Rajasthan High Court - Jaipur
Ct/Gd.Kalu Ram Meena 120Bn Crp vs U O I And Ors on 2 February, 2011
Author: Arun Mishra
Bench: Arun Mishra
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR
JUDGMENT
(1) D.B. Civil Special Appeal (Writ) No.707/2010
Rohitash Kharera vs. Director General of Police & Ors.
(2) D.B. Civil Special Appeal (Writ) No.992/2007
Mahendra Singh 63 BN CRPF vs. U O I & Ors.
(3) D.B. Civil Special Appeal (Writ) No.993/2007
CT/GD. Kalu Ram Meena 120BN CRPF vs. U O I & Ors.
(4) D.B. Civil Special Appeal (Writ) No.994/2007
CT/GD Ashok Kumar 121 BN CRPF vs. U O I & Ors.
(5) D.B. Civil Special Appeal (Writ) No.1001/2007
CT/GD Megha Ram of 151 BN CRPF vs. U O I & Ors.
(6) D.B. Civil Special Appeal (Writ) No.1006/2007
CT/GD Budha Ram 120 BN CRPF vs. U O I & Ors.
(7) D.B. Civil Special Appeal (Writ) No.1197/2007
Siya Ram Beda vs. U O I & Ors.
(8) D.B. Civil Special Appeal (Writ) No.1266/2007
Ram Singh vs. U O I & Ors.
(9) D.B. Civil Special Appeal (Writ) No.1267/2007
Sobha Ram vs. U O I & Ors.
(10) D.B. Civil Special Appeal (Writ) No.1268/2007
Vinod Kumar Meena vs. U O I & Ors.
(11) D.B. Civil Special Appeal (Writ) No.1269/2007
Prem Prakash Maruka vs. U O I & Ors.
(12) D.B. Civil Special Appeal (Writ) No.21/2008
CT/GD Moti Lal 85 BN CRPF vs. U O I & Ors.
(13) D.B. Civil Special Appeal (Writ) No.22/2008
CT/GD Dinesh Kumar 90 BN CRPF vs. U O I & Ors.
(14) D.B. Civil Special Appeal (Writ) No.23/2008
CT/GD Ram Bharos Kumar 117 BN CRPF vs. U O I & Ors.
(15) D.B. Civil Special Appeal (Writ) No.384/2008
CT/GD Bhairu Lal Khatik vs. U O I & Ors.
(16) D.B. Civil Special Appeal (Writ) No.721/2008
Hardayal vs. Director General of Police & anr.
(17) D.B. Civil Special Appeal (Writ) No.1471/2008
Jitendra vs. U O I & Ors.
(18) D.B. Civil Special Appeal (Writ) No.1472/2008
Manju Kumari vs. U O I & Ors.
(19) D.B. Civil Special Appeal (Writ) No.1473/2008
Bijendra Singh vs. U O I & Ors.
(20) D.B. Civil Special Appeal (Writ) No.1474/2008
Shankar Lal vs. U O I & Ors.
(21) D.B. Civil Special Appeal (Writ) No.1475/2008
Narendra Singh Yadav vs. U O I & Ors.
(22) D.B. Civil Special Appeal (Writ) No.1476/2008
Karan Pal vs. U O I & Ors.
(23) D.B. Civil Special Appeal (Writ) No.1477/2008
Jagdish Prasad vs. U O I & Ors.
(24) D.B. Civil Special Appeal (Writ) No.1478/2008
Sandeep Kumar vs. U O I & Ors.
(25) D.B. Civil Special Appeal (Writ) No.1479/2008
Ajay Pal Yadav vs. U O I & Ors.
(26) D.B. Civil Special Appeal (Writ) No.1480/2008
Bishambhar Dayal vs. U O I & Ors.
(27) D.B. Civil Special Appeal (Writ) No.1481/2008
Raj Kumar Meena vs. U O I & Ors.
(28) D.B. Civil Special Appeal (Writ) No.1482/2008
Sunil Kumar vs. U O I & Ors.
(29) D.B. Civil Special Appeal (Writ) No.1483/2008
Manoj Kumar Yadav vs. U O I & Ors.
(30) D.B. Civil Special Appeal (Writ) No.1484/2008
Rakesh Kumar Yadav vs. U O I & Ors.
(31) D.B. Civil Special Appeal (Writ) No.1485/2008
Jaswant Koli vs. U O I & Ors.
(32) D.B. Civil Special Appeal (Writ) No.1486/2008
Bijender Kumar vs. U O I & Ors.
(33) D.B. Civil Special Appeal (Writ) No.1487/2008
Tareeph Singh vs. U O I & Ors.
(34) D.B. Civil Special Appeal (Writ) No.1488/2008
Rajaram vs. U O I & Ors.
(35) D.B. Civil Special Appeal (Writ) No.1489/2008
Jai Dayal Jat vs. U O I & Ors.
(36) D.B. Civil Special Appeal (Writ) No.1490/2008
Baldeva Ram vs. U O I & Ors.
(37) D.B. Civil Special Appeal (Writ) No.1491/2008
Vinod Kumar vs. U O I & Ors.
(38) D.B. Civil Special Appeal (Writ) No.1494/2008
Balbir Singh Jat vs. U O I & Ors.
(39) D.B. Civil Special Appeal (Writ) No.1495/2008
Devendra Kumar vs. U O I & Ors.
(40) D.B. Civil Special Appeal (Writ) No.1496/2008
Gajendra Singh vs. U O I & Ors.
(41) D.B. Civil Special Appeal (Writ) No.1497/2008
Raj Kumar Yadav vs. U O I & Ors.
(42) D.B. Civil Special Appeal (Writ) No.675/2010
Mukesh Singh vs. DG of Police & ors.
(43) D.B. Civil Special Appeal (Writ) No.676/2010
Shub Karan vs. Director General of Police & Ors.
