WP(C)/1471/2013
2023 Latest Caselaw 4471 Gua

GAHC010129342013




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


                    WRITPETITION (C) NO. 1471/2013

                    Naren Gogoi,
                    S/O Late Balu Ram Gogoi,
                    Vill: I-No. Borbil, P.O. Bonomali (Suffty), Dist.
                    Sivasagar(Assam), PIN-785689

                                                     ........Petitioner

                                       -Versus-



                    1. The Union of India, represented by the
                       Secretary, Ministry of Home Affairs, New Delhi-1

                    2. The Director General of Police, CRPF, CGO,
                    Complex, Lodhi Road, New Delhi



                    3. The Deputy Inspector General of Police,
                    Central Reserve Police Force, Neemach, Madhya
                    Pradesh



                                                                 Page | 1
 4. The Commandant, 65 Battalion CRPF, Reserve
Police Line, Rani, Kamrup (Assam)

                             ........Respondents

Page | 2 :: BEFORE::

                   HON'BLE MR. JUSTICE SOUMITRA SAIKIA


                       For the Petitioner     : Mr. R. Mazumdar, Advocate



                       For the Respondents    : Mr. S.P. Choudhury, CGC

                      Date of Hearing         : 20.07.2023
                      Date of Judgment        : 19.10.2023

                       JUDGMENT & ORDER (CAV)

The dismissal of the petitioner from his services as Constable

(General Duty) in the CRPF is put to challenge in the present proceedings.

The petitioner joined his services as Central Reserve Police Force as a

Constable (General Duty) on 31.12.1991. During his 16 years of continuous

service, he had been posted in various places and it is stated that he had

rendered his services with utmost sincerity and dedication. While the

petitioner was deployed at Rani, Kamrup, Guwahati, the respondent No. 4

issued a communication No. P-VIII-6/2007-Est.-II dated 22.05.2007

informing him for the proposal to conduct an enquiry on two (2) charges

leveled against the petitioner. The memorandum of charges along with list

of documents and witnesses were all supplied to the petitioner. By the said

communication dated 22.05.2007, it was alleged that the petitioner had

committed acts of disobedience/remissness in the discharge of duty while

Page | 3 he was on active duty. It is alleged that while he was on active duty in

sensitive area on 02.04.2007, he had consumed country liquor and created

chaos in an inebriated condition using abusive language. These acts of the

petitioner are considered to be serious act of misconduct under Section 11

(i) of the CRPF Act of 1949 which is punishable under Rule 27 of the CRPF

Rules, 1955. The petitioner was further charges of having committed

misconducts in the past and such repetition of misconduct is punishable

under the CRPF Act read with the Rules. The Enquiry Officer was appointed

and the enquiry proceeded. Statements of witnesses as well as that of the

petitioner were recorded in the enquiry. The Enquiry Report was submitted

to the Disciplinary Authority on 14.09.2007. The Disciplinary Authority

accepted the findings of the Enquiry Report and thereafter passed the

order dated 01.12.2007 bearing No. P-VIII-6/07-EC-II, whereby the

petitioner was dismissed from service. Against the order of dismissal, the

petitioner also preferred a departmental appeal bearing No. P-XII-6/08-I

dated 22.09.2008. The appeal came to be rejected pursuant to which the

petitioner has approached this Court by filing present writ petition assailing

the Enquiry Report dated 07.09.2007, the impugned order of dismissal

dated 22.12.2007 as well as the appellate order.

Page | 4

2. The learned counsel for the petitioner submits that the petitioner was

employed as Constable (General Duty) and he was not at all familiar with

the Rules and Procedures which were resorted to while conducting the

enquiry by the CRPF Authorities. It is submitted that being a Constable, it

was incumbent on the Department to have offer proper legal assistance to

the petitioner so as to enable him to meet the allegations raised against

him by way of the proceedings. It is submitted by the learned counsel for

the petitioner that the enquiry was conducted entirely by the Enquiry

Officer and no presenting Officer was appointed. The Enquiry Officer acted

as the Prosecutor as well as the Judge and thereby causing serious

prejudice to the petitioner. The further submission of the learned counsel

for the petitioner is that the enquiry conducted was not based on any

evidence. It is submitted that since the charge No. 1, it is alleged that the

petitioner consumed liquor and misbehaved and thereby committed serious

misconduct, it was incumbent on the Enquiry Officer to examine the

relevant medical documents including the Medical Tests reports if any.

Even the treating Doctor was not called as a witness and examined. A copy

of the Prescription which was produced was also not proved in original.

