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2014 DIGILAW 847 (GAU)

Rajendra Narzary v. Union of India

2014-09-04

BIPLAB KUMAR SHARMA

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JUDGMENT Biplab Kumar Sharma, J. 1. The petitioner is aggrieved by the Annexure-E order dated 3rd October, 2009, by which pursuant to a departmental proceeding, he has been imposed with the punishment of removal from service with effect from 3rd October, 2009. The period of suspension, which preceded the impugned order from 6th July, 2009 to 3rd October, 2009 is to be treated as non duty for all purposes as indicated in the said order. Pursuant to a preliminary enquiry that was conducted against the petitioner, a formal charge sheet was served on him on 29th July, 2009 with the following charges:- "Article-I That the said No. 9687598 CT (GD) Rajendra Narzary of C Coy, 13th Bn. SSB, Piprakothi while functioning as Constable (GD) committed grave misconduct, indiscipline and mis-behaviour in the discharge of his duties in his capacity as a member of the force under Section 11(1) of CRPF Act, 1949 in that he while deployed at BOP Koraiya of C Coy and detailed for rear guard duty consumed illicit liquor at BOP on 4.7.09 at about 2006 hrs. and indulged in arguments with BOP personnel who were watching Television and also misbehaved/used un-parliamentary language with BOP personnel. Thus, he committed an offence of grave misconduct, indiscipline, mis-behaviour and disobeyed the lawful orders of lawful command in the capacity as a member of disciplined Force. Article-II That the said No. 9687598 CT (GD) Rajendra Narzary of C. Coy, 13th Bn. SSB, Piprakothi committed grave misconduct, indiscipline and mis-behaviour in the discharge of his duty in his capacity as a member of the disciplined force under Section 11(1) of CRPF Act, 1949 in that on 04.07.2009 at about 2000 hrs he while deployed at BOP Koraiya on INB consumed illicit liquor at BOP campus and used criminal force to No. 06220806 Ct/GD sever Promod Kumar Pandey with iron rod resulting Ct/DG Promod Kumar Pandey sustained severe head injury (4 inches long cut) and fell down/became unconscious. He was evacuated to PHC Adhapur where his suture done under local anesthesia and 16(sixteen) stitches given to him. Thus he committed grave misconduct, indiscipline, mis-behaviour in his capacity as a member of disciplined Force. Article-III That the said No. 9687598 CT (GD) Rajendra Narzary of C Coy, 13th Bn. He was evacuated to PHC Adhapur where his suture done under local anesthesia and 16(sixteen) stitches given to him. Thus he committed grave misconduct, indiscipline, mis-behaviour in his capacity as a member of disciplined Force. Article-III That the said No. 9687598 CT (GD) Rajendra Narzary of C Coy, 13th Bn. SSB, Piprakothi committed grave misconduct, indiscipline and mis-behaviour in the discharge of his duty in his capacity as a member of the disciplined force under Section 11(1) of CRPF Act, 1949 in that on 04.07.2009 at about 2000 hrs he while deployed at BOP Koraiya of C Coy Mahuawa on INB consumed illicit liquor in BOP and created nuisance in BOP campus in drunken state and also disturbed the peace of BOP personnel. Thus he committed an offence of grave misconduct, indiscipline, mis-behaviour in his capacity as a member of the disciplined Force." 2. Although the petitioner has not annexed the copy of the reply to the charges but his defence is discernable from the appeal that was preferred against the impugned order of punishment on 4th February, 2010 in which the petitioner pleaded inter alia as follows:- "1. That the alleged incident that took place on 04.07.09 at about 2000 hours with my colleague while watching Television was not during duty hours. The injury sustained by one Sri Promod Kumar Pandey, Ct/GT in the incident is only a simple injury." 3. Pursuant to the enquiry that was conducted, the Enquiry Officer submitted his report holding the petitioner guilty of the charges and thereafter, upon providing an opportunity to make representation against the same, the disciplinary authority passed the impugned order dated 3rd October, 2009 (Annexure-E) with the imposition of punishment of removal from service on the petitioner. Being aggrieved, the petitioner preferred the departmental appeal dated 4th February, 2010 to the Deputy Inspector General, Head Quarter, SSB, Muzaffarpur (Annexure-F), which, however, is said not to have been received by the authority as stated in the counter affidavit. 4. I have heard Mr. S. Bora, learned counsel for the petitioner. I have also heard Mr. S.C. Keyal, learned Assistant Solicitor General of India appearing for the respondents. 5. Mr. 4. I have heard Mr. S. Bora, learned counsel for the petitioner. I have also heard Mr. S.C. Keyal, learned Assistant Solicitor General of India appearing for the respondents. 