Sri Sohar Ranjan Pattnaik Vs. Union of India (Uoi) and ors. - Court Judgment

I.M. Quddusi, J.

1. This writ application is directed against the impugned order passed by the Dy. Inspector General (COMNS) confirming the order dated 22.10.2002 passed by the ADIGP. GC. CRPF, Bhubaneswar dismissing the petitioner from service.

2. The brief facts of the case are that the petitioner was working as a Head Constable/Radio Operator in Group Centre CRPF under-the administrative control of the Deputy Inspector General (Communication) C.G.O. Complex, Lodhi Road, New Delhi. There was allegation against him that while functioning as Head Constable/ Radio Operator in Group Centre CRPF, Bhubaneswar under the administrative control of Addl. DIGP, G.C., Bhubaneswar, he had committed an act of grave misconduct in his capacity as a member of the Force as per the provisions of Section 11(1) of CRPF Act, 1949. The alleged misconduct was that on 11.8.1999 the petitioner had assaulted a Constable, namely, Gajendra Chatri of G.C., C.R.P.F., Bhubaneswar and had caused grievous injuries on his person. The petitioner was suspended from service on 12.8.1998 and a preliminary enquiry was conducted against him. On the basis of the report submitted by the Enquiry Officer on preliminary enquiry, a Departmental Enquiry was ordered and one R.R. Sinha, Deputy Commandant was appointed as the Enquiry Officer in connection with assault on Constable' Gajendra Chatri, who had reported the matterto the Addl. DIGP G.C. CRPF on 18.4.2000. But, it is alleged that on 11.12.2000 when Shri R. R. Sinha had been to market on his own scooter, the petitioner who was under suspension managed to go outside the campus and assaulted Shri Sinha. The petitioner also used force and dealt fist blows on Shri Sinha saying that he would kill him and so saying he brought out a dagger. In the meantime, a civil police constable reached the spot and the petitioner fled away. Shri Sinha lodged a report at the Nayapalli P.S., which was registered as Case No. 272 (9) of 2000 of that P.S. Thereafter further charges were framed against the petitioner. In the meantime, the petitioner filed a Writ Petition before this Court, vide OJC No. 12179 of 1999, in which an interim order was passed by this Court in Misc. Case No. 4418 of 2000 to the effect that no final decision would be taken on the disciplinary proceeding. Therefore, final decision was not taken in respect of that enquiry. Then a subsequent enquiry was held on 21.9.2001 in respect of alleged assault on Shri Sinha by the petitioner as aforesaid in which the petitioner pleaded not guilty. The Enquiry Officer fixed a date of hearing but the petitioner did not appear before the Enquiry Officer that day with the plea that he was not provided with defence assistance to defend his case. The petitioner was then informed that as per the provision contained in Rule 27 of the CRPF Rules, he was not entitled to defence assistance and the Enquiry Officer fixed the hearing to another date. Subsequently also, the petitioner did not appear before the Enquiry Officer. Due to non-cooperation of the petitioner in the enquiry, the Enquiry Officer conducted the departmental enquiry ex parte. The petitioner did not submit any oral or documentary evidence in support of his defence. The Enquiry Officer closed the proceedings and submitted his report to the Disciplinary Authority on 21.5,2002 holding that all the charges against the petitioner were proved. Thereafter, the impugned order of his dismissal from service was passed. The petitioner preferred an appeal but the aforesaid order of the disciplinary authority was confirmed by the appellate authority.

3. Learned counsel for the petitioner, Shri K. P.' Mishra, urged that the C.R.P.F. Rules, 1955 do not provide for engagement of defence assistant. However, Rule 102 stipulates that the matters in respect of which no provision is made, the same shall be as are applicable to other officers of Government of India. Therefore, the CCS. (CCA) Rules are to apply to this case which in Rule-8 provide for defence assistance. There is no provision in the C.R.P.F. Rules to allow defence assistance.

4. We have perused copies of the documents annexed to the writ petition. It is to be noticed that the Addl. DIGP vide his order No. P. VIII-3/2001- GCB- Est. dated 6th October, 2001 informed the petitioner that as per the existing CRPF Act and Rules he was not entitled/eligible for defence assistance. The said letter is reproduced hereunder:

OFFICE OF THE ADDL. DIGP GROUP CENTRE CRPF

BHUBANESWAR-II.

No. P. VIII-3/2001-GCB-Estt-II

Dated, 6th October 2001.

To

No. 891260932 KC/RO S.R. Pattnaik, Vill: Balapara, PO: Jodumit, PS: Baramba, Dist : Cuttack, Orissa.

Subject : REPRESENTATION AGAINST MEMORANDUM OF CHARGES.

Please refer to your applications dated 13.8.2001, 24.9.2001 and this office letter even number dated 30.8.2001.

2. As per existing CRPF Act & Rules, you are not entitled/ eligible for defence assistance. In view of the above, you are hereby directed to co-operate with Enquiry Officer for completion of Departmental Enquiry, which is ordered to be conducted against you. If you have not co-operated, the enquiry will be held ex parte.

