# Paramjit Singh v. Union of India & Ors

- **Citation:** (2024) 4 ILRA 127
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-04-09
- **Case number:** Special Appeal No. 59 of 2024
- **Bench:** Ashwani Kumar Mishra, Syed Qamar Hasan Rizvi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/paramjit-singh-v-union-of-india-ors-51795
- **Pages:** 18

## Headnote

Service Law - Central Industrial Security
Force (CISF) Rules, 2001 - Rules 32, 34,
36 & 39(ii) - Constitution of India, 1950-
Article 311(2) - Dismissal from Service -
Principles of Natural Justice - Appellants, Head
Constables in CISF, dismissed without regular
departmental enquiry under Rule 39(ii) for
alleged misconduct and absconding during
suspension, following an FIR under Section 376
IPC and SC/ST Act, 1989, despite acquittal in
criminal
trial
on
07.06.2007.
Disciplinary
authority's invocation of Rule 39(ii) held
arbitrary; no objective evidence to justify
dispensing
with
enquiry
under
Rule

## Text

_Characters 0–39,931 of 62,664. This is a partial read: ask again with offset=39931 for what follows._

4 All. Rajesh Kumar Yadav & Anr. Vs. Union of India & Ors.
127
Deoki Panjhiyara (supra). In order to
examine the judgment, it would be apt to
refer to the facts of the case which are
noticed in paragraph 3 of the judgment
which are reproduced:

"While the Writ Petition was
pending, the respondent sought a recall of
the order dated 13.02.2008 on the ground
that he could subsequently come to know
that his marriage with the appellant was
void on the ground that at the time of the
said marriage the appellant was already
married to one Rohit Kumar Mishra. In
support, the respondent ? husband had
placed before the learned trial court the
certificate of marriage dated 18.04.2003
between the appellant and the said Rohit
Kumar Mishra issued by the competent
authority under Section 13 of the Special
Marriage Act, 1954 (hereinafter referred to
as ?the Act of 1954?)."

13. The above paragraph would go to
show that the claim of the appellant of the
first marriage being void was based upon
the assertion that the other party was
already married to one Rohit Kumar
Mishra and during subsistence of such
previous marriage the second marriage was
performed which was void. It was in that
context that the Hon'ble Supreme Court
proceeded
to
make
observations
in
paragraphs 18 & 19 of the judgment. In
paragraph 19 the Court has specifically
noticed that the claim of marriage, as had
been put-forth, was disputed on the ground
that the lady had already contracted a
previous marriage, and therefore, the
marriage solemnized with the appellant
therein was a nullity. The conditions of a
valid marriage have been noticed and it is
thereafter that the Court has proceeded to
observe that once the previous marriage
was void a declaration of nullity or
annulment of marriage between the parties
by a competent court was not required. We
find that the marriage between Bhojraj
Singh and Usha Devi admittedly was the
first marriage contracted by either of the
parties and there was no allegation of
incompetence of either of the persons to
contract marriage. The plea of nullity of
marriage therefore is not available on facts
of the present case. The claim that
subsequent in point of time Usha Devi has
contracted marriage is a fact, which is
specifically disputed by the contesting
respondents. Unless a declaration in that
regard is granted by the competent court,
we are not inclined to interfere with the
right of first wife to claim family pension
etc. merely on the ground that either the
marriage stood dissolved on account of a
compromise in proceeding under Section
125 Cr.P.C. or on the ground that Usha
Devi has subsequently contracted marriage
with anyone else. For the reasons that have
been recorded above, we find that this
appeal lacks merit and is, accordingly,
dismissed.
----------
(2024) 4 ILRA 127
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.04.2024

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE SYED QAMAR HASAN RIZVI, J.

Special Appeal No. 59 of 2024
And
Special Appeal No. 54 of 2024

Paramjit Singh ...Appellant
Versus
Union of India & Ors. ...Respondents

Counsel for the Appellants
Sri Alok Kumar Yadav, Sri Vashistha Dubey
128 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Respondents:
A.S.G.I., Ms. Pooja Agarwal

