AMOLAK SINGH TUTEJA vs MUNNI BAI SHARMA

By this writ petition the petitioner has challenged the dismissal order dated 9/7/1999 as also the appellate order dated 7/8/2008 by which the earlier order dated 24/7/1999 modifying the punishment of dismissal to the compulsory retirement has been maintained.

Brief facts are that the petitioner during the relevant time was working as Constable and the departmental enquiry was initiated against him by serving the joint charge sheet along with head constable Baba Saheb and constable Kanhaiya on 6/2/1999. The charge against the petitioner is that on account of his dereliction of duty, two prisoners had escapped while taking them from jail to the court. The petitioner had submitted the reply and the enquiry officer was appointed who had

recorded the statements of witnesses and after recording the statement of the petitioner, the enquiry report was submitted on 10/6/1999 finding the charges to be proved. The petitioner was supplied a copy of the enquiry report along with show cause notice dated 21/6/1999 which was replied by the petitioner and thereafter the order dated 9/7/1999 was passed dismissing the petitioner from services. The petitioner had preferred an appeal and by the order dated 26/7/1999 the appellate authority had modified the punishment of dismissal to compulsory retirement from service. The petitioner had filed an application before the respondent No.2 for reconsideration of the order and it was dismissed on 6/11/1999. Aggrieved with the aforesaid orders, the petitioner had filed OA No.1402/2000 before the State Administrative Tribunal which stood transferred to this court and registered as WP No.7266/2003. The writ petition was dismissed by the learned Single Judge by order dated 3/1/2005, but the division bench vide order dated 27th September, 2007 had set aside the order of the learned Single Judge as also the appellate order dated 26/7/1997 and directed the appellate authority to re-decide the matter by taking into consideration the order passed in the case of Shamsher Bahadur Vs. State of M.P. and others vide order dated 4.12.2004 passed in W.P. No.4957/2003. The petitioner had filed written synopsis on 12/10/2007 and had also submitted the application dated 4/7/2008 before the appellate authority and by the impugned order dated 7/8/2008 the appellate authority has dismissed the appeal and maintained the punishment of compulsory retirement imposed by the earlier order.

Learned counsel for petitioner submits that the joint enquiry against the three persons namely petitioner, Baba

Saheb and Kanhaiya has wrongly been conducted without obtaining any order of the competent authority in terms of Rule 18 of the CCA Rules. He further submits that no presenting officer was appointed and the enquiry officer acted as a judge and the prosecutor and that the petitioner has not been permitted to cross examine the witnesses.

Learned counsel for the respondents has supported the impugned orders.

So far as the first ground of challenge about the joint enquiry being conducted without the permission of the competent authority is concerned, learned counsel for the petitioner has placed reliance upon Rule 18 of the M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 and has submitted that the order of the Governor or any other authority competent to impose the penalty of dismissal from service is necessary for common proceedings but such a submission has no force because the petitioner is an employee of the Police Department and regulated by the Police Regulations. The Division Bench of this Court in the matter of Arun Prakash Yadav Vs. State of M.P. reported in 2013(3) MPLJ 508 has held that the CCA Rules are not applicable to such employees and the Single Bench of this Court at Principal Seat in the matter of B.L. Dhuvkariya Vs. State of M.P. and others vide order dated 27.2.2017 passed in W.P. No.751/2016 in the case of an Inspector has relied upon the said Division Bench judgment and has rejected the similar plea.

Having regard to the aforesaid, the plea relating to the necessity of an order for the joint enquiry based upon Rule 18 of the CCA Rules cannot be accepted because very applicability of the said rule has not been established by the

petitioner. Even otherwise the record reflects that in the earlier round of litigation the Writ Petition No.7266/2003 was dismissed by order dated 3.1.2005 and in Writ Appeal being W.A. No.315/2006 the petitioner had confined his grievance only in respect of quantum of punishment and the said writ appeal was disposed off by the Division Bench by order dated 27.9.2007 by setting aside the order of the appellate authority with direction to re-decide the appeal after considering the decision in the matter of Shamsher Bahadur (supra) wherein the punishment was reduced in appeal.

The petitioner has also raised a grievance that no presenting officer was appointed and enquiry officer has acted as judge and prosecutor. The Division Bench of this Court in the matter of Union of India through its Secretary, Ministry of Railway, New Delhi and others Vs. Mohd. Naseem Siddiqui reported in 2005(1) LLJ 931 on this issue has summarised the position as under:-

"16. We may summarise the principles thus:

(i) The Inquiry Officer, who is in the position of a Judge shall not act as a Presenting Officer, who is in the position of a prosecutor.

(ii) It is not necessary for the Disciplinary Authority to appoint a Presenting Officer in each and every inquiry. Nonappointment of a Presenting Officer, by itself will not vitiate the inquiry.

(iii) The Inquiry Officer, with a view to arrive at the truth or to obtain clarifications, can put questions to the prosecution witnesses as also the defence witnesses. In the absence of a Presenting Officer, if the Inquiry Officer puts any questions to the prosecution witnesses to elicit the facts, he should thereafter permit the delinquent employee to cross-examine such witnesses on those clarifications.

(iv) If the Inquiry Officer conducts a regular examination-inchief by leading the prosecution witnesses through the prosecution case, or puts leading questions to the departmental witnesses pregnant with answers, or cross-

examines the defence witnesses or puts suggestive questions to establish the prosecution case employee, the Inquiry Officer acts as prosecutor thereby vitiating the inquiry.

(v) As absence of a Presenting Officer by itself will not vitiate the inquiry and it is recognised that the Inquiry Officer can put questions to any or all witnesses to elicit the truth, the question whether an Inquiry Officer acted as a Presenting Officer, will have to be decided with reference to the manner in which the evidence is let in and recorded in the inquiry.

Whether an Inquiry Officer has merely acted only as an Inquiry Officer or has also acted as a Presenting Officer depends on the facts of each case. To avoid any allegations of bias and running the risk of inquiry being declared as illegal and vitiated, the present trend appears to be to invariably appoint Presenting Officers, except in simple cases. Be that as it may."

Hence, the facts of the case are required to be examined to ascertain if the enquiry officer has acted as presenting officer. On the perusal of the original record of the Departmental Enquiry it is noticed that the enquiry officer has not put any leading question to the prosecution witnesses. The prosecution witnesses have recorded their own statement without any question being put by the enquiry officer. The enquiry officer has asked questions to the delinquent employee but those questions are only clarificatory and explanatory in nature and they are not in the form of the cross-examination. These questions were relating to the clarification sought from the delinquent employee in respect of the statement made by the prosecution witnesses, hence in the present case the enquiry officer has not acted as the Presenting Officer, therefore, no benefit can be granted to the petitioner on the basis of the Single Bench judgment of this Court in the matter of K.C. Bhargava Vs. State of M.P. and another reported in

2012(4) MPLJ 244 and in the matter of Ram Prakash Gaya Prashad Vs. State of M.P. and others reported in 2008(4) MPLJ 35.

Counsel for the petitioner has also raised a grievance that the petitioner was not allowed to cross-examine the prosecution witnesses, but such a grievance is not correct because the original record of the Departmental Enquiry reveals that after recording the statement-in-chief of each of the prosecution witnesses, the petitioner was given an opportunity to cross-examine the witnesses but he had not asked any question in cross-examination.

Having regard to the aforesaid, I am of the opinion that the Departmental Enquiry has been conducted by following the due procedure and there is no infirmity in conducting the enquiry or passing the impugned order of punishment or the appellate order, hence no interference is required in the matter.

The writ petition is accordingly dismissed.