Patna High Court
Case Details
WP(C) 6908/2003 BEFORE HON’BLE MR JUSTICE UJJAL BHUYAN J U D G M E N T AND O R D E R (CAV) This writ petition has been filed challenging the legality and validity of the o rder dated 24-09-1997 passed by the respondent No.5 dismissing the petitioner fr om the service of Central Reserve Police Force (CRPF), as affirmed by the appell ate authority vide the appellate order dated 14-02-1998 and by the revisional au thority vide the order dated 03-04-1999. The delay in filing of the present writ petition has been explai 2. ned by the petitioner for the reason that initially a writ petition was filed be fore the Patna High Court as the petitioner hails from the State of Bihar. The w rit petition, which was registered as CWJC No.10427/1999, was withdrawn vide ord er dated 14-09-2001 with liberty to file writ petition before the Court having j urisdiction. Thereafter, the present writ petition was filed before this Court o n 28-08-2003. The case was admitted for hearing on 02-09-2003. 3. Shorn of details, the essential facts necessary for adjudication of the case may be briefly noted. 4. Petitioner joined CRPF as a Constable on 23-10-1980. At the rele vant point of time, petitioner was attached to 6th BN CRPF at Itanagar, which wa s under CRPF Group Centre, Guwahati. 5. Petitioner passed junior cadre course in the year 1990 and thus became eligible for promotion to the cadre of Lance Naik. However, promotion was not given to the petitioner on the ground of pendency of two criminal cases. Ac cording to the petitioner, the two cases related to land dispute at his native v illage. But ultimately, petitioner was promoted to the cadre of Lance Naik vide order dated 13-12-1993 alongwith other persons. 6. Show-cause notice under Rule 27 of the CRPF Rules, 1955 dated 02-02-1995 was issued to the petitioner alleging that he had submitted a fake Court judgme nt and tried to cheat the Force to ensure his promotion as Lance Naik. 7. The disciplinary authority appointed an Enquiry Officer to enqui re into the charge levelled against the petitioner. The Enquiry Officer conducte d his enquiry and on completion of the same, submitted his report to the discipl inary authority on 10-07-1995. Disciplinary authority without furnishing a copy of the enquiry report to the petitioner, sought for his reply on the proposed pe nalty. Though the petitioner submitted reply, the same was not considered and th e petitioner was dismissed from service. Petitioner received the dismissal order on 11-09-1995. 8. On appeal being filed by the petitioner, the appellate authority passed order dated 09-04-96 setting aside and quashing the disciplinary proceed ing drawn up against the petitioner and directed re-instatement of the petitione r. However, the disciplinary authority was given liberty to conduct a de-novo en quiry.
Legal Reasoning
ity. Though Rule 27 of the CRPF Rules does not expressly provide for 22. appointment of any Presenting Officer, this Court in the case of Mutum Shantikum ar Singh (supra) held that Rule 27 does not bar the competent authority from app ointing a Presenting Officer in the disciplinary proceeding for conducting the s ame in a fair manner in accordance with the principles of natural justice. After referring to various judicial pronouncements, it was held that in a departmenta l proceeding where no Presenting Officer is appointed, the Enquiry Officer assum es the role of the judge as well as prosecution inasmuch as in the absence of th e Presenting Officer, the Enquiry Officer must examine the witnesses and exhibit ed documents, which will be in total violation of the principles of natural just ice. It was finally held that appointment of Presenting Officer is a must in a d isciplinary proceeding against a CRPF Constable. In that case, because of non-ap pointment of Presenting Officer, the disciplinary proceeding against the petitio ner, who was a Constable in the CRPF, leading to his dismissal, was declared as illegal and quashed. He was directed to be reinstated in service. 