JUDGMENT
S.B. Sinha, J.
1. This writ petition is directed against an order dated 15-11-1980 passed by the respondent No. 6 and as contained in Annexure-1 to the writ petition; an order dated 21-12-1981 passed by the respondent No. 3, and as contained in Annexure 2 to the writ petition as also an order dated 1-9-1984 passed by the respondent No. 2 and as contained in Annexure 3 to the writ petition.
2. By reason of the aforementioned order dated 15-11-1980 the respondent No. 6 dismissed the petitioner from services. By reason of the order dated 21-12-1981, the respondent No. 3 rejected the appeal preferred by the petitioner from the aforementioned order dated 15-11-1980 and by reason of order dated 1-9-1984, the respondent No. 2 rejected a memorial submitted by the petitioner.
3. At the relevant time the petitioner was acting as a Havildar. According to the petitioner by reason of office orders as contained in Annexures 4 and 5 to the writ petition he was respective promoted and confirmed in the post of Havildar by the D.I.G., Police. According to the petitioner thus the D.I.G., Police was his appointing authority.
4. On or about 1-1-1979 a theft of pistol which was in the custody of the petitioner took place and according to the petitioner he reported the matter on 2-1-1979 to the respondent No. 5.
5. In relation to the aforementioned incident a charge sheet was issued as against the petitioner and a criminal case was also instituted.
6. Admittedly a departmental proceeding was initiated as against the petitioner and upon an enquiry held in this regard a report of the Enquiry Officer was submitted to the competent authority.
7. By reason of the aforementioned order dated 15-11-1980 passed by the respondent No. 6 the petitioner was dismissed from services pursuant to or in furtherance of the said enquiry report.
8. Mr. S.J. Mukhopadhyay, the learned Counsel appearing on behalf of the petitioner raised two fold contentions in support of this writ petition.
9. Firstly, he submitted that the offer of appointment/promotion as also the order of confirmation in the post of Havildar having been issued in favour of the petitioner by the D.I.G. Police, the respondent No. 6 who was subordinate in rank to the D.I.G. Police, could not have passed the order of dismissal and as such the said order is in contravention of the mandatory provision contained in Article 311(2) of the Constitution of India.
10. Secondly, according to the learned Counsel, there had been a flagrant violation of principle of natural justice in the enquiry and in support of the said contention my attention has been drawn to the statements made in paragraph Nos. 17, 18 and 19 to the writ petition.
11. Paragraph Nos. 17, 18 and 19 to the writ petition read as follows:–
17. That the petitioner also asked for copies of certain documeuts including the guard register and Company station diary for defending himself against the charge that though the theft of the 9 mm pistol and the 35 cartridges came to the knowledge of the petitioner on 1-1-79 but he did not report the matter on the same day, but on 2-1-79. It has been stated that the petitioner had already reported the matter to the Company Commander about the theft of the said pistol and the cartridges on 1-1-79 who recorded the matter of theft in the Company station diary on the very same day, i.e., 1st January, 1979.
18. That it is stated that the petitioner also requested respondent No. 5 to allow him to defend himself through an Advocate as the charge alleged against him was serious in which enquiry by a C.I.D. Officer, a police enquiry, a criminal case and a departmental proceedings against the petitioner were going on simultaneously. The petitioner also requested for keeping the departmental enquiry pending till the final decision in the criminal case and till the documents asked for by the petitioner were supplied to him, but respondent No. 5 rejected all his prayers by an order dated the 16th August, 1979.
A copy each of the representation dated 16-8-79 and the order passed by the respondent No. 5 thereon on 16-8-79 is annexed hereto marked as Annexures ‘7’ and ‘8’ respectively for identification and forms part of this petition.
19. That all the aforesaid prayers were also made by this petitioner before the Enquiry Officer who also rejected the prayer of the petitioner for supply of copies of documents asked for, by order dated the 15th March, 1980 stating that copies of documents not produced by the prosecution at the enquiry could not be supplied to the petitioner because there was no such provision in the rules.
A copy of the order dated 15-3-80 is annexed hereto marked as Annexure ‘9’ for identification and forms part of this petition.
