Mobile View
Main Search Advanced Search Disclaimer
Cites 7 docs - [View All]
Article 311(2) in The Constitution Of India 1949
Article 311 in The Constitution Of India 1949
Article 22(5) in The Constitution Of India 1949
Article 21 in The Constitution Of India 1949
Kubic Dariusz vs Union Of India & Ors on 18 January, 1990
Citedby 1 docs
P.A. Panneerselvam vs State Bank Of India on 29 November, 2011

User Queries
View the actual judgment from court
Madras High Court
S.Dhanasekaran vs Commandant 42 Bn on 4 January, 2011
       

  

  

 
 
 IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED:04.01.2011

CORAM:

THE HON'BLE MR.JUSTICE P.JYOTHIMANI

WRIT PETITION NO.11983 of 2003
..

S.Dhanasekaran						.. Petitioner

vs.

1.Commandant 42 Bn.,
CRPF, Narasinghar
Agartala.

2.The Deputy Inspector General
Central Reserve Police Force
Avadi, Chennai 600 065.			.. Respondents

	Writ Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of   Certiorari as stated therein.

	For petitioner 	: Mr.M.Md.Ibrahim Ali

	For respondents	: Mr.M.Gopikrishnan, ACGSC
..

						ORDER		

The writ petition is directed against the order of the second respondent, the Deputy Inspector General, Central Reserve Police Force, Chennai dated 19.03.2003, confirming the order of the first respondent dated 24.09.202, holding that the charge against the petitioner has been proved by confirming the order of dismissal, and rejecting the appeal filed by the petitioner.

2. The petitioner jointed the Central Reserve Police Force as a Constable in 1987 and he was posted after completion of the training to 42 Bn. When he was serving in Delhi, he got a telegram on 06.09.2001, to the effect that his wife was serious and had to undergo surgery immediately. It is stated that, enclosing the said telegram, the petitioner applied for leave with 42 Bn. Commandant, Delhi and there was no reply from the concerned officer till 23.09.2001.

a) In the meantime, there were two more telegrams regarding his wifes health condition, and when the petitioner approached the CHM for leave, he was informed that his leave was not sanctioned. It was thereafter, casual leave was sanctioned to the petitioner between 24.09.2001 and 14.10.2001 and he left Delhi on 24.09.2001 and reached his native place on 27.09.2001.

b) It is stated that on expiry of the leave period on 14.10.2001, the petitioner sent a telegram for extension of leave to Delhi on the ground that he was not well. It was on 12.12.2001, the petitioner reported for duty at Delhi, however, the 58 days for which the leave application was sent was treated as leave without pay and punishment for 15 days line guard was also awarded.

c) The articles of charges were issued to the petitioner on 31.01.2002, containing two charges, viz., the petitioner has committed misconduct under Section 11(1) of CRPF Act, and on 23.09.2001, he misbehaved and used filthy language to his CHM and Coy. Commander and created nuisance in the campus during night hours and disobeyed the orders of his superiors; and while functioning as Constable on 23.09.2001 he committed an act of misbehaviour and as a Member of the Armed Force individual he consumed liquor and tried to damage the Government property/stores, pulled out the electric wirings, resulting in total darkness in the campus and assaulted the Coy. Dhobi, which is prejudicial to the good order and discipline of the Force.

d) Thereafter, the petitioner was sent to Tirupura with effect from 31.05.2002 and afterwards to G.Coy. moved to Shivpuri in June,2002 and posted at Shivpuri upto September,2002. In the meantime, the petitioner was sent to Jammu and Kashmir for election duty. There was an enquiry conducted and according to the petitioner, the enquiry was not conducted properly and no opportunity was given to him to defend his case and the entire enquiry was conducted in Hindi and all the statements were recorded in Hindi, which language the petitioner has not known and the contents of the said statements were not explained in the language known to the petitioner.

