IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 4.1.2008 CORAM THE HON'BLE MR.JUSTICE P.D. DINAKARAN AND THE HON'BLE MR.JUSTICE R.REGUPATHI W.A.Nos.1074 and 1075 of 2004 1. The Director General of Police Central Reserve Police Force Block No.1, C.G.O.Complex Lodhi Road, New Delhi 110 003. 2. The Inspector General of Police (OPS and Training) Central Reserve Police Force Block No.1, C.G.O.Complex Lodhi Road, New Delhi 110 003. 3. T.R.Arora .. Appellants Vs. P.M.Ramalingam .. Respondent PRAYER: Against the common order of the learned Single Judge dated 26.9.2003 made W.P.Nos.11543 and 11544 of 2000. For Appellants : Mr.K.Ravichandra Baabu S.C.G.S.C. For Respondent : Mr.N.R.R.Arun Natarajan JUDGMENT
(Delivered by P.D.DINAKARAN,J.)
Whether the adverse remarks entered into the Annual Confidential report for the period of 01.04.1998 to 31.03.1999, by itself stand concluded and offend Articles 14, 309 and 311 of the Constitution of India and the Rules framed thereunder for want of pre-decision opportunity to the delinquent? and Whether the charge memo issued to the delinquent is vitiated for the reason that it is based on the materials that were collected by way of preliminary enquiry conducted by the same officer who conducted the discreet enquiry based on anonymous pseudonymous letters, are the issues that arise for our consideration in these appeals which are directed against the common order dated 26.9.2003 made W.P.Nos.11543 and 11544 of 2000, in and by which, the writ petitions were allowed in favour of the writ petitioner/respondent herein (hereinafter referred to as “the delinquent”).
2.1. It is necessary to recapitulate the facts of the case. According to the delinquent, he joined the Central Reserve Police Force on 16.10.1973 as Deputy Superintendent of Police. He was promoted as Commandant in the year 1994 and posted as Vice Principal in RTC-I, Recruit Training Centre, Neemuch, Madhya Pradesh from September 1990 to December 1991. Later he was posted as Principal in RTC-III at Trivandrum, Kerala, from July 1996 to June 1998. Subsequently, he was serving as Principal in RTC-II Avadi, Chennai, from June 1998 to January 1999.
2.2. The delinquent reliably learnt that the Department received four anonymous letters within a span of one month, i.e., from June 1998 to July 1998, while he was working in Avadi, Chennai, containing vague and false allegations against him to the effect that he misused his office by deputing the staff for his personal assignments and committed irregularity in the purchase of stores.
2.3. The delinquent alleges that the said anonymous letters have been sent at the instance of the then Principal of RTC-II Mr. Pushkar Singh, with whom the delinquent had some enmity, as he did not heed to his requests, which were according to the delinquent against the rules.
2.4. It is the further case of the delinquent that the third appellant herein, who was appointed as Discreet Enquiry Officer, inimically disposed against him as he was not invited as Chief Guest for the passing out parade on 26.09.1998, and moreover he was a close friend of Pushkar Singh, at whose instance, it is alleged that the anonymous letters were sent. The discreet enquiry was, therefore, conducted by the third appellant with preconceived and biased attitude and moreover, the findings of the enquiry are contrary to the available records.
2.5. On the basis of the discreet enquiry report, it is stated by the delinquent that the first appellant ordered for preliminary enquiry against the delinquent. In spite of the request of the delinquent to detail any Senior Officer other than the third appellant for conducting the preliminary enquiry, the first appellant again appointed the third appellant to hold the preliminary enquiry. The preliminary enquiry also was conducted by the third appellant, the same officer who conducted the discreet enquiry. Pursuant to the preliminary enquiry, charges were framed and charge memo was also served on the delinquent.
2.6. It is the case of the delinquent that even before commencement of departmental enquiry, the first appellant has made adverse remarks in the Annual Confidential report for the period of 01.04.1998 to 31.03.1999, that too without issuing any memo or show cause notice to him.
