Diganta Hazarika Force No. ... vs The Union Of India And 5 Ors
2022 Latest Caselaw 2501 Gua

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GAHC010194702020




                      THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                        Case No. : WP(C)/60/2021

         DIGANTA HAZARIKA FORCE NO. 045221476
         (EX CONSTABLE/COOK), S/O- LT. KUSHAL HAZARIKA, R/O- VILL-
         DHARIGAON, P.O. KAKOJANDHARIGAON, TEOK, DIST.- JORHAT ASSAM,
         PIN- 785107



         VERSUS

         THE UNION OF INDIA AND 5 ORS
         REP. BY THE SECRETARY, MINISTRY OF HOME AFFAIRS, NEW DELHI-
         110001

         2:THE DIRECTOR GENERAL
          CENTRAL RESERVE POLICE FORCE
          CGO COMPLEX
          LODHI ROAD
          NEW DELHI- 110003

         3:THE INSPECTOR GENERAL OF POLICE
          NORTH EASTERN SECTOR CENTRAL RESERVE POLICE FORCE
          SHILLONG
          MEGHALAYA
          PIN- 793001

         4:THE DY. INSPECTOR GENERAL OF POLICE
          CENTRAL RESERVE POLICE FORCE
          GROUP CENTRE
          DAYAPUR
          SILCHAR
         ASSAM
          PIN- 788031

         5:THE COMMANDANT
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             GROUP CENTRE
             CENTRAL RESERVE POLICE FORCE
             DAYAPUR
             SILCHAR
             ASSAM
             PIN- 788031

            6:SELAY DEBGAM
             DY. COMMANDANT
             C/O- GROUP CENTRE
             CENTRAL RESERVE POLICE FORCE
             DAYAPUR
             SILCHAR
            ASSAM
             PIN- 78803

Advocate for the Petitioner   : MR. R MAZUMDAR

Advocate for the Respondent : ASSTT.S.G.I.




                                     BEFORE
                    HONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI

                                       JUDGMENT

Date : 27-07-2022

Heard Shri R Mazumdar, learned counsel for the petitioner and Shri AK Dutta, learned Central Government Counsel (CGC) appearing for the Union of India.

2. A delicate issue concerning a Disciplinary Proceeding touching the aspect of safeguard to a delinquent has arisen for consideration in the instant writ petition. Briefly stated, there were two broad charges against the petitioner and in the inquiry, both the charges were held to be proved. However, after consideration of the reply filed by the petitioner to the second show cause notice, the Disciplinary Authority altered the findings and held that only one part of the first charge can be said to be proved and accordingly, a penalty of withholding of annual increment for one year was imposed which was accepted by the petitioner. However, after expiry of the period of Page No.# 3/13

limitation to prefer a revision, the authorities took up the matter for suo moto revision and issued notice to the petitioner as to why the penalty should not be enhanced to which the petitioner replied. Thereafter, the authorities not only enhanced the penalty to a major penalty of dismissal but the said order was passed by holding both the charges to be proved. The question which would arise for determination would be a three-fold one:

i) Whether a time barred revision is permissible to be gone ahead with?

ii) If the first query is answered in favour of the Department, the consequential issue would be as to whether in exercise of suo moto powers of revision wherein the notice issued was only on the aspect of enhancement of the penalty, the findings of the Disciplinary Authority with regard to the charges which were decided in favour of the delinquent could be altered without giving notice?

iii) Whether the penalty imposed is otherwise grossly disproportionate to the nature of the allegations?

3. To answer the aforesaid issues, the facts of the case are required to be narrated. However, since the issues involved are purely legal in nature, only the facts relevant to the issue are mentioned below.

4. The petitioner was working as a Constable (Cook) under the Central Reserve Police Force (CRPF) and was posted at Dayapur, Silchar. Vide a memorandum of charges dated 06.03.2018, two broad charges were levelled against the petitioner, the gist of which is given below.

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i) Commission of an act of insubordination on 09.02.2018 when the petitioner without obtaining the permission of a fellow CT/GD had gone to his quarter in his absence in an inebriated condition when his wife was alone in the Quarter;

ii) Commission of an act of insubordination on 09.02.2018 when the petitioner after entering the Quarter of his fellow mate had caught the wife of his fellow mate with ill-intention and also misbehaved with her.

