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Judgment
Per: Justice Gurpal Singh Ahluwalia
Heard on I.A. No. 14697/2025. This is an application under Section 5 of Limitation Act for condonation of delay of 543 days.
Application is hopelessly worded. Appellants have not pointed out any sufficient cause for condonation of delay.
Accordingly, this Court is of considered opinion that delay cannot be condoned.
Since no sufficient cause has been shown for condonation of delay, accordingly, I.A. No. 14697/2025 is rejected .
However, in order to clarify certain misconceptions in the mind of appellants, this Court think it appropriate that apart from dismissing this appeal as barred by time, certain clarification are also required. Therefore, for the purposes of clarification, we would like to consider the facts of the case.
This writ appeal under Section 2 (1) of Madhya Pradesh Uchcha Nyayalaya (Khand Nyayapeeth ko Appeal) Adhiniyam, 2005 has been filed against the order dated 06.03.2024 passed by learned Single Judge in W.P. No. 4150/2008.
Since the controversy involved in the present case revolves in a very narrow compass, therefore, detailed discussion of the factual matrix of the case is not required.
It is submitted by counsel for appellants that earlier, there was no provision in Police Regulation regarding appointment of Presenting Officer, and accordingly, Enquiry Officer used to act as Presenting Officer also. However, provision of appointment of Presenting Officer was incorporated in Police Regulation in the year 2010. Since the enquiry in question was conducted prior to year 2010, therefore, non-appointment of Presenting Officer would not have made the enquiry report as well as departmental enquiry vulnerable. It is next contended by counsel for appellants that even if it is presumed that in all cases, Presenting Officer should be other than the Enquiry Officer, but in a case where Enquiry Officer had not acted as the prosecutor, then such enquiry report can be upheld. To buttress his contention, counsel for appellants relied upon the judgment passed by the Supreme Court in the case of Union of India and others Vs. Ram Lakhan Sharma, reported in (2018) 7 SCC 670 .
Per contra, appeal is vehemently opposed by counsel for respondent. It is submitted that whether there is any provision for appointment of Presenting Officer or not, still principles of natural justice are embodied in every quasi-judicial proceeding. It is further submitted that a complainant cannot be the judge of his own cause, and relied upon the Latin Maxim Nemo judex in causa sua. It is further submitted that learned Single Judge has given a specific finding in paragraph 14 of the order under challenge that, Enquiry Office had acted as a prosecutor by extensively cross-examining the respondent, and thus, findings recorded by learned Single Judge do not call for any interference.
Heard learned counsel for parties.
Learned Single Judge, in para 14 of the order under challenge, has given a finding that Enquiry Officer himself examined the prosecution as well as defence witnesses and concluded that charges are proved against the respondent. It was also held that upon perusal of enquiry report, it was found that Enquiry Officer had exhaustively examined the respondent.
If appellants were of the view that aforesaid findings recorded by learned Single Judge are dehors the record, then they could have produced the copy of deposition sheet of witnesses or entire departmental enquiry proceedings to show that Enquiry Officer had not acted as prosecutor. However, the record of departmental proceedings has not been placed before this Court. Atleast appellants could have filed copy of deposition sheets to show that to what extent Enquiry Officer had acted. It is well established principle of law that if certain questions are put by the Enquiry Officer for seeking clarification, then it would not be appropriate for the Court to say that he has acted as prosecutor, but if the Enquiry Officer acts as prosecutor, then it would be suffice to mention that no one can be a judge of his own cause.
Whether the Enquiry Officer had acted as prosecutor or not could have been proved by appellants/State by producing deposition sheets. However, even after suffering adverse remarks from the Writ Court, they decided not to file the deposition sheets along with this memo of appeal. It is well established principle of law that if a party, who is in possession of the best evidence, decides to withhold the same, then adverse inference can be drawn.
Under these circumstances, in view of the fact that in spite of suffering a finding that Enquiry Officer had acted as prosecutor, appellants have decided not to place copy of deposition sheets on record, it is clear that findings recorded by learned Single Judge are in accordance with law.
So far as submission made by counsel for appellants that since the enquiry was conducted prior to year 2010 and at that time, there was no provision of appointment of Presenting Officer is concerned, this Court is of considered opinion that this question is no more res integra. The Supreme Court in the case of Ram Lakhan Sharma (supra) has held as under:
"23.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 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.
24.The disciplinary proceedings are quasi-judicial proceedings and the Enquiry Officer is in the position of an independent adjudicator and is obliged to act fairly, impartially. The authority exercising quasi-judicial power has to act in good faith without bias, in a fair and impartial manner.
