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2017 DIGILAW 101 (CAL)

Manendra Kumar v. Union of India

2017-01-18

DIPANKAR DATTA

body2017
JUDGMENT : DIPANKAR DATTA, J. 1. The petitioner was a Sub-Inspector of the Central Reserve Police Force. An order compulsorily retiring the petitioner from service, following disciplinary proceedings initiated against him, is challenged in this writ petition. 2. The pleaded case reveals a chequered history. A preliminary enquiry was conducted which prima facie revealed the involvement of the petitioner in acts of commission/omission amounting to misconduct. A formal charge-sheet was issued vide memorandum dated May 21, 2007 by the Deputy Inspector General of Police, CRPF, Durgapur, respondent No. 4 (hereafter the disciplinary authority), containing five articles of charge. The articles of charge read as follows: "Statement Of Articles Of Charges Framed Against No 911580146 SI(M) Maninder Kumar Of Office Of DIGP CRPF Durgapur (W/b) Article - I That the said No 911580146 SI(M) Maninder Kumar of office of DIGP CRPF Durgapur (W/B). While functioning as SI (Ministerial) and holding the charge of Establishment-II, attachment/temporary transfer etc) has committed a serious misconduct in his capacity as a member of the Force under section 11(1) of CRPF Act, 1949, in that he under a pre planned and well hatched conspiracy, told No 851311713 CT (Dfty) Khagendra Barik of the same office to arrange and prepare some candidates of written examination of CT(GD) dated 11/4/07, by taking money ad he could be in the know-how of the questions being recruitment clerk. This act of his amounts to breach of trust and misuse of official position, which is unbecoming of a Govt servant. Article - II That the said No 911580146 SI(M) Maninder Kumar of Office of DIGP CRPF Durgapur (W/B) while functioning as SI(Ministerial) and holding the charge of Establishment-II, attachment/temporary transfer etc) has committed a serious misconduct in his capacity as a member of the Force under section 11(1) of CRPF Act, 1949, in that even though he came to know certain questions of written examination for recruitment of CT(GD) scheduled to be held on 11/4/07, from No 901310057 Peom Amulya Ratan Roy of GC CRPF Durgapur but he concealed the same from his immediate superiors with ulterior motive. This act of his amounts to violation of oath of secrecy taken by him at the time of entry into Govt service and his this act is prejudicial to good order and discipline of the Force. This act of his amounts to violation of oath of secrecy taken by him at the time of entry into Govt service and his this act is prejudicial to good order and discipline of the Force. Article - III That the said No. 911580146 SI(M) Maninder Kumar of Office of DIGP, CRPF, Durgapur (WB) while functioning as SI(Ministerial) and holding the charge of Establishment-II, (dealing with the subjects of recruitment, transfer, attachment/temporary transfer etc.) has committed a serious misconduct in his capacity as a member of the Force under section 11(1) of CRPF Act, 1949, in that he failed to maintain absolute secrecy of secret official documents due to which photocopy of an important secret message bearing No. T. IX- 48/07/ES/Estt-I dated 21/3/07, which was supposed to be under the safe custody of said No. 911580146 SI(M) Maninder Kumar, was found to be in possession of No. 851311713 CT (Dfty) Khagendra Barik of the same office. This act of his is prejudicial to good order and discipline of the Force. Article – IV That the said No. 911580146 SI(M) Maninder Kumar, of office of DIGP, CRPF, Durgapur (WB) while functioning as SI(Ministerial) and holding the charge of Establishment-II, (dealing with the subjects of recruitment, transfer, attachment/temporary transfer etc.) has committed a serious misconduct in his capacity as a member of the Force under section 11(1) of CRPF Act, 1949, in that while processing the transfer case of executive personnel in bulk for filling up vacancies of GC, CRPF, Siliguri during 2005, did not observe or mention the criteria, based on which out of 60 names nominated by Durgapur Range Units, he proposed names of 40 personnel at his own including three ineligible personnel for posting to GC CRPF Siliguri violating the laid down norms and thus acted in a manner unbecoming of Govt servant. Article -V That the said No. 911580146 SI(M) Maninder Kumar, of office of DIGP, CRPF, Durgapur (WB) while functioning as SI(Ministerial) and holding the charge of Establishment-II, (dealing with the subjects of recruitment, transfer, attachment/temporary transfer etc.) has committed a serious misconduct in his capacity as a member of the Force under section 11(1) of CRPF Act, 1949, in that one civilian candidate namely Shri Prosun Roy of village-Sreepur, PO: Mahdyamgram, Kolkata-130 has preferred a written complaint to the IGP E/S, CRPF alleging that through he had cleared the review medical test held on 24/1/05 at Base Hospital-I, CRPF, New Delhi, his case for appointment to the post of HC(M) in CRPF was not considered. He also alleged that one person approached him and advised to contact the Mobile phone No. 9810265907 and accordingly he contacted and that person demanded Rs. 1.5 lakhs as bribe for appointment. In the said complaint the complainant has categorically stated that said SI(M) Maninder Kumar and his wife Sukla Ghosh were very well aware about this fact. Despite that said SI(M) Maninder Kumar though responsible for all recruitment matters at Range level being Recruitment clerk, did not reveal this fact to his immediate superior authority till he was asked by the department, which is unbecoming of a Govt servant." 3. An enquiry followed where 13 (thirteen) prosecution witnesses were examined and 8 (eight) documents exhibited. After conducting a full-fledged enquiry, the enquiry officer submitted a report dated February 25, 2009 holding that none of the charges levelled against the petitioner had been established. The report of enquiry was placed before the disciplinary authority who went on to record his disagreement with the findings of the enquiry officer by a note dated May 20, 2009. The report of enquiry together with the disagreement note was forwarded to the petitioner by a letter dated May 27, 2009 seeking his representation or submission, if any, in writing within fifteen days of receipt thereof. A representation dated June 5, 2009 followed at the instance of the petitioner. While consideration of the representation was pending, the petitioner invoked the writ jurisdiction of this Court for the first time by presenting W.P. No. 9786(W) of 2009. He had challenged the letter dated May 27, 2009 in such writ petition. A representation dated June 5, 2009 followed at the instance of the petitioner. While consideration of the representation was pending, the petitioner invoked the writ jurisdiction of this Court for the first time by presenting W.P. No. 9786(W) of 2009. He had challenged the letter dated May 27, 2009 in such writ petition. The writ petition was taken up for consideration by a coordinate Bench on June 22, 2009, when it was submitted on behalf of the petitioner that the disciplinary authority in its disagreement note had virtually arrived at a final conclusion regarding the guilt of the petitioner and that the opportunity extended to submit a representation was a mere formality. Upon hearing the parties, this is what the coordinate Bench held: "After careful consideration of all the relevant facts and circumstances, this court is of the view that the manner in which the disciplinary authority has proceeded cannot be appreciated. It is not for the said authority to conclude