Punjab-Haryana High Court
Naresh Kumar vs Union Of India & Anr on 18 March, 2025
Neutral Citation No:=2025:PHHC:036977
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
207
CWP-1554-2016 (O&M)
Date of decision: 18.03.2025
Naresh Kumar ...Petitioner
VERSUS
Union of India and others ...Respondents
207-A
CWP-5361-2016 (O&M)
Date of decision: 18.03.2025
Gurmail Singh ...Petitioner
VERSUS
Union of India and others ...Respondents
CORAM : HON'BLE MR. JUSTICE VINOD S. BHARDWAJ
Present :- Mr. Sushil Jain, Advocate for the petitioner
in CWP-1554-2016.
Mr. B.D. Sharma, Advocate for the petitioner
in CWP-5361-2016.
Mr. Arun Gosain, Sr. Panel Counsel,
for respondent-UOI in CWP-1554-2016.
Mr. Praveen Chander Goyal, Sr. Panel Counsel,
for respondent-UOI in CWP-5361-2016.
*****
VINOD S. BHARDWAJ, J. (Oral)
CM-1293-CWP-2018 Application is allowed as prayed for subject to all just exceptions. The amended petition is taken on record.
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(1) Involving identical questions of law and facts, both these writ petitions are being decided by a common judgment. For facility of reference, facts are however being summarised from CWP-1554 of 2016 titled as 'Naresh Kumar Vs. Union of India and others'.
(2) Challenge therein is to order of 29.08.2014 passed by respondent No.4 viz. Deputy Inspector General of Police, whereby the petitioner was dismissed from the service as well as to the order dated 17.11.2014 passed by respondent No.3 viz. Inspector General of Police (IG), dismissing the appeal preferred by the petitioner and also to the order dated 22.10.2015 passed by respondent No.2 viz. Special Director General dismissing the revision preferred by the petitioner.
(3) Learned counsel appearing on behalf of the petitioner contends that the petitioner was working as Sub-Inspector at CRPF Camp at Pinjore. On 03.09.2013, when the petitioner was posted at Pinjore, an FIR bearing No.193 dated 03.09.2013 was registered at Police Station Pinjore, District Panchkula under Section 18 of the NDPS Act, 1985 against the petitioner in the present case and against one constable named Gurmail Singh (petitioner in CWP-5361-2016). The petitioner was arrested in the aforesaid FIR and was put to trial before the Special Judge, Panchkula. He contends that the respondent-authorities thereafter issued a charge-sheet on 01.01.2014 without considering that the petitioner was in judicial custody at that point of time and was not in a position to reply to the charges. The initiation of the disciplinary proceedings was with a pre-meditated bias to inflict punishment 2 of 15 ::: Downloaded on - 12-04-2025 00:23:19 ::: Neutral Citation No:=2025:PHHC:036977 3 207 CWP-1554-2016 (O&M) and 01 connected case on the petitioner even without awaiting his release and without awaiting the final outcome of the pending trial before the Special Judge, Panchkula. The respondent(s)-authorities finally passed the order on 29.08.2014 whereby the petitioner was dismissed from the service. The subsequent appeal as well as the revision also stand dismissed whereupon the instant writ petition was filed. The petitioner(s) were, however, acquitted by the Special Judge, Panchkula vide judgment dated 01.10.2014.
