Rajasthan High Court - Jaipur
Baiju Ram vs Uoi on 7 January, 2019
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 674/1999
L/N K Baiju Ram S/o Shri Thakur Ram aged about 37 years by
caste Jat resident of Vill & Po - Samlod Distt.- Jhunjhunu (Raj).
......Petitioner
Versus
1. The Union of India, through its Secretary to the Govt. of
India, Ministry of Home Affairs, New Delhi- 110011.
2. The Director General, Central Reserve Police Force, CGO
Complex, New Delhi.
3. The Commandant 35th Bn Central Reserve Police Force,
Silchar (Assam).
..... Non-Petitioners.
Connected With
S.B. Civil Writ Petition No. 806/1999
L/N K Baiju Ram S/o Shri Thakur Ram aged about 37 years by
caste Jat resident of Vill & Po - Samlod Distt.- Jhunjhunu (Raj).
......Petitioner
Versus
1. The Union of India, through its Secretary to the Govt. of
India, Ministry of Home Affairs, New Delhi- 110011.
2. The Director General, Central Reserve Police Force, CGO
Complex, New Delhi.
3. The Commandant 35th Bn Central Reserve Police Force,
Silchar (Assam).
..... Non-Petitioners.
For Petitioner(s) : Mr. R.S. Bhaduria, Adv.
For Respondent(s) : Mr. B.S. Chhaba, Assistant Solicitor
General HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA Judgment / Order Reserved on 13/11/2018 Pronounced on _07/01/2019 (2 of 24) [CW-674/1999]
1. These two writ petitions were heard by this Court earlier and the judgment was reserved on 13/07/2017 whereafter the judgment was pronounced on 29/08/2017 and both the writ petitions were allowed with certain directions.
2. DB Special Appeal (Writ) No.300/2018 and 308/2018, preferred by the respondents assailing the aforesaid judgment dated 29/08/2017, were heard by the Division Bench and following order was passed on16/05/2018:-
"Heard on the application under Section 5 of the Limitation Act.
The reasons have been assigned for delay in filing the appeal. We are satisfied with the aforesaid and otherwise application has not been seriously opposed by the non-appellant.
Accordingly, the application under Section 5 of the Limitation Act for condonation of delay is allowed and the delay in filing the appeal is condoned.
After arguing the case at length, it is submitted by learned counsel for the non-appellant that many issues raised by him have not been dealt with. It is more specific on fairness of the enquiry. Learned counsel for the non-appellant has given specific instances on unfairness of the enquiry. It is due to non-supply of the documents demanded by him and in fact no enquiry was held. The findings were recorded with predetermination.
It is admitted by the learned counsel for the non-appellant that the interference in the order of punishment has not been made in reference to those arguments though said to have been raised. The prayer is made to remand the case back to the learned Single Judge so that he may raise all the issues with its adjudication and for that even to set aside the impugned judgment.
Learned counsel for the appellant submits that if the judgment is set aside, he would have no objection for remand of the case.
No party should cause injustice on any ground.
(3 of 24) [CW-674/1999] In view of the aforesaid, the order dated 29.8.2017 passed by learned Single Judge is set aside with remand of the case to the learned Single Judge with a request to decide the petitions afresh.
With the aforesaid, the appeal stands disposed of.
A copy of this order be placed in connected appeal."
3. The Apex Court in the case of Roma Sonkar Vs. Madhya Pradesh State Public Service Commission & Anr.: 2018(10) SCALE 222, while examining the question regarding intra-court appeal, has held as under:-
"3. We have very serious reservations whether the Division Bench in an intra court appeal could have remitted a writ petition in the matter of moulding the relief. It is the exercise of jurisdiction of the High Court Under Article 226 of the Constitution of India. The learned Single Judge as well as the Division Bench exercised the same jurisdiction. Only to avoid inconvenience to the litigants, another tier of screening by the Division Bench is provided in terms of the power of the High Court but that does not mean that the Single Judge is subordinate to the Division Bench. Being a writ proceeding, the Division Bench was called upon, in the intra court appeal, primarily and mostly to consider the correctness or otherwise of the view taken by the learned Single Judge. Hence, in our view, the Division Bench needs to consider the appeal(s) on merits by deciding on the correctness of the judgment of the learned Single Judge, instead or remitting the matter to the learned Single Judge."
4. Thus, remanding of the case was not called for. Be that as it may, from perusal of the order passed by the Division Bench, this Court finds that the grievance of counsel for the petitioner herein (non-appellant in appeal) has been noticed while grievance of the respondents herein (appellants in appeal) have not been noticed at all. Therefore, this Court asked learned counsel for the (4 of 24) [CW-674/1999] respondents to also address on whatever points he wants to further advance in view of the judgment already passed by this Court.
