IN THE GAUHATI HIGH COURT
(The High Court of Assam, Nagaland, Meghalaya,
Manipur, Tripura, Mizoram & Arunachal Pradesh)
IMPHAL BENCH
WRIT PETITION (CIVIL) NO.297 OF 2002
Shri Mutum Shantikumar Singh
S/o M. Jugindro Singh of Tronglaobi Awang Leikai
P.,O. and P.S. Moirang, District Bishenpur, Manipur. . . . . . . PETITIONER
- VERSUS –
1.The Union of India through the Secretary,
Ministry of Home Affairs, Govt. of India, New Delhi.
2.The Inspector General of Police, C.R.P.F.
M/N Sector CRPF, Govt. of India, Imphal, Manipur.
3. The Dy. Inspector General of Police, C.R.P.F.
Govt. of India, Imphal, Manipur.
4. The Commandant, 27th Bn. CRPF,
Govt. of India, Sibsager Assam. . . . . . . . RESPONDENTS
PRESENT
THE HON’BLE MR. JUSTICE T. NANDAKUMAR SINGH
For the Petitioner :: Mr. Kh. Tarunkumar Singh,Adv.
For the respondents :: Mr.N. Ibotombi, CGSC
Date of hearing :: 20.01.2005
Date of judgment and order :: 08.02.2005 2
JUDGMENT AND ORDER
1. It is the bounden duty of the concerned authority to act judiciously wherever the Rule of natural justice is applicable. No doubt, the Rule of natural justice is applicable to the departmental proceedings against a Government employee. Therefore, there is insistence upon the department of "fair hearing" in the departmental proceedings against a Government employee. No doubt, whenever, the Government of the concerned authority in the departmental enquiry acted in fragnant prejudice of the rule of natural justice and fair play, the said departmental proceeding is liable to be quashed. It may, here, be recalled that Lord Diplock in the Council of Social Service Union v. Minister for the Civil Services stated that "judicial review, as I think, development to a stage to-day when, without reiterating any analysis of the stage of which development has come about, one can conveniently classify under three heads: the grounds on which the administrative action is subject to control by judicial review. The first ground I would call "illegality", the second ground "irrationality" and third ground "procedural propriety". That is not to say that further development on a case in case basis in course or time add further grounds. I have in my mind particularly possible adoption in the future of the principle "proportionality" which is recognised in the administrative law of several of our fellow members of the European Economic Community". The Apex Court in Sugarbai M. Siddiq and Ors. v. Ramesh S. Hankare (Dead) by LRs. Held that "the court is concerned not with the decision but will the decision-making process."
2. Heard Mr. Kh. Tarunkumar Singh learned counsel for the petitioner as well as Mr. N Ibotombi Singh, learned CGSC for the respondents.
3. In the above accepted principle of law, this writ petition is required to be discussed and disposed of. A short factual matrix will suffice for the decision of the present writ petition. The writ petitioner was appointed as Constable (General Duty) at the Group Centre ; C.R.P.F. Langjing, Imphal, Manipur in the month of January 1994 and he was posted at various places within the territory of India. While he was posted at Sibsagar, Assam, there was an unfortunate incident on 3.4.2000 at Sabji Mandi Market Sibsagar, Assam. For that incident the writ petitioner was placed under suspension in contemplation of a disciplinary proceeding vide order of Commandant being No. P. VIII 2/2000-27-EC-II dated 13.4.2000. Thereafter the Commandant 27BN. C.R.P.F issued a memorandum dated 18.4.2000 for holding a departmental enquiry against the petitioner and two articles of charge were framed against him. The said two articles of charge are quoted hereunder.
ARTICLE-I
"That, the said No. 901003697 CT/GD N. Daimary of D/27 Coy, CRPF, No. 940270123 CT/Dvr K.H. and Brojen Singh of HQ/27 Bn, CRPF and No. 941150344 CT/GD M. Shanti Kumar of F/27 Bn., CRPF, while functioning as Constable/Constable (Driver) during the period April 2000 committed an act of Gross misconduct in their capacity as member of the force under Section 11(1) of CRPF Act, 1949 in that they left the lines (STF Camp, Dak Bungalow) and proceeded to station Charalie and Sabji Mandi Market, Sibsagar without obtaining any permission from competent authority, which is unbecoming of a ember of force and against good order and discipline of force.