(4) Vide judgment dated 16.10.2019, the writ petitions filed by the petitioner(s) were allowed by the Single Judge relying on Section 27 (ccc) of the Central Reserve Police Force (CRPF) Rules, 1955 and the impugned orders were set aside and the petitioners were held entitled to re-instatement with all consequential benefits to the petitioners. Aggrieved thereof, the LPA-452-2020 and LPA-564-2020 were preferred by the Union of India before Division Bench, which were allowed and the judgment dated 16.10.2019 passed by the Single Judge was set aside. The matter(s) was remanded to the Single Judge to pass a fresh order, after recording that in the absence of inquiry report before a Single Judge, it was not appropriate to set aside the dismissal order and that even the issue as regards applicability of Rule 27 (ccc) of the CRPF Rules would not come into play since a plain reading of the Rule would mean that a person who has been acquitted on criminal side is not liable to be tried departmentally. (5) Learned counsel appearing on behalf of the petitioner contends that the petitioners have rendered an unblemished service of more than 26 to 3 of 15 ::: Downloaded on - 12-04-2025 00:23:19 ::: Neutral Citation No:=2025:PHHC:036977 4 207 CWP-1554-2016 (O&M) and 01 connected case 28 years and that despite their false implication being evident, they lost all service benefits and that the order of punishment needs to be set aside. (6) Learned counsel for the petitioners have raised the following arguments:
(i) It is contended by learned counsel for the petitioner (in CWP-1554-2016) that as per the Service Rules only a Commandant Rank officer could have been appointed as an Inquiry Officer under Rule 27(b) of the CRPF Rules whereas in the present case a Deputy Commandant had been appointed as an Inquiry Officer. The inquiry report would thus be invalid for want of competence of the said authority to conduct the departmental inquiry.
(ii) Learned counsel for the petitioners contend that as per Rule 27 (ccc) of the CRPF Rules, the petitioners having already been acquitted by the Special Judge, Panchkula and the allegations as well as witnesses in the departmental proceedings were the same in the criminal proceedings, a prior sanction was required to be obtained from the Inspector General and in the present case no such prior sanction or post-facto sanction had been granted by the Inspector General. Hence, the impugned order as well as the consequential orders upholding dismissal in the appeal and revision are also liable to be set aside.
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(iii) They further contend that the Inquiry Officer did not afford a fair opportunity to the petitioners to lead their evidence and as a result the petitioners have been severely prejudiced in defending their interests. The same would thus vitiate the entire fall out.
(7) The special attention of this Court is drawn to the part of inquiry report which is extracted as under:-
"On dt. 03.05.2014, in view of principle of natural justice, I gave 15 days time to SI/GD Naresh Kumar No. 851170337 and HC/GD Gurmail Singh No. 913080337 vide Letter No. G-2-1/2014-ISB Dt. 03.05.2014 to produce witnesses and evidences in their defence till dt. 19.05.2014.
From dt. 05.05.2014 to 25.05.2014 enquiry officer was on leave due to personal reasons and came to office on dt. 26.05.2014. Reply was not received from both personnel and hence Letter No. G-2-1/2014-ISB Dt. 28.05.2014 was issued to both personnel to submit their reply till dt. 29.05.2014 1100 hrs. On dt. 29.05.2014 SI/GD Naresh Kumar No. 851170337 and HC/GD Gurmail Singh No. 913080337 recorded their statements but did not produce any witness in their defence."
(8) Referring to the above, it is submitted that the Inquiry Officer had even though granted an opportunity to the petitioners to produce 5 of 15 ::: Downloaded on - 12-04-2025 00:23:19 ::: Neutral Citation No:=2025:PHHC:036977 6 207 CWP-1554-2016 (O&M) and 01 connected case witnesses in defence till 19.05.2014, however, the Inquiry Officer himself was on leave from 05.05.2014 to 25.05.2014, hence, there was no effective opportunity ever granted to the petitioners to lead their evidence. (9) This Court put a specific query to the learned counsel for the petitioner as to whether the statutory Rules prescribed any consequential impact in the event of the Inquiry Officer not being the rank of a Commandant as prescribed and whether the same is an illegality or irregularity leading to vitiating final inquiry report to which no law has been referred to by the counsel for the petitioners. He concedes that the statutory Rules do not prescribe any vitiation or consequence in the event of the Inquiry Officer being below the rank of a Commandant. It was also put to the learned counsel for the petitioner that as per the finding recorded in the inquiry report and extracted above, there is a specific mention that the statements of the delinquent employees (petitioners herein) were recorded to the effect that no evidence was to be led and that they tendered documents into evidence. They plead that they are not on instructions as to what was the actual statement of the petitioners therein. (10) Responding to the above, learned counsel for the respondent(s) on the other hand submit that the contentions of the petitioners are unsustainable in law in as much as for the following reasons:-
(i) That in so far as the contention of the petitioners that inquiry was conducted by an officer who was not on the Rank of a Commandant (in CWP-1554-2016) is concerned, the argument would even otherwise be invalid 6 of 15 ::: Downloaded on - 12-04-2025 00:23:19 ::: Neutral Citation No:=2025:PHHC:036977 7 207 CWP-1554-2016 (O&M) and 01 connected case for the reason that no challenge to the inquiry report has been raised by the petitioner. In the absence of any challenge to the inquiry report, such an argument cannot be entertained.
