Gauhati High Court
Randhir Kumar And Anr vs The Union Of India And 5 Ors on 14 July, 2026
Author: Soumitra Saikia
Bench: Soumitra Saikia
Page No.# 1/30
GAHC010198462024
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/4861/2024
RANDHIR KUMAR AND ANR
S/O- RAMCHANDRA PRASAD JE(CIV) (GS-178439A) (NEW AE (CIV) GO-
5626F) OF 55 RCC/762 BRTF (P) VIJAYAK, C/O- 56 APO AND PRESENTLY
POSTED AT HQ ADGBR (EAST) C/O- 99 APO (LAKNESHAR), GUWAHATI-
781014.
2: MUKESH KUMAR YADAV
S/O- ADALAT YADAV
EE(CIV) GO-3938Y) OF 55 RCC/762 BRTF (P) VIJAYAK
C/O- 56 PO AND PRESENTLY POSTED AT HQ 764 BRTF (P) SWASTIK
C/O- 99 APO
VERSUS
THE UNION OF INDIA AND 5 ORS
REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF INDIA,
MINISTRY OF DEFENCE, SOUTH BLOCK, NEW DELHI-11.
2:UNDER SECRETARY (VIG-MES AND BRO)
GOVERNMENT OF INDIA
MINISTRY OF DEFENCE
ROOM NO. 136
KASHMIR HOUSE
RAJAJI MARG
NEW DELHI-11.
3:THE JOINT SECRETARY (BORDER ROADS)
GOVERNMENT OF INDIA
MINISTRY OF DEFENCE
BORDER ROADS DEVELOPMENT BOARD
ROOM NO. 198 A
SOUTH BLOCK
NEW DELHI-110011.
Page No.# 2/30
4:THE DIRECTOR GENERAL
BORDER ROADS ORGANIZATION
SEEMA SADAK BHAWAN
NARAINA
DELHI CANTT
NEW DELHI-110010.
5:THE ADDITIONAL DIRECTOR GENERAL
BORDER ROADS ORGANIZATION
C/O- 99 APO
LANKESHWAR
GUWAHATI-781014
ASSAM
6:THE COMMANDER
764 BRTF (P) SWASTIK
C/O- 99 APO
Linked Case : WP(C)/19/2025
RAM NARAYAN CHOUDHARY
S/O- SRI SURAJ NARAYAN CHOUDHURY
PRESENT UNIT 498RMPL/91
RCC (GREF)
C/O- PROJECT VARTAK
TEZPUR
C/O- 99 APO.
VERSUS
THE UNION OF INDIA AND 5 ORS
REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF INDIA
MINISTRY OF DEFENCE
SOUTH BLOCK
NEW DELHI-11.
2:UNDER SECRETARY (VIG-MES AND BRO)
GOVERNMENT OF INDIA
MINISTRY OF DEFENCE
ROOM NO. 136
KASHMIR HOUSE
RAJAJI MARG
NEW DELHI-11.
Page No.# 3/30
3:THE JOINT SECRETARY (BORDER ROADS)
GOVERNMENT OF INDIA MINISTRY OF DEFENCE
BORDER ROADS DEVELOPMENT BOARD
ROOM NO. 198 A
SOUTH BLOCK
NEW DELHI-110011.
4:THE DIRECTOR GENERAL
BORDER ROADS ORGANIZATION
SEEMA SADAK BHAWAN
NARAINA
DELHI CANT
NEW DELHI-110010.
5:THE ADDITIONAL DIRECTOR GENERAL
BORDER ROADS ORGANIZATION
C/O- 99 APO
LANKESHWAR
GUWAHATI-781014
ASSAM
6:OC
RCC
91 RCC C/O 99 APO
PIN- 930091.
Linked Case : WP(C)/5792/2025
AMAN KUMAR AND ANR
S/O LATE RAM DULAR SINGH
UNIT ADDRESS- 105 RCC
761 BRTF (GREF) UNDER PROJECT BRAHMANK
PASIGHAT
ARUNACHAL PRADESH
PIN-930105
2: AMIT VIKAL
S/O SHRI LAL SINGH VIKAL
UNIT ADDRESS - 1448 BCC/761 BRTF 761 BRTF (GREF) UNDER PROJECT
BRAHMANK
PASIGHAT
ARUNACHAL PRADESH
PIN-931448
VERSUS
THE UNION OF INDIA AND 4 ORS.
REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF INDIA
Page No.# 4/30
MINISTRY OF DEFENCE
SOUTH BLOCK
NEW DELHI-11
2:UNDER SECRETARY (VIG-MES AND BRO)
GOVERNMENT OF INDIA
MINISTRY OF DEFENCE
ROOM NO. 136
KASHMIR HOUSE
RAJAJI MARG
NEW DELHI-11
3:THE JOINT SECRETARY (BORDER ROADS)
GOVERNMENT OF INDIA
MINISTRY OF DEFENCE
BORDER ROADS DEVELOPMENT BOARD
ROOM NO. 198 A
SOUTH BLOCK
NEW DELHI-110011
4:THE DIRECTOR GENERAL
BORDER ROADS ORGANIZATION
SEEMA SADAK BHAWAN
NARAINA
DELHI CANTT
NEW DELHI-110010
5:HW CE(P) BRAHMANK
C/O 99 APO
-B E F O R E -
HON'BLE MR. JUSTICE SOUMITRA SAIKIA
Advocate for the petitioners :Mr. Tapan Das, Advocate
Advocate for the respondents :Mr. R.K.D Choudhury, Deputy Solicitor General of India and
Mr U.K. Goswami, CGC
·Date on which Judgment was reserved: 07.04.2026
·Date of Pronouncement of Judgment: 14.07.2026
· Whether the pronouncement is of the Operative Part of the Judgment: Yes
· Whether the full Judgment has been Pronounced: No
Page No.# 5/30
JUDGMENT AND ORDER (CAV)
These writ petitions have been filed by the petitioners raising similar
issues. Accordingly, all the writ petitions are taken up together for hearing and
disposal.
2. The petitioners in are assailing before this Court the memorandum of
charges dated 02.08.2024 issued by the Under Secretary to the Government of
India, Ministry of Defence and a further direction not to resort to any punitive
action in the matter of consideration for further promotion to the next higher
rank to which the petitioners are entitled to be considered and also for grant of
non-functional upgradation and MSCP.