ARTICLE-II
That the said No. 90100467 CT/GD N. Daimary of D/27 Bn. CRPF, No. 940270123 CR/Cvr K.H. Brojen Singh of HQ/27 Bn, CRPF, and No. 941150344 CT/GDM M. Shantikumar of F/27 Bn, CRPF, while functioning as Constable/Constable (Driver) during the period April 2000 committed an offence of indiscipline/misconduct in their capacity as member of the force under Section 11(1) CRPF Act, 1949, in that, they left the lines (STF Camp, Dak Bungalow) and proceeded to station Charalie and consumed liquer and created nuisance with local Civilians resulting into fight nearby Sabji Mandi Market, Sibsagar, which is unbecoming of a member of the force and against the good order and discipline of force.
4. The enquiry officer, after holding the disciplinary proceedings for the said two articles of charge against the petitioner, submitted a report to the effect that the said two articles of charge were proved partially . The Commandant, 27BN, C.R.P.F, issued the impugned order being No. P/VIII-10/2000-27-EC-II dated 30.8.2000 basing on the said report of the enquiry officer for dismissing the petitioner from service (Annexure-A/7 to the writ petition). The petitioner being aggrieved by the said dismissal order dated 30.8.2000 (Annexure-A/7 to the writ petition) filed an appeal on 27.9.2000 before the Deputy Inspector General of Police (Admn.). C.R.P.F., Group Centre, Langjing, Imphal, Manipur. The D.I.G.P. (Admn.), C.R.P.F., Imphal, Manipur also dismissed the said appeal by passing an order dated 8.11.2000 (Annexure-A/9 to the writ petition). The revision petition filed by the petitioner against the dismissal order dated 30.8.2004 (Annexure-A/7 to the writ petition) and the said order of the D.I.G.P. (Admn.). C.R.P.F. Imphal, Manipur dated 8.11.2000 (Annexure A/9 to the writ petition) also had been rejected by the I.G.P., C.R.P.F., Imphal, Manipur vide his order being No. R.XIII-l/2001-Admn-1/1852 dated 12.2.2001 (Annexure A/11 to the writ petition). It is an admitted fact of both the parties that no presenting officer was appointed in the said disciplinary proceedings initiated against the petitioner and the enquiry officer proceeded the said disciplinary proceedings without presenting officer against the writ petitioner. The only main thrust of the writ petitioner in the writ petition is that because of the non-appointment of the presenting officer in the said departmental enquiry against him, principle of natural justice and fair play had been violated in holding the disciplinary proceedings against him and as a result thereof the proceedings of the disciplinary proceedings is liable to be quashed on that score only. In this regard the leaned counsel appearing for the respondents submits that there is no question of violation of natural justice the writ petitioner inasmuch as the said disciplinary proceeding was held in compliance with the Rule 27 of C.R.P.F Rules, 1955. The relevant portions of Rule 27 is quoted hereunder:
27. *****
(c) The procedure for conducting a departmental enquiry shall be as follows:
(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 hours 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 present of the accused:
(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) Aaccused shall then be examined and his statement recorded by officer conducting enquiry. If accused has pleaded guilty and does not challenge the evidence on record, the proceedings shall be closed for orders. The 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 case be not less than a fortnight, as officer conducting enquiry may deem reasonable in circumstances of case. If he declines to file a written statement he shall again be examined by officer conducting the enquiry on expiry 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 documents 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 orders, where he has power to do so.
11[(7)][***]
(cc) Notwithstanding anything contained in this rule:
(i) where any penalty is imposed on a member of the Force on the ground of conduct which has led to his conviction on a criminal charge ; or
(ii) where the authority competent to impose the penalty is satisfied for reasons to be recorded by it in writing that it is not reasonably practicable to hold an enquiry in the manner provided in these rules ; or
(iii) where the Director-General is satisfied that in the interest of security of the State, it is not expedient to hold any enquiry in the manner provided in these rules, the authority competent to impose the penalty may consider the circumstances of the case and make such orders thereon as it deems fit.
5. From bare perusal of Rule 27 of C.R.P.F. Rules, 1955, it is clear that Rule 27 does not bar competent authority from appointing a presenting officer in disciplinary proceedings for holding same in a fair manner in compliance with requirement of principle of natural justice, principle of which, are being discussed in following paras, & Rule 27 is completely silent about appointment or non-appointment of presenting officer in disciplinary proceedings.