5. The aforesaid memo was replied to by the petitioner and not being satisfied with the explanation, an inquiry was conducted on the aforesaid charges. After completion of the enquiry, a report dated 16.08.2018 was issued as per which both the charges were held to be proved. It is the case of the petitioner that while reaching the conclusion, the Inquiry Officer, however overlooked the explanation given by him.

6. After receipt of the copy of the Inquiry Report dated 16.08.2018, the petitioner had submitted his response vide communication dated 28.09.2018. The Disciplinary Authority, namely, the Deputy Inspector General of Police, Group Centre, CRPF after considering the facts and circumstances had come to an opinion that the finding regarding the first charge of entering into the Quarter in an inebriated condition was not fully justified and the charge itself was held to be doubtful. So far as the second charge is concerned, it has been held that there was no direct evidence in this regard and the evidence adduced by the colleague of the petitioner was merely hearsay from his wife-the alleged victim. Therefore, it was held that the petitioner be given the benefit of doubt. The Disciplinary Authority, however, came to a finding that the allegation of entering into the Quarter in absence of his colleague was established and the petitioner was held guilty. Accordingly, in exercise of powers under Section 11 (1) of the CRPF Act, 1949 (CRPF Act) read with Rule 27 of the CRPF Rules, 1955 (CRPF Page No.# 5/13

Rules) imposed the penalty of "withholding of annual increment for 1 year".

7. It is a matter of fact that the aforesaid order was not challenged by the petitioner, either by filing a departmental appeal or approaching a Court of law. It was a matter of surprise for the petitioner that the Deputy Inspector General of Police had issued a show cause notice dated 16.03.2019 asking the petitioner to respond as to why the penalty imposed should not be increased. The said show cause notice was issued and it was mentioned that it was under suo moto powers for exercise of revision.

8. The said notice was replied to by the petitioner on 26.03.2019 whereby the proposal to enhance the penalty was negated. The petitioner had contended that he had committed no offence and therefore, the question of enhancing the penalty should not arise.

9. The Deputy Inspector General of Police, CRPF had passed an order dated 06.06.2019 by which the penalty was enhanced to "dismissal from service". In the said order, it has been observed that both the charges against the petitioner were held to be proved. Against the said order, the petitioner had preferred an appeal on 04.07.2019 which, however, was dismissed vide an order dated 03.09.2019.

10. Being aggrieved by the impugned action, the present writ petition has been filed. At the outset, the learned counsel for the petitioner, Shri Mazumdar has submitted that though the writ petition has been structured to challenge the entire proceedings, including the earlier order of penalty, the same not being challenged at an appropriate time, the present challenge may be construed to be confined to the subsequent order of penalty dated 06.06.2019 by which the petitioner has been dismissed from service and the same has also been upheld by the Appellate Authority Page No.# 6/13

vide communication dated 03.09.2019.

11. Shri Mazumdar, learned counsel for the petitioner submits that the entire exercise of powers of suo moto revision is not in accordance with law. He submits that even without entering into the merits, the very initiation of the revision is barred by limitation inasmuch as, under Section 29 read with Section 28 (e) of the CRPF Act, the prescribed time for such action is one month. In view of that, the entire action in issuing the show cause notice dated 16.03.2019 is bad in law and not liable to be sustained.

12. To substantiate the above contention, the learned counsel for the petitioner has relied upon a decision of a Division Bench of the Hon'ble Madras High Court in a case of similar nature pertaining to the CRPF. In the said decision of Commandant 110 Battalion Central Reserve Police Force & Ors. , reported in 2009 4 MLJ 60 in paragraph 11 thereof, the following has been laid down:

"11. On the facts of this case, the original authority passed the order imposing punishment of withholding of one increment for a period of one year on 18. 96. The revisional authority had issued the show cause notice only on 7. 99. In view of the order dated 18. 96 imposing a penalty of withholding of one increment for a period of one year, the respondent had suffered the said punishment and in fact he has not even chosen to question the said order. The order of the revisional authority does not indicate the application of mind as to why the revisional power has not been invoked or exercised at least for a period of nearly three years i.e., between 18. 96 and 7. 99. In the absence of any application of mind as to the duty of the revisional authority to take into consideration of the length of delay and the intervening circumstances, in our opinion, the order of the revisional authority suffers from legal infirmity and consequently is liable to be set aside. In that view of the matter, we find no Page No.# 7/13

grounds to interfere with the order of the learned Single Judge."