(ii) That for the same reason, any such argument of the petitioners that no fair opportunity to prove their case have been extended to them can also not be accepted.
(iii) That the perusal of the inquiry report shows that the petitioners got their statements recorded to the effect that no witness was to be led and certain documents were tendered by them in support of their case which were duly taken on record. Hence, it is not the case where a fair opportunity to the petitioner had not been extended by the Inquiry Officer.
(iv) It is further submitted that petitioners have nowhere stated that they had submitted any list of witnesses to be examined or had been denied any opportunity to establish their defence. In the absence thereof, the plea of denial of principles of natural justice is a ruse and is liable to be rejected.
(11) He further contends that argument of the petitioners with respect to the applicability of Rule 27 (ccc) of the CRPF Rules is misconceived. The said Rule is extracted as under:
7 of 15 ::: Downloaded on - 12-04-2025 00:23:19 ::: Neutral Citation No:=2025:PHHC:036977 8 207 CWP-1554-2016 (O&M) and 01 connected case "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.
(Inserted vide SO 3117 dated 15.7.71)"
(12) Referring to the above, it is submitted that it is evident from a perusal of the aforesaid Rule that the same would be applicable only in a case where the departmental disciplinary proceedings are initiated after a member of the Force had been tried and acquitted by the trial Court. It is in the said scenario that a prior sanction is required to be obtained from the Inspector General before initiating departmental proceedings and only, if the charge of the criminal case as well as the departmental proceedings are same or similar or based upon evidence cited in the criminal case. He contends that in the present case, the members of the force had not been tried and acquitted by the Criminal Court before the order dated 29.08.2014 was passed by the punishing authority. The judgment of acquittal in the present case was on 01.10.2014. Hence, the reliance on Rule 27 (ccc) of the CRPF Rules is based upon a misreading of the statutory provision. Thus, the aspect of seeking a prior or ex-post facto sanction of the Inspector General does not arise. He further submits that in the absence of any challenge to the inquiry report returning a charge against the petitioner and the orders having been passed by the competent authority as per the procedure prescribed, the power of judicial review is limited to the extent of a procedural impropriety.
8 of 15 ::: Downloaded on - 12-04-2025 00:23:19 ::: Neutral Citation No:=2025:PHHC:036977 9 207 CWP-1554-2016 (O&M) and 01 connected case A High Court in exercise of power under Article 226/227 of the Constitution of India does not sit as a Court of Appeal and can only look into the illegality of an order having been passed or if the punishment imposed is excessively harsh or disproportionate to the charges levelled. He contends that the finding in the departmental inquiry cannot be interfered within the present case.
