IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP No.1174 of 2002 Date of decision 12.6.2007 Ashwani Kumar Petitioner Vs. Union of India and anr. Respondents Coram: The Hon’ble Mr.Justice Rajiv Sharma,J. Whether approved for reporting?1 Yes For the Petitioner: Mr. Ashutosh Burathoki, Advocate. For the Respondents: Mr.Sandeep Sharma, Assistant Solicitor General of India. Rajiv Sharma, J. The brief facts which can be culled out from the pleadings of the respective parties are that the petitioner was enrolled in the Border Security Force in “A-Coy. Of 107 Bn. Border Security Force.” Ms.Kusum petitioner’s wife had filed a suit for the grant of decree for declaration to the effect that she was the legally wedded wife of the petitioner and the petitioner has no right, title or interest to solemnize second marriage during her life time or till the decree of divorce is not passed by the court of competent jurisdiction and the marriage of the parties is not dissolved with a consequential relief of permanent and prohibitory injunction restraining the petitioner from solemnizing second marriage till the decree of divorce is not passed by the court of competent law and the marriage of the parties is not dissolved. The suit was compromised on 29.1.1995 and the order is reproduced below for better appreciation of the facts: “The learned counsel for the parties, present in the Court have been motivated for conciliation for which they have agreed. Their statements have been recorded separately to the factum of 1 Whether reporter of local papers are allowed to see the judgment ? Yes 2 compromise arrived at between the parties. In view of the statements of the learned counsel for the parties, the defendant shall not contract second marriage till he obtains divorce from the plaintiff in accordance with law. The suit stands decreed as compromised. ….” The petitioner’s wife Ms.Kusum had submitted a complaint to the authorities on 14.9.1998 (Annexure R-1) for initiating action against the petitioner for contracting second marriage during life time of his first wife without obtaining legal divorce from the first wife. He was served with a show cause notice 25.10.1999 calling upon him why disciplinary action shall not be instituted against him for entering into second marriage while first wife was alive. He filed a detailed reply to the show cause notice on 28.10.1999 and has denied the allegation of contracting second marriage. It appears that on the basis of the complaint dated 14.9.1998 the Officiating Commandant, 107 BN BSF has sent a communication vide a letter dated 4.1.1999 to the Senior Superintendent of Police, District Kangra for police verification. The Superintendent of Police, Kangra at Dharamshala has sent a letter to the Commandant 107 BN BSF on 1.4.1999 along with photo copies of investigation report of police and certificate of Gram Panchayat. The Commandant 107 Bn. BSF has called upon the Senior Superintendent of Police District Kangra in the month of April, 1999 for giving correct date of marriage contracted by the petitioner. The Superintendent of Police, Kangra at Dharamshala has sent a letter to the Commandant on 24.11.1999 along with report of Pradhan, Gram Panchayat , Sungal and Numberdar Padiarkhar, Tehsil Palampur. He was discharged from service vide order dated 6.12.1999 on the ground of unsuitability under rule 26 of the BSF Rule 1969. Mr.Ashutosh Burathoki, learned counsel for the petitioner had strenuously argued that a regular inquiry was to be instituted before the issuance of order dated 6.12.1999 and rule 26 of BSF Rule 1969 was not attracted in this case. Mr. Sandeep Sharma, learned Assistant Solicitor 3 General of India for the respondents had supported the order dated 6.12.1999. I have heard the learned counsel for the parties and also perused the record. The foundation for issuance of show cause notice to the petitioner on 25.10.1999 is the complaint of Smt.Kusum dated 14.9.1998. He had replied to the show cause notice denying the factum of contracting second marriage. The order dated 6.12.1999 is based on the report of the Senior Superintendent of Police, District Kangra dated 24.11.1999. Mr.Burathoki submitted that his client was not associated at the time of inquiry- investigation carried out by the police of district Kangra. He also contended that the reply furnished by his client has not been taken into consideration except one observation that the same was not found convincing. It will be apt to reproduce Rule 26 of the BSF Rule 1969 which reads as under: “ 26. Retirement of enrolled persons on grounds of unsuitability.- Where a Commandant is satisfied that an enrolled person is unsuitable to be retained in the Force the Commandant may, after giving such enrolled person an opportunity of showing cause (except where he considers it to be impracticable to give such opportunity),retire from the Force the said enrolled person.” From perusal of above quoted rule it is evident that the Commandant if satisfied that enrolled person is unsuitable to be retained in the force, the Commandant may, after giving such enrolled person an opportunity of show cause, retire from the service the said enrolled person. But in the present case the petitioner has been discharged from service which is not stipulated under rule 26.The show cause notice has been issued to the petitioner under rule 7 of the Border Security Force,Rules,1969 read with CCS Conduct Rule 21. The procedure for termination of service finds mention in Chapter IV of the Border Security 4 Force Rules, 1969. The procedure for termination of service on misconduct is specifically dealt with under Rule 20 which reads as under : “20. Termination of service for misconduct.