Satish Tyagi vs Union Of India And Ors

Rajnesh Oswal, J

The petitioner, who was serving as a Constable in the Central Reserve Police Force, has been ordered to be removed from the service by the respondent No.5 by virtue of order bearing No. PVIII.13/2008-91-EC-2 dated 04.03.2009. The petitioner preferred an appeal against the order dated 04.03.2009 but that was dismissed by the respondent No.4 vide order bearing No.R.XIII.6/09-Estt.-III dated 05.09.2009. The petitioner filed revision against both the orders dated 04.03.2009 and 05.09.2009 but that too was dismissed by the respondent No.3 vide order bearing No. R.XIII-02/2010-Adm.7 dated 10.04.2010.

The petitioner through the medium of this writ petition has impugned all the above-mentioned orders and has also prayed for directing the respondents to reinstate the petitioner into the service along with the all the consequential service benefits with retrospective effect, on the following grounds:

a. That the orders impugned are the outcome of vitiated enquiry proceedings wherein no fair trial or even an adequate opportunity of being heard was afforded to the petitioner by the respondents, as the attitude of the respondents was very hostile against the petitioner right from the very beginning.

b. That the petitioner was never provided with the Defence Assistant during the entire enquiry proceedings conducted by the respondents against the petitioner and even all the evidence was led by the respondents against the petitioner at his back. The petitioner was made to sign certain documents coercively without making him aware of the same.

c. That the respondent No. 5 has not appreciated the little bit of evidence, that was led by the respondents during the course of enquiry, in its right perspective and without reference to the evidence has straightaway drawn his inference by simply reciting the charge levelled against the petitioner.

d. That the entire proceedings were conducted against the petitioner in complete derogation to and in violation of the mandate of CRPF Act and Rules framed thereunder.

e. That the respondent No. 4 without appreciating the grounds urged in the appeal preferred by the petitioner dismissed the same by passing a non-speaking order and the respondent No. 4 has not given any finding at all on the grounds of appeal filed by the petitioner.

f. That no actual medical examination of the petitioner was ever conducted by the respondents at the time of alleged incident to prove that he had consumed liquor at the relevant point of time and the petitioner was never confronted with the so-called examination report.

g. That the punishment of removal from services on the basis of allegations and alleged charges levelled against the petitioner is grossly disproportionate, especially taking into consideration the previous service record of the petitioner.

The respondents have filed the response wherein it is submitted that the petitioner has no ground to challenge the order impugned in the petition in view of the admitted fact that the petition filed by the petitioner on the same cause of action was dismissed by the High Court of Judicature of Allahabad as well as Central Administrative Tribunal, circuit bench Allahabad. Besides narrating the factual aspects of the case, those will be taken note of at a later stage, it is stated that departmental enquiry was initiated against the petitioner vide memorandum No. P.VIII.13/2008-91-EC-2 dated 13.10.2008 on the basis of three articles of charges mentioned in the charge-sheet. The enquiry has been held in accordance with the law/rules governing the petitioner. The petitioner was given full opportunity to defend himself and in the enquiry, the charges against the petitioner were proved beyond any doubt and on the basis of enquiry, the petitioner was removed from service with effect from 04.03.2009 (AN) vide order bearing No. PVIII.13/2008-91-EC-2 dated 04.03.2009. The appeal and the revision filed by the petitioner were considered and after thorough perusal of the same and the relevant record, were rejected as they were without any merit. It is further submitted that the representation filed by the petitioner against the order dated 04.03.2009, 05.09.2009 and 10.04.2010 has been considered and rejected being devoid of any merit vide Directorate General order dated 20.10.2010.

The petitioner also filed a supplementary affidavit, stating therein that the petitions filed by the petitioner before the Hon’ble High Court of Judicature at Allahabad as well as the O.A filed by the petitioner before Central Administrative Tribunal, Circuit Bench Allahabad, were dismissed for lack of jurisdiction and there was no decision on merits in respect of the claim of the petitioner. The petitioner denied his involvement in the alleged incident of 03.09.2008.

Mr. Vikas Mangotra, learned Counsel for the petitioner submitted that the petitioner was not afforded due opportunity to defend the departmental enquiry initiated by the respondents and the provisions contained in CRPF Rules 1955 have been violated with impunity while conducting the enquiry and punishing the petitioner. He further submitted that the punishment imposed upon the petitioner is dis-proportionate to the alleged act of the petitioner, in which the petitioner was never involved. He further argued that the respondent No.4 and the respondent No.3 have not considered the appeal and the revision petition filed by the petitioner in accordance with law, as no reason has been assigned by the concerned authorities for rejecting the appeal and the revision filed by the petitioner.

Mr. Rohan Nanda, learned C.G.S.C submitted that the procedure prescribed by the Rules of 1955, has been meticulously followed while conducting enquiry and the charges against the petitioner were fully proved during the course of the enquiry and taking into consideration the evidence brought on record during the course of enquiry, the petitioner was ordered to be removed from service. The appeal and revision filed by the petitioner were considered by the concerned authorities in accordance with law and both were found to be without merits and as such the same were dismissed.