6. Apex Court (Constitution Bench) had discussed scope & object of natural justice and its applicability to administrative enquiry in A. K Kraipak and Ors. v. Union of India & Ors., held that aim of 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 land but supplement it. Para 20 (of AIR) in A.K. Kraipak (supra) is quoted hereunder:
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 year. In the past it was thought that it include just two rules, namely (1) no one shall be a judge in his own cause (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. But in the course of years many more subsidiary rules came to be added to the rules of natural justice. Till very recently it was the opinion of the courts that unless the authority concerned was required by the law under which it functioned to act judicially there was no room for the application of the rules of natural justice. The validity of that limitation is not questioned. If purpose of the rules of natural justice is to prevent miscarriage of justice one fails to see why those rules should be made inapplicable to administrative enquiries. Often times it is not easy to draw the line that demarcates administrative enquiries from quasi-judicial enquiries. Enquiries which were considered administrative at one time are now being considered as quasi-judicial in character. Arriving at a just decision is the aim of both quasi-judicial enquiries as well as administrative enquiries. An unjust decision in an administrative enquiry may have more far reaching effect than a decision in a quasi-judicial enquiry. As observed by this Court in Suresh Koshy Georege v. University of Kerala, Civil Appeal No. 990 of 1968, dt. 15.7.1968 the rules of natural justice are not embodied rules. What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, frame work of law, under which the enquiry is held and the constitution of Tribunal or body of persons appointed for that purpose. Whenever a complaint is made before a court that some principle of natural justice had been contravened court has to decide whether observance of that rule was necessary for a just decision on facts of that case.
7. Apex Court in Punjab National Bank and Ors. v. Kunj Behari Mishra reported in (1998) 7 SCC 8 I had observed applicability of principles of natural justice in departmental enquiry and held that principles of natural justice have to be read into regulation 7(2) (Punjab National Bank Officer Employee's (Discipline and Appeal) Regulations, 1977, though it is silent on this aspect. Para 19 (of SCC) in PNB & Others (supra) is quoted hereunder:
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 reason for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of enquiry officer containing its findings will have to be conveyed and delinquent officer will have an opportunity to persuade disciplinary authority to accept the favourable conclusion of the enquiry officer. The principles of natural justice, as we have already observed, require authority which has to take a final decision and can impose a penalty, give an opportunity to officer charged of misconduct to file a representation before disciplinary authority records its findings on charges framed against officer.
8. Apex Court in State Govt. Houseless Harijan Employees' Association v. State of Karnataka and Ors., reported in (2001) 1 SCC 610 took similar view that " requirements of natural justice will be read into statutory provisions unless excluded expressly or by necessary implication". Paras 27 and 28 (of SCC) in State Govt. Houseless Harijan Employees' Assn. (supra) are quoted hereunder:
27. This Court has consistently held that the requirements of natural justice will be read into statutory provisions unless excluded expressly or by necessary implication.
28. In the case of Union of India v. Co. J.N. Sinha this court said (SCC p. 461, para 8):
It is true that if a statutory provision can be read consistently with the principles of natural justice, courts should do so because it must be presumed that Legislatures & statutory authorities intent to act in accord- ance with principles of natural justice. But if on other hand a statutory provision either specifically or by necessary implication excludes application of any or all principles of natural justice then court can’t ignore mandate of Legislature or 'statutory authority & read into provision concerned principles of natural justice.
9. The Apex Court in Kumaon Mandal Vikas Nigam Ltd. v. Girija Shankar Pant and Ors., reported in (2001) 1 SCC 182 held that the object of the doctrine of natural justice is not only to secure justice but to prevent miscarriage of justice. Doctrine of natural justice is incapable of exact definition. However, it is synonymous with fairness. Compliance or non-compliance therewith has to be examined on the totality of facts and circumstances in each. In Kumaon Mandal Vikas Nigam Ltd. (of SCC) (supra), the Apex Court held that there is violation of the principles of natural justice in the departmental enquiry because of non-appointment of presenting officer. The relevant portion of para 22 (of SCC) in Kumaon Mandal Vikas Nigam Ltd. (supra) is quoted hereunder:
22. The 65 page report has been sent to the M.D. of Nigam against petitioner recording therein that the charges against him stand proved what is basis? Was enquiry officer justified in coming to such a conclusion on basis of charge sheet only? The answer cannot possibly be in the affirmative, if records have been considered, the immediate necessity would be to consider as to who is the person who produced has same & next issue could be as regards nature of the records unfortunately there is not a whisper in rather longish report in that regard. Where is presenting officer? Where is notice fixing date of hearing? Where is list of witnesses? What has happened to the defence witnesses? All these questions arise but unfortunately no answer is to be found in the rather longish report. But if one does not have it-can it be termed to be in consonance with the concept of justice or the same tantamount to a total miscarriage of justice.
