Kameshwar Singh, R.R. Dist. vs D.G.P.,Crpf, New Delhi And 3 Ors.
2023 Latest Caselaw 2923 Tel

        THE HON'BLE SRI JUSTICE J. SREENIVAS RAO

                WRIT PETITION No.13531 OF 2013

ORDER:

This writ petition is filed seeking for Writ of Mandamus to

declare the order in Lr.No.P.VIII-2/2010-GC-RR-EC-II dated

28.12.2011 imposing punishment of dismissal from service as

illegal, arbitrary and violation of principles of natural justice and

consequently direct the respondents to reinstate the petitioner

into service with all consequential benefits including the arrears

of salary.

2. The brief facts of the case:

2.1. The petitioner submits that he was born on

11.12.1966 in Telkap village, Rohtas District of Bihar State and

studied up to X standard from Rajkrit High School, Dalmia Nagar

of Rohtas District, Bihar State. He passed SSC in the year 1983

and obtained TC from the said school on 01.08.1983. Pursuant

to the notification issued by CRPF in the year 1986 through

newspapers and also in the employment exchange, inviting

applications for the post of Havaldar, he applied for the said post

and obtained verification certificate from the Collector and MRO

of Rohtas District on 10.06.1986. Later, basing on his

qualification, he was appointed as Havaldar (constable) in CRPF

and joined in the service on 13.06.1985 and the District Collector

issued verification letter No.903 dated 29.03.1986.

JSR, J W.P.No.13531 of 2013

2.2. Petitioner further submits that basing upon his

request, CRPF issued a service verification letter 26.07.2006

stating that he is eligible to opt VRS. Pursuant to the same,

petitioner submitted application to DIG on 30.07.2009 requesting

him to issue pension from 01.09.2009, but DIG neither released

the pension nor gave any reply. Petitioner submitted another

application to respondent No.4 on 02.09.2009 requesting them to

consider his claim for VRS. When there was no reply from

respondent No.4, petitioner approached this Court and filed

W.P.No.19923 of 2009. During Pendency of the said Writ

Petition, respondent No.4 rejected the application of the

petitioner on 30.07.2009 stating that there is an allegation of

impersonation against him by a civilian and the same would be

enquired into vide Lr.No.P-VIII-1/2009-GCRR Estt.II dated

26.09.2009 and not accepted the request for VRS.

2.3. On 19.04.2010 this Court disposed of Writ Petition

No. 19923 of 2009 granting liberty to the petitioner to question

the rejection order. On 31.05.2010 the petitioner reported to

duty at the office of respondent No.4 along with fitness certificate.

On 04.06.2010, the respondents suspended the petitioner from

service. Thereafter, on 14.06.2010 respondent No.4 made JSR, J W.P.No.13531 of 2013

preliminary enquiry and appointed one D.P.Dubey as enquiry

officer, through proceedings dated 05.05.2010 to conduct enquiry

and he had issued charge sheet on 09.08.2010, with the

following charges.

i) misconduct and neglect of duty by unauthorized absenting from duty and deserting from the camp on 07.11.2009 (FN)

ii) disobedience of order failed to rejoin duties and continued to remain unauthorized absent from 07.11.2009.

iii) Act of misconduct - impersonated and got recruited myself recruited in the force and further suppressed the registration of the criminal case in Rohtas P.S. arrested me and kept in the police custody by suppressing real identity and particulars of arrest.

2.4. He further submits that the enquiry officer, without

properly verifying the records and also without examining the

depositions of witnesses, submitted enquiry report dated

20.08.2010 stating that the charges levelled against the

petitioner are proved. The disciplinary authority, without

properly considering the explanation submitted by the petitioner

and documentary evidence on record, imposed the major

punishment of dismissal from service solely basing on the JSR, J W.P.No.13531 of 2013

enquiry report. Aggrieved by the said order, petitioner filed

appeal before the appellate authority and the same was rejected

on 18.04.2012 without giving any reasons and thereafter he filed

revision and the said revision was also rejected on 17.05.2012.

