Union of India &
Ors. Vs. G. Annadurai [2009] INSC 837 (27 April 2009)
Judgment
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOs. 2829 OF 2009 (Arising
out of SLP (C) no. 11488 of 2007) Union of India & Ors. ...Appellants
Versus G. Annadurai ...Respondent
Dr. ARIJIT PASAYAT,
J.
1.
Leave
granted.
2.
Challenge
in this appeal is to the order passed by a Division Bench of the Guwahati High
Court allowing the writ appeal filed by the respondent questioning correctness
of the order passed by learned Single Judge of the High Court. A writ petition
was filed assailing the order dated 27.5.1998 passed by the appellants herein
directing his dismissal. At the relevant point of time, the respondent was
serving as a constable in the CRPF and was posted in Golaghat in the State of
Assam. On 26.7.1997 First Information Report (in short the `FIR') was lodged
before the Officer in charge of Golaghat Police Station alleging commission of
offence punishable under Section 379 of the Indian Penal Code, 1860 (in short
the `IPC'). P.S. Case No. 257 of 1997 was registered. The respondent was
arrested in connection with the case and was released on bail on 14.8.1997. An
enquiry was conducted by CRPF Authorities. The Superintendent of Police by
communication dated 27.8.1997 informed the concerned authorities of CRPF that
appellant had been released on bail on 14.8.1997. As the respondent did not
join duty even after lapse of sufficient time, after lapse of sufficient time
after his release on bail, a court of enquiry was held and the respondent was
declared as the deserter with effect from 14.8.1997 by order dated 19.12.1997.
Thereafter a
departmental enquiry was conducted under Section 11(1) of the Central Reserve
Police Fore Act, 1949 (in short the `Act') read with Rule 27 of the Rules
framed thereunder. A memo of charges dated 23.12.1997 was drawn up, the charge
memo was sent to the respondent by registered post at his home address. The
respondent did not respond to the charges leveled and the charge memo was sent
back undelivered. An enquiry officer was appointed and after issuance of notice
to the respondent to appear before him on 26.1.1998 along with his written
statement, reminder was sent to him on 10.2.1998. As the respondent did not
respond to the notices issued, an order was passed ex parte. Thereafter in
course of the enquiry statement of four witnesses was recorded and several
documents were proved. Copies of the statements of the witnesses examined and
documents exhibited were sent to the respondent by registered post asking him
to submit his written statement for defence or appear before the enquiry
officer. This was done on 6.3.1998.
Again there was no
compliance of the order. Enquiry was concluded and it was held that the charges
were proved. The report of enquiry was communicated to the disciplinary
authority to be forwarded. A copy of the same was sent to the present
respondent at his home address. As no response was received within the time
stipulated, the disciplinary authority concurred with the findings of the
enquiry officer and imposed punishment of dismissal from service. Stand taken
in the writ petition was that the writ petitioner was not aware of the
disciplinary proceedings initiated.
Stand was refuted by
the respondents in the writ petition. A learned Single Judge of the High Court
on considering the report of the enquiry officer and the order of the
disciplinary authority came to hold that the writ petition was without merit.
It was held that after an elaborate decision apart from the court of enquiry
where the respondent was declared as deserter, in the disciplinary proceeding
the decision was taken in respect of a distinct charge. That being so it was
held that there was no merit in the writ petition. Accordingly it was
dismissed. The order was assailed in the writ appeal which has been allowed by
the impugned judgment.
3.
The
High Court found that there was not sufficient material to show that the
statement/notices were served. It was noted that the postal endorsements were
to the effect `not found' and therefore the safeguards provided have not been
observed. Accordingly the writ appeal was allowed and the order of the District
Court was upheld.
4.
Learned
counsel for the appellant submitted as follows;
(i) Firstly it is
apparent from the facts of this case that the respondent who was an employee of
the CRPF, a disciplined force, has continued to be remained absent from
14.8.97.
When he did not
report to his Unit a warrant of arrest was issued on 30.8.97 which was
addressed both to his home address in Tamilnadu and to his place of posting at
Golaghat, Assam, but remained unexecuted. The respondent was declared a
deserter on 19.12,97. He never reported for duty since then, thus in these
circumstances the respondent did not deserve any relief in the exercise of
equitable jurisdiction by the High Court under Art. 226 & 227 of the
Constitution of India, (ii) The facts further show that the following efforts
were made to serve him during the course of the departmental proceedings (a)
The Memorandum of charges was sent to him by Regd. Post at his home address in
Tamilnadu.
(b) On initiation of
inquiry two notices dated 26.1.98 and 10.2.98 were again sent to him by Regd.
Post at his home
address in Tamil Nadu.
(c) On conclusion of
the inquiry ex-parte statements of witnesses recorded were again sent to him by
Regd. Post on his home address on 3.3.98 and 6.3.98.However, he neither filed
any reply nor appeared before the Inquiry Officer.
(d) The inquiry report
was also sent to him at his home address. The Division Bench found that the
same was served upon him which is clear from the following observations;
"As the records
reveal by communication dated 25.03.1998, issued by the Commandant of the
concerned Battalion, a copy of the inquiry officer's report had been forwarded
to the appellant al his home address in Tamilnadu. The records disclose that
the same was served on him there. The order of dismissal was passed thereafter
on 27.05.1998. Inspite of this he failed to file any reply/representation in
response to the same.
(e) It maybe
mentioned that even before this court respondent did not put in his appearance.
5.
It
is pointed out that decision in Union of India & Ors. v. Dinanath Shantaram
Karekar & Ors. [1998 (7) SCC 569] on which High Court has placed reliance
has no application to the facts of the present case.
6.
It
is pointed out that on conclusion of enquiry show cause notice was served by a
publication in the newspaper and all possible efforts have been taken. Ample
opportunity have been granted to the respondent which he failed to avail. It
is, therefore, submitted that the decision in Dinanath's case (supra) is not
applicable to the facts of the case.
7.
There
is no appearance on behalf of the respondent when the matter is called in spite
of service of notice.
8.
The
factual scenario shows that ample opportunities have been given to the
respondent in order to enable him to effectively participate in the proceeding.
He has failed to avail those opportunities. That being so the Division bench of
the High Court ought not to have interfered with the order of learned Single
Judge which according to us is irreversible.
9.
The
appeal is therefore allowed and the impugned judgment is set aside.
..........................................J.
(Dr. ARIJIT PASAYAT)
..........................................J.
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