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Judgment
This petition filed under Article 226 of the Constitution takes exception to the order of punishment dated 13.4.2015 whereby a punishment of dismissal from service was inflicted on the petitioner. Petitioner is also aggrieved by the appellate orders dated 9.7.2015 and 28.10.2015 Annexure P/3 and Annexure P/1, respectively, whereby his regular appeal as well mercy appeal were rejected by the department.
Learned counsel for the petitioner submits that petitioner was served with a charge-sheet dated 1.8.2014 Annexure P/7. The petitioner filed his reply Annexure P/8 dated 25.8.2014. The disciplinary authority appointed an inquiry officer. The Inquiry Officer after conducting the inquiry, prepared his report dated 23.3.2015 Annexure P/9. Thereafter, the petitioner was punished by aforesaid impugned order and he challenged the said orders unsuccessfully by preferring appeal and mercy appeal.
The learned counsel for the petitioner has attacked the disciplinary proceeding on following counts:-
(i) The Inquiry Officer has cross-examined the delinquent employee because of which inquiry is vitiated in the light of recent judgment of Supreme Court reported in 2018 (7) SCC 670;
(ii) Disciplinary authority has imposed more than one punishment on the basis of single charge-sheet;
(iii) The Disciplinary authority has taken into account the past misconduct while passing the punishment order whereas in the charge-sheet, there was no mention/allegations relating to past record of the petitioner;
(iv) The defence assistant was not provided by the inquiry officer in the inquiry;
(v) Punishment order is harsh/disproportionate.
To elaborate, the learned counsel for the petitioner has placed reliance on question No.1 to question No.5 reproduced in the inquiry report. On the strength of these questions, it is urged that the petitioner was cross-examined by the inquiry officer. Thus, he acted as a prosecutor rather than a judge. This ground is sufficient to vitiate the entire inquiry. It is further argued that it was the duty of inquiry officer to ask the petitioner whether he wants to engage a defence assistant in the domestic inquiry. In absence of any such action on the part of the inquiry officer, inquiry is polluted. The punishment is excessive whereby petitioner a young citizen of India with whom a lenient view should have been taken, is subjected to a extreme punishment.
Per contra, Shri Puneet Shroti, learned Panel Lawyer supported the impugned order and contended that the main allegation against the petitioner is that he suppressed the material information in his attestation form (clause 12) wherein he was required to apprise the department whether he is facing any prosecution. Learned Panel Lawyer submits that Clause 12 is wide enough which covers a series of eventualities which were required to be answered by the candidate. The petitioner categorically stated that no eventuality mentioned in Clause 12(ka) is applicable by mentioning "no". Shri Shroti submits that FIR was lodged on 11.5.2009. Attestation form was filled up by the petitioner on 23.2.2011 and the criminal court passed its judgment on 9.7.2014. During trial, the petitioner being an accused participated in the proceeding and therefore by no stretch of imagination, his argument can be accepted that he did not have knowledge about the pendency of a criminal case against him. Shri Shroti submits that there is no such procedural impropriety or violation of principles of natural justice in this case which warrants interference by this Court. He further urged that punishment is commensurate to the misconduct which does not require interference. In support of aforesaid submissions, reliance is placed on 2013 (9) SCC 363 (Devendra Kumar vs. State of Uttaranchal and others) and 2018 (2) MPLJ 419(FB) (Ashutosh Pawar vs. High Court of M.P. and another).
I have bestowed our anxious consideration on rival contentions and perused the record.
As to point (i) and (iv)
