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PETITIONER: LAXMI SHANKAR PANDEY

       Vs.

RESPONDENT: UNION OF INDIA AND ORS.

DATE OF JUDGMENT19/03/1991

BENCH: REDDY, K. JAYACHANDRA (J) BENCH: REDDY, K. JAYACHANDRA (J) PANDIAN, S.R. (J)

CITATION:  1991 AIR 1070            1991 SCR  (1) 894  1991 SCC  (2) 488        JT 1990 (2)    43  1991 SCALE  (1)491

ACT:     Constitution  of  India,  1950:  Article  32-Scope   of Judicial Review-Disputed questions of fact-Examination of.      Service  Law: Central Reserve Police Force  Act,  1949: Section 11- Departmental enquiry-Head Constable-Negligent  in duty-Escape  of undertrial prisoners from  custody-Order  of dismissal Validity of.      Natural  Justice- Principles of  Departmental  enquiry- Observance/applicability of particular principle/rule-To  be decided on the facts and circumstances of each case.

HEADNOTE:      The petitioner, a Head Constable in the Central Reserve Police Force was charge-sheeted for negligence in his  duty, resulting  in  the escape of two undertrial  prisoners,  who were  handed  over  to  him  for  custody.  An  enquiry  was conducted against the petitioner, but later it was cancelled and  a  fresh enquiry was commenced on the charges  that  he allowed  a Santry to leave the santry post without arranging proper  relief  resulting  in the  escape  of  2  undertrial prisoners;  that he did not take immediate action to  report the matter to the Head Quarters; that he connived the escape of the two undertrial prisoners; that he dug up a tunnel  to make  it  appear that the two undertrial  prisoners  escaped through  the tunnel and that he did not hand over the  guard duty roster thus preventing its production as evidence.      Statement of some witnesses and that of the  Petitioner were  recorded. Only one defence witness was  examined.  The Enquiry   Officer   submitted   his   report    recommending disciplinary  proceedings  against the  petitioner.  On  the basis  of the Report , a dismissal order was passed  against the   petitioner.  The  petitioner’s  appeal   against   the dismissal  order was dismissed by the  appellate  authority. Revision Petition preferred by him also met the same fate.      In the present Writ Petition, challenging the dismissal order, the                                                        895 petitioner  contended that during the relevant  time,  there was  absolute shortage of personnel, non-supply of torch  or candle  or  kerosene and absence of proper  arrangements  to keep  custody  of  the undertrial  prisoners.  It  was  also

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contended that all the defence witness cited by him were not examined  and  that  the enquiry was  mala  fide  since  the earlier enquiry was dropped and he was exonerated.      The Respondents contended that no prejudice was  caused to  the  petitioner since full opportunity was  afforded  to him, that the venue of the enquiry was shifted only to avoid unnecessary  delay and the petitioner never objected  to  it during  the  enquiry. As regards the first enquiry,  it  was contended  that since the same was not completed  and  later cancelled,  fresh  enquiry was ordered and it did  not  mean that the petitioner was exonerated.      Dismissing the Writ Petition, this Court,      HELD:  1.  It  is necessary to  examine  the  scope  of Article  32 of the Constitution in this case. Since the  two undertrials were entrusted to the custody of the  petitioner and  they  escaped, the responsibility was entirely  on  the petitioner. No doubt, he pleaded that the arrangements  were inadequate and the two undertrial prisoners took  advantage, dug  a  tunnel  through which they managed  to  escape.  The Deputy  Superintendent  of Police who visited  the  premises inspected  the  same and made a report in which  he  clearly observed  that  there was certainly some negligence  in  not noticing  the  activities of the  undertrial  prisoners  and therefore an enquiry was necessary. The Enquiry Officer,  on the  basis of the oral and documentary evidence,   concluded that the petitioner committed an offence of neglect of  duty and  that  he did not take immediate action  to  report  the matter to the Circle Officer. The statements of PWs 1, 3, 4, 5,  6, 8 and 9 to show that there was no tunnel at all  when they   reached the spot on  hearing the alarm. It is in  the statement  of  PW 2 that he saw the petitioner  digging  the tunnel.  In view of these  clear statements made by the  PWs viz.   the  Constables  who  were  on  duty  alongwith   the petitioner  when  the two undertrial  escaped,  the  Enquiry Officer  was justified in recommending disciplinary  action, and  no  prejudice was caused  to  the  petitioner.[900D-H, 901A-B]      Kavalappara  Kottarathil Kochunni Moopil Nayar  v.  The State of Madras and Ors., [1959] (supp.) 2 SCR 316 and  Smt. Ujjam  Bai  v.  State of Uttar  Pradesh,  [1963]1  SCR  778, referred to.      2.  Whether  there  was non-observance of  any  of  the principles of                                                        896 natural  justice  in a given case and whether the  same  has resulted  in  defecting  the course  of  justice,  and  what principles  of natural justice should be applied in a  given case depends on the facts and circumstances of that case. In the  instance case, the petitioner has failed to prove  that the   enquiry   is  vitiated  in  any   manner   whatsoever. [902H;903A-B]      Tata Oil Mills Co. Ltd. v. Its Workmen, [1964] 7Scr 555 ;  State of Uttar Pradesh v. Om Prakash Gupta, [1969] 3  SCC 775;  State Bank of India v. R.K. Jain & Ors., [1972] 1  SCR 755;  State of Andhara Pradesh & Ors.v. Chitra Venkata  Rao, [1976]1SCR 521; A.K. Kraipak and Ors. v. Union of India  and Ors., [1969] 2SCC 262; Capt. Harish Uppal v. Union of  India and Ors., [1973] 3 SCC 319 and Khemchand v. Union of  India, [1958] SCR 1981, referred to.      [Though  the  Petitioner’s challenge to  the  dismissal order   was  negatived  by  the  Court,   appreciating   the mitigating  circumstances  such  as  the  petitioner’s  long service  of 20 years in which he was performing  his  duties diligently and bagging medals therefore, and that no act  of negligence or misconduct was attributed to him earlier,  the