-(1) Where in the opinion of the Director General a person subject to the Act has conducted himself in such manner, whether or not such conduct amounts to an offence, as would render his retention in service undesirable and his trial by Security Force Court inexpedient, the Director General may inform the person concerned accordingly. (2) The Director General shall further inform the person concerned that it is proposed to terminate his services either by way of dismissal or removal. (3) The Director General shall furnish the particulars of allegations and the report of investigation (including the statement of witnesses, if any, recorded and copies of documents, if any, intended to be used against him) in cases where allegations have been investigated: Provided that where the allegations have not been investigated, the Director General shall furnish to the person concerned the names of witnesses with a brief summary of the evidence and copies of documents, if any, in support of the allegations. (4) Notwithstanding the provisions of sub-rule (3) where it would not be in public interest to disclose the evidence or the documents, it shall be lawful for the Director General to withhold copies of such evidence or documents from the person concerned. (5) Where any evidence or document is withheld under sub- rule (4) the Director General shall record the nature of the evidence or the document withheld and forward the same to the Central Government together with the reasons for withholding such evidence or document. (6) The person concerned shall within seven days from the receipt of information furnished to him under sub rule (3) inform, in writing, the Director General:- (a) his acceptance or denial of the allegations; (b) any material or evidence he wishes to be considered in his defence; (c) names of witnesses whom he wishes to cross-examine; and 5 (d) names of witnesses whom he wishes to examine in his defence. (7) Where the person concerned has expressed a wish to cross-examine any witness or to produce witness in defence, the Director General shall appoint an enquiry officer who shall be an officer superior to the person against whom it is proposed to take action and has not taken any part previously in the investigation into the matter. (8) Where any complaint has been received by the Central Government against a person subject to the Act that he has conducted himself in such manner as would render his retention in service undesirable, the Central Government may require the Director General to take necessary action in this behalf in accordance with the provisions of the foregoing sub rules.” Rule 21 prescribes the procedure before the Enquiry Officer which reads as under: “21. Procedure before the Enquiry Officer.-(1) The Director General may appoint an officer of the Force to be the conducting officer for the purposes of presenting the case before the enquiry officer and it shall be the duty of the conducting officer to procure the attendance of witnesses. (2) No counsel or legal practioner shall be allowed to appear before the enquiry officer. (3) The evidence of witnesses shall be taken on oath and the conducting officer shall have the right to cross-examine or re- examine witnesses and to call witnesses in rebuttal. (4) The enquiry officer shall ordinarily examine only such witnesses whose names have been disclosed under clauses (c ) and (d) of sub-rule 6 of rule 20, but if the interest of justice so require, the inquiry officer may permit the person whose conduct is under enquiry, to call additional witnesses: Provided that, if the enquiry officer considers that the evidence likely to be given by a witness would not materially assist in the determination of the issues, he may refuse to examine such a witness. (5) The enquiry officer shall sit from day to day till the whole evidence has been recorded: 6 Provided that, if the interests of justice so require, he may for reasons to be recorded in writing adjourn for a reasonable time. (6) (a) The enquiry officer shall, immediately after the termination of the enquiry, transmit his finding along with the evidence recorded, to the Deputy Inspector General under whom the person whose conduct is under enquiry was serving at the time of the alleged misconduct. (b) The Deputy Inspector General shall forward the proceedings together with his opinion thereon to the Inspector General concerned who may record his opinion and transmit the proceedings to the Director General. (7) The decision of the enquiry officer as to the admissibility of evidence, allowing or disallowing any question, calling or refusing to call any witness, adjourning or refusing to adjourn or on any other incidental question shall be final.” The imposition of penalty is enumerated under rule 22 which reads as under : “22. Imposition of penalty.-(1) After going through the allegations against the person intended to be dismissed or removed, his defence, and the proceedings of enquiry if any, the Director General shall if the case has been initiated by the Central Government, and, may, in other cases, make his recommendation to the Central Government and that Government may dismiss or remove such a person. (2) If the central Government considers that the allegations are proved but dismissal or removal would be too severe a punishment, it may order: (i) the retirement of the officer; or (ii) imposition of the penalty of forfeiture of service for purposes of promotion or seniority; or (iii) may order the withholding of increments or any other punishment which would be sufficient to meet the ends of justice. (3) The Director General, an Inspector General or a Deputy Inspector General before dismissing or removing from the service a person subject to the Act shall comply, as far as 7 applicable, with the provisions of rules 20,21 and sub-rule (2) of this rule: Provided that a Deputy Inspector General shall not dismiss or remove a subordinate officer of the rank of Subedar (Inspectror). Admittedly the procedure as quoted above has not been followed before the issuance of order