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2014 DIGILAW 205 (JK)

Taj Mohd. v. Union Of India

2014-05-12

Hasnain Massodi

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1. Petitioner was enrolled in Central Reserve Police Force (CRPF) way back in the year 1990. He was dismissed from service vide order No. P.VIII -4/2002-49-EC-II dated 10.06.2004. Petitioner preferred an appeal against the dismissal order. The appeal did not meet any success and was dismissed vide order No. R. XIII.8/04-EC.III dated 4.11.2004. The dismissal order dated 10.6.2004, the order of appellate authority dated 4.11.2004 as also the enquiry proceedings conducted against the petitioner, are called in question in the writ petition on hand. Before proceeding further to examine merits of the case projected in the petition, it would be appropriate to take an overview of the background facts. 2. Petitioner on 11.11.2002 while posted as CT/GD Det/49Bn Rajouri allegedly quarreled with his colleague CT/GD Shyam Kishore Sinha, used filthy language and inflicted an injury on his forehead. He allegedly threatened the victim with his service rifle and threw a plate of hot rice at the victim resulting in burn injuries. 3. The occurrence dated 11.11.2002 prompted the Commandant Dett/49 Bn, CRPF to direct a preliminary enquiry into the matter and place the petitioner under suspension vide order dated 12.11.2002. The outcome of preliminary enquiry lead to a full fledged departmental enquiry ordered vide order dated 11.12.2002. The charges leveled against the petitioner read as under: ARTICLE-I That No. 903052297 CT/GD Mohd. Taj of this unit on 11/11/02 about 1700 hrs while functioning as CT/GD, committed an act of disobedience/neglect of duty/remissness in the discharge of duty in his capacity as member of force, u/s 11(1) of CRPF Act, 1949, in that above CT/GD started self-cooking process in OR's line at Flood control building, Dett/49 Bn. CRPF, Rajouri (J&K) which is strictly prohibited and prejudicial to the good order and discipline of the force. Thus, he failed to maintain the good order and discipline of the force. ARTICLE-II That No. 903052297 CT/GD Mohd. Taj of this unit on 11/11/02 about 1700 hrs, abused No. 981240369 CT/GD Shyam Kishore Sinna by using filthy language despite clear directions/ orders given by his seniors (CHM L. Horo Singh-Dett/49 Bn) which amounts to his failure to obey the legal orders of his seniors in the capacity of force person. Thus he committed an offence u/s 11(1) of CRPF Act, 1949. ARTICLE-III That No. 903052297 CT/GD Mohd. Thus he committed an offence u/s 11(1) of CRPF Act, 1949. ARTICLE-III That No. 903052297 CT/GD Mohd. Taj of this unit on 11/11/02 about 1700 hrs, committed an act of serious offence, in which he misused the capacity of a force personnel by threatening No. 981240369 CT/GD Shyam Kishore Sinha of D/49 Bn with his official weapons and showing criminal attitude. Thus he failed to maintain the good order and instructions of a discipline of force and which is considered commensurate with the offence u/s 11(1) of CRPF Act, 1949. ARTICLE-IV No. 903052297 CT/GD Mohd. Taj of this unit on 11/11/02 about 1700 hrs while functioning as CT/GD committed a serious offence u/s 11(1) of CRPF Act, 1949 in which he being a responsible member of a disciplined force assaulted physically his colleague, P/No. 981240369 CT/GD Shyam Kishore Sinha by using his official weapon and beat him with steel dullu, as a result of which a serious injury was inflicted on the forehead of CT Shyam Kishore Sinha. Thus, he failed to maintain good discipline and orders of the force which is considered commensurate with the offence u/s 11(1) of CRPF Act, 1949. 4. The memorandum, articles of charges, imputations of misconduct and the documents and witnesses by which charges were proposed to be proved against the petitioner (Annexure I, II, III) were supplied to the petitioner on 12.12.2002. He submitted reply to the Articles of charge. He denied all the charges. Statement of Shri Shyam kishore Sinha - victim of alleged assault was recorded during enquiry. 5. The Enquiry Officer Shri Gajrang Singh, 2nd in Command 40th Bin CRPF submitted the enquiry report on 21.4.2003 to Disciplinary authority. The Enquiry Officer held all the charges proved against the petitioner. 