Punjab-Haryana High Court
Ex. Constable Keshav Parasad ... vs Union Of India And Others on 31 August, 2013
Author: Paramjeet Singh
Bench: Paramjeet Singh
CWP No. 480 of 1991 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
C.W.P. No. 480 of 1991
Reserved on : 15.07.2013
Date of Decision: August 31, 2013
Ex. Constable Keshav Parasad (deceased) through LRs
... Petitioner(s)
Versus
Union of India and others
... Respondents
CORAM: HON'BLE MR. JUSTICE PARAMJEET SINGH
1) Whether Reporters of the local papers may be allowed to see the
judgment? Yes
2) To be referred to the Reporters or not? Yes
3) Whether the judgment should be reported in the Digest? Yes
Present: Mr. S.P. Jain, Sr. Advocate with
Mr. Dheeraj Jain and
Mr. Vijay Kumar Chaudhary, Advocates,
for the petitioner(s).
Mr. Gurpreet Singh, Standing Counsel
for Union of India.
Paramjeet Singh, J.
Instant Civil Writ Petition has been filed under Articles 226/227 of the Constitution of India for quashing the order dated 15.03.1990 (Annexure P/5) passed by respondent No.5, whereby the petitioner has been removed from service, order dated July, 1990 (Annexure P/6) passed by respondent no.4, whereby appeal of the Kumar Virender 2013.09.03 16:07 I attest to the accuracy and integrity of this document CWP No. 480 of 1991 2 petitioner has been dismissed and order dated 09.11.1990 (Annexure P/7) passed by respondent no.3, whereby revision petition of the petitioner has been dismissed. It would be appropriate to notice here that initially the instant writ petition was filed by Ex. Constable Keshav Parasad. During the pendency of this petition, he died on 18.01.1997. His legal representatives moved an application viz. CM No. 9410 of 1997, which was allowed vide order dated 23.05.1997 and Smt. Usha Rani, widow, Pooja, Preeti, Soni, daughters and Abhishek son of late Sh. Kehsav Parasad were brought on record.
Brief facts of the case are that petitioner - Keshav Parasad was enrolled as a Constable in the Central Reserve Police Force (hereinafter referred to as the "CRPF") on 06.10.1983 and posted in Bn 71, CRPF in 6 Pn. since August, 1984. At the relevant time, the petitioner was posted at Moga and was charge-sheeted under Section 11(1) of the Central Reserve Police Force Act, 1949 (hereinafter referred to as the "Act") on the following allegations:-
"i) That the said No. 830739459 Ct. Keshav Prasad Rai of B/71 Bn, CRPF while functioning as a member of the force on 18.11.1989 committed misconduct in his capacity as a member of the force U/S 11(1) of CRFP Act, 1949 in that he on 18/11/89 consumed alcohol unauthorisedly from a local vend.
ii) That during the aforesaid period and while functioning in the aforesaid period and while functioning in the aforesaid office, the said No. 830739459 Ct. Keshav Prasad Rai was guilty of misconduct in his capacity as a member of the force Kumar Virender 2013.09.03 16:07 I attest to the accuracy and integrity of this document CWP No. 480 of 1991 3 U/S 11(1) of CRPF Act-1949 in that he had beaten Shri Ramu a rickshaw puller and when stopped by civilians, picked up quarrel with them and assaulted one local shop-keeper Shri Pawan Kumar son of late Sh. Lakhi Raj."
Copy of the charge-sheet is Annexure P/1 with the writ petition. It is the case of the petitioner that he had been down with fever since 15.11.1989 and the doctors had advised him complete rest. Even on the date of alleged occurrence i.e. 18.11.1989, the petitioner was not on duty. The petitioner filed reply (Annexure P/2) to the charge-sheet wherein it is stated that he wanted to go for urination at the time of alleged occurrence and went out after intimating the Sentry on duty. When the petitioner was moving out for urination, he saw that certain civilians were abusing Constable Satinder Kumar Singh, so the petitioner rushed to the spot to call Constable Satinder Kumar Singh, even the Enquiry Officer Sh. Rattanam, Assistant Commandant also reached there. After considering the reply and not finding it satisfactory, the competent authority appointed Enquiry Officer vide order dated 08.12.1989. The enquiry was conducted and in his report (Annexure P/3), the Enquiry Officer exonerated the petitioner from charge No.2 holding that the allegation of beating and assaulting the civilians was not proved against the petitioner. Regarding charge no.1, the Enquiry Officer gave a finding that the petitioner had consumed alcohol unauthorisedly from local vend which amounted to misconduct. The enquiry officer considered the medico-legal report given by the Medical Officer. The competent authority vide impugned order Kumar Virender 2013.09.03 16:07 I attest to the accuracy and integrity of this document CWP No. 480 of 1991 4 dated 15.03.1990 (Annexure P/5) removed the petitioner from service. Against that, the petitioner preferred an appeal, which was dismissed in July 1990 (Annexure P/6). Thereafter, the petitioner preferred a revision which was also dismissed vide order dated 09.11.1990 (Annexure P/7). Hence, this writ petition.
