UNION OF INDIA & ORS. versus RAM LAKHAN SHARMA on 2 July 2018

48

SUPREME COURT REPORTS[2018] 5 S.C.R. 48

[2018] 5 S.C.R.

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UNION OF INDIA & ORS.

v.

RAM LAKHAN SHARMA

(Civil Appeal No. 2608 of 2012)

BJULY 02, 2018

[ADARSH KUMAR GOEL AND ASHOK BHUSHAN, JJ.]

Central Revenue Police Force Rules, 1955 – r.27 – Procedurefor conducting a departmental enquiry – Non-appointment ofPresenting Officer in the departmental inquiry – Effect of – OnCfacts, the High Court set aside the dismissal/removal orders ofrespondents on the ground of non-appointment of Presenting Officerin the departmental inquiry resulting in violation of principle ofnatural justice; and that the Enquiry officer acted himself asprosecutor and Judge in the said disciplinary enquiry – On appeal,Dheld: Rule 27 does not indicate that there is any statutory requirementof appointment of Presenting Officer in the disciplinary inquiry –When statutory provision does not require appointment of PresentingOfficer whether there can be any circumstances where principlesof natural justice can be held violated is to be seen – Further, InquiryOfficer who has to be independent and not representative of theEdisciplinary authority if starts acting in any other capacity andproceed to act in a manner as if he is interested in eliciting evidenceto punish an employee, principle of bias comes into place – Onfacts, the High Court held that Inquiry Officer acted himself asprosecutor by leading the examination in chief of the prosecutionFwitness by putting questions, and Judge in the disciplinary enquiry– Having acted as prosecutor also, capacity of independentadjudicator was lost which adversely affected his independent roleof adjudicator – Thus, the principle of bias was attracted and HighCourt was right in setting aside the dismissal orders – Central ReservePolice Force Act, 1949 – s.11(1) – Service Law.G

Dismissing the appeals, the Court

HELD: 1.1 A perusal of the Rule 27 sub rule (c) of theCentral Reserve Police Force Rules, 1955 does not indicate thatRule contemplates appointment of Presenting Officer. Service H

conditions including punishment and appeal procedure of anemployee are governed by statutory rules. The CRPF Act, 1949has been enacted by the Parliament for the constitution andregulation of an armed Central Reserve Police Force. Section 18of the Act empowers the Central Government to make rules forcarrying out the purposes of this Act. The disciplinary proceedingsare quasi-judicial proceedings and Inquiry Officer is in the positionof an independent adjudicator and is obliged to act fairly,impartially. The authority exercises quasi-judicial power has toact in good faith without bias, in a fair and impartial manner. [Paras22 and 23][58-G-H; 59-A-B]

1.2 Rule 27 does not indicate that there is any statutoryrequirement of appointment of Presenting Officer in thedisciplinary inquiry. It is thus clear that statutory provision doesnot mandate appointment of Presenting Officer. When thestatutory provision does not require appointment of PresentingOfficer whether there can be any circumstances where principlesof natural justice can be held to be violated is the broad questionwhich needs to be answered. The High Court found breach ofprinciples of natural justice in Inquiry Officer acting as theprosecutor against the respondents. The Inquiry Officer who hasto be independent and not representative of the disciplinaryauthority if starts acting in any other capacity and proceed to actin a manner as if he is interested in eliciting evidence to punishan employee, the principle of bias comes into place. [Para 27][61-D-E]

1.3 There is no requirement of appointment of PresentingOfficer in each and every case, whether statutory rules enablethe authorities to make an appointment or are silent. When thestatutory rules are silent with regard to the applicability of anyfacet of principles of natural justice the applicability of principlesof natural justice which are not specifically excluded in thestatutory scheme are not prohibited. When there is no expressexclusion of particular principle of natural justice, the saidprinciple shall be applicable in a given case to advance the causeof justice. [Para 33][66-B-C]

1.4 The question as to whether Inquiry Officer who issupposed to act independently in an inquiry has acted as AB

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Aprosecutor or not is a question of fact which has to be decided onthe facts and proceedings of particular case. In the instant case,the High Court had summoned the entire inquiry proceedingsand after perusing the proceedings the High Court came to theconclusion that Inquiry Officer acted himself as prosecutor byhimself leading the examination in chief of the prosecution witnessBby putting questions, and Judge in the said disciplinary enquiry.[Para 35][67-F-H]

1.5 The High Court having come to the conclusion thatInquiry Officer has acted as prosecutor also, the capacity ofindependent adjudicator was lost which adversely affecting hisCindependent role of adjudicator. In the circumstances, theprinciple of bias would come into play and the High Court wasright in setting aside the dismissal orders by giving liberty to theappellants to proceed with inquiry afresh. [Para 36][38-A-B]

Suresh Koshy George v. University of Kerala and othersDAIR 1969 SC 198 : 1969 SCR 317; A.K. Kraipak andothers v. Union of India and others AIR 1970 SC 150: [1970] 1 SCR 457; State of Uttar Pradesh and othersv. Saroj Kumar Sinha (2010) 2 SCC 772 : [2010] 2SCR 326; Bharath Electronics Ltd. v. K. Kasi ILR 1987EKarnataka 366; Workmen of Lambabari Tea Estate v.Lambabari Tea Estate 1966 (2) LLJ 315; Union of Indiaand ors. v. Mohd. Naseem Siddiqui ILR (2004) MP821; Punjab National Bank and others v. Kunj BehariMisra (1998) 7 SCC 84 : [1998] 1 Suppl. SCR 22 –referred to.

