[1] This appeal under Section 100 of the Civil Procedure Code is by the original defendants against who the respondent – original plaintiff had filed Regular Civil Suit No.1369 of 1996 for declaration and permanent injunction.
[2] The case of the plaintiff is that he was appointed as a Sainik in Rajkot Division on 27.07.1989 and had put in 7 years of unblemished service. On 31.09.1996, when the plaintiff was on duty at Wind Mill, he detected one accused carrying half bag of wheat from the Railway premises. The said accused was handed over by the plaintiff with muddamal to Shri R. K. Dubey, Sub Inspector, R.P.F. of Jamnagar. On the next day, the plaintiff found that the accused was let go without registering F.I.R against him. The plaintiff, therefore, reported the said act of Shri R. K. Dubey to D.S.C – the defendant No.2 and to the Chief Security Commissioner, Bombay and requested to hold necessary inquiry into such incident. It is further case of the plaintiff that because of such report made by the plaintiff, Shri Dubey, Sub Inspector, R.P.F., Jamnagar was annoyed and kept prejudice against the plaintiff and threatened the plaintiff to see that how the plaintiff could work in the railway service at Wind Mill. Shri Dubey, therefore gave false report on 15.03.1996 to D.F.C stating that the plaintiff had assaulted him in the office. On the basis of such false report, defendant No.2 issued charge-sheet on 12.04.1996 to the plaintiff. Prior to such charge-sheet, the plaintiff was already put under suspension by order dated 23.07.1996. It is case of the plaintiff that after preliminary inquiry, the inquiry officer was appointed to hold regular inquiry. However, the inquiry officer acted as presenting officer and cross-examined the witnesses of the department, and did not permit the plaintiff to examine his witnesses though the plaintiff had made application on 15.05.1996 seeking permission to examine the witnesses in his defence. The inquiry officer by letter dated 22.05.1996 refused to call for witnesses of the plaintiff. Thus, the plaintiff was not given proper opportunity to produce his defence witnesses and thus, there was a breach of principles of natural justice. It is further case of the plaintiff that in respect of the alleged incident of assault for which departmental inquiry was held, a criminal complaint being C.R.No.7/1996 under Section 323 of the Indian Penal Code was lodged against the plaintiff and even one Shri Guru Prasad Dubey, cousin brother of Shri R. K. Dubey had also lodged separate complaint being C.R.No.298/1996 against the plaintiff under Sections 323 and 506(2) of the Indian Penal code at the instance of Shri R. K. Dubey with sole intention to harass the plaintiff. The plaintiff has further averred that the inquiry was illegal and that order of removing the plaintiff from service was passed in gross violation of principles of natural justice. The plaintiff was not given reasonable opportunity to produce the witnesses in his defence, that the findings of inquiry officer dated 28.05.1996 are illegal and not based on the legal evidence and lastly that the defence put-forth was not discussed by the competent authority while passing the order of removal.
[3] The suit of the plaintiff was resisted by the defendants by filing written statement at Ex.13 denying all averments and allegations made by the plaintiff and further denying that the inquiry officer had acted in double role as inquiry office as also presenting officer. The defendants also denied that the plaintiff was also given sufficient opportunity to defend himself. It is stated that the function of the inquiry officer was to find out truth in respect of the charges against the plaintiff and the inquiry was well conducted and inquiry officer had not cross-examined the witnesses of the department. It is also stated that the plaintiff was asked whether he would like to have assistance of friend to defend himself, to which he has stated that he would like to conduct the inquiry himself. The inquiry officer thus acted impartially and had given full opportunity to the plaintiff. It is also stated that the charges against the plaintiff were proved by the evidence of witnesses examined during the inquiry and on the basis of findings of the inquiry officer, ultimate order of punishment was passed by the competent authority and thus there is no illegality committed in conducting the inquiry nor even there was any violation of the principles of natural justice as alleged by the plaintiff.
