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Judgment
V.K. Jhanji, J.—Laxman Dass, who was a constable in 31 Bn CRPF, has filed present writ petition seeking quashing of order No.
P.VIII.4/96-31-EC-II dated 11.3.2000 issued by Commandant 31 Bn CRPF by which he has been dismissed from service with effect from
11.3.2000. He is also seeking writ in the nature of Certiorari quashing exparte departmental inquiry and the charges framed against him and for
issuance of further direction to respondents to allow petitioner to continue to work on the post of constable on which he was working or to pay
him subsistence allowance as was being paid to him before March 2000.
Case of the petitioner is that in 1996 during his posting in 31 Bn CRPF a false allegation was levelled against him in regard to misappropriation
of mess money worth Rs. 1000/- while he was discharging his duty as Coywriter. Other allegation against petitioner was that he misbehaved and
mis-handled his Officer Commanding and later on in the evening on 12.6.1996 while Inspector M.C.R.C. Reddy was sleeping in his tent petitioner
with his rifle shot him dead for which he at the time of filing of writ petition was being tried separately by the criminal court u/s 302 Ranbir Penal
Code. Further, according to petitioner, other charge levelled against him was that he while functioning as Coy-writer in 31 Bn CRPF committed an
act of misconduct and misbehaviour in his capacity as a member of the Force, when Coy Commander Inspector M.C.R.C. Reddy complained
about false transaction petitioner got infuriated; that he misbehaved and assaulted the Coy. Commander and in the evening shot him dead. Further
case of the petitioner is that since he was lodged in Central Jail Jammu for trial u/s 302 RFC in the court of Sessions Judge, Jammu, the
respondents dismissed him from service without conducting inquiry. Petitioner has alleged that no opportunity of hearing was given to him under the
provisions of Central Reserve Police Force Act (hereinafter referred to as the Act) and the rules framed thereunder, and, therefore, the order
dismissing him from service is clearly against the principles of natural justice and violative of the provisions of the Act and rules framed thereunder.
In response to notice of writ petition, respondents in their counter have stated that petitioner shot dead Inspector /GD M.C. R. C. Reddy while
he was resting in his tent on 12.6.1996; that petitioner was captured outside the spot of accident by Senior Officers of 31 Bn alongwith Bn
personnel; that an FIR to this effect was lodged with Police Station Bari Brahamana Jammu and petitioner was handed over to police for being
tried u/s 302 Ranbir Penal Code. Respondents have admitted that at the time of filing counter petitioner was in judicial custody and Court of
Inquiries headed by Shri Raghubir Singh, Second-in-Command of 31 Bn and Shri Trivedi Commandant Staff to DIGP CRPF Kohima respectively
were conducted and final order on it was issued by DIGP CRPF Kohima vide order dated 27.2.1998 finding petitioner guilty of murdering
Inspector M.C.R.C. Reddy for which a departmental enquiry ordered by Commandant 31 Bn was to commence only if petitioner was acquitted
by Court of law in criminal case. Respondents in the reply have further stated that since criminal case against petitioner was being unduly prolonged
matter was taken up with DIGP CRPF, Kohima, for further orders regarding feasibility of conducting disciplinary enquiry u/s 11(3) of the 5CRPF
Act and the rules against the petitioner, who was under suspension and in judicial custody lodged in Central Jail, Jammu. Respondents further state
that DIGP CRPF took up the matter with IGP NES, who clarified that Commandant being the disciplinary authority of CT. Laxman Dass (i.e.
petitioner) should take a decision as to whether departmental enquiry should be initiated or not. It is thereafter that, vide order dated 16.6.2000,
Commandant 31 Bn. CRPF ordered disciplinary enquiry against the petitioner.
Respondents also state that memorandum of charges were sent to petitioner through Superintendent Central Jail Jammu but he refused to
receive the memorandum of charges thus leaving disciplinary authority with no option but to hold disciplinary enquiry. Vide office order dated
20.11.1999 Arunender Pratap Deputy Commandant was detailed as Enquiry Officer, who conducted exparte enquiry against the petitioner.