Heard and perused the record including record of enquiry.

Before examining the issues raised by the petitioner, this court deems it proper to examine the scope of judicial review by the constitutional courts in the matters involving disciplinary proceedings against the delinquent employee. In this context the observations made by the Hon’ble Apex Court in “SBI v. Ajai Kumar Srivastava” (2021) 2 SCC 612 are very relevant and the same are extracted as under:

“24. It is thus settled that the power of judicial review, of the constitutional courts, is an evaluation of the decision-making process and not the merits of the decision itself. It is to ensure fairness in treatment and not to ensure fairness of conclusion. The court/tribunal may interfere in the proceedings held against the delinquent if it is, in any manner, inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached or where the conclusions upon consideration of the evidence reached by the disciplinary authority are perverse or suffer from patent error on the face of record or based on no evidence at all, a writ of certiorari could be issued. To sum up, the scope of judicial review cannot be extended to the examination of correctness or reasonableness of a decision of authority as a matter of fact.

When the disciplinary enquiry is conducted for the alleged misconduct against the public servant, the court is to examine and determine:

(i) whether the enquiry was held by the competent authority; (ii) whether rules of natural justice are complied with;

(iii) whether the findings or conclusions are based on some evidence and authority has power and jurisdiction to reach finding of fact or conclusion.”

(emphasis added)

Taking above principles in mind, now this court would examine the issues raised by the petitioner. Vide memorandum dated 13.10.2008, the statement of the imputation, the statement of the article of charges, the list of the documents and the list of the witnesses were provided to the petitioner and the other delinquent official namely Ct/GD. M Thuyavan. The article of charges is reproduced as under:

“Charge No.I

That No. 015034449 CT/GD M. M Thuyavan and No. 035261948 CT/GD Satish Tyagi of C/91 Bn CRPF while performing active duty (Law & Order) at Samba Chowk on 03.09.2008 committed an act of disobedience of orders/neglect of duty/misconduct/absent from duty place in their capacity as a member of the force under section 11 (1) of CRPF Act, 1949 in that No. 015034449 CT/GD M. M Thuyavan and No. 035261948 CT/GD Satish Tyagi of C/91 Bn CRPF were found guilty of absent from place of active duty which is against the prejudicial and good order of the force.

Charge No.II

That during the aforesaid period while functioning the aforesaid active duty, No. 015034449 CT/GD M. M Thuyavan and No. 035261948 CT/GD Satish Tyagi of C/91 Bn CRPF while performing active duty (Law & Order) at Samba Chowk on 03.09.2008 , committed disobedience of orders/neglect of duty/other misconduct in their capacity as a member of the force under section 11 (1) of CRPF act, 1949 in that No. 015034449 CT/GD M. M Thuyavan and No. 035261948 CT/GD Satish Tyagi of C/91 Bn CRPF were found guilty of consuming liquor while on active duty which is against the good order and discipline of the force.

Charge No.III

That during aforesaid period while functioning the aforesaid active duty No. 015034449 CT/GD M. M Thuyavan and No. 035261948 CT/GD Satish Tyagi of C/91 Bn CRPF while performing active duty (Law & Order) at Samba Chowk on 03.09.2008, committed disobedience of orders/other misconduct/misbehaviour in their capacity as a member of the force under section 11 (1) of CRPF act, 1949 in that No. 015034449 CT/GD M. M Thuyavan and No. 035261948 CT/GD Satish Tyagi of C/91 Bn CRPF were found guilty of leave the place of active duty without prior permission from competent authority/consuming liquor while on active duty/altercation with civil public under the influence of liquor/fired two rounds from service weapon (AK-47 rifle) without prior permission from competent authority/loss of government property (one magazine of Insas Rifle along with 20 live rounds), which is against the good order and discipline of the force.”

The petitioner did not plead guilty to the charges and stated that he does not want the assistance of Defence Assistant, as is evident from the minutes of the proceedings dated 29.11.2008. Eight witnesses were examined during the course of enquiry out of which, the petitioner and the other delinquent official did not choose to cross-examine six witnesses despite grant of opportunity by the Enquiry Officer. Both the petitioner as well as the other delinquent official cross-examined only two witnesses, namely, Chuniya Bhai and Suresh. The documentary evidence led during the course of enquiry was exhibited in the presence of the petitioner and the other delinquent official and one copy of the exhibits were provided to the petitioner as well as the other delinquent official. The statement of the petitioner as well as the other delinquent official was recorded on 31.12.2008. In their statements both the petitioner and the other delinquent official admitted that they consumed liquor at 1730 hours on 03.09.2008. Thereafter 15 days’ time was granted to petitioner as well as the other delinquent employee for their defence vide communication dated 01.01.2009 duly received by them on same day. The petitioner was again re- examined and he did not plead guilty to the charges leveled vide memorandum dated 13.10.2008 and sought further 15 days’ time to produce defence witness. The other delinquent officer did not report to the Enquiry officer. The Enquiry Officer accordingly closed the enquiry on 06.02.2009. The Enquiry Officer vide his report dated 07.02.2009 proved all the three charges against the petitioner as well as the other delinquent employee. The perusal of the enquiry report reveals that the Enquiry Officer has examined the evidence led during the course of enquiry and also the statement of the petitioner and the other delinquent officer. The Enquiry Officer came to the conclusion that both the petitioner and delinquent official were found absent on duty at 1845 hours on 03.09.2008, both of them consumed liquor on 03.09.2008 at 1730 hours and after consuming liquor they had an altercation with public under the influence of liquor as a result of which mob gathered and law & order problem was created. The Enquiry Officer also came to the conclusion that Ct/GD M. Thuyavan fired 2 rounds from his service weapon without prior permission from the competent authority and the mob started stone pelting on CRPF troops in which two CRPF vehicles suffered damage. During the incident, one magazine with 20 live rounds which were issued to the petitioner was also found missing. The conclusion derived by the Enquiry Officer on the basis of evidence on record cannot be considered as perverse, that may warrant interference by this court.

