CWP No. 8477 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 8477 of 2010 Date of decision: 11.05.2010 Ram Narayan s/o Sh. Rattan Singh ...... PETITIONER VERSUS Union of India and others ....... RESPONDENTS CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH Present: Mr. Rakesh Nehra, Advocate, for the petitioner. *** AUGUSTINE GEORGE MASIH, J. Through this writ petition the petitioner, who was working as a Constable (General Duty) in the Central Reserve Police Force, has challenged the order of dismissal dated 28.06.2008 (Annexure P-5), order dated 19.09.2008 (Annexure P-7) passed in the appeal preferred by him and the order dated 22.12.2008 (Annexure P-8) passed in the revision preferred by the petitioner with a further prayer for issuance of a writ of mandamus directing the respondents to reinstate the petitioner in service with all consequential benefits including seniority and arrears of pay. It has been pleaded that Ram Narayan-petitioner was recruited in the Central Reserve Police Force as a Constable and was posted in Assam. On 11.07.2007, the petitioner wanted to go to Nagaland Police Post to ask about the treatment of his son. He obtained permission for the same from the Post Commander HC B.K.D. Barman who allowed him CWP No. 8477 of 2010 2 through oral orders. When the petitioner reached Police Post of Nagaland, heavy rain started suddenly and due to that, the petitioner got little late to come back to the camp. HC B.K.D.Barman and HC Mohan Singh came to the petitioner and asked the petitioner to accompany them to which the petitioner agreed and went with them immediately. After coming to the line, the petitioner was sitting on his bed and was thinking about his family problem. Constable Tambe Santosh came to him and enquired why he was sitting and not sleeping, on which the petitioner replied that he should go away to his own line and should not disturb the petitioner as he is already in tension due to family problem. Despite various requests made by the petitioner when Constable Tambe Santosh did not go, there was a small altercation between them, on which the petitioner pushed him and he fell down and sustained injuries. Meanwhile, some other members of the Force also reached there and the matter was amicably resolved. However, to the surprise of the petitioner, Constable Tambe Santosh made a false complaint against the petitioner, on which a frivolous report was sent to the higher authorities, which resulted in his suspension vide order dated 01.08.2007 (Annexure P-1). Thereafter, the petitioner was served with a charge-sheet issued by the Commandant of his Battalion dated 13.08.2007 (Annexure P-2) which contained three charges. The first charge was with regard to unauthorizedly leaving the camp on 11.07.2007 at about 1800 hrs. without prior permission of the competent authority. Second was consumption of liquor when he went out of the camp without prior permission of the competent authority and the third was that he abused his seniors and cocked his weapon on one of the Constables. All these acts were stated to be acts of mis-conduct in his capacity as a member of the Force which was prejudicial to good order and discipline of CWP No. 8477 of 2010 3 the Force and punishable under Section 11 (1) of the Central Reserve Police Force Act, 1949 (hereinafter referred to as ' the Act'). Sh. Sanjay Tiwari, Assistant Commandant was appointed as the Enquiry Officer vide order dated 29.08.2007 (Annexure P-3), who submitted his enquiry report after holding of an enquiry against the petitioner holding therein that the charges against the petitioner stood proved during the enquiry proceedings. During the enquiry proceedings, the petitioner was reinstated in service on 30.01.2008 (Annexure P-4). Thereafter, without giving any opportunity of hearing or issuing any show cause notice to the petitioner, order dated 28.06.2008 (Annexure P-5) dismissing the petitioner from service was passed by the Commandant- respondent No. 4. Aggrieved by this order, the petitioner preferred a statutory appeal dated 21.07.2008 (Annexure P-6) but it did not bear any fruit and the same was rejected by the appellate authority i.e. The Deputy Inspector General of Police, Jalandhar, Punjab-respondent No. 3 vide order dated 19.09.2008 (Annexure P-7). The petitioner thereafter preferred second appeal/revision petition before the Inspector General of Police, CRPF, Western, Chandigarh-respondent No. 1, who also did not accept the same and rejected it vide order dated 22.12.2008 (Annexure P-8). These three orders i.e. 28.06.2008 (Annexure P-5), 19.09.2008 (Annexure P-7) and 22.12.2008 (Annexure P-8) are under challenge in the present writ petition. Counsel for the