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REPORTABLE IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2608 OF 2012

UNION OF INDIA & ORS. ... APPELLANTS

VERSUS

RAM LAKHAN SHARMA     ... RESPONDENT

WITH  CIVIL APPEAL NO.6745 OF 2013, CIVIL APPEAL NO.9373-9374 OF 2013 AND CIVIL APPEAL NO.1800 OF 2014.

J U D G M E N T

ASHOK BHUSHAN, J. These appeals have been filed by the Union of

India questioning the judgments of the Gauhati High

Court  by  which  writ  petitions  filed  by  the

respondents challenging their orders of removal were

allowed by setting aside the removal/dismissal orders

and the respondents were directed to be reinstated.

The High Court had allowed the writ petitions filed

by the respondents on more or less similar grounds,

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hence, it shall be sufficient to notice the facts and

pleadings in detail in Civil Appeal No.2608 of 2012

for deciding this batch of appeals.  

Civil Appeal No. 2608 of 2012 2. The respondent- Ram Lakhan Sharma was appointed

as  constable  in  the  Central  Reserve  Police  Force

(hereinafter referred to as “CRPF”) on 10.04.1991. On

23.10.1999 while he was posted as constable 11 Bn.,

CRPF at Agartala, Tripura he went out from Guard duty

at 09.00 a.m. and returned back at 09.50 a.m. In the

afternoon, an allegation was made by one lady Smt.

Gita  Paul  making  allegation  of  rape  against  the

respondent  and  First  Information  Report  was

registered on 23.10.1999 at the Police Station under

Section 376 IPC.

3. On  23.10.1999  the  appellant  was  placed  under

suspension. On 04.12.1999 chargesheet was issued to

the respondent containing articles of charges I and

II.  First  charge  was  that  the  appellant  remained

absent  without  proper  permission  of  competent

authority with consent of his Guard Commander from

his duty on 23.10.1999 from 0900 hrs. to 0930 hrs.

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Second  charge  was  that  he  while  functioning  as

constable (Guard) has committed an act of misconduct

in his capacity as a member of the force in that he

tried  to  do  sexual  intercourse  with  a  woman  with

mutual  consent  by  giving  money  which  amounts  to

indiscipline/moral turpitude.

4. The  disciplinary  authority  appointed  one  Shri

S.S. Bisht, Second-in-Command, 11 Bn CRPF as Inquiry

Officer. The Inquiry Officer recorded the prosecution

evidence. The Inquiry Report was submitted which was

also  supplied  to  the  delinquent  vide  letter  dated

07.02.2000  asking  the  respondent  to  submit  reply

within 15 days. The Commandant, 11 Bn passed an order

on  19.03.2000  imposing  penalty  of  removal  from

service w.e.f. 19.03.2000 under Section 11(1) of the

Central Reserve Police Force Act, 1949 read with Rule

27 of the Central Reserve Police Force Rules, 1955.  

5. On  the  basis  of  First  Information  Report

registered against the respondent a chargesheet was

submitted in the Court of Sessions Judge, Tripura,

Agartala. Learned Sessions Judge after completing the

trial  on  20.09.2001  acquitted  the  respondent  from

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charges  levelled  against  him.  After  acquittal  from

criminal case the respondent filed a Writ Petition

No.6778  of  2000  in  the  High  Court  of  Allahabad

challenging his order of removal. The High Court by

order dated 20.05.2004 disposed of the writ petition

giving liberty to the respondent to file an appeal

under CRPF Rules, 1955 within two weeks. In pursuance

of the order of the High Court an appeal was filed

before D.I.G.R., CRPF, Patna. The Appellate Authority

rejected  the  appeal  by  its  order  dated  22.07.2004

against which order a revision was filed before the

Inspector  General  of  Police,  CRPF  which  too  was

rejected  on  02.03.2005.  Challenging  the  order  of

removal  as  well  as  orders  passed  in  appeal  and

revision the respondent filed Writ Petition (C) No.14

of  2006.  Learned  Single  Judge  vide  judgment  dated

12.04.2010 allowed the writ petition by setting aside

the removal order and directed for reinstatement of

the  respondent.  The  learned  Single  Judge  also

permitted the appellant to initiate the disciplinary

inquiry  afresh  from  the  stage  of  appointing

Presenting Officer. It was further directed that if

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the departmental proceeding is required to be started

