1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2608 OF 2012

UNION OF INDIA & ORS. ... APPELLANTS

VERSUS

RAM LAKHAN SHARMA ... RESPONDENT

WITH

CIVIL APPEAL NO.6745 OF 2013,

CIVIL APPEAL NO.9373-9374 OF 2013 AND

CIVIL APPEAL NO.1800 OF 2014.

J U D G M E N T

ASHOK BHUSHAN, J.

These appeals have been filed by the Union of

India questioning the judgments of the Gauhati High

Court by which writ petitions filed by the

respondents challenging their orders of removal were

allowed by setting aside the removal/dismissal orders

and the respondents were directed to be reinstated.

The High Court had allowed the writ petitions filed

by the respondents on more or less similar grounds,

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hence, it shall be sufficient to notice the facts and

pleadings in detail 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

as constable in the Central Reserve Police Force

(hereinafter referred to as “CRPF”) on 10.04.1991. On

23.10.1999 while he was posted as constable 11 Bn.,

CRPF at Agartala, Tripura he went out from Guard duty

at 09.00 a.m. and returned back at 09.50 a.m. In the

afternoon, an allegation was made by one lady Smt.

Gita Paul making allegation of rape against the

respondent and First Information Report was

registered on 23.10.1999 at the Police Station under

Section 376 IPC.

3.On 23.10.1999 the appellant was placed under

suspension. On 04.12.1999 chargesheet was issued to

the respondent containing articles of charges I and

II. First charge was that the appellant remained

absent without proper permission of competent

authority with consent of his Guard Commander from

his duty on 23.10.1999 from 0900 hrs. to 0930 hrs.

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Second charge was that he while functioning as

constable (Guard) has committed an act of misconduct

in his capacity as a member of the force in that he

tried to do sexual intercourse with a woman with

mutual consent by giving money which amounts to

indiscipline/moral turpitude.

4.The disciplinary authority appointed one Shri

S.S. Bisht, Second-in-Command, 11 Bn CRPF as Inquiry

Officer. The Inquiry Officer recorded the prosecution

evidence. The Inquiry Report was submitted which was

also supplied to the delinquent vide letter dated

07.02.2000 asking the respondent to submit reply

within 15 days. The Commandant, 11 Bn passed an order

on 19.03.2000 imposing penalty of removal from

service w.e.f. 19.03.2000 under Section 11(1) of the

Central Reserve Police Force Act, 1949 read with Rule

27 of the Central Reserve Police Force Rules, 1955.

5.On the basis of First Information Report

registered against the respondent a chargesheet was

submitted in the Court of Sessions Judge, Tripura,

Agartala. Learned Sessions Judge after completing the

trial on 20.09.2001 acquitted the respondent from

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charges levelled against him. After acquittal from

criminal case the respondent filed a Writ Petition

No.6778 of 2000 in the High Court of Allahabad

challenging his order of removal. The High Court by

order dated 20.05.2004 disposed of the writ petition

giving liberty to the respondent to file an appeal

under CRPF Rules, 1955 within two weeks. In pursuance

of the order of the High Court an appeal was filed

before D.I.G.R., CRPF, Patna. The Appellate Authority

rejected the appeal by its order dated 22.07.2004

against which order a revision was filed before the

Inspector General of Police, CRPF which too was

rejected on 02.03.2005. Challenging the order of

removal as well as orders passed in appeal and

revision the respondent filed Writ Petition (C) No.14

of 2006. Learned Single Judge vide judgment dated

12.04.2010 allowed the writ petition by setting aside

the removal order and directed for reinstatement of

the respondent. The learned Single Judge also

permitted the appellant to initiate the disciplinary

inquiry afresh from the stage of appointing

Presenting Officer. It was further directed that if

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the departmental proceeding is required to be started

afresh, the respondent shall be placed under

suspension and during the period of suspension,

subsistence allowance should be paid. It was left to

the wisdom of 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 Single Judge being Writ

Appeal No.25 of 2010. The Division Bench of the High

Court by its judgment dated 10.01.2011 dismissed the

writ appeal aggrieved by which order Civil Appeal

No.2608 of 2012 has been filed by the Union of India.