dated 6.12.1999. The charges levelled against the petitioner were serious in nature and had to be gone into after the denial of the same by him in a properly constituted enquiry. The petitioner after issuance of charge sheet was to be granted sufficient time to file a reply to the same. Thereafter the enquiry officer was to be appointed and during the course of enquiry the petitioner was to be afforded opportunity to project his case. Thereafter the evidence was to be taken into consideration, oral as well as documentary, by the enquiry officer and thereafter copy of the enquiry report was to be supplied to the petitioner to point out the shortcomings or discrepancies during the course of inquiry and only thereafter the Disciplinary Authority could impose penalty upon him. In Union of India v. T.R. Verma, A.I.R. 1957 S.C. 882 the Apex Court has held that :- “Stating it broadly and without intending it to be exhaustive, it may be observed that rules of natural justice require that a party should have the opportunity of adducing all relevant evidence on which he relies, that the evidence of the opponent should be taken in his presence, and that he should be given the opportunity of cross- examining the witnesses examined by that party, and that no materials should be relied on against him without his being given an opportunity of explaining them.” The expression ‘reasonable opportunity’ has been explained by the Apex Court in M/s. Fedco (P) Ltd. and another v. S.N. Bilgrami and others, AIR 1960 Supreme Court 415 as under:- ”The requirement that a reasonable opportunity of being heard must be given has two elements. The first is that an opportunity to be heard must be given; the second is that this opportunity must be 8 reasonable. Both these matters are justiciable and it is for the Court to decide whether an opportunity has been given and whether that opportunity has been reasonable. In the present case, a notice to show cause against the proposed order was given; it was stated in the notice that the ground on which the cancellation was proposed was that the licences had been obtained fraudulently; and later on a personal hearing was given. It must therefore be held that the requirement that an opportunity to be heard must be given was satisfied. What the petitioners’ Counsel strenuously contends however that is though an opportunity was given that opportunity was not reasonable. In making this argument he had laid special stress on the fact that particulars of the fraud alleged were not given and an opportunity to inspect the papers though repeatedly asked for was not given. It is now necessary to consider all the circumstances in order to arrive at a conclusion whether the omission to given particulars of fraud and inspection of papers deprived the petitioners of a reasonable opportunity to be heard. There can be no invariable standard for “reasonableness” in such matters except that the Court’s conscience must be satisfied, that the person against whom an action is proposed has had a fair chance of convincing the authority who proposes to take action against him that the grounds on which the action is proposed are either non-existent or even if they exit they do not justify the proposed action. The decision of this question will necessarily depend upon the peculiar facts and circumstances of each case, including the nature of the action proposed, the grounds on which the action is proposed, the material on which the allegations are based, the attitude of the party against whom the action is proposed in showing cause against such proposed action, the nature of the plea raised by him in reply, the requests for further opportunity that may be made, his admissions by conduct or otherwise of some or all the allegations and all other matters which help the mind in coming to a fair conclusion on the question.” The Apex Court in State of Orissa v. Dr. (Miss) Binapani Dei and others, AIR 1967 Supreme Court 1269 has held that even an administrative order which involves civil consequences, has to be passed consistently with the rule of natural justice. Their Lordships have held as under:- 9 “It is true that some preliminary enquiry was made by Dr. S. Mitra. But the report of that Enquiry Officer was never disclosed to the first respondent. Thereafter the first respondent was required to show cause why April 16, 1907, should not be accepted as the date of birth and without recording any evidence the order was passed. We think that such an enquiry and decision were contrary to the basic concept of justice and cannot have any value. It is true that the order is administrative in character, but even an administrative order while involves civil consequences, as already stated, must be made consistently with the rules of natural justice after informing the first respondent of the case of the State, the evidence in support thereof and after giving an opportunity to the first respondent of being heard and meeting or explaining the evidence. No such steps were admittedly taken, the High Court was, in our judgment, right insetting aside the order of the State.” The Apex Court in a land mark judgment in A.K. Kraipak and others v. Union of India and others, AIR 1970 SC 150 has held that the aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. The Supreme Court has opined as under:- “The aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words they do not supplant the law of the land but supplement it. The concept of natural justice has undergone a great deal of change in recent years. In the past it was thought (1) no one shall be a judge in his own cause (Nemo debet ess judex propria causa), and (2) no decision shall be given against a party without affording him a reasonable hearing (audi alteram partem). Very soon thereafter a third rule was envisaged and that is that quasi-judicial enquiries must be held in good