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2022 DIGILAW 191 (MAN)

Karma Bhutia v. Union of India

2022-10-10

M.V.MURALIDARAN

body2022
JUDGMENT 1. This writ petition has been filed by the petitioner to set aside the impugned punishment order dated 17.10.2008 and to direct the respondents to consider the case of the petitioner for promotion to the rank of Commandant by affording service benefits from the date of his juniors who were promoted to the rank of Commandant. 2. Heard Mr. HS Paonam, the learned senior counsel for the petitioner and Mr. Kh. Samarjit, the learned Central Government Standing Counsel for the respondents. 3. The case of the petitioners is that based on the complaint lodged by one Shahi against the petitioner, disciplinary proceedings was initiated against him. Being not satisfied with the reply of the petitioner, the disciplinary authority initiated regular disciplinary proceedings by appointing Enquiry Officer and the Enquiry Officer after completing the enquiry submitted his report by holding that the charge levelled against the petitioner has not been proved. However, the disciplinary authority held that the charge framed against the petitioner has been partially proved, thereby inflicted punishment of reduction of pay by two stages in time scale of pay for a period of three years with effect from 1.12.2001 to 1.12.2004 with cumulative effect with further direction that he will not earn increment of pay during the period of reduction after getting approval from the UPSC. 4. Further case of the petitioner is that the aforesaid punishment was challenged by the petitioner before the Gauhati High Court in W.P.(C) No.2773 2002 and during the pendency of the writ petition, the petitioner undergone the punishment including depriving the rights to be considered for promotion to the post of 2-I/C which the petitioner is eligible in the year 2003, whereas he was given promotion in the year 2005. By the order dated 1.2.2007, the Gauhati High Court decided the case in favour of the petitioner thereby quashing the punishment order and the authority also complied the order. Thereafter, the petitioner was due for regular promotion to the next higher post of Commandant in the year 2007, a fresh show cause notice was served on 1.8.2006 based on the same cause of action which was the subject matter of the earlier proceedings and inflicted the same punishment with the earlier one with effect from 1.11.2008 upto 1.11.2011 which the petitioner has already undergone. 5. 5. According to the petitioner, the Ministry of Home Affairs gave a green signal to the proposal made by the CRPF authority for considering the promotion from the rank of 2-I/C including the petitioner to the rank of Commandant by relaxing the eligibility conditions prescribed in the recruitment rule. Thereafter, the CRPF authority has given promotion to other 2-I/C including the incumbents who were placing down the petitioner in serial number as well as upto 24th batch of direct appointee Commanding Officers by brushing aside the case of the petitioner on the purported issuance of second show cause notice. Hence, the writ petition. 6. Resisting the writ petition, the respondents filed affidavit-in-opposition stating that while the petitioner was functioning as Assistant Commandant in 96 Bn, CRPF, Dimapur during the period October, 1995 to July, 1997, he has committed a serious misconduct and he being a married man developed illicit relations with a woman, an employee of Forest Department, Wild Life Division, Dimapur. Since the petitioner acted in a manner unbecoming of a Government servant and thereby violated the provisions contained in Rule 3(1)(ii) and (iii) of CCS (Conduct) Rules, 1964, departmental proceedings was initiated against him. On completion of the departmental proceedings, the disciplinary authority in disagreement with the findings of the Enquiry Officer, tentatively held that based on the evidence available on records, the charge levelled against the petitioner was partially proved and imposed penalty of reduction of pay by two stages in the time scale of pay for a period of three years with cumulative effect with further direction that the petitioner will not earn increments of pay during the period of reduction on the petitioner. 7. It is stated that W.P.(C) No.2773 of 2002 filed by the petitioner challenging the punishment was allowed, thereby the penalty imposed on the petitioner was set aside. However, the Gauhati High Court stated that there will be no bar for the disciplinary authority from issuing a fresh notice to the petitioner by intimating its tentative reasons for disagreement with the findings of the Enquiry Officer and granted time to the petitioner for submitting his representation, if any, as required under Rule 15(2) of CCS (CCA) Rules, 1965 and a fresh decision on the departmental enquiry be taken after taking into consideration the entire records, including the representation, if any. 8. 8. It is stated that on 1.8.2008, a notice was issued to the petitioner giving him 15 days' time to submit his representation against the findings of the Enquiry Officer and disagreement note of the disciplinary authority. Thereafter, the petitioner submitted a representation and having considered the representation of the petitioner, sought advice of the UPSC to decide the quantum of penalty to be imposed on him. After due examination, the UPSC vide letter dated 8.8.2008 advised imposition of penalty of reduction of pay by two stages in the time scale of pay for a period of three years with cumulative effect and further directed that he will not earn increments of pay during the period of reduction. Accordingly, the said punishment was imposed on the petitioner. Therefore, there is no infirmity in the impugned order and thus, prayed for dismissal of the writ petition. 