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2003 DIGILAW 1626 (ALL)

Constable R. Velapandi v. Union of India

2003-07-22

TARUN CHATTERJEE, VINEET SARAN

body2003
JUDGMENT : Vineet Saran, J. This is an appeal against the judgment dated 6.5.1998 passed by a learned single Judge of this Court in Civil Misc. Writ Petition No. 33015 of 1993. 2. The brief facts giving rise to the present appeal relevant for the adjudication of this case are as follows: The Petitioner-Appellant was appointed as a Constable in Central Reserve Police Force (hereinafter referred to as C.R.P.F.) in the year 1985. On 14.6.1988 when he was posted at Rampur (U.P.), it is alleged that the Petitioner-Appellant went to take a bath at Third Signal Barrack at Rampur and when he entered the bathroom complex, he found that all the three bath-rooms were occupied. Thereafter two other constables also reached the bathroom complex for taking a bath. When one bathroom was vacated, the Petitioner-Appellant as well as constable Munshi Ram both wanted to use the said bathroom first. Arguments between the two started and altercations also took place between the Petitioner-Appellant and constable Munshi Ram. The Petitioner-Appellant then went back to his vehicle and returned to the bathroom complex with his loaded rifle. As soon as Munshi Ram came out of the bathroom, the Petitioner-Appellant opened fire on him. On hearing the firing of shots, when the other two occupants of the remaining bathrooms came out, the Petitioner-Appellant fired at them also. As a result of the injuries from firing, the said Munshi Ram expired and another constable Vazir Singh got injured. The Petitioner-Appellant fired five rounds from his S.L.R. rifle after which the magazine got stuck, resulting in the stoppage of firing. Realising that his rifle was not firing further, the Petitioner-Appellant returned to his vehicle with his rifle. 3. In the disciplinary proceedings initiated against the Petitioner-Appellant, two charges were framed which are as follows: Article I. That No. 850862378 Ct. R. Velapandi while functioning in R/86 Bn. C.R.P.F., committed an act of misconduct, neglect of duty, disobedience of orders and remissness in the discharge of his duties in his capacity as a member of the Force, u/s 11(1) of C.R.P.F., 1949 in that he while detailed in the party for the collection of Ammunitions from C.W.S., C.R.P.F. Act, Rampur (U.P.), left the place of duty at about 0500 hrs on 14.6.1988 on reaching at destination without permission of Guard Commander and went to the toilet bathroom in barrack No. 5 of 3rd Signal Bn., C.R.P.F., Rampur. Article II. That during the aforesaid period and while functioning in the aforesaid capacity the said No. 850862378 Ct. R. Velapandi was guilty of misconduct, neglect of duty, disobedience of orders and remissness in the discharge of his duty in his capacity as a member of the Force u/s 11(1) of C.R.P.F. Act, 1949 in that he after having gone to toilet/bathroom of 3rd Signal Bn. C.R.P.F., Rampur (U.P.) fired with his weapon on signal Bn personnel in the bathrooms at about 0515 hrs on 14.6.1988 resulting death of NK (RO) Munshi Ram and bullet injury to Ct. Vazir Singh. 4. A criminal prosecution was also initiated against the Petitioner-Appellant with regard to the said incident as in the said firing constable Munshi Ram received fatal injuries and constable Vazir Singh received bullet injuries. Since the Sessions Trial No. 252 of 1988 arising out of the aforesaid incident was pending against the Petitioner-Appellant, the disciplinary authority had decided to process only the charges other than the charges framed in the Court. Thus, the charges of Article 1 alone were examined by the Enquiry Officer. The Enquiry Officer found that the Petitioner was guilty of charges mentioned in Article 1. The disciplinary authority accepted the report of the Enquiry Officer and vide order dated 7.5.1990 dismissed the Petitioner-Appellant from service. The appeal of the Petitioner-Appellant as well as the revision and second revision were also dismissed on 25.9.1990, October 1992 and 24.5.1993 respectively. Hence the Petitioner-Appellant filed Civil Misc. Writ Petition No. 33015 of 1993 challenging the said orders. 