S. Talapatra, J.
1. By this intra-court appeal, the Union of India and its officers have challenged the judgment and order, dated 05-12-2006 as passed by the learned single Judge in W.P. (C) No.19 of 2000 whereby the learned single Judge declared and directed as under:
âThis court while examining the proceeding as indicated above has found that no fair and reasonable opportunity have been provided to the charged Constable. Such a finding of the court is not reached on the basis of the fact that legal assistance has not provided but on scrutiny of the proceedings as a whole, which has led this court to conclude that fair and reasonable opportunity as envisaged by law have not been provided in the inquiry wherein guilt finding has been recorded by the Inquiry officer.
Considered in light of the above discussion, this Court holds that the said finding dated 22-3-99 is liable to be interfered with and accordingly, the said finding is set aside. Consequently, the impugned order of punishment dated 19-4-99 whereby the writ petitioner has been compulsorily retired from service as well as the order dated 17-10-99 whereby the appeal filed by the petitioner has been rejected are also set aside. Accordingly, all consequential benefits be given to the writ petitioner in view of interference by this Court with the inquiry finding dated 22-3-99, punishment dated 19-4-99 and the rejection dated 17-10-99 of the appeal, preferred by the writ petitioner.â
2. For appreciation of the challenge, the essential facts may briefly be noted:
The respondent, hereinafter referred to the writ petitioner, was a Constable in the Central Reserve Police Force, CRPF in short, was proceeded against under Rule 27 of the Central Reserve Police Force Rules, 1955 for dereliction in the duty. The writ petitioner and others CRPF Constable were alleged to have committed the offence of misconduct/negligence of duty/remissness in the discharge of duty in the capacity as the member of the Force under Section 11(1) of the CRPF Act, 1949. The misconduct as catalogued is that while on duty on 07.10.1998 at C/43 Bn. Pin outpost Raga at about 08:25 hrs. the respondent and some others ran away from the post without the permission of the competent authority leaving behind their weapons and ammunitions at the post when No.913253295 Constable Surendra Yadav started firing heavily and indiscriminately from his Butt No.281 around the camp and shouted at every one to leave the post. They did not take any action or initiation to prevent the said No. 91325395 Constable Surendra Yadav from heinous act of firing and did not overpower him to avert the untoward incident of killing of their Pln. Commander SI R.N. Panday. Thus they have acted in cowardice by fleeing instead of tackling the situation with brave determination and ensuring protection of their Pln. Commander SI R.N. Panday. Thus they committed an offence punishable under Section 11(1) of the CRPF Act, 1949 read with Rule 27 of the CRPF Rules, 1955. The said charge was brought against the petitioner by the Memorandum dated 27.02.1999 (Annexure-B to the writ petition). After the purported completion of the inquiry, by the Report dated 22.03.1999, the inquiry officer found the petitioner guilty of that charge and by the punishment order dated 19-04-1999, the Commandant imposed the penalty of compulsory retirement from service with effect from 19.04.1999. The writ petitioner filed an appeal against the said order and the said appeal was rejected. In the wake of rejection of the appeal, the writ petitioner approached this Court by filing a writ petition mainly contending that there was denial of natural justice.
The writ petitioner claimed that he was not given opportunity of engaging any defence counsel. The inquiry officer acted as the presenting officer, which demonstrated the probable bias and moreover, the order of penalty has been passed by an authority incompetent to pass such order, when the proceeding is against more than a one incumbent. Apart that, the writ petition has projected a ground that under Section 11 of the CRPF Act, 1949, no major penalty such as the punishment of compulsory retirement from the service can be imposed on the delinquent.
3. On the other hand, the Union of India-respondents stoutly contended that the inquiry was conducted in full compliance of the provisions as laid down in Rule 27(c) of the CRPF Rules, 1955 and the writ petitioner have been afforded with all opportunities as prescribed in the Rules. It was also contended that the proceedings was initiated by an authority competent to initiate such proceeding and there was no breach of Rule 27(d)(1) as the Rule 27(d)(1) categorically prescribed that the Inspector General or any other authority competent to impose the penalty of dismissal from service on all such members of the Force may make an order directing that disciplinary action against all of the may be taken in a common proceeding.
