Rajinder Singh vs Home Secy. to govt. of India and Others

Hasnain Massodi, J.—Petitioner was enrolled in Central Reserve Police Force on 04.04.1991 and served the Force till 31.05.1997. In

May, 1997 an enquiry was directed against the petitioner regarding following instances of misconduct and dereliction of duty:

1) That the petitioner accompanied by his namesake constable Rajinder Singh in May, 1997, in violation of Camp Standing Order prohibiting the

personnel living in barracks/lines from going to family lines/quarters without permission, went to the residential quarter of SI Jagdish Singh at about

2130 hrs, beat the outer door of his residence and threatened the officer.

2) That the petitioner was found absent from night duty as Guard Markar at 1700 hrs without permission of the Competent Authority.

3) That the petitioner was found absent from night duty Guard Markar on 01.06.1997 at about 1700 hrs and when Day NCO Jagdish Parsad

accompanied by Day SO SI OS George went to petitioner's barrack they found him taking liquor with Rajinder Singh Constable No. 90099652

of 102 Battalion RAF and when asked to explain their absence, the petitioner and his colleague assaulted S/Shri Jagdish Parsad and OS George.

The enquiry was entrusted to Shri Bagwat Singh, Assistant Commandant 102 Bn. RAF. The enquiry officer found substance in all the allegations of

misbehaviour, misconduct and dereliction of duty alleged against the petitioner and, accordingly, submitted its report to the Commandant 102 Bn

RAF/CRPF.

The Commandant 102 Bn RAF/CRPF respondent no. 2 in the present petition, in exercise of powers u/s 11(i) CRPF, 1949 read with Rule 27

(a) CRPF Rules, 1955 imposed the penalty of dismissal from service made effective from 17.11.1997 on the petitioner. His period of suspension

with effect from 01.06.1997 was ordered to be treated as such without any additional emoluments.

The petitioner aggrieved with the order dismissing him from service and penalties imposed, preferred an appeal before Deputy Inspector

General of Police, RAF/CRPF R.K. Puram New Delhi. However, his appeal did not meet any success and was rejected on 09.03.1997. The

Revision Petition filed against the order of dismissal and order rejecting appeal also failed and was rejected on 14.09.1998.

Petitioner after he exhausted all the remedies available under CRPF Act, 1949 and rules made thereunder without any success, has come up

with the writ petition on hand, throwing challenge to aforementioned orders on the grounds set out in the petition.

Petitioner denying all the allegations leveled against him, traces the allegations to the malice nursed by Shri Jagdish Singh, Sub Inspector against

the petitioner. It is stated that the petitioner did not go to the residential quarter of Jagdish Singh, SI on his own but was called by him and asked to

carry some heavy luggage to his home; that the petitioner expressed his inability to carry the luggage as the petitioner was to carry his own luggage;

that his refusal to carry the luggage infuriated Shri Jagdish Singh, SI and made him to concoct and manipulate false charges against the petitioner.

The order awarding punishment is questioned also on the ground that the punishment awarded is disproportionate to the offence stated to have

been committed by the petitioner. It is pleaded that as Section 11(i) CRPF Act, 1949 deals with minor punishment, dismissal from service cannot

be ordered in exercise of powers under said Provision. Petitioner also assails the department enquiry conducted by Shri Bhagwat Singh, Assistant

Commandant on the ground that the petitioner was not provided documents, statement of witnesses as required under Rule 27 (c) (i) (B1) of

CRPF Rules and that a joint enquiry was not conducted against the petitioner and Shri Rajinder Singh, Constable No. 90099652 of 102 Battalion

RAF alleged to have accompanied the petitioner to the residential quarters and to have been found consuming liquor with the petitioner after the

petitioner left the duty as Guard Duty Markar. It is insisted that failure to conduct a joint enquiry against the petitioner and his accomplice violates

mandate of Rule 27 (d) (i) CRPF Rules, 1955.