3. The brief facts as projected in the writ petition being W.P(C) No.
4861/2024 on the basis of which the challenge is made to the memorandum of
charges issued to the writ petitioners are that the Project Vijayak recruited
casual paid laborer (CPL) for the period from 21/07/2020 to 20/08/2020, during
the peak COVID period and unrest in the Galwan Valley for construction work of
the road for 55 Road Construction Company, Mulbek, Kargil in consultation with
the Government of Jharkhand. After the recruitment, it was pointed out by the
petitioner No. 2 herein that the AADHAR card information provided as identity
proof by 18 casual paid laborers (CPLs) matched their names and their fathers'
names with the information provided by another set of 18 CPLs of other
detachments. On receiving this instruction, the payments of the first month of
the 36 labourers were immediately deposited in the government treasury and
no payment was made to these CPLs. The petitioner No. 1 herein was
responsible for recruitment and mastering of CPLs. The petitioner No. 1 was not
involved in the payment of wages as per the general guidelines for the
recruitment of CPLs as circulated by the Director General Border Roads vide
Page No.# 6/30
letter dated 10/5/2005. It is stated that the names of the CPLs and their fathers'
names matched with the names and fathers' names of CPLs of other
detachments. However, other particulars of the CPLs such as photographs,
Aadhaar card number, etc. are different and the individuals were medically
examined by the medical officers and also surprise/vigilance check was carried
out by the officers detailed by 55 RCC, 762 TF and Project Vijayak on the
ground that the petitioners had faltered by allowing incomplete and incorrect
documentation while preparing medical sheets and also entering into the illegal
act of fake recruitment/mastering of CPLs in connivance with other officers and
thereby allowed or permitted duplicity of the names of the enrolled CPLs by
approving fake names in the master rolls and thereby deliberately allowing
mustering of the same CPLs in 2 master rolls in 2 different detachments of 55
RCC. A court of enquiry was instituted which had recommended initiation of
departmental proceedings against the petitioners. On the basis of the
recommendations, the Ministry of Defense, Government of India by two
separate memorandums dated 02.08.2024 had proposed to hold an enquiry
against the petitioners. They were served with the article of charges as also the
statement of imputation of misconduct or misbehavior in support of the articles
of charges. The petitioners were called upon to submit their reply within the
time specified. The list of witnesses were enclosed as also the list of documents.
The Petitioners alleging bias and violation of the procedure prescribed under
Rule 180 of the Army Rules, approached this court by filing this petition and this
court by order dated 20.11.2024, while issuing notice by way of an ad interim
relief, directed that the departmental proceedings initiated on the basis of the
impugned memorandum of charges shall remain suspended. The same interim
order has been extended from time to time and is still in force.
Page No.# 7/30
4. The learned counsel representing the petitioners submits that under Rule
180 of the Army Act where a court of enquiry is instituted against a person and
where the character of a person who is subject to the act is involved then he
must be given proper opportunity of being present throughout the enquiry
and/or making any statement and/or giving any evidence, he may wish to make
or give, and/or cross-examining any witness whose evidence, in his opinion,
affects his character or military reputation. It is submitted that this opportunity
was never afforded to the petitioners. They were not even put to notice that a
court of enquiry was instituted behind their back and without they being given
any opportunity, the Court of enquiry recommended initiation of the
departmental proceedings under CCS(CCA) Rules insofar as the petitioners are
concerned. It is submitted that the Army Rules 1954 clearly lays down the
procedure in respect of the conduct of courts of enquiry and Rule 180
categorically provides for affording an opportunity to a person concerned or
affected when the character of a person subject to the Army act is involved. It is
submitted that the court of enquiry conducted against the petitioners which
culminated in recommendation for initiation of departmental proceedings under
CCS(CCA) Rules has the effect of tarnishing the image of the writ petitioners
and the characters of the writ petitioners are involved, they were required to be
given an opportunity as mandated under the Rule 180 of the Army Rules. The
further submission of the counsel for the petitioners is that this departmental
proceeding has been initiated at a time when the petitioners are within the zone
of consideration for promotion to the next higher post and also his claim for
grant of non-functional upgradation and MSCP. It is submitted that the entire
proceedings initiated under the CCS(CCA) Rules is solely on the basis of a
recommendation made by the Court of enquiry. Therefore, this Court of enquiry
Page No.# 8/30
which had recommended initiation of departmental proceedings against the
petitioners was constituted and conducted and the recommendations were
made in violation of Rule 180 of the Army Rules, 1954. It is therefore submitted
that the impugned memorandum of charges and the departmental proceedings
are on the basis of the court of enquiry, which was conducted contrary to the
provisions of Rule 180 of the Army Rules read with the Army Act, and therefore
this court should under judicial review interfere with the proceedings and set
aside and quash the same. It is further submitted that there was a considerable
delay in initiation of the departmental proceedings and that by itself being
arbitrary and prejudicial to the petitioners, the same should be interfered with,
set aside, and quashed. In support of his submissions, the petitioners relies on
the following judgments:
1. Maharana Pratap Singh Vs. State of Bihar reported in 2025 SCC Online SC 890;
2. Sawai Singh Vs. State of Rajasthan, reported in 1986 3 SCC 454;
3. State of Punjab Vs. V.K Khanna, reported in 2001 2 SCC 330;
4. Roop Singh Negi Vs. Punjab National bank, reported in (2009) 2 SCC 570;
5. Naresh Kumar Upadhyay Vs. Union of India, reported in 2024 SCC Online Gau
1523;
6. Union of India Vs. Sanjay Jethi, reported in (2013) 16 SCC 116 and
7. Government of A.P. Vs. A Venkata Naidu, reported in (2007) 1 SCC 338
5. The respondent, on the other hand, contested the case projected by the
petitioners by filing their counter-affidavit. The petitioners had already filed the
written statement in response to the memo of charges and has thereafter
approached this court. It is submitted that since they had already filed their
written statements, the Proceedings should be allowed to be carried to its
logical end by the department and no judicial review at this stage is called for
Page No.# 9/30
by this court. He further submits the judgment relied upon by the writ
petitioners in respect of the procedure to be followed in a court of enquiry as
prescribed under Rule 180 of the Army Rules are all in respect of regular Army
personnel. The respondents are under the dual disciplinary authority, namely
under the Army Act as also under the CCS(CCA) Rules. It is submitted that since
no court-martial proceedings are initiated under the Army Act and rules against
the petitioners rather recommendation was issued for initiation of departmental
proceedings under CCS(CCA) rules, these judgments have no application to the
facts of the present case. It is further submitted that the charges are not at all
vague and the petitioners have already submitted their reply before the
authorities concerned. Therefore, interference at this stage of issuance of a
show-cause notice is not called for as no right insofar as the petitioners are
concerned has been infringed. In support of his contentions, the learned DSGI
relies upon the following judgments:
1. Mohd. Ansari v. Union of India, reported in 2017 3 SCC 740;
2. Union of India v. Kunisetty Satyanarayana, reported in (2006) 12 SCC 28
3. Ministry of Defence v. Prabhash Chandra Mirdha, reported in (2012) 11 SCC 565.
4. Union of India v. Ashok Kacker, reported in 1995 Supp (1) SCC 180.
5. Anant R. Kulkarni v. Y.P. Education Society, reported in (2013) 6 SCC 515.
6. State of U.P. v. Brahm Datt Sharma, reported in (1987) 2 SCC 179.
6. The petitioners filed a rejoinder affidavit reiterated their statements and
contentions raised in the writ petitions.
7. The learned counsel to the parties have been heard. Pleadings available on
record have been perused. The Judgments pressed into service have also been
carefully noted.