10. This court in Chelfremog v. State of Tripura and Ors. reported in (2000) 2 GLT 604 and Baharul Islam (CT) v. Union of India and Ors. reported in 2001 (1) GLT 62 I held that in the departmental proceedings where no presenting officer was appointed, the enquiry officer has assumed role of Judge as well as prosecution inasmuch as in the absence of presenting officer, the enquiry officer must examine the witnesses and exhibited documents. This will be a total violation of the rules and fundamental principles of natural justice. Therefore, the procedures adopted by the enquiry officer in holding the departmental enquiry does not fulfil the requirement of fair proceeding in conducting enquiry against the delinquent. In such circumstances "reasonable opportunity of being heard" as emphasise in A. 31(2) of Constitution of India had been denied to concerned government employee (delinquent). The similar view is also taken by this court (Division Bench) in Pt. Rajyamalla Buzarbaruah v. Assam Administrative Tribunal, and Ors. reported (1983) 1 GLR (NOC) 71. The Apex Court in Dr. Rash Lal Yadav v. State of Bihar and Ors. held that concept of natural justice is not a static one by is an ever expanding concept. In initial stages it was thought that it had only two elements, namely (i) no one shall be a judge in his own cause, and (ii) no one shall be condemned unheard. With passage of time a third element was introduced, namely, of procedural reasonableness because main objective of requirement of rule of natural justice is to promote justice and prevent its miscarriage. What emerges from the above discussion is that unless the law expressly or by necessary implication excludes application of the rule of natural justice courts will read the said requirement in enactments that are silent and insist on its application even in cases of administrative action having civil consequences.
11. From above discussions, I am of considered view that for complying with rule of natural justice and fair procedures, appointment of presenting officer is a must in a disciplinary proceedings against a C.R.P.F. Constable & Rule 27 of C.R.P.F. Rules, 1955 by expressly or necessary implication does not exclude application of rule of natural justice & fair procedures. In this regard, Mr. Ibotombi Singh, learned C.G.S.C. appearing for respondents draws attention of this court in a decision of Apex Court reported in Union of India & Ors. v. P. Thayagarajan, and submits that Apex Court has upheld validity of Rule 27 of C.R.P.F. Rule, 1955. On careful perusal of decision of Apex Court in Thayagarajan (supra), it is clear that Apex Court held that if there be a particular procedure for examination of witnesses in disciplinary proceedings u/Rule 27(c)(2) of C.R.P.F Rules, 1955, enquiry officer should follow that prescribed procedures. In the present case in hand, as stated above, Rule 27 neither prescribes nor excludes the appointment of the presenting officer for holding disciplinary proceedings in compliance with principles of natural justice and fair procedures against a C.R.P.F Constable for article of charges against him.
12. For reasons discussed above, disciplinary proceedings against petitioner is illegal and it was held in violation of principles of natural justice. Therefore, be disciplinary proceedings against petitioner is liable to quashed. Accord- ingly, disciplinary proceedings against writ petitioner is hereby quashed and in consequence thereof, the impugned dismissal order dated 30.8.2000 (Annexure-A/7 to writ petition), order of D.I.G.P. (Admn), C.R.P.F. dated 8.11.2000 (Annexure-A/7 to writ petition) & order of D.I.G.P. C.R.P.F. dated 12.2.2001 (Annexure-A/11 to writ petition) are quashed. The writ petition is allowed and the writ petitioner should be reinstated in service forthwith.
13. It is made clear that, the concerned authority shall decide and take appropriate decision about the arrear of pay and allowances, i.e., the pay and allowances of the writ petitioner for the period from the date of passing the impugned dismissal order dated 30.8.2000 till his reinstatement under the order of this court. No order as to costs.