The petitioner complains that he was denied right to submit his representation against the enquiry report, inasmuch as, copies of the enquiry

report and connected documents were not provided to him and further that he was denied adequate assistance to organize his defence. Petitioner

disputes competence of Shri Avtar Singh Assistant Commandant to place him under suspension vide order dated 03.06.1997 on the ground that

only Commandant 102 Bn. was competent to make such order. He also points to communication dated 06.11.1997 received from Assistant

Commandant whereby he was shown to have been dismissed from service while the punishment of dismissal from service was awarded by the

Commandant on 17.11.1997. Petitioner insists that decision regarding punishment to be awarded to the petitioner was taken much before the

punishment was awarded on 17.11.1997 and, therefore, the order impugned suffered from non-application of mind.

The writ petition is resisted by the respondents on the grounds that enquiry was conducted in accordance with CRPF Act, 1949 and CRPF

Rules, 1955 and the petitioner given adequate opportunity to put forth his stand. The punishment awarded is said to be in accordance with Section

11(i) CRPF Act, 1949 read with Rule 27 CRPF Rules, 1955. The respondents dispute and controvert all the averments made in the petition to

assail the enquiry and the order awarding punishment as also orders passed by the Appellate and the Revisional Authority. Petitioner is said to

have been given a reasonable opportunity to produce any documents or witness in his defence.

The respondents deny that a joint enquiry was required to be held against the petitioner and Rajinder Singh Constable No. 90099652. It is

pointed out that a separate enquiry was conducted against Shri Rajinder Singh by Commandant 30th Battalion BRF where he was posted on

transfer from 104 Bn. RAF. Respondents insist that the petitioner was placed under suspension by the Assistant Commandant under instructions

from the Commandant an authority competent to make such order.

Petitioner in his rejoinder reiterates that as Shri Rajinder Singh, Constable No. 90099652 was alleged to have accompanied the petitioner to

the residence of Shri Jagdish Singh, Sub Inspector and also to have been found to consume liquor in his residential quarter, a joint enquiry should

have been directed and as Rajinder Singh, Constable No. 90099652 in a separate enquiry was found not guilty, the same evidence could not

substantiate allegation against the petitioner. The averments made in the reply in opposition to the writ petition are also controverted in the

rejoinder, reiterating the stand put forth in the petition.

Learned Single Judge on 06.02.2002 allowed the writ petition, opining that a major punishment like one of dismissal from service cannot be

awarded u/s 11(i) CRPF Act, 1949. The order of Commandant 102 Bn. RAF/CRPF dismissing the petitioner from service, was, accordingly, set

aside and the respondents directed to reinstate the petitioner giving them liberty to pass a fresh order in accordance with Rules.

The order dated 06.02.2002 was questioned in LPA(SW) no. 111/2002. The LPA Bench relying on law lay down in Union of India (UOI)

and Others Vs. Ghulam Mohd. Bhat, held that an order of dismissal or removal from service can be made u/s 11(i) CRPF ACT, 1949. The

judgment impugned in the appeal was, accordingly, set aside and the case remanded for fresh disposal.

I have gone through the pleadings and record available on the file. I have heard learned counsel for the parties.

The petitioner, as must be clear by now, questions the dismissal order dated 17.11.1997 primarily on following three grounds:-

(i) That the Enquiry Officer and Disciplinary Authority did not adhere to the procedure laid down under law while dealing with the matter.

(ii) That his co-accused though alleged to have been guilty of the misconduct alleged against the petitioner was not tried with the petitioner and that

on same evidence recorded in separate enquiries, petitioner was held guilty while his colleague was exonerated of all charges.

(iii) That the punishment awarded was disproportionate to the misconduct claimed to have been proved against the petitioner.

