Regular Second Appeal No. 2431 of 1985 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 2431 of 1985 Date of decision: 08.02.2010 State of Haryana ...appellant Versus Mihan Singh ...respondent CORAM: HON'BLE MR. JUSTICE RANJIT SINGH Present: Mr. Deepak Jindal, DAG, Haryana, for the appellant. RANJIT SINGH J. The might of the State is pitted against a Constable. The result in such cases would be obviously in favour of the mighty State. Courts are the Forum where just view prevail irrespective of the power or status of the litigant. The respondent-plaintiff was made to appear before the Deputy Superintendent of Police, Shri Ram Singh, for the purpose of departmental inquiry being conducted by the said DSP. One Kirshan Lal, PW appeared before the Inquiry Officer. He (the inquiry officer) told the witness that he should go through the statement made by him in preliminary inquiry and then depose on the lines of his earlier statement accordingly. The delinquent-respondent objected to this mode and manner of recording of the statement of the witness. The Inquiry Officer, who was of DSP rank, apparently felt offended and did not like this. The inquiry officer did not appreciate that the constable was only praying for a right to defend and was expecting Regular Second Appeal No. 2431 of 1985 2 him to conduct inquiry without taking side. It appears that the respondent thereafter desired to make an application before the SSP and ultimately left the inquiry proceedings, when the inquiry officer did not pay any heed to his pleas. It is alleged that the delinquent constable did not join inspite of persuasion by the Inquiry Officer. Superintendent of Police considered this act of respondent-plaintiff as an act of disassociation from the inquiry, insubordination and indiscipline. He appointed another Inquiry Officer to inquire into this act of misconduct, who after holding enquiry submitted his report on 04.06.1980. Thereafter, a show cause notice was issued to the respondent-plaintiff. The Constable submitted his reply in response. S.P. Karanal, was not satisfied with the reply and on 6.8.1980 punished the respondent-plaintiff with stoppage of two increments with future effect. The appeals before the DIG and IG were rejected on 9.3.1981 and 21.1.1983. Thereafter, the respondent-plaintiff filed the present suit on 5.10.1983. He prayed for a decree of declaration to the effect that order dated 06.08.1980 and subsequent orders were arbitrary and against provisions of Punjab Police Rules. The suit was contested on behalf of the State. The preliminary objection in regard to the limitation and maintainability of the suit was raised. The plea that suit being bad for non-joinder for not joining the inquiry officer and Superintendent of Police was also raised. On merit, the assertion made in the plaint was denied. It was pleaded that the impugned order was passed in accordance with law, after following the procedure prescribed in the rules. The plea raised in the plaint was supported by the respondent-plaintiff, who appeared as witness and produced various Regular Second Appeal No. 2431 of 1985 3 documents on record. Defendant examined Shri R.K. Sharma, Inquiry Officer and placed on record the copy of the order dated 2.5.1980, whereby the request of respondent-plaintiff to summon Shri R.C. Sharma, Superintendent of Police was declined and so also the copy of the show cause notice. The trial Court had dismissed the suit filed by the plaintiff. However, issues No. 2, 3 and 4 as framed by the Court, regarding the suit being time barred, being bad for non joinder of the necessary party and not being properly valued were dismissed as not pressed. The only issue thus remained in contest was to see whether order dated 6.8.1980 was illegal or against the natural justice, arbitrary, without evidence, void and liable to be set aside. The allegation for which the respondent-plaintiff was proceeded against has been noted above. The act of insubordination on his part was gravamen of the allegation. The prayer that the Inquiry Officer declined to summon S.P. was declined on the ground that it was not relevant to the charges. One Ram Sarup, who was examined as DW2 who gave a clear evidence to the fact that Krishan Lal was asked to go through his submission in preliminary inquiry and then make a statement. It is thereafter that respondent-plaintiff had raised an objection. The evidence would also show that the DSP, Inquiry Officer got enraged and used harsh words against the respondent-plaintiff. The witness has also deposed that respondent thereafter made a request to the DSP for moving an application to the SSP and for postponement of the proceedings, till the decision on his application was taken. As per the witness, the Inquiry Officer refused to entertain this application Regular Second Appeal No. 2431 of 1985 4 and declined the request with anger. The respondent thereafter left the venue in order to appear before the SP to present the application. Despite thorough cross-examination, this evidence of the witness could not be dented in any manner. The appellate Court in the light of this evidence has rightly appreciated that the Constable being a disciplined soldier was required to behave in a proper manner being a subordinate but this requirement could not be pressed to illogical length, to say his right to defend himself before the Inquiry Officer could be curtailed on the ground that the delinquent officer was required to behave in a particular manner being a