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High Court Of Madhya Pradesh
V.D. Gyani, J.
MOHAN CHANDRAN
Versus
UNION OF INDIA UOI
Decided On : Jul 05,1985
A person serving in Central Reserve Police Force was dismissed and approached the High Court. The objection taken by the State was that the petition is not maintainable, as the petitioner was a member of the Armed Forces.
Held: The objection is not well-founded. Firstly the petition is not under Art. 227 (4) and secondly the Disciplinary Enquiry was conducted under the Central Service Rules, 1965, and this fact was also admitted in the return. It is futile to contend that the petition is not m3intainable under Article 227 (4). AIR 1981 SC 806 discussed. [Para 7]
(2) Central Reserve Police Force Rule's, 1955-Rr. 27 (d) (i) & 27 (ccc)-sanction for Departmental Enquiry-should be express and after applying mind-mere writing 'approved' is no sanction.
It is settled law when proceedings are to be instituted on the basis of a sanction, whether under an Act or under any rule the sanction must ex facie bear the stamp of validity and it should appear from the sanction order itself that all the necessary and relevant facts have been considered by the Sanctioning Authority before according sanction.
On a draft the endorsement is 'approved' by the DIG. Such an approval is no substitute for a valid sanction as required by rule 27 (d) (1) and 27 (ccc) of the Rules. An approval of a draft sanction cannot be said to be a valid sanction. A mechanical approach, to such a serious act required to be performed under statutory rules, is hardly commendable.
[Para 9]
(3) Central Reserve Police Force Rules, 1955-R. 27(ccc)-applicability of -accused not actually tried and acquitted-acquiuttal under section 257 Cr. P.C. -facts similar and witnesses also similar-the rule is attracted.
It is not contemplated by rule 27 (ccc) that there should be a full dressed trial. The rule itself provides 'upon the evidence cited in the criminal case', whether actually led or not. Now in the instant case evidence was cited but not led and the criminal case was withdrawn. On any view of the matter the rule envisages even such a situation where the acquittal has resulted for non-adducing of evidence and after all withdrawal though technically it may have a different connotation for the purposes of the Code of criminal Procedure but in its essence it is nothing but not adducing evidence, though cited.
In such a situation, a valid sanction under this rule was a condition precedent for institution of a Departmental Enquiry against the petitioners as no material has been placed by the respondents to show that such a valid sanction had in fact been accorded, the Departmental Enquiry held against the petitioner is found to be one without a valid sanction. [Para 11]
(4) Natural Justice-rules of-a witness for prosecution appointed Enquiry Officer-is against principles of natural justice and fair play.
If a person who is a witness to an agitation, and who is called upon to substantiate a charge were to be entrusted to the task of holding a Departmental Enquiry, whose final report has been accepted word to word by the Disciplinary Authority for imposing penalty, it is nothing short of a travesty of principles of natural justice. Natural Justice is nothing but fair' play in action.
In the instant case the fact that an Assistant Commandant who was to substantiate the criminal charge, against the petitioners, when entrusted with the task of holding an enquiry, it is not safe to presume that he is un-biased. [Para 15]
(5) Natural Justice-rules of -permission refused to be assisted by an Advocate-it is denial of proper opportunity to be heard-prejudice has to be presumed.
The delinquent was denied the assistance of an Advocate on the ground that the Rules do not permit such assistance.
Held: The refusal of such assistance, has in fact resulted in a serious prejudice to the petitioners and also a denial of a reasonable opportunity of defending themselves against the charges levelled against them. [Para 16]
(6) Constitution of India-Arts. 14 & 16-unployees standing on similar footing-should not be discriminated in matter of punishment.
Where certain employees of the Central Reserve Police Force were reinstated after dismissal, and such dismissal was made without any Departmental enquiry, other employees dismissed after enquiry should also be reinstated. There should not be any discrimination even in matter of punishment. [Para 17]
( 1. ) THE petitioners were serving as Head Constables in the Signal Battalion of the Central Reserve Police Force with headquarters at Neemuch. During the period dated 24th June, 1979 to 25th June 1979, there was an agitation amongst the Members of the force and the petitioners were arrested in connection with the said agitation along with three others, as they were suspected of having participated in a strike. A criminal complaint No. 2/79 against petitioner No. 1 and No. 5/79 against petitioner No. 2 were filed by Sri C. L. Sharma, the Deputy Superintendent of Police before the respondent No. 2 who under Section 16 of the C. R. P. F. Act is empowered and acts as Chief Judicial Magistrate. A complaint is filed as Annexurc-1 to the petition. By order Annexure-A, the petitioners were acquitted by the respondent No. 2, as the complaints filed against them were withdrawn by the complainant with permission of the Court. It was on withdrawal of the criminal prosecution that a memorandum, Annexure-B, in the nature of a charge-sheet was issued against the petitioners by the respondent No. 2 as Commandant who also acted as Chief Judicial Magistrate. On 17th October, 1979, the respondent No. 2 appointed one Shri Savariappa as an Enquiry Officer to conduct a joint enquiry against the petitioners and the relevant order dated 17th October, 1979 is filed as Annexure-C to the petition. By Annexure-D. which is dated 22nd October, 1979 the petitioners applied for a copy of the approval, said to have been granted for holding such a joint enquiry. It was applied by them on 2nd November, 1979 by letter, Annexure-E. The approval itself is filed as Annexure-F to the petition which is a message.
( 2. ) THE petitioners denied the charges levelled against them and also pray for permission to avail the services of an Advocate, the Enquiry Officer happened to be a graduate and an Assistant Commandant. It also stated in their application, Annexure-G-1 that the Department had availed of services of a Presenting Officer who also happened to be a graduate. However, by reply dated 2nd November, 1979, the respondent No. 2 informed the petitioners that no Presenting Officer had been appointed in the case and the assistance of a legal practitioner could not be permitted as the C. R. P. Rules did not provide for such an assistance. The enquiry lasted for 25-days. Thereafter, on the basis of the report of the Enquiry Officer, a show-cause notice, proposing dismissal from service was issued against the petitioner. The Enquiry Report along with the show-cause notice is filed as Annexure-M and the reply to the show-cause notice is filed as Annexure N-l and N-2. The respondent No. 2 passed the final order on 18th January, 1980 dismissing the petitioners from service. On an appeal being preferred by the petitioner, the same also stood rejected vide order dated 18th March, 1980 as Annexure Q-2. Even the revisions preferred by the petitioners were also dismissed by the Inspector-General of Police, Sector-3, New Delhi i by his order dated 12th May, 1985 as Annexure, S-1 and S-2. The petitioner even preferred mercy petitions which also met with the same fate. The relevant order is filed as Annexure U-1 and U-2 dated 30th August, 1980. Having availed of the procedural remedies and failed in their bid, the petitioners have now approached this Court by this petition, challenging the order of dismissal from service as passed by respondent No. 2 and confirmed by No. 3 and 5 in appeal and revision respectively. They also seek a direction for their reinstatement in service with full back-wages and other benefits. The respondents do not dispute the essential facts as stated above. The dispute which is raised by the petitioners is with regard to the legal effect of the order passed by the respondent No. 2 as Chief Judicial Magistrate on withdrawal of the complaint by Shri C. L. Sharma, Dy. S. P. Signal Group Centre, Neemuch.
( 3. ) IT is their contention that as the peti
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