Karam Singh vs Union Of India & Ors.
2011 Latest Caselaw 5380 Del

*                 IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           W.P. (C.) No.7869/2011

%                        Date of Decision: 08.11.2011

Karam Singh                                                  .... Petitioner


                         Through Mr.Vinay Kr.Garg, Mr.Fazal Ahmad &
                                 Ms.Namrata Singh, Advocates.


                                  Versus

Union of India & Ors.                                    .... Respondents


                         Through Mr.Himanshu Bajaj, Advocate.



CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA

1.     Whether reporters of Local papers may be                YES
       allowed to see the judgment?;
2.     To be referred to the Reporters or not?; and            YES
3.     Whether the judgment should be reported in              NO
       the Digest?


ANIL KUMAR, J.

*

1. The petitioner, a Cook in the Central Reserve Police Force (CRPF),

has challenged the order of punishment, of his dismissal from service

on the charges that he had consumed liquor during active duty hours

on 18th December, 2000, he disobeyed the lawful order of his Company

Commander and also refused to work in the cook house, argued and

abused the mess staff and used un-parliamentary language with the

Company Commander. It was also alleged that the petitioner further

refused to obey the orders of the pack drill of Company Commander

and behaved uncouthly with the DC (Ops/Adjt) by exhibiting

aggressiveness and using un-parliamentary language with him.

2. Relevant facts to comprehend the controversies between the

parties are that the petitioner had joined the Central Reserve Police

Force (CRPF) as a Cook on 9th April, 1988 and was initially posted to 88

Bn. CRPF at Group Centre Jhadoda, Kalan, New Delhi. The petitioner

was later on attached to 72 Bn. CRPF which was posted at Manipur and

thereafter at Kokrajhar in Assam. He was subsequently shifted to 127

Bn. and posted at Chandigarh and ultimately posted at Srinagar (J&K).

3. According to the petitioner, while he was posted at Srinagar, on

18th December, 2000, due to the extremely adverse weather conditions

and the nature of his duties requiring the use of cold water in order to

wash the dirty dishes, while on active duty the petitioner consumed

liquor and allegedly at about 9:30 AM he disobeyed the lawful order of

his Company Commander, refused to work in the cook house, and used

un-parliamentary language with Company Commander and refused to

obey the order of the pack drill and used un-parliamentary language

with the DC (Ops/Adjt) entailing issuance of charge sheet dated 6th

January, 2001. The three charges framed against the petitioner are as

under:-

"ARTICLE-I

That the said No.889880025 Cook Karam Singh of D/127, CRPF while functioning as Cook in D/127, CRPF committed an act of misconduct in his capacity as a member of the Force under Section 11(1) of CRPF Act, 1949 read with rule 27 of CRPF Rules, 1955 in that on 18th.12.2000, he consumed liquor during active duty hours i.e.-930 hours in utter disregard to discipline of the Force. As such he committed an act of gross misconduct in his capacity as a member of the Force which is prejudicial to good order and discipline of the Force.

Sd/-(S.S.Gill) 6.1.2001 Commandant

ARTICLE-II

That the said No.889880025 Cook Karam Singh of D/127, CRPF while functioning as Cook in D/127, CRPF committed an act of misconduct/remissness/dereliction of duties in his capacity as a member of the Force under Section 11(1) of CRPF Act, 1949 read with rule 27 of CRPF Rules, 1955 in that on 18th.12.2000, he disobeyed the lawful order of his Company Commander and refused to work in the cook house which is prejudicial to good order and discipline of the Force.

Sd/-(S.S.Gill) 6.1.2001 Commandant

ARTICLE-III

That the said No.889880025 Cook Karam Singh of D/127, CRPF while functioning as Cook in D/127, CRPF committed an act of misconduct/misbehaviour in his capacity as a member of the Force under Section 11(1) of CRPF Act, 1949 read with rule 27 of CRPF Rules, 1955 in that on 18th.12.2000 he argued and abused mess staff, used un-parliamentary language with Company Commander, refused to obey the order of pack drill of Coy. Commander. He further behaved uncouthly with DC (Ops/Adjt), exhibited aggressiveness, abused and used extreme un-parliamentary language with DC/Adjt) which is unbecoming of a Govt. servant. As such he has committed an act of misconduct/remissness/dereliction in his

capacity as a member of the Force, which is prejudicial to good order and discipline of the Force.