4. Learned single Judge after appreciating the rival contentions and the records as produced before him held that the petitioner was proceeded against in the very same proceeding along with two other Constables, namely, Radha Mohan Singh and Abdul Motin who were also given the punishment of compulsory retirement from service. It appears that the inquiry proceedings were conducted by the Inquiry Officer namely, Mr. Chetram Kulhar. The report dated 22.03.1999 of the Inquiry Officer reveals that the recording of guilt by all the 3 charged Constables were made on the basis of statements purportedly given by all the 3 Constables. It appears from the proceeding that the said plea of guilt has been recorded by the Inquiry officer with reference to a question addressed to them and response of all 3 delinquent Constables have been recorded together. Since that plea of guilt was overlooked by the Inquiry Officer, the Court did not detail much there upon rather examined the oral evidence as recorded by the Inquiry Officer. Thereafter, the learned Single Judge observed that examination by the court in a matter of a disciplinary proceeding would naturally be only to see whether the procedure adopted was fair and reasonable and whether a reasonable opportunity was available for the charged person to defend the charge levelled against him. It has been observed that the mechanism that was adopted by the Inquiry Officer is hardly fair as there was no opportunity of cross-examining the witnesses who were introduced to prove the charge. By rejecting the submission of the learned counsel, appearing for the Union of India-respondents that there is no requirement of affording opportunity of engaging the Defence Assistant to persons facing disciplinary proceeding under the CRPF Act and the Rules, unlike what is provided in sections 303 and 304 Cr.P.C. As the statute does not provide for engagement of the Defence Assistant by the delinquent or the presenting officer by the disciplinary Authority ought not have held that the proceeding was vitiated and no fair and reasonable opportunity have been afforded to the charged constable. Learned single Judge quite succinctly observed that âon scrutiny of the proceedings as a whole, which has led this court to conclude that fair and reasonable opportunity as envisaged by law have not been provided in the inquiry wherein guilt finding has been recorded by the Inquiry Officer.â
5. Consequent upon the said finding, the impugned order of punishment dated 19.04.1999 was set aside. As corollary, the order dated 17.10.1999 as passed by the Appellate Authority rejecting the appeal as filed by the writ petitioner was set aside.
6. Being aggrieved by the said judgment and order dated 05.12.2006 as passed by the learned single Judge, the Union of India-respondents have preferred this appeal on the ground that the impugned judgment and order is based on fresh appreciation of the evidence, which is not permissible in the judicial review under Article 226 of the Constitution and thus, the learned single Judge has overstepped the jurisdiction. Moreover, it has been emphatically contended by learned Assistant S.G. that since the proceeding has been conducted in compliance with the provision of Rule 27(c) of the CRPF Rules, 1955, it cannot be said that there had been any denial of the natural justice. As sequel to that, it has been adverted that it would be found from the records despite opportunity having been afforded to the writ petitioner, he preferred not to cross-examine the witnesses as produced before the Judge. It is well settled when someone surrenders his right, he cannot clamour for that right again. As such, the impugned judgment and order suffers from serious infirmity.
7. Mr. P.K. Biswas, learned Assistant Solicitor General of India, appearing for Union of India-appellants cited decisions of the Apex Court in Hombe Gowda Educational Trust v. State of Karnataka and others as reported in (2006) 1 SCC 430 and L.K. Verma v. H.M.T. Ltd. as reported in 2006 AIR SCW 460 : (AIR 2006 SC 975 : 2006 Lab IC 964) to contend that in a matters of indiscipline particularly in the Armed Forces, the court should not take a lenient view. Further submission has been advanced with reference to the decision in (1997) 6 SCC 381: (AIR 1997 SC 2696) (State of Punjab v. Bakshish Singh) to argue that Civil Court should not substitute its own view particularly in the case of a Constable who is a part of a disciplined Force and is subjected to disciplinary proceeding for gross dereliction of duties. Another decision as reported in (2004) 6 SCC 325 (Vice Chairman, Kendriya Vidyalaya Sangathan v. Girdharilal Yadav) has been pressed to lay emphasis on the point that the principles of natural justice cannot be stretched too for and present one is not a case, where there has been any breach of the principles of natural justice. He further contended in the present case the fullest opportunity has been provided to the delinquent Constable. As such, allegation of violating the principles of natural justice is absolutely without substance.
8. On the other hand, Mr. R. Datta, learned counsel, appearing for the writ petitioner cited two decision of the Apex Court, Lt. Col. Prithipal Singh Bedi v. Union of India and others and reported in AIR (1982) 3 SCC 140 : (AIR 1982 SC 1413) and Union of India and another v. Charanjit G. Gill and others as reported in (2000) 5 SCC 742 : (AIR 2000 SC 3425) to contend that the members of the Armed Forces are also entitled to liberal spirit and protections guaranteed by the Constitution and there is a requirement in court martial proceedings to follow the norms of fairness, justness and reasonableness. Referring to the ratio as laid down in those decisions of the Apex court, Mr. R. Datta further contended that while examining the cases of the Armed forces personnel related to the disciplinary proceedings, the Court in exercise of its writ power must examine the process as to the safeguards as provided by the Constitution.
