Mohd.Yunus Khan Vs.
State of U.P.& Ors.  INSC 783 (28 September 2010)
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.............../2010
(Arising out of S.L.P.(C) NO. 19318/2007) Mohd. Yunus Khan ... Appellant Versus
State of U.P. & Ors. ...Respondents
Dr. B.S. CHAUHAN, J.
The facts of the
present case reveal that a person who initiated the disciplinary proceedings
against the appellant for disobeying his own orders; appointed his subordinate
as an inquiry officer; appeared as a witness in the proceedings to prove the
charges of disobedience of his orders; accepted the enquiry report; and further
passed the order of punishment - i.e. dismissal of the appellant from service.
The question does arise as to whether such a course is permissible in law.
appeal has been preferred against the judgment and order dated 12th July, 2007
passed by the High Court of Allahabad (Lucknow Bench), dismissing the Writ
Petition No. 782 of 2007 filed by the appellant against the judgment and order
of the U.P. State Public Services Tribunal, (hereinafter referred to as the
`Tribunal') Lucknow dated 25th May, 2007, by which the Tribunal dismissed the
Claim Petition No. 837 of 2003 filed by the appellant and upheld the order of
dismissal of the appellant from service by the Statutory Authorities.
and circumstances giving rise to this case are that the appellant was appointed
as a Constable in the Provincial Armed Constabulary (hereinafter referred to as
`PAC') on 10th February, 1969 and promoted to the post of Head Constable vide
order dated 5th May, 1983. The appellant was posted with 30th Battalion PAC in
G- Company in the year 2002. On 29th September, 2002, the appellant was on duty
as Guard Commander along with another Head Constable named Rama Nand. At around
6.20 A.M., the appellant left his post and came back after 25 minutes after
having tea and medicine in the canteen. His departure from his post was duly
recorded in the register maintained for the purpose by the other guard, Head
Constable Rama Nand. The Dal Nayak endorsed his comments in respect of the
appellant's absence for the period of 25 minutes and placed it before the
Commandant on 3rd October, 2002. The Commandant vide order dated 4th October,
2002 imposed the punishment of 10 days punishment drill. Upon protest by the
appellant, the Commandant enhanced the punishment to 10 days confinement in a
cell. The appellant refused to serve the punishment being not acceptable to
to serve the punishment so imposed by the appellant was considered to be a
serious act of indiscipline and he was placed under suspension. The appellant
was served with a chargesheet dated 2nd December, 2002 indicating that an
enquiry was to be held against him under Rule 14(1) of the Uttar Pradesh Police
Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991
(hereinafter referred to as `the Rules 1991). The appellant submitted his reply
to the said chargesheet on 11th December, 2002. The inquiry officer concluded
the enquiry and submitted the report on 28th March, 2003 with the finding that
the appellant was guilty of negligence and disobedience and recommended his
removal from service.
Disciplinary Authority issued a notice dated 31st March, 2003 to the appellant
to show cause as to why his services should not be terminated in view of the
enquiry report. The appellant submitted his reply to the said show cause on 7th
April, 2003. After considering the same, the Commandant passed the order dated
8th April, 2003 imposing the punishment of termination from service.
aggrieved, the appellant preferred an appeal against the order of termination.
However, the said appeal was dismissed by the Appellate Authority vide order
dated 25th August, 2003. The appellant challenged the said order of termination
before the Tribunal by filing Claim Petition No. 837 of 2003. The Tribunal
dismissed the said Claim Petition vide judgment and order dated 25th May, 2007
recording the finding that the absence from duty for 25 minutes on 29th
September, 2002 was bona fide and permissible under Rule 21 of the Guard and
Escort Rules, however, not obeying the order of punishment was a case of gross
indiscipline and thus, order of termination of his services was justified.
aggrieved of the said judgment and order of the Tribunal, the appellant
preferred a Writ Petition before the High Court which was dismissed vide
impugned judgment and order dated 12th July, 2007 in a cursory manner without
considering the issues raised by the appellant, merely on the ground that
charge of disobedience of the orders of the higher authority stood proved and
the enquiry had been conducted in accordance with law. Hence, this appeal.