These two points are related with decision making process adopted by inquiry officer in the instant case. This is trite law that even if there exists some procedural infirmity in conducting the departmental enquiry, the delinquent employees has to show the prejudice caused to him by such infirmity in the inquiry. In the present case, the first charge against the petitioner is that on 5.1.2011, he submitted candidature for the post of Constable but suppressed the fact of pendency of a criminal case. Pertinently, in reply, the petitioner categorically submitted that offences under Section 147, 148, 149, 294, 323 and 506 IPC were registered against him and six other persons. The police filed challan in the Court of Law. Thus, it is clear that the applicant has admitted the fact in the reply that a criminal case arising out of Crime No.48/2009 was pending against him. He also specifically admitted in the reply that he did not furnish the information about pendency of said criminal case. Interestingly, his explanation is that since he was falsely implicated and aforesaid offences were not related with moral turpitude; and, it was a case relating to simple assault etc. he did not disclose this fact in the attestation form. The relevant portion of petitioner's reply needs reproduction-
"mijksDr vkjksiksa ds laca/k esa esjk izfrmRRj fuEukuqlkj gS %& vkjksi dzekad &1
;g fd f'kdk;rdrkZ deys'k dqekj ''kekZ gekjs ifjokj dk gh lnL; gS ,oa buds lkFk dkQh le; ls gekjk ikfjokfjd fook n @tehu tk;nkn dk fookn py jgk gS A bl fookn esa viuk i{k etcwr djus rFkk ge ij ncko Mkyus ds fy;s f'kdk;rdrkZ deys'k dqekj ''kekZ us fnukad 11-05-2009 dks gs.Miai ij mlds lkFk ekjihV djus dh f'kdk;r Fkkuk iuokj ftyk&jhok esa dh x;h Fkh A ftl ij ls Fkkuk iuokj esa vijk/k dzekad 48@09 /kkjk 147]148]149]294]323]506 vkbZih lh dk izdj.k esjs rFkk vU; 6 O;fDr;ksa ds fo:) iathc) fd;k x;k Fkk A pWwfd ,Q-vkbZ-vkj- ntZ gqbZ Fkh] vr% iqfyl us ,sus&dsu izdkjs.k ge yksxks ds fo:) izdj.k cukdj U;k;ky; esa pkyku is'k dj fn;k A gkykfd Qfj;knh deys'k dqekj vHkh Hkh U;k;ky; esa is'k gksdj gekjs fo:) xokgh ugha fn;k gS A tgkW rd fd U;k;ky; esa mifLFkr mifLFkr gksus ds fy, mlds fo:) okjaV Hkh tkjh fd,s x;s gS fdUrq og U;k;ky; esa mifLFkr ugha gqvk A pwwWfd og tkurk Fkk fd mlus gesa >wBk Qalk;k gSs blfy;s mlds ikl dksbZ lcwr gh ugha Fks A ekuuh; U;kf;d eftLV¦ªsV] izFke Js.kh R;ksFkj ftyk jhok esa Hkh fnukad 09-07-14 dks vkns'k ikfjr dj lHkh vkjksfi;ksa dks ckbTtr cjh dj fn;k gS A U;k;ky; ds fu.kZ; dh izfr layXu gS A pwWfd f'kdk;rdrkZ us gesa ikfjokfjd fookno'k jft'ku Qlk;k Fkk A ekeyk ekjihV dk crk;k x;k Fkk blesa dksbZ uSfrd va/kkiru dk ekeyk ugha Fkk A ;g ekeyk u gh dksbZ xcu ;k 420 dk Fkk A lk/kkj.k ekjihV dk ekeyk Fkk A Qfj;knh Hkh U;k;ky; esa mifLFkr ugha gks jgk Fkk A blfy;s >WwBk ,oa lk/kkj.k ekeyk le>dj izkFkhZ us bl ckr dh tkudkjh vkosnu&i=]
''kiFk&i=] vFkok vuqizek.ku QkeZ esa ugh anh A izkFkhZ bldh xaHkhjrk dks le>rk gh ugha Fkk D;ksafd izkFkhZ igyh ckj ''kkldh; lsok esa vk;k Fkk A
vusdksa yskx vkilh jaft'kol dbZ yksxksa dh >wBh f'kdk;r Fkkus esa dj nsrs gS& ysfdu >wBh ekjihV dh f'kdk;r ij ,lk xaHkhj ekeyk cusxk izkFkhZ us ,slk lkspk Hkh ugha Fkk A U;k;ky; usa Hkh izkFkhZ ,oa vU; lHkh vkjksfi;ksa dks ckbTTr cjh dj fn;k gS A
The learned counsel for petition on a specific query from the Bench argued that Q. No.(v) asked by inquiry officer has vitiated the inquiry. Question No.(v) and its answer reads as under:
"iz'u dzeakd 5- iqfyl lsok esa HkrhZ gsrq vkosnu i= ds dkye dzz0 16 esa D;k vkids Åij dksbZ vijk/k iathc) gqvk gS ;k vki fdlh vkijkf/kd izdj.k esa fxjQ~rkj fd, x, gSa ;fn gka rks iw.kZ fooj.k fy[ks blh izdkj vuqizek.ku QkeZ ifjf'""V ,d ds dkye dz0 12 ds dkye ,d esa vijk/k@vkjksi ¼ugha½ nksuks esa iqfyl Fkkus esa iathc) ¼ugha½ ;fn U;k;ky; esa pkyku izLrqr fd;k x;k gks rks U;k;ky; dk uke ¼ugha½ mijksDr lHkh dkyeksa esa Fkkuk iuokj ftyk jhok esa vijk/k dz0@48@2009 iathc) Fkk A vr% vkius HkrhZ vkosnu i= ,oa vuqizek.ku QkeZ ds mDr dkyeksa esa ¼ugha½ esa A vlR; tkudkjh D;ksa nh Fkh A
mRrj%& th eSus HkrhZ gksus ds iwoZ Fkkuk iuokj ftyk jhok esa tkdj tkudkjh yh Fkh Fkkuk iuokj }kjk eq>s crk;k x;k Fkk fd vkids fo:) Fkkuk iuokj ftyk jhok esa dksbZ Hkh vkijkf/kd] izdj.k iathc) ugh gS mUgksus eq>s crk;k Fkk fd vkids fo:") ,d QthZ vkosnu i= izkIr gqvk gS vr% Fkkuk iuokj }kjk nh xbZ tkudkjh ds vk/kkj ij mDr dkyeksa dh tkudkjh eSaus ugha esa nh Fkh A"
A Division Bench of this Court in 2005 (1) LLJ 931 (Union of India vs. Mohd. Naseem Siddiqui) summarized the principles relating to cross- examination by inquiry officer and effect of non-appointment of presenting officer. Relevant paras read as under:
"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 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."
