LAXMI SHANKAR PANDEY Vs. UNION OF INDIA

JUDGEMENT

(1.) In this writ petition the petitioner has challenged the order passed by the Commandant, 11 th Battalion C.R. P.F., the 4th respondent, dismissing the petitioner from service. The petitioner was working as a Head-Constable in the Central Reserve Police Force ("CRPF" for short) on the relevant date. He joined as a Constable in the year 1963. He was awarded three medals for performing his duty diligently and in the year 1967 he was given an award of Rs. 500/- and a special promotion while fighting in the Nagaland. He also claims to have been awarded some other such cash awards later. He was promoted as Head Constable later on. In total he has put in 20 years of service. While working as Post Commander of Vijaynagar Post Tirap District, two under-trial prisoners who were Burmese nationals, were handed over on 29-3-83 till further orders by the Circle Officer to the custody of the CRPF Vijaynagar Post of which the petitioner was the Post Commander. On the intervening night of 4th and 5th April, 1983 the two Burmese nationals escaped from the custody. It was alleged that the petitioner was negligent in,his duty and that he did not take immediate action to report the matter to the Circle Officer and that he also connived the escape of the two under-trial prisoners and deliberately dug a tunnel to make it a pear that the under-trial prisoners had dug the tunnel and escaped through the same. On the basis of this incident, a chargesheet was served on 18th August, 1983 on the petitioner and an enquiry was conducted. The Deputy Superintendent of Police was the Enquiry Officer and he recorded the statements of some witnesses who were then posted under the petitioner. That enquiry was cancelled and a fresh enquiry was commenced. Three charges were framed which are referred to as Articles in the report of the Enquiry Officer. These are as under:

(2.) In the counter-affidavit filed on behalf of the respondents, it is stated that full opportunity was given to the petitioner during the departmental enquiry and that venue of enquiry was shifted from Khonsa to Longding only to avoid unnecessary delay in the enquiry and that the petitioner never objected to the shifting of the place of enquiry. It is also submitted that'the petitioner was given full opportunity to produce the defence witnesses and notices were also served on them but they did not appear. Regarding the first enquiry it is stated that the same was not completed by the Enquiry Officer. Therefore a fresh enquiry was ordered and that it cannot be said that by cancellation of the first enquiry the petitioner was exonerated. It is further submitted that the petitioner was given full opportunity and that he duly participated in the enquiry and no prejudice whatsoever was caused.

(3.) On a careful examination of the affidavit and the counter-affidavit and the allegations as well as the denials, we are of the opinion that there are a number of disputed questions of fact. The learned counsel for the petitioner, however, submitted that under Article 32 even disputed questions of fact can be gone into by this Court. He relied on a judgment of this Court in Kavalappara Kottarathil Kochunni Moopil Nayar v. State of Madras, (1959) Supp 2 SCR 316 : (AIR 1959 SC 725) wherein it is observed that (at P. 734 of AIR):