Dismissed

Union of India v. Ramesh Lal

Chhattisgarh HC22 Apr 2022WA/124/2022

Case brief

AI extract

What is this about?

The Division Bench dismissed the writ appeal challenging the Single Judge's order that set aside a CISF employee's dismissal. The court held that holding the enquiry in jail within 24 hours violated natural justice and the acquittal was honourable, refusing to distinguish relevant precedents cited by the appellants.

What did the court decide?

The writ appeal was dismissed at the admission stage following the Single Judge's order setting aside the dismissal and directing reinstatement.

Union of India Vs Ramesh Lal — Pension and Retirement Benefits | Chhattisgarh HC (2022)

W.A. No. 124 of 2022

AFR

HIGH COURT OF CHHATTISGARH, BILASPUR Judgment reserved on : 14/03/2022

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Judgment delivered on : 22 /04/2022

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Writ Appeal No. 124 of 2022

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Union of India, Through The Secretary, Ministry of Home, North Block New Delhi.

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The Inspector General (WS), (Revisionary Authority) Central Industrial Security Force, West Zone Headquarters, RCFL Complex, Chembur, Mumbai -400074

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The Dy. Inspector General, (Appellate Authority) Central Industrial Security Force, West Zone Headquarters, RCFL Complex, Chembur, Munbai -400074

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The Commandant, (Disciplinary Authority) Central Industrial Security Force, 3rd Reserve Battalion, Bhilai, District Durg.

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---- Appellants

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Versus

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Ramesh Lal S/o Shri Kishan Singh, Ex. CISF Member No. 851300412, 3rd Reserve Batallion, then Resident at Quarter No. 1/163, CISF - URAI, District Durg, Chhattisgarh.

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---- Respondent/Writ Petitioner

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(Cause-title taken from Case Information System) Writ Appeal under Section 2 (1) of the Chhattisgarh High Court (Appeal to Division Bench) Act, 2006

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For Appellants : Shri Ramakant Mishra, Assistant Solicitor General For Respondent/Writ Petitioner : Smt. Renu Kochar, Advocate

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Hon'ble Shri Arup Kumar Goswami, Chief Justice Hon'ble Shri Gautam Chourdiya, Judge

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C.A.V. Judgment

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Per Gautam Chourdiya, Judge

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1. Challenge in this writ appeal is to the legality, validity and correctness of the order dated 27.09.2021 passed by the learned Single Judge in Writ Petition (S) No. 1847/2008 allowing the writ petition filed by the respondent/writ petitioner whereby the order of dismissal from services of the writ petitioner has been set aside and he is directed to be

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W.A. No. 124 of 2022

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reinstated in services with all consequential benefits except backwages if he has not crossed the age of superannuation. This apart, the writ petitioner was also allowed to make representation qua backwages.

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2. Brief facts of the case are that the writ petitioner/respondent Rameshlal was appointed as Constable in the CISF and was posted at Bhilai as Constable No. 851300412. He was deployed on Reenforcement duty at CISF Unit BIOP Dep-5 from CISF 3^rd Reserve Battalion at Bacheli. During the aforesaid deployment of the writ petitioner at Bacheli, he was sanctioned 15 days casual leave from 12.05.2006 to 30.05.2006. During the leave period, on 21.05.2006, the Nagarnar Police arrested the writ petitioner as he was found in illegal possession of 3.5 Kgs contraband ( ganja ) and Crime No. 78/2006 was registered against him for offence under Section 20 (b) (ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, 'the NDPS Act'). The said information was sent to the Deputy Commandant, Central Industrial Security Force, Unit BIOP Dep-5 by the Superintendent of Police, Bastar-Jagdalpur and consequently, the writ petitioner was placed under suspension by the order of the competent authority. Thereafter, on 12.09.2006, disciplinary proceedings were initiated against the writ petitioner. Office of appellant No.4 issued an enquiry notice dated 29.01.2007 to the writ petitioner for conducting enquiry on the next date i.e. 30.01.2007 at Central Jail, Jagdalpur, which was completed on 01.03.2007. Meanwhile, vide judgment dated 19.04.2007, the jurisdictional criminal Court acquitted the writ petitioner of the charge under Section 20 (b)

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(ii)(B) of the NDPS Act. Thereafter, on 21.04.2007, appellant No.4/Disciplinary Authority, finding the charges proved against the writ petitioner, inflicted the penalty of dismissal from service upon him with disqualification for future employment under the government under Rule 34 (i) of the CISF Rules, 2001.

