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2007 DIGILAW 737 (GAU)

Jaichandran Nair, EX. LNK v. Union of India

2007-11-13

RANJAN GOGOI

body2007
JUDGMENT Ranjan Gogoi, J. 1. Heard Shri A.S. Choudhury, learned senior counsel for the petitioner and Mrs. R. Bora, learned CGC appearing for the Respondents. 2. This writ petition has been filed challenging an order dated 18.12.1999 whereby the punishment of dismissal from service has been imposed on the petitioner in exercise of powers under Section 11(1)of the CRPF Act, 1949 read with Rule 27(a) of the CRPF Rules, 1955. The aforesaid order of dismissal imposed by the primary authority has been affirmed in appeal by order dated 11.4.2000 and the revision filed against the aforesaid two orders has also been dismissed by the order dated 14.2.2001. Consequently, this writ petition has been filed challenging the aforesaid orders passed by the authorities of the Force. 3. The petitioner was, at the relevant point of time, serving in the post of Lance Naik in the Force and was posted in the 116 Bn. of the CRPF at Dibrugarh. A charge-memo dated 10.9.1999 was issued against the petitioner leveling the following 3(three) charges against him: Article-I That the said No. 850870968 L/NK (now CT)(GD) J.C. Nair while functioning as L/NK (GD) in C/116 Bn. committed an act of misconduct in his capacity as a member of force under Section 11(1) of CRPF Act 1949 in that he after consumption of liquor did not attend surprise check Roll-Call on 28.8.99, approx at 1925 hrs without any permission from the competent authority. Article-II That the said No. 850870968 L/NK (Now CT-GD) J.C. Nair while functioning as L/NK (Now CT-GD) in C/116 committed an act of misconduct in his capacity as a member of force in that on 29.8.99, approx at 1930 hrs deliberately created commotion in the camp of C/116 Bn by throwing empty bottle while surprise Roll-Call going on. Article-III That the said No. 850870968 L/NK (Now CT/GD) J.C. Nair while functioning as L/NK (Now CT-GD) in C/116 committed an act of misconduct in his capacity as a member of force under Section 11(1) of CRPF Act 1949 in mat he deserted from the lines area of C/116 at around 2147 hrs on 29.8.1999, when he was detailed to go for medical check up and returned at his own on 30.8.1999, approx at 0146 hrs without permission from the competent authority. 4. On receipt of the charge-memo, the petitioner filed his reply denying the charges levelled. 4. On receipt of the charge-memo, the petitioner filed his reply denying the charges levelled. According to the petitioner on the day of the alleged occurrence, i.e., on 28.9.99, he was on medical rest as per advice of doctors and the applications levelled against him, are false and concocted. 5. The reply of the petitioner having been found to be unsatisfactory, the Disciplinary Authority decided to conduct an enquiry into the charges levelled. In course of the aforesaid enquiry 6 (six) witnesses were examined in support of the charges. The petitioner examined 4(four) witnesses in defence. At the conclusion of the proceeding, the Enquiry Officer submitted his report dated 15.11.99 holding all the charges levelled against the petitioner to be proved. On consideration of the said report of enquiry and after due application of mind, the primary as well as the appellate and revisional authorities had taken the view that the petitioner deserved to be punished with the dismissal from service. 6. Shri Choudhury, learned senior Counsel for the petitioner in course of a long elaborate argument has taken the Court through the charge-memo and the reply of the petitioner thereto as well as the oral evidence tendered by the witnesses examined in support of the charges. Shri Choudhury, learned Senior Counsel, has contended that on the day of the occurrence, i.e., on 29.8.1999 the petitioner was advised medical rest and, therefore, he did not go to attend the roll-call. Regarding consumption of alcohol, according to Shri Choudhury, no medical examination was carried out to confirm the veracity of the charge levelled. In so far as the allegation of throwing empty bottle at the site/venue of the roll call and thereby causing disruption is concerned, Shri Choudhury has submitted that out of the 6(six) departmental witnesses examined in course of the enquiry, 5(five) of them did not support the said charge. The only person who supported the aforesaid charge is PW1, namely, H.C. Rajinder Kumar. The only person who supported the aforesaid charge is PW1, namely, H.C. Rajinder Kumar. In so far as the testimony of PW 1 is concerned, Shri Choudhury has pointed out that in course of the Cross-examination of the said witness by the petitioner, PW 1 could not satisfactorily explain as to whether he had seen the petitioner throwing an empty bottle and, therefore, it has been argued that reliance on the testimony of the aforesaid witness for the purpose of infliction of the extreme punishment of dismissal from service will not be justified. Regarding the charge of desertion/disappearance of the petitioner from the camp for a period of about 2(two) hours, learned Counsel has submitted that the petitioner had stated in his reply to the charge-memo that he was taking rest in another part of the camp for which reason he was not to be found in his bed on a search being made. 7. To counter the arguments advanced on behalf of the petitioner, Mis. R. Bora, learned CGC appearing for the Respondents has argued that while it is correct that PW 1 is the only witness who had testified with regard to the offence of throwing of bottles by the petitioner, it is the quality and not the quantity of the evidence that is material. According to Mrs. Bora, learned CGC, PW 1 is clear and categorical on this aspect of the allegation levelled. Learned Counsel has further submitted that all the witnesses examined in support of the charges have unambiguously stated that they had smelt alcohol in the breath of the petitioner and that on a search being conducted by the platoon deputed to take the petitioner for medical examination, he was not found to be in the camp until he returned at 1-45 AM of the next day. Learned Counsel has further submitted mat the medical records enclosed to the writ petition make it clear that on 27th and 28th of August, 1999 the petitioner was advised medical rest and again medical rest was advised on 30th August to 1st September. On the date when the incident occurred, i.e. on 29th August, 1999 the petitioner was not officially advised medical rest and, therefore, he was required to attend to his duties and the roll-call. Instead he was found drunk causing disruption in the roll-call and thereafter he was found absent from the camp. On the date when the incident occurred, i.e. on 29th August, 1999 the petitioner was not officially advised medical rest and, therefore, he was required to attend to his duties and the roll-call. Instead he was found drunk causing disruption in the roll-call and thereafter he was found absent from the camp. The aforesaid facts have been duly proved by the evidence tendered in course of the enquiry, which justifies the punishment of dismissal from service. 