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Union of India (Uoi) Vs. Pundalik Manikrao Waghmare and anr. - Court Judgment

LegalCrystal Citation
SubjectService
CourtMumbai High Court
Decided On
Case NumberSecond Appeal No. 721 of 1980
Judge
Reported in1985(2)BomCR363; 1986MhLJ533
ActsConstitution of India - Article 226; Code of Civil Procedure (CPC) (CiPC), 1908 - Sections 100; Central Reserve Police Force Act, 1949 - Sections 11 and 18
AppellantUnion of India (Uoi)
RespondentPundalik Manikrao Waghmare and anr.
Appellant AdvocateC.M. Kothari, A.G.P.
Respondent AdvocateP.N. Karlekar, Adv. for ;V.M. Potdar, Adv. for respondent No. 1
DispositionSecond appeal succeeded
Excerpt:
.....competent authority - sections 11 and 18 of central reserve police force act, 1949 - mere because enquiry officer prepared draft charges it does not mean that disciplinary proceedings were initiated by enquiry officer and not by commandant who was competent officer - draft charges were submitted for approval to commandant who was competent authority to initiate proceedings - draft charges were approved by commandant - decision to initiate disciplinary proceedings was also taken by commandant - order of removal cannot be assailed. - - ' the court, however, further added :in the absence of a statutory provision permitting expressly or impliedly delegation of disciplinary powers, an authority other than the disciplinary authority has clearly no power to frame, on its own initiative,..........was holding that post upto 11th march 1973. that the deputy superintendent of police, c.c.b./27, enquiry officer, central reserve police force, dhubri served a charge-sheet on him on 6th april, 1973 under section 11(1) of the central reserve police force act, 1949 for remissness and grave misconduct in the discharge of his duties as a member of the force. the allegation against him was that he beat one premising of d/82 border security force and another water carrier motilal of f/27 border security force when he tried to intervene and stop the assault at the cinema show which he went to witness along with other c.r.p.f. constables under the command of jamadar mahipal singh on 11th february, 1973. the above charges were communicated to him by the enquiry officer and after receiving his.....
Judgment:

K. Madhava Reddy, C.J.

1. This second appeal is by the Union of India against the appellate decree in Civil Appeal No. 282 of 1978 on the file of the Assistant Judge, Solapur by which the decree in Regular Civil Suit No. 616 of 1974 on the file of the Civil Judge (Senior Division) Solapur was reversed and the suit was decreed.

2. The respondent herein is the original plaintiff. He was recruited as Police Constable in the State Reserve Police Force, Group II, Pune on 2nd November, 1965. On charges of indiscipline, after a departmental enquiry, he was dismissed from service by an order dated 28-6-1973. In the suit, he called in question the order of dismissal and prayed for a declaration that it was illegal and void and prayed for reinstatement in the service and payment of arrears of salary and allowances due to him and in the alternative to declare that the order of dismissal does not disqualify him from having such other employment as he may get. He was originally enlisted as an Armed Police Constable on 2nd November, 1965 by the Commandant, State Reserve Police Force Group-II, Pune in the Maharashtra State and served as such till 31st December, 1967. He was then taken over to the Central Police Force as Constable with effect from 1st January 1968 under the control of the Commandant, 27th Battalion, Central Reserve Police Force at Calcutta. He was thereafter promoted from the rank of Constable to the rank of Lance Naik and was holding that post upto 11th March 1973. That the Deputy Superintendent of Police, C.C.B./27, Enquiry Officer, Central Reserve Police Force, Dhubri served a charge-sheet on him on 6th April, 1973 under section 11(1) of the Central Reserve Police Force Act, 1949 for remissness and grave misconduct in the discharge of his duties as a member of the force. The allegation against him was that he beat one Premising of D/82 Border Security Force and another water carrier Motilal of F/27 Border Security Force when he tried to intervene and stop the assault at the Cinema show which he went to witness along with other C.R.P.F. Constables under the Command of Jamadar Mahipal Singh on 11th February, 1973. The above charges were communicated to him by the Enquiry Officer and after receiving his explanation and recording the evidence of 12 witnesses, the Enquiry Officer submitted the Enquiry Report to the Commandant, 27th Battalion, 2nd respondent herein. Along with the copy of the enquiry report, he was served show cause notice to show cause as to why the report of the Enquiry Officer should not be accepted and punishment imposed. The penalty proposed was one of dismissal from service. After receiving his written representation, the Commandant held the charges proved and came to the conclusion that he was not a fit person to be kept in the service. Accordingly by order dated 28th June, 1973 he imposed the punishment of dismissal from service with effect from the date of the service.

