Research › Search › Judgment

Gauhati High Court · body

2015 DIGILAW 1084 (GAU)

Nipun Rajbongshi v. Union of India

2015-08-26

HRISHIKESH ROY

body2015
JUDGEMENT : 1. Heard Mr. KP Sarma, the learned senior counsel appearing for the petitioner. The respondent CRPF Authorities are represented by the learned Central Govt. Counsel (CGC) Mr. B. Deka. 2. The joint disciplinary proceeding was started against the Head Constable Joginder Singh and Constable Nipun Rajbongshi (petitioner) through the Charge Memo dated 18.12.2006 (Annexure-C), issued by the Commandant of the 75th Battalion of the CRPF and two articles of charges were leveled against each delinquent. Since the comparison of charges will have to be made, they are extracted herein below for ready reference:- “ARTICLE-I No.740280082 HC/GD Joginder Singh of Hqr/75 Bn while posted and functioning as Head Constable/ General Duty at T/C Vairangate in the month of April’2006 committed a serious misconduct in his capacity as a member of the Force under Section 11(1) of the CRPF Act, 1949, in that, while he was performing the duties I/C, T/C, CRPF, Vairangate, Mizoram on 19/04/2006, a firing incident took place at around 2000 hrs, but he did not report the matter to his superior authorities or the Civil Police immediately and informed the Unit only on 20/4/2006 at about 0700 hrs through wireless network. Thus, the said No.740280082 HC/GD Joginder Singh failed to maintain absolute devotion to duty and acted in a manner unbecoming of a member of the Force and thereby violated the provisions contained in Section 11(1) of the CRPF Act, 1949. ARTICLE-II That during the aforesaid period and while functioning in the aforesaid office/place, No.740280082 HC/GD Joginder Singh of Hqr/75 Bn was guilty of disobedience/grave misconduct in his capacity as a member of the Force under Section 11(1) of the CRPF Act, 1949, in that, while he was performing the duties of Section Commander of the Section deployed at T/C Vairangate, Mizoram on 19/04/2006, he as the supervisory authority did not ensure that all laid down instructions on the matters of handling of weapons are followed scrupulously by the men under his command. Thus the said No.740280082 HC/GD Joginder Singh committed an act of grave misconduct, dereliction of duty and acted in a manner unbecoming of a member of the Force and thereby violated the provisions contained in Section 11(1) of the CRPF Act, 1949. Thus the said No.740280082 HC/GD Joginder Singh committed an act of grave misconduct, dereliction of duty and acted in a manner unbecoming of a member of the Force and thereby violated the provisions contained in Section 11(1) of the CRPF Act, 1949. ARTICLE-III No.:031443875 CT/GD Nipun Rajbongshi while functioning as a Constable (General Duty) in 75 BN, CRPF, in the month of April, 2006 committed an act of gross misconduct in his capacity as a member of the Force under Section 11(1) of the CRPF Act, 1949. In that he despite being a trained soldier, on 19/04/2006 while performing the duties of sentry duty at T/C, CRPF, Vairangate, Mizoram, fired 05 rounds from 5.56 mm Insas Rifle Butt No.412, Body No.17479191 issued to him as his service weapon for performing duty, without any valid reason. Thus, he is found unskilled to handle his service weapon which makes him unsafe for retention in service. ARTICLE-IV No.:031443875 CT/GD Nipun Rajbongshi while functioning as Constable (General Duty) and posted in 75 BN CRPF, and assigned the duties of Sentry in Transit Camp Vairangate, Mizoram, committed an act of grave misconduct in his capacity as a member of the Force under Section 11(1) of the CRPF Act, 1949, in that, he being a trained soldier, did not secure his service weapon i.e. 5.56 mm Insas Rifle Butt No.412, Body No.17479191, and kept the safety mechanism on automation after cocking the rifle, which led to firing of 05 rounds from his service weapon accidentally on 19/4/06 at about 2000 hrs resulting in injury No.740280082 HC/GD Joginder Singh amounting to gross negligence in performance of duty and non-adherence of laid down instructions and basic principles regarding handling of arms and ammunition expected out of a trained soldier.” 3. In his reply dated 5.1.2007 (Annexure-D), the petitioner stated that when he was responding to the querry of the Head Constable, there was accidental firing from his riffle and assuring that such negligence will never be repeated in future, the constable applied for pardon. Dissatisfied with the explanation furnished by the delinquent, the Deputy Commandant was appointed as the Inquiry Officer to inquire into the allegation against the Head Constable and the Constable. 4. During the joint departmental inquiry, the delinquent again admitted to the charges and declined any defence assistance. Dissatisfied with the explanation furnished by the delinquent, the Deputy Commandant was appointed as the Inquiry Officer to inquire into the allegation against the Head Constable and the Constable. 