(The High Court of Assam, Nagaland, Meghalaya,
Manipur, Tripura, Mizoram & Arunachal Pradesh)
IMPHAL BENCH
WRIT PETITION (CIVIL) NO.297 OF 2002
Shri Mutum Shantikumar Singh
S/o M. Jugindro Singh of Tronglaobi Awang Leikai
P.,O. and P.S. Moirang, District Bishenpur, Manipur. . . . . . . PETITIONER
- VERSUS –
1.The Union of India through the Secretary,
Ministry of Home Affairs, Govt. of India, New Delhi.
2.The Inspector General of Police, C.R.P.F.
M/N Sector CRPF, Govt. of India, Imphal, Manipur.
3. The Dy. Inspector General of Police, C.R.P.F.
Govt. of India, Imphal, Manipur.
4. The Commandant, 27th Bn. CRPF,
Govt. of India, Sibsager Assam. . . . . . . . RESPONDENTS
PRESENT
THE HON’BLE MR. JUSTICE T. NANDAKUMAR SINGH
For the Petitioner :: Mr. Kh. Tarunkumar Singh,Adv.
For the respondents :: Mr.N. Ibotombi, CGSC
Date of hearing :: 20.01.2005
Date of judgment and order :: 08.02.2005 2
JUDGMENT AND ORDER
1. It is the bounden duty of the concerned authority to act judiciously wherever the Rule of natural justice is applicable. No doubt, the Rule of natural justice is applicable to the departmental proceedings against a Government employee. Therefore, there is insistence upon the department of "fair hearing" in the departmental proceedings against a Government employee. No doubt, whenever, the Government of the concerned authority in the departmental enquiry acted in fragnant prejudice of the rule of natural justice and fair play, the said departmental proceeding is liable to be quashed. It may, here, be recalled that Lord Diplock in the Council of Social Service Union v. Minister for the Civil Services stated that "judicial review, as I think, development to a stage to-day when, without reiterating any analysis of the stage of which development has come about, one can conveniently classify under three heads: the grounds on which the administrative action is subject to control by judicial review. The first ground I would call "illegality", the second ground "irrationality" and third ground "procedural propriety". That is not to say that further development on a case in case basis in course or time add further grounds. I have in my mind particularly possible adoption in the future of the principle "proportionality" which is recognised in the administrative law of several of our fellow members of the European Economic Community". The Apex Court in Sugarbai M. Siddiq and Ors. v. Ramesh S. Hankare (Dead) by LRs. Held that "the court is concerned not with the decision but will the decision-making process."
2. Heard Mr. Kh. Tarunkumar Singh learned counsel for the petitioner as well as Mr. N Ibotombi Singh, learned CGSC for the respondents.
3. In the above accepted principle of law, this writ petition is required to be discussed and disposed of. A short factual matrix will suffice for the decision of the present writ petition. The writ petitioner was appointed as Constable (General Duty) at the Group Centre ; C.R.P.F. Langjing, Imphal, Manipur in the month of January 1994 and he was posted at various places within the territory of India. While he was posted at Sibsagar, Assam, there was an unfortunate incident on 3.4.2000 at Sabji Mandi Market Sibsagar, Assam. For that incident the writ petitioner was placed under suspension in contemplation of a disciplinary proceeding vide order of Commandant being No. P. VIII 2/2000-27-EC-II dated 13.4.2000. Thereafter the Commandant 27BN. C.R.P.F issued a memorandum dated 18.4.2000 for holding a departmental enquiry against the petitioner and two articles of charge were framed against him. The said two articles of charge are quoted hereunder.
ARTICLE-I
"That, the said No. 901003697 CT/GD N. Daimary of D/27 Coy, CRPF, No. 940270123 CT/Dvr K.H. and Brojen Singh of HQ/27 Bn, CRPF and No. 941150344 CT/GD M. Shanti Kumar of F/27 Bn., CRPF, while functioning as Constable/Constable (Driver) during the period April 2000 committed an act of Gross misconduct in their capacity as member of the force under Section 11(1) of CRPF Act, 1949 in that they left the lines (STF Camp, Dak Bungalow) and proceeded to station Charalie and Sabji Mandi Market, Sibsagar without obtaining any permission from competent authority, which is unbecoming of a ember of force and against good order and discipline of force.