2.7. Being aggrieved, the delinquent filed W.P.No. 11543 of 2000 for issuance of a writ of Certiorarified mandamus, to call for the entire records relating to the Charge Memo dated 25.05.2000 issued by the first appellant herein in Ref.No.D.IX-43/99-CRC to the delinquent including the preliminary report submitted by the third appellant pursuant to the directions issued by the first appellant herein in connection with the allegations contained in the anonymous letters against the delinquent, to quash the same and to direct appellants 1 and 2 to direct a fresh preliminary enquiry by any Senior officer other than the third appellant herein after giving due opportunity to him; and W.P. No. 11544 of 2000 for issuance of a writ of mandamus to direct the first appellant to expunge the adverse remarks entered by the second appellant in the Annual Confidential Report and approved by the first appellant with respect to the delinquent for the period from 01.04.1998 to 31.03.1999.
2.8. Before, the learned Single Judge, the learned counsel for the delinquent contended that:
(i) the preliminary enquiry was conducted by the very same person who conducted the discreet enquiry, and therefore, the very purpose of conducting preliminary enquiry is defeated, as while conducting preliminary enquiry, the Officer would definitely be influenced by his own conclusion arrived at in the discreet enquiry; and
(ii) neither discreet enquiry nor preliminary enquiry could be conducted based on the anonymous letters in view of the communication issued by the Central Vigilance Commissioner (VCG) in No.3(V)/99/2, dated 29.6.1999.
2.9. The appellants herein resisted the writ petitions on the grounds that:
(i) the discreet enquiry and the preliminary enquiry were conducted only to satisfy or to make sure whether primacy facie case is made out for framing of charges and to proceed with the departmental enquiry, and therefore, the delinquent is not in any way prejudiced by the conduct of the preliminary enquiry by the very same officer who conducted discreet enquiry; and
(ii) the communication issued by the Central Vigilance Commissioner (VCG) in No.3(V)/99/2, dated 29.6.1999 that neither discreet enquiry nor preliminary enquiry could be conducted based on the anonymous letters is only with effect from 29.6.1999, but the anonymous letters were received, in the case on hand, much earlier to that and therefore, the said communication dated 29.6.1999 is not applicable to the case of the delinquent.
2.10. The learned Single Judge, appreciating the contentions made on behalf of the delinquent, held that:
(i) the preliminary enquiry conducted by the third appellant is vitiated on the ground of bias, inasmuch as he was the officer who conducted the preceding discreet enquiry, and therefore, the preliminary enquiry report filed by the third appellant is liable to be rejected; and
(ii) even though the communication dated 29.6.1999 is subsequent to the date of ordering the preliminary enquiry, as the entire proceedings are under challenge in the writ petitions, the entire preliminary enquiry report is liable to be quashed inasmuch as the preliminary enquiry was initiated on the basis of anonymous letters,
and allowed the writ petitions by quashing the charge memo and ordering removal of the remarks from the annual confidential report of the delinquent. Hence, these appeals.
3.1. The learned counsel for the appellants reiterating the submissions made before the learned Single Judge, would add that:
(i) the communication issued by the Central Vigilance Commissioner (VCG) in No.3(V)/99/2, dated 29.6.1999 came into effect only from 29.6.1999, but not later. In the instant case, the anonymous pseudonymous letters were received during June to July, 1998 and the discreet enquiry was conducted on 15.10.1998 and a report was submitted on 23.10.1998, i.e., much earlier to the communication dated 29.6.1999, and therefore, the appellants are competent and have rightly exercised their jurisdiction to initiate discreet enquiry/ preliminary enquiry;
(ii) in view of the Standing Order No.20/2001, dated 24.5.2001, the evidence taken in the preliminary enquiry stage cannot also be used for departmental enquiry unless witnesses are examined afresh or at least they are tendered for cross examination and therefore, apprehension of the delinquent that the report of the discreet enquiry and preliminary enquiry cannot be a basis for initiating departmental proceedings is without basis;
(iii) the adverse remarks made in the Annual Confidential report for the period of 01.04.1998 to 31.03.1999 are only subject to the result of the disciplinary action initiated vide the charge memo dated 25.5.2000 and therefore, the delinquent is in no way be aggrieved by the same; and
(iv) in any event, the framing of charges against the delinquent by itself would not conclude as a finding, as at the best the delinquent is given an opportunity to disprove the charges in compliance of the principles of natural justice and moreover, the appellants are prepared to conduct the enquiry by appointing an officer other than the third appellant.