(44) D.B. Civil Special Appeal (Writ) No.677/2010
Kunnaram vs. Director General of Police & Ors.
(45) D.B. Civil Special Appeal (Writ) No.678/2010
Sahdev Ram vs. Director General of Police & Ors.
(46) D.B. Civil Special Appeal (Writ) No.679/2010
Hardeva Ram vs. Director General of Police & Ors.
(47) D.B. Civil Special Appeal (Writ) No.680/2010
Hariram vs. Director General of Police & Ors.
(48) D.B. Civil Special Appeal (Writ) No.681/2010
Pintu Singh Vs. State & ors.
(49) D.B. Civil Special Appeal (Writ) No.682/2010
Ram Kishan Vs. UOI & ors.
(50) D.B. Civil Special Appeal (Writ) No.691/2010
CT/GD Ashok Kumar 121 BN CRPF Vs. vs. UOI & Ors.
(51) D.B. Civil Special Appeal (Writ) No.781/2010
Virendra Kumar vs. Director General of Police & Ors.
(52) D.B. Civil Special Appeal (Writ) No.782/2010
Udai Chand Meena vs. Director General of Police & Ors.
Date of Judgment : 02.02.2011
PRESENT
HON'BLE THE CHIEF JUSTICE MR. ARUN MISHRA
HON'BLE MR. JUSTICE RAGHUVENDRA S. RATHORE
Mr. Ashok Gaur, Senior Advocate with
Mr. Chandragupt Chopra ]
Mr. M.R. Yadav ]
Mr. Jai Kumar Yadav with
Mr. Amit Kuri ]
Mr. P.S. Sharma ]
Mr. Abhay Singh on behalf of
Mr. M.S. Raghaw ] for the appellants.
Mr. M.A. Khan ]
Mr. Tej Prakash Sharma ]
Ms. Anuradha Upadhayay ]
Mr. Umesh Kumar Sharma ]
Ms. Sumati Bishnoi ]
Mr. Mukesh Kumar Meena ]
Mr. Ramgopal Choudhary ] for the respondents.
PER HON'BLE ARUN MISHRA, CJ:
These intra-court appeals have been preferred in the matter of dismissal of the appellants from the post of Constable/General Duty, Central Reserve Police Force, examination for which was held in the year 2002-03. On investigation by the Central Bureau of Investigation, it was found that there were large scale manipulations in allotment of marks. The marks obtained by appellants in examination were increased and the candidates who had passed the examination, were declared fail by decreasing their marks. The candidates who did not get even the pass marks, were declared pass by increasing their marks, manipulating the result-sheets and even the answer-sheets. The appellants were the beneficiaries of the manipulations so done, otherwise they were not to be in the merit list of the candidates selected. Such was the conclusion of the Central Bureau of Investigation, on the basis of thorough investigation done in the case. Considering the report; the material collected by the Central Bureau of Investigation and the fact that the marks were obtained by the candidates by manipulation, a decision was taken by the respondents to dismiss the appellants from service, after dispensing with the inquiry for the reasons recorded in the order of termination of services.
2. The recruitment for the post of Constable/ General Duty, CRPF was held at Ajmer (Rajasthan) during the year 2002-03. Information was furnished that the members of the Recruitment Board at Ajmer Centre have manipulated marks of answer sheets of candidates to extend undue favour/disfavour to them. A joint surprise check was conducted by the officers of CBI branch and CRPF authorities at Group Centre-I CRPF Ajmer where all records of recruitment were kept. After scrutiny of the record it was found that marks of 14 candidates were reduced by the board as a result of which they have been declared fail in the written test. The investigation further revealed that 118 candidates who could pass the written test, by way of manipulation of marks by the Recruitment Board, were subjected to medical examination of GC II, CRPF, Ajmer out of which 70 candidates could not get through it. The CBI investigation also reveals that 118 candidates as per marks awarded in initial evaluation as per their performance in the written test had either not secured minimum pass marks or were not figuring in the merit list of candidates to be selected. In order to put these candidates in the merit list, the members of the recruitment board made manipulations in their answer-sheets and increased their marks. The candidates had ticked wrong choices in Part 'A' of question paper, but during manipulation ticks have been made on right choices with different pen and style and marks were also added. Marks were also given on wrong answers in the objective type questions so as to increase the marks initially awarded, enabling the candidates to cross the passing marks and the marks of the pass candidates were increased so as to place them in the merit list. The CBI has launched a prosecution against the members of the board, who were found responsible for the manipulations.
3. In the back-drop of the aforesaid factual matrix, a decision was taken to dispense with the departmental inquiry by serving written charge under the CRPF Rules, 1955 (hereinafter referred to as, 'the Rules of 1955'). It was opined that holding of enquiry is not reasonably practicable since all 107 candidates are posted in different battalions at various places all over the country and it was not possible to collect them at one place. It was also not possible to draw common proceedings because a regular departmental enquiry requires detailing of Enquiry Officers, the availability of Defence Assistant for each delinquent involving huge expenditure on the State exchequer; considering the pros and cons of the case; the report of the CBI and the options available, it was decided to invoke provisions of Rule 27 (cc)(ii) of the Rules of 1955 and penalty of removal from service was imposed upon appellants by similarly worded orders passed in the year 2006. The orders were assailed by the appellants by way of filing writ petitions before the Single Bench. The writ petitions have been dismissed by a common order dated 9.5.2007 by the Single Bench of this court. Aggrieved thereby, these intra-court appeals have been preferred.
