IN THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT : SERVICE MATTER WP (C) No.4604/1996 Reserved on: 11.07.2008 Date of decision: 11.08.2008 SOHAN LAL KAPOOR Through: Major K.Ramesh, Advocate..PETITIONER Versus UNION OF INDIA and ORS Through: Ms.Saroj Bidawat, Advocate....RESPONDENTS CORAM: HON'BLE MR. JUSTICE SANJAY KISHAN KAUL HON BLE MR. JUSTICE MOOL CHAND GARG SANJAY KISHAN KAUL, J. 1. The petitioner was appointed as a constable in the CRPF on 04.07.1971 and held various posts till he was sent on deputation to the IB in May, 1979. The petitioner was thereafter sent on deputation to the Ministry of External Affairs, Lagos, Nigeria and further to the Consulate General of India, New York, America. The petitioner was serving in the Consulate from 27.11.1989 when he suffered serious head injuries on 11.01.1991 on account of a stated attack by two coloured Americans. The petitioner had to be rushed to the hospital and was subsequently sent back to India on 31.05.1991. The petitioner joined his duty in the 71st Battalion at Moga on 08.07.1991. The departmental enquiry commenced regarding the incident of 1991 in New Jersey on 15.12.1995 which exonerated the petitioner of the allegations made against him. The allegation against the petitioner was that he was
working privately in the Exxon Gas Station unauthorizedly. Further allegations were also made that he had excess assets disproportionate to his income and had given an application to the American Justice Department for obtaining immigration visa without prior permission of the Ministry. He was also alleged to have stolen some money and tape-recorder from one coemployee. 2. The petitioner was exonerated on account of lack of evidence. The conduct and award received by the petitioner during his service period as also the appreciation letters showed that the petitioner had remained a disciplined and promising member of the force and it is in view thereof that the disciplinary authority exonerated the petitioner for want of evidence by giving him the benefit of doubt. One Sh. P.K.Singh, Assistant Commandant, was however directed to go through the case of the petitioner without assistance of petitioner, who submitted his report some time in May, 1996. This resulted in an order of removal from service of the petitioner on 30.06.1996. The appeal filed by the petitioner thereafter also failed on 02.09.1996. 3. A perusal of the Order dated 30.06.1996 shows that the delay in holding the enquiry was on account of the fact that on several occasions, the matter was taken up with higher ups of the CRPF to supply evidence and list of witnesses, but the same could not be provided by the Ministry of External Affairs or the CRPF till October, 1995. The Enquiry Officer found that no concrete evidence was available to pin the petitioner. The disciplinary authority thereafter agreed with the report of the Enquiry Officer and the outcome of the enquiry was sent to DIGP, CRPF who in turn referred it to IGP, N/S CRPF. DIGP, CRPF opined that the idea of holding an enquiry against the petitioner may be dropped for want of evidence but the DG, CRPF did not agree with the same and directed that disciplinary proceedings be initiated against the petitioner under Article 311(2)(b) of the Indian Constitution read with Rule 27(cc)(iii) of CRPF Rules, 1955 ( CRPF Rules for short). 4. The impugned order passed by the commandant thereafter noted the allegations against the petitioner and found that the charges levelled and substantiated are of serious nature and it may not be possible to hold a formal enquiry into the case at a belated stage and thus the aforesaid provision should be invoked. It is in view thereof that the penalty of removal from service was imposed waiving the necessity of holding a formal enquiry
into the case as not practicable. The appeal order dated 02.09.1996 more or less reiterates what is stated hereinabove. 5. The only plea raised by learned counsel for the petitioner is that the enquiry having been held and there being found no material against the petitioner, could the dismissal order be passed against the petitioner by invoking Article 311(2) (b) of the Indian Constitution read with Rule 27(cc)(iii) of CRPF Rules. The aforesaid provisions read as under: 311. Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State : - 2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges: Provided that where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of evidence adduced during such enquiry and it shall not be necessary to give such person any opportunity of making representation n the penalty proposed: Provided further that this clause shall not apply a) b) Where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry; and 27. Procedure for the Award of punishments.. cc) Notwithstanding anything contained in this rule i).. ii). iii) Where the Director General is satisfied that in the interest of security of the State, it is not expedient to hold any enquiry in the manner provided in these rules, the authority competent to impose the penalty may consider the circumstances of the case and make such orders thereon as it deems fit. 6. A reading of the aforesaid provisions shows that there are two eventualities in which the provisions can be invoked i) Where it is not reasonably practicable to hold an enquiry and ii) Where in the interest of security of State, it is not expedient to hold such an enquiry. 