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2011 DIGILAW 683 (GAU)

Lakhiram Tai v. Union of India

2011-08-11

BIPLAB KUMAR SHARMA

body2011
JUDGMENT B.K. Sharma, J. 1. Heard Mr. K.K. Phukan, learned counsel for the petitioner as well as Mr. D.Barua, learned CGC for the respondents. The petitioner, while was serving as Constable in the Central Industrial Security Force (for short CISF), was served with the Memorandum of Charge Sheet dated 16.5.2000 levelling the following charges :- Article of charge-I That No. 934610072 Constable L.R. Tai of CISF Unit, IOC Guwahati having already a spouse living, developed immoral relations with an unmarried woman named Smt. Anu Bora claiming her to be his wife and stayed with her in a hired accommodation of Smt. Lata Barman in Jaya Nagar near Kali Mandir Noonmati from Nov. 1999 to Feb. 2000. In doing so, No. 934610072 Constable L.R. Tai failed to maintain a responsible and decent standard of conduct in his private life besides bringing discredit to his service through his misdemeanour. This misconduct is violative of Rule 3 & 21 of CCS (Conduct) Rules, 1964. Thus, the above act on the part of above named individual tantamounts to gross misconduct, indiscipline, violation of rules and unbecoming of a member of the Force. Article of charge-II That No. 934610072 Constable L.R. Tai of CISF Unit, IOC, Guwahati who was granted outliving permission with HRA with effect from Nov. 1999, started staying in a Coy Barrack with effect from 15.02.2000 at his own volition and continued to claim HRA from Feb. 2000 till date deliberately defrauding the department. Thus, the above act on the part of above named individual tantamounts to gross misconduct, indiscipline, violation of rules and regulations and unbecoming of a member of the Force. 2. In response to the said charge sheet, the petitioner submitted his written statement of defence dated 23.5.2000 denying the charges. As regard the charge No. II, it was stated that there was some mistake on his part in not informing the authority about his living in the Coy Barrack w.e.f. 15.2.2000, because of which he had received HRA for two months i.e. for the months of March and April, 2000. However, the required information was furnished in the month of April, 2000. Accordingly, in the written statement, the petitioner volunteered to refund the amount pertaining to HRA which he had drawn for two months. 3. However, the required information was furnished in the month of April, 2000. Accordingly, in the written statement, the petitioner volunteered to refund the amount pertaining to HRA which he had drawn for two months. 3. As regards the charge No. I, it was his plea that he used to stay in a hired accommodation belonging to one Shri A. Rahman and thereafter he shifted to another rented accommodation belonging to Smt. Lata Barman. He used to stay there along with his wife, 3 sons and 1 daughter. According to the petitioner, the particular lady with him the charge of maintaining illicit relationship was levelled was known to him from her childhood being the resident of the same locality and being a known person, she used to come to his house and stay there extending helping hands to his wife. The petitioner denied having any illicit relationship with the said lady. 4. In due course, the disciplinary authority ordered for a departmental enquiry in which the Disciplinary Authority examined 10 (ten) witnesses. The petitioner examined himself. On conclusion of the enquiry, the Inquiry Officer by his Enquiry Report dated 26.9.2000 held that both the charges levelled against the petitioner had been established. Thereafter, the disciplinary authority by his impugned order dated 30.10.2000 (Annexure-VI) imposed on the petitioner, the penalty of removal from service with immediate effect. Being aggrieved, the petitioner preferred an appeal which was also dismissed by Annexure-VII order dated 19.7.2001. Thereafter, the petitioner approached this Court by filling the instant writ petition. 5. Mr. K.K. Phukan, learned counsel for the petitioner submits that the charge against the petitioner of maintaining illicit relationship with the particular lady having not been established in the enquiry, the extreme penalty of removal from service could not have been imposed. In this connection, he has exclusively referred to the evidence on record. As regard the charge of illegal drawal of HRA, he submits that while it is true that the petitioner had drawn HRA for two months but at the same time, it is also an admitted fact that it is the petitioner, who had himself apprised the authority about shifting to barrack disentitling him to HRA. Referring to the plea of the petitioner that it was an inadvertent mistake on the part of the petitioner, Mr. Referring to the plea of the petitioner that it was an inadvertent mistake on the part of the petitioner, Mr. Phukan, learned counsel for the petitioner submits that by the said written statement, the petitioner had also volunteered for returning the HRA he had drawn for two months. Be it stated here that the amount in question has already been recovered from the petitioner. 