Page No.# 10/30
8. At the outset, it is necessary to reproduce the memorandum of charges of
each of the petitioners and the same is extracted below:
In so far as the writ petitioners in W.P(C) No. 4861/2024 is concerned, the
memorandum of charges issued to the petitioners namely Shri Randhir Kumar
and Shri Mukesh Kumar Yadav are extracted below:
Dated 02 August, 2024
MEMORANDUM
The President proposes to hold an inquiry against Shri Randhir Kumar, JE(Civ)
(GS-178439A) (Now AE(Civ) GO-5626F) of 55 RCC/762 BRTF (P) Vijayak, C/O 56 APO
(presently posted at HQ ADGBR (East) C/O 56 APO) under Rule 14 of the Central Civil
Services (Classification, Control & Appeal) Rules, 1965. The substance of the
imputations of misconduct or misbehavior in respect of which the enquiry is proposed
to be held is set out in the enclosed statement of articles of change (Annexure-l). A
statement of the imputations of misconduct or misbehavior in support of each article
of charge is enclosed (Annexure-ll). A list of documents by which, and a list of
witnesses by whom, the articles of charge are proposed to be sustained are also
enclosed (Annexure-III and IV). A copy of CVC's advice, contained in their OM No.
2024/DEF/BRO/VIG_Case/4/35650 dated 29.07.2024 is also enclosed.
2. Shri Randhir Kumar, JE (Civ) (GS-178439A) (Now AE(Civ) GO-5626F) is directed to
submit within 15 days of the receipt of this Memorandum a written statement of his
defence and also to State whether he desires to be heard in person.
3. He is informed that an inquiry will be held only in respect of those articles of
charge as are not admitted. He should, therefore, specifically admit or deny each
article of charge.
4. Shri Randhir Kumar, JE(Civ) (GS-178439A) (Now AE(Civ) GO-5626F) is further
informed that if he does not submit his written statement of defence on or before the
date specified in Para 2 above, or does not appear in person before the inquiring
authority or otherwise fails or refuses to comply with the provisions of Rule 14 of the
CCS (CC&A) Rules, 1965, or the orders/directions issued in pursuance of the said
rule, the inquiring authority may hold the inquiry against him ex-parte.
5. Attention of Shri Randhir Kumar, JE(Civ) (GS-178439A) (Now AE(Civ) GO-5626F) is
invited to Rule 20 of the Central Civil Services (Conduct) Rules 1964, under which no
Govt Servant shall bring or attempt to bring any political or outside influence to bear
upon any superior authority to further his interest in respect of matters pertaining to
his service under the Government. If any representation is received on his behalf
from another person in respect of any matter dealt with in these proceedings, it will
be presumed that Shri Randhir Kumar, JE(Civ) (GS-178439A) (Now AE(Civ) GO-
5626F) is aware of such a representation and that it has been made at his instance
Page No.# 11/30
and action will be taken against him for violation of Rule 20 of the CCS (Conduct)
Rules, 1964.
6. The receipt of the Memorandum may be acknowledged.
(Mangal Soren)
Under Secretary to the Government of India"
"Dated 02 August, 2024
MEMORANDUM
The President proposes to hold an inquiry against Shri Mukesh Kumar Yadav,
EE(Civ) (GO-3938Y) of 55 RCC/762 BRTF (P) Vijayak, C/O 56 APO (presently posted
at 764 BRTF(P) Swastik C/O 99) under Rule 14 of the Central Civil Services
(Classification, Control & Appeal) Rules, 1965. The substance of the imputations of
misconduct or misbehavior in respect of which the enquiry is proposed to be held is
set out in the enclosed statement of articles of change (Annexure-l). A statement of
the imputations of misconduct or misbehavior in support of each article of charge is
enclosed (Annexure-ll). A list of documents by which, and a list of witnesses by
whom, the articles of charge are proposed to be sustained are also enclosed
(Annexure-III and IV). A copy of CVC's advice, contained in their OM No.
2024/DEF/BRO/VIG_Case/4/35650 dated 29.07.2024 is also enclosed.
2. Shri Mukesh Kumar Yadav, EE(Civ) (GO-3938Y) is directed to submit within 15
days of the receipt of this Memorandum a written statement of his defence and also
to State whether he desires to be heard in person.
3. He is informed that an inquiry will be held only in respect of those articles of
charge as are not admitted. He should, therefore, specifically admit or deny each
article of charge.
4. Shri Mukesh Kumar Yadav, EE(Civ) (GO-3938Y) is further informed that if he does
not submit his written statement of defence on or before the date specified in Para 2
above, or does not appear in person before the inquiring authority or otherwise fails
or refuses to comply with the provisions of Rule 14 of the CCS (CC&A) Rules, 1965,
or the orders/directions issued in pursuance of the said rule, the inquiring authority
may hold the inquiry against him ex-parte.
5. Attention of Shri Mukesh Kumar Yadav, EE(Civ) (GO-3938Y) is invited to Rule 20 of
the Central Civil Services (Conduct) Rules 1964, under which no Govt Servant shall
bring or attempt to bring any political or outside influence to bear upon any superior
authority to further his interest in respect of matters pertaining to his service under
the Government. If any representation is received on his behalf from another person
in respect of any matter dealt with in these proceedings, it will be presumed that Shri
Mukesh Kumar Yadav, EE(Civ) (GO-3938Y) is aware of such a representation and that
it has been made at his instance and action will be taken against him for violation of
Rule 20 of the CCS (Conduct) Rules, 1964.
6. The receipt of the Memorandum may be acknowledged.
(Mangal Soren)
Page No.# 12/30
Under Secretary to the Government of India"
In so far as the writ petitioner in W.P(C) No. 19/2025 is concerned, the
memorandum of charges issued to the petitioner namely Shri R.N Chaudhary is
extracted below:
"Dated 02 August, 2024
MEMORANDUM
The President proposes to hold an inquiry against Shri RN Chaudhary, JE(Civ)
(GS-195230L) of 234 PWPL/55 RCC/762 BRTF (P) Vijayak, C/O 56 APO (presently
posted at 498 RMPL (P) Vartak) under Rule 14 of the Central Civil Services
(Classification, Control & Appeal) Rules, 1965. The substance of the imputations of
misconduct or misbehavior in respect of which the enquiry is proposed to be held is
set out in the enclosed statement of articles of change (Annexure-l). A statement of
the imputations of misconduct or misbehavior in support of each article of charge is
enclosed (Annexure-ll). A list of documents by which, and a list of witnesses by
whom, the articles of charge are proposed to be sustained are also enclosed
(Annexure-III and IV). A copy of CVC's advice, contained in their OM No.
2024/DEF/BRO/VIG_Case/4/35650 dated 29.07.2024 is also enclosed.
2. Shri RN Chaudhary, JE(Civ) (GS-195230L) is directed to submit within 15 days of
the receipt of this Memorandum a written statement of his defence and also to State
whether he desires to be heard in person.
3. He is informed that an inquiry will be held only in respect of those articles of
charge as are not admitted. He should, therefore, specifically admit or deny each
article of charge.