4. Mr. Ashok Gaur, learned senior counsel, Mr. M.R. Yadav along with Mr. J.K. Yadav and Mr. P.S. Sharma advocates have submitted that the decision was illegally taken to dispense with the enquiry under Rule 27(cc)(ii) of the Rules of 1955. The reasons employed were not sufficient to dispense with the enquiry. Had the enquiry been held, the appellants could have shown that they were not responsible for manipulations so done and they could have been selected even without addition of the manipulated marks. The order is violative of the principles of natural justice. The CBI did not associate the appellants with the enquiry which was conducted. The findings so recorded by CBI or respondents were against the principles of natural justice and, therefore, the same could not be said to be binding on the appellants. They have pressed into service the decisions in (1) Union of India and another Vs. Tulsiram Patel- (1985) 3 SCC 398 = AIR 1985 SC 1416, (2) Workmen of Hindustan Steel Ltd. and another Vs. Hindustan Steel Ltd. and others- AIR 1985 SC 251, (3) Sudesh Kumar Vs. State of Haryana and others- (2005)11 SCC 525, (4) Inderpreet Singh Kahlon and others Vs. State of Punjab and others- (2006)11 SCC 356, (5) Tarsem Singh Vs. State of Punjab and others- (2006)13 SCC 581 and Kamal Nayan Mishra Vs. State of Madhya Pradesh and others- (2010) (2) SCC 169. It was also submitted by the learned counsel appearing on behalf of the appellants that the charge of committing misconduct under the Rules of 1955 was framed and, thus, it was necessary to conduct the enquiry in accordance with the Rules for inflicting major punishment.
5. Mr. M.A. Khan, Mr. Tej Prakash Sharma, Mr. Ram Gopal Choudhary, Mr. Umesh Kumar Sharma, Ms. Priyanka Pareek and Ms. Sumit Bishnoi, learned counsel appearing on behalf of Union of India have contended that considering the fact that manipulations of marks were done at large scale and all the appellants were the beneficiaries of the manipulated marks, it was not necessary to conduct departmental enquiry in the facts of the instant case. Considering the report of the CBI, the extent of manipulations of marks found and the various documents collected, a decision was taken by the respondents to remove the incumbents from service. It was also submitted by the learned counsel that the departmental enquiry was rightly dispensed with as no useful purpose would have been served by holding the same in the facts of the instant case. Even if the enquiry would have been conducted, the appellants could not have stated anything except that they were not responsible for the manipulations it was the only defence, at the most which they could have taken. The principles of natural justice do not operate in the straight jacket formula. In the given sets of facts and considering the manipulations of marks at large scale, no useful purpose would have been served by holding departmental enquiry. Merely for the reason that investigation by CBI took time and in the mean time the appellants rendered the services for approximately two years and 10 months, would not confer upon them any right to continue in service. The manipulations in the marks were made before they had entered into service. It was not a misconduct committed during the course of employment. It was not reasonably practicable to hold enquiry considering the large number of persons involved who were posted at various places in the country and no useful purpose would have been served by holding such enquiry at different places.
6. In the instant case, immediately after the process of selection was over, complaints were received that the members of the Recruitment Board, Ajmer had manipulated the marks in the answer-sheets as well as in the result-sheets. As per the Rules and Regulations of examination, the Board members were required to ensure that there was no manipulation in the answer-sheets and marking was done fairly. There were other guidelines to ensure fairness in the process of selection. Recruitment process at Ajmer centre of CRPF started on 10.11.2002. The candidates were required to put tick marks on right choices on Part 'A' and no cutting or over-writing was allowed. Even if a candidate had initially put tick mark on a wrong choice and subsequently marked 'tick mark' on right choice, then the answer was considered as invalid and the candidate was not entitled for any mark. Part 'B' of the question paper was to be evaluated by the members of the board only. On examination of the answer-sheets, it was found by the team consisting of Commandant Shri V.S. Yadav, CRPF, Gurgaon and Commandant M.S. Raghav from CRPF Nimach that there were manipulations in the answer-sheets to favour certain candidates and to dis-favour some other candidates, as discussed in the report and the finding was recorded as to what extent the marks were increased or decreased. With respect to each roll number observations were separately made by the aforesaid team appointed for examining the answer-sheets. During the course of investigation, the specimen handwriting/signatures of all the members of the recruitment board and staff deputed for assisting them were collected and sent to the Government Examiner of Questioned Documents, Shimla for expert opinion, on the point of overwriting/ cutting/ manipulations made in the answer-sheets. After examining the documents thoroughly, the GEQD, Shimla vide its report dated 31.12.2004 opined that in the majority of instances the marks of candidates have been increased by making over-writing/ cutting. It was also opined that the answers have not been written by the candidate himself and someone else had manipulated the answers.
