Sanjay Kumar Singh vs Union Of India & Ors

SANJAY KUMAR SINGH ....Appellant (s)

VERSUS

UNION OF INDIA & ORS. ....Respondent(s)

WITH

CIVIL APPEAL NO. 4885 of 2005

WITH

CIVIL APPEAL NOS. 4886-4887 of 2005

JUDGMENT

Dr. MUKUNDAKAM SHARMA, J.

1. By this common judgment and order we propose to dispose of all

the four appeals which are interconnected as the issues and the

facts arising for our consideration are similar. They were heard

together and, therefore, a common judgment and order is also

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passed.

2. These appeals are filed by the appellants being aggrieved by the

judgment and order dated 10.12.2003 passed by the Gauhati

High Court whereby the Division Bench of the High Court

dismissed the writ appeals of the appellants and thereby

confirmed the judgment and order dated 16.8.02 passed by the

learned single Judge dismissing all the writ petitions filed by the

appellants holding that the appellants were given all reasonable

opportunity to defend themselves and, therefore, there was no

merit in those writ petitions.

3. The brief facts leading to the filing of the present appeals are that

on 13th March, 1999 the appellants and few others of the Central

Reserve Police Force [for short "CRPF"] while serving under 60

Battalion stationed at Haflong were detailed to go in two vehicles,

one as escort and other a water tanker for bringing water from

Retezole Jatinga water point. Sanjay Kumar Singh, the driver, Jai

Shankar Sharma and K.N. Paswan were in the water tanker and

they were provided with an escort vehicle which was driven by

Jawahar Lal and the other occupants in the said escort vehicle

were Head Constable Emmanuel Herenz; L. Nk. Harendra

Chowdhury; L. Nk. Jaswant Singh; Constable U.K.S. Gurung and

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Constable P.S. Madhvi. While the water tanker with the escort

party following was on its way to the said water point, the

militants ambushed the vehicles and started firing

indiscriminately as a result of which five CRPF personnel in the

escort vehicle were killed, namely, Driver Jawahar Lal; L. Nk.

Harendra Chowdhury; L. Nk. Jaswant Singh; Constable U.K.S.

Gurung and Constable P.S. Madhvi. The appellants were the four

who survived the ambush.

4. Head Constable Emmanuel Herenz is the only survivor of the

escort vehicle who jumped out of the escort vehicle when the

ambush took place leaving behind the wireless set given to him in

the truck itself. It has also come on record that when the militants

opened fire L. Nk. Jai Shankar Sharma sitting in the water tanker

thought that there was a tyre burst. In order to look at it he got

out of the water tanker when he came to realize that it is actually

an attack by the militants. In the meantime, the driver Sanjay

Kumar Singh stopped for a while and thereafter drove away the

tanker but L. Nk. Jai Shankar Sharma could not despite his best

efforts re-board the vehicle. It has also come in evidence that the

driver of the tanker took the vehicle to the Haringajab Police

Station, which was 15 kilometers away from the scene of

occurrence, and from there he had allegedly informed his Unit

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about the incident.

5. When search parties reached the spot they found Head Constable

Emmanuel Herenz hiding whereas L/Nk Jai Shankar Sharma who

had also got down and had run away from the place of occurrence

was found out from his hiding place which was under a gorge. On

the same day the Deputy Commandant, 60 Battalion lodged a

First Information Report with the officer-in-charge, Haflong Police

Station and on 16.03.1999 all the appellants were suspended

from service pending departmental proceedings against them. The

appellants were thereafter issued a chargesheet with the

allegations that while the appellants were deputed to function as

escort party to the water tanker, they committed disobedience of

orders, committed gross misconduct and displayed cowardice in

execution of their duties and in their capacity as members of

CRPF. The two articles of charges framed against them read as

follows: -

"Article-I:-

".... Out of the two vehicles (Regn. No. DIG 3390

water truck (3/5 ton) and Regn. No. DL-IG 7976

escort vehicle) deputed with escort party was

attacked by the militants by laying ambush.

The above personnel instead of properly

retaliating to the five of militants in said

ambush ran away as well as hiding themselves

in safe places by leaving the other escort party

personnel trapped in the ambush and as a

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result of which five personnel namely, L/Nk.

Harendra Chaudhary, L/Nk. Yaswant Singh,

Ct. P.S. Madhvi, Ct. U. K.S. Gurung and

Ct./Dvr. Jawahar Lal of the escort party

belonging to this Unit were killed in the ambush

on 13.3.1999 and their weapons and one

wireless set were taken away by the militants.

Their Act of running away from the place of

occurrence which leads to their cowardice act in

execution of duty in said incident of ambush

instead of retaliating to the fire of militants to

injure or kill them for safety of force personnel

and arms ammunition and equipment is

prejudicial, to good order and discipline of the

Force."

