IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No. : 58/2001 Reserved on: 23.4.2007 Date of decision : May 16, 2007 Surinder Kumar …Petitioner. Versus Director General, C.R.P.F. & another. …Respondents Coram The Hon’ble Mr. Rajiv Sharma, J. Whether approved for reporting ?1. Yes For the petitioners : Mr. Dushyant Dadwal, Advocate. For the respondents : Mr. Ravinder Thakur, Advocate. Rajiv Sharma, J. (Oral) This writ petition is filed primarily against the orders dated 11.8.1996, 14.12.1999, 1.2.2000 and 17.7.2000 issued by the respondents. The brief facts necessary for adjudication of this petition are that the petitioner was recruited in the Central Reserve Police Force on 12.9.1971 at Palampur as Sepoy/Constable and was subsequently sent for training at Group Centre, Hydrabad where he was imparted necessary training for a period of six months. The petitioner was served with memorandum dated 26th August, 1992. The petitioner had filed reply to the memorandum on 7.9.1992. The competent authority, not satisfied with the reply filed by the petitioner, appointed Inquiry Officer vide office order dated 22nd September, 1992. The Inquiry Officer submitted the inquiry report (Annexure P-4) on March 16, 1993 to the Commandant. The Commandant supplied the copy of the inquiry report to the petitioner vide 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes. 2 letter dated 17.4.1993. The Commandant vide letter dated 29th April, 1993 has imposed the following penalty: “I impose upon him the penalty of reduction in rank from L/NK- Dvr to Constable (Driver) for a period of two years from the date of receipt of this order. He will get his seniority in the rank of L/NK-Dvr only from the date of his re-promotion to the rank of L/NK-Dvr on completion of reduction period of two years. The service rendered by him prior to his attaining the age of 18 years will be treated as Boys service and it will not be counted as qualifying service for the purpose of pension etc.” The petitioner after the imposition of the penalty on 29th April, 1993 started discharging his duties but abruptly, he was served with a show cause notice on 1st August, 1996 calling upon him to show cause within ten days as to why punishment of removal or dismissal from service should not be inflicted upon him. The petitioner filed detailed reply to the show cause notice on 17th August, 1996. The petitioner was again served with a notice on 14th December, 1999 whereby he was granted an opportunity to submit representation against the award of proposed punishment within a period of 15 days. The petitioner filed reply to the show cause notice on 30.12.1999. Ultimately, vide office order 1st January, 2000 the penalty of removal from service was imposed upon the petitioner. The copy of the same has been placed by the petitioner on record vide Annexure P-10. Feeling aggrieved by the order dated 1st January, 2000, the petitioner preferred the appeal to the Inspector General, Central Reserve Police Force, which was rejected on 17th July, 2000 vide Annexure P-13. 3 Mr. Dushyant Dadwal, Advocate appearing on behalf of petitioner has submitted that once the disciplinary proceedings had culminated into order dated 29.4.1993 whereby the penalty of reduction in rank from Lance Naik Driver to Constable Driver for a period of two years has been imposed, the same could not be substituted by removal from service on 1.1.2000. Mr. Dadwal has further elaborated his submissions by stating that if any order has to be revised as per Rule 29 (d) of the Central Reserve Force Rule, 1955, the same has to be done within a reasonable period. Mr. Dadwal then argued that the penalty of removal inflicted upon the petitioner is disproportionate and the principles of natural justice have also been violated at the time of imposition of penalty of removal as well as the appellate order is not a speaking order. Mr. Ravinder Thakur, Central Government Counsel has supported the order passed on 1.1.2000 and the appellate order dated 17.7.2000. I have heard the parties and perused the record. The disciplinary proceedings have been initiated against the petitioner on the basis of memorandum dated 26.8.1992 which have culminated into office order dated 29.4.1993. It will be apt to reproduce the operative portion of order dated 29th April, 1993 as under: “I take a lenient view keeping in view his length of service and by virtue of powers vested upon me U/S 11(1) of the CRPF Act, 1949 read with Rule 27 (a) of CRPF Rules, 1955 I impose upon him the penalty of reduction in rank from L/NK-Dvr to Constable (Driver) for a period of two years from the date of