THE HON'BLE SRI JUSTICE J. SREENIVAS RAO
WRIT PETITION No.13531 OF 2013
ORDER:
This writ petition is filed seeking for Writ of Mandamus to declare the order in Lr.No.P.VIII-2/2010-GC-RR-EC-II dated 28.12.2011 imposing punishment of dismissal from service as illegal, arbitrary and violation of principles of natural justice and consequently direct the respondents to reinstate the petitioner into service with all consequential benefits including the arrears of salary.
2. The brief facts of the case:
2.1. The petitioner submits that he was born on 11.12.1966 in Telkap village, Rohtas District of Bihar State and studied up to X standard from Rajkrit High School, Dalmia Nagar of Rohtas District, Bihar State. He passed SSC in the year 1983 and obtained TC from the said school on 01.08.1983. Pursuant to the notification issued by CRPF in the year 1986 through newspapers and also in the employment exchange, inviting applications for the post of Havaldar, he applied for the said post and obtained verification certificate from the Collector and MRO of Rohtas District on 10.06.1986. Later, basing on his qualification, he was appointed as Havaldar (constable) in CRPF and joined in the service on 13.06.1985 and the District Collector issued verification letter No.903 dated 29.03.1986.
JSR, J W.P.No.13531 of 2013 2 2.2. Petitioner further submits that basing upon his request, CRPF issued a service verification letter 26.07.2006 stating that he is eligible to opt VRS. Pursuant to the same, petitioner submitted application to DIG on 30.07.2009 requesting him to issue pension from 01.09.2009, but DIG neither released the pension nor gave any reply. Petitioner submitted another application to respondent No.4 on 02.09.2009 requesting them to consider his claim for VRS. When there was no reply from respondent No.4, petitioner approached this Court and filed W.P.No.19923 of 2009. During Pendency of the said Writ Petition, respondent No.4 rejected the application of the petitioner on 30.07.2009 stating that there is an allegation of impersonation against him by a civilian and the same would be enquired into vide Lr.No.P-VIII-1/2009-GCRR Estt.II dated 26.09.2009 and not accepted the request for VRS. 2.3. On 19.04.2010 this Court disposed of Writ Petition No. 19923 of 2009 granting liberty to the petitioner to question the rejection order. On 31.05.2010 the petitioner reported to duty at the office of respondent No.4 along with fitness certificate. On 04.06.2010, the respondents suspended the petitioner from service. Thereafter, on 14.06.2010 respondent No.4 made JSR, J W.P.No.13531 of 2013 3 preliminary enquiry and appointed one D.P.Dubey as enquiry officer, through proceedings dated 05.05.2010 to conduct enquiry and he had issued charge sheet on 09.08.2010, with the following charges.
i) misconduct and neglect of duty by unauthorized absenting from duty and deserting from the camp on 07.11.2009 (FN)
ii) disobedience of order failed to rejoin duties and continued to remain unauthorized absent from 07.11.2009.
iii) Act of misconduct - impersonated and got recruited myself recruited in the force and further suppressed the registration of the criminal case in Rohtas P.S. arrested me and kept in the police custody by suppressing real identity and particulars of arrest.
2.4. He further submits that the enquiry officer, without properly verifying the records and also without examining the depositions of witnesses, submitted enquiry report dated 20.08.2010 stating that the charges levelled against the petitioner are proved. The disciplinary authority, without properly considering the explanation submitted by the petitioner and documentary evidence on record, imposed the major punishment of dismissal from service solely basing on the JSR, J W.P.No.13531 of 2013 4 enquiry report. Aggrieved by the said order, petitioner filed appeal before the appellate authority and the same was rejected on 18.04.2012 without giving any reasons and thereafter he filed revision and the said revision was also rejected on 17.05.2012.
3. On behalf of the respondents, DIGP (C.C.D.) filed counter contending that in July 2009, a postal telegram dated 06.07.2009 was received by the Commanding Officer, CRPF, Ranga Reddy, along with copies of F.I.R. and Election Identity Card bearing No.DJY 1022904, wherein it is stated that his brother Ambika Singh S/o.Bipin/Vipin Singh impersonated himself and got recruited in CRPF (MHA/GOI) as constable/GD during 1985, as force No.850780915 CT/GD (HC/GD) of GC, CRPF, Ranga Reddy, who involved in altercation/assault with lathi in the name of Kameshwar Singh on 29.05.2009 and he was detained in jail on 30.05.2009 in connection with involvement of Criminal Case in GR.No.1185 of 2009 registered with Police Station, Rohtas, Rohtas District, under Sections 341, 323, 419 and 420 of IPC and his bail application No.844 of 2009 was pending for consideration.
