1 2025:CGHC:44181-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WA No. 638 of 2025 1 - State Of Chhattisgarh Through The Secretary, Department Of Home Mahanadi Bhawan, Mantralaya, Naya Raipur, District Raipur Chhattisgarh 2 - The Director General Of Police Police Headquarter Raipur District Raipur, Chhattisgarh 3 - The Inspector General Of Police Raipur Range Raipur District Raipur Chhattisgarh 4 - The Superintendent Of Police Raipur, District Raipur, Chhattisgarh (All The Appellants Are Respondents In Writ Petition) … Appellants versus Narendra Kumar Yadav S/o Shani Ram Yadav Aged About 30 Years Was Earlier Posted At Police Constable Police Line Mahasamund R/o - Parwati Nagar, Near Vidya Jyoti School Gudhiyari Raipur, District Raipur Chhattisgarh (Respondent In The Writ Petition) ... Respondent SHOAIB ANWAR Digitally signed by SHOAIB ANWAR Date: 2025.09.03 10:38:38 +0530 2 For Appellants/State : Shri Y.S. Thakur, Additional Advocate General For Respondent : Shri Abhishek Pandey, Advocate. Hon' ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Bibhu Datta Guru , Judge Judgment on Board Per Ramesh Sinha , Chief Justice 01.09.2025 1. Heard on I.A. No. 01/2025, application for condonation of delay. 2. On due consideration and for the reasons mentioned in the application, the same is allowed. Delay of 106 days in fling of the appeal is hereby condoned. 3. The State/appellants/respondents in writ petition has filed this writ appeal assailing the order dated 21.02.2025 passed by the learned Single Judge of this Court in WPS No.2065 of 2015, by which, the learned Single Judge has allowed the petition. 4. The brief facts of the case as projected by the writ petitioner (respondent herein) in WPS No. 2065/2015 are that the petitioner was working as Constable No.365 at Police Station – Mahasamund. He along with other Head Constables i.e. Head Constable No.245 Alexius Minj, Constable no.315 Deepak Vidani, 3 Constable No.364 Sanjeet Singh and Constable No.357 Suryakant Singh Thakur were served with a charge sheet with charges as mentioned herein below- (1) आरक्षक कमां क 365 नरन्द्र या दव, आरक्षक कमां क. 357 सुयाक त सिंसुह आरक्षक कमां क 264 सुजी#त सिंसुह,आरक्षक कमां क 315 द$पक विवद न# द्वा र :- 01-दिदन क 24.01.2013 क, प्रा त. वि/न अनमांवित मांच सुरक्ष ड्यू3टी$ स्थल छो,ड़कर रक्षिक्षत क न्द्र मांह सुमांसुद मां: आमांद दिदया वि/न / ल -/ ल आर्म्ससु एर्म्सयानशन जीमां कर कतब्या क प्रावित घा र उद सु#नत /रतन । 02-मांह सुमांद नक्सुल प्राभा विवत जिजील ह,न क / वजी3द दिदन क 24.01.2013 कE र विF मां: गणतF दिदवसु सुमां र,ह स्थल मिमांन# स्टीविKयामां मांच कE सुरक्ष ग K कE ड्यू3टी$ गभा#रत प3वक एव सुतक त प3वक न कर गLरजिजीर्म्समांद र# प3वक ड्यू3टी$ करन , जिजीसुक परिरण मांस्वरूप 01 इंसु सु र याफल /टी नर्म्स/र 42 एव 20 नग क रतसु कE च,र# ह,न जीLसु# गभा#र घाटीन घादिटीत ह,न कE स्थिस्थवित विनर्मिमांत ह,न , जिजीसुसु आमां जीनत मां: पलिलसु कE छोविव धू3मिमांल ह,न । (2) प्राधू न आरक्षक कमां क 245 अलकलिसुयासु मिंमांजी द्वा र .- दिदन क 24.01.2013 क, गणतF दिदवसु सुमां र,ह स्थल मिमांन#स्टीविKयामां मांच कE सुरक्ष ग K प्राभा र# क रूप मां: ग ईसु चWविकग क दXर न आर्म्ससु एर्म्सयानशन चक नह# करन एव ग K आरक्षकY कE ल परव ह# / /तZ सुक्त विनद[श न दकर कतब्या क प्रावित घा,र उद सु#नत /रतन । 5. Reply to the said charge sheet was submitted by the petitioner which was found to be unsatisfactory, therefore, a departmental 4 enquiry was initiated against the petitioner and other delinquent employees. Statement of the witnesses were recorded during the departmental enquiry and documents were also exhibited. Report of departmental enquiry was also supplied to the petitioner who submitted his reply and ultimately vide order dated 22/08/2013 Superintendent of Police terminated the Head Constable No.245 Alexius Minj, Constable no.315 Deepak Vidani and the present petitioner. A major punishment of demotion on minimum pay scale of the Constable for two years was imposed upon Constable No.357 Suryakant Singh Thakur and Constable no.364 Sanjeet Singh. The petitioner preferred a departmental appeal before the Inspector General of Police which was dismissed vide order dated 16/01/2014 affirming the order of termination passed by the Superintendent of Police and a revision petition was also filed before the DGP against the order passed by the IGP which was also dismissed by it vide its order dated 19/01/2015. 