ARTICLE-II
That the said No. 90100467 CT/GD N. Daimary of D/27 Bn. CRPF, No. 940270123 CR/Cvr K.H. Brojen Singh of HQ/27 Bn, CRPF, and No. 941150344 CT/GDM M. Shantikumar of F/27 Bn, CRPF, while functioning as Constable/Constable (Driver) during the period April 2000 committed an offence of indiscipline/misconduct in their capacity as member of the force under Section 11(1) CRPF Act, 1949, in that, they left the lines (STF Camp, Dak Bungalow) and proceeded to station Charalie and consumed liquer and created nuisance with local Civilians resulting into fight nearby Sabji Mandi Market, Sibsagar, which is unbecoming of a member of the force and against the good order and discipline of force.
4. The enquiry officer, after holding the disciplinary proceedings for the said two articles of charge against the petitioner, submitted a report to the effect that the said two articles of charge were proved partially . The Commandant, 27BN, C.R.P.F, issued the impugned order being No. P/VIII-10/2000-27-EC-II dated 30.8.2000 basing on the said report of the enquiry officer for dismissing the petitioner from service (Annexure-A/7 to the writ petition). The petitioner being aggrieved by the said dismissal order dated 30.8.2000 (Annexure-A/7 to the writ petition) filed an appeal on 27.9.2000 before the Deputy Inspector General of Police (Admn.). C.R.P.F., Group Centre, Langjing, Imphal, Manipur. The D.I.G.P. (Admn.), C.R.P.F., Imphal, Manipur also dismissed the said appeal by passing an order dated 8.11.2000 (Annexure-A/9 to the writ petition). The revision petition filed by the petitioner against the dismissal order dated 30.8.2004 (Annexure-A/7 to the writ petition) and the said order of the D.I.G.P. (Admn.). C.R.P.F. Imphal, Manipur dated 8.11.2000 (Annexure A/9 to the writ petition) also had been rejected by the I.G.P., C.R.P.F., Imphal, Manipur vide his order being No. R.XIII-l/2001-Admn-1/1852 dated 12.2.2001 (Annexure A/11 to the writ petition). It is an admitted fact of both the parties that no presenting officer was appointed in the said disciplinary proceedings initiated against the petitioner and the enquiry officer proceeded the said disciplinary proceedings without presenting officer against the writ petitioner. The only main thrust of the writ petitioner in the writ petition is that because of the non-appointment of the presenting officer in the said departmental enquiry against him, principle of natural justice and fair play had been violated in holding the disciplinary proceedings against him and as a result thereof the proceedings of the disciplinary proceedings is liable to be quashed on that score only. In this regard the leaned counsel appearing for the respondents submits that there is no question of violation of natural justice the writ petitioner inasmuch as the said disciplinary proceeding was held in compliance with the Rule 27 of C.R.P.F Rules, 1955. The relevant portions of Rule 27 is quoted hereunder:
27. *****
(c) The procedure for conducting a departmental enquiry shall be as follows:
(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 hours 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 present of the accused:
(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) Aaccused shall then be examined and his statement recorded by officer conducting enquiry. If accused has pleaded guilty and does not challenge the evidence on record, the proceedings shall be closed for orders. The 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 case be not less than a fortnight, as officer conducting enquiry may deem reasonable in circumstances of case. If he declines to file a written statement he shall again be examined by officer conducting the enquiry on expiry 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 documents 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 orders, where he has power to do so.
11[(7)][***]
(cc) Notwithstanding anything contained in this rule:
(i) where any penalty is imposed on a member of the Force on the ground of conduct which has led to his conviction on a criminal charge ; or
(ii) where the authority competent to impose the penalty is satisfied for reasons to be recorded by it in writing that it is not reasonably practicable to hold an enquiry in the manner provided in these rules ; or
(iii) where the Director-General is satisfied that in the interest of security of the State, it is not expedient to hold any enquiry in the manner provided in these rules, the authority competent to impose the penalty may consider the circumstances of the case and make such orders thereon as it deems fit.
5. From bare perusal of Rule 27 of C.R.P.F. Rules, 1955, it is clear that Rule 27 does not bar competent authority from appointing a presenting officer in disciplinary proceedings for holding same in a fair manner in compliance with requirement of principle of natural justice, principle of which, are being discussed in following paras, & Rule 27 is completely silent about appointment or non-appointment of presenting officer in disciplinary proceedings.
