S. K. Pradhani vs Union Of India on 24 March, 2026

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    Chattisgarh High Court

    S. K. Pradhani vs Union Of India on 24 March, 2026

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                                                                 AFR
    
              HIGH COURT OF CHHATTISGARH AT BILASPUR
    
                            WPS No. 9261 of 2023
    
                     Order Reserved on 09.02.2026
                     Order Delivered on 24.03.2026
    
    
    1 - S. K. Pradhani S/o Shri Khattu Pradhani Aged About 40 Years
    Constable (Gd) - Terminated Having Batch No. 025040067 At 39th
    Battalion, Central Reserve Police Force (Crpf), Narayanpur,
    District Narayanpur (C.G.) Now At Peddavutupalli, Gannavaram,
    Vijaywada, District Krishna, Andhra Pradesh - 521101 R/o Village
    Bissam Cuttack, District Rayagada, Odisha
                                                        --- Petitioner(s)
                                  versus
    1 - Union Of India Through Secretary, Government Of India,
    Ministry Of Home Affairs, North Block, Central Secretariat, New
    Delhi                             -                          110001
    
    
    2 - Director General Central Reserve Police Force (Crpf), Block
    No. 1, Cgo Complex, Lodhi Road, New Delhi - 110001
    
    
    3 - Additinoal Director General Central Reserve Police Force
    (Crpf),    Hq   South     Zone,       Hyderabad,   Telangana-500005
    
    
    4 - Deputy Inspector General Of Police Central Reserve Police
                                      2
    
    Force (Crpf), Bhubneshwar Range Hqr, District Bhubneshwr,
    Odisha                                                     751001
    
    
    5 - Inspector General Of Police Central Reserve Police Force
    (Crpf), Southern Sector Hqr, Road No. 10/c, Jubilee Hills, New
    Mla/mps Colony Quarters, Hyderabad, Telangana - 500033
    
    
    6 - Commandant 39th Battalion, Central Reserve Police Force
    (Crpf), Peddavutupalli, Gannavaram, Vijaywada, District Krishna,
    Andhra Pradesh - 521101
                                                   --- Respondent(s)
    
                         WPS No. 9419 of 2023
    
    
    1 - Jaipati Yadav S/o Kalapnath Yadav Aged About 41 Years
    Constable (Gd)- Terminated Having Batch No. 025021125 At 39th
    Battalion Narayanpur, District Narayanpur (C.G.), R/o Village
    Gahila Devariya, P.S. Maeel, District Devariya, Uttar Pradesh.
                                                       ---Petitioner(s)
                                 Versus
    1 - Union Of India Through Secretary, Government Of India,
    Ministry Of Home Affairs, North Block, Central Secretariat, New
    Delhi- 110001
    
    
    2 - Director General Central Reserve Police Force (Crpf), Block
    No. 1, Cgo Complex, Lodhi Road, New Delhi- 110001
    
    
    3 - Additional Director General Central Reserve Police Force
    (Crpf), Hq South Zone, Hyderabad, Telangana- 500005
                                                3
    
    4 - Deputy Inspector General Of Police Central Reserve Police
    Force (Crpf), Bhubneshwar Range Hqr, District Bhubneshwar,
    Odisha- 751001
    
    
    5 - Inspector General Of Police Central Reserve Police Force
    (Crpf), Southern Sector Hqr, Road No. 10/c, Jubilee Hills, New
    Mla/mps Colony Quarters, Hyderabad, Telangana- 500033
    
    
    6 - Commandant 39th Battalion, Central Reserve Police Force
    (Crpf), Peddavutupalli, Gannavaram, Vijaywada, District Krishna,
    Andhra Pradesh- 521101
                                                                      ... Respondents
           (Cause-title taken from the Case Information System)
    ----------------------------------------------------------------------------------------
    

    For Petitioners :- Mr. Mayank Kumar, Advocate
    For Respondents:- Mr. Ramakant Mishra, DSGI and Mr.
    Bhupendra Pandey, C.G.C.

    —————————————————————————————-

    SPONSORED

    SB- Hon’ble Shri Justice Amitendra Kishore Prasad
    CAV Order

    1. Since common question of facts and law is involved in both

    the cases, as such, both the petitions are being disposed of by this

    common order.

    2. WPS No. 9261 of 2023 (S.K. Pradhani vs. Union of India and

    others) has been taken as lead case in order to decide the issues

    involved in these matters.

    3. The present petitions are directed against the impugned
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    order dated 13.10.2023 passed by Respondent No. 5, namely the

    Inspector General of Police, Central Reserve Police Force,

    Southern Sector Headquarters, whereby the joint representation

    submitted by both the petitioners seeking reinstatement to the post

    of Constable with all consequential benefits and back wages was

    rejected. The petitions further assail the revision order dated

    08.04.2013, by which the revision preferred by the petitioners was

    dismissed by the respondent authorities. The said revision arose

    out of the dismissal order dated 09.11.2009, whereby the

    petitioners were dismissed from service with effect from

    09.11.2009 by invoking the provisions of Section 11 of the CRPF

    Act, 1949 read with Rule 27-CC(ii) of the CRPF Rules, 1955. The

    petitioners also challenge the appellate order dated 21.03.2011,

    passed by the Appellate Authority, by which the appeal filed by the

    petitioners were rejected as being devoid of merit. By way of these

    petitions, the petitioners seek appropriate reliefs including

    quashment of the aforesaid orders and consequential

    reinstatement in service with all attendant benefits.

    4. Subject matter in brief are that these petitions arise out of the

    second round of litigation between the parties. The petitioners

    were appointed and posted as Constable (GD) in the 39th

    Battalion of the Central Reserve Police Force (CRPF) at

    Narayanpur (now Vijayawada). During the course of service, an
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    FIR No. 12/2009 was registered against the petitioners and other

    co-accused for offences under Sections 147, 148, 294, 506-B and

    307 of the Indian Penal Code, 1860. On account of his arrest in

    the said criminal case, the petitioners were placed under

    suspension with effect from 23.10.2009. Considering the alleged

    gravity of the accusations, the Disciplinary Authority formed an

    opinion that it was not reasonably practicable to conduct a

    departmental enquiry, and accordingly, no departmental enquiry

    was held. The petitioners were dismissed from service w.e.f.

    09.11.2009 by the Commandant, 39th Battalion, CRPF, by invoking

    Section 11 of the CRPF Act, 1949 read with Rule 27-CC(ii) of the

    CRPF Rules, 1955. Aggrieved by the dismissal order dated

    09.11.2009, the petitioners preferred a statutory appeal before the

    DIG, Range, CRPF, Bhubaneswar, which came to be rejected vide

    order dated 21.03.2011. Thereafter, the petitioners preferred a

    revision, which was also rejected by the competent authority vide

    order dated 08.04.2013. Meanwhile, the criminal trial proceeded

    before the learned Additional Sessions Judge, Kondagaon in

    Sessions Case No. 161/2012. Vide judgment dated 09.08.2012,

    the learned Trial Court acquitted the petitioners of all major

    charges and convicted him only under Section 323 IPC, imposing

    a fine of Rs. 500/-. Against the said conviction, the petitioners

    preferred Criminal Appeal No. 744/2012, wherein this Hon’ble
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    Court, vide judgment dated 15.05.2014, set aside the conviction

    and acquitted the petitioner of all charges. Upon their acquittal

    attaining finality, the petitioners submitted representations before

    the respondent authorities seeking reinstatement in service with all

    consequential benefits including back wages. However, due to

    inaction and uncertainty as to the competent authority, the

    petitioners was constrained to approach this Hon’ble Court by filing

    Writ Petition (S) No. 2269/2015 (Jaipati Yadav & Anr. v. Union of

    India & Ors.). The said writ petition was disposed of vide order

    dated 27.06.2023, directing the respondent authorities to consider

    and decide the petitioner’s representation within a stipulated

    period. Pursuant thereto, a fresh representation was submitted by

    the petitioners; however, the same has been rejected by

    Respondent No. 5 vide the impugned order dated 13.10.2023,

    without proper application of mind. It is submitted that the sole

    foundation of the petitioners’ dismissal was the criminal case

    registered against him, and once the petitioner stood fully

    acquitted by this Hon’ble Court, the very basis of the dismissal

    ceased to exist. The judgment of acquittal has attained finality,

    having not been challenged before the Hon’ble Supreme Court.