Service Law - Central Industrial Security
Force (CISF) Rules, 2001 - Rules 32, 34,
36 & 39(ii) - Constitution of India, 1950-
Article 311(2) - Dismissal from Service -
Principles of Natural Justice - Appellants, Head
Constables in CISF, dismissed without regular
departmental enquiry under Rule 39(ii) for
alleged misconduct and absconding during
suspension, following an FIR under Section 376
IPC and SC/ST Act, 1989, despite acquittal in
criminal
trial
on
07.06.2007.
Disciplinary
authority's invocation of Rule 39(ii) held
arbitrary; no objective evidence to justify
dispensing
with
enquiry
under
Rule
36.
Appellants' absence (to pursue legal remedy)
not amounting to desertion; no efforts made to
ascertain their whereabouts. Preliminary enquiry
findings insufficient for major punishment like
dismissal, violating audi alteram partem. High
Court's earlier order (17.08.2011) directing
reconsideration
post-acquittal
ignored
by
revisional authority. Impugned dismissal order
(25.09.2004), appellate/revisional orders, and
Single Judge's dismissal of writ petitions
(22.12.2023) set aside for procedural flaws.
Appellants entitled to reinSt.ment; employer
granted liberty to hold fresh enquiry within four
months, with subsistence allowance during
suspension, or reinSt. with 25% back wages if
no enquiry initiated. (Paras 13-38).
Special Appeals Allowed.

List of Cases cited:

1. U.O.I. Vs Tulsiram Patel, (1985) 3 SCC 398
(Para 14)

2. Nirmala J. Jhala Vs St. of Guj., (2013) 4 SCC
301 (Para 10)

3. Sri Vikas Verma Vs U.O.I., 2022 SCC OnLine
Kar 1417 (Para 10)

4. Manojit Ghosh Vs U.O.I., 2012 SCC OnLine
Del 888 (Para 12)

5. Jaswant Singh Vs St. of Punj., (1991) 1 SCC
362 (Para 21)
6. Sudesh Kumar Vs St. of Hary., (2005) 11 SCC
525 (Para 22)

7. Chief Security Officer Vs Singasan Rabi Das,
(1991) 1 SCC 729 (Para 23)

8. Amalendu Ghosh Vs North Eastern Railway,
AIR 1960 SC 992 (Para 24)

9. G.M. Tank Vs St. of Guj., (2006) 5 SCC 446
(Para 30)

10. Roop Singh Negi Vs Punj. National Bank,
(2009) 2 SCC 570 (Para 33)

11. St. of U.P. Vs Aditya Prasad Srivastava, 2017
(2) ADJ 554 (DB) (Para 34)

12. Managing Director, ECIL, Hyderabad Vs B.
Karunakar, (1993) 4 SCC 727 (Para 38)

(Delivered by Hon'ble Ashwani Kumar
Mishra, J.
&
Hon'ble Syed Qamar Hasan Rizvi, J.)

1. Both these intra Court appeals filed
by the appellants-petitioners under Rule 5
of Chapter VIII of Allahabad High Court
Rules (Rules of the Court, 1952), are
against the judgments and orders dated
22.12.2023 passed by the learned Single
Judge in exercise of its writ jurisdiction.
The Writ Court separately, vide impugned
judgments and orders dated 22.12.2023,
dismissed the writ petitions filed by
Paramjit Singh and Jitendra Singh bearing
Writ-A No. 8019 of 2012 and Writ- A No.
18146 of 2012, respectively, inter alia,
challenging the order dated 25.09.2004 as
also the appellate order dated 13.01.2005
and the orders passed by the revisional
authority on 31.10.2005 and 28.11.2011.
Though the Writ Petitions have been
decided separately, but the reasons for
dismissal of the petitions as returned by the
learned Single Judge are the same and as
4 All. Rajesh Kumar Yadav & Anr. Vs. Union of India & Ors.
129
such both the Special Appeals are hereby
decided by this common order.

2. Facts that are culled out from the
pleadings and the material available on
record before this Court are that the
appellants-petitioners were appointed as
Constable and subsequently got promoted
to the post of Head Constable in the Central
Industrial
Security
Force
(hereinafter
referred to as CISF) and were assigned
duties of security at NARORA Atomic
Power Plant (Anupshahar), Bulandshahar.
The case of the appellants-petitioners is
that while posted at NARORA Atomic
Power Plant, on 03.09.2004 at around 2:30
PM, 5 ladies were spotted inside the said
atomic power plant. Since the security of
the aforesaid power plant was extremely
sensitive, the appellant namely Paramjit
Singh immediately raised alarm and in
response to the same the petitioner of the
Writ- A No.18146 of 2012 namely Jitendra
Singh,
who
was
also
a
Head
Constable/Driver immediately reached the
spot, but could detain only 3 ladies and
brought them at the security gate and
before any paperwork could be done, a
large number of villager, local politicians
and media persons assembled and created a
scene and mounted pressure to secure
release of the aforesaid detained women.

3. On 12.09.2004, an F.I.R. was
lodged against the appellants-petitioners
under section 376 I.P.C. read with Section
3(i)(xii) and 3(ii)(v) of the SC/ST Act,
1989, and the case was registered as Case
Crime No. 182 of 2004. The incident was
highlighted in the local newspapers.

4. The appellants-petitioners were
suspended vide order dated 13.09.2004
passed by the Assistant Commandant, CISF
UNIT NAPS (respondent no.4) with the
direction not to leave the headquarters
without obtaining the prior permission of
the respondent no.4 during the suspension
period.

