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2008 Supreme(Kar) 345
High Court of Karnataka
THE HONOURABLE MR. JUSTICE AJIT J. GUNJAL
K. Venkatesh
Versus
The Principal Home Secretary, Government of India & Others
Writ Petition No.11687 of 2006 (S-DIS)
Decided on : 16-06-2008
For the Petitioner:S. Nagaraj & Associates, Advocates. For the Respondents: B. Papegowda, CGSC.
Headnote:LABOUR & SERVICES - Departmental enquiry: [Ajit J Gunjal, J] Central Reserve Police Force Rules, 1955, Rule 27(c)(3) - Non-compliance - Held, What is essential under Rule 27(C)(3) of the rules is that all the material objects which are essential/necessary to drive home the guilt of the delinquent are required to be made available to him and also to the enquiry officer. The purpose of making available the material objects during the course of enquiry to the delinquent as well as to the enquiry officer is to satisfy themselves that these are the material objects which were seized from the delinquent. Indeed, it is only thereafter a finding can be recorded on the basis of the evidence which is let in and the prosecution witness would speak to the seizure of the currency notes and other valuables from the delinquent. Indeed, the said rule is not directory but it is certainly mandatory, in as much as, it would read that the documents which are relied in support of the charge shall be put in evidence as exhibits which would necessarily mean that must be a part of the enquiry before fixing the charge on the petitioner. The enquiry officer has failed to follow scrupulously the rule relating to exhibiting the material objects as contemplated under Rule 27(c)(3) of the rules. On Facts, held, The records disclose that the enquiry officer in his capacity as a Judge has transgressed his limit and has stepped into the shoes of a prosecutor/presenting officer. Indeed, it is to be noticed that such a course is certainly not open to the enquiry officer to act in dual capacity. Hence, the entire enquiry is vitiated. Impugned orders are quashed and Petitioner is directed to be reinstated without any back wages.
LABOUR & SERVICES - Departmental enquiry: [Ajit J Gunjal, J] Dual role played by Enquiry Officer in conducting Enquiry - Enquiry Officer also acting as Presenting Officer, leading evidence against delinquent, enquiring him about evidence, putting leading questions and cross-examining defence witness - Held, Such procedure adopted, in the absence of Presenting Officer appointed for presenting case against delinquent, amounts to Enquiry Officer acting as Judge and Prosecutor at same time. It is not duty of Enqujiry Officer to prove charge. He has not only to do justice but also demonstrate that justice is being done. Order of dismissal passed on basis enquiry report submitted by Enquiry Officer who has failed to held enquiry in fair manner is unsustainable in law, and liable to be set aside.
Ajit J. Gunjal, J.
A Departmental enquiry was held against the petitioner according to the procedure laid down in Rule 27 of CRPF Rules, 1955 (for short, `the Rules'). He is visited with the penalty of dismi ssal from service with effect from 31.03.2005. Aggrieved by the order passed by the disciplinary authority, a copy of which is produced at Annexure-B, the petitioner preferred an appeal. The appellate Authority has also confirmed the order passed by the disciplinary authority. A revision was preferred to the Inspector General of Police, who pursuant to order at Annexure-A has confirmed the order of dismissal as well as the holding of departmental enquiry.
2. The facts germane for disposal of this petition can be summarized as follows:
The petitioner joined the services of the respondent. As on the date when the departmental enquiry was initiated under two articles of charges, he was working in Battalion 174. The premise of the charges is that when the petitioner was working as a Constable committed an act of misconduct in his capacity as a member of the Force inasmuch as on 01.11.2004, while availing 27 days of earned leave at his Government quarters trespassed into the Hoysala Barracks where recruits of 174 Bn, CRFP were housed and has committed theft of Rs.33,400/-(Rupees Thirty Three Thousand and Four Hundred) and a mobile phone (Samsung Dual Band GPRS SGH-X100) and his action is prejudicial to the good order of the Force. The second charge is that he was guilty of misconduct in his capacity, inasmuch as, he was caught red-handed stealing money and other valuables from the barracks of recruits of 174 Bn and thereby he has failed to maintain a responsible and decent standard of conduct which is unbecoming of a disciplined Force person and prejudicial to the good order of the Force. A charge memo was issued along with the imputations to which the petitioner filed his reply denying any act of misconduct as alleged is committed by him. The Deputy Commandant of the Battalion was appointed as enquiry officer. In support of the charges, as many as 13 witnesses were examined and some of them were cross examined by the petitioner and that others were not cross examined. The enquiry officer after conducting the enquiry has submitted his report holding that the charges levelled against the petitioner are proved. As stated earlier, the disciplinary authority has passed an order of dismissal which is subsequently confirmed by the appellate authority as well as the revisional authority.
3. Mr.Nagaraj, learned counsel appearing for the petitioner has raised three contentions:
1. that during the course of enquiry, the material objects which were seized i.e., currency notes as well as the Mobile phone were not produced
2. that the presenting officer/ the prosecutor and the Judge are one and the same. Hence it is opposed to principles of natural justice.
3. that the witnesses who were examined on behalf of the respondent have not supported the case. Hence the entire enquiry is vitiated and the extreme penalty of dismissal was not at all warranted.
4. Mr.Papegowda, learned counsel appearing for the respondents would support the entire procedure commencing from the enquiry till the order was passed by the revisional authority. He submits that under the circulars issued by the Central Government, there is no impediment under the Rules to appoint a presenting officer as well as the enquiry officer in a dual capacity. In that regard he relies on a circular and compilation issued by the Central Government. He further submits that during the course of enquiry, the respondents had produced the material objects in the form of photographs. Hence he submits that it satisfies the requirement of Rule 27(c)(3) of the Rules. He further submits that sufficient opportunity was given to the petitioner to cross examine the witnesses as well as to lead evidence. He however, has not chosen to do so. Hence at this point of time, he cannot turn rou
