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2011 DIGILAW 219 (GAU)

Chitta Ranjan Debburman v. Union of India

2011-03-15

AMITAVA ROY

body2011
JUDGMENT Amitava Roy, J. 1. The order dated 22.05.1992 of the Commandant, 69 Battalion, Central Reserve Police Force dismissing the Petitioner from service is under challenge in the instant proceeding. This Court while issuing notice of motion on 23.06.2000 had kept the issue of maintainability of the instant writ petition open in view of the delay in the institution thereof. 2. I have heard Mr. P. Roy Barman, learned Counsel for the Petitioner and Mr. P.K. Biswas, learned Asstt. Solicitor General of India, Gauhati High Court, Agartala Bench, Agartala for the Respondents. 3. The pleaded case of the Petitioner, in short, is that while he was serving as Constable with the Central Reserve Police Force (hereinafter for short referred to as the CRPF) and attached to 69 Bn. thereof, he applied for and was sanctioned casual leave from 09.10.1991 to 31.10.1991. While availing the leave, he fell ill and thus could not report back for duty on 31.10.1991. He eventually, returned on 26.03.1992. According to him, prior thereto, he addressed a telegram on 20.11.1991 to the Officer Commanding, A/69 Bn. about his illness. At the first instance, he took medical treatment from a local "Vaid" but as his condition did not improve, he was taken to a doctor who treated him and ultimately certified him to be fit in March, 1992, where after, he returned to his unit as above on 26.03.1992. Thereafter, he was proceeded against for a charge under Section 10(m) of the Central Reserve Police Force, Act 1949 (for short referred to as the Act) and in the proceeding that was held by the Judicial Magistrate, 1st Class and the Deputy Commandant of the Battalion, he was by order dated 01.04.1992 held to be guilty for absenting from duty and overstayed of leave without sufficient cause from 09.10.1991 to 26.03.1992 and was convicted to undergo imprisonment till the rising of the Court. According to the Petitioner, parallely a proceeding under Rule 31 of the Central Reserve Police Force Rules, 1955 (for short, hereinafter referred to as the Rules) was also initiated to declare him a "Deserter". Thereafter, by the impugned order issued in purported exercise of power under Rule 27(cc) (i) of the Rules he was dismissed from service with effect from 22.05.1992 and the periods mentioned therein were declared to be "DIES-NON". Thereafter, by the impugned order issued in purported exercise of power under Rule 27(cc) (i) of the Rules he was dismissed from service with effect from 22.05.1992 and the periods mentioned therein were declared to be "DIES-NON". The Petitioner subsequent thereto, preferred an appeal before the Director General of CRPF against his order of dismissal. According to him, he being the only earning member of the family he by the ouster from service had no financial resources to approach any legal forum. Further, he could not therefore secure legal advice as well in time. It was eventually, when he had the occasion of meeting a learned lawyer of this Court in the month of February, 2000 and that he was advised to file the instant petition. 4. The Respondents, in their counter-affidavit, while endorsing the impugned decision have pleaded that the Petitioner failed to join his duties after availing the casual leave without any proper permission from the competent authority and also did not respond to the letter dated 14.11.1991, by the Officer Commanding, A/69 Bn. CRPF ordering him to report for duty immediately. They have further stated that the Petitioner thereby was unauthorized absent for 147 days and did not inform his superior authority about the reason for his absence at any point of time. The answering Respondents have further averred that in case of his illness, he ought to have informed the concerned authority about the same and should have submitted the supporting medical documents for the consideration of his case. The Respondents also took exception for the Petitioner's omission in not reporting at the nearest government hospital and instead undertaking treatment from a local "Vaid" up to 29.10.1991 as claimed by him. Contending that the Petitioner had intentionally overstayed his leave without any information to his superior authority, the action taken under Section 10(m) and Rule 27 (cc) (i) of the Rules has been asserted to be valid. They have admitted that in a proceeding under Rule 31 of the Rules, the Petitioner had also been declared to be a "Deserter". Contending that the Petitioner had intentionally overstayed his leave without any information to his superior authority, the action taken under Section 10(m) and Rule 27 (cc) (i) of the Rules has been asserted to be valid. They have admitted that in a proceeding under Rule 31 of the Rules, the Petitioner had also been declared to be a "Deserter". In categorical terms the Respondents have denied the Petitioner's allegation of not having been accorded due opportunity of defending himself in the proceedings ending in his conviction Under Section 10(m) of the Act and pleaded that in course of the trial when asked, he declined to engage any advocate, and not only pleaded guilty to the charge but also refused to examine any witness in defense. According to the Respondents, all the prosecution witnesses in the trial were examined in his presence and when allowed the opportunity of cross-examining them, he refused to do so. 5. Mr. Roy Barman has persuasively argued that the so-called trial of the Petitioner on a charge Under Section 10(m) is wholly unauthorized as it could have been conduct only by a Commandant or an Asstt. Commandant with the powers of a Magistrate of 1st Class as enumerated in Section 16(2) of the Act. As it was so done in case of the Petitioner by Deputy Commandant, on that ground alone the proceeding is liable to be adjudged non est. According to him as admittedly a proceeding under Rule 31 had been initiated against the Petitioner for declaring him to be a "Deserter" he could not have been punished in a separate trial under Section 10(m) of the Act. Without prejudice to these, the learned Counsel has urged that as overstayed of leave vis-a-vis the Petitioner, as the facts and circumstances would disclose, in the Act is a solitary instance, penalty of dismissal from service is grossly disproportionate and needs interference in the interest of justice. To reinforce his pleas, Mr. Roy Barman has placed reliance on the decision of the Apex Court in Union of India and Ors. v. Giriraj Sharma AIR 1994 SC 215 and this Court in 2000 (2) GLJ 40 (Bhupen Chandra Boro v. Union of India and Ors. and 2003 (3) GLR(Kukheswar Saikia v. Union of India and Anr.). 