25.Rules of natural justice have been recognised and developed as principles of administrative law. Natural justice has many facets. All its facets are steps to ensure justice and fair play. This Court in Suresh Koshy George v. University of Kerala [Suresh Koshy George v. University of Kerala, AIR 1969 SC 198] had occasion to consider the principles of natural justice in the context of a case where disciplinary action was taken against a student who was alleged to have adopted malpractice in the examination. In para 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 the Tribunal and the rules under which it functions. The following was held in paras 7 and 8: (AIR p. 201)
“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 Russell v. Duke of Norfolk [Russell v. Duke of Norfolk, (1949) 1 All ER 109 (CA)] , Tucker, L.J. observed: (All ER p. 118 D-F)
‘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 person concerned should have a reasonable opportunity of presenting his case.’ ”
26.A Constitution Bench of this Court has elaborately considered and explained the principles of natural justice in A.K. Kraipak v. Union of India [A.K. Kraipak v. Union of India, (1969) 2 SCC 262 : 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 para 20 the following has been held: (SCC p. 272)
“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 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. …”
27.In State of U.P. v. Saroj Kumar Sinha [State of U.P. v. Saroj Kumar Sinha, (2010) 2 SCC 772 : (2010) 1 SCC (L&S) 675] , this Court had laid down that Enquiry Officer is a quasi-judicial authority, he has to act as an independent adjudicator and he is not a representative of the department/disciplinary authority/Government. In paras 28 and 30 the following has been held: (SCC p. 782)
“28.An Enquiry 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. * * *
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 Enquiry 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.”
28.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 High Court found breach of principles of natural justice in Enquiry Officer acting as the prosecutor against the respondents. The Enquiry Officer who has to be independent and not representative of the disciplinary authority if starts acting in any other capacity and proceeds to act in a manner as if he is interested in eliciting evidence to punish an employee, the principle of bias comes into place.
29.M. Rama Jois, J. of the Karnataka High Court had occasion to consider the above aspect in Bharath Electronics Ltd. v. K. Kasi [Bharath Electronics Ltd. v. K. Kasi, 1986 SCC OnLine Kar 30 : ILR 1987 KAR 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 Enquiry Officer played the role of prosecutor. This Court held that there is no legal compulsion that Presenting Officer should be appointed but if the Enquiry Officer plays the role of Presenting Officer, the inquiry would be invalid. The following was held in paras 8 and 9: (SCC OnLine Kar)
“8.One other ground on which the domestic inquiry was held invalid was that 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 Raju v. State of Karnataka [Gopalakrishna Raju v. State of Karnataka, 1980 SCC OnLine Kar 18 : 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 Enquiry Officer had played the role of the Presenting Officer. The relevant part of the findings read:
‘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's 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 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 the 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 Enquiry 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 Mulchandani Electrical and Radio Industries Ltd. v. Workmen [Mulchandani Electrical and Radio Industries Ltd. v. Workmen, (1975) 4 SCC 731 : 1975 SCC (L&S) 429] .)”
30.This Court had occasion to observe in Workmen v. Lambabari Tea Estate [Workmen v. Lambabari Tea Estate, (1966) 12 FLR 361 : (1966) 2 LLJ 315 (SC)] , that if the Enquiry Officer did not keep his function as Enquiry Officer but becomes prosecutor, the inquiry is vitiated. The following was observed: (FLR p. 362)
“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 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.”
A Division Bench of the Madhya Pradesh High Court speaking through R.V. Raveendran, C.J. (as he then was) had occasion to consider the question of vitiation of the inquiry when the Enquiry Officer starts himself acting as prosecutor in Union of India v. Mohd. Naseem Siddiqui [Union of India v. Mohd. Naseem Siddiqui, ILR 2004 MP 821] . In the above case the Court considered Rule 9(9)(c) of the Railway Servants (Discipline and Appeal) Rules, 1968. The Division Bench while elaborating fundamental principles of natural justice enumerated the seven well-recognised facets in para 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 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.”
The Division Bench further held that where the Enquiry Officer acts as Presenting Officer, bias can be presumed. Para 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 Enquiry Officer acts as the Presenting Officer, bias can be presumed. At all events, it clearly gives an impression of bias. An Enquiry Officer is in position of a judge or adjudicator. The Presenting Officer is in the position of a prosecutor. If the Enquiry Officer acts as a Presenting Officer, then it would amount to Judge acting as the prosecutor. When the Enquiry 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 employee or cross-examines the delinquent employee or his witnesses to establish the case of the employer/disciplinary authority evidently, the Enquiry 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 Enquiry Officer does not have an open mind.”"
Although counsel for appellants tried to insist upon paragraph 32 of the judgment passed in the case of Ram Lakhan Sharma (supra), but this Court is of considered opinion that said paragraph has to be read in that particular context. In the previous paragraph, the Supreme Court has held that whether or not there is a statutory provision, principles of natural justice are embodied in it. However, by way of exception, it was observed that if the Enquiry Officer had not acted as prosecutor and had merely sought certain clarification from delinquent officer, then it cannot be said that he had exceeded his jurisdiction.
Basic law is that the purity of departmental enquiry and independence of Enquiry Officer should be maintained. Once it was found that Enquiry Officer himself was an instrument and was examining and cross-examining the prosecution witnesses as well as delinquent officers, then it cannot be said that enquiry conducted by said Enquiry Officer was in accordance with law.
Since I.A. No. 14697/2025 has already been rejected, therefore, this appeal is dismissed as barred by time.