regarding any charges against the writ petitioner while giving him an opportunity to submit a representation. True, while disagreeing with the findings of the enquiry authority, it is for the disciplinary authority to come to certain tentative findings and such findings are required to be communicated to the concerned person so as to give him a chance to respond thereto. Mr. Chatterjee quite rightly mentions that the sprit of the said report of the disciplinary authority rather suggests that the guilt had already been established. After careful consideration of all relevant aspects, this court disposes of the writ application with the following directions:- The disciplinary authority is hereby directed not to act upon such conclusion regarding the guilt of the writ petitioner as reflected from its report, copy of which was communicated to the writ petitioner. The findings of the disciplinary authority in the said report be also deemed to be tentative and the disciplinary authority must proceed with the matter with their open mind – certainly without being guided by the observations already made. The writ petitioner is hereby directed to submit a representation to the said report and of course, in the light of the observations made hereinbefore. If such a representation is filed within a period of four weeks from this date, the disciplinary authority must consider the same in its proper perspective and take appropriate action/pass necessary order in respect thereof. The writ petitioner is hereby directed to submit a representation to the said report and of course, in the light of the observations made hereinbefore. If such a representation is filed within a period of four weeks from this date, the disciplinary authority must consider the same in its proper perspective and take appropriate action/pass necessary order in respect thereof. This must be done within a period of six weeks from the date of receipt of the said representation. There will, however, be no order as to costs." 4. It is not too clear as to whether the coordinate Bench was apprised of submission of representation dated June 5, 2009 by the petitioner prior to disposal of the writ petition. It has, however, been ascertained in course of hearing that the representation dated June 5, 2009 had been submitted by the petitioner by way of abundant caution since, during the pendency of the writ petition, the time stipulated for submission of representation was due to expire. 5. Be that as it may, before the petitioner could submit a representation by July 20, 2009, i.e. four weeks from June 22, 2009, the disciplinary authority by its order dated July 13, 2009 dismissed the petitioner from service without waiting till July 20, 2009 within which the petitioner, availing the liberty granted by the order dated June 22, 2009, could have filed his representation. All the articles of charge, except charge No. IV, were found to have been established against the petitioner. Aggrieved by the order of dismissal, the petitioner submitted an appeal before the Inspector General of Police, CRPF, Kolkata on August 4, 2009, respondent No. 3 (hereafter the appellate authority). The appellate authority by its order dated December 2, 2009 confirmed the order of the disciplinary authority and consequently the appeal stood dismissed. 6. A second round of writ litigation was initiated by the petitioner by challenging the order of dismissal from service [W.P. 655(W) of 2010]. Another coordinate Bench by its judgment and order dated May 2, 2012 held that the respondents were biased against the petitioner and set aside the order of dismissal as well as the appellate order. The judgment and order dated May 2, 2012 was carried in appeal by the respondents (FMA 1190 of 2013). Another coordinate Bench by its judgment and order dated May 2, 2012 held that the respondents were biased against the petitioner and set aside the order of dismissal as well as the appellate order. The judgment and order dated May 2, 2012 was carried in appeal by the respondents (FMA 1190 of 2013). The appeal was disposed of by an Hon'ble Division Bench by judgment and order dated November 24, 2014, material portion whereof reads as follows: "We have carefully perused the documents and the orders referred to above. The charges brought against the respondent wee serious. Once the Enquiry Officer exonerated the respondent from the charges and the authority disagreed with such finding they should give adequate opportunity to the delinquent to confront the area of disagreement. The learned Single Judge vide order dated June 22, 2009 gave liberty to the respondent to make representation within a period of four weeks from the said date coupled with a direction upon the Disciplinary Authority to consider the same within six weeks thereafter. The Disciplinary Authority vide order dated July 13, 2009 imposed the punishment without waiting for the representation that was to be filed by July 22, 2009. The respondent preferred an appeal. The appellate authority upheld the order vide order dated December 02, 2009. Paragraph 4 being the relevant paragraph is quoted below: 'Since the appellant had already submitted his representation before the disciplinary authority in reply to enquiry report and disagreement note of disciplinary authority, as such question of the fresh representation does not arise. If fact, the final order on the DE was passed just near about 04 weeks of time i.e. on 13/07/09. Hence, the contention of the appellant in this para is totally wrong and baseless.' From the paragraph quoted (supra) it would be clear that the Disciplinary Authority did not wait for the representation so directed by the learned Single Judge and passed the order prior to the expiry of the said date. ** ** ** ** Before going into any other question we feel that once the learned Single Judge directed the Disciplinary Authority to consider the representation of the respondent, the Disciplinary Authority could not have passed the final order imposing punishment without waiting for the representation to be submitted by the respondent. The respondent categorically pointed out this anomaly in paragraph 4 of the appeal. The respondent categorically pointed out this anomaly in paragraph 4 of the appeal. However, the appellate authority did not consider the same in its letter and sprit. On this ground the order of the appellate authority and/or the Disciplinary Authority cannot be sustained. The appeal succeeds and is allowed. The order of the Disciplinary Authority dated July 13, 2009 appearing at pages 124-131 so merged in the order of the appellate authority dated December 02, 209 appearing at pages 170-195 of the paper book is set aside. The matter is sent back to the Disciplinary Authority to consider the representation of the respondent (so long filed by him) and to pass a reasoned final order after giving the respondent adequate opportunity of hearing. ** ** ** ** ** ** At this juncture Mr. Moitra submits that in view of the prompt action on the part of the Disciplinary Authority the respondent could not get any opportunity to make his representation. We feel his appeal petition dated August 4, 2009 appearing at pages 133-168 of the paper book be treated as respondent's representation that may be considered by the authority. Since we have set aside the order of punishment, the respondent would be under deemed suspension so long the final order is not passed. The authority must pass the reasoned order with a period of two months from the date of communication of this order. There would be no order as to costs." 