[4] Before the Trial Court, both the parties produced documentary evidence which are mainly in connection with the departmental proceedings and ultimate order of punishment. The plaintiff also produced copies of the judgment delivered in the criminal complaint filed against him whereby the plaintiff was acquitted from the criminal charges in respect of the alleged incident of assault on Shri Dubey by the plaintiff.
[5] Learned Trial Judge, on appreciation of evidence available on record, found that the inquiry conducted against the plaintiff was in gross violation of the principles of natural justice and also found that the plaintiff was not given reasonable opportunity to produce his witnesses in his defence. Learned Trial Judge also recorded that the departmental appeal filed by the plaintiff was rejected simply on the ground of limitation. The learned Trial Judge, thus, allowed the suit of the plaintiff and declared the order dated 23.07.1996 removing the plaintiff from service as illegal, null and void and against the settled principles of natural justice on the ground that the inquiry officer did not act impartially, that inquiry officer acted in two roles, that inquiry officer had cross-examined the witnesses and the plaintiff was not given the reasonable opportunity to produce his witnesses and, therefore, the findings of the inquiry officer are illegal and are not based on legal evidence. The learned Trial Judge further declared that the plaintiff be continued in service for all purpose and also directed to pay salary to the plaintiff regularly.
[6] The appellants unsuccessfully carried the matter before the First appellate court by filing Regular Civil Appeal No.50 of 2003. The learned Appellate Judge also on appreciation of evidence found that the inquiry was conducted in gross violation of the principles of natural justice. The learned Appellate Judge was, therefore, of the view that the inquiry proceedings could be held afresh from the stage by giving opportunity to the parties from the stage of adducing oral as well as documentary evidence and such procedure would sub- serve the interest of justice. Learned Appellate Judge held that it was not necessary for the learned Trial Judge to quash and set aside the order of removal of the plaintiff from service and to confer all other consequential benefits to the plaintiff, but the plaintiff was required to be treated under suspension till final outcome of the inquiry to be conducted afresh. Learned Appellate Judge, therefore, partly allowed the appeal and quashed and set aside the judgment and decree of the learned Trial Judge to the extent of granting declaration about the impugned order of punishment as being illegal and in violation of the principles of natural justice and also quashed and set aside the decree granting the relief of continuity of the plaintiff in service with all other benefits. Learned Appellate Judge also set aside the order of Disciplinary Authority dated 23.07.1996 by holding the same to be in violation of principles of natural justice and directed the Disciplinary Authority to hold fresh inquiry from the stage of affording reasonable opportunity to the parties to adduce oral as well as documentary evidence. Learned Appellate Judge also directed to complete fresh inquiry within a period of six months and also directed the appellants to pay subsistence allowance as admissible to the plaintiff under the provisions of Rules.
[7] It is this judgment and decree passed by the learned Appellate Judge which is under challenge before this Court in this appeal.
[8] This appeal was admitted by order dated 12.05.2005 on the following substantial questions of law.
(1) Whether an act of questioning the witness by inquiry officer would amount to acting as presenting officer ?
(2) Whether inquiry would be vitiated in the case where the inquiry officer has acted as presenting officer to some extent particularly overall facts proves the charges levelled against the delinquent and there is no provision about appointment of presenting officer ?
(3) Whether non-granting of request to call and examine witness, made by the delinquent, made at belated stage i.e. on completion of the inquiry proceedings would amount to violation of principle of natural justice ?
(4) Whether the delinquent is entitled for examining the witness upon whom the inquiry officer has neither placed reliance nor is a part of charge-sheet. And whether refusal to allow to examine such witness would amount to violation of principles of natural justice ?
(5) Whether the Civil Court has jurisdiction to entertain the Suit ?
(6) Whether the presenting officer can put the questions to the witness while exercising the powers vested in him and whether the discretionary power used by the investing officer can be said to be unreasonable and would vitiate the whole inquiry ?