(13) Responding to the aforesaid arguments raised by the respondent-UOI it is argued that the same is not sustainable since the factual finding recorded by the authorities in the inquiry proceedings otherwise are not being interfered with and that the judicial review is being exercised only with respect to the quantum of punishment in light of the finding and the totality of factual circumstances. The punishment of dismissal from service is highly disproportionate and exceptionally harsh (14) He places reliance on the judgment of the Hon'ble Supreme Court passed in the matter of 'The State of Rajasthan and Others Vs. Heem Singh' reported as 2020 (13) SCR 951. The relevant extract of the same reads thus:-
"721. The law recognises that within the standard of preponderance of probabilities, there could be different degrees of probability. This was succinctly summarised by Denning, L.J. in Bater v. Bater [Bater v. Bater, 1951 P 35 (CA)], where he formulated the principle thus: (p. 37) "... So also in civil cases, the case must be proved by a preponderance of probability, but there may be degrees 9 of 15 ::: Downloaded on - 12-04-2025 00:23:19 ::: Neutral Citation No:=2025:PHHC:036977 10 207 CWP-1554-2016 (O&M) and 01 connected case of probability within that standard. The degree depends on the subject-matter." (emphasis supplied) The disciplinary enquiry was convened on a serious charge of misconduct - that the respondent as a member of the police force had committed an act of murder while on leave. As the above extract indicates, even within the standard of a preponderance of probabilities, the degree depends on the subject matter."
(15) Learned counsel for the petitioner (in CWP-1554-2016) further contends that the departmental appeal was already filed and pending before the appellate authority and the same ought to be construed as a continuation of the original proceedings and hence, the prior sanction had to be obtained. It is further submitted that since there is no sanction ever granted, hence, in any case, the order imposing punishment is liable to be set aside. (16) No other argument has been raised nor judgment cited. (17) I have heard the learned counsel appearing on behalf of the respective parties and have gone through the documents appended with the instant petition and the judgment relied upon by the learned counsel for the respondent(s) with their able assistance.
(18) Although this Court does not find any force in the argument advanced by the learned counsel for the petitioner that the inquiry proceedings should be vitiated on account of the irregularity in appointment of the Inquiry Officer since there is nothing on record to substantiate the argument and no judgment has been cited by the learned counsel for the 10 of 15 ::: Downloaded on - 12-04-2025 00:23:19 ::: Neutral Citation No:=2025:PHHC:036977 11 207 CWP-1554-2016 (O&M) and 01 connected case petitioner(s) to establish that the said provision was mandatory. Once no specific consequences fall out from an irregularity in the appointment of an Inquiry Officer as enshrined in the statutory Rules, even though the Rule may be worded mandatorily, however, such provisions may still be directory in implementation. Besides, I find force in the arguments advanced by the counsel for the respondent(s) that there is no challenge to the inquiry report by either of the petitioners in any of the cases filed before this Court. Hence, at this advanced stage, after a lapse of nearly 9 years, such an argument being raised to impugn the order cannot be appreciated. (19) So far as the reliance of the petitioner(s) on Rule 27(ccc) of the CRPF Rules is concerned, I find that the said contention also lacks merit in as much as the said rule stipulates a prior trial and acquittal before departmental disciplinary proceedings are initiated. Undisputedly, in the present case, the departmental proceedings had already been initiated prior to the trial and acquittal of the petitioners herein. Thus, even if there was an appeal preferred by the respondents and the same was pending, the requirement of a prior sanction to be obtained on the initiation of departmental proceedings as argued by the petitioner(s) gets defeated from the plain reading and interpretation of the statutory rule itself. (20) Having held that, I find that the punishment imposed upon the petitioner may not commensurate, even though the petitioners were tried for commission of offence under the NDPS Act, however, the judgment of acquittal was passed on 01.10.2014. The appeal in case of the petitioner in CWP-1554-2016 was decided later while the revision against order of 11 of 15 ::: Downloaded on - 12-04-2025 00:23:19 ::: Neutral Citation No:=2025:PHHC:036977 12 207 CWP-1554-2016 (O&M) and 01 connected case punishment in CWP-536-2016 was pending. In totality of circumstances, it was required for the competent authority dealing with the appeal/revision of the petitioners to take into consideration the subsequent developments that had taken place establishing the innocence of the petitioners herein. I find from a perusal of the impugned orders that there is no such reference of the impugned order(s) and that the said development has not been taken into consideration at all. The order thus suffers from non-consideration of the later development that had taken place and has thus resulted into imposition of the most severe punishment upon the petitioner. (21) Even though this Court does not dispute that the power of judicial review is limited, however, the subsequent developments have not been considered and only a running reference thereof has been made in the order without appreciating its impact and effect thereof. The authority has not given any reasons as to why notwithstanding the judgment of acquittal passed in favor of the petitioner herein, the extreme punishment of dismissal from service ought to be imposed upon them. The said aspect becomes all the more significant since the Rules do stipulate limitation as departmental proceedings consequent upon acquittal in criminal trial. The benefit of such protection cannot be altogether be denied or ignored because of a mere technicality. The legislative intent being to prevent incarceration, such intent needs to be replicated in action.
