Allahabad High Court
Indra Kumar Ex Constable vs Union Of India Ministry Of Home Affairs ... on 17 April, 2023
Author: Karunesh Singh Pawar
Bench: Karunesh Singh Pawar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 20 Case :- WRIT - A No. - 6787 of 2012 Petitioner :- Indra Kumar Ex Constable Respondent :- Union Of India Ministry Of Home Affairs Through Directorate Counsel for Petitioner :- Piyush Asthana,Abdul Samad,M.P. Raju,Maneesh Kumar Singh,Navita Sharma,Rajendra Singh Counsel for Respondent :- A.S.G.,Ajay Kumar Singh,Raj Kumar Singh,Sandeep Sharma,Savitra Vardhan Singh Hon'ble Karunesh Singh Pawar,J.
1. Heard Ms. Navita Sharma, learned counsel for the petitioner and Sri Raj Kumar Singh, learned counsel for the Union of India.
2. This petition has been filed by the petitioner seeking the following reliefs:-
"1. A writ, order or direction in the nature of Certiorari quashing the impugned order dated 19.07.2012 (Annexure No.1), impugned order dated 23.11.2011 (Annexure No.2) and impugned order dated 19.07.2011 (Annexure No.3) passed by the opposite party No.2, 3 & 4 respectively.
2. A writ, order or direction in the nature of Mandamus commanding the opposite parties to reinstate the petitioner in service w.e.f. 19.07.2011 with all consequential benefits.
3. Any other writ, order or direction which this Hon'ble Court deem fit, in the interest of justice may kindly be passed.
4. Award the cost of the case."
3. Brief facts of the case for adjudicating the controversy are that the petitioner joined C.R.P.F. on 20.09.2007 and reported F/117 Battalion in Central Reserve Police Force (in short, ?C.R.P.F?). He applied for 15 days casual leave w.e.f. 12.01.2011 to 01.02.2011 to his Commanding Officer on account of some serious illness of his mother and accordingly, the leave was sanctioned and he was dispatched to Jammu.
4. An information was received from S.H.O., Police Station, Rajbag, District-Sri Nagar vide letter dated 19.01.2011 that the petitioner was arrested/detained in the custody w.e.f. 19.01.2011 during his leave period in Police Station-Kothibag, District-Sri Nagar, which is a militant affected area of Sri Nagar, in connection with abduction and sexual harassment of a minor girl and consequently, the F.I.R. was lodged as F.I.R. No.06 of 2011 under Sections 363 and 376 of R.P.C. The petitioner was detained exceeding 48 hours in custody hence, he was placed under suspension vide order dated 27.01.2011 under Rule 27 (A) of C.R.P.F. Rules, 1995 read with sub-rule (2) of Rule 10 of the Central Civil Services (Classification, Control and Appeal) Rules, 1964. The charge-sheet was filed in that case against the petitioner under Sections 363 and 376 R.P.C. on the ground of above offences, the disciplinary authority vide memo dated 14.03.2011 initiated disciplinary proceedings against the petitioner.
5. The Inquiry Officer was appointed who conducted the inquiry proceedings and found charge No.1 proved against the petitioner however, he exonerated the petitioner from charge No.2 and thereafter, the inquiry report was submitted. The disciplinary authority disagreed with the findings of the Inquiry Officer and has removed the petitioner from service w.e.f. 19.07.2011 by exercising powers under Rule 27 (A) of the C.R.P.F. Rules, 1955.
6. Aggrieved by the removal order passed by the disciplinary authority, the petitioner filed an appeal dated 16.09.2011 before the appellate authority i.e. D.I.G., C.R.P.F., Allahabad Range (U.P.) which was rejected by the appellate authority vide order dated 23.11.2011.
7. Aggrieved by the order of the appellate authority dated 23.11.2011, the petitioner submitted a revision petition dated 12.09.2012 however, before filing the revision petition, a letter written by the petitioner on 19.03.2012 sending a request to the opposite party No.2 to reinstate him in service which was treated as a revision and it was decided vide impugned order dated 19.07.2012.
8. The petitioner by way of this writ petition has challenged the impugned order dated 19.07.2012 passed by the revisional authority (Annexure No.1), impugned order dated 23.11.2011 i.e. the order passed by the appellate authority (Annexure No.2) and the impugned order dated 19.07.2011 order passed by the disciplinary authority (Annexure No.3).