Respondents have also averred that statements of all prosecution witnesses recorded in departmental enquiry were sent to petitioner and thereafter
enquiry report too was sent, but the same were returned by Superintendent Central Jail Jammu with the remarks that under-trial prisoner namely
Laxman Dass has refused to receive those papers. Accordingly, final order dated 11.3.2000 dismissing petitioner from services came to be
passed. Precise case of the respondents is that there has been no procedural irregularity in holding departmental enquiry and punishment awarded
to the petitioner is just and commensurate with the offence committed by him.
Learned counsel for petitioner contended that charges against petitioner were framed without conducting court of inquiry and the departmental
inquiry conducted against him was against the principles of natural justice inasmuch as petitioner was not given real and effective opportunity to
defend himself. According to learned counsel, petitioner was in jail facing trial under 302 Ranbir Penal Code and in case inquiry was required to be
conducted it ought to have been conducted after completion of trial or petitioner ought to have been given fair and adequate opportunity to defend
himself which, in the present case, was not given to him. Learned counsel further submitted that procedure provided under Rule 27 of the Central
Reserve Police Force Rules, 1955, (hereinafter referred to as the Rules) was not followed and, therefore, not only the punishment but
departmental inquiry in itself deserves to be quashed.
On the other hand, learned counsel appearing for respondents, produced record to show that inquiry was conducted as per Rule 27 of the
Rules. Learned counsel contended that since petitioner did not cooperate with the inquiry, the Inquiry Officer had no option but to conduct an
exparte inquiry. Learned counsel further states that proceedings against petitioner were not taken in hot haste and mechanical manner.
I have heard learned counsel for the parties and carefully gone through the record of the case.
In regard to murder of Inspector M.C.R.C. Reddy two Court of Inquiries, one headed by Shri Raghubir Singh Second in Command of 31 Bn
and the other by Shri Trivedi, Commandant Staff to DIGP CRPF Kohima, were conducted. Court of inquiry headed by Shri Raghubir Singh, on
the basis of evidence led before him, concluded that killing of Inspector M.C.R.C. Reddy was possible by the petitioner but second court of
inquiry presided over by Shri Trivedi though accepted that Inspector M.C.R.C. Reddy died due to shot fired from the rifle of petitioner, but
refused to accept petitioner as the murderer. Findings of two court of inquiries were placed before DIGP CRPF Kohima, who, vide order dated
27.2.1998, accepted the report of first court of inquiry headed by Shri Raghubir Singh and, prima facie, found petitioner guilty of murdering
Inspector M.C.R.C. Reddy, for which he ordered holding of departmental inquiry, which was to commence only after petitioner is acquitted in
criminal case by the court of law. Vide letter dated 15.12.1998 Commandant 31 Bn CRPF requested Deputy Inspector General of Police CRPF
Kohima Nagaland to examine the matter and sought further orders regarding feasibility of conducting disciplinary enquiry against the petitioner u/s
11(3) of the Rules, as according to him, there was no definite time limit for finalizing the judicial case pending against the petitioner. DIGP CRPF,
vide his communication dated 18.12.1999, sought clarification from IGP NES, who clarified that Commandant being the disciplinary authority of
Ct. Laxman Dass (i.e. petitioner) should take a decision as to whether disciplinary enquiry should be initiated or not and no permission from higher
authorities in this regard is necessary in terms of Circular No. 11/1991. Perusal of record shows that by signal dated 28.10.1998 Commandant
was told to follow Circular No. 11/1991 providing for holding departmental enquiry during pendency of criminal trial, if the trial is delayed. It
appears that the Commandant thereafter decided to hold departmental inquiry and memorandum of charges, which were two in number, were sent
to petitioner, who was in judicial custody lodged in Central Jail Jammu, through Superintendent Central Jail for serving upon the petitioner.