6. Apex Court (Constitution Bench) had discussed scope & object of natural justice and its applicability to administrative enquiry in A. K Kraipak and Ors. v. Union of India & Ors., held that aim of 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 land but supplement it. Para 20 (of AIR) in A.K. Kraipak (supra) is quoted hereunder:
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 year. In the past it was thought that it include just two rules, namely (1) no one shall be a judge in his own cause (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. But in the course of years many more subsidiary rules came to be added to the rules of natural justice. Till very recently it was the opinion of the courts that unless the authority concerned was required by the law under which it functioned to act judicially there was no room for the application of the rules of natural justice. The validity of that limitation is not questioned. If purpose of the rules of natural justice is to prevent miscarriage of justice one fails to see why those rules should be made inapplicable to administrative enquiries. Often times it is not easy to draw the line that demarcates administrative enquiries from quasi-judicial enquiries. Enquiries which were considered administrative at one time are now being considered as quasi-judicial in character. Arriving at a just decision is the aim of both quasi-judicial enquiries as well as administrative enquiries. An unjust decision in an administrative enquiry may have more far reaching effect than a decision in a quasi-judicial enquiry. As observed by this Court in Suresh Koshy Georege v. University of Kerala, Civil Appeal No. 990 of 1968, dt. 15.7.1968 the rules of natural justice are not embodied rules. What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, frame work of law, under which the enquiry is held and the constitution of Tribunal or body of persons appointed for that purpose. Whenever a complaint is made before a court that some principle of natural justice had been contravened court has to decide whether observance of that rule was necessary for a just decision on facts of that case.
7. Apex Court in Punjab National Bank and Ors. v. Kunj Behari Mishra reported in (1998) 7 SCC 8 I had observed applicability of principles of natural justice in departmental enquiry and held that principles of natural justice have to be read into regulation 7(2) (Punjab National Bank Officer Employee's (Discipline and Appeal) Regulations, 1977, though it is silent on this aspect. Para 19 (of SCC) in PNB & Others (supra) is quoted hereunder:
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 reason for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of enquiry officer containing its findings will have to be conveyed and delinquent officer will have an opportunity to persuade disciplinary authority to accept the favourable conclusion of the enquiry officer. The principles of natural justice, as we have already observed, require authority which has to take a final decision and can impose a penalty, give an opportunity to officer charged of misconduct to file a representation before disciplinary authority records its findings on charges framed against officer.
8. Apex Court in State Govt. Houseless Harijan Employees' Association v. State of Karnataka and Ors., reported in (2001) 1 SCC 610 took similar view that " requirements of natural justice will be read into statutory provisions unless excluded expressly or by necessary implication". Paras 27 and 28 (of SCC) in State Govt. Houseless Harijan Employees' Assn. (supra) are quoted hereunder:
27. This Court has consistently held that the requirements of natural justice will be read into statutory provisions unless excluded expressly or by necessary implication.
28. In the case of Union of India v. Co. J.N. Sinha this court said (SCC p. 461, para 8):
It is true that if a statutory provision can be read consistently with the principles of natural justice, courts should do so because it must be presumed that Legislatures & statutory authorities intent to act in accord- ance with principles of natural justice. But if on other hand a statutory provision either specifically or by necessary implication excludes application of any or all principles of natural justice then court can’t ignore mandate of Legislature or 'statutory authority & read into provision concerned principles of natural justice.
9. The Apex Court in Kumaon Mandal Vikas Nigam Ltd. v. Girija Shankar Pant and Ors., reported in (2001) 1 SCC 182 held that the object of the doctrine of natural justice is not only to secure justice but to prevent miscarriage of justice. Doctrine of natural justice is incapable of exact definition. However, it is synonymous with fairness. Compliance or non-compliance therewith has to be examined on the totality of facts and circumstances in each. In Kumaon Mandal Vikas Nigam Ltd. (of SCC) (supra), the Apex Court held that there is violation of the principles of natural justice in the departmental enquiry because of non-appointment of presenting officer. The relevant portion of para 22 (of SCC) in Kumaon Mandal Vikas Nigam Ltd. (supra) is quoted hereunder:
22. The 65 page report has been sent to the M.D. of Nigam against petitioner recording therein that the charges against him stand proved what is basis? Was enquiry officer justified in coming to such a conclusion on basis of charge sheet only? The answer cannot possibly be in the affirmative, if records have been considered, the immediate necessity would be to consider as to who is the person who produced has same & next issue could be as regards nature of the records unfortunately there is not a whisper in rather longish report in that regard. Where is presenting officer? Where is notice fixing date of hearing? Where is list of witnesses? What has happened to the defence witnesses? All these questions arise but unfortunately no answer is to be found in the rather longish report. But if one does not have it-can it be termed to be in consonance with the concept of justice or the same tantamount to a total miscarriage of justice.