7.The facts and pleadings in other civil appeals

being more or less 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 of the Division Bench dated 18.01.2013

by which Writ Appeal No.1 of 2013 filed by the Union

of India questioning the judgment of the learned

Single Judge was dismissed. The respondent, Shri T.

Lupheng while posted at Manipur on 24.03.2008 sought

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permission from his senior during his duty hours for

going to the Bank to withdraw his salary. He was

allowed to go and directed to report back to his

duties. On his return he was found under the

influence of alcohol. On 07.04.2008 the personnel was

suspended. On four articles of charges inquiry was

held. The Inquiry Officer recorded the evidence of

prosecution. The inquiry was completed and report was

submitted on 19.06.2008. The disciplinary authority

vide its order dated 05.07.2008 awarded the

punishment of dismissal from service. An appeal was

filed which was dismissed by DIG, CRPF on 07.11.2008.

The revision was also dismissed by IGP-C/S, CRPF on

05.06.2009. Writ Petition No.556 of 2009 was filed

in the Gauhati High Court which was allowed by the

learned Single Judge by judgment dated 04.08.2012. A

writ appeal was filed by the Union of India which was

dismissed by the Division Bench on 18.01.2013 against

which this appeal has been filed.

Civil Appeal Nos.9373-74 of 2013

9.These appeals have been filed by the Union of

India against the Division Bench judgment dated

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24.08.2012 by which the appeal filed by the Union of

India questioning the judgment dated 08.02.2012 has

been dismissed. The respondent was serving as

constable in F/27 Bn CRPF. It was alleged that on

13.04.2000 he left lines without seeking prior

permission, consumed liquor and created nuisance in

the market. The chargesheet was issued to the

respondent containing two articles of charges. The

Inquiry Officer was appointed. Inquiry Officer

recorded the statement of 12 prosecution witnesses.

By an order dated 30.08.2000 the respondent was

dismissed from services. There were two other

delinquents apart from the respondent who were

proceeded with and dismissed by the common order.

Learned Single Judge relying on an order of the High

Court in Writ Petition (C) No.297 of 2002 (Sri Mutum

Shanti Kumar Singh vs. Union of India) on 08.02.2012

set aside the order of the dismissal and directed

reinstatement of the respondent. Union of India filed

Writ Appeal No.32 of 2012 challenging the order of

Learned Single Judge before the Gauhati High Court.

The Division Bench of the High Court by order dated

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24.08.2012 dismissed the writ appeal. Review petition

was filed by the Union of India which too was

dismissed on 18.01.2013. Consequently, these appeals

have been filed by the Union of India.

Civil Appeal No.1800 of 2014

10.This appeal has been filed by the Union of India

against the Division Bench judgment of the High Court

dated 29.05.2013 by which writ petition filed by the

respondent challenging the disciplinary proceedings

for dismissal of the respondent was allowed. The

respondent while serving at Chothegaon, Bishnupur

(Manipur) on 12.03.2007 deserted from line without

permission of competent authority. Subsequently, an

FIR was lodged on 12.03.2007. A warrant was issued to

apprehend him on 29.07.2007 but he could not be

apprehended. A Court of Inquiry was conducted and

the respondent was declared “DESERTER” w.e.f.

12.03.2007 vide order dated 13.07.2007. A

Departmental proceeding was initiated with articles

of charges on 12.11.2007. Since, the respondent had

not reported in the Unit, the inquiry proceeded ex

parte. Charges levelled against the respondent were

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found proved. An order dated 20.05.2008 was passed

awarding dismissal from service to the respondent.

