1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. CIVIL WRIT PETITION NO.1685/1996 Sube Singh vs. Union of India & Ors. Date of order : 3/3/2010. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri J.K. Yadav for the petitioner. Shri Kunal Rawat ) Shri Sumit Khandelwal) for the respondents. ****** Heard learned counsel for the parties. This writ petition has been filed by the petitioner Sube Singh who was working as Lance Naik when the impugned order of penalty was passed against him. A joint enquiry was initiated against the petitioner and Lance Naik Suraj Bhan with a memorandum of charge sheet being served under Section 27 of the Central Reserve Police Force Rules, 1955 (for short-CRPF Rules). Charge no.1 was to the effect that they in the capacity of members of the forces under Section 11(1) of the Central Reserve Police Force Act, 1949 (for short-CRPF Act) consumed liquor while on Naka duty on 12.8.1993 from 1100 hours to 1200 hours. Charge no.2 was that they after consuming liquor he quaralled with Guard Commander NK Ajit Kumar Molakar of 3rd Batallion and 2 charge no.3 was to the effect that under the influence of alcoholic drink, Lance Naik Suraj Bhan took rifle from the petitioner and aimed it at Platoon Commander Mamman Singh and threatened him with dire consequences. There was a bullet in the chamber of the rifle. The fourth and last charge was that petitioner knowing fully well that his rifle is loaded with bullet, gave it to Lance Naik Suraj Bhan with a mala fide intention to threat the Platoon Commander Mamman Singh of dire consequences. Shri J.K. Yadav, learned counsel for the petitioner has argued that the enquiry was not conducted in consonance of the principles of natural justice inasmuch as the provisions of CRPF Rules especially as contained in Rule 27 thereof were not followed. Learned counsel submitted that it was necessary for the respondents to obtain previous consent of I.G.P. if at all they wanted to hold a joint enquiry. There being no approval from the competent authority, the enquiry was incompetent and illegal. Learned counsel submitted that Rule 27(d)(1) of the CRPF Rules were thus violated. The 3 impugned order of penalty is therefore liable to be set aside. It is argued that the enquiry officer also did not adhere to other rules of CRPF Rules of 1955. The enquiry officer in the enquiry report has not discussed the statement of witnesses and straightaway jumped to the conclusion by just referring to the page numbers of the proceedings on which their statements contained. This cannot therefore be described as an enquiry report because at every stage of discussion, no one is expected to read the enquiry report in conjunction with relevant file of the enquiry proceedings. Learned counsel submitted that the findings recorded by the enquiry officer are contradictory in nature. The enquiry officer has not distinguished the charge against the petitioner from that of those against co-delinquent Suraj Bhan whose misconduct was comparatively more serious in view of the fact that he was charged of having pointed the gun at the Platoon Commander Mamman Singh and threatened him with dire consequences. Learned counsel in order to bring home his 4 submissions took the court through the enquiry report to show the summary manner in which the findings have been recorded by the enquiry officer. Learned counsel submitted that all these arguments were raised by him before the appellate authority including the argument about gravity of penalty. It was argued that the petitioner has served respondent for more than 14 years and had unblemished service record. There was no previous penalty against him even then the disciplinary authority mechanically awarded him penalty of dismissal and the appellate authority has simply completed the ritual of dismissing the appeal by just obtaining the remarks from the disciplinary authority. No discussion whatsoever has been made on the question of proportionality of penalty vis- a-vis gravity of misconduct proved against both the delinquent. Learned counsel submitted that Suraj Bhan although was also dismissed from service, but he has decided not to challenge the order of dismissal and the petitioner who filed the writ petition in 1996, has been awaiting dismissal since then. 5 Shri Kunal Rawat, learned counsel for the respondents opposed the writ petition and submitted that the petitioner being a member of paramilitary force, a higher level of discipline is expected from such employees. Charge against petitioner was also clear that he handed over his gun to Lance Naik Suraj Bhand which enabled him to threat his Platoon Commander Mamman Singh of dire consequences by pointing the gun at him. Learned counsel submitted that both were found in the state of intoxication while on duty. It was a serious misconduct violative of Section 11(1) of the CRPF Act. They were subjected to medical examination also and were found to have consumed liquor. The disciplinary enquiry was conducted strictly in accordance with the CRPF Rules of 1955. Learned counsel submitted that even if detailed discussion is not made by the enquiry officer in his report, statements of the witnesses shall have to be read along with the enquiry report. Learned counsel for perusal of the Court produced the original file of the enquiry proceedings containing therein statement of witnesses. 