Case: Mohd.Yunus Khan Vs. State Of U.P

3. Facts and circumstances giving rise to this case are that the appellant was appointed as a Constable in the Provincial Armed Constabulary (hereinafter referred to as `PAC) on 10th February, 1969 and promoted to the post of Head Constable vide order dated 5th May, 1983. The appellant was posted with 30th Battalion PAC in G- Company in the year 2002. On 29th September, 2002, the appellant was on duty as Guard Commander along with another Head Constable named Rama Nand. At around 6.20 A.M., the appellant left his post and came back after 25 minutes after having tea and medicine in the canteen. His departure from his post was duly recorded in the register maintained for the purpose by the other guard, Head Constable Rama Nand. The Dal Nayak endorsed his comments in respect of the appellants absence for the period of 25 minutes and placed it before the Commandant on 3rd October, 2002. The Commandant vide order dated 4th October, 2002 imposed the punishment of 10 days punishment drill. Upon protest by the appellant, the Commandant enhanced the punishment to 10 days confinement in a cell. The appellant refused to serve the punishment being not acceptable to him.4. Refusal to serve the punishment so imposed by the appellant was considered to be a serious act of indiscipline and he was placed under suspension. The appellant was served with a chargesheet dated 2nd December, 2002 indicating that an enquiry was to be held against him under Rule 14(1) of the Uttar Pradesh Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991 (hereinafter referred to as `the Rules 1991). The appellant submitted his reply to the said chargesheet on 11th December, 2002. The inquiry officer concluded the enquiry and submitted the report on 28th March, 2003 with the finding that the appellant was guilty of negligence and disobedience and recommended his removal from service.5. The Disciplinary Authority issued a notice dated 31st March, 2003 to the appellant to show cause as to why his services should not be terminated in view of the enquiry report. The appellant submitted his reply to the said show cause on 7th April, 2003. After considering the same, the Commandant passed the order dated 8th April, 2003 imposing the punishment of termination from service.6. Being aggrieved, the appellant preferred an appeal against the order of termination. However, the said appeal was dismissed by the Appellate Authority vide order dated 25th August, 2003. The appellant challenged the said order of termination before the Tribunal by filing Claim Petition No. 837 of 2003. The Tribunal dismissed the said Claim Petition vide judgment and order dated 25th May, 2007 recording the finding that the absence from duty for 25 minutes on 29th September, 2002 was bona fide and permissible under Rule 21 of the Guard and Escort Rules, however, not obeying the order of punishment was a case of gross indiscipline and thus, order of termination of his services was justified.7. Being aggrieved of the said judgment and order of the Tribunal, the appellant preferred a Writ Petition before the High Court which was dismissed vide impugned judgment and order dated 12th July, 2007 in a cursory manner without considering the issues raised by the appellant, merely on the ground that charge of disobedience of the orders of the higher authority stood proved and the enquiry had been conducted in accordance with law. Hence, this appeal.

Reasoning:
15. We have to proceed, keeping in mind the trite law that holding disciplinary proceedings against a government employee and imposing a punishment on his being found guilty of misconduct under the statutory rules is in the nature ofproceedings. Though, the technical rules of procedure contained in the Code of Civil Procedure, 1908 and the provisions of the Indian Evidence Act, 1872 do not apply in a domestic enquiry, however, the principles of natural justice require to be observed strictly. Therefore, the enquiry is to be conducted fairly and reasonably and the enquiry report must contain reasons for reaching the conclusion that the charge framed against the delinquent stood proved against him. It cannot be an ipse dixit of the inquiry officer. Punishment for misconduct can be imposed in consonance with the statutory rules and principles of natural justice. (See Bachhittar Singh v. State of Punjab & Anr., AIR 1963 SC 395 ; Union of India v. H.C. Goel, AIR 1964 SC 364 ; Anil Kumar v. Presiding Officer & Ors., AIR 1985 SC 1121 ; Moni Shankar v. Union of India & Anr. (2008) 3 SCC 484 ; and Union of India & Ors. v. Prakash Kumar Tandon, (2009) 2 SCC 541 ).16. The Tribunal has categorically held that absence of the appellant from duty for such a short span of time was permissible in view of the statutory rules and was bona fide. That finding was not challenged by the respondents any further and attained finality. This finding of the Tribunal leads us to the questions that in case the first punishment of 10 days punishment drill was unwarranted and illegal; whether any protest against such punishment, authorised the Commandant to enhance the punishment to 10 days confinement in a cell; and whether further disobedience thereof, ought to have enabled the Commandant to initiate the disciplinary proceedings against the appellant. These questions have to be considered keeping in mind that the appellant was a member of disciplined force and the Appellate Authority as well as the Tribunal had very heavily relied on the past conduct of the appellant for considering the proportionality of the