Thereafter, he submitted appeal before DIG, CRPF. A

writ petition was filed by the respondent. The writ

petition was disposed of on 29.05.2013 setting aside

the dismissal order and directing for reinstatement.

The appeal has been filed against the above said

judgment.

11.The Gauhati High Court had allowed the writ

petition filed by the respondents on the ground that

in the disciplinary inquiry the principles of natural

justice were violated. The High Court found that no

Presenting Officer was appointed and the Inquiry

Officer acted as prosecutor which violates the

principles of natural justice and the entire inquiry

was set aside on the aforesaid ground with liberty to

the respondent to hold afresh inquiry from the stage

of appointing of the Presenting Officer.

12.All the appeals filed by the Union of India

raises almost similar question of law and facts and

the learned counsel for the Union of India has also

raised common submission in all the appeals.

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13.Learned counsel for the appellant, Shri Vikramjit

Banerjee, Addl. Solicitor General contends that the

High Court committed error in setting aside the

dismissal order on the ground of non-appointment of

Presenting Officer. It is submitted that Rule 27 of

CRPF Rules, 1955 which provides for holding of

disciplinary inquiry does not provide for appointment

of Presenting Officer. The appellants have followed

the requirement of Rule 27 in holding disciplinary

inquiry in consonance with principles of natural

justice, hence, there was no occasion to set aside

the dismissal order. It is submitted that the

respondents were given full opportunity in the

disciplinary inquiry including serving chargesheet,

giving opportunity to cross-examine the witnesses,

opportunity to lead evidence and submit a reply to

the Inquiry Report.

14.Learned counsel for the appellant submits that

Rule 27 does not mandate the appointment of

Presenting Officer to hold disciplinary inquiry. It

is further submitted that even if it is assumed that

while non-appointment of Presenting Officer,

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principles of natural justice have been violated,

respondents have to show what prejudice has been

caused due to non-appointment of the Presenting

Officer in the department enquiry. No prejudice

having been caused to any of the respondents, they

were not entitled for grant of relief as has been

granted by the High Court.

15.Learned counsel appearing for the respondents

refuting the above submissions contends that the High

Court has rightly set aside the dismissal/removal

orders of the respondents. In the facts and

circumstances of the present case, appointment of

Presenting Officer was necessary to ensure compliance

of principles of natural justice which having not

been done the respondents have been seriously

prejudiced. It is submitted that Inquiry Officer

himself acted as prosecutor by putting questions to

the prosecution witnesses. Inquiry Officer having

become prosecutor with entire approach towards

inquiry was tainted with bias and has rightly been

interfered by the High Court. It is submitted that

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Inquiry Officer having acted as a prosecutor no

further prejudice needs to be proved.

16.We have considered the submissions of the learned

counsel for the parties and perused the records.

17.Before we proceed to consider the rival

submissions of the learned counsel for the parties,

it is relevant to look into the reasons given by the

High Court for allowing the writ petitions filed by

the respondents.

18.In Civil Appeal No.2608 of 2012(leading appeal)

judgment of learned Single Judge allowing the writ

petition is dated 12.04.2010 which is filed at

Annexure P-7 to the appeal. After elaborately

considering the facts of the case, the nature of

charges and affidavit filed in the writ petition,

learned Judge proceeded to decide the writ petition.

Learned Single Judge had directed to make available

the proceedings of the disciplinary inquiry and on

perusal of the proceedings of the disciplinary

inquiry Learned Single Judge came to the conclusion

that no Presenting Officer was appointed in the said

proceedings and the Enquiry Officer himself led the

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examination in chief of the prosecution witness by

putting questions. The High Court further came to the

conclusion that Enquiry Officer acted himself as

prosecutor and Judge in the said disciplinary

enquiry. It is useful to extract paragraphs 9 and 10

of the judgment which are to the following effect:

“(9) This Court directed the learned

Asstt. S.G. appearing for the respondents

to make available the proceedings of the

disciplinary enquiry against the

petitioner. On perusal of the proceeding,

it is crystal clear that no Presenting

Officer was appointed in the said

proceedings and the Enquiry Officer himself

led the examination in chief of the

prosecution witness by putting questions.