23. In Ram Lakhan Sharma (supra), the issue before the Court was rem oval from service of a CRPF Constable following a disciplinary proceeding, which was affirmed in appeal and revision. A Division Bench of this Court held that e ven when the statute does not prescribe for appointment of a Presenting Officer in a disciplinary proceeding, then also same is required to be made to comply wi th the principles of natural justice. In the facts of that case, it was held tha t the Enquiry Officer in the absence of the Presenting Officer had put all the q uestions to the delinquent. Thus, the Enquiry Officer acted beyond his jurisdict ion. If an authority acts beyond his jurisdiction and submits his report, the di sciplinary authority should not act on such report. The Court held as under :- (cid:28)(18) We are of the further opinion that in various disciplinary proceedings the statutory authority is working like an administrative authority when they have to act independently and discharge their duty as the statute prescribed applying their judicial mind. It is a settled position of law that the disciplinary proc eeding is a quasi-judicial proceeding and the Inquiry Officer while acting in a disciplinary proceeding is to act like a judicial authority. We are of the furth er opinion that the Inquiry Officer should not act either for the Disciplinary A uthority or for the delinquent officer. He is to act independently to take the i nference of facts which is placed before him by the parties. He should not put q uestions like a Presenting Officer to the delinquent officer to prove the charge s labelled against the delinquent officer. From such action of the inquiring off icer it can be easily said that the inquiring officer is to the extent biased to the delinquent officer, which is unwarranted in law. If the statutory authority acted beyond the power vested on him then where the delinquent officer will go except to the Court of law, which course really has been taken by the respondent -writ petitioner to prove the biasness of the inquiring officer in the writ peti tion and ultimately succeeded. (cid:29) In W. Birbal Singh (Supra), a Division Bench of this Court held 24. as under:- (cid:28)(15). This Court in the above cases held that the enquiry officer has assumed t he roll of the Judge as well as the prosecutor, inasmuch as, in absence of the p resenting officer, the enquiry officer himself examined the witnesses and exhibi ted documents and it would be violative of the rules and the fundamental princip les of natural justice. Admittedly, in the disciplinary proceeding against the a ppellant-writ petitioner for the said 2 articles of charges no presenting office r was appointed and the enquiry officer himself assumed the roll of Judge as wel l as prosecution. Accordingly, we are of the considered view, that the disciplin ary proceeding against the appellant-writ petitioner is liable to be quashed onl y on this score. (cid:29) That was a case of dismissal from service of a police constable following a disc iplinary proceeding where no Presenting Officer was appointed. 25. Thus, following the above decisions, I am also of the view that failure to appoint a Presenting Officer had fundamentally affected the disciplin ary proceeding drawn up against the petitioner and going by the finding recorded by the Enquiry Officer, petitioner was clearly prejudiced by such omission. The same has vitiated the enquiry and the consequential punishment imposed. 26. As already noticed above, there were two criminal cases pending against the petitioner at Sitamarhi, Bihar. He was acquitted in both the cases o n 14-09-1994 and 27-09-1996. According to the petitioner, he had submitted some papers relating to the above cases. 27. Petitioner was promoted alongwith others from Constable to Lance Naik on 13-12-1993. The allegation against the petitioner is that he had submit ted a copy of fake judgment stated to have been delivered by the Chief Judicial Magistrate, Sitamarhi on 11-10-1993 regarding his promotion and seniority. I hav e perused the contents of the said (cid:28)judgment (cid:29) and on the face of it, it is total ly incomprehensible and absurd. It defies all logic as to why petitioner will co mmit such a folly which will jeopardize not only his promotional prospects but a lso his entire service career. Though as per the article of charge, petitioner h ad delivered a copy of the said judgment in the office of the Commanding Officer on 14-11-1993, there is no witness to say that it was the petitioner who had de livered the judgment in the office. Nobody has said that he had seen the petitio ner delivering the said judgment in the office or that it was delivered to such and such officer or staff. Enquiry Officer has referred to petitioner’s letter d ated 22-11-1993 to the Director General, CRPF to arrive at the conclusion that p etitioner had admitted about depositing the said Court judgment. But the Enquiry Officer failed to