    Despite this, the respondent authorities have arbitrarily rejected

    the petitioner’s claim for reinstatement. Hence, the present

    petitions.

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    5. The petitioners have prayed for certain reliefs in the present

    writ petitions. Though there are some sort of differences in respect

    of prayer made by the petitioners in both the petitions, however, in

    sum and substance, the reliefs are altogether similar and identical.

    The reliefs prayed in WPS No. 9261/2023 (S.K. Pradhani vs.

    Union of India and others) are quoted hereinbelow in order to

    consider both the cases and to decide the same.

    “10.1) This Hon’ble Court may kindly be pleased to
    set-aside/quash the order dated 13.10.2023
    passed by Respondent no. 5, wherein the
    representation of the petitioner for his
    reinstatement to the post of Constable (GD) with
    all consequential benefits and back wages has
    been rejected (Annexure P/1).

    10.2) This Hon’ble Court may kindly be pleased to
    set-aside/quash the order dated 08.04.2013
    passed by the Revisional Authority i.e. by
    Inspector General of Police, Southern Sector,
    CRPF Hyderabad, wherein revision preferred by
    the petitioner was rejected. (Annexure P/3).

    10.3) This Hon’ble Court may kindly be pleased to
    issue such directions/orders to the respondent
    authorities to reconsider the candidature of the
    petitioner for his reinstatement to the post of
    Constable (GD) with all consequential benefits
    including back wages along with interest.

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    10.4) Any other relief which this Hon’ble Court
    deems fit and proper may also kindly be granted to
    the petitioner, in the interest of justice.”

    6. Facts of the case are that the petitioners were appointed and

    posted as Constable (GD) bearing Batch No. 025040067 in the

    39th Battalion of the Central Reserve Police Force (CRPF) at

    Narayanpur (now Vijayawada). On 23.10.2009, on the basis of

    allegations arising out of an incident during operational duty and

    the subsequent registration of FIR No. 12/2009 for offences under

    Sections 147, 148, 294, 506-B and 307 of the Indian Penal Code,

    1860, the petitioners along with other co-accused were arrested

    and placed under suspension with effect from 23.10.2009.

    Considering the circumstances, the Disciplinary Authority formed

    an opinion that it was not reasonably practicable to conduct a

    departmental enquiry and, accordingly, by invoking Section 11 of

    the CRPF Act, 1949 read with Rule 27-CC(ii) of the CRPF Rules,

    1955, the petitioners were dismissed from service w.e.f.

    09.11.2009 by the Commandant, 39th Battalion, CRPF. The

    statutory appeal preferred by the petitioners was rejected by the

    DIG, Range, CRPF, Bhubaneswar on 21.03.2011, and the revision

    petition was also dismissed by the IGP, Southern Sector, CRPF,

    Hyderabad on 08.04.2013. Meanwhile, the criminal trial proceeded

    before the learned Additional Sessions Judge, Kondagaon in
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    Sessions Case No. 161/2012, wherein vide judgment dated

    09.08.2012 the petitioners were acquitted of all major charges and

    convicted only under Section 323 IPC with a fine of Rs. 500/-,

    which conviction was subsequently set aside by this Hon’ble Court

    in Criminal Appeal No. 744/2012 vide judgment dated 15.05.2014,

    resulting in the petitioners’ complete acquittal. After their acquittal

    attained finality, the petitioners submitted representations seeking

    reinstatement with all consequential benefits; however, due to

    inaction, they were constrained to file Writ Petition (S) No.

    2269/2015, which was disposed of on 27.06.2023 with a direction

    to the respondent authorities to consider their representation.

    Pursuant thereto, a fresh representation dated 08.07.2023 was

    submitted, which came to be rejected by Respondent No. 5 vide

    impugned order dated 13.10.2023, despite the fact that similarly

    situated co-delinquents, who were dismissed by the same order

    dated 09.11.2009 and later acquitted, were reinstated in service,

    thereby compelling the petitioners to file the present petitions

    seeking redressal of their grievance.

    7. Fact of the case in hand is that on 23.10.2009, pursuant to

    registration of FIR No. 12/2009 for offences under Sections 147,

    148, 294, 506-B and 307 of the IPC, the petitioner along with other

    co-accused was placed under suspension. Thereafter, vide order

    dated 09.11.2009, the petitioner was dismissed from service by the
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    Commandant, 39th Battalion of the Central Reserve Police Force,

    by invoking Section 11 of the CRPF Act, 1949 read with Rule 27-

    CC(ii) of the CRPF Rules, 1955. The statutory appeal preferred by

    the petitioner was rejected by the DIG, Range, CRPF,

    Bhubaneswar on 21.03.2011, and the revision petition was also

    dismissed by the competent authority vide order dated 08.04.2013.

    Meanwhile, the learned Additional Sessions Judge, Kondagaon, in

    Sessions Case No. 161/2012, vide judgment dated 09.08.2012,

    acquitted the petitioner of all major charges and convicted him only

    under Section 323 IPC, imposing a fine of Rs. 500/-. The said

    conviction was challenged before this Hon’ble Court in Criminal

    Appeal No. 744/2012, and vide judgment dated 15.05.2014, the

    petitioner was acquitted of all charges. Subsequently, due to

    inaction on the part of the respondent authorities, the petitioner

    approached this Hon’ble Court by filing Writ Petition (S) No.

    2269/2015, which was disposed of on 27.06.2023 with a direction

    to the respondents to consider and decide the petitioner’s

    representation within a stipulated period. Pursuant thereto, the

    petitioner submitted a fresh representation on 08.07.2023, which,

    however, came to be rejected by the respondent authorities vide

    the impugned order dated 13.10.2023, giving rise to the present

    petition.

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    8. Learned counsel for the petitioners submit that the

    suspension and subsequent dismissal of the petitioners were

    founded solely on the registration of FIR No. 12/2009 and the

    conviction recorded by the Trial Court, and once this Hon’ble

    Court, vide judgment dated 15.05.2014, acquitted the petitioners of

    all charges and the said judgment has attained finality having not

    been challenged before the Hon’ble Supreme Court, the very

    substratum of the impugned termination ceased to exist, thereby

    entitling the petitioners to reinstatement with all consequential

    benefits. It is further submitted that even assuming, though denied,

    that the acquittal was on benefit of doubt, the same does not dilute

    the legal effect of acquittal, particularly when no independent

    departmental enquiry was ever conducted and the dismissal was

    passed by invoking extraordinary powers under Rule 27-CC(ii) of

    the CRPF Rules, 1955. Learned counsel submits that the

    petitioners have been made to suffer for more than a decade

    without any justification, depriving them of livelihood and dignity,

    and the rejection of their representation reflects complete non-

    application of mind. It is also contended that similarly situated co-

    delinquents, who were dismissed by the same order dated

    09.11.2009 and later acquitted, have already been reinstated in

    service, and denial of the same relief to the petitioners amounts to

    hostile discrimination and violation of Articles 14 and 21 of the
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    Constitution of India. Learned counsel therefore submits that the

    impugned order is arbitrary, unsustainable in law, and liable to be

    quashed, and the petitioners deserve reinstatement in service in

    the Central Reserve Police Force with all consequential benefits.