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Case Law Reference

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CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2608of 2012.

From the Judgment and Order dated 10.01.2011 of the High Courtof Gauhati Judicature at Agartala in WA No. 25 of 2010.

WITH

C.A. Nos. 6745/2013, 9373-9374/2013 and 1800/2014.

Mr. Vikramjeet Banerjee, ASG, R. Bala, Ms. Kiran Bhardwaj,Akshay Amritanshu, Ayush Anand, Shubhendu Anand, Sarthak Raizada,B.V, Balaram Das, Shreekant N. Terdal, B. Krishna Prasad, Advs. forthe Appellant.

Ms. Susmita Lal, M. Devananda Singh, Mr. LeishangthemRoshmani Kh, Miss Maibam Babina, Vipin Kumar, K. K. Shrivastava,Vijay Pal, Deepak Goel, Advs. for the Respondent.

The Judgment of the Court was delivered by ASHOK BHUSHAN, J. 1. These appeals have been filed bythe Union of India questioning the judgments of the Gauhati High Courtby which writ petitions filed by the respondents challenging their ordersof removal were allowed by setting aside the removal/dismissal ordersand the respondents were directed to be reinstated. The High Court hadallowed the writ petitions filed by the respondents on more or less similargrounds, hence, it shall be sufficient to notice the facts and pleadings indetail in Civil Appeal No.2608 of 2012 for deciding this batch of appeals.

Civil Appeal No. 2608 of 2012

2. The respondent- Ram Lakhan Sharma was appointed asconstable in the Central Reserve Police Force (hereinafter referred toas “CRPF”) on 10.04.1991. On 23.10.1999 while he was posted asconstable 11 Bn., CRPF at Agartala, Tripura he went out from Guardduty at 09.00 a.m. and returned back at 09.50 a.m. In the afternoon, anallegation was made by one lady Smt. Gita Paul making allegation ofrape against the respondent and First Information Report was registeredon 23.10.1999 at the Police Station under Section 376 IPC.

3. On 23.10.1999 the appellant was placed under suspension. On04.12.1999 chargesheet was issued to the respondent containing articlesof charges I and II. First charge was that the appellant remained absentwithout proper permission of competent authority with consent of his A

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AGuard Commander from his duty on 23.10.1999 from 0900 hrs. to 0930hrs. Second charge was that he while functioning as constable (Guard)has committed an act of misconduct in his capacity as a member of theforce in that he tried to do sexual intercourse with a woman with mutualconsent by giving money which amounts to indiscipline/moral turpitude.

B4. The disciplinary authority appointed one Shri S.S. Bisht, Second-in-Command, 11 Bn CRPF as Inquiry Officer. The Inquiry Officerrecorded the prosecution evidence. The Inquiry Report was submittedwhich was also supplied to the delinquent vide letter dated 07.02.2000asking the respondent to submit reply within 15 days. The Commandant,11 Bn passed an order on 19.03.2000 imposing penalty of removal fromCservice w.e.f. 19.03.2000 under Section 11(1) of the Central ReservePolice Force Act, 1949 read with Rule 27 of the Central Reserve PoliceForce Rules, 1955.

5. On the basis of First Information Report registered against therespondent a chargesheet was submitted in the Court of Sessions Judge,DTripura, Agartala. Learned Sessions Judge after completing the trial on20.09.2001 acquitted the respondent from charges levelled against him.After acquittal from criminal case the respondent filed a Writ PetitionNo.6778 of 2000 in the High Court of Allahabad challenging his order ofremoval. The High Court by order dated 20.05.2004 disposed of the writEpetition giving liberty to the respondent to file an appeal under CRPFRules, 1955 within two weeks. In pursuance of the order of the HighCourt an appeal was filed before D.I.G.R., CRPF, Patna. The AppellateAuthority rejected the appeal by its order dated 22.07.2004 against whichorder a revision was filed before the Inspector General of Police, CRPFwhich too was rejected on 02.03.2005. Challenging the order of removalFas well as orders passed in appeal and revision the respondent filed WritPetition (C) No.14 of 2006. Learned Single Judge vide judgment dated12.04.2010 allowed the writ petition by setting aside the removal orderand directed for reinstatement of the respondent. The learned SingleJudge also permitted the appellant to initiate the disciplinary inquiry afreshGfrom the stage of appointing Presenting Officer. It was further directedthat if the departmental proceeding is required to be started afresh, therespondent shall be placed under suspension and during the period ofsuspension, subsistence allowance should be paid. It was left to the wisdomof the authority to decide on arrear pay and allowances of the respondent.

