Vidya Baridh Tiwari v. The Union Of India & Ors.

Judgment

4. Bihar.

5. The Commandant 36th B.N. C.R.P.F., B.T.C. Howly, Barpeta Asam. ... ... Respondent/s ====================================================== Appearance : For the Appellant/s For the Respondent/s : : Mr. Prem Ranjan Raj, Advocate Mr. Anshay Bahadur Mathur, CGC ====================================================== CORAM: HONOURABLE MR. JUSTICE P. B. BAJANTHRI HONOURABLE MR. JUSTICE PURNENDU SINGH ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE PURNENDU SINGH) Date : 12-12-2022 This Court on 14.11.2022 had passed the following orders: “Heard the matter for sometime. In the instant L.P.A., appellant has assailed the order of the learned Single Judge dated 11.08.2015 passed in C.W.J.C. No. 7585 of Patna High Court L.P.A No.1978 of 2015 dt.12-12-2022

1999. Appellant joined service as a Constable on 16.07.1991. He was subjected to disciplinary proceedings on the allegation that he had deserted job from 04.09.1995 to 04.11.1995. He had reported back on 05.11.1995. On this allegation he was subjected to disciplinary proceedings and it was concluded in imposition of penalty of dismissal from service on 24.05.1996. Feeling aggrieved and dissatisfied with the order of dismissal, appellant exhausted remedy of appeal and revision. In both the proceedings he had suffered orders on 28.04.1997 and 28.04.1998 respectively. Thereafter, he filed C.W.J.C. No. 7585 of 1999 in which also he has suffered order. Hence the present L.P.A. Learned counsel for the appellant raised legal issue in so far as deserted employee/ Constable in CRPF for more than 60 days, in that event competent authority has to invoke Section 9(f) of the Central Reserve Police Force Act, 1949 (For short 'Act, 1949') read with Rule 31 (a) and (b) of Rules called "Central Reserve Police Force Rules, 1955 (For short 'Rules, 1955')". He has also submitted that Rule 36 and Section 12 was to be invoked. On the other hand, concerned respondent has initiated proceedings under Sub-section 1 of Section 11 of the Act, 1949 read with Rule 27 of Rules, 1955. Aforesaid legal issue has been raised for the first time in the present L.P.A. At this stage, learned counsel for the respondent seeks time to ascertain from the disciplinary authority as to why Section 9(f) of the Act, 1949 read with Rule 31(a) and (b), Rule 36 and Section 12 has Patna High Court L.P.A No.1978 of 2015 dt.12-12-2022 not been invoked in the light of the fact that appellant deserted his job for more than 60 days and he has reported on 62nd day. Re-list this matter on 28.11.2022. It is made clear that no further time would be granted on the next date of hearing.”

2. The matter was again heard on 28.11.2022 on which date a direction was given to the appellant to file an affidavit to the extent that he wants order on merit or not on the next date of hearing in the event of allowing the present Letters Patent Appeal and remanding the matter to the Disciplinary Authority. If the Disciplinary Authority invoke Rule 31 of C.R.P.F. Rules, 1955 in conducting trial and other proceedings, if the allegation is proved there is apprehension that appellant would be convicted for alleged offence and he is likely to be put behind bar in terms of the provisions of C.R.P.F. Act, 1949 and Rules,

3. Today, learned counsel for the appellant filed supplementary affidavit. The same is hereby rejected for the reasons that on 28.11.2022 and also on earlier occasion matter was heard at length.

4. Last time, we have only posed a question in the event of allowing L.P.A. and matter was remanded to the Disciplinary Authority, he is ready to face trial under Section 9 (f) of the Act, 1949 read with Rule 31 (a) and (b) regarding assembling of a

Patna High Court L.P.A No.1978 of 2015 dt.12-12-2022 Court of Inquiry under Section 12 read with Rule 36 of CRPF Rules, 1955.

5. At this point, learned counsel for the appellant, on instruction submitted that the appellant is prepared to face consequences.

