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Delhi High CourtIndian Cases

Inspector/Exe. Vinod Gill vs Union Of India (Uoi) And Ors. on 31 August 2006

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Delhi High Court
Inspector/Exe. Vinod Gill vs Union Of India (Uoi) And Ors. on 31 August, 2006
Author: Swatanter Kumar
Bench: Swatanter Kumar, G.S. Sistani
JUDGMENT

Swatanter Kumar, J.

1. The petitioner was enrolled as a Head Constable in the Central Industrial Security Force on 1st January, 1991. According to the petitioner, he served with due diligence, sincerity and to the satisfaction of all concerned and was promoted to the rank of Inspector. While he was posted at CISF Unit, CPT Kolkata, an enquiry was ordered against the petitioner under Rule 36 of the CISF Rules, 2001 (hereinafter referred to as the Rules) by the Commandant of the Unit on 27th March, 2003. During the pendency of the enquiry, the petitioner resumed his duties and was deputed to undergo Reorientation Course for ex-sports personnel. Consequently, the petitioner was unable to participate in the departmental enquiry, which was started by the Inquiry Officer on 30th June, 2003. The Inquiry Officer submitted his report to the Disciplinary Authority after conducting exparte proceedings despite the fact that petitioner was on official duty. However, the Disciplinary Authority remitted the case to the Inquiry Officer to conduct fresh enquiry after giving reasonable opportunity to the petitioner to defend himself. The Inquiry Officer again concluded the enquiry proceedings and held the petitioner guilty of article of charges levelled against him. The Inquiry Officer submitted his report to the Disciplinary Authority on 27th May, 2004. The Disciplinary Authority supplied a copy of the enquiry report to the petitioner, giving him an opportunity to submit a representation against the findings of the Inquiry Officer. The Petitioner did submit his representation against the findings of the Inquiry Officer with the contention that reason for overstayal from leave was due to his inability to report back being a victim of circumstances. According to the petitioner, he was undergoing treatment with doctors and it was not possible for him to seek approval of the authorities prior to his recovery. This representation was submitted by the petitioner on 1st July, 2004. When the matter was pending with the Disciplinary Authority for taking a final decision on the report of the Inquiry Officer, the petitioner on 28th September, 2004 was transferred from CISF Unit CPT Kolkata to CISF Unit BSHEP Surangini. The records relating to the enquiry were also transferred to the Deputy Inspector General, North Zone for taking final decision in the matter, which, according to the petitioner, was in violation of Rule 32 of the Rules. Vide order dated 15th December, 2004, the Deputy Inspector General, North Zone awarded a penalty of reduction of lowest stage from Rs.7300/- to Rs.6500/- in the time scale of pay for a period of two years with immediate effect. It was further directed that petitioner will not earn any increments of pay during the period of reduction and on expiry of that period, reduction will have effect in postponing future increments of pay. With regard to regularisation of overstayal period from 19th December, 2002 to 30th June, 2003 (194 days), it was proposed that the same would be debited against half pay leave with loss of salary in terms of Rule 25 of CCS (Leave) Rules, 1972. Against this order, the petitioner preferred a statutory appeal to the concerned appellate authority on 12th January, 2005. The appellate authority vide its order dated 28th June, 2005, without really discussing the merits of the appeal, had set aside the order of penalty and directed de-novo enquiry from the stage of appointing of Enquiry Officer by the Disciplinary Authority. In furtherance to this order of the appellate authority, the Inquiry Officer informed the petitioner on 22nd July, 2005 that he would be conducting the de-novo enquiry into the charges levelled against the petitioner. The petitioner in this writ petition challenges these actions of the respondents being arbitrary, violative of rules, principles of natural justice and without jurisdiction.

