HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU SWP No. 1506/2003 Pronounced on:09.05.2025 Bansi Lal …. Petitioner/Appellant(s) Through:- Mr. R. Koul, Advocate. V/s Union of India and others …..Respondent(s) Through:- Mr. Harshwardhan Gupta, CGSC. CORAM: HON’BLE MRS. JUSTICE SINDHU SHARMA, JUDGE JUDGMENT 01. The petitioner was appointed as a Cook in the Central Reserved Police Force (CRPF) on 05.01.1991. At the time of his appointment as Cook, his date of birth was recorded in the recruiting roll as 01.01.1972, however, subsequently it came to light that the petitioner‟s actual date of birth is 08.07.1973. When this fact was brought to light, the respondents initiated the departmental enquiry against the petitioner, which culminated in his removal from service. The petitioner has assailed the memorandum dated 02.06.2001 as well as consequential order of removal from service dated 16.12.2002 passed by the respondents. 02. Briefly stated, the facts of the case are that, the petitioner was appointed as a Cook in 107 CRPF Btn on 05.01.1991. At the time of his recruitment, his date of birth WP(C) No. 1506/2003 was recorded in recruitment roll as 01.01.1972, however, his actual date of birth as per school leaving certificate dated 08.07.1973. The respondents were of the opinion that the petitioner had misled the authorities at the time of his first appointment, as he was not eligible to be appointed as Cook and, as such, IG CRPF vide letter dated 04.04.2001 directed the DIG CRPF to conduct the departmental enquiry against the petitioner. The respondents framed article of charge which was served to the petitioner vide office memorandum dated 02.06.2001. The Enquiry Officer was appointed to conduct the departmental enquiry against the petitioner. The charges leveled against the petitioner were proved and as a result, the petitioner was removed from service with effect from 31.01.2002 vide order dated 31.01.2002. 03. The petitioner, being aggrieved of the order of removal of service dated 31.01.2002, preferred an appeal against the same on 19.02.2002 to the DIGP CRPF Jamshedpur. The Appellate Authority after considering the appeal of the petitioner quashed the order of removal vide order dated 05.08.2002, however, while quashing the enquiry, it was ordered that de novo enquiry should be started from the stage of examination of the prosecution witnesses. The petitioner was re-instated into service. Consequent upon his reinstatement, the petitioner reported WP(C) No. 1506/2003 to his unit on 01.09.2002 and was taken on the strength of his unit from the date, he joined. 04. The de novo enquiry was conducted against the petitioner vide office order dated 14.09.2002. The Enquiry Officer submitted the departmental proceedings on 20.10.2002 and as per the report, the charges framed against the petitioner were proved and the petitioner was imposed with the punishment of removal from service with effect from 16.12.2002. 05. Aggrieved of the order of removal, the petitioner filed an appeal before the DIGP CRPF Jamshedpur (Appellate Authority) who rejected the same vide order dated 03.04.2003 being devoid of any merit. 06. The petitioner is aggrieved of his order of removal on the ground that the entry of his date of birth as 01.01.1972, at the time of recruitment in the recruitment roll cannot be attributed to him. The charge against the petitioner is that he secured appointment as a Cook in the CRPF by concealing his actual date of birth, i.e., 08.07.1973, and instead declaring 01.01.1972 as his date of birth in order to become eligible for recruitment. It is, however, submitted that his actual date of birth, i.e., 08.07.1973, was duly reflected in his birth certificate, which had already been furnished by the petitioner to the respondents and was also recorded in the character and WP(C) No. 1506/2003 service roll. The respondents have not disputed that the school leaving certificate provided by the petitioner reflected his date of birth as 08.07.1973 and this certificate was provided by him along with his character certificate as well as service roll. They, however, submitted that the date of birth of the petitioner was recorded by him at the time of his enrollment and not by the officials of the respondents present at the Recruitment Centre. 