4. During the joint departmental inquiry, the delinquent again admitted to the charges and declined any defence assistance. However the Inquiry Officer took note of the evidence given by the witnesses and concluded that, against the Head Constable, the 1st charge was not proved and the 2nd charge was partially proved. But in so far as the constable is concerned, both the charges were held to have been established in the report of the Inquiry Officer, furnished on 4.4.2007 (Annexure-F). 5. The finding of the Inquiry Officer was considered by the disciplinary authority and he took note of the statement of the Havaldar R. Morar S.S. Murti and held that if the delinquent Head Constable as the Guard Commander inspected the arms of the men under his command, such incident would not occurred. Accordingly the supervisory lapses of the Head Constable were held to be established. Similarly noticing the relatively minor injury suffered by the Head Constable, his failure to immediately report the firing incident to the higher ups was considered to be sufficient to prove the lapses under Charge No.1 and accordingly the disciplinary authority disagreed with the favourable conclusion reached against the delinquent Head Constable by the Inquiry Officer. 6. While assessing the lapses of the delinquent constable, the disciplinary authority observed that the trained constable should have taken due care to inspect his weapon and to keep his rifle in the safe mode and accordingly his lapses leading to the gun shot injury to the Head Constable was held to be a matter of gross negligence in performance of duty. Reflecting upon the post facto conduct of the delinquent, the disciplinary authority opined that there was no mitigating circumstances in favour of the constable and he deserves harshest punishment. 7. On the basis of the above conclusion reached against the two delinquents, the punishment of compulsory retirement was ordered against the Head Constable, whereas the Constable was ordered to be dismissed from service, through the common order passed by the disciplinary authority on 18.7.2007 (Annexure-G). 8. 7. On the basis of the above conclusion reached against the two delinquents, the punishment of compulsory retirement was ordered against the Head Constable, whereas the Constable was ordered to be dismissed from service, through the common order passed by the disciplinary authority on 18.7.2007 (Annexure-G). 8. An Appeal was preferred by the Constable against the dismissal order where he applied for reinstatement by projecting that the delinquent honestly admitted his lapses at every stage of the proceeding and projecting that it was a human error, the constable applied for a lenient punishment so that his livelihood never threatened. The dissimilar and less stringent punishment imposed upon the Head Constable was also pleaded as a ground for the Appeal. But the Appellate Authority through the impugned order dated 24.10.2007 (Annexure-H), focused his attention on the lapses of the constable in mis-handling the weapon and without referring to the specific grounds pleaded by the delinquent, the constable’s Appeal was rejected as being devoid of merit. A Revision Petition was then filed by the delinquent but the same was rejected on 28.2.2008 (Annexure-I) by the IGP, CRPF. 9.1. Mr. KP Sarma, the learned senior counsel submits that because of the failure of the constable to keep his rifle in the safe mode and the failure of the Head Constable as the Guard Commander to ensure that the men under his command keep their riffle in safe mode, the incident had occurred and thererore it is argued that for similar lapses, the punishment should not be different and accordingly proportionality of the measure of punishment on the constable is being questioned by the senior counsel. 9.2. The petitioner submits that he honestly admitted his lapses at the very first opportunity in his reply of 5.1.2007 (Annexure-D) and this according to Mr. Sarma reflects the remorse felt by the constable. But this aspect was overlooked by the disciplinary authority, who opted for the harsher punishment by overlooking the post facto honest admission of the delinquent and accordingly it is argued that harsher punishment is undeservingly imposed on the constable. 9.3. Sarma reflects the remorse felt by the constable. But this aspect was overlooked by the disciplinary authority, who opted for the harsher punishment by overlooking the post facto honest admission of the delinquent and accordingly it is argued that harsher punishment is undeservingly imposed on the constable. 9.3. The senior counsel refers to the 32 years service of the Head Constable as compared to the 3 years service of the constable and projects that the supervisory lapses of the Guard Commander is not of lesser consequences, as compared to the personal lapses of the Constable for the incident in question and accordingly it is argued that the delinquent deserves similar treatment as was given to the co-delinquent Head Constable. 10. Parity of punishment with co-delinquent is emphasized by the Apex Court when charges are similar and the precise legal position on the issue can be gathered from the pronouncement of the Supreme Court in (2008) 2 SCC 74 (Akhilesh Kumar Singh vs. State of Jharkhand), (2006) 6 SCC 548 (Anand Regional Coop. Oil Seedgrowers’ Union Ltd. vs. Shaileshkumar Harshadbhai Shah) and (1998) 2 SCC 407 (Director General of Police vs. G. Dasayan). 