6. Mr. D. Barua, learned CGC, on the other hand submits that the petitioner having maintained an illicit relationship with another lady during the subsistence of his earlier marriage with 3 (three) sons and 1 (one) daughter, he was rightly taken up for a departmental proceeding and when it was found that the charge of maintaining illicit relationship with another lady had been established, the disciplinary authority rightly imposed the penalty of removal from service, keeping in mind that the petitioner belonged to a disciplined force. As regard the charge of illegal drawal of HRA, he submits that it was incumbent on the part of the petitioner not to draw HRA as he was not entitled to the same. He submits that such drawal on the part of the petitioner was unbecoming of a member of the disciplined force and consequently the disciplinary authority on the basis of the materials, held that both the charges had been established against the petitioner and consequently imposed the penalty of removal from service. 7. I have considered the rival submissions made by the learned counsel for the parties and the entire materials on record including the departmental proceeding file which has been produced by Mr. D. Barua, learned CGC. 8. As regard the charge No. 2 of deliberately defrauding the department by claiming HRA for two months, the explanation furnished by the petitioner in his written statement has been noticed above. In the written statement, the petitioner had admitted that he started living in the Barrack w.e.f. 15.2.2000 but the same was not intimated to the authority immediately, as a consequence of which he had been granted HRA for two months i.e. March and April, 2000. However, the fact remains that the petitioner himself reported the matter of his shifting to the barrack w.e.f. 15.2.2000, as a consequence of which, payment of HRA was stopped from May, 2000. The intimation was furnished by the petitioner in the month of April, 2000. However, the fact remains that the petitioner himself reported the matter of his shifting to the barrack w.e.f. 15.2.2000, as a consequence of which, payment of HRA was stopped from May, 2000. The intimation was furnished by the petitioner in the month of April, 2000. In addition, the petitioner also volunteered for refund of the HRA he had drawn for the aforesaid two months. 9. It is not a case of defrauding the department per se with continued drawal of HRA illegally. He was required to inform the authority upon his shirting to the barrack on 15.2.2000 but instead the intimation was furnished in April, 2000. If only this charge of negligence and/or misconduct is attributed to the petitioner and said to have been established and the other charge of maintaining illicit relationship with a lady is left aside, the question necessarily will arise as to whether such negligence and/or misconduct would attract the extreme penalty of removal from service. This aspect of the matter will have to be considered in the light of the findings to be arrived at in respect of charge No. 1. 10. As noted above, the disciplinary authority examined 10(ten) witnesses while the petitioner examined himself. Witness No. 10 is the lady with whom the petitioner allegedly maintained illicit relationship. Witness No. 11 is the petitioner. In their respective depositions, they have made contradictory statements. While the witness No. 10 i.e. the lady, in her deposition maintained that the petitioner had married her in a particular temple and thereafter used to live with him as husband and wife, the petitioner in his deposition stated that there was no illicit relationship with the lady and that she being known to his family from her childhood, she used to come to his house and render helping hands to his wife. 11. Witness No. 1, 2, 3, 4 & 5 in their depositions basically dealt with the position relating to stay of the petitioner in the rented accommodation and thereafter in the barrack. They also stated in their depositions that in the month of March, 2000, one unknown lady met the petitioner in the particular hospital and that though the lady had told them that she was married with the petitioner but they informed the lady that the petitioner was already a married person. They also stated in their depositions that in the month of March, 2000, one unknown lady met the petitioner in the particular hospital and that though the lady had told them that she was married with the petitioner but they informed the lady that the petitioner was already a married person. Witness No. 4 in his deposition stated about meeting the lady in the month of March, 2000 who allegedly enquired about the petitioner. 12. From the above depositions, nothing is established in respect of the charge of maintaining an illicit/immoral relationship with a lady. Merely because the witnesses had met the particular lady who enquired about the petitioner, the same by itself cannot lead to the inference that the petitioner had an illicit/immoral relationship with that particular lady. 13. Mr. D. Barua, learned CGC has emphasized on the depositions made by the other witnesses so as to contend that from their depositions, an inference can be drawn that the petitioner used to live with the lady as husband and wife and thereby maintained an illicit relationship with the lady, although he was already a married person. 14. Witness No. 6, Smt. Kalpana Kalita in her deposition stated that the particular lady had told her that she had married the petitioner and that she had seen both of them together. She in her deposition further stated about furnishing of information by the lady to her that they got married at Basistha Temple. Thus, this witness in her deposition did not state anything that can said to be from her own knowledge. Whatever, she had stated was the information allegedly furnished to her by the lady. From her statement, the charge of maintaining illicit relationship with the particular lady is also not established. 