Under such circumstances, the entire enquiry is an eye wash and the

respondent authorities with a vindictive attitude permitted the enquiry to

Page | 5 be conducted and thereby holding that the charges were proved although

no evidence was adduced in support thereof. It is also submitted that

pursuant to the Enquiry Report being submitted by the Enquiry Officer to

the Disciplinary Authority and prior to the Disciplinary Authority imposing

the penalty of dismissal from service, no show-cause notice as required

under the statue be issued to the petitioner. All these issues were urged by

the petitioner before the appellate authority in his appeal preferred against

the impugned order of penalty of dismissal. However, even the Appellate

Authority without any application of mind rejected his appeal without

considering the allegations raised. It is submitted that the enquiry

conducted therefore is not an enquiry in the eye of law and consequently,

Disciplinary Authority could not have accepted the Enquiry Report and

imposed punishment on the petitioner. It is submitted that in view of the

submissions made, the enquiry proceedings, the impugned order of

dismissal passed by the Appellate Authority should be interfered with, set

aside and the petitioner be reinstated in service with full backwages and all

financial benefits. In support of his contentions, the learned counsel for the

petitioner relies upon the following Judgments:

"1. Union of India and Ors. Vs. Ram Lakhan Sharma, reported in (2018) 7 SCC 670;

Page | 6

2. Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya (D.Ed) and Ors, reported in (2013) 10 SCC 324;

3. P.V. Mahadevan Vs. MD, T.N. Housing Board, reported in (2005) 6 SCC 636;

4. Union of India Vs. Namit Sharma, reported in (2013) 10 SCC 359;

5. LICI and Anr. Vs. Ram Pal Singh Bishe, reported in (2010) 4 SCC 491;

6. Roop Singh Negi Vs. Punjab National Bank and Ors., reported in (2009) 2 SCC 570;

7. Judgment and Order dated 10.05.2018 passed in W.P(C) No. 4517/2008 (Santosh Kumar Singh Vs. Union of India and Ors)

8. Judgment and Order dated 01.02.2019 passed in W.A. No. 305/2017 (The Union of India and Ors. Vs. Ex-Constable GD Sri Atul Chandra Kalita)

9. Judgment and Order dated 29.08.2019 passed in W.A. No. 120/2019 (Union of India and Ors. Vs. Santosh Kumar Singh)

3. The respondent Department contested the case of the petitioner by

filing an affidavit-in-opposition. In their affidavit, the respondent

Department held that the petitioner was found to be in and inebriated

condition and using abusive languages. In the camp, when he was detailed

for map reading course while serving as CT/GD and on active duty in

Page | 7 sensitive area (Kamrup, Assam). In their affidavit, the respondent

Department stats that the petitioner was found to be a habitual offender

and between 1993 to 2006 there were several misdeeds which were

committed by the petitioner. Details of the misdeeds mentioned in

Paragraph -4 of their affidavit are extracted below:

"While working as Constable/GD in CRPF, petitioner was found to be a habitual offender, remaining misdeeds between 1993 to 2006 as mentioned below:

1. 10 days confinement of Lines during 1993 was awarded to him, when he was detailed for Treasure Guard duty on dated 03.12.93 because of his refusal for guard duty.

2. Was awarded a punishment of "Stoppage of two increments" due to negligence in the execution of his duty.

3. 5 days OSL (w.e.f. 15.06.2004 to 19.06.2004) was regularized as LHP with no leave salary.

4. 30 days confinement to Lines w.e.f. 16.09.2006 to 15.10.2006 was awarded, when on dated 15.09.2006 at 1200 hours he had left the camp/line without prior permission of competent authorities and reported in camp at about 2100 hours on inebriated condition."

4. It is stated that instead of rectifying himself inspite of being

repeatedly punished and necessary advised given by the Coy Commander,

Page | 8 petitioner had not changed his attitude and against deserted the camp

consumed liquor on his active duty. He was oblivious to his duties and

responsibilities. It is stated that initially the preliminary enquiry was

conducted which recommended for taking suitable disciplinary action

against the petitioner. It is pursuant to this that the disciplinary

proceedings were initiated. Although the petitioner was permitted fifteen

(15) days time to submit his reply, he did not submit any reply in his

defence within the stipulated time. Consequently, the enquiry proceeded

and he was found to be guilty of the charges alleged and punishment as

per the statute as prescribed was awarded to him. The appeal preferred by

the petitioner before the Appellate Authority was examined by the

Appellate Authority and thereupon the same is dismissed. It is stated that

the requirement of appointing a Presenting Officer came to be enforced by

a Circular Order No. 05/2011 dated 05.10.2011. As such that the time

when the enquiry was conducted, the Circular was not in place and no

presenting Officer was presented. However, it is stated that the enquiry

was conducted absolutely as per procedure prescribed and the Disciplinary

Authority acted keeping in view Rules prescribed and the laws of natural

justice. It is further stated that although opportunities were given to the

petitioner to cross-examine the witnesses, the petitioner declined to cross-

Page | 9 examine the witnesses and the same is available on record with his

signature thereon. The charges were read over and explained to the

petitioner. All the exhibits were produced and documented in the presence

of the petitioner. Even an opportunity granted to the petitioner to verify

these documents, he refused to do so with his signature endorsing on it. It

is submitted that the proposition sought to be pressed into service by the

petitioner laid down in the case of Ram Lakhan (Supra). It is submitted

that the same is not an universal proposition. More particularly in view of

the Circular No. 05/2011 dated 05.10.2011 which came into force on the

date it was issued. As such, the applicability of the circular cannot be

accepted to have a retrospective effect and therefore non-appointment of

Presenting Officer did not vitiate the enquiry proceedings. It is further

submitted that since there was denial to the charges brought against the

petitioner including the charges of previous misconduct, the contention of

the petitioner that he suffered pre-judiced cannot be accepted in view of

the materials available on record. The learned counsel for the respondent

further submits that the pendency of the writ petition cannot by ipso facto

be permitted to be used as a ground for sympathy to be earned by the

petitioner dehors the facts and the materials available on record. The delay

in respect of the pendency of the writ petition if any cannot be attributed

Page | 10 to the department because the affidavit of the Department was filed as far