5. The contention of the appellants is
that they could have not stayed at the
headquarters during the suspension period
under
the
unavoidable
circumstances
inasmuch as an First Information Report
(F.I.R.) having been lodged against them
and there was an apprehension of being
arrested. The appellants in order to seek
legal protection from the Court of law,
approached the High Court at Allahabad by
way of filing a Criminal Misc. Writ
Petition No.7426 of 2004 (Jitendra Singh
and another versus State of U.P. and
others). The High Court vide order dated
23.09.2004 dismissed the said writ petition
with the observation that in case the
petitioner
surrenders
and
moves
an
application for bail in the aforesaid
criminal case, the court concerned shall
consider
and
dispose
of
the
same
expeditiously and in accordance with law.

6. A preliminary inquiry was also
conducted against the petitioners for
disobeying the conditions imposed in the
suspension
order
dated
13.09.2004.
Thereafter, the Commandant, CISF UNIT
NAPS,
NARORA,
vide
order
dated
25.09.2004 held that it was not reasonably
practicable to hold an enquiry in the matter
as is provided under Rule 36 of the CISF
Rules, 2001 and exercising the powers
conferred under Rule 32, 34 & 39(ii) of the
CISF Rules, 2001, proceeded to dismiss the
appellants-petitioners from service. Both
the
above
named
appellants
filed
departmental appeals against the dismissal
order dated 25.09.2004 before the Deputy
Inspector General, CISF (respondent no.3)
that were dismissed vide order dated
130 INDIAN LAW REPORTS ALLAHABAD SERIES
13.01.2005. Thereafter, they filed separate
revisions challenging the said order of
dismissal. The Inspector General (WS),
CISF (respondent no.2) dismissed the said
revisions
of
the
appellants,
namely,
Paramjit Singh and Jitendra Singh vide
orders dated 31.10.2005 and 09.08.2005,
respectively.

7. Both the above named appellants
individually filed writ petitions before this
Court assailing the dismissal order and also
the appellate as well as revisional orders
passed against the them. The said writ
petition filed by the petitioner-appellant
Paramjit Singh was registered as Writ- A
No.59016 of 2007 and the writ petition
filed by Jitendra Singh was registered as
Writ- A No.78351 of 2005. It would not be
out of place to note that since both the
appellants were acquitted vide judgment
and order dated 07.06.2007 passed by the
Court of learned Special Judge (SC/ST
Act), Bulandshahar in Session Trial No.271
of 2005 (State versus Paramjit Singh and
another), this Court by a common order
dated 17.08.2011 disposed of both the said
writ petitions by granting liberty to the
petitioner to approach the revisional
authority by way of an appropriate
representation with a direction to the
revisional authority to pass appropriate
orders in accordance with law in the light
of the observations made in the said order
within a period of two months from the
date of submission of such representation.
The extract of the aforementioned order
dated 17.08.2011 is reproduced below:

"Having
considered
the
submissions, what is to be noticed is that
the basis for passing the order of dismissal
was lodging of the criminal case against
the petitioners, it being highlighted in the
newspapers, adversely affected the image
of the CISF as a whole. Although the
petitioners
have
not
been
able
to
demonstrate
why
they
were
falsely
implicated but the fact remains that in the
trial both the victims have denied in their
statements that it was the petitioners who
had raped them. Once the victims have
themselves in the trial not recognized the
petitioners as the culprits, the basis for
their dismissal on the ground of the said
incident needs to be reconsidered.

It is well settled that where an
employee who is dismissed on the ground
of a criminal case filed against him,
although acquitted in the said criminal
case, it would still be at the discretion and
within the power of the Disciplinary
Authority whether or not to take back in
service such employees. the Disciplinary
Authority for reasons to be recorded may
refuse. There could be a case where after
the lodging of a criminal case, the
department may hold an internal inquiry
and based upon the material adduced in the
said inquiry may award the punishment.
However in the present case no inquiry has
been conducted and the order of dismissal
has been passed exercising special powers
under Rule 39(ii) of the CISF Rules. In the
opinion of the Court, the Disciplinary
Authority or the Appellate Authority or the
Revisional Authority may re-examine the
case of the petitioners in the light of the
judgment of the trial Court in the Criminal
case and pass appropriate orders. The
petitioners should not be made to suffer for
an offence they may not have committed.

