इलाहाबाद हाईकोर्ट ने एक आदेश में कहा है कि विभागीय जांच व सुनवाई के बगैर किसी कर्मचारी की बर्खास्तगी करना संविधान के अनुच्छेद 311 के विपरीत है। इसी के साथ कोर्ट ने सीआईएसएफ में बतौर हेड कांस्टेबल/कमांडो कार्यरत रहे दो लोगों की विशेष अपील मंजूर करते हुए उनकी सेवा से बर्खास्तगी को अवैध करार देते हुए उन्हें सेवा में बहाल करने का निर्देश दिया है।
यह आदेश न्यायमूर्ति अश्वनी कुमार मिश्र एवं न्यायमूर्ति एसक्यूएच रिजवी की खंडपीठ ने परमजीत सिंह व जितेंद्र सिंह की विशेष अपील पर उनके अधिवक्ता आलोक कुमार यादव व वशिष्ठ दुबे को सुनकर दिया है। बर्खास्तगी के खिलाफ इनकी याचिका एकल पीठ ने खारिज कर दी थी। अपीलार्थियों के अधिवक्ता आलोक कुमार यादव व वशिष्ठ दुबे का तर्क था
SPECIAL APPEAL No. – 59 of 2024 at Allahabad : Paramjit Singh Vs. Union Of India Through Secretary Home And 3 Others
Date of Decision – 9/4/2024
Court Number – 42
Judgment Type – Final AFR
Coram – Hon’ble Ashwani Kumar Mishra,J. and Hon’ble Syed Qamar Hasan Rizvi,J.
Petitioner’s Counsels – Alok Kumar Yadav and Vashistha Dubey
Respondent’s Counsel – A.S.G.I. and Pooja Agarwal
And
SPECIAL APPEAL No. – 54 of 2024 at Allahabad : Jitendra Singh Vs. Union Of India And 4 Others
Date of Decision – 9/4/2024
Court Number – 42
Judgment Type – Final AFR
Coram – Hon’ble Ashwani Kumar Mishra,J. and Hon’ble Syed Qamar Hasan Rizvi,J.
Petitioner’s Counsels – Alok Kumar Yadav and Vashistha Dubey
Respondent’s Counsel – A.S.G.I.
Hon’ble Ashwani Kumar Mishra,J.
Hon’ble Syed Qamar Hasan Rizvi,J.
(Delivered by: Hon’ble Syed Qamar Hasan Rizvi,J.)
1. Both these intra Court appeals filed by the appellants-petitioners under Rule 5 of Chapter VIII of Allahabad High Court Rules (Rules of the Court, 1952), are against the judgments and orders dated 22.12.2023 passed by the learned Single Judge in exercise of its writ jurisdiction. The Writ Court separately, vide impugned judgments and orders dated 22.12.2023, dismissed the writ petitions filed by Paramjit Singh and Jitendra Singh bearing Writ-A No. 8019 of 2012 and Writ- A No. 18146 of 2012, respectively, inter alia, challenging the order dated 25.09.2004 as also the appellate order dated 13.01.2005 and the orders passed by the revisional authority on 31.10.2005 and 28.11.2011. Though the Writ Petitions have been decided separately, but the reasons for dismissal of the petitions as returned by the learned Single Judge are the same and as such both the Special Appeals are hereby decided by this common order.
2. Facts that are culled out from the pleadings and the material available on record before this Court are that the appellants-petitioners were appointed as Constable and subsequently got promoted to the post of Head Constable in the Central Industrial Security Force (hereinafter referred to as CISF) and were assigned duties of security at NARORA Atomic Power Plant (Anupshahar), Bulandshahar. The case of the appellants-petitioners is that while posted at NARORA Atomic Power Plant, on 03.09.2004 at around 2:30 PM, 5 ladies were spotted inside the said atomic power plant. Since the security of the aforesaid power plant was extremely sensitive, the appellant namely Paramjit Singh immediately raised alarm and in response to the same the petitioner of the Writ- A No.18146 of 2012 namely Jitendra Singh, who was also a Head Constable/Driver immediately reached the spot, but could detain only 3 ladies and brought them at the security gate and before any paperwork could be done, a large number of villager, local politicians and media persons assembled and created a scene and mounted pressure to secure release of the aforesaid detained women.
3. On 12.09.2004, an F.I.R. was lodged against the appellants-petitioners under section 376 I.P.C. read with Section 3(i)(xii) and 3(ii)(v) of the SC/ST Act, 1989, and the case was registered as Case Crime No. 182 of 2004. The incident was highlighted in the local newspapers.
4. The appellants-petitioners were suspended vide order dated 13.09.2004 passed by the Assistant Commandant, CISF UNIT NAPS (respondent no.4) with the direction not to leave the headquarters without obtaining the prior permission of the respondent no.4 during the suspension period.
5. The contention of the appellants is that they could have not stayed at the headquarters during the suspension period under the unavoidable circumstances inasmuch as an First Information Report (F.I.R.) having been lodged against them and there was an apprehension of being arrested. The appellants in order to seek legal protection from the Court of law, approached the High Court at Allahabad by way of filing a Criminal Misc. Writ Petition No.7426 of 2004 (Jitendra Singh and another versus State of U.P. and others). The High Court vide order dated 23.09.2004 dismissed the said writ petition with the observation that in case the petitioner surrenders and moves an application for bail in the aforesaid criminal case, the court concerned shall consider and dispose of the same expeditiously and in accordance with law.
