Dinesh Kumar Yadav Aged About 33 ... vs The Union Of India
2023 Latest Caselaw 3200 Jhar

                                           L.P.A. No. 180 of 2022
                          1



   IN THE HIGH COURT OF JHARKHAND AT RANCHI
               L.P.A. No. 180 of 2022

Dinesh Kumar Yadav aged about 33 years S/o Khublal
Yadav R/o village-Godhar Road, Dhansar P.O. + P.S. -
Dhansar, Dist-Dhanbad, Jharkhand.
                          ....    Appellant/ Petitioner
                      Versus
1.The Union of India, through Director General, Central
Reserve Police Force, Raksha Bhawan, Sansad Marg, PO +
PS Sansad Marg, New Delhi.
2.The Inspector General, Central Reserve Police Force,
Jharkhand Sector at Ranchi, CTC Campus, Tiril Asharam
Road, P.O. + P.S. Dhurwa, Dist. Ranchi.
3.The Deputy Inspector General, Central Reserve Police
Force, Sembo, P.O. + P.S. Dhurwa, District Ranchi.
4.The Commandant, Group Centre, Central Reserve Police
Force, Sembo, P.O. + P.S. Dhurwa, District Ranchi.
                      ...    Respondents/ Respondents
                         -------

CORAM:HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON'BLE MR. JUSTICE NAVNEET KUMAR

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For the Appellant : Mr. Pradyumna Poddar, Advocate For the Respondents : Mr. Anil Kumar, ASGI Ms. Nitu Sinha, CGC.

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th Order No.06/Dated 28 August, 2023 Per Sujit Narayan Prasad, J:

1. The instant intra-court appeal, under Clause 10 of the

Letters Patent, is directed against judgment/order dated

09.03.2021 passed by learned Single Judge in W.P. (S) No.

7024 of 2016, whereby and whereunder order dated

07.07.2014 passed by the original authority under Rule

5[1] of the Central Civil Services (Temporary Service)

Rules,1965 by which the appellant has been terminated

from service as also the appellate order dated 14.11.2014

by which order dated 07.07.2014 passed by original L.P.A. No. 180 of 2022

authority has been affirmed, has been refused to be

interfered with.

2. Brief facts of the case, as per the pleadings made in writ

petition, reads as under:

The petitioner was appointed as Head Constable

(Ministerial) in Central Reserve Police Force vide

appointment letter dated 16.11.2013. It is the case of the

petitioner that vide letter dated 19.05.2014, eleven persons

including the petitioner were selected for fourteen weeks'

training at Group Centre, CRPF, Durgapur which was

scheduled to be started from 02.06.2014. In the meanwhile,

on 05.07.2014, a letter was issued by the respondent no.3

wherein it was stated that the petitioner tried to commit

suicide by hanging himself from ceiling fan and as such,

one Assistant Commandant was directed to conduct the

enquiry for the same and submit the report. The enquiry

report was submitted by the Assistant Commandant on

06.07.2014, which was accepted by the disciplinary

authority and accordingly, the petitioner was dismissed

from service vide order dated 07.07.2014 under Sub-Rule 1

of Rule 5 of the Central Civil Services (Temporary Services),

Rules, 1965, against which, the petitioner preferred the

appeal which was also dismissed by order dated

14.11.2014. Aggrieved thereof, the petitioner approached

this Court by filing writ petition being W.P. (S) No. 7024 of L.P.A. No. 180 of 2022

2016, which was dismissed vide order dated 09.03.2021,

hence, the present appeal.

3. It is evident from the factual aspects, as mentioned

above, that the petitioner was appointed as Head Constable

(Ministerial) in Central Reserve Police Force vide

appointment letter dated 16.11.2013. While working as

such as a probationer, he was terminated form service vide

order dated 07.07.2014 under Rule 1 of Rule 5 of the

Central Civil Services (Temporary Services), Rules, 1965,

against which, the petitioner preferred the appeal which

was also dismissed by order dated 14.11.2014. The

petitioner being aggrieved with the order passed by the

disciplinary and appellate authority approached this Court

by filing writ petition being W.P. (S) No. 7024 of 2016,

which was dismissed vide order dated 09.03.2021.

4. Learned counsel for the appellant-petitioner has

submitted that if the order passed by the appellate

authority will be taken into consideration the termination of

the writ petitioner from service cannot be construed to be

simplicitor in nature rather it is punitive since the service

of the writ petitioner was dispensed with on the ground of

allegation of committing suicide and snatching away

weapon of co-constable posted in the said unit. Therefore,

even though in original order dated 07.07.2014 there is no

stipulation about any misconduct but the appellate order L.P.A. No. 180 of 2022

suggests that the order of termination is punitive in nature.

It has further been contended that even if the original order

is not said to be punitive in nature but the moment the

original order has been affirmed by the appellate authority

the original order will be said to be merged with the order

passed by appellate authority on the basis of 'principle of

merger' and hence the appellate order will remain in

existence and from its perusal it would be evident that the

action of dispensing with the services of the writ petitioner

is punitive and hence the provision as conferred to the

appointing authority as under 5 (1) of the Central Civil

Services (Temporary Services), Rules, 1965 will not be

applicable.

