Regular Enquiry Not Practical, Will Affect Morale Of Force: Karnataka HC Upholds Dismissal Of CISF Constables Accused Of Rape By Another Constable's Wife

A division bench of Justice Alok Aradhe and Justice J M Khazi dismissed the appeal filed by Vikas Verma and others. It said,

"There is ample evidence on record to prove the charges against the appellants. The issue of sufficiency of the evidence has not been raised by the appellants. The disciplinary as well as the appellate authority by taking into account the material available on record has held that the charges levelled against the appellants are proved...The incidents being rarest of the rare and considering the discipline and moral of the force, the disciplinary authority rightly held that it is not reasonably practicable to hold a regular enquiry. The disciplinary authority has recorded the satisfaction on the objective facts and the decision to dispense with the departmental enquiry is neither the outcome of whim or caprice of the disciplinary authority nor is malafide."

Case Details:

The appellants were appointed in service on 18-07-2012 and in the year 2015 were posted at Bhartiya Reserve Bank Mudrana, Private Limited, Mysuru. A constable's wife on July 2, 2015, filed a complaint against the appellants in which it was stated that she was blackmailed and repeatedly raped by the appellants.

A preliminary enquiry was conducted and the Disciplinary Authority, by an order dated 02.08.2015, inter alia held that in an armed police force like CISF, the discipline and morale are of paramount importance. It was further held that in the facts of the case, an enquiry into the incident is not reasonably practicable as it would have adverse ramification on the discipline of the force in general. Therefore, the requirement of holding an enquiry was dispensed with in exercise of powers under Rule 39(ii) of the CISF Rules, 2001 and under clause (b) of second proviso to Article 311 (2) of the Constitution of India.

The disciplinary authority imposed a penalty of dismissal from service on the appellants. The appellants filed an appeal under Rule 46 of CISF Rules. The appellate authority by order dated 27-11-2015 dismissed the appeal. The appellants assailed the validity of the orders dated 02.08.2015 and 27.11.2015 passed by the Disciplinary Authority as well as the Appellate Authority in writ petitions.

The Single Judge, by an order dated 08.08.2017, inter alia held that disciplinary authority has assigned cogent reasons for arriving at a conclusion to dispense with the regular departmental enquiry and the disciplinary authority in the facts of the case was justified in dispensing with the regular enquiry. It was further held that misconduct is inhumane and adverse inference has to be drawn against the appellants on their refusal to share call records of their admitted phone numbers It was also held that there is no animosity between the complainant, her husband and the appellants, therefore, the version of the appellants that they have been falsely implicated cannot be accepted. Accordingly, the penalty of dismissal from service was upheld and the writ petitions were dismissed.

Appellant's submissions:

It was argued that the decision to dispense with the regular enquiry as provided under Rule 36 cannot be taken by the disciplinary authority at the time of passing the order of punishment in view of Rule 36(2A) of the Rules.

Further, the authority is bound by principles of natural justice before taking a decision to dispense with the regular enquiry. It was said the facts and circumstances of the case, there is no justification for dismissal of services of the appellants as they have already been acquitted in a criminal case vide judgment dated 30.07.2019 passed by the trial court. It is on the mere basis of suspicion, penalty of dismissal cannot be imposed.

Respondent opposed the plea

Additional Solicitor General M B Nargund appearing for the respondents submitted that after receipt of the complaint, the same was meticulously examined. The disciplinary authority visited the place of incident and in the facts and circumstances of the case has rightly taken a decision to dispense with the disciplinary enquiry. Further he said that valid and cogent reasons have been assigned by the disciplinary authority for dispensing with the regular departmental enquiry. 

Findings

The bench on going through the records and the findings recorded by the disciplinary authority which was confirmed by the appellate authority said, "The disciplinary authority on the basis of details of call record of the complainant which were verified by it held that appellants have made calls on the mobile number of the complainants. Therefore the contention of the appellants that they did not know the complainant is contrary to record."

Further it said,

"The incidents being rarest of the rare and considering the discipline and moral of the force, the disciplinary authority rightly held that it is not reasonably practicable to hold a regular enquiry. The disciplinary authority has recorded the satisfaction on the objective facts and the decision to dispense with the departmental enquiry is neither the outcome of whim or caprice of the disciplinary authority nor is malafide."

It added, "This court cannot sit in appeal over the decision taken by disciplinary authority to dispense with enquiry. Therefore, no case for interference with the decision to dispense with the regular enquiry is made out in exercise of powers of judicial review."

The bench also noted that there is ample evidence on record to prove the charges against the appellants. The issue of sufficiency of the evidence has not been raised by the appellants. The disciplinary as well as the appellate authority by taking into account the material available on record has held that the charges levelled against the appellants are proved.

As regards the contention of appellants that disciplinary authority could not have dispensed with the inquiry the bench said,

"The disciplinary authority has invoked the power under Rule 39 of the Rules, which prescribes for a special procedure in certain cases and is a non obstante clause. Thus, the power under Rule 39 of the Rules can be invoked notwithstanding the power under Rule 36(2A) of the Rules, which deals with power to deal with complaint for sexual harassment. Such a complaint is required to be referred to the complaints committee."

It added, "In the instant case, the disciplinary authority as stated supra has invoked the power under Rule 39 of the Rules and invocation of the said Rule in the peculiar facts of the case has been held to be justified. Therefore, the contention that power under Rule 39 of the Rules cannot be exercised in view of Rule 36(2A) of the Rules is misconceived."

The court also rejected the contention that the disciplinary authority is bound by principles of natural justice before taking a decision to do away with regular enquiry. It said, "The same is also sans substance. In support of aforesaid submission, reference was made to proviso to Rule 39(iii), which envisages an opportunity of making a representation to an employee in case, the penalty is proposed to be imposed on conviction on a criminal charge. The aforesaid Rule has no application to the facts of the case and therefore, the contention raised in this regard does not deserve acceptance."

Further the court relied on the judgment of the Apex court in the case of 'Union of India and Ors. Vs. Seetharam Mishra and Anr.', (2019) 20 SCC 588, wherein it has been held that acquittal in the course of criminal trial cannot operate ipso facto as a ground for vitiating the finding of misconduct which has been arrived at during the course of disciplinary proceeding. The bench rejected the contention that appellants were acquitted in the criminal case and dismissal was not justified.

Case Title: Vikas Verma & Others v. Union of India & Others.

Case No: WA 5651/2017

Citation: 2022 LiveLaw (Kar) 220

Date of Order: 15th June 2022

Appearance: Advocate P A Kulkarni for appellants; ASG M B Nargund a/w Advocate S Rajashekhar for R1-R5