consider the statement of the petitioner that he did not file any case before the Chief Judicial Magistrate regarding his promotion and senio rity. During the enquiry proceeding, on 15-03-1997, petitioner categorically ple aded (cid:28)not guilty (cid:29) to the charge framed against him. In such a situation, as per Rule 27 of the CRPF Rules, the Enquiry Officer ought to have asked the delinquen t to file a written statement within such period which should not have been less than a forthnight. If he had declined to file a written statement, he was requi red to be examined again by the Enquiry Officer. The proceedings of enquiry do n ot indicate that such a course of action was followed by the Enquiry Officer. 28. Therefore, it is quite evident that the procedure prescribed und er Rule 27 of the CRPF Rules has not been complied with in the present proceedin g which had caused serious prejudice to the petitioner in view of the stand take n by him that he had neither filed any case in the Court of Chief Judicial Magis trate, Sitamarhi regarding his promotion and seniority nor had he submitted copy of such judgment in the office of the Commanding Officer. 29. It is thus clear that there was no evidence at all to substantia te the allegation that petitioner had submitted a copy of fake judgment purporte dly delivered by the Chief Judicial Magistrate, Sitamarhi to facilitate his prom otion from Constable to Lance Naik. Entire case against the petitioner is based on suspicion and presumption. It is true that in a departmental proceeding, the standard of proof is not like that of a criminal trial or even like that of a ci vil suit as it is on the basis of preponderance of probability. But even then, t here has to be some evidence to uphold the charge. It is a settled proposition t hat suspicion or presumption cannot take the place of proof even in a domestic e nquiry. For all the aforesaid reasons, I am of the considered view that 30. the disciplinary proceeding against the petitioner stood vitiated on account of violation of the principles of natural justice for non-appointment of Presenting Officer and also because the charge against the petitioner cannot be said to ha ve been proved even by applying the standard of proof based on preponderance of probability. 31. Accordingly, impugned order dated 24-09-1997, appellate order da ted 14-02-1998 and the revisional order dated 03-04-1999 are hereby set aside an d quashed. Consequently, petitioner shall be re-instated in service. The entire period from dismissal to reinstatement shall be treated to be in service and pet itioner shall be entitled to all service benefits pertaining to the said period except full back wages. Having regard to the facts and circumstances of the case , I am of the view that it will meet the ends of justice if the petitioner is pa id 50% of the back wages for the said period. Ordered accordingly. 32. 33. Writ petition is allowed to the extent indicated above. However, there shall be no order as to cost.
Arguments
9. Pursuant to the appellate order, the Commandant of the 6th BN CR PF, being the disciplinary authority, issued fresh show-cause notice under Rule 27 of the CRPF Rules dated 11-01-1997 levelling the same set of allegation again st the petitioner. Shri A.K. Dhayani, Assistant Commandant of the same Battalion was appointed as Enquiry Officer. The Enquiry Officer conducted the enquiry and submitted his report dated 17-07-1997 to the disciplinary authority, who in tur n forwarded a copy of the enquiry report to the petitioner to submit representat ion, if he so desired, on the findings of the Enquiry Officer. Petitioner submit ted his representation wherein he stated that he had filed a copy of order dated 14-09-1994 of the Additional District and Sessions Judge, Sitamarhi acquitting him in Sessions Case No.9/1991, which was one of the two criminal cases pending against him. 10. Thereafter, the disciplinary authority passed order dated 24-09- 1997 dismissing the petitioner from service. Though the petitioner filed an appe al against the aforesaid order passed by the disciplinary authority, his appeal was rejected by the appellate authority vide order dated 14-02-1998. Petitioner then filed a revision petition before the Inspector General, North Eastern Secto r, CRPF, Shillong, being the revisional authority, but the said authority reject ed his revision petition vide order dated 03-04-1999. 