e) Therefore, the petitioner submitted a representation dated 20.09.2002 to the Enquiry Officer with the help of his colleagues and without considering the same, the Commandant 42 Bn. Agarthala, dismissed the petitioner from service on 24.09.2002. It was against the said order of dismissal, the petitioner preferred an appeal before the second respondent, the Deputy Inspector General, which was rejected against which the present writ petition is filed by the petitioner on the ground that the incident stated to have happened on 23.09.2001 is a concocted story; that the charges are vague and there is nothing about nuisance, however, the enquiry officer has recorded the statement of witness deposed in the preliminary enquiry and submitted a report against the petitioner and there is no evidence recorded during the enquiry proceedings and therefore, the enquiry has not been conducted in the manner known to law; that no procedure has been followed to find out as to whether the petitioner was under the influence of liquor by sending him to the medical check-up; that the proceedings have been conducted in the language not known to the petitioner and therefore, there is a violation of principles of natural justice; and that because of the receipt of the telegraphic information about the seriousness of his wife, the petitioner had to urgently leave the place and in spite of it the leave was not granted and therefore, awarding of punishment in such circumstances is excessive.

3. In the counter affidavit filed by the respondents, while denying the various allegations made by the petitioner, it is stated that the petitioner was found in an intoxicated condition on 23.09.201 and the Head Constable H.S.Khan was directed to take the petitioner to the Unit Hospital for conducting medical examination to find out as to whether the petitioner has consumed liquor and the petitioner has refused to go to the hospital and the petitioner misbehaved with the Officer Commandant and it was in those circumstances, the Commandant was to order preliminary enquiry and Shri Om Pal Singh, Deputy Commandant was directed to conduct the preliminary enquiry, wherein it was found that the petitioner guilty and the Enquiry Officer has recommended the initiation of strict disciplinary action and thereafter, departmental enquiry was ordered and a charge sheet was issued on 30.01.2002, giving 10 days time to submit representation if any or for personal audience whether required.

a) Shri M.S.Dhillon, Deputy Commandant was appointed as Enquiry Officer and he submitted a report on 24.04.2002, copy of which was supplied to the petitioner on 29.05.2002, giving 15 days time to submit his representation if any. In the mean time, the petitioner was posted to a new place and sent to Shivpuri. It was in those circumstances, the first respondent considered the Enquiry Officers report and came to a conclusion that the charges against the petitioner have been proved beyond any shadow of doubt. However, a show cause notice was issued to the petitioner, as to why he should not be removed from service.

b) The petitioner submitted his reply without any new facts, and therefore, the petitioner came to be dismissed from service on 24.09.2002. The second respondent, the appellate authority has also rejected the appeal filed by the petitioner, since there was no merit. It is stated that the petitioner has also filed a revision before the Inspector General of Police, Southern Sector, Hyderabad, which is pending and before arriving at a decision therein, the petitioner has filed the present writ petition, which is not maintainable.

c) It is stated that on 23.09.2001, under the influence of liquor, the petitioner misbehaved and threw away the bicycle, which was a Government property apart from throwing the pressed clothes kept in the Dhobis room and quarrelled with him. On 24.09.2001, a complaint was received about his misbehaviour and in the preliminary enquiry, the fact as to the said misbehaviour was proved and the petitioner refused to accept the punishment awarded to him and in the meantime he went on leave on 24.09.2001, and since in the preliminary enquiry the petitioner had admitted that he consumed liquor on 23.09.201, the charges were framed.

d) It is stated that the petitioner has also not proved the reason for his over stay. It is stated that the enquiry was conducted by the Enquiry Officer Shri M.S.Dhillon between 18.02.2002 and 24.02.202. It is also stated that at the initial stage of the enquiry, i.e., on 22.02.2002, while recording the first statement, the petitioner was asked as to whether the proceedings may be recorded in Hindi and it is based on that, the proceedings were recorded in Hindi and the witnesses were examined in the presence of the petitioner and ample opportunity was given to him and the Enquiry Officers report was also submitted.

e) The petitioner failed to make his representation within the time stipulated in the enquiry officers report, and in the meantime he was transferred. His absence for 58 days was without prior permission and his conduct is unbecoming of the disciplinary force and that the Enquiry Officer asked the petitioner about his desire as to the language in which the proceedings should be continued, and he opted for Hindi and thereafter, the proceedings were conducted in Hindi and in the course of disciplinary proceedings he was present and he also submitted his representation in Hindi and therefore, it is not correct to state that he was not aware of the language and the principles of natural justice have not been complied with.

f) It is also stated that the petitioner had never resisted for conducting the proceedings in Hindi. It is further stated that even on 24.09.2001, when he was produced before the Coy.Commandant in his Orderly Room, he was arrogant and refused to accept the punishment and that resulted in initiation of disciplinary proceedings and therefore, according to the respondents in the counter affidavit, the commissioning of misconduct has been proved beyond reasonable doubt and therefore, it is not open to the petitioner to raise the issue now about the correctness of the proceedings.