Sd/-(S.S.Gill) 6.1.2001 Commandant"

4. Consequently, a departmental enquiry was conducted against the

petitioner for the charges framed against him. The petitioner pleaded

guilty of charge-I, however, he refused to plead guilty of charge-II & III.

On the basis of the enquiry report and after considering the evidence

and documents on record, the Disciplinary Authority by order

No.P.VIII.1/2001-EC-II dated 17th March, 2001 passed by the

Commandant-127 Bn. CRPF, Srinagar (J&K), dismissed the petitioner

from the service w.e.f. 17th March, 2001.

5. Aggrieved by the order of his dismissal, the petitioner, cook,

bearing No.889880025 preferred an appeal on 26th April, 2001 to the

Deputy Inspector General of Police, CRPF. After considering the pleas

raised by the petitioner, the Appellate Authority by its order dated 31st

May, 2001 held that there were certain procedural flaws in conducting

the enquiry which amounted to denial of reasonable opportunity to the

petitioner to defend himself. The Appellate Authority also took into

consideration the fact that some of the documents relied upon during

the enquiry were not got examined/inspected by the petitioner, nor

were the copies given to him. Consequently, without going into the

merits of the matter, the Appellate Authority set aside the dismissal

order dated 17th March, 2001 and the petitioner was reinstated in

service from the date of his dismissal i.e. 17th March, 2001 and the

intervening period from the date of dismissal to joining the duty was

ordered to be regularized as leave kind due. The Appellate Authority,

however, by order dated 31st May, 2001also directed the Commandant-

127 Bn. CRPF to conduct De-novo enquiry under the authority of GOI

Instruction No.6 below Rule 27 of the CCS(CCA) Rules, 1965.

6. Vide Memorandum No.P.VIII-8/2001-EC-II dated 26th July, 2001

a de-novo departmental enquiry was proposed and was conducted by

the Enquiry Officer. In the De-novo enquiry, Ashok Sanyal, (DC

Ops)/Adjt PW1; Puran Chand, OC D/127 PW2; Jeet Singh, (Mess SO),

PW3; Hav. Ram Niwas CHM, PW4; Cook Pawan Kumar, PW5; W/C

Kanta Ram, PW6 & Sh.Jagvir Singh SN 0127, PW7 were examined. Also

in the De-novo enquiry, the original copy of the medical examination

report of the petitioner and the report produced by the DC (Ops/Adjt) of

the battalion about the acts done by the petitioner, were exhibited and

considered. During the enquiry, the petitioner was asked whether he

requires any help for preparation of his evidence, however, it was

declined by the petitioner and he did not plead guilty to any of the

charges.

7. Relying on the testimonies of the witnesses and the documents

exhibited and proved and considering the defense of the petitioner that

his Battalion had to perform duties in extremely adverse conditions and

that the conditions were especially very cruel to the petitioner as he had

to wash the dirty utensils with cold water and that since he was almost

frozen on account of the shivering weather and the cold water, he had

consumed a little rum which was issued to him to keep himself warm

and working, the Enquiry Officer by his report dated 17th October, 2001

held that all the three charges were proved against the petitioner. The

Disciplinary Authority, consequently, after giving the copy of the

enquiry report to the petitioner and an opportunity to file a reply and

after considering his reply, passed the order of dismissal dated 15th

November, 2001 against the petitioner. The Disciplinary Authority held

that the petitioner is not a fit person to be retained in the disciplined

force, and directing that on his dismissal, the medal and decorations

earned by the petitioner, if any, be also forfeited.