petitioner submits that the charge-sheet issued to the petitioner was under Section 11 (1) of the Act which provides for minor punishments. The said minor punishments are detailed in clauses (a) to (e) of sub-section (1) of Section 11 and these clauses do not prescribe the punishment of dismissal. The punishment of dismissal is CWP No. 8477 of 2010 4 only provided under Section 12 of the Act and that too, if there is a conviction for an offence and the employee is sentenced to undergo imprisonment under the Act. He, on this basis, contends that the order of dismissal passed by the respondents, on this score alone, deserves to be set aside. In support of these contentions, counsel for the petitioner has relied upon a judgment of the Gauhati High Court in the case of Deep Chand vs. Union of India, 2001 (4) SCT 965, wherein the learned Single Judge had held that when the employee is charge-sheeted under Section 11 (1) of the Act for minor penalty, on completion of an enquiry, major penalty could not be imposed. The disciplinary authority cannot be permitted to convert a charge under Section 11 (1) of the Act which is a minor penalty to that of a major penalty after completion of the enquiry without giving an opportunity to the employee as this would amount to denial of reasonable opportunities to defend himself and would be hit by Article 311 of the Constitution of India. His further contention is that the finding recorded by the Enquiry Officer is against the records and, therefore, the said finding cannot be sustained. Firstly, the petitioner had sought oral permission from the Post Commander HC B.K.D. Barman to go to Police Post of Nagaland to ask about the treatment of his son. He could not return to the camp due to heavy rain which resulted in some delay. When he had already sought permission from the Post Commander, the first charge, that the petitioner went out of the main gate of G/128 Battalion CRPF location unauthorizedly, cannot be sustained. As regards the second charge, the counsel submits that the petitioner had not taken any liquor, as alleged by the respondents. The petitioner was taken to the Hospital for his medical examination but the CWP No. 8477 of 2010 5 doctor present in the hospital refused to conduct the medical examination of the petitioner as the petitioner was not under the influence of liquor and, therefore, the charge with regard to consumption of liquor by the petitioner also can not be said to have been proved. As regards the third charge, the counsel submits that Constable Anil Kumar, who was present at the spot when altercation took place between the petitioner and Constable Tambe Santosh, specifically stated in his evidence before the Enquiry Officer that at the time of scuffle between the petitioner and Constable Tambe Santosh, the rifle was not at the bed of the petitioner as the same had already been deposited with the Camp Commander, therefore, there was no question of cocking his weapon over Constable Tambe Santosh. He contends that there were bald statements of the prosecution witnesses without any documentary evidence to support their contentions but still the Enquiry Officer has returned a finding against the petitioner holding him guilty of the charges alleged against him. He, on this basis, contends that the impugned orders deserve to be set aside. A contention has been put forth by the counsel for the petitioner that even if the charges levelled against the petitioner are taken to be proved against him, the order of dismissal passed against the petitioner is too harsh and disproportionate to the mis-conduct attributed to the petitioner. This Court should interfere on the question of quantum of punishment and a lenient view deserves to be taken in the present case. I have heard the counsel for the petitioner and have gone through the records of the case. The facts are not in dispute. The petitioner was charge- sheeted vide order dated 13.08.2007. Along with the articles of charges, CWP No. 8477 of 2010 6 list of documents and list of witnesses was sent to the petitioner, which was duly received by him. He was granted 15 days' time to submit his reply in his defence. The petitioner denied the articles of charges vide his reply dated 21.08.2008. Finding the said reply not satisfactory, Sh. Sanjay Kumar Tiwari, Assistant Commandant of the Unit was appointed as Enquiry Officer vide order dated 29.08.2008. The Enquiry Officer informed the petitioner to appear before him in person on 19.09.2008 for recording of his preliminary statement. The regular hearing commenced from 21.09.2008. The statements of all the witnesses were recorded in the presence of the petitioner. On recording of the statements of the witnesses, copies