Khagesh Chandra Pradhan vs The Union of India (UOI) and Others

K. Ramaswamy, J.—The petitioner while was working as Sub-Inspector, 2nd Battalion at Wokha, one Mr. V.D. Sahagal Commandant, 2nd Battalion, Central Reserve Police Force, Wokha, directed the petitioner to supply a radio set with wireless operator for convoy duties. The petitioner has disobeyed supply thereof. As a consequence, the Commandant issued Movement Order to move to RGS in 2nd Battalion. But he disobeyed that order also. It is also alleged that he behaved in an insolent and rude manner with Dr. P.N. Rao, Medical Officer, 2nd Battalion. Accordingly, Charge Memo was issued on March 18,1976. The petitioner has submitted his explanation and an enquiry officer was appointed. The enquiry officer after due enquiry, by his letter dated August 14, 1976 submitted his report stating that the charge No. 1 viz., refusal to supply radio set and wireless operator, has been proved; and Charge No. 3 has also been proved but with modification that the incident took place on November 28,1975 evening at 19.30 hrs. and not at 11.30 hrs. Thereon, the disciplinary authority has issued a show cause notice on September 18, 1976 as to why the petitioner should not be removed from service. The petitioner has submitted his explanation. Then, by proceedings dated November 12,1976, he was removed from service and on appeal and further revision, it was confirmed-the latter by order dated January 12,1981. Assailing the legality thereof, the writ petition has been filed.

Sri Ramamohan Rao, learned counsel for the petitioner has raised seven contentions in support of the case of the petitioner. The first contention is that the petitioner has not been afforded reasonable opportunity before issuing the charge memo-as to why disciplinary proceedings should not be initiated against him, therefore, it is against the principles of natural justice. I find no force in the contention. It is settled law that it is always open to the disciplinary authority to give such an opportunity before initiating the proceedings but the material facts should be stated in the charge memo and the material on the basis of which charge memo is given should be supplied to the delinquent officer Therefore, before initiation of the disciplinary proceedings against the petitioner, there is no express rule to provide such an opportunity and the principles of natural justice also do not come into that area.

It is next contended that the enquiry officer is not conversant with technical aspects of the misconduct and he did not properly appreciate the evidence and therefore the enquiry conducted by the enquiry officer is vitiated on account of his lack of technical knowledge in this behalf. But unfortunately, the petitioner has not taken any objection before the enquiry officer when the enquiry was taken up. Therefore, having submitted to the jurisdiction of the enquiry officer, it is too late in the day to raise that plea that the enquiry officer is not competent to conduct the enquiry for the alleged lack of technical knowledge in this behalf.

It is next contended that there is no reasonable opportunity given to the petitioner to proceed to Dimapur to seek the assistance of the persons who are acquainted with Hindi and English; the persons at Kohima are not conversant with English and Hindi and therefore it is violative of the principles of natural justice. I find no force in this regard also. The petitioner admittedly did not complain of this either to the disciplinary authority viz., ex-officio D.I.G. or Mr. V.D. Shagal, who kept the petitioner under suspension. His case is that he has written a letter to the Commandant of the Wireless Battalion, Hyderabad. The very writing of the letter is disputed by the respondent and it is stated that no such request was made. In view of the fact that the petitioner did not admittedly make any request either to the disciplinary authority or to the enquiry officer or to Mr. Shagal who kept him under suspension. I do not think there is any justification at this stage to hold that the petitioner had been denied of reasonable opportunity to contact the persons acquainted with English and (sic) (sic) prepare his defence.

It is next contended that copies of the disciplinary proceedings were not supplied to the petitioner and therefore it is violative of the principles of natural justice. The contention of Sri Ramamohan Rao is that the enquiry was spread over for a number of months; the petitioner though was present at the time of conducting the enquiry and has seen the evidence, but he is not expected to keep abreast of all the statements made by the witnesses; unless the copies of the disciplinary proceedings are supplied to him, the petitioner would be disabled to put up effective defence to the show cause notice issued by the disciplinary authority. Therefore, it is violative of the principles of natural justice. Admittedly rules do not provide for supply of copies of all the disciplinary proceedings. It is well settled that in the disciplinary proceedings all the records and the evidence collected during the enquiry form part of the enquiry report and it need not be supplied to the delinquent officer unless the delinquent officer makes on application and makes payment for supply of the relevant documents or the proceedings. What all he is entitled before conducting the enquiry is, he can make inspection of the documents and take notes thereof and if necessary he can request for supply copies thereof on payment of the necessary charges. In this case, the petitioner did not ask for supply of the copies of the proceedings and evidence collected by the enquiry officer. No doubt, the petitioner has stated of non-supply thereof in his explanation to the show cause notice. But when the petitioner did not himself ask for them, there is no obligation cast on the disciplinary authority to supply all the records which form part of the enquiry report. It is well settled legal position that the delinquent officer is entitled to only supply of copy of the report of the enquiry officer so that he would have an effective explanation given when the show cause notice is issued by the disciplinary authority. In this case, a copy of the enquiry report was supplied to the petitioner. Under those circumstances, I hold that failure to supply copies of the proceedings of the enquiry officer does not vitiate the action taken by the disciplinary authority to impose the penalty of removal from service, by non-observance of the principles of natural justice.