5. Learned counsel for the appellant has submitted that

since the learned Single Judge has not appreciated these

facts as such, the order passed by learned Single Judge

requires interference by this Court.

6. Per contra, Mr. Anil Kumar, learned ASGI being assisted

by Ms. Nitu Sinha, learned CGC, appearing for the

respondents-Union of India has defended the action of the

administrative authorities on the ground that the action of

commission of committing suicide since is admitted and

hence whatever is being argued by learned counsel for the

appellant to show interference with the impugned order

regarding providing an opportunity of hearing since order is L.P.A. No. 180 of 2022

punitive in nature will not be applicable. Such submission

has been made based upon the fact that in a case of

admitted guilt there is no need to conduct any inquiry.

7. Learned counsel for the respondents-UOI in view of

aforesaid ground has submitted that since the appellant

was working in a disciplined force in para-military force

and he has attempted to commit suicide, which has been

considered to be serious in nature taking into consideration

the fact that the writ petitioner was having some issue of

mind-set of embarrassed mind and hence he has been

considered to be detrimental to the entire discipline force

and as such if the decision has been taken for dispensing

with the service of the petitioner it cannot be said to suffer

from error.

8. Learned counsel for the appellant in response thereto has

submitted that even accepting that the guilt of committing

suicide is accepted but so far as the second charge of

snatching the weapon from co-constable is concerned that

was not admitted and hence the principle laid down that in

a case of admitted guilt there is no need to initiate

departmental enquiry will not be applicable in the facts and

circumstances of this case.

9. We have heard learned counsel for the parties, perused

the documents available on record as also the finding

recorded by learned Single Judge.

L.P.A. No. 180 of 2022

10. Admitted fact in this case is that the appellant was

appointed as head constable under CRPF on petitioner was

appointed as Head Constable (Ministerial) in Central

Reserve Police Force vide appointment letter dated

16.11.2013. While working as such as a probationer, on

05.07.2014 he tried to commit suicide by hanging himself

from ceiling fan but his life was saved with the help of co-

constables. Therefore, the delinquent when failed to commit

suicide he tried to snatch the rifle of co-constable but did

not get success. The service of the appellant since was not

confirmed rather he was on probation, therefore, the

competent authority by taking recourse of Rule 5(1) of the

Central Civil Services (Temporary Services), Rules, 1965

terminated the petitioner from services.

11. It is not in dispute that the power conferred to the

appointing authority under the provisions of Rule 5(1) of

the Central Civil Services (Temporary Services), Rules, 1965

is to be dealt with such probationers who are yet to be

confirmed in service but their services is not required for

the establishment and in such circumstance the authority

has been conferred with the power to dispense with the

services of the Civilian but it has been adopted under

Section 16 of the CRPF Act, 1949 therefore the order was

passed dispensing with service of the petitioner by

terminating him from service, which was challenged by L.P.A. No. 180 of 2022

filing appeal before appellate authority which was also

dismissed taking into consideration the entire conduct of

the petitioner.

12. It is not in dispute, as would appear from the order

passed by the appellate authority that while considering the

decision taken by the original authority in exercise of power

conferred under Rule 5(1) of the Central Civil Services

(Temporary Services), Rules, 1965, the consideration has

been given regarding conduct of the writ petitioner i.e.,

attempt to commit suicide and snatching of rifle of the co-

constable. The appellate authority based upon such

conduct of the appellant has declined to interfere with the

impugned order.

13. The argument has been advanced on behalf of

appellant that attempt to commit suicide is admitted by the

appellant but trying to snatch away the rifle by the

appellant of co-constable has not been admitted. Therefore,

if the order of termination has been passed by taking into

consideration the aforesaid conduct of attempt to commit

suicide and tried to snatch away the rifle even though the

attempt to commit suicide is accepted but trying to snatch

away the rifle since is not in admission, therefore, a regular

enquiry was required to be conducted.

14. We have considered the aforesaid argument. The

fact of admission of committing attempt to suicide is not in L.P.A. No. 180 of 2022

dispute. The law is well settled that in a case of fact as per

the allegation if not disputed there is no need to conduct

enquiry.

15. The Hon'ble Apex Court in the case of Dr. Anil

Bajaj Vs. Post graduate Institute of Medical Education

& Research and Another [(2002) 2 SCC 240] has been

pleased to hold at paragraph 3 as under:

3. It is an admitted fact that the appellant did not come back till after 1998. It is also an admitted fact that his request for extension was rejected specifically in 1997. This being the position the principle of estoppel, apart from anything else, would clearly be applicable in a case like this. A person who gets an advantage, namely, of a sanction to go abroad on service on the condition that he will come back within two years and if he does not come back, his lien will automatically be regarded as being terminated, he then cannot turn around and challenge the said condition on the basis of which sanction to go abroad was granted. Of course, if there is a dispute with regard to the question whether he had in fact come back within the stipulated period or an extension had been specifically granted an inquiry may be necessary but where the facts are not in dispute the inquiry would be an empty formality. In any case the principle of estoppel would clearly apply and the High Court was right in dismissing the writ petition filed by the appellant wherein he had challenged his termination.