6. After hearing learned counsel for the parties, the learned Single Judge allowed the writ petition by the order impugned and has observed as under:- “7. The petitioner has not challenged the departmental enquiry on the ground that during the course of 5 departmental enquiry, he was not afforded opportunity of hearing on merits of the case. Challenge is on three counts. Firstly, the Rules of 1966 have not been strictly adhere to, secondly, the enquiry officer and the presenting officer are one and the same and the enquiry officer has examined and cross-examined the witnesses including cross examination of the petitioner and thirdly, the other delinquent employee who were proceeded in the departmental enquiry along with the petitioner have succeeded in their writ petitions and their termination orders were set aside and therefore, the judgment in their case would follow in the case of the petitioner. 8.The perusal of record indicates that a joint charge- sheet was issued against the petitioner and other delinquent employees. A departmental enquiry was also conducted against them. Three delinquent employees were punished with major penalty of termination from service and the other two employees were awarded with different major punishment of demotion on minimum pay scale of the constable of minimum pay of two years. Record also reflect that the other delinquent employees Alexius Minj and Deepak Vidani preferred the above writ petitions and those writ petitions were allowed on the ground that there is violation of Rule 18 of the Rules of 1966. For ready reference, Rule 18 is quoted herein below - “Common proceedings – (1) Where two or more 6 Government servants are concerned in any case, the Governor or any other authority competent to impose the penalty of dismissal from service on all such Government servants may make an order directing that disciplinary action against all of them may be taken in a common proceeding. Note - If the authorities competent to impose the penalty of dismissal on such Government servants are different, an order for taking disciplinary action in a common proceeding may be made by the highest of such authorities with the consent of the others. (2) Subject to the provisions of sub-rule (3) of Rule 12, any such order shall specify : (i) the authority which may function as the disciplinary authority for the purpose of such common proceeding; (ii) the penalties specified in Rule 10 which such disciplinary authority shall be competent to impose; and (iii) whether the procedure laid down in Rule 14 and Rule 15 or Rule 16 shall be followed in the proceeding.” 9. Therefore, as the other delinquent employees have been granted relief by this Court in WPS No.821/2014 and WPS No.3326/2015 and as such, no appeal has been preferred against those orders, the orders have attained finality. It is not in dispute that they have also proceeded the petitioner with the departmental enquiry, 7 therefore, the law laid down by this Court in those writ petitions would squarely apply in the case of the petitioner also. Apart from this, it has to be seen that the enquiry officer was also the presenting officer and it is not permissible in the light of judgment of this Court in WPS No.1166/2011 and similar legal position has been enumerated by the Division Bench of this Court in W.A.362/2023. 10. Considering the entire aspect of the matter, this Court is of the view that the petitioner’s case cannot be segregated with the case of Alexuis Minj and Deepak Vidani and also deserve the same relief which have been granted to them. Therefore, the impugned orders Annexure P/1, Annexure P/2 and Annexure P/3 are set aside and quashed. The petitioner is re-instated in service with all service benefits. Since the writ petition is allowed on technical grounds, State would be at liberty to proceed against the petitioner if so advised in accordance with law. ” 7. Learned counsel for the State/appellants/respondents submit that learned Single Judge has erred in passing the impugned 8 judgment. He further submits that looking to the serious nature of charges leveled against the respondent herein (writ petitioner), a full fledged departmental enquiry was conducted. Evidence were recorded and proper opportunity to defend himself was afforded to the writ petitioner and the grounds which have been raised have never been raised have never been raised in the departmental enquiry. He further submits that respondent herein is the sole responsible for the Rifle handled by him and the missing Rifle was in his possession under his responsibility. He further