Thus, without going into the
question as to whether the order of
dismissal in absence of any inquiry was
vitiated or not in the opinion of the Court
the appropriate authorities may reconsider
the matter upon appropriate representation
being moved by the petitioners. As the
matter had been taken into appeal and
4 All. Rajesh Kumar Yadav & Anr. Vs. Union of India & Ors.
131
revision, the proper course open to the
petitioners would be to approach the
Revisional Authority for recalling its order
and for reconsidering the matter. It would
be for the Revisional Authority whether to
consider the matter at its level or remit the
same to the Disciplinary Authority to
reconsider in the light of the judgment of
acquittal and the evidence led in the
trial. In view of the above, both the
petitions stand disposed of with liberty to
the petitioners to approach the Revisional
Authority by way of an appropriate
representation annexing a copy of the
judgment of the trial court along with
certified copy of this order and upon such
representation being filed the Revisional
Authority may proceed to pass appropriate
orders in accordance with law in the light
of the observations made in this order
within a period of two months from the date
of submission of such representation along
with certified copy of the order."(emphasis
supplied by us)

8. The representation filed by the
appellants-petitioners, said to have been
moved on 04.10.2011, was rejected by the
Inspector General (respondent no.2) vide
order dated 28.11.2011. The extract of the
relevant portion of the order dated
28.11.2011 is reproduced hereinbelow:

"......The representation of the
petitioner has been considered on merit in
compliance of order of Hon'ble Allahabad
High Court and the entire proceeding has
been re-examined.

8. Therefore, in due compliance
of
the
judgment orders
of Hon'ble
Allahabad High Court dated 17.8.2011 and
Hon'ble trial court dated 07.6.2007 to reconsider this matter, the charges on the
basis of which departmental action was
processed against the petitioner and the
decision of the revisional authority need to
be
analyzed.
Upon
examination
of
materials held on records it is revealed that
the
Disciplinary
Authority
got
a
Preliminary enquiry conducted into the
reported breach in discipline and found
that (i) the petitioner while deployed for
patrolling/mess duty in STF wing remained
absent from STF barrack from 1400 hrs on
03.9.2004 unauthorisdly, (ii) he alongwith
HC/Dvr Jitender Singh detained 03 ladies,
letting two other ladies to go out of
boundary wall and then they misbehaved
with two of the ladies, namely Smt. Meena
and Smt. Maharani and (iii) that they did
not inform this incident of trespass and
subsequent events to any of their senior
officer. Thus, even though the petitioner
has been acquitted from the charges of
committing rape and offence under SC/ST
Act, the facts as mentioned at (i), (ii) and
(iii) above have not been disputed.

9. With reference to the issue of
conducting regular DE after culminaton of
Preliminary Enquiry it has come on record
that the petitioner deserted the unit lines on
19.9.2004 while under suspension violating
the instructions contained in para-3 of
suspension order dated 13.9.2004 which
was duly acknowledged by him and the
Disciplinary Authority found it highly
impractical
to
conduct
Departmental
Enquiry in the manner provided under rule36 of CISF Rules 2001 in the hostile
situation.

10. Thus, the delinquencies at (i)
to (iii) above in para-8 proved in the
preliminary enquiry which formed the basis
of order passed by the disciplinary
authority are different from the crime of
rape and offense under SC/ST Act from
which the Hon'ble Trial court has acquitted
the petitioner. In other words, the charges
under criminal case against the petitioner
have
not
been
the
sole
matter
of
132 INDIAN LAW REPORTS ALLAHABAD SERIES
consideration in the instant Departmental
proceedings.

11. As such, even after due
compliance of the Hon'ble High Court
order and after taking into consideration the
observations made in the order, I find the
order
of
Disciplinary
Authority
commensurate
with
the
gravity
of
undisciplined acts and misconduct on the
part of the petitioner being a member of
Armed Force of Union and subversive for
good order and Force discipline and,
therefore, does not warrant interference in
order passed by Disciplinary Authority and
upheld by Appellate Authority.

12. The representation submitted
by the petitioner herein is, therefore,
rejected being devoid of merit."

9. After the rejection of their abovementioned representations; by the second
respondent vide order dated 28.11.2011,
the appellants separately filed petitions
before the Writ Court, having Writ- A No.
8019 of 2012 and Writ- A No. 18146 of
2012. The learned Writ Court after hearing
the parties and exchange of pleadings,
dismissed both the writ petitions, vide the
impugned order dated 22.12.2023 on the
identical grounds. The extract of the
findings returned by the learned Writ Court
resulting into the dismissal of the Writ- A
No.8019 of 2012 is reproduced below:

"23.
After
hearing
the
submissions extended on behalf of learned
counsels for rival parties, after perusing
the records and giving full regards to the
judgments rendered by Hon'ble Supreme
Court and relied upon by learned counsels
for the parties, it is crystal clear that
submission made by learned counsel for the
petitioner on the factual aspect are difficult
to be gone into by this Court in
proceedings of this petition where writ
jurisdiction under Article 226 of the
Constitution of India has been invoked.

