Rishi Sharma vs State Of Chhattisgarh

This petition is filed under article 226 of the Constitution of India by the petitioner against the orders dated 12.09.2011 (Annexure P/1), 20.12.2011 (Annexure P/2), 27.02.2012 (Annexure P/3) and 22.08.2012 (Annexure P/4) passed by respondent authorities. The punishment of termination from service was imposed upon the petitioner vide order dated 12.09.2011. Against this order, the petitioner filed appeal which was also dismissed by the appellate authority vide order dated 21.01.2011. Thereafter, the petitioner filed mercy appeal which was also dismissed against which the petitioner filed revision petition which too was dismissed.

Brief facts of the case are that petitioner was working as Head Constable at 4th Battalion, Chhattisgarh Arms Force. One complaint was made by Santosh Chiraman who was also working as a constable along with the petitioner. This complaint was about demand of money for providing employment to son-in-law from the complainant Santosh Chiraman. On this complaint, preliminary enquiry was conducted by Shri V.K. Driwedi, Assistant Commandant on 02.09.2010 and it was found that the petitioner, complainant Santosh Chiraman and Bhola Ram Naik are involved in the illegal demand of money. On receiving this report, respondent No.5 i.e Commandant issued the charge-sheet against the petitioner but no charge-sheet was issued against Santosh Chiraman and Bhola Ram Naik. Thereafter, on receiving the charge-sheet, petitioner categorically denied all the charges levelled against him. The disciplinary authority appointed Shri V. P. Sharma, Deputy Commandant 4th Battalion, Chhattisgarh Arms Force Mana as an Enquiry Officer on 17.12.2010. The Enquiry Officer without following the procedure of conducting departmental enquiry and without giving proper opportunity of hearing as well as without considering the submission and defence raised by the petitioner during the course of enquiry submitted his finding. i.e. enquiry report of the Commandant on 16.05.2011 wherein the charge No.1 was found partly proved and charge No.2 was found to be proved. On receiving the said enquiry report, disciplinary authority had supplied copy of enquiry report and directed the petitioner to submit his explanation on the findings of the Enquiry Officer on 15.07.2011. The petitioner submitted detailed explanation but the disciplinary authority without considering the submission and explanation of the petitioner imposed the penalty of removal from the service vide order dated 12.09.2011. The petitioner preferred an appeal before the appellate authority/ respondent No.4 but vide order dated 20.12.2011, it was dismissed. Then the petitioner preferred a mercy appeal/second appeal before respondent No.3 and vide order dated 27.02.2012, the same was again rejected by the respondent authority. Against the order dated 27.02.2012, petitioner preferred revision before respondent No.2 and the respondent No.2 in a very casual manner, rejected the review of the petitioner by non-speaking order dated 22.08.2012. Hence this petition filed by the petitioner for following reliefs:-

10.1 This Hon'ble Court be pleased to set aside the order dated 12.09.2011 (Annexure P/1) issued by the respondent No.5, order dated 20.12.2011 (Annexure P/2) passed by the respondent No.4 i.e. Inspector General of Police, Chhattisgarh Arms Force-1, Police Head Quarter- Raipur, District Raipur (C.G.) order dated 27.02.2012 (Annexure P/3) passed by respondent No.3 i.e. Additional Director General of Police, Chhattisgarh Arms Force, Police Head Quarter Raipur, District- Raipur (C.G.) and order dated 22.08.2012 (Annexure P/4) passed by respondent No.2 i.e. Director General of Police, Chhattisgarh Arms Force, Raipur, District- Raipur (C.G.)

10.2 Hon'ble Court be pleased to direct the respondent authority to reinstate the petitioner in service with all consequential benefits and backwages.

10.3 Any other relief(s) may also be given to the petitioner, which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.

Learned counsel for the petitioner submits that the entire departmental enquiry is suffering from infirmities as the disciplinary authority did not appoint any presenting officer to prosecute the case of the department whereas in the instant case the enquiry officer himself acted as an investigator, prosecutor/presenting officer and prosecuted the case on behalf of the management/department which is in complete violation of the principle of natural justice. It is settled law that the enquiry officer should not act as presenting officer as well as enquiry officer. The respondent authorities in most arbitrary and discriminatory manner as well as biased and prejudicial manner, issued charge-sheet only to the petitioner whereas in the preliminary enquiry as held by the respondent authority, complainant namely Santosh Chiraman and Bhoj Ram Naik were also found to be involved in the illegal and doubtful transaction of the demand of money but charge-sheet was not issued against them. The disciplinary authority did not give opportunity of hearing to the petitioner. In enquiry report, the charge No.1 is partly proved but disciplinary authority in most arbitrary and pre-determined manner without any material held that charge no.1 is found to be fully proved.