9. Assailing the impugned order, Mr. H S Paonam, the learned counsel for the petitioner submitted that serving a second show cause notice basing on the same subject matter of earlier proceedings is not sustainable in the eye of law, as the petitioner has already undergone the punishment imposed vide order dated 26.11.2001 so far his promotional opportunities to the post of 2-I/C is concerned and hence, it is a case of double jeopardy. 10. The learned counsel further submitted that after serving second show cause notice, the authority has inflicted punishment of penalty of reduction of pay by two stages in the time scale of pay for a period of three years with effect from 1.11.2008 based on the advice of the UPSC that the charge against the petitioner was partly proved which amounts not only double jeopardy, but also depriving the rights to be considered for promotion to the next higher post of Commandant, apart from being an act of mala fide and irrational, thereby infringing upon the valuable rights of the petitioner as enjoyed under Article 14, 16 and 21 of the Constitution of India. 11. 11. The learned senior counsel for the petitioner urged that indictment of punishment for the same act seems to be determined attitude of the authority for expunging the name of the petitioner from consideration for promotion to the next higher post of Commandant which the petitioner had already eligible for the higher post in the year 2007 where all the officers of 24th batch of direct appointees were also promoted to the rank of Commandant. Thus, a prayer is made to set aside the impugned order dated 17.10.2008 and to direct the respondents to consider the case of the petitioner for promotion to the rank of Commandant. 12. Per contra, Mr. Kh. Samarjit, learned DSGI for the respondents submitted that when earlier departmental proceedings was initiated against the petitioner based on the complaint lodged by S.M.Shahi, the disciplinary authority disagreed with the findings of the Enquiry Officer thereby held that the charge was proved partly on the basis of the admission in the preliminary enquiry and on the basis of documentary evidence. Taking all the facts into account, the disciplinary authority decided to impose major penalty on the petitioner and forwarded the case to UPSC and after approval from the UPSC, the competent authority imposed penalty of reduction of pay by two stages in the time scale of pay for three years with cumulative effect and further directed that the petitioner will not earn increment of pay during the period of reduction as suggested by the UPSC. 13. The learned counsel submitted that assailing the order imposing punishment, a writ petition came to be filed before the Gauhati High Court and the Gauhati High Court allowed the said writ petition only on technical ground and while setting aside the order dated 26.11.2001, the High Court added that there is no bar for the authority in issuing a fresh notice to the petitioner by intimating his tentative reasons for disagreement with the findings of the Enquiry Officer. 14. It is the submission of the learned counsel that the name of the petitioner was considered by the DPC held on 10.4.2003 and 26.4.2004 and found unfit for promotion. 14. It is the submission of the learned counsel that the name of the petitioner was considered by the DPC held on 10.4.2003 and 26.4.2004 and found unfit for promotion. However, he was found fit by the subsequent DPC held on 24.3.2005 and promoted as 2-I/C. He would submit that pursuant to the order passed by this Court, the order dated 26.11.2001 imposing penalty on the petitioner vide order dated 18.7.2007 and the pay of the petitioner which was reduced with effect from 1.12.2001 has been restored and arrears amounting to Rs.1,30,108/- was drawn and paid to the petitioner on 3.10.2007. 15. The learned counsel urged that a notice dated 1.8.2008 was issued to the petitioner pursuant to the order of the Court dated 1.2.2007 giving him 15 days time to submit his representation against the findings of the Enquiry Officer and disagreement note of the disciplinary authority. Though the petitioner submitted his representation, he has not able to put forth any mitigating facts warranting reconsideration of the decision taken by the disciplinary authority to impose suitable major penalty on him. The disciplinary authority having considered imposition of major penalty on the petitioner, advice of the UPSC was sought to decide the quantum of penalty to be imposed on him. The UPSC also after examination advised imposition of major penalty. Stating that the action of the respondents is as per the laid down procedure and was not in violation of any of the provisions of law, the learned counsel prays for dismissal of the writ petition. 16. This Court considered the rival submissions and also perused the materials available on record. 