13. Secondly, it is contended that even if the aspect of limitation is overlooked, the impugned decision culminating in the penalty of dismissal from service is legally unsustainable. It is submitted that the revisional powers are confined to and have been apparently exercised with regard to the enhancement of the penalty. He accordingly, contends that without questioning the authority to effect such enhancement whether the procedure prescribed has been followed or not has to be examined.

14. He further contends that in exercise of suo moto powers of revision, the said authority does not have the jurisdiction to alter any findings of the Disciplinary Authority which are in favour of the delinquent without affording any opportunity of hearing.

15. In support of his submissions, Shri Mazumdar, learned counsel for the petitioner places reliance upon the following case laws:

i) PNB & Ors. Vs. Kunj Behari Misra, (1998) 7 SCC 84;

ii) Union of India Vs. Ghulam Mohd. Bhat, (2005) 13 SC 228;

iii) Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya, (2013) 10 SCC 324.

16. In the case of Kunj Behari Misra (supra), the Hon'ble Supreme Court was in seisin of a matter wherein findings favourable to a delinquent were interfered with by the Disciplinary Authority without giving further notice. The Hon'ble Court had held as follows:

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17. In the case of Deepali Gundu Surwase (supra), the Hon'ble Supreme Court laid down as follows:

"38. The propositions which can be culled out from the aforementioned judgments are:

38.1. In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule.

...

...

...

38.5. The cases in which the competent Court or Tribunal finds that the employer has acted in gross violation of the statutory provisions and/or the principles of natural justice or is guilty of victimising the employee or workman, then the court or tribunal concerned will be fully justified in directing payment of full back wages. In such cases, the superior courts should not exercise power under Article 226 or 136 of the Constitution and interfere with the award passed by the Labour Court, etc. merely because there is a possibility of forming a different opinion on the entitlement of the employee/workman to get full back wages or the employer's obligation to pay the same. The courts must always keep in view that in the cases of wrongful/illegal termination of service, the wrongdoer is the employer and the sufferer is the employee/workman and there is no justification to give a premium to the employer of his wrongdoings by relieving him of the burden to pay to the employee/workman his dues in the form of full back wages.

38.6. In a number of cases, the superior courts have interfered with the award of the primary adjudicatory authority on the premise that finalisation of litigation has taken long time ignoring that in majority of cases the parties are not responsible for such delays. Lack of infrastructure and manpower is the Page No.# 9/13

principal cause for delay in the disposal of cases. For this the litigants cannot be blamed or penalised. It would amount to grave injustice to an employee or workman if he is denied back wages simply because there is long lapse of time between the termination of his service and finality given to the order of reinstatement. The courts should bear in mind that in most of these cases, the employer is in an advantageous position vis-à-vis the employee or workman. He can avail the services of best legal brain for prolonging the agony of the sufferer i.e. the employee or workman, who can ill-afford the luxury of spending money on a lawyer with certain amount of fame. Therefore, in such cases it would be prudent to adopt the course suggested in Hindustan Tin Works (P) Ltd. v. Employees."

18. The result of the aforesaid discussion would be that the principles of natural justice have to be read with Regulation 7(2). As a result thereof, whenever the disciplinary authority disagrees with the inquiring authority on any article of charge which were favourable to the delinquent, then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it and records its response. The report of the Inquiry Officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the Disciplinary Authority to accept the favourable conclusion of the Inquiry Officer. The principles of natural justice require the authority which has to take a final decision and can impose a penalty, to give an opportunity to the person charged of misconduct to file a representation, before the Disciplinary Authority records its findings on the charges framed against the officer.

19. On the other hand, Shri Dutta, learned CGC submits that there is no jurisdictional error on the part of the Revisional Authority in passing the impugned order. Justifying the same, the learned CGC has submitted that the petitioner belongs Page No.# 10/13

to a disciplined force and the charges are very serious in nature which include misbehaving with the wife of his fellow mate in an inebriated condition. As regards the point of limitation, the learned CGC submits that the infraction, if any, is procedural in nature which can be overlooked. As regards the opportunity of hearing, Shri Dutta submits that before enhancing the penalty, notice was duly served upon the petitioner. The learned CGC, accordingly contends that no interference be made and the writ petition be dismissed.