3.1. It is further stated that the said criminal complaint JSR, J W.P.No.13531 of 2013 5 was verified by the District Police Authorities along with photo identity of the delinquent and confirmed with the verification report dated 10.12.2009 of Police Station Rohtas, obtained through GC, CRPF, Muzaffarpur, and it is revealed that the said Ambika Singh S/o.Bipin/Vipin Singh is serving in CRPF in the name of HC/GD Kameshwar Singh and he suppressed his real identity and got appointment in CRPF and he was arrested into above crime and presently on bail. The investigation officers of Rohtas Police Station filed charge sheet on 31.10.2009 in criminal case No.55 of 2009 and GR.No.1185 of 2009 for the offence under Sections 341, 329, 419, 420, 467, 468 and 471 of IPC. Petitioner made a request for voluntary retirement and the same was rejected by the respondents on 26.09.2009. 3.2. It is further stated that the enquiry officer after conducting detailed enquiry submitted enquiry report stating that charges levelled against the petitioner were proved beyond all reasonable doubts and that the petitioner, knowing the consequences, absconded from the duty place/camp willfully with effect from 07.11.2009 to 30.05.2010 without any permission/leave from the competent authority and disobeyed the lawful orders, directions of his superiors and concealed his JSR, J W.P.No.13531 of 2013 6 real identity. During the course of enquiry, petitioner was given ample opportunity to defend his case. The Disciplinary Authority-respondent No.4, after following the due procedure as contemplated under law, issued notice by enclosing copy of enquiry report and after receiving explanation, rightly imposed the punishment of dismissal from service by its order dated 28.12.2011 by giving cogent reasons and the said order was confirmed by the appellate authority as well as revisional authority. Therefore, the petitioner is not entitled the relief sought in the writ petition and the same is liable to be dismissed.
4. Heard Sri C.Ramachandra Raju, learned counsel for the petitioner, and Sri Mukarjee, learned counsel, representing learned Deputy Solicitor General, appearing on behalf of the respondents.
5. Submissions of the respective parties:
5.1. Learned counsel for the petitioner contended that before imposition of punishment, the disciplinary authority ought to have considered the enquiry report and while giving his provisional findings on the charges, he has to issue a show-cause notice to the petitioner calling explanation for the proposed JSR, J W.P.No.13531 of 2013 7 punishment. Without following the mandatory procedure, the disciplinary authority straight away imposed the punishment and dismissed the petitioner from service. He further contended that the disciplinary authority framed charge No.3 i.e., impersonation, basing on the complaint sent by a civilian. However, the respondents have not examined the civilian to prove said charge levelled against the petitioner. Hence, the entire proceedings in respect of Charge No.3 are liable to be quashed. He further contended that during the course of enquiry, the enquiry officer addressed a letter dated 20.08.2010 under Exhibits 26 and 33 to the Deputy Inspector directing him to meet the Superintendent of Police, Rohtas District, and to conduct enquiry about the identity of the petitioner and submit a report. Even before receiving the said report, the enquiry officer submitted a report holding that charge No.3 levelled against the petitioner is proved. In such circumstances, the enquiry report submitted by the enquiry officer to be ignored.
5.2. Learned counsel further contended that the disciplinary authority relied upon the Gram Mukhia and the member of Gram Panchayat under Exhibits 28 and 47, wherein it is stated that they identified the person as Ambika Singh on JSR, J W.P.No.13531 of 2013 8 seeing his photo, which was shown to them by the departmental person during the course of preliminary enquiry, even before framing the charges. Further, the disciplinary authority imposed major punishment basing on the alleged identification of S.H.O. Rohatas Police Station and Superintendent of Police under Ex.P.29 and 34 that the petitioner identified as Ambika Singh. 5.3. He vehemently contented that the disciplinary authority solely relied upon the statements under Exhibits 26, 33, 28, 47, 27 and 34, which are pertaining to prior to framing of the charges. After framing of charges, the respondents have not adduced any evidence nor examined any witness, especially complainant/civilian to prove charge No.3 - impersonation. In the absence of the same, disciplinary authority is not entitled to impose major the punishment of dismissal from service and the entire proceedings are liable to be declared as illegal. 5.4. He further contented that the petitioner was not accused and he was not arrested in the criminal case. The petitioner has nothing to do with the criminal case i.e., C.C.No.1185 of 2009. Enquiry officer relied upon Exhibit 31 - school living certificate issued by the Principal of the school, JSR, J W.P.No.13531 of 2013 9 admittedly belonging to the petitioner and the date of birth mentioned in it is 11.12.1966. Whereas, Exhibit 41 - Election Identity Card relied upon by the enquiry officer is in the name of Kameshwar Singh, showing the date of birth as 01.01.1973 allegedly belonging to the complainant. At the time of appointment, petitioner produced his school living certificate and educational qualification certificates to the respondents. Basing upon the said certificates, the date of birth of the petitioner was recorded in the service records as 11.12.1966. Respondent No.4 passed order dismissing the petitioner from service only basing upon the complaint and in the absence of any iota of evidence, the dismissal order is liable to be set aside. 5.5. He further contented that insofar as other Charge Nos.1 and 2 i.e., misconduct and unauthorized absence are concerned, petitioner had submitted application under VRS Scheme on 30.07.2009 and also produced the documentary evidence to establish that he was sick and taken medical treatment up to 31.05.2010. The medical certificate - Exhibit 35 issued by Osmania General Hospital was produced before the enquiry officer, which clearly reveals that petitioner was under medical treatment and advised to take bed rest from 08.11.2009 JSR, J W.P.No.13531 of 2013 10 to 30.05.2010. Without considering the said document, treating the absence period as unauthorized absence is not permissible under law and basing on the unauthorized absence, the disciplinary authority ought not to have imposed major punishment of dismissal from service.
