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2010 DIGILAW 570 (GAU)

Kangjam Ongbi Mema Devi v. Union of India

2010-08-12

BIPLAB KUMAR SHARMA, KETULHOU MERUNO

body2010
JUDGMENT B.K. Sharma. J. 1. Being aggrieved by the judgment and order dated 14.05.2004 passed by the learned Single Judge in WP (C) No. 747/1999, the writ Petitioner who is the widow of Late Lokendro Singh, who had been dismissed from service pursuant to a departmental proceeding has filed this writ appeal. 2. Shortly stated the facts leading to filing of the writ petition by the Petitioner are as follows. 3. The husband of the Petitioner while was serving as Head Constable in CRPF was placed under suspension by order dated 20.06.1996. Thereafter, he was served with memorandum of charge dated 29.06.1996 enclosing therewith the statement of articles of charges; statement of imputation of misconduct in support of articles of charges and the lists of documents and witnesses on the basis of which the articles of charges were proposed to be substantiated. By the said memorandum dated 29.06.1996, the husband of the Petitioner was furnished with the following information: 2. The inquiry shall commence at least 48 hours after the article of charge is read out to No. 750080022 HC K. Lokendro Singh and a copy of the same is given to him. 3. No. 750080022 HC K. Lokendro Singh is informed that if he does not appear in person before the Inquiry Officer or otherwise refuses to comply with the provisions of Rule 27 of the Central Reserve Police Force Rules, 1955 or orders/instructions issued in pursuance of the said rules, it will be presumed that it is not reasonably practicable to hold an inquiry in the manner provided in the rules and the inquiry against No. 750080022 HC K. Lokendro Singh shall be held ex-parte. 4. The two charges brought against the husband of the Petitioner are as follows: Article 1 That the said No. 750080022 HC K. Lokendro Singh of this CC while functioning as HC committed an office of misconduct in his capacity as a member of the Force under Section 11(1) of CRPF Act, 1949 read with Rule 27 of CRPF Rules, 1955 in that he took a sum of Rs. 25,000/-(Rupees twenty five thousand) only on 02.10.94 and 09.11.94 respectively from Shri Rabay Singh resident of Maidangkhunou, P.O. Keithelmanbi, Dist. Imphal in violation of Rule 16 of the CCS (Conduct) Rules, 1965 and is prejudicial to good order and discipline of the Force. 25,000/-(Rupees twenty five thousand) only on 02.10.94 and 09.11.94 respectively from Shri Rabay Singh resident of Maidangkhunou, P.O. Keithelmanbi, Dist. Imphal in violation of Rule 16 of the CCS (Conduct) Rules, 1965 and is prejudicial to good order and discipline of the Force. Article 11 That during the aforesaid period and while functioning in GC CRPF Imphal, the said No. 750080022 HC/CD K. Lokendro Singh was guilty of misconduct in his capacity as a member of the Force under Section 11(1) of CRPF Act, 1949 read with Rule 27 of CRPF Rules, 1955 in that he has taken money/undue gratifications from Shri Rabay Singh resident of Maidangkhunou, P.O. Kaithelmanbi, Dist. Imphal with a promise to recruit his son in the CRPF which is considered prejudicial to good order and discipline of the Force. 5. Immediately after issuance of the said charge sheet dated 29.06.1996 and even before the delinquent could respond to the same, the Enquiry Officer was appointed by order dated 01.07.1996 with the direction to complete the departmental enquiry within three months. By the said order, the delinquent, i.e. the husband of the Petitioner, was directed to appear before the Enquiry Officer within 48 hours. Be it stated here that the Memorandum of charges was issued under Rule 27 of the Central Reserve Police Force Rules, 1955. 6. From the materials on record, it appears that the delinquent had submitted the written statement of defence against the Memorandum of charge sheet denying the charges levelled against him. In the said written statement, the plea of the delinquent was that the amount involved was received by him from the person concerned on behalf of his sister-in-law, namely Smt. Bimola Devi, for business purpose as the husband of Bimola and the person concerned agreed to run a poultry farm. It was stated in the written statement that both of them had been good friends and doing business together in the past. It was contended that the amount was received by him on good faith on behalf of Smt. Bimola. 7. From the materials on record, it also appears that the deceased husband of the Petitioner had also submitted a defiance statement on 14.09.1996 reiterating the aforesaid stand and denying the charges leveled against him. It was contended that the amount was received by him on good faith on behalf of Smt. Bimola. 