Tripurari Ray, learned counsel appearing for the appellant has raised large
number of submissions, inter-alia, the absence from duty for a short -
specified period, when other guard is present on duty, is permissible under the
Guard and Escort Rules. The appellant had left his duty for only 25 minutes and
it was so recorded in the register at the spot. If such an absence is
permissible in law, imposing the punishment of 10 days' punishment drill was
unwarranted. More so, it had been awarded without giving a proper opportunity
of hearing to the appellant. The appellant's protest against such an arbitrary imposition
of punishment could not be the ground for enhancing the punishment to 10 days
confinement in a cell; depriving him of his personal liberty was totally
unwarranted and uncalled for, particularly, in view of the fact that the
imposition of the very first punishment was in contravention of the statutory
rules. The disciplinary authority did not consider the reply submitted by the
appellant against the show cause notice wherein it had specifically been
submitted that in case the Commandant was of the view that his orders had been
violated, he should have referred the matter to his superior officer to
transfer the disciplinary proceedings to another coordinate officer and that
officer should have conducted the enquiry.
Authority himself appeared as a witness in the enquiry. Thus, the enquiry
itself stood vitiated. The punishment of dismissal remained disproportionate to
the proved delinquency; the Appellate Authority considered while passing the
order, the past conduct of the appellant for the purpose of confirming the
order of punishment passed by the Disciplinary Authority. The appellant's past
conduct had never been the part of the chargesheet or the show cause notice;
nor had the appellant ever been informed that his past conduct was likely to be
considered at the time of passing the order of punishment. The High Court
failed to consider that, in a case where there had been a violation of the
statutory provisions, or principles of natural justice, power of judicial
review required to be exercised. The appeal deserves to be allowed.
contra, Shri Ameet Singh, learned counsel appearing for the State of U.P., has
opposed the appeal contending that the appellant had been the member of a
disciplined force. Indiscipline therein, amounts to a very serious misconduct.
Therefore, it is intolerable.
Once the charge of
absence and further charge of disobedience stood proved, the matter does not
deserve to be considered by this Court.
The appeal lacks
merit and is liable to be dismissed.
have considered the rival submissions made by learned counsel for the parties
and perused the record.
enquiry was initiated against the appellant by the Commandant, for disobedience
of the order of punishment by the Commandant himself. The charge-sheet
contained two basic charges which read as under:- "1. Your duty was as a
Guard Commander in the Vahini Quarter Guard from 22.9.2002 to 29.9.2002. On
29.9.2002 in the morning at 06.30 a.m., inspection of the Vahini Quarter Guard
was made by the Platoon Officer of "G" Platoon, when you were found
absent. With regard to this absence the Second Guard Commander H.C.39074 Rama
Nand told that you have gone to take tea and medicine. This was mentioned by
the Platoon Officer "G" Platoon in the Inspection Book. With regard
to this absence your explanation was sought by the Platoon Officer
"G" Platoon, when you did not give 7 satisfactory explanation and
you sought that your explanation be placed before the Senanayak, in your
explanation you alleged violation of rules and standing orders by the Platoon
Officer "G" Platoon, which was submitted by the Platoon Officer
"G" Platoon on 3.10.2002 with his comments before the Senanayak to
produce you in his chamber.
2. On 4.10.2002 when
you appeared before the Senanayak in the Orderly Chamber, after the hearing 10
days' P.D. was awarded to you which you declined. On this you were punished by
the Senanayak for violation of his order passed in the Orderly Chamber with 10
days cell punishment, which you the H.C. did not accept and after saluting the
Commandant you voluntarily went out of the chamber."
inquiry officer conducted the enquiry and on its conclusion held that the
appellant was guilty on both counts. The Disciplinary Authority accepted the
report and held that:
Khan has been found to be violating orders and bleak chances of improvement,
not fit to be retained in a disciplined force like PAC as his continuance in
the force will have adverse effect on other personnel. He is guilty of
negligence in duty, indiscipline and disobedience of orders."
awarded the punishment - dismissal from service.
Appellate Authority, while affirming the said order of punishment, considered
the past conduct of the appellant wherein it had been mentioned that the
appellant had been given 8 petty punishments; 3 censure entries; and a penalty
of reversion for six months from the post of Head Constable to the post of Constable.
He was also reduced to the lowest pay scale of Rs.975/- for one year after he
had been found guilty in a departmental enquiry.