6. Union of India filed an appeal against the judgment of the learned H

Single Judge being Writ Appeal No.25 of 2010. The Division Bench ofthe High Court by its judgment dated 10.01.2011 dismissed the writ appealaggrieved by which order Civil Appeal No.2608 of 2012 has been filedby the Union of India.

7. The facts and pleadings in other civil appeals being more orless similar they need to be only briefly noted.

Civil Appeal No.6745 of 2013

8. Union of India has filed this appeal challenging the judgment ofthe Division Bench dated 18.01.2013 by which Writ Appeal No.1 of2013 filed by the Union of India questioning the judgment of the learnedSingle Judge was dismissed. The respondent, Shri T. Lupheng whileposted at Manipur on 24.03.2008 sought permission from his senior duringhis duty hours for going to the Bank to withdraw his salary. He wasallowed to go and directed to report back to his duties. On his return hewas found under the influence of alcohol. On 07.04.2008 the personnelwas suspended. On four articles of charges inquiry was held. The InquiryOfficer recorded the evidence of prosecution. The inquiry was completedand report was submitted on 19.06.2008. The disciplinary authority videits order dated 05.07.2008 awarded the punishment of dismissal fromservice. An appeal was filed which was dismissed by DIG, CRPF on07.11.2008. The revision was also dismissed by IGP-C/S, CRPF on05.06.2009. Writ Petition No.556 of 2009 was filed in the Gauhati HighCourt which was allowed by the learned Single Judge by judgment dated04.08.2012. A writ appeal was filed by the Union of India which wasdismissed by the Division Bench on 18.01.2013 against which this appealhas been filed.

Civil Appeal Nos.9373-74 of 2013

9. These appeals have been filed by the Union of India againstthe Division Bench judgment dated 24.08.2012 by which the appeal filedby the Union of India questioning the judgment dated 08.02.2012 hasbeen dismissed. The respondent was serving as constable in F/27 BnCRPF. It was alleged that on 13.04.2000 he left lines without seekingprior permission, consumed liquor and created nuisance in the market.The chargesheet was issued to the respondent containing two articles ofcharges. The Inquiry Officer was appointed. Inquiry Officer recordedthe statement of 12 prosecution witnesses. By an order dated 30.08.2000the respondent was dismissed from services. There were two other A

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Adelinquents apart from the respondent who were proceeded with anddismissed by the common order. Learned Single Judge relying on anorder of the High Court in Writ Petition (C) No.297 of 2002 (Sri MutumShanti Kumar Singh vs. Union of India) on 08.02.2012 set aside theorder of the dismissal and directed reinstatement of the respondent. Unionof India filed Writ Appeal No.32 of 2012 challenging the order of LearnedBSingle Judge before the Gauhati High Court. The Division Bench of theHigh Court by order dated 24.08.2012 dismissed the writ appeal. Reviewpetition was filed by the Union of India which too was dismissed on18.01.2013. Consequently, these appeals have been filed by the Unionof India.

CCivil Appeal No.1800 of 2014

CCivil Appeal No.1800 of 2014

10. This appeal has been filed by the Union of India against theDivision Bench judgment of the High Court dated 29.05.2013 by whichwrit petition filed by the respondent challenging the disciplinaryproceedings for dismissal of the respondent was allowed. The respondentDwhile serving at Chothegaon, Bishnupur (Manipur) on 12.03.2007 desertedfrom line without permission of competent authority. Subsequently, anFIR was lodged on 12.03.2007. A warrant was issued to apprehend himon 29.07.2007 but he could not be apprehended. A Court of Inquiry wasconducted and the respondent was declared “DESERTER” w.e.f.E12.03.2007 vide order dated 13.07.2007. A Departmental proceedingwas initiated with articles of charges on 12.11.2007. Since, the respondenthad not reported in the Unit, the inquiry proceeded ex parte. Chargeslevelled against the respondent were found proved. An order dated20.05.2008 was passed awarding dismissal from service to therespondent. Thereafter, he submitted appeal before DIG, CRPF. A writFpetition was filed by the respondent. The writ petition was disposed ofon 29.05.2013 setting aside the dismissal order and directing forreinstatement. The appeal has been filed against the above said judgment.

11. The Gauhati High Court had allowed the writ petition filed bythe respondents on the ground that in the disciplinary inquiry the principlesGof natural justice were violated. The High Court found that no PresentingOfficer was appointed and the Inquiry Officer acted as prosecutor whichviolates the principles of natural justice and the entire inquiry was setaside on the aforesaid ground with liberty to the respondent to hold afreshinquiry from the stage of appointing of the Presenting Officer.

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12. All the appeals filed by the Union of India raises almost similarquestion of law and facts and the learned counsel for the Union of Indiahas also raised common submission in all the appeals.