6. Per contra learned counsel for the respondents submitted that the appellant was posted in Jammu & Kashmir for Ops duty and while returning from Srinagar (J&K), after completion of Ops duties along with other coy personnel to Assam, the appellant deserted en route at Allahabad Railway Station on 04-09-1995, without giving any information to the party Commander or superior officer, leaving behind his arms in the compartment unattended and went to his home in Riwa (M.P). On reaching Lumding railway station on 06-09-95, Company Havaldar Major Bulaki Rai, reported about his desertion at Allahabad Railway station to the commanding officer. Based on Complaint lodged by the Coy Commander, a warrant of arrest was issued vide 36 Bn, CRPF letter dated 01- 10-95, to Superintendent of Police, Riwa (MP). Neither any information by the appellant was given to the office nor any application regarding his alleged illness and leave was received in 36 BN, CRPF of the respondents. The appellant reported on Patna High Court L.P.A No.1978 of 2015 dt.12-12-2022 his own at E-36 BN, Dayapur Silchar (Assam) on 05-11-95 after 62 days. Without giving any cogent and sufficient reason for 62 days absence which is pre-judicial to the good order and the discipline of the force.

7. It has further been submitted that the appellant was placed under suspension w.e.f 20-11-1995, vide office order No. J.11-3/95-EC-II dated 20-11-1995 and accordingly a Departmental Inquiry was directed vide office order dated 18- 01-1996. Thereafter, Asstt. Commandant was appointed as Inquiry Officer to conduct the Departmental Inquiry. The Inquiry Officer conducted the departmental inquiry in accordance with law and procedures prescribed therein. After providing the statement of all PW’s and examination of evidence, the delinquent/appellant was provided 15 days time to submit his reply in his defense, by the Inquiry Officer vide letter No. P-VIII-1/96-EC-II dated 14-03-1996. The appellant did not produce anything in his defense. He also failed to produce name of any defense witnesses in his application dated 29-03-96 and admitted the charges leveled against him. The appellant himself pleaded guilty during the course of inquiry. The charges leveled against the appellant vide Article I and II were proved beyond any shadow of doubt. Before imposing any penalty and to Patna High Court L.P.A No.1978 of 2015 dt.12-12-2022 safeguard the natural justice, a show cause notice dated

23.04.1996 imposing the intended penalty of removal from service was also served to the appellant, to which 10 days time was given to him to explain his position through reply, if any. The appellant did not submit any reply within the stipulated time. Thereafter, the commandant being the Disciplinary Authority awarded penalty of removal from the service w.e.f. 24-05-1996 u/s 11(1) CRPF Act 1949 read with rule 27 of CRPF Rules 1955, by order dated 24-05-1996. Appellant filed Appeal against the order dated 24-05-1996, after much delay, however, his appeal was forwarded to the Appellate Authority (Respondent no-4). The Respondent no-4, vide order dated 28- 04-1997 rejected the appeal. Thereafter, the the appellant filed Revision before the Respondent No-3 which was considered on its merit and it was dismissed vide order dated 28.04.1998.

8. It has been submitted on behalf of the respondents that Section 10(M) and 9 (F) are penal provisions, Section 9 and 10 of the Act are related to offences and provide for punishment of imprisonment. However, the petitioners case was dealt with under Section 11 (I) and was awarded the punishment of removal from service in accordance with law.

9. Learned counsel further submitted that Section 11 (1) Patna High Court L.P.A No.1978 of 2015 dt.12-12-2022 of CRPF Act, 1949 deals with minor punishments as compared with more heinous offences in Section (9) and less heinous offences in Section 10 of the Act. Section 11(1) of CRPF Act, 1949 is an enabling section which empowers the punishing authority to award any one or more of the minor punishments to any member of the force in lieu of or in addition to suspension or dismissal. Thus it is clear that Section 11(1) of the Act deals with only those minor punishments which may be awarded in a Departmental Inquiry and they can be imposed in addition to or in lieu of suspension or dismissal even cases while a delinquent is not prosecuted under Section (9) or (10) of CRPF Act, 1949. Hence the contention of appellant that punishment awarded for a serious offence i.e. desertion but failed to appreciate that it cannot be awarded under Section 11(1) is not sustainable.