This fact is not disputed by the learned

Asstt. S.G. appearing for the respondents,

but his only submission is that all

opportunities were given to the writ

petitioner to put up his defence case and

also the writ petitioner had pleaded guilty

for both the charges levelled against him.

(10) It is, therefore, crystal clear

that the Enquiry Officer acted himself as

Prosecutor and Judge in the said

disciplinary enquiry against the writ

petitioner. From this admitted fact, it may

not be wrong to infer that there were no

fair procedures in the disciplinary

proceedings as a result of which principle

of natural justice was undisputedly denied

to the writ petitioner.”

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19.The Division Bench of the High Court in writ

appeal against the aforesaid judgment also affirmed

the aforesaid view of the learned Single Judge while

dismissing the writ appeal.

20.As noted above there are two principal

submissions raised by the learned counsel for the

appellant, they are: (i) The disciplinary inquiry is

required to be conducted under Rule 27 of 1955 Rules

which does not contemplate appointment of a Presenting

Officer. Hence, the inquiry proceedings are not

vitiated by the non-appointment of Presenting Officer.

(ii) The disciplinary inquiry has been held against

the respondents by complying with the principles of

natural justice. No principle of natural justice is

violated by non-appointment of Presenting Officer. No

prejudice has been caused to the respondents by

non-appointment of Presenting Officer.

21.Rule 27 sub-rule (c) of the CRPF Rules, 1955

provides for the procedure for conducting a

departmental enquiry which is as follows:

“Rule 27(c) The procedure for conducting

a departmental enquiry shall be as

follows:-

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(1) The substance of the accusation

shall be reduced to the form of a written

charge which should be as precise as

possible. The charge shall be read out to

the accused and a copy of it given to him

at least 48 hrs. before the commencement of

the enquiry.

(2) At the commencement of the enquiry

the accused shall be asked to enter a plea

of Guilty or Not Guilty after which

evidence necessary to establish the charge

shall be let in. The evidence shall be

material to the charge and may either be

oral or documentary, if oral:

(i) it shall be direct:

(ii) it shall be recorded by the

Officer conducting, the enquiry himself

in the presence of the accused:

(iii) the accused shall be allowed

to cross examine the witnesses.

(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 to

inspect such exhibits.

(4) The accused shall then be

examined and his statement recorded by

the officer conducting the enquiry. If

the accused has pleaded guilty and does

not challenge the evidence on record,

the proceedings shall be closed for

orders. If he pleads "Not guilty", he

shall be required to file a written

statement and a list of such witnesses

as he may wish to cite in his defence

within such period, which shall in any

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case be not less than a fortnight, as

the officer conducting enquiry may deem

reasonable in the circumstances of the

case. If he declines to file a written

statement, he shall again be examined by

the officer conducting the enquiry on

the expiry of the period allowed.

(5) If the accused refuses to cite

any witnesses or to produce any evidence

in his defence, the proceedings shall be

closed for orders. If he produces any

evidence the officer conducting the

enquiry shall proceed to record the

evidence. If the officer conducting the

enquiry considers that the evidence of

any witness or any document which the

accused wants to produce in his defence

is not material to the issues involved

in the case he may refuse to call such

witness or to allow such document to be

produced in evidence, but in all such

cases he must briefly record his reasons

for considering the evidence

inadmissible. When all relevant evidence

has been brought on record, the

proceedings shall be closed for orders.

(6) If the Commandant has himself

held the enquiry, he shall record his

findings and pass orders where he has

power to do so. If the enquiry has been

held by any officer other than the

Commandant, the officer conducting the

enquiry shall forward his report

together with the proceedings to the

Commandant who shall record his findings

and pass order where he has power to do

so.”