17. Originally a disciplinary proceeding was initiated against the petitioner by issuing a memorandum of charge. The charge levelled against the petitioner reads thus: 'Shri Karma Bhutia, Dy. Commandant, 50 Bn CRPF, while posted and functioning as Assistant Commandant in 96 Bn, CRPF, Dimapur (Nagaland) during the period from October 1995 to July 1997 committed a serious misconduct in that he being a married man developed illicit relations with a woman namely Smt. S.M. Shahi and employee of Forest Department, Wild Life Division, Dimapur (Nagaland) working as Head Assistant with the assurance that he will marry her and maintained extra marital relations with her.' 18. Thereafter, an Enquiry Officer was appointed and the Enquiry Officer, after completion of the enquiry submitted his report and the findings of the Enquiry Officer reads thus: '12. FINDINGS: The entire case has been based on the complaint of Smt. S.M. Shahi and the PE conducted by Shri P.J.Shetty, ADIGP, GC, CRPF, Guwhati deposed as SW-4. The complainant failed to attend the hearing despite repeated summons and holding of the hearing at Dimapur on her request. Instead, she withdraw her complaint on personal grounds and refused to give any statement further. Therefore, in the view of the reasons brought out in the analysis and assessment of evidence. I hold that the charge against Shri Karma Bhutia, A/C (now D/C) stand 'NOT PROVED'.' 19. However, the disciplinary authority disagreed with the findings of the Enquiry Officer and came to the conclusion that it is proved that the charged officer used to visit Smt.S.M.Shahi frequently and she also stayed with the charged officer in his official residence. Further, the complainant Smt.S.M.Shahi has just withdrawn her complaint due to personal grounds and had not denied the contents of her earlier complaint. In view of the above, it can be concluded that the Article of charge stands partially proved to the extent that the charged officer had maintained extra marital affairs with Smt. S.M.Shahi. On 26.11.2001, the disciplinary authority, imposed penalty on the petitioner and the penalty imposed on the petitioner reads thus: '8. The President hereby orders that the pay of Shri Karma Bhutia, Dy. Commandant be reduced by 2 stages from 11,300 to 10,650/- in the time scale of pay of Rs.10,000/- - 325 - 15,200/- for a period of 3 years wef. 1/12/2001 with cumulative effect with further direction that he will not earn increment of pay during the period of reduction.' 20. Challenging the order dated 26.11.2001, the petitioner has filed W.P.(C) No.2773 of 2002 before the Gauhati High Court and the Gauhati High Court, by the order dated 1.2.2007, allowed the writ petition. The operative portion of the order reads thus: '11. As discussed above, the Disciplinary Authority even before giving such opportunity as required under Rule 15(2) of the 1965 rules came to the finding that the charge levelled against the petitioner has been partially proved. The operative portion of the order reads thus: '11. As discussed above, the Disciplinary Authority even before giving such opportunity as required under Rule 15(2) of the 1965 rules came to the finding that the charge levelled against the petitioner has been partially proved. The said action on the part of the Disciplinary Authority has violated the principles of natural justice as well as requirement of Rule 15 (2) of the 1965 rules and hence the subsequent order of punishment passed by the Departmental Authority dated 26.11.2001 cannot stand the scrutiny of law, hence, the same is set aside. The writ petition is accordingly allowed. However, it will not be debar the Disciplinary Authority from issuing a fresh notice to the petitioner by intimating its tentative reasons for disagreement with the findings of the Inquiry Officer and allowing the petitioner time as required under Rule 15 (2) of the 1965 rules to make his written representation or submission and to take a fresh decision on the departmental proceeding initiated against the petitioner after taking into consideration the entire records including the representation/submission, if any, submitted by the petitioner. 12. The writ petition is accordingly allowed to the extent indicated above. No cost.' 21. Thereafter, on 18.7.2007, the Additional DIGP (Pers-1) informed the petitioner that the competent authority has considered the judgment of the Hon'ble Court and accepted the same for implementation. Further action in accordance with the judgment of the Hon'ble Court was taken separately under Rule 15(2) of CCS (CCA) Rules. Thereafter, the Addl. DIGP (Pers-1) called for a representation from the petitioner within 15 days. The petitioner also submitted his representation inter alia stating that since the complainant was not examined and that she had withdrawn the complaint on her own volition without any pressure or fear, any finding against the petitioner would be amounting to non-observance of the principles of natural justice. Accordingly, the petitioner prayed to drop the proceedings keeping in view that the Enquiry Officer has rightly held that the charge against the petitioner not proved. 22. Thereafter, by the impugned order dated 17.10.2008, the Addl. DIGP (Pers-1) recorded its finding that the petitioner has not been able to put forth any mitigating facts warranting reconsideration of the decision taken by the disciplinary authority to impose suitable major penalty on the charged officer. 23. 22. Thereafter, by the impugned order dated 17.10.2008, the Addl. DIGP (Pers-1) recorded its finding that the petitioner has not been able to put forth any mitigating facts warranting reconsideration of the decision taken by the disciplinary authority to impose suitable major penalty on the charged officer. 