For Petitioners :- Mr. Mayank Kumar, Advocate
For Respondents:- Mr. Ramakant Mishra, DSGI and Mr.
Bhupendra Pandey, C.G.C.
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SB- Hon'ble Shri Justice Amitendra Kishore Prasad
CAV Order
1. Since common question of facts and law is involved in both
3. The present petitions are directed against the impugned
order dated 13.10.2023 passed by Respondent No. 5, namely the
rejected. The petitions further assail the revision order dated
dismissed by the respondent authorities. The said revision arose
Act, 1949 read with Rule 27-CC(ii) of the CRPF Rules, 1955. The
petitioners were rejected as being devoid of merit. By way of these
4. Subject matter in brief are that these petitions arise out of the
second round of litigation between the parties. The petitioners
Narayanpur (now Vijayawada). During the course of service, an
FIR No. 12/2009 was registered against the petitioners and other
307 of the Indian Penal Code, 1860. On account of his arrest in
suspension with effect from 23.10.2009. Considering the alleged
was held. The petitioners were dismissed from service w.e.f.
CRPF Rules, 1955. Aggrieved by the dismissal order dated
order dated 21.03.2011. Thereafter, the petitioners preferred a
order dated 08.04.2013. Meanwhile, the criminal trial proceeded
Sessions Case No. 161/2012. Vide judgment dated 09.08.2012,
a fine of Rs. 500/-. Against the said conviction, the petitioners
preferred Criminal Appeal No. 744/2012, wherein this Hon'ble
and acquitted the petitioner of all charges. Upon their acquittal
consequential benefits including back wages. However, due to
Writ Petition (S) No. 2269/2015 (Jaipati Yadav & Anr. v. Union of
India & Ors.). The said writ petition was disposed of vide order
period. Pursuant thereto, a fresh representation was submitted by
Respondent No. 5 vide the impugned order dated 13.10.2023,
without proper application of mind. It is submitted that the sole
ceased to exist. The judgment of acquittal has attained finality,
the petitioner's claim for reinstatement. Hence, the present
petitions.
5. The petitioners have prayed for certain reliefs in the present
writ petitions. Though there are some sort of differences in respect
10.3) This Hon'ble Court may kindly be pleased to
issue such directions/orders to the respondent
authorities to reconsider the candidature of the
petitioner for his reinstatement to the post of
Constable (GD) with all consequential benefits
including back wages along with interest.
10.4) Any other relief which this Hon'ble Court
deems fit and proper may also kindly be granted to
the petitioner, in the interest of justice."
6. Facts of the case are that the petitioners were appointed and
posted as Constable (GD) bearing Batch No. 025040067 in the
39th Battalion of the Central Reserve Police Force (CRPF) at
Narayanpur (now Vijayawada). On 23.10.2009, on the basis of
allegations arising out of an incident during operational duty and
the subsequent registration of FIR No. 12/2009 for offences under
Sections 147, 148, 294, 506-B and 307 of the Indian Penal Code,
1860, the petitioners along with other co-accused were arrested
and placed under suspension with effect from 23.10.2009.
Considering the circumstances, the Disciplinary Authority formed
an opinion that it was not reasonably practicable to conduct a
departmental enquiry and, accordingly, by invoking Section 11 of
the CRPF Act, 1949 read with Rule 27-CC(ii) of the CRPF Rules,
1955, the petitioners were dismissed from service w.e.f.
09.11.2009 by the Commandant, 39th Battalion, CRPF. The
statutory appeal preferred by the petitioners was rejected by the
DIG, Range, CRPF, Bhubaneswar on 21.03.2011, and the revision
petition was also dismissed by the IGP, Southern Sector, CRPF,
Hyderabad on 08.04.2013. Meanwhile, the criminal trial proceeded
before the learned Additional Sessions Judge, Kondagaon in
Sessions Case No. 161/2012, wherein vide judgment dated
09.08.2012 the petitioners were acquitted of all major charges and
convicted only under Section 323 IPC with a fine of Rs. 500/-,
which conviction was subsequently set aside by this Hon'ble Court
in Criminal Appeal No. 744/2012 vide judgment dated 15.05.2014,
resulting in the petitioners' complete acquittal. After their acquittal
attained finality, the petitioners submitted representations seeking
reinstatement with all consequential benefits; however, due to
inaction, they were constrained to file Writ Petition (S) No.
2269/2015, which was disposed of on 27.06.2023 with a direction
to the respondent authorities to consider their representation.
Pursuant thereto, a fresh representation dated 08.07.2023 was
submitted, which came to be rejected by Respondent No. 5 vide
impugned order dated 13.10.2023, despite the fact that similarly
situated co-delinquents, who were dismissed by the same order
dated 09.11.2009 and later acquitted, were reinstated in service,
thereby compelling the petitioners to file the present petitions
seeking redressal of their grievance.
7. Fact of the case in hand is that on 23.10.2009, pursuant to
registration of FIR No. 12/2009 for offences under Sections 147,
148, 294, 506-B and 307 of the IPC, the petitioner along with other
co-accused was placed under suspension. Thereafter, vide order
dated 09.11.2009, the petitioner was dismissed from service by the
Commandant, 39th Battalion of the Central Reserve Police Force,
by invoking Section 11 of the CRPF Act, 1949 read with Rule 27-
CC(ii) of the CRPF Rules, 1955. The statutory appeal preferred by
the petitioner was rejected by the DIG, Range, CRPF,
Bhubaneswar on 21.03.2011, and the revision petition was also
dismissed by the competent authority vide order dated 08.04.2013.
Meanwhile, the learned Additional Sessions Judge, Kondagaon, in
Sessions Case No. 161/2012, vide judgment dated 09.08.2012,
acquitted the petitioner of all major charges and convicted him only
under Section 323 IPC, imposing a fine of Rs. 500/-. The said
conviction was challenged before this Hon'ble Court in Criminal
Appeal No. 744/2012, and vide judgment dated 15.05.2014, the
petitioner was acquitted of all charges. Subsequently, due to
inaction on the part of the respondent authorities, the petitioner
approached this Hon'ble Court by filing Writ Petition (S) No.
