Bhoop Singh v. Union of India & Ors.

of all procedural norms. If such disciplinary action is vitiated by denial of fundamental rights or a jurisdictional error or an error of law apparent on the face of the record or a violation of the principles of natural justice, judicial review under Article 226 of Constitution is not excluded [S.N.MUKHERJEE V/s. UNION OF INDIA[1] and UNION OF INDIA V/s. HIMMAT SINGH CHAHAR[2]]. The writ petition on hand is a case in point. The petitioner entered the service of the Central Reserve Police Force (CRPF) as a Constable on 01.12.1990. While stationed at Marriguda outpost, Nalgonda District, he was subjected to disciplinary proceedings under Memorandum of Charge dated 02.02.1998. The gravamen of the charge was that while he was detailed for sentry duty, at about 2120 hours on 14.12.1997 he fired one round from his service rifle intentionally without any provocation or authority, and though the bullet did not hit anybody in or around the camp, it could otherwise have proved fatal. The petitioner was therefore alleged to have committed an act of misconduct punishable under Section 11(1) of the CRPF Act, 1949 (for brevity, ‘the Act of 1949’). An enquiry was instituted in the matter. The Enquiry Officer submitted his report dated 28.07.1998 wherein he found that the petitioner while on duty on 14.12.1997 did not unload his rifle upon returning to the camp as he immediately went to attend a nature call by leaving his loaded rifle on his bed. He further found that while unloading the rifle, the petitioner fired one round accidentally. Having said so, the Enquiry Officer held that the petitioner had committed an act of misconduct punishable under Section 11(1) of the Act of 1949. Basing upon this self-contradictory report, the disciplinary authority, the Commandant-32 Battalion, CRPF, Hyderabad, passed Office Order dated 24.08.1998 wherein he stated as follows: “4. It has been revealed from the enquiry that on 14- 12-1997 at 2120 hrs. while he was sentry duty fired one round from his service rifle Butt No.16, body No.87205 intentionally without any provocation or authority at Marriguda outpost of B/32 Bn., CRPF.

5. From the above, it has been established that the delinquent has fired one round from his service rifle butt No.16, body No.87205 at 2100 hrs. intentionally without any provocation or authority, while he was on sentry duty at Marriguda out post of B/32 Bn. CRPF. Hence the charge levelled against the delinquent under Article-I has been proved.” The disciplinary authority thereafter opined that the petitioner had shown scant regard for the good order and discipline of the force as he had fired one round from his service rifle intentionally without provocation or authority on 14.12.1997 while he was on sentry duty, which was a very serious offence. He therefore opined that it was a fit case for dismissal from service and accordingly passed an order to that effect. In appeal, the Deputy Inspector General of Police, CRPF, Hyderabad, by order dated 13.03.1999, came up with a new finding that the petitioner had fired his service rifle under the influence of liquor. The appellate authority stated to the effect that it was brought out during the course of the domestic enquiry that the petitioner was under the influence of liquor when one round was fired from his rifle, but medical examination could not be carried out due to non- availability of facilities near the outpost. Having said so, the appellate authority concluded that the utter negligence of the petitioner in handling arms/ammunitions which resulted in the firing of one round from his service rifle, coupled with the fact that the charge levelled against him was proved during the course of the domestic enquiry, compelled him not to interfere with the order of the disciplinary authority. Significant to note, no finding with regard to the petitioner being under the influence of liquor or the failure on the part of the authorities to subject him to medical examination owing to lack of facilities finds mention in the enquiry report. In fact, no charge was framed to this effect. More importantly, no charge of negligence was levelled against the petitioner though such a finding was recorded by the appellate authority. Aggrieved by the appellate authority’s order, the petitioner preferred a Revision before the Inspector General, Southern Sector, CRPF, Hyderabad. However, the same was rejected by revisionary authority under order dated 15.12.1999. Perusal of the order reflects that the said authority reiterated the appellate authority’s finding on the alleged negligence on the part of the petitioner. With regard to the petitioner’s contention that he had not been charged with being under the influence of alcohol at the time of the incident, the revisionary authority rejected the same on the ground that the petitioner himself had accepted during the domestic enquiry that he had fired one round under the influence of liquor. The revisionary authority confirmed that negligence had been proved and therefore the petitioner could not be acquitted. He accordingly approved the dismissal order passed by the disciplinary authority against the petitioner. These are the orders subjected to challenge in this