Enquiry Officer Cannot Act As Presenting Officer And Cross-Examine Witnesses: Chhattisgarh HC Reiterates

A single judge bench of the Chhattisgarh High Court comprising of Justice Rajani Dubey while deciding a Civil Writ Petition in the case of Tapash Choudhary & Ors vs DG, CRPF & Ors. has held that an Enquiry Officer cannot act as Presenting Officer and cross-examine witnesses as it is against the principles of natural justice.

Background Facts

Tapas Choudhary and Mohammad Matiur Rahman (Petitioners) were enrolled in Central Reserve Police Force (CRPF) on the post of constable. On 23.08.2009, a group of CRPF members acted violently and sabotaged the regimental property in Shivpur. The Petitioners were issued charge sheet in respect of the aforesaid incident on the two counts i.e. firstly for consuming liquor and fighting with civilians in the market and secondly for instigating the force members to mutiny due to which an uncontrollable situation arose and the mob sabotaged the property.

A Departmental Enquiry was conducted against the Petitioners under Section 11 of the Central Reserve Police Force Act, 1949 (CRPF Act) and they were removed from service by the Commandant, 204 Special Action Force, CRPF (Respondent 4). Appeals were preferred against the order of removal of service before Inspector General, Combat Battalions for Resolute Action, CRPF (Respondent 2) which were also dismissed. Thus, the Petitioners filed the aforesaid Civil Writ Petition challenging the order of removal from service and the order for dismissal of appeal.

The Petitioners contended that Section 11 of the CRPF Act is for minor punishment, whereas the Petitioners have been prescribed a major punishment under the same. Further, The Enquiry Officer also acted as Presenting Officer by cross-examining the witnesses which vitiated the whole proceedings. It was further contended that Respondent 2 was not the prescribed authority for deciding appeals of the Petitioner.

On the other hand, it was contended by the Respondents that a proper departmental enquiry was conducted where the Petitioners were given reasonable opportunity to be heard. The charges against the Petitioners stood proved and the disciplinary authority passed an order of removal of service looking to the gravity of the misconduct and the findings of the Enquiry Officer. Further, in the Combat Battalions for Resolute Action, there is no concept of Range DIGP, thus the appeals of the Petitioners were considered and decided by Inspector General by taking into account all the aspects of the matter

Findings of the Court

The court considered the contention of the Petitioner regarding the Enquiry Officer acting as the Presenting Officer and cross-examining witnesses. In this context, the court observed that the conduct of the Enquiry Officer was against the principles of natural justice, he cannot act as both prosecutor and judge.

The court relied upon the judgment of Union of India Vs. Ram Lakhan Sharma wherein the Supreme Court had clearly held that an Inquiry Officer who is in the position of a Judge shall not act as a Presenting Officer, who is in the position of a prosecutor. The Supreme Court had further held that if the Inquiry Officer cross-examines the defence witnesses, then he acts as a prosecutor and thereby vitiates the inquiry.

The court further observed the Enquiry Officer conducted the whole enquiry against the Petitioners and acted as Presenting Officer. The Enquiry Officer cross-examined multiple witnesses and thus acted as a Prosecutor. Respondent 2 did not consider this aspect which deciding the Appeals on the Petitioners.

With the aforesaid observations, the Civil Writ Petition was allowed

Case No.- WPS No.3314 of 2011

Case Name- Tapash Choudhary & Ors vs DG, CRPF & Ors

Citation: 2024 LiveLaw (Chh) 6

Counsel for the Petitioner- Mr. R.S. Baghel

Counsel for the Respondents- Ms. Annapurna Tiwari

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