2269/2015, which was disposed of on 27.06.2023 with a direction
to the respondents to consider and decide the petitioner's
representation within a stipulated period. Pursuant thereto, the
petitioner submitted a fresh representation on 08.07.2023, which,
however, came to be rejected by the respondent authorities vide
the impugned order dated 13.10.2023, giving rise to the present
petition.
8. Learned counsel for the petitioners submit that the
suspension and subsequent dismissal of the petitioners were
founded solely on the registration of FIR No. 12/2009 and the
conviction recorded by the Trial Court, and once this Hon'ble
Court, vide judgment dated 15.05.2014, acquitted the petitioners of
all charges and the said judgment has attained finality having not
been challenged before the Hon'ble Supreme Court, the very
substratum of the impugned termination ceased to exist, thereby
entitling the petitioners to reinstatement with all consequential
benefits. It is further submitted that even assuming, though denied,
that the acquittal was on benefit of doubt, the same does not dilute
the legal effect of acquittal, particularly when no independent
departmental enquiry was ever conducted and the dismissal was
passed by invoking extraordinary powers under Rule 27-CC(ii) of
the CRPF Rules, 1955. Learned counsel submits that the
petitioners have been made to suffer for more than a decade
without any justification, depriving them of livelihood and dignity,
and the rejection of their representation reflects complete non-
application of mind. It is also contended that similarly situated co-
delinquents, who were dismissed by the same order dated
09.11.2009 and later acquitted, have already been reinstated in
service, and denial of the same relief to the petitioners amounts to
hostile discrimination and violation of Articles 14 and 21 of the
Constitution of India. Learned counsel therefore submits that the
impugned order is arbitrary, unsustainable in law, and liable to be
quashed, and the petitioners deserve reinstatement in service in
the Central Reserve Police Force with all consequential benefits.
Reliance has been placed on the judgments of the Hon'ble
Supreme Court in the matters of Vijay Singh Bhadauriya vs.
State of Madhya Pradesh and others 2025 SCC OnLine MP
3832, Zuber Ahmed vs. The Union of India and others 2015
SCC OnLine P&H 8826 and also the order passed by this Court in
WPS No.1371/2023 (Nansai vs. South Easter Coal Ltd. And
others).
9. Learned counsel for the respondents submits that the
dismissal of the petitioners from service was not based solely on
the registration of FIR No. 12/2009 or the outcome of the criminal
proceedings, but on the petitioners' alleged conduct involving
indiscipline and misconduct during operational duty, which was
considered serious in the context of a uniformed force like the
Central Reserve Police Force. It is submitted that a Preliminary
Enquiry was conducted at the spot and the material on record,
including statements of concerned personnel and medical records,
indicated involvement of the petitioner, and in view of the
prevailing circumstances, the Disciplinary Authority formed an
opinion that it was not reasonably practicable to hold a regular
departmental enquiry, leading to invocation of Section 11 of the
CRPF Act, 1949 read with Rule 27-CC(ii) of the CRPF Rules,
1955. Learned counsel further submits that the acquittal of the
petitioners in the criminal appeal does not automatically entitle
them to reinstatement, as departmental action and criminal
proceedings operate in different fields and are governed by
different standards of proof. It is also contended that the
petitioners' appeal and revision were duly examined and rejected
by the competent authorities and that the impugned order dated
13.10.2023 was passed after considering the petitioners'
representation and relevant records. Learned counsel submits that
discipline is an important consideration in a force such as CRPF
and, therefore, no case for interference with the impugned order is
made out, and the petitions are liable to be dismissed.
10. I have heard learned counsel for the parties and perused the
material available on record.
11. From a bare perusal of the impugned order removing the
petitioners from service, it appears that the procedure envisaged
under Section 11 of the CRPF Act, 1949 read with Rule 27(CC)(II)
of the CRPF Rules, 1955 has not been followed in its true spirit.
No proper opportunity of hearing was afforded to the petitioners.
The appellate as well as revisional authorities have mechanically
affirmed the order of punishment merely on the premise that the
disciplinary authority had recorded satisfaction that holding a
regular departmental enquiry was not reasonably practicable, and
accordingly proceeded to remove the petitioners from service
without conducting any enquiry. It is significant to note that none of
the witnesses were examined in the so-called enquiry. The
department justified this omission on the ground that no witness
was willing to come forward to depose and, therefore, their
statements were not recorded. Such an approach is wholly
contrary to the settled principles governing disciplinary
proceedings.
12. Removal from service entails serious civil consequences.
Therefore, the competent authorities are required to strictly adhere
to the mandatory procedural safeguards prescribed under law. The
delinquent employee must be given adequate opportunity at every
stage -- issuance of show cause notice, framing of definite
charges, supply of relevant documents, leading of evidence, and
opportunity to cross-examine departmental witnesses as well as to
adduce defence evidence. Unless such procedure is duly followed,
imposition of a major penalty like removal from service, without
holding a proper enquiry and without granting reasonable
opportunity of hearing, cannot be sustained in the eyes of law.
13. In the present case, the initiation of the so-called enquiry
appears to have been founded solely upon a criminal case
registered against the petitioners. They were convicted for the
offence punishable under Section 323 IPC and sentenced to pay a
fine of Rs. 500/- each. However, their conviction was subsequently
set aside by this Court in Criminal Appeal No. 744/2012 on the
ground that the prosecution failed to prove the case beyond
reasonable doubt and the appellants were entitled to benefit of
doubt.
14. Though it is true that departmental proceedings and criminal
proceedings operate in distinct spheres, once the departmental
enquiry itself was not conducted in accordance with the procedure
prescribed under law and no reasonable opportunity of hearing
was granted to the petitioners, the entire action stands vitiated. In
the absence of a proper enquiry, it would be difficult to uphold the
orders passed by the disciplinary authority and affirmed by the
appellate and revisional authorities.
15. It is also pertinent to mention that other co-delinquents, who
were similarly charged and were acquitted in the criminal case,
were reinstated in service. The present two petitioners, who were
initially convicted under Section 323 IPC but subsequently
acquitted in appeal, were not extended similar benefit. The nature
of the dispute leading to the criminal case also indicates that the
incident arose out of a petty altercation which was not ultimately
proved in accordance with law.