writ petition. The aforestated facts demonstrate that the actual charge levelled against the petitioner was only that he had fired one round from his service rifle on the relevant date intentionally without any provocation or authority. The finding of the Enquiry Officer was that he had fired one round accidentally. Thus, ex facie, the charge levelled against the petitioner was not substantiated. Despite the same, the Enquiry Officer held that the petitioner had committed an act of misconduct. Acting upon this self-contradictory finding of the Enquiry Officer, the disciplinary authority recorded a finding that the petitioner had fired one round from his service rifle intentionally without any provocation or authority. This finding, according to the disciplinary authority, was revealed during the course of the enquiry. Significantly, no such finding is reflected in the enquiry report. Compounding this discrepancy, the appellate authority went beyond the brief in the appeal and introduced a new finding to the effect that the petitioner was under the influence of alcohol at the time of the incident. Neither was such a charge framed against the petitioner nor was a finding rendered to that effect by the Enquiry Officer. Further, the appellate authority came up with another new finding against the petitioner and held that his act could be construed to be one committed due to utter negligence/ carelessness. ‘Negligence’ was not part of the charge levelled against the petitioner. Having come up with this unilateral new charge and finding for the first time, the appellate authority opined that the utter negligence on the part of the petitioner in handling arms/ammunitions, resulting in the firing of one round from his service rifle, compelled him to confirm the order of the disciplinary authority. The revisionary authority unfortunately did not pay heed to the irregularities committed by the authorities below in building up the case against the petitioner from stage to stage and confirmed the punishment imposed upon him by baldly stating that negligence had been proved and therefore, the petitioner could not be acquitted. The revisionary authority also confirmed the finding that the petitioner had fired one round under the influence of liquor. Trite to state, it is a settled proposition of law that charges framed against a delinquent employee must be spelt out in clear, definite and specific terms. The employee is entitled to be put on notice as to the exact misconduct alleged against him as it would be difficult for a delinquent to meet vague charges. Even if the delinquent does not protest that the charges are vague it would not save the enquiry from being vitiated for the reason that there must be fair play in action, particularly, in respect of an order involving adverse or penal consequences [SAWAI SINGH V/s. STATE OF RAJASTHAN[3]]. The enquiry must be conducted in strict adherence to the statutory provisions and the principles of natural justice. The charges should be specific, definite and giving details of the incident which formed the basis of the charges. No enquiry can be sustained on vague charges. The enquiry has to be conducted fairly, objectively and not subjectively. Finding should not be perverse or unreasonable, nor the same should be based on conjectures and surmises. There is a distinction in proof and suspicion. Every act or omission on the part of the delinquent cannot be a misconduct. The authority must record reasons for arriving at the finding of fact in the context of the statute defining the misconduct [UNION OF INDIA V/s. GYAN CHAND CHATTAR[4]]. Disciplinary action fulfilling the above parameters would pass muster and withstand judicial scrutiny. Visiting a new charge or a new finding unilaterally upon the delinquent employee during the course of the disciplinary proceedings would obviously not be in keeping with the aforestated settled tenets of service jurisprudence. In the present case, the orders passed by the various authorities put it beyond doubt that the case against the petitioner was built up from stage to stage and by the time the order was passed by the revisionary authority not only were new charges thrust upon the petitioner, but findings were also recorded against him. These charges did not find mention either in the charge sheet or the enquiry report. The action taken by the respondent authorities against the petitioner is therefore vitiated by procedural irregularities and a blatant violation of the principles of natural justice. The orders imposing and confirming the punishment of dismissal from service visited upon the petitioner are accordingly set aside and the respondents are directed to reinstate the petitioner in service with continuity of service, but without back wages as he did not render any service during this period and there is no indication that he remained unemployed in the meanwhile. This continuity of service shall be reckoned notionally for the purpose of terminal benefits and for the purpose of fixation of the petitioner’s pay upon his reinstatement. The writ petition is allowed to the extent indicated above. There shall be no order as to costs. ---------------------------- SANJAY KUMAR, J. ______OCTOBER, 2011. PGS