The main grounds raised by the learned counsel for the petitioner in this writ petition are that the impugned order of removal from service as well as orders passed in appeal and in revision are against the principles of natural justice as no opportunity or show cause notice was given to the petitioner. The case of the petitioner is not covered under Section 11(1) of the Act. The alleged crime is not a heinous crime as enshrined under Sections 9 and 10 of the Act. There are no instructions, rules or regulations which prohibited the consumption of liquor by a member of the force from local vend when he is off duties. It is also the case of the petitioner that he had taken cough syrup and Medical Officer has opined that the petitioner had undoubtedly consumed mild quantity of alcoholic intoxicant and has also reported that he was in full sense. The order of removal is harsh order. The copy of the enquiry report was not supplied to the petitioner. Besides this, the stand taken by the petitioner is that respondent no.5 has imported his own personal knowledge while awarding the punishment of removal. The appointing authority has wrongly reversed the finding on charge no.2. The petitioner was denied the right to cross examine the witnesses. The defence evidence led by the petitioner has not been taken into account. The findings recorded by the Kumar Virender 2013.09.03 16:07 I attest to the accuracy and integrity of this document CWP No. 480 of 1991 5 Enquiry Officer are not based on evidence, rather is result of surmises and conjectures.
In pursuance of notice of motion, respondents appeared and filed their written statement. As per their reply, the petitioner had been performing duty in the State of Punjab from August, 1984 onwards. During this period, on 18.11.1989 the petitioner consumed alcohol and assaulted civilians under influence of alcohol. The petitioner was employed as a member of an Armed Force for duty to provide protection to public. Consuming liquor is a behaviour found unbecoming of a member of the Force. The petitioner had consumed alcohol unauthorisedly which was prohibited as per the Battalion Standing Order dated 24.02.1989 (Annexure R/1) and, thus, committed an act of misconduct. He was found to be assaulting the civilians after consuming liquor. This fact has been denied by the respondents that the petitioner was sick on 18.11.1989. The petitioner may not have been on duty at that point of time but as a member of an Armed Force while staying inside the force campus he is bound by the discipline of the force. As per the Force Standing Instructions, a member of the Armed Force, is bound to maintain discipline while staying in the campus, he is not permitted to consume alcohol unauthorisedly until and unless it is issued officially. The consumption of alcohol unauthorisedly was prohibited as per the Battalion Standing Orders. While posted in Punjab all force personnel are expected to deal with the terrorists or other such anti-social elements. They are prohibited by the orders issued by the Battalion from leaving the camp without permission Kumar Virender 2013.09.03 16:07 I attest to the accuracy and integrity of this document CWP No. 480 of 1991 6 and to consume alcohol unauthorisedly inside the campus or from local liquor vend. The employee of Armed Forces is deemed to be on duty for 24 hours and can be called for duty whenever necessity arises. Since the CRPF Battalion was deployed at the anti-terrorists infested area in the State of Punjab its employees are considered to be on active duty as they have to deal with unlawful elements. The order of removal from service has been passed by the competent authority in accordance with law. The plea of the petitioner that he was removed from service without affording any opportunity or without show cause notice is baseless as issue of show cause notice has been dispensed with as per GOI notification No. R.IX- 1/79-Adm-Pers.2 dated 14.01.1980 (GSR-75 dated 26.1.1980) (Annexure R/2).
I have heard learned counsel for the parties and perused the record.
