Page 1 of 10 LPASW No. 193/2018

HIGH COURT OF JAMMU & KASHMIR AND LADAKH

AT SRINAGAR

LPASW No. 193/2018

Reserved on: 09.08. 2023

Pronounced on: 18.08. 2023

Uttam Singh.

….. Petitioner/Appellant(s)

Through: Mr. G.A. Lone, Advocate with,

Mr. Mujeeb Andrabi, Advocate

V/s

Union of India & Ors.

…..Respondent(s)

Through: Mr. T.M. Shamsi, DSGI with,

Ms. Anjum, Advocate

CORAM:

HON’BLE MR. JUSTICE SANJEEV KUMAR, JUDGE.

HON’BLE MR. JUSTICE RAJESH SEKHRI, JUDGE.

JUDGMENT

Sanjeev Kumar-J:-

1. This intra-court appeal by the appellant is directed against the

judgment dated 17

th

October, 2018, passed by the learned Single Judge

[“the writ Court”] in SWP No. 346/2008 titled “Uttam Singh Vs. Union of

India and Others”, whereby, the writ Court has dismissed the writ petition

of the petitioner challenging his order of removal from service etc,.

2. Briefly, put the facts, as are gatherable from the pleadings of the

parties, are that the appellant came to be enrolled in Central Reserve Police

Force [“CRPF”] in the year 1992 after due process of selection. While the

appellant was posted in 61 Battalion CRPF at Srigufwara Pahalgam, the

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appellant was accused of an attempt to kill constable Shri. Rugbeer Singh

by firing at him on 1

st

August, 1998. An FIR bearing No. 92 was also

registered against the appellant under Section 307 RPC in the Police

Station Pahalgam. The investigation in the FIR culminated in the

presentation of charge sheet before the Court of learned Session Judge,

Anantnag. After a proper trial the appellant was acquitted by learned

Sessions Judge, Anantnag, vide its judgment of acquittal dated 31

st

August,

1999.

3. Despite the acquittal of the appellant in a criminal case,

respondent No. 5 instituted a departmental inquiry against the appellant on

the self-same charges and on the basis of same evidence as was produced

by the prosecution before the Court of learned Sessions Judge, Anantnag.

The appellant was found guilty of the charge in the departmental inquiry

and vide order dated 14

th

October, 1998, he was removed from service. The

appellant availed the statutory remedies of appeal before respondent No. 4

and revision before respondent No. 3. The Appellate Authority, as well as

the Revisional Authority, upheld the order of his removal from service.

4. Aggrieved, the appellant filed SWP No. 663/2000. The writ

petition was contested by the respondents and the same was ultimately

disposed of by a Single Bench of this Court vide its order dated 29

th

August, 2006. The orders impugned in the writ petition were quashed,

however, liberty was given to the respondents to conduct an inquiry into

the matter against the petitioner if they choose so strictly in accordance

with the mandate of law and the Rules applicable. The learned Single

Bench of this Court was persuaded to allow the writ petition and quash the

impugned orders by the fact that there was no proper consideration of

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appeal and revision filed by the appellant as per Rule 27(ccc) of CRPF

Rules 1955 [“the Rules”].

5. Be that as it is, the appellant was reinstated and reported back for

duty on 2

nd

March, 2007. He was suspended pending a fresh inquiry into

his conduct. In the first instance, the appellant was served with a show

cause notice by the respondent No. 3, as to why action would not be taken

against him on the basis of Articles of Charges attached with the notice.

The appellant filed reply to the show cause notice and denied the charges

levelled against him. He also challenged the authority of the respondents to

initiate fresh inquiry. The respondents did not accept the reply filed by the

appellant to the show cause notice and in terms of the order dated 27

th

August, 2007, passed by the respondent No. 4, de novo Departmental

Inquiry against the appellant under Rule 27 of the Rules on the charges

framed in May 2007 was ordered. One Shri. P. Kalyani Assistant

Commandant of the 61 Battalion was appointed as Inquiry Officer. He

conducted the inquiry and returned its finding about the guilt of the

appellant. Based on the finding returned by the Inquiry Officer, the

Disciplinary Authority (respondent No. 5) vide order No. 02/07-6/2 P8

dated 12

th

February, 2008, imposed the penalty of “removal of service” of

appellant. The period of absence between 15

th

October, 1998 to 2

nd

March,

2007, was also treated as „dies non‟, and the salary except the suspension

allowance with effect from 3

rd

March 2007 to 12

th

February, 2008, was also

denied.

6. The appellant challenged order of de novo inquiry, inquiry

proceedings, report of inquiry, and the order of his removal from service

passed by the respondents in SWP No. 346/2008 on multiple grounds.

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Apart from the ground of non-observance of principles of natural justice

and non-compliance with the Rules prescribed for holding inquiries, the

appellant took a specific ground that the respondents, in view of the

categoric provisions of Rule 27(ccc) of the Rules, could not have ordered

Departmental Inquiry against the petitioner on the self-same charge or on a

similar charge based upon the evidence cited in the criminal challan which

had ended in his acquittal otherwise than by seeking prior sanction of

Inspector General of CRPF. It was specifically contended before the writ

Court that the Inspector General of CRPF was neither approached nor did

he give any sanction for proceeding against the appellant departmentally,

though the charges to be inquired into in the departmental proceedings

were the same and based upon the same evidence as was cited in the

criminal case which ended in acquittal of the appellant before the criminal

court.