6. A preliminary inquiry was also conducted against the petitioners for disobeying the conditions imposed in the suspension order dated 13.09.2004. Thereafter, the Commandant, CISF UNIT NAPS, NARORA, vide order dated 25.09.2004 held that it was not reasonably practicable to hold an enquiry in the matter as is provided under Rule 36 of the CISF Rules, 2001 and exercising the powers conferred under Rule 32, 34 & 39(ii) of the CISF Rules, 2001, proceeded to dismiss the appellants-petitioners from service. Both the above named appellants filed departmental appeals against the dismissal order dated 25.09.2004 before the Deputy Inspector General, CISF (respondent no.3) that were dismissed vide order dated 13.01.2005. Thereafter, they filed separate revisions challenging the said order of dismissal. The Inspector General (WS), CISF (respondent no.2) dismissed the said revisions of the appellants, namely, Paramjit Singh and Jitendra Singh vide orders dated 31.10.2005 and 09.08.2005, respectively.
7. Both the above named appellants individually filed writ petitions before this Court assailing the dismissal order and also the appellate as well as revisional orders passed against the them. The said writ petition filed by the petitioner-appellant Paramjit Singh was registered as Writ- A No.59016 of 2007 and the writ petition filed by Jitendra Singh was registered as Writ- A No.78351 of 2005. It would not be out of place to note that since both the appellants were acquitted vide judgment and order dated 07.06.2007 passed by the Court of learned Special Judge (SC/ST Act), Bulandshahar in Session Trial No.271 of 2005 (State versus Paramjit Singh and another), this Court by a common order dated 17.08.2011 disposed of both the said writ petitions by granting liberty to the petitioner to approach the revisional authority by way of an appropriate representation with a direction to the revisional authority to pass appropriate orders in accordance with law in the light of the observations made in the said order within a period of two months from the date of submission of such representation. The extract of the aforementioned order dated 17.08.2011 is reproduced below:
“Having considered the submissions, what is to be noticed is that the basis for passing the order of dismissal was lodging of the criminal case against the petitioners, it being highlighted in the newspapers, adversely affected the image of the CISF as a whole. Although the petitioners have not been able to demonstrate why they were falsely implicated but the fact remains that in the trial both the victims have denied in their statements that it was the petitioners who had raped them. Once the victims have themselves in the trial not recognized the petitioners as the culprits, the basis for their dismissal on the ground of the said incident needs to be reconsidered.
It is well settled that where an employee who is dismissed on the ground of a criminal case filed against him, although acquitted in the said criminal case, it would still be at the discretion and within the power of the Disciplinary Authority whether or not to take back in service such employees. the Disciplinary Authority for reasons to be recorded may refuse. There could be a case where after the lodging of a criminal case, the department may hold an internal inquiry and based upon the material adduced in the said inquiry may award the punishment. However in the present case no inquiry has been conducted and the order of dismissal has been passed exercising special powers under Rule 39(ii) of the CISF Rules. In the opinion of the Court, the Disciplinary Authority or the Appellate Authority or the Revisional Authority may re-examine the case of the petitioners in the light of the judgment of the trial Court in the Criminal case and pass appropriate orders. The petitioners should not be made to suffer for an offence they may not have committed.
Thus, without going into the question as to whether the order of dismissal in absence of any inquiry was vitiated or not in the opinion of the Court the appropriate authorities may reconsider the matter upon appropriate representation being moved by the petitioners. As the matter had been taken into appeal and revision, the proper course open to the petitioners would be to approach the Revisional Authority for recalling its order and for reconsidering the matter. It would be for the Revisional Authority whether to consider the matter at its level or remit the same to the Disciplinary Authority to reconsider in the light of the judgment of acquittal and the evidence led in the trial. In view of the above, both the petitions stand disposed of with liberty to the petitioners to approach the Revisional Authority by way of an appropriate representation annexing a copy of the judgment of the trial court along with certified copy of this order and upon such representation being filed the Revisional Authority may proceed to pass appropriate orders in accordance with law in the light of the observations made in this order within a period of two months from the date of submission of such representation along with certified copy of the order.”(emphasis supplied by us)
8. The representation filed by the appellants-petitioners, said to have been moved on 04.10.2011, was rejected by the Inspector General (respondent no.2) vide order dated 28.11.2011. The extract of the relevant portion of the order dated 28.11.2011 is reproduced hereinbelow:
“……The representation of the petitioner has been considered on merit in compliance of order of Hon’ble Allahabad High Court and the entire proceeding has been re-examined.
8. Therefore, in due compliance of the judgment orders of Hon’ble Allahabad High Court dated 17.8.2011 and Hon’ble trial court dated 07.6.2007 to re-consider this matter, the charges on the basis of which departmental action was processed against the petitioner and the decision of the revisional authority need to be analyzed. Upon examination of materials held on records it is revealed that the Disciplinary Authority got a Preliminary enquiry conducted into the reported breach in discipline and found that (i) the petitioner while deployed for patrolling/mess duty in STF wing remained absent from STF barrack from 1400 hrs on 03.9.2004 unauthorisdly, (ii) he alongwith HC/Dvr Jitender Singh detained 03 ladies, letting two other ladies to go out of boundary wall and then they misbehaved with two of the ladies, namely Smt. Meena and Smt. Maharani and (iii) that they did not inform this incident of trespass and subsequent events to any of their senior officer. Thus, even though the petitioner has been acquitted from the charges of committing rape and offence under SC/ST Act, the facts as mentioned at (i), (ii) and (iii) above have not been disputed.
9. With reference to the issue of conducting regular DE after culminaton of Preliminary Enquiry it has come on record that the petitioner deserted the unit lines on 19.9.2004 while under suspension violating the instructions contained in para-3 of suspension order dated 13.9.2004 which was duly acknowledged by him and the Disciplinary Authority found it highly impractical to conduct Departmental Enquiry in the manner provided under rule-36 of CISF Rules 2001 in the hostile situation.
10. Thus, the delinquencies at (i) to (iii) above in para-8 proved in the preliminary enquiry which formed the basis of order passed by the disciplinary authority are different from the crime of rape and offense under SC/ST Act from which the Hon’ble Trial court has acquitted the petitioner. In other words, the charges under criminal case against the petitioner have not been the sole matter of consideration in the instant Departmental proceedings.
