UNION OF INDIA Vs. DILEEP SINGH

JUDGEMENT

(1.) AGGRIEVED by the order of Commandant 60th Bn. CRPF dated July 31st 1982 by which the respondent No. 1 was dismissed from service with effect from July 31st, 1982(AN) his period of desertion from 4.12.1981 (AN) to 9.12.1981 (AN) was treated as leave without pay, period from 10.12.1981 to 20.12.1981 was treated as DIES -NON and period of suspension from 21.12.1981 to July 31st 1982 was treated as such for all purposes with a direction that he will not get anything more whatever he had already drawn, the writ petition No. 382 of 1982 was filed in this Court alleging therein that the order passed was contrary to the provisions of rule 27 of the Central Reserve Police Force Rules, 1955 and the constitutional guarantees as enshrined in Art, 311 of the Constitution of India as the same was made applicable to the State of J&K The petitioner had further alleged that the inquiry was conducted against him in an alleged atmosphere which was surcharged with bias, arbitrariness prejudice, ill -will and malice against him and respondent No. 2 in the writ petition submitted his report to the commandant who vide order impugned in the writ petition passed the orders as detailed herein above The petitioner had further alleged that he was not given the copy of the inquiry report nor was he asked to show cause against the proposed penalty which prevented him from making any representation against the final order. According to the writ petitioner, the respondent No. 1 made statement of articles of charges against him on 28.1.1982 and on the same day an inquiry officer was appointed to inquire into the aforesaid charges. The petitioner was never directed that the enquiry would commence atleast 48 hrs after the articles of charges were read over to him & a copy of the same given to him. According to the writ petitioner the inquiry could not have been commenced before 30.1.1982 (AN) but however the respondent No. 2 commenced the inquiry on 29.1.1982 and recorded the statements of two witnesses. The written request of the writ petitioner made to the respondent No. 1 to supply him the entire record of the inquiry was rejected and ultimately he was dismissed. The respondents in the reply affidavit submitted that the petitioner had stated wrong facts and tried to mis -lead the court. He had also not availed of the remedies of appeal and review provided under rules 28 and 29 of the Central Reserve Police Force Rules 1955. Accordingly to the respondents a preliminary inquiry was ordered against the writ petitioner with the object to assess the gravity of the offende for taking further action if needed. Asstt. Commandant S. Joginder Singh was detailed to conduct a preliminary inquiry but the petitioner objected to his detailment. On the objection of the writ petitioner inquiry officer was changed and another officer was appointed to whose appointment the writ petitioner never objected. The writ petitioner was charged with seven articles of charges and was given an opportunity to submit has representation to each articles of charges. After receipt of his reply Sh. I. Mirza Dy. S.P. was detailed as departmental inquiry Officer. The article of charges was served upon the writ petitioner on 22.1.1982 which was received by him on 25.1.1982 & he submitted his reply on 26.1.1982. The reply submitted by the respondent No. 1 in this appeal was duly considered...............and it was decided thereafter to deal with the case departmentally as the reply was not convincing. The respondent No. 2 in the writ petition was detailed as Inquiry Officer on 28.1.1982. Since the charge sheet had been served on 25.1.1992, the Inquiry was commenced on 29.1.1982. The chargesheet was served to writ petitioner four days earlier before the commencement of the inquiry. The respondent herein never represented against the Inquiry officer for allegedly adopting any bias attitude. The statement of prosecution witnesses were recorded in presence of writ petitioner and the copy of the same was given to him in -token of which his signatures were obtained which were available on the record of the department. After the completion of the departmental inquiry, the proceedings were handed over to the department for taking further necessary action. The proceedings were examined in detail by respondent No. 1 who finally came to the conclusion that the writ petitioner was not a fit person to be retained in the services and therefore he passed the order impugned in the writ petition. All other allegations of mala -fides, ill -will, malice or alleged harassment were denied, the respondent No. 1 also filled a rejoinder to explain end deny the averments made in the counter affidavit filled on behalf of the appellants and wanted the record to be produced in the court. After hearing the learned counsel for the parties the Honâ„¢ble Single Judge of this Court vide judgment now impugned in this appeal allowed the writ petition and quashed the order impugned therein. The Honâ„¢ble single Judge relying upon a number of authorities held that as the respondents in the writ petition had not complied with the provisions of Art. 311 of the constitution of India as made applicable to the State of J&K, the whole of the order was liable to be quashed,

(2.) WE have heard the learned Counsel for the parties and have perused the whole record.

(3.) MR . Qazi the learned Counsel appearing for the appellant has submitted that the Judgment of the Honâ„¢ble Single Judge is liable to be quashed because he has not noted that sub -rule 7 of rule 27 of the Central Reserve Police Force Rules, stood deleted vide notification R/IX -l79 -Adm Pers -II dated 14.1.1980, GSH -75 dated 26th June 1980. He has further submitted that the learned single Judge has wrongly placed reliance upon the provisions of article 311 (2) of the Constitution of India which according to him was not applicable after 42 amendment of the constitution of India with effect from 31.1.1977. According to him the respondent was bound by the conditions of service as incorporated under the Central Reserve Police Force Rules and the order impugned could not have been set aside because all the requisite conditions for holding an inquiry and inflicting punishment in terms of the aforesaid rules were fully complied with. It is further submitted that the Honâ„¢ble Single Judge was not justified in quashing the order impugned in the writ petition in its entirety by directing the re -instatement of respondent to his post which he was holding prior to the passing of the order impugned in the writ petition.