[9] I have heard learned advocates for the parties.
[10] Learned advocate Mr.Mukesh Patel for the appellants submitted that the Courts below have committed grave error in holding that the inquiry conducted against the plaintiff was in violation of the principles of natural justice. He submitted that in respect of the charges levelled against the plaintiff, the plaintiff was duly served with the statement of charges, was given enough opportunity to defend himself before the inquiry officer and in fact was permitted to cross-examine witnesses of the department. He submitted that simply because some questions were put by the inquiry officer to the witnesses of the department in absence of the presenting officer would not be a ground to hold that the inquiry officer had played double roles and had cross-examined the witnesses. He submitted that in absence of presenting officer putting some questions by inquiry officer would not vitiate the ultimate inquiry and the finding reached in the inquiry, if such act of inquiry officer was not amounting to help the department to prove the charge. He submitted that the record of the inquiry clearly reveals that the plaintiff was permitted to cross-examine the witnesses of the department and that at the end of inquiry, for some minor clarification, the inquiry officer had questioned the witnesses of the department. Such course adopted by the officer could not be said to be cross-examination conducted by the inquiry officer. He submitted that in fact, the provisions contained in Chapter XII of the Railway Protection Force Rules, 1987 (hereinafter be referred to as "the Rules") permit the inquiry officer to put questions to the witnesses of the department and, therefore, there was no illegality committed by the inquiry officer. For this purpose, Mr.Patel has literally taken the Court to the provisions of Rules 153 to 155. He submitted that there was no violation of the principles of natural justice on account of non- examination of the witnesses by the plaintiff. He submitted that the inquiry was in fact over on 05.05.1996 and since the plaintiff had not given list of his witnesses for his defence before commencing inquiry, the next stage was for the defence statement of the plaintiff and, therefore, as per the Rules, time of 10 days was given and the said date was fixed as 15.05.1996, but the plaintiff on that day submitted an application at Ex.73 just to delay the proceedings of inquiry to give him an opportunity to examine his witnesses in his defence. He submitted that the application at Ex.73 was replied by the inquiry officer by communication at Ex.74 and the request of the plaintiff was turned down by the inquiry officer on the ground that the stage of examination of the witnesses was already over and it was for submitting the defence statement at the end of the inquiry by the plaintiff. He submitted that such was the course permitted under the Rules and there was no illegality committed by the inquiry officer in adopting such course and, therefore, there was no denial of any opportunity to the plaintiff to examine his witnesses as his defence. He submitted that since the inquiry was conducted according to the procedure under the Rules, no illegality could be found muchless violation of the principles of natural justice as alleged by the plaintiff and, therefore, the Civil Court has no jurisdiction to entertain the suit of the plaintiff. Learned advocate Mr.Patel submitted that as per the above Rules, inquiry officer had discretion not to examine the witnesses demanded by the plaintiff in his defence. He submitted that in the Rules, there is no provision for re-opening of the stage which was already closed for the purpose of giving opportunity to the plaintiff to examine his witnesses. He submitted that the decision taken at Ex.74 refusing to permit the plaintiff to examine his witnesses was not under challenge at any point of time. The plaintiff had an opportunity to examine his own witnesses in the suit, but the plaintiff has chosen not to examine any of those witnesses and, therefore, now at this stage, the plaintiff may not be permitted to examine his witnesses by directing the defendants to hold inquiry afresh. He, thus, submitted that the appeal of the appellants was required to be allowed by the First Appellate Court in toto and the learned Appellate Judge was not justified in partly allowing the appeal and in directing to hold inquiry afresh by giving an opportunity to the plaintiff. He, thus, urged to allow this appeal and to quash and set aside the judgment and decree passed by the learned Appellate Judge.