5. Mr. Bora, learned counsel for the petitioner submits that the proceeding that was initiated against the petitioner is vitiated, in view of the fact that the petitioner was not apprised of his right to have the assistance of a defence assistant in the enquiry, coupled with the fact that the enquiry was conducted by the Enquiry Officer examining the witnesses himself without engaging any Presenting Officer. In this connection, he has placed reliance on the decisions of this Court in Baharul Islam (CT) vs. Union of India & Ors. reported in 2001 (1) GLT 621; in Ram Lakhan Sharma vs. Union of India & Ors. reported in 2011 (1) GLT 17; in Union of India & Ors. vs. Ram Lakhan Sharma reported in 2011 (3) GLT 281 and in Salam Kesho Singh vs. State of Manipur & Ors. reported in 2011 (1) GLT 287. 6. Mr. Keyal, learned Assistant Solicitor General of India, on the other hand, submits that throughout the writ petition there being nothing to indicate that there was any procedural irregularity in conducting the enquiry, the writ Court will not sit on appeal over the findings recorded by the Enquiry Officer and the disciplinary authority. Referring to the provisions of the Central Reserve Police Force Rules, 1955, he submits that non appointment of the Presenting Officer in the enquiry is not fatal to the proceeding as there is no requirement of appointing any Presenting Officer. As regards the departmental appeal stated to have been preferred by the petitioner, he submits that the appeal stated to have been preferred by the petitioner on 4th February, 2010 was never received by the appellate authority. 7. I have given my anxious consideration to the submissions advanced by the learned counsel appearing for the parties and have also perused the entire materials on record. My findings and conclusions are as follows. 8. Although the petitioner has enclosed the copy of the preliminary enquiry report but have chosen not to enclose the copy of the charge sheet. However, the charges are discernable from the statement of imputation of misconduct (Annexure-E) and the impugned order of penalty dated 3rd October, 2009, which has been quoted above. My findings and conclusions are as follows. 8. Although the petitioner has enclosed the copy of the preliminary enquiry report but have chosen not to enclose the copy of the charge sheet. However, the charges are discernable from the statement of imputation of misconduct (Annexure-E) and the impugned order of penalty dated 3rd October, 2009, which has been quoted above. Although it is the case of the petitioner that he was not provided with a defence assistant but there is nothing to show that he had ever insisted and/or prayed for appointment of a defence assistant on his behalf. He could have prayed for the same when the enquiry was ordered vide Annexure-D order dated 29th July, 2009. 9. As regards non appointment of any Presenting Officer, apart from the fact that the petitioner never insisted and/or prayed for the appointment of the same, throughout the writ petition there is no averment made in respect of the said aspect. Law is well settled that if a procedural safeguard is insisted upon or is denied in a departmental enquiry, there must be specific pleading to that effect in the writ petition, coupled with specific pleading regarding prejudices because of non compliance of the said procedure. However, Mr. Bora, learned counsel for the petitioner referring to the aforesaid decisions has submitted that the said plea is required to be entertained by this Court irrespective of whether the same was raised in the enquiry proceeding or has been raised in the writ petition inasmuch as the same is a point of law. 10. In Baharul Islam (supra), this Court noticing the fact that no Presenting Officer was appointed and on the day of the enquiry also, it was the Enquiry Officer alone, who put all the questions to the petitioner, held that such a procedure adopted by the Enquiry Officer vitiated the enquiry proceeding. In the instant case, same is not the situation. It is not the case of the petitioner that he was questioned by the Enquiry Officer all by himself and the same vitiated the enquiry proceeding. What has been referred to is the statement of the prosecution witnesses, copies of which have been annexed to the counter affidavit. On perusal of the said statements in the form of question and answer, it appears that the witnesses were generally examined by the Enquiry Officer without any leading question. What has been referred to is the statement of the prosecution witnesses, copies of which have been annexed to the counter affidavit. On perusal of the said statements in the form of question and answer, it appears that the witnesses were generally examined by the Enquiry Officer without any leading question. As recoded after the statements and also signed by the petitioner, he was allowed to cross-examine the witnesses but he declined to do so and rather agreed to the statements of the prosecution witnesses. 