4. Mr.Ibrahim Ali, learned counsel appearing for the petitioner would submit that even though it is true that the representation submitted by the petitioner is found written in Hindi, it was written by some other person and the petitioner did not sign in Hindi and he signed in English and he was not aware of the contents of the representation and with the help of friends and colleagues only he submitted the representation and that does not mean that the petitioner is aware of the language and therefore, according to the learned counsel, the conducting of the proceedings in a language which is not known to the petitioner is in violation of the principles of natural justice. It is his submission that if really the petitioner was in the influence of liquor, the proper procedure would be that the petitioner must have been sent for medical examination and it is also his submission that the punishment considering the circumstances is disproportionate.

5. On the other hand, it is the submission of Mr.Gopi Krishnan, learned counsel appearing for the respondents that the petitioner himself has given his reply in Hindi as it is seen from the records and therefore, he cannot complain about the conducting of the proceedings in Hindi at all. As far as the allegation that the punishment is disproportionate is concerned, he has referred to Rule 27 of the CRPF Rules, to substantiate his contention that the misconduct is serious enough and therefore, there cannot be any complaint that the punishment is disproportionate. It is also his submission that during the preliminary enquiry, the petitioner has admitted that he was under the influence of liquor. The learned counsel has also produced the files relating to the disciplinary proceedings.

6. I have heard the learned counsel for the petitioner as well as the respondents and gone through file submitted by the learned counsel.

7. On the reference to the file at Page 57, which relates to the departmental enquiry, it is seen that the explanation stated to have been given by the petitioner is found written wholly in Hindi and admittedly, it is not in the handwriting of the petitioner. It is also seen that the petitioner has signed beneath the said representation in English. The English translation of the said representation of the petitioner, as given by the learned counsel for the petitioner is as follows:

"To Hon'ble Adjutant 42 Bn CRPF Andheria Mod, New Delhi 30.

Subject:- REG DEFENCE DEPARTMENTAL ENQUIRY Sir, Humble submission is that No.871162348 CT/GD S Dhanasekharan is serving in your A Company, have a important certificate in Defence. I had applied for leave vide my application dated 6.9.2001 due to my wife's treatment. I am in receipt of telegram and letter from my home, hence I came to know that my wife is 'seriously ill'. However I was not granted leave. Hence I was always in tension and my mental balance was also not good. I was not granted leave till 23.9.2001. In the meanwhile, I requested for leave several times, but leave was not granted. I have certificate regarding treatment of my wife and telegram in my defence.

2. Hence sir, request that I will not repeat such mistake in future and I may be given chance to service.

Yours Obediently, Dated:10.4.2002 Sd/-xxxxx No.871162348CT/GD S.Dhanasekharan A/42 Bn CRPF, Andheria Mod, New Delhi."

8. The contents of the said letter by way of representation dated 10.04.2002, show that the petitioner would not repeat his mistake in future, but he has stated that because of the information received about the seriousness of his wife, he was in tension and his mental balance was not in a stable condition. The contents of the letter show that the petitioner has himself admitted that he was intoxicated. But simply because the petitioner has signed the said representation, it does not mean that the petitioner is well-versed in Hindi. It is also not the case of the respondents that the petitioner is well-versed in Hindi language. In such a circumstance, the basic question to be decided in this case is as to whether the conduct of the first respondent in not conducting the disciplinary proceedings in the language known to the petitioner that is, either English or any other language or in not translating the disciplinary proceedings conducted in Hindi, in the language known to the petitioner, is proper or not?