    Reliance has been placed on the judgments of the Hon’ble

    Supreme Court in the matters of Vijay Singh Bhadauriya vs.

    State of Madhya Pradesh and others 2025 SCC OnLine MP

    3832, Zuber Ahmed vs. The Union of India and others 2015

    SCC OnLine P&H 8826 and also the order passed by this Court in

    WPS No.1371/2023 (Nansai vs. South Easter Coal Ltd. And

    others).

    9. Learned counsel for the respondents submits that the

    dismissal of the petitioners from service was not based solely on

    the registration of FIR No. 12/2009 or the outcome of the criminal

    proceedings, but on the petitioners’ alleged conduct involving

    indiscipline and misconduct during operational duty, which was

    considered serious in the context of a uniformed force like the

    Central Reserve Police Force. It is submitted that a Preliminary

    Enquiry was conducted at the spot and the material on record,

    including statements of concerned personnel and medical records,

    indicated involvement of the petitioner, and in view of the

    prevailing circumstances, the Disciplinary Authority formed an

    opinion that it was not reasonably practicable to hold a regular
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    departmental enquiry, leading to invocation of Section 11 of the

    CRPF Act, 1949 read with Rule 27-CC(ii) of the CRPF Rules,

    1955. Learned counsel further submits that the acquittal of the

    petitioners in the criminal appeal does not automatically entitle

    them to reinstatement, as departmental action and criminal

    proceedings operate in different fields and are governed by

    different standards of proof. It is also contended that the

    petitioners’ appeal and revision were duly examined and rejected

    by the competent authorities and that the impugned order dated

    13.10.2023 was passed after considering the petitioners’

    representation and relevant records. Learned counsel submits that

    discipline is an important consideration in a force such as CRPF

    and, therefore, no case for interference with the impugned order is

    made out, and the petitions are liable to be dismissed.

    10. I have heard learned counsel for the parties and perused the

    material available on record.

    11. From a bare perusal of the impugned order removing the

    petitioners from service, it appears that the procedure envisaged

    under Section 11 of the CRPF Act, 1949 read with Rule 27(CC)(II)

    of the CRPF Rules, 1955 has not been followed in its true spirit.

    No proper opportunity of hearing was afforded to the petitioners.

    The appellate as well as revisional authorities have mechanically

    affirmed the order of punishment merely on the premise that the
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    disciplinary authority had recorded satisfaction that holding a

    regular departmental enquiry was not reasonably practicable, and

    accordingly proceeded to remove the petitioners from service

    without conducting any enquiry. It is significant to note that none of

    the witnesses were examined in the so-called enquiry. The

    department justified this omission on the ground that no witness

    was willing to come forward to depose and, therefore, their

    statements were not recorded. Such an approach is wholly

    contrary to the settled principles governing disciplinary

    proceedings.

    12. Removal from service entails serious civil consequences.

    Therefore, the competent authorities are required to strictly adhere

    to the mandatory procedural safeguards prescribed under law. The

    delinquent employee must be given adequate opportunity at every

    stage — issuance of show cause notice, framing of definite

    charges, supply of relevant documents, leading of evidence, and

    opportunity to cross-examine departmental witnesses as well as to

    adduce defence evidence. Unless such procedure is duly followed,

    imposition of a major penalty like removal from service, without

    holding a proper enquiry and without granting reasonable

    opportunity of hearing, cannot be sustained in the eyes of law.

    13. In the present case, the initiation of the so-called enquiry

    appears to have been founded solely upon a criminal case
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    registered against the petitioners. They were convicted for the

    offence punishable under Section 323 IPC and sentenced to pay a

    fine of Rs. 500/- each. However, their conviction was subsequently

    set aside by this Court in Criminal Appeal No. 744/2012 on the

    ground that the prosecution failed to prove the case beyond

    reasonable doubt and the appellants were entitled to benefit of

    doubt.

    14. Though it is true that departmental proceedings and criminal

    proceedings operate in distinct spheres, once the departmental

    enquiry itself was not conducted in accordance with the procedure

    prescribed under law and no reasonable opportunity of hearing

    was granted to the petitioners, the entire action stands vitiated. In

    the absence of a proper enquiry, it would be difficult to uphold the

    orders passed by the disciplinary authority and affirmed by the

    appellate and revisional authorities.

    15. It is also pertinent to mention that other co-delinquents, who

    were similarly charged and were acquitted in the criminal case,

    were reinstated in service. The present two petitioners, who were

    initially convicted under Section 323 IPC but subsequently

    acquitted in appeal, were not extended similar benefit. The nature

    of the dispute leading to the criminal case also indicates that the

    incident arose out of a petty altercation which was not ultimately

    proved in accordance with law.

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    16. All these circumstances cumulatively demonstrate that non-

    compliance with the mandatory procedural requirements has

    resulted in miscarriage of justice. In a case where a major

    punishment such as removal from service is imposed, strict

    adherence to the prescribed procedure and grant of adequate

    opportunity to the delinquent employee is indispensable. Failure to

    do so renders the impugned action unsustainable in law.

    17. The Hon’ble Supreme Court in Zuber Ahmed (Supra) has

    held that dispensing with a regular departmental enquiry on the

    ground that it is “not reasonably practicable” to hold such enquiry

    is an exceptional power, which must be exercised strictly in

    accordance with law. The authority is required to record cogent

    and convincing reasons demonstrating real and objective

    satisfaction that holding the enquiry was not feasible. Mere ipse

    dixit of the disciplinary authority or vague apprehensions cannot

    justify bypassing the mandatory safeguards of natural justice,

    particularly when a major penalty like dismissal or removal from

    service is imposed. The relevant paragraphs are quoted

    hereinbelow:-

    “63. That the dismissal from service of the
    petitioner by orders dated March 19. 1993 is not in
    accordance with s. 12 CRPF Act read with r. 27
    enquiry which is mandatory under r. 27(c) could
    not have been of the CRPF Rules. This dismissal
    without conducting a departmental dispensed with
    since the petitioner had not been convicted on a
    “Criminal Charge” stricto sensu as carefully urged
    17

    by Mr. Cheema to take the trial out of the charge
    framed against the accused. Therefore, any
    power exercised of dismissing the petitioner
    without an enquiry and Invoking r. 27(cc) is not
    permissible since the petitioner was convicted of
    an offence under s. 10(n) l.e. of an act or omission
    “prejudicial to good order and discipline”. Hence,
    the impugned order passed without enquiry only
    on the ground of conviction under s. 10(n) cannot
    be sustained since the petitioner has not been
    convicted on a criminal charge by a Court of a
    criminal offence under the Penal Code, 1860.