6. The Commandant 49th Bn. CRPF on going through the enquiry report decided to impose punishment of dismissal from service on the petitioner. The petitioner was also stripped of medals and decorations earned by him as a member of the Forces. Petitioner was accordingly vide order dated 10.06.2004 dismissed from service. 7. The copy of the enquiry report was provided to the petitioner vide letter No-P-VIII-1/2002-49-EC-II dated 27.5.2003. He, however did not respond to the report and instead filed a writ petition being SWP No.944/2003 before this Court. Petitioner was accordingly vide order dated 10.06.2004 dismissed from service. 7. The copy of the enquiry report was provided to the petitioner vide letter No-P-VIII-1/2002-49-EC-II dated 27.5.2003. He, however did not respond to the report and instead filed a writ petition being SWP No.944/2003 before this Court. He sought quashment of order No.P--VIII-1/2002-49-EC-II dated 27.5.2003 whereby he was placed under suspension and preliminary enquiry order as also the departmental enquiry report dated 27.5.2003. The writ petition was disposed of giving liberty to the petitioner to respond to the enquiry' report dated 27.5.2003. 8. The respondents were directed to give a personal hearing to the petitioner in the event a request in that behalf was made by the petitioner. The petitioner, however, did not file any reply to the enquiry report. 9. Petitioner aggrieved with the dismissal order dated 10.6.2004 filed an appeal before Dy. Inspector General of Police, CRPF Gauhati. The appellate authority upheld the order of Commandant 49th Bn. CRPF, held the charges to have been proved against the petitioner and he therefore to have been rightly dismissed from service. Petitioner questions both the orders as also Departmental enquiry on the grounds spelt out in para 17(a to k) of the petition. 10. Respondents oppose the writ petition on the grounds that the petitioner was guilty of indiscipline as he assaulted and injured his colleague, used filthy language and therefore committed gross misconduct. It is pleaded that the preliminary enquiry and thereafter departmental enquiry was held against the petitioner in accordance with the rules and the petitioner given a full and fair opportunity to test veracity of the prosecution evidence - oral and documentary and also to put forth his defense. It is pleaded that none of the procedural rights available to the petitioner were violated and that the enquiry and orders passed on the basis of enquiry in question, do not call any interference. 11. I have gone through the pleadings as also record made available by Mr. P. S. Chandel, CGSC. I have heard Ld. Counsel for the parties. Ld. Counsel for petitioner reiterates the ground urged in the writ petition to question the dismissal order dated 10.6.2004 and the order of appellate forum dated 4.11.2004. Ld. Counsel for the petitioner in particular points to respondents' failure to provide copy of the preliminary enquiry report and the copies of statements of the witnesses recorded during preliminary enquiry. Ld. Counsel for petitioner reiterates the ground urged in the writ petition to question the dismissal order dated 10.6.2004 and the order of appellate forum dated 4.11.2004. Ld. Counsel for the petitioner in particular points to respondents' failure to provide copy of the preliminary enquiry report and the copies of statements of the witnesses recorded during preliminary enquiry. Ld. Counsel for the petitioner states that as the material collected during preliminary enquiry was relied upon by the Enquiry Officer while conducting the regular enquiry. Copy of the preliminary enquiry report as also statement of witnesses recorded, were necessarily to be supplied to the petitioner. It is argued that, failure on the part of the respondents to furnish copy of the preliminary enquiry report and the copies of statements recorded, vitiates the enquiry proceedings as also their outcome and that the petitioner, in the said background, is prejudiced in the matter of his defense. The dismissal order, according to the Ld. Counsel for the petitioner, is liable to be set aside on this ground alone. Reliance is placed by Ld. Counsel for the petitioner on State of U.P v. Mohammad Sharief (dead) through L.Rs (1982) 2 SCC 376 . 