3. On behalf of the respondents, DIGP (C.C.D.) filed counter

contending that in July 2009, a postal telegram dated

06.07.2009 was received by the Commanding Officer, CRPF,

Ranga Reddy, along with copies of F.I.R. and Election Identity

Card bearing No.DJY 1022904, wherein it is stated that his

brother Ambika Singh S/o.Bipin/Vipin Singh impersonated

himself and got recruited in CRPF (MHA/GOI) as constable/GD

during 1985, as force No.850780915 CT/GD (HC/GD) of GC,

CRPF, Ranga Reddy, who involved in altercation/assault with

lathi in the name of Kameshwar Singh on 29.05.2009 and he was

detained in jail on 30.05.2009 in connection with involvement of

Criminal Case in GR.No.1185 of 2009 registered with Police

Station, Rohtas, Rohtas District, under Sections 341, 323, 419

and 420 of IPC and his bail application No.844 of 2009 was

pending for consideration.

3.1. It is further stated that the said criminal complaint JSR, J W.P.No.13531 of 2013

was verified by the District Police Authorities along with photo

identity of the delinquent and confirmed with the verification

report dated 10.12.2009 of Police Station Rohtas, obtained

through GC, CRPF, Muzaffarpur, and it is revealed that the said

Ambika Singh S/o.Bipin/Vipin Singh is serving in CRPF in the

name of HC/GD Kameshwar Singh and he suppressed his real

identity and got appointment in CRPF and he was arrested into

above crime and presently on bail. The investigation officers of

Rohtas Police Station filed charge sheet on 31.10.2009 in

criminal case No.55 of 2009 and GR.No.1185 of 2009 for the

offence under Sections 341, 329, 419, 420, 467, 468 and 471 of

IPC. Petitioner made a request for voluntary retirement and the

same was rejected by the respondents on 26.09.2009.

3.2. It is further stated that the enquiry officer after

conducting detailed enquiry submitted enquiry report stating that

charges levelled against the petitioner were proved beyond all

reasonable doubts and that the petitioner, knowing the

consequences, absconded from the duty place/camp willfully

with effect from 07.11.2009 to 30.05.2010 without any

permission/leave from the competent authority and disobeyed

the lawful orders, directions of his superiors and concealed his JSR, J W.P.No.13531 of 2013

real identity. During the course of enquiry, petitioner was given

ample opportunity to defend his case. The Disciplinary

Authority-respondent No.4, after following the due procedure as

contemplated under law, issued notice by enclosing copy of

enquiry report and after receiving explanation, rightly imposed

the punishment of dismissal from service by its order dated

28.12.2011 by giving cogent reasons and the said order was

confirmed by the appellate authority as well as revisional

authority. Therefore, the petitioner is not entitled the relief

sought in the writ petition and the same is liable to be dismissed.

4. Heard Sri C.Ramachandra Raju, learned counsel for the

petitioner, and Sri Mukarjee, learned counsel, representing

learned Deputy Solicitor General, appearing on behalf of the

respondents.

5. Submissions of the respective parties:

5.1. Learned counsel for the petitioner contended that

before imposition of punishment, the disciplinary authority ought

to have considered the enquiry report and while giving his

provisional findings on the charges, he has to issue a show-cause

notice to the petitioner calling explanation for the proposed JSR, J W.P.No.13531 of 2013

punishment. Without following the mandatory procedure, the

disciplinary authority straight away imposed the punishment and

dismissed the petitioner from service. He further contended that

the disciplinary authority framed charge No.3 i.e., impersonation,

basing on the complaint sent by a civilian. However, the

respondents have not examined the civilian to prove said charge

levelled against the petitioner. Hence, the entire proceedings in

respect of Charge No.3 are liable to be quashed. He further

contended that during the course of enquiry, the enquiry officer

addressed a letter dated 20.08.2010 under Exhibits 26 and 33 to

the Deputy Inspector directing him to meet the Superintendent of

Police, Rohtas District, and to conduct enquiry about the identity

of the petitioner and submit a report. Even before receiving the

said report, the enquiry officer submitted a report holding that

charge No.3 levelled against the petitioner is proved. In such

circumstances, the enquiry report submitted by the enquiry

officer to be ignored.

