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2017 DIGILAW 39 (MEG)

Puran Singh v. Union of India

2017-06-08

S.R.SEN

body2017
JUDGMENT : S.R. Sen, J. Heard Mr. R. Chuodhury, learned counsel on behalf of the petitioner as well as Mr. R.Debnath, learned CGC on behalf of the respondents - Union of India. 2. The petitioner's case in a nutshell is that: "1. Shri Puran Singh is the permanent resident of Village Chinki Farm, Post Office - Bigarabagh, Khatima, District: - Udham Singh Nagar in the State of Uttaranchal. 2. He was appointed/recruited on 26th March 1981 as Constable in the Central Reserve Police Force and has done duty at several border areas of India for last 16 years without any complaint. At the time of commission of alleged offence he was posted at E/35th Bn C.R.P.F. at Thoubal (Manipur). 3. On 21st May 1998, Shri Puran Singh was feeling sick and having rest in the evening as he was supposed to be on duty from 2030 hrs. One of his colleagues named Govinda Barman came to him and reminded him of his duty time. The Petitioner then conveyed his inability to get out from the bed due to serious pain in the body and requested him to do the needful. The said Govinda Barman then went away and thereafter Havaldar Radhey Shyam Pandey came to him. The Petitioner explained to him his physical condition and requested him to help. Havaldar Radhey Shyam Pandey then performed his duty that night, as is normal practise in the force. 4. That no medical check-up of the Petitioner was carried out, neither any medication was provided to him for his sickness that night. On 22nd May 1998 he was taken to a Medical Officer and the Medical Officer mentioned in his report that, "He has taken alcohol, but is under control" and on 23rd May 1998 the Commandant issued an order of suspension from duty vide Order No. P.VIII-1/98-35-EC.II dated 23rd May 1998. 5. A Departmental Enquiry was instituted and two articles of charge was framed against him and none of these two articles mentioned about his alleged intoxication. But the Inquiry Officer reported that the petitioner was intoxicated during the duty period and based on this unauthorized inclusion he held the charges proved. 6. The Commandant, being the disciplinary authority, passed the order of "Removal from service" vide Order No.P.VIII-1/98-35-EC-II dated 6th August 1998 without following the prescribed procedure and without examining the report of Inquiry Officer properly. 7. 6. The Commandant, being the disciplinary authority, passed the order of "Removal from service" vide Order No.P.VIII-1/98-35-EC-II dated 6th August 1998 without following the prescribed procedure and without examining the report of Inquiry Officer properly. 7. Against the aforesaid irregularities Shri. Puran Singh submitted an appeal under Rule 28 (e) of the CRPF Rules, 1955. The said appeal was rejected by the DIG-P Kohima vide its order No. R.XIII-4/99-EC-III dated 23rd September 1999 being devoid of merit without application of mind. 8. Aggrieved by the order of the Appellate Authority, Shri. Puran Singh thereafter filed a revision petition before the Inspector General of Police, N.E.S., C.R.P.F., Shillong. The same was also rejected by the IGP vide its Order No. R.XIII.9/2000-Adm-I (NES) dated 01 September 2000 being devoid of merits without application of mind. 9. The impugned order of "Removal from Service" passed against the Petitioner is not only unjust but also illegal and not sustainable in the eye of the law on the following counts- A. There is nothing on record to show as to how the Commandant came to know of the offence as no written complaint is annexed to the proceedings. B. That no medical checkup of the Petitioner was carried out, neither any medication was provided to him for his sickness that night. On 22nd May 1998 he was taken to a Medical Officer C. The provision of Para 6.6 and 6.7 of Establishment Manual CRPF and Standing Order No. 5/2000 dated 5/6/2000, which are mandatory have not been followed and violated the order/instruction of the Force. D. Section 11 (1) of the CRPF Act, 1949 deals with Minor punishment. Punishment of "Removal from Service" is not provided in this section. But the punishment of - Removal from service" was imposed illegally and arbitrarily. E. That the Petitioner as per articles of charge, allegedly committed lesser heinous offence according to the CRPF Act, 1949 for which minor punishment is prescribed, but was awarded the highest penalty of "Removal from Service". F. The Inquiry Officer acted as Prosecutor and the Judge which is against the rules of Natural Justice and as such liable to be set aside. G. The Prosecution Witness No. 4 and 6 stated that the petitioner left the duty of the main gate at 1120 hrs on 23.5.1998 and was sleeping in the tent. The Prosecution Witness No 5. G. The Prosecution Witness No. 4 and 6 stated that the petitioner left the duty of the main gate at 1120 hrs on 23.5.1998 and was sleeping in the tent. The Prosecution Witness No 5. stated that the petitioner used to drink liquor. All those Prosecution Witness deposes against the alleged charge which were (1) "was detailed for patrolling duty on 21.5.1998 from 2030 hrs but he did not turn up for duty" and (2) "had replied using un-parliamentary language "Main nahin uthunga, main tumahare naukar nahin hun." The Enquiry Report is biased, fabricated and not corroborated. H. The witnesses were not examined by the Inquiry Officer. Their statements were recorded and on the basis of such statement he reported that the articles of charges have been established. The departmental inquiries are quasi-judicial in nature and as such it is obligatory that quasi-judicial authority conduct according to law and not as a result of caprice, whim or fancy or decision taken on ground of expediency. I. There was serious miscarriage of Justice and violation of the procedural safeguards and as such against the observations of Supreme Court recorded in Para 11 of (1987) 4 SCC 611 . J. The Hon'ble Supreme Court, in the case of Mahavir Prasav v. State of U.P. ( AIR 1970 SC 1302 ) observed that "recording of reasons in support of a decision by a quasi-judicial authority is obligatory as it ensures that the decision is reached according to law and it is not a result of caprice, whim or fancy or reached on ground of policy of expediency." K. It is a case of not only illegality, irrationality, but also perversity, which in terms of the Hon'ble Supreme Court of India judgment reported in Para 5 of AIR 1992 SC 417 is a case of judicial intervention. 