Jammu & Kashmir High Court
Smt. Sushma Sharma (Wife) vs Union Of India on 20 November, 2024
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
SWP No. 9900009/2005 Reserved on: 15.10.2024
Pronounced on: 20.11.2024
Sanjeev Kumar (since dead)
S/O Sh. Chuni Lal Sharma,
C/O Sh. Madan Lal Sharma
Bakery Works, Opposite Shiva Flour Mill,
Shivnagar, Kathua.
Substituted by his LRs:
1. Smt. Sushma Sharma (wife), aged 35 years
2. Udhay Kumar Baskotra (minor son), age 9 years
3. Kailash Baskotra (minor son), age 06 years (minors
through their mother)
Residents of Rajpora P.O Rajpora
Tehsil and District Samba.
....Petitioner(s)
Through: Mr. Anuj Dewan Raina, Advocate.
Vs
1. Union of India
Through Ministry of Home Affairs
New Delhi.
2. Director,
S.S. B Force Headquarter
New Delhi.
3. Dy. Inspector General
S.S.B.
SHQ Bahrich
(U.P).
4. Commandant,
7th B.N.SSB
Kalpipara Bahrich
(U.P).
5. S. Yaiskul Singh
Deputy Commandant
(Enquiry Officer)
C/O 7th BN SSB
Kalpipara Bahrich
(U.P).
..... Respondent(s)
Through: Mr. Anishwar Chatterji Koul, CGSC
2 SWP No. 9900009/2005
CORAM: HON‟BLE MR. JUSTICE M A CHOWDHARY, JUDGE
JUDGMENT
01. The present petition has been filed under Article 226 of the Constitution of India, seeking the following reliefs:
(i) Issue writ of certiorari quashing order impugned No. Estt/9260201/7th BN/03(E)/11519 dated 04.06.2004 passed by respondent No. 4 whereby the penalty of dismissal from the force has been imposed upon the petitioner from the date of issuance of the said order and further it has been ordered to struck the name of the petitioner from the strength of 7th BN SSB.
(ii) Issue of writ of certiorari quashing Memo No. BN/DISC1/SHQ/BRCH/03-15519 dated 08.09.2004 communicated vide communication No. ESTT/Court Case/SK/7th BN/05 (E)/14089 dated 22.08.2005.
(iii) Issue of writ of certiorari quashing charge sheet dated 06.09.2003 issued by the respondent No. 4 and to further quash enquiry report dated 17.02.2004 submitted by respondent No. 5.
(iv) Issue of writ of Mandamus, commanding the respondents to reinstate the petitioner from the date of his dismissal i.e., 04.06.2004 and allow the petitioner all consequential benefits including full back wages and other monetary benefits which may flow after the quashment of order of dismissal impugned and further to treat the petitioner as on duty for the period he remained on suspension.
(v) Issue of writ of mandamus, commanding the respondents to allow the service benefits and other related incidental benefits which the petitioner was enjoying before the passing of the order of dismissal.
3 SWP No. 9900009/2005
02. The original petitioner-Sanjeev Kumar who, after his death has been substituted by his legal representatives, claimed that he was appointed as Constable in Shashastra Seema Bal (SSB) on 20-7-1992 and after holding an enquiry by the respondent No. 5-Deputy Commandant, he was held to be guilty of charges leveled against him and a penalty of dismissal from service was ordered vide impugned order No. Estt./9260201/7th Bn/03(E)/11519-32 dated 04.06.2004 passed by the respondent No. 4-Commandant 7th Bn SSB.
03. The petitioner aggrieved of his enquiry report and the termination order filed SWP No. 809/2005 titled "Sanjeev Kumar Vs. UOI & Ors" which, in view of availing the statutory remedy of appeal by the petitioner, was disposed of by this court vide order dated 04.07.2005.
04. The appeal filed against his termination order dated 04.06.2004 was heard by the appellate authority, namely, Deputy Inspector General SSB-respondent No. 3 and vide order dated 08.09.2004, the appeal was rejected upholding the findings of the enquiry report as well as the termination order.
05. The petitioner Sanjeev Kumar aggrieved of the impugned order dated 08.09.2004 passed by the appellate authority 4 SWP No. 9900009/2005 filed this petition challenging the chargesheet dated 06.09.2003, enquiry report dated 17.02.2004, termination/dismissal order dated 04.06.2004 passed by the respondent No. 4-Commandant- 7th BN SSB whereby he imposed the penalty of dismissal from the force upon the petitioner and to strike off his name from the strength of 7th BN SSB and order dated 08.09.2004 passed by Appellate Authority rejecting his appeal.