13. Learned counsel for the appellant, Shri Vikramjit Banerjee,Addl. Solicitor General contends that the High Court committed error insetting aside the dismissal order on the ground of non-appointment ofPresenting Officer. It is submitted that Rule 27 of CRPF Rules, 1955which provides for holding of disciplinary inquiry does not provide forappointment of Presenting Officer. The appellants have followed therequirement of Rule 27 in holding disciplinary inquiry in consonance withprinciples of natural justice, hence, there was no occasion to set asidethe dismissal order. It is submitted that the respondents were given fullopportunity in the disciplinary inquiry including serving chargesheet, givingopportunity to cross-examine the witnesses, opportunity to lead evidenceand submit a reply to the Inquiry Report.

14. Learned counsel for the appellant submits that Rule 27 doesnot mandate the appointment of Presenting Officer to hold disciplinaryinquiry. It is further submitted that even if it is assumed that while non-appointment of Presenting Officer, principles of natural justice have beenviolated, respondents have to show what prejudice has been caused dueto non-appointment of the Presenting Officer in the department enquiry.No prejudice having been caused to any of the respondents, they werenot entitled for grant of relief as has been granted by the High Court.

15. Learned counsel appearing for the respondents refuting theabove submissions contends that the High Court has rightly set aside thedismissal/removal orders of the respondents. In the facts andcircumstances of the present case, appointment of Presenting Officerwas necessary to ensure compliance of principles of natural justice whichhaving not been done the respondents have been seriously prejudiced. Itis submitted that Inquiry Officer himself acted as prosecutor by puttingquestions to the prosecution witnesses. Inquiry Officer having becomeprosecutor with entire approach towards inquiry was tainted with biasand has rightly been interfered by the High Court. It is submitted thatInquiry Officer having acted as a prosecutor no further prejudice needsto be proved.

16. We have considered the submissions of the learned counselfor the parties and perused the records.

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56SUPREME COURT REPORTS

A17. Before we proceed to consider the rival submissions of thelearned counsel for the parties, it is relevant to look into the reasonsgiven by the High Court for allowing the writ petitions filed by therespondents.

18. In Civil Appeal No.2608 of 2012(leading appeal) judgment ofBlearned Single Judge allowing the writ petition is dated 12.04.2010 whichis filed at Annexure P-7 to the appeal. After elaborately considering thefacts of the case, the nature of charges and affidavit filed in the writpetition, learned Judge proceeded to decide the writ petition. LearnedSingle Judge had directed to make available the proceedings of thedisciplinary inquiry and on perusal of the proceedings of the disciplinaryCinquiry Learned Single Judge came to the conclusion that no PresentingOfficer was appointed in the said proceedings and the Enquiry Officerhimself led the examination in chief of the prosecution witness by puttingquestions. The High Court further came to the conclusion that EnquiryOfficer acted himself as prosecutor and Judge in the said disciplinaryDenquiry. It is useful to extract paragraphs 9 and 10 of the judgmentwhich are to the following effect:

“(9) This Court directed the learned Asstt. S.G. appearing forthe respondents to make available the proceedings of thedisciplinary enquiry against the petitioner. On perusal of theEproceeding, it is crystal clear that no Presenting Officer wasappointed in the said proceedings and the Enquiry Officerhimself led the examination in chief of the prosecution witnessby putting questions. This fact is not disputed by the learnedAsstt. S.G. appearing for the respondents, but his onlysubmission is that all opportunities were given to the writFpetitioner to put up his defence case and also the writpetitioner had pleaded guilty for both the charges levelledagainst him.

(10) It is, therefore, crystal clear that the Enquiry Officeracted himself as Prosecutor and Judge in the said disciplinaryGenquiry against the writ petitioner. From this admitted fact, itmay not be wrong to infer that there were no fair proceduresin the disciplinary proceedings as a result of which principleof natural justice was undisputedly denied to the writpetitioner.”

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19. The Division Bench of the High Court in writ appeal againstthe aforesaid judgment also affirmed the aforesaid view of the learnedSingle Judge while dismissing the writ appeal.

20. As noted above there are two principal submissions raised bythe learned counsel for the appellant, they are: (i) The disciplinary inquiryis required to be conducted under Rule 27 of 1955 Rules which does notcontemplate appointment of a Presenting Officer. Hence, the inquiryproceedings are not vitiated by the non-appointment of Presenting Officer.(ii) The disciplinary inquiry has been held against the respondents bycomplying with the principles of natural justice. No principle of naturaljustice is violated by non-appointment of Presenting Officer. No prejudicehas been caused to the respondents by non-appointment of PresentingOfficer.

21. Rule 27 sub-rule (c) of the CRPF Rules, 1955 provides for theprocedure for conducting a departmental enquiry which is as follows:

“Rule 27(c) The procedure for conducting a departmentalenquiry shall be as follows:-

(1) The substance of the accusation shall be reduced to theform of a written charge which should be as precise aspossible. The charge shall be read out to the accused and acopy of it given to him at least 48 hrs. before thecommencement of the enquiry.