7. Marks of 14 candidates were reduced by way of manipulations and they were declared failed in the written test. The marks of 188 candidates were increased due to manipulations, out of them 70 candidates could not get through as they were declared medically unfit. Thus, 118 candidates were selected. Following is the details of manipulation in marks of 118 candidates:
S. No. Roll No. Marks given under different heads Marks of the written Examination PET Spl/Q Interview alloted to be alloted 1 220 15 6 13 40 32
8 marks given in excess 2 244 13
-
6 26 206 marks given in excess 3 298 13 2 13 42 30.5 11.5 marks given in excess 4 539 15
-
13 35 296 marks given in excess 5 705 11
-
14 38 299 marks given in excess 6 946 17
-
12 33 2211 marks given in excess 7 954 21 1 13 37 29 8 marks given in excess 8 1705 23 10 14 32 24 8 marks given in excess 9 2216 19
-
12 41 2912 marks given in excess 10 2476 13
-
13 38 2216 marks given in excess 11 2967 9 2 13 43 22 21 marks given in excess 12 3018 11 6 11 26 22 4 marks given in excess 13 3385 13
-
13 35 2510 marks given in excess 14 3404 13 3 14 38 33 5 marks given in excess 15 3452 21
-
13 38 299 marks given in excess 16 3543 17 1 14 41 28 13 marks given in excess 17 3613 17
-
14 40 2515 marks given in excess 18 4052 13
-
14 35 2510 marks given in excess 19 4074 17 6 11 34 30 4 marks given in excess 20 4162 13 3 13 39 27 12 marks given in excess 21 5043 17 1 11 24 30 6 marks given less 22 5070 17
-
13 37 2710 marks given in excess 23 5106 21
-
11 44 3212 marks given in excess 24 5846 21 8 14 26 23 3 marks given in excess 25 24034 15
-
14 33 1815 marks given in excess 26 25107 23 2 14 33 24 9 marks given in excess 27 25115 17
-
12 30 255 marks given in excess 28 25129 11 3 13 39 24 15 marks given in excess 29 25291 17
-
14 34 2410 marks given in excess 30 25434 21
-
7 25 4419 marks given less 31 25437 19
-
11 26 348 marks given less 32 25490 17
-
13 41 3110 marks given in excess 33 25663 15
-
13 39 2811 marks given in excess 34 26012 17
-
8 23 274 marks given less 35 26079 19
-
14 39 318 marks given in excess 36 26227 25 1 12 41 21 10 marks given in excess 37 26319 19
-
12 33 285 marks given in excess 38 26356 21
-
12 36 288 marks given in excess 39 26424 13
-
14 40 2911 marks given in excess 40 26577 19 4 12 39 31 8 marks given in excess 41 26590 13 1 12 35 30 5 marks given in excess 42 26595 17 1 12 44 32 12 marks given in excess 43 26635 23
-
13 36 297 marks given in excess 44 26645 21
-
13 38 2711 marks given in excess 45 26884 23
-
11 43 3310 marks given in excess 46 26899 13
-
10 38 317 marks given in excess 47 26904 15
-
13 39 2514 marks given in excess 48 26914 15
-
4 21 243 marks given less 49 26927 13
-
10 36 324 marks given in excess 50 27162 21 3 11 40 35 5 marks given in excess 51 27222 19
-
12 32 284 marks given in excess 52 27232 19
-
12 32 2210 marks given in excess 53 27284 17
-
12 37 316 marks given in excess 54 27421 17 1 13 39 35 4 marks given in excess 55 27456 13 2 12 44 37 7 marks given in excess 56 27459 11 1 11 40 29 11 marks given in excess 57 27849 21
-
12 25 196 marks given in excess 58 27942 21
-
12 43 2518 marks given in excess 59 28114 21 5 12 43 34 9 marks given in excess 60 28230 17
-
12 40 2911 marks given in excess 61 28312 13
-
13 39 309 marks given in excess 62 28366 21
-
13 39 2514 marks given in excess 63 28585 23 6 11 41 30 11 marks given in excess 64 29101 13
-
10 30 1713 marks given in excess 65 29696 19
-
13 38 2711 marks given in excess 66 29986 15
-
11 34 2410 marks given in excess 67 30382 19 1 11 30 23 7 marks given in excess 68 30391 15 5 13 36 28 8 marks given in excess 69 30445 21 3 12 34 31 3 marks given in excess 70 30538 17
-
11 33 294 marks given in excess 71 30569 19
-
11 29 263 marks given in excess 72 30584 21
-
12 34 277 marks given in excess 73 30598 17
-
12 39 318 marks given in excess 74 30606 15
-
12 37 2710 marks given in excess 75 30636 23 1 12 34 31 3 marks given in excess 76 30726 23 1 12 35 30 5 marks given in excess 77 30768 17
-
11 38 326 marks given in excess 78 30845 19
-
12 34 259 marks given in excess 79 31443 21
-
12 33 2310 marks given in excess 80 31638 19
-
13 37 2710 marks given in excess 81 31843 21
-
12 34 2410 marks given in excess 82 32243 11
-
7 28 217 marks given in excess 83 61705 15 2 13 30 17 13 marks given in excess 84 61871 23
-
11 26 293 marks given less 85 61894 17
-
14 41 356 marks given in excess 86 62052 9
-
11 30 246 marks given in excess 87 62219 11
-
10 32 248 marks given in excess 88 62556 19
-
12 39 2019 marks given in excess 89 62600 13
-
13 30 246 marks given in excess 90 62946 13
-
13 31 238 marks given in excess 91 62979 17
-
14 38 299 marks given in excess 92 63024 13 5 12 38 22 16 marks given in excess 93 63160 13 2 12 29 18 11 marks given in excess 94 63233 11 6 14 40 28 12 marks given in excess 95 63455 13 7 13 30 21 9 marks given in excess 96 63598 13
-
11 26 206 marks given in excess 97 63655 13
-
13 30 219 marks given in excess 98 63667 13 1 12 31 25 6 marks given in excess 99 63710 15
-
13 30 255 marks given in excess 100 63988 13
-
13 31 283 marks given in excess 101 64149 15
-
12 31 283 marks given in excess 102 64269 13
-
12 30 228 marks given in excess 103 64522 19
-
13 28 1810 marks given in excess 104 64607 11 2 12 29 20 9 marks given in excess 105 64624 15 1 13 34 22 12 marks given in excess 106 64767 17 2 13 38 15 23 marks given in excess 107 64856 13
-
12 31 274 marks given in excess 108 65183 25
-
13 31 247 marks given in excess 109 77514 21 1 13 37 27 10 marks given in excess 110 78179 13
-
14 38 2117 marks given in excess 111 78180 15
-
13 37 1720 marks given in excess 112 78590 9
-
8 17 214 marks given less 113 79233 13 1 14 38 28 10 marks given in excess 114 79738 21
-
12 27 225 marks given in excess 115 80635 13 10 13 30 18 12 marks given in excess 116 80672 13 1 14 36 23 13 marks given in excess 117 94408 19
-
13 39 2910 marks given in excess 118 94472 11
-
14 30 1911 marks given in excess Seven candidates with roll numbers 5043, 25434, 25437, 26012, 61871 and 78590 whose marks have been decreased by way of manipulations have finally been selected in CRPF as constables, they are not the appellants before us. We have carefully checked that the present appellants are those incumbents whose marks have been increased and not decreased.