[11] Against the above arguments advanced by the learned advocate for the appellants, learned advocate Mr.K. M. Paul for the respondent submitted that when the Courts below have recorded findings of fact on the basis of the evidence especially the documentary evidence of the inquiry proceedings that the inquiry was conducted in gross violation of the principles of natural justice, this Court may not interfere with such findings of fact recorded by the Courts below. He submitted that from the very beginning, there was vindictive attitude against the plaintiff by the defendants on behalf of officer Shri Dubey who had alleged assaulted by the plaintiff and, therefore, without appointing presenting officer, the inquiry officer intentionally acted in double role as presenting officer as well as inquiry officer and defied all canons of the law as regards of holding of departmental inquiry. He submitted that the Courts below on scrutiny of documentary evidence, found that the inquiry officer had put such questions which could be put only in cross-examination. He submitted that the only intention of the inquiry officer by putting leading question was to any how record finding in consonance of the charges levelled against the plaintiff. He submitted that the inquiry had commenced on 04.05.1996 and five witnesses of the department were examined between 04.05.1996 to 05.05.1996. The inquiry officer put questions to the witnesses to a great extent and on completion of the evidence of the witnesses of the department, when there was turn of the plaintiff to examine his witnesses, the plaintiff was denied his right to examine his witnesses by rejecting application at Ex.73 though the plaintiff had made such application within a period of 10 days under the Rules. He further submitted that it was not that the plaintiff had by his own act delayed the inquiry proceedings. If the inquiry was conducted only for two days and, thereafter, if within a period of 10 days the plaintiff had moved application at Ex.73 to permit him to examine his witnesses in his defence, there was no delay on the part of the plaintiff and thus, inquiry officer ought not to have rejected such reasonable request on the part of the plaintiff. He submitted that no prejudice would have been caused to the department, if the plaintiff was permitted to examine his witnesses in his defence, especially when in respect of this very incident of alleged assaulted by the plaintiff, the competent Court of criminal jurisdiction honourably acquitted the plaintiff. He submitted that the act of the inquiry officer of cross-examining the witnesses of the department and not permitting the plaintiff to examine his witnesses in his defence was nothing, but gross violation of the principles of natural justice, and also against the Rules. He submitted that under the very Rules, the inquiry officer is not permitted to put any question to the witnesses of the department without consent of the plaintiff. He, thus, submitted that the Courts below have not committed any error in holding that the whole inquiry against the plaintiff was in gross violation of the principles of the natural justice and, therefore, this Court while exercising power under Section 100 of the Civil Procedure Code may not interfere with such findings of fact recorded by the Courts below. He, thus, urged this Court to dismiss the appeal and to direct the appellants to comply with the judgment and decree passed by the learned Appellate Judge as the respondent has been suffering a lot because of non-availability of subsistence allowance from the date of passing of the order of removal against the plaintiff.
[12] Having heard learned advocates for the parties and having perused the judgment and decree passed by the Courts below with Record & Proceedings of the case, it appears that the inquiry was conducted against the plaintiff for two charges which are reproduced hereinbelow.
(i) He on 15.03.1996 at about 17.30 hours assaulted Shri Ramakant Dubey, SIPF, Jamnagar.
(ii) He left his duty at 12.15 hours without being properly relieved when on duty for seal checking and petrolling at Wind Mill area.
There is no dispute about the fact that there was no presenting officer appointed by the department. However, in such case, the inquiry officer cannot overstep the task of the presenting officer. In a given case, in absence of the presenting officer, the inquiry officer can put some questions. However, it is always expected of the inquiry officer to act impartially. Inquiry Officer is ultimately a judge and is functioning with sole object to find out truth. The Courts below have found from the record that the inquiry officer had cross-examined the witnesses. This Court with the assistance of the learned advocates for the parties glanced through the questions put by inquiry officer.
[12.1] The following questions were put by the inquiry officer to witness Shri Guru Prasad Dubey which is found at Ex.67.
[a] Whether the incident of assault by Pradipkumar – plaintiff had happened in front of you and in your presence and whether in respect of such incident, do you have any knowledge / information ?
