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2014 DIGILAW 107 (MAN)

N. Kunjeshor Singh v. Union of India

2014-09-02

LAXMI KANTA MOHAPATRA, N.KOSIWAR SINGH

body2014
JUDGMENT N. Kotiswar Singh, J. 1. Heard Mr. Kh. Tarunkumar, learned counsel for the petitioner as well as Mr. Amarjit Naorem, learned CGSC for the respondents. 2. The present petition has been filed by the petitioner who was serving as a Constable (GD) in the Central Reserve Police Force (CRPF in short), challenging his dismissal order dated 3.08.2012 (Annexure-A/4) as well as order dated 27.02.2013 (Annexure-A/9) rejecting his appeal by the appellate authority. 3. The petitioner while he was serving as a Constable at the 165 Bn. CRPF Tangasole, West Medinipur (West Bengal), Govt. of India was placed under suspension on 3.07.2012 in contemplation of a disciplinary proceeding against him. 4. Thereafter, a case was taken up by the Court of Chief Judicial Magistrate-cum-Commandant, 165 Bn. CRPF by registering a case being Case No. 01/2012-165Bn.CRPF against the petitioner on the charge that on 2.07.2012 at about 2120 hours, the petitioner while being deployed on sentry duty at Morcha No. -02, LMG post, quit his post with his arms and remained outside the camp area without permission. He was also charged to have been found in a state of intoxication by consuming liquor outside the camp area while on duty. The Court, after the trial, found the petitioner guilty of the charges levelled against him under Sections 10(a) and 10(p) of CRPF Act, 1949 and was convicted for the said offences vide judgment and order dated 28.07.2012 (Annexure-A/2). It was recorded in para 3 of the judgment that the petitioner was examined on 24.07.2012 and he pleaded guilty to the charges levelled against him. However, in the interest of natural justice, he was given opportunity to cross examine PWs and to produce his defence witnesses. He pleaded to defend his own case and did not avail the services of any defence counsel despite being given the opportunity to do so. The Chief Judicial Magistrate-cum-Commandant heard the petitioner on the quantum of punishment after his conviction to which he had pleaded for mercy due to his young age and considering his age and family responsibilities, the Court sentenced him to undergo imprisonment till the rising of the Court. 5. On conclusion of the trial and passing of the judgment by the Court of Chief Judicial Magistrate-cum-Commandant, 165 Bn. CRPF, convicting the petitioner, the Commandant issued a show cause notice to the petitioner to decide on the quantum of penalty. 5. On conclusion of the trial and passing of the judgment by the Court of Chief Judicial Magistrate-cum-Commandant, 165 Bn. CRPF, convicting the petitioner, the Commandant issued a show cause notice to the petitioner to decide on the quantum of penalty. Thereafter, after considering the reply of the petitioner, the impugned dismissal order was passed on 3.8.2012 imposing the major penalty of dismissal from service under Section 12(1) of the CRPF Act, 1949 read with Section 11(1) of CRPF Act, 1949 Rule 27 of CRPF Rules, 1965 and Rule 19(i) of Central Civil Services (Classification, Control and Appeal) Rules, 1965. 6. Being aggrieved by the aforesaid dismissal order, the petitioner preferred a departmental appeal as provided under Rule 28 of the CRPF Rules, 1955 before the Deputy Inspector General, Range, CRPF, Imphal. In the said appeal, the petitioner took the plea that as per Rule 27 of the CRPF Rules, 1955, a specific Articles of Charge is to be framed and a copy of which is to be supplied to the charged official which was not done in his case. The petitioner also pleaded that his right to engage a Defence Assistant to assist him during the course of the disciplinary proceeding was also denied. Further, it was also contended that no Presenting Officer was appointed to represent the proceeding, as such, the Enquiry Officer assumed the role of the Judge and Prosecutor which is not permissible in law and the dismissal order was issued without considering his long service career of 8 (eight) years. 7. The appeal was disposed of by the appellate authority by modifying the order of the Disciplinary Authority by converting the penalty of dismissal to removal from service under Rule 28 of CRPF Rules 1955 w.e.f. 3.08.2012. Being aggrieved by the removal order, the present writ petition has been preferred. 8. In this writ petition, the petitioner has raised similar grounds which he took in his statutory appeal before the appellate authority viz., the petitioner was not given any Article of Charge, that no Presenting Officer was appointed, no Defence Assistant was appointed and that the authorities did not take into consideration of his long service of past 8(eight) years. 9. In this writ petition, the petitioner has raised similar grounds which he took in his statutory appeal before the appellate authority viz., the petitioner was not given any Article of Charge, that no Presenting Officer was appointed, no Defence Assistant was appointed and that the authorities did not take into consideration of his long service of past 8(eight) years. 