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22.A perusal of the aforesaid Rule does not indicate

that Rule contemplates appointment of Presenting

Officer. Service conditions including punishment and

appeal procedure of an employee are governed by

statutory rules. The CRPF Act, 1949 has been enacted

by the Parliament for the constitution and regulation

of an armed Central Reserve Police Force. Section 18

of the Act empowers the Central Government to make

rules for carrying out the purposes of this Act.

23.The disciplinary proceedings are quasi-judicial

proceedings and Inquiry Officer is in the position of

an independent adjudicator and is obliged to act

fairly, impartially. The authority exercises

quasi-judicial power has to act in good faith without

bias, in a fair and impartial manner.

24.Rules of natural justice have been recognised and

developed as principles of administrative law. Natural

justice has many facets. Its all facets are steps to

ensure justice and fair play. This Court in Suresh

Koshy George vs. University of Kerala and others, AIR

1969 SC 198 had occasion to consider the principles of

natural justice in the context of a case where

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disciplinary action was taken against a student who

was alleged to have adopted malpractice in the

examination. In paragraph 7 this Court held that the

question whether the requirements of natural justice

have been met by the procedure adopted in a given case

must depend to a great extent on the facts and

circumstances of the case in point, the constitution

of Tribunal and the rules under which it functions.

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 have

been met by the procedure adopted in a

given case must depend to a great extent on

the facts and circumstances of the case in

point, the constitution of the Tribunal and

the rules under which it functions.

8. In Russel v. Duke of Norfolk,

Tucker, L. J. observed:

"There are, in my view, no words which

are of universal application to every kind

of inquiry and every kind of domestic

tribunal. The requirements of natural

justice must depend on the circumstances of

the case, the nature of the inquiry, the

rules under which the tribunal is acting,

the subject matter that is being dealt

with, and so forth. Accordingly, I do not

derive much assistance from the definitions

of natural justice which have been from

time to time used, but, whatever standard

is adopted, one essential is that the

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person concerned should have a reasonable

opportunity of presenting his case."

25.A Constitution Bench of this Court has

elaborately considered and explained the principles of

natural justice in A.K. Kraipak and others vs. Union

of India and others, AIR 1970 SC 150. This Court held

that the aim of the rules of natural justice is to

secure justice or to put it negatively to prevent

miscarriage of justice. The concept of natural justice

has undergone a great deal of change in recent years.

Initially recognised as consisting of two principles

that is no one shall be a judge in his own cause and

no decision shall be given against a party without

affording him a reasonable hearing, various other

facets have been recognised. In paragraph 20 following

has been held:

“20. The aim of the rules of natural

justice is to secure justice or to put it

negatively to prevent miscarriage of

justice. These rules can operate only in

areas not covered by any law validly made.

In other words they do not supplant the law

of the land but supplement it. The concept

of natural justice has undergone a great

deal of change in recent years. In the past

it was thought that it included just two

rules namely (1) no one shall be a judge in

his own case (Nemo debet esse judex propria

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causa) and (2) no decision shall be given

against a party without affording him a

reasonable hearing (audi alteram

partem).Very soon thereafter a third rule

was envisaged and that 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, 2010 (2) SCC 772, this Court had laid

down that inquiry officer is a quasi-judicial

authority, he has to act as independent adjudicator

and he is 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 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.

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30. When a departmental 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 inquiry

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.”

27.When the statutory rule does not contemplate

appointment of Presenting Officer whether

non-appointment of Presenting Officer ipso facto

vitiates the inquiry? We have noticed the statutory

provision of Rule 27 which does not indicate that

there is any statutory requirement of appointment of

Presenting Officer in the disciplinary inquiry. It is

thus clear that statutory provision does not mandate

appointment of Presenting Officer. When the statutory

provision does not require appointment of Presenting

Officer whether there can be any circumstances where

principles of natural justice can be held to be

violated is the broad question which needs to be

answered in this case. We have noticed above that the

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High Court found breach of principles of natural

justice in Inquiry Officer acting as the prosecutor

against the respondents. The Inquiry Officer who has

to be independent and not representative of the

disciplinary authority if starts acting in any other

capacity and proceed to act in a manner as if he is

interested in eliciting evidence to punish an

employee, the principle of bias comes into place.

