Baliram vs The Divisional Organiser and Another

V.P. Gupta, J.—Bali Ram Petitioner has filed this writ petition under Articles 226 and 227 of the Constitution of India for quashing the order, by which he has been discharged from service of the Central Reserve Police Force. /S.S.B. (H.P.) Battalion.

The brief facts, as narrated in the petition, are that the Petitioner joined the Himachal Pradesh Police, 2nd Battalion as a constable-driver on 16th November, 1967, and was posted to 1st (H.P.) S.S.B. Battalion, Kumarsain, with effect from 1st October, 1968. It is further alleged that he was informed by a memorandum, dated 23rd September, 1972, that an enquiry against him was proposed to be held under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 (hereinafter shortly called the Rules of 1965), and with this memorandum, the Petitioner also received a copy of the statement of articles of charges. The copy of the memorandum is Annexure A and that of articles of charges is Annexure A-l to the writ petition. The Petitioner submitted his reply (copy of which is Annexure R.B.) to the said charges. It is further alleged that no enquiry was thereafter held against the Petitioner, but on 31st October, 1972, the Petitioner was given a discharge certificate whereby his services were dispensed with (copy of the said certificate is Annexure C). It is also alleged that the discharge from service of the Petitioner is tantamount to dismissal from service and a stigma has been attached to him without giving any opportunity to the Petitioner of being heard against the charges. It is also alleged that no enquiry as envisaged under Rule 14 of the Rules of 1965 was ever held although the same was initiated against him and that no show cause notice was served upon him before ordering the discharge from service. It is also alleged that the Petitioner was not put under suspension, that the Petitioner belonged to H.P.P. (Armed Police) and he could not be discharged in this manner without a proper procedure and that the order of discharge is illegal and without jurisdiction. The Petitioner has also claimed that the Respondents be ordered to pay him the salary and allowances, etc. which are due to him and the order of discharge passed against him be quashed.

A reply to the writ petition was filed on behalf of the Respondents. It was admitted that from 1st October, 1968, the Petitioner was absorbed in the 1st (H.P.) S.S.B. Battalion, Government of India, which afterwards was merged into S.S.B. It is further admitted that the Petitioner was charge-sheeted vide memorandum, dated 23rd September, 1972, u/s 27 of the Central Reserve Police Force Act, 1949 (hereinafter shortly called the C.R.P. Act) and that as the Petitioner had admitted the charge in the written defence, therefore, the order of his discharge from service was rightly passed. The Respondents allege that an enquiry against the Petitioner was to be conducted in accordance with the C.R.P. Act and not in accordance with the Rules of 1965. It was also alleged that the Petitioner was employed on purely temporary basis.

No rejoinder to the return was filed by the Petitioner.

I have heard Shri B.B. Vaid learned Counsel for the Petitioner and Miss Kamlesh Sharma learned Counsel for the Respondents.

The learned Counsel for the Petitioner contended that no enquiry against the Petitioner could be held under the Rules of 1965 and the charge-sheet along with, the articles of charges delivered to the Petitioner (copies of which are Annexure A and A-l) is illegal. According to the learned Counsel the Respondents had themselves admitted that no enquiry under the Rules of 1965 could be held and the provisions of the C.R.P. Act and the Central Reserve Police Force Rules, 1955 (hereinafter shortly called the C.R.P. Rules) were applicable to Petitioner.

The next contention of the learned Counsel for the Petitioner is that if any offence u/s 10(n) of the C.R.P. Act was committed then the only punishment which could be awarded to the Petitioner was imprisonment for a term which may extend to one year or with fine which may extend to three months'' pay or with both. It was contended that the Petitioner could not be discharged from service for committing an offence u/s 10 of the C.R.P. Act. The learned Counsel further contended that even if departmental action against the Petitioner was sought to be taken then the provisions of Rule 27 of the C.R.P. Rules had to be adopted and in this particular case this procedure has not been followed. It was also contended that the articles of charges levelled against the Petitioner are altogether vague and indefinite and that the Petitioner in his reply/explanation has nowhere admitted that he is guilty of the charges levelled against him.

The learned Counsel for the Respondents conceded that the Rules of 1965 are not applicable to the Petitioner and that only the provisions of the C.R.P. Act and the Rules are applicable to him. It was, however, contended that the mentioning of wrong rule in Annexure A is immaterial because no prejudice has been caused to the Petitioner by this irregularity. The learned Counsel further contended that the services of the Petitioner have rightly been terminated because he had committed an offence u/s 10(n) of the C.R.P. Act, and had failed to maintain good order and discipline which is required from an employee of the Central Reserve Police Force personnel.