Article-II:-

"... .That during the aforesaid period and

functioning in aforesaid Unit............ They did

not follow the orders/instructions issued to

them as escort party Comdr. which were to be

followed by them in case of any attack etc., by

militants on escort party and vehicles of which

they were the Commander. They also failed to

keep proper command and control on their party

personnel effectively by timely retaliating the

fire of the militants during the ambush...... As

such........ disobeyed the orders issued to them

in their capacity of commander of the party

respectively and neglected in execution of their

duties which is prejudicial to be good order and

discipline of the Force.""

6. The departmental inquiry was thereafter initiated in terms of Rule

26 of the Central Reserve Police Force Rules, 1955 [for short "the

Rules"]. On completion of the inquiry a report was submitted by

the Inquiry Officer finding the appellants guilty of the charges

framed but so far as L. Nk. Jai Shankar Sharma is concerned, the

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Inquiry Officer although found one of the charges proved but

found the other charge only partially proved. After the submission

of the said report to the disciplinary authority, viz., the

Commandant and perusal thereof, the disciplinary authority

passed the order of dismissal from service by order dated

13/15.1.2000.

7. Being aggrieved by the aforesaid order of dismissal passed against

them the appellants preferred statutory appeals before the

appellate authority, viz., the Deputy Inspector General of Police,

CRPF. The said appeals were however dismissed, as against which

the writ petitions were filed in the Gauhati High Court which were

heard by the learned single Judge and he dismissed the writ

petitions.

8. The appellants still aggrieved filed writ appeals before the High

Court which were also dismissed in the aforesaid terms.

Consequently, the present appeals were preferred on which we

heard the learned counsel appearing for the parties.

9. Counsel appearing for the appellants submitted that there was

violation of the principles of natural justice in the departmental

proceedings as the appellants were not given the list of witnesses

and that some witnesses were examined who were not even cited

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as witnesses in the said list. It was also submitted that no Defence

Assistant was provided to the appellants for assisting them in the

departmental proceeding. It was further submitted that although

the Inquiry Officer found one of the charges only partially proved

as against L/Nk Jai Shankar Sharma, however, the disciplinary

authority without showing any reason for disagreement held the

said charge as also wholly proved. It was also submitted that the

charges were not read over to the appellants in terms of the

mandatory Rule being Rule 27(c). One of the submissions on

behalf of Sanjay Kumar Singh was that he was not granted any

arms and ammunition and, therefore, the finding that he had

violated the standing orders is wrong and illegal.

10.Counsel appearing for the respondents however took us through

the entire records to support his submission that there was no

violation of the principles of natural justice at all. He also

submitted that no prejudice is caused to the appellants in the

entire departmental proceedings in which reasonable opportunity

was granted to the appellants at every stage and, therefore, the

allegations are without any basis. He drew our attention

extensively to the inquiry report submitted by the Inquiry Officer

to support his contention that the appellants were provided with

all opportunities to defend themselves. He also submitted that the

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punishments given to the appellants were commensurate with the

offences alleged against them.

11.In order to appreciate the contentions put forth by the counsel

appearing for the parties we have perused the records. A perusal

of inquiry report would indicate that Inquiry Officer in his report

apart from referring to the other materials on record also referred

to the statements of the appellants. It has come on record that

Sanjay Kumar Singh was driving the water tanker when he heard

a sound.

12.L/Nk Jai Shankar Sharma thought that there was a tyre burst

and, therefore, he got down but immediately after getting down he

came to realize that there is an attack by the militants. Constable

K.N. Paswan told Sanjay Kumar Singh that there was an ambush

and when Sanjay Kumar Singh found that the escort vehicle was

not coming, he continued to drive the water tanker for 15 Kms

without even waiting for L/Nk Jai Shankar Sharma to reboard the

vehicle and went to Haringajab Police Station from where he

allegedly informed his Unit.

13. The statement of L/Nk Jai Shankar Sharma is to the effect that

after getting down from the vehicle he retaliated the fire which was

actually directionless and he ran after his vehicle but could not

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catch it as the vehicle moved forward. Therefore, he hid himself in

a gorge and came out of his hiding place after 1-11/ hour when 2

Shri S.S. Gohar came with a party from the battalion headquarter.

L/Nk Jai Shankar Sharma also stated in his statement that

although he was provided with 40 rounds but he could fire only

14 rounds during the said attack.

14.Head Constable Emmanuel Herenz, one of the appellants, also

gave a statement that at the time of the attack; he jumped and

took shelter in a banana grove. He admitted that he left his

wireless set in the vehicle and that it was not in the vehicle when

he came back.

15.Our attention was also drawn to the handbook of the CRPF which

makes it mandatory for each of the constables to carry arms

whenever they go out in a militancy infested area. Sanjay Kumar

Singh although was a driver, he was also a constable and,

therefore, he was bound by the aforesaid instructions issued. It is

alleged that he did not follow the said instructions and, therefore,

there was dereliction of duty and also misconduct on his part.

16.It appears that the driver of the escort vehicle, who was also

killed, also did not carry any weapon with him and nor did Sanjay

Kumar Singh, although, he was required to carry weapon with

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him. His only defence is that although others were provided with

arms and ammunition in the Unit itself, he was not given any

arms and ammunition. A CRPF personnel is expected to be

properly armed in a militancy infested area so as to enable him to

face all eventuality and the said arms are required to be collected

while going to any place, according to command.