The principle aforesaid laid down by this Court is recently approved by Supreme Court in 2018 (7) SCC 670 (Union of India vs. Ram Lakhan Sharma). If the present case is tested on the anvil of aforesaid principles, it will be crystal clear that inquiry officer has not asked any leading question to the petitioner nor has taken the petitioner through prosecution case in a manner it can be said that he has acted as a prosecutor. It is clearly held that the inquiry officer can put question to elicit the truth and in the present case in my opinion, he has done the same. Thus, I am unable to hold that inquiry is vitiated on this count. The reply to the charge-sheet given by petitioner leaves no room for any doubt that petitioner has admitted this fact that he has not disclosed the fact of submission of attestation form by suppressing about the details of pending criminal case. Thus, no prejudice is caused to the petitioner if inquiry officer has asked the aforesaid question in order to elicit the truth. For the same reason, if inquiry officer has not specifically asked the petitioner to appoint defence assistant, inquiry has not been vitiated. No prejudice is caused to the petitioner due to non-appointment of defence assistant.
Point No. (ii), (iii) & (v)
The disciplinary authority imposed the punishment of dismissal for two allegations. In the considered opinion of this Court, the first charge itself is sufficient to dismiss the petitioner from service. The petitioner, a member of a disciplined police force, cannot be permitted to remain in employment when he has deliberately suppressed the material fact and has given incorrect information in the attestation form. See Kendriya Vidhyalaya Sangathan vs. Ram Ratan Yadav, (2003) 3 SCC 437. If punishment order can sustain even if one charge is proved, no useful purpose would be served in examining the punishment order in the background of other charges which were also held to be proved. Apart from this, even if it is held that disciplinary authority should not have taken into account the past record of the petitioner, in the instant case, it will not make any material difference to the punishment order because it has already held that even if first charge is proved, it is enough to oust the petitioner from employment. This aspect was considered by this Court in W.P. No.5277/2009 (Rajendra Singh vs. State of M.P. and others) on the basis of certain Supreme Court judgments. The relevant para reads as under:
"Thus, the question is whether because of a partial illegality whereby Disciplinary Authority has taken into account the past conduct of petitioner, entire punishment order can be set aside. This aspect is no more res integra. In AIR 1963 SC 779 (State of Orissa & Ors. vs. Bidyabhushan) a five judges Bench held as under:-
"The reasonable opportunity contemplated by Article 311 (2) has manifestly to be in accordance with the rules framed under Art. 309 of the Constitution. But the Court in a case in which an order of dismissal of a public servant is impugned, is not concerned to decide whether the sentence imposed, provided it is justified by the rules, is appropriate having regard to the gravity of the misdemeanour established. The reasons which induce the punishing authority, if there has been an enquiry consistent with the prescribed rules are not justiciable: nor is the penalty open to review by the Court. If the order of dismissal may be supported on any finding as to substantial misdemeanour for which the punishment can lawfully be imposed, it is not for the Court to consider whether that ground alone would have weighed with the authority in dismissing the public servant. The Court has no jurisdiction if the findings of the enquiry officer or the Tribunal Prima facie make out a case of misdemeanour, to direct the authority to reconsider that order because in respect of some of the findings but not all it appears that there had been violation of the rules of natural justice. "
(Emphasis supplied)
This doctrine of severability of charges was again considered by Supreme Court in AIR 1967 SC 1353 (The State Of Maharashtra & Anr vs B. K. Takkamore & Ors ), it was held that an administrative or quasi-judicial order based on several grounds, all taken together, cannot be sustained if it be found that some of the grounds are non-existent or irrelevant, and there is nothing show that the authority would have passed the order on the basis of the other relevant and existing grounds. On the other hand, an order based on several grounds some of which are found to be nonexistent or irrelevant, can be sustained if the court is satisfied that the authority would have passed the order on the basis of the other relevant and existing grounds, and the exclusion of the irrelevant or non-existent grounds could not have affected the ultimate opinion or decision.
It was further held the fact that "the first ground mentioned in the order is now found not to exist and is irrelevant, does not affect the order. We are reasonably certain that the State Government would have passed the order on the basis of the second ground alone. The order is, therefore, valid and cannot be set aside."
In the light of aforesaid, this court is unable to hold that punishment is shockingly disproportionate/harsh. Thus, these points are also decided against the petitioner.
In view of foregoing analysis, it cannot be said that decision making process adopted by the respondents is vitiated and punishment is shockingly disproportionate. Thus, I find no reason to interfere in this matter.
Petition sans substance and is hereby dismissed.