12. From the aforementioned statements it would appear that the petitioner had asked for certain documents for defending himself but by reason of an order dated 15-3-1980 as contained in Annexure 9 to the writ petition, the Enquiry Officer refused to supply the copies of the said documents to the petitioner on the ground that copies of such documents which had not been produced by the prosecution at the enquiry could not be supplied to the petitioner because of absence of any such provision in the rules.
13. Similarly, by reason of an order dated 12-7-1980 and as contained in Annexure 10 to the writ petition, the Commandant (who is the disciplinary authority under the Bihar Police Manual) also refused to furnish the said documents.
14. There cannot be any doubt that the petitioner in the order to defend himself could call for certain documents from the disciplinary authority and/or his employer.
15 For the purpose of complying with the principles of natural justice it was obligatory on the part of the disciplinary authority to supply such copies of documents to him unless it was held that the same are irrelevant for proving the defence of the petitioner or the said documents had been called for maliciously or in order to delay the disciplinary proceedings,
16. From a perusal of the orders as contained in Annexures 9 and 10 to the writ petition it does not appear that the Enquiry Officer as also the Disciplinary Authority rejected the prayer of the petitioner to furnish the documents called for by him on these grounds.
17. Further it appears that the petitioner examined certain witnesses in his defence but the petitioner was not permitted to put any question to the said witnesses. All the questions were allegedly put by the Enquiry Officer himself. It further appears that the said witnesses gave evidence against the petitioner but inspite of the request made in that regard the petitioner was not permitted to put any question to the said witnesses.
18. This aspect of the matter has been dealt with by the Appellate Authority in his order as contained in Annexure 2 to the writ petition therein the Appellate Authority held that the petitioner ought to have brought his witnesses after making them understand the matter for which they were called as witnesses but he had failed to do so.
19. Evidently, the approach of the Appellate Authority is erroneous in law. It is well-known by verious decisions of the Supreme Court as also of this Court that in order to comply with the minimal requirement of principle of natural justice, a delinquent officer is not only entitled to cross-examine the witnesses or examined on behalf of the department but is also entitled to examine his own witnesses in defence.
20. The requirement of principles of natural justice is not complied with if the witnesses presented by the defence are examined by the Enquiry Officer himself without allowing the delinquent officer to examine the said witnesses in chief.
21. True it is that in a disciplinary proceeding rules of evidence as contemplated under the Evidence Art are not applicable but, in my opinion, the Enquiry Officer was enjoined with a duty to give an opportunity to the petitioner to put questions to his witnesses himself, before the witnesses are allowed to be cross-examined by the department.
22. There cannot be any doubt that the Enquiry Officer for elucidation of an answer or for clarification is entitled to put questions to the witnesses himself but it must be borne in mind that he should not adopt the role of the prosecutor.
23. In a departmental proceeding the rule of ‘fair play in action’ must be followed.
24. In this view of the matter, in my opinion, the petitioner was denied a reasonable opportunity to defend himself.
25. The impugned order thus cannot be sustained.
26. In view of the aforementioned finding it is not necessary for me, as at present advised, to decide the first question raised by Mr. Mukhopadhyay.
27. In the premises it is directed that the disciplinary authority shall now furnish to the petitioner copies of documents which were called for by the petitioner if they are found relevant for defending his case as also allow the petitioner to examine the witnesses who were examined his defence witnesses if they are readily available. The petitioner must produce the said witnesses himself before the enquiry officer on such date as may be fixed by him or take such steps as may be necessary to secure their attendance.
28. If the said witnesses are not available the Enquiry Officer shall proceed with the disciplinary proceedings without taking into consideration the evidence of the said witnesses.
29. As the matter has been pending for a long time the enquiry should be completed as early as possible and preferably within a period of three months from the date of receipt of a copy of this judgment.
30. In the facts and circumstances of the case, however, it is directed that if ultimately it is found that the petitioner is guilty of charges levelled against him he would be entitled to 50% of his salary during the period when he was dismissed from services till the date of this judgment.
31. In the result this application is allowed but without any order as to casts.