16. All these circumstances cumulatively demonstrate that non-
compliance with the mandatory procedural requirements has
resulted in miscarriage of justice. In a case where a major
punishment such as removal from service is imposed, strict
adherence to the prescribed procedure and grant of adequate
opportunity to the delinquent employee is indispensable. Failure to
do so renders the impugned action unsustainable in law.
17. The Hon'ble Supreme Court in Zuber Ahmed (Supra) has
held that dispensing with a regular departmental enquiry on the
ground that it is "not reasonably practicable" to hold such enquiry
is an exceptional power, which must be exercised strictly in
accordance with law. The authority is required to record cogent
and convincing reasons demonstrating real and objective
satisfaction that holding the enquiry was not feasible. Mere ipse
dixit of the disciplinary authority or vague apprehensions cannot
justify bypassing the mandatory safeguards of natural justice,
particularly when a major penalty like dismissal or removal from
service is imposed. The relevant paragraphs are quoted
hereinbelow:-
"63. That the dismissal from service of the
petitioner by orders dated March 19. 1993 is not in
accordance with s. 12 CRPF Act read with r. 27
enquiry which is mandatory under r. 27(c) could
not have been of the CRPF Rules. This dismissal
without conducting a departmental dispensed with
since the petitioner had not been convicted on a
"Criminal Charge" stricto sensu as carefully urged
by Mr. Cheema to take the trial out of the charge
framed against the accused. Therefore, any
power exercised of dismissing the petitioner
without an enquiry and Invoking r. 27(cc) is not
permissible since the petitioner was convicted of
an offence under s. 10(n) l.e. of an act or omission
"prejudicial to good order and discipline". Hence,
the impugned order passed without enquiry only
on the ground of conviction under s. 10(n) cannot
be sustained since the petitioner has not been
convicted on a criminal charge by a Court of a
criminal offence under the Penal Code, 1860.
64. Mr. Malhotra submits that under s. 4 Cr.P.C. all
offences under the IPC shall be Investigated,
inquired into, tried and dealt with according to the
provisions contained in the Cr.P.C., 1973. Section
26 prescribes that any offence under the IPC may
be tried by a Court, which such offence is shown
in the First Schedule of the Cr.P.C. to be triable.
Under the First Schedule to the Cr.P.C., any
offence under s. 354 IPC i.e. assault or use of
criminal Force upon a woman with intent to
outrage her modesty, is triable by a Magistrate
which as per the explanatory note No. 2 to the
First Schedule means a Magistrate of First
Class/Metropolitan Magistrate, but not an
Executive Magistrate. Hence, the petitioner could
neither be tried nor was he tried or punished
under s. 354, IPC by the 6th respondent acting as
Chief Judicial Magistrate by virtue of being a
Commandant in CRPF. Therefore, the petitioner
was not convicted on a criminal charge under the
IPC. Hence, r.27(cc) of the CRPF Rules was
wrongly invoked by the 6th respondent in passing
the impugned order dated March 19, 1993 as the
petitioner was neither charged, nor tried or
convicted of any offence under the IPC, much less
s. 354, IPC. Therefore, the petitioner could not
have been dismissed from service without
compliance of r. 27(a) and r. 27(c) requiring
holding of a departmental enquiry.
65. Submits that the order of dismissal from
service has been passed by the 6th respondent in
a routine manner without any application of mind.
The action of dismissal being a severe major
punishment, it has to be awarded only if there are
very serious charges and the action of dismissal
from service should be commensurate to the
gravity of the charges. In the case of the
petitioner, he was not tried or convicted of a more
heinous offence under s. 9 of the CRPF Act. In
fact,even under s. 10 stipulating less heinous
offences, a residuary charge i.e. s. 10(n)
prescribing an act or omission, which, though not
specified in this Act, which is prejudicial to good
order and discipline, was levelled against the
petitioner. The 6th respondent did not level any
serious allegations against the petitioner under s.
9 CRPF Act. Therefore, dismissing the petitioner
from service, which is a major punishment for a
less heinous offence without holding any
departmental enquiry which is mandatory under
rls. 27(a) and (c), clearly shows non-application of
mind and evidence of bias. See Ranjit Thakur and
Mohd. Zakir cases supra. Therefore, the
impugned order of dismissal from service of
petitioner cannot be sustained in law.
Disproportinate and petitioner: excessive
punishment imposed on petitioner:
66. That the punishment of dismissal from service
is grossly disproportionate, excessive and is not
commensurate with the alleged charge which
does not establish any proved misconduct which
is defined or identified under the CRPF Act. There
is no charge proved which is remotely made out
alleging use of criminal force with intent to outrage
the modesty of a woman. Hence, an undefined act
which is stated to be prejudicial to good order and
discipline is highly subjective. The opinion of the
6th respondent in alleging this charge as
prosecutor, judge and disciplinary authority is
highly opinionated and blased. The powers given
to one individual to judge the parameters for this
offence as a residuary clause without any reasons
being given or justification to support it, makes of
award of punishment of dismissal highly
inequitable and unjust. It was unfair to impose this
punishment without even giving a hearing or
holding a departmental enquiry in the service
matter. Therefore the punishment imposed shocks
the conscience of any individual and in terms of
the law laid down in Union of India v. Parma
Nand, AIR 1989 SC 1185 and also reiterated in
Commandant, 22 Battalion, CRPF Srinagar v.
Surinder Kumar, (2011) 10 SCC 244, the
punishment of dismissal from service on the
petitioner is strikingly disproportionate and
warrants interference by this Court as being
perverse and irrational having regard to the nature
of the charge of misconduct which was not a
criminal charge, molestation attempt not having
being established when the complainant resiled
from her previous statement and failed to
recognize Zuber Ahmed as the person charged.
For judicial treatment of difference between
'strikingly disproportionate' punishment and
'merely disproportionate', see Union of India v.
R.K. Sharma, AIR 2001 SC 3053. Hence, the
dismissal from service of the petitioner cannot be
sustained for this reason as well.
Impermissible concurrent exercise of powers by
respondent No 6:
67. That the simultaneous exercise of power in
three different capacities by Sh. Pushkar Singh le.
the 6th respondent in his separate official
positions as Chief Judicial Magistrate and
Commandant is offjustified, Impermissible and
legally untenable in accordance with the prevailing
provisions of the Cr.P.C., 1973 on account of the
following reasons which are supplemented by the
description in written submissions.