8. Aggrieved by the order of dismissal date 15th November, 2001

passed against the petitioner pursuant to the de-novo proceedings, he

filed an appeal dated 17th December, 2001. According to the petitioner,

his statutory appeal against the order of dismissal dated 15th November,

2001 was not decided and, therefore, he filed a writ petition on 16th

September, 2002 being W.P.(C) No.5925/2002, titled as „Karam Singh v.

Union of India & Anr.‟ which was disposed of by order dated 8th

December, 2009 directing the respondents to supply a photocopy of the

order dated 3rd July, 2002 to the petitioner, whereby his appeal was

disposed of. It was also held that the order dated 3rd July, 2002 be

treated as if it was communicated to the petitioner on 8th December,

2009. The High Court further held that the petitioner shall be entitled

to seek his remedies as available to him under law and that he would be

entitled to urge all the contentions raised in the writ petition against the

order of the Disciplinary Authority. Consequent to the disposal of the

writ petition being W.P.(C) No.5925/2002, titled as „Karam Singh v.

Union of India & Ors.‟, on 8th December, 2009, the petitioner filed a

revision petition under Rule 29 of CRPF Rules, 1955 against the order

dated 3rd July, 2002 dismissing his appeal by the Deputy Inspector

General of Police, CRPF, Jalandhar. The revision petition filed by the

petitioner was dismissed by the Revisional Authority by Reference No.O-

R.XIII-01-1010-ADM.III dated 9th August, 2010. The petitioner has

challenged the dismissal of his revision petition and his dismissal from

service seeking quashing of order dated 3rd July, 2002 passed in appeal

and the order dated 9th August, 2010 dismissing his revision petition

inter-alia on the ground that the charges leveled as per article of

charges-II & III are vague and general in nature and that the

imputations in support of the article of charges are nothing but a mere

reproduction thereof and it does not communicate with certainty the

relevant facts or accusations against the petitioner which he was

required to meet. The petitioner‟s plea is that the evidence produced

during the enquiry was beyond the charges and is of the time which

was before the time alleged against the petitioner for his misconduct.

Learned counsel for the petitioner has also contended that the charge

against the petitioner that he did not permit others to work was not

framed categorically though it was deposed by PW3. On behalf of the

petitioner, it has also been contended that the petitioner was placed in

an unequal position by being pitched against high ranking officers and

that the petitioner being the lowest grade employee in the entire

Battalion was educated only up to the middle level education and

therefore, was not capable of understanding either the import or

relevance of a question put to him during the inquiry proceedings and,

thus, the mere recording of statements in the presence of the petitioner

was not sufficient, since the petitioner could not cross-examine the

witnesses, and it therefore amounted to denial of adequate opportunity

to the petitioner to defend himself. According to the learned counsel for

the petitioner, the petitioner did not know the consequences of not

cross-examining the witnesses.

9. On behalf of the petitioner, it has also been contended that the

perusal of the dismissal order passed before the de-novo and after the

de-novo enquiry reveal that they are almost the same which is reflective

of non-application of mind by the Disciplinary Authority. Learned

counsel has also contended that the petitioner has an unblemished

record since his employment as a cook in CRPF on 9th April, 1988 and

thus, the punishment of dismissal from service is disproportionate to

the offence alleged against him. Learned counsel for the petitioner has

also asserted that the Memorandum of article of charge against the

petitioner was under Section 11(1) of the CRPF which pertains to

imposition of minor penalty, and therefore, the major penalty of

dismissal could not be awarded to the petitioner. Learned counsel for

the petitioner has also challenged the order of the Revisional Authority

on the ground that the order does not disclose any application of mind

and is rather a reproduction of the para wise observations and

comments submitted to him in the revision petition against the

allegations made by the petitioner.

10. The learned counsel, Mr.Himanshu Bajaj, Advocate, who has

appeared on advance notice on behalf of the respondents has relied on

the reasons given by the Disciplinary Authority, the Appellate Authority

and the Revisional Authority in their respective orders and has

contended that the petitioner is a habitual drinker and is undisciplined.