11. As such, even after due compliance of the Hon’ble High Court order and after taking into consideration the observations made in the order, I find the order of Disciplinary Authority commensurate with the gravity of undisciplined acts and misconduct on the part of the petitioner being a member of Armed Force of Union and subversive for good order and Force discipline and, therefore, does not warrant interference in order passed by Disciplinary Authority and upheld by Appellate Authority.
12. The representation submitted by the petitioner herein is, therefore, rejected being devoid of merit.”
9. After the rejection of their above-mentioned representations; by the second respondent vide order dated 28.11.2011, the appellants separately filed petitions before the Writ Court, having Writ- A No. 8019 of 2012 and Writ- A No. 18146 of 2012. The learned Writ Court after hearing the parties and exchange of pleadings, dismissed both the writ petitions, vide the impugned order dated 22.12.2023 on the identical grounds. The extract of the findings returned by the learned Writ Court resulting into the dismissal of the Writ- A No.8019 of 2012 is reproduced below:
“23. After hearing the submissions extended on behalf of learned counsels for rival parties, after perusing the records and giving full regards to the judgments rendered by Hon’ble Supreme Court and relied upon by learned counsels for the parties, it is crystal clear that submission made by learned counsel for the petitioner on the factual aspect are difficult to be gone into by this Court in proceedings of this petition where writ jurisdiction under Article 226 of the Constitution of India has been invoked.
24. It is well settled while judicially reviewing any punishment order passed in disciplinary proceedings, the scope of interference of this Court is very limited and is confined to finding of fact the procedural flaws, if any.
25. The arguments raised by learned counsel for respondents seems to be forceful.
26. The entire disciplinary proceeding initiated against petitioner and the punishment has been based on the concurrent findings of facts which cannot be interfered by this Court. Moreover, no procedural flaw has been highlighted by learned counsel for petitioner while challenging the punishment order through the present petition.
27. In view of aforesaid, I do not find any good ground to interfere in the impugned orders. The instant petition thus lacks merit is accordingly dismissed.”
10. Being aggrieved by the impugned order dated 22.12.2023, the petitioners-appellants preferred the instant Special Appeals. The bone of contention as advanced by the learned counsel for the appellants is that the learned Writ Court has failed to appreciate the material fact that the order of dismissal from service, being a major punishment could not have been passed merely on the basis of a preliminary enquiry which is simply a fact-finding enquiry, but the respondent authorities without giving any plausible reason for the exercise of the special procedure as contemplated under Rule 39(ii) of the CISF Rules, 2001, proceeded to pass the order of major punishment by circumventing the regular enquiry. It has been further contended that no punishment can be passed merely on the basis of the evidence collected during preliminary enquiry. In support of his contention, learned counsel relied upon the judgment of the Hon’ble Supreme Court in the case of Nirmala J. Jhala versus State of Gujarat and another, reported in (2013) 4 SCC 301 and also the Judgment dated 15.06.2022 passed by a Divison Bench of the Karnataka High Court in the case of Sri Vikas Verma and others versus Union of India and others (W.P. No. 12681-12685 of 2016). He further asserted that the appellants-petitioners were honorably acquitted as the prosecution miserably failed to prove the charges in the Sessions Trial. Since the evidence and witness before the Criminal Court as well as before preliminary enquiry were same, thus, the judgment and order passed by the Sessions Court dated 07.06.2007 had a serious bearing on the preliminary enquiry but the respondents, despite the categorical direction dated 17.08.2011 issued by the Writ Court in Writ- A No.78351 of 2005 connected with Writ- A No. 59016 of 2007, did not consider the said aspect of the matter and rejected the representation of the appellants in the most mechanical manner thereby holding that the impugned orders do not warrant inteference. This aspect of the matter has not been appreciated even by the Hon’ble Single Judge while passing the impugned order dated 22.12.2023.
11. It has also been contended that the respondent authorities have invoked the special procedure contemplated under Rule 39 of the CISF Rules, 2001, by treating the short absence of the appellants-petitioners from the headquarters as ‘absconders’ or ‘deserters’ while no proceeding was ever initiated for declaring them as ‘absconders’ or ‘deserters’. Further, a short absence from Unit cannot be construed as a sufficient ground to invoke the extra-ordinary powers of dispensing with the enquiry, and as such the order of dismissal passed by the respondent authority under the garb of Rule 39(ii) of the CISF Rules, 2001, is not only is violative of principles of natural justice but is also per-se illegal. It has also been asserted by the learned counsel for the appellant-petitioner that the Writ Court has failed to consider that the order dated 28.11.2011 passed by the second respondent is on a premise, which is entirely distinct from the issue that has been made the basis of dismissal order dated 25.09.2004. The second respondent while passing the impugned order dated 28.11.2011 carved out a new case by giving colour to the allegations that ultimately failed before the learned Sessions Court and as such are unsustainable in law.
12. Per contra, appearing on behalf of the Union of India/respondent, the learned Additional Solicitor General vehemently opposed the Special Appeals and asserted that on an F.I.R. being lodged under Section 376 I.P.C. and Section 3(i)(xii) of SC/ST Act, by the victims against the appellants-petitioner, they were placed under suspension vide order dated 13.09.2004 and they were instructed not to leave headquarters during suspension period without obtaining prior permission of the competent authority. While the preliminary enquiry was being conducted, the appellants-petitioners were reported absconding from the unit lines without permission/information of the competent authority. However, while returning to barracks, neither they informed about the incident nor did they make G.D. to that effect and hid from everyone. This incident caused rift in the relationship between the CISF and the locals. Due to such activity of the appellant-petitioner, the image of CISF was badly tarnished by the print and electronic media. Taking into consideration the seriousness of the matter and the fact that the issue could not be prolonged for an indefinite period and since appellants-petitioners were considered “absconding” from the unit lines during the suspension period, it was considered not practicable to hold enquiry under Rule 36 of the CISF Rules, 2001. Thus, the action was initiated in exercise of Rule 39(ii) of the CISF Rules, 2001 and the appellants-petitioners were dismissed from service vide order dated 25.09.2004. He further contended that the said order dated 25.09.2004 was passed to bridge the gap between the CISF and society and to restore the pride and prestige of the Force. Learned Additional Solicitor General of India placed reliance upon a Division Bench Judgment passed by the Delhi High Court in the case of Manojit Ghosh versus Union of India and others, reported in 2012 SCC OnLine DEL 888.