(2) At the commencement of the enquiry the accused shallbe asked to enter a plea of Guilty or Not Guilty after whichevidence necessary to establish the charge shall be let in.The evidence shall be material to the charge and may eitherbe oral or documentary, if oral:

(i) it shall be direct:

(ii) it shall be recorded by the Officer conducting, theenquiry himself in the presence of the accused:

(iii) the accused shall be allowed to cross examine thewitnesses.

(3) When documents are relied upon in support of the charge,they shall be put in evidence as exhibits and the accused shall,before he is called upon to make his defence be allowed toinspect such exhibits.

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(4) The accused shall then be examined and his statementrecorded by the officer conducting the enquiry. If the accusedhas pleaded guilty and does not challenge the evidence onrecord, the proceedings shall be closed for orders. If he pleads“Not guilty”, he shall be required to file a written statementand a list of such witnesses as he may wish to cite in his defencewithin such period, which shall in any case be not less than afortnight, as the officer conducting enquiry may deemreasonable in the circumstances of the case. If he declines tofile a written statement, he shall again be examined by theofficer conducting the enquiry on the expiry of the periodallowed.

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(5) If the accused refuses to cite any witnesses or to produceany evidence in his defence, the proceedings shall be closedfor orders. If he produces any evidence the officer conductingthe enquiry shall proceed to record the evidence. If the officerconducting the enquiry considers that the evidence of anywitness or any document which the accused wants to producein his defence is not material to the issues involved in thecase he may refuse to call such witness or to allow suchdocument to be produced in evidence, but in all such caseshe must briefly record his reasons for considering the evidenceinadmissible. When all relevant evidence has been broughton record, the proceedings shall be closed for orders.

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(6) If the Commandant has himself held the enquiry, he shallrecord his findings and pass orders where he has power todo so. If the enquiry has been held by any officer other thanthe Commandant, the officer conducting the enquiry shallforward his report together with the proceedings to theCommandant who shall record his findings and pass orderwhere he has power to do so.”

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22. A perusal of the aforesaid Rule does not indicate that RuleGcontemplates appointment of Presenting Officer. Service conditionsincluding punishment and appeal procedure of an employee are governedby statutory rules. The CRPF Act, 1949 has been enacted by theParliament for the constitution and regulation of an armed Central ReservePolice Force. Section 18 of the Act empowers the Central GovernmentHto make rules for carrying out the purposes of this Act.

23. The disciplinary proceedings are quasi-judicial proceedingsand Inquiry Officer is in the position of an independent adjudicator and isobliged to act fairly, impartially. The authority exercises quasi-judicialpower has to act in good faith without bias, in a fair and impartial manner.

24. Rules of natural justice have been recognised and developedas principles of administrative law. Natural justice has many facets. Itsall facets are steps to ensure justice and fair play. This Court in SureshKoshy George vs. University of Kerala and others, AIR 1969 SC198 had occasion to consider the principles of natural justice in the contextof a case where disciplinary action was taken against a student whowas alleged to have adopted malpractice in the examination. In paragraph7 this Court held that the question whether the requirements of naturaljustice have been met by the procedure adopted in a given case mustdepend to a great extent on the facts and circumstances of the case inpoint, the constitution of Tribunal and the rules under which itfunctions. Following was held in paragraphs 7 and 8:

“7....The rules of natural justice are not embodied rules.The question whether the requirements of natural justice havebeen met by the procedure adopted in a given case must dependto a great extent on the facts and circumstances of the case inpoint, the constitution of the Tribunal and the rules underwhich it functions.

8. In Russel v. Duke of Norfolk, Tucker, L. J. observed:

“There are, in my view, no words which are of universalapplication to every kind of inquiry and every kind of domestictribunal. The requirements of natural justice must depend onthe circumstances of the case, the nature of the inquiry, therules under which the tribunal is acting, the subject matterthat is being dealt with, and so forth. Accordingly, I do notderive much assistance from the definitions of natural justicewhich have been from time to time used, but, whatever standardis adopted, one essential is that the person concerned shouldhave a reasonable opportunity of presenting his case.”

25. A Constitution Bench of this Court has elaborately consideredand explained the principles of natural justice in A.K. Kraipak and othersvs. Union of India and others, AIR 1970 SC 150. This Court held A

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Athat the aim of the rules of natural justice is to secure justice or to put itnegatively to prevent miscarriage of justice. The concept of natural justicehas undergone a great deal of change in recent years. Initially recognisedas consisting of two principles that is no one shall be a judge in his owncause and no decision shall be given against a party without affordinghim a reasonable hearing, various other facets have been recognised. InBparagraph 20 following has been held:

“20. The aim of the rules of natural justice is to secure justiceor to put it negatively to prevent miscarriage of justice. Theserules can operate only in areas not covered by any law validlymade. In other words they do not supplant the law of the landCbut supplement it. The concept of natural justice has undergonea great deal of change in recent years. In the past it wasthought that it included just two rules namely (1) no one shallbe a judge in his own case (Nemo debet esse judex propriacausa) and (2) no decision shall be given against a partyDwithout affording him a reasonable hearing (audi alterampartem).Very soon thereafter a third rule was envisaged andthat is that quasi-judicial enquiries must be held in good faith,without bias and not arbitrarily or unreasonably....”