4. Shri RN Chaudhary, JE(Civ) (GS-195230L) is further informed that if he does not
submit his written statement of defence on or before the date specified in Para 2
above, or does not appear in person before the inquiring authority or otherwise fails
or refuses to comply with the provisions of Rule 14 of the CCS (CC&A) Rules, 1965,
or the orders/directions issued in pursuance of the said rule, the inquiring authority
may hold the inquiry against him ex-parte.
5. Attention of Shri RN Chaudhary, JE(Civ) (GS-195230L) is invited to Rule 20 of the
Central Civil Services (Conduct) Rules 1964, under which no Govt Servant shall bring
or attempt to bring any political or outside influence to bear upon any superior
authority to further his interest in respect of matters pertaining to his service under
the Government. If any representation is received on his behalf from another person
in respect of any matter dealt with in these proceedings, it will be presumed that Shri
RN Chaudhary, JE(Civ) (GS-195230L) is aware of such a representation and that it
has been made at his instance and action will be taken against him for violation of
Rule 20 of the CCS (Conduct) Rules, 1964.
6. The receipt of the Memorandum may be acknowledged.
Page No.# 13/30
(Mangal Soren)
Under Secretary to the Government of India"
In so far as the writ petitioners in W.P(C) No. 5792/2025 is concerned, the
only memorandum of charges pertaining to Shri Aman Kumar is available and
the same is extracted below:
"Dated 02 August, 2024
MEMORANDUM
The President proposes to hold an inquiry against Shri Aman Kumar, AEE (Civ)
(GO-4435A) of 343 SPL/55 RCC/762 BRTF (P) Vijayak, C/O 56 APO (presently posted
at HQ. 105 RCC/HQ 761 BRTF(P) Brahmank C/O 99 APO) under Rule 14 of the
Central Civil Services (Classification, Control & Appeal) Rules, 1965. The substance of
the imputations of misconduct or misbehavior in respect of which the enquiry is
proposed to be held is set out in the enclosed statement of articles of change
(Annexure-l). A statement of the imputations of misconduct or misbehavior in
support of each article of charge is enclosed (Annexure-ll). A list of documents by
which, and a list of witnesses by whom, the articles of charge are proposed to be
sustained are also enclosed (Annexure-III and IV). A copy of CVC's advice, contained
in their OM No. 2024/DEF/BRO/VIG_Case/4/35650 dated 29.07.2024 is also enclosed.
2. Shri Aman Kumar, AEE (Civ) (GO-4435A) is directed to submit within 15 days of
the receipt of this Memorandum a written statement of his defence and also to State
whether he desires to be heard in person.
3. He is informed that an inquiry will be held only in respect of those articles of
charge as are not admitted. He should, therefore, specifically admit or deny each
article of charge.
4. Shri Aman Kumar, AEE (Civ) (GO-4435A) is further informed that if he does not
submit his written statement of defence on or before the date specified in Para 2
above, or does not appear in person before the inquiring authority or otherwise fails
or refuses to comply with the provisions of Rule 14 of the CCS (CC&A) Rules, 1965,
or the orders/directions issued in pursuance of the said rule, the inquiring authority
may hold the inquiry against him ex-parte.
5. Attention of Shri Aman Kumar, AEE (Civ) (GO-4435A) is invited to Rule 20 of the
Central Civil Services (Conduct) Rules 1964, under which no Govt Servant shall bring
or attempt to bring any political or outside influence to bear upon any superior
authority to further his interest in respect of matters pertaining to his service under
the Government. If any representation is received on his behalf from another person
in respect of any matter dealt with in these proceedings, it will be presumed that Shri
Aman Kumar, AEE (Civ) (GO-4435A) is aware of such a representation and that it has
been made at his instance and action will be taken against him for violation of Rule
Page No.# 14/30
20 of the CCS (Conduct) Rules, 1964.
6. The receipt of the Memorandum may be acknowledged.
(Mangal Soren)
Under Secretary to the Government of India"
9. The petitioners are the member of the GREF /the Border Road
Organization. This organization, although is essentially under the control of the
Army and in respect of the works to be carried out as is entrusted from time to
time regarding construction of border roads, it is a part of the BRO under the
Ministry of Defence, Government of India. The petitioners are not regular army
personnel. However, where the works entrusted to the GREF/BRO are required
to be carried out under the supervision of the army authorities, to that extent,
the army authorities are at such times the controlling authority in respect of all
these personnel, including the writ petitioners. In this respect, reference to the
judgment of the Apex Court rendered in R Viswan and Ors. Vs. Union of India
and ors, reported in (1983) 3 SCC 401, may be referred to in this judgment. The
relevant portions of the Judgment are extracted below:
5. So far as the personnel of GREF are concerned, they are partly drawn from the
Army and partly by direct recruitment. Army personnel are posted in GREF according
to a deliberate and carefully planned manning policy evolved with a view to ensuring
the special character of GREF as a force intended to support the Army in its
operational requirements. The posting of Army personnel in GREF units is in fact
regarded as normal regimental posting and does not entitle the Army personnel so
posted to any deputation or other allowance and it is equated with similar posting in
the Army for the purpose of promotion, career planning etc. The tenure of Army
personnel posted in GREF units is treated as normal Regimental Duty and such Army
personnel continue to be subject to the provisions of the Army Act, 1950 and the Army
Rules, 1954 whilst in GREF. But quite apart from the Army personnel who form an
important segment of GREF, even the directly recruited personnel who do not come
from the Army are subjected to strict Army discipline having regard to the special
character of GREF and the highly important role it is called upon to play in support of
the Army in its operational requirements. Since the capacity and efficiency of GREF
units in the event of outbreak of hostilities depends on their all time capacity and
efficiency, they are subjected to rigorous discipline even during peace time, because it
Page No.# 15/30
is elementary that they cannot be expected suddenly to rise to the occasion and
provide necessary support to the Army during military operations unless they are
properly disciplined and in fit condition at all times so as to be prepared for any
eventuality. The Government of India has in exercise of the power conferred upon it by
sub-sections (1) and (4) of Section 4 of Army Act, 1950 issued a notification bearing
No. SRO 329 dated September 23, 1960 applying to GREF all the provisions of that Act
with the exception of those shown in Schedule A, subject to the modifications set forth
in Schedule B and directing that the officers mentioned in the first column of Schedule
C shall exercise or perform, in respect of members of the said Force under their
command, the jurisdiction, powers and duties incident to the operation of that Act
specified in the second column of Schedule C. This Notification makes various
provisions of Army Act, 1950 applicable to GREF and amongst them is Section 21
which provides:
"21. Subject to the provisions of any law for the time being in force relating to the
regular Army or to any branch thereof, the Central Government may, by notification,
make rules restricting to such extent and in such manner as may be necessary the
right of any person subject to this Act--
(a) to be a member of, or to be associated in any way with, any trade union or labour
union, or any class of trade or labour unions or any society, institution or association,
or any class of societies, institutions or associations;
(b) to attend or address any meeting or to take part in any demonstration organised
by any body of persons for any political or other purposes;
(c) to communicate with the press or to publish or cause to be published any book,
letter or other document."
