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2015 DIGILAW 295 (JK)

Union of India, & ors. v. Farooq Ahmad Malik

2015-06-02

ALI MOHAMMAD MAGREY, N.PAUL VASANTHAKUMAR

body2015
JUDGMENT N. Paul Vasanthakumar, CJ – These appeals are filed against the orders passed in SWP no. 1352/2009 dated 14.03.2014 and SWP no. 1373/2009 dated 13.02.2014 allowing the writ petitions filed by the respondents in these appeals. 2. The respondent in LPA no. 128/2014 was enrolled as Constable (General Duty) in Central Reserve Police Force and allotted No. 973360351. A criminal case was registered against him in FIR no. 40/2008 on the file of Police Station Achabal under Section 22 of the Narcotic Drugs and Psychotropic Substance Act (NDPS Act). 3. The respondent in LPA no. 129/2014 also joined as Constable (General Duty) in Central Reserve Police Force and was allotted No. 973360333. He was also involved in a criminal case registered in FIR no. 40/2008 on the file of Police Station Achabal under Section 22 of the NDPS Act. 4. Both the respondents were suspended as they were remanded to police custody and later on released on bail. Enquiry was conducted and the charge having been proved, both of them were dismissed from service. The appeals filed against the orders of dismissal were also rejected. 5. The contention of the appellants in these appeals is that the respondents, while serving as Constables, were arrested on 14.04.2008 during Naka checking at Methmmoh, Chategul Utrasoo and were possessed of 2 Kg-750 gm drugs suspected to be Brown Sugar. FIR No. 40/2008 was registered under the NDPS Act and they were sent to police custody. The respondents were placed under suspension and Court of Inquiry was ordered on 15.04.2008. The disciplinary authority passed an order on 18.08.2008 to conduct the departmental enquiry and a charge memo was issued on 22.09.2008. The reply given by the respondents being not convincing the Enquiry Officer was appointed who conducted the enquiry and based on the enquiry findings the Disciplinary Authority awarded punishment of dismissal to both the respondents by order dated 12.01.2009 and there is no illegality in the procedure adopted. The learned counsel further submitted that even though the criminal Court acquitted the respondents, such acquittal was not on merits but the criminal court recorded that the Alkaloid was detected which could not be identified with the available facility at FSL Srinagar. 6. The learned counsel further submitted that even though the criminal Court acquitted the respondents, such acquittal was not on merits but the criminal court recorded that the Alkaloid was detected which could not be identified with the available facility at FSL Srinagar. 6. The contention of the learned counsel for the respondents in these appeals is that the respondents are not well versed in English language and the enquiry having been conducted in a language not known to the respondents, the punishment imposed based on the enquiry report is not valid. 7. It is the case of the appellants that the respondents were explained in Hindi, the language known to them about the enquiry proceedings and after the enquiry the respondents have signed the enquiry proceedings and it is too late for the respondents to contend that the enquiry was conducted in a language not known to them. 8. The learned counsel appearing for the respondents was asked as to whether any such stand was taken by the respondents either before the Enquiry Officer or before the disciplinary authority or before the appellate authority. The learned counsel fairly stated that no such stand was taken before the authorities concerned. The learned counsel appearing for the appellants contended that the respondents having not taken such stand before the enquiry officer, disciplinary authority or before the appellate authority, it is not open to the respondents to raise a new contention before this Court. The learned counsel for the appellants further stated that acquittal order passed by the criminal court being not on merits, the same will not have any bearing in the disciplinary proceedings and the said issue is no longer res integra as the standard of proof required in the departmental proceedings is preponderance of probabilities whereas in the criminal proceedings the proof required is beyond reasonable doubt. Learned counsel also submitted that Rule 27 of the CRPF Rules, 1955, which states that if a member of the force has been tried and acquitted by the criminal court he shall not be punished departmentally for the same charge without the prior sanction of the Inspector general, has no application to the facts of this case as the respondents were dismissed from service before they were discharged from the criminal charge and, therefore, the learned Single Judge was not right ion setting aside the orders of dismissal by applying Rule 27 (ccc) of the CRPF Rules, 1955. 9. We have considered the rival submissions and perused the record. 10. It is not in dispute that respondents were involved in a criminal case for possessing Brown Sugar and they were members of the disciplinary force. The criminal Court recorded the acquittal on benefit of doubt by judgment dated 29.04.2009. Departmental proceedings were initiated and final order was passed on 12.01.2009, which is prior to the criminal court order. Thus Rule 27 (ccc) of the CRPF Rules, 1955 has no application to the facts of this case. The contention of the respondents that the enquiry proceedings were conducted in a language not known to them was never the case of the respondents before the enquiry officer, the disciplinary authority or even before the appellate authority. Thus the respondents are not entitled to argue the said ground for the first time before this Court. The charge of possessing huge quantity of narcotic drugs by persons belonging to disciplined force is a serious misconduct. The criminal court also not acquitted the respondents on merits but only due to the reason that the prosecution has not proved the case as it failed to identify the alkaloid due to nonavailability of the facility at FSL Srinagar. It is a settled proposition of law that the proof required in the departmental proceedings and criminal proceedings is entirely different. The preponderance of evidence is sufficient to prove a charge in a departmental proceedings and in the departmental proceedings the charge was proved and the charge being very serious, the appellants are bound to take serious view of the matter and no leniency could be shown to the respondents. The learned Single Judge has given much weight on the acquittal in the criminal case. The learned Single Judge has given much weight on the acquittal in the criminal case. As already stated, serious charge having been proved in the departmental enquiry and the acquittal recorded by the criminal court being not on merits and the jurisdiction of this court to interfere with the punishment being very limited, we are of the view that these appeals filed by the appellants deserve to be allowed. 11. In fine, both these appeals are allowed and the orders of the learned Single judge are set aside. No costs.