13. Having heard Sri Alok Kumar Yadav, learned counsel for the appellant and Sri Shashi Prakash Singh, learned Additional Solicitor General of India, assisted by Ms. Pooja Agarwal, learned counsel for the respondent and upon perusal of the pleadings on record before this Court, the pivotal issue that emerges for consideration is that whether in the facts and circumstances of the instant case the provision of Rule 39(ii) of the CISF Rules, 2001 has been correctly invoked to dismiss the appellants-petitioners by dispensing with the procedure of enquiry for imposing major penalties otherwise contemplated under Rule 36 of the CISF Rules, 2001. The relevant provision of Rule 39(ii), for a ready reference, is quoted below:
“Special procedure in certain cases- Not withstanding anything contained in rules 36 to 38-
(i) where any penalty is imposed on an enrolled member of the Force on the ground of conduct which had led to his conviction on a criminal charge; or
(ii) where the disciplinary authority is satisfied for reasons to be recorded by it in writing that it is not reasonably practicable to hold an inquiry in the manner provided in these rules, or
(iii) where the President is satisfied that in the interest of the security of the State, it is not expedient to hold any inquiry in the manner provided in these rules, the disciplinary authority may consider the circumstances of the case and make such orders thereon as it deems fit;
Provided that the enrolled member of the Force may be given an opportunity of making repersentation against the penalty proposed to be imposed before any order is made in case under clause (i).”
14. The question as to the circumstance in which the disciplinary enquiry could be dispensed has been elaborately dealt with by the Hon’ble Supreme Court in the case of Union of India and another versus Tulsiram Patel and other connected appeals, reported in (1985) 3 SCC 398. The extract of paragraph 130 of the said judgment is quoted below for ready reference:
“130. The condition precedent for the application of clause (b) is the satisfaction of the disciplinary authority that “it is not reasonably practicable to hold” the inquiry contemplated by clause (2) of Article 311. What is pertinent to note is that the words used are “not reasonably practicable” and not “impracticable”. According to the Oxford English Dictionary “practicable” means “Capable of being put into practice, carried out in action, effected, accomplished, or done; feasible”. Webster’s Third New International Dictionary defines the word “practicable” inter alia as meaning “possible to practice or perform : capable of being put into practice, done or accomplished: feasible”. Further, the words used are not “not practicable” but “not reasonably practicable”. Webster’s Third New International Dictionary defines the word “reasonably” as “in a reasonable manner: to a fairly sufficient extent”. Thus, whether it was practicable to hold the inquiry or not must be judged in the context of whether it was reasonably practicable to do so. It is not a total or absolute impracticability which is required by clause (b). What is requisite is that the holding of the inquiry is not practicable in the opinion of a reasonable man taking a reasonable view of the prevailing situation. It is not possible to enumerate the cases in which it would not be reasonably practicable to hold the inquiry, but some instances by way of illustration may, however, be given. It would not be reasonably practicable to hold an inquiry where the government servant, particularly through or together with his associates, so terrorizes, threatens or intimidates witnesses who are going to give evidence against him with fear of reprisal as to prevent them from doing so or where the government servant by himself or together with or through others threatens, intimidates and terrorizes the officer who is the disciplinary authority or members of his family so that he is afraid to hold the inquiry or direct it to be held. It would also not be reasonably practicable to hold the inquiry where an atmosphere of violence or of general indiscipline and insubordination prevails, and it is immaterial whether the concerned government servant is or is not a party to bringing about such an atmosphere. In this connection, we must bear in mind that numbers coerce and terrify while an individual may not. The reasonable practicability of holding an inquiry is a matter of assessment to be made by the disciplinary authority. Such authority is generally on the spot and knows what is happening. It is because the disciplinary authority is the best judge of this that clause (3) of Article 311 makes the decision of the disciplinary authority on this question final. A disciplinary authority is not expected to dispense with a disciplinary inquiry lightly or arbitrarily or out of ulterior motives or merely in order to avoid the holding of an inquiry or because the Department’s case against the government servant is weak and must fail. The finality given to the decision of the disciplinary authority by Article 311(3) is not binding upon the court so far as its power of judicial review is concerned and in such a case the court will strike down the order dispensing with the inquiry as also the order imposing penalty………..”
15. In the instant case, the reason for absence from the Unit narrated by the appellant-petitioner in paragraphs no.8 and 9 of the writ petition No. 8019 of 2012, is that he was pursuing his case before the High Court at Allahabad during the period of alleged preliminary enquiry, the report of which has been made the sole basis of the passing of the dismissal order dated 25.09.2004. The said averment has been replied by the respondents in the corresponding paragraphs of the counter affidavit dated 11.06.2012, inter-alia stating therein that the departmental proceedings have no relation with the criminal proceedings. The appellant-petitioner was placed under suspension vide order dated 19.09.2004 with a direction that they shall not leave the headquarters without the prior permission of the disciplinary authority, but for the reason that the petitioner disobeyed the instruction and absconded from the unit lines at 21:05 hours on 19.04.2005, that compelled the disciplinary authority to take up disciplinary action by exercising the power under Rule 39(ii) of the CISF Rules, 2001.