3. The principal attack on the order of dismissal is that the Commandant had no jurisdiction to take any disciplinary proceedings. It was contended that the order of removal was not passed by a competent authority. It is also argued that in any event, no disciplinary proceedings could be taken against him in respect of an incident which occurred outside his official duties, that is, at a Cinema Show. That matter was subject to Civil Law and not subject to Central Reserve Police Force Act, 1949.

4. The plaintiff calls in question the said dismissal order on the ground that the principles of natural justice were violated in conducting the inquiry. He complaint that he was not informed the date of hearing and that the Enquiry Officer recorded the evidence behind his back; that he was not supplied with the copies of the statement of allegations and the statements of witnesses to enable him to prepare his defence. It was also pleaded that he was not given reasonable opportunity of being heard and that the enquiry itself was held to take revenge.

5. The Union of India pleaded that the Court had no jurisdiction to try the suit, that the enquiry was in accordance with law and that the principles of natural justice were not violated. It was stated that in spite of several opportunities being given to defend himself and in spite of evidence being recorded in his presence, the plaintiff did not choose to cross-examine the witnesses. At no stage did he request for supplying copies of the statements of witnesses. After taking his representation into consideration, in view of the gravity of the charge, appropriate punishment was imposed. The misconduct did come under the purview of the Central Reserve Police Force Act. It was asserted that the Commandant, 27th Battalion, was competent to initiate the disciplinary proceedings and impose the punishment he did.

6. The trial Court framed appropriate issues and on an appreciation of the evidence on record dismissed the suit holding that the enquiry was proper and was not vitiated by any illegality of procedure or violation of the principles of natural justice and that the punishment was imposed by the competent authority.

7. On appeal the Assistant Judge reversed the trial Court judgment and decreed the suit on the short ground that the charge was framed by the Enquiry Officer who was competent to take disciplinary proceedings. On that finding he came to the conclusion that the order of dismissal passed by the Commandant was null and void and that the plaintiff was entitled to be reinstated in service and to receive salary and allowances.

8. In this appeal, the main question that arises for consideration is whether the disciplinary proceedings were initiated and the charges were framed against the plaintiff by the competent authority.

9. Mr. Karlekar, learned Counsel for the plaintiff-respondent contended that the initiation of the disciplinary proceedings is under a charge-sheet signed by the Deputy Superintendent of Police who is not competent under law to initiate disciplinary proceedings and, therefore, the entire disciplinary proceeding is vitiated.

10. It is common ground that the Commandant is the appointing authority of Lance Naik and is competent to initiate disciplinary proceedings. The record of the enquiry produced before the courts below and marked Exh. 34 shows that Shri S.S. Khaira, Deputy Superintendent of Police, O.C.B. 27th Battalion, C.R.P.F. was appointed by the Commandant, 27th Battalion, Central Reserve Police Force on 17-3-1973 as Departmental Enquiry Officer to conduct the enquiry against the respondent-plaintiff and to submit the departmental enquiry proceedings in due course. After he was so appointed, the Deputy Superintendent of Police Shri S.S. Khaira prepared the draft charge-sheet and submitted it along with his letter dated 27-1-1973 to the Commandant for approval. That charge-sheet was approved by the Commandant. The charge-sheet was then issued from the office of the Officer Commanding 'B' Coy 27 Battalion, C.R.P.F., Dhubri under the signature of the Enquiry Officer Shri S.S. Khaira, Deputy Superintendent of Police and served on the respondent-plaintiff. In regard to the said charge-sheet, the respondent-plaintiff submitted his explanation. In that representation, the plaintiff did not plead that the Deputy Superintendent of Police Shri Khaira had no jurisdiction to frame the charge-sheet and issue it under his signature or that he was not competent to make any enquiry or conduct any disciplinary proceedings. The plaintiff participated in the enquiry which ultimately culminated in an order of removal from service. Keeping these facts in view, we may now proceed to examine the provisions governing the disciplinary proceedings against those governed by Central Reserve Police Force Rules. Under the Central Reserve Police Force Rules, 1955 governing disciplinary proceeding, Rule 27(b) & (c) which lays down the procedure for the award of punishment reads as follows :---