5.2. Learned counsel further contended that the

disciplinary authority relied upon the Gram Mukhia and the

member of Gram Panchayat under Exhibits 28 and 47, wherein it

is stated that they identified the person as Ambika Singh on JSR, J W.P.No.13531 of 2013

seeing his photo, which was shown to them by the departmental

person during the course of preliminary enquiry, even before

framing the charges. Further, the disciplinary authority imposed

major punishment basing on the alleged identification of S.H.O.

Rohatas Police Station and Superintendent of Police under

Ex.P.29 and 34 that the petitioner identified as Ambika Singh.

5.3. He vehemently contented that the disciplinary

authority solely relied upon the statements under Exhibits 26,

33, 28, 47, 27 and 34, which are pertaining to prior to framing of

the charges. After framing of charges, the respondents have not

adduced any evidence nor examined any witness, especially

complainant/civilian to prove charge No.3 - impersonation. In

the absence of the same, disciplinary authority is not entitled to

impose major the punishment of dismissal from service and the

entire proceedings are liable to be declared as illegal.

5.4. He further contented that the petitioner was not

accused and he was not arrested in the criminal case. The

petitioner has nothing to do with the criminal case i.e.,

C.C.No.1185 of 2009. Enquiry officer relied upon Exhibit 31 -

school living certificate issued by the Principal of the school, JSR, J W.P.No.13531 of 2013

admittedly belonging to the petitioner and the date of birth

mentioned in it is 11.12.1966. Whereas, Exhibit 41 - Election

Identity Card relied upon by the enquiry officer is in the name of

Kameshwar Singh, showing the date of birth as 01.01.1973

allegedly belonging to the complainant. At the time of

appointment, petitioner produced his school living certificate and

educational qualification certificates to the respondents. Basing

upon the said certificates, the date of birth of the petitioner was

recorded in the service records as 11.12.1966. Respondent No.4

passed order dismissing the petitioner from service only basing

upon the complaint and in the absence of any iota of evidence,

the dismissal order is liable to be set aside.

5.5. He further contented that insofar as other Charge

Nos.1 and 2 i.e., misconduct and unauthorized absence are

concerned, petitioner had submitted application under VRS

Scheme on 30.07.2009 and also produced the documentary

evidence to establish that he was sick and taken medical

treatment up to 31.05.2010. The medical certificate - Exhibit 35

issued by Osmania General Hospital was produced before the

enquiry officer, which clearly reveals that petitioner was under

medical treatment and advised to take bed rest from 08.11.2009 JSR, J W.P.No.13531 of 2013

to 30.05.2010. Without considering the said document, treating

the absence period as unauthorized absence is not permissible

under law and basing on the unauthorized absence, the

disciplinary authority ought not to have imposed major

punishment of dismissal from service.

6. Per contra, learned counsel appearing on behalf of the

respondents contended that the respondent authorities after

conducting detailed enquiry came to conclusion that the

petitioner impersonated himself as Kameshwar Singh and got

himself appointed in CRPF as constable/GD on 13.06.1985. As

soon as the respondents received compliant of a civilian through

telegram, they initiated regular enquiry by appointing enquiry

officer. The enquiry officer had issued charge sheet and

conducted enquiry by following the procedure contemplated

under law. During the course of enquiry, the enquiry officer has

given all the opportunities to the petitioner to defend his case and

followed the principles of natural justice and also considered

documentary evidence and submitted a detailed enquiry report

on 02.02.2011, wherein it is specifically stated that the charges

levelled against the petitioner were proved. He further contented

that Respondent No.4 had furnished the enquiry report to the JSR, J W.P.No.13531 of 2013

petitioner and directed him to submit his explanation.