8. The charges levelled against the petitioner, his reply thereto, the evidence adduced in course of the enquiry and the report of enquiry have been perused by the Court. The arguments and counter arguments advanced on behalf of the parties have also received due consideration. 9. From the materials on record, it is clear that on 27th, 28th, 30th, 31st August and 1st November 1999 the petitioner was advised medical rest. This would go to show that the petitioner was unwell. In so far as the absence of the petitioner on 29th August 1999 is concerned, the petitioner had not brought on record any document that he was advised medical rest on that day. However, PW 2 in his evidence has clearly deposed that on the two proceeding dates as well as on the subsequent days following the date of occurrence the petitioner was advised medical rest. The absence of such advise on the date of occurrence, i.e., on 29th August 1999, it has been deposed, was on account of the fact that the petitioner may not have reported to the medical officer on the said day. In the aforesaid circumstances, the Court is of the view that it would be reasonable to accept that on the date of the occurrence also the petitioner was not well though he was not specifically advised any medical rest on that date. On the said basis the charge of absence of the petitioner from the roll-call on 29.8.2000 can be understood to have been duly explained. 10. The allegation against the petitioner of consuming alcohol, in the considered view of the Court, must be accepted to be correct in view of the near unanimity of the evidence tendered on behalf of the prosecution on this point. Merely because the petitioner was not medically examined, the oral evidence tendered by as many as 5(five) prosecution witnesses cannot be brushed aside. Merely because the petitioner was not medically examined, the oral evidence tendered by as many as 5(five) prosecution witnesses cannot be brushed aside. However, in so far as the evidence of throwing empty bottles at the site of the roll call is concerned, the Court is of the view that the evidence on this aspect of the case suffers from some lacuna and inconsistency which makes it unsafe for the Court to accept the finding recorded on the said point. PW 1 is the only witness who has supported the aforesaid charge of throwing of empty bottles. But a reading of the evidence of PW 1, particularly, the cross-examination of the said witness by the petitioner would go to show serious inconsistencies in the evidence tendered by the said witness. The evidence of PW 1 as to how he could see the petitioner throwing a bottle when the petitioner was standing behind PW1 is highly doubtful. That apart, the said evidence is inconsistent with the statement of PW 1 in cross-examination that the guards on duty could not have thrown the bottles as they were at a far away distance. If PW 1 had actually seen the petitioner throwing empty bottles at the roll call site, as deposed by him, there is no room for the exploration offered by PW1 as to why the guards could not have throw the empty bottles, as noticed above. The above facts lead the Court to the conclusion that the evidence tendered by PW1 on the allegation of throwing of empty bottles at the site of the roll-call should be considered unsafe by the Court for the purpose of sustaining the award of the extreme penalty of dismissal. In so far as the disappearance of the petitioner from the barrack/camp for a period of 2(two) hours is concerned, the Court is of the opinion that in view of the evidence tendered by the departmental witnesses on this score, the said charge must be held to be proved. All the said witnesses, in one breath, have narrated that the petitioner was not found to be in his bed when a search was made by the platoon deputed for the task and further that he could riot be found anywhere in the camp. All the said witnesses, in one breath, have narrated that the petitioner was not found to be in his bed when a search was made by the platoon deputed for the task and further that he could riot be found anywhere in the camp. PW 1 had further deposed that he saw the petitioner returning to the camp at about 1-45 AM of the next morning, i.e., 30.8.1999. 11. The sum total of the aforesaid consideration leaves the Court satisfied that the petitioner, who was ill and advised medical rest had consumed alcohol and when an attempt was made to send him for medical examination, he had disappeared from the camp. The above allegation, which, in the considered view of the Court, stands fully proved by the evidence adduced by the departmental witness establishes misconduct on the part of the petitioner which would call for some punishment. The punishment of dismissal from service has been awarded by the authorities of the Force on the basis of all the charges which were held to be proved. The Court has al ready held that two of the charges levelled against the petitioner and held to be proved has to fail. The petitioner has to be exonerated of the charge of being absent from the roll call on 29.8.2007 as, on the said day, he was unwell. Furthermore, the charge of throwing empty bottles at the site of the roll call has been held to be not established by the evidence adduced. In such changed circumstances what punishment should now be imposed is a matter for the authority of the Force to decide. As the core charge against the petitioner has failed, the Court is of the view that a lesser punishment than what had been imposed may meet the ends of justice. Consequently, the punishment of dismissal is set aside leaving it open for the authority of the Force to impose such punishment on the petitioner as maybe deemed fit and proper. The authorities of the Force may now decide the matter within a period of 3(three) months from the date of receipt of a copy of this order. Writ petition stands partly allowed to the extent indicated above.