17.Sanjay Kumar Singh would have been justified in taking up a

plea of the aforesaid nature if despite his asking for arms and

ammunition was not provided any such arms and ammunition

from the Unit. However, Sanjay Kumar Singh has not been able

to prove that he had gone to the Unit where arms and ammunition

are kept for taking it with him and also that he had in fact asked

for it. There is nothing on record to show that Sanjay Kumar

Singh had exactly complied and followed the prescribed procedure

and requested for giving him the arms as he was going out of the

Unit. The aforesaid defence which is sought to be taken appears to

be baseless.

18. So far the issue with regard to violation of the principles of natural

justice in conducting the departmental inquiry is concerned, the

aforesaid submission is made on the ground that the chargesheet

was not read out and issued in accordance with the provisions of

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Rule 27(c) of the Rules. On going through the records we find that

the chargesheet was issued to the appellants on 11th August, 1999

whereas the trial started only on 20.09.1999. Therefore, it was

issued much before seven days as required to be done prior to

holding of the trial.

19. So far the question of reading out the chargesheet is concerned, it

appears that the chargesheet was read out when the trial

commenced on 20th September, 1999 and the first witness HC

Bahadur Singh was examined on 21.09.1999 whereas, the second

witness was examined on 25.09.1999 and the next witness was

examined on 29.9.1999. As the chargesheet was sent to the

appellants on 11th August, 1999, therefore, they were fully aware

of the contents of the chargesheet. So far as the issue with regard

to the reading out of the chargesheet is concerned, the same could

be read out only when the trial begins in order to find out whether

the appellants plead guilty to the charges or not and immediately

thereafter the trial commences. We do not see any prejudice

caused to the appellants because one of the witnesses was

examined in the trial before expiry of forty eight hours,

particularly in view of the fact that the appellants were made

aware of the contents of the charges much prior.

Page 11 of 15 20.In our considered opinion, no prejudice is caused to the

appellants for not giving 48 hours after reading out the charges to

them. Only one witness was examined within that 48 hours period

whereas the next two witnesses were examined beyond the 48

hours period. The appellants have not been able to show any

prejudice caused to them due to examining of Bahadur Singh on

21.09.1999.

21.It was also submitted that no Defence Assistant was provided to

the appellants as required under the provisions of the Rules. It is

true that a Defence Assistant is to be provided by the authority to

assist the delinquent officer in conducting the inquiry but in the

present case the records disclose that the appellants were asked

as to whether they would require any Defence Assistant for their

aid and assistance. Each one of them has specifically stated in the

inquiry proceedings itself that they do not need any Defence

Assistant. They have in fact cross-examined the witnesses

themselves, for which opportunity was granted to them.

22.So far as the contention of the Counsel appearing for the

appellants that some of the witnesses whose names were not

mentioned in the list of witnesses were examined is concerned, we

find that a list of witnesses was also supplied to the appellants

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along with the chargesheet issued to them. Therefore, the

appellants were fully aware as to who were the persons who are

going to be examined in the proceeding. There were of course two

witnesses who were not specifically named in the list of witnesses

but when we refer to the list of witnesses the same makes it clear

and prove that in that list it has categorically been mentioned that

there could be any other witness, other than those who are cited

specifically in the list.

23. We may here refer to the decision of this Court in Managing

Director, ECIL, Hyderabad and Ors. v. B. Karunakar & Ors.

reported in (1993) 4 SCC 727 wherein this Court has held that

unless and until it is shown that prejudice has been caused it

cannot be said that the inquiry proceeding is vitiated or that there

is any violation of principles of natural justice. To the same effect

is the decision of this Court in the case of Union of India & Ors.

v. Alok Kumar reported in (2010) 5 SCC 349.

24.So far as the departmental proceedings are concerned it is for the

departmental authorities to conduct an inquiry in accordance with

the prescribed Rules. The role of the Court in the matter of

departmental proceedings is very limited and the Court cannot

substitute its own views or findings by replacing the findings

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arrived at by the authority on detailed appreciation of the evidence

on record.

25.In the present case two Benches of the High Court after looking

into the records have found that there is no violation of the

principles of natural justice and that the charges have been

established against all the appellants and that the punishment

awarded is not disproportionate to the offences alleged. After the

said findings have been recorded by the learned Single Judge and

the Division Bench, there is hardly any scope for this Court to

substitute its findings and come to a different conclusion, by re-

appreciating the evidence. The findings recorded by the Benches

of the High Court are concurrent findings and the same cannot be

interfered with lightly.

26.In our considered opinion, to re-appreciate the evidence and to

come to a different finding would be beyond the scope of Article

136 of the Constitution of India. Therefore, we hold that the

judgment and order passed by the High Court suffers from no

infirmity.

27.Accordingly, the appeals have no merit and are dismissed but

without any order as to costs.

Page 14 of 15 ............................................J

[Dr. Mukundakam Sharma]

............................................J

[Anil R. Dave]

New Delhi

September 6, 2011

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