back as 24.06.2013 to which the petitioner also filed an affidavit-in-reply

on 06.09.2013 itself. It is submitted that the member of a discipline force

cannot be permitted to commit misconduct and expect leniency. There is

no denial by the petitioner that he was guilty of misconduct on earlier

occasions also. Under such circumstances, there is infirmity in the enquiry

proceedings conducted, impugned penalty imposed as well as the order

dated 22.09.2008 passed by the Appellate Authority rejecting the appeal

filed by the petitioner. There is no merit in the writ petition and therefore

the same ought to be dismissed as being devoid of any merit.

5. The learned counsels for the parties have been heard. Pleadings on

record have been perused. The Departmental Proceedings records along

with the Translation supplied have also been carefully perused. The

challenge to the D.P. made in the present writ petition is that the dismissal

order of the petitioner should be interfered with as the same was

conducted without appointing any Presenting Officer and which is contrary

to the law laid down in Ram Lakhan (Supra). That apart, there is no

evidence on record to hold that the petitioner was alchol dependent as no

medical records were called for and proved as required nor was the

treating doctor examined.

Page | 11

6. In Union of India Vs. Ram Lakhan Sharma (Supra), the Apex Court

was examining a Disciplinary Proceedings conducted by the CRPF. The

Apex Court held that when statutory rules are silent with regard to

applicability of any facet of principles of natural justice, applicability of

principles of natural justice which are not specifically excluded in statutory

scheme are not prohibited and can be made applicable in a given case to

advance cause of justice. The Enquiry Officer has to be independent and

not representative of Disciplinary Authority. If he starts acting in any other

capacity and proceeds to act in a manner as if he is interested in eliciting

the evidence to punish employee, principle of bias comes into play. The

Apex Court held on the facts of that case that since the Enquiry Officer

himself let the examination-in-chief of the prosecution witnesses by putting

question and acting as a prosecutor also, capacity of independent

adjudicator was lost which adversely affect his independent role of

adjudicator. Thus the principle of bias come into play and accordingly, it

upheld the order of the High Court in setting aside the dismissal order and

granting liberty to the applicants.

7. From the pleadings and the Enquiry Reports, it is seen that the

petitioner did not submit any reply to the charges leveled against him. The

authorities appointed the enquiry officer by order date of 18.06.2007. The

Page | 12 petitioner, however, participated in the enquiry proceedings which had

been initiated by the department.

8. As discussed above, the two charges i.e. the Charge-1 and Charge-2

are leveled against the petitioner, which are reproduced herein below:

Charge-1

That, Force number 911123804 CT. G.D. Narendra Gogai

(A/65 C.R.P.F.) being posted as CT. G.D. and in the capacity of

being a member of the force under Section 11 (1) of the CRPF

Act, 1949 acted in disobedient manner/laziness in discharge of

Duty, while he was active on duty in a hypersensitive area and

consumed country made liquor 02.04.2007 and in the State of

intoxication behave boisterously and use abusive language. This

act of the said official is a serious offence under Section 11(1)

of the C.R.P.F. Act, 1949 and is punishable under Rule 27 of

C.R.P.F. Rule, 1955.

Charge-2

That Force Number 811123804 CT. G.D. Narendra Gogai (A/65

C.R.P.F.) have also committed misconduct earlier, for which he

was provided imprisonment of 10 days in the year 1993,

Page | 13 stoppage of two annual increment in the year held pay leave

without the salary from 15.06.2004 to 19.06.2004 in the year

2004 and punishment of a line present of about 30 days from

16.09.2006 to 15.10.2006 in the year 2006 which proves that

the official is in the habit of committing repeated misconduct.

9. The charge memo also contains a list of documents on the basis of

which the statement of articles and charges were framed, which included a

medical report, briefing/D-briefing register, one Hindu order register and

any other document or evidence that the enquiry officer thinks proper. List

of witnesses included three witnesses, namely, 1. Force No.690360432

Sub-Inspector/G.D. Shivji Pandey (S.I.A-65), 2. Force No.821191525 Head

CT G.D. Moolchand, 3. Force No.005121838 CT. Nursing Ramesh Chand

Meena. During the inquiry on the examination of the petitioner, he did not

accept himself as guilty in so far as charge no. 1 is concerned. However, he

accepted the charges insofar as charge no. 2 is concerned. A perusal of the

statements made, as is evident in the report reads that only three

witnesses stated that the petitioner was not found in the camp during the

course relating to map reading. He was subsequently located and was

found to be in an inebriated condition and was abusive in nature. It is also

seen that after examination of the witnesses, opportunity was granted to

Page | 14 the petitioner and it is recorded that he does not wish to examine any of

the 3 (three) witnesses, whose names are mentioned above. A photocopy

of the medical report was seen to be produced during the enquiry

proceedings. This medical report contains the signature of the Medical

Officer of 55 C. Battalion CRPF. The medical report is written in Hindi

language, although the English translation of the same is produced before

the Court. This Court has also carefully produced the original enquiry

reports. The said report however has been attested to be a true copy by

the competent authority.

