Jammu & Kashmir High Court
Madan Gopal Singh S/O. Sh. Jaswant vs Union Of India on 6 October, 2023
Author: Sanjay Dhar
Bench: Sanjay Dhar
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Reserved on 21.09.2023
Pronounced on 06.10.2023
SWP No. 2532/2002
Madan Gopal Singh S/o. Sh. Jaswant .....Appellant(s)/Petitioner(s)
Singh, R/o. Mandigarh Samba,
District, Jammu, aged 28 years
Through: Ms. Surinder Kour, Sr. Adv. with
Q
Mr. Dalvinder Kumar, Adv.
vs
1. Union of India, through Home ..... Respondent(s)
Secretary, Ministry of Home, Govt.
of India, New Delhi.
2. Director General of Special Service
Bureau, Ministry of Home Affairs,
Govt. of India, New Delhi
3. Division Organizer, SSB J&K
Division Headquarter, Jammu
4. Commandant Group Centre SSB, 7th
Bn Headquarter Gangyal Post Bag
No. 4, Post Office Gandhi Nagar,
Jammu
5. Commandant S. S. B. 5th Bn
Chanikaya Hotel, Indira Nagar,
Badani Bagh, Srinagar.
6. Coy Commander SSB „C‟ Coy 7th
Bn Headquarter Gangyal, Post Bag
No. 4 Post Office, Gandhi Nagar,
Jammu
7. Sh. Sham Singh 2nd in Command,
Group Centre SSB, Jammu
Through: Mr. Vishal Sharma, DSGI
Coram: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
1. The petitioner has challenged order No. III/Adm/15/Vol-II/2000-15032 dated 27.07.2002 issued by respondent No. 3, whereby a direction has been 2 SWP No. 2532/2002 issued for conducting fresh enquiry and at the same time, enhanced penalty of dismissal from service against the petitioner has also been proposed. Challange has also been thrown to the order No. Estt/9460409/GCJ/02(E)/10951 dated 09.08.2002 issued by respondent No. 6, whereby fresh charges have been framed against the petitioner.
2. It appears that the petitioner was appointed as constable in Sashastra Seema Bal(SSB) on 16.09.1994. While serving at Group Centre Gangyal, Jammu, he was allowed to handle the Pay Disbursement Register and Acquaintance Roll pertaining to payments of company personnel. It was alleged that he managed to misappropriate Rs. 77,284/- by making overwriting and cutting in the Acquaintance Roll and Pay Disbursement Register which resulted in less payment of claims of 70 company personnel on 210 occasions. Thus charges of negligence, remissness and misconduct under section 11(1) of the CRPF Act, which was applicable to the SSB at the relevant time, were framed. Court of enquiry was conducted from 28.01.2001 to 17.09.2001 and the Board of Officers recommended suitable action against the petitioner.
3. Vide his endorsement dated 30.09.2001, the Commandant agreed with findings of the enquiry proceedings conducted by the court of enquiry and ordered initiation of departmental enquiry against the petitioner. An enquiry officer was appointed in terms of order issued on 06.11.2001 and an enquiry was conducted against the petitioner in terms of Rule 27 of the CRPF Rules, 1955. After conducting a detailed enquiry, the petitioner was awarded punishment of 28 days quarter-guard with forfeiture of pay and allowance of that period as also recovery of the misappropriated amount. The said penalty is stated to have been executed by the respondents against the petitioner. 3 SWP No. 2532/2002
4. Vide impugned order dated 22.07.2002 issued by respondent No. 3, penalty awarded against the petitioner has been proposed to be enhanced to the penalty of dismissal from service and another enquiry has been directed to be initiated against the petitioner. In this regard, a fresh memorandum of charges issued vide impugned memorandum dated 09.08.2002 has been served upon the petitioner and an enquiry officer has also been appointed by the respondents.