11. As noticed in the initial part of this judgment, petitioner had initially moved the Patna High Court but subsequently, after withdrawing the wri t petition so filed in the Patna High Court, had filed the present writ petition before this Court. 12. A common counter affidavit has been filed by the respondents. St and taken is that petitioner’s service record reflects imposition of punishments on a number of occasions. Petitioner was given promotion on 24-03-2004 (sic) bu t his promotion was not made effective because of pendency of two criminal cases . Show-cause notice was issued to the petitioner on the allegation of submitting fake Court judgment relating to promotion and seniority. Following departmental proceeding, petitioner was dismissed from service. However, the appellate autho rity had set-aside the dismissal order on the ground of procedural irregularity but give liberty to the disciplinary authority to hold enquiry afresh. Petitione r was re-instated in service thereafter. Petitioner had produced copy of judgmen t dated 11-10-1993 which the department refused to accept as genuine. Burden was on the petitioner to prove the document as genuine. On the basis of documentary evidence, the Enquiry Officer held that the charge of submitting fake document was proved by such document itself. Therefore, there was no necessity to examine any prosecution witness. As a matter of fact, Chief Judicial Magistrate, Sitama rhi himself wrote to the disciplinary authority that no such judgment was author ed by him. Petitioner failed to prove the genuineness of the document (fake judg ment). After the Enquiry Officer submitted his report, copy of the same was furn ished to the petitioner to submit his representation. Thus, full opportunity was given to the petitioner in the departmental proceeding. 13. Heard Mr. R. Hussain, learned Counsel for the petitioner and Ms. B.Das, learned Central Government Counsel. 14. Learned Counsel for the petitioner submits that while petitioner was involved in two criminal cases relating to land dispute in his native villa ge, he was acquitted in both the cases vide Court judgments dated 14-09-1994 and 27-09-1996. The charge against the petitioner was relating to submission of a c opy of judgment of Chief Judicial Magistrate, Sitamarhi dated 11-10-1993, relati ng to promotion and seniority, which was alleged to be a fake judgment. He submi ts that petitioner did not file any such case and there was no reason for the pe titioner to submit a copy of such judgment. It is also not clear and no finding has been recorded as before whom copy of the said judgment was submitted by the petitioner. In such circumstances, it was not at all justified to hold that peti tioner had submitted a copy of such judgment. Learned Counsel for the petitioner submits that the procedure laid down in Rule 27 of the CRPF Rules was not follo wed thereby vitiating the enquiry proceeding. He further submits that no Present ing Officer was appointed to present the case of the department before the Enqui ry Officer. As a result, the Enquiry Officer himself assumed the role of a prose cutor and of a judge. Learned Counsel submits that this is impermissible and had rendered the enquiry conducted null and void. In support of his submission, lea rned Counsel has placed reliance on a decision of this Court rendered in the cas e of Mutum Shantikumar Singh -Vs- Union of India and others reported in 2005 (1) GLT 413, which view has been affirmed by a Division Bench judgment of this Cour t in Union of India and others -Vs- Ram Lakhan Sharma reported in 2011 (3) GLT 2 81. He has also placed reliance on another Division Bench Judgment of this Court in W. Birbal Singh -Vs- State of Manipur and others reported in 2010 (5) GLT 3 71. The submissions of learned Counsel for the petitioner have been 15. opposed by learned Central Government Counsel. She submits that petitioner did n ot submit written statement. Copy of the judgment relating to promotion and seni ority, which turned out to be a fake one, was submitted on 11-10-1993 and the pe titioner got promotion from Constable to Lance Naik on 13-12-1993. From the abov e sequence of events, there is strong presumption as to the involvement of the p etitioner in the submission of a copy of the said fake judgment. It was also con firmed by the Chief Judicial Magistrate, Sitamarhi that he did not pass any such judgment. Regarding absence of Presenting Officer in the enquiry, petitioner di d not raise this issue during the enquiry. She submits that no prejudice was cau sed to the petitioner because of absence of Presenting Officer. Referring to the judgment of the Apex Court in the case of State Bank of Patiala and others -Vs- S.K. Sharma reported in (1996) 3 SCC 364, learned Central Government Counsel su bmits that no case for interference is made out and, therefore, writ petition sh ould be dismissed. 