The other sections which are made applicable deal with special privileges, offences,
punishments, penal deductions, arrest and proceed ings before trial, courts-martial
and other incidental matters. These sections which are made applicable are primarily
intended to impose strict discipline on the members of GREF -- the same kind of
discipline which is required to be observed by the regular Army personnel. The
Government of India has also in exercise of the powers conferred by Section 21, sub-
section (4) of Section 102 and Section 191 of the Army Act, 1950 issued another
notification bearing No. SRO 330 on the same day, namely, September 23, 1960,
directing that the Army Rules, 1954 as amended from time to time shall, with the
exception of Rules 7 to 18, 168, 172 to 176, 190 and 191, be deemed to be Rules
made under the Army Act, 1950 as applied to GREF. Rules 19, 20 and 21 of the Army
Rules, 1954 are material for the purpose of the present writ petitions and they provide
inter alia as follows:
"19. Unauthorised organisations.--No person subject to the Act shall, without the
express sanction of the Central Government--
(i) take official cognisance of, or assist or take any active part in, any society,
institution or organisation, not recognised as part of the Armed Forces of the Union;
unless it be of a recreational or religious nature in which case prior sanction of the
superior officer shall be obtained;
(ii) be a member of, or be associated in any way with, any trade union or labour union,
or any class of trade or labour unions.
Page No.# 16/30
20. Political and non-military activities.--(1) No person subject to the Act shall attend,
address, or take part in, any meeting or demonstration held for a party or any political
purposes, or belong to or join or subscribe in the aid of, any political association or
movement.
(2) No person subject to the Act shall issue an address to electors or in any other
manner publicly announce himself or allow himself to be publicly announced as a
candidate or as a prospective candidate for election to Parliament, the legislature of a
State, or a local authority, or any other public body or act as a member of a
candidate's election committee, or in any way actively promote or prosecute a
candidate's interests.
21. Communications to the Press, Lectures, etc.--No person subject to the Act shall--
(i) publish in any form whatever or communicate directly or indirectly to the Press any
matter in relation to a political question or on a service subject or containing any
service information, or publish or cause to be published any book or letter or article or
other document on such question or matter or containing such information without the
prior sanction of the Central Government, or any officer specified by the Central
Government in this behalf; or
(ii) deliver a lecture or wireless address, on a matter relating to a political question or
on a service subject or containing any information or views on any service subject
without the prior sanction of the Central Government or any officer specified by the
Central Government in this behalf.
* * *"
The Rules obviously owe their genesis to Section 21 and they impose restrictions on
the fundamental rights of members of GREF. Since the Army Act, 1950 and Army
Rules, 1954 are made applicable by virtue of SROs Nos. 329 and 330 dated September
23, 1960, GREF personnel when recruited, are required to accept certain terms and
conditions of appointment which include inter alia the following:
"5. (iv) You will be governed by the provisions of Central Civil Service (Classification,
Control and Appeal) Rules, 1965, as amended from time to time. Notwithstanding the
above, you will be further subject to certain provisions of the Army Act, 1950, and
Rules made thereunder, as laid down in SROs 329 and 330 of 1960, for purposes of
discipline. It will be open to the appropriate disciplinary authority under the Army Act,
1950 to proceed under its provisions wherever it considers it expedient or necessary to
do so.
5. (v) You will be required to serve anywhere in India or outside India and when so
called upon by the Government or the appointing authority or your superior officer, you
shall proceed on field service.
5. (vi) You shall, if required, be liable to serve in any Defence Service or post
connected with the defence of India.
***
5. (xi) On your appointment, you will be required to wear the prescribed uniform while
on duty, abide by such rules and instructions issued by your superior authority
regarding discipline, turnout, undergo such training and take such departmental test
as the Government may prescribe.”
Page No.# 17/30
The result is that the directly recruited GREF personnel are governed by the provisions
of Central Civil Services (Classification, Control and Appeal) Rules, 1965 as amended
from time to time but for purposes of discipline, they are subject to certain provisions
of the Army Act, 1950 and the Army Rules, 1954 as laid down in SROs Nos. 329 and
330 dated September 23, 1960.
….
9. The history, composition, administration, organisation and role of GREF which we
have described above while narrating the facts clearly show that GREF is an integral
part of the Armed Forces. It is undoubtedly a departmental construction agency as
contended on behalf of the petitioners but it is distinct from other construction
agencies such as Central Public Works Department etc. in that it is a Force intended
primarily to support the Army in its operational requirement. It is significant to note
that the Border Roads organisation, which is in overall control of GREF was originally
created as part of Army Headquarters and it was only later, for reasons of high policy,
that it was separated from Army Headquarters and placed under the Border Roads
Development Board. Though the budget of the Border Roads Organisation forms part
of the budget of Ministry of Shipping and Transport, the financial control is vested in
the Ministry of Finance (Defence). The entire infrastructure of GREF is modelled on the
pattern of the Army and it is organised into units and sub-units with command and
control system similar to that in the Army. The personnel of GREF right from Class IV
to Class I have to be in uniform with distinctive badges of rank and they have a rank
structure equivalent to that of the Army. GREF is primarily intended to carry out
defence and other works projected by the General Staff, Army Headquarters and it is
only where spare capacity is available that GREF undertakes works of other ministries
or departments on agency basis and there also, preference is given to strategic and
other roads in sensitive areas. The funds which are provided to the Border Roads
Organisation are meant exclusively for carrying out the works entrusted by the General
Staff, Army Headquarters and so far as the works carried out for other ministries or
departments on agency basis are concerned, the funds of the Border Roads
Organisation are not permitted to be used for carrying out those works and they are
paid for by the respective ministries or departments and where applicable, agency
charges for executing the works are also collected. The statistics given in the earlier
part of the judgment show that the major portion of the work executed by GREF units
consists of tasks entrusted by the General Staff, Army Headquarters and only a small
percentage of the work is being done on behalf of other ministries or departments.
GREF units carry out essentially those tasks which are otherwise carried out by Army
Engineering Regiments and they provide engineering support to the Army both during
peace time as also during hostilities. It was found necessary as a result of a major
review carried out by Army Headquarters after 1971 that a minimum of 17 Border
Roads Task Forces and 34 Pioneer Companies would be permanently required for
providing engineering support to the Army and accordingly 17 Border Roads Task
Forces and 34 Pioneer Companies have been made permanent and their composition
has been reorganised in accordance with the recommendations of the Army
Headquarters. These 17 Border Roads Task Forces and 34 Pioneer Companies are
being maintained as essential units of GREF for meeting the operational requirements
Page No.# 18/30
of the Army, even if sufficient work is not available for them at any given point of time.