subordinate. The conduct of the Inquiry Officer in telling the witness to go through his previous statement and then make a statement on identical line certainly was something, which would show his bias as well as the fact that the procedure adopted, if allowed, may have prejudiced the case of the respondent. The objection raised by the respondent in this background could not be said to be unreasonable. His action was only to get a fair opportunity to defend himself. The evidence on record would also show that he did not behave in any insubordinate and intemperate manner. Right to defend himself is not only a statutory right but can be construed to be a part of Fundamental right guaranteed under the Constitution. Any violation of fair right to defend and the fair opportunity may lead to violation of Article 21, which provides that no person shall be deprived of his life or personal liberty except according to procedure established by law. Personal liberty now has been held to include all variety of rights which go to Regular Second Appeal No. 2431 of 1985 5 make up a man's personal liberty other than those which are already included in the several clauses of Article 19. The expression has been held to be of the widest amplitude and thus would include the right of an employee in a disciplinary proceedings. There can be very serious charges and adverse verdict may completely destroy the future of delinquent employee. The adverse verdict general stigmatize an employee making his future bleak. His reputation and livelihood is put at stake. The nature of Enquiry was also considered by the Hon'ble Supreme Court in The Board of Trustees of the Port of Bombay versus Dilipkumar Raghavendranath Nadkarni and others AIR 1983 Supreme Court 109, to observe as under: “Domestic enquiry is claimed to be a managerial function. A man of the establishment don-, the robe of a Judge. It is held in the establishment office or a part of it. Can it even be compared to the adjudication by an impartial arbitrator or a Court Presided over by an unbiased judge? The enquiry Officer combines the judge and prosecutor rolled into one. Witnesses are generally employees of the employer who directs an enquiry into misconduct. This is sufficient to raise serious apprehensions. Add to this uneven scales, the weight of legally trained minds on behalf of employer simultaneously denying that opportunity to delinquent employee. The weighted scales and titled, balance can only be partly restored if the delinquent is given the same legal assistance as the employer enjoys. Justice must not only be done but must seem to be done is not an euphemism for Courts alone, it Regular Second Appeal No. 2431 of 1985 6 applies with equal vigour and rigour to all those who must be responsible for fair play in action. And a quasi-judicial tribunal cannot view the matter with equanimity on inequality of representation.” Thus at stake was the service of the respondent. He could have been put to serious consequences and could have led to his removal from service. The respondent had a right to a proper opportunity to defend himself. The manner the case was treated would bring out that fair opportunity was denied to him. What he had asked for was only to defend himself which led to another proceeding against him. The SP instead of seeing reason got unnecessarily swayed by the fact that respondent was Constable and had violated the norms of discipline. The SP could be expected to realize that the issue was not of insubordination or indiscipline but a right of an individual to defend himself before Inquiry Officer. Merely leaving the venue on the ground that he was being denied opportunity to defend himself would certainly not be an act of insubordination as has been made out. The SP being Head of the District police was required to remove this grievance of an employee, who was facing an inquiry rather than putting him to further disadvantage and serving him with another charge, which ultimately led to punishment. In this background, the finding returned by the First Appellate Court that the delinquent had not committed any act of insubordination and indiscipline as given in Rule 16.25 would appear just and reasonable. It is well established principle that a person can be punished for a misconduct, which is well defined with precision, so Regular Second Appeal No. 2431 of 1985 7 that a person is given a sufficient information as to what is to defend. Any innocent act can be termed as misconduct if not defined with precision and can subsequently be given expost facto interpretation and construed as a misconduct. That appears to have happened here. Considering the fact and totality of the circumstances, it can be said that an action of respondent-plaintiff was only to defend himself properly and it could not be termed as an act of indiscipline or insubordination. Punishing such an employee, who was only seeking opportunity to defend himself before the Inquiry Officer would be unfair, unequitable and unreasonable. The view taken by the First Appellate Court is just, fair and reasonable and would not call for interference. The State has also not framed any substantial question of law, which would arise for consideration in this Regular Second Appeal. Rather substantial question even if any framed would lead to only one consequence i.e. that the question of law has been rightly determined. There is no merit in the appeal and the same is accordingly dismissed. February 08, 2010 ( RANJIT SINGH ) rts JUDGE