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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