Khagendra Barik vs Union of India

Sanjib Banerjee, J.—The petitioner is a constable with the Central Reserve Police Force. The challenge here is to an order of February 22, 2016 by which the petitioner has been dismissed from service.

The order dated February 22, 2016 was passed apparently in compliance with an order of this court of July 8, 2015.

By the order of July 8, 2015, this court considered the petitioner''s challenge to a previous order of dismissal. Such previous petition, W.P. 14804 (W) of 2009, complained that though the inquiry officer found that the charges against the petitioner had not been proved, the disciplinary authority disagreed with the findings and after giving notice to the delinquent that the disciplinary authority disagreed with the findings of the inquiry officer, the disciplinary authority relied on a preliminary inquiry report to hold that the charges against the petitioner had been established and his misconduct warranted his dismissal from service.

It is not necessary to revisit what has already been decided by the order of July 8, 2015, particularly since no appeal was carried therefrom by either side. The essence of that order was that a preliminary inquiry report prepared in accordance with the rules at a stage prior to the issuance of the charge-sheet and whereat the delinquent had no an opportunity of participation, could not, subsequently, be made the only basis for finding the charges levelled in the charge-sheet to have been established.

It is indispensable, almost in every case, that some form of preliminary inquiry is conducted, whether formally under any rules or otherwise, before a charge-sheet is issued to a perceived delinquent. If no such preliminary inquiry is conducted, every complaint or report of alleged misconduct would result in a charge-sheet being issued and, in many cases, employees being needlessly harassed. Where, however, the rules governing the employment call for a preliminary inquiry, all that is legally required to be achieved thereby is a prima facie finding as to whether the acts complained of would amount to misconduct and such misconduct may have been committed. Such preliminary inquiry is only for the purpose of assessing whether a charge-sheet should be issued or a disciplinary action should be initiated against the concerned employee and, ordinarily, such preliminary inquiry does not involve the participation of the perceived delinquent.

Theoretically, it is possible, notwithstanding a preliminary inquiry report, that upon the charge-sheet being issued to the delinquent, his reply thereto satisfies the disciplinary authority to close the matter. However, where, upon receipt of the delinquent''s reply to the charge-sheet, the disciplinary authority decides to pursue the disciplinary action by engaging an inquiry officer to inquire into the charges levelled, the preliminary inquiry report obtained prior to the issuance of the charge-sheet may not be used as conclusive evidence, though it may be relied upon by affording the delinquent an opportunity of questioning the veracity thereof, including by cross-examining the author of the preliminary inquiry report or the persons whose versions may have been given credence in such preliminary inquiry report. In other words, in course of the regular inquiry conducted in a disciplinary action, the preliminary inquiry report has limited value and its worth is subject to its acceptance by the delinquent.

On appreciating the fact that the disciplinary authority overturned the findings of the inquiry officer merely on the basis of the preliminary inquiry report which remained unsubstantiated, the previous order of July 8, 2015 was passed and the order of punishment originally passed against the petitioner was set aside. The operative part of the order dated July 8, 2015 provided as follows:

"For the reasons aforesaid, the impugned order is set aside meaning thereby that the enquiry report must be revisited by the Disciplinary Authority. The writ petition succeeds."

The "enquiry report" referred to in the operative part of the order implied the inquiry report rendered by the inquiry officer engaged by the disciplinary authority after the initiation of the disciplinary proceedings. Without intending to go into the details of such inquiry report, it appears that the inquiry officer sought to rely on the preliminary inquiry report; but several persons, whose apparent statements formed the bedrock of the preliminary inquiry report, dissociated themselves from the statements attributed to them in the preliminary report; and the inquiry officer found that, in such circumstances, the charges had not been established against the delinquent.

There were several courses of action available to the disciplinary authority upon receipt of the inquiry report. He may have accepted the findings and closed the matter; or, he may have accepted some of the findings and disagreed with the others, whereupon he was obliged to issue notice to the delinquent informing the delinquent of the extent of his disagreement with the inquiry report and calling upon the delinquent to satisfy him in such regard; or, as the disciplinary authority did in this case, completely disagree with the inquiry report and call for a reply from the delinquent.

Whether it is the inquiry officer or the disciplinary authority, the rules as to reliance on the preliminary inquiry report would not be different. If the inquiry officer cannot mechanically rely on the pre-charge-sheet preliminary inquiry report without its independent corroboration in course of the inquiry, the disciplinary authority is equally precluded from relying on the findings of a preliminary inquiry report without independent corroboration of the charges in course of the disciplinary action. It is not open to the disciplinary authority to rely completely on the preliminary inquiry report unless the tentative findings of the preliminary inquiry report are established on the test of preponderance of probabilities upon the participation of the delinquent in such process.

In such circumstances, it was not open to the disciplinary authority to read the expression "must be revisited" in the order dated July 8, 2015 to imply that the disciplinary authority had unbridled jurisdiction to merely look at the preliminary inquiry report and decide the matter afresh. The power of the disciplinary authority stood circumscribed by the circumstances and the disciplinary authority could not have used the said expression in the order of July 8, 2015 to imply that he could take another go at the petitioner merely on the basis of the preliminary inquiry report.

In any event, the order impugned dated February 22, 2016 is liable to be set aside on a much more fundamental ground of the breach of the principles of natural justice since the petitioner was not given a further opportunity to disabuse the disciplinary authority of his predisposition in the matter.

Accordingly, W.P. 6930 (W) of 2016 is allowed by setting aside the order impugned dated February 22, 2016 and by leaving the disciplinary authority to continue with the disciplinary proceedings, if he is so advised, but to begin the disciplinary action from the commencement of the inquiry stage, if he decides to pursue it.

In view of the order of dismissal from service being set aside, the petitioner will be reinstated and allowed to join service and enjoy the benefits thereof as he would be entitled under the order dated July 8, 2015 as if the order dated February 22, 2016 had not been passed.

There will be no order as to costs.

Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance of the requisite formalities.