3.1 For the same incident, the respondent No.5 had also made a complaint to Police Station- Mana for registering a criminal case against the petitioner but the investigating officer had submitted report after investigation that there is no prima facie offence made out against the petitioner and offence cannot be registered against him, as such there was no occasion to issue charge-sheet against the petitioner by respondent No.5. In departmental enquiry, son-in-law of the complainant was the main witness of the instant case but the enquiry officer without any material on record has given finding against the petitioner. The charges which were leveled against the petitioner do not come under the ambit of Clause 64 of Police Regularization. He further submits that the punishment awarded by the authority to terminate the petitioner from service is shockingly disproportionate and unreasonable and unduly harsh and as such the punishment is liable to be modified. The whole departmental enquiry stands vitiated on the ground of violation of principle of natural justice. Reliance has been placed on this Court's order dated 23.08.2019 in the matter of Keshav Singh Yadav Vs. State of Chhattisgah and others passed in WP(S) No. 298/2011 & Vinod Kumar Kori Vs. State of Chhattisgarh passed in 2016 CJ (Chh) 317 on 12.01.2016.

Learned counsel for the respondents/State submits that respondent authorities adopted a procedure which is fair, just and consistent with the applicable rules for considering the departmental enquiry and penalty was imposed upon the petitioner according to service rules. The appellate authority and the revisional authority have also confirmed the order passed by the disciplinary authority, therefore, concurrent finding recorded by three authorities holding the petitioner guilty of misconduct and awarding penalty of termination warrant no interference by this Court in exercise of jurisdiction under Article 226 of the Constitution of India and writ petition deserves to be dismissed.

Heard counsel for the parties and perused the material available on record.

Main objection of the petitioner is that the enquiry officer himself has also acted as a presenting officer and himself conducted the enquiry without there being any presenting officer on behalf of the department. It is clear from all documents that the presenting officer was not appointed during the course of departmental enquiry.

In the matter of State of Uttranchal and others v. Kharak Singh in (2008) 8 SCC 236, the Hon’ble Apex Court held that act of the enquiry officer is opposed to principles of natural justice where he acted as investigator, prosecutor and judge, by observing as under:-

"17. On the other hand, one Mr. P.C. Lohani, Dy. Divisional Forest Officer, Nandhaur acting as an inquiry officer after putting certain questions and securing answers submitted a report on 16/11/1985. No witnesses were examined. Apparently, there was not even a presenting officer. A perusal of the report shows that the inquiry officer himself inspected the areas in the forest and after taking note of certain alleged deficiencies secured some answers from the delinquent by putting some questions. It is clear that the inquiry officer himself has acted as the investigator, prosecutor and judge. Such a procedure is opposed to principles of natural justice and has been frowned upon by this Court."

In the matter of Bhagat Ram v. State of Himachal Pradesh and others reported in AIR 1983 SC 454, Their Lordships of the Supreme Court have observed as under:-

"-------In fact, justice and fair play demand that where in a disciplinary proceeding the department is represented by a Presenting officer, it would be incumbent upon the Disciplinary authority while making appointment of a Presenting Officer to appear on his behalf simultaneously to inform the delinquent of the fact of appointment and the right of the delinquent to take help of another Government servant before the commencement of inquiry. At any rate the Inquiry Officer at least must enquire from the delinquent officer whether he would like to engage anyone from the department to defend him and when the delinquent is a Government servant belonging to the lower echelons of service, he would further be informed that he is entitled under the relevant rules to seek assistance of another Government servant belonging to department to represent him. If after this information is conveyed to the delinquent Government servant, he still chooses to proceed with the Inquiry without obtaining assistance, one can say there is substantial compliance with the rules. But in the absence of such information being conveyed, if the Inquiry 4 AIR 1983 SC 454 proceeds, as it has happened in this case, certainly a very vital question would arise whether the appellant delinquent Government servant was afforded a reasonable opportunity to defend himself and if the answer is in the negative, the next question is whether the Inquiry is vitiated?