2. In their counter affidavit, the respondents have raised preliminary objection that the writ petition is gross misuse of process of law and Courts and should be dismissed on that ground alone. It is stated that an appeal also lies against the order of the Deputy Inspector General to Inspector General, against the order of Inspector General to the Director General and against the order of the Director General to the Central Government and as such the present writ petition is premature. Efficacious alternative remedy is available to the petitioner in law. On merits, the facts are hardly disputed. However, it is stated that re-appreciation of evidence is not within the domain of this Court as the matter relating to analysis of evidence is within the domain of the Inquiry Officer. The present case is not one in which the principles of unreasonableness is attracted. Reliance has been placed upon the judgment of this Court in the case of Shakti Singh v. Union of India and Ors. 2002 VII AD (Delhi) 529. According to the respondents under Rule 52 of the Rules, order of fresh enquiry can be made and this is fundamental principle of administrative law that an order for conducting de-novo enquiry can be passed by the competent authority. The proceedings are neither violative of rules nor principles of natural justice. The petitioner had overstayed the leave without prior permission or sanction of competent authority. Thus, his conduct tantamounts to gross-misconduct and dereliction of duties as he is a member of a disciplined force. It is also not disputed that the records have been transferred to Deputy Inspector General, North Zone to take action and final decision upon the disciplinary proceedings relating to the petitioner. It is also not disputed that the appellate authority in exercise of powers vested under Rule 52 of the Rules, without going into the merit of the case, had set aside the final order dated 15th December, 2004 without prejudice to the passing of fresh order after conducting of de-novo enquiry from the stage of appointing the Inquiry Officer by the Disciplinary Authority. According to the respondents, the petitioner has not placed any document on record to show that he had taken first aid treatment from any hospital nearer to Nehru Stadium before taking regular treatment from Primary Health Centre, Mehrauli. There is no justification in the plea of the petitioner that he could not inform any unit or competent authority. The letter of the petitioner dated 10th April, 2003 wherein he had again requested for extension of leave on the ground that he fell ill all of a sudden on the night of 15th December, 2002 and had been taking treatment from local doctor of MCD Dispensary was also an afterthought and in contradiction to the different stands taken by the petitioner. In these circumstances, the respondents submit for dismissal of this writ petition.

3. From the above narration of facts, it is clear that the main issue in the writ petition revolves around the correctness and legality of the appellate authority’s order dated 28th June, 2005 directing de-novo enquiry. The relevant and material part of the impugned order reads as under:

04. Upon having examined the relevant records held on the case file vis-à-vis the pleas put forth by the petitioner in his Appeal petition, I find that the appellant was issued charge sheet under Rule-36 of CISF Rules 2001. The IG/NES Kolkata appointed Shri B.K. Pattanayak, Asstt. Comdt. as Enquiry Officer vide order dated 27.06.03, who completed the enquiry and submitted his findings on 27.05.04. On receipt of enquiry report, IG/NES, Kolkata forwarded a copy of enquiry report to the individual on 29.06.04 to submit his representation against the enquiry report, which the individual submitted on 01.07.04 to the IG/NES Kolkata. In the meantime, the individual was posted to CISF Unit, BSP Suragani and the case files were transferred to DIG/NZ for passing final order. In the instant case, the IG has acted as Disciplinary authority by appointing the E.O. and served a copy of enquiry report, and thereafter DIG has passed the final order, which is a procedural infirmity as the DIG is the appropriate Disciplinary Authority in this case and the case should have been dealt with by the DIG, being Disciplinary Authority.

05. In view of the above procedural infirmity, I in exercise of powers vested under Rule 52 of CISF Rules 2001, without going into the merit of the case, set aside the final order dated 15.12.04 without prejudice to the passing of fresh order, after conducting a DE-NOVO enquiry from the stage of appointing of Enquiry Officer by the Disciplinary Authority.

06. The receipt of the order be acknowledged.

Sd/-

(A.R. Kini) Inspector General/NS

4. In furtherance to the above order, the Inquiry Officer had also issued a notice to all concerned including the petitioner intimating them about re-enquiry into the article of charges. The Opening part of the notice reads as under:

The undersigned has been appointed as Inquiry Officer vide DIG/NZ Saket New Delhi Order No. V-15014/CISF/NZ/Disc/2004-5271 dated 12.7.2005 and SI/Exe Nikka Ram of CISF Unit SJVNL Jhakri has been appointed as Presenting Officer to re-enquire into the charges leveled against CISF No. 914510075 Insp./Exe. Vinod Gill of CISF Unit BSP Chamba under Rule-36 of CISF Rule – 2001 vide Charge Memorandum No. V-25016(1)/Disc/DP/CPT/VG/2003-2111 dated 27.03.2003.
5. Admittedly, the punishment was awarded to the petitioner by the DIG, North Zone vide order dated 15.12.2004. Against this order, the petitioner had preferred an appeal in terms of Rule 46 of the Rules and the same was disposed of by Inspector General, NS vide order dated 28.6.2005. It is clear from the record that the Inquiry Officer was appointed by IG, NES Kolkata vide order dated 27.6.2003. Thereafter, all the proceedings had taken place and Enquiry Report was submitted to DIG, who passed the order of punishment. There is and there cannot be any dispute to the fact that the DIG would be the disciplinary authority for passing appropriate order in the case of petitioner in accordance with law. The passing of the order by the authority higher than the disciplinary authority specified under the Rules would not vitiate the proceedings particularly when the authorities had acted bona fide. To that extent, the appellate authority was correct but there was no occasion for the authority to direct de-novo enquiry. The appellate authority has failed to exercise jurisdiction rightly vested in it. What is the ground for holding a de-novo enquiry is again not clear from the impugned order. The disciplinary authority had agreed with the findings of the Inquiry Officer and had imposed punishment upon the petitioner. The appellate authority was expected to exercise its powers under Rule 52 read with Rule 36 of the Rules. The order directing de-novo enquiry does not appear to be sustainable in law and on the facts of the present case.