5. The petitioner has challenged the impugned order whereby enhanced penalty has been proposed against him and at the same time, a fresh enquiry has been ordered against him on the grounds that once in respect of a particular allegation, enquiry has been conducted and punishment has been imposed upon the petitioner, he cannot be subjected to another enquiry on the same allegations. It has been further conducted that respondent No. 3 is neither competent nor does he have power to revise and enhance the punishment imposed upon the petitioner and that he cannot direct initiation of fresh enquiry against him.
6. The respondents in their reply have contended that after completion of court of enquiry proceedings, the report of court of enquiry was considered and departmental enquiry was initiated against the petitioner only in respect of the misappropriation of Mess Security Advance(MSA), whereas no enquiry was made with regard to insertion of government accounts in Acquaintance Roll and Pay Distribution Register, whereby the petitioner had misappropriated an amount of more than Rs. 70,000/-. The stand of the respondents is that the subject matter of the departmental enquiry initiated against the petitioner in terms of impugned memorandum dated 09.08.2002 is entirely different from the subject matter of the departmental enquiry in respect of which enquiry report was already rendered by the enquiry officer pursuant to which penalty 4 SWP No. 2532/2002 has been imposed upon him. Thus according to the respondents, it is not a case of second enquiry in respect of the same allegations. Regarding the competence of respondent No. 3 to impose enhanced penalty upon the petitioner, it has been submitted that the said officer is of the rank of Inspector General of CRPF and as such, in terms of Rule 29(d) of the CRPF Rules, 1955, he is vested with powers to review and revise an order of imposition of penalty and in appropriate cases, he is competent to impose enhanced penalty.
7. I have heard learned counsel for the parties and perused the pleadings and record produced by the learned counsel for the respondents.
8. A perusal of the record shows that so far as the court of enquiry conducted against the petitioner is concerned, the same related to misappropriation of funds under the MSA account as well as misappropriation of funds on account of overwriting/cuttings in the Acquaintance Roll and Pay Distribution Register. So both these aspects of the matter were the subject matter of the court of enquiry. The record, however, shows that departmental enquiry has been conducted by the respondents only in respect of the misappropriation of funds under MSA. The article of charge framed against the petitioner in the earlier round of departmental enquiry reads as under:
"ARTICLE-I That No. 9460409 Const (GD) Madan Gopal Singh while posted with „A‟ Coy which was deployed for I.S. duty with its HQ at Police Station, Gandhinagar, Jammu while functioning as Coy MHC Asstt and entrusted with the duty of maintaining Coy MSA account mis-appropriated a sum of Rs. 9,095.19 (Rupees nine thousand ninety five and paise nineteen) only. Thus he had committed an gross disobedience of orders/neglect of duty/remissness in the discharge of his duty in his capacity as a member of the Force under Section 11)1) of CRPF Act, 1949."
9. From the afore-quoted article of charge, it is clear that the subject matter of earlier departmental enquiry was misappropriation of funds under MSA 5 SWP No. 2532/2002 account. There is no mention of misappropriation of funds on account of cuttings in Acquaintance Roll and Pay Distribution Register.
10. So far as the subject matter of fresh enquiry initiated by the respondents pursuant to impugned order is concerned, the same relates to misappropriation of funds on account of cuttings in Acquaintance Roll and Pay Distribution Register. The article of charge reads as under:
"ARTICLE-I That No. 9460409 CT/GD Madan Gopal Singh while posted in „A‟ Coy, which was deployed for I.S. Duty with its HQ at police station Gandhinagar Jammu was functioning as Coy Assistant MHC and allowed to handle Pay disbursement register and A/Rolls pertaining to payments of Coy Personnel. During the course of his duties he managed to mis-appropriate the sum of Rs. 77,284/- by erasing overwriting and cuttings the A/Rolls and pay disbursement register owing to less payment of legitimate claims to 70 Coy. personnel on 210 occasions as verified from A/Rolls as well as pay disbursement register from March, 99 to July, 01 by a Court of Inquiry. Thus he had committed a gross act of negligence/remissness and mis-conduct in the discharge of his duties under Sec. 11(1) of CRPF Act 1949 and Rule-1955."
