Jammu & Kashmir High Court
Madan Lal vs Union Of India Through Home Secretary on 30 January, 2024
Author: Javed Iqbal Wani
Bench: Javed Iqbal Wani
Serial No. 01
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Case:- SWP No. 188/2007
Madan Lal
S/o Sh. Behari Lal R/o Village Aner Post Office
Ghiala Tehsil Pathankot and District Gurdaspur
(Punjab) Age 34 years.
.....Petitioner(s)
Through: Mrs. Surinder Kour, Sr. Advocate with
Ms. Manpreet Kour, Advocate.
Vs
1. Union of India through Home Secretary,
Ministry of Home Affairs, Govt. of India, New Delhi.
2. Director General of Police, CRPF,
CGO Complex, Lodhi Road, New Delhi.
3. Inspector General of CRPF, Block No. II,
Old Secretariat Building, New Delhi.
4. Deputy Inspector General of Police,
Group Centre CRPF, C/o 56 APO.
5. Additional Deputy Inspector General of Police,
Group Centre CRPF, Bhopal.
6. Commandant, 89 Bn. CRPF C/o 56 APO.
7. Sh. S. S. Sandhu, Commandant, 89 Bn.
CRPF C/o 56 APO.
..... Respondent(s)
Through: Mr. Vishal Sharma, DSGI.
Coram: HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE
ORDER
(30.01.2024) (ORAL)
1. In the instant petition filed under Article 226 of the Constitution of India, the petitioner implores for the following reliefs:
(i) To quash order No. P.VIII.89/2005-Estt.III dated September 2006, received on 25th of September, 2006 issued by DIGP, CRPF by which the petitioner has been awarded punishment of removal from service with effect from the date of serving of this order and also to quash charge sheet framed against the petitioner and also to quash departmental enquiry proceedings, by issuance of writ of certiorari;
(ii) To issue directions to the respondents to consider the case of the petitioner for reinstatement and to allow the petitioner to resume/perform the duties on the post of Constable on which the petitioner was working prior to the issuance of order of removal from service and also to pay salary to the petitioner on the post of Constable (GD) and also to give consequential 2 SWP No. 188/2007 benefits of service to the petitioner and to treat the period with effect from the date of removal from service to the date the petitioner re-joins the Unit "on duty", by issuance of writ of mandamus;
(iii) To issue directions to the respondents restraining them to treat the period with effect from 25th September 2006 to the date the petitioner re-joins the Unit as "break in service", by issuance of writ or prohibition;
(iv) To issue directions to the respondents to produce all original record of departmental/inquiry proceedings before this Hon'ble Court, by issuance of writ of mandamus;
(v) To declare Order No. P.VIII.89/2005-Estt.III dated September, 2006 received on 25th of September, 2006 issued by DIGP, CRPF by which the petitioner has been awarded punishment of removal from service with effect from the date of serving of this order and the charges and departmental enquiry proceedings, as ultra virus, illegal, arbitrary, unconstitutional, unjust and contrary to the provisions of CRPF Act and Rules and also against the provisions of principles of natural justice, by issuance of writ of mandamus; Or
(vi) To issue any other writ, order or direction which the Hon'ble Court may deem just and proper in the facts and circumstances of the case."
