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2000 DIGILAW 447 (ORI)

RAJENDRA KUMAR BISOI v. UNION OF INDIA (UOI)

2000-09-12

L.MOHAPATRA

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JUDGMENT : L. Mohapatra, J. - The petitioner in this writ application has challenged the order of removal from service pursuant to a disciplinary proceeding as well as the order passed by the appellate authority rejecting the appeal. 2. The petitioner while working as a Constable in the Central industrial Security Force ('CISF' for short) was on duty on 9.11.1995 under opposite party No.3 and was detained for patrolling duty in 'B' shift from 13.00 his to 21.00 hrs. During the duty period at about 20.30 hrs there was an attempt for theft inside the plant premises by 5 to 6 criminals and it was noticed by some Constables on duty. The petitioner as well as one Suresh Kumar fired one round each, as a result of which the criminal fled away except one Gobei Majhi who was caught by the security personnel. On interrogation, the said Gobei Majhi stated that the criminals had been allowed by the petitioner to enter inside the premises by scaling over the wall and in a T.I. parade conduct then and there, the petitioner was identified by said Gobei Majhi. A criminal case was started on the basis of the F.I.R. lodged by Subash Chandra Majumdar, A.S.I. on 10.11.1995 where the petitioner was examined and his statement was recorded by the Police. In the criminal case the petitioner was not made an accused. However, on the basis of the statement of accused Gobei Majhi a preliminary inquiry was conducted on the spot on the very same day and on the basis of the preliminary inquiry the authority decided to start a disciplinary proceeding against the petitioner on the following charges : "Article of charge No. I. No. 88452354 Constable R.K. Bisoi of Smelter Coy, CISF Unit NALCO Angul is charged for gross misconduct and negligence on duty in that No. 88452354 Constable R.K. Bisoi was detailed in 'B' shift on 9.11.95 for patrolling/guarding duty with arms at Orien to Helipad-I. During his duty period at about 20.30 hrs. he deliberately allowed 6 Nos. of criminals to enter inside the Plant premises for committing theft. The above act on the part of No. 88452354 Constable R.K. Bishio amounts to gross misconduct and misuse of official position which is unbecoming a member of the disciplined Force. he deliberately allowed 6 Nos. of criminals to enter inside the Plant premises for committing theft. The above act on the part of No. 88452354 Constable R.K. Bishio amounts to gross misconduct and misuse of official position which is unbecoming a member of the disciplined Force. Article of charge No. II No. 88452354 Constable R.K. Bishio of Smelter Coy, CISF Unit NALCO Angul is charged for gross misconduct, negligence and carelessnes on duty that while ASl/Exe S.C. Masumdar (Patrolling duty officer) and L/Nk N.H. Banua of Crime & Int. section were grappling the criminals for apprehension, No. 88452354 Constable R.K. Bishoi fired one round from his Rifle at the same direction without any justification and ineffectively, thus risking the life of ASI/Exe S.C. Mazumdar (Patrolling duty officer). The above act on the part of No. 88452354 Constable R.K. Bishoi amounts to gross misconduct, negligence and carllousness on duty which is unbecoming a member of the disciplined Force." In reply to the said charges, the petitioner submitted his show-cause stating that the allegtion that he allowed six criminals to enter inside the premises of the factory is false and that when he came to know about entry of six criminals he also fired one round from his rifle and participated with other Constables to nab the criminals. He further staled that there were other Constables on duty and nobody had stated in the preliminary inquiry to have seen the petitioner allowing the criminals to enter inside the premises and only on the basis of the statement of Gobey Majhi, an accused who was drunk at the time of arrest, disciplinary proceeding cannot be initiated. Not being satisfied with the explanation offered by the petitioner, an inquiry was conducted and during the inquiry some Constables and officers of CISF were examined alongwith the said accused Gobei Majhi. The only material collected from the Constable and officers during the departmental proceeding is that the said Gobei Majhi identified the petitioner stating that the criminals were allowed by him to enter inside the premises, whereas Gobei Majhi in his statement stated that he was drunk and out of fear he identified the person sitting before him. The only material collected from the Constable and officers during the departmental proceeding is that the said Gobei Majhi identified the petitioner stating that the criminals were allowed by him to enter inside the premises, whereas Gobei Majhi in his statement stated that he was drunk and out of fear he identified the person sitting before him. The Inquiring Officer accepted the evidence of the Constable and other officers examined during the inquiry so far as it relates to identification of the petitioner by accused Gobei Majhi as well as the statement of Gobei Majhi, but ignored the statement of Gobei Majhi recorded at the time of preliminary inquiry and rejected the statement of the said accused recorded in course of departmental inquiry where he stated that out of fear he identified the petitioner, on the ground that there were other Constables present at the time of identification and the accused could have identified anybody else. The Inquiring Officer having found the petitioner guilty of both the charges, submitted his report on the basis of which the disciplinary authority passed an order of removal from service which was upheld in appeal. 3. The learned counsel appearing for the petitioner submits that the evidence collected during preliminary inquiry cannot be utilised against the petitioner as he had no occasion to cross-examine either the accused Gobei Majhi or other witnesses. The accused Gobei Majhi had specifically stated in course of departmental inquiry that he identified the petitioner out of fear and that he was drunk at that point of time. The same should have been accepted on the background of the fact that the petitioner was also one of the two Constables who fired one round each at the criminals who had entered inside the premises by scaling over the wall. Therefore, only on the basis of the statements recorded during the preliminary inquiry he could not have been found guilty of the charges. 