JAYACHANDRA REDDY, J.

1. In this writ petition the petitioner has challenged the order passed by the Commandant, 11th Battalion CRPF, respondent 4, dismissing the petitioner from service. The petitioner was working a Head Constable in the Central Reserve Police Force ("CRPF" for short) on the relevant date. He joined as a Constable in the year 1963. He was awarded three medals for performing his duty diligently and in the year 1967 he was given an award of Rs. 500 and a special promotion while fighting in Nagaland. He also claims to have been awarded some other such cash awards later. He was promoted as Head Constable later on. In total he has put in 20 years of service. While working as Post Commander of Vijaynagar Post Tirap District, two undertrial prisoners who were Burmese nationals, were handed over on March 29, 1983 till further orders by the Circle Officer to the custody of the CRPF Vijaynagar Post of which the petitioner was the Post Commander. On the intervening night of April 4 and 5, 1983 the two Burmese nationals escaped from the custody. It was alleged that the petitioner was negligent in his duty and that he did not take immediate action to report the matter to the Circle Officer and that he also connived at the escape of the two undertrial prisoners and deliberately dug a tunnel to make it appear that the undertrial prisoners had dug the tunnel and escaped through the same. On the basis of this incident, a charge-sheet was served on August 18, 1983 on the petitioner and an enquiry was conducted. The Deputy Superintendent of Police was the Enquiry Officer and he recorded the statements of some witness who were then posted under the petitioner. That enquiry was cancelled and a fresh enquiry was commenced. Three charges were framed which are referred to as Articles in the report of the Enquiry Officer. These are as under

"Article I

No. 630110316 HC. L. S. Pandey of E Coy 11 Bn. CRPF while functioning as Post Commander of Vijaynagar post in Distt. Tirap (ACP) from March 11, 1983 to June 18, 1983 and while functioning as Guard Commander of the Guard post Vijaynagar post in Distt. Tirap (ACP) on April 5, 1983 committed an offence of remissness in his capacity as a member of the force under Section 11(1) of CRPF Act, 1949 in that he allowed No. 800210049 Ct Md. Shamsher Alam to leave the sentry post at 0430 hrs without arranging proper relief which resulted in the escape of 2 UTPs from the prisoner cell

Article II

That during the aforesaid period while functioning as Post Commander and Guard Commander at Vijaynagar post, the said No. 630110316 HC. L. S. Pandey of E Copy 11 Bn., CRPF committed an offence of neglect of duty in his capacity as a member of the force under Section 11(1) of CRPF Act, 1949 in that he did not take immediate action to report the matter to the Circle Officer of Vijaynagar and sent Crash Message to Bn. Hqrs. when the UTPs were found missing from the UTPs cell at about 0500 hrs on April 5, 1983

Article III

That during the aforesaid period while functioning as Post/Guard Commander of Vijaynagar post Distt. Tirap (ACP) the said No. 630110316 HC. L. S. Pandey of E Copy 11 Bn., CRPF committed an offence of grave misconduct in his capacity as a member of the force under Section 11(1) of CRPF Act, 1949 in that he connived at the escape of two UTPs and deliberately dug the tunnel to make it appear that the UTPs had dug tunnel and escaped through the tunnel. He did not hand over the guard duty roster to next post Commander No. 630040452 HC. B. Lakra thereby destroying the documents to prevent its production as evidence." *

The statements of some of the witnesses were recorded. Thereafter the delinquent's statement also was recorded. The delinquent was again given an opportunity to put forward his plea. He pleaded not guilty and the delinquent was asked to enter his defence by filing a written statement and also produce a list of defence witnesses. He accordingly gave a list of defence witnesses and only one defence witness was examined. The Enquiry Officer submitted the report holding that the delinquent connived at the escape of the two undertrial prisoners and then deliberately dug the tunnel to make it appear that the undertrial prisoners dug the same and escaped and he accordingly recommended that the disciplinary proceedings should be initiated against the petitioner as well as against another Constable Mohd. Shamsher Alam. On the basis of this report a dismissal order was passed against the petitioner on June 30, 1984. The petitioner preferred an appeal under Section 28 of the CRPF Rules to the Deputy Inspector General of Police, CRPF, the appellate authority, but the same was dismissed on October 23, 1984. A further revision filed by him to the Inspector General of Police, CRPF was also dismissed on May 2, 1986. During all these enquiries the plea of the petitioner had been that on March 29, 1983, the two undertrial prisoners were entrusted late in the evening and he was not given full strength of 40 Constables and that there were only 11 Constables and it was dark and raining heavily and that neither torches nor candlesticks nor kerosene oil were available. There were also no locks and stationery and there were no proper arrangements of the building where the two undertrial prisoners could be kept in custody and he also sent a message that more persons should be deputed but no steps were taken. With regard to the enquiry, his grievance has been that suddenly area of enquiry was shifted from Khonsa to Longding 50 kms. away and that all the defence witnesses cited by him were not examined. He has also stated that the first enquiry was dropped and he was exonerated and on the whole the enquiry was not fair and not according to the Rules and that the entire proceedings were mala fide inasmuch as the first enquiry officer dropped the enquiry and exonerated the petitioner from all charges. In this writ petition also the same submissions are put forward

