Gauhati High Court
Arshad Hussain Laskar vs The Union Of India And 4 Ors on 30 March, 2021
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
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GAHC010028432015
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/7870/2015
ARSHAD HUSSAIN LASKAR
S/O- ATAUR RAHMAN LASKAR, VILL.- RANGPUR, PART- II, P.O.- RANGPUR,
DIST.- CACHAR, ASSAM, PIN- 788009.
VERSUS
THE UNION OF INDIA and 4 ORS
REP. BY THE SECY., DEPTT. OF HOME, NEW DELHI.
2:THE DIRECTOR GENERAL OF POLICE
CENTRAL RESERVE POLICE FORCE
NEW DELHI.
3:THE INSPECTOR GENERAL OF POLICE
SOUTHERN SECTOR
CENTRAL RESERVE POLICE FORCE
ROAD NO. 10-C
JUBILEE HILLS
NEW MLA/MPS COLONY QUARTERS
GAYATRI HILLS
HYDERABAD (TELANGANA)-500033.
4:THE DY. INSPECTOR GENERAL
RANGE
CENTRAL RESERVE POLICE FORCE
AJMER
RAJASTAN.
5:COMMANDANT 49 BN
CENTRAL RESERVE POLICE FORCE
KARAMNAGAR
SRI NAGAR
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JAMMU AND KASHMIR
Advocate for the Petitioner : MR. R MAZUMDAR
Advocate for the Respondent :
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
ORDER
Date : 30-03-2021 30.03.2021 Heard Mr. H. Bezbaruah, learned counsel for the petitioner as well as Mr. S.S. Roy, learned CGC appearing for the respondents.
2. By filing this writ petition under Article 226 of the Constitution of India, the petitioner has assailed the legality of the order dated 14.03.2012 passed by the Commandant, 49BN, CRPF, Srinagar (respondent no.5) as well as order dated 24.11.2014 passed by the Deputy Inspector General, Range, Central Reserve Police Force, Ajmer (respondent no.4).
3. By the said order dated 14.03.2012, passed by the respondent no.5, the petitioner was dismissed from service with effect from 14.03.2012, it was held that the petitioner would not be entitled to any pension (Financial Benefit/ any other benefit), medal/decoration acquired by him shall be taken away and period between 27.12.2010 to 14.03.2012, during which the petitioner was absent was regularized as dies-non and it was held that during that period he would not be entitled to any financial benefit/ relief etc.
4. The aggrieved petitioner filed an appeal, which was disposed of by the respondent no.4 vide order dated 24.11.2014. Amongst others, the learned counsel for the petitioner has submitted that the petitioner had availed leave on medical ground as he was suffering from Page No.# 3/6 psychiatric disorders and was admitted in Silchar Medical College and it was during the said period the proceeding was drawn against him by the respondent no.5. By referring to the statements made in para-13 of the writ petition, the learned counsel for the petitioner has submitted that in course of the departmental inquiry the Enquiry Officer examined himself all the witnesses without appointing any Presenting Officer and as per his report, the disciplinary authority had dismissed the petitioner from service w.e.f. 14.03.2012. It is submitted that the petitioner had overstated his leave and therefore he was not a deserter within the meaning of sub-section (f) of section 9 of the CRPF Act, 1949, rather, the offence of the petitioner would fall within the meaning of les heinous offence as defined under sub-section (m) of section 10 of the CRPF Act, 1949, which according to him was punishable with imprisonment for a term which may extend to 1 year with fine which may extend for 3 month's pay on default.
5. The learned counsel for the petitioner has further submitted that the petitioner had previously approached this Court by fling WP(C) 2403/2013 and this Court by an order dated 26.03.2014 allowed the writ petition, this Court had provided that the memo of appeal provided to the learned CGC would be transmitted to the Appellate authority and the Appellate authority shall consider and dispose of the appeal filed by the petitioner on merit within a period of 90 days from the date of receipt of the appeal memo by him from the Standing counsel.