'27(b) When non-gazetted officers or men of the various ranks are to be punished for any offence, a departmental enquiry, if necessary under Clause (a), shall be held by the Commandant or other Superior Officer under the orders of the Commandant : Provided that when the charge is against an Officer of the rank of Subedar (Inspector) or Jamadar (Sub-Inspector) the enquiry shall be held by an authority to be designated for the purpose by the Deputy Inspector General. Where the Officer conducting the enquiry in the case of a Subedar (Inspector) or a Jamadar (Sub-Inspector) considers that a punishment under Items (1) to (4) of the Table is called for, he shall complete the departmental proceedings and forward the same to the Deputy Inspector General for orders.

(c) The procedure for conducting a departmental enquiry shall be as follows :---

(1) The substance of the accusation shall be reduced to the form of a written charge, which should be as precise as possible. The charge shall be read out to the accused and a copy of it given to him at least 48 hours before the commencement of the enquiry.'

The plaintiff who was Lance Naik, is a non-gazetted Officer. Under the said Rule, departmental enquiry against him can be held by the Commandant or other Superior Officer under the orders of the Commandant. Superior Officer is defined in Rule 2(i) as follows :---

'2(i) 'superior officer' means an Officer appointed to the Force by the Central Government under sub-section (1) of section 4 and includes a person officiating for any such Officer'.

Deputy Superintendent of Police Shri S.S. Khaira is a Superior Officer within the meaning of this rule. As is clear from the record, the decision to initiate disciplinary proceedings was taken by the Commandant who was undoubtedly the competent authority. It is he who had appointed Shri S.S. Khaira, Deputy Superintendent of Police, to deal with the enquiry. When it is decided to hold departmental enquiry by the competent Officer and the Enquiry Officer is appointed under Rule 27(c), the Enquiry Officer has to adopt the procedure for conducting the departmental enquiry as laid down therein. The first step to be taken in the departmental enquiry is to frame a charge. That is a part of the departmental enquiry. The Enquiry Officer has to reduce the substance of the accusation to the form of written charge. That is what Shri S.S. Khaira has done in this case. But obviously by way of abundant caution after preparing the draft charge-sheet, he submitted it for the approval of the Commandant who was the competent authority empowered to initiate disciplinary proceedings against the plaintiff. After the Commandant approved draft charge, the Enquiry Officer issued it under his signature. In view of the above, it cannot be said that the Enquiry Officer himself had initiated disciplinary proceedings and framed the charges. The disciplinary proceedings are initiated by the Commandant and the charges are also framed by him. The Enquiry Officer has only communicated the memo of charges under his signature to the charged Officer. That in my view fully satisfies the requirements of Rule 27(b) and (c). In Municipal Corporation v. P. S. Malvenkar, (1978) II L.L.J. 168, the Supreme Court in somewhat similar circumstance held that the draft charge-sheet prepared by an Officer other than the disciplinary authority but approved by the Officer competent to initiate disciplinary proceedings, was valid. The contention of the appellant that the charges were framed by the Competent Authority must, therefore, be upheld and the finding of the appellate Court to the contrary set aside.

