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2019 DIGILAW 22 (JK)

Nisar Ahmad v. Union of India

2019-01-18

SANJEEV KUMAR

body2019
JUDGMENT : 1. The subject matter of the challenge in this petition is the Order of dismissal dated 4th June 1999, passed by respondent no.2, whereby the petitioner has been dismissed from the services of the Central Reserve Police Force (CRPF) with effect from 4th June 1999. The order is passed by respondent no.3 purportedly in pursuance of the powers vested in him under Section 11(1) of the CRPF Act, 1949, and the Rules framed thereunder. The impugned order has been assailed primarily on the following grounds: (a) That the order impugned has been passed without adhering to the procedure as laid down in the Rule 27 of the CRPF Rules, 1955. (b) The charges on the basis of which the order impugned has been passed, do not constitute such misconduct for which the major penalty of dismissal could be inflicted. (c) That the charges levelled against the petitioner were false and frivolous and could not be proved during the course of the inquiry. (d) That the order impugned is violative of the principles of natural justice and he has not been allowed to effectively defend himself by giving him adequate opportunity of cross examining the witnesses. (e) That the departmental inquiry on the self-same charges as were under the investigation in case FIR no.181/1998, was not maintainable, moreso when which the petitioner ultimately came to be acquitted in the criminal trial 2. The respondents have filed their Reply Affidavit. The maintainability of the writ petition is opposed on the ground that the order of the appellate authority dated 12th February 2004 is further appealable before the competent authority and, therefore, in view of availability of the statutory remedy, which is equally efficacious, the writ petition may not be maintainable. The jurisdiction of this Court to entertain the petition has also been objected on the ground that the order dated 12th February 2004 was passed in Udhaipur, Tripura. The factual averments made by the petitioner with regard to the denial of the opportunity of being heard to the petitioner and non-compliance of the provisions of the Rule 27 of the Rules of 1955, have been denied. 3. The factual averments made by the petitioner with regard to the denial of the opportunity of being heard to the petitioner and non-compliance of the provisions of the Rule 27 of the Rules of 1955, have been denied. 3. Having heard the learned counsel for the parties and perused the record, I am of the view that the contention of the respondents that this Court does not have the jurisdiction to entertain the petition or that the petition is not maintainable, is without any substance. What is challenged in this petition is essentially the order of dismissal passed by respondent no.3 on 4th June 1999 at Anantnag and, therefore, this Court has jurisdiction to entertain this petition. Regarding the statutory alternative remedy available to the petitioner under CRPF Act and Rules framed thereunder, it may be noted that the writ petition has been filed, inter alia, on the ground that the major penalty of the dismissal has been inflicted upon the petitioner in violation of the principles of natural justice and, therefore, in view of the settled legal position, the assertion of the alternative statutory remedy may not be insisted upon. If in the given facts and circumstances of the case, this Court comes to the conclusion that there was indeed violation of the principles of natural justice, then there would be no difficulty for this Court to exercise the writ jurisdiction even if the alternative remedy is available to the petitioner. We may quickly reproduce paragraphs 05 and 06 of the judgement with advantage, passed by the Supreme Court in the case of Satwati Deswal v. State of Haryana and others (2010) 1 SCC 126 : “5. In our view, the High Court had fallen in grave error in rejecting the writ petition on the aforesaid ground. First, such an order of termination was passed without issuing any show cause notice to the appellant and without initiating any disciplinary proceedings by the authorities and without affording any opportunity of hearing. It is well settled that a writ petition can be held to be maintainable even if an alternative remedy available to an aggrieved party where the court or the tribunal lacks inherent jurisdiction or for enforcement of a fundamental right; or if there had been a violation of a principle of natural justice; or where vires of the Act were in question. 6. 6. The aforesaid exceptions recognized by this Court were taken note of by this Court in the case of Collector of Customs v. Ramchand Sobhraj Wadhwani, AIR 1961 SC 1506 , in which the Constitution Bench laid down the principles of the above exceptions when writ application could be entertained even if an alternative remedy was available to an aggrieved party. The same view was expressed by this Court in L.K. Verma v. HMT Ltd., (2006) 2 SCC 269 and M.P. State Agro Industries Development Corpn. Ltd v. Jahan Khan, AIR 2007 SC 3153 .” 