28.Justice M. Rama Jois of the Karnataka High Court

had occasion to consider the above aspect in Bharath

Electronics Ltd. vs. K. Kasi, ILR 1987 Karnataka 366.

In the above case the order of domestic inquiry was

challenged before the Labour and Industrial Tribunal.

The grounds taken were, that inquiry is vitiated since

Presenting Officer was not appointed and further

Inquiry Officer played the role of prosecutor. This

Court held that there is no legal compulsion that

Presenting Officer should be appointed but if the

Inquiry Officer plays the role of Presenting Officer,

the inquiry would be invalid. Following was held in

paragraphs 8 and 9:

“8. One other ground on which the domestic

inquiry was held invalid was that

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Presenting Officer was not appointed. This

view of the Tribunal is also patently

untenable. There is no legal compulsion

that Presenting Officer should be

appointed. Therefore, the mere fact that

the Presenting Officer was not appointed is

no ground to set aside the inquiry See :

Gopalakrishna Reddy v. State of Karnataka

(ILR 1980 Kar 575). It is true that in the

absence of Presenting Officer if the

Inquiring Authority plays the role of the

Presenting Officer, the inquiry would be

invalid and this aspect arises out of the

next point raised for the petitioner, which

I shall consider immediately hereafter.

9. The third ground on which the Industrial

Tribunal held that the domestic inquiry was

invalid was that the Inquiry Officer had

played the role of the Presenting Officer.

The relevant part of the findings reads :

"The Learned Counsel for the workman

further contended that the questions put

by the Enquiry Officer to the Management's

witnesses themselves suggest that he was

biased and prejudiced against the workman.

There has been no explanation as to why no

Presenting Officer was appointed and as to

why the Enquiry Officer took upon himself

the burden of putting questions to the

Management witnesses. The enquiry

proceedings 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 way of explanation, but from

their nature an inference arises that they

are directed to fill in the lacuna. The

Learned Counsel for the Management

contended that the Enquiry Officer has

followed the principles of natural justice

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and that the domestic enquiry is quite

valid. I am of the view that the fact that

the Enquiry Officer has himself taken up

the role of the Presenting Officer for the

management goes to the root of the matter

and vitiates the enquiry,"

As far as position in law is concerned, it

is common ground that if the Inquiring

Authority plays the role of a Prosecutor

and cross-examines defence witnesses or

puts leading questions to the prosecution

witnesses clearly exposing a biased state

of mind, the inquiry would be opposed to

principles of natural justice. But the

question for consideration in this case

is : Whether the Inquiry Officer did so ?

It is also settled law that an Inquiring

Authority is entitled to put questions to

the witnesses for clarification wherever it

becomes necessary and so long the

delinquent employee is permitted to

cross-examine the witnesses after the

Inquiring Authority questions the

witnesses, the inquiry proceedings cannot

be impeached as unfair. See : Munchandani

Electric and Radio Industries Ltd. v. Their

Workman.”

29.This Court had occasion to observe in Workmen of

Lambabari Tea Estate vs. Lambabari Tea Estate, 1966

(2) LLJ 315, that if Inquiry Officer did not keep his

function as Inquiry Officer but becomes prosecutor,

the inquiry is vitiated. Following was observed:

“The inquiry which was held by the

management on the first charge was presided

over by the manager himself. It was

conducted in the presence of the assistant

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manager and two others. The enquiry was not

correct in its procedure. The manager

recorded the statements, cross-examined the

labourers who were the offenders and made

and recorded his own statements on facts

and questioned the offending labourers

about the truth of his own statements

recorded by himself. The manager did not

keep his function as the enquiring officer

distinct but became witness, prosecutor and

manager in turns. The record of the enquiry

as a result is staccato and

unsatisfactory.”