punishment, though it had not been a part of thenor was the appellant informed of the same while issuing the second show cause notice, giving him the opportunity to make his representation against the enquiry report.Thus, the requirements of morale, discipline and justice have to be reconciled. There is no scarcity of examples in history, and we see it inlife also, that even in disciplined forces, forced morale and discipline without assured justice breeds defiance and belligerency. Our Constitution protects not only the life and liberty but also the dignity of every person. Life convicts and hardcore criminals deprived of personal liberty are also not wholly denuded of their Constitutional rights. Arbitrariness is an anathema to the principles of reasonableness and fairness enshrined in our constitutional provisions. The rule of law prohibits the exercise of power in an arbitrary manner and/or in a manner that travels beyond the boundaries of reasonableness. Thus, a statutory authority is not permitted to act whimsically/arbitrarily. Its actions should be guided by the principles of reasonableness and fairness. The authority cannot be permitted to abuse the law or to use it unfairly.Thus, the legal position emerges that if a person appears as a witness in disciplinary proceedings, he cannot be an inquiry officer nor can he pass the order of punishment as a disciplinary authority. This rule has been held to be sacred. An apprehension of bias operates as a disqualification for a person to act as adjudicator. No person can be a Judge in his own cause and no witness can certify that his own testimony is true. Any one who has personal interest in the disciplinary proceedings must keep himself away from such proceedings. The violation of the principles of natural justice renders the order null and void.29. In the instant case, Shri Arvind Kumar Upadhyaya, IPS, Commandant, 30th PAC Battalion, Gonda, appeared as a witness and proved the disobedience of his orders of imposition of punishment, first as of punishment drill and subsequently of confinement to a cell. However, after appearing as a witness in the enquiry, he also passed the order of punishment, i.e., dismissal of the appellant from service on 8.4.2003. This issue has been agitated by the appellant throughout but none of the authorities or the courts below had taken it into consideration. Appellant has made crystal clear pleadings before this Court also in this regard and the same have not been denied in the counter affidavit by the respondents, rather a very vague and evasive reply has been filed stating that the disciplinary proceedings had been concluded strictly in accordance with law.30. An order in violation of the principles of natural justice may be void depending on the facts and circumstances of the case. (Vide Raja Jagdambika Pratap Narain Singh v. Central Board of Direct Taxes & Ors., AIR 1975 SC 1816 ; Smt. Maneka Gandhi v. Union of India & Anr., AIR 1978 SC 597 ; Krishan Lal v. State of J & K, (1994) 4 SCC 422 ; State Bank of Patiala & Ors. v. S.K. Sharma, AIR 1996 SC 1669 ; Union of India & Anr. v. M/s. Mustafa & Najibai Trading Co. & Ors., AIR 1998 SC 2526 ; and Vishnu Dutt & Ors. v. State of Rajasthan & Ors., (2005) 13 SCC 592 ).31. In case the very first order of imposition of punishment for remaining absent from duty for 25 minutes was bad in law, the appellants protest against the said punishment could not be said to be unjustified. In Nawabkhan v. State of Gujarat, AIR 1974 SC 1471 , this Court dealt with the issue and held asthe present case, a fundamental right of the petitioner has been encroached upon by the police commissioner without due hearing so the Court quashed itnot killed it then but performed the formal obsequies of the order which had died at birth. The legal result is that the accused was never guilty of flouting an order which never legallyadded)32. We are of the considered opinion that the initiation of disciplinary proceedings against the appellant and the conclusion thereof by the imposition of the punishment by the Commandant, who had himself been a witness, was in flagrant violation of the principles of natural justice and thus, stood vitiated. "Principles of natural justice are to some minds burdensome but thishas to be paid if we desire a society governed by the rule of law." All other consequential orders passed in appeal etc. remained inconsequential. More so, a protest/disobedience against an illegal order may not be termed as misconduct in every case. In an appropriate case, it may be termed as revolting to ones sense of justice. In view of the above, we are of the considered opinion that the protest raised by the appellant against the punishment imposed for his absence could not give rise to a cause of action for initiating the disciplinary proceedings.33. The courts below and the statutory authorities failed to appreciate that if the disciplinary authority wants to consider the past conduct of the employee in imposing a punishment, the delinquent is entitled to notice thereof and generally theshould contain such an article or at least he should be informed of the same at the stage of the show cause notice, before imposing the punishment.The appellant joined the service on 10.2.1969 and his services stood terminated vide order dated 8.4.2003. Therefore, the benefit of service rendered by the appellant for more than 34 years stood forfeited. At the time of his removal from service, the appellant was 54 years of age. Thus, he had been visited with serious punishment on the verge of retirement.