S. Ball Reddy vs Union Of India & Ors

Through the medium of the instant petition, the petitioner is seeking a  'Writ of Certiorari' for quashing orders bearing Nos. 24th of November, 2015; 3rd of December, 2015; 17th of December, 2015; 1st of January, 2016; 10th of February, 2016; 3rd of April, 2016; 15th of May, 2016; 18th of September, 2016; and 17th of August, 2017. A 'Writ of Mandamus' is also sought by the petitioner in the name of the respondents commanding them to take back the petitioner in service and pay him all the consequential benefits from the date of his compulsory retirement till his reinstatement.

The case of the petitioner, as stated by the petitioner in his petition, is that he came to be appointed as a Constable/ GD in the respondent Central Reserve Police Force. It is stated that ever since the appointment of the petitioner in the respondent Department, he discharged his duties with all dedication and sincerity, but, unfortunately, his mother fell ill and, accordingly, the petitioner moved an application before the competent authority seeking grant of leave in order to attend to his ailing mother. The respondents levelled false allegations against the petitioner that he misbehaved and assaulted one of his colleagues, whereafter, a judicial trial was conducted by Second-in-Command-cum-Judicial Magistrate 1st Class 23 BN CRPF, without observing the relevant provisions of Code of Criminal Procedure as is envisaged in terms of Rule 36 of the CRPF Rules of 1955. The petitioner, on the basis of the said judicial trial, was convicted and, thereafter, the Commandant 23 BN CRPF ordered dismissal of the petitioner from service. Aggrieved thereby, the petitioner filed a revision petition before the respondent No.4, as a result whereof, the petitioner was reinstated in service and the punishment of dismissal was modified and petitioner's pay reduced by two stages for two years. Meanwhile, the respondent No.3 reviewed the proceedings and ordered departmental proceedings against the petitioner on the same set of charges which were the subject matter of the judicial trial. Even though, the respondent No.3 had ordered the Commandant 74 BN to conduct the departmental enquiry against the petitioner from the first stage, however, the said Commandant 74 BN, instead of conducting enquiry himself, delegated the powers to Commandant 96 BN Janglat Mandi, Anantnag, who, in turn, delegated his powers to his subordinate, i.e., Deputy Commandant who conducted the enquiry into the matter. In pursuance of the said enquiry proceedings, the petitioner was compulsorily retired without giving him reasonable opportunity to defend himself in the enquiry and without giving him an opportunity to make a representation against the proposed punishment. The petitioner filed an appeal against the order of Commandant 74 BN before the Deputy Inspector General, which appeal, too, was rejected, constraining the petitioner to file the instant petition.

Mr Makroo, the learned counsel for the petitioner, submits that the respondent No.3 has no power to initiate departmental proceedings in terms of Rule 29 (d) of the CRPF Rules, 1955, once the petitioner was tried and convicted by the Judicial Magistrate and the said sentence of the Judicial Magistrate was modified by the respondent No.4 on revision. It is argued that the respondent No.3 could have enhanced, modified, annulled or confirmed the said sentence or ordered further investigation, but, the respondent No.3, in no case, could have ordered the departmental enquiry against the petitioner on the same set of facts/ charges as were held in judicial trial, which judicial trial, too, was vitiated as the Second-in-Command-cum-Judicial Magistrate 1st Class, 23 BN CRPF, has failed to observe the provisions of the Code of Criminal Procedure while conducting the trial for offences as were levelled against the petitioner by the Inspector/ GD. The learned counsel, in the said backdrop, contends that the respondents have not only violated the procedure prescribed for conduct of departmental inquiries with impunity, but have also held the principles of natural justice in breach while issuing the severe punishment of compulsorily retiring the petitioner from service. It is stated that proper opportunity of hearing, as prescribed under the relevant rules/ law, was not given to the petitioner before inflicting the major punishment of compulsory retirement upon the petitioner and that the representations/replies filed by the petitioner have not been considered by the respondents in the said process. The learned counsel has proceeded to state that in view of the facts and circumstances of the case, the punishment imposed upon the petitioner is not only grossly disproportionate, but also extremely harsh as well and cannot withstand the test of judicial scrutiny.