10. Shri Puran Singh accordingly filed a writ petition before the Hon'ble High Court of Uttarakhand at Nainital, which according to Hon'ble High Court has no territorial jurisdiction and disposed on 09 April 2013 with direction to file before High Court having jurisdiction. 11. Hence this petition before this Hon'ble High Court." 3. Learned counsel for the petitioner, Mr. R. Choudhury submits that the petitioner joined his service in CRPF on 26-03-1981 and since then he is performing his duty with full sincerity and devotion. 11. Hence this petition before this Hon'ble High Court." 3. Learned counsel for the petitioner, Mr. R. Choudhury submits that the petitioner joined his service in CRPF on 26-03-1981 and since then he is performing his duty with full sincerity and devotion. It is also a fact that he had no bad record or any adverse remarks in his ACR. On 21-05-1998, petitioner was not feeling well so he could not perform his duty and for this, a charge was framed against him. Besides that, a charge was also framed that he had used some unparliamentarily words against his superior officer under the influence of alcohol. After that, he was put under suspension under Section 11 (1) of the CRPF Act, 1949 and was finally removed from service. Learned counsel for the petitioner further argued that the so called enquiry is not an enquiry at all as there was neither a Presenting Officer nor was petitioner given a chance to defend his case so the impugned order dated 06-08-1998 is bad in law. The petitioner then filed a departmental appeal and the same was rejected. Thereafter, the petitioner again filed a revision petition which was again rejected. 4. On the other hand, learned CGC Mr. R. Debnath submits that petitioner was removed from service because he was found intoxicated and remained absent from duty and after thorough enquiry only he was removed from service, so the petition may be dismissed. 5. After hearing the submission advanced by the learned counsel for the parties, I have perused Section 11 (1) of the CRPF Act, 1949 and the same is reproduced herein below for ready reference: "11. 5. After hearing the submission advanced by the learned counsel for the parties, I have perused Section 11 (1) of the CRPF Act, 1949 and the same is reproduced herein below for ready reference: "11. Minor punishments—(1) The Commandant or any other authority or officer as may be prescribed, may, subject to any rules made under this Act award in lieu of or in addition to, suspension or dismissal any one or more of the following punishments to any member of the force whom he considers to be guilty of disobedience, neglect of duty, or remissness in the discharge of any duty or of other misconduct in his capacity as a member of the force, that is to say :- (a) reduction in rank; (b) fine of any amount not exceeding one month's pay and allowances; (c) confinement to quarters, lines or camp for a term not exceeding one month; (d) confinement in the quarter-guard for not more than twenty eight days with or without punishment drill or extra guard, fatigue or other duty; and (e) removal from any office of distinction or special emolument in the force." 6. On bare perusal of the said Section 11(1) of the CRPF Act, 1949, it does not mention nor does it appear that major punishment is provided therein, it speaks only about minor punishment. In the enquiry report also which is at Annexure-2 at page 24 of the writ petition, nothing is mentioned that he had misbehaved under the influence of alcohol. The contention argued by the learned counsel for the petitioner, Mr. R. Choudhury that the petitioner was not given a fair opportunity to defend himself and without a Presenting Officer, in that regard, learned CGC, Mr. R.Debnath could not give any satisfactory reply to the Court. 7. Hon'ble Supreme Court in the case of Central Industrial Security Force v. Abrar Ali passed in Civil Appeal No. 2148 of 2015 wherein Hon'ble Apex Court at para 13 had made the following observation: "13. Though we are of the view that the High Court ought not to have interfered with the order passed by the Disciplinary Authority, the penalty of dismissal from service is not commensurate with delinquency. The Respondent was found guilty of desertion of the Force for a period of five days and not improving his conduct in spite of imposition of penalties on three occasions earlier. The Respondent was found guilty of desertion of the Force for a period of five days and not improving his conduct in spite of imposition of penalties on three occasions earlier. For the above delinquencies, the penalty of dismissal from service is excessive and harsh. In our view, the penalty of compulsory retirement would meet the ends of justice. We are informed by the counsel for the Appellants that the Respondent is entitled for pension as he has completed 10 years of service. In order to avoid any controversy, we direct that the Respondent shall be entitled for notional continuity of service till the date of completion of minimum service required to make him eligible for pension. He will not be entitled for payment of salary and allowances for that period." 