11. Shri Karlekar, learned Counsel for the respondent places reliance upon the judgment of M.P. High Court in Shardul Singh v. State of M.P., : (1968)IILLJ274MP to contend that the power vested in the Commandant to make an enquiry could not be delegated to any other Officer. The question that came up for consideration in that case was :---

'as to whether the appointing authority, who possesses the power of taking disciplinary action against a civil servant, can delegate the power to initiate disciplinary action against the civil servant by framing charges and holdings an enquiry into them to a subordinate authority'.

That was a case in which the rules did not provide for delegating the power vested in a disciplinary authority to any subordinate authority. In that context the Court held:-

'If a power of appointment to an office which is plainly an administrative Act has been given by a statute to the holder of an office, then the authority cannot delegate that power to another authority unless the statute expressly or by clear implication permits such delegation. if the power of appointment cannot be delegated, the concomitant power of the appointing authority to dismiss the employee or to take disciplinary action against him cannot also be delegated. The exercise of disciplinary powers, or the field of disciplinary action, is not restricted merely to the passing, by the appointing authority, of an ultimate order imposing disciplinary punishment against the employee. It extends also to the very initiation of disciplinary action against a civil servant or employees by framing charges against him and holding or directing the holding of an enquiry into those charges. The framing of charges; the holding of an enquiry into them, the suspension of the civil servant during the enquiry, the notice to show cause, are all steps in the exercise of the disciplinary powers. All these steps are required to be taken by the disciplinary authority and not by a delegate of that authority.'

The Court, however, further added :-

'In the absence of a statutory provision permitting expressly or impliedly delegation of disciplinary powers, an authority other than the disciplinary authority has clearly no power to frame, on its own initiative, charges against a civil servant and hold an enquiry into them.'

It would be clear even from the judgment that only when the statute does not expressly or impliedly authorise the disciplinary authority to delegate his power to any other subordinate authority, the disciplinary proceedings cannot be initiated by any authority other than the appointing authority but the statute or the Rules governing these proceedings may validly provide otherwise and if they so provide, the proceedings would not be without jurisdiction. The authority so empowered would be competent to take up the proceedings. So far as Rule 27 of the C.R.P.F. Rules is concerned, it authorises not only the Commandant, by also such other superior Officer as is appointed by the Commandant to take up departmental enquiry and frame charges. When Shri S.S. Khaira, Deputy Superintendent of Police, who was a 'Superior Officer', signed the charge-sheet and served it on the plaintiff who was non-gazetted Officer, he was fully empowered to do so by Rule 27(b). Moreover, he did not act on his own. He did not initiate disciplinary proceedings. It was Commandant who took the decision to initiate disciplinary proceedings against the plaintiff and appointed him as an Enquiry Officer. Thus Shri S.S. Khaira was competent not only to conduct the departmental proceedings, but also frame charges. The decision to initiate disciplinary proceedings against the plaintiff herein was taken by the Commandant, the charge-sheet was approved by the Commandant, the enquiry was conducted under his orders and the ultimate punishment was imposed by the Commandant. That order, therefore, becomes unassailable. The M.P. High Court itself held that if the statute itself permitted delegation, the disciplinary proceedings would not be vitiated. It does not lay down that even if such delegation is permitted by the statute, the disciplinary authority should initiate the disciplinary proceedings. On the other hand it authorises even the framing of the charges by the delegate. It was this decision which was followed by the Assam High Court in Manihar Singh v. Supdt. of Police, Shillong, A.I.R. 1969 Ass 1. That decision does not declare that the disciplinary proceedings initiated by the delegatee would be without jurisdiction. The decision of the Supreme Court in Sunil Kumar v. State of W.B., : [1980]3SCR179 leads to the same conclusion. That was a case where the Vigilance Commissioner referred its report of investigation to Shri A.N. Mukherji, who was later appointed as an Enquiry Officer, for his views as to whether institution of disciplinary proceedings was to be recommended and for the preparation of draft charges. Shri Mukherji opined that there was sufficient material for framing charges and also prepared five draft charges and forwarded the same to the Vigilance Commissioner. The Vigilance Commissioner in turn forwarded those papers to the Government which finally decided to institute disciplinary proceedings against the appellant. The Supreme Court held that the decision to initiate disciplinary proceedings was in fact taken by the Competent authority and that neither the charges framed nor departmental proceedings taken were vitiated. So too in this case merely because the Enquiry Officer prepared the draft charges, it does not mean that the disciplinary proceedings were initiated by the Enquiry Officer and not by the Commandant who was the competent Officer. These draft charges were submitted for approval to the Commandant who was admittedly the competent authority to initiate the proceedings. The draft charges were also approved by him. The decision to initiate disciplinary proceedings was also taken by him. The order of removal cannot be assailed on this ground.