12. The argument sounds attractive but loses its force once the enquiry record is gone through. True that the preliminary enquiry was conducted by Shri Raj Gopal Singh Assistant Commandant 49 Bn. CRPF and statement of a number of witnesses including the victim of alleged assault were recorded, yet Shri Gajraj Singh 2nd in Command 49 Bn. CRPF, who conducted regular enquiry, did not place reliance on the preliminary enquiry report and the material annexed therewith, to finalize the departmental enquiry. The enquiry officer, instead conducted enquiry, independent of the preliminary enquiry recorded statements of the witnesses in presence of the petitioner. The petitioner participated in the departmental enquiry though he did not take assistance of any defense assistant. Cases can be visualized where in the Enquiry Officer while conducting departmental/regular enquiry exclusively relies on the preliminary enquiry report and the evidence brought on record during preliminary enquiry, without conducting any enquiry, insisting on presence of the witnesses before him and without recording their statement. Cases can be visualized where in the Enquiry Officer while conducting departmental/regular enquiry exclusively relies on the preliminary enquiry report and the evidence brought on record during preliminary enquiry, without conducting any enquiry, insisting on presence of the witnesses before him and without recording their statement. In such a case, it would be necessary to provide the delinquent officer copy of the enquiry report and the copies of oral and documentary evidence and failure, if any, to furnish such material would be fatal to the departmental enquiry and its outcome. The present case is therefore distinguishable on facts from Mohd. Shariefs case (supra). 13. The next argument advanced by Ld. Counsel for the petitioner is that as the Enquiry Officer failed to examine material witness, the enquiry was vitiated being in violation of principle of natural justice. It is argued that wherever material witness are not examined and it is impossible for the Enquiry Officer to determine what extent testimony of witnesses was not examined or withheld whatever the outcome of enquiry, enquiry is to be taken to have been vitiated because of non examination of such witnesses. Ld. Counsel for the petitioner to reinforce his stand, seeks to draw support from Hardwari Lal v. State of U.P and others (1990) 8 SCC 582. In the aforesaid case some material witnesses were not examined. The court held that there was no proper enquiry held by the Enquiry Officer. 14. The enquiry record made available by Mr. Chandel, Ld. CGSC, on a closer look, belies the stand taken by the respondents. The enquiry officer who conducted preliminary as well as departmental enquiry, have made a thorough enquiry, examined all the material witnesses and also relied on the medical report of the victim taken to the hospital for treatment after the assault on him. The witnesses have been examined in presence of the petitioner, Ld. Counsel for the petitioner was not in a position to refer to any witness whose non examination would create a dent in the case set up against the petitioner. 15. The enquiry report, as already pointed out, is comprehensive and deals with all the aspects of the case. Petitioner on 12.12.2002 submitted a detailed reply lo each and every Article of the charge. The reply submitted was also looked into and dealt with by the Enquiry Officer while concluding enquiry. 15. The enquiry report, as already pointed out, is comprehensive and deals with all the aspects of the case. Petitioner on 12.12.2002 submitted a detailed reply lo each and every Article of the charge. The reply submitted was also looked into and dealt with by the Enquiry Officer while concluding enquiry. The enquiry record does not depict non adherence to the procedure prescribed under law. The respondents first directed preliminary enquiry into the occurrence dated 11.11.2002 in which petitioner attacked and injured his colleague constable CT(GD) Shyam Kishore Sinha No.981240369. The statement of the victim and all those present at the scene of occurrence were recorded. It is only when the preliminary enquiry report substantiated the complaint that regular or departmental enquiry was ordered. Petitioner was associated with the departmental enquiry and handed over the enquiry report as also the material collected during the enquiry vide communication dated 27.5.2003. The petition - SWP No.944 of 2003 wherein challenge was thrown to the enquiry reports and the suspension order, was disposed of giving liberty to the petitioner to file his