B.P. Sinha vs Union Of India And Ors.
2008 Latest Caselaw 1184 Del

*         IN THE HIGH COURT OF DELHI AT NEW DELHI

+                       WP (C) No.1763/1979


%                                 Date of decision:   July 30, 2008

B.P. SINHA                                     ...PETITIONER
                                    Through:    Mr.G.D.Gupta, Sr.Adv.
                                                with    Mr.S.R.Kalkal,
                                                Adv.

                                 Versus

Union of India & Ors.                            ...RESPONDENTS
                                    Through:    Mr. A.K. Bhardwaj,
                                                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?

2.     To be referred to Reporter or not?             Yes

3.     Whether the judgment should be                 Yes
       reported in the Digest?

SANJAY KISHAN KAUL, J. (ORAL)

1. The petitioner was appointed as Constable with the CRPF on

28th July, 1963. The petitioner during his tenure of service is

stated to have spent about 14 years in the North Eastern States

of Nagaland and Manipur. The trouble for the petitioner began

when he was suspended on 12th December, 1978 under Rule

10(1) of the CCS(CCA) Rules, 1965 (hereinafter referred to as the

"said CCS Rules") pending disciplinary action under Section 11(1)

of the CRPF Act, 1949 (hereinafter referred to as the said Act).

The disciplinary proceedings culminated in an order of dismissal

of service of the petitioner dated 21st March, 1979. The appeal

preferred by the petitioner before the competent authorities was

dismissed on 30th May, 1979. The petitioner thereafter filed the

present petition. The petitioner‟s case has unfortunately been

pending for disposal since a long period of time. It has only now

come up for final disposal.

2. The charge against the petitioner is that he refused to

accept the movement order dated 9th December, 1978 to move

to a platoon of the CRPF at Tezu and thus committed an act of

disobedience in the said process.

3. It is not necessary to go into the details of the fact finding

by the enquiry officer as confirmed by the disciplinary authority

and the appellate authority for the reason that this Court does

not sit as a court of appeal to re-appreciate the material on

record. Suffice to say that the petitioner has some grievance

even about the enquiry officer as he imputed bias. The reason

for the same is stated to be some past litigation initiated by the

petitioner along with certain other personnel for benefits under

the Third Pay Commission.

4. We have put it to learned senior counsel for the petitioner

that his submissions must confine to parameters of judicial

scrutiny of such a findings of the enquiry report and thus learned

counsel fairly conscentrated only on two aspects to point out

procedural infirmities in the proceedings which would require the

proceedings to be set at naught.

5. The first grievance is that before proceeding against the

petitioner by way a disciplinary enquiry, a preliminary enquiry

was held. The statements of the witnesses were recorded in the

preliminary enquiry and those statements were not available to

the petitioner despite repeated requests. The petitioner thus

claims that he was handicapped in the cross-examination of

witnesses of the department and that is why he did not actually

cross-examine the witnesses. It is, however, not in dispute that

at the request of the petitioner inspection was given of such

depositions before the preliminary enquiry. The factual matrix

shows that in the departmental enquiry the witnesses of the

department were examined on 3rd and 4th of January, 1979.

Inspection of the statements recorded in the preliminary enquiry

was given to the petitioner on 5th January, 1979 and the

witnesses were again recalled for cross-examination on 6th

January, 1979 but the petitioner failed to cross-examine the

witness.

6. Learned senior counsel for the petitioner has referred to the

judgment of the Supreme Court in the State of Punjab Vs. Bhagat

Ram [(1975) 1 SCC 155] to contend that the supply of such

statements in the preliminary enquiry was a mandatory

requirement and thus non-supply would vitiate the disciplinary

proceedings. Learned senior counsel in this behalf has referred

to the facts of the said case where the statements recorded by

the Police in the course of investigation of witnesses to be

examined in the departmental enquiry were not supplied by the

State but only synopsis were given. This was held not to be a

reasonable opportunity. It was observed in para 7 as under:

"7. The meaning of a reasonable opportunity of showing cause against the action proposed to be taken is that the Government servant is afforded a reasonable opportunity to defend himself against charges on which enquiry is held. The Government servant should be given an opportunity to deny his guilt and establish his innocence. He can do so when he is told what the charges against him are. He can do so by cross-examining the witness produced against him. The object of supplying statements is that the Government servant will be able to refer to the previous statements of the witnesses proposed to be examined against the Government servant. Unless the statements are given to the Government servant he will not be able to have an effective and useful cross-

examination."

