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2013 DIGILAW 567 (GAU)

Firoz Ahmed Khan v. Union of India

2013-08-14

A.K.GOSWAMI

body2013
JUDGMENT Arup Kumar Goswami, J. 1. Heard Ms. B. Goyal, learned counsel for the petitioner. Also heard Ms. B. Das, learned CGC, appearing for the respondents. A departmental enquiry was initiated against the petitioner by Memorandum dated 27.09.1996 under Rule 27 of the Central Reserve Police Force Rules, 1955, in short, CRPF Rules, on article of charges which were annexed as Annexure - I thereto. 2. After the petitioner had submitted the written statement, an Enquiry Officer was appointed. On conclusion of enquiry, Enquiry Report was furnished to the petitioner by Memorandum dated 11.04.1997 indicating that if he so desired, he may submit representation within 15 days and that he could avail opportunity of personal hearing of the disciplinary authority. He did not avail opportunity of personal hearing and by an application dated 21.04.1997 stated that he had nothing more to add. 3. By an order dated 03.05.1997 (Annexure - IV), the Commandant, 35th Bn, CRPF, Silchar, on consideration of the records, in exercise of power under section 11(I) of CRPF Act, 1949 read with Rule 27(A) of the CRPF Rules imposed the penalty of dismissal from service upon the petitioner and struck his name off from the strength of the unit. In respect of his period of suspension from 16.06.1996 to 03.05.1997, it was provided that he would not be entitled to any other emoluments except what had been already received by him. 4. The charges which were framed against the petitioner are as follows: ARTICLE - I That the said No. 921350481 CT/Dvr Feroz Ahmed Khan of Group Centre, CRPF, Khatkhati (Assam), while functioning as Constable/Driver in GC CRPF Khatkhati MT Section, has committed an act of misconduct/disobedience in the discharge of duty in his capacity as a member of the Force U/S. 11(1) of CRPF Act - 1949, in that he had taken out the vehicle Regn No. DL-IG-6503 3/5 Ton tata truck from the MT park of GC CRPF Khatkhati on 16/6/96 at about 12:30 hrs without proper vehicle indent and permission from the competent authority. ARTICLE - II That the said No. 921350481 CT/Dvr Feroz Ahmed Khan of GC, CRPF, Khatkhati (Assam), who had taken away the vehicle Regn No. DL-IG-6503 3/5 ton tata truck without valid authority, while returning from Lahorijan, has driven the vehicle in a very rash and negligent manner as a result of which the vehicle met with an accident with one civil scooter on 16/6/96 at about 1300 hrs near Gautam Basti at a distance of 1 km from GC campus, in which the driver and pillion rider were killed. Thus he had violated Motor Vehicle Act sections 87 and 89 and committed an act of misconduct and negligence in the discharge of duty in his capacity as a member of the Force U/S. 11(1) of CRPF Act - 1949. ARTICLE - III That the said 921350481 CT/Dvr Feroz Ahmed Khan of GC, CRPF, Khatkhati (Assam), after the accident, he rushed/drove 3/5 ton vehicle in a great speed and reached MT park. In the process the scooter which was struck to the bumper and tie rod was also brought to MT park by him. He threw the scooter in nearby Nallah in order to destroy the evidence. Thus he committed an act of misconduct and negligence in the discharge of duty in his capacity as a member of the Force U/S. 11(1) of CRPF Act - 1949. 5. It appears from the order dated 03.05.1997, that Charge - I was partially proved and Charge No. III was fully proved. 6. Aggrieved by the order of dismissal from service, the petitioner filed writ application before the High Court of Judicature at Allahabad being Civil Misc. Writ Petition No. 32551 of 1998. 7. It appears that in respect of the vehicular accident referred to in Charge No.-II, a Criminal Case was registered and the Magistrate, 1st Class, Karbi-Anglong, acquitted the petitioner in G.R. Case No. 332/1996 under section 279 /304(A) /427 I.P.C. by an order dated 05.03.2001 which reads as follows: Accd. (1) Firoz Ahmed Khan appeared. Summons to witness (1) Lalbabu Kumar, (2) Bikash Tiwari, (3) Amar Chetri returned with report that they are not traceable, hence their evidence is dispensed with. It is seen that all the above witnesses are non-official witnesses, and other remaining witnesses are official witnesses. It is also seen that I/O, S.I. Prafulla Hazarika has since expired. Summons to witness (1) Lalbabu Kumar, (2) Bikash Tiwari, (3) Amar Chetri returned with report that they are not traceable, hence their evidence is dispensed with. It is seen that all the above witnesses are non-official witnesses, and other remaining witnesses are official witnesses. It is also seen that I/O, S.I. Prafulla Hazarika has since expired. In view of this, it is seen that there are no witnesses to prove the case, hence I find no grounds to continue with the case. As such, Firoz Ahmed Khan is acquitted and case is disposed of accordingly. Seized articles to be returned to the actual owners. 