UNION OF INDIA AND ORS.versusP. THAYAGARAJAN

A                         UNION OF INDIA AND ORS.
                                          v.
                               P. THAY AGARAJAN

                               NOVEMBER 24, 1998

B            [S. SAGHIR AHMAD ANDS. RAJENDRA BABU, JJ.]


          Central Reserve Police Act, 1949:
          Section II(!). Central Reserve Police Force Rules, 1955: Rule 27(c)
C (2). Service Law-Departmental enquiry-Report-Infirmity in enquiry-
    Adducing evidence contrary to rules -Manner of evidence affecting rights
    of parties-Power of disciplinary Authority to order De Novo enquiry.
          Central Reserve Police Force-Sub-Inspector -Enquiry against-
    Witnesses-Lellers wrillen by - Witnesses indicated facts within their
D   knowledge but expressed inability to attend enquiry proceeding-Lellers
    treated by Enquiry Officer as statements made before him-Disciplinary
    Authority holding that the procedure adopted by Enquiry Officer was
    contrary to rules-Direction for fresh enquiry by Disciplinary Authority-
    Held valid.

E         In a departmental enquiry against the respondent, a Sub-Inspector in
    Central Reserve PoliCe Force, two witnesses - one on behalf of the respondent
    and the other on behalf of Department - wrote letters to the Enquiry Officer
    indicating facts within their knowledge and expressing their inability to
    attend the enquiry proceedings. The Enquiry Officer treated these letters as
    statements of the witnesses made before him. The Disciplinary Authority set
F   aside the findings recorded by the Enquiry Officer as it was of the view that
    in treating the letters as statements of witnesses the Enquiry officer acted
    contrary to rules affecting the rights of the parties. The respondent challenged
    the order of the Disciplinary Authority directing De Novo enquiry before the
    High Court ofGuahati.

G         A Division Bench of the High Court set aside the order passed by the
    Disciplinary Authority holding that in an appeal arising out of an order of
    punishment made by the Disciplinary Authority accepting or rejecting the
    conclusion reached by the enquiry authority, the appellate authority could
    direct a fresh or De Novo enquiry and such power was not available to the
H   Disciplinary Authority. Union of India preferred appeal before this Court.
                                          114
                         U.0.1. v. P. THAY AGARAJAN                         llS
     Allowing the appeal and dismissing the writ petition filed by the             A
respondent in the High Court, this Court.

        HELD : 1. The procedure adopted in taking letters as statements is in
violation of Rule 27(c) (2) of the Central Reserve Police Force Rules, 1955.
What is contemplated in Rule 27(c) (2) is that evidence material to the
charge could be either oral or documentary and, if oral, (i) it shall be direct;   B
(ii) it shall be recorded by the officer conducting the enquiry himself or by
any officer; and (iii) the accused shall be allowed to cross examine the
witness. When reliance is sought to be placed on oral evidence of witnesses
it will have to be obtained in the manner indicated in the said Rule and that
the oral statement has to be recorded by the officer himself conducting the        C
enquiry in the presence of the parties and it cannot be done in any other
manner. (118-E-F)

      2. Rule 27(c) enables the Disciplinary Authority to record his findings
on the report and to pass an appropriate order including ordering a de novo
enquiry in a case of present nature. In the present case the basis upon which
the Disciplinary Authority set aside the enquiry is that the procedure adopted     D
by the Enquiry Officer was contrary to the relevant rules and affects the
rights of the parties and not that the report does not appeal to him. When
important evidence, either to be relied upon by the department or by the
delinquent official, is shut out, this would not result in any advancement of
any justice but on the other hand result in a miscarriage thereof. The             E
reasoning adopted by the Division Bench of the High Court was P,lainly
incorrect. Whatever may be the powers of the appellate authority, the
Disciplinary Authority will have to be satisfied with the procedure adopted
by the Enquiry Officer before passing an order. It does not stand the logic
that in a given case the Appel!ate Authority could order a fresh enquiry and       F
not the Disciplinary Authority at whose instance the enquiry began and
which is not satisfied with the enquiry held for some vital defects in the
procedure adopted. The order passed by the High Court is set aside.
                                                                  (119-D; C-E)

        K.R. Deb v. Collector of Central Excise, Shillong, (1971) 2 sec 102, G
explained and held inapplicable.

        CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5914 of
1998.

     From the Judgement and Order dated 15.12.97 of the Assam High Court
in W.A. No. 310of1995.                                                             H
    116                       SUPREME COURT REPORTS (1998] SUPP. 3 S.C.R.

A         K.N. Rawal, Additional Solicitor General, A. K. Srivastava
    (P. Parameswaran) (NP), for the Appellants.

