IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE TWENTY SECOND DAY OF AUGUST TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE P.V.SANJAY KUMAR WRIT PETITION No.13072 of 1999 Between: Jagan Nath Pandey, S/o.Kedar prasad Pandey, Hindu, Police Force, R/o.Village & P.O. Pratapur, Raghurajnagar Tahsil, Satna District, Madhya Pradesh-485 006. ..... PETITIONER AND 1 Union Of India, Through Director general, Central Reserve Police Force, CGO Complex, Lodhi Road, New Delhi. 2 Inspector General of Police (Additional Director General of Police) Southern Sector, Central Reserve Police Force, Hyderabad-500 034. 3 The Deputy Inspector General of Police, Central reserve Police Force, Patna-14. 4 The Commandant, 90 Batallion, Central Reserve Police Force, DETT Headquarter, Rayya (Punjab). .....RESPONDENTS Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the aﬃdavit ﬁled herein the High Court will be pleased to issue a writ, order or direction , more particularly one in the nature of writ of certiorari, calling for the records relating to the proceedings of the 4th respondent herein in his oﬃce order bearing No.P.VIII.I/92-Dett-90, dated 06-02-1993 as conﬁrmed in Appeal by the 3rd respondent herein in his proceedings no.P.VIII-13/93-EC-I, dated 17th June 1993 and as conﬁrmed in Revision by the 2nd respondent herein in his proceedings No.R.XIII-30/94-Adm-I, dated 2nd October 1994 ad quash the same by declaring the said proceedings as illegal, null and void, arbitrary, and being violative of Articles 14 and 16 of the Constitution of India and the well established principles of natural justice, apart from being violative of provisions of Rule 31 of the C.R.P.F.Rules, 1955 by directing the respondents herein to reinstate the petitioner in to service with full back wages, continuity of service and all other attendant service beneﬁts in the interests of justice and pass such other or further orders as this Honourable Court may deem ﬁt and proper in the circumstances of the case. Counsel for the Petitioner: Sri M.GOVIND REDDY Counsel for the Respondents: Sri M.Ganga Rao The Court made the following : THE HONOURABLE SRI JUSTICE P.V.SANJAY KUMAR WRIT PETITION NO.13072 OF 1999 O R D E R Heard Sri M.Govind Reddy, learned counsel for the petitioner and Sri M.Ganga Rao, learned counsel for the respondents. The petitioner in this case prays for a writ of certiorari quashing the proceedings of the 4th respondent - Commandant, 90 Batallion, Central Reserve Police Force, DETT Headquarters, Rayya, Punjab, dated 06.02.1993 dismissing the petitioner from service, which stood confirmed in Appeal before the 3rd respondent - Deputy Inspector General of Police, Central Reserve Police Force, Patna, in his proceedings 17.06.1993, which in turn stood conﬁrmed in the Revision before the 2nd respondent - Inspector General of Police (Additional Director General of Police), Southern Sector, Central Reserve Police Force, Hyderabad, in his proceedings dated 02.10.1994. The petitioner also sought a consequential direction to reinstate him in service with full back-wages, continuity of service and all other attendant service benefits. The facts of the case as culled out from the aﬃdavit ﬁled in support of the writ petition are that the petitioner was appointed as a Constable in the Central Reserve Police Force on 23.07.1988. While he was discharging duties as a Constable in 90 Batallion, CRPF, Group Central, Hyderabad, disciplinary proceedings were initiated against him with respect to his alleged desertion from the Force while he was deployed at Rayya in Punjab. Three separate articles of charge were framed against the petitioner in this regard. According to Article-I, the petitioner left the lines while posted at Rayya, Punjab, without the permission of the competent authority and deserted from the Force on 27.10.1992 till he was apprehended on 29.10.1992 at Village Pratap Pur, thereby committing an oﬀence of misconduct under Section 11(1) of CRPF Act, 1949 (for short ‘the Act’). Under Article-II of the charges, the petitioner was charged with disobedience as he had failed to deposit the riﬂe, ammunition and grenade issued to him in total disregard of the security instructions. Under Article-III of the charges, the petitioner was charged with fraudulently taking away the riﬂe along with two magazines, 40 rounds of ammunition and one hand grenade without the permission of the competent authority on 27.10.1992, which amounted to an oﬀence of remissness in discharge of his duties under Section 11(1) of