10. The opinion of the medical officer as reflected from the medical

report reads as under: "PT (patient) probably has taken alcohol and he can

take care of himself only partially." This examination was done on

02.04.2017. In the said record "smell of breath" is shown to be alcoholic..

General behavior as is reflected in the medical report reads as under:

General Behaviour, such as :-

1. State of Clothing : Shirt is absent, only in ganji.

2. Character of Speech : Slurred

3. Evidence of Self Control : Not in complete control.

The appearance of the pupils are shown to be slightly dilated.

Page | 15

11. From the evidence of the witness no.1 Force No.690360432 Sub-

Inspector/G.D. Shivji Pandey (S.I.A-65), it is seen that on 02.04.2007 at

around 10:00, the witness no.1 was on duty as In-charge of Map Reading

Course. He was informed by Force No. 821191525 Sergeant (Havaldar)/GD

Moolchand that the delinquent constable who was assigned in the Map

Reading Course has not yet entered in the training period and is not even

in line. Then he gave orders to witness no.2 to go along with some more

personnel and search for the petitioner and bring him. After searching the

camp, the petitioner was not found anywhere near. Thereafter, the witness

no1 called Force no.841330867, Fakruddin and ordered him to quickly find

the petitioner. A report was also submitted by the witness no.1 to the

adjutant. Subsequently, at around 03:00. P.M. witness no.2 Moolchand

came and informed the witness no.1 company that the petitioner has been

found out. He was found in a state of intoxication and was abusing. This

was also reported to the adjutant. The adjutant ordered the said petitioner

for medical examination. Medical letter was issued from the office and it

was sent to the MI room for medical examination and report was placed

before the adjutant. Witness no.1 i.e. Force no. 1690360432 S.I./G.D.

Shivaji Pandey was examined by the enquiry officer. The questions which

Page | 16 were put to the witness no.1 and the answers of the same are extracted

herein below:

"Questions and answers asked from Force Number 690360432 SI/GD

Shiaji Pandey.

Q1. Were all the personnel in the map reading course briefed?

Ans= Yes Sir there were briefed.

Q2. Where was you at the opening of the map reading course on 02.04.2007?

Ans= Sir, I was in the Opening Ceremonial Parade at the time.

Q3. Who gave you the report about not attending the course of Force No.911123804 CT/GD Narendra Gogai?

Ans= Sir, Course C.I. Sergeant (Havaldar) Moolchand.

Q4. Whom did you order to search for Force Number911123804 CT. Narendra Gogai?

Ans= Sir, I ordered to Sergeant (Havaldar) Moolchand.

Q5. Where did search party found Force No.911123804 CT Narendra Gogai?

Ans.= Sir, the search party did not found the Delinquent personnel in the campus area. Later, Sergeant (Havaldar) Moolchand informed that the Delinquent have entered the personnel line.

Q6. Did the Delinquent personnel have consumed alcohol?

Ans.= Yes Sir.

Q7. Did the Delinquent personnel beat or abuse anyone?

Ans= Sir, before me nobody assaulting any one.

Q8. Who did the medical examination of the Delinquent personnel?

Ans.= Sir, Health Officer of GHC Hospital Rani Kamrup, Assam.

Q9. Did he (Delinquent personnel) pressurized anyone to not undergo medical examination?

Page | 17 Ans.= Yes Sir.

Q10. Has the Delinquent personnel had also consumed alcohol during duty earlier this?

Ans.= Sir, the Delinquent have come from A-65 Battalion to do a map reading course, so I do not know about his earlier behavior.

Q11. What do you know about Force no.911123804 CT. Narendra Gogai's character?

Ans= Sir, his character is very bad when he consumes alcohol.

Q12. Can you provide a copy of the hindi order and briefing debriefing register available to the investigating officer?

Ans.= Yes sir.

12. The witness no.2 Force No. 821191525 Sergeant (Havaldar)/GD

Moolchand deposed that he had come as an instructor for Map Reading

Course on 31.01.2007. The opening of the course took place on

02.04.2007. All the personnel were represented at the opening. Later it

was followed again at 10:00 and during this time it was found that the

Force no.91123804 CT/GD, Narendra Gogai A-65 Battalion, namely the

petitioner was not present there. This was brought to the notice of SI

Shivaji Pandey, the witness no.1, who was the In-charge of the Map

Reading Course. Later on order was given by SI Shivaji Pandey to search

for the petitioner in the camp, as he was not found there. At around 03:00

P.M., the delinquent personnel was found in the personnel line in a

Page | 18 drunken state and was abusing. This was informed to SI Shivaji Pandey.

The following questions were asked to be witness no.2:

"Questions and answers asked to Force No.321191525 Sergeant (Havaldar) G.D. Moolchand.