7. It is in view thereof that a specific query was posed to learned counsel for the respondents as to under which category would the case of the petitioner fall. The factual matrix is not in dispute that an enquiry was held against the petitioner and the Enquiry Officer found that there was lack of evidence to prove the charges against the petitioner. The opinion to drop the proceedings was not accepted by the DG, CRPF. It is not a case where on the basis of the material, the disciplinary authority or the appellate authority came to a
finding different from the one arrived at by the Enquiry Officer to reach to a conclusion of guilt as against acquittal. Thus there was unanimity on the question that there was lack of sufficient material to substantiate the charges against the petitioner in the enquiry. Learned counsel for the respondents could not really canvass that the matter in issue was such that, in the interest of security of State, it was not expedient to hold such an enquiry. Learned counsel thus sought to bring the case within the parameters of an exception where it was not reasonably practicable to hold an enquiry. 8. We are unable to accept the aforesaid plea of learned counsel for the respondents. The present case is not one where the disciplinary authority came to a decision that holding an enquiry against the petitioner was not reasonably practicable. An enquiry was directed and was held. Such enquiry was held almost four years after the accident. The only reason given for such delay in holding the enquiry is lack of material evidence and, during this period of time, the petitioner continued to serve the respondents. On the enquiry being held, sufficient evidence was not found. It is not possible to accept the aforesaid plea where after holding of an enquiry a conclusion on merits is reached that the charges against the petitioner have not been proved on account of lack of sufficient evidence. The result of such a clean chit, which the petitioner was entitled to, would be obliterated by seeking recourse to the provision that of an enquiry was not reasonably practicable. If the enquiry had already been held, where is the question of the same being not reasonably practicable. We cannot appreciate the stand of the respondents that the petitioner, who had a long service record and other than the incident relating to the enquiry had no adverse record and further worked for four years on coming back to India, can be thrown out of service in this manner. The superior authorities did not consider it proper to remand the matter back for further re- consideration on the basis of the additional evidence which may be brought on record. The mandate was issued to use the aforesaid provisions and thus the Enquiry Officer, after such a mandate, only repeated the charges and then stated that the charges levelled and substantiated were of serious nature while on the same evidence, it had been earlier found that there was lack of sufficient evidence to prove the charges. If the respondents were unable to gather sufficient evidence, they were to blame themselves especially as they delayed the matter for almost four years. The stand of the respondents is that they repeatedly asked for evidence from the Consulate in the USA as also from their superiors in the CRPF, but the evidence was not coming forth. If the evidence was not forthcoming, then there could not have been any preconceived notion of
guilt merely on account of seriousness of the allegations and the petitioner being punished for the same. 9. The result of the aforesaid is that the dismissal of the petitioner from service cannot be sustained and is accordingly quashed and the petitioner would be entitled to all the consequential benefits. The petitioner would have retired from service, as informed, in August, 2005 and thus there is no question of reinstatement of the petitioner in service, but the petitioner would be entitled to payment of the monetary benefits which would have accrued to the petitioner as also the retirement benefits on his retirement. 10. A writ of mandamus is issued quashing the impugned order dated 30.06.1996 with a direction that the petitioner, as a consequence of the aforesaid, be notionally retired from service and deemed to have retired on his date of superannuation and thus would be entitled to all the monetary benefits of service including the retirement benefits. The amount be remitted within a period of three months from today. 11. The petition is allowed leaving the parties to bear their own costs. Sd/- SANJAY KISHAN KAUL, J Sd/- MOOL CHAND GARG, J.