receipt of this order. He will get his seniority in the rank of L/NK-Dvr only from the date of his re-promotion to the rank of L/NK-Dvr on completion of reduction period of two years. The service rendered by him prior to his attaining the age of 18 4 years will be treated as Boy’s service and it will not be counted as qualifying service for the purpose of pension etc.” The Commandant has taken a very reasonable view on the basis of the inquiry report and the reply(s) filed by the petitioner and on that basis has imposed penalty of reduction in rank from Lance Naik Driver to Constable Driver for a period of two years. The Commandant has also ordered on 29th April, 1993 that the services rendered by the petitioner prior to the age of 18 years will be treated as ‘boy’s service’ and the same shall not be counted as qualifying service for the purpose of pension etc. The petitioner has been recruited in the Central Reserve Police Force on 12.9.1971 and this order dated 29th April, 1993 has been passed after the petitioner has served the Central Reserve Police Force for 22 long years. The only misconduct imputed to the petitioner as per memorandum dated 26th August, 1992 was that the date of birth of the petitioner in the school leaving certificate was recorded as 18.9.1955 which was tempered by him to read as 18.9.1952. The gist of the imputation against the petitioner was that at the relevant time, he was only 16 years old whereas the minimum age for enlistment was 18 years. This Court is of the opinion that on the basis of the inquiry report, the Commandant has imposed the penalty upon the petitioner commensurate to the alleged misconduct. The penalty of reduction in rank from Lance Naik Driver to Constable Driver/Sepoy was a major penalty. The Commandant has also directed the services rendered by the petitioner prior to his attaining the age of 18 years to be treated as boy’s service and the same was not countable as qualifying service for the purpose of pension etc. The matter should have been permitted to attain finality at that stage only. 5 The Deputy Inspector General of Police, Central Reserve Police Force has called upon the petitioner again to submit his reply within ten days on 1st August, 1996 on the same facts as mentioned in the memorandum dated 26.8.1992. The petitioner had given detailed reply to the same but despite the averments contained in the reply filed by the petitioner to the show cause notice, a fresh show cause notice dated 14.12.1999 was issued to the petitioner. The basis for issuing show cause notice was that during the administrative review in respect of the petitioner, it was found that the penalty imposed was not in conformity with the provisions contained in Government of India Instruction No.2 below Rule 11 of the CCS(CCA) Rules, 1965 read with G.O. 49/93 and accordingly Commandant 69 Battalion was directed to submit his case for examination. This exercise has been undertaken by the Deputy Inspector General of Police, Central Reserve Police Force after six years of the passing of the earlier order whereby the petitioner was imposed the penalty of reduction in rank on 29th April, 1993. Consequently, the penalty of removal from service has been imposed upon the petitioner on 1.1.2000. It is evident from the reading of office order 1.1.2000 that the reply filed by the petitioner has not been taken into consideration and following observations have been made: “The denial of charges at this stage has no relevance as the charges levelled against him have already been proved during the course of enquiry. It is evident from D.E. proceedings that ample opportunity was given to him to defend his case and also copies of all documents provided to him. Hence the submission of the individual in his reply to show cause notice is not acceptable. Regarding principles of natural justice, the 6 individual has committed a serious offence in a manner unbecoming of a Government servant. The punishment of reduction in rank awarded by the disciplinary authority, Commandant-69 Bn CRPF is not in conformity with the GOI instructions cited above. I, therefore, in exercise of powers vested vide Rule 29 (d) of CRPF Rules -1955, hereby enhance the punishment of reduction in rank awarded to No.710581076 LNK (Dvr) (now HC/Dvr) Surender Kumar of 113 Bn CRPF by Commandant-69 Bn CRPF, to tht of ‘REMOVAL FROM SERVICE’ with effect from the date of receipt of this order by the individual. The punishment of reduction in rank from LNK(Dvr) to CT (Dvr) for a period of two years with office order No. P.VIII-8/92-69-Estt-II dated 29.04.93 to No. 710581076 LNK (Dvr) (now