10. Heard the Parties.

11. The undisputed facts of the case are that the, Appellant joined service as a Constable in the CRPF under the posted strength of E/36 BN CRPF, Barpeta (Assam), on

16.07.1991. In the course of his service, appellant along with his BN was assigned duties at Srinagar. The appellant along with his BN was returning from Jammu to their parent unit located at Howly, Barpeta (Assam), by train on 02.09.1995. On Patna High Court L.P.A No.1978 of 2015 dt.12-12-2022

04.09.1995, when the train reached at Allahabad Railway Station, the Appellant left his arms and ammunition on the train and went to his home in Rewa, MP and underwent treatment. On

06.09.1995, Arms and ammunition belonging to the appellant was handed over and the matter of missing of the appellant en- route was reported to Commanding Officer. On 05.11.1995, the appellant reported to his unit at Berpeta, Assam after being declared fit by the doctor on 01.11.1995. Departmental proceedings against the appellant was initiated after framing Article of charges on 02.12.1995, under two heads:- “Article-I That the said No. 910580241 Constable V.B. Tiwari of E/36 Bn while functioning as a Constable (GD) committed disobedience/neglect/remissness in the discharge of his duty his capacity as a member of the Force U/S 11(1) of the CRPF Act, 1949, in that when he was returning from Srinagar with his other coy personnel, he deserted enroute from Allahabad Railway Station on 04.09.1995 at his own without any information and without the order of the competent authority which is prejudicial to the good order and discipline of the Force. Article-II That during the aforesaid period and while functioning in the aforesaid office, the said No. 910580241 Constable V.B. Tiwari of E/36 Bn. CRPF was guilty of disobedience of order/neglect of duey/ remissness in the discharge of his duty and other misconduct in his capacity as a member of the force U/S 11(1) of the CRPF Act, 1949, in that during the move of coy from Srinagar to Assam, he deserted enroute from B.P. Mail from Allahabad Rly Station on 04/09/95 at his hown without any Patna High Court L.P.A No.1978 of 2015 dt.12-12-2022 information and without the order of the competent authority and remain absent till 4/11/95 and reported at his own at coy Dayapur, Silchar (Assam) on 5/11/95 Al after 62 days absence from duty which is prejudicial to the good order and discipline of the Force.” Inquiry Officer was appointed to inquire into Article of Charges, wherein the appellant was charged for disobedience of order, neglect of duty, remissness in the discharge of his duty, misconduct and misbehavior under section 11(1) of CRPF Act, 1949 but not for alleged offense of desertion as per section 9(f) and for overstaying without leave u/s 10(m) of the CRPF Act,

1949. An order of dismissal from service of CRPF was passed by the Commandant E/36 BN and the same was communicated to the appellant. Against the order of dismissal from service, a departmental appeal was preferred before the Dy. Inspector General, CRPF, Patna and same was dismissed vide order dated

28.04.1997. The appellant preferred revision before the Inspector General of Police, CRPF, Patna which again was dismissed vide order dated 28.04.1998, by affirming the order dated 24.05.1996 passed by the Commandant E/36 BN Barpeta, Assam and order dated 28.04.1997 passed by the Dy. Inspector General, CRPF, Patna respectively. Thereafter, the appellant preferred CWJC No. 7585/1999 out of which the present L.P.A. arises for setting aside the orders dated 24.05.1996, 28.04.1997, Patna High Court L.P.A No.1978 of 2015 dt.12-12-2022 and 28.04.1998. The writ petition was dismissed vide order dated 11.08.2015.

12. On perusal of the records of writ petition it appears that in reply to the counter affidavit filed on behalf of the respondent nos. 1 to 5, the petitioner has brought on record the statement of the witnesses recorded in course of preliminary inquiry and to support his case to the extent that the petitioner had sent an application for grant of leave for 30 days to the O.C. E/36 B.N. of C.R.P.F. Barpeta, Assam, which was due in the calendar year 1995. The said fact is also recorded by the Appellate Authority. “;g fd ;kpd fnukad& 04-09-1995 rd 62 fnu chekjh ds dkj.k vuqifLFkr jgk ftldk fpfdRlk izek.k&i= mlus vihy ds lkFk izLrqr fd;k gSA nwljh ckr ;g fd ml le; ;kpd dks ,d ekg ls T;knk NqV~Vh cdk;k Fkh ftldk og gdnkj Fkk vkSj mls og miHkksx dj ldrk FkkA” He has stated that his battalion boarded the train on