6. Per contra, learned counsel appearing on behalf of the respondents contended that the respondent authorities after conducting detailed enquiry came to conclusion that the petitioner impersonated himself as Kameshwar Singh and got himself appointed in CRPF as constable/GD on 13.06.1985. As soon as the respondents received compliant of a civilian through telegram, they initiated regular enquiry by appointing enquiry officer. The enquiry officer had issued charge sheet and conducted enquiry by following the procedure contemplated under law. During the course of enquiry, the enquiry officer has given all the opportunities to the petitioner to defend his case and followed the principles of natural justice and also considered documentary evidence and submitted a detailed enquiry report on 02.02.2011, wherein it is specifically stated that the charges levelled against the petitioner were proved. He further contented that Respondent No.4 had furnished the enquiry report to the JSR, J W.P.No.13531 of 2013 11 petitioner and directed him to submit his explanation. Respondent No.4, after examining the entire records, enquiry report and after considering the explanation submitted by the petitioner, passed the impugned order on 28.12.2011 by giving cogent reasons holding that petitioner has committed grave misconduct of impersonation and also absented duties from 07.11.2009 onwards unauthorizedly. The said order was confirmed by the appellate authority as well as the revisional authority and the same are in accordance with the law. Therefore, the petitioner is not entitled any relief much less the relief sought in the writ petition, especially the scope of judicial review is very limited to invoke the jurisdiction of this Court under Article 226 of the Constitution of India.
7. Having considered the rival submissions made by the respective parties and after perusal of the material available on record, the following points arise for consideration:
i) Whether the impugned order passed by respondents dismissing the petitioner from service is sustainable under law?
ii) Whether the petitioner is entitled the relief sought in this writ petition?
JSR, J W.P.No.13531 of 2013 12 POINTS i AND ii:
8. From the perusal of the records, it reveals that Kameshwar Singh was appointed as constable in CRPF on 13.06.1985. Later, he was promoted as head constable and he completed 26 ½ years service in CRPF. He submitted representation to the respondents requesting to give permission for voluntary retirement (VRS) and for that the respondents issued letter dated 26.07.2006 stating that he is eligible to opt the same. Thereafter, he submitted application to respondent No.4 on 30.07.2009 for releasing pension from 01.09.2009 and also submitted another application on 02.09.2009 requesting the respondents to consider his claim for VRS. As there was no reply, he filed W.P.No.19923 of 2009 questioning the action of the respondents in not considering the said representations. When the writ petition was pending, respondent No.4 rejected the application on 30.07.2009 stating that there is an allegation of impersonation against him by a civilian, which would be enquired into by its letter, dated 26.09.2009. The said W.P.No.19923 of 2009 was dismissed on 19.04.2010.
9. It further appears from the record that respondent No.4 issued proceedings on 04.06.2010 suspending the petitioner from JSR, J W.P.No.13531 of 2013 13 the service and initiated disciplinary proceedings on 05.05.2010 by appointing one D.P. Dubey as enquiry officer. The enquiry officer issued a charge sheet dated 09.08.2010. The enquiry officer after conducting enquiry submitted enquiry report dated 20.08.2010 with a finding that the charges levelled against the petitioner are proved. The disciplinary authority issued notice by enclosing copy of the enquiry report directing the petitioner to submit objections, if any. The disciplinary authority, after considering the explanation submitted by the petitioner, passed the impugned order dated 28.12.2011 imposing the punishment of dismissal from service. The dismissal order was confirmed by the appellate authority as well as revisional authority by its orders dated 18.04.2012 and 17.05.2012 respectively.