submits that there was a grave lapse on the part of the respondent herein which had resulted into serious consequence of loss of INSAS (Indian Small Arms Systems) Rifle with 20 bullets/Cartridges. It will not be needless to mention here that the weapon INSAS Rifle lost due to lapse in duty of the respondent is a sophisticated automatic weapon with which the police personnel of Naxalite affected area have been armed. Learned counsel further submits that the learned Single Judge has failed to appreciate that the departmental appeal and revision were duly considered and dismissed by competent authorities after application of mind, which were never shown to be perverse or passed in violation of natural justice. 8. On the other hand, learned counsel appearing for the 9 respondent/writ petitioner would submit that along with the respondent, other delinquent employees namely Alexius Minj and Deepak Vidani have challenged their termination order before this Court. Learned counsel for the respondent/writ petitioner submits that the departmental enquiry against all the delinquent employees were conducted and a notice to initiate such departmental enquiry against all the delinquent employee as required under Rule 18 of Civil Services Classification and Control Rules, 1966 (for short ‘the Rules of 1966’) has not been complied with, therefore, from the very inception, the departmental enquiry was bad in law and it has vitiated the same. He further submits that no presenting officer was appointed in the departmental enquiry and the enquiry officer has acted as a presenting officer and also examined and cross- examined the respondent and the witnesses which also vitiates the departmental enquiry. He further submits that the delinquent employee Alexius Minj who was also proceeded with the writ petitioner in the departmental enquiry preferred a petition i.e. WPS No.821/2014 against his termination which was allowed by this Court vide its order dated 02/05/2024. Likewise, the delinquent employee Constable No.315 Deepak Vidani also filed writ petition No.3326/2015 challenging the same 10 departmental enquiry which was also allowed by this Court vide order dated 26/06/2024 and their termination was set aside and they were directed to be reinstated in service. He submits that the issue with regard to non-appointment of the presenting officer and enquiry officer acting as presenting officer is no longer res integra in the light of judgment of this Court in WPS No.1166/2011 passed on 01/10/2018 wherein this Court has held that if the enquiry officer acts as a presenting officer, the enquiry would be vitiated. The said order was subject to challenge by the State before the Division Bench in W.A. No.500/19 and the writ appeal filed by the State Government was dismissed vide judgment dated 31/08/2021 affirming the order passed by this Court in WPS No.1166/2011. In this regard, he also placed reliance on the judgment of this Court passed in W.A.No.362/2023 passed on 12/09/2023 wherein also the Hon’ble Division Bench of this Court approved the said legal issue. He further submits that the order of the writ petition of the other delinquent employees proceeded along with the petitioner has not been challenged by the State Government, the same would apply in the case of the writ petitioner also. According to the writ petitioner, while allowing the writ petitions of similarly situated persons, no such liberty was given to the State to 11 proceed against them and even the State has not filed writ appeal against the orders passed in the said writ petitions. In the case at hand, the authorities are acting in a biased manner against the writ petitioner. Therefore, the writ appeal is liable to be dismissed. 9. We have heard learned counsel for the parties and perused the material available in the record. 10. The short issue on which the departmental enquiry was questioned was that in absence of Presenting Officer having been appointed in the departmental enquiry conducted against the writ petitioner, the Enquiry Officer himself examined and cross-examined the witnesses when evidence on behalf of the delinquent employee and his witnesses were produced, therefore, the enquiry is vitiated. 