Superintendent Central Jail Jammu, vide his letter dated 22.9.1999, informed the Commandant that under-trial prisoner Laxman Dass has neither
accepted the memorandum of charges nor gave any receipt in this behalf.
Perusal of record produced by learned counsel for respondents shows that Shri Arunender Pratap, Deputy Commandant 31 Bn CRPF, who
had been appointed as Enquiry Officer, visited Central Jail Jammu and delivered a letter to Superintendent Central Jail Jammu informing him that he
has been detailed as an Enquiry Officer to conduct inquiry into the charges framed against the petitioner as such he sought permission to meet
Laxman Dass petitioner in jail, so as to deliver memorandum of charges to him, enabling petitioner to plead ""guilty"" or ""not guilty"". There is nothing
on record to show that Superintendent Central Jail Jammu permitted the enquiry officer to meet petitioner in jail, though in the inquiry report it is
mentioned that on 1.12.1999 enquiry officer personally went to Central Jail, Jammu, to deliver the memorandum of charges but petitioner refused
to accept the memorandum of charges and associate himself with the enquiry proceedings. It is further not in dispute that inquiry came to be
concluded exparte while petitioner was in judicial custody lodged in Central Jail Jammu.
The question which arises for consideration is whether fair and proper opportunity was afforded to the petitioner to defend himself in the
departmental inquiry conducted against him exparte and that too when he was lodged in Central Jail Jammu, in connection with murder case
pending against him before a court of law ?
The departmental enquiry initiated against the petitioner was of such a mis-behaviour and mis-conduct, i.e. murder which could invite
punishment of dismissal from service. Rule 27 of the Rules provides a procedure for conducting departmental enquiry and award of punishment of
dismissal or removal from the Force. As per this rule, firstly charge is to be read out to the delinquent employee and copy of it given to him at least
48 hours before the commencement of the enquiry; that at the commencement of the enquiry the delinquent is to be asked to enter a plea of ""guilty
or ""Not guilty"" after which evidence, either oral or documentary, which may be material to the charge is to be let in; that the documents relied upon
in support of the charge are to be put in evidence as exhibits and before putting up his defence delinquent is to be allowed to inspect such exhibits
and he then is to be examined by the Officer conducting the enquiry; that if the delinquent pleads guilty and does not challenge the evidence or
record, the proceedings are to be closed for orders, but if he pleads ""Not guilty"" he is to be asked to file written statement and a list of defence
witnesses within a fortnight; that in case delinquent declines to file written statement he is again to be examined by the officer conducting enquiry on
the expiry of period allowed; that if the Commandant himself conducts enquiry he is to record his findings and pass orders. The Rule further
provides that where the authority competent to impose the penalty is satisfied for reasons to be recorded in writing that it is not reasonably
practicable to hold an enquiry in the manner provided in these rules, the authority competent may make such order as it deems fit and proper in the
facts and circumstances of the case.
Perusal of rules, inter alia, indicates that in the enquiry witnesses are to be examined in presence of the delinquent, who is to be allowed an
opportunity to cross examine the witnesses. Further, delinquent is to be allowed opportunity to inspect the documents /exhibits relied upon in
support of the charge against him and in case he fails to file written statement he has again to be examined by the Enquiry Officer.
Admittedly, departmental enquiry against petitioner came to be initiated when he was in judicial custody lodged in Central Jail Jammu for facing
trial in a case under 302 RFC. It is true that during pendency of criminal trial disciplinary authority can proceed to hold departmental enquiry but
cardinal factor in the administration of justice is that delinquent who is likely to be affected has to be given fair and proper opportunity of being
heard, which means that opportunity has to be an effective opportunity and not a mere pretence.