68. Even though there is no formal amendment
Incorporating the provisions of Cr.P.C., 1973 in the
CRPF Act, 1949 and the CRPF Rules, 1955, the
provisions of Cr.P.C., 1973 may have to be read
into the various provisions of the CRPF Act and
Rules as a substitute to the Cr.P.C., 1898, which
stands repealed by s. 484 of the Cr.P.C., 1973.
Hence, by necessary Implication, the 1973 Code
shall stand automatically substituted.
80. framed by the Central Government in exercise
of powers conferred by s. 18 of the CRPF Act. A
brief summary of the relevant provisions is set
down as hereunder:
(1) Ss. 9 and 10 of The CRPF Act prescribe and
contain "more heinous offences" and "less
heinous offences". s. 10(n) contains a residuary
punishment clause, "which, though not specified
in this Act, is prejudicial to good order and
discipline" and entailspunishment as for other
"less heinous offences". No provision in the Act
defines or prescribes a determination process of
any such "less helnous offence" though r. 27
stipulates the authority and the procedure
provided for conducting enquiries and
punishments to be inflicted after a formal
departmental enquiry.
(il) Section 11 of The CRPF Act prescribe that the
"competent authority" may, subject to the Rules
under the Act, "award in lieu of, or in addition to,
suspension or dismissal anyone or more of the
following punishments to any member of the
Force" which have been stipulated as reduction in
rank, fine, confinement to quarters/quarter guard
or removal from distinction/special emolument in
the Force. S. 12 states that, "every person
sentenced under this Act to imprisonment may be
dismissed from the Force" and every such person
shall, if so dismissed, be Imprisoned in the
prescribed prison, or be confined in the quarter-
guard or such other place as the Commandant or
the Court may consider suitable. Section 2(b) of
the Act defines, "close arrest and s. 2(e) defines
"open arrest" as specified in s. 15.
(III) That under s. 16 of the Act, "Notwithstanding
anything contained in the Code of Criminal
Procedure, 1898 (5 of 1898) the Central
Government may invest the Commandant or an
Assistant Commandant with the powers of a
Magistrate of any Class for the purpose of
enquiring into or trying any offence committed by
member of the Force and punishable under this
Act, or any offence committed by a member of the
Force against the person or property of an
another member."
(iv) Rule 27(cc) is part of a provision which deals
with procedure to be adhered to in disciplinary
enquiries, prescribes three grounds where the
competent authority, 'may' impose a departmental
penalty considering the circumstances of the
case, to make such orders thereon as it deems fit.
Thus, this provision of the rules, if Invoked, do not
require any notice, hearing, opportunity of rebuttal
or defence before any penalty is Imposed on a
delinquent member of the Force. It may be
pointed out at the outset that if r. 27(cc) is
compared and contrasted with Article 311(2) of the
Constitution, then, r. 27(cc) is differently worded.
Rule 27(cc) dispenses with the applicability and
requirement of a Departmental enquiry in three
contingencies and states that, "the authority
competent to Impose the penalty may consider
the circumstances of the case and make such
orders thereon as it deems fit." In so far Article
311(2) is concerned, it provides that if a person is
dismissed, removed or reduced in rank, "this
clause shall not apply," inter alia, "where a person
is dismissed or removed or reduced in rank on the
ground of conduct which hasled to his conviction
on a criminal charge."
(v) Hence, the distinguishing featurich the ERPF
distrit the use of the word 'may' in r. 27(cc) which
gives a discretion to the whereas Article 311(2)
prescribes punishing authority, a mandatory 'shall'
leaving no discretion to the punishing authority as
explained by the Supreme Court in past
precedents. Hence, Invoking of r. 27(cc)
prescribing the use of word, "may" in the light of
Interpretation of Articles 14, 16 and 21 of the
Constitution, would require reasons to be
recorded in exercising any discretion dispensing
with an enquiry if any of the three contingencies of
r. 27(cc) when are invoked for dismissing the
services of a Member of the Force.
(vi) Rule 36 of the CRPF Rules prescribes that,
"all trials in relation to any one of the offences
specified in s. 9 or 10 shall be held in accordance
with the procedure laid down in the Code of
Criminal Procedure Code, 1898." Though, there
seems to be no formal amendment replacing it
with the Code of Criminal Procedure, 1973, a note
in the Bare Act indicates "see now the Code of
Criminal Procedure, 1973" which is merely
editorial and not the voice of Parliament.
(vii) Rule 36(B) of the CRPF Rules enjoins that for
the purposes of Chapter VI-A dealing with place of
trial and adjustment of jurisdiction of ordinary
Courts, "Magistrate" means a Magistrate other
than the Commandant or an Assistant
Commandant on whom the powers of a
Magistrate have been conferred under sub s. 2 of
s. 16.
81. From a collective reading of the above
provisions, it can be understood that a
Commandant under s. 16 of the CRPF Act, whilst
acting as a Magistrate and conferred with the
powers under the Code of Criminal Procedure
Code, 1898 ("see now the Code of Criminal
Procedure, 1973") can sentence a person to more
or less helnous offences under Ss. 9 and 10 of the
Act. Thereafter, under Ss. 11 and 12, further
punishments including dismissal from service of
the Force can be imposed by the Commandant as
the Disciplinary Authority for which under r. 27(cc),
discretion can be exercised to make such orders
as deemed fit. Therefore, if a member of the
Force is convicted on a criminal charge, he can be
removed from service without any notice, enquiry
or hearing under r. 27(cc) in the discretion of the
Commandant as the Disciplinary Authority.
However, the provisions in s. 12 using the words
that "every person sentenced under this Act to
imprisonment may be dismissed" are different
from the words "conviction on a criminal charge"
used in s. 12 of the Act. Thus, the different
wording, may lead to a conclusion that dismissal
from service would require a formal departmental
enquiry prescribed under r. 27 in respect of
aperson sentenced under this Act to
imprisonment. The protection of Articles 14 and 16
available to all citizens necessitates the
requirements of equality of treatment even to
members of a disciplined Force as the CRPF.
82. Thus it may be seen that departmental
enquiries in the CRPF are conducted under s.