9. Relying on the case of Bhagar Ram v. State of Himachal Pradesh as reported in AIR 1983 SC 454 : (1983 Lab IC 662) and in the case of Sukh Das v. Union Territory of Arunachal Pradesh as reported in AIR 1986 SC 991, the learned counsel for the writ petitioner submitted that in a disciplinary proceeding, the delinquent must be aware of availability of the Defence Assistance and such assistance even if not asked for be offered to the delinquent in course of inquiry and if such offer is not made to a delinquent, the inquiry is vitiated, justifying interference by the court.
10. In Charanjit S. Gill (supra) by approving the Lt. Col. Prithipal Singh Bedi (supra), it has been held that:
Merely by joining the Armed Forces a person does not cease to be a citizen so as to be wholly deprived of his rights under the Constitution. While dismissing the writ petitions in that case, this Court noticed with anguish and concern and observed:
â44. Reluctance of the Apex Court more concerned with civil law to interfere with the internal affairs of the Army is likely to create a distorted picture in the minds of the military personnel that persons subject to Army Act are not citizens of India. It is one of the cardinal features of our Constitution that a person by enlisting in or entering Armed Forces does not cease to be a citizen so as to wholly deprive him of his rights under the Constitution. More so when this Court held in Sunil Batra v. Delhi Administration (AIR 1978 SC 1675) that even prisoners deprived of personal liberty are not wholly denuded of their fundamental rights. In the larger interest of national security and military discipline Parliament in its wisdom may restrict or abrogate such rights in their application to the Armed Forces but this process should not be carried so far as to create a class of citizens not entitled to the benefits of the liberal spirit of the Constitution. Persons subject to Army Act are citizens of this ancient land having a feeling of belonging to the civilised community governed by the liberty-oriented Constitution. Personal liberty makes for the worth of human being and is a cherished and prized right. Deprivation thereof must be preceded by an inquiry ensuring fair, just and reasonable procedure and trial by a Judge of unquestioned integrity and wholly unbiased. A marked difference in the procedure for trial of an offence by the criminal court and the Court Martial is apt to generate dissatisfaction arising out of this differential treatment. Even though it is pointed out that the procedure of trial by Court Martial is almost analogous to the procedure of trial in the ordinary criminal courts, we must recall that Justice William ODouglas observed:
â[T]hat civil trial is held in an atmosphere conductive to the protection of individual rights while a military trial is marked by the age-old manifest destiny of retributive justice.â
11. On the other hand, the decision as cited by the learned Assistant Solicitor General of India is situated on a different factual base. Both Hombe Gowda Educational Trust (supra) and L.K. Verma (AIR 2006 SC 975 : 2006 Lab IC 964) (supra) had been set up in the context of the inquiry under the provisions of the Industrial Disputes Act, 1947. However, in Hombe Gowda Educational Trust (supra), the Apex Court approving the Bharat Forge Co. Ltd. v. Uttam Manohar Nakate (2005) 2 SCC 489 : (AIR 2005 SC 947 : 2005 Lab IC 854) held that:
â24. In Bharat Forge Co. Ltd. v. Uttam Manohar Nakate, it was held:
â30. Furthermore, it is trite, the Labour Court or the Industrial Tribunal, as the case may be, in terms of the provisions of the Act, must act within the four corners thereof. The Industrial Courts would not sit in appeal over the decision of the employer unless there exists a statutory provision in this behalf. Although its jurisdiction is wide but the same must be applied in terms of the provisions of the statute and no other.â
By referring this decision, Mr. Biswas tried to matters as contention that since there is a compliance of Rule 27 of the CRPF Rules, 1955, the proceeding cannot be faulted with.
12. In State of Punjab and others v. Bakshish Singh (AIR 1997 SC 2696) the Apex Court held that:
â5. It is the settled legal position that it is for the disciplinary authority to pass appropriate punishment; the Civil Court cannot substitute its own view to that of the disciplinary as well as appellate authority on the nature of the punishment to be imposed upon the delinquent officer. In view of the finding of the appellate court that it is a grave misconduct, the appellate court ought not to have interfered with the decree of the trial court. The High Court dismissed it without application of the mind and ignoring the settled legal principles.â
13. It is obvious that Mr. Biswas, learned Assistant SG taking support from the Bakshish Singh (supra) tried to buttress that the attempt of the learned Single Judge by appreciating the evidence afresh has transgressed the well-defined limits of the judicial review. None of the learned counsel has responded to the eminent question that arose in the proceeding that whether absence of any provision in the statutory rules would entitle the disciplinary authority or the inquiry authority to exclude the fair principles of natural justice or not. For this purpose, it is required that a brief journey is taken through the provisions of Rule 27 of the CRPF Rules and for that purpose, Rule 27(c), which is relevant is herein under profitably reproduced:
â(c) The procedure for conducting a departmental enquiry shall be as follows:
(1) The substance of the accusation shall be reduced to the form of a written charge, which should be as precise as possible. The Charge shall be read out to the accused and a copy of it given to him at least 48 hrs. before the commencement of the enquiry.
