Enquiry Officer Acting As Prosecutor Through Leading Questions Vitiates Disciplinary Proceedings: Chhattisgarh High Court
The Chhattisgarh High Court has held that while non-appointment of a Presenting Officer by itself does not vitiate a disciplinary enquiry, an Enquiry Officer cannot assume the role of the prosecutor by putting leading or suggestive questions to prosecution witnesses. The Court held that such conduct compromises the Enquiry Officer's position as an independent adjudicator, gives rise to a clear apprehension of bias and vitiates the disciplinary proceedings.
Justice Sanjay K. Agrawal was hearing a writ petition filed challenging the penalty of removal from service imposed upon the petitioner and subsequently affirmed by the appellate authority. The disciplinary proceedings arose from the charge that the petitioner had entered into a second marriage during the lifetime of his first wife without obtaining prior permission from the Department, in violation of Rule 22(1) of the Chhattisgarh Civil Services (Conduct) Rules, 1965.
The petitioner contended that the Chhattisgarh Civil Services (Classification, Control and Appeal) Rules, 1966 applied to the disciplinary proceedings and that, in the absence of a Presenting Officer, the Enquiry Officer had himself acted as the prosecutor, therefore, it is violation of the principles of natural justice and thus the impugned order is liable to be set aside.
The Court confirmed that the Rules of 1966 apply to departmental and disciplinary proceedings against subordinate police personnel, including Police Constables, by virtue of Regulation 213 of the Chhattisgarh Police Regulations.
The Court noted that no presenting officer was appointed in the present disciplinary proceedings in compliance with Rule 14(5) (c) of the Rules of 1966, and the case of the petitioner is that the Enquiry Officer himself has acted as prosecutor, in violation of the principles of natural justice
Referring to Rule 14(5)(c), the Court observed that appointment of a Presenting Officer is not mandatory and its non-appointment, by itself, does not vitiate an enquiry, provided the Enquiry Officer acts fairly, reasonably and independently. It, however, held that when the Enquiry Officer assumes the role of prosecutor, he ceases to remain an impartial adjudicator.
“… where, in the absence of a Presenting Officer, the Enquiry Officer assumes the role of the Department's prosecutor by cross-examining material witnesses and putting leading or suggestive questions to elicit evidence in support of the charges, he ceases to remain an impartial adjudicator,” the Court remarked.
Reflecting on the consequential effect of the twin role, the Court observed:
“Such conduct amounts to an impermissible assumption of the prosecutorial role, resulting in bias and denial of a fair and impartial enquiry, and consequently vitiates the disciplinary proceedings.”
Applying these principles, the Court found that although no Presenting Officer had been appointed, the Enquiry Officer had himself cross-examined the material prosecution witnesses. The Court held that this went beyond mere clarification and amounted to assuming the prosecutorial role, compromising the Enquiry Officer's position as an independent adjudicator and giving rise to a clear apprehension of bias. Elucidating upon the role of the Enquiry Officer, the Court observed:
“… the Enquiry Officer must continue to remain impartial and cannot assume the role of the prosecutor. While he may put questions to witnesses for clarification or to ascertain the truth, he cannot conduct the examination or cross examination in a manner that advances or establishes the Department's case, including by putting leading or suggestive questions to the witnesses.”
Accordingly, the Court quashed the orders imposing and affirming the penalty of removal from service. It directed reinstatement if the petitioner had not completed the age of superannuation.
Case Title: Surendra Singh Kachhawah v. Additional Director General of Police (Administration) & Ors. [WPS No. 5000 of 2019]