5. Heard learned counsel for both the parties at length.
6. Although the factual details were quoted in the earlier judgment, however, since the said earlier judgment has been set aside by the Division Bench with request to decide the petition afresh, the admitted factual position as mentioned in the writ petitions is being noticed dealing with both the writ petitions separately.
7. Facts relating to S.B. Civil Writ Petition No.674/1999:-
7.1 Learned counsel for the petitioner submits that the petitioner was having a very good service record and had been promoted on the post of Naik. He had already rendered 16 years and 4 months service with an unblemished record and had also been awarded cash awards by Mr. Robero while engaging in combat with terrorists in Punjab. It was his case that the petitioner had been transferred from 53 Battalion, CRPF in Punjab to 35 Battalion, CRPF in north east and he requested for granting him 15 days leave. Permission was granted with three days' joining from 05/10/1996 to 07/10/1996 and he was supposed to report on 08/10/1996 forenoon. It is his case that he commenced his journey on 05/10/1996 and boarded the Brahamputra Train at Delhi for his new destination i.e. Silchar (Assam). The train was running late and the same reached Gauhati much after the scheduled time late at night with no connected train available for Lumbdung. He therefore, halted at Gauhati Railway Station and (5 of 24) [CW-674/1999] conducted his onward journey to Silchar by bus. He reached at Karimgung town late night and decided to stay at a hotel Annapurna for the night and to join duty next morning ie 09/10/1996. After enquiring the charges of the meal he had his meal and paid Rs. 10/- as per rates but the hotelier demanded R. 20/-. On this, he reminded him of the rate told by him of the plate of dal and chapati. The owner of the hotel softened a little and asked him to pay rs. 15/- but the petitioner was not prepared to accept the unreasonable demand. In the meanwhile, the men of the hotelier gathered and roughed up him up and threw him out of the hotel. He tried to take his beg and other luggage from the hotel but the men of the hotelier did not allow him to enter the premises. He went to a nearby post of CRPF manned by the Jawans of 35th Bn CRPF and narrated his tale of woe at the hands of the hotelier. NK Nelson Lakra, then sent a guard who knew Assamee and sent two Jawans; Const. Jasmer Singh and Const.
Prem Chand to help him take his luggage out of that hotel. On their intervention, the hotelier assured the guards and other persons that he would not face any difficulty and they returned. Meanwhile, one police ASI happens to visited the hotel, perhaps he was on call from hotelier, who talked to the petitioner, The petitioner narrated to the ASI that some important documents have been removed from his bag and he wants to register an FIR. The ASI took him to police station Karimgunj on his motor cycle saying that he would do the needful at the police station. There, ASI told the appellant that it is late hours and the FIR shall be registered in the morning and he should rest on the bench for the night. In the morning, his FIR was not registered saying that they (6 of 24) [CW-674/1999] need the English version. The petitioner was feeling quite harassed and then approached SP Karimgunj for the needful who asked him to go back to the police station and he would pass word to record his FIR. Again he was harassed and this happened before ASI Sidhanath of 35the Bn CRPF who happened to visit the police station to help resolve the matter. Finding the unhelpful attitude of the police, he went back to the office of SP Karimgunj and there he found ASI Nagendra Singh who enquired about the matter and took him to police station, Karimgunj but his FIR was not registered. ASI Nagendra Singh of 35th Bn CRPF informed the OC on wireless asset about the matter. The appellant yet again went to meet SP and there found OC having word with the SP. The OC told him to report to unit and he will have the FIR lodged with police.
7.2. The petitioner was served with suspension order on 12/10/1996 and was served with memorandum of charges thereafter on 16/10/1996 under Rule 27 of the CRPF Rules, 1955 and following Articles of Charges were levelled against the petitioner:-
ARTICLE-I "That No. 810714451 LNK Baiju Ram of D/35 Bn, CRPF, while functioning as Naik (GD) committed an offence of misconduct in his capacity as a member of the Force under Section 11(1) of CRPF Act 1949, in that while returning from leave he did not report at his coy location on due date i.e., on 8/10/96, absented himself and remained out of camp in Karimganj Bazar. When party consisting a so of D/35 approached him on 8/10/96 and asked to report to coy Hq but declined to do so, thus he was guilty of disobedience.
ARTICLE-II
(7 of 24) [CW-674/1999]
That the said No. 810714451 NK Baiju Ram
during the aforesaid period and while functioning as Naik (GD), committed an offence of misbehaviour in his capacity as a member of the Force under Section 11(1) of CRPF Act, 1949, in that he created scene and nuisance in police station at Karimganj under the influence of liquor thus jeopardising the good order and discipline of the Force."