7. The matter was considered by the Writ Court at length. The

grounds of challenge urged by the appellant viz non-compliance with the

principles of natural justice and the procedural requirements contained in

Rule 27 of the Rules were considered by the writ Court. On facts and in the

light of the inquiry record, the writ Court found that not only the appellant

had participated in the departmental proceedings, but he was also provided

adequate opportunity to defend himself. The writ Court also found no

infraction of the procedure laid down in the Rules for the conduct of

departmental inquiry. The writ Court, however, did not advert to and

considered the ground of challenge urged by the appellant in reference to

Rule 27(ccc) of the Rules. The writ petition was consequently dismissed by

the writ Court vide its judgment dated 17

th

October, 2018, which is

impugned in this appeal.

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8. The impugned judgment is assailed by the appellant on numerous

grounds. However, Mr. G.A. Lone, learned counsel appearing for the

appellant restricted his challenge to the impugned order only to the ground

that the entire inquiry proceedings leading up to the removal of the

appellant from service are vitiated for non-compliance with Rule 27(ccc). It

is argued, since the appellant had been tried and acquitted by a criminal

court on the charge of attempt to murder, as such, he could not have been

punished departmentally on the same charge or a similar charge upon the

evidence cited in the criminal case except with the prior sanction of

Inspector General of CRPF. It is urged on behalf of the appellant that the

matter with regard to the grant of sanction was never put up before the

Inspector General of CRPF, nor did he grant any sanction for proceeding

against the appellant departmentally by passing any formal order after due

application of mind. He, therefore, urges this Court to set aside the

impugned order and reinstate the appellant with all consequential benefits.

9. Per Contra, Mr. T.M Shamsi, learned DSGI, appearing for the

respondents submits that the appellant was removed from services of the

force after conducting a proper departmental inquiry following strictly the

procedure laid down in Rule 27. He further submits that the departmental

inquiry was initiated against the appellant after his acquittal in terms of the

judgment passed by this Court and after seeking appropriate orders from

the Inspector General of CRPF. To substantiate his submissions, he also

produced original record of inquiry.

10. Having heard learned counsel for the parties and perused the

material on record, it is necessary to first set out Rule 27(ccc) of the Rules.-

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27 . “.......(ccc) When a member of the Force

tried and acquitted by a criminal court, he shall not be

punished departmentally under this rule on the same charge

or on a similar charge upon the evidence cited in the

criminal case, whether actually led or not, except with the

prior sanction of the Inspector General.”

11. Rule 27 (a) of „Chapter VI-Discipline‟ inter alia enumerates the

type of punishments that may be inflicted on non-gazetted officers and men

of various ranks, as also the authorities which are competent to inflict such

punishments after holding formal Departmental Inquiry. Clauses (b) & (c)

of Rule 27 lay down an elaborate procedure to be followed in the inquiry.

Whether or not the procedure laid down in Rule 27 was followed by the

respondents is not subject matter of debate for the reason that the only

ground pressed into service by the learned counsel for the appellant is in

respect of non-compliance of Rule 27(ccc).

12. From reading of the Rule 27(ccc), it is crystal clear that if a

member of Force has been tried and acquitted by the criminal court, he

cannot be punished by holding a Departmental Inquiry on the same charge

or on a similar charge upon evidence cited in the criminal case. It does not

matter whether the evidence cited in the criminal case is actually led or not.

There is, however, an exception to this general rule to the extent that a

person acquitted in a criminal court can be punished departmentally even

on same charge and the same set of evidence provided there is prior

sanction of the Inspector General.

13. In the instant case, as is discernable from the reply affidavit filed

by the Additional Deputy Inspector General of Police, CRPF, the office of

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IGP vide his signal No. J.II 444/06-NS-O dated 5

th

February, 2007,

accorded approval for conducting of Departmental Inquiry against the

appellant. It has also come in the reply affidavit of the respondents that

even the fresh draft of Article of Charges framed against appellant was sent

to the IGP Northern Sector, New Delhi, which was modified by the later.

