Ashish Kumar Bala vs Union Of India Through Ministy Of ...
2019 Latest Caselaw 2614 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

AFR
 
Court No. - 21							   Reserved
 

 
Case :- SERVICE SINGLE No. - 332 of 2005
 
Petitioner :- Ashish Kumar Bala
 
Respondent :- Union Of India Through Ministy Of Home And 4 Ors
 
Counsel for Petitioner :- D.K.Dikshit,Prashant Chandra,S.K. Srivastava
 
Counsel for Respondent :- Dipak Seth,A.K.Chaturvedi,Raj Kumar Singh,Sampurna Nand Shukla,Shishir Jain,Sudeep Kumar
 

 
Hon'ble Attau Rahman Masoodi,J.

Heard Sri Apoorva Tiwari and Sri Santosh Kumar Srivastava, learned counsel for the petitioner and Sri Raj Kumar, learned counsel for Union of India.

The punishment of removal from service termed to be a minor punishment under Section 11 of Central Reserve Police Act, 1949 (hereinafter referred to as the CRPF Act) has been inflicted upon the petitioner who, at the relevant point of time, had rendered nearly 19 years of satisfactory service. The order of removal from service was passed on 27.1.2001. The appeal filed against the said order has also been rejected by the competent authority on 4.7.2001.

The revision permissible under the statutory rules has also come to be rejected by order dated 19.5.2003 communicated vide letter dated 3.11.2004. For the purposes of disciplinary action, the petitioner is governed under the CRPF Act and the rules framed thereunder known as Central Reserve Police Rules, 1955 (hereinafter referred to as the CRPF Rules).

On the aspect of the competence of the authorities who have passed the impugned orders and the procedure followed therefor, there is essentially no grievance raised by the petitioner. The dispute has come to be raised in peculiar circumstances. In the present case, it is the lack of direct evidence to support a charge which is the foundation of grounds urged before this Court. Praying for justice, the delinquent employee knocks the doors of this Court by saying that where a charge is not sustainable on the strength of direct oral evidence, notwithstanding the fact that prescribed procedure is followed, the impugned action nevertheless would stand vitiated in law, if findings of the enquiry officer on hearsay evidence are relied upon without application of mind and contrary to the mandate of the statutory rules. The enquiry report would thus be an eye wash and any punishment based on such an enquiry report based on the principle of preponderance of probability that too in a clumsy manner would vitiate the impugned punishment as a whole. The misconstruction of oral evidence far from being doubtless and direct, is yet another dimension of perversity which has been urged by the petitioner to demolish the validity of the impugned orders removing him from service.

The Court may note that for the purposes of disciplinary action against a member of service, the competent authority is vested with the power of dispensing with the enquiry under Rule 27(cc)(ii) of CRPF Rules on being satisfied for the reasons to be recorded in writing that it is not reasonably practicable to hold an enquiry in the manner provided under the rules for imposing a penalty. The case at hand does not fall in this category. The case in hand is one where the enquiry being found practicable in all respects was proceeded with the issuance of a charge sheet to the petitioner under Section 11 (1) of the CRPF Act read with Rule 27 of CRPF Rules on 10.8.2000 imputing two specific charges. The enquiry officer was appointed thereafter on 6.9.2000 and the petitioner cooperated with the enquiry and availed the opportunity afforded to him. There is no grievance in relation to any procedural aspect of the matter.

To split the charge no. 1, this Court may find that the first charge imputed against the petitioner comprises of five ingredients viz. (i) leaving the place of duty at 4 p.m. on 22.7.200; (ii) getting involved in fight with civilians outside the place of duty; (iii) returning back to the place of duty having sustained injuries; (iv) after reaching the place of duty, indulging into inciting the subordinate Constables to cooperate for a revengeful measure against the civilians; (v) on refusal of the subordinate Constables to involve in a revengeful act, the delinquent employee abused them. In the light of five ingredients mentioned above, a charge of indulging into an act of misconduct was attributed against the petitioner.

Charge no. 2 essentially comprises of the allegation to provide false information to the Company Commander against the subordinate Constables for having indulged into scuffle with the delinquent employee and likewise this charge alleges the return of delinquent employee at 6 p.m. at the place of duty where the delinquent employee incited the Constables to beat the civilians and for non-cooperation, abused them on that account. This charge was framed for tendering a false information to the higher authorities coupled with an act extending threat to the life of subordinate Constables.

