Ravi Kumar Singh vs The Union Of India And Ors
2022 Latest Caselaw 4358 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                   Civil Writ Jurisdiction Case No.18523 of 2018
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Ravi Kumar Singh Son of Sri Mithilesh Singh, resident of Village- Amiour Bigha, P.S.- Madanpur, District- Aurangabad, presently residing at Flat No. 117, Housing Colony, P.S.- Dhanbad, District- Dhanbad.

... ... Petitioner/s Versus

1. The Union Of India and Ors

2. The Inspector General of Central Reserve Police, Force, Patna.

3. The Deputy Inspector General of Central Reserve Police Force, Patna.

4. The Commandant, 205, Cobra Battalion, Barwadih, Barachatti, Gaya, Bihar.

5. The Deputy Commandant, 205, Cobra Battalion, Barwadih, Barachatti, Gaya, Bihar.

6. The Assistant Commandant, 205, Cobra Battalion, Barwadih, Barachatti, Gaya, Bihar.

... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s : Mr. Niranjan Kumar, Adv Mr. Kumar Kishan, Adv For the Respondent/s : Mr. Ravindra Kumar Sharma, Adv Mr. Awadhesh Kumar Pandey, Adv ====================================================== CORAM: HONOURABLE MR. JUSTICE MADHURESH PRASAD CAV JUDGMENT Date : 08-08-2022

Heard the parties.

2. The petitioner seeks quashing of office order dated

23.08.2017 issued by the Commandment, 205, Cobra Battalion,

whereby and whereunder the petitioner has been removed from

service. The petitioner also seeks reinstatement with all

consequential benefits.

3. The brief factual background is that petitioner was

appointed as a constable (general duty) on 20.06.2012 and Patna High Court CWJC No.18523 of 2018 dt.08-08-2022

posted under 205, Cobra Battalion at Barachatti in the district of

Gaya. Charge memo dated 04.08.2016, containing three charges,

was served upon the petitioner. The charges in the charge memo

were; (i) of availing 'out-pass' and leaving the battalion without

seeking permission for 'out-pass' in accordance with the

existing rules, returning after the period prescribed for 'out-pass'

in an inebriated condition. (ii) After returning to the camp, when

the Deputy Commandment (Admin) questioned him, he got

infuriated and hurled abuses against his superior authorities and

his colleagues, and (iii) He climbed on the railing of the roof top

of the four storey building and threatened that he would commit

suicide by jumping from the roof top, again while hurling

abuses.

4. In spite of best efforts to pacify the petitioner,

petitioner did not relent. The petitioner's misconduct was

reported to the local police also leading to institution of FIR No.

179 of 2016 on 28.05.2016 itself at the Barachatti police station

in District Gaya. Petitioner was also arrested; and the criminal

proceedings arising out of Barachatti P.S Case No. 179/2016, is

pending.

5. Petitioner claims to have submitted his reply to the

Inquiry Officer, copy of which has been enclosed as Annexure Patna High Court CWJC No.18523 of 2018 dt.08-08-2022

-8 to the writ petition. The Inquiry Officer found the charges to

be proved and submitted his inquiry report on 13.03.2017.

Disciplinary Authority agreed with the findings of the Inquiry

Officer and exercising powers under Rule 27 of the CRPF Rules

1955 imposed the penalty of removal from service upon the

petitioner vide office order dated 23.08.2017, which is

impugned in the instant writ petition.

6. It is specific case of the respondents in the counter-

affidavit, that the petitioner has served in the Force for three

years. He very well knew that DIG (Admin) in the office of the

Inspector General of police, Cobra Sector, CRPF, New Delhi

(hereinafter referred to as 'DIG (Admin) New Delhi') was his

Appellate Authority. However, the petitioner sent his appeal

dated 01.09.2018, to DIG, Range, CRPF, Patna (hereinafter

referred to as 'DIG, Range, Patna') without mentioning his full

address and without sending a copy of the same to 205, Cobra

Battalion, as required under the procedure. The petitioner did

not prefer his appeal in accordance with procedure prescribed.

7. The petitioner's counsel has submitted that the

inquiry was conducted without considering his reply to the

charge memo and behind his back. The proceedings and the

resultant punishment of petitioner's removal from service, are Patna High Court CWJC No.18523 of 2018 dt.08-08-2022

thus unsustainable. The petitioner had made an application for

'out-pass' on the fateful day(28.05.2016), which was duly

recommended by the competent authority, which is evident from

copy of the application (Annexure - 3 of the writ petition).