Perusal of record made available by Shri Rajneesh Raina, learned CGSC would reveal that the authorities followed the procedure prescribed

under law in letter and spirit while enquiring into the misconduct alleged against the petitioner and awarding punishment on the basis of outcome of

the enquiry. Shri Sahinder Singh Yadav, Inspector CRPF, was asked to conduct preliminary enquiry touching complaint received against petitioner

and his colleague Rajinder Singh Constable No. 90099652, detailing misconduct allegedly committed on 31.05.1997 and 01.06.1997.

The Enquiry Officer recorded statements of S/Shri Jagdish Singh-102 Bn, O.S. George-102 Bn., Constable Jagdish Parsad and Constable

M.N. Paniker, found allegations prima facie established against the petitioner and his colleague and submitted his report to the Commandant on

03.06.1997. The Commandant 102 Bn. CRPF on going through the preliminary enquiry report under Rule 27 Central Reserve Rules, 1955,

decided to hold an enquiry against the petitioner and appointed Shri Bhagwat Singh, Assistant Commandant 102, Bn as Enquiry Officer. The

Memorandum and the Statement of Articles of charges and Statement of imputation in support of the Article of charge and also the list of

document and the list of the witnesses by which/by whom the articles of charges framed against the petitioner, were proposed to be substantiated

(Annexures I to IV) were duly served on the petitioner. Petitioner submitted a detailed representation to Inspector General of Police, CRPF, New

Delhi, wherein he acknowledged to have received the Memorandum alongwith its annexures and put forward his defence. The departmental

enquiry was concluded on 27.07.1997. The Enquiry Officer vide his letter dated 2.09.1997 informed the petitioner that the enquiry against him

was completed and that the report was being submitted to the Disciplinary Authority for consideration and necessary action. The enquiry report

was enclosed with the communication and petitioner informed that reply, if any, submitted by him would be forwarded alongside the Enquiry

Report to the Disciplinary Authority so that it is considered by the authority while taking a decision in the matter. The fact that the Enquiry Report

with its enclosures was received by the petitioner is substantiated by the application made by him on 11.09.1997 to the Commandant asking for

legible copies of some of the documents received by him. The application dated 11.09.1997 was followed by yet another application dated

whereby particulars of eligible documents were detailed. The Commandant 102 Bn. vide Communication dated 23.09.1997 forwarded another set

of Enquiry Report with other documents to the officer commanding HQ. 102 Bn. with a request to deliver the documents to the petitioner and ask

to submit his reply, if any, within two weeks from the date of receipt of the communication. The petitioner submitted his written reply on

30.09.1997. The proposed punishment was conveyed to the petitioner vide communication dated 06.11.1997 and petitioner submit his

representation against the punishment proposed vide written representation dated 13.11.1997. This was followed by dismissal order dated

17.11.1997.

The minutes of the proceedings catalogued in the preceding para, support the respondents stand that the procedure prescribed under law was

meticulously followed and adhered to by the authorities at all levels i.e. Preliminary Enquiry Officer, Departmental Enquiry Officer and the

Commandant 102 Bn. CRPF while dealing with the complaint received against the petitioner. The petitioner, therefore, cannot complain of

violation of procedural rights available to him under the rules applicable to the matter.

Learned counsel for the petitioner while insisting that a joint enquiry was to be conducted against the petitioner and his colleague-Rajinder

Singh Constable No. 90099652, seeks to draw support from Section 27(d) the Central Reserved Police Force Rules, 1955. It would be

appropriate to reproduce the Rule:

Where two or more members of the Force, including those on deputation to the Force are concerned in any case, the Inspector General [or any

other authority competent to impose the penalty of dismissal from service on all such members of the Force] may make an order directing that

disciplinary action against all of them may be taken in a common proceeding.

Note.--Where in such a proceeding, the misconduct of a deputationist is to be dealt with, the consent of the disciplinary authority competent to

impose the penalty of dismissal shall be obtained for the taking of such a disciplinary action.

