Research › Search › Judgment

Patna High Court · body

2013 DIGILAW 195 (PAT)

Sushil Kumar Tripathy v. Union of India

2013-02-08

BIRENDRA PRASAD VERMA

body2013
ORAL ORDER Heard learned counsel for the petitioner and Mr. Sarvadeo Singh, learned Central Government Counsel appearing on behalf of the respondents. 2. The petitioner has filed the present writ petition under Article 226 of the Constitution of India assailing the validity and correctness of the order dated 18.9.2003 passed by the respondent-Inspector General of Police, Bihar Sector, C.R.P.F., Patna (Annexure-7), whereby punishment of compulsory retirement from service has been inflicted upon him, and, the appellate order dated 30.1.2004 passed by the respondent- Director General, C.R.P.F. vide Annexure-9 as also the revisional order dated 5th January, 2005 passed by the Director (Personnel) Ministry of Home Affairs, Government of India vide Annexure-11, whereby and whereunder the appeal and revision preferred on behalf of the petitioner were rejected and the order of punishment inflicted by the respondent-Inspector General of Police, Bihar Sector, CRPF, Patna has been affirmed. 3. The short facts essential for disposal of the present proceeding are noted herein below. The petitioner, an Inspector/ GD, while he was performing the duties of Subedar Major and was posted at HQ/116 Bn. CRPF, Dibrugarh (Assam), was subjected to a departmental proceeding under the provisions of The Central Reserve Police Force Act, 1949 (in short Act) read with The Central Reserve Police Force Rules, 1955 (in short Rules) for committing a misconduct in terms of Section 11(1) of the Act read with Rule 27 of the Rules. The petitioner was served with a memorandum of charge along with article of charges and other related documents. Only charge of misconduct against the petitioner was that he was having an illegal relationship with one lady, namely, Smt. Mousumi Majumdar Choudhary, an employee of P&T and wife of Shri Deb Kumar Choudhary, resident of Shanatipara, Dibrugarh (Assam) and on 3.10.2000, they were found sitting in the Manager’s Room of Sun Rise Hotel, Dibrugarh. 4. On receipt of the memorandum of charge along with the article of charge, the petitioner submitted his written defence denying the charge and pleaded not guilty. One Sri R.P. Pandey, Commandant 95 Bn. CRPF was appointed as an enquiry officer, who conducted the enquiry with respect to the charge framed against the petitioner. During the course of enquiry though petitioner did not produce any witness in support of his defence, but he furnished certain documents denying the allegation of misconduct. However, witnesses were produced on behalf of the Department. CRPF was appointed as an enquiry officer, who conducted the enquiry with respect to the charge framed against the petitioner. During the course of enquiry though petitioner did not produce any witness in support of his defence, but he furnished certain documents denying the allegation of misconduct. However, witnesses were produced on behalf of the Department. The statement of the aforesaid lady viz. Smt. Mousumi Majumdar Choudhary was recorded by the enquiry officer as P.W. 2. On conclusion of the departmental enquiry, the enquiry report dated 4.9.2002 was submitted to the disciplinary authority, namely, respondent-Deputy Inspector General of Police, CRPF, Patna. The aforesaid enquiry report has been brought on record as Annexure-3 to the writ petition. The enquiry officer has recorded his conclusion in the last para of the enquiry report, which would be relevant for the purpose of decision of the present proceeding. Therefore, the conclusions arrived at by the enquiry officer are reproduced herein below: “ From the above facts under discussion the following points emerges that: 1. The delinquent and Mrs. Mousumi Majumdar were not found in any objectionable condition by the civil police officials when they visited the Hotel Sun Rise on 3/10/2000. 2. No verbal or written complaint was received in P.S. Sadar from the husband of Mrs. Mousumi Majumdar. 3. No FIR was lodged in the P.S. Sadar Dibrugarh against the delinquent or Mrs. Mausumi Majumdar. 4. As regards having illegal relationship by Insp/GD. S.K. Tripathi with Mrs. Mausumi Majumdar an employee of P&T Dept. Dibrugarh, there is no eye witnesses or documentary evidence available against saro. 5. The delinquent and Mrs. Mousumi Majumdar, an employee of P&T department, Dibrugarh have known each other and used to visit Hotel Sunrise Dibrugarh frequently for taking coffee etc. Sometimes they used to spend a few hours in room of Hotel Sun Rise.” 5. From the aforesaid conclusions arrived at by the enquiry officer, it is apparent that the allegation of misconduct against the petitioner was found not to have been proved, yet for the reasons best known to the enquiry officer, he has concluded that the charge stands partially proved. On the basis of the aforesaid enquiry report dated 4.9.2002 (Annexure-3) the disciplinary authority, namely, respondent-Dy. On the basis of the aforesaid enquiry report dated 4.9.2002 (Annexure-3) the disciplinary authority, namely, respondent-Dy. Inspector General of Police CRPF, Patna by his order dated 25th November, 2002 vide Annexure-6 to the writ petition imposed upon the petitioner the punishment of stoppage of increment for one year without cumulative effect, effective from the date of serving of the aforesaid order. 6. Admittedly, against the aforesaid order of punishment (Annexure-6) passed by the disciplinary authority, the petitioner did not file any appeal, and, therefore, the matter could have rested there itself. However, the respondent-Inspector General of Police, Bihar Sector, CRPF, Patna not being satisfied with the order of punishment imposed, issued a show cause notice dated 30.7.2003 (Annexure-8) to the petitioner, in purported exercise of powers under Rule 29 (d) of the Rules asking him to show cause as to why he should not be awarded enhanced punishment of compulsory retirement from service. The petitioner filed his show cause and the respondent-Inspector General of Police, CRPF, Patna not being satisfied with his show cause awarded enhanced punishment of compulsory retirement from service by the impugned order dated 18th September, 2003 (Annexure-7). The petitioner, being aggrieved by the aforesaid order, preferred appeal, which was dismissed by the respondent-Director General, CRPF, New Delhi by order dated 30.1.2004 (Annexure-9). The revision preferred by the petitioner against the said appellate order has also been rejected by the order dated 5th January, 2005 (Annexure-11). 