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Judgment
P. Jyothimani, J.—The writ petition is directed against the order of the second Respondent, the Deputy Inspector General, Central Reserve
Police Force, Chennai dated 19.03.2003,confirming the order of the first Respondent dated 24.09.202, holding that the charge against the
Petitioner has been proved by confirming the order of dismissal, and rejecting the appeal filed by the Petitioner.
The Petitioner jointed the Central Reserve Police Force as a Constable in 1987 and he was posted after completion of the training to 42 Bn.
When he was serving in Delhi, he got a telegram on 06.09.2001, to the effect that his wife was serious and had to undergo surgery immediately. It
is stated that, enclosing the said telegram, the Petitioner applied for leave with 42 Bn. Commandant, Delhi and there was no reply from the
concerned officer till 23.09.2001.
(a) In the meantime, there were two more telegrams regarding his wife''s health condition, and when the Petitioner approached the CHM for leave,
he was informed that his leave was not sanctioned. It was thereafter, casual leave was sanctioned to the Petitioner between24.09.2001 and
14.10.2001 and he left Delhi on 24.09.2001and reached his native place on 27.09.2001.
(b) It is stated that on expiry of the leave period on 14.10.2001, the Petitioner sent a telegram for extension of leave to Delhi on the ground that he
was not well. It was on 12.12.2001, the Petitioner reported for duty at Delhi, however, the 58 days for which the leave application was sent was
treated as leave without pay and punishment for 15 days line guard was also awarded.
(c) The articles of charges were issued to the Petitioner on 31.01.2002, containing two charges, viz., the Petitioner has committed misconduct u/s
11(1) of RPF Act, and on 23.09.2001, and he misbehaved and used filthy language to his CHM and Coy. Commander and created nuisance in
the campus during night hours and disobeyed the orders of his superiors; and while functioning as Constable on23.09.2001 he committed an act of
misbehavior and as a Member of the Armed Force individual he consumed liquor and tried to damage the Government property/stores, pulled out
the electric wirings, resulting in total darkness in the campus and assaulted the Coy. Dhobi, which is prejudicial to the good order and discipline of
the Force.
(d) Thereafter, the Petitioner was sent toTirupura with effect from 31.05.2002 and afterwards toG. Coy. Moved to Shivpuri in June, 2002 and
posted atShivpuri up to September, 2002. In the meantime, the Petitioner was sent to Jammu and Kashmir for election duty. There was an enquiry
conducted and according to the Petitioner, the enquiry was not conducted properly and no opportunity was given to him to defend his case and the
entire enquiry was conducted in Hindi and all the statements were recorded in Hindi, which language the Petitioner has not known and the contents
of the said statements were not explained in the language known to the Petitioner.
(e) Therefore, the Petitioner submitted are presentation dated 20.09.2002 to the Enquiry Officer with the help of his colleagues and without
considering the same, the Commandant 42 Bn. Agarthala, dismissed the Petitioner from service on 24.09.2002. It was against the said order of
dismissal, the Petitioner preferred an appeal before the second Respondent, the Deputy Inspector General, which was rejected against which the
present writ petitions filed by the Petitioner on the ground that the incident stated to have happened on 23.09.2001 is a concocted story; that the
charges are vague and there is nothing about nuisance, however, the enquiry officer has recorded the statement of witness deposed in the
preliminary enquiry and submitted a report against the Petitioner and there is no evidence recorded during the enquiry proceedings and therefore,
the enquiry has not been conducted in the manner known to law; that no procedure has been followed to find out as to whether the Petitioner was
under the influence of liquor by sending him to the medical check-up; that the proceedings have been conducted in the language not known to the
Petitioner and therefore, there is a violation of principles of natural justice; and that because of the receipt of the telegraphic information about the
seriousness of his wife, the Petitioner had to urgently leave the place and in spite of it the leave was not granted and therefore, awarding of
punishment in such circumstances is excessive.