2. The facts under the shade & cover of which the aforesaid reliefs have been prayed by the petitioner are that the petitioner came to be appointed as a Constable in the Central Reserve Police Force (for short "CRPF") on 26.02.1991 under No. 910890222 and that he had drawn a 9 mm Pistol Butt No. 06 Body No. 2975 Magazine and its 10 live rounds from C/89 Kote at Bilaspur on 31.10.2003 while escorting with QRT/89 of the Commandant-Sh. S.S. Sandhu to Ambikapur (Chhatisgarh) for performing election duties and after performing the said duties, the QRT/89 along with the Commandant moved to Raipur for dropping him at Airport on 05.12.2003 and while leaving Raipur Airport, the said Commandant handed over the said Pistol along with 10 live rounds to the petitioner with a direction to deposit the same in C-89 Kote, Bilaspur and that the petitioner returned back to Ambikapur on 06.12.2003, however, could not 3 SWP No. 188/2007 deposit the Pistol in question in C-89 Kote, as the company in which he was deputed was deployed at far off place from the Unit Headquarter and on 07.12.2003, the petitioner reached Rourkela (Orissa) in the evening, where no Kote was functioning and the petitioner again was unable to deposit the Pistol and was, as such, compelled to retain the same in his custody and the said fact was also known to Sub Inspector Jai Singh Tomer, who was ordered to proceed to Unit Hqr./89 Ferozpur (Punjab) on 08.12.2003 by Adjutant/89-Shri Amit Choudhary and the petitioner being part of the said company commenced his journey also to Unit Headquarter 89 Ferozpur and during the travel in the train suitcases of the petitioner containing the pistol and magazine in question as well as of Sh. Sunil Kumar, DC were stolen enroute and that the petitioner informed SI-Jai Singh Tomer about the same and a search was also made and consequently an FIR was lodged at Jhansi and that on 23.02.2005 and that false and frivolous charges were leveled against the petitioner, alleging neglect of duty/remissness in discharge of his duty, by the respondents in terms of section 11(1) of the CRPC Act, 1949 (for short, the "Act of 1949") alleging therein that the petitioner lost the Pistol in question alongwith 10 live rounds and one magazine from his possession and that similar charges were also leveled against SI-Jai Singh Tomer and that on the basis of the said charges leveled against the petitioner, the respondents conducted an enquiry not in breach of the provisions of the Act of 1949 and CRPF Rules of 1955 (for short, the "Rules of 1955") and in terms of order dated September, 2006, the respondents removed the petitioner from service with effect from the date of serving of the order and feeling aggrieved whereof, 4 SWP No. 188/2007 the petitioner preferred an appeal to the Inspector General of Police, CRPF, which, however, was not decided, necessitating filing of the instant petition.
3. The petitioner has maintained the instant petition on the following grounds:-
a) That the act and order of respondents is against the law and rules, so the same is not sustainable.
b) That the petitioner was performing the duties quite efficiently and honestly and with full dedication. The petitioner was selected for escort duty of Unit Commandant after appreciating the best performance of shooting skills. The petitioner was performing the duty of Commandant's escort for the last 6/7 years and the petitioner performed the duties while the Unit was deployed in highly sensitive areas of Tripura and there is no allegation or remissness against the petitioner for discharging the duties which is clear from the records of the petitioner. Shri S. S. Sandhu, Commandant has always ordered the petitioner to draw the weapon for him whereas it is the duty of the officer to draw the weapon by himself instead of asking to any other person. The petitioner always obeyed the verbal order of his superiors/Unit Commandant. The petitioner along with QRT returned to Ambikapur in the late evening of 6"^ of December, 2003. The petitioner was unable to deposit the same as the Company was deployed far away from the Unit headquarter and also moved out to Unit Headquarter Ferozpur (Punjab). The petitioner started journey along with party of the Company who is also going to Unit Headquarter to undergo SCC SL No. 24.
The suitcase of the petitioner was stolen in the route and the suitcase of one Shri Sunil Kumar, DC was also stolen. The petitioner has also informed 81, Jai Singh Tomer. Research was made and the Commandant was also informed. FIR was lodged in Jhansi. The respondents without following the provisions of law, imposed punishment of removal from service on the petitioner and deprived the petitioner from his valuable right of service.
c) That the act of respondents is illegal on the ground that the respondents have imposed punishment on the petitioner under Section 11 (1) of CRPF Act read with Annexure 2 to Rule 14 of CCS(CCA) Rules 1965 which amounts to violation of provisions of Article 3 I 1 of the Constitution of India and also amounts to violation of provisions of CRPF Act and Rules. The respondents have imposed punishment which is against the provisions of law that too without following the provisions of CRPF Act. The petitioner has not done any act which amounts 5 SWP No. 188/2007 to misconduct after joining service and Section 11 can only be invoked when a member of the Force is found guilty of disobedience or neglect of duty or remissness in discharge of any duty or any other misconduct in his capacity as a member of the Force and in the present case, the petitioner has not committed any offence after joining the service. So the respondents without following the provisions of law, imposed punishment of removal from service on the petitioner which is harsh.