Sd-

Addl. DIGP

GCCR PF,

Bhubaneswar

Therefore, it is a fact that the petitioner has been denied defence assistance.

5. Now, it is to be considered whether the petitioner would be entitled to get defence assistance under the law or not. In Rule 102 of theC.R.P.F. Rules 1955, it has been provided that the conditions of service of members 6f the Force in respect of matters for which no provision isYnade in these Rules shall be the same as are for the time being-applicable to other officers of the Government of India of corresponding status.

In Rule 14 (8) (a) of Central Civil Services (Classification Control and Appeal) Rules, it has been provided that the Government servant may take the assistance of any other Government servant posted in any office and he may also take assistance of a retired Government servant.

6. Since in the C.R.P.F. Rules, there is no provision for providing defence assistance for all purposes it will be deemed that in respect of permission to engage defence assistant, the C.R.P.F. Rules are silent. Therefore, the provisions of CCS (CCA.) Rules would be applicable in this regard in view of the Rule 102 of C.R.P.F. Rules. For convenience, the provisions of Rule 102 of C.R.P.F. Rules and Rule 14 (8) (a) of the CCS. (CCA.) Rules are quoted as under :

C.R.P.F. Rules

102. Other conditions of Service :

The conditions of service of members of the Force in respect of matters for which no provision is made in these rules shall be the same as are for the time being applicable to other officers of the Government of India of corresponding status.

CENTRAL CIVIL SERVICES (CLASSIFICATION CONTROL AND

APPEAU RULES 1965

14. Procedure for imposing major penalties.

xxx xxx xxx(8) (a) The Government servant may take the assistance of any other Government servant posted in any office either at his headquarters or at the place where the inquiry is held, to present the case on his behalf, but may not engage a legal practitioner for the purpose, unless the Presenting Officer appointed by the Disciplinary Authority is a legal practitioner, or, the Disciplinary Authority, having regard to the circumstances of the case, so permits :Provided that the Government servant may take the assistance of any other Government servant posted at any other station, if the Inquiring Authority having regard to the circumstances of the case, and for reasons to be recorded in writing so permits.

7. But in the subsequent enquiry the petitioner was denied defence assistance, vide above quoted order of Additional DIGP GC CRPF Bhubaneswar on 6th October 2001, in which reference to CRPF Act and Rules was made and it was mentioned that he was not entitled/ eligible for defence assistance. Here under the law as discussed above, he was entitled to get defence assistance and denial of permission in this regard amounts to violation of principles of natural justice and it cannot be said that the petitioner was given reasonable opportunity to defend himself.

8. Therefore, in view of the above discussion the petitioner could not have been denied defence assistance in accordance with Rule 14 (8)(a) of the CCS (CCA) Rules 1995, which has been done vide letter dated 6th October 2001 as quoted above. Therefore it cannot be said that the petitioner was given reasonable opportunity to defend himself and as such the entire enquiry proceeding was vitiated and if due to not providing him defence assistance the petitioner could not participate in the proceeding, it cannot be said that he was at fault.

9. It may be noticed here that in the earlier departmental proceeding the petitioner was allowed defence assistance, but the proceeding was challenged, inter alia, on the ground of misconduct of the enquiry officer in OJC No.12179 of 1999 before this Court in which due to the interim order passed therein, as mentioned above to the effect that no final decision would be taken in the disciplinary proceeding, the same has still remained pending.

10. The petitioner was also not supplied with the documents and only he was informed by the Addl. DIGP (C.C.D.) that most of the old records had completed their validity of life of 2 years, vide his letter dated 30th August, 2001. He has also not been paid subsistence allowance. Further he also requested to stay the departmental proceeding since criminal proceeding was pending against him but that was also not allowed.

11. In the aforesaid facts and circumstances, this Court is of the view that the petitioner was denied reasonable opportunity to defend himself in the departmental proceeding in question and the opposite parties have violated the principles of natural justice by denying him to engage defence assistant on the ground that as per CRPF Act and Rules, he was not entitled to such benefit, vide letter dated 6th October, 2001 issued by Addl. DIGP GC CRPF Bhubaneswar (supra). Therefore, the whole enquiry proceedings are vitiated from the date of such denial to engage a defence assistant and hence the impugned order of dismissal passed by the Disciplinary Authority as well as the order passed by the appellate authority confirming the order of the Disciplinary Authority being not sustainable in the eye of law, are liable to be quashed.

12. In the result, the petition is allowed in part. Both the impugned orders of the Disciplinary authority dated 22.10.2002 (Annexure-16), dismissing the petitioner from service as well as the appellate authority (Annexure - 19) confirming the order of the Disciplinary Authority are quashed/set aside. The opposite parties are at liberty to continue the disciplinary proceedings from the stage of immediately after filing of the show cause by the petitioner to the charge memo. It is made clear that in case the opposite parties decide to continue the disciplinary proceeding, automatically the petitioner shall go back to the status as he was at the time of filing of his reply to the charge memo and shall be entitled to the benefits of that status as admissible under the rules.

There shall be no order as to costs.

N. Prusty, J.

13. I agree.