in 1960 in the case of H.C. Narayanappa v. State of Mysore reported in [1960]3SCR742 wherein it was held as under: It is also true that the Government on whom the duty to decide the dispute rests, is substantially a party to the dispute but if the Government or the authority to whom the power is deleg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 SCC 182 examined these aspects in relation to service law and held the purpose and object of procedural fairness is to ensure reasonable opportunity to the delinquent officer to defend himself but the same depends upon facts and circumstances of each case. It was held that the doctrine of natural justice is incapable of exact definition but has to be judged from the point of view of what a reasonable man would regard as a fair procedure in particular circumstances. With regard to bias also the Court noted that bias includes within its ambit, attitude, malice, respite or ill will but mere general statements would not be sufficient for the purpose of indication of ill will malice etc. The concept of rare likelihood and reasonable suspicion of bias was examined and it was clarified that the issue of bias has to be decided on the facts and circumstances of each individual case. It was noticed that there was a change in the original thinking pertaining to concept of bias to the effect that mere apprehension or bias in the same case was held to be sufficient. 32. In the case of Indian Overseas Bank v. Indian Overseas Bank Officers Association and Anr. (2001)IILLJ1417SC , the Suprem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rayanappa v. State of Mysore1 SCR at p. 753: It is also true that the Government on whom the duty to decide the dispute rests, is substantially a party to the dispute but if the Government or the authority to whom the power is delegated acts judicially in approving or modifying the scheme, the approval or modification is not open to challenge on a presumption of bias. The Minister or the officer of the Government who is invested with the power to hear objections to the scheme is acting in his official capacity and unless there is reliable evidence to show that he is biased, his decision will not be liable to be called in question, merely because he is a limb of the Government. There is nothing inherently unconstitutional in permitting the assessing officer to gather the information and to assess the value of the information himself. The issue as to the constitutional validity of a provision which permitted an examining board not only to hold an inquiry but also to take action against doctors was raised before the Supreme Court of the United States in Harold Withrow v. Duane Larkin. In negating the challenge the Court said: (US p. 47) The contention that the combination ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pressions natural justice and legal justice do not present a watertight classification. It is the substance of justice which is to be secured by both, and whenever legal justice fails to achieve this solemn purpose, natural justice is called in aid of legal justice. Natural justice relieves legal justice from unnecessary technicality, grammatical pedantry or logical prevarication. It supplies the omissions of a formulated law. As Lord Buckmaster said, no form or procedure should ever be permitted to exclude the presentation of a litigant's defense. 15. The adherence to principles of natural justice as recognized by all civilized States is of supreme importance when a quasi-judicial body embarks on determining disputes between the parties, or any administrative action involving civil consequences is in issue. These principles are well settled. The first and foremost principle is what is commonly known as audi alteram partem rule. It says that no one should be condemned unheard. Notice is the first limb of this principle. It must be precise and unambiguous. It should apprise the party determinatively of the case he has to meet. Time given for the purpose should be adequate s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt set aside and quashed the departmental proceedings and the punishment orders on the ground that they were perverse as the conclusions were not based upon some definite evidence but mere suspicion. It was further held that Rule 16(3) should be invoked only when the conditions precedent mentioned therein were satisfied and not otherwise. State Bank of Bikaner and Jaipur (supra) also does not help the petitioner. In the said case it was held that statements made in Section 161 Cr. P.C. 1973 could be produced in a disciplinary inquiry but the delinquent officer should be given a fair opportunity to cross-examine the said witnesses. The context and the controversy involved in the said case was entirely different. 36. We may also point out that in the present case the petitioner had only appeared only once before the enquiry officer and did not participate in the enquiry proceedings. He did not cross-examine the witnesses, file any written statement or give his defense against allegations made against him. There is no allegation that procedure as prescribed in Rule 16 has not been followed. The petitioner had filed an appeal against the order passed by the disciplinary authority w ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