In support of the charge sheet, six evidences were relied upon, namely, (i) duty register; (ii) medical report; (iii) complaint of Sanjeev Kumar Constable No. 961180158 being part of the preliminary report; (iv) complaint of Netrapal Constable No. 881180606 being part of the preliminary report; (v) Standing Orders; and (vi) preliminary enquiry report. Oral evidence of five witnesses was also mentioned in support of the charges, namely, Constable Netrapal, Constable Sanjeev Kumar, Constable Ramji Yadav, Hawaldar Ahibaran Singh and S.I. Ratan Bahadur Thapa posted in the office of Inspector General, Central Sector, CRPF. The enquiry officer was also left with the discretion of recording the evidence of any other witness. Though leaving the discretion of taking evidence of any other witness by the enquiry officer is not traceable to any rule but in absence of any protest raised by the petitioner in respect of recording oral evidence of many other witnesses, this Court would decline to take notice of such an issue.

The Court would proceed straight to the relevant rules according to which a special protection seems to have been embodied in the statutory rules before inflicting a punishment, minor or major against the delinquent employee. The punishment of dismissal or removal from the disciplinary force by the officers vested with the authority is provided under Rule 27 of the CRPF Rules. The procedure, however, is provided under Rule 27(c) and the same being relevant is extracted below:

"27 (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 Guilty or Not Guilty 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 "Not guilty". he shall be required to file a written statement and a list of such witnesses as he may wish to cite in his defence withins 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 order where he has power to do so.

From sub-rule (2) of Rule 27 (c), it is clear that a delinquent employee pleading 'not guilty' shall be afforded an opportunity to prove himself innocent. It is specifically mentioned in the rule that the evidence in support of charge shall be material to the charge and may either be oral or documentary. In case of oral evidence, the mandate of rule is that the same is bound to be direct and shall be recorded by the enquiry officer himself in presence of the accused. The accused shall be allowed to cross-examine the witnesses. The procedure for conducting enquiry, looking to the statutory language of the rules, mandates observance of the principles of natural justice by the enquiry officer.

Having glanced through the documentary evidence mentioned above, this Court would note that none of the documents is a conclusive proof of the alleged charge unless proved. For proving the two charges in the present case based on the complaints, it is the oral evidence of witnesses that would weigh and was decisive for arriving at a decision against the petitioner.

The Court is conscious of the fact that the charged officer has been provided a special protection under the rules applicable to the members of CRPF. The services rendered in the Central Reserve Police, by no stretch of imagination, can be weighed any less than 'jeevan daan' under the service contract but this does not suggest that violation of discipline is to be viewed lightly. The statutory rule, leaning towards the essence of service, however, does provide that before attaching a stigma to the conduct of a member of service, the evidence must exist of the description envisaged under the rule.

Learned counsel for the petitioner has argued that in absence of a specific definition of direct evidence under the CRPF Act or the Rules framed thereunder, Section 60 of the Indian Evidence Act though not applicable in the disciplinary proceedings, comes to aid the scope of statutory rule and the principles underlying therein would apply once the apex court in the case reported in AIR 1961 SC 1245 (Jagannath Prasad Sharma v. State of Uttar Pradesh and others) has opined that directness of evidence for proving a charge against the delinquent employee is a part and parcel of the principles of natural justice. The principle of preponderance of probability according to the learned counsel would not be a guiding rule in the case in hand. According to him, the principle of standard of proof must be read akin to 'beyond a reasonable doubt'. The argument proceeds on the premise of the distinction of statutory rule which is peculiar.

It is no more res integra that the principles of natural justice are an essential part of Article 14 of the Constitution of India and to strengthen the rule of fairness, the position differs from case to case. This Court may note that the case at hand essentially hinges on the oral evidence of which the directness is to be tested. The question that arises is as to who would decide whether the oral evidence available on record is direct or not. To note a few glaring features of the evidence relied upon, this Court may further note that the two Constables Sanjeev Kumar and Netra Pal have themselves lodged complaints against the petitioner on the basis of which charges have been levelled against him. These two witnesses are doubtlessly not independent for they are the complainants of the allegations giving rise to the charge sheet on the basis of which the disciplinary proceedings have commenced. The allegations had to be proved on the basis of evidence. Any doubt apparent in cross examination of these two witnesses must yield to the advantage of the charged employee. To understand as to how an oral evidence is to be understood as direct, reference to Section 60 of the Indian Evidence Act is necessary and the same is reproduced hereunder:

"60. Oral evidence must be direct.--Oral evidence must, in all cases whatever, be direct; that is to say--

If it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it;

If it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it;

If it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner;

If it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds:

Provided that the opinions of experts expressed in any treatise commonly offered for sale, and the grounds on which such opinions are held, may be proved by the production of such treatises if the author is dead or cannot be found, or has become incapable of giving evidence, or cannot be called as a witness without an amount of delay or expense which the Court regards as unreasonable:

Provided also that, if oral evidence refers to the existence or condition of any material thing other than a document, the Court may, if it thinks fit, require the production of such material thing for its inspection."

The statements of two main witnesses recorded in evidence are shockingly inconsistent. As per the duty register, it was Constable Sanjeev Kumar who was assigned duty at 4 p.m. but the same very witness in his cross-examination, has stated that his duty began from 5 p.m. on the date of incident i.e. 22.7.2000. The other Constable Ramji Yadav, who was posted at the place has also stated certain facts which lack the element of directness. Having gone through the statements and the cross-examination carefully, the versions recorded in evidence are full of doubt and inconsistency. There is a clear anomaly between the version of witnesses regarding leaving of the delinquent employee at 4 p.m. in civil dress as on 22.7.2000 and his return to the place of duty having sustained injuries. There is no evidence at all led against the petitioner on the basis of which injuries sustained by him can be said to have been caused in a fight with any civilian. The medical report is the sole foundation of assumption that the petitioner indulged into a scuffle with the civilians outside the place of duty clearly lacks proof of any direct and independent evidence.

A comparative reading of the statements of all the witnesses leaves no manner of doubt that the ingredients of direct evidence are shockingly absent in the present case. This Court would find that the findings recorded by the enquiry officer, do not satisfy the twin test of the statutory rules i.e. evidence must be material to the charge and if oral, the same ought to be direct.

Sri Raj Kumar, learned counsel appearing for Union of India while defending the impugned order has argued that in absence of any procedural infirmity in the enquiry, which admittedly is none, the Court would not venture to appreciate the grounds urged by applying the principles of strict proof. The power has rightly been exercised by the competent authority which in the circumstances of the case is unquestionable.

The submission put forth by learned counsel for Union of India is attractive but in a situation where statutory rules case a duty upon the competent authority to analyze the form of evidence, the position becomes different. The special protection is bound to be construed for the real purpose and is binding upon the enquiry officer as well as the disciplinary authority. Any lacuna left by the enquiry officer in a case is bound to be taken note of by the disciplinary authority. The disciplinary authority having failed to notice the basic anomaly in evidence, was not right in accepting the enquiry report as a gospel truth. Once directness of evidence is a rule, it is difficult to hold that the purpose of the rule can even be served by taking into account the hearsay evidence. The approach adopted by the disciplinary authority is clearly faulty, erroneous and without authority of law. All such infirmities are bound to be taken a judicial notice of by this Court for interference in exercise of power under Article 226 of the Constitution of India for the reason that the essence of justice flows through rule of law.

On a careful consideration of the material on record, this Court is convinced that the oral evidence relied upon in the case lacking directness is extraneous hence the charges levelled against the petitioner cannot be said to have been proved within the true scope of the statutory rules providing for a higher degree of proof than preponderance of probability. The disciplinary authority having lost sight of such an anomaly, committed a manifest error of law and so have the appellate and revisional authority stepped into his shoes.

This Court looking to the fact that the petitioner had remained out of service for a considerable period, proposed the competent authority to reconsider the punishment imposed and convert the penalty into an order of compulsory retirement so that the charged employee may have a source of livelihood at this stage when he is to attain the age of superannuation shortly. The offer so made was not responded in positive. Hence, in the circumstances of the case, the impugned orders passed against the petitioner are hereby set aside with a consequential benefit of thirty percent salary payable to the petitioner within a period of three months from the date a certified copy of this order is served upon the competent authority. Consequences for the determination of service benefits and reinstatement shall follow accordingly.

The writ petition is allowed in part. No order as to cost.

Order Date :- April 8, 2019

Fahim/-