7.3. An Enquiry Officer was appointed, enquiry was conducted and the Enquiry Officer submitted his report on 04/03/1997 holding the petitioner guilty of having reported on duty on 10/10/1996 after a delay of two days from the date when he was supposed to report. However, the charge relating to having disobeyed his superiors was not found to be proved so far as Article I of charges is concerned. As regards Article II of charges, the charge relating to having consumed liquor was not found to be proved and only a charge relating to having caused nuisance at Police Station, Karimgunj was found to be proved.
7.4. On the basis of the enquiry report, punishment order was passed on 03/05/1997 holding the charge levelled vide Article I of the charges as fully proved and the charge levelled vide Article II of the charges as partially proved. It was also mentioned in the order that the petitioner had pleaded guilty of the charges framed against him and was punished with reduction in rank for two years which would affect seniority, promotion, confirmation and increments etc. The period of suspension from 12/09/1996 to 02/05/1997 was to be treated as such and was declared not to be entitled to benefits other than the emoluments already paid to him. The petitioner filed an appeal against the order of reduction in rank and pointed out that he had rendered 16 years and 4 months of service and had been promoted as Naik and had also (8 of 24) [CW-674/1999] been awarded cash awards. The appeal was rejected by the Deputy Inspector General of Police, CRPF vide order dated 15/07/1998.
7.5 The petitioner states that when the charge-sheet was issued to him, he protested and submitted aforesaid facts but the Officer Commanding did not accept his version and the enquiry was conducted in a slipshod manner without giving him fair and proper opportunity and he was punished by reverting him from the post vide order dated 06/05/1997. He was advised by the Deputy Commandant that he should not make any representation and accept the punishment/sentence awarded by the Commandant, failing which it would be viewed seriously and may result in removal. It is his case that he was not provided any defence assistant and was completely new to the Unit and unfamiliar with the place and people. Counsel submits that documents were not supplied to the petitioner and in fact the enquiry was a mere eye-
wash and was unfair. There was a predetermined approach. 7.6 During course of arguments, learned counsel for the respondents was asked to make available complete departmental proceedings to learned counsel for the petitioner whereafter, learned counsel for the petitioner submitted written submissions to the effect that the report of the Enquiry Officer is contrary to the material on record and is perverse so far as holds the petitioner guilty of charge of having reported after two days. It is submitted that the supervening circumstances, which was the reason for delay in reporting, have been completly ignored. There is no material that the delay for reporting was deliberate on the (9 of 24) [CW-674/1999] part of the petitioner. On the other hand, it is submitted that the incident, which had occurred at the hotel of taking away identity card and documents of the petitioner for which he had insisted for lodging an FIR, were the reasons for delay in reporting and otherwise also, even as per the charge-sheet, the petitioner was already present on 8th evening but his reporting has been shown as 10th. The two days' delay, therefore, is not on account of any willful absence. As regards disobedience, even the enquiry officer has not held the petitioner guilty of being disobedient of the orders of his superiors. Similarly, the charge levelled under Article II of the charges with regard to having consumed liquor was not proved but only the allegation of creating nuisance in the Police Station was proved whereas it has already come on record that the FIR was written in 'Assamese' language and was not comprehensible and therefore, the petitioner insisted for the FIR to be lodged in English. The said FIR was delayed and no further action in that regard was taken. It is also submitted that no witness from the Police Station was examined to prove that any nuisance had been caused at the Police Station by the petitioner. On the other hand, the witness no.4-SI Nagendra Singh has stated that the petitioner was not drunk and did not quarrel with the Police Personnel. The other witnesses also did not assert of the petitioner having created nuisance. The petitioner's rank was reduced for two years wrongfully and the said punishment was not available under Section 11(a) of the CRPF Act. It is submitted that the petitioner was not having any opportunity to cross-examine the witnesses and no material relied upon by the Enquiry Officer was exhibited. The petitioner's admission was wrongfully recorded.