3.2. The learned counsel for the delinquent in furtherance of the submissions made before learned Single Judge, would contend that:
(i) the preliminary enquiry is statutory in nature and therefore, the authority who conducts preliminary enquiry is in the nature of quasi judicial authority and it should consider the entire case independently, uninfluenced by any other previous report. But in this case, the person who was a quasi judicial authority, who conducts preliminary enquiry, had already conducted a discreet enquiry in the very same case. Therefore, the preliminary enquiry conducted by the third appellant is vitiated on the ground of bias, inasmuch as he was the officer who conducted the preceding discreet enquiry. In this regard, reliance was placed on Standing Order No.20/2001, dated 24.5.2001; and
(ii) the adverse remarks made in the Annual Confidential report for the period of 01.04.1998 to 31.03.1999 even without giving a pre-decisional opportunity to the delinquent violates Articles 14, 309 and 311 of the Constitution of India and the principles of natural justice.
4. We have given careful consideration to the submissions of both sides.
5. The following issues raise for our consideration:
(i) Whether the adverse remarks entered into the Annual Confidential report for the period of 01.04.1998 to 31.03.1999, by itself stand concluded and offend Articles 14, 309 and 311 of the Constitution of India and the Rules framed thereunder for want of pre-decision opportunity to the delinquent? and
(ii) Whether the charge memo issued to the delinquent is vitiated for the reason that it is based on the materials that were collected by way of preliminary enquiry conducted by the same officer who conducted the discreet enquiry based on anonymous pseudonymous letters?
6. As the issues are inter-related, we opt to deal the same in consolidate.
7. Anonymous pseudonymous letters were received by the Department during the period June, 1998 to July, 1998. Discreet enquiry was conducted on 15.10.1998 and the report of the discreet enquiry was submitted to the appellant on 23.10.1998. The Central Vigilance Commissioner (VCG) has issued a communication in No. 3(V)/99/2, dated 29th June, 1999 on the subject of improving vigilance administration. In this communication paragraph 6 reads as follows:
“It is, therefore, ordered under powers vested in the CVC under para 3(v) of the DGPT Resolution No. 171/20/99-AVD, III dated 4th April 1999 that with immediate effect no action should at all be taken on any anonymous or pseudonymous complaints. They must just be filed.”
(emphasis supplied)
Therefore, the initial discreet enquiry, much less preliminary enquiry, which forms the basis for the issue of charge memo to the delinquent cannot be complained as lacking jurisdiction, more so, when the findings in the said enquiries cannot be said to be concluding evidence supporting the charges.
8. With regard to the contention that the discreet enquiry as well as the preliminary enquiry were conducted by the third appellant and therefore, the Officer, while conducting preliminary enquiry, would definitely have been influenced by his own conclusion arrived at in the discreet enquiry, it is apt to extract Standing Order No.20/2001 dated 24.05.2001, which reads as under:
“No. I.X/Inst-Adm.I
Subject: Guiding Principles to be followed in Preliminary-Enquiries and Departmental Enquiries.
Procedure for conducting Preliminary Enquiries and Departmental Enquiries has been laid down in para 6, 7 of Establishment Manual 1976 and Rule 27 of CRPF Rules 1955 respectively. However, to supplement the procedure, already in existence, following instructions should be carefully studied and implemented in both letter and spirit.
Preliminary Enquiry:
A Preliminary Enquiry or fact finding enquiry should be held for determining whether there is a prima facie case for holding a regular Departmental Enquiry against the delinquent or there is a need for termination of the service of the employee, in accordance with the service rules. The report of the PE cannot be used in the Departmental Enquiry, without furnishing a copy to the delinquent. The evidence taken in the Preliminary Enquiry stage cannot also be used for Departmental Enquiry, unless, witnesses are examined, afresh or at least they are tendered for cross-examination. A PE is conducted with the following objectives:
a) In ascertain the prima facie default of the allegations.
b) Evidence available in support of the said allegations.
c) To enable the superior officer of the Force to form judicious opinion regarding nature of the proceedings, that may be drawn up against the defaulters, depending upon the gravity of the offence committed.