afresh,  the  respondent  shall  be  placed  under

suspension  and  during  the  period  of  suspension,

subsistence allowance should be paid. It was left to

the wisdom of the authority to decide on arrear pay

and allowances of the respondent.  

6. Union  of  India  filed  an  appeal  against  the

judgment  of  the  learned  Single  Judge  being  Writ

Appeal No.25 of 2010. The Division Bench of the High

Court by its judgment dated 10.01.2011 dismissed the

writ  appeal  aggrieved  by  which  order  Civil  Appeal

No.2608 of 2012 has been filed by the Union of India.

7. The facts and pleadings in other civil appeals

being  more  or  less  similar  they  need  to  be  only

briefly noted.

Civil Appeal No.6745 of 2013  8. Union of India has filed this appeal challenging

the judgment of the Division Bench dated 18.01.2013

by which Writ Appeal No.1 of 2013 filed by the Union

of  India  questioning  the  judgment  of  the  learned

Single Judge was dismissed. The respondent, Shri T.

Lupheng while posted at Manipur on 24.03.2008 sought

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permission from his senior during his duty hours for

going  to  the  Bank  to  withdraw  his  salary.  He  was

allowed  to  go  and  directed  to  report  back  to  his

duties.  On  his  return  he  was  found  under  the

influence of alcohol. On 07.04.2008 the personnel was

suspended. On four articles of charges inquiry was

held. The Inquiry Officer recorded the evidence of

prosecution. The inquiry was completed and report was

submitted on 19.06.2008. The disciplinary authority

vide  its  order  dated  05.07.2008  awarded  the

punishment of dismissal from service. An appeal was

filed which was dismissed by DIG, CRPF on 07.11.2008.

The revision was also dismissed by IGP-C/S, CRPF on

05.06.2009.  Writ Petition No.556 of 2009 was filed

in the Gauhati High Court which was allowed by the

learned Single Judge by judgment dated 04.08.2012. A

writ appeal was filed by the Union of India which was

dismissed by the Division Bench on 18.01.2013 against

which this appeal has been filed.

Civil Appeal Nos.9373-74 of 2013 9. These appeals have been filed by the Union of

India  against  the  Division  Bench  judgment  dated

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24.08.2012 by which the appeal filed by the Union of

India questioning the judgment dated 08.02.2012 has

been  dismissed.  The  respondent  was  serving  as

constable in F/27 Bn CRPF. It was alleged that on

13.04.2000  he  left  lines  without  seeking  prior

permission, consumed liquor and created nuisance in

the  market.  The  chargesheet  was  issued  to  the

respondent  containing  two  articles  of  charges.  The

Inquiry  Officer  was  appointed.  Inquiry  Officer

recorded the statement of 12 prosecution witnesses.

By  an  order  dated  30.08.2000  the  respondent  was

dismissed  from  services.  There  were  two  other

delinquents  apart  from  the  respondent  who  were

proceeded  with  and  dismissed  by  the  common  order.

Learned Single Judge relying on an order of the High

Court in Writ Petition (C) No.297 of 2002 (Sri Mutum

Shanti Kumar Singh vs. Union of India) on 08.02.2012

set aside the order of the dismissal and directed

reinstatement of the respondent. Union of India filed

Writ Appeal No.32 of 2012 challenging the order of

Learned Single Judge before the Gauhati High Court.

The Division Bench of the High Court by order dated

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24.08.2012 dismissed the writ appeal. Review petition

was  filed  by  the  Union  of  India  which  too  was

dismissed on 18.01.2013. Consequently, these appeals

have been filed by the Union of India.