11(1) of the CRPF Act read with r. 27(c) of the
CRPF Rules since s. 11 is subject to rules made
under the Act. In contrast, judicial trials are also
held under Ss. 9 and 10 of the CRPF Act read
with r. 36 and r. 36 E to 36 J of the CRPF Rules.
Section 11 deals with minor punishments and
contains overlapping of jurisdictions and requires
to be read in its principles since it establishes a
connection with rules:
"11. Minor punishments. (1) The Commandant or
any other authority or officer as may be
prescribed, may, subject to any rules made under
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 considered 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 month's
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.
(2) Any punishment specified in clause (c) or
clause (b) of sub- section (1) may be awarded by
any gazetted officer when in command of any
detachment of the force away from headquarters,
provided he is specially authorised in this behalf
by the Commandant.
(3) The Assistant Commandant, a Company
Officer or a Subordinate Officer, not being below
the rank of Subedar or Inspector commanding a
separate detachment or an outpost, or in
temporary command at the headquarters of the
force, may, without a formal trial, award to any
member of the force who is for the time being
subject to his authority any one or more of the
following punishments for the commission of any
petty offence against discipline which is not
otherwise provided for in this Act or which isof a
Chief Judicial Magistrate, almost visibly power
drunk but kneeling before and kowtowing to the
powers that be, given the formidable location of
the alleged occurrence and the overwhelming
position of the complainant who ultimately made
no complaint whatsoever to put the criminal law
into motion or to be taken criminal cognizance of,
the entire episode rather murky.
Code of Criminal Procedure, 1898/1973:
84. However, since the functions of a Judicial
Magistrate are conferred upon a Commandant of
the CRPF by virtue of s. 16 of the CRPF Act, it
may be necessary to examine certain provisions
of the Cr.P.C., 1898 authorization and exercise of
judicial powers by CRPF Commandants, as as
also the present Cr.P.C., 1973, to test the also to
simultaneously exercise powers of a disciplinary
authority.
85. That under s.s 30, 32 and 34, 36 and 37 of the
Cr.P.C 1898, as it originally stood, Deputy
Commissioners or Assistant Commissioners were
invested with powers to try as a Magistrate all
offences not punishable with death. Hence, under
Chapter III dealing with power of Courts under the
old Cr.P.C., 1898, where the Executive Officers
were invested with wide powers to exercise
judicial functions as Magistrates.
86. That to make criminal procedure more
comprehensive, the Law Commission undertook a
detailed examination of the Cr.P.C., 1898 and
submitted its report on February 19, 1968.
Thereafter, since the Law Commission was
reconstituted, another detailed 41st Report was
submitted by the Law Commission in September
1969. Thereafter, Bill 41 of 1970 was introduced in
the Rajya Sabha on December 10, 1970. The Bill
was referred to a Joint Select Committee of both
Houses of Parliament. Incorporating the
recommendations of this Committee, the Cr.P.C
Bill was taken up for consideration by Parliament.
This Bill having been passed by both the Houses
of Parliament, received the assent of the
President on January 25, 1974 and came into
Force on April 1, 1974 as the Cr.P.C., 1973. One
of the main recommendations of the Law
Commission was to provide for the separation of
the Judiciary from the Executive on an All India
basis to ensure improvement in the quality and
speed of all Judicial Magistrates who would be
legally qualified and trained persons within the
control of and under the different High Courts.
Further, to do away with the scope of arbitrary
exercise of power and to dispense with
discretionary powers and act in a manner
consistent with known principles of law, this
conscious decision was taken in view of the
provisions of Article 50 of the Constitution
providing for the separation of the judiciary from
the Executive in public services.
87. That it may also be pertinent to point out that
according to Schedule II of the Law Reforms
Ordinance, 1978 (Ordinance XLIX of1978) s. 34
was omitted. The Law Commission in the 41st
Report took note of the Union Territories
(Separation of Judicial and Executive Functions)
Bill, 1968 as Introduced in Parliament containing
the following clause;
"Where under any law, the functions exercisable
by a Magistrate relating to matters which involves
the appreciation or shifting of evidence or
formulation of any decision which exposes any
person to or penalty, detention in custody pending
any punishment, Investigation, enquiry or trial or
would have the effect of sending him for trial
before any court, such functions shall, subject to
the provisions of this Act and the Code of Criminal
Procedure, 1898, as amended by this Act, be
exercisable by Judicial Magistrate; and where
such functions relate to matters which are
administrative or Executive in nature, such as
granting of a license, the suspension or
cancellation of a license, sanctioning a
prosecution or withdrawing from a prosecution,
they shall, subject as aforesaid be exercised by
an Executive Magistrate."
88. Based on the above proposal, the Law
Commission made a broad classification of the
functions of Judicial and Executive Magistrates in
the 41st Report.
89. That in Chapter II dealing with the Constitution
of criminal courts and offices, the Law
Commission in its 41st Report has specifically
suggested that Judicial Magistrates shall be
appointed by the High Court at such places as the
State Government may in consultation with the
High Courts duly notified in the official Gazette.
Further, Special Judicial Magistrates may be
appointed by the High Court by conferring upon
any person a Judicial post if he possesses such
qualifications as may be prescribed by the High
Court. Likewise, the Law Commission also
suggested appointment of Executive Magistrates
by the State Government to exercise Executive
functions in their jurisdiction.
90. That the above provisions of constitution of
Criminal Courts and offices find their statutory
place in Chapter II of the Cr.P.C from Ss. 6 to 25.
Judicial Magistrates exercising judicial functions
are appointed by the High Court and Special
Judicial Magistrates can be appointed for a term
not exceeding one year at a time, under s. 13 if a
person possesses such qualification or
experience in relation to legal affairs as the High
Court may by rules specify. Likewise, public
prosecutors who have been practicing as an
Advocate for not less than 7 years can be
appointed by the Central Government or the State
Government for every High Court. Executive
Magistrates can be appointed by the State
Government under s. 20 of the Cr.P.C. Thus, there
is a clear separation of powers as contemplated
by Article 50 of the Constitution and
Judicialpowers are not exercised by Executive
Magistrates. The amicus had also placed on
record on January 28, 2015 the relevant extract of
the provisions of the Cr.P.C., 1898 as also the
relevant extract of the 41 report of the Law
Commission of India, September 1969 where
upon the changes were made in the Cr.P.C., 1898
given rise to the current Cr.P.C., 1973.