7. Learned counsel appearing on behalf of the petitioner has submitted that the impugned punishment inflicted upon the petitioner with respect to the charge proved is disproportionate and is, therefore, not sustainable in the law. It is contended that precisely there was only one allegation of misconduct against the petitioner that he was having an illegal relationship with a married lady, but that lady has not supported the charge against the petitioner in any manner. The statement of the lady, examined as P.W. 2, has been brought on record as Annexure-2 to the writ petition. It is further submitted that while exercising powers under Rule 29 (d) of the Rules, the respondent-Inspector General of Police, CRPF, Patna has not strictly observed the rules of natural justice. The matter proceeded with a pre conceived notion for imposing enhanced punishment of compulsory retirement from service. It is further submitted that while exercising powers under Rule 29 (d) of the Rules, the respondent-Inspector General of Police, CRPF, Patna has not strictly observed the rules of natural justice. The matter proceeded with a pre conceived notion for imposing enhanced punishment of compulsory retirement from service. Therefore, according to the learned counsel for the petitioner the impugned order of punishment, as also the appellate and revisional orders are fit to be set aside by this Court. 8. Learned Central Government Counsel, appearing on behalf of the respondents, has strongly opposed the prayer made on behalf of the petitioner and has supported the impugned orders passed by the original authority as also the appellate and revisional authorities. He submitted that the enquiry officer came to a finding that the charge of misconduct against the petitioner was found partially proved, but the CRPF is a disciplined force, and, therefore, in view of nature of allegation of misconduct against the petitioner, the disciplinary authority could not have taken such a lenient view, and could not have awarded such a minor punishment of stoppage of increment for one year without cumulative effect. It is next contended that the respondent-Inspector General was well within his powers in terms of Rule 29 (d) of the Rules to examine the entire record and pass an order for enhanced punishment. 9. After having heard the parties and on consideration of the materials available on record, this Court is of the opinion that the entire matter requires reconsideration by the authority concerned. From the conclusions arrived at by the enquiry officer, which has been reproduced above, it is apparent that the charge of misconduct was found to have been not proved, yet the enquiry officer has concluded that it was partially proved. The disciplinary authority, namely, respondent-Dy. Inspector General of Police, CRPF on the basis of the enquiry report inflicted punishment of stoppage of increment for one year without cumulative effect vide order dated 25.11.2002. The disciplinary authority, namely, respondent-Dy. Inspector General of Police, CRPF on the basis of the enquiry report inflicted punishment of stoppage of increment for one year without cumulative effect vide order dated 25.11.2002. If the respondent Inspector General of Police, CRPF was not satisfied with the quantum of punishment imposed upon the petitioner, then firstly he was required to record reasons for such disagreement and, therefore, he was required to issue a show cause notice with open mind asking the petitioner to show cause as to why the order of punishment be not modified or enhanced, but from plain perusal of the show cause notice, as contained in Annexure-8, this Court finds that the respondent-Inspector General of Police, CRPF had pre decided the entire matter and was pre determined to inflict the impugned punishment of compulsory retirement from service upon the petitioner, and, thereafter, a mere formality was observed for issuance of a show cause notice. In the considered opinion of this Court, it was not the compliance of the scheme of Rule 29 (d) of the Rules. The rule of natural justice has not been truly observed in the present proceeding. The mandate of Rule 29 (d) of the Rules has not been strictly followed in its true sense and in its letter and sprit. This Court is also of the considered opinion that in view of the nature of findings recorded by the enquiry officer with respect to article of charge against the petitioner, there is little scope for enhancement of quantum of punishment against the petitioner in terms of Rule 29 (d) of the Rules. The appellate and the revisional authorities have failed to apply their independent mind to the facts and materials of the present case, and have mechanically affirmed the impugned order of enhanced punishment. 10. For the reasons recorded above, the impugned original order dated 18th September, 2003 (Annexure-7), impugned appellate order dated 30.1.2004 (Annexure-9) and impugned revisional order dated 5th January, 2005 (Annexure-11) are hereby set aside. This matter is remitted back to the respondent-Inspector General of Police, Bihar Sector, CRPF, Patna with a direction to re-examine the entire matter and pass a fresh order strictly in accordance with law. This matter is remitted back to the respondent-Inspector General of Police, Bihar Sector, CRPF, Patna with a direction to re-examine the entire matter and pass a fresh order strictly in accordance with law. While deciding the matter afresh, he shall bear in mind that charge of misconduct of having an illegal relationship with a lady was found not to have been proved as per the findings recorded by the enquiry officer. 11. The entire exercise must be completed by him within a maximum period of three months from the date of receipt/production of a copy of this order. 12. This writ petition stands allowed to the extent indicated above. The parties are left to bear their own costs.