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2009 DIGILAW 441 (JK)

Union Of India v. Mohinder Singh

2009-09-03

NIRMAL SINGH, SUNIL HALI

body2009
Sunil Hali, J. 1. By a common judgment dated 22-7-2000, the learned Single Judge allowed four writ petitions. The said judgment has been questioned by the appellants by filing four separate appeals. Since the petitions have been disposed of by a common judgment, these appeals are also being disposed of by a common judgment. 2. A departmental enquiry was held against the writ petitioners under section 11(1) of the CRPF Act and the Rules made there-under. The resultant affect of the departmental enquiry was that the writ petitioners -- respondents herein were found guilty of charges levelled against them and accordingly they were dismissed from service on 22-11-1993. In addition to this, forfeiture of pay and allowances and other benefits including the conferment of medals and decorations received by them, was also awarded to the writ-petitioners. 3. In LPA (SWP) No.471/2000, the allegations against Mohinder Singh, writ petitioner were that while serving in 24th Battalion, ITBP in Jammu and Kashmir, writ petitioner, Mohinder Singh became friendly with one Nazir, who had connection with militants. He was interrogated by the J&K Police for his alleged involvement with the militants. The allegations were that he had agreed to detonate a bomb at the residence of Director General of Police. He was put under arrest in the unit quarter guard under section 11 of the CRPF Act and the Rules framed thereunder. Disciplinary proceedings were initiated against the said writ petitioner. On being interrogated by the J&K Police, he was detained under the Public Safety Act(PSA). 4. In LPA( SWP) No. 472/2000, the allegations against Gurnam Singh, writ petitioner that while on duty in "A" Company 24th Battalion ITBP he established contact with one Mohd. Yousuf Constable in J&K Police. He received one pistol and time bomb from Mohd. Yousuf. It is further revealed that he was given 2 Kgs. explosive devices in a container of Verka Ghee. On being interrogated by the J&K Police, he was detained under the Public Safety Act. 5. In LPA (SWP) No. 50/2002, the allegations against Pardeep Kumar, writ petitioner were that while functioning in DGP Guard as Justice M.L. Bhats Guard at Guest House No. 1 at Srinagar in 24th Bn. ITBP, he came in contact with Mohd. Yousuf, an agent of militants outfit, who provided him explosive device to blast Guest House No.1. 6. 5. In LPA (SWP) No. 50/2002, the allegations against Pardeep Kumar, writ petitioner were that while functioning in DGP Guard as Justice M.L. Bhats Guard at Guest House No. 1 at Srinagar in 24th Bn. ITBP, he came in contact with Mohd. Yousuf, an agent of militants outfit, who provided him explosive device to blast Guest House No.1. 6. In LPA(SWP)No,341/2001, the allegations against Kulwant Singh, writ petitioner were that while functioning in DGP Guard as Justice M.L. Bhats guard at Guest House No. 1 at Srinagar, he met with one Mohd. Yousuf, who had links with the militants. He stated to have collected one grenade from Constable Mohd.Yousuf and exploded the same on the same day. 7. For disposal of these appeals, LPA(SW) No. 471/2000 is taken as the lead case. After detention the writ petitioner in the said LPA was lodged in District Jail, Kathua. 8. During his detention, he was served with charge sheet. The Enquiry Officer proceeded to hold the enquiry in the jail where the writ petitioner was lodged. He was asked to cross-examine the witnesses while he was under detention, which he refused to do on the ground that he wanted to seek the assistance of an Advocate. 9. Writ petitioner, Mohinder Singh was shifted alongwith others to Central Jail, Agra on 13-8-1993, where he was served with a show cause notice dated 17-10-1993 alongwith departmental enquiry proceedings. He was asked to make representation against the said show cause notice within a period of fifteen days of receipt of office memorandum. Having failed to make representation against the said show cause notice, he was dismissed from service w.e.f. 22-11-1993 with forfeiture of pay, allowances and other service benefits. 10. The order of dismissal was challenged by the aforesaid writ petitioner on the following grounds: a) That the enquiry was conducted against the writ petitioner while he was under detention and no opportunity was given to him to defend himself before the Enquiry Officer. b) That no legal assistance was provided to the writ petitioner nor he was given a chance to consult an Advocate during the course of trial. He has gone undefended in view of the fact that he could not manage his defence nor could he effectively participated in the enquiry proceedings while he was under detention. b) That no legal assistance was provided to the writ petitioner nor he was given a chance to consult an Advocate during the course of trial. He has gone undefended in view of the fact that he could not manage his defence nor could he effectively participated in the enquiry proceedings while he was under detention. c) That the witnesses who stated to have deposed against the writ petitioner were examined in his absence. He was only asked to cross examine the witnesses. d) That the enquiry proceedings have not been conducted in consonance with Rule 27 sub Rule-2 of the CRPF Rules, 1955. 11. The learned Single Judge after hearing the parties has allowed the petition and set aside the order of dismissal holding that no reasonable opportunity has been given to the writ petitioner to defend himself. 12. We have heard the learned counsel for the parties. Certain facts in the case are not in dispute. The enquiry was conducted against the writ petitioners-respondents herein admittedly when they were under detention. Charge sheet was served at Agra where they were shifted. In order to appreciate the arguments advanced by the learned counsel for the parties, it is necessary to state that enquiry against the writ petitioners was initiated in terms of Rule 27 sub clause -2, the same is reproduced as below: "The procedure for conducting a departmental enquiry shall be as follows : 1. The substance of the acquisition 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 hours 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 or 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 accused. iii) The accused shall be allowed to cross examine the witnesses. 