11. The State/appellant has not disputed the fact that the Presenting Officer has not been appointed in the instant case and the enquiry officer himself examined and cross-examined the witnesses. The only submission of the State is that the enquiry was conducted after affording due opportunity of hearing to the petitioner. Even the State has not disputed the fact that they have not filed writ appeals in respect of the orders passed by the 12 writ petition with regard to the petitions filed by similarly situated police personnel and in those case liberty was not given to the State to proceed against those persons. 12.After considering the entire aspects of the matter, we are of the view that in a case where an Enquiry Officer is appointed, he is not entitled to examine a delinquent or his witnesses. The same can be done only by the Presenting Officer appointed by the Disciplinary Authority. In the case at hand, it is an admitted position that when the witnesses of the delinquent employee were examined, they were cross-examined by the Enquiry Officer, not by the Presenting Officer. 13. In the matter of Union of India and Others Vs. Ram Lakhan Sharma, [(2018) 7 SCC 670: 2018 CJ (SC) 557] the Hon'ble Supreme Court has held thus at paras 30 and 37: "30. This Court had occasion to observe in Workmen of Lambabari Tea Estate that if the Enquiry Officer did not keep his function as Enquiry Officer but becomes prosecutor, the inquiry is vitiated. The following was observed: (FLR p.362) "The inquiry which was held by the management on the first charge was presided over by the manager 13 himself. It was conducted in the presence of the Assistant Manager and two others. The enquiry was not correct in its procedure. The manager recorded the statements, cross examined the labourers who were the offenders and made and recorded his own statements on facts and questioned the offending labourers about the truth of his own statements recorded by himself. The manager did not keep his function as the enquiring officer distinct but became witness, prosecutor and manager in turns. The record of the enquiry as a result is staccato and unsatisfactory." XXX XXX XXX XXX XXX XXX 37. The High Court having come to the conclusion that Enquiry Officer has acted as prosecutor also, the capacity of independent adjudicator was lost while adversely affecting his independent role of adjudicator. In the circumstances, the principle of bias shall come into play and the High Court was right in setting aside the dismissal orders by giving liberty to the appellants 14 to proceed with inquiry afresh. We make it clear that our observations as made above are in the facts of the present cases." 14.In Ram Lakhan Sharma (supra) at para 31 the Hon'ble Supreme Court referred to the law laid down by the High Court of Madhya Pradesh in the matter of Union of India Vs. Mohd. Naseem Siddiqui, [2005-I-LLJ 931 MP]. 15.The law is, thus, well settled that the Enquiry Officer cannot act as a Presenting Officer, who is in the position of a prosecutor. Whether or not in a given case the enquiry is vitiated would depend on the facts and circumstances of the case. 16.It is noteworthy to mention here that in respect of orders passed by the learned Writ Court in the cases of similarly situated police personnel, wherein their respective writ petitions have been allowed and further directed for their reinstatement, the State has not filed writ appeals whereas in the instant case they have filed the writ appeal, which appears to be biased. 17. For the reasons discussed hereinabove, we are of the considered view that while passing the order impugned in respect of quashment of order of termination, appellate order as well as the revisional order by the Superintendent of Police, Inspector 15 General of Police and the Director General of Police, respectively, the learned Single Judge has not committed any illegality, irregularity or jurisdictional error. The same is just and proper, warranting no interference of this Court. However, the liberty given to the State by the learned Single Judge to proceed against the petitioner, if so advised, in accordance with law, is hereby set aside, because while dealing with the cases of other similarly situated persons such liberty has not been given by the writ Court to the State. Even the orders passed in the writ petition filed by other two delinquent employees have not been challenged by the State shows that, the State authorities are acting against the present writ petitioner in a biased manner. 18. Accordingly, the writ appeal is dismissed with the aforesaid modification. Sd/- Sd/- (Bibhu Datta Guru) (Ramesh Sinha) Judge Chief Justice shoaib/Gowri