4. The learned counsel for opposite parties submitted that the principles of natural justice have been followed during the departmental proceeding and there is no allegation about non-compliance of the principles of natural justice. On the basis of materials available on record the Inquiring Officer having come to a conclusion finding the petitioner guilty of the charges, this Court in exercise of jurisdiction under Article 226 of the Constitution of India should not disturb the finding of fact. On the basis of materials available on record the Inquiring Officer having come to a conclusion finding the petitioner guilty of the charges, this Court in exercise of jurisdiction under Article 226 of the Constitution of India should not disturb the finding of fact. The learned counsel having raised a question with regard to non-availability of even prima facie materials for establishing the charges, I looked into the evidence connected in course of the departmental proceeding which has been annexed to the writ application. All the official witnesses have stated that after Gobei Majhi was apprehended by the A.S.I, S.C. Mazumdar and Lance Naik N.H. Banua he disclosed involvement of the petitioner who allowed them to enter into the plant premises by scaling over the wall and also indentified him in presence of the officials. The A.S.I., S.C. Mazumdar in his statement has stated that while he, was continuing foot patrolling towards Orien side he could notice 8 to 10 persons carrying aluminium scrap and standing below the perimeter wall at a distance of about 30 yards from him and were trying to scale over the wall along with the aluminium scrap. He immediately blew the whistle and a few of the criminals managed to escape by scaling over the wall without being able to take the aluminium scrap and few of them were coming towards him with iron rods and hooks. Constable Suresh Kumar having heard the whistle came running towards him and shot one round fire from his service rifle. However, the bullet did not hit anyone. Thereafter with a gap of about 40 to 45 seconds the second round of fire was heard which had been aimed at the criminals. At that point of time the petitioner also came running with his rifle and said that he had opened fire from his service rifle. Thereafter all of them joined together to search for the criminals and apprehended Gobei Majhi. The accused Gobei Majhi in his statement has clearly stated that he had entered inside the Smelter Plant unauthorisedly, lifted the aluminium scraps and brought them upto perimeter wall but could not take them out since there were two rounds of fire. His accomplices managed to escape but he was apprehended. Out of fear he identified the person who was sitting before him and he had put his tumb impression in the statement without knowing the meaning thereof. His accomplices managed to escape but he was apprehended. Out of fear he identified the person who was sitting before him and he had put his tumb impression in the statement without knowing the meaning thereof. He further stated that no CISF personnel could see them when they entered. This witnesses has nowhere said that he and his accomplices had been allowed by the petitioner to enter inside the plant premises. He had also clearly stated that he was under influence of liquor and out of fear he identified the person who was sitting before him, that is the petitioner. The Inquiring Officer came to the conclusion that the statement of accused Gobei who was exemined as a defence witness that he had put his thumb impression without knowing the contents of the statement recorded is an after-thought and the statement that he identified the petitioner out of fear cannot be believed as there were other Constables present during the T.I. parade and he could have identified anybody else. Law in well settled that rigours of proof of charges in a departmental proceeding is not same as that of a criminal case and it is not necessary to prove the charge beyond reasonable doubt. But at the same time some acceptable materials should be available to find the delinquent guilty of the charge. The entire evidence of the official witnesses relates to the statement made by Gobei Majhi at the time of preliminary inquiry that the criminals had been allowed by the petitioner to enter inside the premises and that accused Gobei Majhi identified the petitioner at the time of preliminary inquiry. Surprisingly the said Gobei Majhi who had been examined as a defence witness has not stated anything about the petitioner's role in allowing them to enter inside the premises and further he has stated that he was under influence of liquor at that point of time and indentified the petitioner out of fear who was sitting before him. Nothing has been brought out in the cross-examination of the said witness to disbelieve his statement. The Inquiring Officer has also lost sight of the evidence of the A.S.I., S.C. Mazumdar that 40 to 45 seconds after first round of fire the second round of fire came from the rifle of the petitioner who also ran with other officials for apprehending the criminals. The Inquiring Officer has also lost sight of the evidence of the A.S.I., S.C. Mazumdar that 40 to 45 seconds after first round of fire the second round of fire came from the rifle of the petitioner who also ran with other officials for apprehending the criminals. Under such circumstances it is difficult to agree with the findings of the Inquiring Officer that charges levelled against the petitioner have been proved. 5. Now coming to the question with regard to jurisdiction of this Court, reference may be made to the decision reported in Bhagat Ram Vs. State of Himachal Pradesh and Others, where the apex Court has held that if the findings of the disciplinary authority are utterly perverse, the High Court can interfere with the same in a writ jurisdiction. In the present case while accepting the inquiry report the disciplinary authority has also proceeded in the same line as that of the Inquiring Officer and since I have already held that on the existing materials the charges levelled against the petitioner cannot be said to have been proved, the reasonings given by the disciplinary authority also cannot be accepted. 6. I. therefore, allow the writ application, quash Annexure-13. that is, the order of the disciplinary authority removing the petitioner from service, as well as the order passed by the appellate authority rejecting the appeal under Annexure-15. It is directed that the petitioner be reinstated in service with all service benefits. Final Result : Allowed