8. The Civil Misc. Writ Petition No. 32551/1998 was disposed of by an Order dated 27.05.2005. The relevant extract of the said order, as annexed by the petitioner in a type-written form (not copy of certified copy), which is full of mistakes, beginning from the writ petition number, name of the Hon'ble Judge - in one place written as Shiahider Kumar and in another place as Shishir Kumar, etc. is reproduced herein below: Now the petitioner states that in the criminal case, the petitioner has already been acquitted by the order dated 5/3/2001, the petitioner, therefore submits that the order of dismissal has already vanished and now that petitioner having been acquitted in the criminal case, the dismissal order is liable to be quashed. The further contention of the petitioner has submitted the representation to this affect before the authorities that as the petitioner has already been acquitted in the criminal case, therefore the petitioner may be reinstated. The respondents have not passed any order in spite of the repeated requests and representation by the petitioner. I have heard learned counsel for the parties. After taking into considering the facts that the court and the petitioner was dismissed on the basis of the involvement in the criminal case, as such it will be appropriate that the respondent no. 2 may decide the representation on the petitioner for reinstatement. It is provided that if the petitioner a supplementary representation annexing all the relevant documents thereto within a period of three pass a detailed and reasoned order according to law preferable within period of three months from the date of production of the certified copy of this order. 9. 2 may decide the representation on the petitioner for reinstatement. It is provided that if the petitioner a supplementary representation annexing all the relevant documents thereto within a period of three pass a detailed and reasoned order according to law preferable within period of three months from the date of production of the certified copy of this order. 9. The tenor of the order would go to show that the petitioner had pleaded that in view of his acquittal in the criminal case, the dismissal order was liable to be interfered with and it is on that basis, the High Court of Judicature at Allahabad directed disposal of the representations. Subsequent to the said order dated 27.05.2005, the petitioner filed a representation dated 09.06.2005 to ADIGP, GC, CRPF, which was forwarded to the Deputy Inspector General of Police, CRPF, being the appellate authority. The Deputy Inspector General of Police, CRPF, by its order dated 20.09.2005, rejected the representation, holding that only because of his acquittal from the criminal charges, he was not entitled to be reinstated in his service in view of the fact that dismissal order was passed on the basis of charges proved in a departmental proceeding and the charges framed against him in the departmental proceedings are different from the charges against him in criminal trial. In the said order, it has also be noted that during the course of disciplinary proceeding, the petitioner was afforded ample opportunity at each and every stage to defend his case. 10. The petitioner, thereafter, filed a representation to the Inspector General of Police, NES, CRPF, Shillong, Meghalaya under "section 29 of the CRPF Rules 1955" against the order dated 20.09.2005. The said representation was also rejected by the Inspector General of Police, NES, CRPF by an order passed on 13.07.2006, reiterating the view taken by the Deputy Inspector General of Police in his order dated 20.09.2005. 11. Against the said orders, the petitioner again approached the High Court of Judicature at Allahabad by filing Civil Misc. Writ Petition No. 58871 of 2006. However, the said writ petition was dismissed for want of territorial jurisdiction, granting liberty to the petitioner to approach the Court of competent jurisdiction and accordingly, the present writ petition was filed before this Court. 12. Ms. Writ Petition No. 58871 of 2006. However, the said writ petition was dismissed for want of territorial jurisdiction, granting liberty to the petitioner to approach the Court of competent jurisdiction and accordingly, the present writ petition was filed before this Court. 