9. Learned counsel for the petitioner submits that the disciplinary proceedings were initiated against the petitioner for two charges. The charge No.1 was that the leave has been taken by him on the basis of false grounds that his mother is ill and after taking leave the petitioner returned to Sri Nagar and stayed there. The charge No.2 against the petitioner is that in the Sri Nagar, he was arrested by the police along with minor girl and has committed rape upon her due to which F.I.R. under Section 363 and 376 R.P.C. was lodged against him. He next submitted that after the inquiry, the Inquiry Officer found charge No.1 proved and charge No.2 was not found proved and the trial was pending. He submitted that after the completion of the inquiry, the copy of the inquiry report was sent to the petitioner for giving reply to that inquiry report wherein the petitioner admitted the charge No.1 that he had taken leave on false grounds and asked for pardon and further the undertaking was given by the petitioner that in future he will not commit such mistake. However, when the inquiry report was sent to the disciplinary authority for action, the disciplinary authority while passing the impugned order of removal has treated the charge No.2 also proved and passed the order of removal. It is submitted that this is not permissible and if the disciplinary authority was not in agreement with the Inquiry Officer and his report then, this fact ought to have been communicated to the petitioner against whom the order of removal was proposed to be passed and the reasons for the disagreement were also required to be communicated to the petitioner and a fresh show cause notice should have been issued indicating the disagreement by the disciplinary authority and the reasons for such disagreement and also after giving due opportunity of hearing to the petitioner, the order could have been passed. In support of his contention, learned counsel for the petitioner has relied on the judgment of Ram Kishan vs. Union of India & Ors. reported in [(1995) 6 SCC 157].
10. The next contention of learned counsel for petitioner is that Section 27 (ccc) of C.R.P.F. Rules, 1955 (hereinafter referred to as, ?the Rules, 1955) provides that if a person has been acquitted for an offence then on the same charge, the punishment cannot be given unless sanction is taken from the I.G. This means that till the conclusion of the trial the punishment order cannot be passed and therefore, the order of the disciplinary authority is bad in law to treat the charge No.2 proved while the Inquiry Officer was of the opinion that only charge No.1 was proved. The correct procedure would have been that either the whole inquiry should have been deferred till the decision in the trial or the inquiry for charge No.2 should have been initiated only after conclusion of the trial but neither of the two courses were followed by the disciplinary authority. It is next submitted that petitioner was honorably acquitted by the learned trial court under Sections 363 and 376 R.P.C. vide acquittal order dated 21.02.2012 in file No.57/B/153/S/17/receipt (Annexure No.6). In support of his contention, learned counsel for the petitioner has relied on the judgment of Hon?ble Supreme Court in the case of G.M. Tank vs. State of Gujarat & Ors. reported in [(2006) 5 SCC 446] emphasis is on para 7, 13, 14, 16, 22, 31 and 32. It is submitted on behalf of the petitioner that once the acquittal order was passed by the learned trial court, the order passed on the same charge under departmental inquiry was always open to the review and petitioner could have been reinstated. He submits that the petitioner is entitled for full back-wages from the date of acquittal. It is also submitted that the petitioner has been acquitted honorably, the trial court observed that prosecution has failed to prove its case. It is submitted that only those acquittals are not treated as honorable acquittal in which benefit of doubt is given to the accused here is not such a case. So far as charge No.1 is concerned, it is not disputed between the parties that charge No.1 was admitted by the petitioner. It is submitted by learned counsel for the petitioner that its a minor allegation and only minor punishment of stoppage of one or two increments etc. can be given and punishment of removal cannot be given for that charge.
11. Per contra, Sri Raj Kumar Singh, learned counsel for the respondents has opposed the submission. He submits that petitioner proceeded on casual leave on the false grounds with per-planed intention of coming back to Sri Nagar from Jammu and abducting the minor girl and stayed with her. Such kind of conduct is unbecoming of an Officer in the C.R.P.F. therefore, it is not a fit case where interference by this Court is warranted. He submits that departmental inquiry was conducted and sufficient opportunity was given to the petitioner to defend himself as there is no violation of principles of natural justice. He submits that application dated 19.03.2012 of the petitioner was treated as revision under Rule 29 (b) of C.R.P.F. Rules, 1955 and the same has been rejected vide order dated 19.07.2012. He submits that statutory revision dated 12.09.2012 was moved by the petitioner beyond the limitation period prescribed under the Rules and therefore, the same was rejected on this ground. The Central Reserve Police Force Act, 1949 provides for the constitution and regulation of Arms Central Reserve Police Force. Section 27 of the Rules, 1955 provides the procedure for the award of punishments. Section 27 sub-section (c) of the Rules, 1955 provides the procedure for conducting a departmental inquiry which is extracted below:-
?(c) The procedure for conducting a departmental enquiry shall be as follows:-
(1) The substance of the accusation shall be reduced to the form of a written charge which should be as precise as possible. The charge shall be read out to the accused and a copy of it given to him at least 48 hrs. before the commencement of the enquiry.