6. Llearned Counsel appearing for the respondents while relying upon the judgment of the Supreme Court in the case of Anand Narain Shukla v. State of Madhya Pradesh contended that propriety of second enquiry, where first enquiry was vitiated owing to a technical defect, would not be vitiated. Firstly this judgment has no application on the facts of the present case. The appellate authority has not pointed out even a single ground on the basis of which it could be said that the enquiry was vitiated for technical defects. Secondly, in that case, the Supreme Court was concerned with the question whether order of reversion once quashed by the High Court and after the delinquent was reinstated, second order of reversion passed after holding a second enquiry on the same charges could be made in the facts of that case. In that case there was no order of the administrative authority/disciplinary authority directing de-novo enquiry. On the contrary on the language of the order of the High Court, the Supreme Court came to the conclusion that fresh enquiry could be held and their Lordships found that the judgment in the case of State of Assam v. J.N. Roy Biswas was not applicable to that case. In the present case, parties have referred to and relied upon Rule 52 (2)(c)(i) of the Rules read with Rule 36 (21)(i). According to the respondents, the appellant authority can pass an order directing de-novo enquiry while according to the petitioner, within the ambit and scope of these rules, the appellate authority is not vested with any power/jurisdiction to direct de-novo enquiry particularly when the disciplinary authority had accepted the recommendations of the Inquiry Officer, passed speaking order and imposed punishment on the petitioner. Rule 52 (2) (c) of the Rules prescribes the powers of the appellate authority while deciding an appeal specified under Rule 34, which reads as under:

52 (2)(c) whether the penalty or the enhanced penalty imposed is excessive, or adequate, or inadequate and pass orders –
(i) confirming, enhancing, reducing or setting aside the penalty; or
(ii) remitting the case to the authority which imposed or enhanced the penalty, or to any other authority with such directions it may deem fit in the circumstances of the case:
Provided that –
(i) If such enhanced penalty which the appellate authority proposes to impose is one of the penalties specified in Clauses (i) to (v) of Rule 34 and an inquiry under Rule 36 has not already been held in the case, the appellate authority shall, subject to the provisions of Rule 39, itself hold such an inquiry or direct that such inquiry be held in accordance with Rule 36 and thereafter on a consideration of the proceedings of such inquiry make such orders as it may deem fit; and
(ii) If the enhanced penalty which the appellate authority proposes to impose is one of the penalties specified in Clauses (i) to (v) of Rule 34 and an inquiry under Rule 36 has already been held in the case, the appellate authority shall make such orders as it may deem fit.
7. It is argued that the above provisions vest very wide powers in the appellate authority and the appellate authority can and has, thus, passed order directing de-novo enquiry.

8. We have already discussed that in the impugned order of the appellate authority, no reason whatsoever has been stated for directing a de-novo enquiry. Further we are of the considered view that no jurisdiction is vested in the appellate authority even upon the liberal construction of the above provisions to direct de-novo enquiry, particularly in the manner in which it has been done. To keep the disciplinary action against delinquent official within the prescribed limitation of law and rules, holding of fresh enquiry on same article of charges where the enquiry has already been held twice over and there is concurrence between the disciplinary authority and the enquiry officer, it would not be normally permissible to hold de-novo enquiry. The concept of de-novo enquiry is the effect of completely wiping out the earlier enquiry as a whole. Unless rules specifically permit and there are circumstances justifying invoking of such powers, the de-novo enquiry cannot be permitted.