16. Refuting the above stand of the respondent authorities, it is pleaded on behalf of the appellants-petitioners that in so far as the temporary absence of the appellants from the headquarter is concerned, the same did not amount to desertion inasmuch as the desertion has to be permanent. Justifying his absence from the Unit at the time when the alleged preliminary enquiry was in contemplation, the learned counsel submitted that the appellants-petitioners had to go to file the writ petition before the High Court at Allahabad, and it is for this reason, they left the unit on 20.09.2004 and reported back to the unit on 25.09.2004 and furthermore, there is nothing on record to show that the petitioners were ever declared ‘absconders’ or ‘deserters’. The action on the part of the disciplinary authority in proceeding against them under the garb of Rule 39(ii) of the CISF Rules, 2001 is a hasty and unreasonable decision and cannot be justified in view of the fact that they were slapped with the major punishment of dismissal from service in the most arbitrary manner even without following the due procedure as is provided under law thereby depriving them of their valuable right to defend their case by filing a reply to the alleged charges and to cross-examine the witnesses.
17. The law is well settled that the rule of audi alteram partem cannot be ignored ordinarily and especially when it is a case of major punishment adversely affecting the rights of a person. The Hon’ble Supreme Court in the case of Tulsiram Patel (supra) has been pleased to hold as under:
“96. The rule of natural justice with which we are concerned in these appeals and writ petitions, namely, the audi alteram partem rule, in its fullest amplitude means that a person against whom an order to his prejudice may be passed should be informed of the allegations and charges against him, be given an opportunity of submitting his explanation thereto, have the right to know the evidence, both oral or documentary, by which the matter is proposed to be decided against him, and to inspect the documents which are relied upon for the purpose of being used against him, to have the witnesses who are to give evidence against him examined in his presence and have the right to cross-examine them, and to lead his own evidence, both oral and documentary, in his defence. The process of a fair hearing need not, however, conform to the judicial process in a Court of law, because judicial adjudication of causes involves a number of technical rules of procedure and evidence which are unnecessary and not required for the purpose of a fair hearing within the meaning of audi alteram partem rule in a quasi-judicial or administrative inquiry. If we look at clause (2) of Article 311 in the light of what is stated above, it will be apparent that that clause is merely an express statement of the audi alteram partem rule which is implicitly made part of the guarantee contained in Article 14 as a result of the interpretation placed upon that article by recent decisions of this Court. Clause (2) of Article 311 requires that before a government servant is dismissed, removed or reduced in rank, an inquiry must be held in which he is informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. The nature of the hearing to be given to a government servant under clause (2) of Article 311 has been elaborately set out by this Court in Khem Chand case [AIR 1958 SC 300 : 1958 SCR 1080 : (1959) 1 LLJ 167] in the passages from the judgment extracted above. Though that case related to the original clause (2) of Article 311, the same applies to the present clause (2) of Article 311 except for the fact that now a government servant has no right to make any representation against the penalty proposed to be imposed upon him but, as pointed out earlier, in the case of Suresh Koshy George v. University of Kerala [AIR 1969 SC 198 : (1969) 1 SCR 317, 326] such an opportunity is not the requirement of the principles of natural justice and as held in Associated Cement Companies Ltd. v. T.C. Shrivastava [1984 Supp SCC 87 : 1984 SCC (L&S) 488 : (1984) 3 SCR 361, 369] neither the ordinary law of t he land nor industrial law requires such an opportunity to be given. The opportunity of showing cause against the proposed penalty was only the result of the interpretation placed by the Judicial Committee of the Privy Council in Lall case [AIR 1948 PC 121 : LR (1947-1948) 75 IA 225, 243-4 : 1948 FCR 44] upon Section 240(3) of the Government of India Act, 1935, which was accepted by this Court in Khem Chand case [AIR 1958 SC 300 : 1958 SCR 1080 : (1959) 1 LLJ 167] . If, therefore, an inquiry held against a government servant under clause (2) of Article 311 is unfair or biased or has been conducted in such a manner as not to give him a fair or reasonable opportunity to defend himself, undoubtedly, the principles of natural justice would be violated, but in such a case the order of dismissal, removal or reduction in rank would be held to be bad as contravening the express provisions of clause (2) of Article 311 and there will be no scope for having recourse to Article 14 for the purpose of invalidating it.”
18. In so far as the contention of the learned counsel for the petitioners-appellants that the order of dismissal has been passed neither on merits of the case nor by taking into consideration the factual matrix of the case, rather the order of dismissal was passed under the pressure and influence of the local residents and the media, finds strength from a bare perusal of the impugned order dated 25.09.2004, which contains the following:
“………..…
9. Whereas on 12.09.04, a news article appeared in Hindi daily Dainik Jagaran containing all fame for CISF Unit Arora as a whole, which continues till date.
10. Whereas, an FIR lodged by the aggrieved two ladies vide crime no. 182/04 dated 12.09.04 under section 376 IPC and Section 3(1)12 of SC / ST Act against him in Narora Police Station.
11. Whereas, HC/Dvr, Paramjit Singh has been placed under suspension wef, 13.09.04.
12. Whereas MOTO directed her he would not Paramjit Singh was clearly leave Unit Hqrs., without prior permission of the Disciplinary Authority, during the period of suspension.
13. Whereas, absconding suspension, with effect from 19.09.04, himself from without the he is unit lines during taking permission from any competent authority and is still absconding till date which itself speaks that he wanted to evade from the legal rand disciplinary action against the delinquency he committed.
14. Whereas, from the articles published in various news papers from 12.09.04 to till date and news articles broadcasted in various TV news channels, it is clear that not only, this incident has badly tarnished the image of CISF in this vicinity but also brought ill fame and disgrace to the Force as a whole.