(10 of 24) [CW-674/1999] The enquiry officer was under legal duty to draw finding on each charge by signing the documents exhibited in the enquiry and justification for arriving to the conclusion but the enquiry report does not reflect the same and the entire enquiry proceedings were suffered with bias and prejudice. Certain statements of witnesses and the correspondence which took place between Unit and the Police Department were not produced have been shown to the counsel now at the time of arguments of the present case. 7.7. Per-contra, with regard to the aforesaid charges, learned counsel for the respondents submitted that due procedure was followed for issuing the memorandum and conducting enquiry. Copies of the documents were made available. The list of the documents, which were considered, was also made available. The statement of the petitioner was recorded by the Enquiry Officer and the copies of the said statements were made available to the petitioner. The punishment awarded was for the charges which were found to be proved against the petitioner. 7.8. Having heard learned counsel for the parties in relation to memorandum dated 16/10/1996 and the punishment of reduction in rank for two years, this Court finds that reply has been filed by the respondents wherein they admitted in Para No.5 as under:-
"5. That the contents of para No. 5 of the writ petition are not admitted. At Karimganj town, the CRPF camp i.e. his own camp was just nearby the Bus Stand. As such, there was no necessity for him to stay out side the camp. That too in night specially when I t was infested of militant prone area. Thus, he had chosen a wrong course for the reasons best known to him. It is disputed on the basis of information given to the police and officers that he was ready to pay Rs. 10/- and the hotellier demanded more amount and the (11 of 24) [CW-674/1999] hotellier did not allow him to remove his bag. As per evidence he had consumed liquor prior to taking meals. Due to over dose he lost control over himself and started quarelling with the staff for a meager amount of hotel food. The local civil police staff were informed about the incident by the hotel staff. ASI visited the hotel on the information of the hotel staff but when the ASI came to know that Baiju Ram was a member of the force (CRPF), ASI contacted the CRPF camp staff and requested them to take their man to avoid untoward happening for the same reason. The ASI took him to the police station. There also he did not behave properly and as such the civil police informed the CRPF camp about the incident. The ASI sidhnath was sent to bring L/NK Baiju Ram from police station but instead of coming back to the camp he started shouting to the effect that some articles were missing from his bag and he would not go back to the camp. Sidhnath went back and inform the company commander on which Nagendra Singh was sent to bring B aiju Ram. He refused to accompany. Nagendra Singh told that he has to file an FIR on which the police people took him back to the police station. The police authorities at the police station did not record FIR saying that it was in hindi and should be in english version. Baiju Ram insisted for taking the FIR saying that Hindi was the language of the country and started shouting. Nagendra Singh informed the company commander on wireless. In between this S.P. Karimganj informed the company commander and made verbal complaint about the behaviour of the petitioner. He also told that he has instructed the concerned police officer to record FIR. The company commander took him in his car and got FIR recorded on 10/10/1996 wherein it was mentioned that identification card. Counter foil or railway warrant and some amount of Baiju Ram were missing from the time of 8/10/1996. During quarrel by the hotel staff with the petitioner."
7.9 While the Enquiry Officer has conducted enquiry providing necessary opportunity for cross examination, he has failed to give findings in relation to the evidence which has come on record and has cursorily given his conclusions holding the petitioner guilty of having reported for duty after two days of delay and of having (12 of 24) [CW-674/1999] caused nuisance in the Police Station. In reply to writ petition, it has been stated that opportunity was given to the petitioner for appointing defence assistance but he did not avail it. It is stated that the petitioner refused to take copy of the statements. The report of the medical officer is on the file of the enquiry proceedings. The allegations of bias have been denied. 7.10.This Court has also looked into the statements of the witnesses which have been placed before this Court and finds that the other witnesses have not supported the charge and have not stated that the petitioner had created nuisance and they have further stated that no medical test was conducted of the petitioner and the statements of the independent witnesses namely; SI Nagendra Singh, SI Sidh Nath Ram and NK Lelson Lakra show that there was only an altercation on the part of the petitioner in insisting for lodging FIR in Hindi language so that he may be able to understand the contents thereof.
7.11.It is further noticed that while the enquiry officer has held charge under Article I of the charges as not fully proved and the charge under Article II of the charges as partly proved, the Commanding Officer has proceeded to hold the petitioner guilty of charge under Article I of the charges as fully proved and of the charge framed under Article II of the charges as partly proved and the same has been made as a basis for punishment. Law in this regard is well settled. If the disciplinary authority disagrees with the findings of the enquiry officer on any count, the concerned delinquent is required to be given an opportunity by way of notice laying down the points for disagreement so that he may get (13 of 24) [CW-674/1999] opportunity to put up his submissions relating to the points of disagreement. In the case of PNB Vs. Kunj Bihari Sharma: AIR 1998 (SC) 2713, this Court has held as under:-
"17. These observations are clearly in tune with the observations in Bimal Kumar Pandit's case (supra) quoted earlier and would be applicable at the first stage itself. The aforesaid passages clearly bring out the necessity of the authority which is to finally record an adverse finding to give a hearing to the delinquent officer. If the inquiry officer had given an adverse finding, as per Karunakar's case (supra) the first stage required an opportunity to be given to the employee to represent to the disciplinary authority, even when an earlier opportunity had been granted to them by the inquiry officer. It will not stand to reason that when the finding in favour of the delinquent officers is proposed to be over-turned by the disciplinary authority then no opportunity should be granted. The first stage of the inquiry is not completed till the disciplinary authority has recorded its findings. The principles of natural justice would demand that the authority which proposes to decide against the delinquent officer must give him a hearing. When the inquiring officer holds the charges to be proved then that report has to be given to the delinquent officer who can make a representation before the disciplinary authority takes further action which may be prejudicial to the delinquent officer. When, like in the present case, the inquiry report is in favour of the delinquent officer, but the disciplinary authority proposes to differ with such conclusions, then that authority which is deciding against the delinquent officer must give him an opportunity of being heard for otherwise he would be condemned unheard. In departmental proceedings what is of ultimate importance is the finding of the disciplinary authority.
