ite Petition No 974 of 1989
Under Article 32 of the Constitution of India
Gobinda Mukhoty SK Bhattacharya and DK Garg for the Petitioner
K Swamy RC Kaushik NP for the Respondents
The Judgement of the Court was delivered by K JAYACHANDRA REDDY J
In this write petition the petitioner has challenged the order passed by the Commandant 11th Battalion CRPF the 4th respondent dismissing the petitioner from service
The petitioner was working as a Head Constable in the Central Reserve Police Force CRPF for short on the relevant date
He joined as a Constable in the year 1963
He was awarded three medals for performing his duty diligently and in the year 1967 he was given an award of Rs 500 and a special promotion while fighting in the 897 Nagaland
He also claims to have been awarded some other such cash awards later
He was promoted as Head Constable later on
In total he has put in 20 years of service
While working as Post Commander of Vijaynagar Post Tirap District two undertrial prisoners who were Burmese nationals were handed over on 29383 till further order by the Circle Officer to the custody of the CRPF Vijaynagar Post of which the petitioner was the Post Commander
On the intervening night of 4th and 5th April 1983 the two Burmese nationals escaped from the custody
It was alleged that the petioner was negligent in his duty and that he did not take immediate action to report the matter to the Circle Officer and that he also connived the escape of the two undertrial prisoners and deliberately dug a tunnel to make it appear that the undertrial prisoners had dug the tunnel and and escaped through the same
On the basis of this incident a chargesheet was served on 18th August 1983 on the petitioner and an enquiry was conducted
The Deputy Superintendent of Police was the Enquiry Officer and he recorded the statements of some witnesses who were then posted under the petitioner
That Enquiry was cancelled and a fresh enquiry was commenced
Three charges were framed which are referred to as Articles in the report of the Enquiry Officer
These are as under Article I No 630110316 HC
LS Pandey of E Coy 11 Bn
CRPF while functioning as post Commander of Vijay Nagar post in distt
Tirap ACP from 11383 to 18683 and while functioning a Guard Commander of the Guard post Vijay Nagar post in Distt
Tirap ACP on 5483 committed an offence of remissness in his capacity as a member of the force US 11 1 of CRPF Act 1949 in that he allowed No 800210049 Ct
Md Shamsher Alam to leave the santry post at 0430 hrs without arranging proper relief which resulted in the escape of 2 UTPs from the prisoner cell
Article II That during the aforesaid period while functioning as post Commander and guard Commander at Vijay Nagar post the said No 630110316 HCLS Pandey of E Coy 11 Bn CRPF committed an offence of neglect of duty in his capacity as a member of the force US 11 1 of CRPF Act 1949 in that he did not take immediate action to report the matter to the Circle Officer of Vijay Nagar and sent Crash 898 Message to Bn Hqrs
When the UTPs were found missing from the UTPs cell at about 0500 hours on 5483
Article III That during the aforesaid period while functioning as postguard Commander of Vijay Nagar post of Distt
Tirap ACP the said No 630110316 HCLS
Pandey of E Coy 11 Bn CRPF committed an offence of grave misconduct in his capacity as a member of the force US 11 1 of CRPF Act 1949 in that he connived the escape of two UTPs and deliberately dug the tunnel to make it appear that the UTPs and deliberately dug the tunnel to make it appear that the UTPs had dug the tunnel and escaped through the tunnel
He did not handover the guard duty roster to next post Commander No 630040452 HCB Lakara thereby destroying the documents to prevent its production as evidence
 The statements of some of the witnesses were recorded
Thereafter the deliquent s statement also was recorded
The deliquent was again given an opportunity to put forward his plea
He pleaded not guilty and the deliquent was asked to enter his defence by filing a written statement and also produce a list of defence witnesses
He accordingly gave a list of defence witnesses and only one def witness was examined
The Enquiry Officer submitted the report holding that the delinquent connived the escape of the two undertrial prisoners and then deliberately dug the tunnel to make it appear that the undertrail prisoners dug the same and escaped and he accordingly recommended that the disciplinary proceedings should be initiated against the petitoner as well as against another Constable Mohd Shamsher Alam
On the basis of this report a dismissal order was passed against the petitioner on 30th June 1984
The petitioner preferred an appeal under Section 28 of the CRPF Rules to the Deputy Inspector General of Police CRPF the appellate authority but the same was dismissed on 23rd October 1984
A further revision filed by him to the Inspector General of Police CRPF was also dismissed on 2586
During all these enquiries the plea of the petitioner had been that on 29383 the two undertrail prisoners were entrusted late in the evening and he was not given full strength of 40 Constables and that there were only 11 Constables and it was dark and raining heavily and that neither torches nor candle sticks nor kerosene oil were available
There were also no locks and stationery and there were no proper arrangements of the building where the two undertrial prisoners could be kept in custody and he also sent a message that more persons should be deputed but no 899 steps were taken
With regard to the enquiry his grievance has been that suddenly area of enquiry was shifted from Khonsa to Logding 50 kms