(2) At the commencement of the enquiry the accused shall be asked to enter a plea of âGuiltyâ or âNot Guiltyâ after which evidence necessary to establish the charge shall be let in. The evidence shall be material to the charge and may either be oral or documentary, if oral;
(i) it shall be direct;
(ii) it shall be recorded by the Officer conducting the enquiry himself in the presence of the accused;
(iii) the accused shall be allowed to cross examine the witnesses.
(3) When documents are relied upon in support of the charge, they shall be put in evidence as exhibits and the accused shall, before he is called upon to make his defence, be allowed to inspect such exhibits.
(4) The accused shall then be examined and his statement recorded by the officer conducting the enquiry. If the accused has pleaded guilty and does not challenge the evidence on record, the proceedings shall be closed for orders. If he pleads âNot guiltyâ, he shall be required to file a written statement, and a list of such witnesses as he may wish to cite in his defence within such period, which shall in any case be not less than a fortnight, as the officer conducting enquiry may deem reasonable in the circumstances of the case. If he declines to file a written statement, he shall again be examined by the officer conducting the enquiry on the expiry of the period allowed.
(5) If the accused refuses to cite any witnesses or to produce any evidence in his defence, the proceedings shall be closed for orders. If he produces any evidence the officer conducting the enquiry shall proceed to record the evidence. If the officer conducting the enquiry considers that the evidence of any witness or any document which the accused wants to produce in his defence is not material to the issues involved in the case, he may refuse to call such witness or to allow such document to be produced in evidence, but in all such cases he must briefly record his reasons for considering the evidence inadmissible. When all relevant evidence has been brought on record, the proceedings shall be closed for orders.
(6) If the Commandant has himself held the enquiry, he shall record his findings and pass orders where he has power to do so. If the enquiry has been held by any officer other than the Commandant, the officer conducting the enquiry shall forward his report together with the proceedings, to the Commandant, who shall record his findings and pass orders, where he has power to do so.â
14. It would be apparent from the said provisions that the evidence shall be material to determine the charge and the evidence may be oral and documentary. If oral, it shall be direct, it shall be recorded by the officer conducting the inquiry himself in presence of the accused and the accused shall be allowed to cross-examine the witnesses. But, there is no provision as to whether the accused shall be allowed the Defence Assistant or whether the witnesses to prove the charge would be presented by a Presenting Officer or by the inquiry officer himself. Though Mr. Datta, learned counsel appearing for the writ petitioner submitted that the witnesses were examined by the inquiry officer acting as the presenting officer and as such, the probable bias cannot be excluded against him. This aspect of the matter was considered by this Court in Mutum Shantikumar Singh v. Union of India and others as reported in (2005) 3 GLR 243 wherein the Rule 27 of the CRPF Rules, 1955 was considered on the touchstone of the principle of natural justice. It has been held in reference to A.K. Kraipak and others v. Union of India and others, reported in AIR 1970 SC 150 that the aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words they do not supplant the law of the land but supplement it. This Court has approved the proposition of law enunciated in A.K. Kraipak (supra). It is reproduced hereunder:
â20. The aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words they do not supplant the law of the land but supplement it.-The concept of natural justice has undergone a great deal of change in recent years. In the past it was thought that it included just two rules namely (1) no one shall be a judge in his own case (Nemo debet esse judex propria causa) and (2) no decision shall be given against a party without affording him a reasonable hearing (audi alteram partem). Very soon there- after a third rule was envisaged and that is that quasi- judicial enquiries must be held in good faith, without bias and not arbitrarily or unreasonably. But in the course of years many more subsidiary rules came to be added to the rules of natural justice. Till very recently it was the opinion of the courts that unless the authority concerned was required by the law under which it functioned to act judicially there was no room for the application of the rules of natural justice. The validity of that limitation is not questioned. If the purpose of the rules of natural justice is to prevent miscarriage of justice one fails to see why those rules should be made inapplicable to administrative enquiries. Often times it is not easy to draw the line that demarcates administrative enquiries from quasi-judicial enquiries. Enquiries which were considered administrative at one time are now being considered as quasi-judicial in character. Arriving at a just decision is the aim of both quasi- judicial enquiries as well as administrative enquiries. An unjust decision in an administrative enquiry may have more far reaching effect than a decision in a quasi-judicial enquiry. As observed by this Court in Suresh Koshy George v. The University of Kerala, Civil Appeal No.990 of 1968, dt. 15.7.1968 (AIR 1969 SC 193) the rules of natural justice are not embodied rules. What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the framework of the law under which the enquiry is held and the constitution of the Tribunal or body of persons appointed for that purpose. Whenever a complaint is made before a court that some principle of natural justice had been contravened the court has to decide whether the observance of that was necessary for a just decision on the facts of that case.â
15. The Apex Court in Punjab National Bank and Ors. v. Kunj Behari Mishra, reported in (1998) 7 SCC 84 : (AIR 1998 SC 2713 : 1998 Lab IC 3012) made a well considered observation on applicability of principles of natural justice in the departmental inquiry and held that the principles of natural justice have to be read into regulation 7(2) (Punjab National Bank Officer Employees (Discipline and Appeal) Regulations, 1977, though it is silent on that aspect, (Emphasis supplied) Para 19 (of SCC) : Para 19 of AIR (Lab IC) in Punjab National Bank and others (supra) is extracted is hereunder:
â19. The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7(2). As a result thereof, whenever the disciplinary authority disagrees with the enquiry authority on any article of charge, then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the enquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the enquiry officer. The principle of natural justice, as we have already observed, require the authority which has to take a final decision and can impose a penalty, give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officerâ.