4. With the disposal of the preliminary objection raised by the respondents, we may proceed to consider the pivotal ground of challenge to the impugned order. With a view to appreciate the ground of challenge taken by the petitioner with regard to the violation of principles of natural justice and failure of the respondents to follow the procedure laid down under Rule 27 of the CRPF Rules 1955, this Court had directed the respondents to produce the original record of the inquiry. The impact of the pending criminal prosecution and the subsequent acquittal of the petitioner therein shall also be noticed hereinafter. 5. From the perusal of the record produced by the respondents, it transpires that the departmental inquiry into three charges framed against the petitioner was held under Section 11(1) of the CRPF Act, 1949, pursuant to the order of respondent no.3, bearing no.I.x-1/98-EC.II dated 27th November 1998. Shri V. S. Yadaw, 3-I/C of the Unit was appointed as the Inquiry Officer. The charges were served upon the petitioner. Since the petitioner did not plead guilty to the charges, the statements of the witnesses were recorded by the Inquiry officer. The petitioner was also afforded an opportunity to cross-examine the witnesses. On the conclusion of the inquiry, the petitioner was found guilty of the charges. Accordingly, the petitioner was served with a notice of proposed penalty on 17th April 1999, and was also provided a copy of the inquiry report. The petitioner submitted his reply to the notice on proposed penalty. On consideration of the reply, respondent no.3 did not find any merit in the reply and, accordingly, passed the order impugned on 4th June 1999, dismissing the petitioner from the services of CRPF with immediate effect. 6. The petitioner submitted his reply to the notice on proposed penalty. On consideration of the reply, respondent no.3 did not find any merit in the reply and, accordingly, passed the order impugned on 4th June 1999, dismissing the petitioner from the services of CRPF with immediate effect. 6. The allegation of the petitioner that there was violation of principles of natural justice and that he was not given an adequate opportunity to defend himself, is factually incorrect and is not supported by the record. Not only the petitioner has participated in the inquiry but has also exercised his right of cross examining all witnesses as well. He was provided copy of the notice on proposed penalty along with inquiry report with a view to make a representation. The petitioner made a representation, but the same was not found of any substance by respondent no.3. In this view of the matter, it is to contend that the inquiry was not conducted as per the procedure as laid down in the Rules of 1955 read with the CCR (Conduct) Rules, 1964, is not acceptable. The petitioner, as is born out from the record, was given adequate opportunity to defend himself. The scope of interference in the findings of the fact recorded in the domestic inquiry is well settled. This Court in the exercise of its writ jurisdiction, cannot sit as a court of appeal over the findings of fact recorded in the departmental proceedings. Until the findings of fact recorded in the departmental proceedings are found to be perverse and not supported by any evidence, this Court would be loath to interfere. From the perusal of the record of the inquiry, it is not a case of no evidence, rather there is ample evidence recorded during the course of inquiry in support of the allegations levelled against the petitioner, and on the basis of the preponderance of probabilities, the Inquiry Officer has found the petitioner guilty of the charges. The Disciplinary Authority, after considering the reply of the petitioner to the notice of proposed penalty, has imposed the penalty of dismissal. In the given facts and circumstances, it is also not a case where the punishment awarded is shockingly disproportionate. The charges levelled against the petitioner are serious in nature and wholly unbecoming of a member of a disciplined force. In the given facts and circumstances, it is also not a case where the punishment awarded is shockingly disproportionate. The charges levelled against the petitioner are serious in nature and wholly unbecoming of a member of a disciplined force. The petitioner has been proved to have misbehaved with lady Constables and had the guts of terrorising and threatening his guard commander at gunpoint. He was not found only to have committed the aforesaid acts, but it was also proved that he even disobeyed the lawful command of his guard commander, who had asked him to hand over the personal weapon. All these allegations in the articles of charges cumulatively make it a case where extreme penalty of dismissal could very well be awarded. As already noted, there is enough evidence brought on record during the course of the inquiry to substantiate the aforesaid articles of charges. The sufficiency or otherwise of the evidence is not within the domain of this Court to appreciate. The learned counsel appearing for the petitioner, however, could not point out any other fatal defect in the inquiry or the order impugned passed by respondent no.3. 