3. The evidence shall be material to the charge and may either be oral or 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 accused. 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 be examined and his statement recoded 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 file a written statement, and a list of such witnesses as he may wish to cite 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 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 accused 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 he has power to do so. 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 he 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." 13. The import of the aforesaid rule requires following things were to be complied with: a) 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. b) The evidence shall be material to the charge. The recording of oral evidence shall be direct and it shall be recorded by the Officer conducting the enquiry himself-in presence of the accused. c) The accused shall be allowed to cross examine the witnesses. d) When the documents are relied upon in support of the charge, they shall be put in evidence as exhibits and the accused, before he is called upon to make his defence, be allowed to inspect such exhibits. 14. While scanning through the record of the case, it transpires that none of these procedural safeguards have been followed in the present case. A specific stand has been taken by the writ petitioners that they were lodged in Jail and no enquiry as such was conducted in their presence. The plea of guilty or not guilty was not recorded by the Enquiry Officer nor the witnesses were examined in presence of the accused. It is stated that the Enquiry Officer came to Central Jail, Kathua only for purpose of cross examining the witnesses, whose statements had already been recorded in absence of the accused. In essence, the case of writ petitioners is that they have been dismissed from service without hearing them. 15. In their reply, the appellants- respondents have stated that substance of acquisition which was reduced in the charge was delivered to the writ petitioner alongwith papers of enquiry on 6-3-1993 and the show cause notice was served on the writ petitioner on 17-10-1993 and was asked to make representation within fifteen days of the receipt of memorandum. 15. In their reply, the appellants- respondents have stated that substance of acquisition which was reduced in the charge was delivered to the writ petitioner alongwith papers of enquiry on 6-3-1993 and the show cause notice was served on the writ petitioner on 17-10-1993 and was asked to make representation within fifteen days of the receipt of memorandum. The appellants state that no response was received from the writ petitioner within the stipulated time, which consequently resulted in dismissal from service. 16. Perusal of the record reveals that there has been no compliance of Rule 27 Sub Clause-2. It is not in dispute that the writ petitioners were lodged in Central Jail, Kathua. The Enquiry Officer did not hold the enquiry in the Jail. He came to the jail only to have the witnesses cross examined by the delinquent officials, when their statements were already recorded in absence of the writ petitioners. The violation is per se and the appellants have not complied with Sub Clause-2 of Rule-27. 17. The other aspect of the matter is that no enquiry should have been conducted when the writ petitioners were lodged in Jail. It was not possible for the writ petitioners to defend themselves while they were under detention. They could not have sufficient assistance to defend themselves against serious charges which were levelled against them. Their plea to seek legal advice was refused. The writ petitioners were not allowed to consult a lawyer nor were they given an opportunity to engage a lawyer. This is in itself sufficient to indicate that the writ petitioners were not in a position to defend themselves. Rule of natural justice is not ideal formality, but it is to ensure that a fair chance is given to the delinquent official to defend himself while facing the enquiry. A reasonable opportunity in the present case would be that writ petitioners should have been allowed the assistance for legal advice or they could be given chance to seek legal advice so that they could defend themselves. 18. The essential feature of reasonable opportunity would mean that he be permitted to legal advise in order to defend himself. It may not be necessary for the appellants/ respondents to provide an Advocate to the delinquent official but it cannot be denied that right to consult an advocate or seek legal assistance, is not available to the delinquent. 18. The essential feature of reasonable opportunity would mean that he be permitted to legal advise in order to defend himself. It may not be necessary for the appellants/ respondents to provide an Advocate to the delinquent official but it cannot be denied that right to consult an advocate or seek legal assistance, is not available to the delinquent. The onus was more on the appellants/ respondents keeping in view the fact that the writ petitioner was under detention, where he could not reasonably in a position to defend himself without proper legal assistance. The concept of reasonable opportunity does not contemplate that the delinquent who is under detention can be proceeded without providing him an opportunity to defend his case. 19. It is not in dispute that in the present case, the Enquiry Officer had come to District Jail, Kathua alongwith ITBP officials. The only opportunity which was given to the writ petitioner, was to cross- examine the witnesses whose examination-in-chief was conducted in his absence. It is elementary rule of principle of natural justice that enquiry has to be conducted in presence of the delinquent official, which would include examining the witnesses in his presence, but the same has not been done in the present case. 20. The learned Single Judge has rightly come to the conclusion that no reasonable opportunity has been given to the writ petitioner to defend his case, the result of which is that the enquiry proceedings conducted are vitiated. The learned Single Judge has while allowing the writ petitions given right to the appellants/ respondents to hold fresh enquiry into the matter. 21. We find no reason to interfere with the judgment passed by the learned Single Judge. 22. Appeals are accordingly dismissed alongwith connected CMPs.