of the same were handed over to the petitioner. He was given full opportunities to cross-examine the witnesses. Thereafter, vide letter dated 12.01.2008, the Enquiry Officer gave the petitioner 15 days' time to submit his statement of defence and a list of documents or witnesses which he intended to examine in his defence on or before 28.01.2008. In response to the said letter, a simple application dated 28.01.2008 was submitted by the petitioner with a request that decision on the enquiry be taken as he does not want to produce any witness in his defence. The Enquiry Officer submitted his report on 04.02.2008. On receipt of the proceedings as well as the enquiry report from the Enquiry Officer, the same were examined at length. A copy of the enquiry report was sent to the petitioner vide letter dated 23.02.2008 and he was given 15 days' time to make any representation or produce any document in his defence. The petitioner submitted an application dated 29.02.2008 refuting all the charges/statements of the prosecution witnesses. He was given another opportunity vide letter dated 20.04.2008 with a direction to elaborate his reply and give factual position of his case. CWP No. 8477 of 2010 7 The petitioner preferred not to avail of this opportunity as he did not give any response thereto. On consideration of the report of the Enquiry Officer, the punishing authority considered the same in detail and referred to the statements of various witnesses including that of Anil Kumar PW-6 and came to the conclusion that as a matter of fact, the charges against the petitioner stood proved. Each of the charges have been dealt with separately by the punishing authority in the said order. The reasons assigned for accepting the findings, as recorded by the Enquiry Officer, have also been elaborated and a well reasoned and detailed order has been passed to this effect, which is dated 28.06.2008 (Annexure P-5). Similarly, on an appeal preferred by the petitioner, the Deputy Inspector General of Police, CRPF, Jalandhar, Punjab-respondent No. 3, vide his order dated 19.09.2008 (Annexure P-7), considered all the submissions which were made by the counsel for the petitioner challenging the findings given in the enquiry report against the petitioner, which were also raised before the appellate authority. A perusal of the appellate order shows that all the factual aspects, with regard to the contentions raised by the petitioner in the present writ petition and as argued by the counsel for the petitioner challenging the enquiry proceedings, stood fully considered in detail and rejected by giving cogent justifications and reasons on the basis of the enquiry report. The said order also is fully justified. Same is the position with regard to the second appeal/revision preferred by the petitioner. Order dated 22.12.2008 passed by the Inspector General of Police, Western Sector, Central Reserve Police Force, Chandigarh-respondent No. 2 also deals with, in detail, the enquiry CWP No. 8477 of 2010 8 proceedings and the objections raised by the petitioner to the findings recorded by the Enquiry Officer. The reasoning assigned therein also is justified. The jurisdiction of this Court while exercising its extra-ordinary writ jurisdiction is very restricted especially when there is no challenge to the procedure, competence and legality of the enquiry proceedings. While exercising its powers under judicial review, the Court cannot interfere in the findings arrived at in the enquiry especially when there are no allegations of mala-fides or the findings are perverse or based on no evidence at all much less when the Punishing Authority, Appellate Authority and the Revisional Authority have duly considered the factual aspect of the enquiry and the findings thereof and have concurred with the same. In the present case, the legality and validity of the enquiry is not under challenge. What has been alleged is that the findings arrived at in the enquiry are not justified. It is not a case of no enquiry or perverse findings. If two views are possible on consideration of the evidence led by the parties before the Enquiry Officer, the view taken therein deserves to be respected unless the same is perverse or is based on victimization or mala-fide, which is not the case in hand. What has been contended by the counsel for the petitioner is that one of the witnesses i.e. Constable Anil Kumar had stated that the petitioner had not pointed the rifle towards Constable Tambe Santosh and there was no question of that as the said weapon had already been taken and deposited with the Camp Commander. Against this statement, there were statements of other four witnesses who had supported the case of the