20. The Hon'ble Supreme Court in the case of Ghulam Mohd. Bhat (supra) had held as follows:

"8. It is fairly well-settled position in law that removal is a form of dismissal. This Court in Dattatraya Mahadev Nadkarni (Dr.) v. Municipal Corpn. of Greater Bombay explained that removal and dismissal from service stand on the same footing and both bring about termination of service though every termination of service does not amount to removal or dismissal. The only difference between the two is that in the case of dismissal the employee is disqualified from future employment while in the case of removal he is not debarred from getting future employment. Therefore, dismissal has more serious consequences in comparison to removal. In any event, Section 11(1) refers to the Rules made under the Act under which action can be taken. Rule 27 is part of the Rules made under the Act. Rule 27 clearly permits removal by the competent authority. In the instant case the Commandant who had passed the order of removal was the competent authority to pass the order."

21. The rival submissions made on behalf of the parties have been duly considered and the materials before this Court have been carefully examined.

22. It is seen that the apparent purpose of initiating the suo moto revision is for Page No.# 11/13

enhancement of the penalty. Nowhere, in the said revision, even an indication has been given that the findings favourable to the petitioner would be altered. From a careful reading of the impugned order dated 06.06.2019, it would reveal that the Revisional Authority had embarked upon the findings of the Disciplinary Authority so far as those from which the petitioner was exonerated from. As noted above, the Disciplinary Authority had imposed the initial penalty of withholding of annual increment for 1 year after coming to a conclusion that only the charge of entering into the Quarter of the fellow mate was proved and the rest of the charges, namely, being an inebriated condition and misbehaving with the wife of his fellow mate could not be proved. However, in the so-called exercise of suo moto revision, the Revisional Authority had enhanced the penalty by altering the aforesaid findings favourable to the petitioner by holding that all the charges were proved. What is required to be seen at this stage is that whether the notice issued on 16.03.2019 was a comprehensive one, covering the aspect of re-entering the merits of the charges or was it pertaining only to the aspect of enhancement of the penalty.

23. A close scrutiny of the notice dated 16.03.2019 would show that the same was pertaining to only one aspect i.e., enhancement of the penalty. Though such power is not the subject matter of challenge, what is required to be seen is whether such powers have been exercised in the prescribed manner. The Hon'ble Supreme Court in the case of Kunj Behari Mishra (supra) was dealing with a similar situation wherein the Disciplinary Authority was examining the report of an inquiry in which the delinquent was held to be not guilty of the charges. The Disciplinary Authority, however, altered the said findings. The Hon'ble Supreme Court held that the said action of altering having adverse effect for the delinquent, there was a requirement of a further notice indicating such intention and denial of such opportunity would amount to denial of a fair opportunity to defend oneself. Accordingly, such action was interfered with.

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In the present case, the situation is similar with the only difference that the authority is the Revisional Authority. That apart, the question of limitation is very much there and the impugned action is apparently taken after expiry of the said period.

24. However, even assuming that the impugned exercise was not barred by law, both on account of limitation as well as violation of the procedural safeguards, the impugned action has to be tested from the aspect of proportionality. As has been held earlier, the enhancement of the penalty can only for the misconduct which was found to be proved by the Disciplinary Authority. The misconduct which has been held to be established by the Disciplinary Authority is one of entering into the Quarter of a fellow mate. For such misconduct whether the penalty of dismissal from service can be deemed to be proportionate is required to be examined.

25. The doctrine of proportionality is a well recognized doctrine in service jurisprudence. The underlying object is that the penalty imposed on proved misconduct should not be disproportionate and rather, should be commensurate. Since different penalties are prescribed, both major and minor, the penalty imposed should be one which does not shake the judicial conscience.

26. In the instant case, the severest penalty of dismissal from service has been prescribed for the proved misconduct of entering in the Quarter of a fellow mate in his absence. This Court is of the opinion that even assuming that such misconduct was, indeed committed, the penalty of dismissal from service is wholly disproportionate and liable to be interfered with. This Court is further of the opinion that since, in the first round of the disciplinary proceeding, the petitioner was imposed with the penalty of withholding of one annual increment, the said penalty appears to be reasonable. In any case, the petitioner did not make any challenge to the same at that time.

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27. In view of the above, the instant writ petition is allowed by setting aside the impugned penalty of dismissal from service and directing the respondent authorities to reinstate the petitioner in his service with all consequential benefits from the date of dismissal from service i.e., 06.06.2019. However, as regards arrear salaries, the petitioner would not be entitled to the same and the entitlement would only be notional in nature.

28. The writ petition is, accordingly disposed of.

29. No order as to cost.

JUDGE

Comparing Assistant