2. In the counter-affidavit filed on behalf of the respondents, it is stated that full opportunity was given to the petitioner during the departmental enquiry and that venue of enquiry was shifted from Khonsa to Longding only to avoid unnecessary delay in the enquiry and that the petitioner never objected to the shifting of the place of enquiry. It is also submitted that the petitioner was given full opportunity to produce the defence witnesses and notices were also served on them but they did not appear. Regarding the first enquiry it is stated that the same was not completed by the Enquiry Officer. Therefore a fresh enquiry was ordered and that it cannot be said that by cancellation of the first enquiry the petitioner was exonerated. It is further submitted that the petitioner was given full opportunity and that he duly participated in the enquiry and no prejudice whatsoever was caused

3. On a careful examination of the affidavit and the counter-affidavit and the allegations as well as denials, we are of the opinion that there are a number of disputed questions of fact. The learned counsel for the petitioner, however, submitted that under Article 32 even disputed questions of fact can be gone into by this Court. He relied on a judgment of this Court in Kavalappara Kottarathil Kochunni Moopil Nayar v. State of Madras 1959 (S2) SCR 316 : 1959 AIR(SC) 725), wherein it is observed that : (SCR pp. 335-36)

"Clause (2) of Article 32 confers power on this Court to issue directions or orders or writs of various kinds referred to therein. This Court may say that any particular writ asked for is or is not appropriate or it may say that the petitioner has not established any fundamental right or any breach thereof and accordingly dismiss the petition. In both cases this Court decides the petition on merits. But we do not countenance the proposition that, on an application under Article 32, this Court may decline to entertain the same on the simple ground that it involves the determination of disputed questions of fact or on any other ground. If we were to accede to the aforesaid contention of learned counsel, we would be failing in our duty as the custodian and protector of the fundamental rights. We are not unmindful of the fact that the view that this Court is bound to entertain a petition under Article 32 and to decide the same on merits may encourage litigants to file many petitions under Article 32 instead of proceeding by way of a suit. But that consideration cannot, by itself, be a cogent reason for denying the fundamental right of a person to approach this Court for the enforcement of his fundamental right which may, prima facie, appear to have been infringed. Further, questions of fact can and very often are dealt with on affidavits." *

In support of the same proposition, the learned counsel for the petitioner also relied on the decision of this Court in Ujjam Bai v. State of U.P. ( 1963 (1) SCR 778 [LQ/SC/1961/230] : 1962 AIR(SC) 1621)

4. Having carefully examined the entire records and the submissions made, we do not think that it is necessary to examine the scope of Article 32 in this case. Since the petitioner who has been in service for 20 years has been dismissed, we thought fit even to examine the various statements of the witnesses examined and their statements clearly establish the charges framed against the petitioner. That apart undisputedly the two Burmese nationals were entrusted to the custody of the petitioner and they escaped and the responsibility entirely lies with the petitioner who was the Post Commander of Vijaynagar Post. No doubt, he pleaded that the arrangements were inadequate and the two undertrial prisoners took advantage, dug a tunnel through which they managed to escape. The Dy. Superintendent of Police who visited the premises inspected the same and made a report and in the said report he clearly observed that there was certainly some negligence on the part of CRPF men for not noticing the activities of the undertrial prisoners and therefore an enquiry was necessary. In the enquiry report the statements of the witnesses namely the Constables who were on duty are referred to in detail and it is held that the petitioner was the Guard Commander till April 5, 1983. The Enquiry Officer has also referred to the records in this regard and on the basis of the oral and documentary evidence, he concluded that the petitioner committed an offence of neglect of duty and that he did not take immediate action to report the matter to the Circle Officer. What is more the statements of PWs 1, 3, 4, 5, 6, 8 and 9 go to show that there was no tunnel at all when they reached the spot on hearing the alarm. In view of these clear statements made by the Constables who were on duty along with the petitioner when the two Burmese nationals escaped, the Enquiry Officer was justified in recommending disciplinary action. Under these circumstances, we see no force in the submission that the enquiry was not properly conducted and that prejudice was caused to the petitioner