Tribunal dismissed the Claim Petition filed by the appellant, however, it
recorded the finding that the absence of the appellant for 25 minutes was bona
fide and legally permissible in view of the provisions of Rule 21 of the Guard
and Escort Rules.
subsequent misconduct, i.e., disobedience in carrying out the punishment was a
serious matter. The Tribunal also took note of the order of the Appellate
Authority wherein the past conduct of the appellant had been taken into
consideration. The High Court dismissed the Writ Petition without realising the
gravity of the legal issues involved in the case.
have to proceed, keeping in mind the trite law that holding disciplinary
proceedings against a government employee and imposing a punishment on his
being found guilty of misconduct under the statutory rules is in the nature of
Though, the technical
rules of procedure contained in the Code of Civil Procedure, 1908 and the
provisions of the Indian Evidence Act, 1872 do not apply in a domestic enquiry,
however, the principles of natural justice require to be observed strictly. Therefore,
the enquiry is to be conducted fairly and reasonably and the enquiry report
must contain reasons for reaching the conclusion that the charge framed against
the delinquent stood proved against him. It cannot be an ipse dixit of the
inquiry officer. Punishment for misconduct can be imposed in consonance with
the statutory rules and principles of natural justice. (See Bachhittar Singh v.
State of Punjab & Anr., AIR 1963 SC 395; Union of India v. H.C. Goel, AIR
1964 SC 364;
Anil Kumar v.
Presiding Officer & Ors., AIR 1985 SC 1121;
Moni Shankar v. Union
of India & Anr. (2008) 3 SCC 484; and Union of India & Ors. v. Prakash
Kumar Tandon, (2009) 2 SCC 541).
Tribunal has categorically held that absence of the appellant from duty for
such a short span of time was permissible in view of the statutory rules and
was bona fide. That finding was not challenged by the respondents any further
and attained finality. This finding of the Tribunal leads us to the questions
that in case the first punishment of 10 days punishment drill was unwarranted
whether any protest
against such punishment, authorised the Commandant to enhance the punishment to
10 days confinement in a cell; and whether further disobedience thereof, ought
to have enabled the Commandant to initiate the disciplinary proceedings against
the appellant. These questions have to be considered keeping in mind that the
appellant was a member of disciplined force and the Appellate Authority as well
as the Tribunal had very heavily relied on the past conduct of the appellant
for considering the proportionality of the punishment, though it had not been a
part of the charge-sheet nor was the appellant informed of the same while
issuing the second show cause notice, giving him the opportunity to make his
representation against the enquiry report.
Union of India & Ors. v. L.D. Balam Singh, (2002) 9 SCC 73, this Court
observed as under:
extent of restrictions necessary to be imposed on any of the fundamental rights
in their application to the armed forces and the forces charged with the
mainte- nance of public order for the purpose of ensuring proper discharge of
their duties and maintenance of discipline among them would necessarily depend
upon the prevail- ing situation at a given point of time and it would be in-
advisable to encase it in a rigid statutory formula. The Constitution-makers
were obviously anxious that no more restrictions should be placed than are
absolutely necessary for ensuring proper discharge of duties and the
maintenance of discipline amongst the armed force personnel". (Emphasis
Lt. Col. Prithpal Singh Bedi v. Union of India & Ors., AIR 1982 SC 1413,
this Court observed:
"It is one of
the cardinal features of our Constitu- tion that a person by enlisting in or
entering armed forces does not cease to be a citizen so as to wholly de- prive
him of his rights under the Constitution....
Persons subject to
Army Act are citizens of this an- cient land having a feeling of belonging to
the civilised community governed by the liberty-oriented constitution.
makes for the worth of human being and is a cherished and prized right.
Deprivation thereof must be preceded by an enquiry ensuring fair, just and rea-
sonable procedure and trial".
R. Viswan & Ors. v. Union of India & Ors., AIR 1983 SC 658,
Constitution Bench of this Court observed:
12 "Morale and
discipline are indeed the very soul of an army and no other consideration,
howsoever important, can outweigh the need to strengthen the morale of the
Armed Forces and to maintain discipline amongst them.