Q1. Where did you search Force No.911123804 CT Narendra Gogai?

Ans= Sir, I have searched into the camp lines.

Q2. Who informed you that the Delinquent personnel have returned to the camp?

Ans= Sir, no one told me I got him in the line.

Q3. What action did you take after that?

Ans= Sir, I had informed it to Force no.690360432 S.I. Shivaji Pandey.

Q4. Did the Delinquent personnel consumed alcohol at that time?

Ans.= Yes Sir.

Q5. Did he abused?

Ans.= Yes Sir.

Q6. What do you know more about the Delinquent personnel?

Ans.= Sir, nothing"

13. The witness no.3 Force no.005121838 CT/ Nursing Assistant Ramesh

Chand Meena was examined and he stated that he was working in Munir

Hospital on 02.04.2007. He stated that Force no.831130171 Sergeant

(Havaldar) G.D. Jai Bhagwan (B.H.M.) came and ordered that delinquent

personnel Narendra Gogai had consumed alcohol and his medical

examination had to be done at CHC Hospital Rani. As per the order of the

Force no.831130171 Sergeant (Havaldar) G.D. Jai Bhagwan (B.H.M.) was

Page | 19 posted on duty of B.H.M. took the delinquent constable, namely the

petitioner to the CHC Hospital Rani. Thereafter, the medical officer posted

there had conducted the examination of the said constable and the report

which was issued by the medical officer was submitted to the adjutant. The

following questions were put to the witness no.3 Force no.005121838 CT/

Nursing Assistant Ramesh Chand Meena.

"25. Questions answer asked to the Investigating Officer.

Q1. Did the Delinquent personnel refuse to undergo a medical examination?

Ans= No Sir, he did not.

Q2. Was he abusing during the Investigation?

Ans.= No Sir, he was not doing.

Q3. According to you, where the Delinquent personnel was intoxicated?

Ans.= Yes Sir.

Q4. To whom the medical report was submitted by you after the completion of medical examination?

Ans.= Sir, I have submitted the medical examination report of the Delinquent personnel to the Adjutant Sir.

Q5. Can you provide a photocopy of the medical report to the investigating officer?

Ans.= Yes Sir."

14. In addition to these three witnesses, the enquiry officer also

presented one more witness, namely Force no.951850106 A.S.I (M) Ajay

Kumar 65 Batallion C.R.P.F. and an intimation there was issued to the

petitioner. The force Force no.951850106 A.S.I (M) Ajay Kumar deposed

Page | 20 that he was posted to 65 Battalion CRPF since 27.09.2005 and was posted

on Establishment-two in the Head Office 65 Battalion, from 12.05.2006.

15. He was working as In-charge of the said Establishment-two. Due to

this charge on 21.04.2007 he was asked for details about misconduct

committed earlier by the petitioner Narendra Gogai. The particulars were

sought through wireless No. P VIII-I/2007-EC-II from Group Centre,

Neemuch.

16. In response to that request made by wireless No. P VIII-I/2007-EC-II

the details of this misconduct committed earlier by the said delinquent

constable was sent and thereafter, correspondence was received from the

concerned office about the full details of misconduct committed by the

delinquent constable. The details of the misconduct stated to have been

conducted earlier by the delinquent constable namely, the petitioner was

handed over to the enquiry officer. The said details was a photo copy of

the same.

17. All the four witnesses were examined and the opportunity was

granted to the petitioner to cross-examine these weaknesses but the same

was declined. The signatures of the witnesses, the enquiry officer and the

petitioner are seen in the documents available in the records. From the

examination/re-examination of the petitioner, he had replied in affirmative

Page | 21 that the statements of the prosecution witnesses no.1 to 4 were recorded

in his presence, and that he was given a chance to cross-examine the

prosecution witnesses (which he had declined) and that he had been given

the opportunity to see and understand the charge sheet. The questions put

to the petitioner during examination are extracted as under:

"Force No. 911123804 CT. G.D. Narendra Gogoi made an statement

in the preliminary inquiry that the charge no. 1 in appendix-I he does not

accepted his guilty in that.

In the charge no. 2 of appendix-I, the following allegation is that

the Force no. 91123804 CT. G.D. Narendra Gogoi (A-65 Battalion

C.R.P.F.), while serving as a Ct./G.D. in the C.R.P.F., has also done

misconduct in the past being as a member of the force, under Section

11(1) C.R.P.F. Act 1949 due to which he was sentenced to 10 days of line

imprisonment during the year 1993, and to stop the increment of 2 years

during the year 2003, 30 days of line imprisonment during the year 2004,

and from 15.06.04 to 19.06.04 half pay leave without pay, sentenced to

30 days line imprisonment during year 2006 from 16.09.06 to 15.10.06

which proves that that person is accustomed to do repeated misconduct.

The act of a personnel is a serious offense under Section 11(1) of the

C.R.P.F. Act 1949, which is punishable under the Rule 27 of the C.R.P.F.

Rules 1955.

Page | 22 Force no. 911123804 CT.G.D. Narendra Gogoi made a statement in the

preliminary inquiry that he has accepted his guilty under the Charge no. 2

in the appendix-1.