    64. Mr. Malhotra submits that under s. 4 Cr.P.C. all
    offences under the IPC shall be Investigated,
    inquired into, tried and dealt with according to the
    provisions contained in the Cr.P.C., 1973. Section
    26 prescribes that any offence under the IPC may
    be tried by a Court, which such offence is shown
    in the First Schedule of the Cr.P.C. to be triable.
    Under the First Schedule to the Cr.P.C., any
    offence under s. 354 IPC i.e. assault or use of
    criminal Force upon a woman with intent to
    outrage her modesty, is triable by a Magistrate
    which as per the explanatory note No. 2 to the
    First Schedule means a Magistrate of First
    Class/Metropolitan Magistrate, but not an
    Executive Magistrate. Hence, the petitioner could
    neither be tried nor was he tried or punished
    under s. 354, IPC by the 6th respondent acting as
    Chief Judicial Magistrate by virtue of being a
    Commandant in CRPF. Therefore, the petitioner
    was not convicted on a criminal charge under the
    IPC. Hence, r.27(cc) of the CRPF Rules was
    wrongly invoked by the 6th respondent in passing
    the impugned order dated March 19, 1993 as the
    petitioner was neither charged, nor tried or
    convicted of any offence under the IPC, much less
    s. 354
    , IPC. Therefore, the petitioner could not
    have been dismissed from service without
    compliance of r. 27(a) and r. 27(c) requiring
    holding of a departmental enquiry.

    65. Submits that the order of dismissal from
    service has been passed by the 6th respondent in
    a routine manner without any application of mind.
    The action of dismissal being a severe major
    punishment, it has to be awarded only if there are
    18

    very serious charges and the action of dismissal
    from service should be commensurate to the
    gravity of the charges. In the case of the
    petitioner, he was not tried or convicted of a more
    heinous offence under s. 9 of the CRPF Act. In
    fact,even under s. 10 stipulating less heinous
    offences, a residuary charge i.e. s. 10(n)
    prescribing an act or omission, which, though not
    specified in this Act, which is prejudicial to good
    order and discipline, was levelled against the
    petitioner. The 6th respondent did not level any
    serious allegations against the petitioner under s.
    9
    CRPF Act. Therefore, dismissing the petitioner
    from service, which is a major punishment for a
    less heinous offence without holding any
    departmental enquiry which is mandatory under
    rls. 27(a) and (c), clearly shows non-application of
    mind and evidence of bias. See Ranjit Thakur and
    Mohd. Zakir cases supra. Therefore, the
    impugned order of dismissal from service of
    petitioner cannot be sustained in law.
    Disproportinate and petitioner: excessive
    punishment imposed on petitioner:

    66. That the punishment of dismissal from service
    is grossly disproportionate, excessive and is not
    commensurate with the alleged charge which
    does not establish any proved misconduct which
    is defined or identified under the CRPF Act. There
    is no charge proved which is remotely made out
    alleging use of criminal force with intent to outrage
    the modesty of a woman. Hence, an undefined act
    which is stated to be prejudicial to good order and
    discipline is highly subjective. The opinion of the
    6th respondent in alleging this charge as
    prosecutor, judge and disciplinary authority is
    highly opinionated and blased. The powers given
    to one individual to judge the parameters for this
    offence as a residuary clause without any reasons
    being given or justification to support it, makes of
    award of punishment of dismissal highly
    inequitable and unjust. It was unfair to impose this
    punishment without even giving a hearing or
    holding a departmental enquiry in the service
    matter. Therefore the punishment imposed shocks
    the conscience of any individual and in terms of
    the law laid down in Union of India v. Parma
    19

    Nand, AIR 1989 SC 1185 and also reiterated in
    Commandant, 22 Battalion, CRPF Srinagar v.

    Surinder Kumar, (2011) 10 SCC 244, the
    punishment of dismissal from service on the
    petitioner is strikingly disproportionate and
    warrants interference by this Court as being
    perverse and irrational having regard to the nature
    of the charge of misconduct which was not a
    criminal charge, molestation attempt not having
    being established when the complainant resiled
    from her previous statement and failed to
    recognize Zuber Ahmed as the person charged.
    For judicial treatment of difference between
    ‘strikingly disproportionate’ punishment and
    ‘merely disproportionate’, see Union of India v.
    R.K. Sharma
    , AIR 2001 SC 3053. Hence, the
    dismissal from service of the petitioner cannot be
    sustained for this reason as well.

    Impermissible concurrent exercise of powers by
    respondent No 6:

    67. That the simultaneous exercise of power in
    three different capacities by Sh. Pushkar Singh le.

    the 6th respondent in his separate official
    positions as Chief Judicial Magistrate and
    Commandant is offjustified, Impermissible and
    legally untenable in accordance with the prevailing
    provisions of the Cr.P.C., 1973 on account of the
    following reasons which are supplemented by the
    description in written submissions.

    68. Even though there is no formal amendment
    Incorporating the provisions of Cr.P.C., 1973 in the
    CRPF Act, 1949 and the CRPF Rules, 1955, the
    provisions of Cr.P.C., 1973 may have to be read
    into the various provisions of the CRPF Act and
    Rules as a substitute to the Cr.P.C., 1898, which
    stands repealed by s. 484 of the Cr.P.C., 1973.
    Hence, by necessary Implication, the 1973 Code
    shall stand automatically substituted.

    80. framed by the Central Government in exercise
    of powers conferred by s. 18 of the CRPF Act. A
    brief summary of the relevant provisions is set
    down as hereunder:

    (1) Ss. 9 and 10 of The CRPF Act prescribe and
    contain “more heinous offences” and “less
    heinous offences”. s. 10(n) contains a residuary
    punishment clause, “which, though not specified
    20

    in this Act, is prejudicial to good order and
    discipline” and entailspunishment as for other
    “less heinous offences”. No provision in the Act
    defines or prescribes a determination process of
    any such “less helnous offence” though r. 27
    stipulates the authority and the procedure
    provided for conducting enquiries and
    punishments to be inflicted after a formal
    departmental enquiry.

    (il) Section 11 of The CRPF Act prescribe that the
    “competent authority” may, subject to the Rules
    under the Act, “award in lieu of, or in addition to,
    suspension or dismissal anyone or more of the
    following punishments to any member of the
    Force” which have been stipulated as reduction in
    rank, fine, confinement to quarters/quarter guard
    or removal from distinction/special emolument in
    the Force. S. 12 states that, “every person
    sentenced under this Act to imprisonment may be
    dismissed from the Force” and every such person
    shall, if so dismissed, be Imprisoned in the
    prescribed prison, or be confined in the quarter-

    guard or such other place as the Commandant or
    the Court may consider suitable. Section 2(b) of
    the Act defines, “close arrest and s. 2(e) defines
    “open arrest” as specified in s. 15.

    (III) That under s. 16 of the Act, “Notwithstanding
    anything contained in the Code of Criminal
    Procedure
    , 1898 (5 of 1898) the Central
    Government may invest the Commandant or an
    Assistant Commandant with the powers of a
    Magistrate of any Class for the purpose of
    enquiring into or trying any offence committed by
    member of the Force and punishable under this
    Act, or any offence committed by a member of the
    Force against the person or property of an
    another member.”

    (iv) Rule 27(cc) is part of a provision which deals
    with procedure to be adhered to in disciplinary
    enquiries, prescribes three grounds where the
    competent authority, ‘may’ impose a departmental
    penalty considering the circumstances of the
    case, to make such orders thereon as it deems fit.
    Thus, this provision of the rules, if Invoked, do not
    require any notice, hearing, opportunity of rebuttal
    or defence before any penalty is Imposed on a
    21

    delinquent member of the Force. It may be
    pointed out at the outset that if r. 27(cc) is
    compared and contrasted with Article 311(2) of the
    Constitution, then, r. 27(cc) is differently worded.
    Rule 27(cc) dispenses with the applicability and
    requirement of a Departmental enquiry in three
    contingencies and states that, “the authority
    competent to Impose the penalty may consider
    the circumstances of the case and make such
    orders thereon as it deems fit.” In so far Article
    311(2)
    is concerned, it provides that if a person is
    dismissed, removed or reduced in rank, “this
    clause shall not apply,” inter alia, “where a person
    is dismissed or removed or reduced in rank on the
    ground of conduct which hasled to his conviction
    on a criminal charge.”