The operational planning of the Army is in fact based on availability of these 17 Border
Roads Task Forces and 34 Pioneer Companies and during operations, they have to
carry out tasks which would otherwise have been done by equal number of Army
Engineering Regiments. It may be pointed out that these 17 Border Roads Task Forces
and 34 Pioneer Companies have replaced corresponding number of Army Engineering
Regiments and Pioneer Companies in the Army. The tasks required to be carried out by
the Border Roads Task Forces have already been described in some detail in the
opening part of the judgment while narrating the facts and we need not repeat the
same over again. Suffice it to state that these tasks are required to be carried out by
the Border Roads Task Forces during operations with a view to providing engineering
support to the Army in its operational plans. The Border Roads Task Forces have to
perform these tasks and provide engineering support to the Army not only up to the
border but even beyond up to the extent of advance into enemy territories. Even in
peace time, the Border Roads Task Forces have to undertake works projected by
General Staff, Army Headquarters to meet their operational requirements and these
works include construction and maintenance of roads, operational tracks, ditch-cum-
bund (water obstacles on the border), field fortifications like bunkers, fire trenches and
pill boxes, helipads and airfields. It is also significant to note that the Border Roads
Task Forces and Pioneer Companies attached to them are included in the Order of
Battle of the Army which implies that support of these units to the Army is guaranteed
and can be requisitioned at any time. The Border Roads Task Forces are also sub-
allotted to lower Army formations and they appear on the Order of Battle of these
formations. GREF units consisting of these Border Roads Task Forces and Pioneer
Companies are placed under the direct control of the Army during emergencies when
the entire control of this Force is entrusted to the Chief of the Army Staff. Even during
peace time, the Chief of the Army Staff exercises control over the discipline of the
members of GREF units through the applicability of the provisions of the Army Act,
1950. The Director General, Border Roads who is in overall control of GREF units is
always an Army officer of the rank of Major General and his confidential reports are
written by the Chief of the Army Staff. The signal communication of GREF is also
integrated with the Army communication set up not only during operations but also in
normal peace time. It is also a factor of vital significance which emphasises the special
character of GREF as a force intended to provide support to the Army in its operational
plans and requirements that Army personnel are posted in GREF units according to a
carefully planned manning policy so that GREF units can in times of war or hostilities
be able to provide effective support to the Army. The tenure of office of Army
personnel in GREF units is regarded as normal regimental duty and is equated with
similar appointments in the Army for the purpose of promotion, career planning etc.
Even the directly recruited personnel of GREF are given training at the GREF Centre
before they are posted and the training given is in three military disciplines which we
have described in detail in the opening part of the judgment. The training includes not
only drill, marching and saluting but also combat training including physical training
such as standing exercises, beam exercises, rope work, route marches etc. and
combat engineering training including field engineering, handling of service explosives,
camouflage, combat equipment, bridging, field fortifications, wire obstacles etc.
Page No.# 19/30
Moreover, the directly recruited personnel are taken up only after they voluntarily
accept the terms and conditions of employment which include inter alia Conditions
5(iv), 5(v), 5(vi) and 5(xi) which have been reproduced in full while narrating the
facts. These conditions make it clear that the directly recruited personnel may be
required to serve anywhere in India and outside India and when directed, they would
have to proceed on field service and if required, they would also be liable to serve in
any Defence Service or post connected with the defence of India. It is also stipulated
in these conditions that on their appointment, the directly recruited personnel would
have to wear the prescribed uniform while on duty and that they would be subject to
the provisions of the Army Act, 1950 and the Army Rules, 1954 as laid down in SROs
Nos. 329 and 330 for purposes of discipline. It is abundantly clear from these facts and
circumstances that GREF is an integral part of the Armed Forces and the members of
GREF can legitimately be said to be members of the Armed Forces within the meaning
of Article 33.
10. In Mohammed Ansari v. Union of India & Ors ., reported in (2017) 3 SCC
740, the Apex Court again held that the GREF/BRO has dual disciplinary
authority, namely the authority as prescribed under the Army Act, as also under
the CCS/CCA rules.
11. The perusal of these judgments clearly lay down the law that the
GREF/BRO is a unique organization which although is under the Ministry of
Defence and comprises of civilians, when they are entrusted with the work for
construction of the border roads, the same are to be done under the supervision
of the Army and to that extent, the Army authorities are also the disciplinary
authority in the event any disciplinary action is required to be initiated in respect
of GREF/BRO personnel who are entrusted the works. The procedure mandated
under Rule 180 of the Army Rules, 1954, no doubt, clearly mandates an
opportunity to be granted to an officer whose military reputation is at stake or
when his character is questioned. The judgments pressed into service by the
petitioners, namely Sanjay Jethi (Supra) is essentially in respect of army
personnel against whom the court-martial proceedings were initiated on the
basis of Court of Inquiry Proceedings and in such facts and circumstances of the
case, it was held that initiation of court of enquiry without adhering to the
Page No.# 20/30
procedure prescribed under Rule 180 of the Army Act was held to be arbitrary.
12. However, in the present proceedings, there is no dispute that the
petitioners were not regular members of the armed forces or the army. No
doubt the army authorities are also the controlling authorities insofar as BRO
and GREF is concerned, however, in the facts of the present proceedings, the
Court of enquiry merely recommended initiation of departmental proceedings
against the petitioners. There was no recommendation for court-martial
proceedings against the writ petitioners as per the procedure prescribed under
the Army Act read with the rules. Such proceedings perhaps were not initiated
as the petitioners were civilian personnel and not regular army personnel. The
Court of Inquiry therefore recommended departmental proceedings to be
initiated against the petitioners under CCS(CCA) Rules.
13. Coming to the Judgments relied upon by the writ petitioners in Maharana
Pratap Singh (Supra) which has been pressed into service in support of the
contention that the charges framed against the petitioners were vague and
lacking in material particulars, the Apex Court in this said Judgment was
considering the proceedings initiated against the appellant therein and the
punishment of dismissal imposed. Four issues were determined by the Apex
Court in the said Judgment.
In so far as issue No. 1 is concerned, upon examining the materials before
the Apex Court and in the light of the departmental file which was called for by
the Apex Court not being placed inspite of opportunities granted by the
respondents, the apex Court take adverse inference and concluded that due
process was not followed in dismissing the appellant therein from service
rendering the dismissal unjustified.
Page No.# 21/30
In so far as the issue No. 2 is concerned, the Apex Court held that while
an acquittal in a criminal case does not automatically entitle the accused to have
an order of setting aside of his dismissal from public service following
disciplinary proceedings. It was held that when the charges, evidence,
witnesses, and circumstances in both the departmental inquiry and the criminal
proceedings are identical or substantially similar, the situation assumes a
different context and in the facts of that case the disciplinary proceedings were
considered to be unjust, unfair, and oppressive and therefore interfered with.
In so far as the issue No. 3 is concerned, the Apex Court on the basis of
materials available on record concluded that the disciplinary proceedings have
not been conducted against the appellant in tune with the principles of fairness
as well as natural justice which severely prejudiced his defence. The impugned
order therefore is unsustainable.
In so far as issued No. 4 was also answered in favour of the appellant
therein interfering with the dismissal order, the disciplinary proceedings and
further imposing a lumsum compensation of Rs. 30 Lakhs to the appellant
therein.