the Act. Thereafter, the petitioner submitted his explanation for his absence from duty from 27.10.1992 to 29.10.1992. In spite of the same, the respondents instituted an enquiry into the matter. The petitioner claims that he was handicapped in the said enquiry as he was not conversant with English and he was not provided with the assistance of one of his colleagues to defend his case. He also stated in the aﬃdavit that he was not furnished a copy of the enquiry report, though the show-cause notice dated 25.01.1993, which was issued to him consequent to the said enquiry mentions that a copy of the said report was enclosed. Basing on the ﬁndings in the said enquiry report, the petitioner was dismissed from service by way of the impugned proceedings dated 06.02.1993. It is to be noted that against the said dismissal from service, the petitioner ﬁled an Appeal before the 3rd respondent Appellate Authority and against the order of the said Appellate Authority dated 17.06.1993, dismissing the appeal, the petitioner sought a Revision under Rule 29 of the Central Reserve Police Force Rules, 1955 (for short ‘the Rules’) before the 2nd respondent. The 2nd respondent conﬁrmed the orders passed by the Primary and the Appellate Authorities under his order dated 02.10.1994. The petitioner challenges the same by way of the present writ petition stating that the punishment imposed is grossly disproportionate to the oﬀence alleged against him. The petition was ﬁled in the year 1999 and the petitioner seeks to explain the delay on his part in this regard by stating that he was mentally depressed and sick for a considerable length of time and that apart, due to unemployment and poverty he was not in a ﬁnancial position to approach this Court earlier. He relies upon the judgment of a Division Bench of this Court reported in V.RAJESHAM V/s. CHAIRMAN, INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT[1] with regard to the issue of delay. The respondents ﬁled their counter-aﬃdavit contending that there are serious laches on the part of the petitioner in approaching this Court questioning the order of his dismissal dated 06.02.1993, which stood conﬁrmed in Appeal and Revision by orders dated 17.06.1993 and 02.10.1994 respectively. On the merits of the case, it is stated that the petitioner was found missing on the morning of 27.10.1992 when he was posted on active duty at Rayya in Punjab. Further, the petitioner had taken with him the riﬂe, ammunition and hand grenade, which were in his custody. It is stated that the petitioner was apprehended from his native village Pratapur on 29.10.1992, i.e. two days after his going missing and in the light of the same, charges were framed against the petitioner under Memo dated 12.11.1992. It is stated that an enquiry was conducted strictly in accordance with the norms and procedure as laid down in the Rules. It is pertinent to note that the petitioner is said to have pleaded guilty on 18.11.1992 during the course of the enquiry proceedings sofar as the charges framed against him are concerned. It is stated that the statements of the prosecution witnesses recorded in English were explained to the petitioner in Hindi and he was given an opportunity to cross-examine the witnesses, which he declined. It is further stated that the petitioner never asked for any assistance through one of his colleagues to defend his case in the enquiry. The Enquiry Oﬃcer submitted the enquiry report on 06.01.1993 holding that the three charges framed against the petitioner were proved. The counter-aﬃdavit further states that the petitioner was issued a show-cause notice dated 25.01.1993 along with a copy of the enquiry report calling upon him to submit his representation, if any, to the said notice. The petitioner is said to have submitted his representation dated 28.01.1993 admitting that he had committed the oﬀence and praying for mercy. In the said representation the petitioner never mentioned that the enquiry report was not supplied to him along with the show-cause notice. The respondents contend that the petitioner had committed grave misconduct by deserting the place of duty in a sensitive area, i.e. Rayya in Punjab when he was deployed for anti-terrorist duty and had he not been apprehended immediately, that is, within two days of his desertion, it could not be ruled out as to whether the arms and ammunitions would have been put to mis-use. The petitioner ﬁled a reply to the above counter denying the allegations made against him by the respondents. He denied