KRIPESH CHANDRA ROY Vs. UNION OF INDIA

JUDGEMENT

(1.) THE writ petitioner who was a Constable in the Central Reserve Police Force (CRPF) has filed the present petition challenging the finding dated 22. 03. 1999 of the Inquiry officer. The Inquiry officer found the petitioner and two others guilty of the charge pertaining to allegations of running away from their post and leaving their weapons behind, when another Constable Surendra Yadav started firing heavily and indiscriminately from his SLR Butt No. 281 around the camp and the further allegation that the petitioner and others did not take any action or initiative to prevent the said Constable Surendra Yadav from firing and did not overpower him to avert the untoward incident of killing of their Platoon Commander SI N. N. Pandey. On the basis of the said allegation, the petitioner and two others were charged as having acted with cowardice and fleeing instead of tackling the situation with bravery and determination and ensuring protection of their Platoon Commander. The petitioner also challenged the punishment order dated 19. 04. 1999 whereby he has been compulsorily retired from service with effect from 19. 04. 1999. The order of the appellate authority dated 17. 10. 1999 rejecting the appeal of the petitioner and confirming the punishment imposed, has also been challenged. This Court has heard Mr. B. Das, learned sr. counsel assisted by Mr. N. Majumder, Mr. D. Chakraborty and Ms. S. Das, learned counsels for the petitioner. Also heard Mr. P. K. Biswas, learned Assistant SG along with Mr. P. Majumder, learned counsel for the respondent-Union of India. Learned counsel for the petitioner has argued that the inquiry proceeding which led to the finding of guilt dated 22. 03. 1999 against the petitioner is liable to be interfered with by this Court inasmuch as the said proceeding is vitiated, on account of disability on the part of the petitioner and other two Constables in putting forward an effective defence and not being provided with a reasonable opportunity to defend the charges. Submissions that the proceedings were conducted in such environment and in such manner that it would amount to denial of fair and reasonable opportunity for the petitioner in the matter of participation in the disciplinary proceeding have also been made. The second contention raised by Mr. Das, learned counsel for the petitioner is that the punishment of compulsory retirement imposed is also unjustified considering the fact that lesser punishment for four other Constables involved in the incident have been awarded by the disciplinary authority. Appearing for the C. R. P. F. , Mr. Biswas has, on the other hand, argued that fullest opportunity to the delinquent to defend the charges have been given and there has been no breach of the required procedure, warranting interference of this Court with the impugned findings and decisions. Mr. Biswas has also drawn attention of the Court to the fact that there has been differentiation in the punishment imposed in so far as the Constables who were assigned guard duty and were inflicted with punishment of compulsory retirement vis-a-vis the punishment of stoppage of two increments awarded for 4 personnel of the CRPF, who were not posted with guard duty and were assigned with escort duty only. Mr. Biswas has also produced before the Court the proceedings of the inquiry report leading to the finding of guilt against the petitioner, to enable this Court to examine for itself, the fairness of the proceedings conducted. Learned counsel for the petitioner has cited two decisions reported in AIR 1982 (Lt. Col. Prithipal Singh Bedi Vs. Union of India and Ors) and AIR 2000 SC 3425 (Union of India Vs. Charanjit S. Gill) to make submissions that members of the Armed Forces are also entitled to liberal spirit and protections guaranteed by the Constitution and there is a requirement in Court martial proceedings to follow the norms of fairness, justness and reasonableness. The further submission made with reference to the aforesaid two decisions is that the Court in exercise of its writ power, while examining the cases of Armed Forces personnel faced with disciplinary proceedings must examine the proceeding in light of the procedural safeguard provided by the Constitution. Two other decisions reported in AIR 1983 454 (Bhagat Ram Vs. State of Himachal Pradesh) and AIR 1986 SC 991 (Sukh Das Vs. Union Territory of Arunachal Pradesh) have also been cited to say that in a disciplinary proceeding, the delinquent must be aware of availability of defence assistance and such assistance when asked for must be provided to a delinquent in course of inquiry and if information is not furnished to a delinquent that defence assistant is available and can be provided, the inquiry is vitiated, justifying interference by the Court. Rebutting the aforesaid arguments advanced on behalf of the petitioner, Mr. Biswas has, on the other hand, drawn attention to the Supreme Court decision in (2006) 1 SCC 430 (Hombe Gowda Educational Trust Vs. State of Karnataka) and also the decision in 2006 AIR SCW 460 (L. K. Verma Vs. H. M. T. Ltd.) to submit that in a matters of indiscipline particularly in the Armed Forces, the Court should not take a lenient view in the matter. Further submission has been advanced with reference to the reported decision in (1997) 6 SCC 381 (State of Punjab Vs. Bakshish Singh) to argue that Civil Court should not substitute its own view in matter of punishment particularly in the case of a Constable who is a part of a disciplined Force and is subjected to disciplinary proceeding. Another decision reported in (2004) 6 SCC 325 (Vice Chairman, Kendriya Vidyalaya Sangathan Vs. Girdharilal Yadav) has been cited to stress the point that the principles of natural justice cannot be stretched too for and present one is not a case, where there has been any breach of the principles of natural jusice as fullest opportunity has been provided to the delinquent Constable.

(2.) FROM the ratio of the aforesaid decision, it can be gathered that the allegation of breach of the principle of natural justice has to be examined with reference to the facts of each case. Whether the required procedural fairness has been maintained in conduct of the disciplinary proceeding has also to be examined with specific reference to the proceedings conducted in a given case. The Court must also not be unmindful of the fact that the proceeding in the present case is against a Constable of a CRPF who is a member of a disciplined Force where discipline is a matter of paramount importance.

(3.) THE challenge in the present case is based primarily on denial of a fair and reasonable opportunity to the petitioner to defend the charges made against him. Therefore, it would be necessary to examine the disciplinary proceedings to satisfy oneself as to whether the procedure adopted, afforded a fair and reasonable opportunity to the petitioner to defend the charges or whether the procedure is vitiated to such an extent, that interference of this Court is called for.