16. Similar view was also taken in State Government Houseless Harijan Employees Association v. State of Karnataka and Ors., reported in (2001) 1 SCC 610 : (AIR 2001 SC 437) where it is held that the requirements of natural justice will be read into statutory provisions unless excluded expressly or by necessary implication. Paras 27 and 28 (of SCC) in State Govt. Houseless Harijan Employees Assn. (supra) are extracted for appreciation hereunder:
â27. This Court has consistently held that the requirements of natural justice will be read into statutory provisions unless excluded expressly or by necessary implication.
28. In the case of Union of India v. Col. J.N. Sinha (AIR 1971 SC 40 : 1971 Lab IC 8) this Court said (SCC p.461, para 8 : (Para7 of AIR Lab IC):
It is true that if a statutory provision can be read consistently with the principles of natural justice, the courts should do so because it must be presumed that the Legislatures and the statutory authorities intend to act in accordance with the principles of natural justice. But if on the other hand a statutory provision either specifically or by necessary implication excludes the application of any or all the principles of natural justice then the court cannot ignore the mandate of the Legislature or the statutory authority and read into the concerned provision the principles of natural justice.â
17. In another decision as rendered in Kumaon Mandal Vikas Nigam Ltd. v. Girija Shankar Pant and Ors., as reported in (2001) 1 SCC 182 : (AIR 2001 SC 24 : 2001 Lab IC 11) wherein it is held by the Apex Court that doctrine of natural justice is incapable of exact definition. However, it is synonymous with fairness. Compliance or non-compliance thereof has to be examined on the totality of the facts. The Apex Court in Kumaon Mandal Vikas Nigam Ltd. (supra) on enunciating the law in Para 22, held as under:
â22. Sixty-five page Report has been sent to the Managing Director of the Nigam against the Petitioner recording therein that the charges against him stand proved what is the basis? Was the Inquiry Officer justified in coming to such a conclusion on the basis of the charge-sheet only? The answer cannot possibly be in the affirmative: If the records have been considered, the immediate necessity would be to consider as to who is the person who has produced the same and the next issue could be as regards the nature of the records unfortunately there is not a whisper in the rather longish report in that regard. Where is the Presenting Officer? Where is the notice fixing the date of hearing? Where is the list of witnesses? What has happened to the defence witnesses? All these questions arise but unfortunately no answer is to be found in the rather longish Report. But if one does not have it can it be termed to be in consonance with the concept of justice or the same tantamounts to a total miscarriage of justice.â
18. In Chelfremog v. State of Tripura and Ors. reported in (2000) 2 GLT 604 and Baharul Islam (CT) v. Union of India and Ors. reported in 2001 (1) GLT 62 I, this Court held that the departmental proceedings where no presenting officer was appointed, the enquiry officer has assumed the role of the Judge as well as prosecution inasmuch as in the absence of presenting officer, the enquiry officer must examine the witnesses and exhibited documents. This will be a total violation of the rules and fundamental principles of natural justice. Therefore, the procedures adopted by the enquiry officer in holding the departmental enquiry does not fulfil the requirement of fair proceeding in conducting enquiry against the delinquent. In such circumstances âthe reasonable opportunity of being heardâ as emphasise in Article 31(2) of the Constitution of India had been denied to the concerned government employee (delinquent). The similar view is also taken by this court (Division Bench) in Pt. Rajyamalla Buzarbaruah v. Assam Administrative Tribunal, and Ors. reported (1983) 1 GLR (NOC) 71 : (1983 Lab IC 1839). The Apex Court in Dr. Rash Lal Yadav v. State of Bihar and Ors., reported in (1994) 5 SCC 267 : (1994 AIR SCW 3329) held that the concept of natural justice is not a static one by is an ever expanding concept. In the initial stages it was thought that it had only two elements, namely (i) no one shall be a judge in his own cause, and (ii) no one shall be condemned unheard. With the passage of time a third element was introduced, namely, of procedural reasonableness because the main objective of the requirement of the rule of natural justice is to promote justice and prevent its miscarriage.â
19. In Mutum Shantikumar Singh (supra), it has been reiterated that unless the law expressly or by necessary implication excludes the application of the rule of natural justice, the Courts will read the said requirement in enactments that are silent and insist on its application even in cases of administrative action havin civil consequences. It was further held that the Rule 27 of the CRPF Rules, 1955 by expressly or by necessary implication does not exclude the application of the rule of natural justice and the fair procedures.