15. Whereas, this incident has caused rift in the relationship of brotherhood, peace and harmony between CISF and locals and also the employees of the Undertaking where he is deployed.
16. Whereas, considering the sensitivity and seriousness of heinous act on the part of HC/Dvr. Paramjit Singh, it is eminent to keep the morale of the members of the force high by taking stern decision in the matter.
17. Whereas, since it is considered that to bridge the gap between the CISF and local inhabitants and also to restore normalcy of the situation this case cannot be prolonged for indefinite period.
18. Whereas, HC/Dvr. Paramjit Singh is still absconding himself and his whereabouts are still not known and I am satisfied that it will not be reasonably practicable to hold an enquiry in the manner provided under Rule-36 of CISF Rules, 2001, meet the ends of justice.
19. And whereas, on considering facts and circumstances of this case I am satisfied that the penalty of ‘Dismissal from Service’ should be imposed on No. 884526522 HC/Dvr. Paramjit Singh. Now, therefore, by view of the powers conferred upon me by Rule 32, read in conjunction with Schedule-I and Rule 34, and Rule 39(ii) of CISF Rules, 2001, I order that No. 884526522 HC/Dvr. Paramjit Singh be ‘Dismissed from service’ from the date of issue of this order from his above serious misconduct being a member of disciplined Force of the Union like CISF as his continuance in the service will prejudicial in the interest of public service.
…………….”
19. Further, it has been vehemently argued on behalf of the appellant-petitioners that once the appellants have been acquitted in the criminal case, on finding it to be a case of ‘no evidence’ and more so when this aspect of the matter has been directed to be noticed by the High Court vide order dated 17.08.2011 in the writ petition No. 78351 of 2005, the revisional authority was required to re-consider the matter in the light of the judgment of acquittal and the evidence led in the trial. The action of Inspector General (respondent no.2) in passing the order treating the petitioners to be guilty of the alleged offence is not only in disregard to the order dated 17.08.2011 passed by the High Court but amounts to a premeditated decision to punish the appellants for the alleged act for which no evidence exists.
20. In so far as the judgment passed in Manojit Ghosh (supra), relied upon by Ms. Pooja Agarwal, learned counsel for the respondent, is concerned, the same is not applicable in the present case. In the case of Manojit Ghosh (supra), the Court found no malafide and arbitrariness on the part of the authorities while in the present case, the allegation of the appellants-petitioners is that the disciplinary authority without taking into consideration the merits of the case, passed the order of dismissal under the pressure of the villagers, local politicians and media and the said allegation contained in paragraph 20 of the writ petition has been replied in paras 20 and 17 of the counter affidavit filed by the respondents wherein there is no specific denial of the said argument. Further, the impugned order itself speaks the basis of the proceeding as ‘to bridge the gap between the CISF and local inhabitants’ which renders the factual matrix of Manojit Ghosh (supra) case distinguishable from the facts of the present case, and the judgment relied upon is not attracted in the present case. The other judgment passed in the case of Sri Vikas Verma (supra), as relied upon by the learned counsel appearing for the respondent, is also not applicable in the present case as the same has been passed in a case where the Court considered the ‘incident being rarest of the rare’. For ready reference, the observations made in para 19 of the said judgment are quoted below:
“The incidents being rarest of the rare and considering the discipline and moral of the force, the disciplinary authority rightly held that it is not reasonably practicable to hold a regular enquiry. The disciplinary authority has rightly held that if a regular enquiry would have been held, the same would have spread the news of heinous incidents committed in the premises of CISF when the complainant’s husband was away for duty. It would have caused serious psychological impact and insecurity in the minds of personnel who have left their family on campus and holding of departmental enquiry, would have adverse ramification and administrative difficulties while deploying the personnel outside the area of premises. Thus, the disciplinary authority has recorded the satisfaction on the objective facts and the decision to dispense with the departmental enquiry is neither outcome of whim or caprice of the disciplinary authority nor is malafide. This court cannot sit in appeal over the decision taken by disciplinary authority to dispense with enquiry. Therefore, no case for interference with the decision to dispense with the regular enquiry is made out in exercise of powers of judicial review.”
21. In the case of Jaswant Singh versus State of Punjab and others; reported in (1991) 1 SCC 362, the Hon’ble Supreme Court held:-
“It was incumbent on the respondents to disclose to the Court the material in existence at the date of the passing of the impugned order in support of the subjective satisfaction recorded by respondent No.3, in the impugned order. Clause (b) of the second proviso to Article 311(2) can be invoked only when the authority is satisfied from the material place before him that it is not reasonably practicable to hold a departmental inquiry.”
The Supreme Court further held:
“The decision to dispense with the departmental inquiry cannot, therefore, be rested solely on the ipse dixit of the concerned authority. When the satisfaction of the concerned authority is questioned in a Court of law, it is incumbent on those who support the order to show that the satisfaction is based on certain objective facts and is not the outcome of the whim of caprice of the concerned officer.”
22. Further, in the case of Sudesh Kumar versus State of Haryana and others; reported in (2005) 11 SCC 525, the Supreme Court observed as follows:-
“It is now established principle of law that an inquiry under Article 311(2) is a rule and dispensing with the inquiry is an exception. The authority dispensing with the inquiry under Article 311(2)(b) must satisfy for reasons to be recorded that it is not reasonably practicable to hold an inquiry. A reading of the termination order by invoking Article 311(2)(b), as extracted above, would clearly show that no reasons whatsoever have been assigned as to why it is not reasonably practicable to hold an inquiry. The reasons disclosed in the termination order are that the complainant refused to name the accused out of fear of harassment; the complainant, being a foreign national, is likely to leave the country and once he left the country, it may not be reasonably practicable to bring him to the inquiry. This is no ground for dispensing with the inquiry. On the other hand, it is not disputed that, by order dated 23-12-1999, the visa of the complainant was extended up to 22-12-2000. Therefore, there was no difficulty in securing the presence of Mr Kenichi Tanaka in the inquiry.35
A reasonable opportunity of hearing enshrined in Article 311(2) of the Constitution would include an opportunity to defend himself and establish his innocence by cross-examining the prosecution witnesses produced against him and by examining the defence witnesses in his favour, if any. This he can do only if inquiry is held where he has been informed of the charges levelled against him. In the instant case, the mandate of Article 311(2) of the Constitution has been violated depriving reasonable opportunity of being heard to the appellant.”