Any relaxation in the
matter of morale and discipline may prove disastrous and ultimately lead to
chaos and ruination affecting the well being and imperilling the hu- man rights
of the entire people of the country".
the requirements of morale, discipline and justice have to be reconciled. There
is no scarcity of examples in history, and we see it in day-to-day life also,
that even in disciplined forces, forced morale and discipline without assured
justice breeds defiance and belligerency. Our Constitution protects not only
the life and liberty but also the dignity of every person. Life convicts and
hardcore criminals deprived of personal liberty are also not wholly denuded of
their Constitutional rights. Arbitrariness is an anathema to the principles of
reasonableness and fairness enshrined in our constitutional provisions. The
rule of law prohibits the exercise of power in an arbitrary manner and/or in a
manner that travels beyond the boundaries of reasonableness. Thus, a statutory
authority is not permitted to act whimsically/arbitrarily. Its actions should
be guided by the principles of reasonableness and fairness. The authority
cannot be permitted to abuse the law or to use it unfairly.
13 of the Rules 1991 reads as under:
competent to conduct disciplinary proceedings- A gazetted officer of the Police
Force who is either a prosecution witness in the case or has either conducted a
preliminary enquiry in that case shall not conduct inquiry in that case under
these rules. In case the said gazetted officer is the Superintendent of Police
himself, the Deputy Inspector-General concerned shall be moved to transfer the
case to some other district or unit as the case may be." (Emphasis added)
It is evident from the aforesaid rule that a person who is a witness in a case
can neither initiate the disciplinary proceedings nor pass an order of
Constitution Bench of this Court in State of U.P. v. Mohd. Noor, AIR 1958 SC
86, rejected a submission made on behalf of the State that there was nothing
wrong with the Presiding Officer of a Tribunal appearing as a witness and
deciding the same case, observing as under:
"The two roles
could not obviously be played by one and the same person.......the act of Shri
B. N. Bhalla in having his own testimony recorded in the case indubitably
evidences a state of mind which clearly discloses considerable bias against the
respondent. If it shocks our notions of judicial propriety and fair play, as indeed
it does, it was bound to make a deeper impression on the mind of the respondent
as to the unreality and futility of the proceedings conducted in this fashion.
We find ourselves in agreement with the High Court that the rules of natural
justice were completely discarded and all canons of fair play were grievously
violated by Shri. B.N. Bhalla continuing to preside over the trial. Decision
arrived at by such process and order founded on such decision cannot possibly
be regarded as valid or binding."
similar view was taken by this Court in Rattan Lal Sharma v. Managing
Committee, Dr. Hari Ram (Co-education) Higher Secondary School & Ors., AIR
1993 SC 2155, observing that a person cannot be a witness in the enquiry as
well as the inquiry officer.
legal maxim "nemo debet esse judex in propria causa" (no man shall be
a judge in his own cause) is required to be observed by all judicial and
quasi-judicial authorities as non-observance thereof is treated as a violation
of the principles of natural justice. (Vide Secretary to Government, Transport
Department v. Munuswamy Mudaliar & Anr., AIR 1988 SC 2232; Meenglas Tea
Estate v. The Workmen, AIR 1963 SC 1719; and Mineral Development Ltd. v. The
State of Bihar & Anr., AIR 1960 SC 468).
Court in A.U. Kureshi v. High Court of Gujarat & Anr., (2009) 11 SCC 84,
placed reliance upon the judgment in Ashok Kumar Yadav & Ors. v. State of
Haryana & Ors., (1985) 4 SCC 417, and held that no person should adjudicate
a dispute which he or she has dealt with in any capacity. The failure to
observe this principle creates an apprehension of bias on the part of the said
person. Therefore, law requires that a person should not decide a case wherein
he is interested. The question is not whether the person is actually biased but
whether the circumstances are such as to create a reasonable apprehension in
the minds of others that there is a likelihood of bias affecting the decision.
existence of an element of bias renders the entire disciplinary proceedings
void. Such a defect cannot be cured at the appellate stage even if the fairness
of the appellate authority is beyond dispute. (Vide: S. Parthasarthy v. State
of Andhra Pradesh, AIR 1973 SC 2701; and Tilak Chand Magatram Obhan v. Kamla
Prasad Shukla & Ors., 1995 Supp. (1) SCC 21).
