6 HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Writ Petition (S) No. 1407 of 2005 PETlTl0NER Dilip Kumar Dubey VERSUS RESPONDENTS State of Madhya Pradesh and others; Post for pronouncement of order on :1371 0.2010 /_ // Sdl— Pritinker Diwakef Judge ' $1 ”1 HIGH COURT OF CHHATTISGARH AT BILASPUR l‘x (Hon. Mr. Justice Pritinker Diwaker) Writ Petition (S) No. 1407 of 20405 Dilip Kumar Dubey PETITIONER VERSUS RESPONDENTS State of Madhya Pradesh and others. Shri P.S. Koshy counsel for the petitioner. Shri V.V.S. Moorthy Dy. AG for the respondents/State. WRIT PETITION UNDER ARTICLE 226/227 OF THE CONSTITUTION OF INDIA ORDER (gmozmo) The petitioner who was an employee of the police department and was working as a constable has assailed the order dated 30.06.1993 (Annexure A—11) passed by Superintendent of Police, Bilaspur compulsorily retiring him from the post. Petitioner has also assailedthe order dated 12.10.1993 (Annexure A-13) passed by D.I.G, Bilaspur and order dated 3.2.1994 (Annexure A-14) passed by LG, Bilaspur confirming the order passed by the Superintendent of Police o 30.06.1993. \ 2. Facts of the case in brief are that on 5.7.1982, the petitioner was appointed as con'stabie in therpolice department. On 18.12.1992 while being posted at police Stag‘on, Kota he was suspended and on 19.12.1992 the Superintendent of Police directed one L.S. Singh, Town Inspector, Kota to submit his report and accordingly on 1.1.1993 a report was submitted by him. On 24.2.1993 a charge sheet (Annexure A—1) was issued by the Superintendent of Police to the petitioner leveling as many as three charges ag’éinst him and the petitioner was asked to submit his reply within 10 days from the said date. First E: f charge levelled against the petitioner was that on 18.12.1992 he had abused Town Inspector L.S. Singh and made an attempt of assault on 'im with the help of an iron rod. Second charge levelled against him .1 n h -2_ was that he was found under the influence of liquor while discharging the duties of guard in the police station. Third charge made against him was that previously he was punished for his attitude but no improvement in his conduct was noticed. Before expiry of 10 days of tiling the reply from 24.2.1993 Superintendent of Police, Bilaspur appointed S.D.O.(P), Kota as Enquiry Officer on 26.2.1993 and vide Annexure A-5 itself Superintendent of Police, Bilaspur directed the petitioner to submit his reply before the enquiry officer. However, on 6.3.1993 vide Annexure A-4 the petitioner submitted his reply to the Superintendent of Police, Bilaspur which was duly forwarded by him to the Enquiry Officer vide Annexure A-6 and on 7.5.1993 the petitioner submitted the reply to the charge sheet (Annexure A—7) before the Enquiry Officer. During enquiry conducted by the Enquiry Officer, in between 17.4.1993 and 7.5.1993 the Enquiry Officer completed the enquiry by examining seven witnesses namely Lalan Pandey—Head Constable, Samant Kosle — Head Constable, Bhairo Prasad - Constable, M. P. Mishra - A.S.l, L. S. Singh - the complainant herein, Rajesh Kumar Sahu and Kumari Ranjana Shukla. Admittedly, no presenting officer was appointed during the enquiry nor the petitioner was asked to lead his evidence in support of his case. Entire enquiry has been conducted by the Enquiry Officer himself who later acted as the Presenting Officer also> On 7.5.1993 (Annexure A-7) the petitioner submitted his defence statement and thereafter on 8.5.1993 Enquiry Officer submitted his report Annexure A-‘9. On 14:5.1993 Superintendent of Police issued the second show cause notice Annexure A-8 to the petitioner which 3. was duly replied to by him on 29.6.1993 (Annexure A—10). On the very ‘ 1 J next day i.e. 30.06.1993 *impugned order has been passed by Superintendent of Police, Bilaspur compulsorily retiring the petitioner. Against this order of Superintendent gfgPolice the petitioner preferred , an appeal on 11.8.1993 Annexure A-12 before D.l.G, Bilaspur which came to be dismissed o'n 12.10.1993 (Annexure A-13). Against this order of D.l.G, Bilaspur the petitioner further preferred an appeal to l.G, -3‘ Bilaspur but the same was also dismissed vide order atd 3.2.1994 (Annexure A-1 4). 