In the counter affidavit filed by the Respondents, while denying the various allegations made by the Petitioner, it is stated that the Petitioner was
found in an intoxicated condition on 23.09.201 and the Head Constable H.S. Khan was directed to take the Petitioner to the Unit Hospital for
conducting medical examination to find out as to whether the Petitioner has consumed liquor and the Petitioner has refused to go to the hospital and
the Petitioner misbehaved with the Officer Commandant and it was in those circumstances, the Commandant was to order preliminary enquiry and
Shri Om Pal Singh, Deputy Commandant was directed to conduct the preliminary enquiry, wherein it was found that the Petitioner guilty and the
Enquiry Officer has recommended the initiation of strict disciplinary action and thereafter, departmental enquiry was ordered and a charge sheet
was issued on 30.01.2002,giving 10 days time to submit representation if any or for personal audience whether required.
(a) Shri M.S. Dhillon, Deputy Commandant was appointed as Enquiry Officer and he submitted a report on24.04.2002, copy of which was
supplied to the Petitioner on29.05.2002, giving 15 days time to submit his representation if any. In the mean time, the Petitioner was posted to a
new place and sent to Shivpuri. It was in those circumstances; the first Respondent considered the Enquiry Officer''s report and came to a
conclusion that the charges against the Petitioner have been proved beyond any shadow of doubt. However, a show cause notice was issued to
the Petitioner, as to why he should not be removed from service.
(b) The Petitioner submitted his reply without any new facts, and therefore, the Petitioner came to be dismissed from service on 24.09.2002. The
second Respondent, the appellate authority has also rejected the appeal filed by the Petitioner, since there was no merit. It is stated that the
Petitioner has also filed a revision before the Inspector General of Police, Southern Sector, Hyderabad, which is pending and before arriving at
decision therein, the Petitioner has filed the present writ petition, which is not maintainable.
(c) It is stated that on 23.09.2001, under the influence of liquor, the Petitioner misbehaved and throwaway the bicycle, which was a Government
property apart from throwing the pressed clothes kept in the Dhobi''s room and quarreled with him. On 24.09.2001, a complaint was received
about his misbehavior and in the preliminary enquiry, the fact as to the said misbehavior was proved and the Petitioner refused to accept the
punishment awarded to him and in the meantime he went on leave on 24.09.2001, and since in the preliminary enquiry the Petitioner had admitted
that he consumed liquor on 23.09.201, the charges were framed.
(d) It is stated that the Petitioner has also not proved the reason for his over stay. It is stated that the enquiry was conducted by the Enquiry Officer
ShriM.S. Dhillon between 18.02.2002 and 24.02.202. It is also stated that at the initial stage of the enquiry, i.e., on 22.02.2002, while recording
the first statement, the Petitioner was asked as to whether the proceedings may be recorded in Hindi and it is based on that, the proceedings were
recorded in Hindi and the witnesses were examined in the presence of the Petitioner and ample opportunity was given to him and the Enquiry
Officer''s report was also submitted.
(e) The Petitioner failed to make his representation within the time stipulated in the enquiry officer''s report, and in the meantime he was transferred.
His absence for 58 days was without prior permission and his conduct is unbecoming of the disciplinary force and that the Enquiry Officer asked
the Petitioner about his desire as to the language in which the proceedings should be continued, and he opted for Hindi and thereafter, the
proceedings were conducted in Hindi and in the course of disciplinary proceedings he was present and he also submitted his representation in
Hindi and therefore, it is not correct to state that he was not aware of the language and the principles of natural justice have not been complied
with.
(f) It is also stated that the Petitioner had never resisted for conducting the proceedings in Hindi. It is further stated that even on 24.09.2001, when
he was produced before the Coy. Commandant in his Orderly Room, he was arrogant and refused to accept the punishment and that resulted in
initiation of disciplinary proceedings and therefore, according to the Respondents in the counter affidavit, the commissioning of misconduct has
been proved beyond reasonable doubt and therefore, it is not open to the Petitioner to raise the issue now about the correctness of the
proceedings.