20. This Court rightly did not take any cognizance of Union of India and others v. P. Thyagarajan as reported in (1999) 1 SCC 733 : (AIR 1999 SC 449 : 1999 Lab IC 169) as this aspect was never considered by the Apex Court in that case. Mere reference to Rule 27 and its observance shall not create any binding precedent what usually emanates from Article 141 of the Constitution of India when it is found that a law has been declared by the Apex Court.
21. In another decision as rendered in Maibam ibohal Singh v. State of Manipur and others, as reported in (2009) 6 GLR 507, the same principles was re-enunciated.
ââ¦the findings in the departmental enquiry were made on the basis of the statements of witnesses almost all of whom were never cross-examined. Though it would have been fair and just on the part of the enquiry officer to have given a reasonable opportunity to the writ petitioner-appellant to appoint a defence assistant for his defence, no such opportunity was given. No presenting officer was appointed by the authority in connection with the enquiry. In our opinion, the proceeding of the said enquiry as against the writ petitioner-appellant was not proceeded fairly inasmuch as the same was made in violation of the principles of natural justice. The impugned dismissal order passed on the basis of the findings in the said enquiry is not sustainable in the eye of law. On perusal of the impugned order of the appellate authority dated 7.4.2003, we have ascertained that the appellate authority considered neither any of the ground of the appeal nor any of the point required to be considered under Rule 66(vi) of the Assam Police Manual Part-III. Thus, the impugned order of the appellate authority, dated 7.4.2003, was passed without application of his mind by the appellate authority. In the light of the decision of the Honble Apex Court in Narinder Mohan Arya v. United India Insurance Co. Ltd., and Ord., 2006 4 SCC 713 : (AIR 2006 SC 1748 : 2006 Lab IC 2114) wherein the Honble Apex Court held about the need of passing the appellate order after due application of mind by the concerned authority, the impugned order of the appellate authority, dated 7.4.2003 is not also sustainable in the eyes of law.
The similar consequence has visited the writ petitioner in the present case.
22. The learned counsel, appearing for the writ petitioner raised an objection whether under section 11 of the CRPF Act, 1949, major punishment cannot be imposed or not. From a reading of Section 11, it would be apparent that these punishments can be granted in lieu of, or in addition to, suspension or dismissal, any one or more of the following punishments as listed as the minor punishments and as such, these minor punishments though listed under Section 11, those can be awarded against a delinquent in addition to order of dismissal. As there is no other separate provision for providing the major penalty except Section 12 of the said Act whereunder the order of dismissal can be passed on a person, who has been sentenced to imprisonment, not as consequence of culmination of a departmental proceeding.
23. In Deen Dayal Yadav v. The Deputy Inspector General of Police, as reported in 1974 Lab IC 929, it has been held that punishment of removal or dismissal of a Force can not only be under Section 12 of the Act, but also can be based under Section 11 of the said Act. The following passages are profitably extracted from Deen Dayal (supra):
â9. It will be better that before I take up a discussion of the points involved, I may refer first of all to the scheme of the Act. The Act is called the Central Reserve Police Force Act, 1949, and Section 3 thereof lays down the constitution of the Force. According to this section there shall continue to be an armed force maintained by the Central Government and called the Central Reserve Police Force and the Force shall be constituted in such pay, pension, and other remuneration, as may be prescribed. Section 4 is also important in this connection, because it lays down that the Central Government may appoint to the Force a Commandant and such other persons as it thinks fit to be assistant commandants and company officers. There is a heading in the Act dealing with offences and punishments. Section 9 deals with more heinous offences. These offences have been categorized under this section from Section 9(a) to Section 9(1) and it has been laid down that these offences shall be punishable with transportation for life for a term not less than seven years or with imprisonment for a term which may extend to fourteen years or with fine which may extend to three months pay etc. Section 10 deals with less heinous offences i.e., to say offences which are not so grave and so serious as those enumerated and categorized in Section 9. Section 10 also lays down that the offences enumerated thereunder shall be punishable with imprisonment with a term which may extend to one year or with fine which may extend to three months pay. It is obvious that all these offences are triable by a competent court of law.