Objections stands filed on behalf of the respondents resisting and controverting the averments made by the petitioner in his petition. It is stated that the petitioner brutally assaulted one CT/ Bug, namely, Pawan Kumar Yadav, with iron walking stick thereby causing head injury upon the said Constable without any justification and sufficient cause, for which a judicial trial was ordered. The Court of Judicial Magistrate, as stated, convicted the petitioner on 17th of December, 2015 and awarded five days' imprisonment w.e.f. 17th till 21st of December, 2015. The petitioner accepted the conviction and underwent the conviction. The petitioner nowhere challenged his conviction and for all practical purposes he is a convicted person, as such, as per Article 311 of the Constitution of India, he is liable to be dismissed from service. Accordingly, the disciplinary authority did not consider the petitioner a fit person to be retained in service as the CRPF is a disciplined force. And, therefore, by virtue of powers vested under Section 12 (1) of the CRPF Act read with Rule 27 (CC) (I) of the CRPF Rules 1955, the disciplinary authority, i.e., the Commandant imposed the penalty of dismissal from service upon the petitioner w.e.f. 1st of January, 2016 after following due procedure. The suspension period from 24th of November, 2015 to 1st of January, 2016 was regularized as 'Dies-non' and the petitioner was declared to be entitled to pay and allowances or any service benefits for this duration. Aggrieved thereby, the petitioner preferred an appeal whereby he challenged the dismissal from service before the DIG, Range Office, CRPF Chandigarh, which appeal, however, was rejected. Thereafter, the petitioner preferred a revision petition dated 26th of February, 2016 to IGP NW Sector, CRPF pleading for reinstatement in service. The revisional authority, after taking a lenient view and considering the petitioner's past record, reinstated the petitioner in service with immediate effect by modifying the punishment of dismissal from service awarded to him to reduction of pay by two stages in the time scale of pay for a period of two years w.e.f. 1st day of July, 2016 with cumulative effect, the intervening period 2nd June, 2016, i.e., following the date of dismissal to the reinstatement was treated as 'Dies-non' for all purposes, except for the purpose of pension under Rule 28 of CCS Pension Rules, 1972. Upon receipt of the order of the revisional authority, the office of Special DG, JK Zone, CRPF, called all the records for reviewing the case under the provisions of Rule 29-D of CRPF Rules 1955 read with GSR-95 (E) dated 13th of February, 2012. After review, the office of the Special DG, JK Zone, CRPF, while observing that the order passed by the revisional authority is in contravention to Section 12(1) of the CRPF Act, 1949, ordered for holding a departmental inquiry in the matter wherein vide scope of reasonable opportunity of being heard is available. Accordingly, a departmental inquiry was conducted against the petitioner and memorandum of charges were framed against the petitioner on 16th of December, 2016 under Section 11 (1) of the CRPF Act read with Rule 27 of the CRPF Rules. The disciplinary authority after taking into consideration the material available ordered compulsory retirement of the petitioner from service. Aggrieved thereby, the petitioner filed an appeal before the appellate authority, which appeal, on consideration, was dismissed on merits. The respondents have urged that the petitioner was put to face the departmental enquiry in which he could not prove his innocence in any manner and, thus, the petition of the petitioner deserves to be dismissed. Furthermore, Mr Nazir Ahmad Bhat, the learned Central Government Counsel, in order to buttress the case of the respondents, has relied upon and referred to a catena of judgments passed by various Courts of the country, including Hon'ble the Supreme Court.

Heard the learned counsel for the parties, perused the record and considered the matter.

Rule 27 (c) of the Central Reserve Police Force Rules, 1955 provides as under:

"(c) The procedure for conducting a departmental enquiry shall be as follows: -

(1) The substance of the accusation shall be reduced to the form of a written charge, which should be as precise as possible. The charge shall be read out to the accused and a copy of it given to him at least 48 hrs before the commencement of the enquiry.