24. It is well settled while
judicially reviewing any punishment order
passed in disciplinary proceedings, the
scope of interference of this Court is very
limited and is confined to finding of fact the
procedural flaws, if any.

25 The arguments raised by
learned counsel for respondents seems to
be forceful.

26.
The
entire
disciplinary
proceeding initiated against petitioner and
the punishment has been based on the
concurrent findings of facts which cannot
be interfered by this Court. Moreover, no
procedural flaw has been highlighted by
learned
counsel
for
petitioner
while
challenging the punishment order through
the present petition.

27. In view of aforesaid, I do not
find any good ground to interfere in the
impugned orders. The instant petition thus
lacks merit is accordingly dismissed."

10. Being aggrieved by the impugned
order dated 22.12.2023, the petitionersappellants preferred the instant Special
Appeals. The bone of contention as
advanced by the learned counsel for the
appellants is that the learned Writ Court has
failed to appreciate the material fact that
the order of dismissal from service, being a
major punishment could not have been
passed merely on the basis of a preliminary
enquiry which is simply a fact-finding
enquiry, but the respondent authorities
without giving any plausible reason for the
exercise of the special procedure as
contemplated under Rule 39(ii) of the CISF
Rules, 2001, proceeded to pass the order of
major punishment by circumventing the
regular enquiry. It has been further
contended that no punishment can be
passed merely on the basis of the evidence
4 All. Rajesh Kumar Yadav & Anr. Vs. Union of India & Ors.
133
collected during preliminary enquiry. In
support of his contention, learned counsel
relied upon the judgment of the Hon'ble
Supreme Court in the case of Nirmala J.
Jhala versus State of Gujarat and
another, reported in (2013) 4 SCC 301 and
also the Judgment dated 15.06.2022 passed
by a Divison Bench of the Karnataka High
Court in the case of Sri Vikas Verma and
others versus Union of India and others
(W.P. No. 12681-12685 of 2016). He
further
asserted
that
the
appellantspetitioners were honorably acquitted as the
prosecution miserably failed to prove the
charges in the Sessions Trial. Since the
evidence and witness before the Criminal
Court as well as before preliminary enquiry
were same, thus, the judgment and order
passed by the Sessions Court dated
07.06.2007 had a serious bearing on the
preliminary enquiry but the respondents,
despite the categorical direction dated
17.08.2011 issued by the Writ Court in
Writ- A No.78351 of 2005 connected with
Writ- A No. 59016 of 2007, did not
consider the said aspect of the matter and
rejected the representation of the appellants
in the most mechanical manner thereby
holding that the impugned orders do not
warrant inteference. This aspect of the
matter has not been appreciated even by the
Hon'ble Single Judge while passing the
impugned order dated 22.12.2023.

11. It has also been contended that the
respondent authorities have invoked the
special procedure contemplated under Rule
39 of the CISF Rules, 2001, by treating the
short absence of the appellants-petitioners
from the headquarters as 'absconders' or
'deserters' while no proceeding was ever
initiated for declaring them as 'absconders'
or 'deserters'. Further, a short absence from
Unit cannot be construed as a sufficient
ground to invoke the extra-ordinary powers
of dispensing with the enquiry, and as such
the order of dismissal passed by the
respondent authority under the garb of Rule
39(ii) of the CISF Rules, 2001, is not only
is violative of principles of natural justice
but is also per-se illegal. It has also been
asserted by the learned counsel for the
appellant-petitioner that the Writ Court has
failed to consider that the order dated
28.11.2011
passed
by
the
second
respondent is on a premise, which is
entirely distinct from the issue that has
been made the basis of dismissal order
dated 25.09.2004. The second respondent
while passing the impugned order dated
28.11.2011 carved out a new case by giving
colour to the allegations that ultimately
failed before the learned Sessions Court
and as such are unsustainable in law.