91. Bearing in mind that the CRPF is the main
counter insurgency Force in India serving at all
sensitive locations and borders in India, and is
also the largest Central Armed Police Force
comprising about 230 battalions and reported over
3 lac personnel, it is suggested that an
appropriate reference be made to the Law
Commission of India for suggesting suitable
amendments to the CRPF Act, 1949 and the
CRPF Rules, 1955 so that these provisions can
be brought at par with the provisions of the Cr.P.C
1973 and the constitutional mandate under Article
50 of the Constitution stipulating a legal mandate
to separate the Judiciary from the Executive in the
public services of the State. Hence, CRPF
Personnel ought to be administered by a law
which is in agreement with the provisions of the
Constitution without infringing Cr.PC, 1973.
92. It may be useful to quote that the Army Act,
1950 read with the Army Rules, 1954, the Air
Force Act, 1950 and the Navy Act, 1957 which are
post Constitutional laws conforming to existing
laws do prescribe a proper procedure in
accordance with law to regulate disciplinary and
penal punishments for offences committed in
service through a process of Court Martial and
other legal procedural methods devised and
employed in accordance with law and rules of
natural justice.
93. Likewise, the Border Security Force Act, 1968
read with the BSF Rules, 1969, provides a
Security Force Court for dealing with offences for
members of BSF which conform to the
Constitution and do not infringe other existing
statutory laws.
94. Since, CRPF is the largest armed Central
Reserve Police Force, it can no longer be
continued to be administered by an archaic pre-
Constitutional law whose provisions are not in
accordance with the protections guaranteed under
the Constitution of India as also the principle of
separation of judicial powers under the Cr.P.C.,
1973. It may no longer be legally tenable to
conduct judicial trials by the CRPF under the
Cr.P.C, 1898."
95. Accordingly, a copy of this judgment is
remitted to the Law Commission of India and the
Ministry of Law and Justice, New Delhi to
contemplate upon devising a mechanism for
administration of discipline and imposition of
penalties upon CRPF personnel which are the
touch stone and main stream of a disciplined
Force and by separation ofJudicial and executive
power and to consider points in para. 84 above.
The Law Commission may also deliberate the
issue where the minimum sentence is not
prescribed by law then what should be the bare
minimum sentence. In other words, how would
"minimum" sentence be quantified. This phrase
whether requires to be qualified? Whether Judicial
discretion requires to be rationed and rationalized
when awarding sentence of "till the rising of the
Court" on a criminal charge. This is for the
Commission and the Parliament to debate.
96. That when s. 12 of the Act is directory in
nature and not mandatory then dismissal from
service should normally follow formal
departmental enquiry in terms of the procedure
prescribed under r. 27 (1). That due process
established by law was departed from and straight
away, on the same day three major events with
lifelong consequences were synchronized and
inflicted by the Commandant; the conviction, the
sentence and the dismissal. Even assuming
arguendo that a regular enquiry was not
necessary under r. 27, even then, the petitioner
should have been served with a show cause
notice to hear him out if he had anything to say
against dismissal or proposed dismissal in view of
discretion under s. 12 and in absence of the
mantra of the words "conduct which led to the
conviction" employed therein as in Article 311 of
the Constitution on which Tulsiram Patel case Is
founded and Chellapan case overruled on point of
hearing. That opportunity was not given and the
principles of natural justice were breached. Rule
27 is a rule of natural justice. Section 12(1) is an
enabling provision. Therefore, the limitation on
exercise of power of the Commandant while
acting as the disciplinary authority in relation to a
constable in CRPF stands circumscribed by r. 27.
The dismissal order has undoubtedly been
passed under s. 12(1) of the Act which does not
contain the words exactly as are found in Article
311(2)(a) of the Constitution. Therefore, none can
be imported into s. 12 which is special law for
CRPF personnel traceable to what is now Article
33 of the Constitution of India. History has it that
the CRPF was a successor to the The Crown
Representative's Police Force raised in British
India under an enactment called The Crown
Representative's Police Force Law, 1939, which
was made under the Foreign (Jurisdiction) Order,
1937 to provide for the constitution and regulation
of the Force, which automatically ceased to have
effect from the August 15, 1947. However, the
Government of India Act, 1935 continued to
operate till it was transformed into the Constitution
of India. The CRPF Act, 1949 was legislated by
the Dominion from Paragraph 1 of List 1 of the
Seventh Schedule to the Government of India Act,
1935 falling in the category of "any other armed
Forces raised or maintained by the Dominion'
which is now replaced by the Union of India
administered through the Central Government.
97. Section 12(1) of the Act enables the punishing
authority to choose one of the minor punishments
specified in s. 11 for one or more of the heinous
offences specified in s. 9 or for less heinous
offences enumerated in s. 10. I find no cogent or
good enough reason not to read Serial No. 1 of
the Table under r. 27 as part of the substantive
mandatory procedure required to be followed,
though falling in rules with no power drawn from
the provisions of the Act directly or impliedly. A
reading of r. 27 appears not to leave any
discretion in the Commandant when not only the
proposed choice of punishment is dismissal or
removal from the Force, but for any reason
whatsoever, for any of the misconducts specified
in Ss. 9 and 10 of the Act except to visit after a
regular departmental enquiry is held and in no
other manner even after sentencing for an offence
under s 10(i) (c) of the Act. It is well settled that if
a thing is required to be done in a particular
manner, it should be done in that manner or not at
all. Otherwise, the action would be open to
criticism as one being arbitrary and unreasonable.
I would repeat the famous words of Justice Felix
Frankfurter of the United States Supreme Court in
McNabb v. United States, 318 U.S. 332 that the
"history of liberty has largely been the history of
the observance of procedural safeguards". Rule
27 Is an absolute procedural safeguard while S.
12(1) is enabling and directory in nature, It
enables but does not command the Commandant
to do what he wishes and as he likes. When the
disciplinary authority/Commandant forms opinion
under s. 12(1) as to what has to be done after
awarding sentence, then the word 'may' used in s.
12 comes into play and would goad and guide him
to resort to fair procedure of domestic enquiry
recognized by r. 27 of the CRPF Rules, 1955 to
arrive at the truth or the most probable truth, when
law does not and is not intended to deal with
absolutes while reconstructing today of events in
the past based on the limitations of admissible
evidence, principles of hearsay etc. and lack of
direct facts proved in a trial.