Civil Appeal No.1800 of 2014 10. This appeal has been filed by the Union of India

against the Division Bench judgment of the High Court

dated 29.05.2013 by which writ petition filed by the

respondent  challenging  the  disciplinary  proceedings

for  dismissal  of  the  respondent  was  allowed.  The

respondent  while  serving  at  Chothegaon,  Bishnupur

(Manipur)  on  12.03.2007  deserted  from  line  without

permission of competent authority. Subsequently, an

FIR was lodged on 12.03.2007. A warrant was issued to

apprehend  him  on  29.07.2007  but  he  could  not  be

apprehended.  A Court of Inquiry was conducted and

the  respondent  was  declared  “DESERTER”  w.e.f.

12.03.2007  vide  order  dated  13.07.2007.  A

Departmental proceeding was initiated with articles

of charges on 12.11.2007. Since, the respondent had

not reported in the Unit, the inquiry proceeded  ex

parte. Charges levelled against the respondent were

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found proved. An order dated 20.05.2008 was passed

awarding  dismissal  from  service  to  the  respondent.

Thereafter, he submitted appeal before DIG, CRPF. A

writ petition was filed by the respondent. The writ

petition was disposed of on 29.05.2013 setting aside

the dismissal order and directing for reinstatement.

The  appeal  has  been  filed  against  the  above  said

judgment.  

11. The  Gauhati  High  Court  had  allowed  the  writ

petition filed by the respondents on the ground that

in the disciplinary inquiry the principles of natural

justice were violated. The High Court found that no

Presenting  Officer  was  appointed  and  the  Inquiry

Officer  acted  as  prosecutor  which  violates  the

principles of natural justice and the entire inquiry

was set aside on the aforesaid ground with liberty to

the respondent to hold afresh inquiry from the stage

of appointing of the Presenting Officer.  

12. All  the  appeals  filed  by  the  Union  of  India

raises almost similar question of law and facts and

the learned counsel for the Union of India has also

raised common submission in all the appeals.

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13. Learned counsel for the appellant, Shri Vikramjit

Banerjee, Addl. Solicitor General contends that the

High  Court  committed  error  in  setting  aside  the

dismissal order on the ground of non-appointment of

Presenting Officer. It is submitted that Rule 27 of

CRPF  Rules,  1955  which  provides  for  holding  of

disciplinary inquiry does not provide for appointment

of Presenting Officer. The appellants have followed

the requirement of Rule 27 in holding disciplinary

inquiry  in  consonance  with  principles  of  natural

justice, hence, there was no occasion to set aside

the  dismissal  order.  It  is  submitted  that  the

respondents  were  given  full  opportunity  in  the

disciplinary  inquiry  including  serving  chargesheet,

giving  opportunity  to  cross-examine  the  witnesses,

opportunity to lead evidence and submit a reply to

the Inquiry Report.  

14. Learned counsel for the appellant submits that

Rule  27  does  not  mandate  the  appointment  of

Presenting Officer to hold disciplinary inquiry. It

is further submitted that even if it is assumed that

while  non-appointment  of  Presenting  Officer,

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principles  of  natural  justice  have  been  violated,

respondents  have  to  show  what  prejudice  has  been

caused  due  to  non-appointment  of  the  Presenting

Officer  in  the  department  enquiry.  No  prejudice

having been caused to any of the respondents, they

were not entitled for grant of relief as has been

granted by the High Court.

15. Learned  counsel  appearing  for  the  respondents

refuting the above submissions contends that the High

Court  has  rightly  set  aside  the  dismissal/removal

orders  of  the  respondents.  In  the  facts  and

circumstances  of  the  present  case,  appointment  of

Presenting Officer was necessary to ensure compliance

of  principles  of  natural  justice  which  having  not

been  done  the  respondents  have  been  seriously

prejudiced.  It  is  submitted  that  Inquiry  Officer

himself acted as prosecutor by putting questions to

the  prosecution  witnesses.  Inquiry  Officer  having

become  prosecutor  with  entire  approach  towards

inquiry was tainted with bias and has rightly been

interfered by the High Court. It is submitted that

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Inquiry  Officer  having  acted  as  a  prosecutor  no

further prejudice needs to be proved.  