Respondent No.4, after examining the entire records, enquiry

report and after considering the explanation submitted by the

petitioner, passed the impugned order on 28.12.2011 by giving

cogent reasons holding that petitioner has committed grave

misconduct of impersonation and also absented duties from

07.11.2009 onwards unauthorizedly. The said order was

confirmed by the appellate authority as well as the revisional

authority and the same are in accordance with the law.

Therefore, the petitioner is not entitled any relief much less the

relief sought in the writ petition, especially the scope of judicial

review is very limited to invoke the jurisdiction of this Court

under Article 226 of the Constitution of India.

7. Having considered the rival submissions made by the

respective parties and after perusal of the material available on

record, the following points arise for consideration:

i) Whether the impugned order passed by respondents dismissing the petitioner from service is sustainable under law?

ii) Whether the petitioner is entitled the relief sought in this writ petition?

JSR, J W.P.No.13531 of 2013

POINTS i AND ii:

8. From the perusal of the records, it reveals that Kameshwar

Singh was appointed as constable in CRPF on 13.06.1985. Later,

he was promoted as head constable and he completed 26 ½ years

service in CRPF. He submitted representation to the respondents

requesting to give permission for voluntary retirement (VRS) and

for that the respondents issued letter dated 26.07.2006 stating

that he is eligible to opt the same. Thereafter, he submitted

application to respondent No.4 on 30.07.2009 for releasing

pension from 01.09.2009 and also submitted another application

on 02.09.2009 requesting the respondents to consider his claim

for VRS. As there was no reply, he filed W.P.No.19923 of 2009

questioning the action of the respondents in not considering the

said representations. When the writ petition was pending,

respondent No.4 rejected the application on 30.07.2009 stating

that there is an allegation of impersonation against him by a

civilian, which would be enquired into by its letter, dated

26.09.2009. The said W.P.No.19923 of 2009 was dismissed on

19.04.2010.

9. It further appears from the record that respondent No.4

issued proceedings on 04.06.2010 suspending the petitioner from JSR, J W.P.No.13531 of 2013

the service and initiated disciplinary proceedings on 05.05.2010

by appointing one D.P. Dubey as enquiry officer. The enquiry

officer issued a charge sheet dated 09.08.2010. The enquiry

officer after conducting enquiry submitted enquiry report dated

20.08.2010 with a finding that the charges levelled against the

petitioner are proved. The disciplinary authority issued notice by

enclosing copy of the enquiry report directing the petitioner to

submit objections, if any. The disciplinary authority, after

considering the explanation submitted by the petitioner, passed

the impugned order dated 28.12.2011 imposing the punishment

of dismissal from service. The dismissal order was confirmed by

the appellate authority as well as revisional authority by its

orders dated 18.04.2012 and 17.05.2012 respectively.

10. The specific contention of the respondents in respect of

charge No.3 is concerned, in July 2009 a postal telegram dated

06.07.2009 was received by the Commanding Officer, CRPF,

Ranga Reddy along with copies of FIR and Election Identity Card

bearing No.DJY 1022904 from unknown person claiming himself

to be Kameshwar Singh, brother of Ambika Singh, and the said

Ambika Singh S/o Shri Bipin/Vipin Singh impersonated himself

as Kameshwar Singh, S/o Shri Vipin (Bipin Singh) and got JSR, J W.P.No.13531 of 2013

recruited in CRPF as Constable during 1985 with Force

No.850780915 and the said Ambika Singh altercated and

assaulted a person on 29.05.2009 and he was arrested and

detained in police custody on 30.05.2009 in connection with

Criminal Case in G.R.No.1185 of 2009 registered in Rohtas Police

Station, under Sections 341, 323, 419 and 420 of IPC and in the

said case, the investigation officers have filed charge sheet on

31.10.2009 and the said case is pending as on today.