16. ecord of the case, which has been produced before the Court. Submissions made have been considered. I have also perused the r 17. Before proceeding further, a brief reference to the relevant leg al provisions in considered necessary. CRPF Act, 1949 has been enacted to provid e for the constitution and regulation of an armed Central Reserve Police Force. The superintendence and control over the CRPF is vested in the Central Governmen t and the CRPF is administered by the Central Government in accordance with the provisions of the CRPF Act and the rules framed thereunder through such officers as the Central Government may appoint from time to time. Section 11 of the CRPF Act deals with imposition of punishment on any member of the CRPF. Though the h eading of the said section is (cid:28)Minor Punishments (cid:29), it deals with all the punishm ents. Sub-Section (1) provides that the Commandant or any other authority or off icer as may be prescribed, may, subject to the Rules, award in lieu of or in add ition to suspension or dismissal from service, any one or more of the punishment s mentioned therein, starting from reduction in rank to removal from any office of distinction or special emolument on grounds of disobedience, neglect of duty, remissness in the discharge of any duty or of any misconduct in his capacity as a member of the Force. Section 18 is the rule making provision. Accordingly, in exercise of the powers conferred by Section 18 of the CRPF Act, Central Governm ent has made the CRPF Rules, 1955. Chapter IV deals with organization of a batta lion. In the organizational hierarchy, Lance Naik is placed above Constable. Cha pter VI comprising of Rules 27 to 36A deals with discipline. Rule 27 lays down t he procedure for the award of punishments. As per clause (a), in case of dismiss al or removal of Constable, the authority competent to impose the penalty is the Commandant, which punishment has to be inflicted after formal departmental enqu iry, the procedure of which is laid down in clause (c). As per the procedure pre scribed for conducting a departmental enquiry, the substance of the accusation s hould be reduced to the form of a written charge, copy of which should be given to the delinquent atleast 48 hours before the commencement of the enquiry. The c harge should be read out to the delinquent. At the commencement of the enquiry, the delinquent should be asked to enter a plea of (cid:28)guilty (cid:29) or (cid:28)not guilty (cid:29) after which the evidence necessary to establish the charge should be let in. The deli nquent shall have the right to cross-examine the witnesses. The documents relied upon in support of the charge are required to be put in evidence as exhibits an d the delinquent should be allowed to inspect such exhibits before he is called upon to make his defence. The delinquent shall then be examined and his statemen t should be recorded by the officer conducting the enquiry. If the delinquent pl eads guilty and does not challenge the evidence on record, the proceedings shall be closed for passing necessary order. But if he pleads (cid:28)not guilty (cid:29), he shall be required to file a written statement and also a list of witnesses whom he may wish to cite in his defence. If he declines to file a written statement, he sha ll again be examined by the officer conducting the enquiry. The Enquiry Officer shall forward his report together with the proceedings to the Commandant, who sh all record his findings and pass orders where he has power to do so. 18. Having noticed the relevant legal provisions, the charge against the petitioner may now be looked into. As per the memorandum of charge dated 11 -01-1997, the allegation against the petitioner is that while he was posted as C onstable in F/27th BN CRPF, he committed an act of serious misconduct/misbehavio ur in his capacity as a member of the Force in that he submitted a fake Court ju dgment dated 11-10-1993 purported to have been delivered by the Chief Judicial M agistrate, Sitamarhi in the office of Officer Commanding F/27th BN CRPF on 14-11 -1993 with malafide intention with a view to promote his service interest in the matter of his promotion as Lance Naik