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2013 DIGILAW 815 (GAU)

Beg Bahadur Kami v. Union of India and Ors.

2013-11-19

HRISHIKESH ROY

body2013
Heard Mr, P.K.R. Choudhury, the learned counsel appearing for the petitioner. The respondents are represented by Mr. R. Sarma, the learned Assistant Solicitor General of India. 2. The petitioner was a constable (General Duty) in the 15th Bn. of the SSB and while being posted at Bongaigaon in the Battalion Headquarter, he was assigned to perform sentry duty at the gate of the Battalion Headquarter. He was assigned rotational sentry duty on the night of 26.6.2006 and since he neglected his duty and abandoned his sentry post without due authorization which resulted in loss of his S.L.R. weapon and magazine, a disciplinary proceeding with the charge memo dated 7.8.2006 (Annexure 1) was drawn up by the Commandant of the Battalion. For ready reference the 4 charges are being extracted hereinbelow : "Article of Charge No. I That the said CT/GD No.8750253 Beg Bahadur Kami of ‘C' Coy of 15th Bn. SSB was deployed in the guard at Gate No. 2 at Bn. Hqr. For performing guard duty. The said CT/GD No.8750253 Beg Bahadur Kami committed negligence and remissness in the discharge of his duties in that on the intervening night of 26th and 27th June, 2006 he failed to ensure the security of one 7.62 mm self loading rifle Butt No.270 and Body No. E.E. 7386 along with one S.L.R. Magazine, containing 10 live rounds of 7.62 mm issued to him and thereby caused loss of one S.L.R. rifle and one S.L.R. magazine with 10 live rounds of 7.62 mm to the Government. Article of ChargeNo. II That the said No. 8750253 CT/GD Beg Bahadur Kami of 'C' Coy of 15th Bn. SSB committed gross misconduct, dereliction and remissness in the discharge of his duties in that while performing sentry duty at Gate-No. 2 at Bn. Hqr. From 2000 Hrs. to 2300 Hrs. on 26.6.2006 quit his post at 2250 Hrs. with his rifle 7.62 mm S.L.R. But No.270, Body No.EE-7386 along with loaded magazine containing 10 rounds of 7.62 mm without being regularly relieved by his reliever and went into the jungle to answer natural call. He exhibited gross negligence and remissness in the discharge of his duties and thus violated section 11(1) of CRPF Act, 1949 and Rules 1955. Article of Charge No. III That the said No. 8750253 CT/GD Beg Bahadur Kami of C Coy of 15th Bn. He exhibited gross negligence and remissness in the discharge of his duties and thus violated section 11(1) of CRPF Act, 1949 and Rules 1955. Article of Charge No. III That the said No. 8750253 CT/GD Beg Bahadur Kami of C Coy of 15th Bn. SSB committed gross misconduct, negligence/remissness in the discharge of his duties in that while performing sentry duty at Gate No.2 at Bn. Hqr. on 26.6.2006 from 2000 Hrs. to 2300 Hrs. he was in a state of intoxication. At about 2250 Hrs. he left the campus with his rifle, 7.62 mm S.L.R. Butt No.270, Body No.EE-7386 with loaded magazine containing live 10 rounds of 7.62 mm, without the permission of the competent authority to answer natural call. He returned back without the said rifled leaving it in the jungle. He thus committed offence by violating section 11(1) of CRPF Act, 1949 and rule 1955. Article of Charge No. IV That the said No. 8750253 CT/GD Beg Bahadur Kami of C Coy of 15th Bn. SSB committed negligence and dereliction in the discharge of his duty in that while performing guard/sentry duty at Gate No. 2 at Bn. Hqr. He did not secure his personal weapon 7.62 mm S.L.R. Butt No.270, Body No.EE-7386 with magazine and 10 rounds live 7.62 mm to his felt with dog chain as is the norm and thereby lost the rifled in the jungle. He, thus, exhibited gross negligence and remissness in the discharge of his duty resulting in the loss of the said rifle with magazine and 10 live rounds of 7.62 mm and violated Sec. 11(1) of CRPF Act, 1949 and Rules, 1955." 3. During the preliminary hearing on 23.8.2006, the petitioner pleaded guilty to all the 4 charges but nevertheless the procedure for award of punishment prescribed under rule 27 of the Central Reserve Police Force Rules, 1955 ('the CRPF Rules') was adhered to by ordering a formal enquiry on the charges. 4. The enquiry was conducted by the Dy. Commandant Shri Vandana Saxena where the petitioner was given all opportunity to defend the charges. On Charge No.1, the evidence of the petitioner himself and one local villager Shankar Basumatary shows that while performing sentry duty on 26.6.2006 between 2000 Hrs. to 2300 Hrs., the constable abandoned his post and proceeded to the river side to answer nature's call. Commandant Shri Vandana Saxena where the petitioner was given all opportunity to defend the charges. On Charge No.1, the evidence of the petitioner himself and one local villager Shankar Basumatary shows that while performing sentry duty on 26.6.2006 between 2000 Hrs. to 2300 Hrs., the constable abandoned his post and proceeded to the river side to answer nature's call. Thereafter he went to the residence of the witness Shankar Basumatary of Khusulupara village to consume local liquor. From Shankar Basumatary, the charged constable got ½ bottle of liquor and drank up. Then resting his weapon and magazine on the wall of Shankar Basumatary's house, the petitioner went for urination. But after he returned, he found the S.L.R. rifle and ammunition missing. It was suspected that the carbine and the magazine were taken away by Anil Basumatary, a nephew of Shankar Basumatary who took advantage of the negligence of the petitioner. On the missing weapon the Dhaligaon P.S. Case No.58/2006 was registered under section 380 of IPC but the lost arms could not be recovered. 5. Representing the petitioner, advocate Mr. P.K.R. Choudhury submits that the petitioner left his sentry post without permission only because the guard commander Nil Bir Singh was not present at that point of time. Projecting the pressing nature's call which the constable had to answer, the counsel argues that deserting the sentry post by the petitioner should be understood in the context of the pressing situation. The proportionality of the dismissal punishment is also being questioned by the petitioner's lawyer. 