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Court   observed   that   if  the   petitioner   marks   any representation,  the  authority concerned may  consider  the question of awarding a lesser sentence.]

JUDGMENT:      CIVIL ORIGINAL JURISDICTION: Write Petition No. 974  of 1989.          (Under Article 32 of the Constitution of India).      Gobinda  Mukhoty, S.K. Bhattacharya and D.K.  Garg  for the Petitioner.      K. Swamy, R.C. Kaushik (NP) for the Respondents.      The Judgement of the Court was delivered by      K.  JAYACHANDRA  REDDY, J. In this write  petition  the petitioner   has   challenged  the  order  passed   by   the Commandant,  11th  Battalion C.R.P.F., the  4th  respondent, dismissing  the petitioner from service. The petitioner  was working  as a Head -Constable in the Central Reserve  Police Force ("CRPF" for short) on the relevant date. He joined  as a  Constable in the year 1963. He was awarded  three  medals for  performing his duty diligently and in the year 1967  he was given an award of Rs. 500 and a special promotion  while fighting in the                                                        897 Nagaland.  He  also claims to have been awarded  some  other such  cash awards later. He was promoted  as  Head-Constable later on. In total he has put in 20 years of service.  While working as Post Commander of Vijaynagar Post Tirap District, two  undertrial prisoners who were Burmese  nationals,  were handed  over  on 29.3.83 till further order by   the  Circle Officer to the custody of the CRPF Vijaynagar Post of  which the  petitioner was the Post Commander. On  the  intervening night  of 4th and 5th April, 1983 the two Burmese  nationals escaped  from the custody. It was alleged that the  petioner was negligent in his duty and that he did not take immediate action  to report the matter to the Circle Officer and  that he also connived the escape of the two undertrial  prisoners and  deliberately  dug a tunnel to make it appear  that  the undertrial  prisoners  had dug the tunnel  and  and  escaped through  the  same.  On  the  basis  of  this  incident,   a chargesheet   was  served  on  18th  August,  1983  on   the petitioner   and  an  enquiry  was  conducted.  The   Deputy Superintendent  of  Police was the Enquiry  Officer  and  he recorded  the  statements of some witnesses  who  were  then posted under the petitioner. That Enquiry was cancelled  and a  fresh  enquiry was commenced. Three charges  were  framed which  are  referred  to as Articles in the  report  of  the Enquiry Officer. These are as under:           "Article-I                No.  630110316 HC. L.S. Pandey of E.  Coy  11          Bn.  CRPF  while functioning as post  Commander  of          Vijay Nagar post in distt. Tirap (ACP) from 11/3/83          to 18/6/83 and while functioning a Guard  Commander          of the Guard post Vijay Nagar post in Distt.  Tirap          (ACP) on 5/4/83 committed an offence of  remissness          in his capacity as a member of the force U/S 11 )1)          of CRPF Act, 1949 in that he allowed No.  800210049          Ct.  Md Shamsher Alam to leave the santry  post  at          0430  hrs  without arranging  proper  relief  which          resulted in the escape of 2 UTPs from the  prisoner          cell.           Article-II                That   during  the  aforesaid  period   while           functioning as post Commander and guard  Commander