12. Per contra, appearing on behalf of
the Union of India/respondent, the learned
Additional Solicitor General vehemently
opposed the Special Appeals and asserted
that on an F.I.R. being lodged under
Section 376 I.P.C. and Section 3(i)(xii) of
SC/ST Act, by the victims against the
appellants-petitioner, they were placed
under
suspension
vide
order
dated
13.09.2004 and they were instructed not to
leave
headquarters
during
suspension
period without obtaining prior permission
of the competent authority. While the
preliminary enquiry was being conducted,
the appellants-petitioners were reported
absconding from the unit lines without
permission/information of the competent
authority. However, while returning to
barracks, neither they informed about the
incident nor did they make G.D. to that
effect and hid from everyone. This incident
caused rift in the relationship between the
CISF and the locals. Due to such activity of
the appellant-petitioner, the image of CISF
was badly tarnished by the print and
134 INDIAN LAW REPORTS ALLAHABAD SERIES
electronic media. Taking into consideration
the seriousness of the matter and the fact
that the issue could not be prolonged for an
indefinite period and since appellantspetitioners were considered "absconding"
from the unit lines during the suspension
period, it was considered not practicable to
hold enquiry under Rule 36 of the CISF
Rules, 2001. Thus, the action was initiated in
exercise of Rule 39(ii) of the CISF Rules,
2001 and the appellants-petitioners were
dismissed from service vide order dated
25.09.2004. He further contended that the
said order dated 25.09.2004 was passed to
bridge the gap between the CISF and society
and to restore the pride and prestige of the
Force. Learned Additional Solicitor General
of India placed reliance upon a Division
Bench Judgment passed by the Delhi High
Court in the case of Manojit Ghosh versus
Union of India and others, reported in 2012
SCC OnLine DEL 888.

13. Having heard Sri Alok Kumar
Yadav, learned counsel for the appellant and
Sri Shashi Prakash Singh, learned Additional
Solicitor General of India, assisted by Ms.
Pooja Agarwal, learned counsel for the
respondent and upon perusal of the pleadings
on record before this Court, the pivotal issue
that emerges for consideration is that whether
in the facts and circumstances of the instant
case the provision of Rule 39(ii) of the CISF
Rules, 2001 has been correctly invoked to
dismiss
the
appellants-petitioners
by
dispensing with the procedure of enquiry for
imposing
major
penalties
otherwise
contemplated under Rule 36 of the CISF
Rules, 2001. The relevant provision of Rule
39(ii), for a ready reference, is quoted
below:

"Special procedure in certain
cases- Not withstanding anything contained
in rules 36 to 38-

(i) where any penalty is imposed
on an enrolled member of the Force on the
ground of conduct which had led to his
conviction on a criminal charge; or

(ii)
where
the
disciplinary
authority is satisfied for reasons to be
recorded by it in writing that it is not
reasonably practicable to hold an inquiry
in the manner provided in these rules, or

(iii) where the President is
satisfied that in the interest of the security
of the State, it is not expedient to hold any
inquiry in the manner provided in these
rules, the disciplinary authority may
consider the circumstances of the case and
make such orders thereon as it deems fit;

Provided
that
the
enrolled
member of the Force may be given an
opportunity
of
making
repersentation
against the penalty proposed to be imposed
before any order is made in case under
clause (i)."

14.

The
question
as
to
the
circumstance in which the disciplinary
enquiry could be dispensed has been
elaborately dealt with by the Hon'ble
Supreme Court in the case of Union of
India and another versus Tulsiram Patel
and other connected appeals, reported in
(1985) 3 SCC 398. The extract of
paragraph 130 of the said judgment is
quoted below for ready reference:

"130. The condition precedent
for the application of clause (b) is the
satisfaction of the disciplinary authority
that "it is not reasonably practicable to
hold" the inquiry contemplated by clause
(2) of Article 311. What is pertinent to note
is that the words used are "not reasonably
practicable" and not "impracticable".
According
to
the
Oxford
English
Dictionary "practicable" means "Capable
of being put into practice, carried out in
4 All. Rajesh Kumar Yadav & Anr. Vs. Union of India & Ors.
135
action, effected, accomplished, or done;
feasible".
Webster's
Third
New
International Dictionary defines the word
"practicable" inter alia as meaning
"possible to practice or perform : capable
of being put into practice, done or
accomplished:
feasible".
Further,
the
words used are not "not practicable" but
"not reasonably practicable". Webster's
Third New International Dictionary defines
the word "reasonably" as "in a reasonable
manner: to a fairly sufficient extent". Thus,
whether it was practicable to hold the
inquiry or not must be judged in the context
of whether it was reasonably practicable to
do so. It is not a total or absolute
impracticability which is required by
clause (b). What is requisite is that the
holding of the inquiry is not practicable in
the opinion of a reasonable man taking a
reasonable view of the prevailing situation.
It is not possible to enumerate the cases in
which
it
would
not
be
reasonably
practicable to hold the inquiry, but some
instances by way of illustration may,
however, be given. It would not be
reasonably practicable to hold an inquiry
where the government servant, particularly
through or together with his associates, so
terrorizes,
threatens
or
intimidates
witnesses who are going to give evidence
against him with fear of reprisal as to
prevent them from doing so or where the
government servant by himself or together
with
or
through
others
threatens,
intimidates and terrorizes the officer who is
the disciplinary authority or members of
his family so that he is afraid to hold the
inquiry or direct it to be held. It would also
not be reasonably practicable to hold the
inquiry where an atmosphere of violence or
of general indiscipline and insubordination
prevails, and it is immaterial whether the
concerned government servant is or is not a
party
to
bringing
about
such
an
atmosphere. In this connection, we must
bear in mind that numbers coerce and
terrify while an individual may not. The
reasonable practicability of holding an
inquiry is a matter of assessment to be
made by the disciplinary authority. Such
authority is generally on the spot and
knows what is happening. It is because the
disciplinary authority is the best judge of
this that clause (3) of Article 311 makes the
decision of the disciplinary authority on
this question final. A disciplinary authority
is not expected to dispense with a
disciplinary inquiry lightly or arbitrarily or
out of ulterior motives or merely in order to
avoid the holding of an inquiry or because
the
Department's
case
against
the
government servant is weak and must fail.
The finality given to the decision of the
disciplinary authority by Article 311(3) is
not binding upon the court so far as its
power of judicial review is concerned and
in such a case the court will strike down the
order dispensing with the inquiry as also
the order imposing penalty..........."