16. We have considered the submissions of the learned

counsel for the parties and perused the records.  

17. Before  we  proceed  to  consider  the  rival

submissions of the learned counsel for the parties,

it is relevant to look into the reasons given by the

High Court for allowing the writ petitions filed by

the respondents.  

18. In Civil Appeal No.2608 of 2012(leading appeal)  

judgment of learned Single Judge allowing the writ  

petition is dated 12.04.2010 which is filed at  

Annexure P-7 to the appeal. After elaborately  

considering the facts of the case, the nature of  

charges and affidavit filed in the writ petition,  

learned  Judge proceeded to decide the writ petition.

Learned Single Judge had directed to make available  

the proceedings of the disciplinary inquiry and on  

perusal of the proceedings of the disciplinary  

inquiry Learned Single Judge came to the conclusion  

that no Presenting Officer was appointed in the said  

proceedings and the Enquiry Officer himself led the

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examination in chief of the prosecution witness by  

putting questions. The High Court further came to the

conclusion that Enquiry Officer acted himself as  

prosecutor and Judge in the said disciplinary  

enquiry. It is useful to extract paragraphs 9 and 10  

of the judgment which are to the following effect:

“(9) This  Court  directed  the  learned Asstt. S.G. appearing for the respondents to  make  available  the  proceedings  of  the disciplinary  enquiry  against  the petitioner. On perusal of the proceeding, it  is  crystal  clear  that  no  Presenting Officer  was  appointed  in  the  said proceedings and the Enquiry Officer himself led  the  examination  in  chief  of  the prosecution  witness  by  putting  questions. This fact is not disputed by the learned Asstt. S.G. appearing for the respondents, but  his  only  submission  is  that  all opportunities  were  given  to  the  writ petitioner to put up his defence case and also the writ petitioner had pleaded guilty for both the charges levelled against him.  

(10) It  is,  therefore,  crystal  clear that the Enquiry Officer acted himself as Prosecutor  and  Judge  in  the  said disciplinary  enquiry  against  the  writ petitioner. From this admitted fact, it may not be wrong to infer that there were no fair  procedures  in  the  disciplinary proceedings as a result of which principle of natural justice was undisputedly denied to the writ petitioner.”

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19. The  Division  Bench  of  the  High  Court  in  writ

appeal against the aforesaid judgment also affirmed

the aforesaid view of the learned Single Judge  while

dismissing the writ appeal.  

20. As  noted  above  there  are  two  principal

submissions  raised  by  the  learned  counsel  for  the

appellant, they are: (i) The disciplinary inquiry is

required to be conducted under Rule 27 of 1955 Rules

which does not contemplate appointment of a Presenting

Officer.  Hence,  the  inquiry  proceedings  are  not

vitiated by the non-appointment of Presenting Officer.

(ii) The disciplinary inquiry has been held against

the respondents by complying with the principles of

natural justice. No principle of natural justice is

violated by non-appointment of Presenting Officer. No

prejudice  has  been  caused  to  the  respondents  by

non-appointment of Presenting Officer.

21. Rule  27  sub-rule  (c)  of  the  CRPF  Rules,  1955

provides  for  the  procedure  for  conducting  a

departmental enquiry which is as follows:

“Rule 27(c) The procedure for conducting a  departmental  enquiry  shall  be  as follows:-

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(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 hrs. 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 presence of the accused:  

(iii) the accused shall be allowed to cross examine the witnesses.  