I have considered the contentions of the learned Counsel for the parties and have also gone through the petition and the annexures attached to the same.

There is no dispute that the Petitioner was serving in the Central Reserve Police Force [S.S.B. (H.P.) Battalion] as a driver. It is also admitted that the Petitioner gave a lift in Government vehicle No. W/1652 Dodge Ton while employed as a constable-driver in the S.S.B. Battalion on 4-4-1971 to one Smt. Murtu Devi and her father. This vehicle was returning from Sainj to Kumarsain and the Petitioner was driving the same. The charges against the Petitioner as contained in Annexure A-l are as follows:

Article I

That the said 63613 Bali Ram while functioning as Constable-Driver I (H.P.) S.S.B. Battalion on 4 April, 71 gave unauthorised lift to Smt. Murtu Devi and her father in the Government Vehicle No. W/1652 Dodge 1 Ton on return journey from Sainj to Kumarsain contrary to the rules and thereby committed an act prejudicial to good order and discipline.

Article II

Guilty of an act under C.R.P. Act Section 10(n). An act prejudicial to good order and discipline in that the said 63613 Constable Bali Ram while functioning as constable-driver I (H.P.) S.S.B. Battalion on 4 April, 71 gave unauthorised lift to Smt. Murtu Devi and her father in the Government Vehicle No. W/1652 Dodge 1 Ton on return journey from Sainj to Kumarsain contrary to the rules.

The Petitioner sent a reply to these charges and admitted the fact that he gave a lift to Smt. Murtu Devi and her father. The Petitioner at the same time explained that Smt. Murtu Devi was not in a position to walk, that she showed the Petitioner blisters on her feet and her inability to walk. The Petitioner has further explained that as the father of Smt. Murtu Devi was accompanying Smt. Murtu Devi, therefore, taking pity upon these persons and seeing to their poverty and helplessness he gave a lift to these persons on humanitarian grounds without charging anything from them. The Petitioner has further alleged in his explanation/reply that Section 10(n) of the C.R.P. Act is inapplicable because according to the Petitioner no offence as provided in the said Section has been committed by him, and that the Petitioner had no knowledge that giving a lift to these persons in such circumstances would constitute any misconduct.

After receiving this explanation/reply of the Petitioner, the Deputy Commandant presumed that the Petitioner has admitted the guilt and he ordered that the Petitioner be produced in the orderly room for suitable punishment, and the Commandant thereafter passed the following order:

"As Constable Bali Ram by giving free lift in Government vehicle without obtaining permission from his superior officers, has acted in a manner which is against good order and force discipline, he has committed an offence under C.R.P. Act Section 10(n) and as such will be produced in the Commandants orderly room for this offence committed by him.

Thereafter it appears that a discharge certificate, dated 31-10-72 (copy of which is Annexure C to the writ petition) was given to the Petitioner. The Petitioner filed an appeal to the Divisional Organiser and the copy of the appeal is Annexure E. However, vide memorandum, dated 26-2-1973, the appeal of the Petitioner was rejected on the ground that the enquiry-conducted against the Petitioner is in order and that the appeal did not contain any valid grounds for consideration.

As has been admitted by the learned Counsel for the parties and in the return, the procedure for awarding any punishment is to be governed by the C.R.P. Act or by the C.R.P. Rules. Relevant portion of Section 10 of the C.R.P. Act reads as follows:

Less heinous offences.-Every member of the Force who-

(a) to (l) XXX XXX (m) absents himself without leave, or without sufficient cause overstays leave granted to him; or

(n) is guilty of any act or omission which, though not specified in this Act, is prejudicial to good order and discipline; or

(o) and (p) XXX XXX shall be punishable with imprisonment for a term which may extend to one year, or with one which may extend to three months'' pay, or with both.

Therefore, it is clear from the reading of Section 10 that this procedure of awarding punishment under Sub-clause (n) was never followed and the punishment which is provided under this Section was never awarded to the Petitioner.

From the return it appears that departmental proceedings under Rule 27 of the C.R.P. Rules were taken against the Petitioner and it is stated that because the Petitioner had admitted the main charge levelled against him, therefore, it was presumed that the Petitioner had pleaded guilty to the charges and as a result of the same he was discharged from service.

Under Rule 27(c) of the C.R.P. Rules a procedure for conducting departmental enquiry has been given which reads as follows:

(1) The substance of the accusation shall be reduced to the form of a written charge, which should be as precise as possible. The charge shall be read out to the accused and a copy of it given to him at least 48 hours before the commencement of the enquiry.