06. The aforesaid impugned orders have been challenged on the grounds that the same being perverse, illegal, irrational, are not sustainable in the eyes of law; that the same suffer from the vice of biasness, lack in fairness and were aimed at wrecking vengeance against the petitioner, alleging that all this has been done at the instance of company Commandant Late Sh. C.C. Pathak right from the issuance of chargesheet to the final order of dismissal, due to the biased attitude of the Enquiry Officer; that the impugned orders, being devoid of any legal force, have been passed in gross violation of settled law, norms and procedure laid down in this behalf especially under Central Reserve Police Force Act, 1949 (for short, „CRPF Act 1949‟), Central Reserve Police Force Rules, 1955 (for short, „CRPF Rules, 1955‟) and Central Civil Services (Classification, Control and Appeal) 5 SWP No. 9900009/2005 Rules, 1965 (for short „CCA Rules‟); that the disciplinary authority had not afforded the opportunity for submitting written statement to the petitioner before applying its mind to appoint Enquiry Officer to enquire into the charges and had also not provided him the services of a legal practioner as defence assistant despite requests made in this behalf by the petitioner; that the issuance of chargesheet and the final dismissal order were actuated with malafide intention and ulterior motives which can easily be substantiated especially by the role played by late Sh. C.C. Pathak, Company Commandant; that the principles of natural justice were not followed and the petitioner was never given any chance to lead any evidence or to produce any document despite various requests made in this behalf; that the enquiry initiated with pre-determined mind was a mere empty formality, stage managed to dismiss the petitioner from services as the chargesheet was issued on 06.09.2003 and without waiting for explanation and reply of the petitioner, an Enquiry Officer was appointed on the same date i.e., on 06.09.2003 which clearly proved the biased attitude of the respondent No. 4; that the findings arrived at by the Enquiry Officer are perverse, illegal and irrational and cannot stand the test of law; that the petitioner was not granted any opportunity to represent against the 6 SWP No. 9900009/2005 proposed penalty and punishment; that the punishment imposed upon the petitioner is too excessive, grossly misappropriated and does not commensurate with the alleged acts/offences; that the length of the service as well as his illness was not taken into consideration while passing the impugned order of dismissal.
07. The petitioner also assailed the impugned orders on the grounds that the petitioner had not committed nuisance as alleged on 09.08.2003 or he ever tried to commit suicide or used abusive language against the superior officers and it was only due to the peculiar set of circumstances, that the petitioner in order to save his life had to lock himself inside the barrack; that the appellate authority while considering the appeal preferred by the petitioner against the order impugned dated 04.06.2004 had not applied its independent mind and rejected the appeal filed by the petitioner in a mechanical exercise of powers without appreciating the grounds urged in the appeal; that the appellate authority rejected the appeal in a summary manner without giving any cogent reasons for rejecting the same.
08. Learned counsel for the petitioners argued that the petitioner was issued chargesheet on 06.09.2003 to which he filed reply on 12.09.2003 i.e., within the 7 SWP No. 9900009/2005 prescribed period of fourteen days, however, instead of waiting for the reply and consideration thereof, the Enquiry Officer was appointed by the disciplinary officer on the same day on 06.09.2003 the day the petitioner was served chargesheet, in contravention of the CRPF Rules and CCA Rules particularly Rule 27 of the CRPF Rules and Rule 14 of the CCA Rules; that no legal defence assistant was provided to the petitioner to contest the enquiry initiated against him; that the petitioner had tendered his resignation on 10.08.2002 due to some personal difficulties but his resignation was not accepted.
09. He further argued that against his termination order passed by the respondent No. 4, the petitioner had filed an appeal which was, however, disposed of by a non- speaking order on 08.09.2004; that the principles of natural justice were not followed and the Enquiry Officer was appointed by the disciplinary authority before consideration of the statement of the petitioner as delinquent official and finally argued that the punishment of dismissal from service was also disproportionate and not commensurate to the charges against the petitioner, as such, the impugned orders are liable to be set aside.
8 SWP No. 9900009/2005
10. Learned counsel for the petitioners, however, hastened to add that the original petitioner-Sanjeev Kumar during the pendency of this petition had expired and was substituted by his wife-Sushma Sharma and minor sons Udhay Kumar Baskotra and Kailash Baskotra vide an interim order dated 09.09.2011, as such the petition be allowed and the respondents be directed to reinstate the petitioner from the date of his dismissal and treat him in service till the date the petitioner expired on 27.08.2010 and to pay the legal heirs of the petitioner all the consequential benefits during service and also the post- retiral benefits of the petitioner.