4. It has been argued on behalf of the petitio that entir actio has been taken against the petitioner with bia ttitude the petitioner was not having good relations with the then Town Isptr namely L. S. Singh. According to him, previously alo e nd said L. S. Singh were posted together and their relations were inimcal. This fact has been admitted even by said L. S. Singh during enuiry. t has been argued that the departmental enquiry has n conducted in a biased manner with a pre-determined mind and tht i w ae has been conducted in a hot haste manner and was coplted u within 2O days and thereafter the order impugned pulorily retiring the petitioner has been passed. He submits that even the Presenting Officer was not appointed by the department and the enquiry officer himself has played the role of prosecutor as well as the judge. He submits that on 24.2.1993 vide Annexure A-1 t petitioner s granted 1O days time by the S.P. to submit his repl aist the charge sheet but without waiting for the same, enquiry er ws apied by the S.P. on 26.2.1993 itself‘and the petitioner was d t submit his reply before him. According to the petitior this ac he respondents itself shows as to in what manner the enqui ben conducted. He submits that the Superintendent of olic forwardd the reply of the petitioner to the Enquiry Officer whereas he himself was required taconsider reply of the petitioner and after arriving to a particular conclusion to his satisfaction he should hve cted further. He submits that while doaing this Superintendet of Polic has completely violated the mandatory provisio of Rule 14 of Chhattisgarh Civil Services’(classification, Control nd Appa) ules, 1966. He submits that in the appointment of enui cer it should have been reflected that the reply ofkthe petitionr w’nsidered by the Superintendent of Police and then on what is th apointment of the enquiry ofncer is made. He further subits hat dg e course of enquiry only those persons have ben examined by the ,' department who were under the influence ad control of Ton de . ner e n sed a as neco s h a i q I bee a s hy the sm me jst coms he wa y gan offic a pont aske o ne t of t ry has e Pe e a a n e ns a el R qry ofti e asco bas e p m t urin th e n w “q“ Inspector L. S. Singh. According to him the independent witness Uma Shankar Singh was though present on 3.5.1998 before the enquiry officer as a prosecution witness, he_ was not examined on the ground that the enquiry officer doubted his credibility on account of his aiieged past conduct. Another reason assigned by the enquiry officer for not examining the independent witness was>that he was involved in bootiegging. Yet another reason assigned by the Enquiry Officer for non—examination of the independent witness was that he was indulging in drawing illegal monetary benefits. He further submits that the enquiry ofhcer could not have refused to examine this witness and in all fairness after his examination his evidence should have been weighed. He submits that during enquiry, the enquiry officer himself has cross- examined the witness and put leading questions to them which is~ impermissible under the law. Hereferred to the statement of M.P.Mishra, Assistant Sub-inspector, police station, Kota. He submits though the allegation against the petitioner is that he was found under the influence of liquor but there is no medical evidence to this effect though there was sufficient opportunity for the department to medically examine the petitioner. He further submits'that there is no documentary evidence on record to show that previously also the petitioner was involved in almost similar incident and merely on the basis of statement of the complainant this charge has been found proved against the petitioner. He submits that initially it is the Town inspector L. S. Singh who made a complaint to the S.P. against the act of the petitioner and in turn, the S.P. directed L.S.Singh himself to conduct preliminary enquiry and submit the report and subsequently based on the said report dated 1.1.1993 of L.S.Singh, charge sheet ' was issued against the petitioner. According to the petitioner the entire exercise is nothing but an eye wash and has been done with an intention to punish the petitioner one way or the other. He submits that in this case the enquiry officer has played the role of presenting officer also and as such the bias can be easily presumed. Lastly it has been further argued that all the three impugned orders i.e. dated 30.6.1993 . (Annexure A-1 1), 12.10.1993 (Annexure A~13) and 3.2.1994 (Annexure ’A-14) passed by S.P., D.l.G. and l.G. respectively having passed - S‘. without application of mind in a mechanical manner simply on the basis ofthe enquiry report submitted by the enquiry officer. 