7. From the materials on record, it also appears that the deceased husband of the Petitioner had also submitted a defiance statement on 14.09.1996 reiterating the aforesaid stand and denying the charges leveled against him. It also appears that he had submitted a representation against the report furnished by the Enquiry Officer holding that both the charges leveled again him had been established. 8. By order dated 20.01.1997, the husband of the Petitioner was dismissed from service with further direction for recovery of the amount of Rs. 25,000/- indicated in the charge from the dues payable to him. It was also provided that the period of suspension would remain as such and the delinquent would not be entitled to anything else than what was paid as subsistence allowance. An appeal was preferred against the said order of dismissal urging various grounds. Unfortunately, during the tendency of the appeal the husband of the Petitioner died on 28.05.1997 due to some illness. Thereafter, the present Petitioner preferred a writ petition before this Court making a grievance against the aforesaid order of dismissal which was registered and numbered as Civil Rule No. 570/1997. The writ petition was disposed of by order dated 16.06.1997 with the direction to dispose of the aforesaid appeal preferred by the husband of the Petitioner and the subsequent representations made by the Petitioner herself. The Respondents were directed to consider the case of the Petitioner sympathetically and to redress her grievance as early as possible. 9. After the aforesaid order passed by this Court, the Appellant authority by its order dated 13.03.98 dismissed the appeal which was preferred by the husband of the Petitioner. Being aggrieved, the Petitioner filed the writ petition being W.P. (C) No. 747/99 and the same having been dismissed by the impugned judgment and order dated 14.05.2004, she has filed the instant appeal. 10. We have heard Mr. S. Sachindra, learned Counsel for the writ Petitioner/Appellant as well as Mr. N. Ibotombi Singh, learned CGSC representing the Respondents. We have also considered the entire materials on record including the records pertaining to the departmental enquiry produced by the learned CGSC. 11. 10. We have heard Mr. S. Sachindra, learned Counsel for the writ Petitioner/Appellant as well as Mr. N. Ibotombi Singh, learned CGSC representing the Respondents. We have also considered the entire materials on record including the records pertaining to the departmental enquiry produced by the learned CGSC. 11. The delinquent, i.e. the husband of the Petitioner was served with the Memorandum of charge sheet dated 29.06.96 and in the said Memorandum what was stipulated has been noted above. As per the said stipulation, he was to respond to the enquiry to be commenced after 48 hours of reading out the articles of charges. It was also informed that in case of failure on the part of the delinquent to respond to the proceeding as such, it would be presumed that it was not reasonably practicable to hold the enquiry in the manner prescribed in the Rules which in the instant case is Rule 27 of the aforesaid Rules. 12. Even before the Petitioner could respond to the articles of charges by submitting his written statement of defiance and as noted above, the disciplinary authority appointed the Enquiry Officer on 01.07.96. The records of the proceeding have revealed that the Enquiry Officer started the proceeding even before the delinquent could submit his written statement of defiance in response to the Memorandum of charge sheet dated 29.06.96. As noted above, the delinquent had submitted his written statement on 28.08.96, but the Enquiry Officer started the proceeding of the enquiry on 08.07.96 on the plea of guilty/not guilty. 13. The records produced by the learned CGSC has revealed that the Enquiry Officer himself put certain questions to the delinquent and he was asked, amongst others, as to whether he had understood the contents of the Memorandum and the articles of charges to which the reply of the delinquent was in the negative. Thereafter, in the same proceeding dated 08.07.96, the Enquiry Officer purportedly explained the charges to the delinquent and thereafter again asked him as to whether he had understood the charges. This time the reply was in the positive. By question No. 6 of the proceeding dated 08.07.96, the Petitioner was asked as to whether he would plead guilty of the charges. The specific reply of the delinquent was "I have taken the money Sir, but not for purpose of recruitment." 14. This time the reply was in the positive. By question No. 6 of the proceeding dated 08.07.96, the Petitioner was asked as to whether he would plead guilty of the charges. The specific reply of the delinquent was "I have taken the money Sir, but not for purpose of recruitment." 