that he had admitted the statements of the prosecution witnesses, that the same were read over and explained to him and that he had declined to cross-examine them. He alleged that he was made to sign on various papers at the dictates of the enquiry oﬃcer on the ground that the enquiry proceedings are formal in nature and that he would be let oﬀ with a minor punishment. It is pertinent to note that this allegation had not been made by the petitioner in the ﬁrst instance in his writ aﬃdavit. So far as the issue of providing assistance is concerned, the petitioner contended that it was the duty of the enquiry oﬃcer to ask him whether such assistance is required. The fact remains that the petitioner did not, in fact, request for such assistance. He also denied the allegation that he had pleaded guilty for the charges during the course of enquiry proceedings. He alleged that he was made to act under the ill-influence exercised by his superior officers, who held out the promise that he would be let oﬀ with some minor punishment if he was to plead guilty. Pausing here, the fact remains that the petitioner appears to have pleaded guilty, but he is now trying to explain away the same. Sri M.Govind Reddy, advocate appearing for the petitioner contended that under Section 10(m) of the Act, which deals with less heinous oﬀences, a member of the Force who absents himself without leave, or without suﬃcient cause overstays leave granted to him is punishable with imprisonment for a term which may extend to one year, or with ﬁne which may extend to three months’ pay, or with both. Similarly, under Section 10(k) of the Act, a member of the Force who does not, when called upon by his superior oﬃcer so to do or upon ceasing to be a member of the Force forthwith deliver up, or duly account for, all or any arms, ammunition, stores etc. is also liable to a similar punishment. He would, therefore, contend that the punishment imposed upon the petitioner, i.e. dismissal from service is grossly disproportionate, as the oﬀence committed by the petitioner constitutes the ingredients of Section 10(k) and 10(m) of the Act. He also relied upon Rule-35 of the Rules, which deals with loss or damage to arms, ammunition and property, to substantiate his argument that the punishment imposed upon the petitioner is harsh and disproportionate. He would submit that the petitioner’s absence from duty for two days does not amount to a heinous oﬀence and applying the Wednesbury’s principles of reasonableness, he contends that no reasonable man would be inclined to impose such a hugely disproportionate punishment for the oﬀence made out. Sri M.Ganga Rao, learned counsel for the respondents, on the other hand, contends that the petitioner is guilty of deserting the Force, which is a ‘More Heinous Oﬀence’ as deﬁned in Section 9(f) of the Act and the facts of the case as established, clearly manifest that the petitioner absconded with the arms and ammunition in his custody and it was only a fortuitous circumstance that he was apprehended in two days. He stressed upon the fact that the Central Reserve Police Force is a highly disciplined organisation requiring high standards of conduct and orderliness from its members and the petitioner’s actions, viewed in this light, would indicate the seriousness of his misconduct. It is the further contention of the learned counsel for the petitioner that Article-II does not withstand scrutiny inasmuch as the oﬀence of disobedience is alleged on the ground that the petitioner acted in total disregard of the security instructions. According to Sri Govind Reddy, learned counsel for the petitioner, no such security instructions were available or issued. In this regard, he drew the attention of the Court to the grounds of revision raised by the petitioner before the 2nd respondent, wherein at Ground No.2, the petitioner contended that the security instructions were not listed in the list of documents furnished to him under Annexure-3 of the Memo dated 12.11.1992, and hence, the security instructions are only conjectural and speculative. Learned counsel for the petitioner would argue that in the absence of such security instructions, the respondents cannot contend that the petitioner is guilty of disobedience as has been charged against him. In so far as the issue of delay and laches is concerned, it is noticed that the writ petition was ﬁled nearly ﬁve years after the confirmation of the order of dismissal by the Revisional Authority under order dated 02.10.1994. The petitioner