11. In Ram Lakhan Sharma (supra), the learned single Judge of this Court after having noticed that the petitioner was acquitted in the criminal proceeding in respect of the charge under Section 376 IPC and also the fact that in the departmental enquiry, the Enquiry Officer himself led the examination-in-chief by putting questions and acted as Prosecutor and Judge, held that non appointment of the Presenting Officer amounted to the violation of the principles of natural justice. Upholding the said judgment, a Division Bench of this Court in the judgment reported in 2011 (3) GUT 281 (Union of India & Ors. vs. Ram Lakhan Sharma) held that in a given facts and circumstances, the judgment was not required to be interfered with. Unlike the said case, in the instant case, there was no criminal proceeding against the petitioner in which he has been acquitted. In the said case, the Court found that the Enquiry Officer himself acted as the Prosecutor and the Judge. In the instant case, the charges against the petitioner were leveled by the disciplinary authority and the Enquiry Officer only enquired into the said charges. 12. In Salam Kesho Singh (supra), a Division Bench of this Court having found that the findings in the departmental enquiry were based on the basis of the statements of the witnesses, who were never cross-examined, held that the same resulted in denial of principles of natural justice. As regards the new plea at the writ appellate stage, it was held that such a plea was permissible to be raised being the question of law. 13. As has been held by the Apex Court in Ambica Quarry Works vs. State of Gujarat & Ors. reported in AIR 1987 SC 1073 , the ratio of any decision must be understood in the background of the facts of that case. 13. As has been held by the Apex Court in Ambica Quarry Works vs. State of Gujarat & Ors. reported in AIR 1987 SC 1073 , the ratio of any decision must be understood in the background of the facts of that case. It has been said long time ago that a case is only an authority for what it actually decides and not what logically follows from it. (See Lord Halsbury in Quinn v. Leathern, 1901 AC 495). 14. The aforesaid plea of the petitioner can be looked into from the test of prejudice about which the Apex Court has discussed in the decision reported in (1993) 4 SCC 727 (Managing Director, ECIL, Hyderabad & Ors. vs. B. Karunakar & Ors.). The question that arose before the Court was as to whether non furnishing of the copy of the enquiry report itself would lead to inevitable conclusion that the enquiry was vitiated. As per the earlier decision of the Apex Court, reported in (1991) 1 SCC 588 (Union of India vs. Mohd. Ramzan Khan) before imposing any order of penalty, the delinquent must be furnished copy of the enquiry report enabling him to defend himself. Dealing with the test of prejudice in the event of non furnishing of the same, the Apex Court held that if it is found that non supply of the report would have made no difference to the ultimate findings and the punishment given, the Court/Tribunal should not interfere with the order of punishment. The Court/Tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished. It was held that the Courts should avoid resorting to such shortcuts. It was further held that since it is the Courts/Tribunals, which will apply their judicial mind to the question and give their reasons for setting aside or not setting aside the order of punishment, there would be neither a breach of the principles of natural justice nor a denial of the reasonable opportunity. It is only if the Court/Tribunal finds that the furnishing of the report would have made a difference to the result in the case that it should set aside the order of punishment. It was in that context, the test of prejudice was emphasized. 15. In Additional District Magistrate (City) Agra vs. Prabhakar Chaturvedi & Anr. It is only if the Court/Tribunal finds that the furnishing of the report would have made a difference to the result in the case that it should set aside the order of punishment. It was in that context, the test of prejudice was emphasized. 15. In Additional District Magistrate (City) Agra vs. Prabhakar Chaturvedi & Anr. reported in (1996) 2 SCC 12 , the Apex Court held that pleadings not made in the writ petition should not be considered by the High Court. In the said case, no grievance had been made in the writ petition against non furnishing of the Enquiry Officer's report. However, the High Court set aside the order of dismissal on the ground of non furnishing the copy of the enquiry report. It was held that in absence of any pleadings regarding any prejudice caused because of non furnishing of the copy of the enquiry report or even the enquiry report itself and thereby no grievance having been made in the writ petition, the High Court should not have considered the same. 16. In the instant case, no foundation has been made in the writ petition regarding non appointment of the Presenting Officer with the resultant prejudice caused to the petitioner in his defence. On being asked as to whether the writ Court will go into the said aspect of the matter in absence of any pleading in the writ petition, Mr. Bora, learned counsel for the petitioner submits that the same being a point of law, can be looked into at any stage irrespective of whether any foundation has been laid