11. Learned counsel for the respondents, on the other hand, has argued that the petitioner, during being on the roll of SSB which is a disciplined force, had mis-conducted himself by creating nuisance and abusing his senior officers and not complying their orders, as such, the disciplinary authorities initiated an enquiry against him and the Enquiry Officer, after following due process of law, found the petitioner guilty of all the four charges and the respondent No. 4 vide impugned order dated 04.06.2004 after consideration of the enquiry report and taking note of the fact that the petitioner had threatened to commit suicide and cause physical harm to his body, 9 SWP No. 9900009/2005 abused and insulted his superior officers/officials for no reason found the petitioner not fit to be in the Armed Force Service as he can make major damage upon him and to any other Force member or government property in future and, thus, while exercising power vested in him as the disciplinary authority under Rule 27 of the CRPF Rules, 1955 as Commandant of 7th BN SSB Jammu imposed the penalty of dismissal from the force with immediate effect and struck him off, from the strength of this battalion. The petitioner was also informed that he can prefer an appeal against the dismissal order to the Deputy Inspector General SSB, within a period of thirty days of the date of the order passed by the disciplinary authority.
12. He further urged that since the Articles of Charges were served upon the petitioner, enquiry was conducted against him, in accordance with law and the impugned dismissal order has also been confirmed by the appellate authority, the petition being misconceived be dismissed.
13. Before proceeding further in the matter, it will be appropriate to notice the Articles of Charges served upon the petitioner:
(i) Charge-I: the petitioner was alleged to have committed an act of misconduct/negligence in 10 SWP No. 9900009/2005 discharge of his official duties while serving as CT (GD) in A Company of 7th Bn SSB, as he had committed nuisance in the evening roll call on 09.08.2003 at about 1930 hrs by shouting in the roll call in an indisciplined manner, despite repeated directions of his senior officials and disobeyed the lawful command of superior officers which was prejudicial to good order and discipline of the Force under Section 9(e) of CRPF Act, 1949.
(ii) Charge-II: that during roll call at about 1930 hrs on 09.08.2003, the petitioner had created nuisance as he had locked himself in the barrack No. 1, 2nd floor of Jawan's barrack and debarred entries of the inmates of that barrack from 2045 hrs to 2210 hrs causing inconvenience to them and created an atmosphere of tension and disorder in the battalion, as such, committed an offence of misconduct/negligence in discharge of his duties in his capacity as a member of the Force under Section 11(1) of the CRPF Act, 1949.
(iii) Charge-III: that he committed an act of misconduct/negligence in discharge of his official duties in his capacity as member of the Force under Section 11(1) of the CRPF Rules, 1955, when despite 11 SWP No. 9900009/2005 repeated requests of his colleagues, senior officials, senior officers to open the door, he did not do so from 2045 hrs to 2210 hrs on 09.08.2003 and threatened to cause physical harm to himself and locked himself in the barrack until and unless DO J&K does not report in person on the spot to hear him in person.
(iv) Charge-IV: that he committed an act of misconduct/negligence in discharge of his official duties in his capacity as member of the Force under Section 10(e) of the CRPF Act, 1949 as he used unparliamentary and abusive languages towards the superior officers in presence of battalion personnel, officers and local police authorities on 09.08.2003 at about 2215 hrs to 2300 hrs, prejudicial to good order and discipline of the Force.
14. As per enquiry report, the statement of imputations of misconduct or misbehavior on which the Articles of charges were based together with a list of documents and a list of witnesses by whom the charges were proposed to be sustained were forwarded to the petitioner along with the memorandum dated 06.09.2003; that the petitioner denied the charges vide his response dated 12.09.2003 12 SWP No. 9900009/2005 and Sh. S.Y. Singh, Deputy Commandant of 7th Bn SSB was appointed as the Enquiry Officer to enquire into the charges who concluded his enquiry report on 20.02.2004 returning findings that the petitioner had committed nuisance in the evening roll on 09.08.2003 at about 1930 hrs, as such, all the four Charges were proved against the petitioner.
15. Copy of the report of enquiry was served upon the petitioner on 13.03.2004 and he was given an opportunity of making such submissions on the report of enquiry as he desired and the petitioner submitted his submissions on 20.03.2004.