Arjun Chaubey v. Union of India & Ors., AIR 1984 SC 1356, a Constitution
Bench of this Court dealt with an identical case wherein an employee serving in
the Northern Railway had been dismissed by the Deputy Chief Commercial
Superintendent on a charge of misconduct which concerned himself, after
considering by himself, the explanation given by the employee against the
charge and after thinking that the employee was not fit to be retained in
It was also
considered whether in such a case, the court should deny the relief to the
employee, even if the court comes to the conclusion that order of punishment
stood vitiated on the ground that the employee had been guilty of habitual acts
of indiscipline/ misconduct.
This Court held that
the order of dismissal passed against the employee stood vitiated as it was in
utter disregard of the principles of natural justice. The main thrust of the
charges against the employee related to his conduct qua the disciplinary
authority itself, therefore, it was not open to the disciplinary authority to
sit in judgment over the explanation furnished by the employee and decide
against the delinquent. No person could be a judge in his own cause and no
witness could certify that his own testimony was true. Any one who had a
personal stake in an enquiry must have kept himself aloof from the enquiry. The
court further held that in such a case it could not be considered that the
employee did not deserve any relief from the court since he was habitually
guilty of acts subversive of discipline. The illegality from which the order of
dismissal passed by the Authority concerned suffered was of a character so
grave and fundamental that the alleged habitual mis-behaviour of the delinquent
employee could not cure or condone it.
the legal position emerges that if a person appears as a witness in
disciplinary proceedings, he cannot be an inquiry officer nor can he pass the
order of punishment as a disciplinary authority.
This rule has been
held to be sacred. An apprehension of bias operates as a disqualification for a
person to act as adjudicator. No person can be a Judge in his own cause and no
witness can certify that his own testimony is true. Any one who has personal
interest in the disciplinary proceedings must keep himself away from such
proceedings. The violation of the principles of natural justice renders the
order null and void.
the instant case, Shri Arvind Kumar Upadhyaya, IPS, Commandant, 30th PAC
Battalion, Gonda, appeared as a witness and proved the disobedience of his
orders of imposition of punishment, first as of punishment drill and
subsequently of confinement to a cell.
appearing as a witness in the enquiry, he also passed the order of punishment,
i.e., dismissal of the appellant from service on 8.4.2003. This issue has been
agitated by the appellant throughout but none of the authorities or the courts
below had taken it into consideration. Appellant has made crystal clear
pleadings before this Court also in this regard and the same have not been
denied in the counter affidavit by the respondents, rather a very vague and
evasive reply has been filed stating that the disciplinary proceedings had been
concluded strictly in accordance with law.
order in violation of the principles of natural justice may be void depending
on the facts and circumstances of the case. (Vide Raja Jagdambika Pratap Narain
Singh v. Central Board of Direct Taxes & Ors., AIR 1975 SC 1816; Smt.
Maneka Gandhi v. Union of India & Anr., AIR 1978 SC 597; Krishan Lal v.
State of J & K, (1994) 4 SCC 422; State Bank of Patiala & Ors. v. S.K.
Sharma, AIR 1996 SC 1669; Union of India & Anr. v. M/s. Mustafa & Najibai
Trading Co. & Ors., AIR 1998 SC 2526; and Vishnu Dutt & Ors. v. State
of Rajasthan & Ors., (2005) 13 SCC 592).
case the very first order of imposition of punishment for remaining absent from
duty for 25 minutes was bad in law, the appellant's protest against the said
punishment could not be said to be unjustified. In Nawabkhan v. State of
Gujarat, AIR 1974 SC 1471, this Court dealt with the issue and held as under:
"In the present
case, a fundamental right of the petitioner has been encroached upon by the
police commissioner without due hearing so the Court quashed it - not killed it
then but performed the formal obsequies of the order which had died at birth.
The legal result is that the accused was never guilty of flouting an order which
never legally existed." (Emphasis added)
are of the considered opinion that the initiation of disciplinary proceedings
against the appellant and the conclusion thereof by the imposition of the
punishment by the Commandant, who had himself been a witness, was in flagrant
violation of the principles of natural justice and thus, stood vitiated.