7. In purported compliance with the aforesaid order dated November 24, 2014, the disciplinary authority passed an order afresh dated October 3, 2015 imposing the punishment of compulsory retirement from service on the petitioner. There would be no order as to costs." 7. In purported compliance with the aforesaid order dated November 24, 2014, the disciplinary authority passed an order afresh dated October 3, 2015 imposing the punishment of compulsory retirement from service on the petitioner. The order also recorded that the petitioner is struck off from the strength of the CRPF with effect from October 3, 2015; the periods spent by him under suspension with effect from May 24, 2007 to July 13, 2009 is regularized "AS SUCH" for all purpose and he will not be entitled to draw any pay and allowances except what he has already drawn in the form of subsistence allowance, the period of deemed suspension with effect from July 14, 2009 to October 3, 2015 is also regularized "AS SUCH" for all purpose without he being entitled to draw any more pay and allowances, and permission granted to the petitioner on various occasions to avail leave during the periods spent under suspension is also regularized "AS SUCH". In continuation of the order dated October 3, 2015, the disciplinary authority effected certain amendment/modification vide order dated October 9, 2015. By such order, the petitioner was granted full compensation pension and retirement gratuity as admissible to him on the date of his compulsory retirement i.e. October 3, 2015 in terms of provisions contained in Rule 40(1) of the Central Civil Services (Pension) Rules, 1972. Also, the periods spent on suspension were directed not to be counted as qualifying service for pension. 8. The order of compulsory retirement from service was again challenged by the petitioner before the appellate authority by filing an appeal. By an order dated January 15, 2016, the appellate authority refused to interfere with the order impugned and consequently dismissed the appeal. 9. Mounting challenge to the order of the appellate authority, in which the order of the disciplinary authority merged, Mr. Maitra, learned senior advocate representing the petitioner contended that there was absolutely no evidence before the disciplinary authority on the basis of which the petitioner could be held guilty. According to him, all along the respondents were bent upon ensuring cessation of relationship of employer-employee and the same would be manifest from the facts preceding the orders under challenge in this writ petition. Several authorities have been cited by Mr. According to him, all along the respondents were bent upon ensuring cessation of relationship of employer-employee and the same would be manifest from the facts preceding the orders under challenge in this writ petition. Several authorities have been cited by Mr. Maitra to buttress his contention that the petitioner is entitled to reinstatement in service with full salary and allowances as if he had not been compulsorily retired from service, upon setting aside of the impugned orders. 10. Per contra, Mr. Chanda, learned Additional Solicitor General representing the respondents, contended that the proceedings initiated against the petitioner leading to issuance of the order of compulsory retirement from service as well as rejection of the petitioner's appeal against such order do not suffer from any infirmity warranting interference and that the writ petition is liable to be dismissed. 11. It is noted that while entertaining this writ petition on June 30, 2016, a coordinate Bench had recorded a submission made on behalf of the respondents that no counter affidavit was called for and that the writ petition could be decided on the basis of the copy records appended to the writ petition; as such, no such affidavit is on record. 12. In course of hearing, it was felt necessary to look into the records of the disciplinary proceedings culminating in the order of punishment passed against the petitioner. Mr. Chanda produced such records for perusal by the Bench. 13. The parties have been heard and the documents/records placed before this Bench perused. 14. The final order of compulsory retirement from service passed by the disciplinary authority dated October 3, 2015 is spread over twelve pages. Paragraph 1 is mere reproduction of the articles of charge; paragraphs 2 and 3 refer to the proceedings that were conducted by the enquiry officer; paragraph 4 refers to the points of difference noted by the disciplinary authority; paragraph 5 refers to certain propositions of law; paragraph 6 refers to prima facie involvement of the petitioner, established during the preliminary enquiry in leakage of question papers and the decision taken to initiate a formal disciplinary enquiry; paragraphs 7 and 8, portions whereof have been underlined by the disciplinary authority, are considered relevant and set out below: "7. It is a fact that all the prosecution witnesses have deposed statements against the delinquent during the course of preliminary enquiry. It is a fact that all the prosecution witnesses have deposed statements against the delinquent during the course of preliminary enquiry. It is also a fact that all the copies of statements of these witnesses have also ben incorporated in the DE as prosecution documents and the delinquent was also allowed to inspect all these prosecution documents during the course of departmental enquiry. Moreover, the delinquent was also provided with a copy of all these prosecution documents. However, the delinquent has not challenged these evidence on record during the departmental enquiry. It is also a fact that all the witnesses have pleaded ignorance during the course of departmental enquiry for the reasons best known to them. But no way their silence in the DE override the facts/statements deposed by them in the preliminary enquiry. 8. In the departmental enquiries, it cannot be insisted upon for solid proof or direct evidence to prove the charges levelled against a delinquent. In the instant case, the involvement of delinquent in the illegal act of assuring the civilian candidates for appointment in CRPF is treated as a serious misconduct in his capacity as a member of the Force. Whether, the delinquent actually could keep up his assurance to the candidates or otherwise is immaterial. Similarly, an offence committed by a person cannot be simply ignored because of non-availability of any of the direct evidence. Further, when the prosecution witnesses deposed during the PE about the involvement of the delinquent and copies of all the statements of these PWs have also been provided to the delinquent and the delinquent was also allowed to inspect all these prosecution documents during the course of departmental enquiry, which he did so and also not challenged the said statements on record. He has also not produced any defence witnesses or defence documents in his favour or brought out any new facts to prove his innocence throughout the departmental enquiry, the disciplinary authority was left with no other option but to accept the circumstantial evidences and the preponderance of probabilities about the involvement of the delinquent in the leakage of question paper which amounts to misconduct in his capacity as a member of the Force." 