23. Moreover, the Hon’ble Supreme Court in the case of Chief Security Officer and others versus Singasan Rabi Das; reported in 1991(1) SCC 729, has also held that in the absence of sufficient material or good ground for dispensing with the inquiry, the termination order is illegal.
24. It is settled law that the evidence recorded in the preliminary enquiry cannot be used in regular enquiry as the delinquent is not associated with it, and opportunity to cross-examine the persons examined in such enquiry is not given. Using such evidence would be violative of the principles of natural justice. A Constitution Bench of this Court in the case of Amalendu Ghosh verus North Eastern Railway, reported in AIR 1960 SC 992, has held that the purpose of holding a preliminary enquiry in respect of a particular alleged misconduct is only for the purpose of finding a particular fact and prima facie to know as to whether the alleged misconduct has been committed and only on the basis of the findings recorded in preliminary enquiry, no order of punishment can be passed.
25. Having regard to the facts and circumstances as have been narrated hereinabove, it is evident that the disciplinary authority-respondents dismissed the appellants without following the procedure as contemplated under Rule 36 of the CISF Rules, 2001, and by resorting to Rule 39(ii) thereby treating the petitioner to be absconding from the Unit. However, from the pleadings as are available before us, it is evident that the absence of the appellant from the Unit was not as such to be treated as ‘absconding’ and compelling the respondents to resort to the Rule 39(ii) which empowers the disciplinary authority to dispense with the departmental enquiry for passing of the punishment order.
26. The mandate of the law is clear that before dispensing with an enquiry, a subjective satisfaction is to be arrived at by the Disciplinary Authority that it is not reasonably practicable to hold a regular departmental enquiry. These reasons must be based on an objective criterion and not on the whims and fancies of the Disciplinary Authority. In other words, it cannot be based on surmises and conjectures, but must reflect the actual ground reality, which makes it not reasonably practicable for the Disciplinary Authority to order a regular departmental enquiry.
27. As such the action on the part of the disciplinary authority to proceed against the appellants in the garb of Rule 39 of the CISF Rules, 2001 is a hasty decision and cannot be justified in light of the fact that the major punishment of dismissal has been awarded against the appellants without even following the due procedure, resultantly depriving them to defend their case by filing a reply to the alleged charges and to cross-examine the witnesses.
28. Further, nothing could be shown on behalf of the respondents that any effort was made by the authorities to find out the whereabouts of the appellants-petitioners, before resorting to the provisions of 39(ii) of the CISF Rules, 2001. The learned Additional Solicitor General defending the action of the respondent authorities in passing the impugned dismissal order by dispensing with the regular departmental enquiry; submitted that due to the misconduct committed by the appellant-petitioner, the image of CISF was badly tarnished by the print and electronic media. Taking into consideration the seriousness of the matter, the case could not be prolonged for the indefinite period and since appellants-petitioners were absconding from the unit lines during the suspension period and also their whereabouts were not known, it was considered not practicable to hold enquiry under Rule 36 of the CISF Rules, 2001and as such, action was initiated on the strength of Rule 39(ii) of the CISF Rules, 2001 and the appellants-petitioners were dismissed from service vide order dated 25.09.2004.
29. It also goes without saying that in the set of circumstances as narrated above, instead of resorting to the provisions of Rule 39(ii) of the CISF Rules, 2001, dealing with the dispensation of the regular departmental enquiry, the Disciplinary Authority at the most could have held an ex-parte regular enquiry, as contemplated under the said Rules, 2001, to proceed for dismissal of the services of the appellants-petitioners.
30. Needless to say that the power of the disciplinary authority to continue with the department enquiry cannot be curbed on the ground of acquittal of the delinquent by the Criminal Court, but normally where the accused is acquitted honorably and exonerated of the charges it would not be expedient to carry out a departmental enquiry on the very same charge or grounds or evidence. This aspect has been discussed by the Hon’ble Supreme Court in the case of G.M. Tank versus State of Gujarat, reported in (2006) 5 SCC 446. The relevant paragraphs of the same are reproduced below:
“ 30. The judgments relied on by the learned counsel appearing for the respondents are distinguishable on facts and on law. In this case, the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in a departmental case against the appellant and the charge before the criminal court are one and the same. It is true that the nature of charge in the departmental proceedings and in the criminal case is grave. The nature of the case launched against the appellant on the basis of evidence and material collected against him during enquiry and investigation and as reflected in the charge-sheet, factors mentioned are one and the same. In other words, charges, evidence, witnesses and circumstances are one and the same. In the present case, criminal and departmental proceedings have already noticed or granted on the same set of facts, namely, raid conducted at the appellant’s residence, recovery of articles therefrom. The Investigating Officer Mr V.B. Raval and other departmental witnesses were the only witnesses examined by the enquiry officer who by relying upon their statement came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case and the criminal court on the examination came to the conclusion that the prosecution has not proved the guilt alleged against the appellant beyond any reasonable doubt and acquitted the appellant by its judicial pronouncement with the finding that the charge has not been proved. It is also to be noticed that the judicial pronouncement was made after a regular trial and on hot contest. Under these circumstances, it would be unjust and unfair and rather oppressive to allow the findings recorded in the departmental proceedings to stand.