12. Ms. B.S. Goyal, learned counsel for the petitioner submits that the petitioner had taken out the vehicle on the direction of one Dola Ram Dogra, who was the M.T. Hawaldar and the authorities of the CRPF failed to take into consideration this aspect of the matter and as such the imposition of penalty by way of dismissal from service was not justified. It is also argued by Ms. Goyal that as the petitioner had earned acquittal in the criminal case, the respondent authorities ought to have reinstated the petitioner by withdrawing the dismissal order. She, however, very fairly submits that the petitioner has not alleged violation of procedural safeguards available during the course of disciplinary proceedings. It is also contended by her that Dola Ram Dogra was also proceeded against but he was imposed with penalty of only demotion of 1 rank and withholding of increments for 2 years, whereas, the petitioner had been awarded extreme penalty of dismissal from service. It is submitted that the respondent authorities could not have applied different yardsticks in the matter of imposition of penalty arising out of similar charges and, therefore, respondent authorities are liable to be directed to reconsider the penalty imposed upon the petitioner. 13. Ms. B. Das, learned CGC, submits that merely because the petitioner had been acquitted, it does not logically follow that re-instatement had to be resorted to, more so, when dismissal had ensued following a disciplinary proceeding. It is also submitted by her that the petitioner has not placed on record any material to show that the charges of Dola Ram Dogra and the petitioner are alike so as to claim parity in the matter of imposition of penalty. The learned counsel submits that after the accident, the petitioner had sought to destroy evidence, which is the allegation in Charge No. III. Charge No. III having been proved, the view taken by the authorities cannot be said to be arbitrary or illegal. 14. I have heard the submissions of the learned counsel and have perused the materials on record. 15. Charge No. III having been proved, the view taken by the authorities cannot be said to be arbitrary or illegal. 14. I have heard the submissions of the learned counsel and have perused the materials on record. 15. A perusal of the writ petition would go to show that it has been structured on the basis that acquittal of the petitioner in the criminal case is the sheet-anchor. But it is not the case that the petitioner was dismissed from service only on the ground of pendency of a criminal case. The petitioner had been dismissed from service on the basis of a disciplinary proceeding held against him, some of the charges having been established. The disciplinary proceeding and a criminal proceeding stand on two different footings. Merely because of the petitioner's acquittal in a criminal case, ipso facto, the disciplinary proceeding does not get wiped out. The very foundation of the case of the petitioner in the present case that he should be reinstated in his service consequent upon his acquittal in the criminal case is fallacious and has got no merit. 16. So far as the plea taken by Ms. Goyal that Dola Ram Dogra was leniently dealt with, there is no material on record. Such a plea was not taken in the writ petition and it was only during the course of argument, Ms. Goyal has raised the point. If the charges were similar and identical, it was obligatory on the part of the petitioner to have brought on record the charges levelled against Dola Ram Dogra so as to enable the Court to consider plea of parity in the matter of imposition of penalty. The other submission of Ms. Goyal that the authorities did not take into account the plea of the petitioner in respect of Charge No. I that he had acted upon on instructions of Dola Ram Dogra was not considered by the authority does not have any leg to stand because it is the submission of Ms. Goyal that he was also departmentally proceeded with and therefore, merely because the petitioner had acted upon instructions issued unauthorisedly would not suffice. Furthermore, in the entire writ petition, there is no challenge to the finding with regard to the charge No. III. Goyal that he was also departmentally proceeded with and therefore, merely because the petitioner had acted upon instructions issued unauthorisedly would not suffice. Furthermore, in the entire writ petition, there is no challenge to the finding with regard to the charge No. III. In view of the above discussion, I am constrained to hold that there is no merit in this writ application and accordingly, the writ petition is dismissed. No cost. Petition dismissed