(2) After the commencement of the enquiry the accused shall be asked to enter a plea of "Guilty" or "Not Guilty", after which evidence necessary to establish the charge shall be let in. The evidence shall be material to the charge and may either be oral or documentary.

If oral,

(i) it shall be direct;

(ii) it shall be recorded by the officer conducting the enquiry himself in the presence of the accused;

(iii) the accused shall be allowed to cross-examine the witnesses.

(3) When documents arc relied upon in support of the charge, they shall be put in evidence as exhibits and the accused shall, before he is called upon to make his defence, be allowed to inspect such exhibits.

(4) The accused shall then be examined and his statement recorded by the officer conducting the enquiry. If the accused has pleaded guilty and does not challenge the evidence on record, the proceedings shall be closed for orders. If he pleads "not guilty", he shall be required to file a written statement, and a list of such witnesses as he may wish to cite in his defence within such period, which shall in any case be not less than a fortnight, as the officer conducting the enquiry may deem reasonable in the circumstances of the case. If he declines to file a written statement, he shall again be examined by the officer conducting the enquiry on the expiry of the period allowed.

(5) If the accused refused to cite any witness or to produce any evidence in his defence, the proceedings shall be closed for orders. If he produces any evidence the office conducting the enquiry shall proceed to record the evidence. If the officer conducting the enquiry considers that the evidence of any witness or any document which the accused wants to produce in his defence is not material to the issues involved in the case, he may refuse to call such witness or to allow such document to be produced in evidence, but in all such cases he must briefly record his reasons for considering the evidence inadmissible. When all relevant evidence has been brought on record the proceedings shall be closed for orders.

(6) If the Commandant has himself held the enquiry, he shall record his findings and pass orders, where he has power to do so. If the enquiry has been held by any officer other than the Commandant, the officer conducting the enquiry shall forward his report together with the proceedings, to the Commandant, who shall record his findings and pass orders, where he has power to do so.

(7) In case it is proposed to impose the penalty of dismissal, or reduction in rank on a member of the Force, the authority competent to impose the penalty shall supply the member concerned with a copy of the report of the enquiry and call upon him to show cause within a reasonable time not less than one week and not exceeding one month against the particular penalty proposed to be inflicted. Any representation made by him shall be taken into consideration before passing the final orders.

Both the learned Counsel for the parties accepted that the departmental enquiry against the Petitioner could be conducted under the above said provisions of Rule 27. After perusal of the allegations in the writ petition and the annexures attached to the same, and the return filed by the Respondents, I find that the enquiry has not been conducted in accordance with the procedure as laid down in Rule 27(c) (supra). Under Sub-Clause j(2) the Petitioner had to be asked as to whether he pleads guilty; or not guilty to the charge levelled against him. In this case, no such question was put to the Petitioner and, in fact, the Petitioner never pleaded guilty to the charge(s). The Petitioner only admitted a certain fact of having given a lift to Smt. Murtu Devi and her father, but denied that he is guilty of the charge levelled against him. Even if it is presumed that the Petitioner pleaded guilty to tie charge by implication then also the evidence necessary to establish the charge against the Petitioner had to be recorded. This evidence could be either oral or documentary. In the case in hand, there is nothing on record to prove that any such evidence to establish the charge against the Petitioner was ever recorded. After recording of this evidence the Petitioner was to be examined by the officer conducting the enquiry, as provided under Sub-clause (4) of Rule 27(c) (supra), but no such statement of the Petitioner was recorded in the present case. After the completion of the enquiry a show cause notice had to be served upon the Petitioner as provided in such-Clauses (6) land (7) of Rule 27(c) (supra). However, in the instant case, there his nothing on record to prove that any such show cause notice ,was ever given to the Petitioner before terminating his services.

In view of the above facts, I am of the opinion that the departmental enquiry (if any) conducted against the Petitioner is not in accordance with the procedure prescribed under Rule 27 of the C.R.P. Rules. Therefore, in these circumstances the order of discharge from service passed against the Petitioner cannot be upheld and as such I order that the discharge/dismissal/ removal of the Petitioner from service is illegal, with the result that this impugned order is quashed.

No other point was urged before me by the learned Counsel for the parties.

The result, therefore, is that the writ petition is accepted and the impugned order of discharge/dismissal/removal of the Petitioner from service of the Respondent is quashed. The Respondents are directed to pay Rs. 150/- as costs of this petition to the Petitioner.