prosecution and said that the petitioner had cocked his weapon over Constable Tambe Santosh. As regards the charge of abusing his seniors, all the witnesses have CWP No. 8477 of 2010 9 supported the case of the prosecution. With regard to the petitioner being in an inebriated state, which is apparent from the statement of the witnesses who had stated that he was under the influence of the liquor and misbehaved with the post personnel and he was in such a bad state that he was brought to the camp from Nagaland Police Post with the help of the Nagaland police personnel. The Medical Officer refused to conduct the medical of the petitioner as he wanted requisition from the local police for conducting such medical of the petitioner. It has also come on record that no CRPF hospital was available within 20 Kms. from the post. The finding thus recorded by the Enquiry Officer was based on evidence which would not thus fall in the category of cases where the power of judicial review should be invoked to interfere in such findings. This leads us to the question raised by the counsel for the petitioner that the charge-sheet under Section 11 (1) of the Act was for a minor penalty whereas a major penalty has been imposed on the petitioner. This contention of the counsel for the petitioner is without any basis. Sections 11 (1) and 12 of the Act, reliance on which the counsel for the petitioner has placed, read as follows:- “11. Minor punishments.- (1) The Commandant or any other authority or officer as may be prescribed, may, subject to any rules made under this Act, award in lieu of, or in addition to, suspension or dismissal any one or more of the following punishments to any member of the Force whom he considers to be guilty of disobedience, neglect of duty, or remissness in the discharge of any duty or of other misconduct in his capacity as a member of the Force, that is to say.- CWP No. 8477 of 2010 10 (a) reduction in rank; (b) fine of any amount not exceeding one month's pay and allowances; (c) confinement to quarters, lines or camp for a term not exceeding one month; (d) confinement in the quarter-guard for not more than twenty-eight days, with or without punishment drill or extra guard, fatigue or other duty; and (e) removal from any office of distinction or special emolument in the Force. 12. Place of imprisonment and liability to dismissal on imprisonment.- (1) Every person sentenced under this Act to imprisonment may be dismissed from the Force, and shall further be liable to forfeiture of pay, allowance and any other moneys due to him as well as of any medals and decorations received by him. (2) Every such person shall, if he is so dismissed, be imprisoned in the prescribed prison, but if he is not also dismissed from the Force, he may, if the Court or the Commandant so directs, be confined in the quarter-guard or such other place as the Court or the Commandant may consider suitable.” Apart from these Sections, Rule 27 (a) of the Central Reserve Police Force Rules, 1955 (hereinafter referred to as 'the Rules') would also be relevant which reads as follows:- “27. Procedure for the Award of Punishments.-(a) [The punishments shown as items 1 to 11 in column 2 of the table] CWP No. 8477 of 2010 11 below may be inflicted on non-gazetted officers and men of the various ranks shown in each of the headings of columns 3 to 6, by the authorities named below such headings under the conditions mentioned in column 7. [TABLE Sr. No. Punishment Subedar (Inspector) Sub- Inspector Others except Const.&en rolled followers Costs. & enrolled followers Remarks 1. 2. 3. 4. 5. 6. 7. 1. Dismissal or removal from the Force DIGP DIGP Comdt. Comdt. To be inflicted after formal department al enquiry. 2. Reduction to a lower time-scale of pay, grade, post or service. DIGP DIGP Comdt. Comdt. -do- 3. Reduction to a lower stage in the time-scale of pay, for a specified period. DIGP DIGP Comdt. Comdt. -do- 4. Compulsory retirement DIGP DIGP Comdt. Comdt. -do- 5. Fine of any amount not exceeding one month's pay and allowances. DIGP DIGP Comdt. Comdt. -do- CWP No. 8477 of 2010 12 Sr. No. Punishment Subedar (Inspector) Sub- Inspector Others except Const.&en rolled followers Costs. & enrolled followers Remarks 6. Confinement in the Quarter Guard exceeding seven days but not more than twenty- eight days with or without punishment drill or extra guard fatigue or other duty. _ _ _ Comdt. To be inflicted after formal department al enquiry 7. Stoppage of increment. DIGP DIGP Comdt. Comdt. 8. Removal from any office of distinction or special emoluments in the Force. DIGP DIGP Comdt. Comdt. May be inflicted without a formal department al enquiry. 9. Censure Comdt. Comdt. Asstt. Comdt. Or Coy comdr. A.Comdt. Or Coy Comdr. 