10. The specific contention of the respondents in respect of charge No.3 is concerned, in July 2009 a postal telegram dated 06.07.2009 was received by the Commanding Officer, CRPF, Ranga Reddy along with copies of FIR and Election Identity Card bearing No.DJY 1022904 from unknown person claiming himself to be Kameshwar Singh, brother of Ambika Singh, and the said Ambika Singh S/o Shri Bipin/Vipin Singh impersonated himself as Kameshwar Singh, S/o Shri Vipin (Bipin Singh) and got JSR, J W.P.No.13531 of 2013 14 recruited in CRPF as Constable during 1985 with Force No.850780915 and the said Ambika Singh altercated and assaulted a person on 29.05.2009 and he was arrested and detained in police custody on 30.05.2009 in connection with Criminal Case in G.R.No.1185 of 2009 registered in Rohtas Police Station, under Sections 341, 323, 419 and 420 of IPC and in the said case, the investigation officers have filed charge sheet on 31.10.2009 and the said case is pending as on today.
11. It is very much relevant to mention here that in respect of charge No.3-impersonation is concerned, the respondents have not examined the civilian, who made a complaint of impersonation, and in the absence of the same, enquiry officer come to conclusion that the petitioner committed an offence of impersonation. It is also relevant to mention here that the specific case of the respondents is that a criminal case No.55 of 2009 and GR.No.1185 of 2009 registered against the petitioner in Police Station Rohtas (District - Rohtas) for the offence under Sections 341, 323, 419, 420, 467, 468 and 471 of IPC and the same is pending before the competent criminal Court. Even before deciding the case, the disciplinary authority decided that the petitioner committed an offence of impersonation and the JSR, J W.P.No.13531 of 2013 15 same is not permissible under law. It is settled principle of law that if the charges levelled against an employee in departmental proceedings and criminal proceedings are similar, the disciplinary authority shall wait till the competent Court decide the said case.
12. In Central Bank of India Thr. vs. Dragendra Singh Jadon 1 the Hon'ble Apex Court held that:
5. By an award dated 10-9-2008, the Tribunal held that the appellant Bank was not able to prove the charge of impersonation against the respondent and therefore, the dismissal was unjustified. The Tribunal, however, found that the respondent had gainfully been employed throughout the interregnum period after termination, and, therefore, limited relief to reinstatement without back wages. The appellants contend that there was no specific or general direction for continuity of service of the respondent or consequential benefits.
18. In our considered view, the learned Single Bench of the High Court rightly granted relief to the respondent. By the impugned judgment and order [Central Bank of India v. Dragendra Singh Jadon, 2017 SCC OnLine MP 2334], the Division Bench of the High Court dismissed the appeal of the appellants and directed that the respondent would have to be treated in service from the date of removal till the date of actual reinstatement in service and would accordingly be entitled to 1 (2022) 8 SCC 378 JSR, J W.P.No.13531 of 2013 16 seniority and the right to be considered for promotion, but would not be entitled to back wages.
The principle laid down by the Hon'ble Apex Court in Central Bank of India (supra) that the punishment of dismissal from service is not justified, as it is a major punishment and the same is disproportionate and the petitioner rendered more than 26 years of service in the respondent organization.
13. Insofar as charge Nos.1 and 2 are concerned, the record reveals that the petitioner submitted application for grant of leave. However, in the absence of any authorization/permission from the competent authority, he was absented the duties from 07.11.2009 to 30.05.2010. During the course of enquiry, the petitioner has not produced any evidence to establish that due to the particular reasons he was absented from duties. The petitioner has not disputed that during the course of enquiry, the enquiry officer has not given proper opportunity to him to defend the case. The enquiry officer had conducted detailed enquiry by giving all opportunities to the petitioner and submitted enquiry report by giving specific findings that charge Nos.1 and 2 levelled against the petitioner were proved. The disciplinary authority JSR, J W.P.No.13531 of 2013 17 had issued notice to the petitioner directing him to submit explanation by furnishing the enquiry report. After due verification of the records, enquiry report and considering the representation submitted by the petitioner, the disciplinary authority passed an order removing the petitioner from services and the said order was confirmed by the appellate authority and the revisional authority. Hence, the punishment of dismissal from service against the petitioner is highly excessive and disproportionate.
14. Taking into consideration the facts and circumstances of the case and also the principle laid down in the judgment stated supra, the impugned order passed by the disciplinary authority dated 28.12.2011 dismissing the petitioner from service, which was confirmed by the appellate authority dated 18.04.2012 and the revisional authority dated 17.05.2012, is liable to be modified holding that the petitioner is entitled for reinstatement with continuity of service, however he is not entitled any back wages, and accordingly, the respondents are directed to reinstate the petitioner into service within a period of two (2) months from the date of receipt of a copy of this order.
JSR, J W.P.No.13531 of 2013 18
15. With the above direction, the writ petition is allowed in part. No costs.
Miscellaneous applications, if any pending, shall stand closed.
______________________ J. SREENIVAS RAO, J Date : 06.10.2023 mar