[Emphasis supplied]

16. Similar view has been taken in Gurjeewan

Garewal (Dr.) v. Sumitra Dash (Dr.) [(2004) 5 SCC 263]

wherein by taking reference of case of Dr. Anil Bajaj Vs.

Post graduate Institute of Medical Education & L.P.A. No. 180 of 2022

Research and Another (supra) it has been held that

where the facts are in dispute the inquiry would be an

empty formality.

17. Likewise, the Hon'ble Apex Court in the case of

Viveka Nand Sethi v. Chairman, J&K Bank Ltd., (2005)

5 SCC 337 at paragraph 22 has been held as under:

"22. The principle of natural justice, it is trite, is no unruly

horse. When facts are admitted, an enquiry would be an

empty formality. Even the principle of estoppel will apply.

[See Gurjeewan Garewal (Dr.) v. Dr. Sumitra Dash [(2004) 5

SCC 263 : 2004 SCC (L&S) 747] .] "

18. The Hon'ble Apex Court further in the judgment

rendered in State of U.P. Vs. Sudhir Kumar Singh and

Others [2020 SCC OnLine SC 847], wherein view made

in Viveka Nand Sethi v. Chairman, J&K Bank Ltd

(supra) has been reiterated and it has been held that the

principle of natural justice, it is trite, is no unruly horse.

When facts are admitted, an enquiry would be

an empty formality. Relevant paragraph of which is

quoted as under:

39. An analysis of the aforesaid judgments thus reveals: (1) Natural justice is a flexible tool in the hands of the judiciary to reach out in fit cases to remedy injustice. The breach of the audi alteram partem rule cannot by itself, without more, lead to the conclusion that prejudice is thereby caused. (2) Where procedural and/or substantive provisions of law embody the principles of natural justice, their infraction per se does not lead to invalidity of the orders passed. Here again, prejudice must be caused to the litigant, except in the L.P.A. No. 180 of 2022

case of a mandatory provision of law which is conceived not only in individual interest, but also in public interest. (3) No prejudice is caused to the person complaining of the breach of natural justice where such person does not dispute the case against him or it. This can happen by reason of estoppel, acquiescence, waiver and by way of non-challenge or non-denial or admission of facts, in cases in which the Court finds on facts that no real prejudice can therefore be said to have been caused to the person complaining of the breach of natural justice. (4) In cases where facts can be stated to be admitted or indisputable, and only one conclusion is possible, the Court does not pass futile orders of setting aside or remand when there is, in fact, no prejudice caused. This conclusion must be drawn by the Court on an appraisal of the facts of a case, and not by the authority who denies natural justice to a person. (5) The "prejudice" exception must be more than a mere apprehension or even a reasonable suspicion of a litigant. It should exist as a matter of fact, or be based upon a definite inference of likelihood of prejudice flowing from the non- observance of natural justice.

19. The fact of attempt to commit suicide is admitted

herein. Therefore, in view of aforesaid settled position of law

there is no need to go for enquiry, as per law laid down by

Hon'ble Apex Court in the case cases cited in the preceding

paragraph.

20. But so far as argument that the conduct of

snatching away of rifle of the co-constable is not admitted

and as such regular enquiry is required since snatching

away of rifle of co-constable amounts to gross misconduct

for which a regular enquiry is to be conducted, hence, the L.P.A. No. 180 of 2022

applicability on the aforesaid ground of the Rules, 1965 will

not be there

21. We are not in dispute what has been argued on

behalf of appellant but the question is that even leaving

apart the allegation of trying to snatch away rifle can

attempt to commit suicide by member of disciplined force

be construed to be misconduct and whether if the said guilt

has been admitted by the appellant whether the appellant

is fit to be kept in member of the disciplined force.

22. This Court is of the view that even the other

misconduct of snatching away from the co-constable is

ignored then also according to our considered view the

attempt to commit suicide is a serious misconduct that too

for a member of a disciplined force.

23. The aforesaid conduct is admitted and hence if such

decision was taken in view of admission on the part of

appellant and if such decision was taken in view of fact that

the said misconduct has been admitted in exercise of power

conferred under Rule 5(1) of the Rules, 1965 the same

according to our considered view cannot be said to suffer

from error.

24. We after considering the facts and discussions

made hereinabove in entirety and coming to the order

impugned passed by learned Single Judge has found

therefrom that the thoughtful consideration so far as the L.P.A. No. 180 of 2022

conduct of attempt to commit suicide has elaborately been

considered and considering the same found the appellant

not to be a member of disciplined force, requires no

interference.

25. We, on the basis of aforesaid discussion, are of the

view that the order passed by the learned Single Judge

suffers from no error.

26. Accordingly, the appeal fails and is dismissed.

24. Pending, Interlocutory Application, if any, stands

disposed of.

(Sujit Narayan Prasad, J.)

(Navneet Kumar, J.) Alankar/-

N.A.F.R.