EX. CONSTABLE KESHAV PARASAD Vs. UNION OF INDIA

JUDGEMENT

(1.) Instant Civil Writ Petition has been filed under Articles 226 /227 of the Constitution of India for quashing the order dated 15.03.1990 (Annexure P/5) passed by respondent No. 5, whereby the petitioner has been removed from service, order dated July, 1990 (Annexure P/6) passed by respondent no. 4, whereby appeal of the petitioner has been dismissed and order dated 09.11.1990 (Annexure P/7) passed by respondent no. 3, whereby revision petition of the petitioner has been dismissed. It would be appropriate to notice here that initially the instant writ petition was filed by Ex. Constable Keshav Parasad. During the pendency of this petition, he died on 18.01.1997. His legal representatives moved an application viz. CM No. 9410 of 1997, which was allowed vide order dated 23.05.1997 and Smt. Usha Rani, widow, Pooja, Preeti, Soni, daughters and Abhishek son of late Sh. Kehsav Parasad were brought on record. Brief facts of the case are that petitioner - Keshav Parasad was enrolled as a Constable in the Central Reserve Police Force (hereinafter referred to as the "CRPF") on 06.10.1983 and posted in Bn 71, CRPF in 6 Pn. since August, 1984. At the relevant time, the petitioner was posted at Moga and was charge-sheeted under Section 11(1) of the Central Reserve Police Force Act, 1949 (hereinafter referred to as the "Act") on the following allegations:-

(2.) Copy of the charge-sheet is Annexure P/1 with the writ petition. It is the case of the petitioner that he had been down with fever since 15.11.1989 and the doctors had advised him complete rest. Even on the date of alleged occurrence i.e. 18.11.1989, the petitioner was not on duty. The petitioner filed reply (Annexure P/2) to the charge-sheet wherein it is stated that he wanted to go for urination at the time of alleged occurrence and went out after intimating the Sentry on duty. When the petitioner was moving out for urination, he saw that certain civilians were abusing Constable Satinder Kumar Singh, so the petitioner rushed to the spot to call Constable Satinder Kumar Singh, even the Enquiry Officer Sh. Rattanam, Assistant Commandant also reached there. After considering the reply and not finding it satisfactory, the competent authority appointed Enquiry Officer vide order dated 08.12.1989. The enquiry was conducted and in his report (Annexure P/3), the Enquiry Officer exonerated the petitioner from charge No. 2 holding that the allegation of beating and assaulting the civilians was not proved against the petitioner. Regarding charge no. 1, the Enquiry Officer gave a finding that the petitioner had consumed alcohol unauthorisedly from local vend which amounted to misconduct. The enquiry officer considered the medico-legal report given by the Medical Officer. The competent authority vide impugned order dated 15.03.1990 (Annexure P/5) removed the petitioner from service. Against that, the petitioner preferred an appeal, which was dismissed in July 1990 (Annexure P/6). Thereafter, the petitioner preferred a revision which was also dismissed vide order dated 09.11.1990 (Annexure P/7). Hence, this writ petition.

(3.) The main grounds raised by the learned counsel for the petitioner in this writ petition are that the impugned order of removal from service as well as orders passed in appeal and in revision are against the principles of natural justice as no opportunity or show cause notice was given to the petitioner. The case of the petitioner is not covered under Section 11(1) of the Act. The alleged crime is not a heinous crime as enshrined under Sections 9 and 10 of the Act. There are no instructions, rules or regulations which prohibited the consumption of liquor by a member of the force from local vend when he is off duties. It is also the case of the petitioner that he had taken cough syrup and Medical Officer has opined that the petitioner had undoubtedly consumed mild quantity of alcoholic intoxicant and has also reported that he was in full sense. The order of removal is harsh order. The copy of the enquiry report was not supplied to the petitioner. Besides this, the stand taken by the petitioner is that respondent no. 5 has imported his own personal knowledge while awarding the punishment of removal. The appointing authority has wrongly reversed the finding on charge no. 2. The petitioner was denied the right to cross examine the witnesses. The defence evidence led by the petitioner has not been taken into account. The findings recorded by the Enquiry Officer are not based on evidence, rather is result of surmises and conjectures.