    (v) Hence, the distinguishing featurich the ERPF
    distrit the use of the word ‘may’ in r. 27(cc) which
    gives a discretion to the whereas Article 311(2)
    prescribes punishing authority, a mandatory ‘shall’
    leaving no discretion to the punishing authority as
    explained by the Supreme Court in past
    precedents. Hence, Invoking of r. 27(cc)
    prescribing the use of word, “may” in the light of
    Interpretation of Articles 14, 16 and 21 of the
    Constitution, would require reasons to be
    recorded in exercising any discretion dispensing
    with an enquiry if any of the three contingencies of
    r. 27(cc) when are invoked for dismissing the
    services of a Member of the Force.

    (vi) Rule 36 of the CRPF Rules prescribes that,
    “all trials in relation to any one of the offences
    specified in s. 9 or 10 shall be held in accordance
    with the procedure laid down in the Code of
    Criminal Procedure
    Code, 1898.” Though, there
    seems to be no formal amendment replacing it
    with the Code of Criminal Procedure, 1973, a note
    in the Bare Act indicates “see now the Code of
    Criminal Procedure
    , 1973″ which is merely
    editorial and not the voice of Parliament.

    (vii) Rule 36(B) of the CRPF Rules enjoins that for
    the purposes of Chapter VI-A dealing with place of
    trial and adjustment of jurisdiction of ordinary
    Courts, “Magistrate” means a Magistrate other
    than the Commandant or an Assistant
    Commandant on whom the powers of a
    22

    Magistrate have been conferred under sub s. 2 of
    s. 16.

    81. From a collective reading of the above
    provisions, it can be understood that a
    Commandant under s. 16 of the CRPF Act, whilst
    acting as a Magistrate and conferred with the
    powers under the Code of Criminal Procedure
    Code, 1898 (“see now the Code of Criminal
    Procedure
    , 1973″) can sentence a person to more
    or less helnous offences under Ss. 9 and 10 of the
    Act. Thereafter, under Ss. 11 and 12, further
    punishments including dismissal from service of
    the Force can be imposed by the Commandant as
    the Disciplinary Authority for which under r. 27(cc),
    discretion can be exercised to make such orders
    as deemed fit. Therefore, if a member of the
    Force is convicted on a criminal charge, he can be
    removed from service without any notice, enquiry
    or hearing under r. 27(cc) in the discretion of the
    Commandant as the Disciplinary Authority.
    However, the provisions in s. 12 using the words
    that “every person sentenced under this Act to
    imprisonment may be dismissed” are different
    from the words “conviction on a criminal charge”

    used in s. 12 of the Act. Thus, the different
    wording, may lead to a conclusion that dismissal
    from service would require a formal departmental
    enquiry prescribed under r. 27 in respect of
    aperson sentenced under this Act to
    imprisonment. The protection of Articles 14 and 16
    available to all citizens necessitates the
    requirements of equality of treatment even to
    members of a disciplined Force as the CRPF.

    82. Thus it may be seen that departmental
    enquiries in the CRPF are conducted under s.
    11(1)
    of the CRPF Act read with r. 27(c) of the
    CRPF Rules since s. 11 is subject to rules made
    under the Act. In contrast, judicial trials are also
    held under Ss. 9 and 10 of the CRPF Act read
    with r. 36 and r. 36 E to 36 J of the CRPF Rules.
    Section 11 deals with minor punishments and
    contains overlapping of jurisdictions and requires
    to be read in its principles since it establishes a
    connection with rules:

    “11. Minor punishments. (1) The Commandant or
    any other authority or officer as may be
    23

    prescribed, may, subject to any rules made under
    this Act award in lieu of or in addition to,
    suspension or dismissal any one or more of the
    following punishments to any member of the force
    whom he considered to be guilty of disobedience,
    neglect of duty, or remissness in the discharge of
    any duty or of other misconduct in his capacity as
    a member of the force, that is to say:-

    (a) reduction in rank;

    (b) fine of any amount not exceeding one month’s
    pay and allowances;

    (c) confinement to quarters, lines or camp for a
    term not exceeding one month;

    (d) confinement in the quarter-guard for not more
    than twenty eight days with or without punishment
    drill or extra guard, fatigue or other duty; and

    (e) removal from any office of distinction or special
    emolument in the force.

    (2) Any punishment specified in clause (c) or
    clause (b) of sub- section (1) may be awarded by
    any gazetted officer when in command of any
    detachment of the force away from headquarters,
    provided he is specially authorised in this behalf
    by the Commandant.

    (3) The Assistant Commandant, a Company
    Officer or a Subordinate Officer, not being below
    the rank of Subedar or Inspector commanding a
    separate detachment or an outpost, or in
    temporary command at the headquarters of the
    force, may, without a formal trial, award to any
    member of the force who is for the time being
    subject to his authority any one or more of the
    following punishments for the commission of any
    petty offence against discipline which is not
    otherwise provided for in this Act or which isof a
    Chief Judicial Magistrate, almost visibly power
    drunk but kneeling before and kowtowing to the
    powers that be, given the formidable location of
    the alleged occurrence and the overwhelming
    position of the complainant who ultimately made
    no complaint whatsoever to put the criminal law
    into motion or to be taken criminal cognizance of,
    the entire episode rather murky.

    Code of Criminal Procedure, 1898/1973:

    84. However, since the functions of a Judicial
    Magistrate are conferred upon a Commandant of
    24

    the CRPF by virtue of s. 16 of the CRPF Act, it
    may be necessary to examine certain provisions
    of the Cr.P.C., 1898 authorization and exercise of
    judicial powers by CRPF Commandants, as as
    also the present Cr.P.C., 1973, to test the also to
    simultaneously exercise powers of a disciplinary
    authority.

    85. That under s.s 30, 32 and 34, 36 and 37 of the
    Cr.P.C 1898, as it originally stood, Deputy
    Commissioners or Assistant Commissioners were
    invested with powers to try as a Magistrate all
    offences not punishable with death. Hence, under
    Chapter III dealing with power of Courts under the
    old Cr.P.C., 1898, where the Executive Officers
    were invested with wide powers to exercise
    judicial functions as Magistrates.

    86. That to make criminal procedure more
    comprehensive, the Law Commission undertook a
    detailed examination of the Cr.P.C., 1898 and
    submitted its report on February 19, 1968.

    Thereafter, since the Law Commission was
    reconstituted, another detailed 41st Report was
    submitted by the Law Commission in September
    1969. Thereafter, Bill 41 of 1970 was introduced in
    the Rajya Sabha on December 10, 1970. The Bill
    was referred to a Joint Select Committee of both
    Houses of Parliament. Incorporating the
    recommendations of this Committee, the Cr.P.C
    Bill was taken up for consideration by Parliament.
    This Bill having been passed by both the Houses
    of Parliament, received the assent of the
    President on January 25, 1974 and came into
    Force on April 1, 1974 as the Cr.P.C., 1973. One
    of the main recommendations of the Law
    Commission was to provide for the separation of
    the Judiciary from the Executive on an All India
    basis to ensure improvement in the quality and
    speed of all Judicial Magistrates who would be
    legally qualified and trained persons within the
    control of and under the different High Courts.
    Further, to do away with the scope of arbitrary
    exercise of power and to dispense with
    discretionary powers and act in a manner
    consistent with known principles of law, this
    conscious decision was taken in view of the
    provisions of Article 50 of the Constitution
    25

    providing for the separation of the judiciary from
    the Executive in public services.