11. From the above, it is clear that the subject matter of enquiry in two departmental enquires is different. Therefore, the contention of learned counsel for the petitioner that subject matter of enquiry in two enquiries is same is not tenable.
12. Another question that falls for determination is as to whether respondent No. 3 was legally justified in ordering of imposition of enhanced penalty upon the petitioner and at the same time directing another enquiry against the petitioner in respect of the allegations which were subject matter of court of enquiry. The power that has been exercised by respondent No. 3 traces its origin to the provisions contained in Rule 29 of the CRPF Rules which reads as under:
6SWP No. 2532/2002
"29. Revision.--
(a) A member of the Force whose appeal has been rejected by a competent authority may prefer petition for revision to the next Superior Authority. The power of revision may be exercised only when in consequence of some material irregularity, there has been injustice or miscarriage of justice or fresh evidence is disclosed.
(b) The procedure prescribed for appeals under sub-rules (c) to (g) of rule 28 shall apply mutatis mutandis to petitions for revision.
(c) 1[The next superior authority] while passing orders on a revision petition may at its discretion enhance punishment:
Provided that before enhancing the punishment the accused shall be given an opportunity to show cause why his punishment should not be enhanced: 1[Provided further that an order enhancing the punishment shall, for the purpose of appeal, be treated as an original order except when the same has been passed by the Government in which case no further appeal shall lie, and an appeal against such an order shall lie--
(i) to the Inspector General, if the same has been passed by the Deputy Inspector General; and
(ii) to the Director General if the same has been passed by the Inspector General; and
(iii) to the Central Government, if the same has been passed by the Director General.]
(d) 1[The Director General 2[or Additional Director General] or the Inspector-General] or the Deputy Inspector General may call for the records of award of any punishment and confirm, enhance, modify or annual the same, or make or direct further investigation to be made before passing such orders: Provided that in a case in which it is proposed to enhance punishment, the accused shall be given an opportunity to show cause either orally or in writing as to why his punishment should not be enhanced."
13. From a perusal of clause (d) of the afore quoted provision, it is clear that Director General or Additional Director General or the Inspector General or the Deputy Inspector General has power to call for the records of the award of any punishment and confirm, enhance, modify or annul the same. The respondent No. 3 is an officer of the rank of Inspector General of Police, therefore, he is vested with the power under Rule 29 (d) of the CRPF Rules, quoted above.
14. The question arises as to how this power is to be exercised by the competent authority. It has been contended by the learned Senior Counsel for the petitioner that unless a petition for revision is filed by the person against whom a punishment has been imposed, the power of revision cannot be 7 SWP No. 2532/2002 exercised by the competent authority. I am afraid the contention of the learned Senior Counsel for the petitioner is not tenable. A reading of clause (d) of Rule 29 shows that the power conferred by this clause is distinct from the independent power of revision conferred by clauses, (a), (b) and (c) of Rule 29 of the CRPF Rules. Though words suo moto have not been mentioned in clause
(d) but it can be inferred from the language of said clause that a suo moto power of revision has been vested on the officers of the rank mentioned in the said clause and this power is not controlled by or subject to the limitations found in the clauses (a) to (c) of Rule 29 of the CRPF Rules. The power of suo moto revision is independent of the right of the revision conferred on the delinquent employee. Such a power can be used by the competent authority, to enhance or modify the punishment awarded to an employee and it can also be used to reduce or annul the punishment imposed upon the employee, if it is not warranted.
15. However, there is another aspect of the matter which is discernible from the language of clause (d) of Rule 29 of the CRPF Rules. While the competent authority has power to call for the records of the award of any punishment and confirm, enhance, modify or annul the same, it can also make or direct further investigation to be made before passing such order. This means that the competent authority can pass an order of confirmation of sentence imposed upon an employee, it can enhance it, it can modify it which would mean reduce it or it can annul the punishment all together.