          K.T.S. Tulsi, Sultan Singh and Vikas Pahwa (Ms. Nanita Sharma) (NP)
    for the Respondent.

B         The Judgment of the C'ourt was delivered by

          RAJENDRA BABU, J. Leave granted.

          The respondent, while discharging the duties as Asst. Sub-Inspector in
    CRPF at Guahati, was transferred to Jammu by order dated May 31, 1991 and
    he was relieved on the same day to enable him to proceed to Jammu. The
C   respondent failed to report for duty at Jammu but had remained absent on the
    ground that he was not well and he had been advised to take rest. He was
~
    served with memorandum of charges. The gist of it is as under:

            I.   That h~ did not report for duty at the office of the IGP(OPS),
D                CRPF, J&K, Srinagar on his transfer/attachment and did riot
                 proceed to his new posting from present office as ASI(M) in GC,
                 CRPF, Guahati and thereby committed an act of disobedience of
                                                                                       -
                 the orders of his superiors in the discharge of his duties in his
                 capacity as a member of the force under Section 11 (I) of CRPF
                 Act, 1949;
E
            2.   That he committed an act of neglect of duty in his capacity as
                 a member of the force inasmuch as he remained absent from duty
                 from June I, 1991 to September 2, 1991 without proper permission
                 from the competent authority and without sufficient cause, reason
                 or ground thereby violated Section 11(1) ofCRPF Act, 1949;
F
            3.   That he committed an act of misconduct by sending an application
                 dated June I, 1991 directly to IGP, NES,CRPF, in violation of the
                 provisions contained in Para 3 of Circular Order No. 3180 read
                 with the decision of the Government of India in this regard.
G
          The Enquiry Officer conducted an enquiry on the aforesaid charges and
    made a report to the Disciplinary Authority. The Disciplinary Authority noticed
    certain irregularities in the conduct of the enquiry which were of vital nature,
    in particular, that the Enquiry Officer acted on the letters of one U.N. Chaini,
    who was a witness on behalf of the department and K.M. Verghese, who was.
H   a witness on behalf of the respondent on the basis of a representation made
                 U.0.1. v. P. THAYAGARAJAN [RAJENDRA BABU, J.]                 117
                                                                                           I
    by them stating they are not in a position to attend the enquiry proceedings A
    but indicating the facts within their knowledge. The concerned authority was
    of the view that the witnesses should have been examined in person and the
    procedure adopted by the Enquiry Officer was contrary to the relevant rules
    in taking their letter as statements. The Enquiry Officer did not ascertain the
    facts necessary for the conclusion of the case. Therefore, he set aside the
    findings recorded by him and directed de nova enquiry by an order made on B
    May 19,1995 which was communicated to the respondent on June 7, 1995.
~   Challenging this order, the respondent preferred a writ petition in the High
    Court of Guahati. The learned Single Judge directed issue of rule but did not
    grant any interim order on the basis that Rule 15 of the Disciplinary Rules
    enables the authority to remit the matter to the Enquiry Officer for further C
    enquiry and that the power has been exercised by the authority under Rule
    15 and mere use of expression "de nova" will not change the tenor of the
    order. A writ appeal was preferred against the said order and the Division
    Bench of the High Court granted initially an interim order staying further
    proceedings in the enquiry and thereafter by an order made on December 15,
     1997 allowed the appeal by taking the view that in an appeal arising out of D
    an order of punishment made by the Disciplinary Authority accepting or
    rejecting the conclusion reached by the enquiry authority, the appellate
    authority could direct a fresh or de novo enquiry and such power is not
    available to the Disciplinary Authority. Thus, the Division Bench set aside the
    order made by the Disciplinary Authority on June 6, 1995. Hence this appeal E
    by special leave.

           Shri K.N. Rawal, learned Additional Solicitor General, appearing for the
    appellant, drew our attention to the Central Reserve Police Force Rules, 1955
    and in particular to Rule 27 thereof. Detailed procedure is set forth therein.
    Rule 27(c)(6) enables the Commandant, if he himself holds the enquiry, to          F
    record his findings and pass orders where he has power to do so and 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 orders where he
    has power to do so. He submitted that such power includes power to set             G
    aside findings of the Enquiry Officer if there is any serious infirmity in the
    conduct of an enquiry which may be detrimental either to the interests of the
    department or the delinquent official and in such a case it is certainly open
    to the Disciplinary Authority to order further or fresh enquiry, as the case may
    be. He further submitted that the Disciplinary Authority has the power to
    record his findings and pass appropriate orders in that regard and such a          H
    118                        SUPREME COURT REPORTS [1998] SUPP. 3 S.C.R.