Referring to the order dated 9th August, 2010, it is contended that

reliance was placed on the C/Card of the petitioner showing that he is a

habitual drinker and is an indisciplined type of character. Learned

counsel for the respondents has relied on the judgment of „Ram Bihari

Shukla v. Union of India & Ors.‟, W.P.(C) No.3920/1999 decided on 6th

December, 2001.

11. This Court has heard the learned counsel for the parties and has

also perused the writ petition along with some of the depositions of the

witnesses filed along with it, the de-novo enquiry report and the order of

the Disciplinary Authority dated 15th November, 2001, the Appellate

Authority dated 3rd July, 2002 and Revisional Authority dated 9th

August, 2010. From the record of the petitioner, it is apparent that his

plea that he had an unblemished record is contrary to record. The

petitioner was awarded confinement as punishment on various duties

that were assigned to him, which are as under:-

"i) 07 days confinement to lines w.e.f. 4.1.89 to 10.1.89 as he quarreled with fellow employee and injured him.

ii) 07 days confinement to lines w.e.f. 28.12.91 to 3.1.92 for misconduct.

iii) 07 days confinement to lines during 1995 for consumption of liquor on duty hours.

iv) 28 days quarter Guard w.e.f. 23.6.1995 for consumption of liquor during duty hours."

Reliance has also been placed by the Revisional Authority on the

C/Card of the petitioner reflecting that he is a habitual drinker and is

an indisciplined type of character. In the circumstances, it cannot be

accepted that the petitioner had an unblemished record during his

service.

12. The plea of the petitioner that since the weather was very cold

and he had to wash dirty utensils with cold water and, therefore, he

had consumed a little rum to keep himself warm, has been repelled by

the concerned authorities on the basis of the evidence on record.

Though this Court does not have to re-appreciate the evidence led

before the enquiry officer, however, on perusal of the evidence quoted, it

is apparent that PW2 OC-D/127 had gone to the Mess as food was not

ready in time and found that the petitioner was missing. Though the

other cooks Pawan Kumar and W/C Kanta Ram, PW5 & PW6

respectively were engaged in the work, Pw2 while searching for the

petitioner had found him lying on his cot heavily drunk and he was not

in a position to work. Though this had happened on 17th December,

2000, however, on the next date on 18th December, 2000 again the

petitioner was found missing in the morning from the Mess and it had

transpired, according to his testimony, that the petitioner had not come

to work from the morning itself. From the statement of PW2, PW3 &

PW5, it had transpired that the petitioner was seen coming towards the

Mess with a tooth brush in his mouth at 8:00 AM. Subsequently at 9:30

AM, the petitioner came to the company mess and he was found to be

not in his senses and he was badly wavering on account of excessive

consumption of liquor. He could not work and he was falling here and

there. The cook Pawan Kumar Jha, PW5, also deposed that the

petitioner misbehaved with fellow employees PW5 & PW6 and abused

them in filthy language. Thereafter, the SO was also informed about the

condition of the petitioner, as the presence of the petitioner in the

kitchen in such an intoxicated state could cause an accident.

13. The enquiry report also inferred that it has been proved that the

petitioner, when counseled by PW-2, abused him which were also heard

by the other witnesses. It was also deposed that the petitioner had

uttered that "you can do no harm to me, I have seen many like you, you

do whatever you want". The deposition regarding Puran Chand asking

the petitioner to wear packs for correction of this mistake which was

flatly refused by the petitioner and disobeyed the order had also been

considered. It had also been deposed by the PW2 & PW3 that the

petitioner was disrespectful to OC-D/127, PW2 and had retorted "who

are you to order packs". The testimony of PW4 was also referred who

deposed that the petitioner had refused to obey the order to appear in

the office of OC-D/127, PW2. The depositions of the witnesses, PW 1, 2,

3 & 4, against the petitioner were that he allegedly stated that "I am

from a good family and I do not respect any post. It will be better that I

go back home. I do not care for the ranks which DC (Ops/Adjt) was

wearing‟.