(2) At the commencement of the enquiry the accused shall be asked to enter a plea of Guilty or Not Guilty after which evidence necessary to establish the charge shall be let in. The evidence shall be material to the charge and may either be oral or documentary; if oral;

(i) it shall be direct;

(ii) it shall be recorded by the Officer conducting the enquiry himself in the presence of the accused;

(iii) the accused shall be allowed to cross examine the witnesses.

(3) When documents are relied upon in support of the charge, they shall be put in evidence as exhibits and the accused shall, before he is called upon to make his defence, be allowed to inspect such exhibits.

(4) The accused shall then be examined and his statement recorded by the officer conducting the enquiry. If the accused has pleaded guilty and does not challenge the evidence on record, the proceedings shall be closed for orders. If he pleads "Not guilty", he shall be required to file a written statement, and a list of such witnesses as he may wish to cite in his defence within such period, which shall in any case be not less than a fortnight, as the officer conducting enquiry may deem reasonable in the circumstances of the case. If he declines to file a written statement, he shall again be examined by the officer conducting the enquiry on the expiry of the period allowed.

(5) If the accused refuses to cite any witnesses or to produce any evidence in his defence, the proceedings shall be closed for orders. If he produces any evidence the officer conducting the enquiry shall proceed to record the evidence. If the officer conducting the enquiry considers that the evidence of any witness or any document which the accused wants to produce in his defence is not material to the issues involved in the case, he may refuse to call such witness or to allow such document to be produced in evidence, but in all such cases he must briefly record his reasons for considering the evidence inadmissible. When all relevant evidence has been brought on record, the proceedings shall be closed for orders.

(6) If the Commandant has himself held the enquiry, he shall record his findings and pass orders where he has power to do so. If the enquiry has been held by any officer other than the Commandant, the officer conducting the enquiry shall forward his report together with the proceedings, to the Commandant, who shall record his findings and pass orders, where he has power to do so."

Testing the instant case on the touchstone of the above rule position, it appears that the respondents have not followed the procedure in vogue and have, instead, thrown out the petitioner with a premeditated design to divest him of his right to participate in the enquiry proceedings. An opportunity of being heard is the 'sine-qua-non' of every enquiry and in case of any major punishment, compulsorily retiring the petitioner in the instant case, reasons justifying so have to be spelt out. It is a basic requirement of the principles of natural justice that an employee be given a reasonable opportunity of being heard in any proceedings which may culminate in a punishment being imposed on the said employee. Furthermore, when a departmental enquiry is conducted against the Government servant, it cannot be treated as a casual exercise. The enquiry proceedings also cannot be conducted with a closed mind. The enquiry officer has to be wholly unbiased. The principles of natural justice are required to be observed to ensure not only that justice is done, but is manifestly seen to be done. The object of rules of natural justice is to ensure that a Government servant is treated fairly in proceedings which may culminate in imposition of punishment including dismissal/ removal/ compulsory retirement from service. However, the principles of natural justice appear to have been violated with impunity in this case. The defense of the petitioner has been shut by deception and the conduct of a full dressed enquiry has been given a complete go by.

Justice is not only law and its administration, but is, in most cases, above law and is done to safeguard an individual from whatever he/she seeks protection. Our country generally and our State in particular aims at the goal of achieving a welfare State where everyone is/ has to be, as far as possible, looked after. The principles of natural justice are imbibed from the Constitution itself. These are of paramount importance and nobody can be condemned unheard.