23. At this juncture, it is to be noted that while allowing W.P.(C) No.2773 of 2022, the Gauhati High Court observed that 'it will not debar the disciplinary authority from issuing a fresh notice to the petitioner by intimating its tentative reasons for disagreement with the findings of the Inquiry Officer...' 24. Admittedly, the disciplinary authority while issuing the impugned order has not given reasons for disagreement with the findings of the Enquiry Officer as per the observation of the Gauhati High Court. In fact, in paragraph 5 of the impugned order, it has been stated as under: '5. AND, WHEREAS, a notice dated 01/08/2007 was issued to the Charged Officer as per court order dated 01/02/2007, giving him 15 days time to submit his representation against findings of the IO and disagreement note of the DA. The Charged Officer in his representation vide Memo No.O.II-9/2007-KB dated 30.08.07 has not been able to put forth any mitigating facts warranting reconsideration of the decision taken by the DA to impose suitable major penalty on the Charted Officer.' 25. The aforesaid cannot be treated as reason for disagreement with the findings of the Enquiry Officer and the disciplinary authority has not considered the matter in proper perspective while issuing the impugned order. Since there is total absence of reasoning for disagreement with the findings of the Enquiry Officer, the impugned order cannot stand in the eye of law. There is also no discussion about the withdrawal of the complaint made by the complainant and her non-appearance before the Enquiry Officer for deposing evidence. Without any discussion, the disciplinary authority has arrived at the conclusion for imposition of major penalty on the petitioner and sought advice of the UPSC to decide the quantum of penalty to be imposed on the petitioner. Such an approach adopted by the disciplinary authority is unsustainable and against the true spirit of the order dated 1.2.2007 passed in W.P.(C) No.2773 of 2002 by the Gauhati High Court. 26. It is to be noted that the departmental enquiry was proceeded without the complainant for victimizing the petitioner. Such an approach adopted by the disciplinary authority is unsustainable and against the true spirit of the order dated 1.2.2007 passed in W.P.(C) No.2773 of 2002 by the Gauhati High Court. 26. It is to be noted that the departmental enquiry was proceeded without the complainant for victimizing the petitioner. The penalty was imposed on the basis of the alleged oral admission made by the petitioner in the preliminary enquiry which is not legally binding in the absence of the same in the written statement of defence and also on the basis of the finding recorded in the preliminary enquiry. 27. In Narayan Dattatraya Ramteerthakhar v. State of Maharashtra, (1997) 1 SCC 299 , the Hon'ble Apex Court held as under: '.... a preliminary inquiry has nothing to do with the enquiry conducted after issue of charge-sheet. The preliminary enquiry is only to find out whether disciplinary enquiry is held under the Rules, the preliminary enquiry loses its importance and, whether preliminary enquiry was held strictly in accordance with law or by observing principles of natural justice of (sic) nor, remains of no consequence.' 28. It is settled law that no one can be punished twice for the same offence. The petitioner, who was deprived of promotion from due date by imposition of penalty in the year 2001 cannot now be subjected to another deprivation of promotion to the rank of Commandant from the due date for the same charge. In fact, the petitioner has already lost chance for promotion to the post of 2-I/C while undergoing the penalty imposed on 26.11.2001. Therefore, depriving the chance of promotion from due date to the rank of Commandant by imposing similar penalty vide impugned order dated 17.10.2008 which the petitioner has already undergone for the same charge is barred by the principle of double jeopardy. 29. It is also to be noted that when the complaint was withdrawn by the complainant, the charge cannot stand on its own. As stated supra, since the complainant failed to take part in the departmental proceedings, the charge should have been dropped. However, the departmental enquiry was proceeded against the findings of the preliminary enquiry report and penalty was imposed in an illegal manner thereby subjected the petitioner to untold hardship and mental agony. As stated supra, since the complainant failed to take part in the departmental proceedings, the charge should have been dropped. However, the departmental enquiry was proceeded against the findings of the preliminary enquiry report and penalty was imposed in an illegal manner thereby subjected the petitioner to untold hardship and mental agony. Any admission or confession of guilt has to be made only in the written statement of defence during the departmental enquiry and, as such, the preliminary enquiry officer has no power to record any statement of guilt. At the same time, the petitioner, at no point of time admitted or confessed the guilt during the departmental enquiry, rather he denied the same vehemently. In this regard, the law is well settled that no punishment can be inflicted on the basis of the findings recorded in the preliminary enquiry. 