It is also well settled that the rules of natural justice are violated if the enquiry proceeds without notice to the delinquent-employee. Even when
delinquent may not have replied to the show cause notice alongwith the charge sheet sent to him it does not mean that no further notice has to be
given at any stage of the enquiry proceedings. In fact, before the witnesses are examined and documents are brought on record delinquent has to
be given an opportunity to inspect the documents. This is because under Rule 27 of the CRPF Rules the delinquent has the right to be informed at
different stages of enquiry and his default at one stage will not take away his right to participate in the enquiry at a later stage. Even when no
witnesses are examined before the enquiry officer and only previous statements are taken on record, delinquent has a right to cross-examine the
witnesses whose previous statements are tendered as evidence in the enquiry proceedings.
In State of U.P. Vs. Shatrughan Lal and Another, , their Lordships of the Supreme Court held that one of the principles of natural justice is that
a person against whom an action is proposed to be taken has to be given an opportunity of hearing. This opportunity has to be an effective
opportunity and not a mere pretence.
In State Bank of Patiala and others Vs. S.K. Sharma, : their Lordships of the Supreme Court observed that while applying the rule of audi
alteram partem (the primary principle of natural justice) the Court/Tribunal/Authority must always bear in mind the ultimate and overriding objective
underlying the said rule, viz., to ensure a fair hearing and to ensure that there is no failure of justice. It is this objective which should guide them in
applying the rule to varying situations than arise before them.
In Sawarna Transport Co. Ltd. v. Appellate Authority Nagpur and Ors. AIR 1956 Nag 235, a Division Bench of the court presided by
Justice Hidayatullah C.J. (as his Lordship then was) observed that:
what is meant by the term and principles of natural justice' is not easy to determine but every administrative tribunal in India which is required to
decide upon the rights of the parties must act in a manner conformable to the essence of justice and one cardinal factor in the administration of
justice is that every litigant must be given a fair and proper opportunity of being heard and allowed to state his case to the utmost. This requirement
is not fulfilled where there is mere lip service done to the principles of natural justice and an audience allowed which amounts to nothing. There
must be always a substantial opportunity and a proper latitude to meet everything which is likely to be considered against a party.
Considering the facts of this case, in the light of aforementioned judgments and Rule 27 of the CRPF Rules, I am of the view that petitioner has
not been afforded fair and proper opportunity of hearing and there has been failure of justice. In fact, first court of enquiry headed by Shri Raghubir
Singh concluded that killing of Inspector M.C. R.C. Reddy by petitioner was possible but the second court of enquiry headed by Shri Trivedi did
not find petitioner guilty of murder. DIGP CRPF Kohima accepted the report of the first court of inquiry holding petitioner guilty of charge but he
directed to conduct departmental enquiry only after petitioner is acquitted by the Criminal Court. The Commandant did not wait for conclusion of
criminal trial but decided to conduct enquiry exparte and that too when petitioner was in judicial custody lodged in Central Jail Jammu. Being in jail,
petitioner was not in a position to seek proper legal advice to defend himself of the charge levelled against him in the departmental proceedings.
Moreso, Enquiry Officer going to meet petitioner in Central Jail Jammu, reading of charge and asking him to plead ""guilty"" or ""not guilty"", asking
him to accept memorandum of charge; holding departmental enquiry exparte and examining prosecution witnesses without associating petitioner or
giving him opportunity of hearing or to engage a counsel of his choice are all relevant factors which clearly show that fair and proper opportunity to
defend himself had not been afforded to petitioner and, therefore, the very essential principle of natural justice ignored. In such circumstances,
order dismissing petitioner from service is not sustainable in law.
I may also observe that vide order dated 16.10.2002 Sessions Judge, Jammu, by a detailed judgment running into 60 pages has acquitted the
petitioner of the charge of murder by coming to firm conclusion that prosecution has failed to prove its case.
In view of the above, writ petition is allowed; order No. P.VIII. 4/96-31EC-II dated 11-3-2000 dismissing petitioner from service is set aside
and petitioner is ordered to be reinstated in service with all consequential benefits. However, respondents shall be at liberty to hold an enquiry
against petitioner in accordance with the CRPF Act and the rules made thereunder No order as to costs.