14. The records produced by the CGSC have also revealed that further proceeding was held by the Enquiry Officer on 10.07.96 and 12.07.96 and in the said two dates the person named in the article of charges No. 1 and his wife respectively were examined. On perusal of their statements, it appears that their allegation was that the delinquent had taken the amount from them to procure a job for their son. Although it is the plea of the Respondents that the delinquent declined to cross examine the said two witnesses, but it is an irony that the enquiry proceeding was started even before the delinquent had submitted his written statement and could engage a defiance counsel. He was not even apprised of his said right. 15. The enquiry proceeding further reveals that the delinquent was examined on 13.09.96 and true to his written statement of defiance dated 28.08.96 he denied the charges of taking the amount in question as undue gratification with the promise to recruit the son of the person concerned. To the specific question as to why he had taken the money, the delinquent reiterated the stand in the written statement of defence in which it was stated by him that the amount was received on behalf of his sister-in-law, Smt. Bimola Devi, for business purpose as her husband and the person named in the article of charge No. 1 agreed to run a poultry farm. As in the case of the prosecution witness, i.e. the person named in the article of charge No. 1 and his while who were examined on 10.07.96 and 12.07.96, the delinquent was also not cross examined and thus, the plea of the delinquent went unrefined. 16. Although along with the Memorandum of charge sheet a list of documents was furnished and the said list contained four documents, but on perusal of the enquiry proceeding file it is not found that the said documents had been exhibited. 17. 16. Although along with the Memorandum of charge sheet a list of documents was furnished and the said list contained four documents, but on perusal of the enquiry proceeding file it is not found that the said documents had been exhibited. 17. It is on the above basis the Enquiry Officer by his report dated 08.10.96 held the delinquent guilty of both the charges same having been allegedly proved in the enquiry. On perusal of the enquiry report what we find is that the Enquiry Officer categorically recorded that the delinquent did not plead guilty of the charges. However, the Enquiry Officer solely on the ground of taking an amount of Rs. 25,000/- by the delinquent, held the first charge to have been proved without discussing anything as to whether the amount was taken for the purpose mentioned in charge No. 2. As regards the finding recorded that the delinquent was guilty of the misconduct enumerated in Rule 16 of the CCS (Conduct) Rules, 1965, same will be discussed a little later. 18. As regards the charge No. 2, the Enquiry Officer while holding the same to have been proved referred to the aforementioned statements of two persons recorded on 10.07.96 and 12.07.96. While holding that the said two witnesses were not cross examined by the delinquent, the Enquiry Officer conveniently ignored the fact that the delinquent was also not cross examined and his defence statement denying the charges went unrefined. Unfortunately, the Enquiry Officer shifted the burden to the delinquent to substantiate his claim of not being guilty of the charges. It has been observed in the enquiry report that the plea of the delinquent was not convincing as he could not substantiate his claim. When the written statement of defiance of the delinquent was that he did not receive the amount as undue gratification for the purpose of obtaining a job coupled with his statement in the enquiry reiterating the said stand and in absence of any cross examination, we failed to understand as to how the Enquiry Officer could have sifted the burden to the delinquent to establish the said fact so specifically pleaded by him. 19. 19. It is significant to note that although the Enquiry Officer held that both the charges had been established, but observed: It is immaterial whether he has taken the money for starting of a poultry farm or for getting the complaint's son recruited in CRPF, the fact remains that he had taken a sum of Rs. 25,000/- from the complainant Thus the whole effort was to find out whether or not the delinquent had taken the amount of Rs. 25,000/- from the complainant, but not as to for what purpose the said amount was taken. In the process the specific plea of the delinquent all alone raised in the enquiry proceeding was conveniently ignored. As noted above, the delinquent could not be dislodged from the aforesaid defiance plea. 20. Although the delinquent had made a representation against the enquiry report, but on perusal of the impugned order dated 20.01.97 it appears that the said representation and the contention raised therein were not taken into account while accepting the enquiry report holding the delinquent guilty of both the charges. 