Farooq Ahmad Wani v. Union of India

impugned order on this ground alone is bad in law and liable to be set aside. That the impugned order is in contravention with the principle of natural justice. The punishment of Compulsory Retirement is a major punishment whereas the offence of second marriage has not even been mentioned as a minor offence, let alone a major one. The degree of punishment, clearly, is not commensurate with the offence committed by the petitioner herein. That the impugned order on this ground alone is liable to be set aside. That the impugned order suffers from vice and malice in as much as it presents the color of a witch hunt. No action was taken against the immediate senior, or the commanding officer who failed to provide proper security to the petitioner herein while he went out for purchases, or against the persons manning the gate, who let him go out all alone in a naxal effected area. He was also not given any audience by the DIG for filing appeal. This Fundamental Right guaranteed to the petitioner herein under Article 14. On one hand the authorities base the decision on the strict discipline, integrity and chain of command of the force, and on the other hand take no action, whatsoever, against any other person. The authorities cannot approbate and reprobate at the same time. The impugned order on this ground alone is liable to be set aside. That while passing the impugned order, respondent no 5 did not take into consideration the unblemished record of the petitioner herein or any of the representations seeking forgiveness, and passed a harsh order as to Compulsory Retirement. That the mentioning of petitioner as a surrendered militant clearly depicts a prejudice in the mind of the authority considering the appeal, which being violative of Article 14 of the constitution, is also against the principles of natural justice. That the purpose of a surrender policy is to welcome back the misguided youth without any aspersion being cast. Even still, it is only after proper verification by the relevant authorities that a person is employed and confirmed by the government. Raising such an issue after almost two decades of service, that also of someone with an unblemished record, depicts the non-application of mind along with a bias against the petitioner, with the sole purpose of humiliation. That the deliberate mentioning of the petitioner as a surrendered militant has cast an aspersion on any b. c. d. e. f. Abdul Rashid Ganaie I attest to the accuracy and authenticity of this document 4 SWP No. 487/2018. g. future employment to which the petitioner may have had the opportunity to apply as also his day to day activities, especially, when living in the troubled region of J&K. That the appellate authority has raised another issue by stating that the order of compulsory retirement was awarded for violation of rule 15 and in accordance with rule 27 of CRPF Rules, 1955, whereas the order of compulsory retirement states that the punishment has been awarded for offence under section 11(1) of the CRPF Act, 1949. The appellate authority, on its own, cannot raise a new ground for adjudging the punishment, more so, when the issue was known to the authority passing the order of Compulsory Retirement. It shows a dichotomy in the view with the sole purpose of bias against the petitioner.”

4. Reply to the petition has been filed by the respondents wherein, it has been stated that the petitioner came to be appointed in CRPF on 23rd July, 1997 and while posted in D/26, that petitioner left the camp and married one lady namely Rehana Khatoon D/O Mustakim Ansari, without seeking permission in this regard from the competent authority. It is being next stated that the petitioner had applied for 15 days casual leave on 19.11.2016 for participating in the marriage ceremony of his nephew w.e.f. 21.11.2016 to 08.12.2016, which came be granted in his favour by the competent authority and while applying such leave, the petitioner had furnished his communication address as village Kuligunj, District, Kupwara, however it got revealed upon receipt of a confidential information that a CRPF personnel with identification similar to that of the petitioner was found in the house of one Mustakim Ansari of village Machro- Pokhari, District-Bokaro (Jarkhand), whereupon a search party was dispatched and the petitioner was found Abdul Rashid Ganaie I attest to the accuracy and authenticity of this document 5 SWP No. 487/2018. therein the house of the said Mustakim Ansari and was brought back to the unit. It is being next stated that the petitioner after being brought to the unit confessed that he has solemnized marriage with the daughter of said Mustakim Ansari on 17th October, 2016 whereupon a preliminary enquiry was ordered by the Commandant of the battalion on 25th November, 2016 and on the basis of the findings of the said enquiry, a departmental enquiry was ordered on 28th January, 2017, and an Enquiry Officer as well came to be appointed on 22nd March, 2017, where-after the Enquiry Officer conducted the enquiry and after providing ample opportunity to the petitioner to defend his case. It is further stated that during the course of the said enquiry, the petitioner confessed that he had married the daughter of the said Muastikin Ansari and that the said marriage was his second marriage and has been performed by him without seeking permission from the competent authority. It is being next stated that the charge framed against the petitioner during the departmental enquiry were found to have been proved, whereupon the completion of the said enquiry, the petitioner was handed over the report of enquiry and was called upon to submit his representation, if any, against the enquiry report, and representation submitted, the petitioner accepted both the charges framed against him It is being next stated that after considering the enquiry report the disciplinary authority and the length of service rendered by the Abdul Rashid Ganaie I attest to the accuracy and authenticity of this document 6 SWP No. 487/2018. petitioner in terms of the order under challenge, ordered compulsory retirement of the petitioner from the service. It is being lastly stated that aggrieved of the order under challenge, the petitioner preferred an appeal before the Appellate authority which however, was rejected on 29th December, 2017. Heard the learned counsel for the parties and perused the record.