12. The next contention of the plaintiff-respondent that the procedure laid down by the Rule therein violated the principles of natural justice, has to be stated to be rejected. The perusal of the enquiry report would disclose that he had participated in the enquiry without any murmur. He never questioned the jurisdiction of the Enquiry Officer to make the enquiry. The Enquiry Officer examined the witnesses in the presence of the delinquent. He was given opportunity to cross-examine the witnesses, but he declined. When the plaintiff refused to cross-examine them, the Enquiry Officer took upon himself to cross-examine them. On the basis of the evidence so recorded and after giving him the requisite opportunity to submit his representation, both in regard to the enquiry report and the charges as well as the punishment proposed, the present order of removal was passed. I find no ground to hold that the enquiry is vitiated. The procedure adopted by the Enquiry Officer and the competent authority in the disciplinary proceedings in awarding the punishment is not in any way vitiated so as to make the order of removal from service illegal or void.

13. Lastly it was contended that the rule authorising the delegation of the powers of disciplinary authority to a superior Officer appointed by the Commandant is itself ultra vires of C.R.P.F. Rules. This contention was not raised in any of the lower courts, but being a pure question of law, was permitted to be raised in this second appeal. However, I do not find any substance in this contention. It is true that under section 4 the appointment of a Commandant and Assistant Commandants is made by the Central Government and the superintendence and control over the Central Reserve Police Force is also vested in the Central Government under section 8 and as laid down in section 11 only the Commandant or any other authority may impose the punishment of suspension or dismissal from service or any kind of punishment mentioned therein. These punishments cannot be imposed by any other Officer. It would be noticed that though the Commandant and Assistant Commandants are appointed by the Central Government, their powers and duties are not specified by the Act. Sub-section (2) of section 4 declares that 'the Commandant and every other Officer so appointed shall have, and may exercise, such powers and authority as may be provided by or under this Act.' The superintendence and control vested over entire Police Force under section 8 in the Central Government is subject to the Act and the Rules. Section 11 dealing with minor punishments while expressly authorising the Commandant to impose the punishment, itself lays down that it shall be subject to the rules made under this Act. It also further declares that any other authority or Officer as may be prescribed, may also exercise these powers subject to the rules. Power to frame rules is vested in the Central Government under section 18. Section 18(2)(d) specifically empowers the Central Government to frame rules regulating the award of minor punishments under section 11, and also to provide appeals and revisions from such orders. In exercise of these powers C.R.P.F. Rules, 1955 have been framed. Rule 27 referred to above relate to punishment which expressly authorises delegation of the power of the Commandant to the Superior Officer under the orders of the Commandant. Section 11 itself envisages any Officer other than the Commandant is being vested with the power to initiate disciplinary proceedings and impose any of the minor punishments. Far from prohibiting delegation section 11 itself gives clear indication that the disciplinary power itself may be vested under the Rules in any other authority or Officer. Rule 27(b) authorises the Commandant to appoint any superior Officer. Rule 27, in my view, does not in any way contravene any provision of the Act and is not ultra vires as contended by the learned Counsel.

14. In the result, this second appeal succeeds. The judgment and decree of the lower Appellate Court is set aside and the plaintiff's suit dismissed, but in the circumstances, without costs. The amount, if any, deposited by the appellant, in pursuance of the interim order of this Court, is allowed to be withdrawn.


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