Mr. Ibrahim Ali, learned Counsel appearing for the Petitioner would submit that even though it is true that the representation submitted by the
Petitioner is found written in Hindi, it was written by some other person and the Petitioner did not sign in Hindi and he signed in English and he was
not aware of the contents of there presentation and with the help of friends and colleagues only he submitted the representation and that does not
mean that the Petitioner is aware of the language and therefore, according to the learned Counsel, the conducting of the proceedings in a language
which is not known to the Petitioner is in violation of the principles of natural justice. It is his submission that if really the Petitioner was in the
influence of liquor, the proper procedure would be that the Petitioner must have been sent for medical examination and it is also his submission that
the punishment considering the circumstances is disproportionate.
On the other hand, it is the submission of Mr. GopiKrishnan, learned Counsel appearing for the Respondents that the Petitioner himself has
given his reply in Hindi asset is seen from the records and therefore, he cannot complain about the conducting of the proceedings in Hindi at all. As
far as the allegation that the punishment is disproportionate is concerned, he has referred to Rule 27of the CRPF Rules, to substantiate his
contention that the misconduct is serious enough and therefore, there cannot beany complaint that the punishment is disproportionate. Itis also his
submission that during the preliminary enquiry, the Petitioner has admitted that he was under the influence of liquor. The learned Counsel has also
produced the files relating to the disciplinary proceedings.
I have heard the learned Counsel for the Petitioners well as the Respondents and gone through file submitted by the learned Counsel.
On the reference to the file at Page 57, which relates to the departmental enquiry, it is seen that the explanation stated to have been given by the
Petitioner is found written wholly in Hindi and admittedly, it is not in the handwriting of the Petitioner. It is also seen that the Petitioner has signed
beneath the said representation in English. The English translation of the said representation of the Petitioner, as given by the learned Counsel for
the Petitioner is as follows:
To
Hon''ble Adjutant
42 Bn CRPF
Andheria Mod, New Delhi 30.
Subject: Reg Defence Departmental Enquiry
Sir,
Humble submission is that No. 871162348 CT/GDS Dhanasekharan is serving in your A Company, have an important certificate in Defense. I had
applied for leave vide my application dated6.9.2001 due to my wife''s treatment. I am in receipt of telegram and letter from my home; hence I
came to know that my wife is ''seriously ill''. However I was not granted leave. Hence was always in tension and my mental balance was also not
good. I was not granted leave till23.9.2001. In the meanwhile, I requested for leave several times, but leave was not granted. I have certificate
regarding treatment of my wife and telegram in my defense.
Hence sir, request that I will not repeat such mistake in future and I may be given chance To service
Dated: 10.4.2002
Yours Obediently,
Sd/-xxxxx
No. 871162348CT/GD
S. Dhanasekharan
A/42 Bn CRPF,
Andheria Mod,
New Delhi.
The contents of the said letter by way of representation dated 10.04.2002, show that the Petitioner would not repeat his mistake in future, but
he has stated that because of the information received about the seriousness of his wife, he was in tension and his mental balance was not in a
stable condition. The contents of the letter show that the Petitioner has himself admitted that he was intoxicated. But simply because the Petitioner
has signed the said representation, it does not mean that the Petitioner is well-versed in Hindi. It is also not the case of the Respondents that the
Petitioner is well versed in Hindi language. In such a circumstance, the basic question to be decided in this case is as to whether the conduct of the
first Respondent in not conducting the disciplinary proceedings in the language known to the Petitioner that is, either English or any other language
or in not translating the disciplinary proceedings conducted in Hindi, in the language known to the Petitioner, is proper or not?
At this juncture, it is relevant to note that it has been held that the right conferred under Article 311(2) of the Constitution of India, which is as
follows:
Article 311. Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State.-
(1) xxx
(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an enquiry in which he has-been informed of the
charges against him and given a reasonable opportunity of being heard in respect of those charges.