11. It is very much relevant to mention here that in respect of

charge No.3-impersonation is concerned, the respondents have

not examined the civilian, who made a complaint of

impersonation, and in the absence of the same, enquiry officer

come to conclusion that the petitioner committed an offence of

impersonation. It is also relevant to mention here that the

specific case of the respondents is that a criminal case No.55 of

2009 and GR.No.1185 of 2009 registered against the petitioner in

Police Station Rohtas (District - Rohtas) for the offence under

Sections 341, 323, 419, 420, 467, 468 and 471 of IPC and the

same is pending before the competent criminal Court. Even

before deciding the case, the disciplinary authority decided that

the petitioner committed an offence of impersonation and the JSR, J W.P.No.13531 of 2013

same is not permissible under law. It is settled principle of law

that if the charges levelled against an employee in departmental

proceedings and criminal proceedings are similar, the

disciplinary authority shall wait till the competent Court decide

the said case.

12. In Central Bank of India Thr. vs. Dragendra Singh

Jadon 1 the Hon'ble Apex Court held that:

5. By an award dated 10-9-2008, the Tribunal held that the appellant Bank was not able to prove the charge of impersonation against the respondent and therefore, the dismissal was unjustified. The Tribunal, however, found that the respondent had gainfully been employed throughout the interregnum period after termination, and, therefore, limited relief to reinstatement without back wages. The appellants contend that there was no specific or general direction for continuity of service of the respondent or consequential benefits.

18. In our considered view, the learned Single Bench of the High Court rightly granted relief to the respondent. By the impugned judgment and order [Central Bank of India v. Dragendra Singh Jadon, 2017 SCC OnLine MP 2334], the Division Bench of the High Court dismissed the appeal of the appellants and directed that the respondent would have to be treated in service from the date of removal till the date of actual reinstatement in service and would accordingly be entitled to

1 (2022) 8 SCC 378 JSR, J W.P.No.13531 of 2013

seniority and the right to be considered for promotion, but would not be entitled to back wages.

The principle laid down by the Hon'ble Apex Court in Central

Bank of India (supra) that the punishment of dismissal from

service is not justified, as it is a major punishment and the same

is disproportionate and the petitioner rendered more than 26

years of service in the respondent organization.

13. Insofar as charge Nos.1 and 2 are concerned, the record

reveals that the petitioner submitted application for grant of

leave. However, in the absence of any authorization/permission

from the competent authority, he was absented the duties from

07.11.2009 to 30.05.2010. During the course of enquiry, the

petitioner has not produced any evidence to establish that due to

the particular reasons he was absented from duties. The

petitioner has not disputed that during the course of enquiry, the

enquiry officer has not given proper opportunity to him to defend

the case. The enquiry officer had conducted detailed enquiry by

giving all opportunities to the petitioner and submitted enquiry

report by giving specific findings that charge Nos.1 and 2 levelled

against the petitioner were proved. The disciplinary authority JSR, J W.P.No.13531 of 2013

had issued notice to the petitioner directing him to submit

explanation by furnishing the enquiry report. After due

verification of the records, enquiry report and considering the

representation submitted by the petitioner, the disciplinary

authority passed an order removing the petitioner from services

and the said order was confirmed by the appellate authority and

the revisional authority. Hence, the punishment of dismissal

from service against the petitioner is highly excessive and

disproportionate.

14. Taking into consideration the facts and circumstances of

the case and also the principle laid down in the judgment stated

supra, the impugned order passed by the disciplinary authority

dated 28.12.2011 dismissing the petitioner from service, which

was confirmed by the appellate authority dated 18.04.2012 and

the revisional authority dated 17.05.2012, is liable to be modified

holding that the petitioner is entitled for reinstatement with

continuity of service, however he is not entitled any back wages,

and accordingly, the respondents are directed to reinstate the

petitioner into service within a period of two (2) months from the

date of receipt of a copy of this order.

JSR, J W.P.No.13531 of 2013

15. With the above direction, the writ petition is allowed in part.

No costs.

Miscellaneous applications, if any pending, shall stand

closed.

______________________ J. SREENIVAS RAO, J

Date : 06.10.2023 mar