Statement of all four witnesses:-

The statements of all the witnesses were recorded from 23.06.07 to

20.08.07 in the presence of Delinquent personnel. It was given full

opportunity to cross-examine to the Delinquent personnel from all

witnesses and the copy of the statements of the witnesses were given to

the Delinquent personnel, and he has received copy and for that it was

signed and indorsed on the main copy by the Delinquent personnel, and

verified by the Investigating Officer.

On 31.08.07 the Delinquent Personnel had examined through

question/answer during this proceeding personnel has accept his guilty for

both charges and denied to submit any oral, written or any other evidence

to the investigating officer in his defense.

Today on 07.09.07, the investigation is being ended by the Investigating

Officer, and the final report is being prepared.

(Investigating Officer)"

18. The inquiry report, it reflects that the petitioner has refused to submit

written or other evidence and did not avail the opportunity to examine or

cross-examine the witnesses. The enquiry officer concluded in the enquiry

Page | 23 that the statement of four witnesses or evidence presented and the

allegations made by the delinquent personnel during the retrial of charge-1

have been accepted and the petitioner has refused to submit any oral or

written statement or any evidence in his defense. The enquiry officer held

that from the evidence it is clear that the petitioner had consumed alcohol

on 02.04.2007 while he was on duty and then on joining the line he started

abusing. The delinquent personnel, namely, the petitioner was examined at

CHC Rani and it was found that the delinquent personnel had consumed

alcohol and to some extent were in his senses. Therefore, the allegations

made with regard to item no.1 (Charge-I) has been proved. In so far as

the charge no.2 is concerned since after evaluation of the evidences and

statements made by the witnesses, the enquiry officer concluded that

misbehavior has also been committed in the past by the delinquent

personnel may be the writ petitioner due to which he was punished again

and again and therefore the charge no.2 also stood.

19. Thereafter, the enquiry report was considered by the disciplinary

authority. The disciplinary authority, upon consideration of the inquiry

report had come to a decision that the allegations against the delinquent

personnel are of serious nature of. It is on the basis of the evidence, the

disciplinary authority had arrived at a conclusion that while on duty in a

Page | 24 highly sensitive area, the petitioner had consumed country made Liquor on

02.04.2007 and was found in a state of intoxication. The delinquent

constable used abusive language, which is against the rule of the discipline

force and such behavior is not acceptable in a discipline force like the

CRPF. The crime of the delinquent personnel is unforgivable. The

disciplinary authority also took into account that in the past minor

punishments were given to the petitioner for misconduct, which he

committed many times but no corrective attitude was adopted by the

petitioner after that and he maintained the habit of committing

misconduct. As such, exercising his powers under the provisions contained

in Rule 27 of Central Reserve Police Force (CRPF) Rules 1955 read with

section 11 (1) of the CRPF Act, 1949, the delinquent personnel, namely the

petitioner, was dismissed from service on 01.12.2007. It was held to be

effective and the petitioner is taken out from the strength of his battalion

from 01.12.2007. All the medals and ornamentations his Identity Cards

must be seized.

20. Against the order of dismissal dated 01.12.2007, the petitioner

preferred an appeal to the appellate authority, which also came to be

dismissed by the appellate authority. The appeal was preferred before the

Deputy Inspector General of Police (CRPF) Neemuch, Madhya Pradesh on

Page | 25 19.12.2017. A perusal of the appeal preferred does not reveal that there

was any ground taken by the petitioner that the enquiry was not conducted

as for the statute or that he was not given any opportunity to examine or

cross examine the witnesses. It is stated that upon receipt of the show-

cause notice, he was directed to file the reply within 15 days, but he could

not submit the same as the enquiry officer was out of station at that time

and before getting a chance to submit, he fell ill and was admitted to the

hospital on 13.10.2007. He was discharged on 29.11.2007 and he reached

the camp on 30.11.2007 and on the next day, which is 01.12.007, he was

discharged from service. This further urged that as he was punished earlier

for alleged offenses which he never committed, the punishment of

dismissal will amount to punishing the petitioner twice for the same

offense. He denied that he had taken alcohol during his duty on

02.04.2007, nor abused anybody as alleged in the show-cause notice. He

submits that he is maintaining his family with two school going children

and because of the discharge from service he is facing trouble in respect of

maintaining his family. Accordingly, he prayed before the authority for

reversal of the dismissal order and for reinstating him in service. The

appellate authority rejected his appeal by order dated 22.09.2008. The

appellate authority held that the plea of the appellant that he was not

Page | 26 given opportunity of defense is baseless and that in spite of being given

the opportunity to prefer any representation within 15 days after a copy of

the entire report was served on him the petitioner did not prefer any

representation. The appellate authority had that he got admitted in the

hospital in a planned manner. Appellate authority held that the inquiry

report was served on him on 25.09.2007 and he was admitted to hospital

on 13.10.2007. Therefore, his plea that he could not submit the enquiry

report as the enquiry officer was out of station cannot be accepted. The

appellate authority also took into account the medical report indicating the

state of the petition that he was in an inebriated condition. The earlier

punishments for misconduct committed by the petitioner were also taken

note of. The appellate authority held that he was habituated to misconduct

and disobedience and is responsible for the present condition. It was held

that the plea of the petitioner cannot be accepted as there is no logic for

retaining an indiscipline person in the service of the force. It is under such

circumstances, the application of the petitioner was rejected.

