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SUPREME COURT OF INDIA
Anil R. Dave, V. Gopala Gowda, C. Nagappan, JJ.
Brajendra Singh Yambem – Appellant
Versus
Union of India and Anr. – Respondents
Civil Appeal No. 8323 of 2016 (Arising Out of SLP(C) No. 30907 of 2013) With Civil Appeal No. 8324 of 2016 (Arising out of SLP(C) No. 10092 of 2014).
Decided On : 26-08-2016
(1996) 9 SCC 395; (1999) 3 SCC 422 – Relied upon
(1996) 2 SCC 305 – Distinguished
(1990) 4 SCC 314; AIR 1993 SC 1585; (1969) 1 SCC 502; AIR 1965 SC 1103 – Referred
(b) Constitution of India – Articles 77(3), 166(3) and 309 – Powers under these provisions operate in completely different fields – Rules framed in exercise of power under Articles 77(3) and 166(3) cannot be compared with Rules framed under Article 309 – Statutory exercise of power by the President of India under Rules 9(2) (b)(i) and (ii) of the CCS (Pension) Rules, 1972 cannot be equated with power exercised under Article 77(2) of the Constitution of India – Executive Order under Rules 9(2) (b)(i) and (ii) amenable to judicial review under Article 226 and 32. (Para 39)
(1973) 4 SCC 225 – Relied upon
(c) Constitution of India – Article – Disciplinary action quashed on point of law – However, looking to seriousness of charges, i.e., loss of AK-47 rifle with ammunition and appellant’s involvement in trafficking of ganja, respondents given liberty to continue with disciplinary proceeding and complete it within six months. (Para 42)
Facts of the case:
The appellant was serving as a regular Commandant of 61st Battalion, CRPF and at the time of incidents, was posted at Mantripukhri, Imphal.
He is alleged to be involved in two cases. The first case relates to missing of arms and ammunition. The second case relates to the alleged supply of contraband ganja, by 11 CRPF personnel posted in the unit of the appellant.
On 28.05.1997, the Deputy Inspector General of Police (OPS), CRPF, Imphal directed the appellant to submit a written statement of defence in connection with the lapse in arms and ammunition case.
The appellant submitted his written statement on 07.04.1998, explaining the reasons which resulted in the loss of the said weapon and ammunition.
By letter dated 24.06.1998, the Deputy Inspector General CRPF, Imphal, on the basis of the conclusion arrived at by the internal Court of Inquiry, issued a warning to the appellant to be more careful and also ordered for a sum of L 3,750/- to be recovered from the appellant in lieu of the lost weapon.
Subsequently, the penalty inflicted upon him was withdrawn and major penalty proceedings were initiated and Memorandum of Charges dated 23.06.1999 was issued to the appellant. Subsequently, pursuant to the Presidential Order dated 14.10.1999, a regular departmental inquiry was ordered in connection with the said incident of the loss of AK-47 Rifle along with its ammunition.
The appellant filed Writ Petition by questioning the validity of the said Memorandum of Charges dated 15.03.1999.
The single Judge allowed the Writ Petition.
In the meanwhile, the appellant retired from service as a regular Commandant/Police Officer, CRPF on 31.08.2006.
The respondent-Union of India preferred Writ Appeal. The Division Bench dismissed the appeal, observing that it was open for the Disciplinary Authority to initiate fresh action in the matter against the appellant by complying with the principles of natural justice.
Accordingly, on 22.08.2008, the respondents issued another Memorandum of Charges to the appellant in pursuance of the sanction accorded by the President of India under Rule 9(2)(b)(i) of the Central Civil Services (Pension) Rules, 1972 for initiating departmental inquiry proceedings against him in accordance with the procedure laid down in Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 and directed him to submit his written statement of defence to the said Memorandum of charges.
The appellant filed Writ Petition(C) questioning the issuance of the Memorandum of Charges.
In the meanwhile, another set of disciplinary proceedings had been initiated against the appellant in connection with the arrest of 11 personnel and seizure of two trucks of the unit of the appellant carrying contraband ganja. The allegation against the appellant was that he tried to cover up the same and that the said act of the appellant amounted to a violation of the Rules 3(1)(i),(ii) &(iii) of CCS (Conduct) Rules, 1964. The departmental enquiry was initiated against him on 14.05.1998.
The appellant filed W.P. which was allowed. The single Judge, however, granted liberty to the Disciplinary Authority to initiate departmental enquiry afresh against the appellant after complying with the directions given in the judgment.
The respondents filed Writ Appeal which was dismissed.
Thereafter, the said Memorandum of Charges dated 14.05.1998 was withdrawn by the respondents, and another Memorandum of Charges dated 16.10.2009 was issued.