It is next contended that the findings are not based on record. Neither the enquiry officer nor the disciplinary authority had considered the defence of the petitioner and that therefore it is a case that the findings are based on no record. This contention also is not a valid one. I have carefully scanned the enquiry report. The enquiry report is wholly contained all the express statements made by the persons and also the express defence in this regard taken by the petitioner. On consideration of the record, the enquiry officer has in fairness found some of the points in favour of the petitioner and some against him, and accordingly he submitted his report. Obviously on consideration of the report, the disciplinary authority was inclined to a ward the punishment and accordingly show-cause notice was issued-the grounds on which they proposed to take action including the previous conduct of the petitioner. The petitioner admittedly submitted his explanation and on consideration thereof, the disciplinary authority in an elaborate order has discussed all the points raised by the petitioner. It is also stated in the order that he has carefully scanned the evidence of the witnesses and he also stated that he has given reasonable opportunity of hearing to the petitioner and then passed a very reasoned order, imposing the penalty of removing the petitioner from service. Thereby the disciplinary authority had applied its mind to the relevant facts and recorded the findings. Accordingly the contention that the findings are not based on record and there is lack of application of mind by the authority is without any force.

It is next contended as regards the imposition of penalty. Though the disciplinary authority is entitled to impose punishment, it should be consistent with the magnitude of the misconduct. In this case, the petitioner had merely disobeyed the orders of the Commandant. His defence is in terms of law and therefore it is not a serious misconduct and therefore minor penalty like withholding of increments, censure, etc. should have been imposed but the imposition of the extraordinary penalty of removal from service is arbitrary violating Article 14 of the Constitution. I have given by anxious consideration to the contention raised by the petitioner. It is seen that Section 9 of the Central Reserve Police Act, 1949 enumerates more heinous offences, one of which is in clause (e) - disobeying the orders of the Commandant Officer. When such a misconduct or offence has been committed, the punishment is transportation for life or for a term of not less than seven years or with imprisonment for a term which may extend to fourteen years or with fine which may extend to three months'' pay or with fine to that extent in addition to such sentence of transportation or imprisonment. Thereby, the Legislature has manifested its intention that they are expected to maintain high degree of discipline to obey the command issued by the superior officers, whatever may be the illegality thereof or inconvenience to the delinquent officer. When such is the situation, and when disciplinary proceedings are conducted and reasonable opportunity was given to the delinquent officer and when the order of removal of him from service is passed, could it be said that it is not warranted or it is disproportionate with the magnitude of the misconduct alleged against the delinquent officer. No doubt, the disciplinary authority is expected to consider all the aspects and then record a finding in that regard. But it must be remembered that the disciplinary authority has to deal with the C.R.P. Force, governed by the provisions of the Act. The force is expected to maintain high degree of discipline and any laxity in this regard would undermine the affectivity of the command, which ultimately affects the security of the State. Considered from this perspective, I am of the considered view that large leeway should be given to the disciplinary authority and the disciplinary authority should consider the evidence and other material on record before imposition of the punishment. From this perspective, the question is whether this is a fit case for this Court to interfere with the punishment and direct the respondents to consider the alternative punishment-of compulsory retirement from service, as suggested by Sri Ramamohan Rao. Though I have given my anxious thought to this contention and found that there is reasonableness in the contention raised by the learned counsel, but on a deeper probe, I cannot find its acceptance for the reason that in the matter of disciplinary proceedings, dealing with armed forces if any such direction is given, it would have an insidious effect in the mind of the likeminded persons and therefore this Court would be loathed to interfere with the discretion exercised by the disciplinary authority. The evidence recorded in this case discloses that the petitioner has disobeyed the command issued by the Commandant on two counts, viz., his failure to supply wireless set and also to obey the movement order. When such is the disobedience and one of the punishments provided in Section 9 of the Act is removal from-service, I find that it is not desirable to interfere with the order, in the proceedings under Article 226 of the Constitution. The writ petition is accordingly dismissed. No costs.