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3. Against the said final order dated 21.04.2007, the writ petitioner preferred an appeal to the Appellate Authority/Appellant No.3 which was rejected on 31.08.2007. Further, the review petition filed by him was also dismissed on 26.11.2007 by Revisional Authority/Appellant No.2.

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4. The writ petitioner being aggrieved by the orders dated 21.04.2007, 31.08.2007 & 26.11.2007 preferred the writ petition i.e. W.P.(S) No. 1847/2008 under Article 226/227 of the Constitution of India which was allowed by the learned Single Judge and the order dismissing the writ petitioner from service was set aside and he was directed to be reinstated in service with all consequential benefits except back-wages if he has not crossed the age of superannuation. It was observed that if he has crossed the age of superannuation, he would be entitled to service benefits till the date of superannuation. It has been further observed that the question of back-wages will be considered by the competent authority taking into consideration all the relevant material on record within two months from the date of receipt of record and that the writ petitioner would also be allowed to make representation qua back-wages. However, liberty to the appellants to hold enquiry against the writ petitioner was not given in view of the fact that the matter is old one and the order of the disciplinary authority was passed on

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W.A. No. 124 of 2022

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21.04.2007 i.e. more than 14 years back.

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5. Shri Ramakant Mishra, learned Assistant Solicitor General appearing for the appellants, submitted that the learned Single Judge has wrongly held that the appellants had not given proper opportunity of hearing or defence to the writ petitioner. He submitted that it is true that the writ petitioner has been acquitted of the charge under the NDPS Act by the Special Court, but his acquittal was on technical grounds and not on the basis of appreciation of evidence and that he was not honourably acquitted. The learned Single Judge also failed to appreciate the fact that the writ petitioner was provided proper and ample opportunities for his defence. He further submitted that the delinquent employee, who was a member of a disciplined armed force, was found in illegal possession of 3.5 Kgs ganja and all the fora i.e. Disciplinary Authority, Appellate Authority and Revisional Authority had passed order keeping in view the fact that despite being afforded with a fair and reasonable opportunity of hearing and defence, the writ petitioner miserably failed to disprove the charges levelled against him and that the entire departmental enquiry proceedings were conducted strictly in accordance with law. It is further contended that it is well settled principle of law that the verdict of the criminal trial does not conclude the disciplinary enquiry which is not governed by the proof of beyond reasonable doubt or by the strict rules of evidence as is applicable in the criminal trial. The disciplinary proceedings are governed by the principle of preponderance of probabilities and as such, in the case of the writ petitioner, the appellants, considering the overall material available against the writ petitioner and his

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W.A. No. 124 of 2022

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misconduct, rightly dismissed him from the services. Therefore, the impugned order passed by the learned Single Judge being bad in law is liable to be set aside. Reliance has been placed on the judgments of the Hon'ble Supreme Court in the matter of The State of Rajasthan & Ors. Vs. Heem Singh, in Civil Appeal No. 3340 of 2020 and in the case of Union of India & Ors. Vs. Dalbir Singh, in Civil Appeal No. 5848 of 2021 .

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6. Smt. Renu Kochar, learned Counsel appearing for the respondent/writ petitioner, submitted that the enquiry notice was issued to the writ petitioner on 29.01.2007 for conducting the enquiry on the next date i.e. 30.01.2007 and he was directed to produce the names of defence assistants, list of documents which he intends to inspect or receive as also the list of defence witnesses with their consent, etc. Admittedly, during the departmental enquiry, the writ petitioner was confined in Central Jail. The manner in which the entire enquiry was conducted against the writ petitioner demonstrates that no opportunity of hearing, much less a reasonable opportunity of hearing, was afforded to the writ petitioner to defend his case. The learned Single Judge, considering all the relevant aspects of the matter, has rightly allowed the writ petition by the impugned order which requires no interference in this writ appeal. She also submitted that the writ petitioner was honourably acquitted of the charge under Section 20 (b) (ii)(B) of the NDPS Act by the Special Judge in Special Case No. 13/2006 after due appreciation of the entire oral and documentary evidence. The Special Judge has mentioned in Para-13 of the judgment that the evidence adduced against the writ petitioner by the prosecution does not prove

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the charge levelled against him at all. She further submitted that departmental enquiry against the writ petitioner was mainly based on the statements of D.S. Kadiyam, Assistant Sub-Inspector and Mohan Patel, Reader in the office of Superintendent of Police, Jagdalpur whereas the trial Judge in its judgment has categorically observed that the conduct of Investigating Officer D.S. Kadiyam is doubtful and investigation carried out by him is utterly defective.