8. The CBI investigation further reveals that initially all the successful candidates were awarded marks on the basis of their actual performance in the written test. However, with such marks these candidates had either not secured the minimum passing marks or were not figuring in the merit list. Consequently, the members of the recruitment board made manipulation in their answer-sheets before finalizing the merit lists, by increasing the marks. In some cases, the candidates had ticked wrong choices in Part 'A', however, during evaluation, 'ticks' have been put on the right choices, with different pen and style and have been given marks. The marks have been increased in such a way that they have been allotted above passing marks and the candidates who had already passed, their marks have further been increased to ensure that they secure higher place in the merit list. It was found that several members of the board, name mentioned in the report, were responsible for manipulating the marks as opined in the report by the expert of questioned documents. The CBI also discussed the role of each accused and the eight officials of Ajmer Recruitment Board, namely; Shri Mahipal Singh Yadav, the then Commandant, CRPF, Shri S. L. Arya, Deputy Commandant, CRPF, Shri Gurdial Singh, the then Assistant Commandant, Shri Dharam Pal, Inspector, Shri Anil Kumar Singh, Assistant Commandant, CRPF, Shri Rajendra Kumar, Sub Inspector (Ministerial) CRPF, DC II, Ajmer, Shri Ashok Kumar, Assistant Sub Inspector (Ministerial), CRPF and Shri Indraj Singh, Assistant Sub Inspector, CRPF, Ajmer and they have been charge-sheeted.
9. Before dilating upon various submissions, it is appropriate to refer to the relevant provisions of the CRPF Act, 1949 and the Rules of 1955. Section 9 of the CRPF Act, 1949 (here-in-after referred to as, 'the Act of 1949') prescribes more heinous offences. Section 10 prescribes less heinous offences. Section 11 prescribes minor punishment. Normal procedure for award of punishment of dismissal or removal from the force is after formal departmental enquiry. Rule 27 of the Rules of 1955 prescribes procedure for award of punishment. However, Rule 27 (cc) contains non-obstante clause and it provides as under:
'27(cc) Notwithstanding anything contained in this rule-
(i) where any penalty is imposed on a member of the Force on the ground of conduct which has led to his conviction on a criminal charge; or
(ii) where the authority competent to impose the penalty is satisfied for reasons to be recorded by it in writing that it is not reasonably practicable to hold an enquiry in the manner provided in these rules; or
(iii) where the Director-General is satisfied that in the interest of security of the State, it is not expedient to hold any enquiry in the manner provided in these rules, the authority competent to impose the penalty may consider the circumstances of the case and make such orders thereon as it deems fit.' The Rule provides that where the authority competent to impose penalty is satisfied, for reasons to be recorded in writing, that it is not reasonably practicable to hold an enquiry in the manner provided in these rules then it may consider the circumstances of the case and make such orders as it deems fit.
10. Now, we deem it proper to refer to the various decisions cited at the bar. Reliance has been placed on the decision of the Apex Court in the case of Workmen of Hindustan Steel Ltd. and another Vs. Hindustan Steel Ltd. and others (supra), in which it has been laid down that the authority must be satisfied for the reasons to be recorded in writing that it is not reasonably practicable to hold such an enquiry. Obviously, therefore, the reasons which would permit exercise of power must be such as would clearly spell out that the inquiry, if held, would be counter-productive. The duty to specify the reasons for the satisfaction for holding that the inquiry was not reasonably practicable cannot be dispensed with. The reasons must be germane to the issue and would be subject to a limited judicial review. It is open to the court to reject the reasons which the authority had specified if they were merely a cloak, device or a pretense to dispense with the inquiry and to impose the penalty. The Apex Court has further laid down that when the decision of the employer to dispense with the enquiry is questioned, the employer must be in a position to satisfy the court that holding of enquiry will either be counter-productive or may cause such irreparable and irreversible damage which in the facts and circumstances of the case need not be suffered.
11. In Union of India and another Vs. Tulsiram Patel (supra), the Apex Court considered the words used in Article 311(2) of the Constitution of India which are 'not reasonably practicable' and not impracticable. After considering the meaning of the respective words, the Apex Court has observed, 'thus, whether it was practicable to hold the inquiry or not must be judged in the context of whether it was reasonably practicable to do so. It is not a total or absolute impracticability which is required by clause (b). What is requisite is that the holding of the inquiry is not practicable in the opinion of a reasonable man taking a reasonable view of the prevailing situation'. The Apex Court has laid down thus:
Where a government servant is dismissed, removed or reduced in rank by applying clause (b) or an analogous provision of the service rules and he approaches either the High Court under Article 226 or this Court under Article 32, the court will interfere on grounds well established in law for the exercise of power of judicial review in matters where administrative discretion is exercised. It will consider whether clause (b) or an analogous provision in the service rules was properly applied or not. The finality given by clause (3) of Article 311 to the disciplinary authority's decision that it was not reasonably practicable to hold the inquiry is not binding upon the court. The court will also examine the charge of malafides, if any, made in the writ petition. In examining the relevancy of the reasons, the court will consider the situation which according to the disciplinary authority made it come to the conclusion that it was not reasonably practicable to hold the inquiry. If the court finds that the reasons are irrelevant, then the recording of its satisfaction by the disciplinary authority would be an abuse of power conferred upon it by clause (b) and would take the case out of the purview of that clause and the impugned order of penalty would stand invalidated. In considering the relevancy of the reasons given by the disciplinary authority the court will not, however, sit in judgment over them like a court of first appeal. In order to decide whether the reasons are germane to clause (b), the court must put itself in the place of the disciplinary authority and consider what in the then prevailing situation a reasonable man acting in a reasonable way would have done. The matter will have to be judged in the light of the then prevailing situation and not as if the disciplinary authority was deciding the question whether the inquiry should be dispensed with or not in the cool and detached atmosphere of a court-room, removed in time from the situation in question. Where two views are possible, the court will decline to interfere.