(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)  The  accused  shall  then  be examined and his statement recorded by the officer conducting the enquiry. If the accused has pleaded guilty and does not  challenge  the  evidence  on  record, the  proceedings  shall  be  closed  for orders. If he 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

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case be not less than a fortnight, as the officer conducting enquiry may deem reasonable in the circumstances of the case. If he declines to file a written statement, he shall again be examined by the  officer  conducting  the  enquiry  on the expiry of the 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 document 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 order where he has power to do so.”

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22. 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 the 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.  

23. The  disciplinary  proceedings  are  quasi-judicial

proceedings and Inquiry Officer is in the position of

an  independent  adjudicator  and  is  obliged  to  act

fairly,  impartially.  The  authority  exercises

quasi-judicial power has to act in good faith without

bias, in a fair and impartial manner.

24. Rules of natural justice have been recognised and

developed as principles of administrative law. Natural

justice has many facets. Its all facets are steps to

ensure justice and fair play. This Court in  Suresh

Koshy George vs. University of Kerala and others, AIR

1969 SC 198 had occasion to consider the principles of

natural  justice  in  the  context  of  a  case  where

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disciplinary action was taken against a student who

was  alleged  to  have  adopted  malpractice  in  the

examination. In paragraph 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 Tribunal and the rules under which it functions.

Following was held in paragraphs 7 and 8:

“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  Russel  v.  Duke  of  Norfolk, Tucker, L. J. observed:

"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

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person concerned should have a reasonable opportunity of presenting his case."

25. A  Constitution  Bench  of  this  Court  has

elaborately considered and explained the principles of

natural justice in A.K. Kraipak and others vs. Union

of India and others, 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 paragraph 20 following

has been held:

“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

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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....”  

26. In  State of Uttar Pradesh and others vs. Saroj

Kumar Sinha, 2010 (2) SCC 772,  this Court had laid

down  that  inquiry  officer  is  a  quasi-judicial

authority, he has to act as independent adjudicator

and  he  is  not  a  representative  of  the

department/disciplinary  authority/Government.  In

paragraphs 28 and 30 following has been held:

“28. An  inquiry  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.

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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 inquiry 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.”

27. 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

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High  Court  found  breach  of  principles  of  natural

justice in Inquiry Officer acting as the prosecutor

against the respondents. The Inquiry Officer who has

to  be  independent  and  not  representative  of  the

disciplinary authority if starts acting in any other

capacity and proceed to act in a manner as if he is

interested  in  eliciting  evidence  to  punish  an

employee,  the principle of bias comes into place.  

28. Justice M. Rama Jois of the Karnataka High Court

had occasion to consider the above aspect in Bharath

Electronics Ltd. vs. K. Kasi, ILR 1987 Karnataka 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

Inquiry Officer played the role of prosecutor. This

Court  held  that  there  is  no  legal  compulsion  that

Presenting  Officer  should  be  appointed  but  if  the

Inquiry Officer plays the role of Presenting Officer,

the inquiry would be invalid. Following was held in

paragraphs 8 and 9:

“8. One other ground on which the domestic inquiry  was  held  invalid  was  that

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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 Reddy v. State of Karnataka (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  Inquiry  Officer  had played the role of the Presenting Officer. The relevant part of the findings reads :

"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  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

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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 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 Inquiry 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 : Munchandani Electric and Radio Industries Ltd. v. Their Workman.”

29. This Court had occasion to observe in Workmen of

Lambabari Tea Estate vs. Lambabari Tea Estate, 1966

(2) LLJ 315, that if Inquiry Officer did not keep his

function as Inquiry Officer but becomes prosecutor,

the inquiry is vitiated. Following was observed:

“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

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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.”

30. A Division Bench of the Madhya Pradesh High Court

speaking through Justice R.V. Raveendran, CJ (as he

then was) had occasion to consider the question of

vitiation  of  the  inquiry  when  the  Inquiry  Officer

starts himself acting as prosecutor in Union of India

and ors. vs. Mohd. Naseem Siddiqui, ILR (2004) MP

821. In the above case the Court considered Rule 9(9)

(c)  of  the  Railway  Servants  (Discipline  &  Appeal)

Rules,  1968.  The  Division  Bench  while  elaborating

fundamental principles of natural justice enumerated

the seven well recognised facets in paragraph 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

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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.”

