Sohan Lal Kapoor vs Union Of India & Ors
2008 Latest Caselaw 1309 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI


+                    WP (C) No.4604/1996


                                              Reserved on: 11.07.2008
%                                          Date of decision: 11.08.2008


SOHAN LAL KAPOOR                                ...PETITIONER

                       Through:   Major K.Ramesh, Advocate.


                               Versus


UNION OF INDIA & ORS                         ...RESPONDENTS
                    Through:      Ms.Saroj Bidawat, Advocate.



CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON‟BLE MR. JUSTICE MOOL CHAND GARG

1.    Whether the Reporters of local papers
      may be allowed to see the judgment?             No

2.    To be referred to Reporter or not?              No

3.    Whether the judgment should be                  No
      reported in the Digest?

SANJAY KISHAN KAUL, J.

1. The petitioner was appointed as a constable in the CRPF on

04.07.1971 and held various posts till he was sent on deputation to

the IB in May, 1979. The petitioner was thereafter sent on

deputation to the Ministry of External Affairs, Lagos, Nigeria and

further to the Consulate General of India, New York, America. The

petitioner was serving in the Consulate from 27.11.1989 when he

suffered serious head injuries on 11.01.1991 on account of a stated

attack by two coloured Americans. The petitioner had to be rushed

to the hospital and was subsequently sent back to India on

31.05.1991. The petitioner joined his duty in the 71st Battalion at

Moga on 08.07.1991. The departmental enquiry commenced

regarding the incident of 1991 in New Jersey on 15.12.1995 which

exonerated the petitioner of the allegations made against him.

The allegation against the petitioner was that he was working

privately in the Exxon Gas Station unauthorizedly. Further

allegations were also made that he had excess assets

disproportionate to his income and had given an application to the

American Justice Department for obtaining immigration visa without

prior permission of the Ministry. He was also alleged to have stolen

some money and tape-recorder from one co-employee.

2. The petitioner was exonerated on account of lack of evidence.

The conduct and award received by the petitioner during his service

period as also the appreciation letters showed that the petitioner

had remained a disciplined and promising member of the force and

it is in view thereof that the disciplinary authority exonerated the

petitioner for want of evidence by giving him the benefit of doubt.

One Sh. P.K.Singh, Assistant Commandant, was however directed to

go through the case of the petitioner without assistance of

petitioner, who submitted his report some time in May, 1996. This

resulted in an order of removal from service of the petitioner on

30.06.1996. The appeal filed by the petitioner thereafter also failed

on 02.09.1996.

3. A perusal of the Order dated 30.06.1996 shows that the delay

in holding the enquiry was on account of the fact that on several

occasions, the matter was taken up with higher ups of the CRPF to

supply evidence and list of witnesses, but the same could not be

provided by the Ministry of External Affairs or the CRPF till October,

1995. The Enquiry Officer found that no concrete evidence was

available to pin the petitioner. The disciplinary authority thereafter

agreed with the report of the Enquiry Officer and the outcome of the

enquiry was sent to DIGP, CRPF who in turn referred it to IGP, N/S

CRPF. DIGP, CRPF opined that the idea of holding an enquiry

against the petitioner may be dropped for want of evidence but the

DG, CRPF did not agree with the same and directed that disciplinary

proceedings be initiated against the petitioner under Article

311(2)(b) of the Indian Constitution read with Rule 27(cc)(iii) of

CRPF Rules, 1955 („CRPF Rules‟ for short).

4. The impugned order passed by the commandant thereafter

noted the allegations against the petitioner and found that the

charges levelled and „substantiated‟ are of serious nature and it

may not be possible to hold a formal enquiry into the case at a

belated stage and thus the aforesaid provision should be invoked. It

is in view thereof that the penalty of removal from service was

imposed waiving the necessity of holding a formal enquiry into the

case as not practicable. The appeal order dated 02.09.1996 more

or less reiterates what is stated hereinabove.

5. The only plea raised by learned counsel for the petitioner is

that the enquiry having been held and there being found no

material against the petitioner, could the dismissal order be passed

against the petitioner by invoking Article 311(2) (b) of the Indian

Constitution read with Rule 27(cc)(iii) of CRPF Rules. The aforesaid

provisions read as under:

"311. Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State : -

......