98. There appears to be yet another fundamental
reason which persuades me to hold that due
procedure was not followed in ordering dismissal
without enquiry. That reason lies in sub section (2)
of s.12 of the Act. The sub s. lays down that:
"Every such person shall, if he is so dismissed, be
imprisoned in the prescribed prison,...". A priori
Imprisonment follows dismissal. It is not the other
way round. Dismissal is an inherent right of the
employer reflected in the General Clauses Act,
1897. Provisions of s. 12 do not speak of
'conviction' but speak of 'sentencing' a 'person' 'to
imprisonment'. It is axiomatic in criminal law that
sentence follows conviction. Thus, conviction on a
criminal charge has to be read into s. 12 of the
CRPF Act, 1949 even if the word is not found in
the statutory enactment and onlysentenced'. But
an order of dismissal based on sentence passed
on a proven criminal charge is to be visited with
imprisonment in view of the word 'shall' used in s.
12(2). This part is apparently mandatory leaving
no elbow room or discretion in the trial judge, the
Commandant, CRPF to act to the contrary.
However, if dismissal is not selected as penalty
following sentence then the "Court or the
Commandant" can order confinement in quarter-
guard. I think that dismissal cases cannot go to
quarter-guard. The 'place of Imprisonment' under
s.12(2) is the 'prescribed prison". The expression
'prescribed prison' is not defined in the Act nor
was required as it is procedural and penal result
of criminal consequences. It is r. 36(2) which tell
us that it is the place which is the nearest jall. This
means where a sentence of imprisonment shall be
served. Court is not a jail but can be a place of
imprisonment and a person sentenced can be
imprisoned in a court room for the working day.
Section 389, Cr.P.C. does not speak of jail
sentence but of imprisonment. The ordinary
meaning of the word 'sentence' is 'punishment
given by a law court'. A direction by the court that
a person shall be confined in court premises till
the court rises constitutes imprisonment within the
meaning of the Penal Code and the Code of
Criminal Procedure as it is a confinement and
curtailment of civil liberty Imposed by authority of
law. But the CRPF Act is a special statute and is
differently worded in r. 36(b) which leaves no
discretion except to confine a person sentenced
under the Act in the nearest jail depending on
feasibility of transport and escort either to the
nearest jail or Quarter -Guard. This was not done
to Zuber Ahmed. The provision reads: "36.
Judicial Trials
(a) All trials in relation to any one of the offences
specified in s. 9 or' s. 10 shall be held in
accordance with the procedure laid down in the
Code of Criminal Procedure, 1898. (1973)
(b) All persons sentenced to imprisonment under
the Act shall be confined in the nearest jail.
Provided that if the sentence of imprisonment is
for one month or less, or where the Commandant
is satisfied that due to the difficulty of transport
and escort of the person sentenced to
imprisonment, to the nearest jail, it is so desirable,
such persons shall be confined in the Quarter
Guard of the Force."
18. Similarly, in Vijay Singh Bhadauria (Supra), the Hon'ble
Supreme Court has reiterated that imposition of a major penalty
without conducting a proper enquiry and without affording
reasonable opportunity of hearing violates the principles of natural
justice. The Court emphasized that the satisfaction regarding "not
reasonably practicable" to hold an enquiry must be based on
objective material and cannot be sustained in the absence of
compelling circumstances. An order passed in breach of such
mandatory procedural safeguards is liable to be set aside. The
relevant paragraphs are quoted hereinbelow:-
"9. After consideration of the arguments advanced
by the counsels for the parties, we are of the
considered view that the charges leveled against
the petitioner were duly proved in the
Departmental Enquiry by examining relevant
witnesses. The defence put up by the petitioner
was duly considered by the Inquiry Officer in his
enquiry report. Shri Suresh Singh, Railway
Magistrate, Bhopal categorically stated before the
Inquiry Officer that High Court Judge of Allahabad
could not reach to Railway Station on time as the
petitioner came late at VIP Guest House and was
in drunken state. In the cross examination, he
clarified that petitioner was not in the normal
condition when he met to the petitioner at Railway
Station. Another witness Santosh Singh Mess,
APO narrated the entire incident in detail and
stated that petitioner was directed to reach VIP
Guest House at 1.30 AM on 19.11.2006 but when
he did not reach on time, Judge of Allahabad High
Court called him at 2.45 AM and asked him to
reach at Railway Station, where he handed. over
a written complaint to APO. This witness proved
the complaint, which was written and signed by
the Judge of Allahabad High Court in his
presence. Department examined another witness
Smt. Chunamma Nath, Accountant of District
Court, Bhopal, who stated that earlier also when
the petitioner was posted in Family Court, Bhopal
the complaint was received and he was reverted.
10. The petitioner himself has accepted in his
examination that he was directed to reach VIP
Guest House on 19.11.2006 at 1.30 AM, however,
he denied the allegation that he was in drunken
state. He submitted the explanation that between
his home and Shyamla Hills, where the vehicle
was parked, tyre of his bicycle was punctured
therefore, he could not reach on time. He
examined Sunil Kumar, Home Guard Sainik, who
was performing night security guard duty in the
Judges Enclave of Shyamla Hills Bhopal where
the vehicle was parkedand supported the
contention of petitioner that his bicycle was
punctured.
11. The Inquiry Officer considered the entire
material and thereafter submitted his enquiry
report dated 15.01.2007. After consideration of the
evidence in detail, the Inquiry Officer found proved
the charge. against the petitioner. After issuance
of show cause notice to the petitioner as to why
enquiry report be not accepted, the Impugned
order was passed by the District & Sessions
Judge, Bhopal.
12. So far as the findings of Inquiry Officer are
concerned, the same has been recorded on the
basis of material available on record and
Inadequacy of evidence cannot be subject matter
of judicial review and the High Court can interfere
with the order of punishment only in case of
violation of the provisions of rules or principles of
natural justice are proved. This court cannot
exercise its jurisdiction in a petition under Article
226 of the Constitution of India as appellate
authority. This court can interfere only if statutory
rules or regulations are found to be violated.