HC/Dvr) Surender Kumar is set aside.” The non-consideration of reply filed by the petitioner while imposing the penalty of removal has seriously prejudiced him. The misconduct whosoever grave it may appear, but before imposing any penalty upon an employee, the principles of natural justice are to be complied with. The Deputy Inspector General of Police, Central Reserve Police Force has used the expression “Hence the submission of the individual in his reply to show cause notice is not acceptable. Regarding principle of natural justice, the individual has committed a heinous offence in a manner unbecoming of a Government servant.” Thus, the Deputy Inspector General of Police, Central Reserve Police Force has pre-judged the entire issue and had already made up his mind to punish the petitioner without taking into consideration the reply furnished by him. The second aspect which needs consideration as mentioned vide office order 1.1.2000 whether the Government of India Instruction No.2 7 below rule 11 of CCS (CCA) Rules, 1965 read with Government Order No. 49/93 can be invoked by the respondents having there own statutory rules for the Central Reserve Police Force Rules, 1955? The detailed procedure has been provided for imposing penalties on the members of the Central Reserve Police Force as provided in Chapter-VI of the Central Police Force Rules, 1955 (hereinafter referred to as the Rules). Rule 27 of the Rules enumerates procedure for the award of punishment. The Central Reserve Police Force Rules, 1965 is a complete code by itself and it is not understandable why the Inspector General of Police, Central Reserve Police Force has invoked the instruction that too mentioned below Rule 11 of CCS (CCA) Rules, 1965. The Deputy Inspector General of Police, Central Reserve Police Force has invoked rule 29 (d) of the Rules while imposing the penalty of removal from service upon the petitioner. The Deputy Inspector General of Police, Central Reserve Police Force can call for records of award of any punishment and could confirm, enhance, modify or annual the same or make or direct further investigation, but in the present case what is to be seen whether this power can be invoked after a lapse of more than six years. The power of revision under Rule 29 is to be exercised within a reasonable period to avoid hardship to the members of the Central Reserve Police Force. In the case in hand, the penalty of reduction in the rank has been imposed upon the petitioner on 29.4.1993, but this order has been revised resulting in removal to the petitioner from the Force on 1.1.2000 after a lapse of more than six years. As far as memorandum relied upon by the Deputy Inspector General of Police, Central Reserve Police Force is concerned, the same is couched in a very harsh language. It will be arbitrary exercise of powers if the only penalty which on the basis of memorandum can be imposed is 8 either removal or dismissal. The facts of each case are to be seen before taking assistance of instruction No.2 appended below rule 11 of the CCS (CCA)( Rules, 1965. Even though the Central Reserve Police Force Rules, 1955 being complete code even if some assistance is to be drawn from memorandum dated 29.4.1993, the same has to be viewed in a reasonable manner. In the present case the penalty of reduction in the rank has been imposed upon the petitioner vide memorandum dated 29.4.1993, but the same has been substituted on 1.1.2000 to removal from service. Considerable period i.e. six years has elapsed between the two orders i.e. 29th April, 1993 and 1.1.2000. Moreover the petitioner has been recruited on 12th September, 1971 and the first penalty was imposed upon him in the year 1993 after the petitioner has put in 20 years service and thereafter the penalty of removal from service has been imposed upon the petitioner when he had completed 28 years of service i.e. towards the fag end of his career. Nothing has come on record that the career of the petitioner was blemished except that the petitioner had given wrong date of birth to get recruitment at the earliest for which purpose the penalty of reduction in rank was sufficient as inflicted vide order dated 29th April, 1993. If the rigours of instruction 2 are permitted to be applied mechanically it will result in grave miscarriage of justice. The appellate order is also not in conformity with law. It is settled law by now that while disposing of the appeal, the appellate authority has to pass a speaking order after taking into consideration the grounds taken in appeal. In Union of India v. T.R. Verma A.I.R. 1957 S.C. 882 the Hon’ble Supreme Court has held