15. Paragraph 9 records that based on the contents of paragraphs 7 and 8, the then disciplinary authority could not see cogent reason to agree with the enquiry officer's report leading to issuance of the disagreement note and the first round of litigation initiated by the petitioner; paragraphs 10 and 11 refer to the final order of dismissal from service dated July 13, 2009 and the appellate order filed on an appeal against such order, respectively; paragraphs 12 and 13 refer to the proceedings arising out of the second round of litigation before the coordinate Bench and the Hon'ble Division Bench; paragraph 14 records the satisfaction of the disciplinary authority that the enquiry had been conducted in accordance with the laid down procedures including extension of ample opportunities at every stage to the petitioner to defend himself during the course thereof, the recording of further satisfaction that the representation of the petitioner against the disagreement note of the then disciplinary authority has not revealed any new facts or material evidence for consideration, and also records that charges under article - I, II, III, and V were proved based on the disagreement note issued by the then disciplinary authority; paragraphs 15 and 16 refer to certain points raised by the petitioner which were found by the disciplinary authority to be wrong and baseless; paragraph 17 records that the disciplinary authority who issued the memorandum of charge adduced evidence as prosecution witness; paragraph 18 refers to the order of the Hon'ble Division Bench dated November 24, 2014; and paragraph 19 records that the petitioner was called to the office of the disciplinary authority for answering certain queries which he did. The finding and conclusion of the disciplinary authority are recorded in paragraph 20 reading as follows: "20. After careful study, thoughtful application of mind and analysis of the DE proceedings, the disagreement note of the disciplinary authority, connected documents, representations dated 04/08/09 and 03/10/15 of the delinquent as well as orders dated 02/05/12 pronounced b y the Single Bench of the Hon'ble High Court of Calcutta in respect of WP No. 655(W) of 2010 and order dated 24/11/14 pronounced by the Division Bench of Hon'ble High Court of Calcutta in respect of FMA No. 1190 of 2013, I have come to the conclusion that the offence committed by No. 911580146 SI(M) Manendra Kumar of this Range is very serious in nature. ...the Enquiry Officer had exonerated him from all five charges levelled against him, as the Enquiry Officer had failed to appreciate the circumstantial evidence as well as preponderance of probabilities while drawing his conclusion in his report. But, the then disciplinary authority disagreed with the finding and proved the charges framed against him under Article - I, II, III and V correctly on the basis of the circumstantial evidences and the preponderance of probabilities as explained in disagreement note. As such, he is not a fit person to be retained in a disciplined Force, like, CRPF. Hence, his further continuance in service is detrimental to the good orders and discipline of the Force. Therefore, the delinquent deserves major punishment, like, dismissal or removal from the service. But, keeping in view his long years of service, mental agony and economic suffering he has already faced, further economic difficulties and suffering he and his family and his old parent might face in future in this age of uncertaining and problem of unemployment in the country I take a lenient and sympathetic view purely on humanitarian grounds. Therefore, in exercise of powers vested on me under section 11(1) of CRPF, Act 1949 read with rule – 27 of CRPF Rules, 1955, I the undersigned being the disciplinary authority hereby impose the punishment of 'COMPULSORY RETIREMENT FROM SERVICE' to No. 911580146 SI (M) Manendra Kumar, O/O the DIGP, Range, CRPF, Durgapur, with effect from the date of issue of this order i.e. 03/10/2015 (AN). The following orders are also hereby passed:-" 16. Bare perusal of the order dated October 3, 2015 passed by the disciplinary authority (Mr. B. D. Das) does not reveal any independent reasoning having been given by him while acting as the disciplinary authority. Comparing the final order dated October 3, 2015 with the disagreement note dated May 20, 2009 and the order of dismissal dated July 13, 2009, resemblance is found in respect of too many vital aspects which cannot be simply ignored. In fact, paragraph after paragraph of the order of dismissal dated July 13, 2009 have been bodily lifted and placed in the impugned order of punishment dated October 3, 2015. Mr. B.D. Das has merely relied on the disagreement note of the then disciplinary authority (Mr. In fact, paragraph after paragraph of the order of dismissal dated July 13, 2009 have been bodily lifted and placed in the impugned order of punishment dated October 3, 2015. Mr. B.D. Das has merely relied on the disagreement note of the then disciplinary authority (Mr. B. R. Kamath) and recorded a finding that the petitioner is not a fit person to be retained in a disciplined force like the CRPF and that his further continuance in service is detrimental to the good orders and discipline thereof. Such an approach bears a clear indication of non-application of mind as well as abdication of duty in deciding the fate of the petitioner in proceedings which are quasi-judicial in character. 17. It would, therefore, be necessary to look into the disagreement note which formed the foundation of the order of punishment passed against the petitioner. The disagreement note dated May 20, 2009 of the then disciplinary authority (Mr. B. R. Kamath) refers in extenso to statements made by one CT/Daftary Khagendra Barik (PW-09), Foll/Peon Amulya Ratan Roy (PW-12), SI (M) P. K. Roy (PW-7) and a civilian Mr. Prosun Roy (PW-13) in course of the preliminary enquiry that preceded the charge-sheet. 18. The last four paragraphs of the disagreement note written by Mr. B. R. Kamath, the then disciplinary authority, are reproduced below for facility of appreciation: "6. It is a fact that all the Prosecution Witnesses have deposed statements against the delinquent during the course of Preliminary Enquiry. It is also a fact that all the copies of statements of these witnesses have also been incorporated in the DE as Prosecution Documents and the delinquent was also allowed to inspect all these prosecution documents during the course of departmental enquiry. Moreover, the delinquent was also provided with a copy of all these prosecution documents. However, the delinquent has not challenged these evidence on record during the departmental enquiry. It is also a fact that all the witnesses have pleaded ignorance during the course of Departmental enquiry for the reasons best known to them. But no way their silence in the DE can override the facts/statements deposed by them in the Preliminary Enquiry. 7. In the Departmental Enquiries, it cannot be insisted upon for solid proof or direct evidence to prove the charge levelled against the delinquents. But no way their silence in the DE can override the facts/statements deposed by them in the Preliminary Enquiry. 7. In the Departmental Enquiries, it cannot be insisted upon for solid proof or direct evidence to prove the charge levelled against the delinquents. In the instant case, the involvement of delinquent in the illegal action of assuring the civilian candidates for appointment in CRPF is treated as a serious misconduct in his capacity as a member of the Force. Whether the delinquent actually could keep up his assurance to the candidates or otherwise is immaterial. Similarly, an offence committed by a person can not be simply ignored because of non-availability of any of the direct evidence. Further, when the prosecution witnesses deposed during the PE about the involvement of delinquent and copies of all the statements of these PWs have also been provided to the delinquent and the delinquent was also allowed to inspect al these prosecution documents during the Departmental Enquiry which he did so and also not challenged the said statements on record or has not produced any defence witnesses or defence documents in his favour or brought out any new facts to prove his innocence through out the departmental enquiry, the disciplinary authority is left with no other option but to accept the circumstantial evidences and the preponderance of probabilities about the involvement of the delinquent in the leakage of question which amounts to misconduct in his capacity as a member of the Force. 