    87. That it may also be pertinent to point out that
    according to Schedule II of the Law Reforms
    Ordinance, 1978 (Ordinance XLIX of1978) s. 34
    was omitted. The Law Commission in the 41st
    Report took note of the Union Territories
    (Separation of Judicial and Executive Functions)
    Bill, 1968 as Introduced in Parliament containing
    the following clause;

    “Where under any law, the functions exercisable
    by a Magistrate relating to matters which involves
    the appreciation or shifting of evidence or
    formulation of any decision which exposes any
    person to or penalty, detention in custody pending
    any punishment, Investigation, enquiry or trial or
    would have the effect of sending him for trial
    before any court, such functions shall, subject to
    the provisions of this Act and the Code of Criminal
    Procedure
    , 1898, as amended by this Act, be
    exercisable by Judicial Magistrate; and where
    such functions relate to matters which are
    administrative or Executive in nature, such as
    granting of a license, the suspension or
    cancellation of a license, sanctioning a
    prosecution or withdrawing from a prosecution,
    they shall, subject as aforesaid be exercised by
    an Executive Magistrate.”

    88. Based on the above proposal, the Law
    Commission made a broad classification of the
    functions of Judicial and Executive Magistrates in
    the 41st Report.

    89. That in Chapter II dealing with the Constitution
    of criminal courts and offices, the Law
    Commission in its 41st Report has specifically
    suggested that Judicial Magistrates shall be
    appointed by the High Court at such places as the
    State Government may in consultation with the
    High Courts duly notified in the official Gazette.
    Further, Special Judicial Magistrates may be
    appointed by the High Court by conferring upon
    any person a Judicial post if he possesses such
    qualifications as may be prescribed by the High
    Court. Likewise, the Law Commission also
    suggested appointment of Executive Magistrates
    26

    by the State Government to exercise Executive
    functions in their jurisdiction.

    90. That the above provisions of constitution of
    Criminal Courts and offices find their statutory
    place in Chapter II of the Cr.P.C from Ss. 6 to 25.
    Judicial Magistrates exercising judicial functions
    are appointed by the High Court and Special
    Judicial Magistrates can be appointed for a term
    not exceeding one year at a time, under s. 13 if a
    person possesses such qualification or
    experience in relation to legal affairs as the High
    Court may by rules specify. Likewise, public
    prosecutors who have been practicing as an
    Advocate for not less than 7 years can be
    appointed by the Central Government or the State
    Government for every High Court. Executive
    Magistrates can be appointed by the State
    Government under s. 20 of the Cr.P.C. Thus, there
    is a clear separation of powers as contemplated
    by Article 50 of the Constitution and
    Judicialpowers are not exercised by Executive
    Magistrates. The amicus had also placed on
    record on January 28, 2015 the relevant extract of
    the provisions of the Cr.P.C., 1898 as also the
    relevant extract of the 41 report of the Law
    Commission of India, September 1969 where
    upon the changes were made in the Cr.P.C., 1898
    given rise to the current Cr.P.C., 1973.

    91. Bearing in mind that the CRPF is the main
    counter insurgency Force in India serving at all
    sensitive locations and borders in India, and is
    also the largest Central Armed Police Force
    comprising about 230 battalions and reported over
    3 lac personnel, it is suggested that an
    appropriate reference be made to the Law
    Commission of India for suggesting suitable
    amendments to the CRPF Act, 1949 and the
    CRPF Rules, 1955 so that these provisions can
    be brought at par with the provisions of the Cr.P.C
    1973 and the constitutional mandate under Article
    50
    of the Constitution stipulating a legal mandate
    to separate the Judiciary from the Executive in the
    public services of the State. Hence, CRPF
    Personnel ought to be administered by a law
    which is in agreement with the provisions of the
    Constitution without infringing Cr.PC, 1973.

    27

    92. It may be useful to quote that the Army Act,
    1950
    read with the Army Rules, 1954, the Air
    Force Act, 1950
    and the Navy Act, 1957 which are
    post Constitutional laws conforming to existing
    laws do prescribe a proper procedure in
    accordance with law to regulate disciplinary and
    penal punishments for offences committed in
    service through a process of Court Martial and
    other legal procedural methods devised and
    employed in accordance with law and rules of
    natural justice.

    93. Likewise, the Border Security Force Act, 1968
    read with the BSF Rules, 1969, provides a
    Security Force Court for dealing with offences for
    members of BSF which conform to the
    Constitution and do not infringe other existing
    statutory laws.

    94. Since, CRPF is the largest armed Central
    Reserve Police Force, it can no longer be
    continued to be administered by an archaic pre-
    Constitutional law whose provisions are not in
    accordance with the protections guaranteed under
    the Constitution of India as also the principle of
    separation of judicial powers under the Cr.P.C.,
    1973. It may no longer be legally tenable to
    conduct judicial trials by the CRPF under the
    Cr.P.C, 1898.”

    95. Accordingly, a copy of this judgment is
    remitted to the Law Commission of India and the
    Ministry of Law and Justice, New Delhi to
    contemplate upon devising a mechanism for
    administration of discipline and imposition of
    penalties upon CRPF personnel which are the
    touch stone and main stream of a disciplined
    Force and by separation ofJudicial and executive
    power and to consider points in para. 84 above.
    The Law Commission may also deliberate the
    issue where the minimum sentence is not
    prescribed by law then what should be the bare
    minimum sentence. In other words, how would
    “minimum” sentence be quantified. This phrase
    whether requires to be qualified? Whether Judicial
    discretion requires to be rationed and rationalized
    when awarding sentence of “till the rising of the
    Court” on a criminal charge. This is for the
    Commission and the Parliament to debate.

    28

    96. That when s. 12 of the Act is directory in
    nature and not mandatory then dismissal from
    service should normally follow formal
    departmental enquiry in terms of the procedure
    prescribed under r. 27 (1). That due process
    established by law was departed from and straight
    away, on the same day three major events with
    lifelong consequences were synchronized and
    inflicted by the Commandant; the conviction, the
    sentence and the dismissal. Even assuming
    arguendo that a regular enquiry was not
    necessary under r. 27, even then, the petitioner
    should have been served with a show cause
    notice to hear him out if he had anything to say
    against dismissal or proposed dismissal in view of
    discretion under s. 12 and in absence of the
    mantra of the words “conduct which led to the
    conviction” employed therein as in Article 311 of
    the Constitution on which Tulsiram Patel case Is
    founded and Chellapan case overruled on point of
    hearing. That opportunity was not given and the
    principles of natural justice were breached. Rule
    27 is a rule of natural justice. Section 12(1) is an
    enabling provision. Therefore, the limitation on
    exercise of power of the Commandant while
    acting as the disciplinary authority in relation to a
    constable in CRPF stands circumscribed by r. 27.
    The dismissal order has undoubtedly been
    passed under s. 12(1) of the Act which does not
    contain the words exactly as are found in Article
    311(2)(a)
    of the Constitution. Therefore, none can
    be imported into s. 12 which is special law for
    CRPF personnel traceable to what is now Article
    33
    of the Constitution of India. History has it that
    the CRPF was a successor to the The Crown
    Representative’s Police Force raised in British
    India under an enactment called The Crown
    Representative’s Police Force Law, 1939, which
    was made under the Foreign (Jurisdiction) Order,
    1937 to provide for the constitution and regulation
    of the Force, which automatically ceased to have
    effect from the August 15, 1947. However, the
    Government of India Act, 1935 continued to
    operate till it was transformed into the Constitution
    of India. The CRPF Act, 1949 was legislated by
    the Dominion from Paragraph 1 of List 1 of the
    29

    Seventh Schedule to the Government of India Act,
    1935
    falling in the category of “any other armed
    Forces raised or maintained by the Dominion’
    which is now replaced by the Union of India
    administered through the Central Government.

