Rajasthan High Court - Jaipur
Baiju Ram vs Uoi on 29 August, 2017
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
S.B. Civil Writ Petition No. 806 / 1999
L/Nk Baiju Ram S/o Shri Thakur Ram aged about 37 years by
caste-Jat R/o Village & Post- Saiod 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 Commandeant 35th Bn Central Reserve Police, Force,
Silchar (Assam).
----Respondents
Connected With
S.B. Civil Writ Petition No. 674 / 1999
L/Nk Baiju Ram S/o Shri Thakur Ram aged about 37 years by
caste-Jat R/o Village & Post- Saiod 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 Commandeant 35th Bn Central Reserve Police, Force,
Silchar (Assam).
----Respondents
_____________________________________________________
For Petitioner(s) : Mr. RS Bhadauria
For Respondent(s) : Mr. BS Chhaba, DSG
_____________________________________________________
HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA
Judgment
Reserved on 13/07/2017
Pronounced on 29/08/2017
(2 of 15)
[ CW-806/1999]
1. Both these writ petitions of the same petitioner, being
related and having identical facts, are being heard and decided by
this common order at the request of counsel for the petitioner.
2. In the first writ petition (SBCWP-674/1999), the facts are that the petitioner, who was holding the post of Naik of D Company of 35 Battalion of CRPF, was charged of committing offence of misconduct, inter-alia, that while he was returning from leave, he did not report to his company location on due date i.e. 08/10/1996 and absented himself. He remained out of Camp in Karimganj Bazar and when the party consisting of Senior Officer appraoched him on 08/10/1996 and asked him to report to the Company Headquarter, he declined to do so. The second charge was that he created a scene of nuisance at Police Station Karimganj under influence of liquor thus jeopardizing good order and discipline of the force. Enquiry was conducted and the enquiry officer submitted his enquiry report on 04/03/1997 and after receiving reply, he was punished with reduction of rank affecting his seniority, promotion, confirmation and increments as well as forfeiture of benefits other than emoluments already paid to him during the suspension period vide order dated 03/05/1997. The appeal preferred also came to be dismissed vide order dt.15/07/1998.
3. In the second writ petition (SBCWP-806/1999), the facts in brief, are that the petitioner, who was holding the post of Lans Nayak in D Company of 35 Battalion of Central Reserve Police Force, was charged of having consumed liquor while on protection (3 of 15) [ CW-806/1999] duty accompanied with Escort Party and quarreled with civilians at FCI, Silchar and created scene in the open market amongst the civilians. He was also charged of having consumed liquor and misbehaved with other colleagues. It was alleged that when the vehicle was sent to Rangpur, Silcher fetching some MT parts, he quarreled with civilians and with the escort party and when ordered not to do so, became aggressive and threatened the other members of the escort party to shoot with his weapon. The third charge was with regard to having consumed liquor again while returning from Silchar to the Battalion Headquarters by leaving the Escort party and when he was prevented to do such activities, he abused them and also slapped the driver Pradeep Kumar. A Deputy Commandant was appointed as an Enquiry Officer who conducted enquiry and found all the charges proved against the petitioner. Copy of the enquiry report was served on the delinquent vide letter dated 14/09/1997 and after considering his reply and the gravity of the offence, he was dismissed from service vide order dated 25/09/1997 and the appeal preferred also came to be dismissed vide order dated 01/09/1998. Both the orders are impugned herein.
4. 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 (4 of 15) [ CW-806/1999] 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 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.
(5 of 15) [ CW-806/1999] 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 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.
(6 of 15) [ CW-806/1999]
5. The petitioner was chargesheeted on the following two charges and was awarded sentence of reduction of rank vide order dated 3/5/1997 although no charge could be sustained from the available evidence on record. He submitted an appeal against this sentence before the appellate authority :-
ARTICLE-I
(a) That, the said no 810714454 NK Baiju Ram D/35 Bn, CRP, while functioning of Naik (GD) committed an offence of misconduct in his capacity as member of the Force u/s 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 8/10/1996, absented himself and remained out of camp in Karimgunj Bazar, When Party consisting a SO of D/35 approached him on 8/10/1996 and asked to report to Coy HQ but he declined to do so, thus he was guilty of disobedience.