8. Apart from above, an FIR was also lodged with the New Township Police Station, Durgapur against the few personnel including the delinquent of DIGP Office as well as GC DPR office and units in connection with leakage of question paper of written examination of CT(GD) scheduled to be held on 11/4/07 at GC DPR and a case bearing No. 33/07 dated 18/5/07 under section 406/409/420/120(B) IPC GR 364/07 has also been registered against the personnel involved in the leakage of question paper including the delinquent. The case is still pending the court of law and next date hearing of the case has been fixed on 16/7/07 in the ACJM Court, Durgpur. 9. The case is still pending the court of law and next date hearing of the case has been fixed on 16/7/07 in the ACJM Court, Durgpur. 9. Since the circumstantial evidence as well as preponderance of probabilities have proved the charges under Article-I, II, III, and V the undersigned being the disciplinary authority cannot find any cogent reasons to agree with the conclusion of the Enquiry Officer's report in the instant Departmental Enquiry." 19. In spite of the petitioner's objection to the disagreement note, the order of dismissal from service dated July 13, 2009 was passed. The petitioner was held guilty of charges I, II, III and V primarily on the basis of statements made by witnesses in course of preliminary hearing. This was notwithstanding the fact that such witnesses retracted in course of deposing before the enquiry officer and submitted that they were forced to make statements in course of preliminary enquiry to falsely implicate the petitioner. The disciplinary authority referred to 'circumstantial evidence' in the said order without, however, specifying the evidence that was available on record to hold the petitioner guilty. 20. This writ petition raises, inter alia, an important question for decision i.e. can the statement of a witness recorded in course of preliminary enquiry leading to initiation of disciplinary proceedings be regarded as legal evidence to nail the charged officer, particularly when such witness did not stand by his previous statement while appearing as witness in the domestic enquiry? Obviously, on the basis of arguments advanced on behalf of the petitioner, the other questions that would arise are whether the proceedings manifest the bias of the respondents and whether there was sufficient evidence on record to hold that the petitioner is guilty, or in other words, whether the plea of the petitioner that it is a case of 'no evidence' is proved, and if the answer is in the affirmative, to what relief is he entitled. 21. The oral evidence of the material prosecution witnesses, which the disciplinary authority virtually proceeded to reject, may be noticed. 22. PW-7 SI (M) Prabhas Kumar Roy, deposed that he made a statement in course of preliminary enquiry against the petitioner "under compelling circumstances" and that he does "not confirm the correctness of ... 21. The oral evidence of the material prosecution witnesses, which the disciplinary authority virtually proceeded to reject, may be noticed. 22. PW-7 SI (M) Prabhas Kumar Roy, deposed that he made a statement in course of preliminary enquiry against the petitioner "under compelling circumstances" and that he does "not confirm the correctness of ... said statement." It was also his version, while answering to a question asked by the enquiry officer that he was compelled to give incorrect statements during the preliminary enquiry. 23. PW-8, CT/Daftary Rakesh Kumar also deposed that during preliminary enquiry he was compelled to give incorrect statement and that pressure was exerted on him to sign his statement. In reply to a question asked by the enquiry officer, he stated that he has no information as to who leaked the question papers to the petitioner and that he does not also have any information as to whether the petitioner had asked CT/Daftary Khagendra Barik to arrange candidates in order to sell the contents of the question paper to them. In course of cross-examination, PW-8 further stated that Mr. P. P. Singh, DIGP, CRPF, Durgapur (PW-1) and Mr. S.S. Sandhu, ADIGP, O/O IGP Yes (PW-2) were also associated with the preliminary enquiry in connection with leakage of question paper conducted by Mr. Mahboob Alam, IPS, IGP, NES. Constable/Daftari Khagendra Barik was PW-9. He also corroborated the version of PW-8 that PW-1 and PW-2 were present in the room where Mr. Mahboob Alam was conducting preliminary enquiry and that in course of such enquiry heavy pressure (kafi dabav) was exerted while obtaining statements. It was also his version that he was not allowed to read the contents of the statement that he was made to sign. 24. Foll/Peon Amulya Ratan Roy (PW-12) also corroborated the presence of PW-1 and PW-2 when Mr. Mahboob Alam called the witnesses for giving statements on the subject matter. This is what he said: "I was told to depose my statement under huge pressure and high voltage drama. The statement so recorded during P.E. neither read out to me nor permitted to read it and pressurized me to sign it. Now I came to know that in my statement some irrelevant facts which was not known by me were also inserted in my statement. Therefore, I declined the statement recorded during the P.E. because it was forcefully recorded." 25. Now I came to know that in my statement some irrelevant facts which was not known by me were also inserted in my statement. Therefore, I declined the statement recorded during the P.E. because it was forcefully recorded." 25. A preliminary enquiry, it is well-known, is a fact-finding exercise conducted to ascertain whether there are sufficient materials to embark upon a regular enquiry or not. If statements are made by individuals in course of preliminary enquiry which the officer conducting such enquiry finds to be acceptable, and a prima facie opinion regarding desirability to proceed further by initiation of disciplinary proceedings is formed, a report to that effect is prepared and placed before the relevant disciplinary authority for consideration. Once disciplinary proceedings are initiated by issuance of charge-sheet and it is considered necessary to conduct regular enquiry, individuals who have given statements in course of preliminary enquiry are produced for tendering oral evidence in course of regular enquiry or asked to say whether they stand by their previous statements, recorded in course of preliminary enquiry and exhibited in course of regular enquiry, or not, where-after they are allowed to be cross-examined by the charged officer. It is worthy to be noted that at the stage of preliminary enquiry, it is not necessary to extend any opportunity to the officer reported against to cross-examine any individual who might have made a statement against such officer. Normally, in a regular enquiry, the individuals who are brought as witnesses for the prosecution stand by their previous statements. However, upon the regular enquiry commencing and the witnesses before the enquiry officer deposing that statements made by them in course of preliminary enquiry were not voluntary but procured by exerting pressure/coercion or obtained by other means which is not lawful, it is no longer open to the enquiry officer to hold the charged officer guilty based on such statements only, recorded in course of preliminary enquiry, without there being evidence aliunde to establish the charges that the charged officer was asked to meet. 26. A departmental enquiry is not an empty formality. It is intended to extend to the charged officer reasonable opportunity to meet the charge and raise effective defence. 