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2000 DIGILAW 1034 (PAT)

V. S. Reddy And Biran Singh v. Union Of India

2000-08-22

R.M.PRASAD

body2000
Judgment R.M.Prasad, J. 1. In both the writ petitions, the question involved is common and the respondents are also common and as such after they were heard, orders were reserved for disposal together, as agreed upon by the learned Counsel for the parties. 2. In the first case (C.W.J.C. No. 10684 of 1999), the petitioner was a Constable and in the second case (C.W.J.C. No. 11162 of 1999) the petitioner was a Lance Naik in C.R.P.F. when a departmental proceeding was initiated against them. In the first case, the petitioner was charged for carrying V.C.P. of Sarpanch secretly to share illegal gain with Lance Nayak Biren Singh (petitioner of second case) and in the second case, petitioner Biran Singh was charged for accepting the V.C.P. of village Sarpanch from the petitioner of the first case and carrying it to his home. 3. In the departmental proceeding, the petitioners were awarded with punishment, vide Common Office Order No. P VIII. 15/95-133-EC II dated 17.1.1996. The petitioner of the first case was awarded with the punishment of 28 days confinement to Q.G. with one hour punishment drill every day with forfeiture of pay and allowances from the date of issue of the order whereas the petitioner of the second case was reduced to the rank of Constable for a period of one year with effect from the date of issue of order and the period of his reduction was to affect his seniority and future increments, etc. The suspension period from 22.4.1995 to 16.1.1996 was to be treated as such and that they would not be entitled to any other emoluments other than which they have already been paid as subsistence allowance. However, the said period of suspension was to be counted as dies non and not counted towards pension, leave and increments etc. 4. Later, the reviewing authority in exercise of the power under Rule 29(d) of the Central Reserve Police Force Rules, 1955 (in short the Rules) claims to have perused the entire proceeding thoroughly and found that the petitioners committed an act of serious misconduct in that they wilfully and dishonestly planned to carry VCP of village Sarpanch, Kunnoor District Warrangal (A.P.) to Unit Headquarters Mokamahghat and disposed of the same. The said charge was proved in the departmental proceeding. The said charge was proved in the departmental proceeding. According to the reviewing authority, though the offence committed by them is serious, yet a lenient view was taken by the disciplinary authority while awarding the punishment, which is not commensurate with the gravity of offence committed by them. As such, it has been held that since they committed offence of a serious nature, they deserve a more drastic punishment so that others could learn a lesson. Keeping in view the said facts, the reviewing authority, vide order dated 4th September, 1998, contained in Annexure-2, reviewed the entire proceedings and set aside the aforementioned order of punishments and directed for starting de novo enquiry against them immediately and to complete it expeditiously and pass suitable order on it under intimation to him. 5. Thereafter, fresh inquiry was conducted in which both the petitioners participated and they were afforded due opportunity to defend themselves. The enquiry officer submitted his report on 12.5.1999. The said inquiry report was supplied to both the petitioners who were requiseds to submit their defence against it within fifteen days. They submitted their defence on 10.7.1999 in which they accepted their guilt. The disciplinary authority, namely, the Commandant 133 Battalion, on consideration of the materials and the evidence on record and deposition of the witnesses found that the charges levelled against them were serious in nature and have been proved against them. Accordingly, did not find them fit to be retained in service. As such, in exercise of the power under Sub-rule (1) of Rule 27 of the Rules, he, vide order dated 28th August, 1999, contained in Annexure 3, awarded them with the punishment of dismissal from service with effect from the date of issue of the order. 6. The petitioners in both the writ petitions are aggrieved by the order dated 4.9.1998 of the reviewing authority as well as the aforementioned order dated 28th August, 1999 awarding fresh punishment of dismissal from service and have sought for quashing of the said orders. 7. 6. The petitioners in both the writ petitions are aggrieved by the order dated 4.9.1998 of the reviewing authority as well as the aforementioned order dated 28th August, 1999 awarding fresh punishment of dismissal from service and have sought for quashing of the said orders. 7. Learned Counsel for the petitioners in both the writ petitions has submitted that the reviewing authority has no authority to direct for de novo inquiry and thus the impugned order of punishment of dismissal from service is wholly without jurisdiction and bad in law, especially in the background of the fact that both the petitioners have already undergone through the punishment awarded earlier and the impugned order of dismissal has been passed after two years seven months of the initial order of punishment. According to the learned Counsel, Rule 29(d) of the Rules does not contemplate for successive inquiry/denovo inquiry and thus the procedure adopted by the reviewing authority was not only not warranted by the Rules but was to merely harass the petitioner. It is, thus, submitted that the impugned orders are mala fide, arbitrary, ultra vires Rule 29(d) of the Rules and wholly in violation of the principles of natural justice. Learned Counsel for the petitioners has placed reliance on a decision of the apex Court in the case of K.R. Deb V/s. Collector Central Excise Shillong -- . 