5. After having perused all the records carefully, we are unable to find any clinching circumstances on the basis of which it can be said that the petitioner was not negligent in discharge of his duties and that he did not any act of misconduct. On the other hand we find that the statements of PWs 1, 3, 4, 5, 6, 8 and 9 coupled with that of PW 2 falsify the plea of the petitioner that the undertrial prisoners themselves dug the tunnel and managed to escape

6. As already mentioned the learned counsel also submitted that the enquiry is vitiated inasmuch as proper opportunity was not given to the petitioner as all the defence witnesses were not examined and that place of hearing was shifted because of which the witnesses could not be produced and that the cancellation of the first enquiry amounted to exoneration. Therefore, according to the learned counsel for the petitioner, the impugned order of dismissal should be quashed as there is a clear violation of his fundamental rights guaranteed under Articles 14 and 16 of the Constitution of India. In this context he relied on decisions of this Court in Tata Oil Mills Co. Ltd. v. Workmen ( 1964 (7) SCR 555 [LQ/SC/1964/114] : 1965 AIR(SC) 155 : 1964 (2) LLJ 113 [LQ/SC/1964/114] ), State of U.P. v. Om Prakash Gupta ( 1969 (3) SCC 775 [LQ/SC/1969/449] ), State of Bank of India v. R. K. Jain ( 1972 (4) SCC 304 [LQ/SC/1971/495] : 1972 (1) SCR 755 [LQ/SC/1971/495] ), and State of A. P. v. Chitra Venkata Rao ( 1975 (2) SCC 557 [LQ/SC/1975/315] : 1975 SCC(L&S) 349 : 1976 (1) SCR 521 [LQ/SC/1975/315] ]. In all these cases it is laid down that such enquires must be conducted in accordance with the principles of natural justice and that a reasonable opportunity to deny the guilt and to cross-examine the witnesses produced and examined, should be given and that the enquiry should be consistent with the rules of natural justice and in conformity with the statutory rules prescribing the mode of enquiry. We have already referred to the details of enquiry conducted in the instant case and we are unable to say that there was any violation of principles of natural justice. It is, however, urged that in these matters merely following the rules in the procedure established is not enough, but the principles of natural justice must also necessarily be followed. What this Court in a number of cases has observed is that what particular rule of natural justice should apply to a given case depends to a great extent on the facts and circumstances of the case. Reliance has also been placed on some of the decisions of this Court. In A. K. Kraipak v. Union of India ( 1969 (2) SCC 262 [LQ/SC/1969/201] ), it is pointed out that : (SCC pp. 272-73, para 20)

"The aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words they do not supplant the law of the land but supplement it ..... What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the framework of the law under which the enquiry is held and the constitution of the Tribunal or body of persons appointed for that purpose. Whenever a complaint is made before a court that some principle of natural justice had been contravened the court has to decide whether the observance of that rule was necessary for a just decision on the facts of that case." *

In Capt. Harish Uppal v. Union of India ( 1973 (3) SCC 319 [LQ/SC/1972/563] : 1973 SCC(Cri) 268 ) the contention was that before confirming the sentence by the court-martial under the Army Act, an opportunity should have been given to the delinquent officer. In respect of this contention it is observed that : (SCC p. 327, para 8)

"to insist that the confirming authority should give a hearing to the petitioner before it confirmed the sentence passed by the court-martial is a contention which cannot be accepted. To accept this contention would mean that all the procedure laid down by the Code of Criminal Procedure should be adopted in respect of the court-martial, a contention which cannot be accepted in the fact of the very clear indications in the Constitution that the provisions which are applicable to all the civil cases are not applicable to cases of Armed personnel." *

As observed in Khem Chand v. Union of India 1958 SCR 1081 : 1958 AIR(SC) 300 : 1958 (1) LLJ 167), to which there is a reference in some of the decisions cited above all that the courts have to see is whether there was non-observance of any of those principles in a given case and whether the same has resulted in defeating the course of justice and that what principles of natural justice should be applied in a given case depends on the facts and circumstances of that case (vide State of U.P. v. Om Prakash Gupta ( 1969 (3) SCC 775 [LQ/SC/1969/449] )). In our view even applying all these principles the petitioner has failed to prove that the enquiry is vitiated in any manner

7. The last submission of the learned counsel is that the punishment of dismissal is wholly disproportionate to the alleged act of misconduct. We are unable to go to the extent of holding that the punishment by way of dismissal is arbitrarily awarded. But there are certain mitigating circumstances. The petitioner joined as a Constable in the year 1963 and he was awarded medals for performing his duties diligently. He has put in 20 years of service and no act of negligence or misconduct is attributed to him at any time before during this long service. Under these circumstances if the petitioner makes any representation the concerned authority may consider the question of awarding a lesser sentence. With the above observations the writ petition is dismissed.