    97. Section 12(1) of the Act enables the punishing
    authority to choose one of the minor punishments
    specified in s. 11 for one or more of the heinous
    offences specified in s. 9 or for less heinous
    offences enumerated in s. 10. I find no cogent or
    good enough reason not to read Serial No. 1 of
    the Table under r. 27 as part of the substantive
    mandatory procedure required to be followed,
    though falling in rules with no power drawn from
    the provisions of the Act directly or impliedly. A
    reading of r. 27 appears not to leave any
    discretion in the Commandant when not only the
    proposed choice of punishment is dismissal or
    removal from the Force, but for any reason
    whatsoever, for any of the misconducts specified
    in Ss. 9 and 10 of the Act except to visit after a
    regular departmental enquiry is held and in no
    other manner even after sentencing for an offence
    under s 10(i) (c) of the Act. It is well settled that if
    a thing is required to be done in a particular
    manner, it should be done in that manner or not at
    all. Otherwise, the action would be open to
    criticism as one being arbitrary and unreasonable.
    I would repeat the famous words of Justice Felix
    Frankfurter of the United States Supreme Court in
    McNabb v. United States, 318 U.S. 332 that the
    “history of liberty has largely been the history of
    the observance of procedural safeguards”. Rule
    27 Is an absolute procedural safeguard while S.
    12(1)
    is enabling and directory in nature, It
    enables but does not command the Commandant
    to do what he wishes and as he likes. When the
    disciplinary authority/Commandant forms opinion
    under s. 12(1) as to what has to be done after
    awarding sentence, then the word ‘may’ used in s.
    12
    comes into play and would goad and guide him
    to resort to fair procedure of domestic enquiry
    recognized by r. 27 of the CRPF Rules, 1955 to
    arrive at the truth or the most probable truth, when
    law does not and is not intended to deal with
    absolutes while reconstructing today of events in
    30

    the past based on the limitations of admissible
    evidence, principles of hearsay etc. and lack of
    direct facts proved in a trial.

    98. There appears to be yet another fundamental
    reason which persuades me to hold that due
    procedure was not followed in ordering dismissal
    without enquiry. That reason lies in sub section (2)
    of s.12 of the Act. The sub s. lays down that:

    “Every such person shall, if he is so dismissed, be
    imprisoned in the prescribed prison,…”. A priori
    Imprisonment follows dismissal. It is not the other
    way round. Dismissal is an inherent right of the
    employer reflected in the General Clauses Act,
    1897
    . Provisions of s. 12 do not speak of
    ‘conviction’ but speak of ‘sentencing’ a ‘person’ ‘to
    imprisonment’. It is axiomatic in criminal law that
    sentence follows conviction. Thus, conviction on a
    criminal charge has to be read into s. 12 of the
    CRPF Act, 1949 even if the word is not found in
    the statutory enactment and onlysentenced’. But
    an order of dismissal based on sentence passed
    on a proven criminal charge is to be visited with
    imprisonment in view of the word ‘shall’ used in s.
    12(2)
    . This part is apparently mandatory leaving
    no elbow room or discretion in the trial judge, the
    Commandant, CRPF to act to the contrary.
    However, if dismissal is not selected as penalty
    following sentence then the “Court or the
    Commandant” can order confinement in quarter-
    guard. I think that dismissal cases cannot go to
    quarter-guard. The ‘place of Imprisonment’ under
    s.12(2)
    is the ‘prescribed prison”. The expression
    ‘prescribed prison’ is not defined in the Act nor
    was required as it is procedural and penal result
    of criminal consequences. It is r. 36(2) which tell
    us that it is the place which is the nearest jall. This
    means where a sentence of imprisonment shall be
    served. Court is not a jail but can be a place of
    imprisonment and a person sentenced can be
    imprisoned in a court room for the working day.
    Section 389, Cr.P.C. does not speak of jail
    sentence but of imprisonment. The ordinary
    meaning of the word ‘sentence’ is ‘punishment
    given by a law court’. A direction by the court that
    a person shall be confined in court premises till
    the court rises constitutes imprisonment within the
    31

    meaning of the Penal Code and the Code of
    Criminal Procedure
    as it is a confinement and
    curtailment of civil liberty Imposed by authority of
    law. But the CRPF Act is a special statute and is
    differently worded in r. 36(b) which leaves no
    discretion except to confine a person sentenced
    under the Act in the nearest jail depending on
    feasibility of transport and escort either to the
    nearest jail or Quarter -Guard. This was not done
    to Zuber Ahmed. The provision reads: “36.
    Judicial Trials

    (a) All trials in relation to any one of the offences
    specified in s. 9 or’ s. 10 shall be held in
    accordance with the procedure laid down in the
    Code of Criminal Procedure, 1898. (1973)

    (b) All persons sentenced to imprisonment under
    the Act shall be confined in the nearest jail.

    Provided that if the sentence of imprisonment is
    for one month or less, or where the Commandant
    is satisfied that due to the difficulty of transport
    and escort of the person sentenced to
    imprisonment, to the nearest jail, it is so desirable,
    such persons shall be confined in the Quarter
    Guard of the Force.”

    18. Similarly, in Vijay Singh Bhadauria (Supra), the Hon’ble

    Supreme Court has reiterated that imposition of a major penalty

    without conducting a proper enquiry and without affording

    reasonable opportunity of hearing violates the principles of natural

    justice. The Court emphasized that the satisfaction regarding “not

    reasonably practicable” to hold an enquiry must be based on

    objective material and cannot be sustained in the absence of

    compelling circumstances. An order passed in breach of such

    mandatory procedural safeguards is liable to be set aside. The

    relevant paragraphs are quoted hereinbelow:-

    32

    “9. After consideration of the arguments advanced
    by the counsels for the parties, we are of the
    considered view that the charges leveled against
    the petitioner were duly proved in the
    Departmental Enquiry by examining relevant
    witnesses. The defence put up by the petitioner
    was duly considered by the Inquiry Officer in his
    enquiry report. Shri Suresh Singh, Railway
    Magistrate, Bhopal categorically stated before the
    Inquiry Officer that High Court Judge of Allahabad
    could not reach to Railway Station on time as the
    petitioner came late at VIP Guest House and was
    in drunken state. In the cross examination, he
    clarified that petitioner was not in the normal
    condition when he met to the petitioner at Railway
    Station. Another witness Santosh Singh Mess,
    APO narrated the entire incident in detail and
    stated that petitioner was directed to reach VIP
    Guest House at 1.30 AM on 19.11.2006 but when
    he did not reach on time, Judge of Allahabad High
    Court called him at 2.45 AM and asked him to
    reach at Railway Station, where he handed. over
    a written complaint to APO. This witness proved
    the complaint, which was written and signed by
    the Judge of Allahabad High Court in his
    presence. Department examined another witness
    Smt. Chunamma Nath, Accountant of District
    Court, Bhopal, who stated that earlier also when
    the petitioner was posted in Family Court, Bhopal
    the complaint was received and he was reverted.

    10. The petitioner himself has accepted in his
    examination that he was directed to reach VIP
    Guest House on 19.11.2006 at 1.30 AM, however,
    he denied the allegation that he was in drunken
    state. He submitted the explanation that between
    his home and Shyamla Hills, where the vehicle
    was parked, tyre of his bicycle was punctured
    therefore, he could not reach on time. He
    examined Sunil Kumar, Home Guard Sainik, who
    was performing night security guard duty in the
    Judges Enclave of Shyamla Hills Bhopal where
    the vehicle was parkedand supported the
    contention of petitioner that his bicycle was
    punctured.