5. Counsel fOr the respondents submits that entire enquiry-has been conducted strictly in accordance with iaw and there is no illegality n the same. He submits that full opportunity was given to’the petitioner i and the provisions of natural justice have been complied in toto. He however does not dispute that no presenting officer was appointed at the time of enquiry and the enquiry omcer himself has played the role of prosecutor as also that of judge. He also admits that the petitioner was not medically examined and there is nothing on record to show that previously he was punished for his same act of consumption of liquor during discharge of his duty. He also admits that the independent witness Uma Shanker Singh was though present before the enquiry fticer on 3.5.1993 but he has not been examined by him. 6. Before adverting to the rival submissions of the parties it would be profitable to refer to Rule 14.4 of the Madhya Pradesh Civil Service (Classification, Control and Appeal) Rules, 1966 which reads as under: 14 (4) The disciplinary authority shall deliver or cause to be delivered to the Government servant a copy of the articles of charge, the statement of the imputations of misconduct or misbehaviour and list of documents and Witnesses by which each artic/e or charges is proposed to be sustained and shall require the Government servant to submit, within such time as may be specified, a Written statement of his defence and state Whether he desires to be heard in person. ' ‘ Rule 14 (5) of the Madhya Pradesh Civil Service (Classification, Control and Appeal) Rules, 1966 with respect to appointment of Enquiry and Presenting Officers being relevant for disposal of this petition is also quoted below: ”14 (5) (a) Onrecelpt of written statement of defence, the discrp/inary authority may itself inquire into such of the articles of charge as are not admitted, or if it considers it necessary to do so, appoint under sub-rule (2), an inquiring authority forThe puipose, and Where all the articles of charge have been admitted by the Govemment servant in his written statement of defence, the disciplinary authority shall record its findings on each charge after taking such evidence as it may think and shall act in the manner laid down in Rule 15. (b) If no written. statement of defence is submitted by the Government servant the disciplinary authority may itself o .._é__ require into the articles of charge, or may, if it considers it necessary to do so, appoint, under sub-rule (2), an inquiring authon‘ty for the purpose. (c) Where the disciplinary authority itself inquires into any article of charge or appoints an inquiring authority for holding ’ any inquiry into such charge, it may, by an order, appoint a Government servant or a legal practitioner, to be known as the ‘Presenting Officef to present on its behalf the case in support of the articles of charge.” 7. Admittedly on 24.2.1993 vide Annexure A-1 charge sheet was issued to the petitioner by Superintendent of Police leveling three charges against him and also asking him to submit his reply within 10 days. It is also admitted that without waiting for the reply of the petitioner to the letter dated 24.2.1993, Superintendent of Police, Bilaspur vide letter dated 26.2.199 (Annexure A-5) appointed S.D.O (P) Kota as Enquiry Officer and directed the petitioner to submit his reply to the letter dated 24.2.1993 directly to the Enquiry Officer. lt is further not disputed that the petitioner submitted his reply on 6.3.1993 (Annexure A-4) to the Superintendent of Police who in stead of c0nsidering the same on merits forwarded it to the Enquiry Officer vide Annexure A—6. lt is thus apparent that the reply of the petitioner to th'e charge sheet dated 24.2.1993 has never been considered though required to e done by him. A bare reading of Rules 14 (4) and 15 (a,b,c) of Madhya radesh Civil Services (Classification, Control 'and Appeal) Rules, 1966 goes to show that in spite of being mandatory in nature, they have been completely ignored in this case and contrary to the Rules Enquiry Officer wa appointed and the petitioner was asked to submit his reply to the Enquiry Officer but in fact the reply of the petitioner made to the disciplinary authority was forwarded by him to the Enquiry Officer. The disciplinary authority has never applied its‘miihd on the charges levelled against the petitioner and in a mechanical manner directed the Enquiry Officer to look into the reply and th roceedings. In the matter of State of Punia’b v. V.K..Khanna reported in 001 (2) SCC 330 the Supreme Court has held thus: “34. The High Court while delving into the issue went into the factum of announcement of the Chief Minister in regard substantiate to appointment” the frame of of mind aarT of enquiry the authorities officer and to thus depicting bias — what bias means has already been dealt with by us earlier in this judgment, as such it does not require any further dilation but the factum