A PE can be held ex parte, not merely, for the satisfaction of the concerned authority. However, for the sake of fairness, the Govt. servant should be given an opportunity to give his account pertaining to the allegations against him. This may be in the form of a written reply or an oral statement, reduced to writing by the officer conducting the P.E. In case the Govt. servant fails to respond within the reasonable opportunity given, the P.E.can be concluded without waiting for the statement of the Govt. servant. This opportunity is necessary as it allows the officer conducting the P.E. to form an objective view on the basis of evidence gathered. It also avoids harassment to a Govt. servant, who may have had a very valid reason for his action;”
(emphasis supplied)
9. Preliminary Enquiry is one in which before the employer decides to issue a formal charge sheet and hold a regular enquiry, he may wish to determine whether there is a prima facie case against the accused workman. He may wish to know this before holding a regular enquiry, since holding a regular enquiry is a serious matter which may cause unrest or have some other undesirable effect, and therefore, he may want to make sure whether there is some ground of proceeding against the workman and that the charges are not altogether baseless.
10. The above Standing Order No. 20/2001 dated 24.05.2001 makes it clear that the evidence taken in the Preliminary Enquiry stage cannot be used for Departmental Enquiry, unless, witnesses are examined afresh or at least they are tendered for cross-examination. Therefore, in our considered opinion, the delinquent is in no way prejudiced by the conduct of the discreet enquiry and preliminary enquiry by the same Officer, viz., the third appellant. Our above view is also fortified with the decision of the Apex Court in Sunil Kumar Banerjee v. State of W.B., (1980) 3 SCC 304, wherein it has held that person considering preliminary investigation report to find a prima facie case and also framing draft charges, competent to be later appointed as Enquiry Officer in the same case and he cannot be said to have thereby constituted himself both as prosecutor and judge.
11. The Apex Court in Secretary to Government of T.N. v. D. Subramanyan Rajadevan, (1996) 5 SCC 334 , held that there is no such principle of natural justice that before holding a regular departmental enquiry the disciplinary authority itself should hold a preliminary enquiry by first drawing up a charge memo and then calling for the written statement of defence before taking a decision to hold a regular departmental enquiry. In the case on hand, discreet enquiry and preliminary enquiry were held and the findings of these enquiries cannot be directly applied against the delinquent in view of the clear terms of the Standing Order No. 20/2001 dated 24.05.2001, and therefore, the interest of the delinquent has been, in our considered opinion, rightly taken care of by the above Standing Order.
12. That apart, it is a settled law that the preliminary report is only to decide and assess whether it would be necessary to take any disciplinary action against the delinquent officer and it does not form any foundation for passing the order of dismissal against the employee, vide Vijay Kumar Nigam v. State of M.P., (1996) 11 SCC 599.
13. In Union of India v. Kunisetty Satyanarayana, (2006) 12 SCC 28, after referring to a series of earlier decisions, the Apex Court held that that ordinarily no writ lies against a charge-sheet or show-cause notice. The reason why ordinarily a writ petition should not be entertained against a mere show-cause notice or charge-sheet is that at that stage the writ petition may be held to be premature. A mere charge-sheet or show-cause notice does not give rise to any cause of action, because it does not amount to an adverse order which affects the rights of any party unless the same has been issued by a person having no jurisdiction to do so. It is quite possible that after considering the reply to the show-cause notice or after holding an enquiry the authority concerned may drop the proceedings and/or hold that the charges are not established. It is well settled that a writ petition lies when some right of any party is infringed. A mere show-cause notice or charge-sheet does not infringe the right of anyone. It is only when a final order imposing some punishment or otherwise adversely affecting a party is passed, that the said party can be said to have any grievance. Writ jurisdiction is discretionary jurisdiction and hence such discretion under Article 226 should not ordinarily be exercised by quashing a show-cause notice or charge-sheet. No doubt, in some very rare and exceptional cases the Court can quash a charge-sheet or show-cause notice if it is found to be wholly without jurisdiction or for some other reason if it is wholly illegal. However, ordinarily the High Court should not interfere in such a matter. In the case on hand, we have already observed that the department was competent to initiate discreet enquiry against the delinquent and there is no lack of jurisdiction. Hence, the writ petition challenging the charge memo cannot be entertained at all.