d) That the act of respondents is illegal and an error apparent on the face of record on the ground that the respondents have not conducted proper inquiry as required under Rule 27 of CRPF Rules. Under Rule 27, procedure for conducting departmental inquiry is prescribed and under the provisions of this Rule, the substance of accusation shall be reduced to the form of written charge which should be as precised as possible and the charge may be read over to the accused and copy of it is given to the accused at least 48 hours before commencement of the inquiry and at the commencement of the inquiry, the accused shall be asked to enter a plea of guilty or not guilty after which the evidence necessary to establish the charge shall be let in. The evidence shall be material to the charge and may be oral or documentary. The evidence is to be recorded in presence of the accused and the accused has to be given a right to cross-examine the witnesses. The accused has to be given an opportunity to file written statement and the list of witnesses and to produce the witnesses in his defence and the officer conducting inquiry give a reasonable time to the accused and in the present case, the respondents have not followed the provisions of Rule 27. Though the respondents have mentioned in the order that the That the act of respondents is illegal and an error apparent on the face of record on the ground that the respondents have not conducted proper inquiry as required under Rule 27 of CRPF Rules. Under Rule 27, procedure for conducting departmental inquiry is prescribed and under the provisions of this Rule, the substance of accusation shall be reduced to the form of written charge which should be as precised as possible and the charge may be read over to the accused and copy of it is given to the accused at least 48 hours before commencement of the inquiry and at the commencement of the inquiry, the accused shall be asked to enter a plea of guilty or not guilty after which the evidence necessary to establish the charge shall be let in. The evidence shall be material to the charge and may be oral or documentary. The evidence is to be recorded in presence of the accused and the accused has to be given a right to cross-examine the witnesses. The accused has to be given an opportunity to file written statement and the list of witnesses and to produce the witnesses in his defence and the officer conducting inquiry give a reasonable time to the accused and in the present case, the respondents have not followed the provisions of Rule 27. Though the respondents have mentioned in the order that the prosecution 6 SWP No. 188/2007
e) That the act of respondents is against the provisions of Rule 14(8) of CCS(CCA)Rules 1965 as the respondents have imposed a major, excessive and disproportionate punishment on the petitioner i.e. removal from service without conducting proper inquiry as required under Rule 14 of CCS (CCA) Rules 1965. Before starting enquiry under Rule 14 of CCS (CCA) Rules, the respondents have to conduct preliminary inquiry thereby given an opportunity to the petitioner to file defence evidence against the alleged allegations and after appreciating the reply of the petitioner, the respondents have to pass an order for conducting inquiry under Rule 14 (8) of CCS (CCA) Rules 1965. The respondents have not mentioned that inquiry was conducted while the respondents have not mentioned that what procedure has been adopted and whether any inquiry was conducted as required under Rule 27 of the CRPF Rules and Rule 14 (8) of CCS (CCA) Rules 1965. While from the order it is clear that the respondents have not conducted proper inquiry and without following the procedure removed the petitioner from service. The respondents have neither conducted any preliminary inquiry and nor afforded an opportunity of being heard and nor given copies of proceedings of either preliminary, or inquiry proceedings while it is against the provisions of law laid down by the Hon'ble Supreme Court of India. So it is settled law that if copies of the proceedings are not given to the delinquent it vitiates the whole trial. So it violates the provisions of Articles 14 and 16 of the Constitution of India.
