Summary
The Supreme Court set aside the dismissal of a CID constable after disciplinary proceedings, holding that the State's failure to produce the departmental file despite a court order attracted an adverse presumption under Section 114(g) of the Evidence Act, that the charges were vague and the appellant was denied cross-examination of the key witness and the complainant was never examined, and that the finding on the principal charge could not survive his acquittal on substantially identical charges; reinstatement being impossible, lump-sum compensation of Rs. 30 lakh with costs was awarded.
Issues
- Whether due process was followed in the disciplinary proceedings culminating in the appellant's dismissal, and whether the dismissal was justified.
- Whether the charges in the criminal and departmental proceedings were substantially identical so that the appellant's acquittal rendered the disciplinary findings unsustainable.
- What inference follows from the State's failure to produce the departmental file despite the Supreme Court's direction.
- Whether the Division Bench was right to set aside the Single Judge's order quashing the dismissal, and what relief the appellant is entitled to.
Provisions considered
- Section 114, illustration (g), Indian Evidence Act, 1872Where a party fails to produce evidence within its control, it is presumed that the withheld evidence would be unfavourable to it; the State having neither produced the departmental file as directed nor sought time, the Court presumed it was withheld lest the illegality of the proceedings be exposed, and drew the adverse inference on the vagueness of the charges and the similarity between the criminal and departmental cases. (¶¶ 27, 28, 33, 52)
- Rule 55, Civil Services (Classification, Control and Appeal) Rules, 1930Applicable to the appellant, a non-gazetted CID constable, through Note 1 to Rule 2 of the Bihar and Orissa Subordinate Services (Discipline and Appeal) Rules, 1935; it requires the grounds of proposed action to be framed as specific charges with a detailed statement of allegations, and permits the charged official to cross-examine witnesses. The chargesheet contravened the rule and the right of cross-examination was denied. (¶¶ 30, 31, 32, 34, 36)
- Rule 2, Note 1, Bihar and Orissa Subordinate Services (Discipline and Appeal) Rules, 1935Inferred (in the absence of the chargesheet) to be the source of power for the disciplinary proceedings against a non-gazetted police constable by virtue of Rule 824A(e) of the Bihar Police Manual, 1978; Note 1 makes the procedure in Rule 55 of the 1930 Rules mandatory before dismissal. (¶¶ 30, 31, 32)
- Articles 226 and 227, Constitution of IndiaThe High Court in judicial review of disciplinary action does not sit in appeal and scrutinises the decision-making process, but may rectify errors of law or procedural irregularities causing manifest miscarriage of justice or breach of natural justice. (¶ 55)
Held
- Where the State withholds the departmental file despite a court order, the presumption under Section 114(g) of the Evidence Act is that the file would have exposed illegality; the charged employee's version that the charges were vague, indefinite and lacking material particulars must then be accepted, and a chargesheet so flawed from inception vitiates the proceedings. (¶¶ 27, 28, 33, 34, 35)
- The denial of an opportunity to cross-examine the principal witness, one of only two who testified and against whom a personal vendetta was alleged, caused prejudice; the employer's shifting stand on whether the opportunity was offered, and the improbability of a reasonable person forgoing such a right, favoured the finding that the right was denied. (¶¶ 36, 37, 38, 56, 57)
- An inquiry officer cannot disbelieve a witness's cross-examination solely because it occurred after a long delay without first attributing the delay to the charged employee; it is the prosecution's responsibility to produce the witness. Findings must rest on legal evidence, not surmise, and mere suspicion cannot replace proof even in domestic inquiries. (¶¶ 40, 41, 42)
- Mere production of a document is not proof; where a chargesheet is founded on a written complaint, the complainant must be examined. Non-examination of the informant was a glaring error in the decision-making process. (¶¶ 43, 59)
- An acquittal does not automatically undo a dismissal, but where the charges, evidence, witnesses and circumstances in the criminal and departmental proceedings are identical or substantially similar, sustaining the disciplinary findings is unjust and oppressive; the substance of the acquittal, not labels like benefit of doubt, matters. The finding on charge no. 1 could not survive the appellant's acquittal on the merits. (¶¶ 47, 49, 50, 51, 53)
- A previous finding of guilt may be included in a later chargesheet to seek enhanced punishment, provided the employee is given sufficient notice of that intention; the plea of double jeopardy on charge no. 2 was overruled, though the question of punishment did not survive the incurable defects in the proceedings. (¶ 60)
- An employee arrested on the day he was due to resume duty could not reasonably be charged with failing to resume duty or to report his arrest until released on bail, particularly where his request to the officer-in-charge to inform his department was ignored. (¶¶ 61, 62)
- While the Single Judge had largely exercised appellate jurisdiction, the Division Bench overlooked the vices in the decision-making process, resulting in a failure of justice; given the appellant's age and the lapse of time, reinstatement was refused and lump-sum compensation inclusive of all service and retiral benefits was awarded in lieu, with the Single Judge's direction for full back wages set aside. (¶¶ 45, 66, 67, 68)
Result
Appeal disposed of; Division Bench judgment dated 16.11.2016 and the orders of dismissal, appeal and revision (21.06.1996, 14.07.1997 and 06.08.2003) set aside; Single Judge's order partly upheld, direction for full back wages set aside; reinstatement refused; respondents to pay lump-sum compensation of Rs. 30 lakh inclusive of all service and retiral benefits and costs of Rs. 5 lakh within three months.