5. Before proceeding to advert to the issues involved in the case, it would be appropriate and advantageous to refer to the Rule 27 of the Central Reserve Police Force Rules, 1955, being relevant herein.

6. Before proceeding further in the matter a reference to the law laid down by the Courts qua the holding of a departmental enquiry against a delinquent official would be appropriate and advantageous hereunder:- It is beaten position of law that a departmental enquiry is quasi-judicial in nature and an Enquiry Officer acts as an independent adjudicator and is bound to act fairly, impartially in good faith and without any bias. It is equally settled position of law that when a departmental enquiry is held against a delinquent employee, it cannot be treated as a casual exercise and a procedure provided for holding of such enquiry though may be procedural in character yet same is conceived in the interest of the delinquent employee, thereby assuming a mandatory character. It is also consistent view of the courts in the matter of holding of a departmental enquiry against a delinquent employee that the principles of natural justice are to be observed fairly and not with closed mind, in order to ensure that not only justice is done but manifestly seems to have been done, in that, the Government servant who is proceeded Abdul Rashid Ganaie I attest to the accuracy and authenticity of this document 7 SWP No. 487/2018. against in a departmental enquiry, such enquiry may culminate in imposition of punishment including dismissal/removal from the service. A reference in this regard to the judgment of Apex Court passed in case tiled as Union of India & Ors. v. Ram Lakhan Sharma, reported in 2018 V.7 SCC 8670 would be relevant. Further the Apex Court in case tilted as United Bank of India v. Biswanath Bhattacharjee report in [(2022) 13 Supreme Court cases 329] at paragraph 21 has laid down as under:- “…this court has consistently ruled that where the findings of the disciplinary authoirry are not based on evidence, or based on a consideration of irrelevant material, or ignoring relevant material are mala fide, or where the findings are perverse or such that they could not have been rendered by any reasonable person placed in like circumstances, the remedies under Article 226 of the Constitution are available, and intervention, warranted.….” The Apex Court in case titled as Union of India v. Constable Sunil Kumar, reported in 2023, Live-law, Supreme Court, page 49, has also ruled that the power of judicial review can be exercised if the punishment of dismissal is passed or is based upon perverse material/findings or is irrational.

7. Keeping in mind the aforesaid provisions of Rule 27 of the Rules 1955 and the law laid down in the judgments supra and reverting back to the case in hand, the allegation levelled against the petitioner by the respondents while directing holding of a departmental enquiry is that the petitioner has solemnized second marriage without permission from the competent authority. Abdul Rashid Ganaie I attest to the accuracy and authenticity of this document 8 SWP No. 487/2018.