that :- “Stating it broadly and without intending it to be exhaustive, it may be observed that rules of natural justice require that a party should have the opportunity of 9 adducing all relevant evidence on which he relies, that the evidence of the opponent should be taken in his presence, and that he should be given the opportunity of cross- examining the witnesses examined by that party, and that no materials should be relied on against him without his being given an opportunity of explaining them.” The expression ‘reasonable opportunity’ has been explained by the Hon’ble Supreme Court in M/s. Fedco (P) Ltd. and another v. S.N. Bilgrami and others AIR 1960 Supreme Court 415 as under:- ”The requirement that a reasonable opportunity of being heard must be given has two elements. The first is that an opportunity to be heard must be given; the second is that this opportunity must be reasonable. Both these matters are justiciable and it is for the Court to decide whether an opportunity has been given and whether that opportunity has been reasonable. In the present case, a notice to show cause against the proposed order was given; it was stated in the notice that the ground on which the cancellation was proposed was that the licences had been obtained fraudulently; and later on a personal hearing was given. It must therefore be held that the requirement that an opportunity to be heard must be given was satisfied. What the petitioners’ Counsel strenuously contends however is that though an opportunity was given that opportunity was not reasonable. In making this argument he had laid special stress on the fact that particulars of the fraud alleged were not given and an opportunity to inspect the papers though repeatedly asked for was not given. It is now necessary to consider all the circumstances in order to arrive at a conclusion whether the omission to given particulars of fraud and inspection of papers deprived the petitioners of a reasonable opportunity to be heard. There can be no invariable standard for “reasonableness” in such matters except that the Court’s 10 conscience must be satisfied, that the person against whom an action is proposed has had a fair chance of convincing the authority who proposes to take action against him that the grounds on which the action is proposed are either non-existent or even if they exit they do not justify the proposed action. The decision of this question will necessarily depend upon the peculiar facts and circumstances of each case, including the nature of the action proposed, the grounds on which the action is proposed, the material on which the allegations are based, the attitude of the party against whom the action is proposed in showing cause against such proposed action, the nature of the plea raised by him in reply, the requests for further opportunity that may be made, his admissions by conduct or otherwise of some or all the allegations and all other matters which help the mind in coming to a fair conclusion on the question.” It has been held in Ram Chandra Chaudhuri v. Secretary to Govt. of West Bengal and others AIR 1964 Calcutta 265 that:- “Point (3). Conscious as I am that a plea of mala fide rarely succeeds I find that in the present case, the circumstances attending the impugned order are glaring enough to substantiate the allegation. It is commonplace to state that mala fides does not necessarily involve a malicious intention. It is enough if the aggrieved party establishes: (i) that the authority making the impugned order did not apply its mind at all to the matter in question (Vide L.J.J. D’Souza v. State of Bombay, (1956) SCR 382 (387): (S) AIR 1956 SC 531 at p.534); or (ii) that the impugned order was made for a purpose or upon a ground other than what is mentioned in the face of the order of Puranlal Lakhanpal v. Union of India AIR 1958 SC 163 (172). These principles have been applied by the Supreme Court in a case of reversion of a Government servant in the case of 11 Sukhbans v. State of Punjab, AIR 1962 SC 1711, to which I shall have occasion to refer more fully hereafter. In my opinion, the Petitioner before me has succeeded in establishing both.” The Hon’ble Supreme Court in State of Orissa v. Dr. (Miss) Binapani Dei and others AIR 1967 Supreme Court 1269 has held that even an administrative order which involves civil consequences, has to be passed consistently with the rule of natural justice. Their Lordships of Hon’ble the Supreme Court have held as under:- “It is true that some preliminary enquiry was made by Dr. S. Mitra. But the report of that Enquiry Officer was never disclosed to the first