9. The Supreme Court in the case of K.R. Deb v. Collector of Central Excise, Shillong 1971 suppl. SCR Page 375 while examining the provisions of Rule 15 of the Classification and Control Rules relating to disciplinary action held as under:

It seems to us that Rule 15, on the face of it, really provides for one inquiry but it may be possible if in a particular case there has been no proper enquiry because some serious defect has crept into the inquiry or some important witnesses were not available at the time of the inquiry or were not examined for some other reason, the Disciplinary Authority may ask the Inquiry Officer to record further evidence. But there is no provision in Rule 15 for completely setting aside previous inquiries on the ground that the report of the Inquiring Officer or Officers does not appeal to the Disciplinary Authority. The Disciplinary Authority has enough powers to reconsider the evidence itself and come to its own conclusion under Rule 9.
In our view the rules do not contemplate an action such as was taken by the Collector on February 13, 1962. It seems to us that the Collector, instead of taking responsibility himself, was determined to get some officer to report against the appellant. The procedure adopted was not only not warranted by the rules but was harassing to the appellant.
10. In the case of State of Punjab and Anr. v. Harjinder Singh 1999 (2) Punjab Law Reporter 569, the Court was concerned with order of the authorities directing denovo enquiry in furtherance to Rule 9 of the Punjab Civil Services ( Punishment and appeal) Rules, 1970, which is quite similar to the provisions cited by the authorities in the present case. While referring to Rule 9(1), the Court held as under:

8. The language of Rule 9 (1) is not suggestive that the disciplinary authority is vested with the jurisdiction of direct denovo enquiry and rendering the previously held enquiry as ineffective. The power vested in the authority is limited for further enquiry and report. This authority cannot be enlarged if the rule making authority opted to limit the powers of the disciplinary authority where it has intention and it records reasons for remittance of the case to the enquiry officer. In this regard reference can bemade to the judgment of the Hon’ble Supreme Court in the case of K.R. Deb v. The Collector of Central Excise, Shillong , where the Court was connected with somewhat similar rules governing the conditions of service of the petitioner in that case. It was held as under:
It seems to us that Rule 15, on the face of it, really provides for one inquiry but it may be possible if in a particular case there has been no proper enquiry because some serious defect has crept into the inquiry or some important witnesses were not available at the time of the inquiry or were not examined for some other reason, the Disciplinary Authority may ask the Inquiry Officer to record further evidence. But there is no provision in rule 15 for completely setting aside previous inquiries on the ground that the report of the Inquiring Officer or Officers does not appeal to the Disciplinary Authority. The Disciplinary Authority has enough powers to reconsider the evidence itself and come to its own conclusion under Rule 9.
9. I do not wish to discuss this point further because factually the controversy does not give rise to the issue of jurisdiction of the disciplinary authority. It is an admitted position that the enquiry officer submitted his report on 3.11.1987 he found the plaintiff guilty of two charges and one charge was stated to be not proved against the plaintiff. On this report the disciplinary authority vide its order dated 3.5.1988 ordered fresh enquiry to be conducted by an other enquiry officer. It is conceded that Rule 8 of 1970 Rules does not give such power and the disciplinary authority had to act within the scope of Rule 9(1) above reproduced.
11. Still in Another case titled as ASI Sukhbir Kumar v. State of Punjab and Ors. CW No. 3094/99 decided on 5th December, 2002,the Punjab & Haryana High Court was concerned with the interpretation of Rule 16.28 of the Punjab PoliceRules and the Court held as under:

The bare reading of Rule 16.28 of the Rules does not contemplate a denovo enquiry but it vests the competent authority with ample powers of directing further investigation or enquiry into the matter before passing of a final order. The charges against the petitioner, who is a police officer, are of such nature which cannot be over-looked. There is a definite charge of eve-teasing Ms. Anita Kumari against a police officer and then he unauthorisedly absented himself. It is strange that as per respondents, the investigating officer pursuing the matter before the Sub Divisional Magistrate’s Court under Section 107/151 Cr.P.C. Did not appear to substantiate the allegations which resulted into acquittal of the petitioner. In exercise of powers under Article 226 of the Constitution of India, the Court is bound to take note of attendant circumstances of the case rather than exercise its equitable power in favor of a person who has been charged for offending basic discipline and faith in a police officer placed by the public at large.
It is a settled principle of law that unless the rule specifically empowers the concerned authorities, they cannot order denovo enquiry. The learned Counsel for the petitioner while relying upon a judgment of Single Bench of this Court in the case of Charan Singh v. The State of Punjab and Ors. 1996 (4) SLR 731 contended that the D.I.G. Could not have ordered denovo enquiry merely because he did not like the enquiry. We are afraid the facts and circumstances of Charan Singh’s case were totally different and have no application to the facts of the present case. The police officer involved of eve-teasing cannot escape liability of indiscipline merely because the Sub Divisional Magistrate happens to acquit/discharged the said officer. In the present case, the D.I.G. Applied his mind vide order dated 11.11.1998 and specially found that the enquiry has not been conducted in accordance with rules and instructions of the department. It is stated in the order that the enquiry officer has tried to hush-up the matter in furtherance to which the following summary of allegations was served upon the petitioner:
You, ASI Sukhbir Kumar No. 2849/W were temporarily posted on Metal Detector duty on 15.7.97 at Bus Stand, Pathankot. There was a quarrel with you on the issue of teasing one Anita Kumari, D/o Sh. Harbans Lal, student of I.I.T. Pathankot, and a case under Section 107/151 Cr.P.C. was registered against you in P.S. Division No. 1, Pathankot. You were placed under suspension through T.P.M. No. 162/SPT dated 17.7.97. Thereafter you proceeded on 3 days leave duly sanctioned by S.D.O./Gurdaspur and you were due back on 21.7.97 F.N. You did not report back and absented. You were directed through Message No. 788/S.K. Dated 28.7.97 to report back through local police but you did not come back. You reported for duty on your own on 11.8.97 after remaining absent for 21 days at Ferozepur. You being a responsible officer, your act of teasing a girl and remaining absent is condemnable and against discipline.
The above charges were part of two different charge-sheets served upon the petitioner on an earlier occasion. Mere fact that they have been clubbed together caused no prejudice to the petitioner in our opinion.
The department may not be empowered to conduct a denovo enquiry, but the competent authority could certainly direct further investigation and enquiry into the matter before a final order was passed. No order as yet has been passed either by the disciplinary or any higher authority dropping the charges against the petitioner or exonerating him from the charge-sheet. The departmental proceedings do not culminate with submission of the enquiry report. It is only final order passed by the competent authority that puts an end to the disciplinary enquiry under the rules. It is not even disputed before us that the D.I.G. Who issued the order dated 9.11.1998 has no power to issue such an order. Once power of the D.I.G. Is conceded, rest are matters of consequences.
12. Even in the case of G.S. Malhotra v. Punjab National Bank and Ors. CWP No. 6428/2002 decided on 16th July, 2002) similar view was taken by the Punjab & Haryana High Court. In that case, according to the petitioner, the appellate authority under proviso (i) of Regulation 17 could direct for fresh and further enquiry but could not direct denovo enquiry. While interpreting the said provisions, the Court held that authorities had no power to direct denovo enquiry but it could, while keeping in view the gravity of charges and violation of rules or technical defects in the departmental enquiry, direct further and complete enquiry.

13. Reverting back to the facts of the present case in light of the above annunciated principles it is clear that the order of the appellate authority to direct denovo enquiry can hardly stand in judicial scrutiny as it is neither justifiable in law nor on the facts of the present case. In fact the same is even ex-facie without jurisdiction. The provisions of Rule 52 (2) (c) empower the authority to remit the case to the authority, which imposed punishment and pass such directions as it may deem fit in the facts and circumstances of the case. Obviously for remittance of the case, there has to be proper reasons or grounds and it cannot be passed at the mere discretion of the appellate authority in an arbitrary manner. The order of the appellate authority is without any reason or justification and cannot be sustained. The preliminary objection raised by the respondents to the very maintainability of the present petition on the ground of availability of alternative remedy is also without any force. No doubt an appeal lies under Rule 46 to the authorities specified in the note (ii) under Rule 46(2) where any penalty has been imposed upon the delinquent. An appeal thus lies from the order of the punishing authority to a higher authority i.e. against the order of DIG to IG, against the order of IG to Director General and against the order of Director General to the Central Government.

14. Llearned Counsel appearing for the respondents has completely overlooked the mandate of Rule 46 (3), which clearly states that there shall be no second appeal except when the appellate authority imposes the penalty higher than the one appealed against. Thus, there is bar to the maintainability of the departmental second appeal unless and until it fall within the exceptions spelled out in the provision. The objection, thus, deserves to be rejected.

15. The disciplinary authority and for that matter even the appellate authority must have sufficient reasons even if it wishes to direct further or fresh enquiry. Until and unless there are circumstances, which affects prejudicially the rights of the parties and there is apparent violation of rules and principles of natural justice, there can hardly be any occasion for the authorities to direct further or fresh enquiry. The authorities are expected to act objectively and with due application of mind. No exceptions as stated by the Supreme Court in the case of Union of India v. P. Thayagarajan have been made out in the present case.

16. For the reasons aforestated, we set aside the order of the appellate authority dated 28th June, 2005 and direct the appellate authority to hear the appeal of the appellant on merits and decide the same in accordance with law. However, in the facts and circumstances of the present case, the parties are left to bear their own costs.