Lastly, it is submitted that copy of the inquiry report was not

served on the petitioner to enable him to consider the same and

submit his comments on the inquiry report. Petitioner's counsel

has thus alleged violation of law as laid down in decision of the

Apex Court in the case of Managing Director, ECIL,

Hyderabad v. B. Karunakar reported in (1993) 4 SCC 727. It is

submitted that these lapses are sufficient to conclude that the

proceedings were conducted against the petitioner in gross

violation of principles of natural justice and the prescribed

procedure for conduct of inquiry against the petitioner.

8. The specific stand of the respondents in the

counter-affidavit, is that the petitioner has left the camp without

obtaining 'out-pass' in accordance with the settled and

established procedure. He has returned to the camp in an

inebriated condition. He has indulged in hurling abuses against

his superiors and colleagues within the camp and created

commotion by climbing on the roof top of four storey building

and threatening to commit suicide by jumping from the roof. Patna High Court CWJC No.18523 of 2018 dt.08-08-2022

The petitioner has, by his actions, undermined the atmosphere

of discipline in the camp of the force. He has exhibited utter

disregard for the force, its member, and his own superiors. Such

conduct brings the entire camp to disrupt and jeopardizes the

sense of discipline, which is a major strength for any armed and

uniform force. The petitioner's actions are unbecoming of a

member of the force and his continuance in the force is

undesirable by any standards.

9. The petitioner did not respond to the charge memo.

He has not submitted any written statement of defence. The

petitioner was afforded all opportunities to state his defence, but

he has chosen not to participate in the proceedings by raising

any defence before the Inquiry Officer. The petitioner's utter

disregard for rules, procedure, discipline, is apparent also from

the fact that he has preferred his appeal, but not before the

competent authority, and not in accordance with the rule. It is

submitted that since the petitioner has chosen not to file his

written statement denying the charges, he is estopped from

alleging that he was not afforded any opportunity, or that the

inquiry was conducted behind his back in violation of the

principles of natural justice. The punishment has been imposed

by following the procedure under Rule 27 of the Central Patna High Court CWJC No.18523 of 2018 dt.08-08-2022

Reserve Police Force Rules, 1955. Since, the procedure has

been followed and petitioner has chosen not to respond to the

charge memo, this Court may not consider the petitioner's

factual submission on the merits of the charges, in view of the

scope of judicial review, which is limited to the decision making

process and not to the decision itself.

10. Insofar as the petitioner's claim that his 'out-pass'

request was approved by the competent authority, it is submitted

that the petitioner has not followed the procedure for 'out-pass'.

The petitioner's application was merely forwarded to the

competent authority; and without prior permission/sanction of

'out-pass' by the competent authority, the petitioner left the unit

headquarters on 28.05.2016 to report back after the otherwise

prescribed time limit (2000 Hours).

11. On consideration of the rival submissions, this

court would observe that Annexure purporting to be the

petitioner's reply to the charge memo (Annexure - 6), cannot be

accepted as being the petitioner's reply to the charge memo. The

same does not contain any reference to the charge memo nor

does it contain any response to the charges communicated to the

petitioner vide charge memo dated 04.08.2016. There is also no

date mentioned on Annexure-6, from which it can be concluded Patna High Court CWJC No.18523 of 2018 dt.08-08-2022

that the same was ever submitted in response to the charge

memo.

12. In view of specific denial of the respondent-

authorities in the counter-affidavit that petitioner did not

respond to the charge memo, this Court is not inclined or

persuaded to accept that Annexure-6 is petitioner's response to

the charge memo.

13. The Petitioner's appeal (Annexure - 8), from bare

perusal, appears to have been preferred before the DIG, Range,

Patna, whereas it is a specific and undisputed stand of

respondents in their counter-affidavit that his appellate authority

was DIG (Admin), New Delhi. The appeal was also required to

be submitted through his last unit (205, Cobra Battalion, CRPF),

which has not been done. This Court is thus inclined to accept

submission of the respondent-authorities to the effect that the

petitioner has not preferred any appeal in accordance with

Rules.