(2) Such order shall specify

(i) the authority which may function as the disciplinary for such a common proceeding;

(ii) the penalties specified in the table of sub-rule (a) above which such disciplinary authority shall be competent to impose;

(iii) whether such disciplinary authority shall hold the Departmental enquiry himself or may designate any other enquiry officer for that purpose; and,

(iv) that the enquiry shall be held in accordance with the provisions of sub-rule (a) and sub-rule (c).

The Rule does not extend any support to the petitioner's case. In the first place, the rule is enabling in character and does not create any right in

favour of the petitioner to insist that he and his colleague were necessarily to be dealt with, in common proceedings or that failure on the part of the

disciplinary authority to proceed against the petitioner and his colleague, vitiated the Departmental Enquiry held against him. Secondly, the nature of

allegations against the petitioner was different from the allegations against his name sake colleague. Petitioner was alleged to have created a scene

at the residence of SI Jagdish Singh, assaulted the officer and cut his hands with blade to threaten his officer. No such allegation was leveled

against his colleague. The only allegation was that he accompanied the petitioner, to the residence of SI Jagdish Singh without complaint of any

overt act attributed to his colleague. Similarly petitioner was alleged to have left his duty and to have been found consuming liquor at his residence.

There was no allegation of unauthorized absence from duty against petitioner's colleague. The only allegation against the petitioner colleague was

that he was present at the residence of the petitioner and found consuming liquor at the time SI O.S. George went to petitioner's residence. The

nature and gravity of the allegations against the petitioner, therefore was different from the allegations against his colleague. Thirdly, petitioner's

colleague was transferred from 102 Bn. CRPF by the time Departmental Enquiry was initiated against the petitioner. In the said background,

failure to take disciplinary action against petitioner and his colleague in common proceedings does not vitiate Departmental Enquiry or its final

outcome against the petitioner.

The argument that the punishment imposed on the petitioner is disproportionate to the misconduct alleged and, therefore inference is

warranted, does not sound convincing. There can be no disagreement with learned counsel for the petitioner that the Court would be acting within

its power of judicial review, while examining the punishment imposed on the petitioner to find out whether it is disproportionate to the misconduct

alleged against him. However, courts are loath in interfering with the punishment imposed in disciplinary proceedings, more so in case of Armed

and Para Military Forces unless it shocks the conscience. It would be advantageous to reproduce hereunder the observations made by the Apex

Court in The Commandant, 22 Battalion, CRPF Srinagar, C/o 56/APO and Others Vs. Surinder Kumar,

The Division Bench of the High Court, in our considered opinion, should have looked into the acts of indiscipline proved against the respondent

for which he has been sentenced to imprisonment and then decided whether the dismissal of the respondent from service was disproportionate to

the gravity of acts of discipline. As we have already held, the acts of indiscipline for which the respondent had been sentenced for imprisonment

were serious and grave for a disciplined force. Therefore, the competent authority was right in imposing the punishment of dismissal from service.

Moreover, it appears from the impugned order that the High Court has in exercise of power of judicial review interfered with the punishment of

dismissal on the ground that it was disproportionate. In Union of India and Others Vs. R.K. Sharma, this Court has taken the view that the

punishment should not be merely disproportionate but should be strikingly disproportionate to warrant interference by the High Court under Article

226 of the Constitution and it was only in an extreme case, where on the face of it there is perversity or irrationality that there can be judicial review

under Articles 226 or 227 or under Article 32 of the Constitution. Since this is not one of those cases where the punishment of dismissal was

strikingly disproportionate or where on the face of it there was perversity or irrationality, the Division Bench of the High Court ought not to have

interfered with the order of dismissal from service.

Having regard to the indiscipline and misconduct established against the petitioner, the punishment awarded cannot be held to be disproportionate

and, therefore, warranting interference in exercise of writ jurisdiction.

For the reasons discussed, the petition is meritless and liable to be dismissed. Dismissed. Record be returned.