Inquiry Officer shouldn’t be representative of Disciplinary Authority
*Punishment of dismissal should match gravity of offence
Mohinder Verma
JAMMU, Apr 15: The High Court of Jammu & Kashmir and Ladakh has held that in case of imposing major punishment in departmental proceedings the appointment of Presenting Officer is must and the Inquiry Officer has to be independent and not representative of the Disciplinary Authority.
Justice Wasim Sadiq Nargal held this while quashing the order of termination of a CRPF constable Mohd Ashraf Shah for being violative of the provisions of the CRPF Act and Rules framed thereunder.
Pointing towards various judgments of Supreme Court, Justice Nargal said, “even if the relevant service rules is silent about the appointment of a Presenting Officer, absence of a Presenting Officer will make the enquiry totally vitiated as the Inquiry Officer cannot be allowed to assume the role a Judge as well as a prosecutor”.
“In the present case, no Presenting Officer was appointed by the authority in connection with the enquiry. The petitioner was not given any opportunity to appoint his Defence Assistance. Moreover, no notice was issued to him before imposition of penalty against him”, Justice Nargal said, adding “in case of imposing major punishment in departmental proceedings, appointment of Presenting Officer is must and in the absence of the same entire departmental proceedings get vitiated”.
He further observed that the principle of bias comes into play where the Inquiry Officer himself leads the “examination in chief” of the prosecution witness by putting questions. “The Inquiry Officer in all fairness has to be independent and not representative of the Disciplinary Authority and if he 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”, Justice Nargal added.
“The departmental enquiry conducted against the petitioner is in violation of Rule 27(c) of the Central Reserve Police Force Rules, which provides complete procedure for conducting departmental enquiry”, High Court said, adding “during enquiry proceedings, the charge was not read out to the petitioner by the Inquiry Officer and instead, explained the charges at the time of commencement of the enquiry and, thus, the action of the Inquiry Officer suffer from procedural irregularity”.
“The plea of guilty, recorded by the Inquiry Officer at the conclusion of department enquiry is in violation of Rule 27(c)(2) of the CRPF Rules, whereas, the plea of guilt as mandated in the rule is required to be recorded at the time of commencement of the enquiry. There is no provision in the CRPF Act and Rules that the plea of guilt is required to be recorded twice at the time of departmental enquiry and on the conclusion of the enquiry”, Justice Nargal said.
About the contention raised by the respondents that the petitioner had a remedy of revision available to him which wasn’t availed by him and he jumped to the remedy of writ, Justice Nargal said, “it is a common notion that writs under Article 226 of the Constitution are not maintainable where an Alternative Statutory Remedy is available. The Apex Court and the High Courts consistently deprecate the practice of filing writ petitions where an alternative remedy has been provided under the relevant statute”.
“But it is not an ‘Absolute’ Rule of Law and there are Valid Exceptions where the writ petitions are maintainable in the High Court and in such cases, the petitioner ought not to be relegated to alternative remedy”, Justice Nargal said, adding “the Apex Court has consistently held that the High Courts should exercise their discretionary jurisdiction in-spite of availability of alternative remedy, where the authority has acted without jurisdiction or in violation of the principles of natural justice or where vires of the Act has been challenged or for enforcement of a fundamental right”.
“Punishment of dismissal/removal from service can be awarded only for the acts of grave nature or as cumulative effect of continued misconduct proving incorrigibility of complete unfitness for police service. Merely one incident of absence and that too because of bad health and valid and justified grounds/reasons cannot become basis for awarding such a punishment”, Justice Nargal said.
Accordingly, High Court quashed the order impugned dated 14.12.2002 by virtue of which, the service of the petitioner was terminated. “The petitioner shall stand reinstated with effect from the date a copy of this order is made available to the respondents by the petitioner”, read the judgment.
Follow our WhatsApp channel