07. The contention of the petitioner is that the officer, who prepared the recruitment roll was never examined nor it was enquired in any manner whether the recruitment roll was filled up by the petitioner or by the respondents. It is further submitted that the disciplinary authority has passed the order of punishment against the petitioner in terms of Section 11(I) of the CRPF Act, 1949. In terms of Section 2(d) of the said Act, a person becomes a member of the Force only upon being appointed thereto by the Commandant and only a member of the Force, person can be proceeded for any act of misconduct or lapse committed in the discharge of his duty. The respondents have proceeded against the petitioner for an act done by him prior to his enrollment as a member of the Force, for which, no action can be taken against him, the same, as such, is required to be set aside. This apart, while passing impugned order, the disciplinary authority has WP(C) No. 1506/2003 ordered removal of the petitioner from the service, such punishment could be inflicted upon the petitioner only by exercising powers under Section 11 (I) of the CRPF Act and under Section 11(I of the Act, the only punishment provided is reduction in rank, fine of any amount, confinement in the quarter guard or removal from any office or distinction or special emoluments in the Force. The removal of the service is not one of the punishment imposed under Section 11(I) of the CRPF Act, thus, the order is without any jurisdiction. 08. It is further submitted that the petitioner has rendered more than 11 years of service with the respondents and for a lapse on the part of Recruiting Officer at the time of preparation of the recruitment roll, the petitioner has been made to pay by removing him from service. It is submitted that even if for the sake of arguments, the charges are proved, the punishment awarded to the petitioner is disproportionate to the alleged charges and acts against the petitioner very harshly since he has spent 11 years of his life and working as a Cook with the respondents without any complaint. The petitioner was not provided with a reasonable and proper opportunity to defend himself in terms of Rule-27 of the CRPF Rules. The respondents have not considered the specific denial by the petitioner that he has no role to play in preparation of the recruitment roll at the time of recruitment WP(C) No. 1506/2003 and the relevant birth certificate was given by him. The findings arrived by the Enquiry Officer are on the basis of a pre-concluded decision, therefore, are liable to be set aside. 09. The respondents, on being put to notice, filed their objections and opposed the contention of the petitioner on the ground that the petitioner had not submitted any testimonial with regard to his age and educational qualification at the time of his appointment in the Force on 05.01.1991. It is also submitted that at the time of recruitment for the post of Cook, the petitioner could not be below 18 years of age as per the Recruitment Rules of the CRPF. The particulars of the petitioner including his name, address, date of birth, educational qualification were taken in the recruitment roll on the basis of information given by the petitioner at the time of his recruitment. It was only on the wrong information given by the petitioner that his date of birth was entered as „01.01.1972‟ and educational qualification as „Nil‟. 10. The respondents submit that the IGP CRPF vide his letter dated 04.04.2001 addressed to the DIGP CRPF, Jamshedpur directed to conduct a departmental inquiry against the said Cook in terms of Govt. of India Ministry of Personnel PG & Pension Letter No. dated 19.05.1993. Accordingly, the articles of charges were served to the petitioner. Enquiry Officer was appointed to conduct the WP(C) No. 1506/2003 departmental inquiry against the petitioner and the charges leveled against him were proved, as a result whereof, he was removed from services 31.01.2002. He further submits that before passing of these orders, the petitioner was given an opportunity to substantiate his case by adducing evidence to prove the fact his date of birth is 01.01.1972 but he failed to do so. The petitioner aggrieved of the order of removal of service awarded to him preferred an appeal, the order of removal of service was quashed vide order dated 05.03.2002 and de novo enquiry was conducted and punishment was imposed and the petitioner was removed from service. The petitioner again filed the appeal but the same was rejected on 03.04.2003. 11. The respondents have denied the contention that the petitioner had submitted his testimonial at the time of recruitment. It is submitted that had the petitioner submitted his testimonial at the time of recruitment, the same would have been reflected in the recruitment roll, wherein his educational qualification would have been recorded as Class- 8th and his date of birth as 08.07.1973, as such, the petitioner had committed an act of grave misconduct as a member of the Force and was found guilty for an offence under Section 11 (I) of the CRPF Act read with Rule-27 of the CRPF Rules and Government of India memorandum dated WP(C) No. 1506/2003 19.05.1993. Consequently, the charges were framed against him and upon being found guilty in the departmental proceedings, he was removed from the service. 12. Heard learned counsel for the parties and perused the record. 