16. The later part of clause (d) provides that before passing such an order of confirmation, enhancement, modification or annulment of punishment, the competent authority can direct further investigation to be made meaning thereby that the power of further investigation can be exercised by the 8 SWP No. 2532/2002 competent authority under clause (d) only prior to exercising its option of confirmation/enhancement etc of the punishment imposed upon the employee and not after passing of such order. The purpose behind vesting of power with the competent authority to direct further investigation is to allow the said authority to have full facts before it prior to taking a decision with regard to confirmation, enhancement, modification etc of the punishment imposed on an employee. Once the competent authority takes a decision as regards the confirmation or enhancement etc. of punishment, it cannot direct further investigation, as the purpose of further investigation would be futile once the authority has taken a decision with regard to the quantum of punishment to be imposed upon the employee.
17. Coming to the facts of the instant case, respondent No. 3 has, while considering the record in exercise of his revisional power in his note dated 09.07.2002 proposed punishment of dismissal against the petitioner in exercise of his power under Rule 29(d) of the CRPF Rules and at the same time, the said authority has directed another departmental enquiry for the charges of overwriting and cuttings and consequent misappropriation of Rs. 77,284/-. It was not open to respondent No. 2 to enhance the penalty of the petitioner to propose enhanced penalty against the petitioner and at the same time order further investigation into the case. In fact after receiving the reply to the show cause notice from the petitioner, respondent No. 3 has modified the proposed penalty of dismissal to a penalty of 28 days quarter-guard and reduction in pay scale by seven stages with permanent effect instead of dismissal, meaning thereby respondent No. 3 has imposed enhanced penalty upon the petitioner which of course has been done after giving him the opportunity of hearing. Once enhanced penalty was imposed upon the petitioner, further investigation 9 SWP No. 2532/2002 could not have been directed by respondent No. 3. If the said respondent desired to have further investigation of the matter, then in that eventuality imposition of enhanced penalty upon the petitioner could have been deferred till the outcome of the enquiry.
18. There is yet another aspect of the matter which is required to be noticed. If we have a look at the record particularly, the note approved by respondent No. 3 on 09.07.2002 pursuant whereto fresh enquiry has been ordered against the petitioner and show cause notice for enhanced penalty has been issued against him, it is discernible that while proposing enhanced penalty, respondent No. 3 has taken into account, the report of court of enquiry particularly the remarks relating to cuttings, overwritings corrections and erasing of Acquaintance Roll and Pay Distribution Register. So all these facts have weighed heavily with respondent No. 3 while proposing enhanced penalty against the petitioner. Therefore, it will be inequitable and unreasonable to initiate an enquiry against the petitioner in respect of the same facts and thereafter subject him to a fresh penalty. The allegations which are subject matter of fresh enquiry have been clearly taken into account by respondent No. 3 while awarding enhanced penalty against the petitioner. It may be true that the petitioner has not been subjected to departmental enquiry in respect of the charges relating to over writings and cuttings in Acquaintance Roll and Pay Distribution Register but it is also a fact that these circumstances have weighed heavily in the mind of respondent No. 3 while proposing and imposing enhanced penalty against the petitioner. Therefore, he cannot be subjected to another enquiry and another punishment in respect of the same facts and allegations.
10SWP No. 2532/2002
19. For the foregoing reasons, while the power of respondent No. 3 in imposing enhanced penalty upon the petitioner in terms of impugned order dated 20.09.2002 is absolutely in accordance with law and no fault can be found in the said order, having regard to the nature of material that has been considered by respondent No. 3, while passing the said order but at the same time, the direction of respondent No. 3 regarding holding of fresh enquiry against the petitioner on the same allegations which have weighed with him while enhancing the penalty against the petitioner, cannot be sustained in law.
20. Accordingly the present writ petition is partly allowed and impugned action of respondents initiating fresh enquiry against the petitioner pursuant to impugned memorandum dated 09.08.2002 as also the fresh charges framed against him are quashed. However, the enhanced penalty imposed upon the petitioner in terms of order dated 20.09.2002 issued by respondent No. 3 is upheld and maintained.
21. Record of the enquiry be returned back to the learned counsel for the respondents.
(SANJAY DHAR) JUDGE Jammu 06.10.2023 Rakeshm Whether the order is speaking: Yes Whether the order is reportable: Yes