of [announcement has been taken note of as an illustration to a mindset viz; the inquiry shall proceed irrespective of 3 b P s e p 2 J ,7__ the reply — is it an indication of a free and fair attitud towards the off/cer concerned? The answer cannot possibly in the affirmative. It is well settled in service jurisprudence that the authority concerned has to apply its mind upon receipt of rep/y to the charge-sheet or show-cause as the case may be, as to whethera further inquiry is called for. In the event upon deliberation and due considerations it is in the affirmative — the inquiry follows but not othem/ise and it is this part of service jurisprudence on which reliance was placed by Mr. Subramanium and on that score, strongly criticized the conduct of the respondents (sic appellants) herein and accused them of being biased. We do .find some justification in such a criticism upon consideration of the materials on record. " Further in the matter of Satwatideswal v. State of Haryana and others reported in 2010 (1) SCC 126 it has been held by the Apex Court as under: “8. Apart from that, on a cursory look of the statutory provision of the constitution of the Parishad Working Committees, it would be clear that before imposing any major penalty against an employee, namely, an order of ' termination of sen/ice, an enquiry must be held in the manner specified in the statutory rules by which the disciplinary authority shall frame definite charges on the basis of allegations on which an enquiry shall be proposed and opportunity must be given to the employee to submit a written statement‘stating therein whether he/she-desires to be heard in person and no order of termination also can be passed without the approval of the Managing Committee. On this count alone, therefore, the High Court was, in our view, in grave error in dismissing the writ petition of the writ petitionen- 9. According/y, the impugned judgment of the High Court is set aside and the order of termination passed against the appellant is quashed and the writ petition stands allowed. However, it would be open to the authorities, if they‘so desire, to initiate disciplinary proceedings against the. appellant for her termination from service and if such disciplinary proceedings are initiated, the authoritiesvshallgive proper opportunity of hearing and permit the parties to adduce evidence in support of their respective stands and after giving such opportunity, therdisciplinary authorities thereafter shall give hearing to the appellant and then pass a final order on the question of termination of service of the appellant W e ._g, in compliance with the statutory rules concerned applicable to the appellant. 8. Non-observance of the mandatory provisions of Madhya Pradesh Civil Services (Classification, Control and Appeal) Rules, 1966 creates doubt in the entire Departmental Enquiry. Further it is apparent from the record that the complainant in the present case is L.S. Singh, the then Town Inspector ith whom the petitioner had mis-behaved and on his complaint the case was initiated against the petitioner. When said L.S. Singh himself was the complainant before the Superintendent of Police, he should not have directed L.S. Singh to conduct an enquiry and submit the report. ln all fairness some other person should have been appointed to enquire into the charges levelled against the petitioner and on examination of the report the disciplinary authority should have proceeded further. That apart, Town Inspector in his statement has admitted the fact that previously he and the petitioner were posted together and there was some previous enmity between them. Record also reflects that enquiry has been conducted in a hot haste manner just within a period of 20 days and during this .period the respondents have examined seven witnesses including the complainant. From the order sheets of the enquiry officer this fact is apparent that th enquiry officer was in 'hurry to conclude the enquiry. Yet another aspect which requires consideration is that independent witne‘ss Uma Shanka Singh was though present on 3.5.1998 as the prosecution witness but he was not examined on the ground that the Enquiry Officer doubted his credibility on account of his alleged past conduct. Non examination of im‘portant independent witness is also fatalto the case of the prosecution and he has been‘let. ‘off on totally untenable ground. Likewise. there is no document on record to show that the petitioner was medically examined to prove the fact that on the date of incident he was in an intoxicated condition. In the matter of Hardwarilal v. State of U.P. reported in 1999 (8) SCC 582, it has been held by the Apex,.C,ourt as under: ' 3. “Before us the sole ground urged is as to the non- observance of the principleswof natural justice in not examining the complainang'Shri -Virender Singh, and the x witness, Jagdish Ram. The Tribunal as well as the high Court have brushed aside the grievance made by the appellant that the non-examination of those two person has prejudiced his case. Examination of these two witnesses. would have revealed as to whether the complaint made by Virender Singh was correct or not an w e r _.?