The Enquiry Officer submitted the report to the respondent No. 5 and the respondent No. 5 after perusing the enquiry report ordered the removal of the petitioner from service with effect from 04.03.2009 (AN) vide order bearing No. PVIII.13/2008-91-EC-2 dated 04.03.2009. The Enquiry Officer has meticulously followed the provisions contained in Rule 27 of the CRPF Rules, 1955 for conducting enquiry and this court does not find any deviation or violation of the rules by the Enquiry Officer while conducting the enquiry. The contention of the petitioner that the enquiry was conducted at his back and no due opportunity was afforded to the petitioner to defend himself during the enquiry is mis-conceived and contrary to record, therefore the same is rejected.

The petitioner filed an appeal against the order bearing No. PVIII.13/2008-91-EC-2 dated 04.03.2009 before the respondent No.4 but the same was dismissed by the respondent No.4 vide order bearing No.R.XIII.6/09-Estt.-III dated 05.09.2009. This court has also the examined the order bearing No.R.XIII.6/09-Estt.-III dated 05.09.2009 and this court does not find any illegality in the same. The respondent No.4 has examined the entire material and has returned his finding that the appeal is devoid of merits, duly supported by the reasons.

Thereafter, the petitioner filed revision petition before the respondent No.3 and the respondent No.3 dismissed the revision petition vide order bearing No. R.XIII-02/2010-Adm.7 dated 10.04.2010. The perusal of the order bearing No. R.XIII-02/2010-Adm.7 dated 10.04.2010 would reveal that the respondent No.3 has passed a reasoned order for rejecting the revision filed by the petitioner.

It was also urged by the petitioner that the punishment awarded to the petitioner is disproportionate to the alleged act of misconduct attributed to the petitioner. In Lucknow Kshetriya Gramin Bank v. Rajendra Singh (2013) 12 SCC 372 , the Hon’ble Apex Court has held as under:

“19. The principles discussed above can be summed up and summarised as follows:

19.1. When charge(s) of misconduct is proved in an enquiry the quantum of punishment to be imposed in a particular case is essentially the domain of the departmental authorities.

19.2. The courts cannot assume the function of disciplinary/departmental authorities and to decide the quantum of punishment and nature of penalty to be awarded, as this function is exclusively within the jurisdiction of the competent authority.

19.3. Limited judicial review is available to interfere with the punishment imposed by the disciplinary authority, only in cases where such penalty is found to be shocking to the conscience of the court.

19.4. Even in such a case when the punishment is set aside as shockingly disproportionate to the nature of charges framed against the delinquent employee, the appropriate course of action is to remit the matter back to the disciplinary authority or the appellate authority with direction to pass appropriate order of penalty. The court by itself cannot mandate as to what should be the penalty in such a case.

19.5. The only exception to the principle stated in para 19.4 above, would be in those cases where the co-delinquent is awarded lesser punishment by the disciplinary authority even when the charges of misconduct were identical or the co-delinquent was foisted with more serious charges. This would be on the doctrine of equality when it is found that the employee concerned and the co-delinquent are equally placed. However, there has to be a complete parity between the two, not only in respect of nature of charge but subsequent conduct as well after the service of charge-sheet in the two cases. If the co-delinquent accepts the charges, indicating remorse with unqualified apology, lesser punishment to him would be justifiable.”

The petitioner has been ordered to be removed from the service. There were serious charges against the petitioner, which were duly proved during the course of enquiry. The petitioner was held to be absent on duty for a particular period and after consuming liquor indulged into an altercation with the public leading to stone pelting by the mob. During the incident, the petitioner lost the magazine with live 20 rounds, which was subsequently recovered by the Police. In view of such serious allegations, the punishment of removal from service awarded to the petitioner cannot be held to be disproportionate to the misconduct of the petitioner. Otherwise also the court can show indulgence only when the punishment awarded to the delinquent official is shocking to the conscience of the court and in view of the proved serious allegations, this Court does not find the punishment shocking to its conscience.

In view of above discussion, the present petition is found to be mis-conceived and without merits.The same is accordingly dismissed. Record be handed over to Mr. Nanda.