(b) That, 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 member of the force under Section 11(1) of CRPF Act, 1949, in that he created scene and nuisance in police station at Karimgunj under the influence of liquor thus jeopardising the good order and discipline of the Force.
6. The petitioner was again suspended from duty just after two days of the first sentence i.e on 6/5/1997 and a memo charge on the following three counts was served on him on 26/7/1997 :-
I CHARGE ARTICLE-I (7 of 15) [ CW-806/1999] That, the said No. 810714451 L/NK Baiju Ram of D/35 Bn, CRPF, was detailed with protection party of vehicle sent for Govt. duty to Silchar on 6/5/1997 No. 660080362 SI (GD) Chamael Singh went to Bank and engaged with Bank works. He ordered HE/Driver Kedar Nah to take the vehicle to M/s Zenith Automobile, Sonai Road, Silchar to collect the MT Parts. The Said L/NK being on protection duty also accompanied with escort party and consumed liquor there and quarreled with civilians at FCI, Silchar and created scene in the open market amongst the civilians.
ARTICLE-II That, the said No. 810714451 L/Nk Baiju Ram being on protection duty consumed liquor and behaved in an indiscipline manner, when the Vehicle was sent to Rangpur, Silchar for fetching some MT parts, he also created scene by quarrelling with civilians and the escort party. When he was forbidden to do so, he became aggressive and threw the wireless set away which was held with him and threatened the other protection party members to shoot with his weapon. As such he committed an act which is prejudicial to the good order to discipline.
ARTICLE III That, No 810714451 L/Nk Baiju Ram even after creating above nuisances, returning from the Silchar to Bn, Hq Doyapur he left the party at Udharbond in the way and again consumed liquor. When he was searched and prohibited from such activities, he abused them and also slapped to No. 680323633 HC/Driver Kedar Nath and No. 820450036 NK Pradeep Kumar. As such he committed an Act of offence (8 of 15) [ CW-806/1999] prejudicial to the discipline of the Force. On arrival at Bn. Hq he again started shouting, abusing to others members in the line."
7. That, on 14/9/1997 the petitioner was furnished a copy of the enquiry report seeking his reply within 15 days from the date of receipt interalia also allowing him to seek personal audience of the commandant of so desired by the petitioner by 29/9/1997. However before expiry of the dead line ie. 29/9/1997 the services of the petitioner have been dispensed with on 25/9/1997 by way of dismissal from service.
8. In the first writ petition, 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.
9. In the second writ petition, after two days of his being served with the punishment of reversion from the post of Naik to Lans Naik, which is the order impugned in the first writ petition, (9 of 15) [ CW-806/1999] the petitioner was again suspended and charges were levelled relating to his having consumed liquor and he was dismissed from service by second order. The petitioner, therefore, filed an appeal against the order of reversion which was dismissed by the Deputy Inspector General, CRPF and then he preferred a revision petition before the revisional authority after dismissal but since he had already been dismissed, nothing further was done in the revision petition, he preferred first writ petition before this Court. At the same time, in a separate writ petition, he challenged the dismissal order.
10. Learned counsel for the petitioner submits that while conducting the enquiry in both the cases, the principles of natural justice had been given a complete go-bye. There was an element of bias and prejudice of his superior officer and the Commandant was bent upon removing him from service. It is a case where the petitioner had been charged with allegations which he had not committed. It is submitted that it is a case where he has been made a victim of circumstances and the enquiry was not conducted fairly and impartially. His entire period of service which he had rendered with the force has been set at naught.
11. It is submitted that there was no medical record regarding the petitioner having consumed liquor. The allegation of throwing wireless set on the ground was also not proved and there was no such report of damage of the wireless set. The charges were false and fabricated. It is pointed out that even the signatures of the Commandant on the various orders namely; suspension order, (10 of 15) [ CW-806/1999] enquiry report and the dismissal order are different. He was not provided any defence assistant nor he was allowed to produce any defence. He was neither allowed to cross examine the witnesses and the entire proceedings were in gross violation of the provisions of CRPF Rules. The petitioner ought to have been reinstated. It is submitted that the petitioner has been ousted unjustifiably. It is submitted that in-stead of taking matter with the appropriate authority regarding mal-treatment and beating up of Jawan by civilians, the concerned Commandant and his subordinates had punished the petitioner while there was no fault at his level.
