BHARUL ISALAM Vs. UNION OF INDIA

JUDGEMENT

(1.) Heard Mr. B.C. Das, learned counsel for the petitioner as well as learned Central Govt. Standing Counsel for the respondents.

(2.) By this writ petition the petitioner has approached this court for quashing the disciplinary proceeding initiated against him and also for quashing the impugned order of penalty by which he was dismissed from service. The case of the petitioner is that on 10.4.91 he was appointed as constable of the CRPF and subsequently on 4.8.94 he was posted at Chumukedima, Nagaland as a Security Guard at the State Bank of India, Chumukedima. On 10.8.94 the respondent No. 3 placed the petitioner on suspension (Annexure-1 to the writ petition) and also furnished to him the memorandum dated 4.8.94 (Annexure-2 to the writ petition) whereby he was furnished statements of article of charges framed against the petitioner. The statement of Articles of charges framed against him are as follows: ARTICLE-I That the said No.770430017 LNK Jasbir Singh and No.913252101 CT Baharul Islam of E/43 Bn CRPF have committed an offence of misconduct in their capacity as member of the Force u/s 11(1) of CRPF Act, 1949, in that. On 25.7.94 while on SBI duty they have created an ugly scene at public place by entering into altercation and using abusive/unparliamentary languages among themselves. ARTICLE-II On 25.7.94 at about 1350 hrs, while No. 770430017 LNK Jasbir Sing No. 913252101CT Baharul Islam were on security duty at SBI Chumukedima No. 913252101 Ch Baharul Islam disobeyed order of LNK Jasbir Singh and thus committed an act of misconduct in his capacity as a member of the force under Section 11(1) of CRPF Act, 1949. He had also assaulted LNK Jasbir Singh with steel helmet resulting head injuries sustained by LNK Jasbir Singh. ARTICLE-III On 25.7.94 at about 1350 hrs while they were on security duty at SBI Chumukedima, the said No. 770430017 LNK Jasbir Singh could not supervise and control his subordinate and found inefficient in the discharge of his duty in his capacity as a member of the Force U/S 11(1) of CRPF Act, 1949." Therefore the joint departmental enquiry commenced on 18.9.94 and respondent No. 3 appointed an enquiry officer to enquire into the charges framed against the petitioner. On completion of the enquiry, the Enquiry Officer has submitted an enquiry report and on the basis of the enquiry report, the respondent No. 3 passed order dated 20.2.1995 (Annexure-4) to the writ petition terminated the service of the petitioner. 2A. Learned counsel for the petitioner has contended that the disciplinary authority has appointed only the enquiry officer to conduct the enquiry but no presenting officer was appointed to present the case on behalf of the disciplinary authority. In support of article of charges the petitioner was also not given defence assistance of his choice nor he was informed that he was entitled to such assistance considering the facts that petitioner is a Grade-IV employee. The counsel for the petitioner contends that the enquiry officer has assumed the rule of the Judge as well as prosecution inasmuch as in absence of presenting officer the Inquiry Officer himself examined the witnesses and exhibited the documents. According to the petitioner it is totally violative of the rules and fundamental principles of natural justice. Learned counsel for the petitioner further contends that against the order dated 20.2.95 (Annexure-4) to the writ petition an appeal was preferred under Rule 28 of the CRPF Rules, 1955 before the respondent No. 2 but the said Appeal of the petitioner was dismissed by order dated 25.4.95 (Annexure-6 to the writ petition) by the respondent No. 2. petitioner therefore approached this court by way of writ petition.

(3.) The main contention of the learned counsel tfor the petitioner is that the disciplinary authority did not appoint any presenting officer nor informed the petitioner that he is entitled to engage defence assistance on his choice and that he has every right to defend his case but on the other hand the enquiry was conducted in one. sided and as such, the impugned order dated 20.2.95 and 25.4.95 passed by the respondent Nos. 2 and 3 are liable to be set aside and quashed. Learned counsel for the respondents on the other hand submitted that Rule 27 of the CRPF Rule 1995 does not visualize appointing of defence assistance nor of presenting officer and that the enquiry conducted by the enquiry officer and affirmed by the respondent No. 2 was strictly of the provision of the CRPF rules as aforesaid.