21. On perusal of the enquiry materials on record, what we find is that the enquiry was conducted in a perfunctory manner. As noted above, the delinquent was given only 48 hours time to respond to the enquiry proceeding immediately after issuance of the Memorandum of charge dated 29.06.96. The Enquiry Officer was appointed on 01.07.96 who also started the proceeding on 08.07.96 recording the statement of delinquent in respect of the plea of guilty/not guilty. Thus, the proceeding was started even before the delinquent could respond to the charges by submitting his written statement of defiance. As noted above, he had submitted the same on 28.08.96, but in the meantime, the disciplinary authority had concluded its evidence. 22. After submission of written statement on 28.08.96, it was incumbent on the part of the disciplinary authority to examine the same to find out the acceptability or otherwise of the defiance of the delinquent. However, the said written statement was not even placed before the disciplinary authority and the Enquiry Officer all by himself conducted the enquiry and in the process the delinquent was also not provided with a defiance assistant. He was simply summoned to the enquiry proceeding and was asked to participate in the same without making him known about the procedure involved in an enquiry proceeding. He was simply summoned to the enquiry proceeding and was asked to participate in the same without making him known about the procedure involved in an enquiry proceeding. He was also not informed of his right of engaging a defiance counsel. 23. It is in the above context the learned Counsel for the writ Petitioner/Appellant at the very outset of his argument submitted that the defence of the delinquent in the enquiry proceeding was seriously prejudiced in absence of a defence assistant. On being asked as to whether this particular plea was raised before the learned Single Judge or not, the learned Counsel submitted that the plea was generally raised and that even if the plea was not raised, there is no bar to raise the plea on question of law in the appeal. 24. We have carefully considered the aforesaid submissions. From the materials on record, what we find is that the delinquent had raised the plea of lack of reasonable opportunity of being heard. In the representation against the enquiry report also the delinquent had taken the plea of causing serious prejudice to his defence. Likewise, in the departmental appeal also filed against the order of dismissal, the delinquent raised various grounds, one of which was that the departmental enquiry was a mockery and that he was a mere silent spectator without the opportunity of defending his case. It was specifically contended that he was summoned to the enquiry proceeding by the Enquiry Officer and he was made to participate in the same which was an empty formality and in the process he was not apprised of his legal rights in an enquiry proceeding. 25. The appeal was rejected pursuant to the aforesaid order dated 16.06.97 passed by this Court in C.R. No. 570/97. However, in the order passed by the appellate authority except stating that the delinquent was provided with reasonable opportunity, the particular plea of the delinquent has not been dealt with. 26. The procedural irregularity committed in conducting the enquiry stares on the fact of it. In the Memorandum of charge sheet itself the Petitioner was directed to respond to the enquiry proceeding within 48 hours of reading out of the articles of charges. It was also indicated that upon failure of the delinquent to respond to the proceeding, it would be presumed that it was not reasonably practicable to hold the enquiry. 27. In the Memorandum of charge sheet itself the Petitioner was directed to respond to the enquiry proceeding within 48 hours of reading out of the articles of charges. It was also indicated that upon failure of the delinquent to respond to the proceeding, it would be presumed that it was not reasonably practicable to hold the enquiry. 27. Immediately after issuance of the charge sheet on 29.06.96, the disciplinary authority appointed the Enquiry Officer on 01.07.96 without even waiting for the written statement of defence so essential for the purpose of an enquiry and so fundamental for a delinquent to defend his case in the enquiry. Not only that the Enquiry Officer within a week from the date of his appointment started the enquiry proceeding even to the extent of putting questions to the delinquent all by himself. 