(2) At the commencement of the enquiry the accused shall be asked to enter a plea of Guilty or Not Guilty after which evidence necessary to establish the charge shall be let in. The evidence shall be material to the charge and may either be oral or documentary, if oral:
(i) it shall be direct:
(ii) it shall be recorded by the Offcer conducting, the enquiry himself in the presence of the accused:
(iii) the accused shall be allowed to cross examine the witnesses.
(3) When documents are relied upon in support of the charge, they shall be put in evidence as exhibits and the accused shall, before he is called upon to make his defence be allowed to inspect such exhibits.
(4) The accused shall then be examined and his statement recorded by the officer conducting the enquiry. If the accused has pleaded guilty and does not challenge the evidence on record, the proceedings shall be closed for orders. If he pleads "Not guilty". he shall be required to file a written statement and a list of such witnesses as he may wish to cite in his defence within such period, which shall in any case be not less than a fortnight, as the officer conducting enquiry may deem reasonable in the circumstances of the case. If he declines to file a written statement, he shall again be examined by the officer conducting the enquiry on the expiry of the period allowed.
(5) If the accused refuses to cite any witnesses or to produce any evidence in his defence, the proceedings shall be closed for orders. If he produces any evidence the officer conducting the enquiry shall proceed to record the evidence. If the officer conducting the enquiry considers that the evidence of any witness or any document which the accused wants to produce in his defence is not material to the issues involved in the case he may refuse to call such witness or to allow such document to be produced in evidence, but in all such cases he must briefly record his reasons for considering the evidence inadmissible. When all relevant evidence has been brought on record, the proceedings shall be closed for orders.
(6) If the Commadant has himself held the enquiry, he shall record his findings and pass orders where he has power to do so. If the enquiry has been held by any officer other than the Commandant, the officer conducting the enquiry shall forward his report together with the proceedings to the Commandant who shall record his findings and pass order where he has power to do so.
(7) Deleted vide GSR 75 dated 26.1.80.?
12. Section 27 (ccc) of the Rules, 1955 provides that when a member of force has been tried and acquitted by a criminal court, he shall not be punished departmentally under this Rule on the same charge or on the similar charge. The aforesaid Section 27 (ccc) of the Rules, 1955 is also extracted below:-
?(ccc) When a member of the Force has been tried and acquitted by a criminal court, he shall not be punished departmentally under this rule on the same charge or on a similar charge upon the evidence cited in the criminal case, whether actually led or not except with the prior sanction of the Inspector General.?
13. Learned counsel for Union of India has further submitted that unauthorized absence from the duty in disciplined post like C.R.P.F. entails major punishment hence, no lenient view is required to be adopted by the court. In support of his contention, he has relied on the judgment of Hon?ble Supreme Court in the case of Union of India & Ors. vs. Ghulam Mohd. Bhat [Appeal (civil) No.4950 of 1999].
14. Heard learned counsel for both the parties.
15. The two charges framed against the petitioner are extracted as under:-
?(1) ?? ?? ?? ?????? 075184846 ???/???? ?????? ????? ??/117 ??????? ?? ????????? ?????? ????? ?? ??? ??????/???? ?? ?? ?? ??????? ???? ??? ??.??.??.??, ??????? 1949 ?? ????- 11(1) ?? ???? ?? ?? ????? ???? ?? ?????? ??, ?????? ?? ??????/???????/???????????? ??? ???? ?????? ?? ??????? ???? ??, ?????? ?? ???? ???? ?? ???? ????? ???? ?? ????? ??? ???? ????????? ???? ??????? ????? ?? ???????? ?? 15 ??? ??????? ??????? ????? ??????.12/1/2011 ?? 01/2/2011 (?????? ?????? 14/01/11, 15/01/11, 16/01/11, 23/01/11, 26/01/11 ??? 30/01/11) ?? ??????? ????? ??? ?????? 12/01/11?? ???? ?????? ?? ?????? ?? ??????? ?? ????? ???? ???? ?? ?????? ?? ???? ???? ????? ?? ???? ??????? ??? ?????? ??? ???? ??-??? ?? ??? ????????? ??? ?? ???? ??? ??? ???? ????? ?????? ?? ??????? ??????? ????? ?? ??? ?????????? ?????? ??? ???? ?? ????? ?????? ?????? ??????? ?? ??????? ???? ??? ???? ??? ???? ????? ?????? ?????? 19/01/11 ?? 48 ???? ?? ???? ??? ?? ????? ?????? ??? ??? ???? ?? ??????? 075184846 ??????/???? ?????? ?????, ?? ?? ?????? ?? ?? ?????? ?? ?????? ?? ??? ??????????? ???????? -.1955 ?? ???? 27 ?? ??? ??????? ????? ???