7. Learned counsel for the respondents on the other hand

contends that the preliminary enquiry was held only with the

object of ascertaining whether the departmental enquiry ought to

be held and not part of the preliminary enquiry including the

depositions was relied upon during the departmental

proceedings. It is thus contended that until and unless the said

statements are relied upon, they have no bearing on the

departmental enquiry. Since the petitioner was insisting on the

statements, inspection was given and even copies of the

depositions recorded in the departmental proceedings were

supplied subsequently though the witnesses had been examined

in the departmental enquiry in the presence of the petitioner.

8. In our considered view, there is force in the contention of

learned counsel for the respondents. The judgment in State of

Punjab Vs. Bhagat Ram case (supra) would only apply if

documents or even depositions of preliminary enquiry prior to

departmental proceedings are sought to be relied upon during

the departmental proceedings as material against the accused

person. Once all the witnesses are being called afresh, their

depositions recorded and opportunity given for cross-

examination, there is really no requirement of supply of

depositions of preliminary enquiry not relied upon. The

respondents have even given inspection to the petitioner of these

testimonies recorded in the preliminary enquiry and thus in any

case the petitioner cannot make a grievance in respect of the

same.

9. The second plea raised by learned senior counsel for the

petitioner is that no defence assistant was made available to the

petitioner which compromised the defence of the petitioner. The

petitioner claims to have no great educational qualifications and

thus could not personally carry out his defence. In this behalf, a

specific averment has been made in para 14 of the writ petition.

In the counter affidavit it is sated that the Rules of the

respondents do not provide for a legal counsel in a departmental

enquiry.

10. We feel that the respondents are under a misconception

that the petitioner was asking for a legal counsel. The record

shows that the petitioner was asking only for an assistant by

name who was a clerk in the Delhi Milk Scheme. Be that as it

may, the respondents could have provided for a friend of the

accused even from the personnel serving the respondent. This

was not done with the result that the petitioner could not and did

not examine the witnesses of the department.

11. Learned counsel for the respondents, however, submits that

Rule 27 of the CRPF Rules, 1955 (hereinafter referred to as "the

CRPF Rules") provide for a complete procedure in this behalf.

Sub Rule (c) reads as under :

(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 within 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 refused 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 conducing 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 refused 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 orders, where he has power to do so."

12. Learned counsel thus submits that there is no provision in

the CRPF Rules for providing a defence assistant. Learned

counsel submits that as observed by this Court herein above on

the first aspect that no copies of documents were required to be

supplied as provided in sub clause 3 of clause c of Rule 27 of the

CRPF Rules on a same parameter in the absence of any provision

for defence assistant, the petitioner cannot be permitted to make

a grievance in that behalf. Learned counsel further submits that

this is at best a technical defect which cannot be set at nought

the enquiry proceedings.

13. In this behalf learned counsel has referred to a judgment of

the learned Single Judge of this Court (as he then was) in civil writ

petition No. 3920/1999 titled as Ram Bihari Shukala Vs. Union of

India and Ors. decided on 6th December, 2001. In para 8 of the

said judgment it has been observed that the non-provision of the

assistance of a lawyer did not violate the principles of natural

justice under the CRPF Rules.

14. Learned senior counsel for the petitioner has drawn our

attention to Rule 102 of the CRPF Rules which reads as under:

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

15. The submission of learned senior counsel for the petitioner

thus is that clause c of Rule 27 of the CRPF Rules does not

prohibit providing a defence assistant even if it does not

specifically provide for such defence assistants. It is thus

submitted that in view thereof Rule 102 of the CRPF Rule would

come into play and the said rules would equally apply to the

present case for provision of defence assistant. We may note

that the CCS Rules specifically provide for a defence assistant

which is not even in dispute. Such a person need not be a

lawyer. It may also be taken note of that even while passing the

suspension order, the same has been done in exercise of powers

under CCS Rules read with the said Act. We may also note that

under Rule 110 of the CRPF Rules the superior officers are subject

to CCS (Classification from a control and appeal) Rules, 1957.