respondent. Thereafter the first respondent was required to show cause why April 16, 1907, should not be accepted as the date of birth and without recording any evidence the order was passed. We think that such an enquiry and decision were contrary to the basic concept of justice and cannot have any value. It is true that the order is administrative in character, but even an administrative order while involves civil consequences, as already stated, must be made consistently with the rules of natural justice after informing the first respondent of the case of the State, the evidence in support thereof and after giving an opportunity to the first respondent of being heard and meeting or explaining the evidence. No such steps were admittedly taken, the High Court was, in our judgment, right insetting aside the order of the State.” In M. Chinnappa Reddy v. State of Andhra Pradesh and others AIR 1969 Andhra Pradesh 234 it has been held that :- “The only contention raised by Shri P. Chennakesava Reddy, the learned counsel for the petitioner, is that the charge memo, served upon the petitioner indicates the proposed punishment of dismissal 12 from service. It is a gross violation of the procedure contemplated under the rules and is contrary to the provisions of Article 311 of the Constitution. The Sub- Collector had prejudged the issue and consequently, the whole proceeding is vitiated. In support of this contention, he relied upon the following decisions: S. Manickam v. Supdt. Of Police, Nilgiris, AIR 1964 Mad 375; Mohan Das v. Supdt. Of Police, Khammameth, 1967-1 Andh WR 156; and State of Andhra Pradesh v. R.H. Khan, 1967-2 Andh WR 121. Although this contention has not been raised anywhere before any of the tribunals, nor was it raised specifically in the petition, even then I allowed the learned advocate to raise that point because, in my opinion, that goes to the very root of the question. It is now fairly settled that at the initial stage when charges are framed and served upon the delinquent officer, the punishing authority or the inquiry office should not propose what punishment ultimately he is to be given. That is not the stage when any opinion can either be formed or expressed. It amounts to prejudging the issue, which is always likely to create misapprehension in the mind of the delinquent officer. It is only at the stage when after a proper enquiry the punishing authority forms an opinion that the accused officer has committed the offence that he could propose the punishment and ask the delinquent officer to explain as to why that punishment should not be imposed. At the initial stage, if the charge framed indicates the proposed punishment, it vitiates the proceedings. The abovesaid decisions clearly decides that point, and with respect, I follow those decisions.” The Hon’ble Supreme Court in a land mark judgment A.K. Kraipak and others v. Union of India and others AIR 1970 SC 150 has held that the aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. The Hon’ble Supreme Court has opined as under:- 13 “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. The concept of natural justice has undergone a great deal of change in recent years. In the past it was thought (1) no one shall be a judge in his own cause (Nemo debet ess judex propria causa), and (2) no decision shall be given against a party without affording him a reasonable hearing (audi alteram partem). Very soon thereafter a third rule was envisaged and that is that quasi-judicial enquiries must be held in good faith, without bias and not arbitrarily or unreasonably. But in the course of years many more subsidiary rules came to be added to the rules of natural justice. Till very recently it was the opinion of the courts that unless the authority concerned was required by the law under which it functioned to act judicially there was no room for the application of the rules of natural justice. The validity of that limitation is not questioned. If the purpose of the rules of natural justice is to prevent miscarriage of justice one fails to see why those rules should be made inapplicable to administrative enquiries. Often times it is not easy to draw the line that demarcates administrative enquiries from quasi-judicial enquiries. Enquiries which were considered administrative at one time are now being considered as quasi-judicial in character. Arriving at a just decision is the aim of both quasi-judicial enquiries as well as administrative enquiries. An unjust decision in an administrative enquiry may have more far reaching effect than a decision in a quasi-judicial enquiry. As observed by this Court in