R K KUTTY (DRIVER) Vs. COMMANDANT GROUP CENTRE

JUDGEMENT

(1.) THIS is a writ petition under section 103 of the Constitution off Jammu and Kashmir for seeking appropriate writ, order or direction for quashing the order of respondent No. 1 dated 31 -3 -1976 by which an enquiry was proposed to be held by respondent No. 1 and for quashing the enquiry held by respondent No. 2 and concluded on 27 -9 -1976 as well as for quashing the order of respondent No. 1 calling upon the petitioner to show cause against the penalty of dismissal from service.

(2.) THE facts which have given rise to this petition briefly Stated are that the petitioner joined the Central Reserve Police Force in the year 1967 as a constable. While he was posted in Neemach (Madhya Pradesh) in the year 1970, a number of charges were brought against him as a result of which he was suspended from service as provided under the rules framed under the Central Reserve Police Force Act, 1949 (hereinafter referred to as the Act). After suspension a criminal case under section 420/468/379 I. P. C. was brought against him in the court of Judicial Magistrate Neemach and on 25 -11 -1970 the learned Magistrate framed the following charges against the petitioner: (i) That the petitioner committed an offence of obtaining Rs. 700/ - by cheating from one Gopi Nath Pillary and Shiv Shanker in order to get them recruited in the force by bribing the Recruiting Officer, and that the petitioner changed the receipt of Rs. 115/ - into Rs. 715/ -; (ii) That the petitioner obtained illegally Rs. 500/ - from Satya Sheelan for the purpose of obtaining appointment order and issued a copy of order and falsely attested the same as true copy; Thus the petitioner obtained the amount by cheating and committed an offence under section 420, 468 of the Indian Penal Code; (iii) That the petitioner committed an offence under section 379 of the Indian Penal Code in stealing discharge certificate from the office of the C. R. P. Group Centre, Neemach (M. P.). It is alleged by the petitioner that he was put to trial on these charges but was ultimately acquitted by the learned Magistrate by his order dated 17 -10 -1974. On having been thus acquitted the petitioner applied for his reinstatement but instead of reinstating him in his original unit, he was transferred to C.R.P.F. Group Centre, Jammu, in the month of June 1975. He has further averred that the authorities were not satisfied with the judgment of the learned Magistrate and therefore, proceeded mala fide and ordered departmental enquiry against the petitioner, and appointed respondent No. 2 as the Enquiry Officer who held enquiry against the petitioner for the same charges as were the subject matter in the criminal case, the trial of which took place at Neemach. The order for enquiry was passed on 31 -3 -1975 by respondent No. 1. The statement of articles of charges was given to the petitioner and according to the petitioner enquiry was held and proceedings conducted by Shri Dhoom Singh, respondent No. 2, and it was he who submitted his report to respondent No. 1, but subsequently Shri Sukhjinder Singh, took over as the Assistant Commandant by an order of respondent No. 1. It was on 27 -9 -1976 that Shri Dhoom Singh, respondent No. 2, submitted his report to the Commandant, a copy of which was sent to the petitioner. The petitioner has alleged that respondent No. 2 has committed illegalities in the conduct of the enquiry inasmuch as the petitioner was not permitted to produce Shri Daya Ram, Deputy Superintendent of Police Station Workshop, Gulhati, as his witness in defence nor he was given the copies of the proceedings even though he made a request for the same. The report of the respondent No. 2 was now with respondent No. 1, who has issued a notice to petitioner to show cause as to why he should not be dismissed from service. According to the petitioner the remit of the Enquiry Officer was ultra vires of the Constitution as well as opposed to the fundamental principles of natural justice and that the enquiry was ab -initio void and cannot be sustained. The petitioner has challenged the orders of respondent No. 1 for holding the enquiry against him as also the report of enquiry officer and the order of respondent No. 1 issuing a show -cause notice to the petitioner as to why he should not be dismissed from service on the following grounds: (a) that after the trial and acquittal of the petitioner, no enquiry could be instituted against him by the respondent and the impugned enquiry ordered dated 31 -3 -1976, the enquiry report dated 27 -9 -1976 and the show cause notice dated 29 -9 -1976 are all ultra vires of Constitution as the same violate the provisions of Art. 20(2) of the Constitution of India inasmuch as the petitioner is being prosecuted and threatened with punishment twice for the same offence; (b) that the impugned order of enquiry and the impugned show cause notice are against Rule 27(7) (ccc) of the rules as no prior sanction has been obtained from the Inspector General for instituting enquiry when the petitioner has been acquitted by a criminal court. The whole proceedings are without jurisdiction.

(3.) IN the reply affidavit which has been sworn by respondent No. 2 it has been stated that the petitioner was tried for an offence under section 379 I.P.C. only and not for any other offence as alleged, in the court of the learned Magistrate at Neemach. It has been denied that the petitioner was transferred with a view to avoid his reinstatement. It has been submitted that the 2nd Battalion CRPF to which the petitioner belonged was brought under Group Centre, Jammu in February 1972, but as a criminal case was pending against the petitioner at Neemach, he was not directed to move to Jammu in his own interest, to enable him to contest the criminal case and defend himself effectively but when the criminal case was disposed of by the learned Magistrate on 17 -10 -1974, the petitioner was directed to move to Jammu and join his parent Group Centre. There was no mala fide in this connection as the whole thing was in the interest of the petitioner. It has been also categorically denied that the authorities in any way became inimical towards the petitioner. The enquiry which has been ordered against him was not for theft for which he was tried in the Neemach court but on charges other than the charge of theft, particularly on the charge misconduct. It has been categorically denied that enquiry officer in any way disregarded the provisions of the Act or the Rules or for the matter of that any principle of natural justice was violated while conducting the enquiry against the petitioner. In the reply affidavit a number of preliminary objections have been raised by the respondent. One of the objections raised was that the departmental enquiry against the petitioned has not as yet resulted in a final order and the petitioner was challenging only an interim order, which Cannot be permitted in law to be challenged by way of a writ petition. It has further been submitted that the petitioner has an alternate efficacious remedy available under the C.R.P.F. Act and the Rules which should have been taken recourse to first and as that course has not been adopted the present writ petition merits dismissal. It has been, also submitted that the petitioner has submitted his representation to the Commandant in reply to the show cause notice and that his representation was under consideration of respondent No. 1 and as such the petition was premature.