8. Record would reveal that the departmental enquiry came to be ordered qua the said charge/s against the petitioner on 28th January, 2017. Record would also reveal that the respondent-Commandant issued a composite order of holding of enquiry on 28th January, 2017, accompanied with the articles of charge/s, calling upon the petitioner herein to submit his written statement of defence and also whether he would desire to be heard in person or not against the charges which the departmental enquiry is proposed to be held against him in response to which the petitioner herein has submitted a written request to explain the imputation of charge framed against him, however, the said request of the petitioner seemingly has not been acceded to by the respondent-Commandant being not satisfactory, resulting into appointment of an Enquiry Officer, namely Mithilesh Kumar in terms of order dated 22nd March, 2017, besides appointing a presiding Officer. Record would also reveal that the enquiry came to be started by the Enquiry officer on 25th March, 2017, and the Enquiry Officer provided an opportunity to the petitioner to nominate a defence assistant to which he denied where after the Enquiry Officer thereafter have had conducted a preliminary enquiry on 27th March, 2017, asked the petitioner whether he pleads guilty or not guilty. In response to which, the petitioner though is shown to have accepted both the charges yet the Enquiry Officer proceeded to examine the witnesses and the petitioner though is stated to have been provided a chance to cross examine the said witnesses, the petitioner is stated to have denied the same. Record would also suggest that the Enquiry Officer thereafter has examined the petitioner and provided him an opportunity to produce the witness and documents in his self-defence where after the petitioner seemingly has again been re-examined by the Enquiry Officer. Abdul Rashid Ganaie I attest to the accuracy and authenticity of this document 9 SWP No. 487/2018. It also emerges from the perusal of the record that the Enquiry Officer concluded the enquiry proceedings and submitted the enquiry report to the Disciplinary Authority on 27th June, 2017, whereupon the Disciplinary Authority in terms of the impugned order, ordered the compulsory retirement of the petitioner from the service.

10. As is manifest from the above, the procedure followed by the respondents in holding the enquiry against the petitioner, it emerges that the respondents have observed the provisions of the rule in complete breach and have not conducted the enquiry inline and in tune with the provisions of rule 27 supra. Suffice is to show that as per the version of the respondents, the petitioner pleaded guilty to both the charges, as such, in terms of Rule 27, there was no occasion for the Enquiry Officer to have proceeded with the examination of witnesses but was supposed to close the proceedings and thereafter provide a chance to the petitioner to file a written statement. Even if, it is assumed that the petitioner had pleaded guilty to the charge, the Enquiry Officer ought to have recorded least his satisfaction that the plea of guilty pleaded by the petitioner has been pleaded by him after understanding the accusation.

11. It is significant to mention here that consistent view of the Courts in the matter of holding of departmental enquiry is that the same is not a hallow process and procedure or requirement but, is of significant and vital importance in that, a departmental enquiry may culminate into imposition of a punishment of dismissal or removal from service of the delinquent employee, law requiring that such an enquiry should be held properly, Abdul Rashid Ganaie I attest to the accuracy and authenticity of this document 10 SWP No. 487/2018. independently, fairly and in accordance with the procedure, prescribed which however, is missing in the instant case..

12. Viewed thus, for what has been observed, considered and analyzed hereinabove, the instant petition deserves to be allowed.

13. Accordingly, the petition is, allowed and the impugned orders bearing No’s P8-1/2017/26-Installaion-02 dated 17.07.2017 and . R.XII.26/2017- EC-I dated 29.12.2017, passed by the respondents 4 & 5 herein, are quashed, as a consequence of which the respondents are commanded to reinstate the petitioner back in service and extend him all the benefits to which he would be entitled thereto except the salary for the period, the petitioner remained out of service consequent to the order dated

17.07.2017.

14. Record produced by the learned counsel for the respondents is returned back in the open Court. (Javed Iqbal Wani) Judge Srinagar 20.03.2025. “Ab. Rashid PS” Whether the judgment/order is speaking; Yes/No Whether the judgement/order is reportable; Yes/No Abdul Rashid Ganaie I attest to the accuracy and authenticity of this document