28. Although in the proceeding dated 08.07.96 the delinquent categorically pleaded not guilty, but the Enquiry Officer proceeded further with the matter without waiting for written statement of defence of the delinquent and examined two witnesses one on 10.07.96 and another on 12.07.96 all by himself. The delinquent had submitted his written statement of defence on 28.08.96. No witness was examined thereafter on behalf of the disciplinary authority and the delinquent was also not given the opportunity to cross examine the witnesses. Be that as it may, when the delinquent was examined on 14.09.96 by the Enquiry Officer, he reiterated the stand raised in the written statement of defence and he categorically denied both the charges levelled against him. Neither he was put to cross examination nor the documents mentioned in the list had been exhibited and proved. In such circumstances, it could not have been held that the delinquent was guilty of both the charges and/or the charges had been established. 29. In BRPL and Ors. v. Girish Chandra Sarma, reported in (2007) 7 SCC 206 , the Apex Court noticing the assessment made by the Division Bench of this High Court as to how the Respondent therein was made a scapegoat also dealt with the plea of the learned Addl. Solicitor General that the Respondent/writ Petitioner having already abandoned the plea of perversity, same was not open to press again before the Division Bench of the High Court. In this connection, the Apex Court has observed thus: 22. Solicitor General that the Respondent/writ Petitioner having already abandoned the plea of perversity, same was not open to press again before the Division Bench of the High Court. In this connection, the Apex Court has observed thus: 22. The learned Additional Solicitor General has submitted that since learned Counsel for the Respondent-writ Petitioner has already abandoned the plea of perversity i.e. that the finding is perverse, the same is not open for learned Counsel for the Respondent-writ Petitioner to press again before the Division Bench of the High Court. Since the writ appeal is in continuation of the original order passed in the writ jurisdiction by the learned Single Judge, it cannot operate as an estoppels against learned Counsel for the Respondent to press the same. If the finding recorded by the inquiring officer is not sound and it relates to perversity then the appellate Court in writ appeal cannot stop the counsel from raising the same. More so, the Division Bench after considering the matter has found that the whole approach was perverse because the Respondent alone has been made a scapegoat. When the decision of all the three Committees was unanimous, then to take one and put the entire blame on him is definitely perverse approach and the Court cannot stand to the technicalities so as to defeat the ends of justice. Thus, the submission of the learned Additional Solicitor General has no merit. 30. This now leads us to the question relating to the purported misconduct committed by the delinquent by making a monetary transaction which is said to be volatile of Article 16 of the CCS (Conduct) Rules, 1964. Rule 16 debars a Govt. servant from speculating in any stock, share or other investment. Mr. Ibotombi Singh, learned CGSC upon a reference to Sub-rule 4 of Rule 16, submitted that even if the second charge is ignored then also the delinquent having obtained an amount of Rs. 25,000/- which finds mention in charge No. 1, would be guilty of charge No. 1. servant from speculating in any stock, share or other investment. Mr. Ibotombi Singh, learned CGSC upon a reference to Sub-rule 4 of Rule 16, submitted that even if the second charge is ignored then also the delinquent having obtained an amount of Rs. 25,000/- which finds mention in charge No. 1, would be guilty of charge No. 1. Sub-rule 4 of Rule 16 provides that no Government servant shall, save in ordinary course of business with a ban or a public limited company, either himself or through any member of his family or any other person on his behalf-- (a) lend or borrow or deposit money, as a principal or an agent, to, or from or with any person or firm or private limited company within the local limits of his authority or with whom he is likely to have official dealings or otherwise place himself under any pecuniary obligation to such person or firm or private limited company; (b) lend money to any person at any person at interest or in a manner whereby return in money or in kind is charted or paid. However, in the said provision it is further provided that a Government servant may, give to, or accept from, a relative or a personal friend a purely temporary loan of a small amount free of interest, or operative a credit amount with a bona fide tradesman or make an advance of pay to his private employee. 31. The charges-1 and 2 will have to be read together and not in isolation from one another. While in charge No. 1, the charge is of taking the amount in question from the person concerned in violation of the aforesaid Rule 16, in the second charge the same very transaction has been described to be undue gratification with a promise to recruit the son of the person concerned. If the delinquent is held guilty of charge under Article 1 which is said to be a misconduct under Rule 16, he could not be held guilty of the charge under Article 2 which is undue gratification. If the transaction involved was undue gratification, same transaction could not have been said to be by way of borrowing money which is said to be volatile of Rule 16 of the said Rules. 