26. A departmental enquiry is not an empty formality. It is intended to extend to the charged officer reasonable opportunity to meet the charge and raise effective defence. It is considered to be part of principles of natural justice that statements of witnesses produced by the prosecution in course of a regular enquiry are recorded in the presence of the charged officer and an opportunity is given to him to cross-examine such witnesses. If the charged officer has denied the charges framed against him based on previous statements of individuals and the employer wishes to rely on such evidence in the regular enquiry, then such witnesses should again be produced and they must depose as to the facts which are mentioned in their previous statements. Should no evidence be given implicating the charged officer, question of exercising the right of cross-examination by him may not arise at all. It serves no purpose to bring witnesses to lead evidence in a regular enquiry who do not support the charge, and then to nail the charged officer on the basis of statements made by such witnesses during preliminary enquiry. The disciplinary authority overlooked the legal position that the petitioner did not have the opportunity of subjecting such witnesses to cross-examination, since the circumstances did not require him to exercise such right. It was, therefore, contrary to law governing disciplinary proceedings to drive home the charges based on previous statements which did not form substantive evidence in course of regular enquiry. 27. In the decision reported in AIR 1961 Calcutta 40 (Amulya Ratan Mukherjee v. Deputy Chief Mechanical Engineer, Eastern Railway), the distinction between a fact-finding enquiry and departmental enquiry was pointed out by a coordinate Bench and thereafter it was held that the respondents were not entitled to rely on evidence which had been given at the fact-finding stage, without producing those witnesses at the enquiry proper. This Bench is in complete agreement with the law laid down therein. 28. Non-production of witnesses as in Amulya Ratan Mukherjee (supra) and production of witnesses in a regular enquiry where they refuse to confirm their statements made in course of preliminary enquiry, as in the present case, do not stand on different footing and the charged officer, in a given case, would be justified in his grievance that findings have been returned on the basis of evidence which does not constitute legal evidence. 29. 29. On the face of the version of PWs 7, 8, 9 and 12 that they were pressurized to make statements in course of preliminary enquiry, it was obligatory for the prosecution to produce other legal evidence, which could be relied on, to nail the petitioner. What the prosecution did was to produce PWs 1 and 2. While PW-1 said that he had no association with the preliminary enquiry, PW-2 admitted his association and went on to say further that PWs 7, 8, 9 and 12 had no occasion to give their statements in course of preliminary enquiry upon pressure/coercion being exerted on them. This, coupled with the perception that the petitioner did not challenge the statements of the said witnesses made in course of preliminary enquiry, led the disciplinary authority (Mr. B.D. Das) to form an opinion that the charges levelled against the petitioner vide articles of charges I, II and III stood proved. Question that naturally arises is, whether the charges could have been proved in this manner or not. To the mind of this Bench, the answer has to be in the negative. As it appears from the discussion above, PWs 7, 8, 9 and 12 did not stand by the statements made in course of preliminary enquiry, and in view thereof, the contents of the statements made in course of preliminary enquiry by PWs 7, 8, 9 and 12 were of little value in the regular enquiry. At best, the evidence of PW-2 would suggest that they were not made to give their statements upon exertion of pressure/coercion but that by itself would not prove the contents of the statements to be true. Merely on the basis of the statement of PW-2 that the statements were obtained without exerting pressure/coercion would not justify a finding, based on the statements made in course of preliminary enquiry, that the petitioner is guilty. The enquiry officer was right in holding that none of the charges stood proved. 30. The decision reported in AIR 2013 SC 58 (Ayaaubkhan Noorkhan Pathan v. State of Maharashtra and ors.) reiterates the law that the author of a document, which is sought to be relied on in an enquiry, ought to be produced to face cross-examination by the delinquent employee. 30. The decision reported in AIR 2013 SC 58 (Ayaaubkhan Noorkhan Pathan v. State of Maharashtra and ors.) reiterates the law that the author of a document, which is sought to be relied on in an enquiry, ought to be produced to face cross-examination by the delinquent employee. Inspiration can be drawn from this decision to return a finding that on the basis of the statements obtained during preliminary enquiry, which were not substantiated in course of regular enquiry, the relevant charges cannot be said to have been established. 31. Whatever has been discussed above ex proprio vigore applies in respect of article of charge No. V. 32. Insofar as this charge is concerned, the disciplinary authority (Mr. B. R. Kamath) in his order dated July 13, 2009 recorded as follows: "(c) Shri Prosun Roy, Civilian (PW-13) had lodged complaint a before the IGP ES, CRPF vide his application dated 20/12/06 that SI(M) Manendra Kumar (delinquent) and his wife Shukla Ghosh were fully aware about the deal that took place between them and Prosun Roy who demanded 1.5 lakhs as bribe for his appointment for the post HC(M) in CRPF. Whereas, during the course of DE, the PW-13 had categorically stated that name of SI(M) Manendra Kumar and his wife were not listed directly in his complaint that lodged before the IGP, ES. While the Enquiry Officer had asked question No-04 to Shri Prosun Roy, Civilian (PW-13) about the knowing of the case of bribe by the delinquent and his wife, then said civilian had replied in a ambiguous and confusing manner which clearly appears that said civilian (PW-13) has changed his statement from the previous one. Thus, based on the above circumstantial evidence and preponderance of probabilities, the charge framed under Article –V stand proved. But the Enquiry Officer had failed to appreciate these circumstantial evidence while drawing his conclusion in his report. Thus, the undersigned do not agree with conclusion of Enquiry Officer as furnished in the report of Enquiry Officer in so far as the charges levelled against the delinquent under Article – V are concerned." 