13. The Enquiry Officer had framed only one article of charge against the petitioner, that is, at the time of appointment as a Cook in 107 Btn CRPF on 05.01.1991 and at the time of filling up his recruitment roll which is available on his character and service roll, his date of birth was recorded as 01.01.1972 evidently to become eligible to be recruited as Cook as against his actual date of birth which is 08.07.1973 as per the school certificate available in his character and service roll. The petitioner, according to them, had concealed his actual date of birth to avoid to becoming ineligible as he was under age as on 05.01.1991 i.e., the date of his appointment. He managed his appointment in CRPF as Cook w.e.f. 05.01.1991, as such, committed an act of grave misconduct as a member of the Force which is punishable under Section 11(I) of the CRPF Act read with Rule-27 of the CRPF Rules, 1955. The charges framed against the petitioner reads as under:- Article-I That No. 913070163 Cook Bansi Lal was appointed as cook in 107 Bn, CRPF, on 5/01/1991. At the time of filling up his recruitment roll which is available in his Character and Service roll WP(C) No. 1506/2003 his DOB was recorded as 1/1/1972 evidently to become eligible to be recruited as cook in CRPF as against his actual DOB of 08/07/73 as per his school certificate available in his Character and Service Roll. Thus he concealed the facts of his actual DOB to avoid being an Under-age as on 5/1/1991 i.e. the date of his appointment and he managed his appointment in CRPF as cook w.e.f 5/l/1991. Thus he committed an act of grave misconduct as a member of the force which is punishable u/s 11(1) of CRPF Act, 1949 read with Rule 27 of CRPF Rules, 1955. 14. From the reading of the charges, it is clear that the allegation is that in order to become eligible, the petitioner had concealed his actual date of birth to become eligible for appointment as Cook which is a misconduct as per the CRPF Act or Rules. The respondents while allowing the appeal against the order of the Commandant dated 31.01.2002, the appellate authority accepted the appeal on the ground that the Enquiry Officer had completed the departmental enquiry proceedings without recording the statement of prosecution witnesses. The Enquiry Officer had also not brought any facts of the case regarding date of birth to whom, when and where the mistake at date of birth recorded and when the verification of roll occurred. The petitioner was reinstated and de novo enquiry was directed from the stage of prosecution witnesses. 15. The Enquiry Officer observed that the Recruitment Roll (CRPF Form-I) was filled on 05.01.1991 based solely on the particulars furnished by the delinquent himself, as according to them, it is evident that no person could have been aware of his personal details unless disclosed by him. The petitioner being educated upto 9th standard was not WP(C) No. 1506/2003 illiterate and was presumed to have had sufficient understanding to provide accurate information, therefore, it has been rightly concluded that on 05.01.1991, the petitioner had deliberately declared his educational qualification as „Nil‟ and date of birth as „01.01.1972‟ thereby suppressing his actual date of birth which is 08.07.1973 with intention to make himself eligible for recruitment in the CRPF. To conceal his real date of birth, the petitioner did not submit his school leaving certificate and instead declared his date of birth as 01.01.1972. 16. The plea of the petitioner that he was unaware of what was written in the recruitment roll and that he had merely signed the documents without knowledge of their contents was not accepted as true. It was held that the petitioner was not an illiterate person and that he understood the contents of the documents before signing them. The respondents, in exercise of powers vested in them under Section 11(1) of the CRPF Act, read with Rule 27 of the CRPF Rules, removed the petitioner from service with effect from 16.12.2002. 17. Per contra, the petitioner has categorically denied that he had filled up the Recruitment Roll Form himself and has asserted that he had provided the correct information including the testimonial such as date of birth certificate and other testimonial. This gains credence from the fact that the WP(C) No. 1506/2003 disciplinary authority did not go into these facts and failed to examine the person, who actually had filled up the Recruitment Roll Form, but relied on the thumb impression of the petitioner on the Recruitment Roll Form, without considering who filled up the recruitment roll which was evidently not filled by the petitioner and examined when the verification took place. It is also not clear that why the verification of the petitioner‟s antecedents was undertaken after a period of nearly ten years. 