    11. The Inquiry Officer considered the entire
    material and thereafter submitted his enquiry
    33

    report dated 15.01.2007. After consideration of the
    evidence in detail, the Inquiry Officer found proved
    the charge. against the petitioner. After issuance
    of show cause notice to the petitioner as to why
    enquiry report be not accepted, the Impugned
    order was passed by the District & Sessions
    Judge, Bhopal.

    12. So far as the findings of Inquiry Officer are
    concerned, the same has been recorded on the
    basis of material available on record and
    Inadequacy of evidence cannot be subject matter
    of judicial review and the High Court can interfere
    with the order of punishment only in case of
    violation of the provisions of rules or principles of
    natural justice are proved. This court cannot
    exercise its jurisdiction in a petition under Article
    226
    of the Constitution of India as appellate
    authority. This court can interfere only if statutory
    rules or regulations are found to be violated.
    When the law permits the competent authority to
    take action against the delinquent person for his
    misconduct, no interference in the finding is called
    for. Consequently, so far as the finding of
    misconduct is concerned, we are in agreement
    with the Disciplinary Authority.

    13. However, looking to the charge of misconduct,
    the punishment of dismissal appears to be
    disproportionate. The allegation against the
    petitioner was that he failed to reach at VIP Guest
    House on time and therefore, the Judge of
    Allahabad High Court could not board the train as
    scheduled. In our considered opinion allegation is
    not sufficient for dismissal of the delinquent from
    the service.

    14. The punishment of removal from the service is
    in outrages. defines of logic and is shocking and if
    the punishment imposes by the Disciplinary
    Authority shocks the conscious of the Court, it
    would be appropriate to direct the Disciplinary
    Authority to reconsider the penalty Imposed and
    to impose appropriate punishment with cogent
    reasons in support thereof.

    15. For the aforesaid reasons, though we uphold
    the findings of misconduct but set aside the
    quantum of punishment and remit the matter to
    the disciplinary authority to reconsider the
    34

    quantum of punishment in the light of allegation of
    misconduct proved against the petitioner. Said
    exercise be completed within a period of three
    months from the date of receipt of certified copy of
    this order. Petitioner will be reinstated with
    immediate effect, however, he will not be entitled
    for back wages applying the principle of “no work
    no pay”.”

    19. Further, this Court in the matter of Nansai (Supra) has held

    as under:-

    “6. This Court has considered the nature of
    dispute in WPS No. 3302/2011 in which it has
    been held as under:-

    “As a consequence, the petitioner would be
    entitled for reinstatement in service. However,
    applying the principles of “No Work No Pay” and
    also taking the long duration of time that has
    lapsed from the date of termination till now, the
    petitioner would not be entitled for any wages.
    However, he would be entitled for all other
    benefits of continuity of service. This Court
    having quashed the impugned order only on the
    ground of not conducting an inquiry, the right of
    the respondents stands reserved for conducting
    an inquiry and on being satisfied that the
    petitioner has fraudulently obtained employment,
    the respondents-Management would be free to
    take appropriate decision in accordance with the
    Service Rules or the standing order as the case
    may be governing the field.”

    7. Having considered the facts and
    circumstances of the present case in their
    entirety, and also taking into account the order
    passed in WPS No. 3302/2011, this Court finds
    that the impugned order of removal is
    unsustainable as without issuing any notice and
    without holding any enquiry order regarding
    removal from service has passed, that too without
    affording any opportunity of hearing which is
    illegal and is accordingly quashed. However, it is
    made clear that the delay in filing the present
    petition, as well as the period during which the
    35

    petitioner did not render any service, shall be duly
    taken into account while reinstating the petitioner.
    Consequently, the petitioner shall not be entitled
    to claim any monetary or service-related benefits
    for the said period.

    8. Accordingly, the writ petition is allowed.

    9. Furthermore, it is made clear that the
    concerned respondent authorities shall be at
    liberty to initiate appropriate proceedings, ifso
    advised, in accordance with law and the
    applicable Service Rules, for taking action
    against the petitioner, including his removal from
    service, after following due process.”

    20. Also, in the matter of Dwarka Prasad Kashyap vs. State of

    M.P. and others 2010 (3) M.P.H.T. 180, the Madhya Pradesh High

    Court has held that any administrative or quasi-judicial order

    entailing civil consequences cannot be sustained if passed without

    affording reasonable opportunity of hearing. The Court further

    observed that even where the statutory provisions are silent, the

    principles of natural justice are required to be read into the

    procedure, and any action taken in violation of audi alteram

    partem is liable to be set aside.

    21. In view of the aforesaid settled legal position, this Court has

    no hesitation in holding that the impugned action of the

    respondents, having been taken without conducting a regular

    departmental enquiry and without affording adequate opportunity

    of hearing to the petitioners, cannot be sustained in the eyes of

    law. The material available on record clearly demonstrates that the

    mandatory procedural safeguards contemplated under the relevant
    36

    statutory provisions were not adhered to. The satisfaction recorded

    by the disciplinary authority that holding a regular enquiry was not

    reasonably practicable is not supported by any cogent or

    compelling material. The mere assertion that witnesses were

    unwilling to depose cannot, by itself, justify dispensing with a full-

    fledged enquiry, particularly when the punishment imposed is that

    of removal from service, which carries grave civil consequences.

    22. This Court has also considered the nature of the dispute

    which led to initiation of both the criminal case and the

    departmental action. The incident in question arose out of a petty

    altercation and, significantly, the conviction recorded by the trial

    court under Section 323 IPC was subsequently set aside in

    appeal, granting benefit of doubt to the petitioners. Although

    departmental proceedings and criminal proceedings operate

    independently, once the criminal conviction itself does not survive

    and the departmental enquiry has not been conducted in

    accordance with law, the foundation of the impugned action

    becomes unsustainable.

    23. It is further noteworthy that similarly placed co-delinquents,

    who were acquitted in the criminal proceedings, were reinstated in

    service. Denial of similar treatment to the present petitioners,

    particularly when their conviction has also been set aside in

    appeal, results in manifest arbitrariness and discriminatory
    37

    treatment. The cumulative effect of non-compliance with

    mandatory procedure, absence of proper enquiry, lack of adequate

    opportunity of hearing, and the mitigating circumstances of the

    case clearly establishes that the impugned orders suffer from

    serious legal infirmity.

    24. Considering the law laid down by the Hon’ble Supreme Court

    and various High Courts, as well as the peculiar facts and

    circumstances of the present case, this Court is of the considered

    view that the punishment order of removal from service passed by

    the disciplinary authority, as affirmed by the appellate and

    revisional authorities, is liable to be interfered with and set aside.

    25. Accordingly, the order of removal from service passed

    against the petitioners is hereby quashed. Consequently, the

    orders passed by the appellate and revisional authorities affirming

    the said punishment are also quashed.

    26. In consequence thereof, the petitioners shall be entitled to

    reinstatement in service. However, having regard to the facts and

    circumstances of the case, including the period during which they

    remained out of service, this Court deems it appropriate to deny

    back wages. The period from the date of removal till reinstatement

    shall be treated for all other service benefits, including continuity of

    service and retiral benefits, but without monetary back wages.

    38

    27. The writ petition is accordingly allowed in the aforesaid

    terms.

    28. No order as to costs.

    sd/-

    (Amitendra Kishore Prasad)
    Judge

    Vishakha
    39

    HEAD-NOTE

    “A major penalty cannot be imposed without
    proper enquiry and opportunity of hearing.
    Dispensing with enquiry must be supported
    by valid reasons; otherwise, the order is
    liable to be set aside.”



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