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7. Heard learned counsel for the parties and perused the material available on record.

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8. It is not in dispute that while the writ petitioner was confined in Central Jail, Jagdalpur in connection with offence under Section 20 (b) (ii)(B) of the NDPS Act, he was served with an enquiry notice on 29.01.2007 by office of appellant No.4 for conducting the enquiry against him on 30.01.2007 and was directed to appear before Enquiry Officer, to produce the names of defence assistants, if he so desires, along with their consent letter/willingness certificate; to produce the list of documents in writing which he intends to inspect or receive, if any, and was also directed to produce the list of defence witnesses with their consent letter in writing, if any. The departmental enquiry was held in Central Jail, Jagdalpur on day-to-day basis. The statement of the writ petitioner was recorded on 01.03.2007 and entire proceedings were completed on the same day. Thus, considering the manner in which the entire departmental enquiry proceeding has been conducted against the writ petitioner in a hurry, it is crystal clear that no proper opportunity of hearing or to engage a defence assistant or to adduce defence evidence was afforded to the writ petitioner and as such, the

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very essential principle of natural justice has been violated in this case.

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The learned Single Judge has observed in the impugned order that it is virtually impossible for a person who is lodged in jail and facing criminal trial to collect defence documents, seek consent of defence assistants; obtain their willingness; to consult the counsel; to seek permission for inspection of documents and to produce list of defence witness with consent in writing. It was further observed by the learned Single Judge that the appellants did not bring on record any material to establish that the jail authorities allowed the writ petitioner to take steps for preparation of departmental enquiry like taking the services of defence assistants/assistance of counsel to file reply to the charge sheet/to prepare defence etc. No material has been brought on record that the 4^th respondent (appellant No.4 herein) made any attempt to ensure permission from the jail authority allowing the writ petitioner to take steps for effective representation in the department enquiry. Thus, keeping in view the judgments of the Hon'ble Supreme Court in the cases of State of U.P. Vs. Shatrughan Lal and another, JT 1998 (6) SC 55 & State Bank of Patiala and others Vs. S.K. Sharma, AIR 1996 SC 1669 and in the matter of Sawarna Transport Co. Ltd. Vs. Appellate Authority Nagpur and others, AIR 1956 Nagpur 235 , the learned Single Judge recorded a finding that no reasonable opportunity was afforded to the writ petitioner to defend himself in the departmental enquiry and consequently, set aside the order of dismissal from services of the writ petitioner.

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9. It is a well settled principle of law that the approach and the objective in the criminal proceedings and the disciplinary proceedings is

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W.A. No. 124 of 2022

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altogether distinct and different. In criminal law, the burden of proof is on the prosecution to establish its case against the accused beyond all reasonable doubt whereas in departmental enquiry the charges are to be proved on the basis of preponderance of probability and that acquittal of the delinquent employee by a criminal court does not ipso facto absolve him from the liability under the disciplinary jurisdiction of the department.

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10. So far as judgments relied upon by the learned counsel for the appellants are concerned, the same being distinguishable on facts are of no help to the appellants.

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11. This Court finds no substance in the argument of learned counsel for the appellants that acquittal of the writ petitioner by the trial Court was not honourable one but was on technical grounds. The trial Court having regard to the nature and quality of evidence adduced by the prosecution, the manner in which the entire investigation was carried out, arrived at a finding that the entire evidence adduced by the prosecution does not prove the guilt of the accused/writ petitioner at all and as such, the acquittal of the writ petitioner was honourable one and not by extending him benefit of doubt.

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12. Thus, considering the manner in which the entire departmental enquiry proceedings were conducted at a short notice in the jail premises itself where the writ petitioner was confined, it is apparent that the writ petitioner was deprived of a fair, reasonable and proper opportunity to defend himself, cross-examine the departmental witnesses, to prepare list of documents to be inspected or obtained from the Inquiry Officer, engage defence assistants etc. The learned Single Judge has

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9 W.A. No. 124 of 2022

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elaborately discussed all these aspects in Paras 15 & 16 of the impugned order. We find no good reason to take a different view in the matter.

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13. On the basis of aforesaid discussions, we do not find any illegality or infirmity in the impugned order passed by the learned Single Judge. The writ appeal being without any substance is liable to be dismissed at the admission stage itself and is, accordingly, dismissed.

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Sd/Sd/-

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(Arup Kumar Goswami) (Gautam Chourdiya) Chief Justice Judge

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vatti

Union of India v. Ramesh Lal

Case brief

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Union of India v. Ramesh Lal

Case brief

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