31. The Division Bench further held that where the

Inquiry Officer acts as Presenting Officer, bias can

be presumed. In paragraph 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  Inquiry Officer  acts  as  the  Presenting  Officer, bias  can  be  presumed.  At  all  events,  it clearly  gives  an  impression  of  bias.  An Inquiry Officer is in position of a Judge or Adjudicator. The Presenting Officer is in  the  position  of  a  Prosecutor.  If  the Inquiry  Officer  acts  as  a  Presenting Officer,  then  it  would  amount  to  Judge acting as the prosecutor. When the Inquiry 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

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employee or cross- examines the delinquent employee or his witnesses to establish the case of the employer/disciplinary authority evidently,  the  Inquiry  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 Inquiry Officer does not have an open mind.”

32. The Division Bench after elaborately considering

the issue summarised the principles in paragraph 16

which is to the following effect:

“16. We may summarise the principles thus:

(i) The Inquiry Officer, who is in the position of a Judge shall not act as a Presenting  Officer,  who  is  in  the position of a prosecutor.

(ii)  It  is  not  necessary  for  the Disciplinary  Authority  to  appoint  a Presenting  Officer  in  each  and  every inquiry.  Non-  appointment  of  a Presenting Officer, by itself will not vitiate the inquiry.

(iii) The Inquiry Officer, with a view to  arrive  at  the  truth  or  to  obtain clarifications, can put questions to the prosecution  witnesses  as  also  the defence witnesses. In the absence of a Presenting  Officer,  if  the  Inquiry Officer  puts  any  questions  to  the prosecution  witnesses  to  elicit  the facts, he should thereafter permit the

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delinquent  employee  to  cross-examine such witnesses on those clarifications.

(iv) If the Inquiry Officer conducts a regular examination-in-chief by leading the  prosecution  witnesses  through  the prosecution  case,  or  puts  leading questions to the departmental witnesses pregnant with answers, or cross-examines the defence witnesses or puts suggestive questions to establish the prosecution case employee, the Inquiry Officer acts as  prosecutor  thereby  vitiating  the inquiry.

(v) As absence of a Presenting Officer by itself will not vitiate the inquiry and it is recognised that the Inquiry Officer can put questions to any or all witnesses  to  elicit  the  truth,  the question  whether  an  Inquiry  Officer acted as a Presenting Officer, will have to  be  decided  with  reference  to  the manner in which the evidence is let in and recorded in the inquiry.

Whether an Inquiry Officer has merely acted only  as  an  Inquiry  Officer  or  has  also acted  as  a  Presenting  Officer  depends  on the  facts  of  each  case.  To  avoid  any allegations of bias and running the risk of inquiry  being  declared  as  illegal  and vitiated, the present trend appears to be to invariably appoint Presenting Officers, except in simple cases. Be that as it may.”

33. We fully endorse the  principles  as  enumerated

above, however, the principles have to be carefully

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applied in facts situation of a particular case. There

is no requirement of appointment of Presenting Officer

in each and every case, whether statutory rules enable

the authorities to make an appointment or are silent.

When the statutory rules are silent with regard to the

applicability of any facet of principles of natural

justice  the  applicability  of  principles  of  natural

justice which are not specifically excluded in the

statutory scheme are not prohibited. When there is no

express exclusion of particular principle of natural

justice, the said principle shall be applicable in a

given case to advance the cause of justice. In this

context reference is made of a case of this Court in

Punjab  National  Bank  and  others  vs.  Kunj  Behari

Misra, 1998 (7) SCC 84. In the above case, this Court

had  occasion  to  consider  the  provisions  of  Punjab

National  Bank  Officer  Employees’  (Discipline  and

Appeal) Regulations, 1977. Regulation 7 provides for

action  on  the  enquiry  report.  Regulation  7  as

extracted  in  paragraph  10  of  the  judgment  is  as

follows:

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“7. Action on the enquiry report.—(1) The disciplinary authority, if it is not itself the enquiring authority, may, for reasons to be recorded by it in writing, remit the case to the enquiring authority for fresh or  further  enquiry  and  report  and  the enquiring authority shall thereupon proceed to  hold  the  further  enquiry  according  to the provisions of Regulation 6 as far as may be.