In 'AIR 2005 SC 2090'; Canara Bank v. V. K. Awasthy, the Hon'ble Apex Court, while dealing with the extent and scope of the principles of natural justice, held as under:

"10. The adherence to principles of natural justice as recognized by all civilized States is of supreme importance when a quasi-judicial body embarks on determining disputes between the parties, or any administrative action involving civil consequences is in issue. These principles are well settled. The first and foremost principle is what commonly known as audi alter am par tem rule. It says that no one should be condemned unheard. Notice is the first limb of this principle. It must be precise and unambiguous. It should appraise the party determinatively the case he has to meet. Time given for the purpose should be adequate so as to enable him to make his representation. In the absence of a notice of the kind and such reasonable opportunity, the order passed becomes wholly vitiated. Thus, it is but essential that a party should be put on notice of the case before any adverse order is passed against him. This is one of the most important principles of natural justice. It is after all an approved rule of fair play. The concept has gained significance and shades with time. When the historic document was made at Runnymede in 1215, the first statutory recognition of this principle found its way into the "Magna Carta". The classic exposition of Sir Edward Coke of natural justice requires to "vacate interrogate and adjudicate". In the celebrated case of Cooper v. Wandsworth Board of Works, [1963] 413 ER 414, the principle was thus stated:

"Even God did not pass a sentence upon Adam, before he was called upon to make his defence. "Adam", says God, "where art thou has thou not eaten of the tree whereof I commanded thee that though should not eat".

Since then the principle has been chiseled, honed and refined, enriching its content. Judicial treatment has added light and luminosity to the concept, like polishing of a diamond."

In view of the aforesaid enunciation of law, the condition precedent for initiating a disciplinary action against a public servant is not only the conduct of an enquiry, but it should also appear that due adherence and strict compliance to the manner and procedure as laid down under Rules has been followed in its letter and spirit and any deviation thereof will render the order imposing penalty bad and liable to be set aside.

In 'Ghulam Ahmad & Ors. v. Sr. Superintendent of Police', reported in '1988 JKLR 1367', although a departmental enquiry was conducted into the alleged callousness in duty on the part of the petitioners, who were Police Constables, yet the Court came to the conclusion that the provisions of rules had not been complied with while conducting the enquiry and, therefore, the Court opined that the impugned order imposing penalty of dismissal upon the petitioners was unconstitutional, illegal and bad in law.

The pleadings placed before this Court does not provide even an inkling of how and in what manner the enquiry was conducted into the matter of the negligence and carelessness of the petitioner. Not even a murmur has been made to state that any evidence was recorded in the case. The procedure laid down for conducting the enquiry as laid down in the rules cited above does not appear to have been followed at any stage, as a consequence of which, the order of compulsorily retiring the petitioner from service cannot survive and sustain in the eyes of law.

The authorities in the respondent Department appear to have paid almost no attention to the mandate of the Central Reserve Police Force Rules, 1955, more particularly rule 27 (c) thereof, while awarding punishment of compulsorily retiring the petitioner from service. The respondents have not only failed to notice that the punishment awarded to the petitioner is disproportionate to the lapse attributed to him, but they have also not realized that the misconduct alleged against the petitioner was not of the kind as envisaged by Rule 27 of the Rules of 1955.

The judgments referred to and relied upon by Mr Nazir Ahmad Bhat, the learned Central Government Counsel, being distinguishable, are not applicable to the facts and circumstances of the case on hand.

Viewed in the above context, the penalty imposed upon the petitioner, being contrary to the law and reason, cannot be upheld, as a corollary to which, the petition of the petitioner is allowed in the following terms:

I. The impugned orders bearing Nos. 24th of November, 2015; 3rd of December, 2015; 17th of December, 2015; 1st of January, 2016; 10th of February, 2016; 3rd of April, 2016; 15th of May, 2016; 18th of September, 2016; and 17th of August, 2017, are quashed;

II. The respondents are directed to allow the petitioner to resume his duty forthwith; and

III. The quashment of the impugned orders, as above, shall not entitle the petitioner to claim any salary/ remuneration/wages during the period he was out of service. The respondents shall deal with this issue in accordance with the rules governing the field.

Writ petition disposed of as above, alongwith all connected MP(s).

Bench Secretary of this Court to return the records to Mr Nazir Ahmad Bhat, the learned Central Government Counsel, with utmost dispatch, of course, against proper receipt.