away and that all the defence witnesses cited by him were not examined
He has also stated that the first enquiry was dropped and he was exonerated and on the whole the enquiry was not fair and not according to the Rules and that the entire proceedings were mala fide in as much as the first enquiry officer dropped the enquiry and exonerated the petitioner from all charges
In this writ petition also the same submissions are put forward
In the counter affidavit filed on behalf of the respondents it is stated that full opportunity was given to the petitioner during the departmental enquiry and that venue of enquiry was shifted from Khonsa to Longding only to avoid unnecessary delay in the enquiry and that the petitoner never objected to the shifting of the place of enquiry
It is also submitted that the petioner was given full opportunity to produce the defence witnesses and notices were also served on them but they did not appear
Regarding the first enquiry it is stated that the same was not completed by the Enquiry Officer
Therefore a fresh enquiry was ordered and that it cannot be said that by cancellation of the first enquiry the petitoner was exonerated
It is further submitted that the petitioner was given full opportunity and that he duly participated in the enquiry and no prejudice whatsoever was caused
On a careful examination of the affidavit and the counter affidavit and the allegations as well as the denials we are of the opinion that there are a number of disputed questionss of fact
The learned counsel for the petitoner however submitted that under Article 32 even disputed questions of fact can be gone into by this Court
He relied on a judgement of this Court in Kavalappara Kottarathil Kochunni Moopil Nayar vs The State of Madras and Others 1959Suppl
2SCR 316 where it is observed that Clause 2 of article 32 confers power on this Court to issue directions or orders or writs of various kinds referred to therein
This Court may say that many particular writ asked for is or is not appropriate or it may say that the petitioner has not established any fundamental right or any breach thereof and accordingly dismiss the petition
In both cases this Court decides the petition on merits
But we do not countenance the proposition that on an application under article 32 this Court may decline to entertain the same on the 900 simple ground that it involves the determination of disputed questions of fact or on any other ground
If we were to accede to the aforesaid contention of learned counsel we would be failing in our duty as the custodian and protector of the fundamental rights
We are not unmindful of the fact that the view that this Court is bound to entertain a petition under article 32 and to decide the same on merits may encourage litigants to file many petitions under article 32 instead of proceeding by way of a suit
But that consideration cannot by itself be a cogent reason for denying the fundamental right of a person to approach this Court for the enforcement of his fundamental right which may prima facie appear to have been infringed
Further questions of fact can and very often are dealt with on affidavits In support of the same proportion the learned counsel for the petitioner also relied on the decision of this Court in Smt
Ujjam Bai vs State of Uttar Pradesh 1963 1SCR 778
Having carefully examined the entire records and the submissions made we do not think that it is necessary to examine the scope of Article 32 in this case
Since the petitioner who has been in service for 20 years has been dismissed we thought fit even to examine and their statements clearly establish the charges framed against the petitioner
That apart undisputedly the two Burmese national were entrusted to the custody of the petitioner and they escaped and the responsibility entirely lies with the petitioner who was the Post Commander of Vijaynagar Post
No doubt he pleaded that the arrangements were inadequate and the two undertrial prisoners took advantage dug a tunnel through which they managed to escape
The Dy
Superintendent of Police who visited the premises inspected the same and made a report and in he said report he clearly observed that there was certainly some negligence on the part of CRPF men for not noticing the activities of the undertrial prisoners and therefore an enquiry was necessary
In the enquiry report the statements of the witnesses namely the Constables who were on duty are referred to in detail and it is held that the petitioner was the Guard Commander till 5483
The Enquiry Officer has also referred to the records in this regard and on the basis of the oral an documentary evidence he concluded that the petitioner committed an offence of neglect of duty and that he did not take immediate action to report the matter to the Circle Officer
What is more the statements of 901 PWs 1 3 4 5 6 8 and 9 go to show that there was no tunnel at all when they reached the spot of hearing the alarm
It is in the statement of PW 2 that he saw the petitioner digging the tunnel
In view of these clear statements made by the Constables who were on duty alongwith the petitioner when the two Burmese nationals escaped the Enquiry Office was justified in recommending disciplinary action
Under these circumstances we see no force in the submission that the enquiry was not properly conducted and that prejudice was caused to the petitioner
After having perused all the records carefully we are unable to find any clinching circumstances on the basis of which it can be said that the petitioner was not negligent in discharge of his duties and that he did not commit any act of misconduct