(22) This Court is conscious of the fact that its powers of judicial review are limited in matters of disciplinary proceedings, however, in the matter of punishment, this Court may examine the severity of a punishment 12 of 15 ::: Downloaded on - 12-04-2025 00:23:19 ::: Neutral Citation No:=2025:PHHC:036977 13 207 CWP-1554-2016 (O&M) and 01 connected case and in case it is of the opinion that the punishment imposed upon the petitioner(s) is excessively harsh and is not justified in totality of circumstances it may still interfere. Taking into consideration the parameters that had been laid down by the Hon'ble Supreme Court in the matter of BS Hari Commandant v UOI and Others reported as 2023 SCC Online SC 413, which mandates that all imminent and surrounding circumstances, including the length of service and unblemished record of an employee, is required to be taken into consideration before imposing a punishment, the order needs to be interfered with. The relevant extent of the judgment reads thus:-
"37. In the absence of direct and cogent evidence against the appellant, even if the GSFC was convinced of the appellant's guilt, the punishment handed out was too harsh, paying heed that the appellant would, even then, be a first-time delinquent, and not a habitual offender. Arguendo, that there be some semblance of truth in the allegations, the punishment meted out, in our considered view, was disproportionate.
38. Another factor which has nudged this Court to introspect vis-a-vis proportionality herein, is that the appellant has served the country for over 31½ years without blame or blemish, and has received various awards, inter alia, including medal from Hon'ble the President of India. The appellant's track record is otherwise unquestionable."
13 of 15 ::: Downloaded on - 12-04-2025 00:23:19 ::: Neutral Citation No:=2025:PHHC:036977 14 207 CWP-1554-2016 (O&M) and 01 connected case (23) Without dispute, if a member of a disciplined force is involved in any matter of Narcotics Drugs and Psychotropic Substances, such an act calls for disciplinary proceedings, however, where a person has been acquitted by the Special Court and even the recovery had not been effected from him and rather from an open space, I find that the case was more of circumstantial evidence rather than based upon direct involvement of the petitioners herein. It was in the said circumstances that the judgment of acquittal had been passed by the Special Judge. The witnesses relied upon by the respondents were also amongst few of the witnesses that have been cited by the prosecution in support of its case and the testimony of such witnesses has been considered by the Special Judge. (24) Further, ordinarily in such circumstances, the matter would be required to be remanded for a fresh decision to be taken by the competent authority on the quantum of punishment, however, taking into consideration the lapse of time i.e. more than a decade since the passing of the original order of dismissal and also the fact that one of the petitioners has already attained the age of superannuation while the second petitioner may have a very limited period left, it would not be in the larger interest of justice to remand the case to the authorities to pass a fresh order of punishment. Taking into consideration the totality of the circumstances, balance of equity and justice, I deem it appropriate to direct that ends of justice would be well served in case punishment of dismissal/removal from the force(s) is converted into that of compulsory retirement w.e.f. the date when such an order was passed.
14 of 15 ::: Downloaded on - 12-04-2025 00:23:19 ::: Neutral Citation No:=2025:PHHC:036977 15 207 CWP-1554-2016 (O&M) and 01 connected case (25) The petitions are accordingly partly allowed in terms as aforesaid.
(26) Needless to mention that any consequential benefits that may emanate as a result of the writ petitions being party allowed be computed and be released to the petitioners within a period of 04 months of receipt of a certified copy of this order.
(VINOD S. BHARDWAJ)
18.03.2025 JUDGE
Mangal Singh
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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