f) That the act of respondents is against the provisions of CCS (CCA) Rules as under Rule 14 (8) of CCS (CCA) Rules 1965, a charge has to be framed and delinquent has to be afforded an opportunity to reply to the charge sheet and in the present case, though the respondents have framed charge but have not given an opportunity to the petitioner to reply to the charge sheet and after that the statement of witnesses are to be recorded and the persons has to be given a chance to cross-examine the witnesses and to produce the witnesses in his defence and also to submit defence statement before imposing major punishment but before that a preliminary has to be conducted and copies of proceedings have to be provided to the delinquent and in the present case, the respondents have not done anything while it is settled proposition of law and held by the Hon'ble Supreme Court of India that copies of the proceedings are to be provided to the delinquent before the delinquent has to produce any defence in his favour and in the present case, the respondents have not done anything and no proper proceedings were conducted in presence of the petitioner and it is clear that inquiry was an eye wash. The respondents have imposed punishment just for the purpose of imposing the punishment of removing the petitioner from service while the petitioner for the last eight years is performing escort duties with the Unit Commandant and there is no allegation till date against 7 SWP No. 188/2007 the petitioner, rather the services of the petitioner has been appreciated by the respondents. The respondents have deprived the petitioner from his right of service without any fault of the petitioner. So it violates the trial and also the provisions of Articles 14 and 16 of the Constitution.
g) That the order is also illegal and an error apparent on the face of record on the ground that the respondents have not intimated any sufficient reason in the order while awarding punishment of removal from service while the petitioner has not done any act for which such a serious punishment has to be awarded. While it is well settled proposition of law that even a person who has more than 4/5 red entries could not be removed from service on the basis of those red entries. The nature of offence, length of service, hard stations and difficulties in living etc. should have been considered by the concerned authority specially keeping in view the fact that the person has been adequately punished for each and every default and the offence committed by him while the petitioner has not done any act for which the petitioner has been imposed punishment and the respondents without appreciating any provisions of law has passed the order. The respondents have imposed the punishment which is harsh, disproportionate and not commensurate with the lapses and the punishment imposed shocks the conscious while it is settled law that the punishment should be commensurate with the lapses. The respondents have imposed the major punishment without affording an opportunity of being heard and without following the provisions of CRPF Act and Rules. Under the provisions of CRPF Rules, before imposing any major penalty, a person is to be afforded a reasonable opportunity to put forth his defence to rebut the allegations. In the present case, the respondents have not given an opportunity of being heard and have not served any adverse reports as required under the provisions of law. The respondents have dismissed the petitioner without affording an opportunity of being heard. The respondents have deprived the petitioner from his valuable right of service and have not given an equal treatment to the petitioner. So it violates the provisions of Articles 14 and 16 of the Constitution of India.
h) That the act of respondents is illegal on the ground that the order is a non-speaking order. The respondents have not given any cogent reason in the order. The petitioner has not committed any offence which amounts to misconduct, while it is a settled law that a single act of omission or commission which is done because of ignorance or innocence does not amount to misconduct or negligent. It is a settled law that the discretion is not to be whimsical or tactical. In the present case, it clearly shows that the punishment awarded to the petitioner is excessive and disproportionate and it has been granted without following any provisions of law and without affording an opportunity of being heard and without following the provisions of principles of natural justice. More over, a person has to be discharged/removed from service after considering his lapses and the lapse done by the petitioner is not serious which warrants his discharge 8 SWP No. 188/2007 from service. Moreover, the petitioner has not done any act which amounts to mis-conduct after joining service. The petitioner has been performing escort duties with the Commandant and it is not the fault of the petitioner but the Commandant is also at fault because under Rule, every person has to keep his weapon with him and not to give it to any other person. In the present case, the Commandant has handed over Pistol and it ten rounds to the petitioner for being deposited in the Kote. The petitioner was travelling with the Company and in the way suitcase of the petitioner along with one Sunil Kumar was misplaced and FIR was lodged and the Commandant was also informed. The respondents have not conducted any enquiry and imposed major punishment on the petitioner. So it violates the provisions of Articles 14 and 16 of the Constitution of India.
