M.B.K. Singh, J.
1. Heard Mr. B. Choudhury, learned Counsel appearing on behalf of the petitioner and Mrs. R. Baruah, learned Counsel appearing on behalf of the respondents.
2. The following facts are ascertained:
While the petitioner was serving as a Water Carrier of the 49 Battalion CRPF an enquiry was held as against him on direction of the Commandant of the said Battalion, vide memo No. P-VIII-10/99-49-EC-11, dated 13.11.1999, alleging commission of misconduct under Section 11(1) of the Central Reserve Police Force Act, 1949 by suppressing facts and furnishing false information as regards his involvement in criminal cases in his verification form. The charge framed as against him is as follows:
That the said No. 910490073 W/C Sharfraj Khan of F/49 Bn. C.R.P.F. while functioning as Water Carrier during the period from June, 1991 to till date committed an act of misconduct (suppression of facts, breach of trust, furnishing false information/documents) in his capacity as a member of the force Under Section 11(1) of CRPF Act, 1949 in that he suppressed the fact about his involvement in Criminal Case No. 178/88 Under Section 506 of IPC and in Case No. 314/89 Under Section 323/504 of IPC for which charge sheet filed against him in the Court and both Court cases are still pending in the Court. Thus the said No. 910490073 W/C Sharfraj Khan of F/49 Bn. CRPF committed an act/offence/misconduct Under Section 11(1) of the CRPF Act, 1949.
The petitioner submitted his written statement denying the charge of misconduct. On 10.4.2000, the Inquiry Officer submitted his report stating to the effect that the charge as against the petitioner was proved. As per finding of the Inquiry Officer, Water Carrier Sharfraj Khan concealed the fact of his involvement in criminal cases by not disclosing it in the relevant verification form (Form No. 25 of the CRPF Act) signed by him. A copy of the inquiry report is at Annexure-B of the writ petition.
On the basis of the said inquiry report and on being satisfied with it, the Commandant 49 Bn. CRPF, hereinafter referred to as the respondent No. 5, vide office order No. P-VIII-10/99-49-EC-II (SK), dated 7.7.2000 terminated the service of the petitioner. Another office order, being No. P-VIH-10/99-2000-49-EC-II (SK), dated 31.7.2000 was passed by the respondent No. 5 amending the earlier order stating to the effect that the words 'termination of service' in the earlier order should be replaced by the words 'removal from service'. The said two office orders of the respondent No. 5 are at Annexures-C & C1 respectively of the writ petition.
The petitioner preferred an appeal before the Deputy Inspector General of Police, CRPF, Group Centre Guwahati, hereinafter referred to as the respondent No. 4, on 7.8.2000 alleging procedural and substantive infirmities in the order of the respondent No. 5 dated 7.7.2000. Another appeal was also filed by the petitioner before the respondent No. 4 on 3.10.2000 challenging the validity and legality of the subsequent order of the respondent No. 5 dated 31.7.2000.
The respondent No. 4 issued an office order being No. R-XIII-18/2000-D.A.l dated 14.11.2000 stating to the effect that the termination order dated 7.7.2000 and the subsequent amendment order dated 31.7.2000, issued by the respondent No. 5 were not valid under the relevant rules and as such he made them ineffective. The respondent No. 4 ordered for re-instatement of the petitioner in his service from the date of his resuming his duty with a direction for adjusting the period of his absence with effect from 7.7.2000 to the date of joining as against his earned leaves. By the same order dated 14.11.2000, the petitioner was directed to submit his defence within 15 days so as to pass a final order after thorough adjudication. A copy of the said order of the respondent No. 4 dated 14.11.2000 is at Annexure-D of the writ petition.
Purportedly in pursuance of the above said order of the respondent No. 4, the respondent No. 5 issued office order being No. P-V111-10/99/49 Pt-2, dated 9.12.2000 reinstating the petitioner in his service with effect from 7.12.2000 and regularizing his absence from 7.7.2000 till his joining in the manner stated therein. A copy of the said order of the respondent No. 5 is at Annexure-E of the writ petition.
The petitioner joined his service on 9.12.2000. In compliance with the direction made by the respondent No. 4 in the order dated 14.11.2000, the petitioner submitted his defence along with all exhibits, which had already been submitted to the Inquiry Officer.
Thereafter, on 3.2.2001, respondent No. 5 issued an order being No. P-VIII-10/99-2000-49 Pt. 2 purportedly in pursuance of the order of respondent No. 4 being No. R-XIII-10/2001-D.A.1, dated 1.2.01 for removal of the petitioner from his service with effect from 3.2.2001. A copy of the said order of the respondent No. 5 dated 3.2.2001 is at Annexure-F of the writ petition.
Being aggrieved by the said order dated 3.2.2001 of the respondent No. 5, the petitioner filed a revision before the Inspector General of Police CRPF, Shillong, hereinafter referred to as the respondent No. 3, on 19.02.2001. The revision was rejected by the respondent No. 3 vide office order No. R-XIII-6/2001-Admn-l (N.E. Sector) dated 6.9.2001. A copy of the said order rejecting the revision is at Annexure-G of the writ petition.