faith, without bias and not arbitrarily or unreasonably. But in the course of years many more subsidiary rules came to be added to the rules of natural justice. Till very recently it was the opinion of the courts that unless the authority concerned was required by the law under which it functioned to act judicially there was no room for the application of the rules of natural justice. The validity of that limitation is not questioned. If the purpose of the rules of natural 10 justice is to prevent miscarriage of justice one fails to see why those rules should be made inapplicable to administrative enquiries. Often times it is not easy to draw the line that demarcates administrative enquiries from quasi-judicial enquiries. Enquiries which were considered administrative at one time are now being considered as quasi-judicial in character. Arriving at a just decision is the aim of both quasi-judicial enquiries as well as administrative enquiries. An unjust decision in an administrative enquiry may have more far reaching effect than a decision in a quasi-judicial enquiry. As observed by this Court in Suresh Koshy George v. University of Kerala, Civil Appeal No.990 of 1968, D/-15-7-1968 = (AIR 1969 SC 198) the rules of natural justice are not embodied rules. What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the frame-work of the law under which the enquiry is held and the constitution of the Tribunal or body of persons appointed for that purpose. Whenever a complaint is made before a court that some principle of natural justice had been contravened the court has to decide whether the observance of that rule was necessary for a just decision on the facts of that case.” The Apex Court in The Managing Director, U.P. Warehousing Corporation and others versus Vijay Narayan Vajpayee, A.I.R. 1980 Supreme Court 840 has held that dismissal of the employee of U.P. Warehousing Corporation in total breach of natural justice was illegal. The Supreme Court has opined as under:- “The appellant is a Corporation constituted under the Madhya Pradesh State Warehousing Corporation Act (28 of 1956), which was subsequently replaced by the Madhya Pradesh Act 58 of 1962. It is a statutory body wholly controlled and managed by the Government. Its status is analogous to that of the Corporations which were under consideration in Sukhdev Singh’s case (ibid). The ratio of Sukhdev Singh’s case, therefore, squarely applies to the present case. Even if at the time of the dismissal, the statutory regulations had not been framed or had not come into force, then also, the employment of the respondent was public employment and the statutory body, the employer could not terminate the services of its employee without 11 due enquiry in accordance with the statutory Regulations, if any in force, or in the absence of such Regulations, in accordance with the rules of natural justice. Such an enquiry into the conduct of a public employee is of a quasi-judicial character. The respondent was employed by the appellant-Corporation in exercise of the powers conferred on it by the statute which created it. The appellants’ power to dismiss the respondent from service was also derived from the statute. The Court would therefore, presume the existence of a duty on the part of the dismissing authority to observe the rules of natural justice, and to act in accordance with the spirit of Regulation 16, which was then on the anvil and came into force shortly after the impugned dismissal. The rules of natural justice in the circumstances of the case, required that the respondent should be given a reasonable opportunity to deny his guilt, to defend himself and to establish his innocence which means and includes an opportunity to cross-examine the witnesses relied upon by the appellant- Corporation and an opportunity to lead evidence in defence of the charge as also a show cause notice for the proposed punishment. Such an opportunity was denied to the respondent in the instant case. Admittedly, the respondent was not allowed to lead evidence in defence. Further, he was not allowed to cross-examine certain persons whose statements were not recorded by the Enquiry Officer (opposite party No.1) in the presence of the respondent. There was controversy on this point. But it was clear to the High Court from the report of enquiry by the Opposite Party No.1 that he relied upon the reports of some persons and the statements of some other persons who were not examined by him. A regular departmental enquiry takes placed only after the charge-sheet is drawn up and served upon the delinquent and the latter’s explanation is obtained. In the present case, no such enquiry was held and the order of dismissal was passed summarily after perusing the respondent’s explanation. The rules of natural justice in this case were honoured in total breach. The impugned order of dismissal was thus bad in law and had been rightly set aside by the High Court.” The Apex Court in S.L. Kapoor versus Jagmohan and Others, (1980) 4 SCC 379 has held that non-observance of natural justice is itself a prejudice caused. The Apex Court has also laid down in this judgment that merely because the facts are admitted or 12 are undisputable, it does not follow that natural justice need not be observed. Their Lordships of the Hon’ble Supreme Court have opined as under:- “The matter has also been treated as an application of the general principle that justice should not only be done but should be seen to be done. Jackson’s Natural Justice (1980 Edn.) contains a very interesting discussion of the subject. He says: The distinction between justice being done and being seen to be done has seen emphasized in many cases . . . . . . The requirement that justice should be seen to be done may be regarded as a general principle which in some cases can be satisfied only by the observance of the rules of natural justice or as itself