A power is inherent in such Disciplinary Authority.
        Shri K. T.S. Tulsi, learned senior counsel appearing for the respondent,
  relied upon the decision of this court in K.R. Deb v. Collector of Central
  Excise, Shillong, [ 1971) 2 SCC 102, wherein, while interpreting Rule 15 of the
  Central Civil Services (Classification, Control and Appeal) Rules, 1957, it was
B held that the Disciplinary Authority has no power to set aside an earlier
  enquiry and order a fresh enquiry. He submitted that this decision makes it
  clear that it is not open to the Disciplinary Authority to order to conduct a
  fresh enquiry in this matter. Therefore, he urged that the view taken by the
  High Court is justified.
C          In order to satisfy ourselves of the correctness of the contentions
    raised on behalf of the parties, we called for the original record of the enquiry
    and of the Disciplinary Authority and on going through the same, we find
    that letters addressed to the Enquiry Officer have been treated as statements
    made before him ofU.N. Chaini (PW2) and letter sent by K.M. Verghese, who
    was to be examined as a defence witness.
D
          What is contemplated in Rule 27(c)(2) is that evidence material to the
  charge could be either oral or documentary and if oral, (i) it shall be direct;
  (ii) it shall be recorded by the officer conducting the enquiry himself or by
  any officer; and (iii) the accused shall be allowed to cross examine the
  witness. When reliance is sought to be placed on oral evidence of witnesses
E it will have to be obtained in the manner indicated in the said Rule and that
  the oral statement has to be recorded by the officer himself conducting the
  enquiry in the presence of the parties and it cannot be done in any other
  manner. The procedure in taking letters as statements is in violation of Rule
  27(c)(2). Therefore the contention put forth on behalf of the appellant and the
F reasons set forth in the course of the order setting aside the enquiry is
  justified. What Shri Tulsi urged with reference to the decision in K.R. Deb
  [supra] is that there is no power in the Disciplinary Authority to set aside an
  earlier enquiry and to order a fresh enquiry. We may, in particular, refer to para
   12 of the said decision which is as follows :

G           "It seems to us that Rule 15, on the face of it, really provides for one
            inquiry but it may be possible if in a particular case there has been
            no proper enquiry because some serious defect has crept into the
            inquiry or some important witnesses were not available at the time
            of the inquiry or were not examined for some other reason. The
            Disciplinary Authority may ask the Inquiry Officer to record further
H           evidence. But there is no provision in Rule 15 for completely setting
                U.0.1. v. P. THAYAGARAJAN [RAJENDRA BABU, J.]                 119
           aside previous inquiries on the ground that the report of the Inquiring   A
           Officer or Officers does not appeal to the Disciplinary Authority. The
           Disciplinary Authority has enough powers to reconsider the evidence
           itself and come to its own conclusion under Rule 9". [p.105] [emphasis
           supplie<i].
        A careful reading of this passage will make it clear that this court         B
  notices that if in a particular case where there has been no proper enquiry
  because of some serious defect having crept into the inquiry or some important
  witnesses were not available at the time of the inquiry or were not examined,
  the Disciplinary Authority may ask the Inquiry Officer to record further
  evidence but that provision would not enable the Disciplinary Authority to
  set aside the previous enquiries on the ground that the report of the Enquiry      C
  Officer does not appeal to the Disciplinary Authority. In the present case the
  basis upon which the Disciplinary Authority set aside the enquiry is that the
  procedure adopted by the Enquiry Officer was contrary to the relevant rules
, and affects the rights of the parties and not that the report does not appeal
  to him. When important evidence, either to be relied upon by the department        D
  or by the delinquent official, is shut out, this would not result in any
  advancement of any justice but on the other hand result in a miscarriage
  thereof. Therefore we are of the view that Rule 27(c) enables the Disciplinary
  Authority to record his findings on the report and to pass an appropriate
  order including ordering a de novo enquiry in a case of present nature.
                                                                                     E
         The reasoning adopted by the Division Bench of the High Court was
  plainly incorrect. Whatever may be the powers of the appellate authority, the
  Disciplinary Authority will have to be satisfied with the procedure adopted
  by the Enquiry Officer before passing an order. It does not stand the logic
  that in a given case the appellate authority could order a fresh enquiry and
  not the Disciplinary Authority at whose instance the enquiry began and             F
  which is not satisfied with the enquiry held for some vital defects in the
  procedure adopted. Therefore the order made by the High Court cannot be
  sustained. The same stands set aside and we allow the appeal and dismiss
  the writ petition filed by the respondent.
       Considering the fact that this matter has been pending before the             G
  authorities for a long time, we direct the appellant to complete the enquiry as
  expeditiously as possible but within three months from today and take an
  appropriate decision. The appeal is allowed in the aforesaid terms. No order
  as to costs.

  T.N.A.                                                         Appeal allowed.     H