3. According to the petitioner, as per documents produced by him in the said enquiry, he had already been discharged in respect of the said two criminal cases being Case No. 178/88 and Case No. 314/89, on dates prior to the date of framing the charge i.e. 11.13.1999. Further, according to the petitioner, by interfering with his service, even after having allowed him to be reinstated, without considering the fact of his having been discharged in both the criminal cases, the respondents acted unfairly and illegally.
4. In this writ petition, the petitioner is praying for setting aside the order dated 7.7.2000 (Annexure-C), the order dated 31.7.2000 (Annexure-C1) and the order dated 3.2.2001 (Annexure-F), issued by the respondent No. 5 and for directing the respondents to reinstate him in service with all service benefits.
5. An affidavit-in-Opposition has been filed on behalf of the respondents contesting the writ petition. According to the respondents, the enquiry was proceeded in accordance with the relevant rules and sufficient opportunity was given to the petitioner to defend himself. Further according to the respondents, the verification form in which the petitioner did not disclosed the fact of his involvement in criminal cases, despite specific questions on the matter, was written both in English and Hindi and he put his signature after having understood the questions/answers therein. It is the case of the respondents that the petitioner suppressed the fact of his involvement in criminal cases in filling up his verification form at the time of recruitment and thereby acted without discipline. It is also stated that as per warning written in English and Hindi at the top of the verification form, if the fact that false information has been furnished or that there has been suppression of any factual information in the verification form comes to the notice at any time during service of a person, his service would be liable to be terminated.
6. In short, according to the respondents, the petitioner having been found guilty of the commission of misconduct by concealing or suppressing the fact of his involvement in criminal cases, he was removed from his service and the enquiry in that connection had also been proceeded in accordance with law before passing the removal order. Further, according to the respondents, the final order of the respondent No. 5 passed on 3.2.01 was passed in pursuance of the order of the respondent No. 4 passed on 1.2.01 after removal of all irregularities and technical defects.
7. It is ascertained that the impugned final order for removal of the petitioner passed by the respondent No. 5 on 3.2.01 was passed in compliance with the order of the respondent No. 4, dated 1.2.01. It is also ascertained that before passing the said order dated 1.2.01, the respondent No. 4 had, vide order dated 14.11.2000, held both the said termination order dated 7.7.2000 and the said amended order of removal dated 31.7.2000 as illegal and had reinstated the petitioner in his service with effect from the date of joining his service with a direction for adjusting the period of his absence against his earned leaves. In fact, in compliance with the said order of the respondent No. 4 dated 14.11.2000, the respondent No. 5 issued the order dated 9.12.2000 reinstating the petitioner in his service and regularizing the period of his absence in the manner stated in the order. Now, the question is, after having held the said two orders dated 7.7.2000 and 31.7.2000 of the respondent No. 5 as illegal and having ordered for reinstatement of the petitioner in his service, if the respondent No. 4 was having the jurisdiction to order for removal of the petitioner from his service again.
8. For the commission of the said misconduct, the petitioner was terminated/removed, reinstated and then removed. The said removal, reinstatement and removal were done in compliance with the order/direction of the respondent No. 4. It is to be noted that though the petitioner filed appeals before the respondent No. 4 as against the order of termination dated 7.7.2000 and the amended order of removal dated 31.7.2000 passed by the respondent No. 5, it is not known as to what orders were passed by the respondent No. 4 with reference to the said two appeals. The order of the respondent No. 4 dated 14.11.2000 holding the said two orders dated 7.7.2000 and 31.7.2000 of the respondent No. 5 as illegal and directing for reinstatement of the petitioner in his service was passed by the respondent No. 4 in exercise of his revisional power under Rule 29 (d) of the Central Reserve Police Force Rules, 1955. The said Rule 29 (d) is as follows:
(d) (The Director General or (Additional Director General) or the Inspector-General) or the Deputy Inspector General may call for the records of award of any punishment and confirm, enhance, modify or annual the same, or make or direct further investigation to be made before passing such orders:
Provided that in a case in which it is proposed to enhance punishment, the accused shall be given an opportunity to show cause either orally or in writing as to why his punishment should not be enhanced.