02.09.1995 and on the way he developed some health problem which forced him to off-board the train at Allahabad Railway Station on 04.09.1995. He went to his home situated at Rewa (M.P.) and underwent medical treatment and in this respect he has relied upon the statement of Bulaki Rai of E/36 battalion and Bhardawaj Tiwary of E/36 battalion. On perusal of the statement of Bharadwaj Tiwary (annexed as Annexure-6 series). The relevant part of his statement is quoted hereunder: Patna High Court L.P.A No.1978 of 2015 dt.12-12-2022 “……….I am producing a copy of sig No. PVIII-8/95. D7 6/9 as exhibit A. On 09.09.95 a sig reed form 36 to lodge a complaint against said CT for issue of WoA. I am producing a copy of sig No. 2 11 1/95 EC. 2. dtd. 8/5/95 as exhibit B. A complaint was lodged to Commet. 36 cum 1st Class Magistrate for issue of WoA and alongwith performa containing Partela A & B. I am producing the copy of Memo No. 1 x 1/55 E/36 dtd 11/9 and performa as exhibits C and D. On 12.09.95 a Letter was sent to Indul to join duty immediately. I am producing a copy of Memo No. 1 x 1/55 E/36 dtd 12/9/95 as exhibits ‘E’. As per the record a another letter was sent to induced to respect immediately a copy of letter No. 1 x 1/55. E/36 dtd. 8/10/95 attached as exhibit F. On 19.10.1995 a telegram was received in the office from said CT regarding seef sick, Extend leave. A copy of telegram attached as exhibit G’ Vide e/36 sig No. 1 x 1/95 dtd 31/10 intimation regarding his telegram sent to Comdt 36. Copy of sig attached as exhibit ‘H’. On 5.11.95 CT Tinari reported from desertion of Dayapar silchar and its intimation sent to 36 vide sig. A copy of sig No. 1 x 1/95 dtd. 5/11 attached as exhibit ‘I’………...”

13. However, on being questioned, said Bhardwaj Tiwary had accepted the fact that the appellant reported on 05.11.1995 at Dayapur Silchar as per the record. The appellant has brought on record medical prescription showing that he was under the treatment of Dr. K.K. Ravi and after getting fit he had obtained medical certificate of fitness to report to duty, which was issued by the S.S. Medical College, Riva, M.P. The medical certificate dated 05.02.1995 has been annexed as Annexure- 1/1 to the writ Patna High Court L.P.A No.1978 of 2015 dt.12-12-2022 petition. Record reveals that the Inquiry Officer in the last week of February, 1996 had called the appellant to put his signature on certain papers prepared in english. On perusal of the inquiry report it appears that the appellant has been charged for disobedience of order/neglect of duty/remissness in the discharge of his duty and other misconduct and for overstayal without leave. The Disciplinary Authority has declared the appellant as deserter without following the formal procedure as laid down in Rule 31 of the Rules, 1955 by passing order dated

24.05.1996. The Appellate Authority has recorded that medical certificate was produced by the appellant on 05.11.1995, but has refused to confirm it. It is relevant to reproduce the said fact hereunder:- “M- fd tkap vf/kdkjh flQZ lk{; i<+dj fu’d’kZ fudkyus dh vkSipkfjdrk izdV dh gSA ;kpd fdl ifjfLFkfr esa fnukad 04-09-1995 dks bykgkckn jsyos LVs”ku ls HkxkSM+k gksdj 05-11-1995 dks Loizsj.kk ls mifLFkr gks x;kA ;kpd dh D;k ifjfLFkfr Fkh bldks mlus tkap ds nkSjku ugha izdV fd;k gSA tkap ds nkSjku reke xokgksa vkSj lcwrksa ds vk/kkj ij mlds fo:) yxk;s x;s vkjksi iw.kZr% lkfcr gks pqds gSa fd og fcuk fdlh lk{; vf/kdkjh ds vuqefr ds fnukad& 05-09- 1995 dks bykgkckn jsyos LVs”ku ls HkxkSM+k gks x;k vkSj fnukad& 04-11-1995 rd vuqifLFkr jgkA ;gk¡ ;kfpdk dh lkjh mfDr;k¡ fujFkZd gSA ;kpd fnukad& 05-09-1995 ls 01-11-1995 rd chekj Fkk ftldk fpfdRlk izek.k&i= mlus 05-11- 1995 dks izLrqr fd;k Fkk] ysfdu mls vLohdkj dj fn;k x;kA vihydrkZ dk ;g dFku flQZ cgkuk ek= gS D;ksafd mlus dksbZ fpfdRlk izek.k&i= 05-11-1995 dks izLrqr ugha fd;k Fkk mldh izfr flQZ mlus vius Patna High Court L.P.A No.1978 of 2015 dt.12-12-2022 vihy ds lkFk viuk nks’k de djus ds [;ky ls layXu fd;k gSA ,sls Hkh mlds fpfdRlk izek.k&i= dk dksbZ egRo ugha gS D;ksafd tc og fnukad 05-09-1995 dks bykgkckn jsyos LVs”ku ls HkxkSM+k gqvk ml le; fcYdqy gha Bhd FkkA mls ml le; viuh chekjh dh lwpuk vius fdlh vf/kdkjh dks ugha fn;kA bl le; flQZ og vius cpko ds fy, fpfdRlk izek.k&i= dh izfr izLrqr dj jgk gS] ftldk lgh ekus rks mlds tqeZ ls dksbZ laca/k ugha gSA”