7. The plea of the petitioner that the departmental proceedings could not have been initiated once the mater was pending trial in the criminal court, is also without any substance and cannot be accepted. It is true that with regard to one of three charges, there was a FIR registered against the petitioner and was under investigation when the departmental inquiry was initiated. Needless to say, there is settled distinction between departmental and criminal proceedings on the basis of approach and burden of proof. In the criminal proceedings rule of the evidence is that accused is presumed to be innocent till held guilty by proving the case beyond any reasonable doubt whereas in the departmental proceedings the view is to be taken on the basis of preponderance of probabilities. Mere registration of a criminal case and the similarity of the charges, cannot prevent the employer from embarking upon the departmental inquiry. In the instant case, there is nothing brought on record by the petitioner to show that the same set of witnesses were examined in the criminal case and the departmental inquiry. Mere registration of a criminal case and the similarity of the charges, cannot prevent the employer from embarking upon the departmental inquiry. In the instant case, there is nothing brought on record by the petitioner to show that the same set of witnesses were examined in the criminal case and the departmental inquiry. Moreover, FIR is only with regard to one of the three charges whereas rest of the two charges are new and independent of the charge which are subject matter of criminal prosecution. In such situation there was no clog on the powers of the Disciplinary Authority to order the departmental inquiry into misconduct of the petitioner. The acquittal of the petitioner in the criminal proceedings which has happened after the conclusion of the departmental proceedings and the dismissal of the petitioner vide impugned order would not change the position in any manner. Firstly, because the acquittal in the case of the petitioner is not honourable as he has been let off by the Trial Court giving him the benefit of doubt. In R. P. Kapur v. Union of India, 1964 (5) SCR 431 , the Supreme court observed as under (SCR p.444): “If the trial of the criminal charge results in conviction, disciplinary proceedings are bound to follow against the public servant so convicted. Even in case of acquittal proceedings may follow, where the acquittal is other than honourable.” 8. This is a Constitutional Bench judgement and continues to hold the field. Second, that the acquittal of the petitioner is only qua one charge whereas the other two charges proved during departmental inquiry were not subject matter of prosecution in FIR no.181/1998. The reliance placed by the petitioner on the judgement of the Supreme Court rendered in the case of G. M. Tank v. State of Gujarat 2006 (5) SCC 446 , is totally misplaced. This brings me to the last contention of the petitioner that the punishment inflicted is grossly disproportionate to the misconduct provided. The law in this regard is also well settled. Unless punishment inflicted is found to be shockingly disproportionate to the misconduct, the Court may not interfere. It is within the domain of the employer to decide about the appropriate punishment that can be awarded to the delinquent in the proved facts and circumstances. The law in this regard is also well settled. Unless punishment inflicted is found to be shockingly disproportionate to the misconduct, the Court may not interfere. It is within the domain of the employer to decide about the appropriate punishment that can be awarded to the delinquent in the proved facts and circumstances. This depends on the facts and circumstances of each case as also nature of the service, the delinquent is engaged in. The CRPF is highly disciplined force and any act of misconduct or dereliction of duty is viewed very seriously. There is no scope in such a disciplined force to let go a delinquent who is found to have used his service weapon to terrorise and threaten his superiors. The opened defiance and disobedience of the command of the superiors in the forces, like CRPF, is not something that can be ignored. The Disciplinary Authority taking note of all these aspects in its wisdom has found penalty of dismissal adequate punishment to be awarded to the petitioner. This is not within the province of this Court to look into this aspect, more so when in the given facts and circumstances this Court does not find it to be a case of imposition of penalty shockingly disproportionate to the misconduct proved during the departmental inquiry. The reliance of the petitioner on the judgement of the Division Bench of this Court in the case of Mohd. Naseer Naik v. Union of India, 2015 (II) SLJ 712 (HC) is also misplaced. The judgement in the aforesaid case is clearly distinguishable and is rendered on its own facts. 9. For the aforementioned reasons, I do not find any case to interfere with the impugned order. This petition is, therefore, without any merit and is accordingly dismissed. 10. Record be returned to the learned counsel for the respondents.