14. The learned counsel for the petitioner is unable to show any

evidence or any such fact which will show that the finding of the

Enquiry Officer and the order passed by the Disciplinary Authority are

such that no one acting reasonably and with objectivity could have

arrived at such findings. The learned counsel for the petitioner has not

been able to show that the Enquiry Officer has taken any irrelevant fact

into consideration or that he has not considered any relevant fact or

rejected any relevant testimony of any of the witnesses on the basis of

surmises and conjectures.

15. The plea of the petitioner that he had consumed alcohol on

account of adverse weather condition and as he had to wash the dirty

utensils with cold water, has been rejected on the ground that not only

the petitioner but the other cooks and persons as well were exposed to

the same weather conditions and they too had to perform their duties at

odd hours and in adverse weather conditions. The ground that had

been raised in this regard is that the consumption of excessive liquor

during duty hours was early in the morning on account of nature of

work at such hours. However, the finding of excessive consumption of

alcohol is based on the legal report of the petitioner and the statement

of the witnesses. The reasons given by the Revisional Authority cannot

be faulted on any of the grounds raised by the petitioner in his defense.

16. From the utterances made by the petitioner against the fellow

officers and his superiors, as has been deposed by the various

witnesses, if the inferences has been made that the petitioner is an

indisciplined person and he had disobeyed the order and refused to

work, such finding of the concerned authorities cannot be faulted. The

defense of the petitioner had been repelled on the ground that he was

not the only person who had been working in adverse weather

conditions.

17. The plea of the learned counsel for the petitioner that the

statement of imputations of misconduct or misbehavior is the

reproduction of the charges and do not communicate the relevant facts

also cannot be accepted in the present facts and circumstances. The

petitioner had pleaded guilty to article-I. Regarding article II, it has

been categorically stated that on 18th December, 2000, the petitioner

disobeyed the lawful order of his Company Commander and refused to

work in the cook house. The imputations regarding the same were made

against the petitioner in certain and specific terms. The statement of

imputation does not have to incorporate the entire evidence which was

to be adduced during the enquiry against the charged officer. In fact,

the entire evidence cannot be incorporated in Imputation of Charges, as

the statements of the witnesses are to be recorded after the imputation

of misconduct is communicated to a charged officer. Similarly,

pertaining to article-III, the statement of imputation reveals that on 18th

December, 2000 the petitioner had argued and abused the Mess staff

and had used un-parliamentary language with the Company

Commander and had also refused to obey the order of pack drill of

Company Commander. The statement of imputation further reveals that

the petitioner behaved uncouthly with DC (Ops/Adjt) and exhibited

aggressiveness, abused and used un-parliamentary language, which is

sufficient in the facts and circumstances. If the facts disclosed in the

imputation of misconduct have been reproduced in the article of charge

as well, that will also not mean that the imputation of misconduct does

not reveal the relevant and necessary facts. The reproduction of the

imputation of misconduct in the articles of the charge will also not

effect the statement of articles of charge in a manner as has been

argued by the learned counsel for the petitioner. The learned counsel

for the petitioner has not shown any precedent or any rule or regulation

laying down the principle that the statement of imputation cannot be

incorporated verbatim in the article of charge. Consequently, on the

basis of this plea of the petitioner, the orders of the Revisional Authority

and the Appellate Authority cannot be vitiated.

18. The plea of the learned counsel for the petitioner that the

evidence has been led beyond the charges framed against the petitioner

as the charge that he did not permit others to work was not framed

specifically, cannot be accepted in the facts and circumstances. The

imputation of the misconduct and the article of charge specifically

stipulated that the petitioner argued and abused the Mess staff. If the

petitioner argued and abused the Mess staff, it undoubtedly interfered

with the working of the Mess staff and in the circumstances, this plea

that the evidence has been led beyond the statement of imputation of

misconduct and the article of charges framed against the petitioner

cannot be accepted. Similarly, the plea of the learned counsel for the

petitioner that the evidence of the witnesses who appeared during the

enquiry is of the time before the time indicated in the charge and thus,

the evidence is to be rejected cannot be accepted. Therefore, considering

the nature of controversies, articles of charge framed against the

petitioner and the statement of imputation, it cannot be held in the

facts and circumstances that the evidence of the witnesses is beyond

the scope of charge framed against the petitioner.

