Madhya Pradesh High Court
Usman Ali vs Union Of India on 16 September, 2014
W.P.994/2009 1
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
JUSTICE SUJOY PAUL.
Writ Petition No.994/2009
Usaman Ali
Vs.
Union of India & Others
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Shri T.C.Singhal, Advocate for the petitioner.
Shri Chetan Kanoongo, Advocate for the respondents.
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ORDER
( / 09 /2014) This petition filed under Article 226 of the Constitution assails the punishment order of dismissal and also the appellate order dated 5.2.2008 (Annexure P-1).
Brief facts necessary for adjudication of this matter are as under:-
The petitioner was a Constable Driver in the respondent- Organization (C.R.P.F.). The petitioner obtained leave because of serious illness of his son. However, it was alleged that he overstayed the leave. It is submitted that during the overstay of leave, petitioner became unwell. After recovery from illness, the petitioner gave his joining on 19.8.2003, but he was not allowed to perform his duties. In February, 2004, the petitioner came to know that he has been dismissed from service.
2. Shri T.C.Singhal, learned counsel for the petitioner submits that charge sheet or any kind of notice of departmental enquiry was never served on the petitioner. Even dismissal order was not served. The petitioner preferred representation on 16.2.2003 for supplying him the copy of disciplinary proceedings and the dismissal order. In turn, by letter dated 1.3.2004 the copy of dismissal order was supplied to the petitioner. In turn, the petitioner preferred a statutory W.P.994/2009 2 appeal Annexure P-4. This appeal of the petitioner was rejected by impugned order. Shri Singhal submits that the charge sheet was never served and accordingly the entire enquriy gets vitiated. The notices of the enquiry, enquiry report etc. were also never served. Thus, the disciplinary proceedings were against the principles of natural justice and liable to be interfered with. He submits that the charge sheet shows that it was issued under Rule 11(1) of the C.R.P.F. Act, which pertains to imposition of minor penalty, whereas ultimately major penalty is inflicted. He relied on the judgment of Punjab and Haryana High Court in Regular Second Appeal No. 4578/10 (Diler Singh Vs. Union of India and others). He argued that charge sheet needs to be served or in alternatively it is required to be proved that the delinquent employee deliberately and knowingly did not accept it. He relied on (1994) 2 SCC 416 (Dr. Ramesh Chandra Tyagi Vs. Union of India and others).
3. Per contra, Shri Chetan Kanungo, learned counsel for the respondents supported the order. He submits that the CRPF is an armed force and indiscipline cannot be tolerated. By taking this Court to various paragraphs of the return, it is submitted that the charge sheet was dispatched to the petitioner's home address vide letter dated 17.12.003. The petitioner was directed to appear before the enquiry officer through various letters including latter dated 17.12.2003, 19.12.2003 and 5.1.2004. Despite, dispatch of these letters, petitioner did not appear before the enquiry officer. Reasonable opportunity was afforded to him and then punishment order was passed. He submits that there is no violation of principles of natural justice, CRPF Act, 1949 and CRPF Rules, 1955. By placing reliance on Delhi High Court Judgment in W.P.(C) No. 7869/2011 (Ms. Namrata Singh Vs. Union of India & Ors.), it is held that even if charge sheet mentions about Section 11 of CRPF Act, it can be treated as a W.P.994/2009 3 misnomer and major punishment can still be imposed. In addition, he submits that the appellate order is revisable under the rules and, therefore, this petition is not entertainable.
4. I have heard the learned counsel for the parties and perused the record of departmental proceedings.
5. The main ground of attack of the departmental proceedings is that it is conducted without following the principles of natural justice. The charge sheet, notices of enquiry and enquiry report (even punishment order) were never been served on the petitioner. To counter this, it is stated in the return that charge sheet and notices have been dispatched. However, there is no whisper in the return whether the charge sheet and notices were ever served on the petitioner. I have perused the record of disciplinary proceedings. The record also do not indicate whether the alleged dispatch of charge sheet and notices either resulted into delivery on the petitioner or by express refusal by the petitioner. In the opinion of this Court, this was the minimum requirement of principles of natural justice and fair play to ensure that charge sheet is ever served or it is established that it was deliberately refused by the delinquent employee. The record also do not indicate whether any evidence is recorded by the prosecution in this regard to establish that the petitioner has avoided or refused such service. No Postman was examined in this regard.