Provided that where it is proposed after such inquiry, to impose upon him any such penalty,such penalty may be imposed on the basis of the
evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty
proposed:
Provided further that this clause shall not apply -
(a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or
(b) where the authority empowered to dismiss or remove a person or reduce him in rank is satisfied that for some reason, to be recorded by the
authority in writing, it is not reasonably practicable to hold such inquiry; or
(c) where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State it is not expedient to hold
such inquiry.
is equivalent to the right conferred under Article 22(5) of the Constitution of India, which is as follows:
Article 22. Protction against arrest and detention in certain cases.-
(1) to (4) XXXX
(5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order
shall, as soon as may be, communicate to such person the grounds on which the order has-been made and shall afford him the earliest opportunity
of making a representation against the order.
Therefore, the question of affording reasonable opportunity in disciplinary proceedings includes that the proceedings should be conducted in a
language known to the delinquent. The order of dismissal is a deprivation of right of a person to live as guaranteed under Article 21 of the
Constitution of India, since it is a concept connected with liberty. When dismissal order is passed, which deprives the right of livelihood of a
delinquent; it is, but necessary that the disciplinary proceedings must be conducted not only in the manner known to law, but also in the language
known to the delinquent. Conducting of disciplinary proceedings in the language known to the delinquent forms part of the principles of natural
justice, viz., the principle of affording proper opportunity in disciplinary proceedings.
By referring to the judgment of the Supreme Court in Kubic Darusz Vs. Union of India (UOI) and Others, , wherein it was held that in the
absence of the detaining authority in serving the grounds of detention in the language known to the detenu, who was a gujarathi, but giving the
grounds of detention in English is not within the term ''communicate'', K. Chandru,J. under similar circumstances, while dealing with the disciplinary
proceedings in the Central Reserve Police Force, held as follows:
In this context, it is clear that even though the ground that the Petitioner was unfamiliar of Hindi language was raised in the appeal grounds, neither
in the said assertion was denied by the Respondents. Hence, it can be safely concluded that the Petitioner was not familiar with Hindi.
Ultimately, the learned Judge has allowed the writ petition by setting aside the disciplinary proceedings, in the following words:
Under the above circumstances, the enquiry conducted by the Respondents will have tobe necessarily set aside and accordingly, set-aside.
The writ petition will stand allowed. The impugned order of dismissal dated 18.12.1997as confirmed by order dated 27.3.1998 will stand set
aside. The Petitioner is entitled to have all the consequential benefits. If the Respondents want to conduct an enquiry afresh, that will have to be
done only in the language known to the Petitioner and he must be given the assistance of an agent as provided in the Rules to defend himself in the
enquiry. No costs.
In the factual matrix, by reference to the files submitted by the Respondents, it is clear that there is no explanation forthcoming from the
Respondents to show as to whether the proceedings were translated to the Petitioner in the language known to him, or not. That apart, even in
respect of the charge relating to the consumption of liquor by the Petitioner, there is no record to show that the Respondents have taken pertinent
efforts for the purpose of proving that the Petitioner was intoxicated. It is also seen that the decision has been predominantly arrived abased on the
preliminary enquiry and not on the basis of the proceedings conducted during the disciplinary proceedings.
Even in respect of the enquiry officer''s report, which is stated to have been served on the Petitioner, there was no occasion for the Petitioner
to submit are presentation for the reason that in the meantime he came to be transferred and posted at Shivpuri as admitted by the parties. In such
circumstances, I am of the considered view that on the factual matrix of the case, especially relating to the language in which the disciplinary
proceedings was conducted, there is no proper compliance of the principles of natural justice and therefore, the impugned orders are liable to be
set aside, however, with liberty to the first Respondent to conduct fresh enquiry in the language known to the Petitioner, if so advised, failing which
the Petitioner will be entitled for all the benefits under the law.
Accordingly, the impugned orders are set aside and the writ petition stands allowed, however, with liberty to the first Respondent to conduct fresh
enquiry in conformity with the principles of natural justice in the language known to the Petitioner, if so advised. No costs.