__ o estgblish that he was the best person to speak to its or the condition of the appellant. We do not think the Tribunal and the High Court were justiiied in thinking that non-examination of these two persons could not be material. In these circumstances, we are of the view that the High Court and the Tribunal erred in not attaching importance to this contention of the appellant. ” Further in the matter of Union of India v. Prakash Kumar Tandon reported in 2009 (2t SCC 541 it has been held by the Apex Court as under: “15. The principles of natural justice demand that an application for summoning a witness by the delinquent officer should be considered by the enquiry officer. It was obligatory on the part of the enquiry officer to pass an order in the said application. He could not refuse to consider the same. It is not for the Railway Administration to contend that it is for them to consider as to whether any witness should be examined by it or not. It was for the enquiry ofh'cer to take a decision thereupon. A disciplinary proceeding must be fair/y conducted. A enquiry officer is quasi- judicial authority. He, therefore. must perform his functions fair/y and reasonably which is even othen/vise the requirement of the principles of nature/justice. " 9. The documents further reflect that only those persons have been examined by the department who were under the control and influence of the department X - and all of them have mechanically ’.. deposed against the petitioner. The department has utterly failed to prove that previously also the petitioner was invbived in almost similar incident. Merely on the basis of the statement of the complainant-this chargehas been found proved whereas if factual position was iike this, department ought to have produced the relevant material during the inquiry itself. 10. Another point for consideration before this Court is whether the Enquiry Officer can act as Presentin‘ggQfhcer also, can’be' permitted to examine the witnesses and put on them the leading questions. From the facts of the present case it is quite apparent that it is the Enquiry Officer who has acted as Presenting Officer also, it is also evident that to some witnesses leading questions were also put by the Enquiry Officer. Recently, t vicar in the matter of State of U.P. v. Saroj Kumar Sinha reported n 2010 (2) SCC 772 the Supreme Court has held as under: 28. ”An inquiry on'icer acting in a quasi-judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the department/disciplinary authority/Govemment. His function is to examine the evidence presented by the Department, even in the absence of the delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved. In the present case the aforesaid procedure has not been obsen/ed. 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. 29. Apart from the above, by virtue of Article 311(2) of the Constitution of India the departmental enquiry had to be conducted in accordance with the rules of naturaljustice. It is a basic requirement of the rules; of natural justice that an employee be given a reasonable opportunity of being heard in any proceedings which may culminate in punishment being imposed on the employee. 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 onlythatjustice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that a government sen/ant is treated fairly in proceedings which may culminate in imposition of punishment including dismissal/removal from service. ” Further in the matter of Mom Shankar v Umon of India reported in 2008 (3) C 484 it has been held by the Apex Court as under “19. We have been taken through the evidence of Shri S.B.Singh by Dr. Padia. Significantly the examination- in-chief was Conducted by the enquiry officer himself. As the proceeding was for imposition of a major penalty, why the presenting officer who must have been engaged by the Department did not examine the Witness Is beyond any comprehensron Even In the min/mum safeguard In regard to the manner In which exam/natlon-In chief was conducted has not be preserved. The quest/ans posed to him were