16. The scheme of the said Act and the CRPF Rules thus show

that for certain matters relating to the service personnel specific

provision has been made under the CRPF Rules. Wherever such

specific provision is not made the CCS Rules apply. Rule 27

Clause c of the CRPF Rules refers to the disciplinary proceedings

and the manner of conduct for the said proceedings. It does not

specifically prohibit providing of defence assistant even though it

does not specifically provide for such defence assistant. It is

possible that a charged personnel does not even ask for defence

assistant. In such a case, in the absence of any specific rules to

provide for the same, the respondents may not be at fault.

However where a person specifically asked for such a defence

assistant, a reading of Rule 27 (c) read with Section 102 of the

CRPF Rules does suggest to us that CCS Rules come into

operation in this behalf and the respondents ought to have made

available a defence assistant to the petitioner.

17. We are unable to accept the plea of learned counsel for the

respondents that the non-providing of such assistant is merely a

technical defect which ought to be ignored while considering the

nature of relief. The absence of such assistant goes to the root of

the matter and compromises the defence.

18. We may note with some satisfaction that the respondents

have themselves remedised the position in this behalf by issuing

a circular No.06/05 dated 16th September, 2005 providing for a

defence assistant as and when requested for by the charged

officer though this has prospective effect. The said circular is

extracted here below:

"CIRCULAR ORDER NO.06/05

Of late it is observed that various Courts have quashed the orders of dismissal/removal passed by the disciplinary authority against the delinquents solely on the ground of failure to provide Defence Assistant in the Departmental Proceedings.

2. The procedure for conducting departmental enquiry for Non Gazetted ranks has been laid down in Rule 27 of CRPF Rules, 1955. In the said Rules there is no provision for engagement of Defence Assistant by the delinquent employees in the departmental proceedings initiated against them.

In such cases where the petitioners have raised the issue of Deptt having not provided Defence Assistants in the inquiry, the Deptt has tried to defend its interest citing absence of specific provision in this regard. However, in many cases Courts have not accepted this plea of the Deptt and have instead observed that disciplinary proceedings being quasi judicial in nature attract the Principles of natural justice as the order in the proceeding involves civil consequences. It has been held by the Apex Court in a catena of judgments that the deprivation of livelihood by an order of dismissal has to be just, fair and reasonable. As such the requirements of natural justice cannot be denied to any one.

3. Keeping in view the inherent problems likely to be faced by the administrative authority on account of requirement of a number of personnel to act as Defence Asstts in the large number of inquiries pending with the Deptt, on the one hand and at the same time the requirements of natural justice to be fulfilled in keeping with the observation of the Courts, it is hereby advised that in all Departmental Proceedings against NGOs in CRPF, the delinquent person may be represented/assisted by a person from within the rank whose services the delinquent may be able to procure and who shall be called as "Defence Assistant".

4. Such provision would be on the pattern of provision titled „Defending Officer and friend of accused‟ available in Rule 95 of Army Rules, 1954, Rules 122 of BSF Rules 1969, Rules 118 of NSG Rule 1987 and Rule 123 of ITBP Rules 1994. The Defence Asstt shall have the same rights and duties as applicable to a counsel under the rules and shall be under the like obligations. "The Defence Assistant" may advice the delinquent on all points and suggest questions to be put to the witnesses but he shall not examine/cross examine the prosecution witness or address the Enquiry Officer. This provision be made applicable only in respect of those charged officials who make specific demand for Defence Asstt. In cases where the delinquents do not wish to avail the provision of Defence Assistants mentioned above, the I.O.s should duly

record/mention the same in the order sheet to this effect.