Learned counsel for the petitioner vehemently contended that there is categorical finding of the Enquiry Officer that the petitioner was not beating and assaulting the civilians, rather it was Constable Satinder Kumar Singh who was giving beating. Even, the Enquiry Officer has exonerated the petitioner with regard to this charge. So far as the allegation regarding consumption of liquor is concerned, learned counsel for the petitioner contended that the petitioner was not on duty, he was sick on 18.11.1989 and on the date of incident, he was also not on duty. Even the doctor in his report (Annexure P/4) has mentioned that alcoholic smell was present during conversation. Eyes neither red nor congested, but Kumar Virender 2013.09.03 16:07 I attest to the accuracy and integrity of this document CWP No. 480 of 1991 7 popil slightly enlarged. He was able to maintain his posture, gait slightly disturbed. Regarding emotional level, it has been mentioned that patient was not excited/agitated. Regarding behaviour, it has been mentioned that no indecent behaviour seen and individual was cooperative. Regarding clinical diagnoses, it has been mentioned that it was a mild alcoholic intoxication (consumption) and the individual had consumed mild quantity of alcohol beyond any doubt, but he was found well in senses, not under the influence of alcohol. Learned counsel for the petitioner further contended that the petitioner has not been supplied the copy of the enquiry report, even no show cause notice was issued to the petitioner before inflicting the punishment of removal from service. Learned counsel further contended that the punishment of removal is disproportionate to the alleged conduct of the petitioner. It is further contended that the petitioner has served for sufficient long time and it was his first default since joining the CRPF. Learned counsel for the petitioner further contended that the punishing authority has differed with the findings of the enquiry officer. Learned counsel for the petitioner has relied upon judgments of Hon'ble Supreme Court in Union of India and others vs. Dinanath Shantaram Karekar and others, (1998) 7 Supreme Court Cases 569, Managing Director, ECIL, Hyderabad etc. vs. B. Karunakar, etc., AIR 1994 Supreme Court, 1074, judgments of the Division Bench of this Court in Hakam Singh vs. State of Punjab and others, 2006(2) PLR 604, Avtar Singh vs. Punjab State Electricity Board through its Secretary Patiala, 1992(2) SCT 215, judgments of Single Bench of this Court in Jagdish Kumar Virender 2013.09.03 16:07 I attest to the accuracy and integrity of this document CWP No. 480 of 1991 8 Kumar, Assistant Food & Supplies Officer vs. State of Punjab, 1994(4) S.C.T. 256, Makhan Singh vs. Union of India and others, 2008(3) SCT 737 and judgment of Andhra Pradesh High Court in Jai Kumar Singh vs. Inspector General Police, CRPF, 1994(4) SCT 129.
Learned counsel for the respondents vehemently opposed the contentions raised by the learned counsel for the petitioner and contended that proper enquiry has been conducted. Principles of natural justice have been followed. The petitioner was given full opportunity to cross examine the witnesses and same were examined in his presence. Learned counsel for the respondents further contended that copy of enquiry report was supplied to the petitioner. Even in the writ petition, it is not mentioned that copy of enquiry report was not supplied to him, rather, the pleadings are to the effect that enquiry report submitted is factually incorrect. It is further submitted that the petitioner has signed having received copy of the enquiry report. It is further contended that the petitioner did not cross examine the witnesses even when the witnesses had deposed that the petitioner was under the influence of alcohol and was pushing the civilians. Learned counsel for the respondents further contended that this is factually incorrect that the punishing authority had differed with the findings of the enquiry officer. Both the authorities have held the petitioner guilty of charge no.1 and charge no.2 has been partly proved. So far as the contention regarding non-issuance of show cause notice is concerned, learned counsel for the respondents contended that after enquiry, the same has been dispensed with by way of constitutional Kumar Virender 2013.09.03 16:07 I attest to the accuracy and integrity of this document CWP No. 480 of 1991 9 amendment as the CRPF has been defined as "Armed Forces" of the Union as the Armed Forces i.e. Army, Air Force, Navy and Para Military Forces are grouped together as per Entry 2, List 1 of the 7th Schedule and the provisions of Article 311 of the Constitution of India are not applicable to the Armed Forces. Learned counsel further contended that since the misconduct has been proved, the High Court cannot sit in appeal against the findings recorded by the punishing authority and thereafter, appellate and revisional authorities. In support of his contentions, learned counsel for the respondents has relied upon judgment of this Court in Bhagat Ram vs. Union of India and others, 1981(3) SLR 686 and judgments of Hon'ble Supreme Court in Sarva Uttar Pradesh Gramin Bank vs. Manoj Kumar Sinha (2010) 3 Supreme Court Cases 556, R.S. Saini vs. State of Punjab and other, (1999) 8 Supreme Court Cases 90 and Satbir Singh vs. Chief of the Army Staff, New Delhi and another, (2013) 1 Supreme Court Cases 390.
I have considered the rival contentions of the learned counsel for the parties and perused the record.