"Principles of natural justice are to some minds burdensome but this
price-a small price indeed-has to be paid if we desire a society governed by
the rule of law." All other consequential orders passed in appeal etc.
remained inconsequential. More so, a protest/disobedience against an illegal
order may not be termed as misconduct in every case. In an appropriate case, it
may be termed as revolting to one's sense of justice. In view of the above, we
are of the considered opinion that the protest raised by the appellant against
the punishment imposed for his absence could not give rise to a cause of action
for initiating the disciplinary proceedings.
courts below and the statutory authorities failed to appreciate that if the
disciplinary authority wants to consider the past conduct of the employee in
imposing a punishment, the delinquent is entitled to notice thereof and
generally the charge-sheet should contain such an article or at least he should
be informed of the same at the stage of the show cause notice, before imposing
Court in Union of India & Ors. v. Bishamber Das Dogra, (2009) 13 SCC 102,
considered the earlier judgments of this Court in State of Assam v. Bimal Kumar
Pandit, AIR 1963 SC 1612; India Marine Service (P) Ltd. v. Their Workmen, AIR
1963 SC 528; State of Mysore v. K. Manche Gowda, AIR 1964 SC 506;
Colour-Chem Ltd. v.
A.L. Alaspurkar & Ors., AIR 1998 SC 948;
Director General, RPF
v. Ch. Sai Babu, (2003) 4 SCC 331, Bharat Forge Co. Ltd. v. Uttam Manohar
Nakate, (2005) 2 SCC 489; and Govt. of A.P. & Ors. v. Mohd. Taher Ali,
(2007) 8 SCC 656 and came to the conclusion that it is desirable that the
delinquent employee be informed by the disciplinary authority that his past
conduct could be taken into consideration while imposing the punishment.
However, in case of misconduct of a grave nature, even in the absence of
statutory rules, the Authority may take into consideration the indisputable
past conduct/service record of the delinquent for "adding the weight to
the decision of imposing the punishment if the fact of the case so
appellant joined the service on 10.2.1969 and his services stood terminated
vide order dated 8.4.2003. Therefore, the benefit of service rendered by the
appellant for more than 34 years stood forfeited. At the time of his removal
from service, the appellant was 54 years of age. Thus, he had been visited with
serious punishment on the verge of retirement.
view of the above, we reach the following inescapable conclusions:-
of appellant from duty as Guard Commander for 25 minutes was bona fide and
permissible under the statutory rules.
of punishment of punishment drill for 10 days for the said absence was
by the appellant against the imposition of the said punishment could not
warrant enhancement of punishment of the appellant for confinement in cell for
of the enhanced punishment could not, in this case, warrant initiation of
disciplinary proceedings by the Commandant concerned against the appellant.
Commandant could not himself become the Judge of his own cause.
Commandant could not appoint his own subordinate as the inquiry officer.
Commandant could have referred the matter to his superior officer for
appropriate action in terms of Rules 1991.
the Commandant concerned appeared as a witness himself in the enquiry, he could
not pass the order of punishment.
Authority who initiated the disciplinary proceedings against the appellant
became a witness before the inquiry officer appointed by him, who is
subordinate to him in his office and also accepted the enquiry report and
passed the order of punishment.
Thus, the order of
punishment stood vitiated.
Appellate Authority could not consider the past conduct of the appellant to
justify the order of punishment passed by the disciplinary authority without
bringing it to the notice of the appellant.
the punishment order had been passed in violation of the statutory rules and
the principles of natural justice as well, it is rendered null and void. Thus,
it remained inexecutable.
conduct of an employee should not generally be taken into account to
substantiate the quantum of punishment without bringing it to the notice of the
error of violating the principles of natural justice by the Disciplinary
Authority has been of such a grave nature that under no circumstance can the
past conduct of the appellant, even if not satisfactory, be taken into
view of the above, we are of the considered opinion that the present case is
squarely covered by the decision of the Constitution Bench in Arjun Chaubey
(supra). The order of punishment is null and void and therefore, cannot be
given effect to. The appeal deserves to be allowed. The appellant had already
reached the age of superannuation and no fresh enquiry can be initiated in the
matter if the earlier proceedings are rendered null and void for the violation
of the statutory provisions and principles of natural justice. In the facts and
circumstances of the case and in order to meet the ends of justice, it is
desirable that the appellant be paid 50% of the wages from the date of removal
from service till the date of reaching the age of superannuation and he be granted
retiral benefits in accordance with law from the date of his retirement.
In view of the above,
appeal stands disposed of. No order as to costs.