19. The plea canvassed on behalf of the petitioner that para 5 & 6 of

the punishment order dated 15th November, 2001 and earlier order of

punishment which was set aside by the Appellate Authority dated 3rd

July, 2002 are similar, is also of no consequence in the facts and

circumstances. Similarity in two orders does not show non-application

of mind. Para 5 & 6 of the order dated 15th November, 2001 stipulates

that the Disciplinary Authority after perusing the report of the Enquiry

Officer agreed with the report of the Enquiry Officer and came to the

decision that the charges leveled against the petitioner had been proved

and held that the petitioner had committed an offence under Section

11(1) of CRPF Act, 1949 read with Rule 27 of CRPF Rules, 1955 and

therefore, imposed the punishment of dismissal from service. In the

order dated 3rd July, 2002 the Disciplinary Authority again agreed with

the enquiry report and again passed the punishment order dated 15th

November, 2001. The Disciplinary Authority had gone through the de-

novo enquiry proceedings and had applied his mind and thereafter held

that Articles-I, II & III had been proved beyond any shadow of doubt

against the petitioner and imposed the punishment of dismissal from

service. Because similar language has been used in the two paragraphs

of the two orders, does not reflect any non-application of mind as has

been canvassed by the learned counsel for the petitioner.

20. The Revisional Authority while dismissing the revision petition by

order dated 9th August, 2010 has referred to the facts extensively which

emerged during the enquiry and has para wise dealt with the pleas and

contentions raised by the petitioner in his revision petition. While

dealing with the pleas and contentions in the revision petition parawise,

the reasons for disagreeing with the pleas and contentions of the

petitioner have been elaborated in the circumstances. The allegations of

the petitioner that the Revisional Authority has not given any reason

and that the order has been passed mechanically cannot be accepted

and the said allegation is contrary to the record. The order dated 9th

August, 2010 of the Revisional Authority sustaining the order of

dismissal of the petitioner in the facts and circumstances cannot be set

aside on this ground also.

21. The next plea raised on behalf of the petitioner by learned

counsel is that Section 11 of CRPF Act deals with minor punishment

and, therefore, the punishment of dismissal could not be awarded to

the petitioner, as he was charged only with Section 11. This plea is also

not tenable since on perusing Section 11 of the said Act it is apparent

that it empowers the concerned authorities to award punishment of

suspension or dismissal to the members of the force who are found

guilty and in addition to or in lieu thereof punishment as stipulated

under Clause (a) to (e) can also be imposed. In the circumstances,

heading of Section 11 stating „minor punishment‟ is only a misnomer

and does not restrict the language of Section 11 of the said Act nor can

it be contended that under the Section 11 only minor punishment as

stipulated under Section (a) to (e) can be awarded. In Ram Bihari

Shukla (supra) the Court after considering Sections 9 to 11 of the CRPF

Act had held that a delinquent can be punished with dismissal even if

he has not been prosecuted for offence under Section 9 & 10 of the Act.

The reliance was placed on D.D.Yadav v. D.I.G, CRPF, 1974 LAB (IC)

929 and a decision of the Allahabad High Court in Shyam Singh v.