32. If the transaction involved was undue gratification, same transaction could not have been said to be by way of borrowing money which is said to be volatile of Rule 16 of the said Rules. 32. Neither the Enquiry Officer nor the disciplinary authority dealt with the specific plea of the delinquent both in his written statement of defence and in the statement made before the Enquiry Officer that the amount was taken by him on behalf of Smt. Bimola Devi for the purpose of personal transaction which did not involve him, but involved other persons. Such a transaction cannot be said to be volatile of Rule 16 of the aforesaid Rules. As regards the charge of undue gratification, we have already recorded our findings above. 33. The learned Single Judge has only discussed the jurisdiction, ambit and scope of the writ Court in appreciating the evidence in a departmental proceeding. There is no quarrel with the general proposition of law that the writ Court exercising its power of judicial review under Article 226 of the Constitution of India cannot depreciate the evidence and/or interfere with the findings recorded in the enquiry proceeding unless it is shown to be perverse and/or based on no evidence. In the instant case, we have meticulously gone through the entire materials on record to find out as to whether the procedure required to be followed in a departmental proceeding was followed or not. As to what we have gathered on the scrutiny of the materials has been discussed above. 34. The learned Single Judge has also dealt with the question as to whether the enquiry was conducted under CCS (CCA) Rules, 1965 or under Rule 27 of the CRPF Rules with the eventual conclusion that the enquiry was conducted under Rule 27 of the CRPF Rules. It is immaterial for us to deal with the said aspect of the matter inasmuch as whether it is under CCS (CCA) Rules or under CRPF Rules, so long as the enquiry is conducted adhering to fair procedure and conforming to the requirement of the principles involved in the expression "natural justice". Such a course of action cannot be interfered with unless it is shown to be based on perversity and having caused serious prejudice to the delinquent. 35. In the instant case, the prejudice caused to the delinquent has been discussed above. Such a course of action cannot be interfered with unless it is shown to be based on perversity and having caused serious prejudice to the delinquent. 35. In the instant case, the prejudice caused to the delinquent has been discussed above. The enquiry was not conducted as is required to be conducted providing minimum opportunity to the delinquent to defend his case. The delinquent was in the rank of Constable and thus naturally was not equipped with all the details of the procedure followed in conducting the enquiry proceeding. As noted above, the enquiry was conducted by summoning the delinquent to appear before the Enquiry Officer even before he could submit his written statement of defence. He has also not made aware of his right to engage the defence counsel and for that matter, no opportunity was provided to him to engage a defence counsel or at least apprised him of the said right. 36. For all the above reasons, the enquiry was vitiated. Learned Single Judge has not discussed all these aspects of the matter towards passing the impugned judgment and order. Accordingly, we are of the considered opinion that the appeal merits acceptance which we accordingly do. 37. The writ appeal is allowed by setting aside and quashing the impugned judgment and order dated 14.05.2004 passed in W.P. (C) No. 747/99. Consequently, the Petitioner will be entitled to service benefit which would have accrued to the delinquent till his death. She will also be entitled to the other pensionary and retirement benefits deeming the delinquent to have been in service till he died on 28.05.97. However, having regard to the facts and circumstances involved in this case, it is made clear that the Petitioner will not be entitled to any back wages for the period of absence of the delinquent pursuant to the impugned order of dismissal. She will also not be entitled to receive any other amount than what was paid to the delinquent as subsistence allowance during the period of suspension inasmuch as the order of suspension cannot be said to be unjustified as the same was passed for facilitating the departmental proceeding. 38. Pursuant to this judgment and order the benefit to which the Petitioner is now entitled, shall be paid to her as expeditiously as possible, but at any rate, not later than 30.10.2010.