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2014 DIGILAW 54 (JK)

Mushtaq Ahmad Bhat v. Union Of India

2014-02-13

Hasnain Massodi

body2014
1. Petitioner on the strength of averments made in the petition seeks following relief: I) Certiorari, quashing impugned order of dismissal of petitioner issued by Commandant 147th Bn. CRPF vide No. P.VIII.1/2008-EC-II-174 dated 12th February 2009. II) Certiorari, quashing impugned enquiry report handed over to the petitioner vide letter No. P VIII-I/09-EC-II dated 13th January 2009. III) Certiorari, quashing impugned order of rejection, thereby rejecting the appeal of the petitioner, issued by DIG CRPF Raipur CHHATISGARH vide his No.R.13174/09.EC I, dated 18.09.2009. IV) Mandamus, commanding respondents to reinstate the petitioner as Constable/GD in the Force of CRPF on his own post. V) Mandamus, commanding respondents to treat the period of suspension of the petitioner till date as on duty. VI) Mandamus, commanding respondents to release the pay and all other consequential benefits and allowances in favour of the petitioner till date and in future also. VII) Prohibition, prohibiting respondents from filling the post of Constable falling vacant due to dismissal of the petitioner from the services or in alternative the respondents be directed to keep the said post vacant till the matter is finally decided by this Hon'ble court. 2. Respondents oppose writ petition on the ground that dismissal order No.P.VIII.1/ 2008-EC-II-174 dated 12th February 2009, impugned in the petition, was passed after inquiry was conducted in accordance with law wherein petitioner was afforded full and fair opportunity to put forth his stand and that order therefore did not call for any interference. It is pleaded that petitioner while serving respondent Force as Constable (GD), was on 14.04.2008 arrested by Police Station Achabal, at Methmooh, Chatergul Utrasoo, as he was found in possession of 2 Kg-750 gms of a narcotic substance. The charge, according to respondents, was proved against petitioner in a regular inquiry conducted by Shri B.L. Meena, Assistant Commandant. The outcome of inquiry and proposed punishment is said to have been conveyed to petitioner to afford him opportunity to submit his response. The impugned dismissal order is said to have been passed only after the response received was gone through and found to be without any merit. Respondents on similar grounds also defend the order passed in Appeal preferred by petitioner against dismissal order before DIG CRPF Raipur, Chhattisgarh. Respondents insist that petition is without any merit and deserves outright dismissal. 3. Heard and considered. 4. Respondents on similar grounds also defend the order passed in Appeal preferred by petitioner against dismissal order before DIG CRPF Raipur, Chhattisgarh. Respondents insist that petition is without any merit and deserves outright dismissal. 3. Heard and considered. 4. Perusal of record reveals that police station Achabal on recovery of substance suspected to be narcotic from petitioner, registered case FIR No.40/2008 under Section 22 NDPS Act against petitioner. The investigation culminated in charge sheet presented against petitioner before learned Additional Sessions Judge, Anantnag. The Trial Court dismissed charge sheet on 29.04.2009 and acquitted petitioner of all charges. The charge against petitioner failed primarily because FSL expert expressed his inability to identify the alkaloids found in the sample taken from the substance allegedly seized from petitioner. In effect there was no evidence before the Trial Court to conclude that what had been recovered from petitioner was brown sugar or any other such substance. 5. The inquiry conducted against petitioner held petitioner to have been found in possession of Diacetylmorphine/ morphine diacetate (brown sugar). The inquiry officer though aware of the fact that substance recovered from possession of petitioner was not identified as Diacetylmorphine/morphine diacetate (brown sugar) or any narcotic substance, still held petitioner to have been guilty of carrying narcotic/ psychotropic substance as an unidentified alkaloids was found in the sample. 6. The conclusion arrived at by inquiry officer is on the face of it erroneous. It is pertinent to point out that FSL report indicated that Barbiturates, Amphetamines, Methamphetamines and LSD were not detected in the sample in question, on analysis. The report indicated presence of unidentified alkaloid. The FSL report, therefore, could not lead to the conclusion that what was recovered from petitioner was Diacetylmorphine/morphine diacetate (brown sugar). This apart, even recovery of the substance from the possession of petitioner, as opined by Trial Court, was doubtful inasmuch as mandatory provisions of NDPS Act regarding mode and manner of search, seizure and recovery, were not adhered to. 7. Petitioner admittedly faced regular inquiry on a charge that was subject matter of trial before Criminal Court i.e. Additional Sessions Judge, Anantnag. The Trial Court acquitted petitioner of all charges vide judgement dated 29.04.2009. Petitioner in terms of Rule 27 (ccc) was not to be punished departmentally on the same charge or similar charge except with the prior sanction of Inspector General, CRPF. The Trial Court acquitted petitioner of all charges vide judgement dated 29.04.2009. Petitioner in terms of Rule 27 (ccc) was not to be punished departmentally on the same charge or similar charge except with the prior sanction of Inspector General, CRPF. It would be appropriate to reproduce Rule 27 (ccc) CRPF Rules 1955 hereunder: "(ccc) when a member of the Force has been tried and acquitted by a criminal court, he shall not be punished departmentally under this rule on the same charge or on a similar charge upon the evidence cited in the criminal case, whether actually led or not, except with the prior sanction of the Inspector General" 8. In normal course, Commandant in terms of Rule 26 would be competent to award punishment of dismissal from service after formal departmental inquiry, where delinquent officer is of the rank of constable or enrolled as follower. However, Rule 27 (ccc) provides additional safeguard to a member of a Force acquitted by Criminal Court, but sought to be departmentally punished on the same or similar charge and upon the evidence cited in the criminal case. The rule makers in their wisdom have decided to get the matter examined at higher level, where Trial Court has not found substance in the charge against delinquent official. Any disregard of mandate of Rule 27(ccc) would make dismissal order liable to be set-aside. In the instant case, Commandant 174 Bn. CRPF, has vide No.P.VIII.1/2008.EC.II.174 dated 12.02.2008, imposed penalty of "dismissal from service" on petitioner. There is nothing on record to suggest that prior sanction of IG, CRPF was obtained before the penalty was imposed. 9. Mr. Zargar, learned CGSC, has been fair enough to admit that he could not come across any approval of IGP CRPF on scanning the record made available to him by respondents. In the circumstances, dismissal order impugned in the petition has been passed in violation of mandate of Rule 27 (ccc), CRPF Rules, 1955. 10. The dismissal order, therefore, cannot stand legal scrutiny. In the first place, it is based on no evidence and suffers from perversity. Secondly it is not in conformity with CRPF Rules, 1955, and in particular Rule 27 (ccc) of the Rules. Same is true about the order passed by DIF, CRPF, in the Appeal inasmuch as the appellate authority has not appreciated this aspect of the case. 11. In the first place, it is based on no evidence and suffers from perversity. Secondly it is not in conformity with CRPF Rules, 1955, and in particular Rule 27 (ccc) of the Rules. Same is true about the order passed by DIF, CRPF, in the Appeal inasmuch as the appellate authority has not appreciated this aspect of the case. 11. For the reasons discussed, writ petition succeeds and is accordingly allowed. Order No.P.VIII.1/2008.EC.II.174 dated 12th February 2008 and No. P.VIII.I/09.EC.II dated 13th January 2009, are set-aside. Resultantly, petitioner would be allowed to resume his duty. The period of absence from duty, if any, shall be settled in accordance with rules. 12. Allowed.