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         at  Vijay  Nagar  post,  the  said  No.  630110316           H.C.L.S. Pandey of E Coy 11 Bn, CRPF committed  an           offence  of neglect of duty in his capacity  as  a           member  of the force U/S 11 (1) of CRPF Act,  1949           in that he did not take immediate action to report           the  matter to the Circle Officer of  Vijay  Nagar           and sent Crash                                                        898           Message  to  Bn  Hqrs. When the  UTPs  were  found           missing from the UTPs cell at about 0500 hours  on           5/4/83.           Article-III                That   during  the  aforesaid  period   while          functioning as post/guard Commander of Vijay  Nagar          post  of Distt. Tirap (ACP) the said No.  630110316          HCLS.  Pandey  of E Coy 11 Bn,  CRPF  committed  an          offence of  grave misconduct in his capacity  as  a          member of the force U/S 11 (1) of CRPF Act, 1949 in          that  he  connived  the  escape  of  two  UTPs  and          deliberately dug the tunnel to make it appear  that          the UTPs and deliberately dug the tunnel to make it          appear that the UTPs had dug the tunnel and escaped          through  the tunnel. He did not handover the  guard          duty  roster to next post Commander  no.  630040452          HCB  Lakara  thereby destroying  the  documents  to          prevent its production as evidence." The  statements  of  some of the  witnesses  were  recorded. Thereafter the deliquent’s statement also was recorded.  The deliquent was again given an opportunity to put forward  his plea. He pleaded not guilty and the deliquent was asked   to enter  his  defence by filing a written statement  and  also produce  a list of defence witnesses. He accordingly gave  a list  of  defence  witnesses and only one  def  witness  was examined.  The Enquiry Officer submitted the report  holding that   the  delinquent  connived  the  escape  of  the   two undertrial prisoners and then deliberately dug the tunnel to make  it appear  that the undertrail prisoners dug the  same and   escaped  and  he  accordingly  recommended  that   the disciplinary  proceedings  should be initiated  against  the petitoner  as  well  as  against  another  Constable   Mohd. Shamsher  Alam.  On the basis  of this  report  a  dismissal order was passed against the petitioner on 30th June,  1984. The  petitioner preferred an appeal under Section 28 of  the CRPF Rules to the Deputy Inspector General of Police,  CRPF, the appellate authority, but the same was dismissed on  23rd October,  1984.  A  further revision  filed by  him  to  the Inspector  General  of Police, CRPF was  also  dismissed  on 2.5.86.   During  all  these  enquiries  the  plea  of   the petitioner  had  been that on 29.3.83,  the  two  undertrail prisoners were  entrusted late in the evening and he was not given  full strength of 40  Constables and that  there  were only  11 Constables and it was dark and raining heavily  and that neither torches nor candle sticks nor kerosene oil were available. There were also no locks and stationery and there were  no proper arrangements of the building where  the  two undertrial  prisoners could be kept in custody and  he  also sent a message that more persons should be deputed but no                                                        899 steps were taken. With regard to the enquiry, his  grievance has  been  that suddenly area of enquiry  was  shifted  from Khonsa  to  Logding 50 kms. away and that  all  the  defence witnesses cited by him were not examined. He has also stated that the first enquiry was dropped and he was exonerated and on  the whole the enquiry was not fair and not according  to the Rules and that the entire proceedings were mala fide  in