5. This may be brought to the notice of all concerned.

(J.K. SINHA) DIRECTOR GENERAL"

(Emphasis supplied)

19. The said circular has in fact cited the reasons for its

issuance as non-acceptance by the Courts of the plea based on

Rule 27 of the CRPF Rules for not providing such defence

assistants as disciplinary proceedings being quasi judicial in

nature attract the principles of natural justice as the order in the

proceedings involve civil consequences. The Apex Court has also

held in a catena of judgments that deprivation of livelihood by an

order of dismissal has to be just, fair and reasonable and

principles of natural justice cannot be denied. Once this principle

has fortunately been incorporated in the circular of the

respondent itself, there can be hardly any reason not to extend

the same in the pending litigation which has yet not attained

finality.

20. The result of the aforesaid is that on this short ground

aforesaid the order of dismissal of service against the petitioner

is quashed.

21. The question thus arises as to what is the relief which ought

to be granted to the petitioner. The consequence of quashing of

the order of dismissal would have been to restore the petitioner

to service with all consequential benefits, giving an opportunity

to the respondents to start the disciplinary proceedings afresh.

This course of action is not feasible as the petitioner would have

by now retired from service. The long lapse of time has taken

care of this as the petitioner is aged about 66 years.

22. Learned senior counsel for the petitioner fairly concedes

that a reasonable result must enure as a consequence of the

aforesaid defect in the departmental proceedings and thus

confines his relief to pensionary benefits without claiming the

back wages, seniority benefits, etc. as a consequence of the

disciplinary proceedings being quashed. In this behalf learned

senior counsel for the petitioner has fairly drawn our attention to

a Division Bench judgment of this Court in Des Raj Shanwal (Lt.

Col.) Vs. Union of India and Ors. [2004 (1) SCR 191], where the

petitioner was held entitled to retiral benefits without back wages

where the petitioner had reached the age of superannuation

during the long process of adjudication of dispute for 23 years. In

another case in Ex. Sepoy Sube Singh Vs. Union of India and

Ors.[140 (2007) 26] a Division Bench of this Court while moulding

the relief had held that where a person ought not to have been

discharged in terms of an impugned order, the petitioner can get

service pension without directing petitioner‟s reinstatement in

service or granting any other pensionary benefits to him. The

petitioner was held entitled to only service pension and other

benefits due on completion of the minimum period of pensionable

service.

23. Learned counsel for the respondents submits that the

petitioner has served for a little less than 15 years while the

pensionable service is 20 years. Learned counsel thus submits

that unless the petitioner would have actually completed 20

years of qualifying service, the petitioner ought not to be granted

the said benefit.

24. On a conspectus of the fact of the present case we are of

the view that the ends of justice would be served by following the

course of action as in Ex. Sepoy Sube Singh case (supra). This is

so since it is the respondents who are to blame for the situation

which has arisen. The petitioner would have continued in service

and completed the qualifying pensionable period to earn the

pension. The service was cut short by the order of dismissal

which has been set aside. We see no reason why the petitioner

should not be held entitled to the service pension and other

benefits due on the completion of 20 years of service in the CRPF.

This can be achieved by directing that instead of the petitioner‟s

dismissal taking effect on the date mentioned as per the

impugned order, the petitioner shall be deemed to have retired

on completion of 20 years of pensionable service without the

extended period of service or entitling the petitioner to any

arrears of salary. This is the exact course of action followed in Ex

Sepoy Sube Singh case (supra).

25. The writ of mandamus is issued directing the respondents

to treat the petitioner as in service till completion of 20 years of

service and to grant to the petitioner the service pension and

other benefits due upon completion of 20 years of service in the

CRPF without any arrears of pay or seniority and the petitioner

would be deemed to have completed pensionable service as on

the date of his discharge which would be date of completion of 20

years of service. The amount due to the petitioner be remitted to

the petitioner within three months from today.

26. The petition is allowed in the aforesaid terms leaving parties

to bear their own costs.

SANJAY KISHAN KAUL, J.

JULY 30th, 2008                           MOOL CHAND GARG, J.
dc