UNION OF INDIA Vs. DILEEP SINGH
LAWS(J&K)-1986-10-8
HIGH COURT OF JAMMU AND KASHMIR
Decided on October 31,1986

UNION OF INDIA Appellant
VERSUS
Dileep Singh Respondents

JUDGEMENT

PER SETHI J. - (1.) AGGRIEVED by the order of Commandant 60th Bn. CRPF dated July 31st 1982 by which the respondent No. 1 was dismissed from service with effect from July 31st, 1982(AN) his period of desertion from 4.12.1981 (AN) to 9.12.1981 (AN) was treated as leave without pay, period from 10.12.1981 to 20.12.1981 was treated as DIES -NON and period of suspension from 21.12.1981 to July 31st 1982 was treated as such for all purposes with a direction that he will not get anything more whatever he had already drawn, the writ petition No. 382 of 1982 was filed in this Court alleging therein that the order passed was contrary to the provisions of rule 27 of the Central Reserve Police Force Rules, 1955 and the constitutional guarantees as enshrined in Art, 311 of the Constitution of India as the same was made applicable to the State of J&K The petitioner had further alleged that the inquiry was conducted against him in an alleged atmosphere which was surcharged with bias, arbitrariness prejudice, ill -will and malice against him and respondent No. 2 in the writ petition submitted his report to the commandant who vide order impugned in the writ petition passed the orders as detailed herein above The petitioner had further alleged that he was not given the copy of the inquiry report nor was he asked to show cause against the proposed penalty which prevented him from making any representation against the final order. According to the writ petitioner, the respondent No. 1 made statement of articles of charges against him on 28.1.1982 and on the same day an inquiry officer was appointed to inquire into the aforesaid charges. The petitioner was never directed that the enquiry would commence atleast 48 hrs after the articles of charges were read over to him & a copy of the same given to him. According to the writ petitioner the inquiry could not have been commenced before 30.1.1982 (AN) but however the respondent No. 2 commenced the inquiry on 29.1.1982 and recorded the statements of two witnesses. The written request of the writ petitioner made to the respondent No. 1 to supply him the entire record of the inquiry was rejected and ultimately he was dismissed. The respondents in the reply affidavit submitted that the petitioner had stated wrong facts and tried to mis -lead the court. He had also not availed of the remedies of appeal and review provided under rules 28 and 29 of the Central Reserve Police Force Rules 1955. Accordingly to the respondents a preliminary inquiry was ordered against the writ petitioner with the object to assess the gravity of the offende for taking further action if needed. Asstt. Commandant S. Joginder Singh was detailed to conduct a preliminary inquiry but the petitioner objected to his detailment. On the objection of the writ petitioner inquiry officer was changed and another officer was appointed to whose appointment the writ petitioner never objected. The writ petitioner was charged with seven articles of charges and was given an opportunity to submit has representation to each articles of charges. After receipt of his reply Sh. I. Mirza Dy. S.P. was detailed as departmental inquiry Officer. The article of charges was served upon the writ petitioner on 22.1.1982 which was received by him on 25.1.1982 & he submitted his reply on 26.1.1982. The reply submitted by the respondent No. 1 in this appeal was duly considered...............and it was decided thereafter to deal with the case departmentally as the reply was not convincing. The respondent No. 2 in the writ petition was detailed as Inquiry Officer on 28.1.1982. Since the charge sheet had been served on 25.1.1992, the Inquiry was commenced on 29.1.1982. The chargesheet was served to writ petitioner four days earlier before the commencement of the inquiry. The respondent herein never represented against the Inquiry officer for allegedly adopting any bias attitude. The statement of prosecution witnesses were recorded in presence of writ petitioner and the copy of the same was given to him in -token of which his signatures were obtained which were available on the record of the department. After the completion of the departmental inquiry, the proceedings were handed over to the department for taking further necessary action. The proceedings were examined in detail by respondent No. 1 who finally came to the conclusion that the writ petitioner was not a fit person to be retained in the services and therefore he passed the order impugned in the writ petition. All other allegations of mala -fides, ill -will, malice or alleged harassment were denied, the respondent No. 1 also filled a rejoinder to explain end deny the averments made in the counter affidavit filled on behalf of the appellants and wanted the record to be produced in the court. After hearing the learned counsel for the parties the Honâ„¢ble Single Judge of this Court vide judgment now impugned in this appeal allowed the writ petition and quashed the order impugned therein. The Honâ„¢ble single Judge relying upon a number of authorities held that as the respondents in the writ petition had not complied with the provisions of Art. 311 of the constitution of India as made applicable to the State of J&K, the whole of the order was liable to be quashed,
(2.) WE have heard the learned Counsel for the parties and have perused the whole record.
