- (1.) In this writ petition the petitioner has challenged the order passed by the Commandant, 11 th Battalion C.R. P.F., the 4th respondent, dismissing the petitioner 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 in the Nagaland. He also claims to have been awarded some other such cash awards later. He was promoted as Head Constable later on. In total he has put in 20 years of service. While working as Post Commander of Vijaynagar Post Tirap District, two under-trial 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 of which 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 under-trial prisoners and deliberately dug a tunnel to make it a pear that the under-trial 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 Vijaynagar post in Distt. Tirap (ACP) from 11-3-83 to 18-6-83 and while functioning as Guard Commander of the Guard post Vijaynagar 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. 1 1 (1) of CRPF Act, 1949 in that he allowed No. 800210049 Ct Md Shamsher Alam to leave the sentry 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 Vijaynagar post, the said No. 630110316 HC. L-.S. Pandey of E Coy 1 1 Bn, CRPF committed an offence of neglect of duty in his capacity as a member of the force u/ S. 1 1 (1) of CRPF Act, 1949 in that he did not take immediate action to report the matter to the Circle Officer of Vijaynagar and sent Crash Message to Bn Hqrs when the UTPs were found missing from the UTPs cell at about 0500 hrs. on 5-4-83. Article-III That during the aforesaid period while functioning as post/guard Commander of Vijaynagar post in Distt. Tirap (ACP) the said No. 630110316 HC. L.S. Pandey 1 of E Coy 11 Bn, CRPF committed an offence of grave misconduct in his capacity 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 tunnel 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." The statements of some of the witnesses were recorded. Thereafter the delinquent's statement also was recorded. The delinquent was again given an opportunity to put forward his plea. He pleaded not guilty and the delinquent was asked to enter his defence by filing a written statement and also produce a list of defence witnesses. He accordingly gave a list of defence witnesses and only one defence -Witness was examined. The Enquiry Officer submitted the report holding that the delinquent connived the escape of the two undertrial prisoners and then deliberately dug the tunnel to make it appear that the under-trial prisoners dug the same and escaped and he accordingly recommended that the disciplinary proceedings should be initiated against the petitioner as well as against another Constable Mohd. Shamsher Alam. On the basis of this report a dismissal order was passed against the petitioner on 30th June, 1984. The petitioner preferred an appeal under Section 28 of the CRPF Rules to the Deputy Inspector General of Police, CRPF, the appellate authority, but the same was dismissed on 23rd October, 1984. A further revision filed by him to the Inspector General of Police, CRPF was also dismissed on 2-5-86. During all these enquiries the plea of the petitioner had been that on 29-3-83, the two under-trial prisoners were entrusted late in the evening and he was not given full strength of 40 Constables and that there were only 11 Constables and it was dark and raining heavily and that neither torches nor candle sticks nor kerosene oil were available. There were also no locks and stationery and there were no proper arrangements of the building where the two under-trial prisoners could be kept in custody and he also sent a message that more persons should be deputed but no steps were taken. With regard to the enquiry, his grievance has been that suddenly area of enquiry was shifted from Khonsa to Longding 50 kms. away and that all the defence witnesses cited by 'him were not examined. He has also stated that the first enquiry was dropped and he was exonerated and on the whole the enquiry was not fair and not according to the Rules and that the entire proceedings were mala fide inasmuch as the first enquiry officer dropped the enquiry and exonerated the petitioner from all charges. In this writ petition also the same submissions are put forward.
(2.) In the counter-affidavit filed on behalf of the respondents, it is stated that full opportunity was given to the petitioner during the departmental enquiry and that venue of enquiry was shifted from Khonsa to Longding only to avoid unnecessary delay in the enquiry and that the petitioner never objected to the shifting of the place of enquiry. It is also submitted that'the petitioner was given full opportunity to produce the defence witnesses and notices were also served on them but they did not appear. Regarding the first enquiry it is stated that the same was not completed by the Enquiry Officer. Therefore a fresh enquiry was ordered and that it cannot be said that by cancellation of the first enquiry the petitioner was exonerated. It is further submitted that the petitioner was given full opportunity and that he duly participated in the enquiry and no prejudice whatsoever was caused.
(3.) On a careful examination of the affidavit and the counter-affidavit and the allegations as well as the denials, we are of the opinion that there are a number of disputed questions of fact. The learned counsel for the petitioner, however, submitted that under Article 32 even disputed questions of fact can be gone into by this Court. He relied on a judgment of this Court in Kavalappara Kottarathil Kochunni Moopil Nayar v. State of Madras, (1959) Supp 2 SCR 316 : (AIR 1959 SC 725) wherein it is observed that (at P. 734 of AIR): "Clause (2) of Art. 32 confers power on this Court to issue directions or orders or writs of various kinds referred to therein. This Court may say that any particular writ asked for is or is not appropriate or it may say that the petitioner has not established any fundamental right or any breach thereof and accordingly dismiss the petition. In both cases this Court decides the petition on merits. But we do not countenance the proposition that, on an application under Art. 32, this Court may decline to entertain the same on the simple ground that it involves the determination of disputed questions of fact or on any other ground. If we were to accede to the aforesaid contention of learned counsel, we would be failing in our duty as the custodian and protector of the fundamental rights. We are not unmindful of the fact that the view that this Court is bound to entertain a petition under Art. 32 and to decide the same on merits may encourage litigants to file many petitions under Art. 32 instead of proceeding by way of a suit. But that consideration cannot, by itself, be a cogent reason for a denying the fundamental right of a person to approach this Court for the enforcement of his fundamental right which may, prima facie, appear to have been infringed. Further, questions of fact can and very often are dealt with on affidavits." In support of the same proposition, the learned counsel for the petitioner also relied on the decision of this Court in Smt. Ujjam Bai v. State of Uttar Pradesh, (1963) 1 SCR 778: (AIR 1962 SC 1621).;