When the law permits the competent authority to
take action against the delinquent person for his
misconduct, no interference in the finding is called
for. Consequently, so far as the finding of
misconduct is concerned, we are in agreement
with the Disciplinary Authority.
13. However, looking to the charge of misconduct,
the punishment of dismissal appears to be
disproportionate. The allegation against the
petitioner was that he failed to reach at VIP Guest
House on time and therefore, the Judge of
Allahabad High Court could not board the train as
scheduled. In our considered opinion allegation is
not sufficient for dismissal of the delinquent from
the service.
14. The punishment of removal from the service is
in outrages. defines of logic and is shocking and if
the punishment imposes by the Disciplinary
Authority shocks the conscious of the Court, it
would be appropriate to direct the Disciplinary
Authority to reconsider the penalty Imposed and
to impose appropriate punishment with cogent
reasons in support thereof.
15. For the aforesaid reasons, though we uphold
the findings of misconduct but set aside the
quantum of punishment and remit the matter to
the disciplinary authority to reconsider the
quantum of punishment in the light of allegation of
misconduct proved against the petitioner. Said
exercise be completed within a period of three
months from the date of receipt of certified copy of
this order. Petitioner will be reinstated with
immediate effect, however, he will not be entitled
for back wages applying the principle of "no work
no pay"."
19. Further, this Court in the matter of Nansai (Supra) has held
as under:-
"6. This Court has considered the nature of
dispute in WPS No. 3302/2011 in which it has
been held as under:-
"As a consequence, the petitioner would be
entitled for reinstatement in service. However,
applying the principles of "No Work No Pay" and
also taking the long duration of time that has
lapsed from the date of termination till now, the
petitioner would not be entitled for any wages.
However, he would be entitled for all other
benefits of continuity of service. This Court
having quashed the impugned order only on the
ground of not conducting an inquiry, the right of
the respondents stands reserved for conducting
an inquiry and on being satisfied that the
petitioner has fraudulently obtained employment,
the respondents-Management would be free to
take appropriate decision in accordance with the
Service Rules or the standing order as the case
may be governing the field."
7. Having considered the facts and
circumstances of the present case in their
entirety, and also taking into account the order
passed in WPS No. 3302/2011, this Court finds
that the impugned order of removal is
unsustainable as without issuing any notice and
without holding any enquiry order regarding
removal from service has passed, that too without
affording any opportunity of hearing which is
illegal and is accordingly quashed. However, it is
made clear that the delay in filing the present
petition, as well as the period during which the
petitioner did not render any service, shall be duly
taken into account while reinstating the petitioner.
Consequently, the petitioner shall not be entitled
to claim any monetary or service-related benefits
for the said period.
8. Accordingly, the writ petition is allowed.
9. Furthermore, it is made clear that the
concerned respondent authorities shall be at
liberty to initiate appropriate proceedings, ifso
advised, in accordance with law and the
applicable Service Rules, for taking action
against the petitioner, including his removal from
service, after following due process."
20. Also, in the matter of Dwarka Prasad Kashyap vs. State of
M.P. and others 2010 (3) M.P.H.T. 180, the Madhya Pradesh High
Court has held that any administrative or quasi-judicial order
entailing civil consequences cannot be sustained if passed without
affording reasonable opportunity of hearing. The Court further
observed that even where the statutory provisions are silent, the
principles of natural justice are required to be read into the
procedure, and any action taken in violation of audi alteram
partem is liable to be set aside.
21. In view of the aforesaid settled legal position, this Court has
no hesitation in holding that the impugned action of the
respondents, having been taken without conducting a regular
departmental enquiry and without affording adequate opportunity
of hearing to the petitioners, cannot be sustained in the eyes of
law. The material available on record clearly demonstrates that the
mandatory procedural safeguards contemplated under the relevant
statutory provisions were not adhered to. The satisfaction recorded
by the disciplinary authority that holding a regular enquiry was not
reasonably practicable is not supported by any cogent or
compelling material. The mere assertion that witnesses were
unwilling to depose cannot, by itself, justify dispensing with a full-
fledged enquiry, particularly when the punishment imposed is that
of removal from service, which carries grave civil consequences.
22. This Court has also considered the nature of the dispute
which led to initiation of both the criminal case and the
departmental action. The incident in question arose out of a petty
altercation and, significantly, the conviction recorded by the trial
court under Section 323 IPC was subsequently set aside in
appeal, granting benefit of doubt to the petitioners. Although
departmental proceedings and criminal proceedings operate
independently, once the criminal conviction itself does not survive
and the departmental enquiry has not been conducted in
accordance with law, the foundation of the impugned action
becomes unsustainable.
23. It is further noteworthy that similarly placed co-delinquents,
who were acquitted in the criminal proceedings, were reinstated in
service. Denial of similar treatment to the present petitioners,
particularly when their conviction has also been set aside in
appeal, results in manifest arbitrariness and discriminatory
treatment. The cumulative effect of non-compliance with
mandatory procedure, absence of proper enquiry, lack of adequate
opportunity of hearing, and the mitigating circumstances of the
case clearly establishes that the impugned orders suffer from
serious legal infirmity.
24. Considering the law laid down by the Hon'ble Supreme Court
and various High Courts, as well as the peculiar facts and
circumstances of the present case, this Court is of the considered
view that the punishment order of removal from service passed by
the disciplinary authority, as affirmed by the appellate and
revisional authorities, is liable to be interfered with and set aside.
25. Accordingly, the order of removal from service passed
against the petitioners is hereby quashed. Consequently, the
orders passed by the appellate and revisional authorities affirming
the said punishment are also quashed.
26. In consequence thereof, the petitioners shall be entitled to
reinstatement in service. However, having regard to the facts and
circumstances of the case, including the period during which they
remained out of service, this Court deems it appropriate to deny
back wages. The period from the date of removal till reinstatement
shall be treated for all other service benefits, including continuity of
service and retiral benefits, but without monetary back wages.
27. The writ petition is accordingly allowed in the aforesaid
terms.
28. No order as to costs.
sd/-
(Amitendra Kishore Prasad)
Judge
Vishakha
HEAD-NOTE
"A major penalty cannot be imposed without
proper enquiry and opportunity of hearing.
Dispensing with enquiry must be supported
by valid reasons; otherwise, the order is
liable to be set aside."