relied upon the decision reported in V.RAJESHAM’s case (1 supra) to the eﬀect that people in the lower income group have a serious handicap and cannot aﬀord the luxury of litigation and therefore, the delay on the part of the petitioner in ﬁling this case should be viewed leniently. In my considered opinion, the said judgment does not lay down the general proposition that the factum of delay in invoking the remedial jurisdiction would not be determinative of its fate, irrespective of the attending facts and circumstances. Be that as it may, I do not propose to dismiss this case on the technical ground of delay and laches. It cannot be disputed that the petitioner, being a member of the Central Reserve Police Force, is required to have a high degree of commitment, discipline and ethics. The admitted fact is that the petitioner, without having any authorisation, absconded while on duty with the arms and ammunition, which were in his custody. As has been pointed out by the learned counsel appearing for the respondents, but for the fortuitous circumstances of his being apprehended within two days, it is not known whether the petitioner would have himself returned or atleast returned the arms and ammunition. Prima facie the conduct of the petitioner lends itself to the conclusion that he deserted the Force, which is a ‘More Heinous Oﬀence’ as defined under Section 9(f) of the Act. The contention of the counsel for the petitioner that the punishment imposed is grossly disproportionate cannot, therefore, be countenanced and is hence, rejected. So far as the contention of the counsel with regard to Article-II of the charges is concerned, the record shows that this aspect was never raised by the petitioner before the Primary or the Appellate Authority. It is raised in the Revision for the purpose of stating that the security instructions were not listed in the documents furnished to the petitioner and basing on this failure, the petitioner alleges that the same are conjectural and speculative. The argument of the learned counsel for the petitioner that in the absence of express security instructions, the respondents cannot contend that the petitioner is guilty of disobedience does not hold water inasmuch as the petitioner, being a member of the Police Force is expected to have the minimum knowledge that he is not free to walk out with the arms and ammunition without due and property authority. No speciﬁc instruction needs to be proved in this regard. In any event, the Revisional Authority, exercising powers under Rule-29 of the Rules has a limited jurisdiction and in the absence of afactual foundation with regard to the existence or otherwise of the security instructions, the ground sought to be raised by the petitioner before the Revisional Authority was belated and untenable. That being so, it is all the more belated and without foundation for the petitioner to raise the said ground before this Court. It is clear that the respondents followed the due and proper procedure in taking disciplinary action against the petitioner and the petitioner failed to make out any lacuna in this regard. Though he denied the allegation with regard to his never raising an objection to not being furnished proper opportunity in the enquiry proceedings and that he had in fact admitted his guilt, the said denial does not commend itself to acceptance. All the more so, as the petitioner, having conceded his admission of guilt is now trying to explain away the same. In any event, in a matter of this nature, the petitioner cannot expect this Court to sit in appeal over the proceedings and sift minutely through the evidence. It is not the decision but the decision making process, which is the subject matter of judicial review in a proceeding under Article 226 of the Constitution of India and in this regard the petitioner utterly failed to substantiate that there was any defect in the said process resulting in injustice to him. In the light of the aforestated facts and circumstances, I ﬁnd no ground to interfere with the order of dismissal from service passed against the petitioner, which stood conﬁrmed in Appeal and thereafter, in Revision. Accordingly, the writ petition is dismissed. There shall be no order as to costs. ------------------------------ P.V.SANJAY KUMAR 22nd AUGUST, 2008 PGS THE HONOURABLE SRI JUSTICE P.V.SANJAY KUMAR WRIT PETITION NO.13072 OF 1999 22nd AUGUST, 2008 ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1.2CCs to 2.2CD copies Form-NIC-OGS/WP{GMS} [1] (1995(2) ALD 803 (D.B)