The appellant filed Writ Petition(C).
As the legal issue was same in both the Writ Petitions, they were heard together and disposed of by the learned single Judge vide common judgment and order dated 01.09.2010. The single Judge quashed the Memorandum of Charges dated 22.08.2008 and 16.10.2009 and allowed the above Writ Petitions filed by the appellant.
The Division Bench of the High Court allowed the appeals and set aside the order of the learned single Judge and upheld the decision of the respondents to hold departmental enquiry against the appellant.
Finding of the Court:
The findings recorded by the Division Bench in the impugned judgment are erroneous in law and are liable to be set aside.
The disciplinary proceedings initiated by the disciplinary authority after obtaining sanction from the President of India under Rule 9(2)(b)(i) of the CCS (Pension) Rules, 1972 are liable to be quashed.
Result: Appeals partly allowed.
JUDGMENT
V. Gopala Gowda, J. –
Leave granted.
2. The present appeals arise out of the common impugned judgment and order dated 05.08.2013 passed by the Division Bench of the High Court of Manipur at Imphal in Writ Appeal Nos. 39 and 40 of 2011, whereby the judgment and order dated 01.09.2010 passed by the learned single Judge of the High Court of Gauhati, Imphal Bench in W.P. (C) Nos. 904 of 2008 and 264 of 2010 was set aside.
3. The necessary facts required to appreciate the rival legal contentions advanced on behalf of the parties are stated in brief hereunder:
The appellant was serving as a regular Commandant of 61st Battalion, CRPF and at the time of incidents, was posted at Mantripukhri, Imphal. He is alleged to be involved in two cases. The first case, i.e. Civil Appeal arising out of the SLP (C) No. 30907 of 2013 relates to missing of arms and ammunition. The second case, i.e. Civil Appeal arising out of SLP (C) No. 10092 of 2014 relates to the alleged supply of contraband ganja, by 11 CRPF personnel posted in the unit of the appellant. Between 03.06.1995 and 05.07.1995, one AK-47 rifle with 3 magazines and 90 rounds of 7.62 ammunition issued in the name of one Lance Naik Man Bahadur, who was posted at the same battalion of which the appellant was the commandant went missing. According to the respondents, the loss occurred as a result of the verbal orders issued by the appellant, which action amounted to a violation of Rules 3(1)(i) & (iii) of the Central Civil Services (Conduct) Rules, 1964 (hereinafter referred to as the "CCS (Conduct) Rules, 1964").
4. On 28.05.1997, the Deputy Inspector General of Police (OPS), CRPF, Imphal sent a letter to the appellant, directing him to submit a written statement of defence in connection with the said lapse. The relevant portions of the said letter are extracted hereunder:
"It has been intimated by IGP, N/ Sector, CRPF that one AK-47 Rifle, 3 Magazines and 90 rounds of 7.62 ammunition of commanding 61 Bn at Mantripukhri, Imphal. A Court of Inquiry was conducted. IGP N/Sector has intimated to this office that the said weapon and ammunition belonging to HQr Coy was shown as issued to LNK Man Bahadur but was actually being used by a civilian on your orders. It has further been intimated that S.M. P.N. Gupta (OC HQr Coy 61 Bn) had brought it to your notice that the said weapon and ammunition were not returned by the civilian and were missing from the HQr Coy Kote. To this effect, Shri P.N. Gupta had informed you in writing on 21.08.1995. However, no action was taken nor any decision given by you......
.........Therefore, I am directed by IGP, N/Sector that to request you to send your written statement to this office at an early date......"
5. Pursuant to the above letter, the appellant submitted his written statement on 07.04.1998, explaining the reasons which resulted in the loss of the said weapon and ammunition.
6. By letter dated 24.06.1998, the Deputy Inspector General CRPF, Imphal, on the basis of the conclusion arrived at by the internal Court of Inquiry, issued a warning to the appellant to be more careful and also ordered for a sum of L 3,750/- to be recovered from the appellant in lieu of the lost weapon.
7. Subsequently, on 15.03.1999, the IGP, Northern Sector, CRPF, sent a letter to the appellant stating that after review of the case, the Directorate General had come to the conclusion that the penalty inflicted upon him vide letter dated 24.06.1998 was being withdrawn as the same did not commensurate with the gravity of the offence committed by the appellant in discharge of his official duties. After obtaining approval from the competent authority, major penalty proceedings were initiated and Memorandum of Charges dated 23.06.1999 was issued to the appellant. Subsequently, pursuant to the Presidential Order dated 14.10.1999, a regular departmental inquiry under Rule 14 of the Central Civil Services (Classification Control & Appeal) Rules, 1965 (hereinafter referred to as the "CCS (C
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