Neeraj Kumar vs Union of India and another

Tejinder Singh Doabia, J.—As per the respondents a Departmental Inquiry was ordered against the petitioner. This was under Rule 27 of

the Central Reserve Police Force Rules, 1955 (hereinafter referred to as the Rules). The sole allegation as contained in articles of charge i.e.

Article1 is that the petitioner was posted in 22nd Bn. of the Force committed an offence of mis conduct in his capacity as a member of Force

under section 11(1) of C.R.P.F. Act, 1949. He is said to have fired from his Self Loading Rifle on his colleague L/NK Revan Sidappa of the same

Battalion. The aforementioned L/NK Sidappa is said to have died on spot. Memorandum of charge dated 21/03/1997 alongwith Statement of

articles of charge, Statement of imputation of misconduct/disobedience, in support of the articles of charge was framed. List of documents by

which articles of charge framed was sought to be substantiated was also made available. Such is the stand taken by the respondents. It is stated

that one R.P. Singh Rana, Assistant Commandant of the Unit was appointed as Inquiry Officer to conduct the Departmental Inquiry against the

delinquent, the Inquiry Officer started the inquiry 02/07/1997. The petitioner was given fifteen days time to produce evidence in defence. As there

was refusal on his part. The inquiry officer is said to have completed the Inquiry on 10/10/1997. The report of the Inquiry officer is said to have

sent to Superintendent, District Jail, Kathua on 4/11/1997. The petitioner was supposed to give his reply within fifteen days. As there was no

response, therefore, an order of dismissal was passed. Before passing the order it was noted that the petitioner used his weapon in a manner which

caused the death of L/NK Sidappa. It is this order which is subject matter of challenge in this petition. It is submitted that in the criminal trial which

was conducted, the petitioner was acquitted on 26/04/1999, copy of the judgment passed by the Sessions Judge, Kathua has been placed on the

record as annexure `A'. The facts as noticed in the opening para of the judgment are as under :

In case of the prosecution stems out of those circumstances which are summarised as :

That on 6.10.96, informant namely, Sh. Gaje Singh, ExMan No. 55 posted it C.R.P.F. Post Daggar, lodged an osccular report stating therein that

he is posted at C.R.P. Post Daggar and lives near the said post. At about 5.10 A.M. he came out of his bed, heard 3/4 gunshot sounds coming

from the side of said C.R.P.F. Post; that on seeing towards said camp, found several persons assembled there at the varandha of building under

the occupation of CRPF Post and a Jawan in a pool of blood; that on enquiry from Hav. Subeh Singh learnt that Constable Neeraj Kumar has

murdered L/NK Rebon Sanadapa because of Last night's quarrel by firing 3/4 shots by a SLR Gun allotted to him; that pursuant to this report, a

case for offence punishable under Sec. 302 RPC came to be registered by Police Bani under its FIR No. 52 of 1996.

It is submitted that if judgment of acquittal has been recorded by a Court of Competent Jurisdiction then findings to the contrary cannot be

recorded by the Departmental Inquiry. In addition to this it is submitted that the petitioner was all along either in police custody or in judicial lock

up. He categorically states that w.e.f. 6/10/1996 till judgment of acquittal was passed, he was in custody. Such is the stand taken in para 2 of the

petition. In this situation it is submitted that the question of petitioner being given reasonable opportunity to defend in the departmental proceedings

could not arise. To the stand taken in para 2, the specific allegation of the petitioner that he was in the police custody has not been denied. What is

stated in para 2 of the counter affidavit is reproduced below :

That the contention of the petitioner that he was involved in a false case of murder and as such FIR 52 of 1996 came to be registered at Bani is

false, baseless and concocted. In fact the petitioner fired four rounds at L/NK Revan Sidappa No. 830735284 at 0510 hours on 6.10.1996 at

Daggar out Post. L/NK Revan Sidappa died on spot. A departmental inquiry was held against him under section 11(1) of CRPF Act, 1949 in that

he fired four rounds from his SLR rifle Butt No. 36 body No. CW2299 straight way of L/NK Revan Sidappa of A/22 on 6.10.1996 at 0510

hours he died on spot at outpost Daggar, Bani as such as misused his weapon. During the DE proceedings 12 PWs were examined and

accordingly accused CT Neeraj Kumar was dismissed from service w.e.f. 5/12/97.

From the pleadings of the parties, it becomes apparent :

i) That the petitioner is said to have committed an offence falling within the `mischief' of section 302 of the Penal Code;

ii) That the petitioner was arrested on 6/10/1996;

iii) The petitioner was tried by the Court of Sessions and a judgment of acquittal was passed on 26/4/1999;

iv) The petitioner was proceeded against in a departmental inquiry under Rule 27 of the Rules of 1955;

v) The petitioner was dismissed from service from 5/12/1997; and

vi) That the period during which departmental inquiry was held, the petitioner was either in police custody or in judicial lockup.

