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Meghalaya High Court · body

2015 DIGILAW 107 (MEG)

Johnny Dkhar v. Union of India

2015-07-20

S.R.SEN

body2015
ORDER : The brief facts of the case in a nutshell is that “this writ petition is filed under Article 226 of the Constitution of India against the Impugned Appellate Order dated 24th April, 2012 passed by the Deputy Inspector General, CISF, Airport (E & NE) HQrs. Kolkata, and impugned Final Order dated 22.12.2011 passed by the Senior Commandant, CISF Unit ASG, Guwahati, Assam; in which a disciplinary proceeding was initiated against the petitioner and he was awarded the penalty of “Removal from service”. 2. The disciplinary proceeding was initiated against the petitioner and he was charge sheeted under Rule 36 of the CISF Rules 2001 with an allegation that the petitioner under the influence of liquor used filthy language against his senior officials. 3. The petitioner was kept under suspension with effect from 08.07.2011 vide order passed by the Assistant Commandant, CISF Unit, CAT, Jorhat and an Enquiry Officer was appointed to enquire about the charges leveled against the petitioner and after completion of the enquiry, the Enquiry Officer gave a report that the charges leveled against the petitioner were proved beyond reasonable doubt. 4. The petitioner joined the CISF as Constable/GD on 15.01.1994 and since then has provided about 18 years of yeoman service to his department with full dedication and honesty. 5. The brief facts of the case is that on 23.06.2011 the petitioner had proceeded to CISF Unit, ZSCBIA, Kolkata to attend the Screener Re-Certification Test and after completion of the test returned back to CISF Unit, Jorhat on 06.07.2011 at about 8:30 hours. By hiring an Auto Ricksaw, the petitioner reached CISF, CAT, Jorhat, and made an entry in the arrival GD No.217 dated 08.07.2011. After sometime he returned to the main gate and approached his senior Officer SI/Exe S.P. Yadav who was on duty at departure main gate, CISF Unit, CAT, Jorhat, to provide the petitioner a vehicle to drop him to the hospital as he was not feeling well but the said officer without understanding the petitioner’s problem assaulted the petitioner mercilessly using filthy language. Thereafter the said officer went to CASO’s office which was at a distance of about 5(five) meters from the departure main gate and after a while came out from the office along with CASO and both of them again assaulted the petitioner without any fault on the part of the petitioner. 6. Thereafter the said officer went to CASO’s office which was at a distance of about 5(five) meters from the departure main gate and after a while came out from the office along with CASO and both of them again assaulted the petitioner without any fault on the part of the petitioner. 6. Thereafter some of the CISF personnel took the petitioner to Jorhat Medical College and Hospital as per direction of the CASO and the said CISF personnel were also directed to falsely corroborate that the petitioner was under the influence of liquor. The doctor on duty on 08.07.2011 examined the petitioner and referred the petitioner to the psychiatrist for further examination and treatment. The doctor after diagnosis further stated that the petitioner was not feeling well due to sleeplessness, hunger etc., and advised him rest. But the senior officer of the petitioner did not rely upon the said medical report and took the petitioner to the Assam Rifles Hospital at Station MI Room, Jorhat No.3, Maint Group, Assam Rifle, C/O 99 APO for further medical test. However, the medical officer without examining the petitioner, much more even without touching the body of the petitioner, issued a false report to the effect that the petitioner seems conscious and aggressive smell of alcohol and alcohol breath test as positive. 7. The said medical report issued by the Assam Rifles Hospital which shows the petitioner to be under the influence of alcohol is entirely false and not based on any proper medical examination and has been procured by the senior officers of the petitioner with an ulterior motive to implicate the petitioner ignoring the medical report submitted by the doctor of the Jorhat Medical College and Hospital and the entire departmental proceeding is vitiated by procedural lapses and the impugned orders passed are most unjust and illegal in the eye of law. 8. Being aggrieved by the said impugned Orders, the petitioner have approached this Hon’ble Court for justice.” 9. Mr R Mazumdar, learned counsel appearing for and on behalf of the petitioner submits that the petitioner was an employee of the Central Industrial Security Force (CISF) and posted at Jorhat. During his duty an allegation was brought against him that he committed misconduct under influence of liquor and he was posted to Guwahati Airport. Thereafter a departmental enquiry was held and he was dismissed from service. During his duty an allegation was brought against him that he committed misconduct under influence of liquor and he was posted to Guwahati Airport. Thereafter a departmental enquiry was held and he was dismissed from service. Learned counsel for the petitioner, Mr R Mazumdar, raised questions that two vital witnesses namely HC/GD Bhuwan Ram 873460062 and Constable SS Kedare 064490339 were not examined on the ground that they refused to involve themselves in the Departmental proceeding. Learned counsel also further contended that the Doctor who examined the petitioner and submitted and issued the Medical Certificate was also not examined. As a result the actual facts and truth has not come on record. Therefore, petitioner’s dismissal is purely an arbitrary act on the part of the authority concerned of the CISF. He prayed that necessary order may be passed. 10. On the other hand, Mr R Deb Nath, learned CGC, appearing for CISF, submits that those witnesses mentioned above themselves refused to cooperate with the inquiry proceeding. In such circumstances, the authority could not force them to come forward and to give their statements. However, he could not give any justification why the Doctor was not examined during departmental proceeding. 11. I have perused the petition and the affidavit on record and after hearing the rival submission advanced by the learned counsels I am of the considered view that to dismiss a person from service is not a matter of joke because dismissal of a person from his job not only caused harm to the person concerned but to his whole family. Therefore any department proceedings should be with full care, impartial and should give full opportunity of defence to the person who is going to be affected by the dismissal order. 12. In this instant case, it appears that departmental authority has taken the step very casually and failed to exercise their power to compel those eye-witnesses to be examined in the departmental proceeding. It is also a fact on record that the Doctor concerned who has issued the certificate was not examined and on mere basis of his certificate only cognizance has been taken by the departmental authority which is also highly improper because petitioner did not get any chance or opportunity to cross examined the witnesses. 13. Principle of natural justice demands fair and impartial enquiry or trial and there is no doubt about it. 13. Principle of natural justice demands fair and impartial enquiry or trial and there is no doubt about it. Since in this case sufficient opportunity has not been given to the petitioner to defend himself, I find the impugned orders dated 22.12.2011 and 24.4.2012 to be highly illegal and is not tenable in law. 14. For the reasons discussed above and keeping in mind the principle of natural justice and fair enquiry I hereby set aside the impugned orders dated 22.12.2011 and 24.04.2012 and leave the respondent to take fresh enquiry if they so desire or to reinstate the petitioner. In case if any enquiry is held, the two witnesses namely HC/GD Bhuwan Ram and Constable SS Kedare, are also directed to depose before the enquiry authority and disclose the truth. The authority concerned also to examine the Doctor and to pass necessary order in accordance with law after giving full opportunity of defence to the petitioner. 15. With these observations and discussions the instant case is disposed of. 16. Let the authority decide the matter within three months from the date of this order. 17. Registry is directed to furnish the copy of the order to both the learned counsels as early as possible.