In the present case regarding the first charge, the Enquiry Officer has recorded a finding that it is a fact that the petitioner went out of the company lines on 18.11.1989 and consumed alcohol unauthorisedly from a local vend in which he committed misconduct in his capacity as member of the Force under Section 11(1) of CRPF Act, 1949. So, the charge is proved beyond any shadow of doubt. So far as charge no.2 is concerned, the finding has been recorded by the Enquiry Officer that the Kumar Virender 2013.09.03 16:07 I attest to the accuracy and integrity of this document CWP No. 480 of 1991 10 petitioner had not at all beaten/slapped the civilian Sh. Rama, a rickshaw puller or Sh. Pawan Kumar son of late Sh. Lekh Raj, but the petitioner was very much present with Constable Satinder Kumar Singh and pushing the civilians who had gathered there in the bazar and quarreling with Constable Satinder Kumar Singh. Though the petitioner was involved in quarrel with civilians, but he had not beaten the civilians, and it has been held that the charge is not fully proved. The punishing authority has also come to a conclusion that the petitioner was pushing the other civilians. There is no denial of the fact that he was an accomplice in the case, though he had not given any blow to any civilian and the charge has been partially proved against him.
From the entire reading of the proceedings and record shown to the Court, it is clear that second charge has been partially proved against the petitioner. It has been held by the punishing authority, the appellate authority as well as the revisional authority concurrently that the aforesaid charges framed against the petitioner stood proved as stated above.
I have perused the original file shown to me during the course of arguments. It is clear from the record that copy of the enquiry report was supplied to the petitioner and the same has been signed in token of receipt by the petitioner. However, no show cause notice has been issued to the petitioner before imposing the punishment. It is the stand of the respondents that this is a disciplined force which falls within the definition of "Armed Forces". In view of GOI notification dated 14.01.1980 Kumar Virender 2013.09.03 16:07 I attest to the accuracy and integrity of this document CWP No. 480 of 1991 11 (Annexure R/1), issuance of show cause notice has been dispensed with. In view of this, there is no room for interference on this account. As such, learned counsel for the petitioner has failed to convince this Court with regard to concurrent findings of fact recorded against the petitioner. I, therefore, have no hesitation in affirming the said findings.
The next argument raised by the learned counsel for the petitioner is to the effect of disproportionality of the quantum of punishment imposed upon the petitioner. It has been contended that the charges leveled against the petitioner are that he had consumed liquor unauthorisedly and he had gone out and was allegedly accomplice of Satinder Kumar Singh who was beating the civilians. The charges against the petitioner are limited to the effect that he had gone out and took alcohol unauthorisedly from the local vend outside the campus, although he has not beaten any civilian but he was pushing the civilians and as such, he has been held to be accomplice with Satinder Kumar Singh. The petitioner had joined the CRPF on 06.10.1983 and this is the first default of the petitioner. This minor act of misdemeanor has resulted into total unreasonable and disproportionate punishment even assuming that the charges has been duly proved. Reliance can be placed upon a judgment of Hon'ble Supreme Court in Ram Kishan vs. Union of India (1995) 6 SCC 157, in which the delinquent was found guilty of rude behaviour and charged with an act of misconduct. The Hon'ble Supreme Court had set aside the order of dismissal passed by the disciplinary authority and reduced the punishment to stoppage of two increments only. The Kumar Virender 2013.09.03 16:07 I attest to the accuracy and integrity of this document CWP No. 480 of 1991 12 allegations against the petitioner in this case are also of like nature. It has been argued by the learned counsel for the petitioner that a similar order in the instant case would meet the ends of justice specially in the circumstances when the petitioner has already expired and the widow and children will get certain benefits. Per contra, the learned counsel for the respondents has contended that the conduct of the petitioner as per the respondents is highly objectionable and unbecoming of any one serving in the force where the need for maintaining discipline is paramount. Any leniency towards petitioner's conduct is bound to encourage others to commit similar or more serious acts of indiscipline and misconduct which will not be in public interest as it is bound to undermine discipline, devalue and erode the efficacy of the armed force and shake the confidence of the public in its efficiency.
In the light of this fact, now this Court has to consider regarding disproportionality of punishment. The awarding of punishment primarily rests in the discretion of the punishment authority and an authority sitting in appeal over any such order of punishment can examine the issue regarding quantum of punishment. In the present case, all the appellate and revisional authorities have upheld the punishment awarded by the punishing authority. When any such order is challenged before the High Court the exercise of discretion by the competent authority in determining and awarding punishment is generally respected except where the same is found to be so outrageously disproportionate to the gravity of the misconduct that the Court considers it to be arbitrary and that it is Kumar Virender 2013.09.03 16:07 I attest to the accuracy and integrity of this document CWP No. 480 of 1991 13 wholly unreasonable. In such circumstances, the High Court can invoke the doctrine of proportionality which has been gradually accepted as one of the facets of judicial review. Reference in this regard can be made to the judgment of Hon'ble Supreme Court in Ranjit Thakur vs. Union of India, (1987) 4 SCC 611, wherein the Hon'ble Supreme Court has held that the doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the Court-Martial, if the decision even as to the sentence is in defiance of logic, then the quantum of sentence would not be immune from correction. Irrationality and perversity, observed by the Hon'ble Supreme Court, are recognized grounds of judicial review. The following passage is apposite in this regard:
"the doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the Court-Martial, if the decision even as to sentence is an in defiance of logic, then the quantum of sentence would not be immune from correction. Irrationality and perversity are recognized grounds of judicial review".