14. In the background of the above facts, we are now required to look into the matter as to whether the order passed by the respondents was not in good faith and the concerned respondents have not adhered to the very purpose and objective of the provisions of law and power to exercise such jurisdiction in accordance with the law. In case the order is passed in bad faith, the action of the authority concerned made without giving any reasonable grounds or opinions, undermines the whole action of the respondents in passing the orders dated

24.05.1996 , 28.04.1997 and 28.04.1998 will be vitiated in the eye of law.

15. It is settled principle of law that in exercise of power under Article 226 of Constitution, the Court can interfere in the cases where there is alleged perversity in the finding of the respondent-authority who has passed the order in breach of law or there has been any abuse of power. Recently in case of Amrendra Kumar Pandey Vs. Union of India and others Patna High Court L.P.A No.1978 of 2015 dt.12-12-2022 reported in 2022 SCC Online SC 881 has considered the power of judicial review and as well as the doctrine of reasonableness and in this regard it is useful to quote following paragraphs. “29. Where an Act or the statutory rules framed thereunder left an action dependent upon the opinion of the authority concerned, by some such expression as ‘is satisfied’ or ‘is of the opinion’ or ‘if it has reason to believe’ or ‘if it considered necessary’, the opinion of the authority is conclusive, (a) if the procedure prescribed by the Act or rules for formation of the opinion was duly followed, (b) if the authority acted bona fide, (c) if the authority itself formed the opinion and did not borrow the opinion of somebody else and (d) if the authority did not proceed on a fundamental misconception of the law and the matter in regard to which the opinion had to be formed.

30. The action based on the subjective opinion or satisfaction, in our opinion, can judicially be reviewed first to find out the existence of the facts or circumstances on the basis of which the authority is alleged to have formed the opinion. It is true that ordinarily the court should not inquire into the correctness or otherwise of the facts found except in a case where it is alleged that the facts which have been found existing were not supported by any evidence at all or that the finding in regard to circumstances or material is so perverse that no reasonable man would say that the facts and circumstances exist. The courts will not readily defer to the conclusiveness of the authority's opinion as to the existence of matter of law or fact upon which the validity of the exercise of the power is predicated.

31. The doctrine of reasonableness thus may be invoked. Where there are no reasonable grounds for the formation of the Patna High Court L.P.A No.1978 of 2015 dt.12-12-2022 authority's opinion, judicial review in such a case is permissible. [See Director of Public Prosecutions v. Head, [1959] A.C. 83 (Lord Denning).

32. When we say that where the circumstances or material or state of affairs does not at all exist to form an opinion and the action based on such opinion can be quashed by the courts, we mean that in effect there is no evidence whatsoever to form or support the opinion. The distinction between insufficiency or inadequacy of evidence and no evidence must of course be borne in mind. A finding based on no evidence as opposed to a finding which is merely against the weight of the evidence is an abuse of the power which courts naturally are loath to tolerate. Whether or not there is evidence to support a particular decision has always been considered as a question of law. [See Reg. v. Governor of Brixton Prison, Armah, Ex Parte, [1966] 3 WLR 828 at p. 841].