26. In State of Uttar Pradesh and others vs. Saroj Kumar Sinha,E2010 (2) SCC 772, this Court had laid down that inquiry officer is aquasi-judicial authority, he has to act as independent adjudicator and heis not a representative of the department/disciplinary authority/Government. In paragraphs 28 and 30 following has been held:

“28. An inquiry officer acting in a quasi-judicial authority isFin the position of an independent adjudicator. He is notsupposed to be a representative of the department/disciplinaryauthority/ Government. His function is to examine the evidencepresented by the Department, even in the absence of thedelinquent official to see as to whether the unrebuttedevidence is sufficient to hold that the charges are proved. InGthe present case the aforesaid procedure has not beenobserved. Since no oral evidence has been examined thedocuments have not been proved, and could not have beentaken into consideration to conclude that the charges havebeen proved against the respondents.

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30. When a departmental enquiry is conducted against thegovernment servant it cannot be treated as a casual exercise.The enquiry proceedings also cannot be conducted with aclosed mind. The inquiry officer has to be wholly unbiased.The rules of natural justice are required to be observed toensure not only that justice is done but is manifestly seen tobe done. The object of rules of natural justice is to ensurethat a government servant is treated fairly in proceedingswhich may culminate in imposition of punishment includingdismissal/removal from service.”

27. When the statutory rule does not contemplate appointmentof Presenting Officer whether non-appointment of Presenting Officeripso facto vitiates the inquiry? We have noticed the statutory provisionof Rule 27 which does not indicate that there is any statutory requirementof appointment of Presenting officer in the disciplinary inquiry. It is thusclear that statutory provision does not mandate appointment of PresentingOfficer. When the statutory provision does not require appointment ofPresenting Officer whether there can be any circumstances whereprinciples of natural justice can be held to be violated is the broad questionwhich needs to be answered in this case. We have noticed above thatthe High Court found breach of principles of natural justice in InquiryOfficer acting as the prosecutor against the respondents. The InquiryOfficer who has to be independent and not representative of thedisciplinary authority if starts acting in any other capacity and proceedto act in a manner as if he is interested in eliciting evidence to punish anemployee, the principle of bias comes into place.

28. Justice M. Rama Jois of the Karnataka High Court hadoccasion to consider the above aspect in Bharath Electronics Ltd. vs.K. Kasi, ILR 1987 Karnataka 366. In the above case the order ofdomestic inquiry was challenged before the Labour and Industrial Tribunal.The grounds taken were, that inquiry is vitiated since Presenting Officerwas not appointed and further Inquiry Officer played the role ofprosecutor. This Court held that there is no legal compulsion thatPresenting Officer should be appointed but if the Inquiry Officer playsthe role of Presenting Officer, the inquiry would be invalid. Followingwas held in paragraphs 8 and 9:

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“8. One other ground on which the domestic inquiry was heldinvalid was that Presenting Officer was not appointed. Thisview of the Tribunal is also patently untenable. There is nolegal compulsion that Presenting Officer should be appointed.Therefore, the mere fact that the Presenting Officer was notappointed is no ground to set aside the inquiry See :Gopalakrishna Reddy v. State of Karnataka (ILR 1980 Kar575). It is true that in the absence of Presenting Officer if theInquiring Authority plays the role of the Presenting Officer,the inquiry would be invalid and this aspect arises out of thenext point raised for the petitioner, which I shall considerimmediately hereafter.

9. The third ground on which the Industrial Tribunal heldthat the domestic inquiry was invalid was that the InquiryOfficer had played the role of the Presenting Officer. Therelevant part of the findings reads :

“The Learned Counsel for the workman further contendedthat the questions put by the Enquiry Officer to theManagement’s witnesses themselves suggest that he was biasedand prejudiced against the workman. There has been noexplanation as to why no Presenting Officer was appointedand as to why the Enquiry Officer took upon himself the burdenof putting questions to the Management witnesses. The enquiryproceedings at Ext. A-6 disclose that after the cross-examination of the Management’s witnesses by the defence,the Enquiry Officer has further put certain questions by wayof explanation, but from their nature an inference arises thatthey are directed to fill in the lacuna. The Learned Counselfor the Management contended that the Enquiry Officer hasfollowed the principles of natural justice and that the domesticenquiry is quite valid. I am of the view that the fact that theEnquiry Officer has himself taken up the role of the PresentingOfficer for the management goes to the root of the matter andvitiates the enquiry,”

As far as position in law is concerned, it is common groundthat if the Inquiring Authority plays the role of a Prosecutorand cross-examines defence witnesses or puts leadingquestions to the prosecution witnesses clearly exposing a biased state of mind, the inquiry would be opposed toprinciples of natural justice. But the question for considerationin this case is : Whether the Inquiry Officer did so ? It is alsosettled law that an Inquiring Authority is entitled to putquestions to the witnesses for clarification wherever it becomesnecessary and so long the delinquent employee is permittedto cross-examine the witnesses after the Inquiring Authorityquestions the witnesses, the inquiry proceedings cannot beimpeached as unfair. See : Munchandani Electric and RadioIndustries Ltd. v. Their Workman.”