6. It is submitted that thereafter the respondent no.4 had disposed of the appeal by order dated 24.11.2014. It is submitted that the Appellate authority did not sign any reason for rejecting the plea taken by the petitioner.
7. The learned counsel for the petitioner has referred to the provision of Rule 31 of the CRPF Rules, 1955 and it is submitted that as per the said provision, the respondent no.5 being the Commandant was required to assemble the Court of inquiry because the petitioner was accused for being absent without leave and desertion.
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8. It is submitted that it is neither mentioned in the order passed by the respondent no.5 or the impugned order passed by the respondent no.4, that a code of inquiry was duly instituted to inquire the charges made against the petitioner. He has also referred to the judgment and order dated 01.02.2019 passed by the Division Bench of this Court in WA 305/2017 wherein this Court by relying upon the case of Union of India Vs. Ram Lakhan Sharma, (2018) 7 SCC 670, had upheld the order passed by the learned Civil Judge, holding that inquiry in the absence of the Presenting Officer was vitiated. Accordingly, it is submitted that the said ratio would be squarely applicable in the case in hand.
9. Opposing this application, the learned CGC has made his submission in support of the orders impugned in the present writ petition. He has also produced the records of inquiry conducted by the respondent no.5. On a specific query by the Court, the learned CGC has submitted that as per the records available the same would not disclose that the Court of inquiry was instituted in terms of Rule 31 of the Central Reserve Police Force Rules, 1955 now discloses that Presenting Officer was appointed in course of the departmental inquiry and/ or inquiry by the disciplinary authority.
10. From the submissions made by the learned counsel for the petitioner, it appears that if the inquiry is vitiated by absence of Presenting Officer, the other issues are not required to be gone into at this stage. Accordingly, the issue of lack of Presenting officer is taken up first. It appears that in the case of Ram Lakhan Sharma (supra) was decided by the learned Single Judge of this Court holding that the disciplinary inquiry against the petitioner was vitiated by lack of Enquiry officer and the Division Bench of this Court had affirmed the decision of the learned Single Judge while dismissing the writ appeal and accordingly, the Union of India had moved the Supreme Court of India. The relevant para 37 is quoted below:
"37. The High Court having come to the conclusion that the Enquiry Officer has acted as prosecutor also, the capacity of independent adjudicator was lost while adversely affecting his independent role of adjudicator. In the circumstances, the principle of bias shall come into play and the High Court was right in setting aside the dismissal orders by giving liberty to the appellants to proceed with inquiry afresh. We make it clear that our observations as made above are in the facts of the present cases."
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11. From the above, it appears that the settled position of law is that non-appointing of Presenting Officer would vitiate the proceeding and therefore the consequential order passed by the disciplinary authority as well as the impugned order passed by the appellate authority would not be sustainable.
12. In the present case in hand, as there was no Presenting Officer, as such, the Enquiry Officer acted as a Prosecutor and a Judge by examining witnesses. Accordingly, the Court is of the opinion that the inquiry proceeding by the Enquiry Officer was vitiated. Accordingly, the order of dismissal passed by the respondent no.5 on 14.03.2012 is hereby set aside. Resultantly, the order dated 24.11.2014 passed by the respondent no.4 is also set aside.
13. As a result of the quashing of the two orders, the matter stands remanded back to the disciplinary authority (respondent no.5) who would issue direction for holding a fresh disciplinary proceeding against the petitioner, if so advised.
14. The respondents are at liberty to hold a fresh de novo proceeding as per the law, if so advised, within a time frame of 3(three) months from the date of receipt of the certified copy of the order. The Court is inclined to direct the respondents to reinstate the petitioner forthwith and treat the period he was removed from service as suspension period. The writ petition stands allowed to the extent as indicated above.
15. Before parting with the records, it is clarified that in view of the point taken up, the other factual matrix is not gone into by this Court.
16. The records of inquiry produced by the learned CGC is returned.
Page No.# 6/6 JUDGE Comparing Assistant