i) That the writ petition is maintainable as there is breach of mandatory provisions of law. The present writ petition is also maintainable because the petitioner has availed alternative remedy by filing statutory appeal and the appeal is pending with the respondents because it is held by the Hon'ble Supreme Court of India that availing alternative remedy of statutory appeal is a rule of discretion and not compulsion and in the present case, the respondents have not followed the provisions of law and there is a breach of mandatory provisions of law and the provisions of CRPF Act and Rules and also against the CCA (CCA) Rules. The respondents have not given a chance to the petitioner to defend his case properly and neither given any chance to produce any witness in his defence. Moreover, under the provisions of law , enquiry proceedings are to be done in the language which the accused/court understand but in the case of petitioner the petitioner has no knowledge in which language it is decided while the respondents have taken the statement in which language, the petitioner is not fully aware of proper and accurate Hindi language. The respondents have not decided the appeal of the petitioner till date. So the petitioner is condemned unheard. The present petition is also maintainable on the ground that the order of discharge was served on the petitioner at his location at Srinagar, as at that time the Unit of the petitioner was located at Srinagar. So the Hon'ble Court has got the jurisdiction to adjudicate upon the writ petition.
j) That the act of respondents is illegal on the ground that the respondents have not followed the procedure and passed the order in a mechanical manner and it is settled law that the employee has a right to defend himself in an inquiry and it is independent right of the employee and if the right has not been given to the delinquent, the aggrieved employee can challenge the order if it is bad in law and in the present case, it is clear that the respondents have not followed any provisions of CRPF Act and Rules. The respondents have not considered the representations and non-consideration and non- application of mind to a relevant factor renders the exercise of discretion manifestly erroneous and it calls 9 SWP No. 188/2007 for judicial interference and it is settled law that the discretion must be exercised reasonable, so in the present case, the respondents have not followed any provisions of law and passed the order without appreciating the provisions of law. The Hon'ble Court has got the power of judicial review and there is a breach of procedure and where there is a breach of procedure, the Hon'ble Court has got the power of judicial review. In the present case, the respondents have not followed any provisions of law. The respondents have not followed any provisions of law. The respondents have issued the order and imposed the punishment and deprived the petitioner from his valuable right of service. So the Hon'ble Court has got the power of judicial review. The respondents have passed the order which is bad in the eyes of law. So the order is not sustainable.
4. Reply/counter affidavit has been filed by the respondents to the petition, opposing and controverting the contentions raised and grounds urged in the petition on the premise that the petitioner was issued the Pistol in question alongwith one magazine and 10 live rounds on behalf of the Commandant 89 Battalion on 31.10.2003 while being deployed in the State of Chhatisgarh in connection with holding of assembly elections of 2003 and upon completion of the election duty, the Pistol in question was handed over back by the Commandant to the petitioner on 06.12.2003 at Raipur Airport in front of QRT (Quick Reaction Team) with a direction to deposit the same with C/89 Kote and upon departure of the Commandant, the QRT left the Airport under the command of SI-Jai Singh Tomer and that the depositing of the Pistol in question was not ensured either by the petitioner or by the SI Jai Singh Tomer into Kote, as directed by the Commandant and instead, the Pistol remained under the custody of the petitioner even after the petitioner, SI-Jai Singh Tomer came to be directed by Sh. Amit Choudhary Adjutant to move to 89 Battalion Headquarter Firozpur in the early morning on 08.12.2003 and the petitioner instead of informing Sh. Amit Choudhary, Adjutant about the custody of the Pistol continued to retain its custody and kept the same in his suitcase and commenced his journey alongwith SI-Jai Singh Tomer to 89 Battalion Headquarter Firozpur and enroute while travelling in the train, namely, Utkal 10 SWP No. 188/2007 Express found the suitcase containing the Pistol missing and reported its theft to SI-Jai Singh Tomer and thereafter, got an FIR registered about the same at Gawalior as also telephonically informed about the incident to the Battalion Head Quarter Firozpur and that a complaint as well came to be lodged in this regard by the petitioner as also SI-Jai Singh Tomer at G.R.P. P/S Jhansi, whereafter the petitioner and SI-Jai Singh Tomer, reached back to Battalion Headquarter on 11.12.2003 A.N and owing to the acts of omission and commission committed by both the petitioner and the SI-Jai Singh Tomer, the respondent No. 4 herein-Deputy Inspector General of Police, Group Centre CRPF, C/o 56 APO issued and served a Memorandum dated 16.02.2005 upon the petitioner and the SI-Jai Singh Tomer while directing holding of departmental inquiry against the petitioner and the SI-Jai Singh Tomer after framing the charge-sheet dated 25.06.2005 containing the statement of Articles of charge and statement of imputation of misconduct in support thereof, whereupon a Departmental enquiry in accordance with the rules was held and conducted against the petitioner and SI Jai Singh Tomer and consequently, the petitioner was removed from service and the punishment of reduction of five stages in the time scale for a period of five years w.e.f. issuance of the order was awarded against SI-Jai Singh Tomer besides stipulating that the SI Jai Singh Tomer will not earn any increments during the period of reduction and also that the reduction will have effect of postponing of future increments of pay.