16. The petitioner in response to the enquiry report made submissions that he has an unblemished service of ten years at his back and he had always accepted and obeyed the orders of his superiors and performed his duties honestly and dedicatedly, whenever and wherever, he was asked to do so; that his conduct and behavior had always remained satisfactory, however, he had been made a victim by some egoist officers who, with a view to satisfy their personal egos, had always been after an opportunity to harm him; that in the year 2000 he was suffering of serious health problems and despite repeated requests to his immediate superiors, he was not provided 13 SWP No. 9900009/2005 with the departmental medical facilities, forcing him to undergo surgery in a private hospital for removal of a stone in kidney on 03.01.2001; that despite his request for his permanent posting in Jammu in view of his health issues and to have the restricted diet as advised by the doctor, he was detailed tough duties at Srinagar and ws subjected to harassment by his superiors; that he submitted his resignation on 10.08.2002 which was, however, not accepted by his superiors and he was transferred to another company for heavy duty by which his health further deteriorated; that on 09.08.2003 he had made request for return of OPD slip issued by the hospital authorities which had been retained by the Commandant, however, he was assaulted by some favourite officers/ officials and in order to save his life, he had locked himself in a barrack and requested his superiors for an interview with the Inspector General as he was assured by his superiors to put up his genuine grievances before him.
17. The Disciplinary Officer, however, after consideration of the submissions made by the petitioner accepted the report of the Enquiry Officer that the petitioner had threatened to commit suicide and caused physical harm with his body, abused and insulted his superior Officers/ 14 SWP No. 9900009/2005 Officials for no reason and was not fit person to be in armed force service and was, thus, imposed the penalty of dismissal from the force.
18. Mr. Anuj Dewan Raina, learned counsel appearing for the petitioner, while making his submissions in line with the contentions raised and grounds urged in the petition, would submit that the respondents grossly faulted in the matter of holding inquiry against the petitioner, in that, the respondents though initiated the said inquiry in terms of the CCA Rules, 1965, yet held the said inquiry under and in terms of Rule 27(c) of the Central Reserve Police Force Rules of 1955. Mr. Raina would further submit that notwithstanding the said patent error committed by the respondents in conducting and holding the inquiry, the said inquiry was not even conducted in accordance with the Rule 27(c) of the Rules of 1955.
19. On the contrary, Mr. Anishwar Chatterji Koul, learned CGSC appearing on behalf of the respondents, would admit of the position that the inquiry came to be initiated against the petitioner herein under Rule 14 of the Rules of 1965, however, same was conducted in terms of Rule 27(c) of the Rules of 1955 and that the said inquiry was conducted in tune with the said Rules of 1955. According to Mr. Koul, the commencing of the inquiry under Rules 15 SWP No. 9900009/2005 of 1965 and thereafter conducting the same under Rule 27(c) of the Rules of 1955 got necessitated on account of the fact that the petitioner belongs to SSB, a Paramilitary Force akin to the Central Reserve Police Force and said SSB did not have separate relevant rules for holding such an enquiry in place, at that relevant point of time, as such, the provisions of Rule 27(c) of the Rules of 1955 came to be taken recourse to in the matter of holding the inquiry in question.
20. Perusal of the record tends to show that the respondent No. 4 herein while issuing memorandum of imputations of misconduct/articles of charge dated 04.06.2004 admittedly provided therein that inquiry under Rule 14 of the Rules of 1965 read with Rule 27(c) of the Rules of 1955 is being proposed against the petitioner. Perusal of the record further reveals that admittedly the petitioner herein participated in the inquiry proceedings conducted by the Inquiry Officer without there being any objection or protest thereto by the petitioner.
21. A bare perusal of Rule 27(c) of the Rules of 1955 reveals that the same provides for a set procedure and mechanism for holding an enquiry and though procedural in nature, seemingly, has been conceived in 16 SWP No. 9900009/2005 the interests of the person proceeded against thus, assuming a mandatory character.
22. Reverting back to the case in hand, record of the inquiry reveals that the Enquiry Officer after recording the plea of 'not guilty' by the petitioner, recorded the statements of PW-2 Inspector R.K. Mishra, PW-5 HC Raj Kumar, PW-6 ASI Thakur Dass, PW-7 Adjutant C.C. Pathak and HC Joginder Singh.