Further, Their Lordships of the Supreme Court have observed as under:-

"The principle deducible from the provision contained in Sub-rule (5) of Rule 15 upon its true construction that where department is represented by a Presenting Officer, it would be the duty of the delinquent Officer, more particularly where he is a class IV Government servant whose educational equipment is such as would lead to an inference that he may not be aware of technical rules prescribed for holding inquiry, that he is entitled to be defended by another government servant of his choice. If the Government servant declined to avail of the opportunity, the inquiry would proceed. But if the delinquent officer is not informed of his right and an overall view of the inquiry shows that the delinquent Government servant was at a comparative disadvantage compared to the disciplinary authority represented by the Presenting Officer and as in the present case, a superior officer, co-delinquent is also represented by an officer of his choice to defend him, the absence of anyone to assist such a Government servant belonging to the lower echelons of service would unless it is shown that he had not suffered any prejudice, vitiate the Inquiry."

The Hon'ble Supreme Court again in the case of State of Uttar Pradesh and others vs. Saroj Kumar Sinha reported in (2010) 2 SCC 772, in paragraphs- 27 to 30 has held as under:

“27.......But nonetheless in order to establish the charges the Department is required to produce the necessary evidence before the inquiry officer. This is so as to avoid the charge that the inquiry officer has acted as a prosecutor as well as a judge.

An enquiry officer 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/Government. 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 observed. 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.

Apart from the above by virtue of Article 311 (2) of the Constitution of India the departmental inquiry had to be conducted in accordance with rules of natural justice. It is a basic requirement of rules of natural justice that an employee be given a reasonable opportunity of being heard in any proceeding which may culminate in punishment being imposed on the employee.

When a department 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 enquiry officer has to be wholly unbiased. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that a government servant is treated fairly in proceedings which may culminate in imposition of punishment including dismissal/removal from service.”

This High Court also had the occasion of dealing with the similar situations. This Court in WP(S) No. 1691/2012 decided on 13.01.2016 in the case of Vinod Kumar Kori Vs. State of Chhattisgarh and in Keshav Singh Yadav Vs. State of Chhattisgarh and others in WPS No. 298/2011. Keeping in view the aforesaid judgments of the Hon’ble Apex Court, considering non-appointment of presenting officer and the enquiry being conducted entirely by Enquiry Officer himself, stuck down the disciplinary action. This Court again in WPS No. 1019/2017 decided on 01.03.2017, WP No. 1828/2003 decided on 10.01.2018 and also WPS No. 6418/2007 decided on 06.04.2018 has reiterated the aforesaid position laid down by the Supreme Court wherein the enquiry proceeding and the action taken subsequently have been stuck down on the ground of non-appointment of Presenting Officer and the Enquiry Officer acting both as Presenting Officer as well as Enquiry Officer.

Looking to the facts of this case and aforesaid legal position holding the field, the impugned order of punishment as well as the orders passed by the respondent authorities (Annexure P/1, P/2, P/3 & P/4 respectively) would not be sustainable in the law and the same deserve to be and are accordingly set aside/quashed.

Since this Court is setting aside the order of termination and the orders passed in appeal/revision on the technical ground of non-appointment of Presenting Officer, this court only directs that the petitioner would be entitlement for reinstatement forthwith, reserving the right of the respondent-management to proceed further if they so want, from the stage of non-appointment of presenting officer.

This Court in its order dated 23.08.2019 passed in the matter of Keshav Singh Yadav Vs. State of Chhattisgarh and others in WPS No. 298/2011 held in para 14 as under:-

So far as consequential benefits is concerned, since admittedly the petitioner is out of employment from 26.9.2009 till date, applying the principles of 'no work no pay' the petitioner would not be entitled for monetary benefits for the intervening period. However, for all practical purposes, the said intervening period would be treated as continuous service for the purpose of seniority and other incidental benefits which shall all be prospective.

In view of the above, as the petitioner was out of employment from service from 12.09.2011 till date, applying the principles of 'no work no pay', the petitioner would not be entitled for monetary benefits for the intervening period. However, for all practical purposes, the said intervening period will be treated as continuous service for the purpose of seniority and other incidental benefits which shall all be prospective.

The writ petition accordingly stands allowed with consequences to follow.