21. The basic thrust of the arguments made by the learned counsel for

the petitioner is that after the judgment of the Apex Court in Ram Lakhan

Sharma (supra) it is no longer res integra that the disciplinary proceedings,

if conducted without appointing a presenting officer, are liable to be

Page | 27 interfered with as the same are in contravention with the judgment of the

Apex Court in the law laid down therein as well as the judgments of this

Court following the law laid down by the Apex Court It is submitted that

following the judgment of Ram Lakhan Sharma (supra) this Court in

another matter arising out of disciplinary proceedings conducted by the

CRPF authorities by the judgment and order dated 01.02.2019 passed in

WA. No. 305/2019 (Union of India vs. Ex Constable GD Sri Atul Chandra

Kalita, affirmed the findings of the learning Single Judge interfering with

the enquiry conducted without appointing the presenting officer.

22. The learned counsel for the respondent, on the other hand,

vehemently argued that at the relevant point in time, there was no

requirement under the rules as well as under the statute to appoint the

presenting officer while conducting disciplinary proceedings. Learned

counsel for the respondents submits that the judgment of the Apex Court

in Ram Lakhan Sharma (supra) was rendered in the year 2018 and the

disciplinary proceedings against the petitioner, namely, Narendra Gogai,

were conducted much earlier and the petitioner was dismissed from service

on 01.12.2007.

23. Since the enquiry was conducted well prior to the law expounded by

the Apex Court and followed by this Court and at the relevant point in time

Page | 28 there was no requirement for appointment of Presenting Officer, as such

the enquiry proceedings conducted ought not to be interfered with on that

count. The order passed by the Division Bench of this Court in W.A. 305 of

2007 was also rendered on 01.02.2019 which was well after the date of

enquiry conducted in the present case. The department conducted the

inquiry strictly as per procedure. Opportunity was given to the petitioner,

the questions were put to the petitioner and sufficient opportunities were

given to cross examine the witnesses. However, as is evident from the

records as also from the pleadings filed, the petitioner did not avail of any

opportunity to file his written statements pursuant to the inquiry conducted

and did not avail the opportunity to examine the witnesses although such

opportunity was provided to the petitioner.

24. Under such circumstances, there is no infirmity in the procedure by

which the enquiry was conducted, the impugned inquiry ought not to be

interfered with and the writ petition may be set aside and quashed.

25. The pleadings and the reports presented before the Court has been

scrupulously perused. The question which is raised before the Court for a

decision in the present proceedings is whether the principles of natural

justice had been followed when the inquiry was conducted?

Page | 29

26. The principles of natural justice is inherent in every procedure that is

adopted and required to be followed by any authority. From the basic two

principles that no one shall be judge in his own laws and no decision shall

be given against a party without affording a reasonable opportunity, the

various Courts of this country, including the Apex Court has expounded the

law by incorporating various other faculties and ingredients into this

principle.

27. The basic purpose of adhering to the rules of natural justice is to

secure justice and to prevent miscarriage of justice. In the facts of the

present proceedings, it is seen that the inquiry officer was appointed as an

"Investigating Officer". The said "Investigating Officer/ Enquiry Officer

proceeded with the inquiry, examined the witnesses, called for the

documents along with the medical reports from the Headquarters in

respect of past misconducts of the petitioner. The Enquiry Officer who is

appointed to conduct a disciplinary proceeding, performs a quasi judicial

function and is required to be impartial in order to arrive at a definitive

finding in respect of the guilt of the delinquent employee vis-a-vis the

charges made against the delinquent employee. The enquiry officer is not

expected to be a mere representative of the departmental authorities.

From the records presented before the Court, it is seen that the enquiry

Page | 30 officers besides examining the witnesses also called for additional

documents as well as arrayed a fourth witness, namely Force

no.951850106 A.S.I (M) Ajay Kumar 65 Batallion C.R.P.F. This also prima

facie reflects the mind of the Enquiry Officer that the enquiry has been

proceeded with the sole objective of arriving at a guilt in respect of the

charges leveled against the delinquent employee. A careful perusal of the

records and the enquiry proceedings revealed that the Enquiry Officer

proceeded as a Presenting Officer for the department. Such procedure

adopted by the Enquiry Officer during the course of a departmental inquiry

cannot be countenance of the basic tenets of the principle of natural

justice. The principle that justice delivered must be seen to have been

delivered is well accepted, is a well accepted principle. The manner in

which the Departmental Inquiry was conducted as is evident from the

records, does not reflect the impartiality that is expected out of an enquiry

officer appointed by the department. That at the relevant point in time the

statute or the rules did not require appointment of a presenting officer, and

that the said has now been brought into effect by notification issued by the

CRPF authorities pursuant to the judgment of Ram Lakhan Sharma (supra).

But the rules of natural justice, being inherent in every procedure adopted

to enquire into the charges leveled against the delinquent employees,

Page | 31 cannot be overlooked merely because there was no requirement for

appoint a Presenting Officer.