9. On hearing learned counsel for the petitioner as well as the respondents and also on perusal of the records, it is seen that the petitioner was tried by the Court of Chief Judicial Magistrate-cum-Commandant 165 Bn., CRPF for an offence under Section 10(a) of the CRPF Act, 1949. He was convicted and sentenced by the Court as per judgment dated 28-07-2012. However, he has not questioned the legality or validity of the said judgment dated 28.07.2012 passed by the Chief Judicial Magistrate-cum-Commandant 165 Bn., CRPF on any ground. In other words, the conviction by the Court of Chief Judicial Magistrate-cum-Commandant 165 Bn., CRPF of the petitioner on the charge of quitting of his post with arms issued to him and also being found in a state of intoxication of liquor outside the camp area while on active duty which are offences under Sections 10(a) and 10(p) of the CRPF Act, 1949 stands unchallenged. After being convicted, the petitioner was sentenced to imprisonment till the rising of the Court. Section 12 of the CRPF Act, 1949 provides that every person sentenced under this Act to imprisonment may be dismissed from the Force, and shall further be liable to forfeiture of pay, allowance and any other moneys due to him, as well as of any medals and decorations received by him. Thus, if any CRPF person is convicted and sentenced to undergo imprisonment under the Act, he will be liable to be dismissed from the post. The scheme of the CRPF Act, 1949 does not provide for an additional proceeding of departmental inquiry after being convicted by the Court convened under the Act. The authorities could proceed to impose the penalty of dismissal on the strength of the order of conviction and imprisonment passed by the competent Court under the Act as provided under Section 12 of the Act. This is what had been done by the authorities. The authorities could proceed to impose the penalty of dismissal on the strength of the order of conviction and imprisonment passed by the competent Court under the Act as provided under Section 12 of the Act. This is what had been done by the authorities. In the present case, the petitioner was dismissed from service by the dismissal order dated 3.08.2012 though subsequently converted to the penalty of removal, after the petitioner was convicted and sentenced to imprisonment till rising of the Court as stated above. Therefore, since no further departmental inquiry was required to be conducted after being convicted by the Court, the question of following the procedures prescribed or required to be followed in any normal departmental proceeding does not arise. Pleas taken by the petitioner in challenging the order of removal is based on the premise that a departmental inquiry is to be conducted in respect of the charge levelled against the petitioner. If the petitioner had not been tried by the Court but had been proceeded under the normal departmental inquiry, perhaps pleas raised by the petitioner could have been considered to ascertain whether there were procedural lapses as alleged. However, since no departmental inquiry had been proceeded against the petitioner as it was not required to do so as he was already convicted by the Court as provided under the Act, the question of submission of memorandum of charges or appointment of Presenting Officer or Defence Assistant does not arise. 10. It may be also observed that in the trial conducted before the Court of Chief Judicial Magistrate-cum-Commandant 165 Bn., CRPF, the charge was read out to him to which he had pleaded guilty. He was also given the opportunity to take assistance of a defence counsel which he did not avail and also he was given the opportunity to produce his witnesses and cross-examine the prosecution witnesses which he declined to do so. Therefore, a perusal of the judgment dated 28.7.2012 would indicate that the petitioner was afforded reasonable opportunities to defend himself and as such this Court is of the view that no prejudice can be said to have been caused to the petitioner. It may be also observed that the appellate authority had duly considered the memorandum of charges and in fact, reduced the penalty from that of dismissal to removal from service. It may be also observed that the appellate authority had duly considered the memorandum of charges and in fact, reduced the penalty from that of dismissal to removal from service. Since the petitioner has not at all challenged the findings and validity of the judgment dated 28.07.2012 by which the petitioner was convicted and sentenced to undergo imprisonment till the rising of the Court, and since the petitioner has not been able to show any procedural lapses in acting upon the said conviction by the judgment of the Court of CJM-cum-Commandant, we are of the view that no case has been made out for interference with the disciplinary order passed by the disciplinary authority/competent authority. 11. In the result, for the reasons discussed above, the writ petition fails and is accordingly dismissed.