29. This Court had occasion to observe in Workmen ofLambabari Tea Estate vs. Lambabari Tea Estate, 1966 (2)LLJ 315, that if Inquiry Officer did not keep his function as InquiryOfficer but becomes prosecutor, the inquiry is vitiated. Following wasobserved:

“The inquiry which was held by the management on the firstcharge was presided over by the manager himself. It wasconducted in the presence of the assistant manager and twoothers. The enquiry was not correct in its procedure. Themanager recorded the statements, cross-examined thelabourers who were the offenders and made and recordedhis own statements on facts and questioned the offendinglabourers about the truth of his own statements recorded byhimself. The manager did not keep his function as theenquiring officer distinct but became witness, prosecutor andmanager in turns. The record of the enquiry as a result isstaccato and unsatisfactory.”

30. A Division Bench of the Madhya Pradesh High Court speakingthrough Justice R.V. Raveendran, CJ (as he then was) had occasion toconsider the question of vitiation of the inquiry when the Inquiry Officerstarts himself acting as prosecutor in Union of India and ors. vs. Mohd.Naseem Siddiqui, ILR (2004) MP 821. In the above case the Courtconsidered Rule 9(9) of the Railway Servants (Discipline & Appeal)Rules, 1968. The Division Bench while elaborating fundamental principlesof natural justice enumerated the seven well recognised facets inparagraph 7 of the judgment which is to the following effect:

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“7. One of the fundamental principles of natural justice is AB

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Athat no man shall be a judge in his own cause. This principleconsists of seven well recognised facets: (i) The adjudicatorshall be impartial and free from bias, (ii) The adjudicatorshall not be the prosecutor, (iii) The complainant shall not bean adjudicator, A witness cannot be the Adjudicator, TheAdjudicator must not import his personal knowledge of theBfacts of the case while inquiring into charges, (vi) TheAdjudicator shall not decide on the dictates of his Superiorsor others, (vii) The Adjudicator shall decide the issue withreference to material on record and not reference toextraneous material or on extraneous considerations. If anyCone of these fundamental rules is breached, the inquiry willbe vitiated.”

31. The Division Bench further held that where the Inquiry Officeracts as Presenting Officer, bias can be presumed. In paragraph 9 is asfollows:

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“9. A domestic inquiry must be held by an unbiased personwho is unconnected with the incident so that he can beimpartial and objective in deciding the subject matters ofinquiry. He should have an open mind till the inquiry iscompleted and should neither act with bias nor give anEimpression of bias. Where the Inquiry Officer acts as thePresenting Officer, bias can be presumed. At all events, itclearly gives an impression of bias. An Inquiry Officer is inposition of a Judge or Adjudicator. The Presenting Officer isin the position of a Prosecutor. If the Inquiry Officer acts asa Presenting Officer, then it would amount to Judge acting asFthe prosecutor. When the Inquiry Officer conducts theexamination-in- chief of the prosecution witnesses and leadsthem through the facts so as to present the case of thedisciplinary authority against the employee or cross- examinesthe delinquent employee or his witnesses to establish the caseGof the employer/disciplinary authority evidently, the InquiryOfficer cannot be said to have an open mind. The very factthat he presents the case of the employer and supports thecase of the employer is sufficient to hold that the InquiryOfficer does not have an open mind.”

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UNION OF INDIA v. RAM LAKHAN SHARMA[ASHOK BHUSHAN, J.]

32. The Division Bench after elaborately considering the issuesummarised the principles in paragraph 16 which is to the following effect:

“16. We may summarise the principles thus:

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

(ii) It is not necessary for the Disciplinary Authority toappoint a Presenting Officer in each and every inquiry.Non- appointment of a Presenting Officer, by itself will notvitiate the inquiry.

(iii) The Inquiry Officer, with a view to arrive at the truthor to obtain clarifications, can put questions to theprosecution witnesses as also the defence witnesses. In theabsence of a Presenting Officer, if the Inquiry Officer putsany questions to the prosecution witnesses to elicit the facts,he should thereafter permit the delinquent employee tocross-examine such witnesses on those clarifications.

(iv) If the Inquiry Officer conducts a regular examination-in-chief by leading the prosecution witnesses through theprosecution case, or puts leading questions to thedepartmental witnesses pregnant with answers, or cross-examines the defence witnesses or puts suggestive questionsto establish the prosecution case employee, the InquiryOfficer acts as prosecutor thereby vitiating the inquiry.