in the writ petition or not. I am afraid such a submission cannot be accepted. That apart, on perusal of the statements of the prosecution witnesses, nothing is discernable that it is the Enquiry Officer, who all by himself, led the foundation of the questions and/or he became the Prosecutor and the Judge. Certain general questions were put to the witnesses and the petitioner was provided with the right of cross-examination, which he declined. In such a situation, it cannot be said a case falling in the category of 'prejudice' in the departmental enquiry because of the non appointment of the Presenting Officer. Certain general questions were put to the witnesses and the petitioner was provided with the right of cross-examination, which he declined. In such a situation, it cannot be said a case falling in the category of 'prejudice' in the departmental enquiry because of the non appointment of the Presenting Officer. As regards the defence assistant, nothing is discernable that the petitioner had ever prayed for appointment of such defence assistant to defend his case, rather he fully participated in the enquiry proceeding and as a token of acceptance of such proceeding, he also put his signatures in the enquiry proceeding. Now on the basis of the aforesaid decisions, he seeks to raise the plea that because of non appointment of the Presenting Officer, the enquiry was vitiated. 17. As referred to above, in the appeal and during the argument also what has been emphasised is that the incident did not occur while the petitioner was on duty and that contrary to the findings recorded by the Enquiry Officer, the injury that was caused was a simply injury. Thus, there is tacit admission on the part of the petitioner about the incident. As has been held by the Apex Court in Channabasappa Basappa Happali vs. The State of Mysore reported in : AIR 1972 SC 32 when the delinquent admit the facts he is guilty. The facts speak for themselves. Admission of facts alleged in the charge sheet amounts to admission of guilt. 18. As to what were charges leveled against the petitioner has been noted above. In the enquiry proceeding, the same were held to have been established based on which and also considering the representation that was made by the petitioner, the disciplinary authority passed the impugned order dated 3rd October, 2009. In the counter affidavit filed by the respondents, it has been stated that the required documents including the statements of the PWs recorded during the enquiry were furnished to the petitioner. It has also been stated that the petitioner was given ample opportunity to take the help of defence assistant but he decided to defend his case all by himself. Such specific stand in the affidavit-in-opposition filed on 1st April, 2011 has not been denied by the petitioner by filing any rejoinder affidavit. As will be evident from the said affidavit, earlier also the petitioner was imposed some punishment because of dereliction of duty. Such specific stand in the affidavit-in-opposition filed on 1st April, 2011 has not been denied by the petitioner by filing any rejoinder affidavit. As will be evident from the said affidavit, earlier also the petitioner was imposed some punishment because of dereliction of duty. As regards the injuries that were caused by the petitioner on his fellow colleague, the respondents have enclosed the copy of the medical report, on perusal of which it is easily discernable that the person concerned sustained injuries. It is not the gravity of the injury, but the conduct of the delinquent which matters. 19. Rule 27 of the CRPF Rules, 1955 lays down the procedure for award of punishments. On perusal of the said provision, what is found is that the enquiry is to be conducted by the Enquiry Officer. There is no provision for appointment of any Presenting Officer. This is a procedural aspect, which need not detain us in view of the findings recorded above. 20. Mr. Bora, learned counsel for the petitioner submits that having regard to the long length of service of the petitioner coupled with the fact that an particular incident occurred not during employment and the injuries sustained by the fellow colleague being simple in nature, the penalty of removal from service is not disproportionate. As to whether the penalty is disproportionate or not is a matter to be decided by the appellate authority and not by this Court exercising jurisdiction under Article 226 of the Constitution of India. In view of the above, while not interfering with the impugned order of penalty, the writ petition is disposed of providing that the respondents may take on record the appeal dated 4th February, 2010 (Annexure-F) and dispose of the same on its own merit taking note of all the attending facts and circumstances and in accordance with law and only on the quantum of punishment. Let the appeal be disposed of as expeditiously as possible, preferably within 60(sixty) days from the date of furnishing the certified copy of the judgment and order along-with the copy of the said appeal to the appellate authority.