8. After scanning the documents referred above and taking into consideration the provision of Section 11(1) and the observation made by the Hon'ble Apex Court, I am of the considered view that in this instant case, respondent had taken an arbitrary decision without applying any judicial mind because respondent could not show that the petitioner had any previous bad record. Secondly, the offence committed by him for just remaining absent from duty for one day could have been dealt in some other way by imposing a minor punishment, such as deducting one month's salary or issue a strict warning because petitioner has not committed such an offence earlier as per record. Moreover, when the enquiry was not fair and it was without a Presenting Officer and without giving any opportunity to the petitioner, the enquiry cannot be said that it is in accordance with law and principle of natural justice. 9. Rule 27 of the CRPF Act, 1949 made an elaborate provision at clause "c" of the said rule on how to conduct an enquiry pertaining to heinous offence or where heinous or other offence where major punishment is, but in this instant case the provision of the Section mentioned in the dismissal order was not followed at all as per the record is concerned. Rule 27 of the CRPF Act, 1949 is reproduced herein below for ready reference: "27. Rule 27 of the CRPF Act, 1949 is reproduced herein below for ready reference: "27. Procedure for the Award of Punishments:- (c) The procedure for conducting a departmental enquiry shall be as follows:- (1) The substance of the accusation shall be reduced to the form of a written charge which should be as precise as possible. The charge shall be read out to the accused and a copy of it given to him at least 48 hrs. before the commencement of the enquiry. (2) At the commencement of the enquiry the accused shall be asked to enter a plea of "Guilty" or "Not Guilty" after which evidence necessary to establish the charge shall be let in. The evidence shall be material to the charge and may either be oral or documentary, if oral: (i) it shall be direct: (ii) it shall be recorded by the Officer conducting, the enquiry himself in the presence of the accused: (iii) the accused shall be allowed to cross examine the witnesses. (3) When documents are relied upon in support of the charge, they shall be put in evidence as exhibits and the accused shall, before he is called upon to make his defence be allowed to inspect such exhibits. (4) The accused shall then be examined and his statement recorded by the officer conducting the enquiry. If the accused has pleaded guilty and does not challenge the evidence on record, the proceedings shall be closed for orders. If he pleads "Not guilty", he shall be required to file a written statement and a list of such witnesses as he may wish to cite in his defence within such period, which shall in any case be not less than a fortnight, as the officer conducting enquiry may deem reasonable in the circumstances of the case. If he declines to file a written statement, he shall again be examined by the officer conducting the enquiry on the expiry of the period allowed. (5) If the accused refuses to cite any witnesses or to produce any evidence in his defence, the proceedings shall be closed for orders. If he produces any evidence the officer conducting the enquiry shall proceed to record the evidence. (5) If the accused refuses to cite any witnesses or to produce any evidence in his defence, the proceedings shall be closed for orders. If he produces any evidence the officer conducting the enquiry shall proceed to record the evidence. If the officer conducting the enquiry considers that the evidence of any witness or any document which the accused wants to produce in his defence is not material to the issues involved in the case he may refuse to call such witness or to allow such document to be produced in evidence, but in all such cases he must briefly record his reasons for considering the evidence inadmissible. When all relevant evidence has been brought on record, the proceedings shall be closed for orders. (6) If the Commandant has himself held the enquiry, he shall record his findings and pass orders where he has power to do so. If the enquiry has been held by any officer other than the Commandant, the officer conducting the enquiry shall forward his report together with the proceedings to the Commandant who shall record his findings and pass order where he has power to do so. (cc) Notwithstanding anything contained in this rule- (i) Where any penalty is imposed on a member of the Force on the ground of conduct which has led to his conviction on a criminal charge: or (ii) Where the authority competent to impose the penalty is satisfied for reasons to be recorded by it in writing that is not reasonably practicable to hold an enquiry in the manner provided in these rules: or (iii) Where the Director General is satisfied that in the interest of security of the State, it is not expedient to hold any enquiry in the manner provided in these rules, the authority competent to impose the penalty may consider the circumstances of the case and make such order thereon as it deems fit. (ccc) When a member of the Force has been tried and acquitted by a criminal court, he shall not be punished departmentally under this rule on the same charge or on a similar charge upon the evidence cited in the criminal case, whether actually led or not except with the prior sanction of the Inspector General." 10. (ccc) When a member of the Force has been tried and acquitted by a criminal court, he shall not be punished departmentally under this rule on the same charge or on a similar charge upon the evidence cited in the criminal case, whether actually led or not except with the prior sanction of the Inspector General." 10. Therefore, the respondent is directed to reinstate the petitioner in service with immediate effect and his service benefits should be paid from the date on which he was removed from service. Accordingly, the impugned order dated 06-08-1998 (Annexure-3), impugned order dated 23-09-1999 (Annexure-4) and impugned order dated 01-09-2000 (Annexure-5) are hereby set aside. Writ petition is allowed and stands disposed of.