LAXMI SHANKAR PANDEY v. UNION OF INDIA AND ORS

Citation: [1991] 1 S.C.R. 894

Court: Supreme Court of India

Bench: S. RATNAVEL PANDIAN, K. JAYACHANDRA REDDY

Case summary

In this writ petition the petitioner has challenged the order passed by the Commandant, 11th Battalion C. 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.

Judgment text

The Judgment of the Court was delivered by ... .. K. JAYACHANDRA REDDY, J. In this writ petition the petitioner has challenged the order passed by the Commandant, 11th Battalion C. R. P. F. , the 4th respondent, dismissing the petitioner __. J, 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 ip)he Nagaland. He also claims to have been awarded some other such cash awards later. He was promoted. as Head~Constable later on. In total h~ 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 orders bY' the Circle Officer to the custody of the CRPF Vijaynagar Post ofwhich~ 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 petitioner 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 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 as 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 ·,F ' '· ,J"' 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 at Vijay Nagar )----post, the said No. 630110316 H. C. L. S.

Pandey ofE 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 Circile Officer of Vijay Nagar and sent Crash 898 SUPR. e,ME COl,JRT REPORTS. [19911 t s. c. R. M~. ~~ to Bn. Hqrs. when the lJTPs wete fovndi miss. in~ fliOJ. 11: ~lie UTPs cell at about 0500 hrs.. on5/4/83. · Artiqw-Ill. r That. during the aforesaid period while functioning as pqst/guard Commander of Vijay Nagar post in Distt. Tirap (A~P) the said No. 630110316 HC L. S. Pandey of E Coy 11 J}·n, CRI:'F commited an offence of gravemisconduct in his. c;apacity 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 had: dug the tumiyl and escaped through the tunnel. He did not handover the guard duty roster to next post Commander No. 630040452 HC. B.

Lakra thereby destroying the documents. to prevent its production as evidence. " Th~. statements of some of the witnesses were recorded. Thereafter the o deljnquent's statement also was recorded. The delinquent was again . i,iven an opportunity to put forward his plea. He pleaded not guilty apd the delinquent was asked to enter his defence by filing a written s;tatement and also produce a list of defence witnesses. He accordingly gave a list of defence witnesses and only one defence witnesses was examined. The Enquiry Officer submitted the report holding that the delinquent connived the escape of the two undertrial prison~rs. and then deliberately dug the tunnel to make it appears that the μn < 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 Constables who were on duty alongwith the petitioner when the two Burmese nationals escaped, the Enquiry Officer was justified in recommending disciplinary action. Urider these circumstances, we see no force in the submission that the enquiry was Br 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 - c' that the statements of PWs 1, 3, 4, 5, 6, 8 and 9 coupled with that of 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 a 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 SCR 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 and State of Andhra Pradesh & Ors. v. Chitra Venkata 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 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 observed is that what particular rule of natural justice should apply· to a given case depends to a "H , 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 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 y 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. Harish Uppal v.

Union ofIndia and Others, [1973] 3 SCC 319 the contention was that before confirming the sentence by the courtmaterial 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, a contention which cannot be accepted in the face ofthe 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 those principles in a given case and whether the same has resulted in ·defecting the cour~e of justice 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 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 performing his duties diligently.

He has put in 20 years 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. '