10. This court in Chelfremog v. State of Tripura and Ors. reported in (2000) 2 GLT 604 and Baharul Islam (CT) v. Union of India and Ors. reported in 2001 (1) GLT 62 I held that in the departmental proceedings where no presenting officer was appointed, the enquiry officer has assumed role of Judge as well as prosecution inasmuch as in the absence of presenting officer, the enquiry officer must examine the witnesses and exhibited documents. This will be a total violation of the rules and fundamental principles of natural justice. Therefore, the procedures adopted by the enquiry officer in holding the departmental enquiry does not fulfil the requirement of fair proceeding in conducting enquiry against the delinquent. In such circumstances "reasonable opportunity of being heard" as emphasise in A. 31(2) of Constitution of India had been denied to concerned government employee (delinquent). The similar view is also taken by this court (Division Bench) in Pt. Rajyamalla Buzarbaruah v. Assam Administrative Tribunal, and Ors. reported (1983) 1 GLR (NOC) 71. The Apex Court in Dr. Rash Lal Yadav v. State of Bihar and Ors. held that concept of natural justice is not a static one by is an ever expanding concept. In initial stages it was thought that it had only two elements, namely (i) no one shall be a judge in his own cause, and (ii) no one shall be condemned unheard. With passage of time a third element was introduced, namely, of procedural reasonableness because main objective of requirement of rule of natural justice is to promote justice and prevent its miscarriage. What emerges from the above discussion is that unless the law expressly or by necessary implication excludes application of the rule of natural justice courts will read the said requirement in enactments that are silent and insist on its application even in cases of administrative action having civil consequences.
11. From above discussions, I am of considered view that for complying with rule of natural justice and fair procedures, appointment of presenting officer is a must in a disciplinary proceedings against a C.R.P.F. Constable & Rule 27 of C.R.P.F. Rules, 1955 by expressly or necessary implication does not exclude application of rule of natural justice & fair procedures. In this regard, Mr. Ibotombi Singh, learned C.G.S.C. appearing for respondents draws attention of this court in a decision of Apex Court reported in Union of India & Ors. v. P. Thayagarajan, and submits that Apex Court has upheld validity of Rule 27 of C.R.P.F. Rule, 1955. On careful perusal of decision of Apex Court in Thayagarajan (supra), it is clear that Apex Court held that if there be a particular procedure for examination of witnesses in disciplinary proceedings u/Rule 27(c)(2) of C.R.P.F Rules, 1955, enquiry officer should follow that prescribed procedures. In the present case in hand, as stated above, Rule 27 neither prescribes nor excludes the appointment of the presenting officer for holding disciplinary proceedings in compliance with principles of natural justice and fair procedures against a C.R.P.F Constable for article of charges against him.
12. For reasons discussed above, disciplinary proceedings against petitioner is illegal and it was held in violation of principles of natural justice. Therefore, be disciplinary proceedings against petitioner is liable to quashed. Accord- ingly, disciplinary proceedings against writ petitioner is hereby quashed and in consequence thereof, the impugned dismissal order dated 30.8.2000 (Annexure-A/7 to writ petition), order of D.I.G.P. (Admn), C.R.P.F. dated 8.11.2000 (Annexure-A/7 to writ petition) & order of D.I.G.P. C.R.P.F. dated 12.2.2001 (Annexure-A/11 to writ petition) are quashed. The writ petition is allowed and the writ petitioner should be reinstated in service forthwith.
13. It is made clear that, the concerned authority shall decide and take appropriate decision about the arrear of pay and allowances, i.e., the pay and allowances of the writ petitioner for the period from the date of passing the impugned dismissal order dated 30.8.2000 till his reinstatement under the order of this court. No order as to costs.
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