6. In reply, Mr. Roy Barman has placed reliance on the decision of the Apex Court in Union of India and Ors. v. Giriraj Sharma AIR 1994 SC 215 and this Court in 2000 (2) GLJ 40 (Bhupen Chandra Boro v. Union of India and Ors. and 2003 (3) GLR(Kukheswar Saikia v. Union of India and Anr.). 6. In reply, Mr. Biswas with reference to the original records has argued that as the Presiding Officer of the proceedings ending in conviction of the Petitioner Under Section 10(m) of the Act was a Judicial Magistrate, 1st Class and was thus authorized in law to conduct a trial as envisaged in Section 16 of the Act, the contention to the contrary is misconceived. According to him, there being no statutory bar in initiating and continuing a proceeding under Rule 31, in addition, the challenge to the impugned decision of the basis thereof also is not tenable. Seeking to distinguish the decisions cited on behalf of the Petitioner, Mr. Biswas has argued that in the facts and circumstances of the case, he being a member of the disciplined force his unauthorized absence for a stretch of 147 days without any acceptable justification has been rightly taken to be a factor warranting his dismissal from service. 7. The rival pleadings and the arguments advanced have been duly noticed. The instant proceedings specifically seeks annulment only of the order dated 22.05.1992 dismissing the Petitioner from service. Though, a plea was taken by the Petitioner that the Court of judicial Magistrate, 1st Class and Deputy Commandant, 69 Bn. was not constituted in pursuance of the provisions of the Act and the rules framed there under and that he was denied a fair opportunity of defending himself thereat, no relief for invalidation of the said proceedings and the order of his conviction has been sought for. This assumes significance in view of the apparent delay on his part in approaching this Court and taken note of at the time of issuance of notice of motion as referred to hereinabove. 8. The proceedings of the trial as would be evident from the order dated 01.04.1992 as well as the records produced before this Court would indicate that the Petitioner had been afforded all reasonable opportunities of defending himself against the charge. 8. The proceedings of the trial as would be evident from the order dated 01.04.1992 as well as the records produced before this Court would indicate that the Petitioner had been afforded all reasonable opportunities of defending himself against the charge. The records reveal that he had been furnished with a copy of the complaint, the charge was explained to him and the prosecution witnesses were examined in his presence. The records also disclose that he had pleaded guilty to the charge and that he declined to engage any advocate in his defense, cross-examine the prosecution witnesses and adduce any evidence against the charge. 9. This Court in Srikand Prasad v. Union of India (2007) 1 GLR 221 had amongst others held that a member of the Central Reserve Police Force may be tried either by a Judicial Magistrate, 1st Class or a Commandant or Asstt. Commandant, who had been especially conferred with the powers of Judicial Magistrate. This was evidently with reference to Section 16(2) of the Act. There is nothing to doubt that the Officer who had conducted the trial against the Petitioner on the charge under Section 10(m) was at the relevant point of time a Judicial Magistrate, 1st Class and Deputy Commandant. In that view of the matter, having regard to the manner in which the trial had been proceeded with against the Petitioner, his belated challenge even if is entertain able at this stage his plea against the sustainability of the trial and the order of his conviction cannot be upheld. 10. On being queried by this Court, Mr. Roy Barman has candidly conceded the absence of any embargo for initiation of a parallel proceeding under Rule 31 of the Rules for declaring a member of the CRPF to be a "Deserter". The decision of this Court in Kukheswar Saikia v. Union of India and Anr. (Supra) which dwells on the scope of Rule 31 is thus of no avail to him. 11. Permissibility of an order under Rule 27 (cc) (i) by a authority competent to impose a penalty on a member of the force on the ground of a conduct that had led to his conviction on a criminal charge is not in dispute. The decision of this Court in Bhupen Ch. 11. Permissibility of an order under Rule 27 (cc) (i) by a authority competent to impose a penalty on a member of the force on the ground of a conduct that had led to his conviction on a criminal charge is not in dispute. The decision of this Court in Bhupen Ch. Boro (Supra) does not advance the case of the Petitioner as the facts therein are distinguishable from those in the case in hand. In the reported case, the overstayal was for 67 days and the explanation, therefore had remained uncontroverted. The Petitioner therein had approached this Court within a year of his dismissal from service. Not only, the duration of unauthorized absence in the present case is 147 days, the explanation offered by the Petitioner has been refuted by the Respondents on an appropriate scrutiny thereof. In Union of India v. Giriraj Sharma (Supra) as well not only the length of overstayal or unauthorized absence was minimal 12 days, the circumstances furnished by the incumbent concerned explaining the same had remained uncontroverted. It is in these circumstances that the order of termination of the Respondent therein was interfered with. In view of distinguishable contextual facts this decision also does not advance the case of the Petitioner. As it is, there is a delay of 8 years on his part in approaching this Court and the explanation therefore is unconvincing. The Petitioner is guilty of inexplicable delay and laches 12. No mala fide or bias has been alleged against the Respondents. The Petitioner, admittedly at all relevant times was a member of a disciplined force. Evaluation of the perception of institutional discipline and probity has to be primarily left to the authorities in charge of administering the Force. They are supposed to be the best evaluators of the attendant facts and circumstances in these perspectives. No contravention of any legal provision or bearing of any extraneous factor is discernible so as to vitiate the impugned decision. 13. In the above premise, the challenge has to fail. The petition is dismissed. No costs. Petition dismissed.