12. 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 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 (11 of 15) [ CW-806/1999] 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."
13. In the enquiry, it has been stated that opportunity was given to the petitioner for appointing defence assistance but he did not (12 of 15) [ CW-806/1999] 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.
14. Learned counsel for the petitioner relies on the judgment pssed in the case of State of Maharashtra Vs. Baishankar Avalram Joshi and another: 1969 SLR (SC) 268 wherein it was held in Para 6 & 7 as under:-
"6. It seems to us that the High Court came to a correct conclusion. The plaintiff was not aware whether the Enquiry Officer reported in his favour or against him. If the report was in his favour, in his representation to the Government he would have utilised its reasoning to dissuade the Inspector General from coming to a contrary conclusion, and if the report was against him he would have put such arguments or material as he could to dissuade the Inspector General from accepting the report of the Enquiry Officer. Moreover, as pointed out by the High Court, the Inspector General of Prisons had the report before him and the tentative conclusions arrived at by the Enquiry Officer were bound to influence him, and in depriving the plaintiff of a copy of the report he was handicapped is not knowing what material was influencing the Inspector General of Prisons.
7. As observed by Gajendragadkar, J., as he then was, in Union of lndia v. H. C. Goel "the enquiry report along with the evidence recorded constitute the material on which the Government has ultimately to act. That is the only purpose of the enquiry held by competent officer and the report he makes as a result of the said enquiry".
15. Having gone through the facts as narrated by the petitioner and also having gone through the proceedings undertaken against him, this Court is of the view that while the charges levelled against the petitioner on the face of it are grave, the background, which has been shown by the petitioner has been admitted by the respondents. While aforesaid facts admitted in reply by (13 of 15) [ CW-806/1999] respondents reveal that the contentions of petitioners are correct, the contents of the charge sheet and punishment order are completely silent in this regard. It clearly shows that an element of bias and prejudice against the petitioner had been created in the mind of the concerned disciplinary authority i.e. the Commandant who stated to have gone personally to the Police Station where the petitioner was demanding his documents and his bag from the concerned hotelier and was asking for lodging of FIR against the concerned civilians. It is apparent that the petitioner, who was a Jawan of CRPF and had already been posted earlier in the terrorist affected area and transferred to Silchar (Agartalla) in another Battalion, found himself in a situation where his bag containing his identity card and other documents had been retained by a hotelier on the basis of a brawl which occurred relating to payment of food.
16. The Commandant ought to have shown his restrain in the matter and acted accordingly in-stead it is seen in proceedings conducted in department enqiry that he has been first reverted and thereafter dismissed from service. The so-called medical report was not produced on record by the respondents and it is case of the petitioner that he was not in intoxicated condition and his medical was not conducted.
17. In the circumstances, where the petitioner has not been given a fair opportunity to lead evidence in his defence and faced departmental proceedings in a hostile circumstance, this Court is not satisfied that fair opportunity was granted to the petitioner (14 of 15) [ CW-806/1999] and is inclined to accept the version of the petitioner that he was wrongfully punished by both the orders i.e. revision as well as dismissal from service. The orders impugned passed by the authorities are liable to be are set aside. The position of the appellate authority is also found to be mechanical and there has been a complete non-application of mind while dealing with the appeal.
18. 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 as well as as the findings arrived at herein above, the orders impugned dated 03/05/1997, 15/07/1998, 24/09/1997 and 01/09/1998 are quashed & set aside and the respondents are directed to reinstate the petitioner in service with all consequential benefits including continuity of service and other service benefits. However, the 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 petitions 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 (15 of 15) [ CW-806/1999] 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.
19. Both the writ petition are allowed with the directions/observations as made above.
(SANJEEV PRAKASH SHARMA)J. Raghu/