This witness stated that the plaintiff had come with the stick in his presence and he had saved Shri Dubey from being assaulted and prevented Shri Pradipkumar from assaulting at that time, other two persons Rajendrasinh and Gajabhai came.
[b] Whether Pradipkumar - plaintiff was in drunken condition, to which the witness stated that he could not say whether the plaintiff was in drunken condition.
Similarly, the another witness at Ex.68 was put question as under :-
(a) Whether the statement given by you earlier on 16.03.1996 was taken under threat or by your own freewill. What do you say about your earlier statement as also about your today’s statement ?
To this question, the witness replied that his earlier statement was as per his own volition and that the incident of assault had taken place in front of him.
The third witness at Ex.69 was put the similar kind of question as to whether the earlier statement dated 16.03.1996 given by him was as per his own volition to which the said witness confirmed that he stuck to his earlier statement.
Similarly, I find that the other two witnesses were also put leading questions. Suffice it to say that the inquiry officer had put leading question in connection with the charge of the assault against the plaintiff.
In my view the above questions are rightly held by the Courts below as cross-examination by the inquiry officer.
[13] At this stage, Rules relied upon by the learned advocate for the appellants require to be referred. Rules 153.10 and 153.11 are required to be reproduced.
153.10 At the commencement of the inquiry, the party charged 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 -
(a) it shall be direct;
(b) it shall be recorded by the Inquiry Officer in the presence of the party charged; and the party charged shall be allowed to cross-examine the witnesses.
153.11 If the witnesses are government officers of a rank superior to the party charged, the Inquiry Officer may, at the request of the party charged, put the questions to such officer.”
[14] The above Rules clearly provide that it is only the delinquent, against whom inquiry is conducted has right to cross- examine the witnesses of the department. If the witnesses are government officers above in rank than the delinquent, the inquiry officer may be requested by the delinquent to put the questions as desired by the delinquent on his behalf. Therefore, the provisions of the said Rules clearly debar the inquiry officer from putting any question. When the Rules do not permit the inquiry officer to put any question without the consent of the delinquent, in my view, even if the questions put by the inquiry officer are not in the nature of cross- examination, then also it was not open to the inquiry officer to put any kind of question to the witnesses of the department.
[14.1] So far as the issue about not permitting the plaintiff to examine his own witnesses is concerned, reference to Rule 153.15 is required to be made. Rule 153.15 is reproduced hereinbelow.
“153.15 The party charged shall then be examined and his statement recorded by the Inquiry Officer. If the party charged 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 within 10 days a written statement together with a list of such witnesses as he may wish to produce in his defence and giving therein a gist of evidence that each witness is expected to give. If he declines to file a written statement, he shall again be examined by the Inquiry Officer on the expiry of the period allowed and his statement, if any, recorded.”