31. In our opinion, such facts and evidence in the departmental as well as criminal proceedings were the same without there being any iota of difference, the appellant should succeed. The distinction which is usually proved between the departmental and criminal proceedings on the basis of the approach and burden of proof would not be applicable in the instant case. Though the finding recorded in the domestic enquiry was found to be valid by the courts below, when there was an honourable acquittal of the employee during the pendency of the proceedings challenging the dismissal, the same requires to be taken note of and the decision in Paul Anthony case [(1999) 3 SCC 679 : 1999 SCC (L&S) 810] will apply. We, therefore, hold that the appeal filed by the appellant deserves to be allowed.”
31. Once it has been observed that there was no material available on record to establish that there was such a situation, much less any plausible justification to arrive at the conclusion that it was ‘not reasonably practicable’ to exercise the proceeding under section 36 of the CISF Rules, 2001; then the regular departmental enquiry becomes inevitable before awarding the major punishment of dismissal.
32. We have carefully perused the materials on record and we find that there was no intent from the very beginning on part of the employer to hold disciplinary enquiry, nor has it been shown that holding of the disciplinary enquiry became impermissible because of the alleged absence of the appellants. Since no steps were ever taken to initiate disciplinary enquiry, it was not open for the employer to state that holding of disciplinary enquiry became impermissible on account of non-availability of the appellants. We have already held that the absence from work was otherwise not for a long duration and had occasioned because the appellants were pursuing the legal remedy in respect of the criminal proceedings initiated against them by approaching the High Court.
33. In the case of Roop Singh Negi versus Punjab National Bank and others, reported in (2009) 2 SCC 570, the Hon’ble Supreme Court has been pleased to hold that a departmental proceeding is a quasi-judicial proceeding. The enquiry officer performs a quasi-judicial function. The charges levelled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the investigating officer against all the accused by itself cannot be treated to be credible evidence in the disciplinary proceeding. The witnesses are necessary to be examined to prove the documents and merely tendering of the same by the witnesses does not prove the contents thereof further, reliance inter alia, placed by the enquiry officer on the FIR could not be treated as evidence.
34. An eloquent statement of the aforesaid law, to the same end, can be found in a decision of this Court rendered by a Co-ordinate Bench in the case of State of U.P. versus Aditya Prasad Srivastava and another, reported in 2017 (2) ADJ 554 (DB) (LB), wherein it has been held as under:
“17. It is trite law that the departmental proceedings are quasi judicial proceedings. The Inquiry Officer functions as quasi judicial officer. He is not merely a representative of the department. He has to act as an independent and impartial officer to find out the truth. The major punishment awarded to an employee visit serious civil consequences and as such the departmental proceedings ought to be in conformity with the principles of natural justice. Even if, an employee prefers not to participate in enquiry the department has to establish the charge against the employee by adducing oral as well as documentary evidence. In case charges warrant major punishment then the oral evidence by producing the witnesses is necessary.”
35. In view of the aforesaid, we are of the opinion that the impugned order of dismissal does not reflect any satisfactory reasons for dispensing with the disciplinary inquiry. The charges so leveled are such that it can only be enquired through a proper departmental enquiry. It is not a case where it could be said that it was not reasonably practicable to hold an inquiry. In our opinion, the decision of the disciplinary authority was wholly arbitrary. In view of the aforesaid, the exercise of the powers under Rule 39(ii) of the CISF Rules, 2001 was totally unwarranted. Consequently, the impugned order of dismissal from the services against the appellants-petitioners is unsustainable in the eyes of law and as such is liable to be quashed.
36. The learned Single Judge while passing the impugned order dated 22.12.2023 has failed to appreciate the real controversy involved in the case, as discussed hereinabove and has declined to entertain the writ petitions by holding that the scope of interference of the Writ Court is very limited and is confined to the findings of fact of the procedural flaws, if any, in exercise of the writ jurisdiction under Article 226 of the Constitution of India and further recorded a finding that the entire disciplinary proceeding initiated against the petitioners and the punishment is based on the concurrent findings of facts which cannot be interfered by the Writ Court. We cannot approve of the view taken by the learned Single Judge that there is no procedural flaw in holding of the enquiry.
37. Taking into consideration the factual matrix of the case and the deliberations made hereinabove, we find ourselves unable to accord approval to the findings returned by the Hon’ble Single Judge while deciding the Writ- A No.8019 of 2012 and Writ- A No.18146 of 2012, and are of the considered opinion that the impugned orders dated 22.12.2023 passed by the learned Writ Court are liable to be set aside and are hereby set aside. Accordingly, the impugned dismissal order dated 25.09.2004 and the consequential orders passed by the Appellate as well as the Revisional Authorities are hereby quashed. Consequently, the appellants are entitled to be reinstated in service. Since the order impugned has been set aside primarily on the ground that holding of disciplinary enquiry could not have been dispensed with, in the facts of the present case, it would be open for the employer to hold fresh departmental enquiry in accordance with the CISF Rules, 2001. In case if the respondent authorities choose to hold the regular enquiry in the matter, in accordance with the prescribed rules, then in that event, the payment of back wages shall abide by the result of such enquiry.
38. This direction is being issued keeping in view the law laid down by the Supreme Court in Managing Director, ECIL, Hyderabad versus B. Karunakar, reported in (1993) 4 SCC 727. It would be open for the employer to place the appellants under suspension for the purposes of holding of enquiry. The appellants would, however, be entitled to payment of subsistence allowance during the period of enquiry which would be concluded within a period of four months. The appellants undertake to extend full cooperation in holding of such enquiry. However, in the event the employer is not desirous of holding disciplinary enquiry in terms of the above liberty the appellants shall be reinstated in service alongwith continuity and arrears of salary at the rate of 25% in the facts of the present case.
39. Both the appeals are, accordingly, disposed of with the aforesaid liberty. No order as to cost.
Order Date: 09.04.2024