Gauhati High Court
WA/56/2021 on 24 February, 2021
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GAHC010218712019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
WRIT APPEAL NO.56 OF 2021
Shri Promod Malia,
Son of Late Purna Malia,
Resident of Village: No longtong, PO: Udaipur,
PS: Lekhapani, District: Tinsukia, Assam, PIN - 786182.
........Appellant
-Versus-
1. The Union of India, represented by the Secretary to the
Government of India, Ministry of Home, New Delhi.
2. The inspector General of Police, Western Sector, CRPF, 3 rd Floor,
CGO Complex, CBD Belapur, Navi Mumbai (MS), PIN - 400614.
3. The Deputy Inspector General, CRPF, Group Centre, Telegaon,
Pune, Maharashtra, PIN - 410507.
4. The Commandant,
111 Bn. CRPF, Golaghat, Assam, PIN - 785621.
........Respondents
-BEFORE-
HON'BLE THE CHIEF JUSTICE MR. SUDHANSHU DHULIA
HON'BLE MR. JUSTICE MANASH RANJAN PATHAK
For the Writ Appellant : Mr. U.K. Das, Legal Aid Counsel.
For the Respondents : Ms. A. Gayan, Central Govt. Counsel.
Date of hearing and Judgment & Order : 24th February, 2021.
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JUDGMENT & ORDER (ORAL)
(Sudhanshu Dhulia, CJ)
Heard Mr. UK. Das, learned legal aid counsel, appearing for the petitioner. Also
heard Ms. A. Gayan, learned Central Government counsel, appearing for all the respondents.
2. This writ appeal has been filed by the writ petitioner against the order of the
learned Single Judge dated 09.05.2019 passed in WP(C) No.219/2012 (Promod Malia -Vs-
Union of India & 3 Ors.), whereby the writ petition was dismissed.
3. Brief facts of the case are that the appellant/writ petitioner before this Court was
a Constable in Central Reserve Police Force (CRPF), which he had joined in the year 1986. In
November, 1995, while he was posted at Dibrugarh, an incident occurred at 7:45 PM on
07.11.1995. The petitioner and one of his colleagues, Ram Kishan Singh, were found missing
from their duties and after some time they were seen sneaking inside the room in an
inebriated state. When they were questioned and they were to be taken to the hospital for
medical examination, they resisted. At the relevant time, both the Constables, including the
present appellant/writ petitioner, were armed. Shri Ram Kishan Singh was somehow over
powered but the appellant/writ petitioner continued to resist arrest and in fact fired as many
as fourteen rounds in air from his automatic weapon. He was ultimately apprehended and
disciplinary proceeding was initiated against them. In the disciplinary proceeding, three
charges were levelled against them, which are as follows:-
"Statement of Articles of charges framed against No.861241270 CT P. Malia and
No.911000345 CT Ram Kishan Singh OF B/111 BN. C.R.P.F.
Article - I
That the said No.861241270 CT P. Malia and No.911000345 CT
Ramkishan Singh of B/111 Bn, CRPF, were found absent from Check Roll on
7.11.95 at about 1945 Hrs in B/111. Dibrugarh Location. Thus they have been
committed an offence punishable under Section 11(1) of CRPF Act, 1949 in their
capacity as a member of the force.
Article - II
That they are joined in Roll Call from the back side of the row with
Consumed Liquor. On seeking this by the OC. S/111 and ordered for medical
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examination to both pers to his Coy 2 I/C INSP V.R. Patil, at the time both pers
challenged to kill the Coy personnel if any body tried to take them for medical
examination and CT P. Malia fired 14 rounds in the Air from his personal weapon.
Thus they have been committed an offence punishable under Section 11(1) of
CRPF Act, 1949 in their capacity as a member of the force.
Article - III
That during absence from Check Roll Call both pers consumed liquor
and joined in roll call from the back side of the row. OC asked them the reasons
for their absence and same time he detected both were in drunken condition. OC.
B/111 has ordered for their Medical examination at the time both pers challenged
to kill the Coy personnel if any body tried to take them to Civil Hospital for
medical examination. Since both of the CTs were in possession of their personnel
SLR immediately OC went to the lines, where he himself overpowered CT Ram
Kishan and taken back his rifle and CT P. Malia fired 14 rounds in the Air. Thus
they have been committed an offence punishable under Section 11(1) of CRPF
Act, 1949."
4. After a departmental enquiry, all the charges were found to be proved against the
delinquent Constables and subsequently they were dismissed from service vide order dated
20.11.1996. The appellant/writ petitioner admittedly never filed any statutory departmental
appeal against the said order immediately after his dismissal but in the criminal trial (which
was also going on against the present appellant), when he was acquitted by the trial Court
of charges under Section 307 IPC on 09.10.2009, he filed an "undated" appeal before the
appellate authority, which was received by the appellate authority on 13.02.2010. The
appeal itself was filed after a delay of more than thirteen years. The appeal did not find
favour of the appellate authority and it was dismissed. Subsequently, the appellant/writ
petitioner also moved a revision before the IGP, West Sector, CRPF, which was also dismissed
on 28.09.2010. He finally filed WP(C) No.219/2012 before this Court in the year 2012, which
was ultimately dismissed by the learned Single Judge on 09.05.2019. Against the said order,
the present writ appeal has been filed.