(2) The disciplinary authority shall, if it  disagrees  with  the  findings  of  the enquiring  authority  on  any  article  of charge,  record  its  reasons  for  such disagreement and record its own findings on such charge, if the evidence on record is sufficient for the purpose.

(3) If the disciplinary authority, having regard to its findings on all or any of the articles of charge, is of the opinion that any  of  the  penalties  specified  in Regulation  4  should  be  imposed  on  the officer employee, it shall, notwithstanding anything contained in Regulation 8, make an order imposing such penalty.

(4) If the disciplinary authority having regard to its findings on all or any of the articles of charge, is of the opinion that no penalty is called for, it may pass an order  exonerating  the  officer  employee concerned.”

34. The question which was debated before this Court

was that since Regulation 7(2) does not contain any

provision for giving an opportunity to the delinquent

officer to represent before disciplinary authority who

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reverses  the  findings  which  were  in  favour  of  the

delinquent employee, the rules of natural justice are

not applicable.  This Court held that principle of

natural justice has to be read in Regulation 7(2) even

though rule does not specifically require hearing of

delinquent  officer.  In  paragraph  19  following  was

held:

“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  reasons  for  such disagreement  and  give  to  the  delinquent officer an opportunity to represent before it records its findings. The report of the enquiry  officer  containing  its  findings will have to be conveyed and the delinquent officer  will  have  an  opportunity  to persuade  the  disciplinary  authority  to accept  the  favourable  conclusion  of  the enquiry officer. The principles of natural justice,  as  we  have  already  observed, require the authority which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of  misconduct  to  file  a  representation before  the  disciplinary  authority  records its findings on the charges framed against the officer.”

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35. Thus, the question as to whether Inquiry Officer

who is supposed to act independently in an inquiry has

acted as prosecutor or not is a question of fact which

has to be decided on the facts and proceedings of

particular case. In the present case we have noticed

that the High Court had summoned the entire inquiry

proceedings  and  after  perusing  the  proceedings  the

High Court came to the conclusion that Inquiry Officer

himself  led  the  examination  in  chief  of  the

prosecution  witness  by  putting  questions.  The  High

Court  further  held  that  the  Inquiry  Officer  acted

himself  as  prosecutor  and  Judge  in  the  said

disciplinary enquiry. The above conclusion of the High

Court has already been noticed from paragraphs 9 and

10 of the judgment of the High court giving rise to

Civil Appeal No.2608 of 2012.

36. The High Court having come to the conclusion that

Inquiry  Officer  has  acted  as  prosecutor  also,  the

capacity  of  independent  adjudicator  was  lost  which

adversely  affecting  his  independent  role  of

adjudicator. In the circumstances, the principle of

bias shall come into play and the High Court was right

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in  setting  aside  the  dismissal  orders  by  giving

liberty  to  the  appellants  to  proceed  with  inquiry

afresh.  We make it clear that our observations as

made above are in the facts of the present cases.  

37. In result, all the appeals are dismissed subject

to the liberty as granted by the High Court that it

shall be open for the appellants to proceed with the

inquiry afresh from the stage as directed by the High

Court and it shall be open for the appellant to decide

on arrear pay and allowances of the respondents.  

.....................J.    ( ADARSH KUMAR GOEL )

.....................J. ( ASHOK BHUSHAN )

NEW DELHI, JULY 02, 2018.