5. It is being further averred in the reply that the enquiry against the petitioner came to be conducted as per the provisions contained in Rule 27 of the Rules of 1955 and that the petitioner was given ample opportunity to defend during the course of the enquiry and in fact the petitioner remained associated in the enquiry and in fact confessed to the guilt of the charges framed against him 11 SWP No. 188/2007 and that the petitioner did not submit any material and documents, which could negate the charges framed against him.
6. It is being further stated that the petitioner at no point of time sought assistance of any other government servant for defending his case during the enquiry proceedings as is envisaged under Rule 14 of the CCS (CCA) Rules of 1965 and that the petitioner during the course of holding of the enquiry did not raise any kind of objections as to the mode and manner of holding of the enquiry.
7. Rejoinder affidavit has been filed by the petitioner to the reply/counter affidavit filed by the respondents, wherein the stand taken by the petitioner in the petition essentially is being reiterated, besides it is being further stated in the rejoinder affidavit that copy of the charges was never given to the petitioner before the commencing of the inquiry nor were else the documents attached thereto furnished to the petitioner and that the same infact were provided to the petitioner only after the issuance of the impugned order of punishment.
8. It is being further stated that the respondents discriminated the petitioner in the matter of holding of the enquiry in question, as also the award of punishment vis-à-vis SI-Jai Singh Tomer, as the charges leveled against the petitioner and the said SI-Jai Singh Tomer were identical, yet a lesser punishment came to be imposed upon the said SI-Jai Singh Tomer and harsh punishment of removal from the service came to be imposed on the petitioner.
9. It is further stated in the rejoinder affidavit that the petitioner during the course of the enquiry was never provided any documents or else an opportunity to cross examine the witness or to produce any witness in support of his defence.
12 SWP No. 188/2007Heard learned counsel for the parties and perused the record.
10. Before proceeding to address the issues raised in the instant petition, it would be appropriate and advantageous to refer to Section 11 of the Act of 1949 and Rule 27(C) of the Rules of 1955 being relevant herein:-
11. Minor punishments.--
(1)The Commandant or any other authority or officer as may be prescribed, may, subject to any rules made under this Act, award in lieu of, or in addition to, suspension or dismissal any one or more of the following punishments to any member of the Force whom he considers to be guilty of disobedience, neglect of duty, or remissness in the discharge of any duty or of other misconduct in his capacity as a member of the Force, that is to say,--
(a)reduction in rank;
(b)fine of any amount not exceeding one month's pay and allowances;
(c)confinement to quarters, lines or camp for a term not exceeding one month;
(d)confinement in the quarter-guard for not more than twenty-eight days, with or without punishment drill or extra guard, fatigue or other duty; and
(e)removal from any office of distinction or special emolument in the Force.