5. The learned single Judge found that in the enquiry report the Petitioner-Appellant was found guilty of charges of Article 1. The same having been affirmed by the disciplinary authority as well as appellate and revisional authorities, the writ court did not find any merit to interfere with the orders of the departmental authorities. The writ court also held that the authorities were well within their jurisdiction to impose the punishment of dismissal from service u/s 11 of the Central Reserve Police Force Act, 1949 (hereinafter referred to as the Act) and the rules framed under the Act. 6. The writ court also held that the authorities were well within their jurisdiction to impose the punishment of dismissal from service u/s 11 of the Central Reserve Police Force Act, 1949 (hereinafter referred to as the Act) and the rules framed under the Act. 6. We have heard Sri P.N. Saxena, learned senior counsel appearing on behalf of the Petitioner-Appellant, as well as Sri Subodh Kumar, learned additional standing counsel, appearing on behalf of the Respondents ; and also perused the materials on record including the impugned judgment of the writ court as well as the orders of the departmental authorities. 7. It has been submitted by Sri P.N. Saxena that Section 11 of the Act deals with 'Minor Punishments' alone and thus the punishment of dismissal from service could not have been imposed. It was also submitted that without there being any evidence to show that the Petitioner-Appellant was guilty of negligence of duty, as no duty was assigned to him when he had gone to take a bath in the bathroom complex, the departmental authorities have wrongly punished the Petitioner-Appellant holding him guilty of charges of Article 1. It was lastly submitted that even if it is found that the Petitioner-Appellant was guilty of charges of Article 1, the punishment of dismissal from service was very harsh and also totally disproportionate to the offence/charge for which the Petitioner-Appellant was found guilty. 8. Sri Subodh Kumar, learned Counsel appearing on behalf of the Respondents, submitted that the Petitioner-Appellant was a constable in a disciplined force and any misconduct or indiscipline committed by him amounts to a grave offence ; and in case if the same is condoned, it would not be possible to maintain discipline in the force and thus the punishment awarded against the Petitioner-Appellant is fully justified which is also within the powers of the disciplinary authority by virtue of Section 11 of the Act itself which provides for removal from any office also as a mode of punishment. 9. Having heard learned Counsel for the parties and on perusal of record, we are not inclined to interfere with the findings of fact arrived at by the Enquiry Officer and confirmed by the disciplinary authority as well as the appellate and revisional authorities, with regard to the charges of Article 1, for which the Petitioner has been held guilty. 9. Having heard learned Counsel for the parties and on perusal of record, we are not inclined to interfere with the findings of fact arrived at by the Enquiry Officer and confirmed by the disciplinary authority as well as the appellate and revisional authorities, with regard to the charges of Article 1, for which the Petitioner has been held guilty. However, we are of the opinion that the quantum of punishment awarded does need reconsideration. 10. Although the heading of Section 11 of the Act reads as 'Minor Punishments' but on a perusal of the said section it is clear that the punishments which can be awarded are reduction in rank ; imposition of fine, confinement to quarter ; confinement in quarter-guard and also removal from any office. Thus, from a reading of the said section, we are of the view that the competent authority did have the power under the said provision to award the punishment of dismissal from service. Similar view has been taken by a Division Bench of this Court in Special Appeal No. 201 of 1993 D.I.G., C.R.P.F. v. Munna Singh Yadav, where it has been held that the power of passing order of dismissal is there with the authorities u/s 11 of the Act. However, dismissal from service is the ultimate punishment which can be awarded against an employee which, in our view, should not be awarded in a case of such nature where the person had gone to use the bathroom in the early hours of morning, even though the same may have been without the permission of the Guard Commander. It is true that this Court should not normally interfere with the punishment imposed by the disciplinary authority unless such penalty is grossly disproportionate to the charges. In our opinion, the present case is not such which may require the ultimate punishment to be imposed as penalty should be commensurate with the magnitude of the misconduct committed. The Apex Court in B.C. Chaturvedi Vs. In our opinion, the present case is not such which may require the ultimate punishment to be imposed as penalty should be commensurate with the magnitude of the misconduct committed. The Apex Court in B.C. Chaturvedi Vs. Union of India and others, AIR 1996 SC 484 , has held that even though the Court or Tribunal, while exercising the power of judicial review cannot normally substitute their own conclusion on penalty and impose some other penalty, but if the punishment imposed by the disciplinary authority shocks the conscience of the Court or Tribunal, it would be appropriate to grant relief either by directing the disciplinary or the appellate authority to reconsider the penalty ; or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with reasons in support thereof. The said principle has been reiterated by the Supreme Court in Union of India and another Vs. G. Ganayutham (Dead) by LRs., AIR 1997 SC 3387 , Division Bench of this Court in Union of India v. Bishambhar Nath Mishra, 2001 UPLBEC 864 , has also held that in appropriate cases and for cogent reasons, this Court or the Tribunal can reduce the punishment. 