(3.) MR . Qazi the learned Counsel appearing for the appellant has submitted that the Judgment of the Honâ„¢ble Single Judge is liable to be quashed because he has not noted that sub -rule 7 of rule 27 of the Central Reserve Police Force Rules, stood deleted vide notification R/IX -l79 -Adm Pers -II dated 14.1.1980, GSH -75 dated 26th June 1980. He has further submitted that the learned single Judge has wrongly placed reliance upon the provisions of article 311 (2) of the Constitution of India which according to him was not applicable after 42 amendment of the constitution of India with effect from 31.1.1977. According to him the respondent was bound by the conditions of service as incorporated under the Central Reserve Police Force Rules and the order impugned could not have been set aside because all the requisite conditions for holding an inquiry and inflicting punishment in terms of the aforesaid rules were fully complied with. It is further submitted that the Honâ„¢ble Single Judge was not justified in quashing the order impugned in the writ petition in its entirety by directing the re -instatement of respondent to his post which he was holding prior to the passing of the order impugned in the writ petition. It is true that rule 27 (7) of the CRPF Rules, 1955 was deleted vide Notification referred hereinabove dated 26.1.1980. The respondent was therefore not justified in claiming its benefit as was canvassed and pleased by him in the writ petition. However the service rules which are contrary to the constitutional guarantees, cannot deprive an employees of the constitutional guarantees. The requirement of reasonable opportunity as contemplated by Art. 311 (2) of the Constitution of India is a constitutional protection which is afforded to the servants with a corresponding obligation upon the State irrespective of whether the protection is claimed by the servant or not. If reasonable opportunity is not given to the servant, the order of dismissal is liable to be set aside. The argument of Mr. Qazi to the effect that after the deletion of sub -rule 7 of rule 27 of the C.R.P.F. Rules the respondent was not entitled to a second notice, is misconceived because it is now well settled that the service rules framed by the Govt. or other authority with regard to departmental inquiries and disciplinary actions against the servant would be ultra -vires to the extent to which they are inconsistent with art. 311 (2) of the Constitution of India (AIR 1956 Cal, 662) (AIR 1956 Mad 460), (AIR 1954 Cal. 566). It follows therefore that despite deletion of sub -rule 7 of rule 27 of the CRPF Rules, the respondent was entitled to the protections guaranteed to servants under Art. 311 of the Constitution of India sub -Art. (2) of Art. 311 of the constitution of India., before its amendment vide 42 amendment provided and where it is proposed after such inquiry to impose on him any such penalty untill he has been given a reasonable opportunity of making representation on the penalty proposed, but only on the basis of evidence adduced during the inquiry" After its amendment sub -Art. (2) of Art. 311 of the constitution of India now provides that no person shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. It is now evident that second notice as earlier contemplated by sub -Art. (2) of Art, 311 of the constitution of India is not required to be served upon the Government servant where the provisions of the aforesaid Article applied. The constitution of India, was made application to the State of J&K by the President vide the constitution (application to J&K) order, 1954 issued by him in exercise of the powers conferred by clause (1) of art. 370 of the constitution of India which came into force on the 14th day of May 1954 by which Article 311 as it existed then prior to its amendment by the 42 amendment was made applicable to the State of J&K It is not denied by Mr. Qazi that 42 amendment of the constitution of India has not been made applicable to the State of J&K by the) President in exercise of the powers conferred upon him under Art. 370 of the Constitution of India. In the absence of application of 42 Amendment, State of J&K, it has to be deemed that Art 311 of the Constitution of India applies to the State of J&K without amendment or omission of the words giving reasonable opportunity of making representation against the proposed penalty. The argument of the learned counsel for the appellant that as the respondent belongs to the Central Service, it shall be deemed that he would be governed by the Constitutional provisions of Art. 311 as were applicable in the rest of the country after its amendment by 42 constitutional amendment is misplaced. The argument is without any force because Art 311 does not envisage any such distinction. The said Art. has to be construed keeping in view the extent of its applicability to the territories of the country which clearly shows that the scope of the proposed punishment has been specifically excluded so for as the State of J&K is concerned. It may further be pointed out that the disciplinary action was initiated, inquiry held and the punishment awarded to the respondent within the territories of the State of J&K. No, part of the cause of action accrued to the respondent in any territory of the country where the provisions of Art 311 of the Constitution of India after its amendment were applicable. The rights and liabilities of the parties have to be ascertained, determined and adjudicated on the basis of the constitutional, legal and statutory guarantees conferred and bestowed at the relevant time having regard to the place where the cause of action has accrued. In this case cause of action accrued to the respondent to tile the petition within the territory of State of J&K where the amended provisions of Art. 311 (2) of the Constitution of India were never made applicable. It follows therefore that the respondent was entitled to the constitutional guarantees as envisaged by sub -Art, (2) of Art 311 before its amendment, which was not extended to the State of J&K. The appellants therefore were under an obligation to serve a show cause notice regarding the proposed punishment upon the respondent before passing the final order impugned in the writ petition.;


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