14. In Sawal Singh (supra) which was also pressed into service by the
petitioners in support of his contention that charges in the charge memo were
vague and indefinite. The apex Court held that the charges were in the present
case vague and it was difficult to meet the charges fairly by any accused.
Evidence adduced was perfunctory and did not at all bring home the guilt of the
accused. The absence of challenge before the enquiry officer or before the High
Court, that the charges were vague would not by itself exonerate the
department from bringing home the charges. Having regard to the
consequences of the offences with which the delinquent officer was charged,
Page No.# 22/30
the nature of charge, the absence of opportunity for cross-examination and the
conflicting nature of evidence, it must be held that the report of the enquiry
officer finding the delinquent-appellant guilty should not have been sustained
and the government should not have acted upon it. The Apex Court also held
that charges involving consequences of termination of service must be specific,
though a departmental enquiry is not like a criminal trial. There is no such rule
that an offence is not established unless it is proved beyond doubt. But a
departmental enquiry entailing consequences like loss of job which now-a-days
means loss of livelihood, there must be fair play in action, in respect of an order
involving adverse or penal consequences against an employee, there must be
investigations to the charges consistent with the requirement of the situation in
accordance with the principles of natural justice in so far as these are applicable
in a particular situation. The application of those principles of natural
justice must always be in conformity with the scheme of the Act and the subject
matter of the case. It is not possible to lay down any rigid rules as to which
principle of natural justice is to be applied. There is no such thing as technical
natural justice. The requirements of natural justice depend upon the facts and
circumstances of the case, the nature of the enquiry, the rules under which the
Tribunal is acting, the subject matter to be dealt with and so on. Concept of fair
play in action which is the basis of natural justice must depend upon the
particular lis between the parties. Beyond all rules and procedures that is the
sine qua non.
15. In. V.K. Khanna (Supra), it was held that fairness in action depends upon
the facts and circumstances of each case and there is no strait jacket formula
there for. Mere apprehension is not enough. There must be real danger of bias.
The Apex Court held that malafides must be proved by definite evidence.
Page No.# 23/30
Actions which are not otherwise bonafide held would not ipso facto amount to
be mala fide.
16. In Roop Singh Negi (Supra) in respect of the departmental enquiries, it
was held that documentary evidence are required to be proved, mere
production of these documents has been held to be not enough. The contents
of the documentary evidence has to be proved by examining the witnesses.
17. In Naresh Kumar Upadhyay(Supra), the Co-ordinate Bench observed that
the Court of Enquiry proceedings were initiated against the delinquent employee
and the findings recorded were never made known to the petitioner therein and
although the respondent No. 2 therein was not the disciplinary authority but
only the appellate authority, the order of penalty was issued by the said
respondent No. 2 therein without referring to any specific finding arrived at by
the Court of Enquiry as regards the involvement of the petitioner in
misappropriation of Govt. store. Under these circumstances, the Co-ordinate
Bench interfered with this impugned order and the memo of charges.
18. These Judgments have been pressed into service by the petitioners in
support of his contentions that there is a real likelihood of bias against the
petitioners and therefore, the disciplinary proceedings ought not to be permitted
to be carried on in its present form and therefore, the same ought to be
interfered with and set aside. It is also pressed into service in support of his
contention that the procedure prescribed under the Army Rules, 1954 under
Rule 180 regarding Court of Enquiry was never followed in respect of the writ
petitioners.
19. In A. Venkata Naidu(Supra) has also been pressed into service by the writ
petitioners in support of his contentions that the memo of charges issued by the
Page No.# 24/30
respondents should not be vague but should be specific and if the charges are
not specific there can be no finding of guilt fixed on that basis.
20. The premise in which the challenge made to the departmental proceedings
initiated against the writ petitioners are essentially on the ground that the Court
of Enquiry being instituted against the petitioners recommended the
departmental proceedings was conducted in complete violation of Rule 180 of
the Army Act, 1954. Pressing the Judgment of Sanjay Jethi (Supra), it is
contended on behalf of the petitioners that when Court of Enquiry is conducted
and if it raises any question of the military reputation of facts or custom is
concerned then every opportunity must be afforded to such an officer. Unlike
the facts and circumstances before the Co-ordinate Bench as have been found
in Naresh Kumar Upadhyay (Supra) which is pressed into service by the writ
petitioner, the respondent authority in the present proceedings did not proceed
to impose any penalty on the writ petitioners or had sought to recover any
amount from the writ petitioners on the ground of causing loss to the
exchequer, merely on the findings of the Court of Inquiry recommendations. On
the contrary the Court of Inquiry finding merely recommended initiation of
departmental proceedings under CCS(CCA) Rules against the present
petitioners. It is in pursuance to such recommendation that the departmental
proceedings are initiated against the writ petitioners and the show cause notices
have been issued to which the petitioners have also filed their responses. There
is no finding which affects the military reputation of the writ petitioners at this
stage. The departmental proceedings are yet to be concluded and no finding at
this stage is arrived at by the respondent authorities.
21. Therefore, the bias and the prejudice which the writ petitioners project
that they will suffer in the event the proceedings are permitted to be continued,
Page No.# 25/30
are not made out in the facts and circumstances of those cases. As have been
held in the Judgment of the Apex Court rendered in V.K. Khanna (Supra) that
the test of bias is as to determine whether there is a mere apprehension of bias
or is there a real danger of bias and it is on this score that the surrounding
circumstances must and ought to be collated and necessary conclusion must be
drawn therefrom. In the facts pleaded before this Court, although apprehension
is expressed by the writ petitioners of bias, however, on the facts pleaded and
the materials available before this Court no real danger of bias appears to the
Court in the given facts and circumstances of the case as the matter is still at
the initial stage of the departmental enquiry. As on date, there is no finding
even a preliminary finding by the respondent authority against the writ
petitioners in respect of the charges leveled against the writ petitioners. There
are no materials placed before the Court to suggest that the proceedings were
carried on in contravention of the procedure prescribed under CCS(CCA) Rules
and/or that the petitioners were not given any opportunity to examine the
documents or the witnesses relied upon by the respondent authorities. By order
dated 20.11.2024 passed in W.P(C) No. 4861/2024 by this Court, further
proceedings in the matter has been stayed as on date and the said interim order
still subsists. A perusal of the show cause notices issued to the petitioners prima
facie do not appear to the Court that the charges are vague and not distinct and
thereby the same would pre-empt the petitioners from filing any effective reply.
22. Furthermore at the stage of initiation of departmental proceedings where
memo of charges have been issued and where the reply has also been filed by
the Petitioners, no final order has been passed by the disciplinary authority
under the CCS(CCA) Rules, at this stage, whether any legal right of the
petitioners are affected will have to be examined.