Inspector General of Police and CRPF, Ajmer and Ors. The Court in

para 5 of the said judgment had held as under:

"5. In the light of the aforesaid submissions, I have considered the records as also the provisions of the Central Reserve Police Force, which were relied upon and referred to before me. Chapter 5 of the Central Reserve Police Force Act

deals with the offences and punishments. Section 9 gives the description and nature of the more heinous offences as stated in the head note of the said Section itself and also describes the punishments which could be awarded for commission of such offences. Section 10 on the other hand deals with less heinous offences and also enumerates the nature of punishment to be imposed in such cases. Section 11 of the Central Reserve Police Force Act provides that:-

"11. Minor Punishments. -(1) The commandant or any other authority or officer as may be prescribed, may, subject to any rules made in 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 considers to be guilty of disobedience, neglect of duty, of 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 allowance;

(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 on special emolument in the force."

The aforesaid provision makes it clear that punishment could be imposed on a delinquent person if he is guilty of disobedience, neglect of duty, or remissness in the discharge of any duty or of other misconduct in his capacity as member of the Force. If a person is guilty in any manner as stated above, he could be awarded suspension or dismissal from service. The words 'in lieu of, or in addition to, suspension or dismissal' appearing in Sub-section (1) of

Section 11 before Clauses (a) to (e) show that the authorities mentioned therein are empowered to award punishment of suspension or dismissal to the member of the Force, who is found guilty and in addition to or in lieu thereof, could impose punishment as mentioned in Clauses(a) to (e). The heading 'Minor Punishment' in Section 11 is a misnomer. It is established rule of interpretation that although such heading may be looked into for interpreting a section, the words of which admit of any reasonable doubt, it cannot be taken to restrict the plain terms of the Section. A proper reading of the aforesaid Sections 9,10 and 11 would clearly show that a delinquent person can be punished with dismissal even if he has not been prosecuted for an offence under Section 9 or 10 of the Act. While coming to the aforesaid conclusions, I am fortified by the decisions of the Jammu & Kashmir High Court in D.D. Yada v. D.I.G., C.R.P.F. ; reported in 1974 LAB (IC) 929, Shyamsing v. Deputy Inspector General of Police, Central Reserve Police, Ajmer and Ors. ; and the decision of the Allahabad High Court in Special Appeal No. 201/1993 ( Deputy Inspector General of Police, Central Reserve Police Force (Rampur, U.P.) and Anr. v. Munna Singh Yadav ; disposed of on October 6, 2001. The first contention of the counsel for the petitioner is, therefore, found to be without any merit.

In the circumstances, this plea of the petitioner that he could not

be dismissed and could be awarded only minor punishment as

enumerated in para (a) to (e) of Section 11 cannot be accepted and is

rejected.

22. The next plea of the petitioner is that the punishment of dismissal

is disproportionate to the charges made against him. The High Court in

exercise of its power under Article 226 of the Constitution of India does

not exercise the power as an Appellate Authority. The power to impose

punishment is vested with the Disciplinary Authority. Unless

punishment imposed is so disproportionate that no reasonable person

could have imposed such a punishment, this Court is not to interfere

with the punishment imposed on a member of the disciplined force who

has shown extreme indiscipline and who is habitual in his indiscipline.

If the Disciplinary Authority on the basis of the evidence has come to

the conclusion that the delinquent person is required to be punished

with an order of dismissal, this Court is not to revise the said order in

the present facts and circumstances. Considering the facts and

circumstances and C/Card of the petitioner which has been referred to

by the Revisional Authority reflecting that the petitioner is a habitual

drinker and an indisciplined type of character, the order of the

Revisional Authority, Appellate Authority and the Disciplinary Authority

cannot be faulted. In the circumstances, it cannot be held that the

orders challenged by the petitioner in the present writ petition suffer

from such perversity, or illegalities that are required to be corrected by

this Court in exercise of its jurisdiction under Article 226 of the

Constitution of India.

23. On behalf of the petitioner, it has also been canvassed that

considering the status of the petitioner as he is only 8th Class pass and

that he was pitted against higher standing officers, therefore, he did not

understand the significance of cross-examination and thus, the

petitioner not cross-examining the witness, is denial of reasonable

opportunity to him and in violation of principle of natural justice.