The Apex Court has opined that where two views are possible in respect of holding inquiry, the court may decline to interfere.
12. In Satpal Vs. State of Haryana- 1995 Suppl.(1) SCC 206, the Apex Court considered the question, where the entire selection process was found tainted with illegality and held that the High Court has rightly quashed the selection. Further, the fact that the candidates had obtained training and given appointment could not be protected merely on that ground, as affording such protection to them would be discriminatory to the remaining selected candidates.
13. In Sudesh Kumar Vs. State of Haryana (supra), the Apex Court considered dispensing with the regular departmental inquiry under Article 311(2) of the Constitution and observed that it was to be an exception. The reasons can be examined by the court. The person should be given opportunity to prove his innocence. The Apex Court has held thus:
'It is now established principle of law that an inquiry under Article 311(2) is a rule and dispensing with the inquiry is an exception. The authority dispensing with the inquiry under Article 311(2)(b) must satisfy for reasons to be recorded that it is not reasonably practicable to hold an inquiry. A reading of the termination order by invoking Article 311(2)(b), as extracted above, would clearly show that no reasons whatsoever have been assigned as to why it is not reasonably practicable to hold an inquiry. The reasons disclosed in the termination order are that the complainant refused to name the accused out of fear of harassment; the complainant, being a foreign national, is likely to leave the country and once he left the country, it may not be reasonably practicable to bring him to the inquiry. This is no ground for dispensing with the inquiry. On the other hand, it is not disputed that, by order dated 23.12.1999, the visa of the complainant was extended up to 22.12.2000. Therefore, there was no difficulty in securing the presence of Mr. Kenichi Tanaka in the inquiry.'
14. In Inderpreet Singh Kahlon and others Vs. State of Punjab & others (supra), the Apex Court has laid down that the protection under Article 311(2) is available, where termination of service is not in term of rules but in case of commission of illegality in the selection process, applicability of relevant provision of the statutes as also the effect of the provisions of Article 311 need not be considered. The court while setting aside a selection may require the State to establish that the entire process was so tainted that it was liable to be cancelled. The Apex Court has laid down the distinction which existed between a proven case of mass cheating in a board examination and an unproven imputed charge of corruption where the appointment of a civil servant is involved. The Apex Court has laid down thus:
'40. We at the outset would furthermore notice that having regard the submissions made before us by Mr. Dwivedi and Mr. Rao that the services of the appellants before us were terminated not in terms of the Rules but in view of the commission of illegality in the selection process involved, we need not consider the applicability of the relevant provisions of the statutes as also the effect of the provisions of Article 311 of the Constitution of India. An appointment made in violation of Articles 14 and 16 of the Constitution of India would be void. It would be a nullity. [See Secretary, State of Karnataka and Others v. Umadevi and Others, 2006 (4) SCALE 247] But before such a finding can be arrived at the appointing authority must take into consideration the foundational facts. Only when such foundational facts are established, the legal principles can be applied.
46. A distinction moreoever exists between a proven case of mass cheating for a board examination and an unproven imputed charge of corruption where the appointment of a civil servant is involved.
58. condemnation of selection and not of the candidate. But, when the services of the employees are terminated inter alia on the ground that they might have aided and abated corruption and, thus, either for the sake of probity in governance or in public interest their services should be terminated; the court must satisfy itself that conditions therefor exist. The court while setting aside a selection may require the State to establish that the process was so tainted that the entire selection process is liable to be cancelled. We, however, do not agree with the submission of Mr. Dhavan that the decision of the Commission was collegiate in nature as it is well known that one of the members of the Commission was biased, other members could also be influenced by him. [See Ajay Hasia and Others v. Khalid Mujib Sehravardi and Others, (1981) 1 SCC 722].
15. In Tarsem Singh Vs. State of Punjab & others (supra), the Apex Court considered the question of dispensing with the inquiry. In the aforesaid case, no case was found against Tarsem Singh, in the investigation done by the police with respect to the FIR lodged against him under section 377/34 IPC where a formal inquiry was dispensed with, as the appellant could have won over the aggrieved person as well as the witnesses from giving evidence, by threatening and other means. No material had been placed or disclosed either in the said order or before the court to show that subjective satisfaction arrived at by the statutory authority was based upon objective criteria. The purported reason for dispensing with the departmental proceedings is not supported by any document. The Apex Court laid down thus:
11. We have noticed hereinbefore that the formal enquiry was dispensed with only on the ground that the appellant could win over aggrieved people as well as witnesses from giving evidence by threatening and other means. No material has been placed or disclosed either in the said order or before us to show that subjective satisfaction arrived at by the statutory authority was based upon objective criteria. The purported reason for dispensing with the departmental proceedings is not supported by any document. It is further evident that the said order of dismissal was passed, inter alia, on the ground that there was no need for a regular departmental enquiry relying on or on the basis of a preliminary enquiry. However, if a preliminary enquiry could be conducted, we fail to see any reason as to why a formal departmental enquiry could not have been initiated against the appellant. Reliance placed upon such a preliminary enquiry without complying with the minimal requirements of the principle of natural justice is against all canons of fair play and justice. The appellate authority, as noticed hereinbefore, in its order dated 24.6.1998 jumped to the conclusion that he was guilty of grave acts of misconduct proving complete unfitness for police service and the punishment awarded to him is commensurate with the misconduct although no material therefor was available on record. It is further evident that the appellate authority also misdirected himself in passing the said order insofar as he failed to take into consideration the relevant facts and based his decision on irrelevant factors.'
16. In Southern Railway Officers Association and another Vs. Union of India and others (supra), the Apex court has considered the second proviso appended to Article 311 and has observed that recording of reasons provides adequate protection and safeguard to the employee concerned. The decision should not be arbitrary and it must be based on some objectivity. The Apex Court referred to various other decisions.