15. Witness No. 7, Smt. Sita Talukdar, is also a reported witness, who in her deposition stated the version of the particular lady that she had married the petitioner in a temple by exchanging garlands. This witness of her own did not notice anything, but stated in the enquiry proceeding whatever was allegedly divulged to her by the lady. 16. Witness No. 8, Smt. Lata Barman, is the land lady, in whose house the petitioner stayed for a while. She in her deposition stated that the petitioner used to live in her rented house along with the lady. 16. Witness No. 8, Smt. Lata Barman, is the land lady, in whose house the petitioner stayed for a while. She in her deposition stated that the petitioner used to live in her rented house along with the lady. In between, the petitioner's two sons came and stayed along with them. After 3 (three) days, one of the sons left and a week thereafter, the wife of the petitioner along with their daughter came to the rented house and took the petitioner back to their native place. Interestingly, this witness in her deposition stated about casual furnishing of information by the lady to her that she had married the petitioner. 17. The question that necessarily arises for consideration is as to whether the statement of Smt. Lata Barman will go to establish that the petitioner had maintained an illicit relationship with the lady. While it is true that this witness in her deposition stated about the petitioner staying with the lady but the same will also have to be considered in the touch stone of the deposition made by the petitioner, which could not be dislodged in the cross examination (in fact, no cross examination was made) that the particular lady was known to him from his childhood and that she used to render help to his wife. He also stated in his deposition that the lady used to come to his house in presence of his wife and other family members. Another important aspect of the matter is that the witness in her deposition stated about furnishing of only casual information by the lady that she had married the petitioner. This aspect of the matter will also have to be considered in the perspective of there being no charge of entering into another marital tie during the subsistence of the first marriage. 18. Witness No. 9, Smt. Tarulata Nath, in her deposition stated about furnishing of information by the lady to her that she had married the petitioner. Thus, there is not a single witness examined by the disciplinary authority, who had any first hand knowledge of maintaining illicit relationship with the lady by the petitioner. If we carefully consider the statements of these witnesses, at best the fact of petitioner's meeting the lady or the lady coming to his house, is only established. Thus, there is not a single witness examined by the disciplinary authority, who had any first hand knowledge of maintaining illicit relationship with the lady by the petitioner. If we carefully consider the statements of these witnesses, at best the fact of petitioner's meeting the lady or the lady coming to his house, is only established. But there is absolutely nothing to indicate that the petitioner had maintained an illicit/immoral relationship with the lady. 19. Witness No. 10, is the lady, who in her deposition stated about her marriage with the petitioner in the particular temple by offering garlands, about which other witnesses referred to above had also stated in their depositions. However, those statements are not on the basis of their first hand information but are only based on the information allegedly furnished by the lady. If a marriage really took place, it is hard to believe that no witnesses and/or well wishers were present in the marriage, who could have deposed that the marriage, in fact, took place. It would not be safe to believe the lady's version that her marriage with the petitioner took place in the particular temple. It is in this context, Mr. Phukan, learned counsel for the petitioner has submitted that if a marriage really took place, the disciplinary authority could have easily established the same by examining the relevant witnesses including the person who performed the marriage. 20. On being asked as to whether the disciplinary authority should believe the version of the lady alone and not the version of the petitioner, Mr. D. Barua, learned CGC fairly admits that while appreciating the evidence, both the versions will have to be considered. However, he submits that if the lady's version is considered in the light of the depositions made by the other witnesses, the fact that the petitioner had been living with her in a rented house, is clearly established, which will go to show that the petitioner had maintained an illicit relationship with the lady. 21. According to the petitioner, the particular lady was known to him from his childhood as they belong to the same place. It is also his version that she used to come to his house and offer helping hands to his wife. He in his deposition categorically denied that he had maintained an illicit relationship with the lady and that he had ever married her. It is also his version that she used to come to his house and offer helping hands to his wife. He in his deposition categorically denied that he had maintained an illicit relationship with the lady and that he had ever married her. As noted above, the statement made by the petitioner went unrefuted in absence of any cross examination. 