(2) ?? ?? ?? ?????? 075184846 ??????/???? ?????? ????? ??/117 ??????? ?? ????????? ?????? ????? ?? ??? ???????/???? ?? ?? ?? ??????? ???? ??? ??????????? ???????-1949 ?? ???? 11(1) ?? ???? ?? ?? ????? ???? ?? ?????? ??, ?????? ?? ??????/???????/???????????? ??? ???? ?????? ?? ??????? ???? ??, ?????? ?? 15 ??? ?????? ????? ?????? 12/1/2011 ?? 01/2/2011 (?????? ?????? 14/01/11, 15/01/11, 16/01/11, 23/01/11, 26/01/11 ??? 30/01/11) ?? ????? ???? ???? ????? ????? ??? ????? ?????????? ?? ?????? ??? ??? ???? ???????????? ????? ??? ??? ?? ?? ??????? ??????? ????? ?? ??? ???? ????? ??????? ???? ????? ????? ??? ???? ????? ?????? ???? ?????? ?? ????? ????? ?????? ?????? ??????? ??? ????? ???? ??? ?? ???? 363/376 ???????? ????? ?????? 6/2011 ?? ??????? ??????? ????? ???? ?? ??? ?????? 19/1/11 ?? 48 ???? ?? ???? ??? ?? ????? ?????? ??? ???? ?? ?????? 075184846 ??????/???? ?????? ????? ?? ???? ?????/?????? ?? ????? ?? ?? ?? ??? ?? ????? ???? ?? ?? ?? ?? ?????? ?? ?????? ?? ??? ??????????? ???????? 1955 ?? ???? 27 ?? ??? ??????? ????? ???"
16. A perusal of the first charge shows that the petitioner was charged for producing the false and wrong information to his Commanding Officer for sanctioning of his 15 days casual leave of his mother?s serious illness. The second charge was staying in a sensitive area of Sri Nagar during the leave period without the consent of his Officer commanding or the Commandant and defaming the image of the force by involving himself in undisciplined activity and establishing sexual relationship with a minor girl and thus, a misconduct was committed. The Inquiry Officer vide inquiry report dated 23.06.2011 has found charge No.1 proved in view of the admission made by the petitioner however, charge No.2 was not found by him to be proved. It is admitted between the parties that the disciplinary authority has concluded the disciplinary proceedings on the above charges during the trial of the petitioner in file No.57/B/153/S/17/receipt. A perusal of the Section 27 (ccc) of the Rules, 1955 makes it clear that when a member of the force has been tried and acquitted by a criminal court, he shall not be punished departmentally under this rule on the same charge or on the similar charge upon the evidence cited in the criminal case, whether actually led or not except with the prior sanction of the Inspector General. In this case admittedly, the petitioner was being tried for more or less the same charges that is charge No.2 before the criminal court therefore, in view of the express provision of the Act, the disciplinary authority could not have proceeded against the petitioner except with the prior sanction of the Inspector General. There is nothing on the record to indicate that any prior sanction with the Inspector General was obtained by the Department hence, this Court is of the view that the disciplinary authority has conducted the proceedings against the petitioner in flagrant violation of Section 27 (ccc) of the Rules, 1955. The contention of the petitioner that disciplinary authority while proceeding against the petitioner has considered the inquiry report however, has disagreed with such inquiry report and proceeded to pass major punishment of removal against the petitioner however, while disagreeing with the Inquiry Officer, the authority has not given a show cause notice to the petitioner which he was entitled under law and the law on this point is settled that whenever, a disciplinary authority is in disagreement with the recommendation of the Inquiry Officer and proposes to pass a punishment/major punishment, he is bound to assign the reasons for such disagreement and is also required to give a show cause notice to the petitioner indicating such reasons so that the delinquent employee can have a proper opportunity to defend himself. In this case admittedly, this has not been done. The Hon?ble Supreme Court in the case of Ram Kishan (supra) in para 10 has held as under:-
"10. The next question is whether the show cause notice is valid in law. It is true, as rightly contended by the counsel for the appellant, that the show cause notice does not indicate the reasons on the basis of which the disciplinary authority proposed to disagree with the conclusions reached by the inquiry officer. The purpose of the show cause notice, in case of disagreement with the findings of the enquiry officer, is to enable the delinquent to show that the disciplinary authority is pursuaded not to disagree with the conclusions reached by the inquiry officer for the reasons given in the inquiry report or he may offer additional reasons in support of the finding by the inquiry officer. In that situation, unless the disciplinary authority gives specific reasons in the show cause on the basis of which the findings of the inquiry officer in that behalf is based, it would be difficult for the delinquent to satisfactorily give reasons to pursuade the disciplinary authority to agree with the conclusions reached by the inquiry officer. In the absence of any ground or reason in the show cause notice it amounts to an empty formality which would cause grave prejudice to the delinquent officer and would result in injustice to him. The mere fact that in the final order some reasons have been given to disagree with the conclusions reached by the disciplinary authority cannot cure the defect. But, on the facts in this case, the only charge which was found to have been accepted is that the appellant had used abusive language on the superior authority. Since the disciplinary authority has said that it has agreed partly to that charge, the provisional conclusion reached by the disciplinary authority in that behalf even in the show cause notice, cannot be said to be vague. Therefore, we do not find any justification to hold that the show cause notice is vitiated by an error of law, on the facts in this case."