17. In Kamal Nayan Mishra Vs. State of Madhya Pradesh and others (supra), the Apex Court considered the applicability of Article 311(2). In that case a decision was taken to dispense with the inquiry after 22 years of appointment on the basis of wrong information furnished in the attestation form. Thus, the decision of dispensing with the inquiry was set aside as it was open to the appellant to show in defence what led him to furnish the information in the attestation form. The Apex Court has discussed the question thus:
'If the appellant had been issued a charge sheet or a show cause notice he would have had an opportunity to explain the reason for answering the queries in column 12 in the manner he did. He could have explained that he did not understand the queries properly and that he was instructed to furnish the information as on the date of appointment. In fact his contention that he was required to answer the queries in column (12) with reference to the date of his appointment, finds support from the termination order, which says that the appellant was terminated for giving wrong information and concealment of facts in the attestation form at the time of initial recruitment. This clearly implies that he was expected to reply the queries in column 12 with reference to his initial appointment, even though clauses 12(b) and (c) of the form stated that the information should be as on the date of signing of the attestation form. The explanations given by the appellant, would have certainly made a difference to the finding on guilt and the punishment to be imposed. But he could not give the said explanations as there was no show cause notice or enquiry. The termination order is also unsustainable, as the statement therein that the appellant had given wrong information and concealed the facts at the time of initial recruitment, is erroneous.'
18. In the light of the aforesaid decisions, when we go to the facts of the instant case, it is apparent that it was not a case of misconduct committed during the course of service rendered but irregularities were found in the selection process itself and all the appellants were the beneficiaries of the manipulated increased marks, whereby they have either secured minimum passing marks or in case of having passed, they could secure their place in the merit list. The objective material was placed before the respondents as to the manipulations, in the form of report of questioned documents of examiners at Shimla and other reports. There was material in the form of manipulated result-sheets and answer-sheets etc. Each case had been discussed separately. There was no generalisation of discussion of the beneficiaries and it is apparent that in case of all the appellants the marks were increased by way of manipulations, otherwise, they were not in the merit list and some of them were not even in the pass list. Not only this, marks of some of the candidates were reduced so as to oust them from the process of selection. Thus, the entire process stands vitiated. The holding of inquiry is concomitant to the principles of natural justice. No doubt normal rule is that inquiry to be held normally it should not to be dispensed with. But at the same time the question which arises for consideration is that in case the appellants were given opportunity of defending themselves in the course of enquiry, what they could have proved or achieved and to what extent they have been prejudiced by not holding enquiry.
19. We had put this question to each of the learned counsel appearing on behalf of the appellants. Except stating that they could have proved that they were not responsible for manipulations and would have shown that they could have been selected even if the marks obtained on manipulations are ignored, we find no force in the aforesaid submission. Principles of natural justice cannot be applied in straight jacket formula. There were manipulations and there were plethora of materials before the respondents to come to the objective conclusion that the appellants have been benefited by it, otherwise they had failed or were not in the merit list. In view of the aforesaid factual matrix, in our opinion, no useful purpose would have been served by providing opportunity of hearing to the appellants and the appellants could not have stated anything except that they were not responsible for manipulations. Even if this aspect is considered, it would not have altered the factual matrix of the instant case that there were manipulations and the appellants were the beneficiaries of it. The marks of the candidates selected were increased by way of manipulations and the persons who were not selected their marks were decreased. Since the illegality in the instant case is with respect to the process of employment itself, applying the principle in Inderpreet Singh Kahlon and others Vs. State of Punjab & others (supra) and the decisions referred to above, we are of the considered opinion that giving of opportunity of hearing to the appellants would have been an empty formality in the instant case. In view of the objective material which was before the authority, it can not be said that the authority had acted arbitrarily and there was no material to support the decision taken by it. There were large scale manipulations in the process of selection, objective material was before the concerned authority and reasons have been assigned to dispense with the enquiry. Following reasons have been given by the authority to dispense with the enquiry:
'Whereas, the Recruitment of Constable/ GD CRPF was held at Ajmer (Rajasthan) during the year 2002-03 and candidates selected therein were recruited as Constable/ GD in CRPF. On the basis of source information that members of the recruitment board of Ajmer Centre have manipulated marks in the answer sheets of the candidates to extend undue favour/ disfavour to them, a joint surprise check was conducted by officers of CBI, Jaipur Branch and CRPF authorities of GC-1, CRPF, Ajmer where all records of recruitment were kept. After scrutiny of the records, it was found that there were lot of manipulations in the marks allotted to the candidates. Marks of 14 candidates were reduced as a result of which they have been declared fail in written test. The investigation further revealed that 188 candidates who could pass written test as a result of manipulation of marks by the board members, were subjected to medical examination at GC-II, CRPF, Ajmer out of which 70 candidates could not get through the medical examination.
2. And, whereas, the CBI investigation revealed that 118 candidates were initially evaluated and awarded marks on the basis of their performance in the written test. However, with the marks initially allotted to the candidates, they had either not secured minimum pass marks or were not figuring in the merit list. In order to ensure that these candidates figure in the merit list, the members of the recruitment board made manipulations in the answer sheets of these candidates before finalizing merit list by increasing their marks. In some case, the candidates had ticked wrong choices in Part-A (of question paper), however during evaluation tick have been put on right choices with different pen and style and have been given marks. Similarly, in some cases marks have been given to wrong answers. The Board has also reduced marks of some candidates who could not get selected as Constable/ GD.
3. And, whereas, it is also evident that marks of the candidates who had not secured passing marks have been increased in such a way that they have been allotted marks above passing marks and also the marks of the candidates who had already secured pass marks have been further increased to ensure that they figure higher on the merit list. Thus the CBI has completed the investigation and found that 118 candidates could get selected as constable/ GD whose marks were increased by the Recruitment Board. Out of these 118 candidates only 107 had joined and appointed as Constable/ GD which also include your name.