6. In Dr. Ramesh Chandra Tyagi Vs. Union of India and others (supra), the Apex Court opined as under:-
"We are pained to observe that entire proceedings do not leave very happy and satisfactory impression. It was vehemently argued that there was no procedural irregularity. But that is writ large on the face of it. No charge-sheet was served on the appellant. The Enquiry Officer himself stated that the notices sent were returned with endorsement "left without adders" and on other occasion, "on repeated visits people in the house that he has gone out and they do not W.P.994/2009 4 disclose where he has gone. Therefore, it is being returned". May be that the appellant was avoiding it but avoidance does not mean that it gave a right to Enquiry Officer to proceed ex parte unless it was conclusively established that he deliberately and knowingly did not accept it. The endorsement on the envelope that it was refused, was not even proved by examining the postman or any other material to show that it was refusal by the appellant who denied on oath such a refusal. No effort was made to serve in any other manner known in law".
(Emphasis supplied)
7. In the light of aforesaid, I have no hesitation to hold that the charge sheet and notices of the enquiry were not served on the petitioner. In absence of service, the enquiry gets vitiated. Reasonable and effective opportunity of hearing was denied, which is violative of principles of natural justice.
8. The petitioner in his appeal Annexure P-4 has specifically stated that he was not given any opportunity in the departmental enquiry. It is stated by him that charge sheet and notices etc. have not been served to him. Other grounds were also raised. The appellate authority vide order dated 5.2.2008 rejected the said appeal. From para 1 to 3 he stated about the factual matrix and about other events. The whole consideration is in para 4 and 5, which reads as under:-
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9. At the cost of repetition, it is clear that neither from the reply, nor from the record of departmental enquiry, it is established that the petitioner was served with charge sheet and notices of the enquiry. I fail to understand as to from where the appellate authority has recorded his satisfaction W.P.994/2009 5 that the enquiry was conducted in accordance with rules. He has not chosen to deal with the contentions raised in the appeal memo. He has just recorded his conclusions. No reasons are assigned on the strength of which such conclusions are drawn. Reasons are heart beat of conclusions. In absence of reasons, even an administrative or quasi judicial order cannot sustain judicial scrutiny. (See Kranti Associates Private Limited v. Masood Ahmed Khan, (2010) 9 SCC 496, wherein the Apex Court opined as under:-
"(a) In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially.
(b) A quasi-judicial authority must record reasons in support of its conclusions.
(c) Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well.
(d) Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-judicial or even administrative power.
(e) Reasons reassure that discretion has been exercised by the decision-maker on relevant grounds and by disregarding extraneous considerations.
(f) Reasons have virtually become as indispensable a component of a decision-
making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies.
(g) Reasons facilitate the process of judicial review by superior courts.
(h) The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the lifeblood of judicial decision-making justifying the principle that reason is the soul of justice.
(i) Judicial or even quasi-judicial opinions these days can be as different as W.P.994/2009 6 the judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants' faith in the justice delivery system.
(j) Insistence on reason is a requirement for both judicial accountability and transparency.
(k) If a judge or a quasi-judicial authority is not candid enough about his/her decision- making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism.
(l) Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or "rubber-stamp reasons" is not to be equated with a valid decision-making process.
(m) It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision-making not only makes the judges and decision-makers less prone to errors but also makes them subject to broader scrutiny.
(n) Since the requirement to record reasons emanates from the broad doctrine of fairness in decision-making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence.
(o) In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of "due process".
10. In addition, in (1986) 3 SCC 103 (Ram Chander Vs. Union of India and others), the Apex Court emphasized the need of application of mind and passing of reasoned order by the appellate authority. Same view is followed by MP High Court in 2005 (2) MPLJ 51 (Mohammad Idris Vs. Registrar General, MP. High Court, Jabalpur and another).
W.P.994/2009 7Recently the Apex Court has again taken the same view in (2013) 6 SCC 530 (Chairman, Life Insurance Corporation of India and others Vs. A. Masilamani). Thus, the appellate order is cryptic and liable to be set aside.
11. So far the objection of Shri Kanungo regarding availability of revisional remedy is concerned, suffice it to say that the violation of principles of natural justice is established. In such cases, it is not compulsory to relegate the petitioner to avail the alternative remedy. Apart from this, the petition was admitted years ago and in the meantime limitation for alternative remedy is over. This Court by following AIR 1971 SC 33 (Hirday Narain Vs. Income Tax Officer, Bareilly) opined in 1995 MPLJ 969 (Chambal G.S.P. Samiti Vs. State of MP) that if the petition is entertained and during the pendency of petition, remedy for seeking alternative remedy expires, then the petition should be heard on merits and parties should not be relegated to avail the remedy under the statute (para 6). Thus, this objection stands overruled (para 11).
12. In the light of aforesaid, the punishment order and the appellate order (Annexure P-1) are set aside. Liberty is reserved to the respondents to serve the charge sheet to the petitioner and conduct it further from that stage in accordance with law. Petitioner be reinstated within 30 days. After further enquiry, the respondents may pass order in accordance with law which must also deal with the intervening period.
13. Petition is allowed. No cost.
(Sujoy Paul) Judge vv