18. Under Regulation - 6 the inquiry proceedings can be conducted either by an inquiry officer or by the disciplinary authority itself. When the inquiry is conducted by the inquiry officer his report is not final or conclusive and the disciplinary proceedings do not stand concluded. The disciplinary proceedings stand concluded with decision of the disciplinary authority. It is the disciplinary authority which can impose the (14 of 24) [CW-674/1999] penalty and not the inquiry officer. Where the disciplinary authority itself holds an inquiry, an opportunity of hearing has to be granted by him. When the disciplinary authority differs with the view of the inquiry officer and proposes to come to a different conclusion, there is no reason as to why an opportunity of hearing should not be granted. It will be most unfair and iniquitous that where the charged officers succeed before the inquiry officer they are deprived of representing to the disciplinary authority before that authority differs with the inquiry officer's report and, while recording a finding of guilt, imposes punishment on the officer. In our opinion, in any such situation the charged officer must have an opportunity to represent before the Disciplinary Authority before final findings on the charges are recorded and punishment imposed. This is required to be done as a part of the first stage of inquiry as explained in Karunakar's case(1994 AIR SCW 1050) (supra).
19. The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7(2). As a result thereof whenever the disciplinary authority disagrees with the inquiry authority on any article of charge, then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the inquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the inquiry officer. The principles of natural justice, as we have already observed, require the authority, which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer."
7.12.Similarly view has been taken by the Apex Court in the case of S.P. Malhotra Vs. Punjab National Bank & Ors: 2013 (7) SCC 251 and it was held as under:-
"17. In Canara Bank and Ors. v. Shri Debasis Das and Ors.: AIR 2003 SC 2041, this Court explained the ratio (15 of 24) [CW-674/1999] of the judgment inKunj Behari Misra (supra), observing that it was a case where the disciplinary authority differed from the view of the Inquiry Officer.
26. ......."In that context, it was held that denial of opportunity of hearing was per se violative of the principles of natural justice.
18. In fact, not furnishing the copy of the recorded reasons for disagreement from the enquiry report itself causes the prejudice to the delinquent and therefore, it has to be understood in an entirely different context than that of the issue involved in ECIL (supra).
19. The learned Single Judge has concluded the case observing as under:
The whole process that resulted in dismissal of the Petitioner is flawed from his inception and the order of dismissal cannot be sustained. I am examining this case after nearly 23 years after its institution and the Petitioner has also attained the age of superannuation. The issue of reinstatement or giving him the benefit of his wages for during the time when he did not serve will not be appropriate. The impugned orders of dismissal are set aside and the Petitioner shall be taken to have retired on the date when he would have superannuated and all the terminal benefits shall be worked out and paid to him in 12 weeks on such basis. There shall be, however, no direction for payment of any salary for the period when he did not work."
7.11.The appellate authority has also rejected the appeal of the petitioner in cursory manner without taking into consideration the contents of the appeal in correct perspective. 7.13.In view thereof, the punishment awarded to the petitioner on the basis of the said findings of the disciplinary authority stands vitiated in law and the order passed by the appellate authority also stands vitiated.
7.14.Consequently, the impugned order of punishment dated 03/05/1997 passed by the disciplinary authority as well as the (16 of 24) [CW-674/1999] appellate order dated 15/07/1998 passed by the appellate authority are herein quashed and set aside.
8. Facts relating to SB Civil Writ Petition No.806/1999:-
8.1. Immediately after the punishment order dated 03/05/1997 was passed, the petitioner was again suspended vide order dated 06/05/1997. A charge-sheet was also issued to the petitioner vide memorandum dated 29/07/1997 wherein three charges were levelled alleging that while the petitioner was performing duty with protection party of vehicle sent for Govt. duty to Silchar on 06/05/1997, he committed an act of misconduct by consuming liquor at Silchar and quarreled with other members of the protection party, civilians and created scene in the market and when he was prohibited to do so by other escort personnel, he abused, threw the wireless set away which was in his possession and threatened the other protection party members to shoot and further he was charged of consuming liquor again while returning from Silchar even after being in possession of weapon and when was searched and prohibited from such activities, he abused them and slapped one Head Constable Kedar Nath and Naik Pradeep Kumar. The Articles of Charges are being reproduced here as under:-
ARTICLE-I "That the said No. 810714451 L/NK Baiju Ram of D/35 Bn, CRPF, while performing protection/escort duty of vehicle sent for Govt. duty to Silchar on 6/5/97 has committed an act of misconduct/ indiscipline in the discharge of duty in his capacity as a member of the Force u/s 11(1) of CRPF Act-1949 in that being on active duty consumed liquor at Silchar, (17 of 24) [CW-674/1999] quarrelled with other members of protection party, civilians and created scene in the market.