The signal in the record of the respondents which is claimed by the

respondents to be the compliance of Rule 27(ccc) makes an interesting

reading and is, therefore, reproduced hereunder:

“TO 61 BN

INFO DIGCENT (L) DTE, DIG II AJM, GC SNR

FM POLICE NS HQR

NO. J.II-444/2000-NS-O 5/2/07 UNC

SWP NO 663/2000 F/B EX CT UTTAM SINGH IN

THE HIGH COURT OF J&K AT SNR[.] REF DIGCENT

(L) DTE SIG. J.II-252/2002-LWP DTD 2/2/7 [.[REQST

TAKE IMDTE ACTION FOR IMPLEMENT THE

COURT ORDER AND ALSO CONDUCT INQUIRY AS

PER RULES AND OUTCOME BE INTIMATE TO ALL

CONCERNED ACCDLY [.] DIT II AJM ONLY [.] REQST

MONITOR AND ENSURE ACTION BY 61 BN ON TOP

PRIORITY AND CFM/////”

14. Other than the signal reproduced above, this Court could not find

any material in the record which would suggest that the Inspector General

of CRPF, who was reportedly approached for grant of prior sanction,

applied his mind and passed any formal or informal order for initiating

departmental proceedings against the appellant notwithstanding his

acquittal from the criminal court on the same charges based on same set of

evidence. It needs to be made clear that the respondents do not dispute that

the appellant was proceeded departmentally on the self-same charge based

on same evidence as it was cited in the criminal case tried by a competent

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court of criminal jurisdiction. It is not also in dispute that the appellant was

acquitted by the criminal court of the charge levelled against him.

15. From the above, it is abundantly clear that there has been no strict

compliance of Rule 27(ccc) of the Rules. It is relevant to mention here that

the earlier writ petition filed by the appellant was allowed primarily on the

ground that the appellant had been tried by the respondents departmentally,

despite his acquittal by the criminal court on the same charges, without

seeking prior sanction of Inspector General of CRPF, as envisaged under

Rule 27(ccc). The impugned orders were set aside with liberty to the

respondents to conduct a de novo inquiry strictly in accordance with the

mandate of law and the applicable rules. The least that was expected of the

respondents was to put up the entire matter before the Inspector General, so

that he could take an informed decision as to whether it was desirable and

expedient to hold Departmental Inquiry against the appellant on the self-

same charges based on same set of evidence as was cited and led before the

criminal court which ultimately acquitted the appellant. The power to grant

sanction in a situation envisaged by Rule 27(ccc) is conferred by the Rules

on the Inspector General, a top ranking Officer in the Force, with the object

that a fair, impartial and an informed decision is taken by him with regard

to the desirability of conducting the departmental proceedings on the self-

same charges for which the delinquent has already faced criminal trial and

earned acquittal from the competent court of criminal jurisdiction. The

grant of sanction is not an idle formality or a ministerial act to be

performed by the Inspector General. Before granting or refusing to grant

sanction for departmental proceedings in any such situation would call for

a proper application of mind, going through the entire record including the

judgment of acquittal recorded by the criminal court, as also the nature of

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evidence led before the criminal court and the nature of evidence proposed

to be led before the departmental proceedings.

16. The Inspector General is required to take an informed decision as

to whether in the given facts and circumstances, it is desirable as also

expedient to hold Departmental Inquiry on the charge, notwithstanding the

fact that the delinquent has already been acquitted by a competent court of

criminal jurisdiction on the same charge. This has not happened in the case

on hand, even the signal relied upon by the respondents does not indicate as

to whether there was an application of mind by the Inspector General of

CRPF: Whether the entire record was produced before the Inspector

General of CRPF: Whether the Inspector General of CRPF was even aware

that on the self-same charge the appellant stood already acquitted by a

competent court of criminal jurisdiction after a full-fledged trial. It seems

that Inspector General of CRPF, on being approached, perfunctorily

granted approval for de novo inquiry against the appellant. He may have

even looked into the draft of fresh charges and made certain modifications

thereto. However, that does not make the exercise of power by the

Inspector General of CRPF in consonance with the Rule 27(ccc).

17. It is trite law that when proceedings are required to be instituted

on the basis of a sanction, whether under a statute or otherwise, the

sanction must be a valid in law. Not only there should be a formal order of

sanction passed by the Competent Authority, but it should also appear from

such order that all necessary and relevant materials have been considered

by the Sanctioning Authority before according sanction. A signal or a

wireless message cannot be a substitute for a formal order of sanction to be

passed by the Competent Authority after due application of mind. Even the

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endorsement of the words “approval granted” in the contemporaneous

record of the respondents is not sufficient compliance of the Rule 27(ccc).

The grant of sanction for proceeding against a member of Force in

departmental action despite his acquittal from the criminal court on the

self-same charge is a serious act required to be performed by proper

application of mind and taking an informed objective decision.

18. Viewed from any angle, the Departmental Inquiry initiated against

the appellant culminating into an order of removal of the appellant are

vitiated for non-compliance of Rule 27(ccc) of the Rules. The writ Court

has not considered this issue at all, though the same was specifically raised

by the appellant in the writ petition and tried to be met by the respondents

in their reply affidavit.

19. Be that as it is, for the reasons given above, the appeal succeeds.

The appeal is allowed and the order impugned passed by the writ Court is

set aside. The Departmental Proceedings against the appellant initiated by

the respondents leading to his removal from service including the order of

removal are all vitiated in law and are, therefore, set aside. The appellant if

within age shall be reinstated forthwith, along with all consequential

benefits.

(Rajesh Sekhri) (Sanjeev Kumar)

Judge Judge

SRINAGAR:

18.08.2023

“Mir Arif”

i. Whether the Judgment is Speaking? Yes

ii. Whether the Judgment is Reportable? Yes