Document Fragment View

Matching Fragments

4. The principal ground raised in the writ petition is non-compliance of Rule 27(cc)(ii) of the CRPF Rules which provides that where the authority competent to impose the penalty is satisfied for reasons to be recorded by it in writing that it is not reasonably practicable to hold an enquiry in the manner provided in these rules, has not been complied and reasons have not been recorded and on the basis of finding recorded by the Court of Inquiry, the services of the petitioner's husband could not have been terminated without holding any departmental enquiry and without recording any reasons as per Rule 27(cc)(ii) of the CRPF Rules and thus, the impugned orders are liable to be set aside and the petitioner is entitled for full back-wages from the date of suspension till the date of his completion of the age of superannuation.

8. I have heard learned counsel for the parties and given thoughtful consideration to the rival submissions made herein-above and also went through the record with utmost circumspection.

9. It is the case of the respondents that in an incident held on 25-12- 2012, the petitioner's husband, who was employed as Sepoy under the Central Reserve Police Force (CRPF) and was posted at Aranpur, District Dantewada, killed his four colleagues and injured one person and thereby committed the offence under Sections 302 & 307 of the IPC. Accordingly, offence was registered against him and he was arrested on 25-12-2012 itself and he was suspended by order dated 28-12-2012 with effect from 25-12-2012 and immediately thereafter, as per Standing Order No.8/2001 dated 24- 4-2001, Court of Inquiry was conducted against him in which by report dated 8-2-2013, the Board of Officers of the Court of Inquiry recorded finding that Deep Kumar Tiwari is solely responsible for the alleged fratricide and accordingly, by order dated 6-3-2013, in exercise of power under the provisions contained in Article 311(2), second proviso clause (b), of the Constitution of India read with Rule 27(cc)(ii) of the CRPF Rules and Rule 19(ii) of the Rules of 1965, the petitioner's husband was dismissed from service for the alleged misconduct. Since the provisions contained in Article 311(2), second proviso clause (b), of the Constitution of India read with Rule 27(cc)(ii) of the CRPF Rules and Rule 19(ii) of the Rules of 1965 were invoked by the disciplinary authority and no enquiry was held against the petitioner's husband, it would be appropriate to notice paragraphs 4 to 9 of the order of the disciplinary authority

26. The next reason assigned by the disciplinary authority that since the petitioner's husband was lodged in District Jail, it will not be practically feasible to record his statement and conduct cross- examination of witnesses, is equally fallacious to note. It is the regular practice that if an accused is said to have committed the offence and he is lodged in jail and thereafter, criminal trial is conducted, he is produced from jail before the criminal court during the course of trial and criminal trial can be conducted for proving the offence while the accused is in jail. It is absolutely unacceptable to this Court that departmental enquiry of the delinquent CRPF personnel cannot be conducted in jail. If the delinquent CRPF servant is lodged in jail pending trial before the criminal court, departmental enquiry could have been conducted in the jail itself with the prior permission of the jail authorities in accordance with the rules, but to say and to conclude that departmental enquiry cannot be conducted at all in jail once the delinquent CRPF personnel is in jail, is too broad proposition and it cannot be accepted by any stretch of imagination, as it would amount to failure of justice and delinquent servant will be denied of reasonable opportunity to defend himself which will be violative of his constitutional right, rendering the departmental proceeding vulnerable and liable to be quashed, as the constitutional right conferred upon a delinquent cannot be dispensed with lightly or arbitrarily or merely in order to avoid the holding of an inquiry. As such, this would give no ground to the disciplinary authority under the rule to dispense with the enquiry and straightway invoke Rule 27(cc)(ii) of the CRPF Rules holding that it is not reasonably practicable to hold any enquiry in the manner provided in the CRPF Rules.

32. Therefore, the disciplinary authority has failed to place material to 10 (2006) 13 SCC 581 satisfy the Court that it was necessary to dispense with a formal enquiry in terms of proviso (b) to clause (2) of Article 311 of the Constitution of India read with Rule 27(cc)(ii) of the CRPF Rules. As such, the disciplinary authority has committed grave legal error in invoking Rule 27(cc)(ii) of the CRPF Rules and the reasons assigned by him are not the reasons and are based on whims and fancies of the disciplinary authority, as he swayed with the allegations against the petitioner's husband of committing murder of four CRPF persons and injuring one person. In consequence thereof, the order passed by the disciplinary authority as affirmed by the appellate authority, both, are hereby set aside. The revisional authority has also perpetuated the illegality by not entertaining the revision on merits and holding that revision is not maintainable since the petitioner has lost her husband in jail on 24- 4-2013. As such, the impugned order terminating the services of the petitioner's husband and the appellate and revisional orders are set aside.