BAIJNATH KACHCHAP Vs. UNION OF INDIA

JUDGEMENT

(1.) IN this writ application, petitioner has prayed for quashing the order dated 28.2.94 passed by Commandant i.e. respondent No. 3 thereby and thereunder removal from the service of the petitioner was ordered with immediate effect.

(2.) ADMITTEDLY , the petitioner was a constable in CISF and at the relevant time in the year 1992, he was deputed to Patratu Thermal Power Station and therefor derelection of duty and also for gross negligence and misconduct a departmental proceeding was initiated and memorandum of charges i.e. Annexure -1 was framed and Inspector, Executive, CISF was appointed as Inquiry Officer vide order dated 4.4.93. The petitioner appeared and filed his show cause and after conclusion of the enquiry, Inquiry Officer found him guilty and ultimately Commandant recorded an order of removal vide order dated 28.2.94 vide Annexure -5. Against that an appeal was prerferred that too was dismissed. Hence this writ application challenging the order of removal mainly on the ground that inquiry against the petitioner has not been properly conducted and the petitioner has not been given proper opportunity to defend himself.

(3.) WHEN this matter was taken up, learned Counsel for the petitioner fairly submitted that though various points were raised but he is not pressing all these points and simply pressing that departmental inquiry as against the petitioner has not been conducted that too under the Central Industrial Security Act and Rules 1968 and the petitioner was not given proper opportunity to defend himself during the inquiry. It was contended on behalf of learned Counsel for the petitioner that petitioner is a constable so an employee of the lowest rank in this force and it is not expected from him to know various technicalities. When the inquiry was being conducted, there was a presenting officer on the part of the department but the petitioner was undefended and he was himself present and though he was not fully aware of the various technicalities of the enquiry still the Inquiry Officer has not asked any question as required under Rule 34(5) of the C.I.S.F. Rules to show that petitioner was asked if he requires any assistance from any member of the force in the inquiry itself meaning thereby the petitioner requires any assistance to defend himself in the inquiry. It was further contended that if the Inquiry Officer has not specifically asked the petitioner if he requires any assistance then apparently the inquiry was not conducted properly and no proper opportunity was given to the petitioner to defend himself. In support of this contention he has relied upon a case of Kerala High Court reported in 1986 LIC 980 P.P. Gopalan v. D.I.G. and Ors. It was contended that on consideration of the principle laid down by the Apex Court in AIR 1983 454 Bhagat Ram v. State of Himachal Pradesh, it was held by the Kerala High Court in P.P. Gopalan's case (supra), that if the delequent is a member of the lowest cadre and not in a position to know the various technicalities of the proceeding and on the other hand department is represented by Presenting Officer then in such a situation, the provision as laid down under Rule 34(5) is not a mere formalities and the Inquiry Officer is required to put a specific question if the delequent staff requires any assistance from any of the force in the inquiry. Non -compliance of the aforesaid provision resulted in quashing the departmental proceeding on the ground that reasonable and proper opportunity was not given to the delequent employee and there was no proper inquiry. On the other hand, learned Counsel for the respondent has not been able to controvert this preposition of law.