with relative seniority, illegally and fr audulently. Thus, the substance of the allegation is that petitioner had submitt ed a fake Court judgment dated 11-10-1993 purported to have been delivered by th e Chief Judicial Magistrate, Sitamarhi in the office of the Commanding Officer o n 14-11-1993 to influence his promotion to the rank of Lance Naik. 19. At this stage, the contents of the fake judgment, a copy of whic h is available in the record, may be briefly looked into. A bare reading of the same will reveal the absurdity of the (cid:28)judgment (cid:29). The heading of the judgment is as follows:- (cid:28)Complain - Promotion with seniority Sl. No.71- Bench No.80066917 JCC pass, S. C houdhury, 27th BN CRPF (cid:29). The judgment starts with the words (cid:28)Court approved by judgment order (cid:29). In the in itial portion, there is a reference to some complain case in the Delhi High Cour t regarding promotion to Lance Naik. The judgment ends by saying that necessary action regarding promotion to Lance Naik of the complainant be taken. 20. In his enquiry report dated 17-07-1997, the Enquiry Officer stat ed that the petitioner had deposited a false and forged Court judgment reportedl y delivered by the Chief Judicial Magistrate, Sitamarhi on 11-10-1993 in the off ice of F/27th BN on 14-11-1993 which is related to promotion and seniority. Peti tioner in his application dated 22-11-1993 addressed to the Director General, CR PF admitted about depositing the Court judgment which was found to be false and forged. The Enquiry Officer held that the charge against the petitioner stood pr oved. The following is the report of the Enquiry Officer:- (cid:28)Report of Enquiry Officer After going through the statements of prosecution documents and the delinquent a nd examining the defence documents / evidence on record carefully, it is found t hat No. 800660517 Ct. S. Chaudhary presently posted in D/6 BN, CRPF Dimapur (Nag aland) deposited a false and forged Court judgment reportedly delivered by the H on’ble CJM Sitamarhi (Bihar) on 11-10-1993 in the office of F/27 BN on 14-11-199 3 which is related to J.CC Sl. No.71 and promotion seniority. In his application dated 22-11-1993 to D.G. CRPF, No. 800660517 Ct. S. Chaudhary admitted about depositing the Court judgment which was found false and forged. During the examination of delinquent by E.O he himself contradicted his answer. Such as he announced to E.O that he has not submitted a Court judgment of CJM Si tamarhi (Bihar) dated 11-10-1993 to F/27 BN, CRPF (Answer-1 of question-1). Agai n he answered that he submitted some paper related to Police case in F/27 BN, CR PF (Answer of question No.2). Then again he answered that on 14-11-1993 he has s ubmitted a judgment of Addl. District Judge and Session Judge Shri Dharam Das To pno (Answer of question 3, 4 and 5). Later on when he was asked how he submitted a judgment of 01-09-1994 on 14-11-1993 in F/27 BN, he said that he has submitte d some papers related to Police case (Answer of question No.6). This shows he himself contradicting his answers in order to mislead and hide the fact. CJM Sitamarhi Shri Rakesh Ranjan also confirmed through his letter No. 459/94 da ted 19-08-1994 to Comdt. 27 BN that he has not given any judgment on 11-10-1993 and the judgment submitted by No. 800600517 Ct. S. Chaudhary is fake and forged. In the light of above facts article 1 of charge sheet stands fully proved beyond any shadow of doubt on the basis of evidence on record. It reveals that Ct. S. Chaudhary by producing a false fake Court judgment in order to enhance his promo tion as L/NK committed an act of misconduct /misbehaviour in the discharge of hi s duty in his capacity as a member of force. With the establishment of article-I of annexure-I the article-I of annexure-II s tands proved itself. It does not require any more evidence. No. 800660517 CT. S. Chaudhuary could not produce any relevant defence document which could prove that he has not deposited the so called judgment of CJM Sitama rhi dated 11-10-1993. Keeping in view the documentary evidence and defence evide nce available in record, No. 800660517 Ct. S. Chaudhuary has been found guilty o f the charge given in article-I of annexure-1 of the charge sheet beyond any sha dow of doubt. Sd/- 17-07-1997 & & & & & ANIL KUMAR DHAYANI A/C 6TH BN, CRPF, CHUMUKEDIMA. (cid:29) 21. From a perusal of the enquiry report, it becomes evident that no Presenting Officer was appointed to present the case of the disciplinary author