8. Learned Counsel for the respondent have submitted that the petitioner cannot now take such objection when pursuant to the order, contained in Annexure-2, they participated in the inquiry taken de novo and finally the order, contained in Annexure-3, was passed awarding them with the punishment of dismissal from service. It has been submitted that the petitioners have been afforded with full opportunity in the said de novo inquiry and there is no infirmity in conduct of the inquiry which can vitiate the order of punishment, contained in Annexure-3. It has been submitted that the petitioners have been afforded with full opportunity in the said de novo inquiry and there is no infirmity in conduct of the inquiry which can vitiate the order of punishment, contained in Annexure-3. It has further been submitted by the learned Counsel for the respondents that the decision relied upon by the petitioner does not apply to the present case inasmuch as the rule pursuant to which the punishment was awarded in the said case was under Rule 15(1) of the Central Civil Services (Classification, Control and Appeal) Rules, 1957 whereas in the present case, the reviewing authority has exercised the power under Rule 29(d) of the Rules which empowers the Director-General or the Inspector-General or the Deputy Inspector-General to call for the records of award of any punishment and confirm, enhance, modify or annul the same, or make or direct further investigation to be made before passing such orders. Under its proviso, in a case in which it is proposed to enhance punishment, the accused is required to be given an opportunity to show cause either orally or in writing as to why his punishment should not be enhanced. As such, according to the learned Additional Standing Counsel appearing for the respondents, the reviewing authority on thorough perusal of the entire proceeding found that the petitioners committed an act of serious misconduct, yet lenient view was taken by the disciplinary authority which was not commensurate with the gravity of offence committed by them for which they deserve more drastic punishment so that others could learn a lesson and thus on review of the entire proceeding set aside the earlier order of punishment and directed for de novo inquiry as contemplated under Rule 29(d) of the Rules. 9. There may be some substance in the submission of the learned Standing Counsel that Rule 29(d) of the Rules empowers the Director-General or the Inspector-General or the Deputy Inspector-General to call for the records of award of any punishment and confirm, enhance, modify or annul the same, or make or direct further investigation to be made before passing such orders which may include de novo inquiry but according to the Concise Oxford Dictionary De novo means "starting again; a new" and the word further means "1 to or at a more advanced point in space or time (unsafe to proceed further). 2. 2. at a greater distance (nothing was further from his thoughts). 3. to a greater extent; more (will enquire further). 4. in addition; furthermore (I may add further)" and thus the power to direct further investigation under Rule 29(d) cannot, in my opinion, be de novo inquiry. 10. There is no provision in Rule 29(d) for completely setting aside previous inquiries and start it again, anew. Rule 29(d) only empowers the authority to call for records of award of any punishment and confirm, enhance, modify or annul the same and direct for further investigation and as such, the procedure adopted by the reviewing authority was not warranted under the Rules. The decision in the case of K.R. Deb V/s. Collector Central Excise Shillong (supra), may not have direct application to the facts of the present case, but there is one similarity that Rule 29(d) also does not contemplate for setting aside previous inquiries as in the case of Rule 15 of the Central Civil Services (Classification, Control and Appeal) Rules, 1957. Moreover, in the present case, the exercise of the power by the reviewing authority cannot be held to be legally justified after lapse of two years and seven months and that too when the petitioners have already served the punishment awarded to them earlier. The exercise of the power under Rule 29(d), in my opinion, must be within a reasonable time and not after the person is allowed to serve the punishment awarded before the exercise of such power. 11. Learned Additional Standing Counsel has submitted that the petitioners cannot now be permitted to turn around and question the jurisdiction of Inspector General of Police (respondent No. 3) in directing denovo inquiry against them inasmuch as they after submitting to the jurisdiction and taking part in the proceeding thereafter without objection on the ground that they did not have jurisdiction and after having failed in the said proceeding acquiesced their right, if any, to raise objection with regard to the jurisdiction. 12. Learned Counsel for the petitioners has submitted that the said objection was raised by filing a representation before the D-G. of Police but he did not decide the said representation and allowed the impugned order to be passed. 12. Learned Counsel for the petitioners has submitted that the said objection was raised by filing a representation before the D-G. of Police but he did not decide the said representation and allowed the impugned order to be passed. Moreover, in the facts and circumstances, where the petitioners were allowed to serve the punishment awarded to them earlier and the reviewing authority passed the order after lapse of two years and seven months, the principle of acquiescence shall not apply in their case. 13. This Court finds substance in the submission of the learned Counsel for the petitioners. There cannot be any dispute to the proposition that in general, a person who submits to the jurisdiction of an inferior Tribunal and takes part in the proceedings without objection on the ground that the Tribunal has no jurisdiction, cannot, after having failed in such proceedings, turn around and question the jurisdiction of the Tribunal in a petition under Article 226 of the Constitution but, in the present case, where pursuant to the earlier order the petitioners have been allowed to serve the punishment, the said principle cannot be made applicable and that too in the circumstances when the respondent reviewing authority himself slept over the matter for two years and seven months. In fact, in my opinion, in the facts and circumstances aforementioned, the second order of punishment amounts to imposition of punishment twice for the same charge, which is not permissible in law. 14. In the result, the writ petitions are allowed and the impugned order of punishment, contained in Annexure-3 in both the writ petitions, are quashed. However, in the facts and circumstances, there shall be no order as to costs.