2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges:

Provided that where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of evidence adduced during such enquiry and it shall not be necessary to give such person any opportunity of making representation n the penalty proposed:

Provided further that this clause shall not apply -

a) ......

b) Where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry;"

and

"27. Procedure for the Award of punishments .....

cc) Notwithstanding anything contained in this rule -

i).....

ii)....

iii) Where the Director General is satisfied that in the interest of security of the State, it is not expedient to hold any enquiry in the manner provided in these rules, the authority competent to impose the penalty may consider the circumstances of the case and make such orders thereon as it deems fit."

6. A reading of the aforesaid provisions shows that there are two

eventualities in which the provisions can be invoked - i) Where it is

not reasonably practicable to hold an enquiry and ii) Where in the

interest of security of State, it is not expedient to hold such an

enquiry.

7. It is in view thereof that a specific query was posed to learned

counsel for the respondents as to under which category would the

case of the petitioner fall. The factual matrix is not in dispute that

an enquiry was held against the petitioner and the Enquiry Officer

found that there was lack of evidence to prove the charges against

the petitioner. The opinion to drop the proceedings was not

accepted by the DG, CRPF. It is not a case where on the basis of

the material, the disciplinary authority or the appellate authority

came to a finding different from the one arrived at by the Enquiry

Officer to reach to a conclusion of guilt as against acquittal. Thus

there was unanimity on the question that there was lack of

sufficient material to substantiate the charges against the petitioner

in the enquiry. Learned counsel for the respondents could not

really canvass that the matter in issue was such that, in the interest

of security of State, it was not expedient to hold such an enquiry.

Learned counsel thus sought to bring the case within the

parameters of an exception where it was not reasonably practicable

to hold an enquiry.

8. We are unable to accept the aforesaid plea of learned counsel

for the respondents. The present case is not one where the

disciplinary authority came to a decision that holding an enquiry

against the petitioner was not reasonably practicable. An enquiry

was directed and was held. Such enquiry was held almost four

years after the accident. The only reason given for such delay in

holding the enquiry is lack of material evidence and, during this

period of time, the petitioner continued to serve the respondents.

On the enquiry being held, sufficient evidence was not found. It is

not possible to accept the aforesaid plea where after holding of an

enquiry a conclusion on merits is reached that the charges against

the petitioner have not been proved on account of lack of sufficient

evidence. The result of such a clean chit, which the petitioner was

entitled to, would be obliterated by seeking recourse to the

provision that of an enquiry was not reasonably practicable. If the

enquiry had already been held, where is the question of the same

being not reasonably practicable. We cannot appreciate the stand

of the respondents that the petitioner, who had a long service

record and other than the incident relating to the enquiry had no

adverse record and further worked for four years on coming back to

India, can be thrown out of service in this manner. The superior

authorities did not consider it proper to remand the matter back for

further re-consideration on the basis of the additional evidence

which may be brought on record. The mandate was issued to use

the aforesaid provisions and thus the Enquiry Officer, after such a

mandate, only repeated the charges and then stated that the

charges levelled and substantiated were of serious nature while on

the same evidence, it had been earlier found that there was lack of

sufficient evidence to prove the charges. If the respondents were

unable to gather sufficient evidence, they were to blame

themselves especially as they delayed the matter for almost four

years. The stand of the respondents is that they repeatedly asked

for evidence from the Consulate in the USA as also from their

superiors in the CRPF, but the evidence was not coming forth. If

the evidence was not forthcoming, then there could not have been

any preconceived notion of guilt merely on account of seriousness

of the allegations and the petitioner being punished for the same.

9. The result of the aforesaid is that the dismissal of the

petitioner from service cannot be sustained and is accordingly

quashed and the petitioner would be entitled to all the

consequential benefits. The petitioner would have retired from

service, as informed, in August, 2005 and thus there is no question

of reinstatement of the petitioner in service, but the petitioner

would be entitled to payment of the monetary benefits which would

have accrued to the petitioner as also the retirement benefits on his

retirement.

10. A writ of mandamus is issued quashing the impugned order

dated 30.06.1996 with a direction that the petitioner, as a

consequence of the aforesaid, be notionally retired from service and

deemed to have retired on his date of superannuation and thus

would be entitled to all the monetary benefits of service including

the retirement benefits. The amount be remitted within a period of

three months from today.

11. The petition is allowed leaving the parties to bear their own

costs.

SANJAY KISHAN KAUL, J.

AUGUST 11, 2008                              MOOL CHAND GARG, J.
dm