Against the petitioner, the enquiry conducted against him culminated

into an enquiry Report dated 13th February, 2001. During the said

enquiry also, the petitioner was given an option and an opportunity to

cross-examine the witnesses. The witnesses were examined in his

presence, however, he opted neither to seek the help of anyone nor to

cross-examine the witnesses who were examined. At that time six

witnesses were examined and on the basis of the report of the medical

examination conducted by the medical officer 127 Bn. of CRPF, the

incident report by the DC and the preliminary inquiry report as well as

the testimonies of six witnesses, it was held that the articles of charges

against the petitioner were made out. The order of punishment dated

17th March, 2001 was passed by the Disciplinary Authority against

which an appeal dated 26th April, 2001 was filed by the petitioner. On

perusal of the appeal dated 26th April, 2001 filed against the order

dated 17th March, 2001, it is apparent that it was drafted not by the

petitioner but someone else as the petitioner is alleged to be educated

only up to the middle school. The appeal of the petitioner against the

order dated 17th March, 2001 was allowed by order dated 31st May,

2001 setting aside the Disciplinary Authority order dated 17th March,

2001 and directing de-novo enquiry. Before the De-novo enquiry was

initiated, the petitioner had accessed the person who had drafted his

appeal dated 26th April, 2001 and in the circumstances, it is difficult to

infer that the petitioner did not have the knowledge about the relevance

of cross-examination of the witnesses during the de-novo enquiry

recorded in his presence. In the De-novo enquiry, the enquiry officer

specifically put to the petitioner whether he is in need of any help for

the preparation of his evidence for his defense, however, the petitioner

had replied that no help is required. During the recording of the

statements of the witnesses, the petitioner was given a chance to cross-

examine the same, however he did not avail the opportunity. In the

Enquiry Report dated 17th October, 2001, the Enquiry Officer had

observed as under:-

".......On completion of prosecution evidence the charged officer as a matter of examination was again asked that since proceedings on behalf of prosecution has been completed whether he had admits himself to be guilty in this behalf which was refused by the charged member and did not plead guilty. Thereafter, I in the capacity of inquiry officer asked him as to whether he is in need of any help for preparation of his evidence and defense. The charged member replied that no help is required. Thereafter the charged member was informed vide written letter No.D-IX- 1/2001-EO(DE) dated 22.9.2001 that the proceedings on behalf of the prosecution in the departmental enquiry going on against him and he has complete opportunity of producing statement, witness and evidence in his defense. In this he was allowed 15 days time to prepare for his defense and after expiry of the time period the proceedings for defense commenced wherein following documents

received from the charged member were examined and taken on record of the proceedings;

1. Application produced by No.889880025 Cook Karam Singh (Charged Member) in his defence. (D-I hereinafter).

2. The inquiries made by the inquiry officer with an intention to give him complete opportunity of defence."

24. The petitioner had instead filed an application in his defense. In

the circumstances, the plea of the petitioner that in the de-novo enquiry

he had not been aware of the relevance of the cross-examination of the

witnesses and he was not allowed to cross-examine the witnesses

cannot be accepted nor can it be held that the respondents acted in

violation of the principles of natural justice. The petitioner was given an

option to have assistance in the preparation and evidence for his

defense which was specifically declined by him. Therefore, subsequently

the petitioner cannot be allowed to contend that he was not given a

reasonable opportunity.

25. In the totality of the facts and circumstances, this Court does not

find any illegality, irregularity or such perversity in the order of the

Disciplinary Authority dated 15th November, 2001 (not challenged by

the petitioner in the writ petition), order dated 3rd July, 2002 passed by

the Appellate Authority dismissing his appeal and the order dated 9th

August, 2010 dismissing the revision petition so as to be interfered with

by this Court in exercise of its jurisdiction under Article 226 of the

Constitution of India. No other plea or ground has been raised on behalf

of the petitioner. In the circumstances, the writ petition is without any

merit and it is, therefore, dismissed.

ANIL KUMAR, J.

NOVEMBER 08, 2010                  SUDERSHAN KUMAR MISRA, J.
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