33. The disciplinary authority (Mr. B.D. Das) simply recorded his concurrence with the finding of Mr. B. R. Kamath. The version of PW-13 in course of enquiry was recorded in Hindi. The disciplinary authority (Mr. B.D. Das) simply recorded his concurrence with the finding of Mr. B. R. Kamath. The version of PW-13 in course of enquiry was recorded in Hindi. However, the gist of his version appears to have been reproduced in English by the enquiry officer in his report which reads as follows: "13. Shri Prosun Roy, PW-13 In his statement he stated that during – 2005, he was applied for the post of HC/M in CRPF and cleared all test but during medical examination he was declared unfit. Then he appealed for review medical examination and accordingly he was called for review medical examination at Delhi between 20/10/05 to 25/10/05. After medical examination he came to his home. Approximately after one month a person come to my home and given him a mobile number and asked him to contact on mobile number if he get himself recruited in CRPF. When he contacted on given mobile number i.e. 08810265907, Rs. 1,50,000/- was demanded. On this he thought that he has been selected and some broker wants to make money out of it so he wrote a letter to IGP ES to know the facts. In turns he was informed that he could not make his position in merit list. As regards mentioning the name of SI/M Manendra Kumar, he said that he do not know him personally neither he is involved in this issue. He also stated that he come to know about SI/M Manendra Kumar through his friend when he was discussing regarding asking money by some one for recruitment. During cross examination by the charged official he said that he did not asked the name of person who has given him the mobile number." 34. Neither Mr. B. R. Kamath nor Mr. B. D. Das took exception to recording of the gist of evidence of PW-13 by the enquiry officer and it would, therefore, not be unwise to proceed on the premise that there has been a proper reproduction of the version of PW-13. 35. Reading the extract of the evidence of PW-13 and the finding recorded by Mr. B. R. Kamath that he had "changed his statement from the previous one", it is clear that the disciplinary authority (Mr. 35. Reading the extract of the evidence of PW-13 and the finding recorded by Mr. B. R. Kamath that he had "changed his statement from the previous one", it is clear that the disciplinary authority (Mr. B. D. Das) acted illegally in the exercise of his jurisdiction in holding that article of charge No. V levelled against the petitioner stood proved for the reason assigned by Mr. B. R. Kamath. PW-13 was supposed to say the truth. He said whatever according to him was true. A change of stance cannot be used to the disadvantage of the petitioner. Charge No. V had to be proved sans the evidence of PW-13 by adducing other evidence, which the prosecution did not. 36. That apart, there being no enquiry worth the name to ascertain who the subscriber of the concerned mobile number was, the petitioner could not have been held to be guilty on surmises and conjectures. 37. That leaves us with article of charge No. III. The finding in respect of this charge is found in the order of dismissal dated July 13, 2009 at paragraph 4(a), which the disciplinary authority Mr. B. D. Das once again agreed to in his order dated October 3, 2015. Paragraph 4(a) reads thus: "(a) No 851311713 CT (Dfty) Khagendra Barik (PW No-09) has categorically stated in his statement during the Preliminary Enquiry that the delinquent asked PW-9 few days before commencement of the written examination of CT(GD) to arrange some candidates, so that, few question could be sold to them as he was aware about the question paper being a recruitment clerk in the DIGP DPR office. Further, he states that the delinquent had threatened him with dire consequence, if he leaked out the point about arraigning candidates to others. Besides, CT (Dfty) Khagendra Barik (PW-09) also stated that SI(M) Manendra Kumar used to take money for transfer, recruitment and used to send his man to the candidates house by seeing the Dossier of recruitment. Further, the delinquent used to get the Xerox of secret documents from PW-09 being handler/caretaker of the photocopier machine. Besides, CT (Dfty) Khagendra Barik (PW-09) also stated that SI(M) Manendra Kumar used to take money for transfer, recruitment and used to send his man to the candidates house by seeing the Dossier of recruitment. Further, the delinquent used to get the Xerox of secret documents from PW-09 being handler/caretaker of the photocopier machine. The copy of statement of PW-09 deposed during the course of preliminary enquiry which has been earmarked as prosecution document in the Departmental enquiry to substantiate the charges framed against the delinquent was inspected by the delinquent during the course of Departmental enquiry and he has not challenged the same on record. Whereas, PW-09 during the course DE had pleaded ignorant about the delinquent. Therefore, the direct evidence of this PW as well as the circumstantial evidence and preponderance of probabilities of his statement deposed during the Preliminary Enquiry which has not been challenged on record during the Departmental Enquiry by the delinquent in Article –I. Whereas, the EO has not appreciated the above facts in its right perspective while arriving at his conclusion. Hence, the undersigned do not agree with the conclusions of the Enquiry Officer in so far as the charges framed against the delinquent in Article-I is concerned." 38. Neither Mr. B. R. Kamath nor Mr. B. D. Das has referred to the "circumstantial evidence" perceived by them to exist pointing to the guilt of the petitioner. This Bench is afraid, having regard to the aforesaid discussion and considering the statement of CT/Daftary Khagendra Barik (PW-9), it is difficult to sustain the finding of guilt and to hold that the respondents were justified in imposing the punishment of compulsory retirement from service on the petitioner. 39. Attention of this Bench has also been invited by Mr. Maitra to the fact that CT/Daftary Khagendra Barik was also proceeded against simultaneously with the petitioner and that the order of dismissal passed against him has since been set aside by a coordinate Bench by judgment and order dated April 20, 2016 in W. P. 6930(W) of 2016 (Khagendra Barik v. Union of India and ors.). An assuredly apposite observation found in such judgment and order is quoted below: "Theoretically, it is possible, notwithstanding a preliminary inquiry report, that upon the charge-sheet being issued to the delinquent, his reply thereto satisfies the disciplinary authority to close the matter. An assuredly apposite observation found in such judgment and order is quoted below: "Theoretically, it is possible, notwithstanding a preliminary inquiry report, that upon the charge-sheet being issued to the delinquent, his reply thereto satisfies the disciplinary authority to close the matter. However, where, upon receipt of the delinquent's reply to the charge sheet, the disciplinary authority decides to pursue the disciplinary action by engaging an inquiry officer to inquire into the charges levelled, the preliminary inquiry report obtained prior to the issuance of the charge sheet may not be used as conclusive evidence, though it may be relied upon by affording the delinquent an opportunity of questioning the veracity thereof, including by cross-examining the author of the preliminary inquiry report or the persons whose versions may have been given credence in such preliminary inquiry report. In other words, in course of the regular inquiry conducted in a disciplinary action, the preliminary inquiry report has limited value and its worth is subject to its acceptance by the delinquent. ****** Whether it is the inquiry officer or the disciplinary authority, the rules as to reliance on the preliminary inquiry report would not be different. If the inquiry officer cannot mechanically rely on the pre-charge sheet preliminary inquiry report without its independent corroboration in course of the inquiry, the disciplinary authority is equally precluded from relying on the findings of a preliminary inquiry report without independent corroboration of the charges in course of the disciplinary action. It is not open to the disciplinary authority to rely completely on the preliminary inquiry report unless the tentative findings of the preliminary inquiry report are established on the test of preponderance of probabilities upon the participation of the delinquent in such process.