5. There are two points, which have been raised before this Court by the
appellant/writ petitioner. The first is that on the same set of charges as in the departmental
appeal, the appellant/writ petitioner was also being prosecuted in the criminal Court, which
ultimately resulted in his acquittal and, therefore, since he has already been acquitted by the
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criminal Court, all orders for his dismissal are liable to be set aside and he is liable to be
reinstated in service.
6. This argument of the petitioner is without any merit inasmuch as it is a settled
position of law that departmental proceedings and criminal trial, even though are on the
same set of charges, are to be judged with different parameters. Whereas in a criminal
Court, the prosecution has to prove its case beyond reasonable doubt, such is not the case
in a departmental proceeding where a conviction has to be made on the preponderance of
probabilities. Merely because a person had been acquitted in a criminal trial, it would not
ipso facto set aside the entire departmental proceedings and grant any benefit to the
incumbent. Therefore, the arguments of the appellant/writ petitioner to this effect are wholly
misconceived.
7. The second argument of the appellant/writ petitioner before this Court is that in
the departmental proceedings he had faced, the proceeding itself was not fair and there was
a violation of the principles of natural justice and fairplay inasmuch as there was no
Presenting Officer in the Department and in absence of a Presenting Officer, the Enquiry
Officer himself acted as a Presenting Officer. This again is an extremely baled submission,
which his not backed by any document or evidence. But on the point of law, Mr. Das has
placed reliance on two decisions of this Court in the case of W. Birbal Singh -Vs- State of
Manipur & Ors., reported in 2010 (5) GLT 371 and in Union of India & Ors. -Vs- Ram
Lakhan Sharma, reported in 2011 (3) GLT 281.
8. In W. Birbal Singh (supra), this Court in Paragraph 15 has held as under:-
"(15) This Court in the above cases held that the enquiry officer has assumed
the roll of the Judge as well as the prosecutor, inasmuch as, in absence of the
presenting officer, the enquiry officer himself examined the witnesses and
exhibited documents and it would be violative of the rules and the fundamental
principles of natural justice. Admittedly, in the disciplinary proceeding against the
appellant-writ petitioner for the said 2 articles of charges no presenting officer
was appointed and the enquiry officer himself assumed the roll of Judge as well
as prosecution. Accordingly, we are of the considered view, that the disciplinary
proceeding against the appellant-writ petitioner is liable to be quashed only on
this score."
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9. In Ram Lakhan Sharma (supra), this Court in Paragraph 16 has held as under:-
"(16) In the instant case, it is the admitted position that the Inquiry Officer in
absence of the Presenting Officer put all the questions to the delinquent officer,
respondent herein. Therefore, according to us the Inquiry Officer acted beyond
his jurisdiction and when an authority acts beyond his jurisdiction and finally
passes his report then on that report the Disciplinary Authority should not act,
being the Inquiry Officer did not act independently as required under the statute.
In the case of Punjab National Bank and Ors Vs. Kunj Behari Misra, (1998) 7 SCC
84 while the Apex Court considered two appeals being Civil Appeal No.1884 of
1993 and Civil Appeal No.7433 of 1995 considering a common question, inter alia,
that when the Inquiry Officer, during the course of disciplinary proceedings come
to a conclusion that all or some of the charges alleging misconduct against an
official are not proved then can the disciplinary authority differ from that and give
a contrary finding without affording any opportunity to the delinquent officer,
noted that though the Punjab National Bank Employees (Discipline and Appal)
Regulations 1977 does not require an opportunity of being hearing being given to
the delinquent officers if the Disciplinary Authority disagreed with the findings of
the Inquiring Authority once the Inquiring Authority had given hearing to them
but held that the principle of natural justice will have to be read into regulation.
The Apex Court further held that even where the regulation does not require to
give an opportunity of hearing to the delinquent the opportunity should be given
in compliance of the principles of natural justice to the delinquent officer when
the disciplinary authority disagrees with the findings of the Inquiry Officer. Here
though the facts are not similar but the learned Single Judge considered the
aforesaid case to show how and in what situation the employer is to provide the
principle of natural justice to the delinquent officer....."
10. As we can see the facts in these two cases are entirely different. The findings in
the two cases are that the Enquiry Officer was acting like the Presenting Officer. Such is not
the finding anywhere here, except a bald and belated allegation of the appellant/writ
petitioner.
11. In any case, this aspect to some extent has been dealt with by the appellate
authority as well as by the learned Single Judge of this Court, who have noticed that the
departmental proceeding had proceeded under the Central Reserve Police Force Rules, 1955,
which provide that the Enquiry Officer shall collect evidence in presence of the delinquent
officer. Therefore, there is a presumption that entire evidence was collected in the presence
of the appellant/writ petitioner and the Rules do not provide for appointment of a Presenting
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Officer. In any case, if there was a violation, the appellant/writ petitioner should have made
such an objection at the first given opportunity, i.e. before the Enquiry Officer himself. This
was never done by him. The petitioner will not be permitted to raise this ground at such a
belated stage.
12. Be that as it may, the fact remains that no advantage can be given to the
appellant/writ petitioner of a procedural lapse, which was never challenged by the
appellant/writ petitioner at the relevant time when the enquiry was going on. In any case,
the appellant/writ petitioner has not been able to show before this Court as to what
prejudice has been caused to him by non-presence of a Presenting Officer during the
departmental proceeding.
13. In view of the above discussion, we find absolutely no merit in the writ appeal and
hence, the same is dismissed.
JUDGE CHIEF JUSTICE
Comparing Assistant
