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2013 DIGILAW 237 (GAU)

Bahadur Singh v. Union of India

2013-04-01

BIPLAB KUMAR SHARMA

body2013
JUDGMENT Biplab Kumar Sharma, J. 1. Heard Mr. B.D. Goswami, learned counsel for the petitioner. I have also heard Mr. N. Bora, learned CGC. The petitioner, who was a member of the disciplined force, CRPF is aggrieved by the orders dated 9.6.2003, 8.12.2003 and 9.9.2004, by which, his removal from service pursuant to a departmental proceeding have been ordered/upheld. While the first order dated 9.6.2003 has been passed by the disciplinary authority, the second and third orders dated 8.12.2003 and 9.9.2004 have been passed by the appellate and revisional authority respectively. 2. The petitioner while was serving as CRPF constable was subjected to an enquiry under Rule 27 of the CRPF Rules, 1955 on the following charges: Article 1 Force No. 913153362 Sepoy Bahadur Singh D/36 Battalion CRPF, Goalpara, Assam has detailed to perform sentry duty in the main gate on 27.10.2002. On inspection by S.I. B.P. Pandey at 21.45 Hrs, Bahadur Singh was not performing his duties but was lying unconscious in the Morcha. Daily Officer, S.I. B.P. Pandey with the help of Hawaldar Sube Singh (B.H.M.) and Hawaldar Narsuruddin (B/36 Bn. Guard Commander) became able to get him conscious and changed his duty and the other member was detailed to perform sentry duties. He had consumed excess alcohol and was not able to hold his weapons due to which his rifle was kept in one corner and magazine and Porch in the other. Article 2 Force No. 913153362 Sepoy Bahadur Singh D/36 Battalion CRPF was awarded the following punishment in the part for neglect/remissness in duties and absenteeism Line Confinement from 3.8.97 to 22.8.97 Total 20 days do 27.1.99 to 15.2.99 Total 20 days do 29.8.99.to 4.9.99 Total 7 days do 1.11.00 to 20.11.00 Total 20 days do 11.9.01 to 30.9.01 Total 20 days do 27.12.01 to 2.1.02 Total 7 days do 16.8.02 to 30.8.02 Total 15 days 8. No. 913153362 Sepoy Bahadur Singh was making noise as a drinker at 9.00 morning on 9.11.02, then he was medically examined. 3. Along with the charge sheet, he was also provided with the list of documents and witnesses. In the written statement of defence, the petitioner having not pleaded guilty an enquiry was ordered, in which, the disciplinary authority examined three witnesses, but on the other hand, the petitioner examined none. 3. Along with the charge sheet, he was also provided with the list of documents and witnesses. In the written statement of defence, the petitioner having not pleaded guilty an enquiry was ordered, in which, the disciplinary authority examined three witnesses, but on the other hand, the petitioner examined none. On conclusion of the enquiry, the Enquiry Officer submitted his report holding the petitioner guilty of both the charges. The report was forwarded to the disciplinary authority on 31.5.2003 and on furnishing the copy thereof, the petitioner also submitted his representation against the same. Thereafter, the disciplinary authority by its impugned order dated 9.6.2003 removed the petitioner from service holding that the petitioner was not suitable for the service of the disciplined force like CRPF. Being aggrieved by the said order, the petitioner had preferred an appeal followed by a revision application, which were also dismissed by orders dated 8.12.2003 and 9.9.2004. Hence this writ petition. 4. In the counter affidavit filed by the respondents, it has been stated that the petitioner having been found negligent in discharging his duties, he was earlier awarded warnings, but he did not improve. 5. Mr. Goswami, learned counsel for the petitioner in reference to the depositions made by the witnesses submits that there being no evidence to bring home the Article of Charge No. 1, the disciplinary authority could not have removed the petitioner from service. He further submits that although there was allegation of consumption of liquor while on duty by the petitioner, but he having not been examined medically and for that matter, no medical report having been furnished, the said charge could not have said to be established by the Enquiry Officer. As regards the Article of Charge No. 2, he has submitted that on all earlier occasions, the petitioner having been penalized, those penalties could not have been taken into consideration towards establishing the Article of Charge No. 1 and eventual removal of the petitioner from service. 6. Referring to the decision of this Court dated 20.9.2011 passed in WP(C) No. 6448/2006: Mohim Boro Vs. State of Assam & Ors., Mr. Goswami, learned counsel for the petitioner submits that as in the said case, in the instant case also the matter be remanded back to the disciplinary authority for fresh consideration in respect of imposition of penalty proportionate to the gravity of the offence. 7. Mr. State of Assam & Ors., Mr. Goswami, learned counsel for the petitioner submits that as in the said case, in the instant case also the matter be remanded back to the disciplinary authority for fresh consideration in respect of imposition of penalty proportionate to the gravity of the offence. 7. Mr. N. Bora, learned CGC on the other hand countering the above argument submits that the petitioner being a member of the disciplined force could not have resorted to the kind of misconduct as reflected in the Article of Charge No. 1. He further submits that the said charge will have to be considered in the light of the facts stated in respect of the Article of Charge No. 2. According to him the petitioner being an incorrigible offender, the disciplinary authority was left with no option than to remove the petitioner from service. Referring to the evidence on record, he submits that the area in which the petitioner was deputed to work being sensitive, it was always incumbent on the part of the petitioner to be vigilant but instead he could not protect his own weapon making the position very vulnerable. 