14. In Kendriya Vidyalaya Sangathan v. Arunkumar Madhavrao Sinddhaye, (2007) 1 SCC 283, the Apex Court held that the enquiry held can under no circumstances be held to be a formal departmental enquiry where the non-observance of the prescribed rules of procedure or a violation of principle of natural justice could have the result of vitiating the whole enquiry. But, in the case on hand, the charge memo was issued to the delinquent and an explanation was called for from him, viz., an opportunity has been given to the delinquent to disprove the charges in compliance of the principles of natural justice. Moreover, the Standing Order No. 20/2001 dated 24.05.2001 makes it clear that the evidence taken in the Preliminary Enquiry stage cannot be used for Departmental Enquiry, unless, witnesses are examined afresh or at least they are tendered for cross-examination. Therefore, in our considered opinion, the delinquent cannot be aggrieved by such enquiries.
15. In U.P. Cooperative Federation Ltd. v. L.P. Rai, (2007) 7 SCC 81, the Apex Court held that the charges levelled against the employee are not of a minor or trivial nature and, therefore, it will not be proper to foreclose the right of the employer to hold a fresh enquiry only on the ground that the employee has since retired from service. It was accordingly clarified that it will be open to the appellant employer to hold a fresh enquiry against the employee in accordance with rules. In view of the above well settled proposition of law, we are of the considered opinion that the learned Single Judge, in view of the apprehension of the delinquent that the third appellant was biased, ought not to have quashed the charge memo, but instead should have given a direction to the appellants to hold a fresh de novo enquiry.
16. For the reasons aforesaid, we are unable to agree with the view of the learned Single Judge. Accordingly, we set aside the order of the learned Single Judge dated 26.9.2003 made W.P.Nos.11543 and 11544 of 2000, giving liberty to the appellants to proceed with the enquiry, but strictly in accordance with law, as per the procedure prescribed under the Establishment Manual, CRPF Rules 1955 and the Standing Orders, in compliance of the principles of natural justice, giving all fair and reasonable opportunity to the delinquent, making it clear that unless witnesses are examined afresh or at least they are tendered for cross-examination, neither the report of the preliminary enquiry nor discreet enquiry would be relied upon by the department against the delinquent.
17. However, since a basic apprehension is raised on behalf of the delinquent as to the bias on the part of the third appellant, as agreed by the appellants, with all fairness, we direct that the enquiry shall be conducted by an officer other than the third appellant.
18. With regard to the contention that adverse remarks were entered in the Annual Confidential report for the period of 01.04.1998 to 31.03.1999 without giving a pre-decisional opportunity to the delinquent, it goes without saying that even though pre-decisional opportunity is not required, definitely, a post decisional opportunity is required before the same is to be relied on by the Department either for promotion or for any future services benefits. Therefore, we direct the Department to furnish a copy of the remarks to the delinquent and if such adverse remarks are having direct connection with the charges the same shall be subject to the result in the disciplinary proceedings.
In the result, the issues raised for consideration are answered accordingly and these writ appeals are allowed with the directions as indicated above. No costs.
(P.D.D.J.)(R.R.J.)
4.1.2008
Index : Yes
Internet : Yes
sasi
To:
1. The Director General of Police
Central Reserve Police Force
Block No.1, C.G.O.Complex
Lodhi Road, New Delhi 110 003.
2. The Inspector General of Police
(OPS and Training)
Central Reserve Police Force
Block No.1, C.G.O.Complex
Lodhi Road, New Delhi 110 003.
P.D.DINAKARAN,J.
AND
R.REGUPATHI,J.
[sasi]
W.A.Nos.1074 and 1075 of 2004
4.1.2008