10. Confinement to Quarter Guard for not more than seven days with or without punishment or extra guard fatigue or other duty. _ _ _ Comdt. CWP No. 8477 of 2010 13 Sr. No. Punishment Subedar (Inspector) Sub- Inspector Others except Const.&en rolled followers Costs. & enrolled followers Remarks 11. Confinement to quarters lines, camp, punishment drill, fatigue duties etc. for a term not exceeding one month. _ _ _ Comdt. Note.- 1. When the post of Deputy Inspector General remains unfilled for a period of over one month at a time the Commandant shall exercise the powers of punishing the Subedars (Inspectors) and Sub-Inspectors except the powers of ordering dismissal or removal from the Force. Note.- 2. When the post of Commandant remains unfilled for a period of over one month at a time consequent on the incumbant proceeding on leave or otherwise, the Assistant Commandant shall exercise the powers of punishment vested in the Commandant, except the powers of ordering dismissal or removal from the Force. Explanation.-(a) Dismissal of a member of the Force precludes him from being re-employed in Government service, while removal of any such member from the Force shall not be disqualification for any future employment (other than an employment in the Central Reserve Police Force) under the Government.]” CWP No. 8477 of 2010 14 A perusal of Section 12 of the Act shows that the authority concerned may dismiss a person who is sentenced under the Act from the Force. It further renders him liable to forfeiture of pay, allowance and any other moneys due to him as well as of any medals and decorations received by him. It is thus clear that this Section enables the authorities to pass an order of dismissal under this Section on a delinquent in addition to the sentence of imprisonment awarded to him under the Act. If the authorities choose to proceed under this Section, it will not be necessary to observe the formalities of a regular departmental enquiry and action may be taken after a person's conviction and sentence of imprisonment under the Act. It does not lay down that a person would not be liable to dismissal if he is not convicted and sentenced under the Act. Section 9 of the Act spells out more heinous offences and also prescribes penalty which may be awarded for commission of such offences. Section 10 of the Act deals with less heinous offences and for that also, the punishment has been provided. A perusal of Section 11 of the Act shows that it deals with minor punishments as compared to more heinous and less heinous offences as prescribed in the Sections 9 and 10 of the Act. Section 11 (1) of the Act lays down that the Commandant or any other authority or officer as may be prescribed, may, subject to any rules made under this Act, award anyone or more of the punishments to any member of the Force who is found guilty of disobedience, negligence of duty, or remissness in the discharge of any duty or of other mis-conduct in his capacity as a member of the Force. These punishments are to be awarded in lieu of or in addition to suspension or dismissal. This Section thus does not restrict the punishing authority to award only minor punishments prescribed under Section 11 (1) of the Act. This Section is an CWP No. 8477 of 2010 15 enabling Section which empowers the punishing authority to award anyone or more of the minor punishments to any member of the Force in lieu of or in addition to suspension or dismissal. It is thus clear that Section 11 of the Act deals with only those minor punishments which may be awarded in a departmental enquiry and they can be imposed in addition to or in lieu of suspension or dismissal even in cases where a delinquent is not prosecuted under Sections 9 or 10 of the Act. This obviously means that both Sections 11 and 12 of the Act can be invoked to pass the punishment of dismissal by the competent authority and it cannot thus be said that order of dismissal can only be passed under Section 12 of the Act. The Hon'ble Surpreme Court in the case of Union of India and others vs. Ghulam Mohd. Bhat, (2005) 13 Supreme Court Cases 228 while dealing with the scope and ambit of Section 11 of the Act and Rule 27 of the Rules in paras 5, 6 and 7 of the said judgment has held as follows:- “5. A bare perusal of Section 11 shows that it deals with minor punishment as compared to the major punishments prescribed in the preceding section. It lays down that the Commandant or any other authority or officer, as may be prescribed, may, subject to any rules made under the Act, award any one or more of the punishments to any member of the Force who is found guilty of disobedience, neglect of duty or remissness in the discharge of