****" (underlining for emphasis) 40. Although this Bench has been informed of an appeal having been carried from the said judgment and order, this Bench finds no hesitation in recording its agreement with such observation as quoted above. 41. It is now time to deliberate on an aspect which went unnoticed by the disciplinary authority (Mr. B. D. Das). Preliminary enquiry is required to be conducted by the officer entrusted to conduct it. Even though presence of Mr. P.P. Singh (PW-1) in the room where statements were obtained from various witnesses by Mr. Mahboob Alam is not clearly proved, that Mr. S. S. Sandhu (PW-2) was present is admitted by PW-2. B. D. Das). Preliminary enquiry is required to be conducted by the officer entrusted to conduct it. Even though presence of Mr. P.P. Singh (PW-1) in the room where statements were obtained from various witnesses by Mr. Mahboob Alam is not clearly proved, that Mr. S. S. Sandhu (PW-2) was present is admitted by PW-2. In the deposition of PW-2, one does not see any reason for which he remained present in the room and under whose orders. The reason as to why PW2 was present in the room could not also be explained by Mr. Chanda. In the absence of any valid order passed by any competent authority authorizing PW-2 to remain present in the room where Mr. Mahboob Alam was recording the statements of witnesses, presence of PW-2 becomes unauthorized. Considering his rank and position, it would not be unreasonable to infer that CRPF personnel who were mere constable/peons would have no other alternative but to abide by what may have been dictated to them or required of them. The plea of such personnel that they were made to give their statements upon pressure/coercion being exerted and that they were even not allowed to read what was written as spoken by them, cannot be brushed aside as unbelievable. 42. Further, there is one other aspect which would require deliberation. Although Mr. P.P Singh and Mr. S.S. Sandhu were listed in the list of witnesses appended to the charge-sheet as PWs 1 and 2 respectively, it can reasonably be inferred that they were produced as witnesses in the enquiry after the relevant prosecution witnesses had turned hostile and the department realized that the enquiry was not proceeding in the way they wished it to proceed. Although a charged officer cannot pray that prosecution witnesses be examined in a particular order, there could be no earthly reason as to why PWs 1 and 2 were withheld till the other witnesses completed their depositions. Does it not indicate that the respondents were confident of the charges against the petitioner being proved on the basis of oral evidence of other CRPF personnel and that the evidence of PWs 1 and 2 would not be required, but considered it necessary to bring them as witnesses to anyhow ensure that a finding adverse to the petitioner is returned by the enquiry officer? Accepting that any witness who figures in the list of witnesses high up can be examined after witnesses listed at the bottom have deposed, it cannot be gainsaid that each case has to be decided on its peculiar facts and there seems to be justification in the contention of Mr. Maitra that PWs 1 and 2 were introduced at the last stage of the enquiry to plug the holes. 43. The appellate order of the appellate authority does not fare better. The appellate authority in paragraph 9 of its order observed that Articles of Charge I, II, III and V stood proved on the basis of circumstantial evidence and preponderance of probabilities, and that the Hon'ble Division Bench in its order dated November 24, 2014 had not found any irregularity in conducting the departmental enquiry and the disagreement note of the disciplinary authority. Apart from the statements recorded during preliminary enquiry, there was nothing substantial on the record of the regular enquiry to hold the petitioner guilty. What were the circumstantial evidence and preponderance of probabilities have not been discussed in any great detail except reiterating that the procedure followed was in accordance with the rules. That the Hon'ble Division Bench did not make any comment in regard to the disciplinary proceedings was not at all a relevant factor favourable to the disciplinary authority. A reading of the order of the Hon'ble Division Bench extracted supra would reveal that the merits were not examined; hence, the perception of the appellate authority as observed in the appellate order is without basis. The contentions raised by the petitioner have been mechanically brushed aside and it has also been opined that a lenient view has been taken by ordering compulsory retirement of the petitioner form service with full pensionary benefits. The appellate authority not having addressed the legal points that were involved has manifestly committed an error of jurisdiction by remarking that the petitioner did not bring out 'any new facts or material evidence worth consideration'. This Bench is constrained to hold that there has been no consideration of the appeal worth the name. 44. On the point of legality of the impugned orders, the petitioner must be held to have succeeded in convincing this Bench that they are liable to be set aside. This Bench is constrained to hold that there has been no consideration of the appeal worth the name. 44. On the point of legality of the impugned orders, the petitioner must be held to have succeeded in convincing this Bench that they are liable to be set aside. However, having regard to the seriousness of the charges levelled against the petitioner and the very fact that 'aastha' of the employer in retaining the petitioner in service has taken a beating, the relief claimed in the writ petition requires to be moulded. 45. Without interfering with the orders impugned and subject to directions following, it is directed that the petitioner, aged 44 years as on date of affirmation of the affidavit accompanying the writ petition, shall be entitled to Rs.2 lakh each year as monetary compensation from January 1, 2016 till the date of his superannuation as per his conditions of service, over and above the benefits that have been extended to him by the impugned order dated October 3, 2015 read with the subsequent order of October 9, 2015. In case the petitioner is due to retire on superannuation in the midst of a calendar year, he shall be entitled to a proportionate share of Rs. 2 lakh for such period that falls short of a year. Let such payment be released within 90 (ninety) days of receipt of a copy of this judgment and order. 46. Should the respondents fail or neglect to make payment of compensation within the aforesaid time frame, the impugned order of compulsory retirement from service and the appellate order affirming it shall stand set aside and the petitioner entitled to reinstatement in service with full back wages. 47. The writ petition stands allowed to the extent mentioned above. Parties are, however, left to bear their own costs. 48. The records of disciplinary proceeding shall be returned to Mr. Nandi, learned advocate-on-record for the respondents. Urgent photostat certified copy of this judgment and order, if applied, may be furnished to the applicant at an early date. Writ petition disposed of.