17. In this case the petitioner was acquitted by the judgment and order dated 21.02.2012. A perusal of the said judgment shows that the acquittal order was passed on the ground that the prosecution has failed to prove its charge and thus, it is honorable acquittal, no benefit of doubt was given to the petitioner and therefore, the mandate under Section 27 (ccc) of the Rules, 1955 ought to have been followed by the authority while passing the removal order. Law in this regard has been settled by the Honble Supreme Court in the case of G.M. Tank (supra). The relevant paragraphs 7, 22 and 31 are extracted below:-
7. The Special Judge had honourably acquitted the appellant of the offence punishable under Section 5(1)(e) read with Section 5(2) of the Act by holding that the prosecution has failed to prove the charges levelled against the appellant and thus the appellant cannot be held to be guilty of the said offence. This acquittal is by way of complete exoneration and not by giving benefit of doubt which is evident from the judgment of the Special Judge. The Division Bench, however, overlooked this fact and the additional fact that on the basis of very report submitted by Mr. V.B. Raval, the Special Judge had acquitted the appellant.
22. In the case of Capt. M. Paul Anthony vs. Bharat Gold Mines Ltd. & Anr.(supra), the question before this Court was as to whether the departmental proceedings and the proceedings in a criminal case launched on the basis of the same set of facts can be continued simultaneously. In Paragraph 34, this Court held as under :
"34. There is yet another reason for discarding the whole of the case of the respondents. As pointed out earlier, the criminal case as also the departmental proceedings were based on identical set of facts, namely "the raid conducted at the appellant's residence and recovery of incriminating articles therefrom". The findings recorded by the enquiry officer, a copy of which has been placed before us, indicate that the charges framed against the appellant were sought to the proved by police officers and panch witnesses, who had raided the house of the appellant and had effected recovery. They were the only witnesses examined by the enquiry officer and the enquiry officer, relying upon their statements, came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case but the Court, on a consideration of the entire evidence, came to the conclusion that no search was conducted nor was any recovery made from the residence of the appellant. The whole case of the prosecution was thrown out and the appellant was acquitted. In this situation, therefore, where the appellant is acquitted by a judicial pronouncement with the finding that the "raid and recovery" at the residence of the appellant were not proved, it would be unjust, unfair and rather oppressive to allow the findings recorded at the ex parte departmental proceedings to stand."
31. In our opinion, such facts and evidence in the department as well as criminal proceedings were the same without there being any iota of difference, the appellant should succeed. The distinction which is usually proved between the departmental and criminal proceedings on the basis of the approach and burden of proof would not be applicable in the instant case. Though finding recorded in the domestic enquiry was found to be valid by the Courts below, when there was an honourable acquittal of the employee during the pendency of the proceedings challenging the dismissal, the same requires to be taken note of and the decision in Paul Anthony's case (supra) will apply. We, therefore, hold that the appeal filed by the appellant deserves to be allowed."
18. In view of above, petition succeeds and is allowed. The impugned orders are set aside. The matter is remanded back to the disciplinary authority to pass a fresh order from the stage, he has received a copy of the inquiry report after giving adequate opportunity of hearing to the petitioner by giving him a show cause notice along with the copy of the inquiry report within a period of three months from the date of receipt of a certified copy of this order.
Order Date :- 17.4.2023 Saurabh Yadav/-