28. As have been discussed above, the purpose of adhering to the

principles of natural justice is not only to secure justice, but to prevent the

miscarriage of justice. The procedure adopted in conducting the impugned

disciplinary proceedings against the petitioner, as is evident from the

reports, has resulted in miscarriage of justice. The very basis of leveling

the charge of misconduct against the petitioner is the episode of the

petitioner being intoxicated while on duty on 02.04.2007. Although a

photocopy of the medical report is available, there is no explanation as to

why the original medical report was not called for or the treating doctor

was not examined. As has been held in Kuruk Singh Negi (supra) although

the standard of proof in a disciplinary proceeding need not be to the extent

of the standard maintained in criminal proceedings, however, the basic

principles for proof of documents and statements under the Indian

Evidence Act of 1872, will have to be adhered to by the departmental

authorities. The charge that the petitioner was intoxicated on the given

date was required to be proved by medical reports. Production of a

photocopy of the original record cannot be accepted to be proof of the

document under the Indian Evidence Act, 1872.

Page | 32

29. The second charge leveled against the petitioner, namely misconduct

committed by the petitioner and punishments given accordingly in the past

to show that the petitioner was a habitual offender, was a charge which is

a part of the charge-sheet served on the petitioner. The lists of documents

were shown to be enclosed to the charge-sheet issued to the addition.

However, the records revealed that during the course of the inquiry certain

documents were called for by the Enquiry/Investigating officer to support

the charges leveled against the delinquent employees. Such procedure

adopted by the authority cannot be held to be in conformity with the

principles of natural justice as well as the procedure prescribed for

conducting disciplinary proceedings. Such conduct prima facie reveals that

on the day when the charges were framed and charge-sheet issued to the

petitioner, the basis for trial of charge two was not even available with the

disciplinary authority.

30. However, the fact remains that the petitioner admitted to the second

charge. There is no dispute that opportunities granted to the petitioner to

cross-examine the witnesses was declined. The Enquiry Proceedings

records revealed that specific opportunities were granted to the petitioner

to avail the opportunity of cross-examining the departmental witnesses.

However, the record reveals that he declined to do so. Therefore, it cannot

Page | 33 be said that due opportunity of testing the veracity of the prosecution

witnesses were never offered to the petitioner and thereby the same was

hit by the principles of natural justice to that extent. There is another

aspect which cannot be ignored. It is pleaded by the petitioner that he was

indeed suffering from alcohol dependence although the photocopy of the

medical record which was relied upon by the Enquiry Officer has been

sought to be disputed, no supporting medical records or reports are

produced by the petitioner to suggest that he does not suffer from alcohol

dependency and is fit to be retained as a member of the disciplined force.

The standard of discipline required to be maintained by members of any

disciplined force like the C.R.P.F cannot be undermined. The petitioner has

not been able to project that he is worthy of being retained as a member

of the disciplined force. There are categorical averments in his pleadings

that he suffered from alcohol dependence and personalty disorder and

because of which he had to undergo conservative medical treatment.

Although in his pleadings, the petitioner craved leave to produce the

relevant medical certificates at the time of hearing, no such certificate

could be produced or was produced at the time of hearing. As such on his

own admission that he suffered from alcohol dependence and leading to

personality disorder which required conservative medical treatment, there

Page | 34 is a serious doubt cast on the credibility of the petitioner that he will be

able to perform his duties to the desired level as expected of a member of

any disciplined force.

31. In conclusion, it is seen that the manner in which the enquiry

proceedings were conducted cannot be appreciated considering the fact

that the enquiry officer proceeded to act both as an arbitrator and as a

prosecutor as is evident from the records. This is not acceptable where a

disciplinary proceedings are conducted as per the mandates of the statute,

notwithstanding that at the relevant point in time there is no requirement

under the Rules to appoint any Present Officer. Ordinarily this Court would

have been inclined to interfere with the enquiry proceedings conducted and

remand the matter back for de-novo enquiry. However, the Court is

conscious of the fact that the incident alleged as well as the enquiry

conducted pertains in the year 2007 remanding the matter back to the

Department to conduct the de-novo enquiry after 16 years may not serve

the purpose as the relevant witnesses and/or documents may not be

available as on date to effectively proceed with the enquiry. Under such

circumstances, the Court is of the view that since the petitioner has

admitted the second charge as well as to his medical condition of alcohol

dependency and personality disorder and in the absence of any cogent

Page | 35 materials placed before this Court as to the condition of the petitioner

presently, this Court is of the considered view that no fruitful purpose will

be served by interfering the enquiry proceedings and remanding the same

for fresh de-novo enquiry. The Court is of the view that the ends of justice

will be met if the punishment of dismissal from service is modified to that

of compulsory retirement.

32. Accordingly, the punishment imposed by the respondent authority of

dismissal from service is altered to that of compulsory retirement which is

also prescribed under the statute. The writ petition stands disposed of in

terms of the above.

33. Pending Interlocutory application, if any, is also disposed of, in view

of the above.

34. Original records submitted to the Court are returned back.

JUDGE

Comparing Assistant

Page | 36