18. The impugned order has also been assailed on the ground that the petitioner has been accused of concealing his actual Date of Birth i.e., 08.07.1973, which was reflected in his Date of Birth Certificate provided to the respondents and instead the petitioner is alleged to have declared 01/01/1972 as his actual Date of Birth in order to procure appointment. It was not in dispute that the School Leaving Certificate provided by the petitioner discloses his actual date of birth as 08.07.1973 and no insertion was made therein. It was also not disputed that this certificate was provided to them which was available in his character as well as Service Roll. Therefore, in absence of the evidence regarding what circumstances, the Date of Birth as 01.01.1972 came to be recorded, could not be attributed to the petitioner as no WP(C) No. 1506/2003 document showing this date was ever produced by the petitioner. 19. The Disciplinary Authority and Enquiry Officer have placed reliance on the recruitment roll prepared by the officials of respondents themselves. The contention of the petitioner that he did not fill up the form himself has force as the form has been filled up by someone at the time of recruitment, however, the petitioner has signed the same stating that he has understood what has been stated. The relevant documents at the time of recruitment, omission, if any, could not be considered as detrimental to the service career of the petitioner, that too, so severely, as such, a document cannot be prepared. 20. The petitioner submits that he had provided his School Leaving Certificate, which recorded his date of birth as 08.07.1973, and the same was available in his character and service roll but the respondents chose to ignore this document. While the Recruitment Roll records the date of birth of the petitioner as 01.01.1972, in another form prepared under Rule 14(B), the age of the petitioner was recorded as 07.08.1973, and the same date is also reflected in the nominal roll and his school records. Despite having knowledge of this discrepancy and the supporting documents WP(C) No. 1506/2003 reflecting the correct date of birth, the respondents did not take any action in the matter for more than ten years. 21. In terms of CRPF Act 1949 under section 2(d), a person becomes the member of the force on his being appointed thereto by the Commandant. Similarly, a punishment in terms of Section 11 (1) of the said Act, can be passed against a member of the force for his misconduct or remissness in the discharge of his duty as member to the said force. It is submitted that act of wrongly recording date of birth has been committed by the petitioner before she was a member of force since the alleged concealment of actual Date of Birth pertained to the period prior to his appointment with the force, therefore, the aforesaid provision could not be invoked in case of the petitioner. The Disciplinary Authority while passing the order impugned, has ordered removal of petitioner from service and such punishment could not be inflicted upon the petitioner while exercising powers under section 11(1) of CRPF Act. This submission of the petitioner is without any merit as the fact that he had obtained employment by concealment to the knowledge after he was appointed. 22. In their para-wise comments to the appeal against the order of removal dated 31st January, 2002, passed pursuant to the first enquiry, the respondents have admitted WP(C) No. 1506/2003 that the Recruitment Roll was not filled up by the petitioner. The fault for recording the incorrect date of birth at the time of enrolment cannot be attributed to the petitioner, as the recruiting officer is now no more there, therefore, at the most, there is nothing on record to show that the petitioner has deliberately and wrongly recorded his date of birth in the recruitment roll to obtain the employment. 23. There is no evidence oral or documentary to show that the document is tampered in any manner. It is also not disputed that the petitioner had submitted certificate regarding his correct date of birth. The entry in the roll is not recorded in the hand of the petitioner and the person, who has filled the form, has not been examined. Thus, the factum of an inadvertent error at that time be lost sight of. 24. There is not even a whisper to show why the entire verification has taken a period of 11 years. In the exercise of its writ jurisdiction, this Court can interfere with the quantum of punishment in an appropriate case after considering the totality of the facts and circumstances of the case such as nature of charges leveled against the employee, its gravity, seriousness, whether proved and, if so, to what extent, entire service record, work done in the past, remaining tenure of the delinquent left. WP(C) No. 1506/2003 25. The scope of judicial review in departmental proceedings is well settled. The Courts do not act as a Court of appeal against the order of disciplinary authority. The disciplinary authority has regarded as the sole judge of facts if the enquiry is properly conducted. The Courts do not go into adequacy of reliability of evidence in support of particular finding by the Enquiry Officer. The only question which the Courts considered is whether or not the finding of fact recorded by the Enquiry Officer is supported by any probative evidence. If there is no evidence at all to support the finding, the Courts may interfere by applying the 'no evidence' rule and quash such a finding. In Union of India & ors. vs. Ram Lakhan Sharma reported as (2018) 7 SCC 8620, it has been held by the Hon‟ble Supreme Court that „it is also settled law that an Inquiring Authority is entitled to put questions to the witnesses for clarification wherever it becomes necessary and so long the delinquent employee is permitted to cross-examine the witnesses after the Inquiring Authority questions the witnesses, the inquiry proceedings cannot be impeached as unfair’. 