22. As regards the statement of the lady (witness No. 10), she was put to cross examination by the petitioner. When she was asked as to why she did not disclose to anybody about her alleged marriage with the petitioner, her reply was that she was asked not to disclose the same by the petitioner but on being pointed out that the marriage could be recognized even otherwise also on the basis of Vermillion, which was allegedly put in her forehead, there was no explanation. In the particular question as to whether she could prove that the petitioner had brought her to the particular rented house, the reply of the lady was in the negative. However, she stated that she was brought from her native place. As regards her alleged pregnancy etc, she in his cross examination stated that she had no documents to prove the termination of pregnancy. When she was asked to as to whether she had made any enquiry to know about the petitioner, her reply was in the negative. However, she stated that she was informed by the petitioner that he was a member of the CISF and was a bachelor. 23. From the above evidence, it cannot be said that the 1st charge against the petitioner of maintaining illicit relationship with the particular lady is established. 24. Mr. D. Barua, learned CGC, during the course of argument, submitted that the writ Court exercising its power of judicial review under Article 226 of the Constitution of India, cannot sit on appeal over the findings recorded by the Inquiry Officer and the Disciplinary Authority. He also submitted that the writ Court would be reluctant to make a scrutiny of the evidence on record. However, when the plea of the petitioner and the arguments advanced by Mr. Phukan, learned counsel for the petitioner are that, it is a case of no evidence and/or a case of perverse finding, the same will have to be appreciated in reference to the evidence. However, when the plea of the petitioner and the arguments advanced by Mr. Phukan, learned counsel for the petitioner are that, it is a case of no evidence and/or a case of perverse finding, the same will have to be appreciated in reference to the evidence. While doing so, what is found is that it is a case of no evidence to establish the charge No. 1 against the petitioner. To that extent, the findings of the Inquiry Officer is a perverse finding. 25. If it is held that the charge No. 1 against the petitioner has not been established and the charge No. 2 has been established to the extent indicated, the question necessarily arise is as to whether for establishing the charge No. 2 to the extent indicated above, the petitioner should be meted out with extreme penalty of removal from service. Although, normally such matters are to be left to the discretion of the disciplinary authority to decide for imposition of another penalty but considering the fact that the petitioner was removed from service about 11 years back, I am of the considered opinion that the matter needs to be given a finality here itself instead of remanding the matter back to the disciplinary authority for imposition of a suitable penalty, on the basis of the charge No. 2 which has been established to the extent indicated above. 26. Considering the matter in its entirety and having regard to the extent of misconduct on the part of the petitioner in respect of the charge No. 2, I am of the considered opinion that the ends of justice would be met if a penalty of stoppage of 2 (two) increments without cumulative effect is imposed on the petitioner in substitution of penalty of removal from service imposed vide the impugned order dated 30.10.2000 (Annexure-VI) and affirmed by the appellate authority vide Annexure-VIII order dated 19.7.2001. To that extent, the impugned orders stand set aside and quashed. 27. Upon setting aside the order of removal from service with the imposition of penalty of stoppage of two increments from the date of imposition of the order of penalty of removal from service i.e. 30.10.2000, the petitioner shall now be reinstated in service maintaining continuity in service for all the purposes other than any back wages. 27. Upon setting aside the order of removal from service with the imposition of penalty of stoppage of two increments from the date of imposition of the order of penalty of removal from service i.e. 30.10.2000, the petitioner shall now be reinstated in service maintaining continuity in service for all the purposes other than any back wages. The petitioner being out of employment from the date of imposition of penalty of removal from service and considering the matter in its entirety including the fact that he has been imposed with the penalty of stoppage of two increments for the omission attributed to the charge No. 2, the petitioner would not be entitled to any back wages for the period of absence. 28. Now, the Disciplinary Authority shall pass appropriate order consistently with the findings and directions made above. Let the order be passed as expeditiously as possible, but in any rate, not later than one month. Writ petition is allowed to the extent indicated above. There shall be no order as to costs.