30.A Division Bench of the Madhya Pradesh High Court

speaking through Justice R.V. Raveendran, CJ (as he

then was) had occasion to consider the question of

vitiation of the inquiry when the Inquiry Officer

starts himself acting as prosecutor in Union of India

and ors. vs. Mohd. Naseem Siddiqui, ILR (2004) MP

821. In the above case the Court considered Rule 9(9)

(c) of the Railway Servants (Discipline & Appeal)

Rules, 1968. The Division Bench while elaborating

fundamental principles of natural justice enumerated

the seven well recognised facets in paragraph 7 of the

judgment which is to the following effect:

“7. One of the fundamental principles of

natural justice is that no man shall be a

judge in his own cause. This principle

consists of seven well recognised facets:

(i) The adjudicator shall be impartial and

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free from bias, (ii) The adjudicator shall

not be the prosecutor, (iii) The

complainant shall not be an adjudicator,

(iv) A witness cannot be the Adjudicator,

(v) The Adjudicator must not import his

personal knowledge of the facts of the case

while inquiring into charges, (vi) The

Adjudicator shall not decide on the

dictates of his Superiors or others, (vii)

The Adjudicator shall decide the issue with

reference to material on record and not

reference to extraneous material or on

extraneous considerations. If any one of

these fundamental rules is breached, the

inquiry will be vitiated.”

31.The Division Bench further held that where the

Inquiry Officer acts as Presenting Officer, bias can

be presumed. In paragraph 9 is as follows:

“9. A domestic inquiry must be held by an

unbiased person who is unconnected with the

incident so that he can be impartial and

objective in deciding the subject matters

of inquiry. He should have an open mind

till the inquiry is completed and should

neither act with bias nor give an

impression of bias. Where the Inquiry

Officer acts as the Presenting Officer,

bias can be presumed. At all events, it

clearly gives an impression of bias. An

Inquiry Officer is in position of a Judge

or Adjudicator. The Presenting Officer is

in the position of a Prosecutor. If the

Inquiry Officer acts as a Presenting

Officer, then it would amount to Judge

acting as the prosecutor. When the Inquiry

Officer conducts the examination-in- chief

of the prosecution witnesses and leads them

through the facts so as to present the case

of the disciplinary authority against the

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employee or cross- examines the delinquent

employee or his witnesses to establish the

case of the employer/disciplinary authority

evidently, the Inquiry Officer cannot be

said to have an open mind. The very fact

that he presents the case of the employer

and supports the case of the employer is

sufficient to hold that the Inquiry Officer

does not have an open mind.”

32.The Division Bench after elaborately considering

the issue summarised 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 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. Non- appointment 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

28

delinquent employee to cross-examine

such witnesses on those clarifications.

(iv) If the Inquiry Officer conducts a

regular examination-in-chief 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.”

33.We fully endorse the principles as enumerated

above, however, the principles have to be carefully

29

applied in facts situation of a particular case. There

is no requirement of appointment of Presenting Officer

in each and every case, whether statutory rules enable

the authorities to make an appointment or are silent.

When the statutory rules are silent with regard to the

applicability of any facet of principles of natural

justice the applicability of principles of natural

justice which are not specifically excluded in the

statutory scheme are not prohibited. When there is no

express exclusion of particular principle of natural

justice, the said principle shall be applicable in a

given case to advance the cause of justice. In this

context reference is made of a case of this Court in

Punjab National Bank and others vs. Kunj Behari

Misra, 1998 (7) SCC 84. In the above case, this Court

had occasion to consider the provisions of Punjab

National Bank Officer Employees’ (Discipline and

Appeal) Regulations, 1977. Regulation 7 provides for

action on the enquiry report. Regulation 7 as

extracted in paragraph 10 of the judgment is as

follows:

30

“7. Action on the enquiry report. —(1) The

disciplinary authority, if it is not itself

the enquiring authority, may, for reasons

to be recorded by it in writing, remit the

case to the enquiring authority for fresh

or further enquiry and report and the

enquiring authority shall thereupon proceed

to hold the further enquiry according to

the provisions of Regulation 6 as far as

may be.