26. The Hon‟ble Supreme Court of India in United Bank of India Vs. Biswanath Bhattacharjee reported as (2022) 13 SCC 329, has held as under: 21. The bank is correct, when it contends that an appellate review of the materials and findings cannot ordinarily be WP(C) No. 1506/2003 undertaken, in proceedings under Article 226 of the Constitution. Yet, from H.C. Goel onwards, this court has consistently ruled that where the findings of the disciplinary authority are not based on evidence, or based on a consideration of irrelevant material, or ignoring relevant material, are mala fide, or where the findings are perverse or such that they could not have been rendered by any reasonable person placed in like circumstances, the remedies under Article 226 of the Constitution are available, and intervention, warranted. For any court to ascertain if any findings were beyond the record (i.e., no evidence) or based on any irrelevant or extraneous factors, or by ignoring material evidence, necessarily some amount of scrutiny is necessary. A finding of “no evidence” or perversity, cannot be rendered sans such basic scrutiny of the materials, and the findings of the disciplinary authority. However, the margin of appreciation of the court under Article 226 of the Constitution would be different; it is not appellate in character. 27. In Union of India vs. Sunil Kumar reported as 2023 Live Law Supreme Court, the Hon‟ble Supreme Court has held that even where the punishment is found to be disproportionate to the misconduct proved, the matter must be remitted to the Disciplinary Authority for imposition of appropriate penalty, as the same falls within its exclusive domain. 28. The question which is to be considered is whether the punishment inflicted on the petitioner is arbitrary on the principle of proportionality. The doctrine of proportionality is now well-recognized as a ground for judicial review in administrative action. In „Ranjit Thakur vs. Union of India‟, AIR 1987 SC 2386, the case of a delinquent officer who was WP(C) No. 1506/2003 subjected to Court Martial proceedings and sentenced to imprisonment for disobeying a lawful command was examined by the Hon‟ble Supreme Court. The relevant portion of the said judgment is reproduced as under: “...The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the Court- Martial, if the decision of the Court even as to sentence is an outrageous defiance of B logic, then the sentence would not be immune from correction. Irrationality and perversity are recognized grounds of judicial review.” 29. In ‘Bhagat Ram vs. State of Himachal Pradesh and others’, AIR 1983 SC 454, the Hon‟ble Apex Court has that the penalty imposed must be proportionate to the gravity of the misconduct. It was observed as under: “...It is equally true that the penalty imposed must be commensurate with the gravity of the misconduct, and that any penalty disproportionate to the gravity of the misconduct would be violative of Article 14 of the Constitution‟. 30. Applying the above principles to the present case, it is evident that the punishment imposed on the petitioner is arbitrary and excessive, as the petitioner had not filled up the Recruitment Roll himself and the relevant testimonials were duly provided to the respondents at the time of recruitment. Despite this, the person who actually filled up the Recruitment Roll was not examined. The respondents took ten years to take action against the petitioner. WP(C) No. 1506/2003 31. The petitioner was appointed as a Cook and had rendered ten years of service. No other departmental enquiry or adverse material has been brought on record against him. The Disciplinary Authority failed to take into account the aforementioned facts and circumstances before imposing the punishment of removal from service. 32. In view of the aforesaid facts and circumstances, this petition is allowed. Consequently, the impugned orders passed by the Disciplinary Authority and the Appellate Authority are set aside. The petitioner shall stand reinstated into service and the intervening period shall be regularized in accordance with law. The matter is remitted back to the respondents-department for reconsideration of the quantum of punishment for imposition of a lesser penalty, strictly in accordance with law. (Sindhu Sharma) Judge Jammu: 09.05.2025 Ram Murti/PS Ram Murti 2025.07.29 18:47 I am the author of this document