On the other hand we find that the statements of PWs 1 3 4 5 6 8 and 9 coupled with that the PW 2 falsify the plea of the petitioner that the undertrial prisoners themselves dug the tunnel and managed to escape
As already mentioned the learned counsel also submitted that the enquiry is vitiated inasmuch as proper opportunity was not given to the petitioner as all the defence witnesses were not examined and that place of hearing was shifted because of which the witnesses could not be produced and that the cancellation of the first enquiry amounted to exoneration
therefore according to the learned counsel for the petitioner the impugned order of dismissal should be quashed as there is clear violation of his fundamental rights guaranteed under Articles 14 and 16 of the Constitution of India
In this context he relied on decisions of this Court in Tata Oil Mills Co Ltd vs Its Workmen  State of Uttar Pradesh vs Om Prakash Gupta  State Bank of India vs RK Jain 7 Ors 1972 1 SCR 755 and State of Andhra Pradesh  Ors
vs Chitra Venkat Rao  In all these cases it is laid down that such enquiries must be conducted in accordance with the principles of natural justice and that a reasonable opportunity to deny the guilt and to cross examine the witnesses produced and examined should be given and that the enquiry should be consistent with the rules of natural justice and in conformity with the statutory rules prescribing the mode of enquiry
We have already referred to the details of enquiry conducted in the instant case and we are unable to say that there was any violation of principles of natural justice
It is however urged that in these matters merely following the rules in the procedure established is not enough but the principles of natural justice must also necessarily be followed
What this Court in a number of cases has been observed is that what particular rule of natural justice should apply to a given case depends to a 902 great extent on the facts and circumstances of the case
Reliance has also been placed on some of the decisions of this Court
In AK Kraipak and Others vs Union of India and Others it is pointed out that Para 20
The aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice
These rules can operate only in areas not covered by any law validly made
In other words they do not supplant the law of the land but supplement it
xx xx xx What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case the framework of the law under which the enquiry is held and the constitution of the Tribunal or body of persons appointed for that purpose
Whenever a complaint is made before a court that some principle of natural justice had been contravened the court has to decide whether the observance of that rule was necessary for a just decision on the facts of that case
 In Capt
Harsh Appall vs Union of India and Others  the contention was that before confirming the sentence by the court material under the Army Act an opportunity should have been given to the delinquent officer
In respect of this contention is observed that to insist that the confirming authority should give a hearing to the petitioner before it confirmed the sentence passed by the Court Martial is a contention which cannot be accepted
To accept this contention would mean that all the procedure laid down by the Code of Criminal Procedure should be adopted in respect of the Court Martial is a contention which cannot be accepted in the face of the very clear indications in the Constitution that the provisions which are applicable to all the civil cases are not applicable to cases of Armed Personnel emphasis supplied As observed in Khemchand vs Union of India to which there is a reference in some of the decisions cited above all that the courts have to see is whether there was non observance of any of 903 those principles in a given case and whether the same has resulted in defecting the course ofjustice and that what principles of natural justice should be applied in a given case depends on the facts and circumstances of that case vide State of Uttar Pradesh vs Om Prakash Gupta In our view even applying all these principles the petitioner has failed to prove that the enquiry is vitiated in any manner
The last submission of the learned counsel is that the punishment of dismissal is wholly disproportionate to the alleged act of misconduct
We are unable to go to the extent of holding that the punishment by way of dismissal is arbitrarily awarded
But there are certain mitigating circumstances
The petitioner joined as a Constable in the year 1963 and he was awarded medals for the performing his duties diligently
He has put in 20 yard of service and no act of negligence or misconduct is attributed to him at any time before during this long service
Under these circumstances if the petitioner makes any representation the concerned authority may consider the question of awarding a lesser sentence
With the above observations the writ petition is dismissed
GN Petition dismissed


Summary:
The appellantpetitioners joined the Army as Emergency Commissioned Officers in 1963 and were discharged during the year 1967 to 1970
After their discharge they joined the Commercial Tax Service under the Respondent State on selection by the State Public Service Commission
It was provided under R35 of the Tamil Nadu State and Subordinate Service Rules that their seniority in the department would be fixed in the order of preference indicated by the Service Commission and not with reference to the service in the Armed Forces