9. In exercise of the revisional power under the said Rule 29 (d), the respondent No. 4 could confirm, enhance, modify or annul the order of termination/removal passed by the respondent No. 5 or could make a direction for further investigation before passing such orders. Since the respondent No. 4 had exercised his revisional power in respect of the said termination order dated 7.7.2000 and the amended order of removal dated 31.7.2000 passed by the respondent No. 5 by passing the said order dated 14.11.2000 invalidating the said two orders and for directing for reinstatement of the petitioner in his service, the respondent No. 4 was not having jurisdiction to pass any further order for removal of the petitioner, who have been reinstated in his service on the basis of the above said earlier order dated 14.11.2000. Thus the said order passed by the said respondent No. 4 on 1.2.01 for removal of the petitioner was one passed without jurisdiction. If the respondent No. 4 wanted to make further investigation, it should have been done before passing the said order dated 14.11.2000 and not after passing it. Since the impugned order dated 3.2.01 was passed in pursuance of the said order of the respondent No. 4 dated 1.2.01, which has been found as one passed without jurisdiction, the impugned order dated 3.2.01 is not sustainable in the eye of law.
10. It is already seen that the charge as against the petitioner was for suppressing and concealment of facts about his involvement in criminal cases and thereby of committing misconduct at the time of filling up of his verification form. On the basis of the materials, it is ascertained that at the relevant time of filling up the said verification form at least one criminal case was pending as against him. The petitioner did not give any answer in respect of the questions about his having been arrested, prosecuted or detained as well as about pendency of any criminal cases as against him at the relevant time. Now the question is, on the basis of the petitioner's failure to answer the said questions and on ascertaining that a criminal case was in fact pending at the relevant time, if one can reasonably conclude that the petitioner concealed or suppressed the fact of his involvement in criminal cases.
11. In my considered opinion, in the absence of anything to show that the petitioner was in fact having personal knowledge of the pendency of the criminal cases as against him, the said failure to give answer to the said question would not amount to his concealment or suppression of the said fact of his involvement in criminal cases. It is quite possible that a criminal case was pending as against the petitioner but he was not having any personal knowledge about it. There is nothing to show that the petitioner was arrested in connection with any criminal case and that he was in fact having knowledge of the pendency of the criminal cases as against him. In the absence of any evidence to show that the petitioner was having any personal knowledge about the pendency of the criminal cases at the relevant time, the mere fact of his failure to answer the said questions should not have been considered as sufficient to conclude that the concealed or suppressed the fact of pendency of criminal cases as against him.
12. From the records it is ascertained that there is no evidence for showing that the petitioner was having knowledge of the pendency of the criminal cases and as such there is no evidence to conclude that the petitioner concealed or suppressed the fact of pendency of criminal cases as against him
13. It is well settled that if the findings of a disciplinary authority are perverse and are not supported by evidence on record or the findings recorded at the domestic enquiry are such to which no reasonable person would have reached, it would be open to the High Court to interfere in the matter. In Yoginath D. Bagde v. State of Maharashtra : AIR1999SC3734 , the Apex Court referred to the decisions of Kuldeep Singh v. Commissioner of Police : (1999)ILLJ604SC , Nand Kishore Prasad v. State of Bihar : (1978)IILLJ84SC , State of Andhra Pradesh v. Rama Rao : (1964)IILLJ150SC , Central Bank of India Ltd. v. Prakash Chand Jain : (1969)IILLJ377SC , Bharat Iron Works v. Bhagubhai Balubhai Patel : [1976]2SCR280 and Rajinder Kumar Kindra v. Delhi Administration : (1984)IILLJ517SC and held that although the court cannot sit in appeal over the findings recorded by the disciplinary authority or the Inquiry Officer in a departmental enquiry, it does not mean that in no circumstance can the Court interfere. It was observed that the power of judicial review available to the High Court as also to the Supreme Court under the Constitution takes in it stride the domestic enquiry as well and the Court can interfere with the conclusion reached therein, if there was no evidence to support the findings or the findings recorded were such that could not have been reached by an ordinary prudent man or the findings were perverse.
14. Keeping in view the above said principle of law, I am of the opinion that in the absence of any evidence to show personal knowledge of the petitioner about the pendency of the criminal case as against him, the findings made by the disciplinary authority and respondent No. 4 that the petitioner concealed or suppressed the fact for his involvement in the criminal case were perverse and not acceptable in law. The impugned orders based on the previous findings are not sustainable in law.
15. It is also ascertained that it is nowhere disclosed as to when the petitioner was appointed to the Force. This is important because as per definition given in Section 2(d) of the CRPF Act, 1949, only a person who has been appointed to the Force is to be taken ' as a member of the Force. The question is, whether the petitioner was a member of the Force at the time of filling up of the verification form or not. If the petitioner was not a member of the Force at the said time then Section 11(1) of the said Act in respect of which he was charged, would not have been applicable to him. The respondents nowhere disclosed if the petitioner had already been appointed to the Force at the relevant time of commission of the misconduct. In these circumstances, the finding of the concerned respondents about the commission of misconduct under Section 11(1) of the Act was one made without establishing one of the essential elements of the said offence and as such the said finding is perverse.
16. In view of the above findings and for the reasons already recorded, the impugned orders including the order passed by the respondent No. 3 on 6.9.01 are hereby set aside. The concerned respondents shall pass an appropriate consequential orders in respect of the service of the petitioner in accordance with law. With these, this writ petition stands disposed of.