10. Rules have also been framed under Section 18 of the Act and are known as central Reserve Police Rules, 1955 (hereinafter referred to as âthe Rules) and it will be relevant here in this connection to refer to Rule 36 which deals with judicial trials and lays down that all trials in relation to any of the offences specified in Section 9 or Section 10 shall be held in accordance with the procedure laid down in the Code of Criminal Procedure. Section 11 is very important for the purpose of this present matter and it deals with minor punishments. I may quote here only the relevant portion of Section 11, and it reads as under:â
11. Minor Punishments -
(1) The Commandant or any other authority or officer as may be prescribed, may, subject to any rules made âunder 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-
(a) reduction in rank;
(b) fine of any amount not exceeding one months 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.â âSection 12 is also important and I may quote it also here:
â12. 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 places as the Court or the Commandant may consider suitable.â
The scheme of the Act, therefore, shows that as far as punishments for offences and misconduct are concerned, they have been classified into three types; those which have been categorized under more heinous offences and less graver than those are the offences categorized under Section 10 and the minor punishments under Section 11. The main contention of the learned counsel for the petitioner is that under Sec.11(1) it was only the Commandant who could impose the punishment and the punishment which could be imposed by him would be other than the removal or dismissal from service; meaning thereby that under Section 11(1) no punishment of removal or dismissal from service could be passed and it has also been urged that the respondent was not empowered under the Act or under the Rules to imposed any such punishment I may refer here now to Rule 4 which is one of the Rules framed under the Act. It deals with the general powers of certain officers and R.4(b) is important. It lays down that the Deputy Inspector-General shall have the powers of supervision and control with respect to the training, discipline and general administration of the Force. The Deputy Inspector-General of Police has also been defined under Clause (c) of Rule 2 and this definition says that Deputy Inspector-General of Police means an officer who has been notified by the Central Government as Deputy Inspector-General of Police for the forces. Reading these two provisions together, in my opinion there can be no doubt that if a Deputy Inspector-General of Police has been notified by the Central Government as Deputy Inspector-General of Police for the Force, then he will be regarded as the Deputy Inspector-General of Police for the Force and will have the powers as contemplated by Rule 4(b) above quoted. It may also be mentioned here that no such plea has been taken that the respondent (the Deputy Inspector-General of Police concerned) in this case had not been notified by the Central Government as the Deputy Inspector-General of Police for the Forces. Rule 7(b) lays down that prior approval of the Dy. Inspector-General of Police for the appointment of Jamadar (Sub-Inspector) has to be obtained. It would be evident from this that the Deputy Inspector-General of Police is the appointing authority.
11. Now I may also turn here in this connection to Rule 27 which deals with the procedure for award of punishment and there is a table given under this rule which has different columns and it is clear from the Deputy Inspector-General of Police has the power to impose a punishment such as dismissal or removal from the Force but this punishment has to be inflicted after a formal departmental enquiry. This enquiry has already been held in the present case.