response to the Enquiry report dated 27.5.2003. In compliance of the writ court judgment, the petitioner was once again given liberty to file his reply to the enquiry report. He vide application dated 4.6.2004 requested that his earlier reply dated 9.06.2003 be treated as reply. He was further given liberty to appear in person before the competent authority. He appeared before Shri B.S.Gill, Commandant 49th Bn. CRPF in his office on 8.6.2004. He was given an opportunity to put forth his stand in presence of Shri Baldev Singh, Deputy Commandant, Shri Vijay Singh, Inspector, Shri Arvind Kumar ASI, Shri K.P.Dubey, Sub Inspector and Shri Hari Shanker Tandey BHM in the unit. He failed to state anything beyond what he had set out in his representation dated 9.6.2003. He made an effort to use the opportunity given to express his regrets about the occurrence. 16. There is no force in the ground that the punishment imposed on the petitioner cannot be given under section 11 CRPF Act 1949 or that the punishment awarded is not commensurate with the charge proved against the petitioner. It is well settled law that section 11(1) empowers the competent authority to impose any minor punishment in lieu of or in addition to suspension or dismissal. It is well settled law that section 11(1) empowers the competent authority to impose any minor punishment in lieu of or in addition to suspension or dismissal. The minor punishment in terms of section 11(1) of the Act cannot be only passed in lieu of the punishments laid down under the Act but also in addition to the punishment so awarded. Reference in this regard may be made to law laid down in Union of India v. Gh. Mohammad Bhat (2005) 13 SCC 226. 17. This court while exercising judicial review, is not to assume the role of appellate court and embark on an exercise to find out whether the court would not impose the same penalty as has been imposed by the disciplinary authority. The scope of interference in this regard is very limited. It would be advantageous to reproduce the observations made by Hon'ble Supreme Court in Rameshwar Prasad and others (VI) v. Union of India and others in (2006) 2 SCC 1 : "242. The Wednesbury principle is often misunderstood to mean that any administrative decision which is regarded by the Court to be unreasonable must be struck down. The correct understanding of the Wednesbury principle is that a decision will be said to be unreasonable in the Wednesbury sense if (i) is based on wholly irrelevant material or wholly irrelevant consideration, (ii) it has ignored a very relevant material which it should have taken into consideration, or (iii) it is so absurd that no sensible person could ever have reached it. 243. As observed by Lord Diplock in CCSU case a decision will be said to suffer from Wednesbury unreasonableness if it is "so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it." and case titled Om Parkash v. Union of India (2001) 2 SCC 386 : "By `proportionality', we mean the question whether, while regulating exercise of fundamental rights, the appropriate or least-restrictive choice of measures has been made by the legislature or the administrator so as to achieve the object of the legislation or the purpose of the administrative order, as the case may be. Under the principle, the Court will see that the legislature and the administrative authority "maintain a proper balance between the adverse effects which the legislation or the administrative order may have on the rights, liberties or interests of person keeping in mind the purpose which they were intended to serve". The legislature and the administrative authority are, however, given an area of discretion or a range of choices but as to whether the choice made infringes the rights excessively or not is for the Court. That is what is meant by proportionality." 18. Against the above backdrop, I do not find merit in any of the grounds urged in the petition. The respondents have proceeded against the petitioner strictly in accordance with the rules and adhered to the procedural rights/safeguards available to the petitioner. None of his rights have been violated as would persuade the court to arrive at a conclusion that the petitioner has been prejudiced in his defense. 19. For the reasons discussed, the petition is bereft of any merit. The writ petition is accordingly dismissed. The enquiry record be returned to Mr. Chandel. Ld. CGSC.