(v) As absence of a Presenting Officer by itself will notvitiate the inquiry and it is recognised that the InquiryOfficer can put questions to any or all witnesses to elicitthe truth, the question whether an Inquiry Officer actedas a Presenting Officer, will have to be decided withreference to the manner in which the evidence is let in andrecorded in the inquiry.

Whether an Inquiry Officer has merely acted only as anInquiry Officer or has also acted as a Presenting Officerdepends on the facts of each case. To avoid any allegationsof bias and running the risk of inquiry being declared asillegal and vitiated, the present trend appears to be to A

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Ainvariably appoint Presenting Officers, except in simple cases.Be that as it may.”

33. We fully endorse the principles as enumerated above, however,the principles have to be carefully applied in facts situation of a particularcase. There is no requirement of appointment of Presenting Officer inBeach and every case, whether statutory rules enable the authorities tomake an appointment or are silent. When the statutory rules are silentwith regard to the applicability of any facet of principles of natural justicethe applicability of principles of natural justice which are not specificallyexcluded in the statutory scheme are not prohibited. When there is noexpress exclusion of particular principle of natural justice, the saidCprinciple shall be applicable in a given case to advance the cause ofjustice. In this context reference is made of a case of this Court inPunjab National Bank and others vs. Kunj Behari Misra, 1998 (7)SCC 84. In the above case, this Court had occasion to consider theprovisions of Punjab National Bank Officer Employees’ (Discipline andDAppeal) Regulations, 1977. Regulation 7 provides for action on theenquiry report. Regulation 7 as extracted in paragraph 10 of the judgmentis as follows:

“7. Action on the enquiry report.—(1) The disciplinaryauthority, if it is not itself the enquiring authority, may, forEreasons to be recorded by it in writing, remit the case to theenquiring authority for fresh or further enquiry and reportand the enquiring authority shall thereupon proceed to holdthe further enquiry according to the provisions of Regulation6 as far as may be.

(2) The disciplinary authority shall, if it disagrees with thefindings of the enquiring authority on any article of charge,record its reasons for such disagreement and record its ownfindings on such charge, if the evidence on record is sufficientfor the purpose.

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(3) If the disciplinary authority, having regard to its findingson all or any of the articles of charge, is of the opinion thatany of the penalties specified in Regulation 4 should beimposed on the officer employee, it shall, notwithstandinganything contained in Regulation 8, make an order imposingsuch penalty.

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(4) If the disciplinary authority having regard to its findingson all or any of the articles of charge, is of the opinion thatno penalty is called for, it may pass an order exonerating theofficer employee concerned.”

34. The question which was debated before this Court was thatsince Regulation 7(2) does not contain any provision for giving anopportunity to the delinquent officer to represent before disciplinaryauthority who reverses the findings which were in favour of the delinquentemployee, the rules of natural justice are not applicable. This Courtheld that principle of natural justice has to be read in Regulation 7(2)even though rule does not specifically require hearing of delinquentofficer. In paragraph 19 following was held:

“19. The result of the aforesaid discussion would be thatthe principles of natural justice have to be read into Regulation7(2). As a result thereof, whenever the disciplinary authoritydisagrees with the enquiry authority on any article of charge,then before it records its own findings on such charge, it mustrecord its tentative reasons for such disagreement and give tothe delinquent officer an opportunity to represent before itrecords its findings. The report of the enquiry officercontaining its findings will have to be conveyed and thedelinquent officer will have an opportunity to persuade thedisciplinary authority to accept the favourable conclusion ofthe enquiry officer. The principles of natural justice, as wehave already observed, require the authority which has totake a final decision and can impose a penalty, to give anopportunity to the officer charged of misconduct to file arepresentation before the disciplinary authority records itsfindings on the charges framed against the officer.”

35. Thus, the question as to whether Inquiry Officer who issupposed to act independently in an inquiry has acted as prosecutor ornot is a question of fact which has to be decided on the facts andproceedings of particular case. In the present case we have noticed thatthe High Court had summoned the entire inquiry proceedings and afterperusing the proceedings the High Court came to the conclusion thatInquiry Officer himself led the examination in chief of the prosecutionwitness by putting questions. The High Court further held that the InquiryOfficer acted himself as prosecutor and Judge in the said disciplinaryenquiry. The above conclusion of the High Court has already been noticed A

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Afrom paragraphs 9 and 10 of the judgment of the High court giving riseto Civil Appeal No.2608 of 2012.

36. The High Court having come to the conclusion that InquiryOfficer has acted as prosecutor also, the capacity of independentadjudicator was lost which adversely affecting his independent role ofBadjudicator. In the circumstances, the principle of bias shall come intoplay and the High Court was right in setting aside the dismissal orders bygiving liberty to the appellants to proceed with inquiry afresh. We makeit clear that our observations as made above are in the facts of thepresent cases.

37. In result, all the appeals are dismissed subject to the liberty asgranted by the High Court that it shall be open for the appellants toproceed with the inquiry afresh from the stage as directed by the HighCourt and it shall be open for the appellant to decide on arrear pay andallowances of the respondents.

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Nidhi Jain

Appeals dismissed.

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