An enquiry conducted by a department is not vitiated merely because a police officer acts as the presenting officer or a witness is examined who was not cited in the chargesheet, provided that the petitioner is not prejudiced thereby.

JUDGMENT :

Sawant, J.

1. By this petition the petitioner seeks to challenge the order of his dismissal from service.

2. Briefly stated the facts leading to the petition are as follows :

The petitioner was at the relevant time employed as a Foreman at Pipeline Manifold, Pir Pau with the Ist respondent, Bombay Port Trust. On receipt of complaints of misconduct by the petition he was suspended from service with effect from March 20, 1973. It appears that the Ist respondent had also handed over the investigation into the misconduct to the Central Bureau of Investigation. Thereafter on May 2, 1974, a chargesheet containing three charges was served upon the petitioner and an enquiry officer was appointed to hold an enquiry on June 25, 1974. Along with the letter appointing the enquiry officer it was also mentioned that one Mr. Pavade, an officer of the Central Bureau of Investigation would act as a presenting officer at the time of the enquiry and one Mr. Singanamalli was designated as a co-ordinating officer. Thereafter on August 18, 1975 an additional chargesheet containing the 4th charge was served upon the petitioner.

3. It appears that the earlier enquiry officer Mr. Mavji retired from service and thereafter on September 11, 1975, a new enquiry officer Mr. Chowdhury was appointed to conduct the enquiry. It appears further that before the earlier inquiry officer Mr. Mavji two objections were raised on behalf of the petitioner, viz., that Mr. Pavade who was the police officer could not be presenting officer at the enquiry and that Mr. Singanamalli was a witness in the enquiry and he could not act as co-ordinating officer. Mr. Mavji rejected the first objection holding that there was nothing in the rule to prohibition a police officer from being a presenting office. He also held that is one of the enquiries held by him earlier, a police officer did act as a presenting officer. As regards the second objection he found that there was some substance and he wanted the charge sheeting authority, viz., the Chief Mechanical Engineer to consider the position with regard to Mr. Singanamalli. Mr. Mavji then adjourned the enquiry to a further date.

4. It appears that thereafter the petitioner preferred an application to the Chairman of the Port Trust raising the said two contentions and asking for his ruling on the same. The Chairman did not reply. In the meanwhile Mr. Mavji retired from service and the second enquiry officer was appointed on September 11, 1975. The enquiry commenced on the very day. One Dr. Maitra was representing the petitioner at the enquiry. After about 7 witnesses were cross-examined by Dr. Maitra, on October 6, 1975, the petitioner walked out of the enquiry. The enquiry, therefore, proceeded ex parte against him and it was completed on October 18, 1975. The enquiry officer submitted his report on November 27, 1975, giving a finding that on the basis of the oral and documentary evidence produced before him, the petitioner was found guilty of the charges levelled against him. On the basis of this finding, a show cause notice was issued to the petitioner on December 9, 1975, to which the petitioner submitted his reply on December 17, 1975. After considering the reply, the petitioner was dismissed from service by the impugned order dated February 26, 1976.

5. Dr. Kulkarni who appears for the petitioner has attacked his order of dismissal in all on five grounds. His first ground is that this entire enquiry was held at the behest of the Central Bureau of Investigation, the 1st respondent Port Trust merely acted as a tool of the police and as such the enquiry itself was vitiated in law. In fact, it appears that this is the main blunt of the attack against the dismissal order. For this purpose he relied upon the fact that there was an investigation conducted by the Central Bureau of Investigation into the charges levelled against the petitioner as per the chargesheet. The C.B.I. for reasons best known to them did not proceed agains