11. In Union of India and others Vs. Giriraj Sharma, AIR 1994 SC 215 , where a member of the Central Reserve Police Force overstayed the leave for twelve years and was dismissed from service u/s 11(1) of the C.R.P.F. Act, finding that the personnel had not intentionally and wilfully disobeyed the order, the Supreme Court held the punishment of dismissal from service to be harsh and remanded the matter after giving liberty to the Government to impose any minor penalty for such misconduct. 12. Considering the facts of the present case that the said charge of Article 1 for which the Petitioner has been found guilty was with regard to misconduct and negligence of duty and disobedience of orders which only relates to leaving the place of duty at about 0500 hours in the morning on 14.6.1988 without the permission of the Guard Commander for going to the bathroom of 3rd Signal Bn. C.R.P.F., Rampur, the punishment awarded to the Petitioner-Appellant of dismissal from service is too harsh and totally disproportionate to the charges for which he has been found guilty. C.R.P.F., Rampur, the punishment awarded to the Petitioner-Appellant of dismissal from service is too harsh and totally disproportionate to the charges for which he has been found guilty. The punishment of dismissal from service should be resorted to only if there is a very grave act of misconduct. The Petitioner-Appellant having been found guilty only of charges of Article 1, in our considered view, the punishment of dismissal from service imposed on the Petitioner is too harsh and is liable to be set aside. In our view, lesser punishment ought to have been awarded, which need not be determined by this Court and should best be left to the discretion of the disciplinary authority to decide. 13. In view of our discussions made hereinabove, we quash the order of the departmental authority as well as the orders of the disciplinary authority, revision and second revision awarding punishment of dismissal from service of the writ Petitioner-Appellant. However, the findings arrived at on the charge No. 1 by the disciplinary authority and that of the revision and second revision are hereby affirmed. The matter is remanded back to the disciplinary authority to consider the case of the writ Petitioner-Appellant only on the question of imposing minor punishment on the charge No. 1 against the writ Petitioner-Appellant u/s 11 of the Act. 14. We, accordingly direct the disciplinary authority to pass necessary orders for imposing minor punishment in respect of charge No.1, framed against the writ Petitioner-Appellant, within three months of the filing of the certified copy of this order before the disciplinary authority. We further direct that the disciplinary authority may also enquire into the charges of Article II, which relate to a relatively much more serious offence/ charge. We make it clear that even if the Sessions Trial is pending or in the Sessions Trial the writ Petitioner-Appellant has been acquitted, even then, it would not be a bar for the disciplinary authority to proceed to enquire into the charges of Article II and award punishment on the said charge as well. It is also made clear that if the writ Petitioner-Appellant is found guilty of the charges of Article II, it shall be open to the disciplinary authority to award suitable punishment in its discretion against the writ Petitioner-Appellant u/s 11 of the Act including the punishment of dismissal from service. 15. It is also made clear that if the writ Petitioner-Appellant is found guilty of the charges of Article II, it shall be open to the disciplinary authority to award suitable punishment in its discretion against the writ Petitioner-Appellant u/s 11 of the Act including the punishment of dismissal from service. 15. Accordingly, the impugned order as well as the orders of the disciplinary authority, revision and second revision are set aside only to the extent indicated above. The appeal is, thus, allowed to the extent indicated above. However, there shall be no order as to costs.