6 Learned counsel for the petitioner has rejoined and submitted that Section 10 of the CRPF Act, 1949 provides the list of less heinous offences in contra distinction with Section 9 of the said Act containing the more heinous offences. The first offence that is registered in Section 10 in its clause (a) is that a member of force who is in the state of intoxication when on, or after having been warned for, any duty or on parade or on the line of march, which has been described to be less heinous offence. Contention that prior to conducting joint enquiry, the previous consent of the I.G.P. was not taken and therefore the enquiry has become incompetent, cannot be accepted. The petitioner was required to raise this objection at the earlier point of time preferably before the enquiry officer and thereafter before the disciplinary authority himself. Even otherwise, he did not raise any objection, therefore, the same is liable to be overruled. Even otherwise, it has not been shown as to what prejudice has been caused to the petitioner by mere reason of the fact that previous consent of 7 I.G.P. was not obtained. Coming now, however, to the other arguments advanced by the petitioner, I find that though the enquiry report has not been happily worded and that at certain places, the finding are recorded with reference to the statement of various witnesses and the documents produced in the enquiry but rather their page number, on which such document contains, is mentioned but even then the evidence that has come on record is sufficient to sustain the finding of guilt against the petitioner at least to the extent that he consumed the liquor in the company of Suraj Bhan and it was his gun, which was entrusted to co- delinquent Suraj Bhan, who threatened the Platoon Commander Mamman Singh by aiming the gun towards him. It has not been shown whether there is any previous adversity in the service record of the petitioner and whether he was awarded any penalty in the past also. In the absence of such an assertion, the contention of the petitioner that he had unblemished record of 14 years of service has to be accepted. Although it may be true that higher level of discipline 8 is accepted from the members of the para military forces, but mere use of alcohol in an isolated incident cannot be a reason to straightaway dismiss an employee who has served for one and half decade. Section 10 of the C.R.P.F. Act relied on by the petitioner contains the list of heinous offences in contradiction with Section 9 of the Act, which contains the list of more heinous offence. Clause (a) of Section 10 enumerates the offence of member of force being in the state of intoxication when on or after having on duty or on parade or on the line of march. Although misconduct in service has to be viewed differently then the offence, but anomaly that can be safely drawn by perusing all these two provisions is that mere use of liquor has not been described to be a more heinous offence. Besides the charge against the petitioner is not that serious as it was against co- delinquent Suraj Bhan. It was Suraj Bhan, who threatened the Platoon Commander Mamman Singh and pointed gun towards him. The evidence that has come on record show that co-delinquent Suraj Bhan took away the gun 9 from petitioner. It cannot therefore be believed that it was not the petitioner who himself gave the gun to Suraj Bhan, although, he was responsible for safe keeping of the gun and further more it was Suraj Bhan who pointed the gun towards Platoon Commander Mamman Singh and threatened him that dire consequences. The seriousness of the charge against the petitioner was not like as was against co- accused Suraj Bhan. In other words, the co- delinquent who was dismissed from service was guilty of much serious charge than the charge against the petitioner. The award of same penalty to both of them cannot be therefore justified. In my considered view, the petitioner should have been awarded any other penalty except the penalty of dismissal / reversion. In the result, this writ petition is allowed. The order of penalty dated 25.12.1993 is set aside. The matter is remanded back to the disciplinary authority. The petitioner is held entitled to reinstatement in service although for the intervening period, he shall be entitled to 10 only on notional benefits. He shall however be deemed to be on duty for all purposes. The disciplinary authority shall be at liberty to pass fresh order of penalty against the petitioner other than the penalty of removal / dismissal. Compliance of the judgement be made within a period of three months from the date its copy is produced before the respondents. (MOHAMMAD RAFIQ), J. RS/