8. I have very carefully considered the submissions made by the learned counsel for the parties and have also considered the materials on record. While it is true that one of the witnesses examined in the enquiry had stated that the petitioner had told him about taking of betel-nut and having not feeling well, and in his deposition there was no mention of consumption of liquor by the petitioner, but, he had stated in his deposition that the petitioner who was assigned duties at the main gate of the sentry post was sitting in a comer and his rifle was lying at a distance. Noticing the said position, the witness had asked another CRPF personnel to deposit the rifle in proper place and thereafter changed the duty of the petitioner. Another sentry was given in his place. 9. Another witness (Witness No. 2) in his deposition did not state anything incriminating against the petitioner. From the kind of deposition he had made it appears that he had turned hostile. The third witness in his deposition categorically stated that the petitioner was found lying unconscious in a corner and his rifle was lying on the other corner. 9. Another witness (Witness No. 2) in his deposition did not state anything incriminating against the petitioner. From the kind of deposition he had made it appears that he had turned hostile. The third witness in his deposition categorically stated that the petitioner was found lying unconscious in a corner and his rifle was lying on the other corner. He then immediately called the Battalion Hawaldar, Major and Guard Commander Battalion Hawaldar. As per the order of this witness, the weapon was deposited in the Kot and the duty of the petitioner was changed. He, in his deposition categorically stated that the battalion was located in a sensitive area and such negligence on the part of the petitioner could have resulted in dangerous incident. He also stated that had it been some other person he could have easily taken the rifle. When asked by the Enquiry Officer the witness categorically stated that such behavior on the part of the petitioner was because of his drunken condition. As regards medical examination, his answer was in the negative. 10. In the enquiry proceeding, the petitioner was generally asked certain questions. In respect of the specific question as to whether he would plead guilty of the charges levelled against him, his answer was "Yes Sir". As regards presenting of defence witness, his answer was "No Sir". 11. On conclusion of the enquiry, the Enquiry Officer submitted his report, in which both the charges leveled against the petitioner was stated to have been established. The report was forwarded to the disciplinary authority by letter dated 31.5.2003. As to what happened thereafter has been noticed above. The disciplinary authority while passing the impugned order of removal from service, duly considered the records including the evidence and other related materials to the enquiry and came to the conclusion that it would not be conducive to retain the petitioner in the CRPF, a disciplined force. The appellate and revisional authorities also duly considered the appeal and the revision petition filed by the petitioner and by the impugned orders rejected the same. 12. Although, Mr. The appellate and revisional authorities also duly considered the appeal and the revision petition filed by the petitioner and by the impugned orders rejected the same. 12. Although, Mr. Goswami, learned counsel for the petitioner has argued that having regard to the evidence on record, the matter was required to be dealt with leniently by imposing any lesser punishment, but having regard to the gravity of the misconduct coupled with the fact that the petitioner on earlier occasions also was found to be negligent and was imposed with the punishment as indicated in the Article of Charge No. 2, the disciplinary authority did not commit anything wrong in imposing the penalty of removal from service. As stated in the counter affidavit, because of such remissness in duties coupled with absenteeism, the petitioner was earlier warned to be careful in future. However, there was no improvement on his part and on the particular day, he had even gone to the extent of abandoning his rifle meant for assisting him in safeguarding the sentry point (main gate). As the evidence has disclosed he had consumed liquor and was lying in one comer of the sentry gate while his rifle was lying in another comer. As deposed by Witness No. 3 anybody could have picked up the rifle from the place. 13. The petitioner having been assigned a sensitive duty as sentry guard was not expected of abandoning his duty by consuming liquor which resulted in his lying in one comer of the sentry gate and abandoning his rifle which was found lying in another comer. 14. In the memorandum of charges, the petitioner was charged not only of the said incident but was also in respect of remissness of duties and absenteeism as indicated in the Article of Charge No. 2. It was also indicated that he was making noise after consuming liquor at 9.00 O'clock in the morning of 9.11.02, on which date he was medically examined. If such was the conduct on the part of the petitioner, in my considered opinion, the disciplinary authority did not commit anything wrong in dispensing with his services. 15. At this stage, Mr. It was also indicated that he was making noise after consuming liquor at 9.00 O'clock in the morning of 9.11.02, on which date he was medically examined. If such was the conduct on the part of the petitioner, in my considered opinion, the disciplinary authority did not commit anything wrong in dispensing with his services. 15. At this stage, Mr. Goswami learned counsel for the petitioner referring to Section 11 of CRPF Act, 1949 submits that for the misconduct attributed to the petitioner even if said to have been established, the petitioner could not have been imposed with major penalty of removal from service. On a bare perusal of the provision of Section 11 of the Act, will go to show that minor penalty prescribed therein are in reference of suspension or dismissal etc. On the other hand Section 11(1)(e) also provides for removal from any office etc. Rule 27 of the CRPF Rules while prescribes procedure for awarding punishment prescribes the punishment of dismissal or removal from the force. The enquiry was conducted as per the provision of Rule 27 of the said rules. In view of the above, the writ petition merits dismissal, which I accordingly do. The writ petition is dismissed leaving the parties to bear their own costs. Petition dismissed