6. In his turn, Mr. R. Sarma, the learned Assistant Solicitor General of India submits that petitioner left his post without permission not only to answer nature's call but he also left the battalion campus to visit the civilian liquor seller Shankar Basumatary to procure intoxicant. Since the irresponsibility of the petitioner has not only led to loss of weapon and ammunition but had put the entire' battalion into serious risk, the respondents contend that such gross negligence and dereliction of duty by a disciplined member of the force can't be condoned and, therefore, the punishment is contended to be justified bearing in mind the proven charges. 7. Since Mr. P.K.R. Choudhury argues that no material evidence to link the charge could be presented in the enquiry, the evidences of the witnesses have been examined 8. 7. Since Mr. P.K.R. Choudhury argues that no material evidence to link the charge could be presented in the enquiry, the evidences of the witnesses have been examined 8. Before the enquiry officer, the petitioner in his own evidence stated that since the reliever constable Lal Khama was delayed, because of his upset stomach, he went towards the river side to relieve himself. Then he went to the residence of Shankar Basumatary, a civilian and purchased ½ bottle of local brew which he drunk while sitting outside the residence of Shankar Basumatary. When he needed to urinate, keeping his rifle and magazine resting on the wall of Shankar Basumatary's residence, the petitioner went to relieve himself. But when he returned he found the S.L.R. and the magazine were missing. But being scared and drunk, instead of immediately reporting the loss of weapon and magazine, he returned to the Bn. campus and without informing anyone, went of to sleep. 9. The civilian Shankar Basumatary stated in the Enquiry that he sells liquor and on the night of 26.6.2006 at about 2030 hours, he made available ½ bottle of liquor to the charged constable at his request. This liquor was consumed by the petitioner while he sat outside the house of Shankar Basumatary tor about 45 minutes. Thereafter when he carelessly left the weapon and magazine to urinate, taking the advantage of the situation the witness's nephew Anil Basumatary fled away with the S.L.R. and the. magazine. 10. The report given by the enquiry officer on 7.10.2006 indicates that all the material evidence was considered by him and upon due analysis and assessment of the evidence, all the 4 charges were held to be proved. Thereafter the enquiry report was furnished to the delinquent and he was given a 2nd show-cause notice and after consideration of the reply of the charged constable, the penalty of dismissal from service was ordered by the Commandant on 12.1.2007. The resultant appeal filed by the dismissed constable was rejected by the appellate authority on 11.4.2007. 11. Sitting as a writ court, scope of intervention in a disciplinary proceeding is limited. Only when unfairness is noticed and the disciplinary proceeding is found to be inconsistent with the statutory prescription, intervention of the court may be justified in a given case. The resultant appeal filed by the dismissed constable was rejected by the appellate authority on 11.4.2007. 11. Sitting as a writ court, scope of intervention in a disciplinary proceeding is limited. Only when unfairness is noticed and the disciplinary proceeding is found to be inconsistent with the statutory prescription, intervention of the court may be justified in a given case. Under rule 27(c) of the CRPF Rules, after substances of the charges are furnished, the accused is permitted to give his response before formal enquiry commences. Here during the preliminary proceeding, the constable pleaded guilty to the charges. But nevertheless as per the laid down procedure under sub-rule (2) of the rule 27(c); enquiry was conducted and evidence was allowed to be adduced by both sides and cross-examination of witnesses was also permitted. As it appears the charges were held to be proved on material evidence by the Inquiry Officer. 11. As earlier indicated, the delinquent himself admitted the substance of the charges both at the preliminary stage and also during the departmental enquiry and his evidence stands corroborated by the evidence of the liquor seller Shankar Basumatary. Therefore, the conclusion reached by the enquiry officer is found to be based on material evidence. Moreover, the proceedings are found to be fair and consistent with the statutory prescription under the CRPF Rules. 12. On the plea of disproportionate penalty urged by the petitioner, it must be borne in mind that the petitioner was on sentry duty in the Bn. Hqr. Therefore, the safety and security of the men and officers of the Bn. were under the care of the sentry constable. Yet without due permission, the petitioner abandoned his sentry post to go to the river side to answer nature's call. If he would have returned even at that stage, there could have been scope for considering a lesser punishment for the delinquent. But initial abandonment of the sentry post was compounded by the fact that the petitioner went to a liquor vendor and purchased and consumed ½ bottle of liquor. Thereafter either because he was too drunk or simply careless, he facilitated theft of his weapon and magazine by the nephew of the liquor seller. Such irresponsible conduct of the petitioner is not only unbecoming of a member of a disciplined force but also led to compromising the security of all the battalion members. Thereafter either because he was too drunk or simply careless, he facilitated theft of his weapon and magazine by the nephew of the liquor seller. Such irresponsible conduct of the petitioner is not only unbecoming of a member of a disciplined force but also led to compromising the security of all the battalion members. Therefore considering the gravity and consequence of the misconduct, the punishment of dismissal is found to be proportionate and reasonable. 13. In the above circumstances, I don't see any merit in the present case and accordingly the same is dismissed accordingly without any order on cost.