ARTICLE-II That the said No. 810714451 L/NK Baiju Ram during the aforesaid duty committed an offence of remissness/negligent of duty in his capacity as a member of the force U/s 11(i) of CRPF Act-1949 in that under intoxication or while on active duty created scene by quarreling with civilians. When he was prohibited do so by other escort personnel, he abused them, threw the wireless set away which was held with him and threatened them to shootout.
ARTICLE-III That the said No. 810714451 L/NK Baiju Ram while on escort/protection duty committed an act of misconduct/misbehavior in discharge of his duty in his capacity as a member of the Force in that while returning from Silchar, he again deft the escort/protection party at Udharbond and consumed liquor again, even after being in possession of weapon. When he was searched out by escort party and prohibited from such nuisance activities he abused them and slapped to No. 680323633 HC/Dvr. Kedar Nath and No. 820450036 NK Pradeep Kumar." 8.2 The Commandant, after issuing of the charge-sheet, appointed Deputy Commandant as an Enquiry Officer and enquiry was conducted. The Enquiry Officer held that the petitioner had caused hindrance in conducting enquiry and had refused for cross-
examining the witnesses and had used offensive language and had not put up his defence by adopting a stubborn attitude and therefore, the enquiry was continued. The Enquiry Officer held the petitioner guilty of all the three charges. The enquiry report was offered and it was held that the petitioner had refused to accept the enquiry report and had abused the concerned officers. Since no representation was received, the petitioner was dismissed from service vide order dated 25/09/1997. An appeal was preferred (18 of 24) [CW-674/1999] against the order of dismissal which was rejected. The revision petition filed also stood rejected.
8.3. Counsel for the petitioner thus submitted that the enquiry was not conducted in fair and impartial manner. The enquiry was required to be conducted independently by another person once the petitioner has objected before the Enquiry Officer of the enquiry not being conducted fairly by him. However, the enquiry report was prepared and the petitioner was punished with dismissal from service. Counsel further submits that neither the medical regarding the petitioner having been in an intoxicated condition was conducted nor the so-called wireless set, said to have been broken, was exhibited. The allegations levelled were wholly vague and general in nature which indicated that the same were made with a view to dismiss the petitioner from service. 8.4. Per-contra, learned counsel, appearing for the respondents, submitted that the enquiry was conducted fairly and opportunity of cross-examination was given but the petitioner has failed to avail the opportunity of cross-examination and as is apparent from the enquiry report, the petitioner has misbehaved during the course of enquiry and was therefore, forced to be brought before the Enquiry Officer so that the enquiry may be completed. The Enquiry Officer has submitted his report wherein he has taken into consideration the medical report wherein the Medical Officer has mentioned the petitioner of having consumed liquor and of being in an intoxicated condition. Non-cooperation of the petitioner during the course of enquiry has, however, not been a factor but (19 of 24) [CW-674/1999] since all the charges were found proved, the petitioner was rightly dismissed from service.
8.5. Learned counsel for the petitioner submits that from perusal of the documents, it is apparent that the documents, as cited in the charge-sheet, were not produced during course of enquiry nor the same were made available to the petitioner. The complaint letters of the concerned witnesses have also not been placed for perusal. Learned counsel submits that the petitioner was not in an inebriated condition. It is further submitted that the disciplinary authority has failed to consider the submissions raised by the petitioner and has passed the order of punishment. The appellate authority has failed to notice that the petitioner was not given free and fair opportunity and that he has not misbehaved under any influence of liquor and it is not possible that he would have misbehaved, immediately after having been punished three days before, by consuming liquor during official duty. Learned counsel has also taken this Court to the medical report which is said to have been exhibited before the enquiry officer and submits that the medical report prepared by Dr. SS Bhattacharya mentions the date as 06/05/1997 but has been signed on 31/05/1997 which shows that the report was not prepared on 06/05/1997. Further, the report also does not mention the petitioner of being in an intoxicated condition and only thing mentioned is 'smell of alcohol being present. Both pupils normal in size, reacting to light. Patient appears to be in control.' The pulse of the petitioner also shows that he could not have been in an intoxicated condition as the pulse rate is 87 per minute. Learned counsel thus submits that (20 of 24) [CW-674/1999] the entire enquiry was an eye-wash with the sole purpose to dismiss the petitioner from service. It is further submitted that copy of the enquiry report was made available to him on 14/09/1997 granting 15 days time and personal audience before the Commandant, however, before expiry of the period, the order of dismissal was passed on 25/09/1997 itself.