14. The specific averments regarding non-submission

of reply/written statement of defence to the charge memo and

non-filing of appeal before the appellate authority, are met with

bald denials by the petitioner in his rejoinder by merely stating

that the statements are misconceived and incorrect. From copy Patna High Court CWJC No.18523 of 2018 dt.08-08-2022

of appeal (Annexure - 8), it is apparent that the same was sent

by post on 02.08.2018 from the Post-Office situated in Patna

High Court and has been addressed to the DIG, Range, Patna.

15. The stand of the respondents that the petitioner has

chosen not to avail the opportunity granted before the

conducting officer or to prefer appeal in accordance with rules,

therefore, in the opinion of this Court, based on the documents,

is correct.

16. The law is well settled that when an individual

chooses not to avail the opportunity as required by the principles

of natural justice, it is considered that he has waived his right

and is estopped from assailing the decision making process on

the ground of non-compliance with the principle of natural

justice.

17. Judgment of Apex Court in this regard, in the case

of Board of Directors, Himachal Pradesh Transport

Corporation & Anr. v. K.C. Rahi passed in (2008) 11 SCC 502,

is worth taking note of at this juncture. Relevant extracts of the

judgment are being reproduced;

"7. The principle of natural justice cannot be put in

a straitjacket formula. Its application depends upon the

facts and circumstances of each case. To sustain a Patna High Court CWJC No.18523 of 2018 dt.08-08-2022

complaint of non-compliance with the principle of

natural justice, one must establish that he has been

prejudiced thereby for non-compliance with principle of

natural justice.

8. In the instant case we have been taken through

various documents and also from the representation

dated 19-10-1993 filed by the respondent himself it would

clearly show that he knew that a departmental enquiry

was initiated against him yet he chose not to participate

in the enquiry proceedings at his own risk. In such event

plea of principle of natural justice is deemed to have been

waived and he is estopped from raising the question of

non-compliance with principles of natural justice. In the

representation submitted by him on 19-10-1993 the

subject itself reads "DEPARTMENTAL ENQUIRIES". It is

stated at the Bar that the respondent is a law graduate,

therefore, he cannot take a plea of ignorance of law.

Ignorance of law is no excuse much less by a person who

is a law graduate himself."

18. The Court is, therefore, of the considered view that

the petitioner has not availed the opportunities granted to him

before the conducting officer by not responding to the charge Patna High Court CWJC No.18523 of 2018 dt.08-08-2022

memo. He has also not availed remedy of appeal before the

Appellate Authority as prescribed in the Rules.

19. This Court would, therefore, conclude that the

petitioner has waived his right/s to allege violation of principles

of natural justice or that the procedure was not followed.

20. Before parting with the judgment, this Court

would observe that as member of a disciplined force, petitioner

was expected to follow the rules, his expected conduct was of a

very high degree of discipline. While dealing with findings of

act of lapse committed by members of the Sima Suraksha Bal

(SSB), the Hon'ble Apex Court recently in the case of Anil

Kumar Upadhyay v. Director General, SSB & Ors. passed in

2022 SCC OnLine SC 478 has considered this aspect of the

matter. Extract of paragraph 23 of the judgment which is useful

in the instant case and is being reproduced.

"23. ................ As a member of the disciplined

force - SSB, he was expected to follow the rules. He was

apprehended inside the Mahila Barrack by six female

constables. As observed by this Court in the case of Diler

Singh (supra), a member of the disciplined force is

expected to follow the rules, have control over his mind

and passion, guard his instincts and feelings and not Patna High Court CWJC No.18523 of 2018 dt.08-08-2022

allow his feelings to fly in a fancy. The nature of

misconduct which has been committed by the appellant

stands proved and is unpardonable. Therefore, when the

disciplinary authority considered it appropriate to punish

him with the penalty of 'removal from service', which is

confirmed by the appellate authority, thereafter it was not

open for the learned Single Judge to interfere with the

order of punishment imposed by the disciplinary

authority."

21. The totality of the facts/circumstances, viewed

keeping in background the settle legal position arising out of

two decisions of the Hon'ble Apex Court in the case of K.C.

Rahi (supra) and Anil Kumar Upadhyay (supra), this Court is

clearly of the opinion that punishment of removal from service

does not require any interference.

22. Writ petition is devoid of merit and is dismissed.

(Madhuresh Prasad, J) SUMIT/-

AFR/NAFR                NAFR
CAV DATE                20.07.2022
Uploading Date          08.08.2022
Transmission Date       NA