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as much as the first enquiry officer dropped the enquiry and exonerated  the  petitioner from all charges. In  this  writ petition also the same submissions are put forward.      In  the  counter-affidavit  filed  on  behalf  of   the respondents, it is stated that full opportunity was given to the  petitioner  during the departmental  enquiry  and  that venue of enquiry was shifted from Khonsa to Longding only to avoid  unnecessary  delay  in  the  enquiry  and  that   the petitoner never  objected to the shifting of  the  place  of enquiry.  It is also submitted that the petioner  was  given full  opportunity  to  produce  the  defence  witnesses  and notices  were also served on them but they did  not  appear. Regarding  the first enquiry it is stated that the same  was not  completed  by the Enquiry Officer.  Therefore  a  fresh enquiry  was  ordered  and that it cannot be  said  that  by cancellation   of  the  first  enquiry  the  petitoner   was exonerated. It is further submitted that the petitioner  was given full opportunity and that he duly participated in  the enquiry and no prejudice whatsoever was caused.      On  a  careful examination of the  affidavit,  and  the counter-affidavit  and  the  allegations  as  well  as   the denials,  we are of the opinion that there are a  number  of disputed  questionss of  fact. The learned counsel  for  the petitoner,  however,  submitted that under Article  32  even disputed  questions of fact can be gone into by this  Court. He  relied  on  a judgement of  this  Court  in  Kavalappara Kottarathil Kochunni Moopil Nayar v. The State of Madras and Others, [1959]Suppl. 2SCR 316 where it is observed that:           "Clause   (2)  of Art. 32 confers  power  on  this           Court  to issue directions or orders or  writs  of           various kinds referred to therein. This Court  may           say  that many particular writ asked for is or  is           not appropriate or it may say that the  petitioner           has  not established any fundamental right or  any           breach   thereof  and  accordingly   dismiss   the           petition.  In  both cases this Court  decides  the           petition on merits. But we do not countenance  the           proposition that, on an application under Art. 32,           this  Court may decline to entertain the  same  on           the                                                        900           simple  ground that it involves the  determination           of  disputed  questions of fact or  on  any  other           ground.  If  we were to accede  to  the  aforesaid           contention  of  learned   counsel,  we  would   be           failing in our duty as the custodian and protector           of the fundamental rights. We are not unmindful of           the  fact that the view  that this Court is  bound           to entertain a petition under Art. 32 and to decide           the same on merits may encourage litigants to file           many petitions under Art. 32 instead of proceeding           by  way of a suit. But that consideration  cannot,           by  itself,  be a cogent reason  for  denying  the           fundamental  right  of a person to  approach  this           Court for the enforcement of his fundamental right           which  may,  prima  facie,  appear  to  have  been           infringed. Further, questions of fact can and very           often are dealt with on affidavits." In  support of the same proportion, the learned counsel  for the petitioner also relied on the decision of this Court  in Smt. Ujjam Bai v. State of Uttar Pradesh, [1963] 1SCR 778.      Having  carefully examined the entire records  and  the submissions  made, we do not think that it is  necessary  to examine  the  scope of Article 32 in this  case.  Since  the petitioner  who  has been in service for 20 years  has  been

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dismissed,  we  thought  fit  even  to  examine  and   their statements clearly establish the charges framed against  the petitioner. That apart undisputedly the two Burmese national were  entrusted  to the custody of the petitioner  and  they escaped  and  the  responsibility  entirely  lies  with  the petitioner who was the Post Commander of Vijaynagar Post. No doubt, he pleaded that the arrangements were inadequate  and the  two undertrial prisoners took advantage, dug  a  tunnel through which they managed to escape. The Dy. Superintendent of  Police who visited the premises inspected the  same  and made a report and in he said report he clearly observed that there was certainly some negligence on the part of CRPF  men for not noticing the activities of the undertrial  prisoners and  therefore  an  enquiry was necessary.  In  the  enquiry report the statements of the witnesses namely the Constables who  were on duty are referred to in detail and it  is  held that the petitioner was the Guard Commander till 5.4.83. The Enquiry  Officer  has also referred to the records  in  this regard and on the basis of the oral an documentary evidence, he  concluded  that the petitioner committed an  offence  of neglect of duty and that he did not take immediate action to report  the matter to the Circle Officer. What is  more  the statements of                                                        901 PWs  1,  3, 4, 5, 6, 8 and 9 go to show that  there  was  no tunnel  at  all when they reached the spot  of  hearing  the alarm.  It  is  in the statement of PW 2  that  he  saw  the petitioner  digging  the  tunnel. In  view  of  these  clear statements made by the Constables who were on duty alongwith the  petitioner when the two Burmese nationals escaped,  the Enquiry  Office was justified in  recommending  disciplinary action.  Under these circumstances, we see no force  in  the submission  that the enquiry was not properly conducted  and that prejudice was caused to the petitioner.      After having perused all the records carefully, we  are unable  to find any clinching circumstances on the basis  of which  it can be said that the petitioner was not  negligent in  discharge of his duties and that he did not  commit  any act  of  misconduct.  On the other hand  we  find  that  the statements  of PWs 1, 3, 4, 5, 6, 8 and 9 coupled with  that the  PW  2  falsify the plea of  the  petitioner  that   the undertrial  prisoners themselves dug the tunnel and  managed to escape.      As already mentioned the learned counsel also submitted that the enquiry is vitiated inasmuch as proper  opportunity was not given to the petitioner as all the defence witnesses were  not  examined and that place of  hearing  was  shifted because  of  which the witnesses could not be  produced  and that  the  cancellation  of the first  enquiry  amounted  to exoneration. therefore, according to the learned counsel for the  petitioner, the impugned order of dismissal  should  be quashed  as  there  is clear violation  of  his  fundamental rights   guaranteed  under  Articles  14  and  16   of   the Constitution  of  India.  In  this  context  he  relied   on decisions  of this Court in Tata Oil Mills Co. Ltd.  v.  Its Workmen,  [1964]  7 SCC 555; State of Uttar  Pradesh  v.  Om Prakash Gupta, [1969] 3 SCC 775; State Bank of India v. R.K. Jain 7 Ors., [1972] 1 SCR 755 and State of Andhra Pradesh  & Ors.  v. Chitra Venkat Rao, [1976] 1 SCR 521. In  all  these cases it is laid down that such enquiries must be  conducted in  accordance  with the principles of natural  justice  and that  a  reasonable  opportunity to deny the  guilt  and  to cross-examine the witnesses produced and examined, should be given  and  that the enquiry should be consistent  with  the rules  of  natural  justice  and  in  conformity  with   the