(2) The disciplinary authority shall, if

it disagrees with the findings of the

enquiring authority on any article of

charge, record its reasons for such

disagreement and record its own findings on

such charge, if the evidence on record is

sufficient for the purpose.

(3) If the disciplinary authority, having

regard to its findings on all or any of the

articles of charge, is of the opinion that

any of the penalties specified in

Regulation 4 should be imposed on the

officer employee, it shall, notwithstanding

anything contained in Regulation 8, make an

order imposing such penalty.

(4) If the disciplinary authority having

regard to its findings on all or any of the

articles of charge, is of the opinion that

no penalty is called for, it may pass an

order exonerating the officer employee

concerned.”

34.The question which was debated before this Court

was that since Regulation 7(2) does not contain any

provision for giving an opportunity to the delinquent

officer to represent before disciplinary authority who

31

reverses the findings which were in favour of the

delinquent employee, the rules of natural justice are

not applicable. This Court held that principle of

natural justice has to be read in Regulation 7(2) even

though rule does not specifically require hearing of

delinquent officer. In paragraph 19 following was

held:

“19. The result of the aforesaid

discussion would be that the principles of

natural justice have to be read into

Regulation 7(2). As a result thereof,

whenever the disciplinary authority

disagrees with the enquiry authority on any

article of charge, then before it records

its own findings on such charge, it must

record its tentative reasons for such

disagreement and give to the delinquent

officer an opportunity to represent before

it records its findings. The report of the

enquiry officer containing its findings

will have to be conveyed and the delinquent

officer will have an opportunity to

persuade the disciplinary authority to

accept the favourable conclusion of the

enquiry officer. The principles of natural

justice, as we have already observed,

require the authority which has to take a

final decision and can impose a penalty, to

give an opportunity to the officer charged

of misconduct to file a representation

before the disciplinary authority records

its findings on the charges framed against

the officer.”

32

35.Thus, the question as to whether Inquiry Officer

who is supposed to act independently in an inquiry has

acted as prosecutor or not is a question of fact which

has to be decided on the facts and proceedings of

particular case. In the present case we have noticed

that the High Court had summoned the entire inquiry

proceedings and after perusing the proceedings the

High Court came to the conclusion that Inquiry Officer

himself led the examination in chief of the

prosecution witness by putting questions. The High

Court further held that the Inquiry Officer acted

himself as prosecutor and Judge in the said

disciplinary enquiry. The above conclusion of the High

Court has already been noticed from paragraphs 9 and

10 of the judgment of the High court giving rise to

Civil Appeal No.2608 of 2012.

36.The High Court having come to the conclusion that

Inquiry Officer has acted as prosecutor also, the

capacity of independent adjudicator was lost which

adversely affecting his independent role of

adjudicator. In the circumstances, the principle of

bias shall come into play and the High Court was right

33

in setting aside the dismissal orders by giving

liberty to the appellants to proceed with inquiry

afresh. We make it clear that our observations as

made above are in the facts of the present cases.

37.In result, all the appeals are dismissed subject

to the liberty as granted by the High Court that it

shall be open for the appellants to proceed with the

inquiry afresh from the stage as directed by the High

Court and it shall be open for the appellant to decide

on arrear pay and allowances of the respondents.

.....................J.

( ADARSH KUMAR GOEL )

.....................J.

( ASHOK BHUSHAN )

NEW DELHI,

JULY 02, 2018.