However in respect of similar candidates who were appointed as Assistant Surgeons the government order provided that their seniority would be fixed by allotting them the year in which they would have been appointed to the post at the first possible attempt after the date of joining military servicetraining
Thus the concession of seniority reckoned with reference to date of appointment in the Army which has been extended to Asstt
Surgeons was denied to similar candidates selected to other services categorised as non technical
On a suggestion made by the Public Service Commission the 846 Respondent State passed orders extending the benefit to the other services also
The Respondent State further extended the benefit of fixation of seniority to all such candidates irrespective of their year of recruitment
The appointing authorities were directed to take steps to refix the seniority of such officials after issuing notice to all the affected parties
Accordingly notices were issued and in response thereof representations were received by the Respondent State which after due to consideration decided not to implement the orders extending the benefits to other candidates in the non technical category
Aggrieved by the said order issued on 381980 the affected persons filed Writ Petitions before the High Court
A Single Judge allowed the Writ Petitions holding that under orders dated November 16 1976 and June 15 1977 which were passed on the recommendations of the Public Service Commission the petitioners had acquired certain rights in the matter of seniority and promotion and since the Government order dated 331980 took away the said right of the petitioners they should have been afforded an opportunity of hearing before passing the said order
On appeal the Division Bench set aside the judgement of the Single Judge
In the appeal and special leave petitions preferred against the said judgment it was contended that it was permissible for the State Government to issue administrative instructions with regard to determination of the seniority and to remove the lacuna which was found in the existing rules viz discrimination between the MedicalEngineering service and other services
Dismissing the matters this Court HELD 1
Although the Government cannot amend the statutory rules by Administrative instructions if the rules are silent on any particular point the Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed
In the instant case it cannot be said that on the date of issue of orders dated November 16 1976 and June 15 1977 the rules were silent on the matter of fixation of seniority of persons recruited to the Tamil Nadu Commercial Tax Service
852E F Sant Ram Sharma vs State of Rajasthan  Anr  of India vs HR Patankar  Ors 1985 1 SCR 400 and State of Gujarat vs Akhilesh C Bhargav  Ors  referred to
847 2
There was an express provision in the statutory rules viz Rule 35 of the Tamil Nadu state and Subordinate Service Rules providing that seniority shall be fixed on the basis of the date of appointment
By orders dated November 16 1976 and June 15 1977 the said principle for fixation of seniority contained in rule 35 was sought to be altered in respect of Emergency Commissioned OfficersShort Service Regular Commissioned Officers and the seniority was sought to be fixed on the basis of a different criterion namely by treating them as belonging to the year in which they would have been appointed to the posts in their first possible attempt after the date of joining military duty
This was inconsistent with the principle for fixing the seniority contained in rule 35 and this could only be done by suitably amending the said rules not by issuing administrative instructions
The directions contained in orders dated November 16 1976 and June 15 1977 were invalid being contrary to the provisions contained in Rule 35
Since the said orders were invalid the appellant petitioners could not claim any right on the basis of the said orders and there was therefore no question of affording them an opportunity of a hearing before passing the order dated March 3 1980
In so far as appointments to Medical and Engineering Services are concerned suitable amendments were made in the relevant Service Rules relating to those services whereby the benefit of the Army service was given in the matter of fixation of seniority
No similar amendment has been made in the rules governing the non technical services eg Commercial Tax Service to which the appellant petitioners were appointed
853C G 3
Emergency Commissioned OfficersShort Service Regular Commissioned Officers who have joined Medical and Engineering Services of the Respondent State were technically qualified in their fields and they had worked in the Army in the same field in which they are now employed in the State service
The benefit of the experience gained by them during the period of their service in the Army on the post viz MedicalEngineering held by them was a vailable to the State when they joined the MedicalEngineering Services of the Respondent State
The nature of the duties discharged by the appellantpetitioners in the Army were different from the duties they are now required to perform as Commercial Tax Officers in the State service
It cannot therefore be said that the Emergency Commissioned officersShort Service Regular Commissioned Officers who have joined the medical and Engineering Service of the State and the appellantpetitioners who have joined the Commercial Tax Department of the State are persons similarly situated in the matter of determination of seniority and for counting their earlier Army Service for that purpose
854B D 848 Union of India  Ors etc
vs Dr section Krishna Murthy  Ors etc 1989 Supp 1 SCR 275 distinguished