4. And, whereas, the CBI is prosecuting the Presiding Officer and Members of the said recruitment board in criminal case no. RC-Jai-2003-A-0014 dated 7.7.2003 under section 120-B read with 420, 467, 468, 471 and 477A IPC and section 13(2)/13(1)(d) of the Prevention of Corruption Act, 1988. I have gone through the report of the CBI and came to the conclusion that the members of the board manipulated marks in the answer sheets of the candidates to extend undue favour/ disfavour to some candidates. It is also a fact that the Recruitment Board extend undue favour to 118 candidates to get selected and depriving deserving candidates from selection. While the members of the Recruitment Board are facing prosecution in the aforesaid case of CBI, therefore, aforesaid 107 candidates are wrongful gainer and beneficiaries who could get selected as Constable/ GD due to manipulation by members of Recruitment Board and this act is unbecoming of a Govt. servant to get recruited dishonestly in CRPF which amounts to a misconduct.
5. Whereas, I am satisfied that in the facts and circumstances that a regular Departmental Enquiry under section of CRPF Act, 1`949 as per procedure laid down in 27 of CRPF Rules, 1955 by serving written charge and following other procedure in the manner provided is not reasonably practicable since all 107 candidates (now Constable/ GD) are posted in different Bns at various places all over the country, therefore, it will not be possible to collect them at one place. It will also not be possible to draw common proceedings because a regular departmental enquiry requires detailing of Enquiry Officers, the availability of Defence Assistant for each delinquent involving huge expenditure on the State exchequer.
6. And, whereas, the undersigned have considered all pros and cons of the case and report of the CBI and the options available. In view of the above, it is, therefore, deemed just and proper after applying judicious mind that the provisions under rule 27(cc)(ii) of CRPF Rules, 1955 be invoked and that the penalty of removal from service be imposed on No.031502479 Constable/ GD Raj Kumar (Roll No.26884). In exercise of powers conferred under Rule 27(cc)(ii) of CRPF Rules, 1955, the undersigned is convinced that a regular departmental enquiry is not reasonably practicable and expedient, therefore, the undersigned is constrained to order that no.031502479 constable/GD Raj Kumar (Roll No.26884) of 131 Bn CRPF, be removed from service from the date of serving of this order to the individual. Accordingly, he stands struck off from the strength of 131 Bn from the same date.
The Unit Commandant will ensure that all the pending/ outstanding dues against the individual, if any, are recovered before his relief. The medals and decorations, if any, earned by said Constable/ GD will stand forfeited with the issue of this order.' In view of the aforesaid reasons mentioned in the order of removal and the material before the authority, we are of the opinion that the authority rightly concluded that it was not reasonably practicable to hold enquiry in the instant case. Even otherwise, in our opinion, it would not have served any useful purpose, considering the manipulations were made in the selection process itself.
20. The counsel for the appellants have also relied upon a decision of Single Bench of the Patna High Court in CWJC No.9386/2006 decided on 17.2.2009. In the said decision it has not been mentioned as to what were the illegalities or manipulations done. The High Court has only followed the earlier judgments for quashing the impugned orders and the facts of the case are not clear. Apart from that, we are of the considered opinion that it has to be seen, in the facts of each case, as to whether enquiry has been rightly dispensed with or not. The decision of the Patna High Court is of no avail as it is bereft of reasons and has not considered in detail the controversy involved. The said decision was affirmed by the Division Bench of Patna High Court in which order also we do not find any consideration of material aspects of the matter and the later patent appeal was dismissed in limine on the ground of delay and that the order under challenge does not appear to be legally flawed. The matter was not taken to the Supreme Court. In our considered opinion, the decisions cited are of no utility to the appellants.
21. For the reasons indicated above, we are of the considered opinion that in the present case, termination orders were rightly passed against the appellants and the power to dispense with the formal enquiry was also rightly exercised by the respondents as enquiry was not reasonably practicable to hold and in support of that, the respondents have assigned cogent and valid reasons. We are fully satisfied by the reasoning and materials placed by the respondents that it was necessary to dispense with the enquiry.
22. Apart from this, since the appellants are beneficiaries and appointed as a consequence of manipulations done by the Members of the Recruitment Board in the records of examination including answer sheets etc., they are not entitled to seek any relief whatsoever from this Court. No doubt, they were appointed and served for few years, but this is no ground to claim protection as their appointment itself was illegal and result of manipulations in the marks and favouritism for oblique and ulterior motive at the instance of Members of the Recruitment Board. Had there would have been no manipulations in the marks initially awarded on valuation, none of the appellants would have been able to succeed in getting appointment. Marks of several others were decreased. The extent of manipulations were so much it was not possible to segregate few candidates. In such a situation, if they are dismissed from service without holding formal enquiry, it cannot be said that the respondents have acted in an illegal and arbitrary manner and exceeded their jurisdiction in doing so. The action of respondents is perfectly justified being within the periphery and purview of law and it does not suffer from any infirmity or illegality or perversity.
23. Though appellants are not guilty of any misconduct during the course of employment, but since their appointment itself was based on manipulations and interpolations in the records of examination and also result of unfair means adopted by Members of the Recruitment Board for extraneous consideration, in these circumstances, they cannot come forward and plead that they could not be dismissed without holding proper enquiry and entitled to opportunity of being heard. If the prayer of appellants is accepted, it would amount to perpetuating illegality on others, who suffered due to act of mischiefs committed by the Members of the Board by favouring and disfavouring candidates for oblique motive. The appellants as a matter of fact have not come with clean hands and being beneficiaries of favouritism and illegal act done by the Members of the Board, cannot claim any sympathy from this Court.
24. In view of the above, no interference is called for with the orders of dismissal of the appellants from service without holding enquiry and the writ petitions were rightly dismissed by the Single Bench.
25. Resultantly, we do not find any merit in these intra-court appeals and the same are hereby dismissed. The parties are left open to bear their own costs.
[RAGHUVENDRA S. RATHORE],J. [ARUN MISHRA],CJ. bblm