Page No.# 26/30
23. In this context, reference to the judgment of the Apex Court laid down in
Union of India And Anr. vs Kunisetty Satyanarayana, reported in (2006) 12 SCC
28. The Apex Court held as under:
13. It is well settled by a series of decisions of this Court that ordinarily no writ lies
against a charge-sheet or show-cause notice vide Executive Engineer, Bihar State
Housing Board v. Ramesh Kumar Singh [(1996) 1 SCC 327 : JT (1995) 8 SC
331] , Special Director v. Mohd. Ghulam Ghouse [(2004) 3 SCC 440 : 2004 SCC (Cri)
826 : AIR 2004 SC 1467] , Ulagappa v. Divisional Commr., Mysore [(2001) 10 SCC
639] , State of U.P. v. Brahm Datt Sharma [(1987) 2 SCC 179 : (1987) 3 ATC 319 : AIR
1987 SC 943] , etc.
14. The reason why ordinarily a writ petition should not be entertained against a mere
show-cause notice or charge-sheet is that at that stage the writ petition may be held to
be premature. A mere charge-sheet or show-cause notice does not give rise to any
cause of action, because it does not amount to an adverse order which affects the
rights of any party unless the same has been issued by a person having no jurisdiction
to do so. It is quite possible that after considering the reply to the show-cause notice or
after holding an enquiry the authority concerned may drop the proceedings and/or hold
that the charges are not established. It is well settled that a writ petition lies when
some right of any party is infringed. A mere show-cause notice or charge-sheet does
not infringe the right of anyone. It is only when a final order imposing some punishment
or otherwise adversely affecting a party is passed, that the said party can be said to
have any grievance.
24. Again in Ministry of Defence vs. Prabhash Chandra Mirdha reported in
(2012) 11 SCC 565, the Apex Court held as under:
11. In State of Orissa v. Sangram Keshari Misra [(2010) 13 SCC 311 : (2011) 1 SCC
(L&S) 380] (SCC pp. 315-16, para 10) this Court held that normally a charge-sheet is not
quashed prior to the conducting of the enquiry on the ground that the facts stated in the
charge are erroneous for the reason that to determine correctness or truth of the charge is
the function of the disciplinary authority. (See also Union of India v. Upendra Singh [(1994) 3
Page No.# 27/30SCC 357 : 1994 SCC (L&S) 768 : (1994) 27 ATC 200] .)
12. Thus, the law on the issue can be summarised to the effect that the charge-sheet
cannot generally be a subject-matter of challenge as it does not adversely affect the rights of
the delinquent unless it is established that the same has been issued by an authority not
competent to initiate the disciplinary proceedings. Neither the disciplinary proceedings nor
the charge-sheet be quashed at an initial stage as it would be a premature stage to deal with
the issues. Proceedings are not liable to be quashed on the grounds that proceedings had
been initiated at a belated stage or could not be concluded in a reasonable period unless the
delay creates prejudice to the delinquent employee. Gravity of alleged misconduct is a
relevant factor to be taken into consideration while quashing the proceedings.
13. The instant case requires to be examined in the light of the aforesaid settled legal
propositions.
25. These judgments have clearly laid down that at this stage of initiation of a
memo of charges, no legal right of the petitioners are violated as no conclusions
have been reached by the authorities and the matter is still under consideration
by the authorities and the departmental proceedings are concluded by issuance
of any order(s) by the disciplinary authority either by imposing any punishment,
major or minor, on the delinquent employee, or dropping the charges.
26. As discussed above, in view of the interim orders issued by this court the
respondents have not proceeded with the departmental proceedings, and no
final decision has yet been issued.
27. Coming to the contention of the writ petitioners that there was undue
delay in initiation of the departmental proceedings, and thereby petitioners are
highly prejudiced also cannot be accepted in view of the fact that the court of
enquiry was held in the year 2020 and thereafter, on it’s recommendation, the
departmental proceedings were initiated. There is no universal rule to determine
Page No.# 28/30the extent of delay in initiating departmental proceedings and the prejudice
caused to such delinquent employees. No doubt, any departmental proceedings
are to be initiated at the earliest and also concluded, without undue delay.
28. The contention of the petitioners that the initiation of departmental
proceedings on recommendation by the Court of enquiry was biased against the
petitioners in the absence of any opportunity being granted to the petitioners
to be present during the Court of Enquiry and/or to examine the documents and
witnesses thereby as per the procedure prescribed in 180 of the Rule, cannot be
accepted in view of the discussion above that notwithstanding the Court of
enquiry recommendation, no proceedings under the Army Act and Rules was
initiated against the writ petitioners. Rather Court of Inquiry recommendation
was only towards initiation of departmental proceedings under the CCS(CCA)
Rules and in pursuance to which the memo of charges have been issued to
which the petitioners had already submitted their written statements. Needless
to say that the petitioners will have to be afforded all opportunity to examine all
documents and witnesses relied upon by the department in support of the
charges and the allegations against the writ petitioners Therefore, the Court
does not find any bias or arbitrariness in the actions of the respondent
authorities in their recommendation of the court of enquiry for initiation of
departmental proceedings and on the facts pleaded.
29. In the facts of the present case, the incident(s) on the basis of which the
charges are leveled against the petitioners pertains to the year 2020, and which
was in the middle of the COVID period. The Court of enquiry finally
recommended the proceedings against the petitoners in April 2023, and the
memo of charges have been issued in the year on 2nd August 2024. Therefore,
on these facts, it cannot be said that there was undue delay in initiating the
Page No.# 29/30departmental proceedings against the writ petitioners and thereby causing
serious prejudice. Therefore, this argument by the writ petitioners therefore also
stands rejected.
30. The contentions of the petitioners is concerned that the charges in the
memo of charges are vague and therefore no proper proceedings can be
conducted must also fail in view of the fact that the petitioners have also
already responded to the memo charges by filing the written statements and
the Copy of the written statements filed by the petitioners are not enclosed to
the writ petitions nor any clear averment to that extent is found in the pleadings
filed by the writ petitioners. It is open to the petitioners to raise such grounds
before the departmental authorities notwithstanding that in the present
proceedings, the petitioners have not been able to project vis-Ã -vis the charges
levelled as to how these charges are vague and that the same could not/cannot
be replied to and/or as a consequences thereof the petitioners could not offer
their right of defence appropriately in response to the charges levelled. Under
such circumstances, the contention of the writ petitioners that the charges are
vague must also necessarily fail, and the same is therefore rejected.
31. The other claims of the writ petitioners regarding grant of non-functional
upgradation with effect from the date when his juniors were granted, and also
vis-Ã -vis the claim of MACP, these claims are available to the writ petitioners to
be urged before the authorities subject to the same being permissible during
the pendency of any departmental proceedings which have been initiated.
32. In view of the discussions above, this court does not find any merit in the
petitions seeking indulgence of this court to interfere with the departmental
proceedings and to issue consequential orders. In view of the discussions
above, it is not required to discuss the case laws relied upon by the
Page No.# 30/30respondents.
33. Therefore, the claims made before this court by the petitioners fails and
the writ petitions being devoid of any merit, the same are accordingly
dismissed. No order as to cost. Interim orders, if any, stands vacated. Pending
I.As if any are also dismissed in view of the above.
JUDGE
Comparing Assistant