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statutory  rules  prescribing the mode of enquiry.  We  have already referred to the details of enquiry conducted in  the instant  case  and we are unable to say that there  was  any violation of principles of natural justice. It is,  however, urged  that in these matters merely following the  rules  in the procedure established is not enough,  but the principles of  natural justice must also necessarily be followed.  What this  Court in a number of cases has been observed  is  that what  particular rule of natural justice should apply  to  a given case depends to a                                                        902 great  extent  on the facts and circumstances of  the  case. Reliance  has also been placed on some of the  decisions  of this Court. In A.K. Kraipak and Others v. Union of India and Others, [1969] 2 SCC 262 it is pointed out that:           "Para 20. The aim of the rules of natural  justice           is  to secure justice or to put it  negatively  to           prevent  miscarriage of justice. These  rules  can           operate  only  in  areas not covered  by  any  law           validly made. In other words they do not  supplant           the law of the land but supplement it.           xx                       xx                     xx           What  particular  rule of natural  justice  should           apply  to  a  given case must depend  to  a  great           extent  on  the facts and  circumstances  of  that           case,  the  framework of the law under  which  the           enquiry  is  held  and  the  constitution  of  the           Tribunal  or  body of persons appointed  for  that           purpose.  Whenever  a complaint is made  before  a           court  that some principle of natural justice  had           been  contravened the court has to decide  whether           the  observance of that rule was necessary  for  a           just decision on the facts of that case." In Capt.  Harsh Appall v. Union of India and Others,  [1973] 3  SCC  319 the contention was that  before  confirming  the sentence  by  the  court-material under  the  Army  Act,  an opportunity  should  have  been  given  to  the   delinquent officer. In respect of this contention is observed that:           "to  insist that the confirming  authority  should           give  a  hearing  to  the  petitioner  before   it           confirmed the sentence passed by the Court Martial           is  a  contention  which cannot  be  accepted.  To           accept  this  contention would mean that  all  the           procedure  laid  down  by  the  Code  of  Criminal           Procedure   should  be adopted in respect  of  the           Court   Martial, is a contention which  cannot  be           accepted in the face of the very clear indications           in the Constitution that the provisions which  are           applicable   to  all  the  civil  cases  are   not           applicable to cases of Armed Personnel."                                          (emphasis supplied) As observed in Khemchand v. Union of India, [1958] SCR  1081 to which there is a reference in some of the decisions cited above  all that the courts have to see is whether there  was non-observance of any of                                                        903 those  principles in a given case and whether the  same  has resulted  in  defecting the course ofjustice and  that  what principles  of natural justice should be applied in a  given case  depends on the facts  and circumstances of  that  case (vide  State of Uttar Pradesh v. Om Prakash Gupta, [1969]  3 SCC 775. In our view even applying all these principles  the petitioner has failed to prove that the enquiry is  vitiated in any manner.      The last submission of the learned counsel is that  the

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punishment  of  dismissal is wholly disproportionate to  the alleged act of misconduct. We are unable to go to the extent of  holding  that  the punishment by  way  of  dismissal  is arbitrarily  awarded.  But  there  are  certain   mitigating circumstances.  The petitioner joined as a Constable in  the year  1963 and he was awarded medals for the performing  his duties  diligently. He has put in 20 yard of service and  no act of negligence or misconduct is attributed to him at  any time   before   during  this  long  service.   Under   these circumstances if the petitioner makes any representation the concerned authority may consider the question of awarding  a lesser  sentence.  With  the  above  observations  the  writ petition is dismissed. G.N.                                          Petition dismissed.                                                        904