(2)Any punishment specified in clause (c) or clause (d) of sub-section (1) may be awarded by any gazetted officer when in command of any detachment of the Force away from headquarters, provided he is specially authorised in this behalf by the commandant. (3)The Assistant Commandant, a company officer or a subordinate officer, not being below the rank of subedar or inspector, commanding a separate detachment or an outpost, or in temporary command at the headquarters of the Force, may, without a formal trial, award to any member of the Force who is for the time being subject to his authority any one or more of the following punishment for the commission of any petty offence against discipline which is not otherwise provided for in this Act, or which is not of a sufficiently serious nature to require prosecution before a criminal court, that is to say,--
(a)confinement for not more than seven days in the quarter- guard or such other place as may be considered suitable, with forfeiture of all pay and allowances during its continuance;
(b)punishment drill, or extra guard, fatigue or other duty, for not more than thirty days with or without confinement to quarters, lines or camp;
(c)censure or severe censure:
13 SWP No. 188/2007Provided that this punishment may be awarded to a subordinate officer only by the Commandant.
(4)A Jemadar or sub-inspector who is temporarily in command of a detachment or an outpost may, in like manner and for the commission of any like offence, award to any member of the Force for the time being subject to his authority any of the punishments specified in clause
(b) of sub-section (3) for not more than fifteen days.
A bare perusal of the Section 11 (supra) postulates that the Section indicates that the authorities under Act who are empowered to award punishment of dismissal or removal of a member of the force, who is found guilty and in addition to or in lieu thereof, the minor punishment mentioned in the clauses „a‟ to „e‟.
11. 27(A).......
(B).......
(C) The procedure for conducting a departmental enquiry shall be as follows:
(1) The substance of the accusation shall be reduced to the form of a written charge, which should be as precise as possible. The charge shall be read out to the accused and a copy of it given to him at least 48 hrs. before the commencement of the enquiry.
(2) At the commencement of the enquiry the accused shall be asked to enter a plea of "Guilty" or "Not Guilty"
after which evidence necessary to establish the charge shall be let in. The evidence shall be material to the charge and may either be oral and documentary; if oral;
(i) It shall be direct;
(ii) It shall be recorded by the Officer conducting the enquiry himself in the presence of the accuse;
(iii) The accused shall be allowed to cross examine the witnesses.
(3) When documents are relied upon in support of the charge, they shall be put in evidence as exhibits and the accused shall, before he is called upon to make his defence, be allowed to inspect such exhibits. (4) The accused shall then be examined and his statement recorded by the officer conducting the enquiry. If the accused has pleaded guilty and does not challenge the evidence on record, the proceedings shall be closed for orders. If he pleads "Not guilty", he shall be required to 14 SWP No. 188/2007 file a written statement, and a list of such witnesses as he may wish to cit in his defence within such period, which shall in any case be not less than a fortnight, as the officer conducting enquiry may deem reasonable in the circumstances of the case. If he declines to file a written statement, he shall again be examined by the officer conducting the enquiry on the expiry of the period allowed.
(5) If the accused refuses to cite any witnesses or to produce any evidence in his defence, the proceedings shall be closed for orders. If he produces any evidence the officer conducting the enquiry shall proceed to record the evidence. If the officer conducting the enquiry considers that the evidence of any witness or any document which the accursed wants to produce in his defence is not material to the issues involved in the case, he may refuse to call such witness or to allow such document to be produced in evidence, but in all such cases he must briefly record his reasons for considering the evidence inadmissible. When all relevant evidence has been brought on record, the proceedings shall be closed for orders.
(6) If the Commandant has himself held the enquiry, he shall record his findings and pass orders where has power to do so. If the enquiry has been held by any officer other than the Commandant, the officer conducting the enquiry shall forward his report together with the proceedings, to the Commandant, who shall record his findings and pass orders, where he has power to do so.
A bare perusal of the rule supra tends to show that in holding a department enquiry against a delinquent member of the force, the mandate of the Rule 27 requires the enquiry officer to hold the inquiry in tune therewith, contemplating both situations, where a member or Force enters a "plea of guilty" or "not guilty."