The Supreme Court of India in a case reported as `Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. and another', 1999(2) SCT 660 (SC) :

AIR 1999 SC 1416 , has observed that if findings on merit have been recorded by Criminal Court then on the basis of same set of evidence

departmental punishment cannot be awarded. The entire case law on the subject was discussed, the conclusions which were arrived at is indicated

in para 22 of the judgment. For facility of reference this para is reproduced below :

The conclusions which are deducible from various decisions of this Court referred to above are :

i) Departmental proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar in their being conducted

simultaneously, though separately.

ii) If the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in the criminal case against

the delinquent employee is of a grave nature which involves complicated questions of law and fact, it would be desirable to stay the departmental

proceedings till the conclusion of the criminal case.

iii) Whether the nature of a charge in a criminal case is grave and whether complicated questions of fact and law are involved in that case, will

depend upon the nature of offence, the nature of the case launched against the employee on the basis of evidence and material collected against

him during investigation or as reflected in the charge sheet.

iv) The factors mentioned at (ii) and (iii) above cannot be considered in isolation to stay the departmental proceedings but due regard has to be

given to the fact that the departmental proceedings cannot be unduly delayed.

v) If the criminal case does not proceed or its disposal is being unduly delayed, the departmental proceedings, even if they were stayed on account

of the pendency of the criminal case, can be resumed and proceeded with so as to conclude them at an early date, so that if the employee is found

not guilty his honour may be vindicated and in case he is found guilty, administration may get rid of him at the earliest.

Ultimate conclusion was that if a person has been acquitted on the basis of same evidence then on the basis of same evidence the departmental

authorities should not punish the delinquent. What was said in para 34 is reproduced below :

There is yet another reason for discarding the whole of the case of the respondents. As pointed out earlier, the criminal case as also the

departmental proceedings were based on identical sets of facts namely, ""the raid conducted at the appellant's residence and recovery of

incriminating articles therefrom."" The findings recorded by the Inquiry Officer, a copy of which has been placed before us, indicate that the charges

framed against the appellant were sought to be proved by Police Officers and Panch witnesses, who had raided the house of the appellant and had

effected recovery. They were the only witnesses examined by the Inquiry Officer and the Inquiry Officer, relying upon their statements, came to the

conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case but the court, on a

consideration of the entire evidence, came to the conclusion that no search was conducted nor was any recovery made from the residence of the

appellant. The whole case of the prosecution was thrown out and the appellant was acquitted. In this situation, therefore, where the appellant is

acquitted by a judicial pronouncement with the finding that the `raid and recovery' at the residence of the appellant were not proved, it would be

unjust, unfair and rather oppressive to allow the findings recorded at the ex parte departmental proceedings to stand.

The aforementioned observations would apply to the facts of this case also. However, the question as to whether the petitioner has been found

guilty on the basis of same evidence or there was some other distinguishing feature, this is a matter on which departmental authorities are to express

a view.

Independently of the above, the question arises as to whether the petitioner who was in police custody and judicial lockup was given reasonable

opportunity to defend himself before the Inquiry. The concept of reasonable opportunity not only envisage a right to defend properly but also

recognize right to get proper assistance for bringing material in defence. Nodoubt, a legal practitioner may not be permitted to appear in a

departmental inquiry but the right to consult a legal practitioner is a right which cannot be denied to any citizen of this country and more so a person

who is facing serious charges which may lead to snapping of relationship of master and servant. The petitioner while in custody was denied this

right to him.

There is nothing on the record to indicate that any attempt was made by the respondents to seek the release of the petitioner from judicial

lockup so that he may be in a position to defend himself in departmental proceedings. The petitioner belongs to the State of Uttar Pradesh. He had

no relations in the State of Jammu & Kashmir. It was difficult for him to have access with his relations. If this be the situation then the sending of

notices to the petitioner calling upon him to appear in the departmental proceedings when he was in jail would not serve the purpose of grant of

opportunity to the petitioner. This petition as such is allowed. Order of dismissal which has been passed without giving reasonable opportunity to

the petitioner is held to be violative of rules and the Act under which the Force has been constituted. The petitioner shall stand reinstated with

liberty to the respondents to hold fresh inquiry. As and when fresh inquiry is held, the impact of the judgment given by the Court of Sessions and

the view expressed by the Supreme Court in Captain M. Paul Anthony's case would be taken note of. Writ petition is allowed in the manner

indicated above.