9. At this juncture, it is relevant to note that it has been held that the right conferred under Article 311(2) of the Constitution of India, which is as follows:

" Article 311.Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State.-

(1)xxx (2)No such person as aforesaid shall be dismissed or removed or reduced in rank except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges.

Provided that where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed:

Provided further that this clause shall not apply-

(a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or

(b) where the authority empowered to dismiss or remove a person or reduce him in rank is satisfied that for some reason, to be recorded by the authority in writing, it is not reasonably practicable to hold such inquiry; or

(c) where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State it is not expedient to hold such inquiry."

is equivalent to the right conferred under Article 22(5) of the Constitution of India, which is as follows:

" Article 22.Protction against arrest and detention in certain cases.-

(1)to (4) XXXX (5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order."

Therefore, the question of affording reasonable opportunity in a disciplinary proceedings includes that the proceedings should be conducted in a language known to the delinquent. The order of dismissal is a deprivation of right of a person to live as guaranteed under Article 21 of the Constitution of India, since it is a concept connected with liberty. When dismissal order is passed, which deprives the right of livelihood of a delinquent, it is, but necessary that the disciplinary proceedings must be conducted not only in the manner known to law, but also in the language known to the delinquent. Conducting of disciplinary proceedings in the language known to the delinquent forms part of the principles of natural justice, viz., the principle of affording proper opportunity in disciplinary proceedings.

10. By referring to the judgment of the Supreme Court in Kubic Darusz vs. Union of India (1990 (1) SCC 568), wherein it was held that in the absence of the detaining authority in serving the grounds of detention in the language known to the detenu, who was a gujarathi, but giving the grounds of detention in English is not within the term 'communicate', K.Chandru,J. under similar circumstances, while dealing with the disciplinary proceedings in the Central Reserve Police Force, held as follows:

" 23. In this context, it is clear that even though the ground that the petitioner was unfamiliar of Hindi language was raised in the appeal grounds, neither in the said assertion was denied by the respondents. Hence, it can be safely concluded that the petitioner was not familiar with Hindi."

Ultimately, the learned Judge has allowed the writ petition by setting aside the disciplinary proceedings, in the following words:

" 25. Under the above circumstances, the enquiry conducted by the respondents will have to be necessarily set aside and accordingly, set aside. The writ petition will stand allowed. The impugned order of dismissal dated 18.12.1997 as confirmed by order dated 27.3.1998 will stand set aside. The petitioner is entitled to have all the consequential benefits. If the respondents want to conduct an enquiry afresh, that will have to be done only in the language known to the petitioner and he must be given the assistance of an agent as provided in the Rules to defend himself in the enquiry. No costs."

11. In the factual matrix, by reference to the files submitted by the respondents, it is clear that there is no explanation forthcoming from the respondents to show as to whether the proceedings were translated to the petitioner in the language known to him, or not. That apart, even in respect of the charge relating to the consumption of liquor by the petitioner, there is no record to show that the respondents have taken pertinent efforts for the purpose of proving that the petitioner was intoxicated. It is also seen that the decision has been predominantly arrived at based on the preliminary enquiry and not on the basis of the proceedings conducted during the disciplinary proceedings.

12. Even in respect of the enquiry officers report, which is stated to have been served on the petitioner, there was no occasion for the petitioner to submit a representation for the reason that in the meantime he came to be transferred and posted at Shivpuri as admitted by the parties. In such circumstances, I am of the considered view that on the factual matrix of the case, especially relating to the language in which the disciplinary proceedings was conducted, there is no proper compliance of the principles of natural justice and therefore, the impugned orders are liable to be set aside, however, with liberty to the first respondent to conduct fresh enquiry in the language known to the petitioner, if so advised, failing which the petitioner will be entitled for all the benefits under the law.

Accordingly, the impugned orders are set aside and the writ petition stands allowed, however, with liberty to the first respondent to conduct fresh enquiry in conformity with the principles of natural justice in the language known to the petitioner, if so advised. No costs.

Kh To

1.Commandant 42 Bn., CRPF, Narasinghar Agartala.

2.The Deputy Inspector General Central Reserve Police Force Avadi, Chennai 600 065