8.6. Having heard learned counsel for the parties and noting the statements as well as the documents placed before this Court additionally after the remand, this Court finds that on the facts which have come on record, serious prejudice has been caused to the petitioner while conducting the departmental enquiry against him. The documents were not made available to the petitioner and the enquiry has been conducted by the Enquiry Officer forcing the petitioner to participate in the enquiry without providing him defence assistance and the Enquiry Officer himself has levelled allegations in question and answer format. Once the delinquent has stated that he does not have faith and has refused to further participate in the enquiry, in the interest of justice and to maintain fairness, the enquiry ought to have been conducted by another independent person instead of directing the other Jawans of the Unit to get the presence of the concerned delinquent and complete the enquiry. The enquiry officer in his enquiry report levelled allegations against the petitioner of having abused the Enquiry Officer. In the circumstances, the report prepared by such an Enquiry Officer cannot be said to be fair and impartial. The principles of natural justice demand that the enquiry be conducted by some other person as the Enquiry Officer appears to be clearly (21 of 24) [CW-674/1999] prejudiced. This Court is inclined in the circumstances to believe that the petitioner's case is that immediately on having been punished in the earlier enquiry on 03/05/1997, the Commandant, who wanted the petitioner to be dismissed from service, again suspended him on 06/05/1997 on the basis of a frivolous charge of having consumed liquor while going for duty with the escort party. Since all the persons mentioned in the charge-sheet were subordinate to the Commandant and had been made as witnesses and in spite of the fact that no medical was conducted, the petitioner was alleged to have consumed liquor twice in the same day. The allegations were levelled and statements were recorded by the Enquiry Officer in a prejudiced manner. The petitioner conducted cross-examination of one of the witnesses whereafter when he found the enquiry not being conducted fairly, he refused to sign on the statements. The Enquiry Officer asked him to sign papers and called him from the barrack which is proved from the note-sheets drawn by the Enquiry Officer which is being reproduced as under:-
"5- cy la[;k 810714451 ykWl uked cStw jke ds le{k cy la[;k 660080362 m0 fu- pesy flag lk{kh Øe la[;k 1 dk c;ku ntZ fd;k x;k ,oa mlds }kjk lk{kh dh izfr ifj{kk dh xbZA vkSj vxyh lquokbZ vU; lkf{k;ksa ds flYoj {ks- vkus ij dh tk,xh vkSj buds fy, mls lqfpr fd;k tk,xkA 6- vkt fnukad 20-8-97 dks vU; rhuksa lkf{k;ksa ds flYpj ls okil vkus ij ykWl uked cStw le dks dy ;kfu 21-8-97 dks vuds c;ku ntZ djkrs le; mifLFkr gksus o mudh izfr ifj{kk djus ds fy, lqfpr fd;k x;k 7- cy la[;k 810714451 ykWl uked cStw jke ds le{k lk{kh Øe la[;k 3 dk c;ku ntZ fd;k x;k vkSj mls lk{kh fd izfrifj{kk djus dks dgk x;k mlus lk{kh dh izfr ifj{kk djus o c;ku ij gLrk{kj djus ls bUdkj dj fn;k vkSj Hkn~nh tcku dk bLrseky djrs gq, vkxs ls tkWp dk;Z esa 'kkfey gkus ,oe~ tkWp dk;Z dks iwjk djus esa iw.kZ vlg;ksx dh /kedh nsdj vius cSjd esa pyk x;kA mls idM dj yksus ds fy, gokynkj jkeorfu;k ,oe~ m0fu0 ¼,½ izrki flag dks vkns'k tkjh fd;k rkfd tkWp dk;Z dks vkxs c<+k;k tk ldsA ykWl uke cStw jke muls Hkh >xM+k djus ykxk ,oa Hkn~ns tcku dk iz;ksx djus yxk vkSj dgk fd ns[krk gWq tkWp dk;Z dSls iw.kZ gksrk gSA bl ij goynkj jke nÙk feJk cy0 goynkj estj m0 u0 izrki flag vkSj flikgh lh-oh- ih- ,Ddk ds le{k vU; lkf{k;ks dk c;kuk ntZ fd;k x;kA lkf{k;ksa ds c;ku ntZ djus ds ckn ykWl uke cStw jke dks lkf{k;ksa ds c;ku ,oa vkjksiksa ds leFkZu esa yxs nLrkostksa ds dkih lkFk fyf[kr :i esa 15 fnuksa dk le; fn;k x;k rkfd og viuk (22 of 24) [CW-674/1999] cpko dj lds ,oa vius cpko esa ;k nLrkostksa dks izLrqr djus ds fy, 6@9@97 rd dk le; fn;k x;kA 9- pqWfd eq>s fnukad 22-8-97 dks ubZ fnYyh ljdkjh dk;Z gsrq tkuk iM+k blfy, lquokbZ 6@9@97 dks ugha gks ldhA vkt fnukad 14-9-97 dks ykWl uked cStw jke dsk viuh izfrj{kk djus o vius izfrj{kk esa lkf{k;ksa ,oe~ nLrkostksa dks izLrqr djus dks dgk x;kA og 'kjkc ds u'ks esa ;k ,oa vius cpko esa dqN Hkh dgus o fdlh Hkh lk{kh dks is'k djus ls lkQ bUdkj dj fn;k vkSj tkWp dk;Z dks iwjk u gksus nsus fd /kdh Hkh fn;kA lkFk gh xkfy;kW nsus 'kq: dj fn;k o ef.kiqj esa cy- ds gksus vkSj ltk ikus ij