Reading the above said Rule, it clearly appears that after the delinquent is examined and his statement is recorded and if he does not plead guilty, he is allowed 10 days time to file written statement with list of of the witnesses. It is further provided that if written statement is not filed by the delinquent, the delinquent shall be again examined by the inquiry officer on expiry of the period allowed. It appears that the Rules have made sufficient provision for providing proper opportunity to the delinquent and his right to examine his own witnesses cannot be just defeated on the ground that after the witnesses of the department were examined, the plaintiff moved application at Ex.73 at the stage of submission of defence statement and, therefore, he was not entitled to examine his witnesses. From the record of the inquiry, it appears that the course adopted by the inquiry officer was not in consonance with the Rules at all. In any case, after the last witness was examined on 05.05.1996 within a period of 10 days i.e. 15.05.1996, the plaintiff had moved an application at Ex.73 requesting the inquiry officer to permit him to examine his own witnesses in his defence. Such request could not have been rejected by taking very hyper technical view by the inquiry officer, especially when the conduct of the inquiry proceedings by the inquiry officer was not free from doubt. In view of the Rules for the inquiry and looking to the inquiry proceedings conducted by the inquiry officer, the contention of the learned advocate for the appellants that it was the discretion of the inquiry officer not to permit the plaintiff to examine his own witnesses cannot be accepted. The opportunity for delinquent facing serious charge to examine his own witnesses in his defence is inbuilt in every fair procedure in inquiry and even if Rules of inquiry do not permit such course or even if there is a discretion with the inquiry officer to refuse the delinquent to examine his witnesses in his defence, such would never stand against principles of natural justice. In fact, the principles of natural justice warrant giving of sufficient and proper opportunity to every delinquent who is facing the departmental inquiry. If such principles of natural justice are not adhered to, it would amount to condemning the delinquent unheard and such course of holding anybody guilty of any kind of charge without affording proper opportunity cannot be sustained. Such is the case in the present case and the Courts below have rightly found that the inquiry was conducted in gross violation of principles of natural justice and there was no proper opportunity to the plaintiff to defend himself. I therefore find that in the proved facts of the case, even if absence of presenting officer was not fatal to the inquiry but putting leading questions like cross-examination to the witnesses by the inquiry officer would vitiate the entire inquiry. I am also of the view that non-granting of request of the plaintiff to examine his witnesses by the inquiry officer was in violation of the principles of natural justice.
[15] As per the settled principles of law in the service matter, a government servant is entitled to file a suit in the Civil Court if the challenge in the suit is on the basis of the violation of the principles of natural justice and of constitutional provisions. I have gone through copy of the plaint and found that the plaintiff has alleged serious violation of the principles of natural justice and constitutional provisions. I have also gone through the departmental proceedings and found that the Courts below have rightly recorded the findings of fact that there was gross violation of the principles of natural justice and that the plaintiff was not given sufficient and proper opportunity to examine his witnesses in his defence. I, therefore, concurred with the view taken by the Courts below that the Civil Court has jurisdiction to entertain the suit filed by the plaintiff.
[15.1] Last but not the least, I would like to observe that the Competent Court of criminal jurisdiction has rendered judgment in favour of the plaintiff whereunder the plaintiff was honourably acquitted. The said judgment is on the record of the case at Ex.115. Though it is permissible to hold departmental inquiry in respect of the same incident for which the criminal proceedings were initiated but when the charge in the departmental inquiry is similar to the charge in a criminal case, it is more necessary to strictly adhere to the procedure analogous to the Evidence Act and strict procedure for proving such serious charge in the inquiry is required to be followed by the inquiry officer. Since I find from the record of the case that the Courts below have come to the correct conclusion that the inquiry officer has not followed the principles of natural justice and has not acted impartially, no interference is called for by this Court while exercising the power under Section 100 of the Civil Procedure Code. All the questions formulated by the Court while admitting the appeal are, thus, answered accordingly. The appeal is, therefore, required to be dismissed and the same is dismissed.
[16] At this stage, learned advocate for the respondent drew the attention of the Court that the Appellate Court had already directed to complete fresh inquiry within a period of six months. He pointed out that there is also direction to pay subsistence allowance to the plaintiff. He has made serious grievance that the plaintiff has not been paid single pie towards subsistence allowance right from the date of order of removal. I, therefore, in facts of the case, deem it proper to direct the appellants – defendants to hold and complete fresh inquiry after giving full opportunity to the parties within a period of six months from the date of receipt of this order. Considering the fact that the plaintiff has to face fresh inquiry. Since the plaintiff has been deprived of his entitlement to subsistence allowance, I further direct the appellants – defendants to pay the entire arrears of subsistence allowance payable to the plaintiff from the date of his removal from the service till the date of holding fresh inquiry within a period of three weeks from the date of receipt of this order. The appellants shall also continue to pay subsistence allowance regularly to the plaintiff till the fresh inquiry is over. With above direction the appeal stands dismissed and disposed of.
vijay (C.L.SONI, J.)