Similarly, in Dev Singh v. Punjab Tourism Development Corporation limited (2003) 8 SCC 9, the Hon'ble Supreme Court, following Ranjit Thakur's case (supra) has held that:
"...a court sitting in an appeal against a punishment imposed in the disciplinary proceedings will not normally substitute its own conclusion on penalty. However, if the punishment imposed by the disciplinary authority or the appellate Kumar Virender 2013.09.03 16:07 I attest to the accuracy and integrity of this document CWP No. 480 of 1991 14 authority shocks the conscience of the court then the court would appropriately mould the relief either by directing the disciplinary/ appropriate authority to reconsider the penalty imposed or to shorten the litigation it may make an exception in rare cases and impose appropriate punishment with cogent reasons in support thereof. It is also clear from the above noted judgments of this court, if the punishment imposed by the disciplinary authority is totally disproportionate to the misconduct proved against the delinquent officer, then the court would interfere in such a case."
Reference may also be made to the judgments of the Hon'ble Supreme Court in Union of India v. Ganayutham (1997) 7 SCC 463, Ex- Naik Sardar Singh v. Union of India (1991) 3 SCC 213 and Om Kumar v. Union of India (2001) 2 SCC 386, which reiterate the same proposition.
In Civil Appeal Nos. 5162-63 of 2013 - Jai Bhagwan vs. Commr. Of Police & Others, decided on 05.07.2013, the Hon'ble Supreme Court has held as under:-
"15. In the totality of these circumstances, we are of the view that while dismissal from service of the appellant is a harsh punishment the order for dismissal could be substituted by an order of reduction to the rank of a constable with the direction that while the appellant shall have the benefit of continuity of service he shall not be entitled to any arrears of pay or other financial benefits for the period between the date of dismissal and the date of his reinstatement against the lower post of constable. We are conscious of the fact that this Court could in the ordinary course remit the matter back to the disciplinary authority for passing a fresh order of punishment considered proper but we are deliberately Kumar Virender 2013.09.03 16:07 I attest to the accuracy and integrity of this document CWP No. 480 of 1991 15 avoiding that course. We are doing so because the order of dismissal of the appellant was passed in the year 2001. A remand at this distant point of time is likely to lead to further delay and litigation on the subject which is not in the interest of either party. We have, therefore, upon an anxious thought as to the quantum of punishment that is appropriate taken the un-usual but by no means impermissible course of reducing the punishment to the extent indicated above."
In view of the settled principles of law and in the light of the judgments of the Hon'ble Supreme Court, this Court would have remanded the case to the authorities for reconsideration with regard to the punishment, but the same is not being done, firstly, the petitioner has already expired and the petition is being pursued by his legal heirs, secondly, the matter is pending since 1991 already more than 22 years have elapsed. The default of the petitioner was first default of consuming liquor which is otherwise permitted after getting authorized supply from the official canteen of the CRPF. There is no absolute bar for consumption of liquor by the members of the disciplined force, rather it is provided in the inclement weathers as well as during the off duty hours, but only from the authorized canteen. The petitioner has joined the respondent - Force on 06.10.1983 and has rendered service for about 7 years. The punishment of removal from service of the petitioner, in the peculiar facts of the present case, is harsh. Hence, the order of removal from service is substituted by an order of stoppage of one annual increment with cumulative effect. The petitioner shall have the benefit of continuity of service till his death, but Kumar Virender 2013.09.03 16:07 I attest to the accuracy and integrity of this document CWP No. 480 of 1991 16 shall not be entitled to any arrears of pay or other financial benefits for the period between the date of removal till the date of death of the petitioner.
In the aforesaid terms, the impugned orders are modified. Since the petitioner has died, the respondent authorities shall examine the issue with regard to benefits he may be entitled to in accordance with law and if the petitioner (deceased) is found so entitled, the same shall be paid to his legal heirs within a period of six months from the date of receipt of certified copy of this order.
The instant writ petition is disposed of in the aforesaid terms.
August 31, 2013 [ Paramjeet Singh ]
vkd Judge
Kumar Virender
2013.09.03 16:07
I attest to the accuracy and
integrity of this document