12. The contention of the learned Counsel for the petitioner that no punishment such as removal or dismissal from service could be passed, does not seem to be correct. I have already quoted the section above and it is significant to note that in this section the important words are âin 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.....â may be passed. The words âin lieu of or in addition to in my opinion clearly indicate that in addition to the punishment of dismissal from service the punishments prescribed in Section 11 could be passed or in lieu of a punishment for dismissal. It has also been urged that the punishments such as removal or dismissal from the Force could be passed only under Section 12 which I have quoted above but I think this contention also does not seem to be correct because this section clearly lays down that if any person has been sentenced to imprisonment under the Act, then he can be dismissed and shall also be liable to forfeiture of pay etc. The heading of the section also shows that it deals with âplace of imprisonment and liability to dismissal or imprisonment. In my opinion it cannot be said that a punishment of removal or dismissal from Force can only be passed under Section 12 of the Act i.e., to say only when a person has been sentenced to imprisonment. I am strengthened in my view because a similar view has been taken by a Division Bench of Rajasthan High Court in the case of Shyam Singh v. Dy. Inspector-General of Police, Central Reserve police, Ajmer reported in AIR 1965 Raj 140 where also it was held that from a perusal of Section 12 it is clear that the punishment of dismissal under the section may be given to a delinquent in addition to the sentence of imprisonment awarded to him under the law. If the authorities mean to proceed under the section, it will not be necessary to observe the formalities of a regular disciplinary inquiry and action may be taken up after a person's conviction and punishment of imprisonment under the Act. It has also been further held that Section 12 does not lay down that a person could not be liable to dismissal if he is not convicted or sentenced under the Act. Similarly with regard to Section 11 it was held that the words 'in lieu of' or 'in addition to suspension or dismissal' appearing in sub-sec. (1) of Sec. 11 before Cls. (a) to (e) show that the authorities mentioned therein are empowered to award punishment of dismissal or suspension to the member of the Force who is found guilty and in addition to, or in lieu thereof, the minor punishments mentioned in Clauses (a) to (e) may also be awarded. It was also held that a perusal of Sections 9, 10 and 11 would clearly show that a delinquent can be punished with dismissal even if he has not been prosecuted for an offence under Section 9 or 10 of the Act. I am therefore, of opinion that the Dy. Inspector General of Police under Section 11 of the Act read with Rule 27 of the Rules could impose a punishment of dismissal or removal from service.â (Emphasis supplied)
24. We are in agreement that re-appreciation of the evidence to substitute the findings of the disciplinary authority or, to say, the inquiry authority or the appellate authority is not in usual circumstances permitted while exercising jurisdiction under Section 226 of the Constitution of India. Unless the same is ventured for purpose of appreciating the contention that the order of penalty or any order imposing stigma on any delinquent has been passed without evidence. to debase such perversity, there must be some room to revisit the evidence in a judicial review otherwise there would be possibilities of miscarriage of justice. But in this case, to ascertain whether the opportunity of the cross-examination was afforded to the writ petitioner or not, the appreciation of the statements as recorded as the oral testimony is definitely not beyond the scope of the judicial review under Article 226 of the Constitution of India as held in V. Ramana v. A.P.S.R.T.C. as reported in (2005) 7 SCC 338 : (AIR 2005 SC 3417 : 2005 Lab IC 4158) where it has been stated that:
â11. The common thread running through in all these decisions is that the Court should not interfere with the administrator's decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the Court, in the sense that it was in defiance of logic or moral standards. In view of what has been stated in the Wednesbury's case (supra) the Court would not go into the correctness of the choice made by the administrator open to him and the Court should not substitute its decision to that of the administrator. The scope of judicial review is limited to the deficiency in decision-making process and not the decision.â
25. It is therefore crystallized that in the statutory provisions, unless the law expressly or by necessary implications excludes the principals of natural justice can be read as the supplement and the departmental proceeding has to be devised and conducted accordingly. This Court is in agreement with Maibam Ibohal Singh (supra) that the inquiry officer cannot in any manner act as the presenting officer for purpose of admitting documents, in the proceeding or for examining the witnesses to prove the charge or any other act, usually shouldered by the presenting officer. If it is found that the inquiry officer had played such role then it has to be held the delinquent was not proceeded with fairly. Since the inquiry officer admittedly, in the instant case, has acted, as the presenting officer to admit the documents and present the witnesses to prove the charge by oral testimony. The entire proceeding has become vitiated in the eye of law and accordingly, the same is required to be interfered with.
26. As consequence thereof, the inquiry report containing finding dated 22.03.1999, the order of punishment dated 19.04.1999, the Appellate order dated 17.10.1999 are liable to be set aside. As such, no reference of the impugned order as passed by the learned single Judge in this regard is called for. However, this Court holds that the Union of India-appellants will be at liberty to continue with the proceedings from the stage after issuance of the Memorandum dated 27.02.1999 under No.F.VIII.7/99-45, Annexure-B to the writ petition. This liberty is accorded in view of Bhagat Ram v. State of Himachal Pradesh and others as reported in (1983) 2 SCC 442 : (AIR 1983 SC 454 : 1983 Lab IC 662) where the Apex Court enunciated the law as under:â
â11.â¦Ordinarily where the disciplinary inquiry is shown to have been held in violation of principle of natural justice, the inquiry would be vitiated and the order based on such inquiry would be quashed by issuance of a writ of certiorari. It is well settled that in such a situation, it would be open to the disciplinary authority to hold the inquiry afresh. That would be the normal consequence.â
As corollary to this, the direction of releasing all consequential benefits stands quashed. But it is made clear that in case, the respondents opt for not proceeding any further, all consequential benefits be released to the respondent-writ petitioner forthwith.
27. The appeal is thus, allowed partly to the extent as indicated hereinabove and accordingly, the same is disposed of.
Appeal partly allowed.