12. Perusal of the enquiry record produced by the counsel for the respondents would reveal that the respondent No. 4 served the memorandum dated 23.02.2005, accompanied with Annexure I and II being statement of Articles of charges framed against the petitioner and SI-Jai Singh Tomer, as also the statement of imputation of misconduct in support of Articles of charge, 15 SWP No. 188/2007 respectively, on 25.06.2005 and as a token of acceptance, the petitioner signed the said Memorandum accompanying the Annexures I & II (supra).
13. Further perusal of the record of the enquiry would reveal that the enquiry officer on 28.09.2005 called upon the petitioner as to whether he enters the plea of guilty or not guilty, to which the petitioner pleaded guilty as follows:-
"Yes sir, I No. 910890222CT (GD) Madan Lal plead guilty to this charge."
14. Perusal of the record of enquiry would also reveal that the enquiry officer notwithstanding the plea of guilty entered by the petitioner proceeded to hold the enquiry against the petitioner, as also SI Jai Singh Tomer and in the process examined witnesses, namely, Assistant Commandant, Sham Kishore Singh, Constable A. K. Bali and Amit Choudhary, Hawaldar whose statements tend to show that the petitioner during the course of the examination of the said witnesses had been provided a chance to cross-examine the said witnesses, but the petitioner has declined to cross-examine the said witnesses.
15. The further perusal of the enquiry would reveal that upon completion of the same inasmuch as the plea of guilty entered by the petitioner without their being any challenge to the evidence on record, the enquiry officer closed the enquiry proceedings and called upon the petitioner to file a written statement, in response to which, the petitioner submitted a written statement, perusal whereof would reveal that the petitioner did not raise any objection either to the holding and manner of enquiry by the enquiry officer or to the charges leveled against him, so much so, also did not seek any opportunity to produce any evidence in defence thereto.
16 SWP No. 188/200716. A further closer examination of the record of enquiry would also reveal that the enquiry officer thereafter taking into consideration the written statement submitted by the petitioner, forwarded the enquiry report to the respondent No. 4, who whereupon considering the same, passed the order of removal of the petitioner from service.
17. Considering the aforesaid provisions of law, as contained in the Section 11 of the Act of 1949 and Rule 27 of the Rules of 1955 including the record of enquiry, it is manifest that the respondents have proceeded against the petitioner in line and tune with the provisions of the said provisions of the Act and Rules (supra), be it the drawing, framing of Articles of charge, statement of Articles of charge, statement of imputation of misconduct, service of the same upon the petitioner and thereafter the procedure for holding an inquiry in the said charge by the enquiry officer till the issuance of order of removal from service.
18. The discrimination alleged by the petitioner qua SI-Jai Singh Tomar in the matter of holding enquiry and award of a lesser punishment to him, prima facie, is misconceived, in that, the gravity of misconduct alleged against the petitioner have had been distinct and different and in fact of a high magnitude as that of against the said SI-Jai Singh Tomar. The said Jai Singh Tomar admittedly was not holding the custody of the Pistol as was entrusted to the petitioner by the Commandant with a direction to him to deposit the same before the concerned authorities and that the petitioner was not authorized to retain the custody of the said Pistol with him and to travel alongwith the same. The said SI-Jai Singh Tomar instead have had been assigned the duties of commanding 17 SWP No. 188/2007 the Unit after the Commandant left the charge of the Unit at the Airport till the time the Adjutant Assistant Commandant Mr. Amit Choudhary took over the charge therefrom. The petitioner in his own capacity being a member of the Armed Forces have had to display utmost discipline, devotion and dedication towards his duty, particularly, in the matter of custody and the deposit of the Pistol in question and under no circumstances was required to retain the custody of the Pistol and to travel along with the same while keeping the said Pistol in his suitcase. The said acts of omission and commission cannot by any stretch of imagination said to be having any parity with that of the acts of omission and commission of said SI Jai Singh Tomar.
19. Viewed thus, what has been observed, considered and analyzed hereinabove, the case set up by the petitioner in the instant petition while seeking the aforesaid reliefs fails against the respondents. Resultantly, the petition merits dismissal and is, accordingly, dismissed.
(JAVED IQBAL WANI) JUDGE JAMMU 30.01.2024 Shivalee Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No