30. As could be seen from the records that the punishment inflicted on the petitioner has monetary effect and deprivation of promotion during the penalty period. Since the petitioner deprived of chance of promotion to the post of 2I/C from due date by the penalty imposed, he cannot be deprived of another opportunity for promotion from due date by the penalty imposed for the same charge. 31. At this juncture, the learned counsel for the petitioner submitted that while relying upon the advice of the UPSC in imposing penalty, no copy of the advice of the UPSC was furnished prior to imposition of penalty thereby depriving right to make representation against the recommendation and denying fair opportunity of being heard. In support, the learned counsel relied upon the decision of the Hon'ble Apex Court in the case of Union of India and others v. R.P. Singh, (2014) 7 SCC 340 . 32. In R.P. Singh, supra, the Hon'ble Apex Court held: '21. ... An inquiry report in a disciplinary proceeding is required to be furnished to the delinquent employee so that he can make an adequate representation explaining his own stand/stance. That is precisely what has been laid down in B.Karunakar case, (1993) 4 SCC 727 . We may reproduce the relevant passage with profit: '29. ... An inquiry report in a disciplinary proceeding is required to be furnished to the delinquent employee so that he can make an adequate representation explaining his own stand/stance. That is precisely what has been laid down in B.Karunakar case, (1993) 4 SCC 727 . We may reproduce the relevant passage with profit: '29. Hence it has to be held that when the enquiry officer is not the disciplinary authority, the delinquent employee has a right to receive a copy of the enquiry officer's report before the disciplinary authority arrives at its conclusions with regard to the guilt or innocence of the employee with regard to the charges levelled against him. That right is a part of the employee's right to defend himself against the charges levelled against him. A denial of the enquiry officer's report before the disciplinary authority takes is decision on the charges, is a denial of reasonable opportunity to the employee to prove his innocence and is a breach of the principles of natural justice.' 33. Nothing has been produced by the respondents to show that copy of the advice of the UPSC was furnished to the petitioner. Thus, the non-supply of copy of advice of UPSC at the pre-decisional stage did tantamount to violation of principles of natural justice for making effective representation. 34. It is settled law that a prima facie case does not mean a case proved to the hilt, but a case which can be said to be established if the evidence which is led in support of the case were (to be) believed. While determining whether a prima facie case had been made out or not the relevant consideration is whether on the evidence led it was possible to arrive at the conclusion in question and not whether that was the only conclusion which could be arrived at on that evidence. [Vide: Nirmala J. Jhala v. State of Gujarat and another, (2013) 4 SCC 301 ]. 35. At this juncture, the learned counsel for the petitioner argued that it is not known how an officer undergoing a penalty could be considered by the DPC for promotion to next higher post. Because of the penalty, the petitioner was deprived of opportunity for promotion from due date due to the post of 2-I/C in the first instance and to the post of Commandant in the second instance for the same charge. Because of the penalty, the petitioner was deprived of opportunity for promotion from due date due to the post of 2-I/C in the first instance and to the post of Commandant in the second instance for the same charge. According to the learned counsel for the petitioner, restoration of the pay reduced during the penalty is not sufficient, as the petitioner was deprived of promotion to the post of 2-I/C from due date because of the penalty. 36. It is also the submission of the learned counsel for the petitioner that when the first penalty was quashed by the Gauhati High Court, the respondents ought to have reviewed the DPC for promotion to the post of 2-I/C which was held during the period when the petitioner was undergoing penalty. This Court finds force in the said submissions made by the learned counsel for the petitioner. 37. Even though the petitioner was found fit in the DPC held on 22.6.2007, in order to clarify the different aspects of different DPCs on various dates in respect of the petitioner, the Minutes of DPC dated 22.06.2007, 10.4.2008, 19.3.2009 and 19.3.2010 were called for in a sealed cover. Pursuant to the said order, the sealed cover was produced and this Court perused the Minutes of DPC for the aforesaid four meetings. 38. For the discussions held supra, this Court is of the view that the impugned order having been issued in violation of principles of natural justice and having effect of depriving the petitioner's promotion from due date for the same charge on two occasions is not legally sustainable, the same is liable to be set aside. 39. In the result, (a) The writ petition is allowed. (b) The impugned order dated 17.10.2008 issued by the Additional DIGP (Pers-I) is quashed. (c) The respondent authorities are directed to consider the case of the petitioner for promotion to the rank of Commandant by affording service benefits from the date of his juniors were promoted to the rank of Commandant. (d) The said exercise is directed to be completed within a period of eight weeks from the date of receipt of a copy of this order. (e) No costs.