23. It appears, on perusal of the enquiry report formulated by the Departmental Enquiry Officer, that he had examined the aforesaid witnesses and then called the petitioner as Delinquent Official to lead his response to the assertions made by the witnesses and it was not that the delinquent official was allowed to cross-examine the witnesses, therefore, it appears that the departmental Enquiry Officer had adopted a novel method of enquiry not giving a free hand to the petitioner as per the established procedure of enquiries to subject the witnesses to cross- examine instead the assertions made by the witnesses were strengthened by questioning the delinquent official with regard to those assertions which is unknown in law.
24. A coordinate bench of this Court has already considered a similar matter in a case SWP No. 1084/2005 titled as "Ashwani Kumar Vs. UOI & Ors" decided on 26.03.2024 17 SWP No. 9900009/2005 whereby the respondent-authorities were directed to reinstate the petitioner therein Ashwani Kumar, who was also an SSB official, in service and to extend him all benefits to which the petitioner was entitled to.
25. The Apex Court in a case titled "Allahabad Bank & Ors Vs. Krishna Narayan Tewari" reported as 2017 (1) Supreme 293 has held that in departmental proceedings, the enquiry should be conducted by following principles of natural justice and that the disciplinary authority should appreciate the evidence and record its reasons in support of its conclusions. The Appellate authority should apply its mind. It was held in the said judgment that in case of defective departmental proceedings, the High Court normally remands the matter to disciplinary authority for conducting the proceeding afresh. However, long time lag and other supervening circumstances are relevant considerations for not adopting that course.
26. The appellate authority has passed the order, which has been reproduced in the order dated 04.06.2004, in a very cryptic manner without assigning any reasons for rejecting the appeal and to accept the findings recorded by the Enquiry Officer and also punishment awarded by the disciplinary authority without making any mention with regard to the grounds of the appeal, as such, the 18 SWP No. 9900009/2005 appellate authority can be said not to have decided the appeal on its merits. In this regard, the Apex Court in Director (Marketing) Indian Oil Corporation Ltd and anr Vs. Santosh Kumar reported as 2006 (11) SC 147 set aside the order passed by the disciplinary authority on the ground that the disciplinary authority had passed the order without application of mind.
27. Having regard to the aforesaid legal position and keeping in view the facts and circumstances on hand, it can be safely held that the disciplinary authority without seeking any response from the petitioner with regard to the charges had appointed the Enquiry Officer in contravention to the CRPF Rules, 1955 and the Enquiry Officer in his enquiry proceedings had not adopted the procedure which is required to be adopted as discussed hereinabove granting the petitioner as delinquent official liberty to cross-examine the witnesses produced in support of prosecuting the enquiry; that the appellate authority had also not appreciated the grounds taken in the appeal and had passed the order in a cryptic and mechanical manner without assigning any justifiable reasons. Therefore, the action taken by the disciplinary authority in appointing the Enquiry Officer conducting of enquiry not in accordance with law and the rules and 19 SWP No. 9900009/2005 accepting the enquiry report by the disciplinary authority to order dismissal of the petitioner from service and the finding of the appellate authority in the appeal being not conducted in accordance with law are liable to be set aside.
28. Coming to the proportionality of the charges and the punishment awarded, it may not be out of place of mention that the petitioner was charged to have created nuisance on a single occasion at the time of roll call on 09.08.2003 and termination/dismissal of the petitioner from service, in my considered opinion, is not commensurate punishment to the charges, even if deemed to be proved. The Apex Court in "Ranjit Thakur Vs. Union of India" reported as (1987) 4 SCC 611 considered the question of „doctrine of proportionality‟ in the matter of awarding punishment under the Army Act. The Apex Court in the said judgment held as under:
"The question of the choice and quantum of punishment is within the jurisdiction and discretion of the Court-Martial. But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality, as part of the 20 SWP No. 9900009/2005 concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the Court-Martial, if the decision of the Court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. Irrationality and perversity are recognized grounds of judicial review."
29. Having regard to the aforesaid discussion and reasons as discussed, considered and analyzed hereinabove, the petition is allowed and the impugned enquiry report, order of dismissal and the order passed by the appellate authority upholding the dismissal order are set aside and quashed with a direction to the respondents to pass order by treating the deceased petitioner Sanjeev Kumar in service till the date of his superannuation or till his death, whichever is earlier and extend all consequential benefits including pensionary benefits to which he was entitled, to his legal heirs.
30. The petition along with connected application(s) is, accordingly, disposed of as allowed.
31. (M A CHOWDHARY) JUDGE JAMMU 20.11.2024 NARESH/SECY Whether the order is speaking: Yes Whether the order is reportable: Yes