xksyh ekjus dh /kedh Hkh nsus yxkA euk djus ij lHkh vf/kdkfj;ksa dks xkyh nsrs gq, vius cSjd esa pyk x;kA 10- vkt fnukad 14-9-97 dks ykWl uked ds mDr joSb;s dks ns[krs gq, tkWp dk;Z dks lekIr fd;k tkrk gS fjiksZV rS;kj dj dekUMsaV 35 okfgfu dks vxzhe dk;Zokgh gsrq i= la[;k th&nks&1197&vkj vkj fnukad 14-9-97 ds rgr izsf"kr dj fn;k x;kA** 8.7 It is also noticed that the medical report dated 06/05/1997 has been signed by the Doctor on 31/05/1997 and therefore, the same could not have been relied upon for holding the petitioner guilty of consuming liquor. The condition of the petitioner, even otherwise from the report prepared, though doubtful, is apparent that the petitioner was not in an inebriated condition and therefore, allegation of having created a scene in the market and breaking wireless set also cannot be made out. No evidence of the wireless set having been broken has been proved by exhibit. The said wireless set was not produced in the enquiry. The appeal preferred by the petitioner has been cursorily dismissed.
8.8. From what has been noted above, this Court finds that the Commandant appears to have initiated the enquiries with a motive. In the first charge-sheet, which was culminated in passing of an order of reversion, it is apparent that the petitioner has not created any scene in a drunken state and the said part has not been proved. The Commandant as a Disciplinary Authority, without giving the disagreement notice, has proceeded to hold the petitioner guilty of both the charges as proved and partly proved respectively while the Enquiry Officer therein had only held the charge of reporting late on duty as proved but of having created scene at the Police Station was not found to be proved and the (23 of 24) [CW-674/1999] charge of disobedience was also not found to be proved. The punishment order has been passed on 03/05/1997 and the petitioner was again suspended on 06/05/1997 within three days.
One cannot help but to notice the manner in which the superior officer has dealt with a Jawan who has joined a new Unit upon having been transferred from another Unit and having 16 years of distinguished service to his credit. This Court is satisfied that it is a case where the petitioner seems to be victimized and a medical report has been prepared on 31/05/1997 for the alleged incident dated 06/05/1997 to hold the petitioner guilty of having created a scene and the charges have been sought to have been proved from four Jawans who are subordinate to the Commandant.
8.9. Keeping in view the law as laid down by the Supreme Court in the cases of M.V. Bijlani Vs. Union of India an d others: (2006)5 SCC 88; Moni Shankar Vs. Union of India and another: (2008)3 SCC 484; Roop Singh Negi Vs. Punjab National Bank and others:
(2009)2 SCC 570 and Krushnakant B. Parmer Vs. Union of India and another: (2012)3 SCC 178 regarding the scope of judicial review and principle which ought to be followed in a decision making process in departmental enquiry proceedings.
8.10.Resultantly, the order impugned dated 25/09/1997 passed by the Disciplinary Authority dismissing the petitioner from service as well as the order impugned dated 01/09/1998 passed by the Appellate Authority rejecting appeal of the petitioner are quashed and set aside. The respondents are directed to reinstate the petitioner in service with all consequential benefits including continuity of service and other service benefits. However, the (24 of 24) [CW-674/1999] fixation of salary of the petitioner for the intervening period shall be made notionally under the revised pay scales as revised from time to time. However, keeping in view the long pendency of the writ petition from 1999 till date of 18 years, it is directed that the petitioner would be entitled for notional fixation and his pay and allowances shall be calculated accordingly till the date of reinstatement and he would be entitled to the actual benefits from the date he is reinstated in service and if the petitioner has attained superannuation, the actual pension and retiral benefits shall be paid to him from the date of his attaining superannuation and would be given all benefits of medals and awards which he had received while in service. The compliance of this order shall be made by the respondents within three months of receipt of certified copy of this order. No costs.
9. Both the writ petitions are allowed accordingly.
(SANJEEV PRAKASH SHARMA),J Raghu/ Powered by TCPDF (www.tcpdf.org)