15. In the instant case, the reason for
absence from the Unit narrated by the
appellant-petitioner in paragraphs no.8 and
9 of the writ petition No. 8019 of 2012, is
that he was pursuing his case before the
High Court at Allahabad during the period
of alleged preliminary enquiry, the report
of which has been made the sole basis of
the passing of the dismissal order dated
25.09.2004. The said averment has been
replied
by
the
respondents
in
the
corresponding paragraphs of the counter
affidavit dated 11.06.2012, inter-alia stating
therein that the departmental proceedings
have
no
relation
with
the
criminal
proceedings. The appellant-petitioner was
placed under suspension vide order dated
19.09.2004 with a direction that they shall
not leave the headquarters without the prior
136 INDIAN LAW REPORTS ALLAHABAD SERIES
permission of the disciplinary authority, but
for the reason that the petitioner disobeyed
the instruction and absconded from the unit
lines at 21:05 hours on 19.04.2005, that
compelled the disciplinary authority to take
up disciplinary action by exercising the
power under Rule 39(ii) of the CISF Rules,
2001.

16. Refuting the above stand of the
respondent authorities, it is pleaded on
behalf of the appellants-petitioners that in
so far as the temporary absence of the
appellants
from
the
headquarter
is
concerned, the same did not amount to
desertion inasmuch as the desertion has to
be permanent. Justifying his absence from
the Unit at the time when the alleged
preliminary enquiry was in contemplation,
the learned counsel submitted that the
appellants-petitioners had to go to file the
writ petition before the High Court at
Allahabad, and it is for this reason, they left
the unit on 20.09.2004 and reported back to
the unit on 25.09.2004 and furthermore,
there is nothing on record to show that the
petitioners were ever declared 'absconders'
or 'deserters'. The action on the part of the
disciplinary authority in proceeding against
them under the garb of Rule 39(ii) of the
CISF
Rules,
2001
is
a
hasty
and
unreasonable decision and cannot be
justified in view of the fact that they were
slapped with the major punishment of
dismissal from service in the most arbitrary
manner even without following the due
procedure as is provided under law thereby
depriving them of their valuable right to
defend their case by filing a reply to the
alleged charges and to cross-examine the
witnesses.

17. The law is well settled that the
rule of audi alteram partem cannot be
ignored ordinarily and especially when it is
a case of major punishment adversely
affecting the rights of a person. The
Hon'ble Supreme Court in the case of
Tulsiram Patel (supra) has been pleased to
hold as under:

"96. The rule of natural justice
with which we are concerned in these
appeals and writ petitions, namely, the audi
alteram partem rule, in its fullest amplitude
means that a person against whom an
order to his prejudice may be passed
should be informed of the allegations and
charges
against
him,
be
given
an
opportunity of submitting his explanation
thereto, have the right to know the
evidence, both oral or documentary, by
which the matter is proposed to be decided
against him, and to inspect the documents
which are relied upon for the purpose of
being used against him, to have the
witnesses who are to give evidence against
him examined in his presence and have the
right to cross-examine them, and to lead
his
own
evidence,
both
oral
and
documentary, in his defence. The process of
a fair hearing need not, however, conform
to the judicial process in a Court of law,
because judicial adjudication of causes
involves a number of technical rules of
procedure
and
evidence
which
are
unnecessary and not required for the
purpose of a fair hearing within the
meaning of audi alteram partem rule in a
quasi-judicial or administrative inquiry. If
we look at clause (2) of Article 311 in the
light of what is stated above, it will be
apparent that that clause is merely an
express statement of the audi alteram
partem rule which is implicitly made part
of the guarantee contained in Article 14 as
a result of the interpretation placed upon
that article by recent decisions of this
Court. Clause (2) of Article 311 requires
that before a government servant is
4 All. Rajesh Kumar Yadav & Anr. Vs. Union of India & Ors.
137
dismissed, removed or reduced in rank, an
inquiry must be held in which he is
informed of the charges against him and
given a reasonable opportunity of being
heard in respect of those charges. The
nature of the hearing to be given to a
government servant under clause (2) of
Article 311 has been elaborately set out by
this Court in Khem Chand case [AIR 1958
SC 300 : 1958 SCR 1080 : (1959) 1 LLJ
167] in the passages from the judgment
extracted above. Though that case related
to the original clause (2) of Article 311, the
same applies to the present clause (2) of
Article 311 except for the fact that now a
government servant has no right to make
any representation against the penalty
proposed to be imposed upon him but, as
pointed out earlier, in the case of Suresh
Koshy George v. University of Kerala [AIR
1969 SC 198 : (1969) 1 SCR 317, 326]
such an opportunity is not the requirement
of the principles of natural justice and as
held in Associated Cement Companies Ltd.
v. T.C. Shrivastava [1984 Supp SCC 87 :
1984 SCC (L&S) 488 : (1984) 3 SCR 361,
369] neither the ordinary law of t he land
nor industrial law requires such an
opportunity to be given. The opportunity of
showing cause against the proposed
penalty was only the result of the
interpretation placed by the Judicial
Committee of the Privy Council in Lall case
[AIR 1948 PC 121 : LR (1947-1948) 75 IA
225, 243-4 : 1948 FCR 44] upon Section
240(3) of the Government of India Act,
1935, which was accepted by this Court in
Khem Chand case [AIR 1958 SC 300 :
1958 SCR 1080 : (1959) 1 LLJ 167] . If,
therefore, an inquiry held against a
government servant under clause (2) of
Article 311 is unfair or biased or has been
conducted in such a manner as not to give
him a fair or reasonable opportunity to
defend himself, undoubtedly, the principles
of natural justice would be violated, but in
such a case the order of dismissal, removal
or reduction in rank would be held to be
bad as contravening the express provisions
of clause (2) of Article 311 and there will
be no scope for having recourse to Article
14 for the purpose of invalidating it."

18. In so far as the contention of the
learned
counsel
for
the
petitionersappellants that the order of dismissal has
been passed neither on merits of the case
nor by taking into consideration the factual
matrix of the case, rather the order of
dismissal was passed under the pressure
and influence of the local residents and the
media, finds strength from a bare perusal of
the impugned order dated 25.09.2004,
which contains the following:

"..............

9. Whereas on 12.09.04, a news
article appeared in Hindi daily Dainik
Jagaran containing all fame for CISF Unit
Arora as a whole, which continues till date.

10. Whereas, an FIR lodged by
the aggrieved two ladies vide crime no.
182/04 dated 12.09.04 under section 376
IPC and Section 3(1)12 of SC / ST Act
against him in Narora Police Station.

11. Whereas, HC/Dvr, Paramjit
Singh has been placed under suspension
wef, 13.09.04.

12. Whereas MOTO directed her
he would not Paramjit Singh was clearly
leave Unit Hqrs., without prior permission
of the Disciplinary Authority, during the
period of suspension.

13.
Whereas,
absconding
suspension, with effect from 19.09.04,
himself from without the he is unit lines
during
taking
permission
from
any
competent authority and is still absconding
till date which itself speaks that he wanted
to evade from the legal rand disciplinary
138 INDIAN LAW REPORTS ALLAHABAD SERIES
action
against
the
delinquency
he
committed.

14. Whereas, from the articles
published in various news papers from
12.09.04 to till date and news articles
broadcasted in various TV news channels,
it is clear that not only, this incident has
badly tarnished the image of CISF in this
vicinity but also brought ill fame and
disgrace to the Force as a whole.

15. Whereas, this incident has
caused
rift
in
the
relationship
of
brotherhood, peace and harmony between
CISF and locals and also the employees of
the Undertaking where he is deployed.

16. Whereas, considering the
sensitivity and seriousness of heinous act
on the part of HC/Dvr. Paramjit Singh, it is
eminent to keep the morale of the members
of the force high by taking stern decision in
the matter.

17.
Whereas,
since
it
is
considered that to bridge the gap between
the CISF and local inhabitants and also to
restore normalcy of the situation this case
cannot be prolonged for indefinite period.

18. Whereas, HC/Dvr. Paramjit
Singh is still absconding himself and his
whereabouts are still not known and I am
satisfied that it will not be reasonably
practicable to hold an enquiry in the
manner provided under Rule-36 of CISF
Rules, 2001, meet the ends of justice.

19. And whereas, on considering
facts and circumstances of this case I am
satisfied that the penalty of 'Dismissal from
Service' should be imposed on No.
884526522 HC/Dvr. Paramjit Singh.