11. On the issue of proportionality of punishment, the Apex Court in Om Kumar vs. Union of India reported in (2001) 2 SCC 386 had opined that for examining the decision of the departmental authority, the Court should verify whether punishment was imposed by ignoring the relevant factors or whether the penalty imposed is one, which no reasonable person could have inflicted for the lapses in question. Whenever the Court as the reviewing authority finds that the decision does not satisfy the test of reasonable person as is commonly understood as the Wednesbury Principle, the interference of the Court is found to be justified. Similarly in Union of India vs. Dwarka Prasad Tiwari reported in (2006) 10 SCC 388 , the Apex Court observed that when the decision of the departmental authority shocks the conscience of the Court or is in defiance of logic, the Court can interfere by reflecting on the deficiencies in the decision making process. 12. For applying the above legal principles to this case, it must be kept in mind that this was a common disciplinary proceeding against two delinquents. 12. For applying the above legal principles to this case, it must be kept in mind that this was a common disciplinary proceeding against two delinquents. The responsibility of the constable was to keep his riffle in the safe mode and the responsibility of the Guard Commander is to ensure that the men under his command, keep their weapons in safe mode. Failure of both delinquents was noticed in respect of their jurisdictional responsibilities. Yet the constable was punished with dismissal, whereas the punishment of compulsory retirement was initially inflicted on the Head Constable by the disciplinary authority and subsequently he was taken back in service. This in my view, amounts to discriminatory treatment for the two co-delinquents, who committed similar lapses. 13. That apart, the punishment of compulsory retirement for the Head Constable was substituted subsequently by the Appellate Authority and while the exact details are not available, the delinquent Head Constable Joginder Singh was not rendered jobless. But while such leniency was shown despite the supervisory lapses committed by the very experienced Head Constable, the Appellate Authorities failed to take into account the irrational choice of harsher treatment for the constable, with much lesser service exposure. 14. That apart, the disciplinary authority, in my understanding went awfully wrong in assessing the post facto conduct of the delinquent constable by declaring that he deserves harsher punishment. When the delinquent constable honestly admitted his lapses and stayed true to his first response at all stages and did not even defend the charges, the authorities should have considered this to be a mitigating factor for a lenient treatment. But neither the disciplinary authority nor the Appellate Authorities took into account the honest and straight forward approach of the delinquent constable. 15. Furthermore, the consequences of the lapses of the Head Constable is clearly discernable from the testimony of the Havaldar R. Morar S.S. Murti and from his evidence it is clear that the incident could have been avoided, if the Head Constable as a Guard Commander had performed his supervisory duty, for the men under his command. 15. Furthermore, the consequences of the lapses of the Head Constable is clearly discernable from the testimony of the Havaldar R. Morar S.S. Murti and from his evidence it is clear that the incident could have been avoided, if the Head Constable as a Guard Commander had performed his supervisory duty, for the men under his command. If there was lapses on the part of the man in failing to check the safety mode of the weapon, similar lapses is clearly discernable against the Guard Commander to inspect the arms of the men and therefore I believe that the lapses of both delinquents are on similar footing and different treatment for the two is unjustified. But this aspect was never considered by the disciplinary authority while deciding on the punishment for the two co-delinquents. 16. Confronted with the above situation and noticing that dissimilar treatment was meted out for the two co-delinquents, who are charged under similar circumstances, I hold that the punishment of dismissal for the delinquent constable was not reasonable as the same in the fact of this case, shocks the conscience of the Court. In view of this conclusion, the impugned order dated 18.7.2007 (Annexure-G) of the disciplinary authority; the consequential order of the Appellate Authority passed on 24.10.2007 (Annexure-H) and of the Revisional Authority’s order passed on 28.2.2008 (Annexure-I), are held to be vitiated and the same are quashed. 17. The matter is thus remitted back to the disciplinary authority for reconsideration by taking into account the mitigating factor and also the treatment meted out to the Head Constable Joginder Singh, who was the co-delinquent in the common disciplinary proceeding. A decision should thus be taken on this matter within 8 weeks of receipt of a copy of this order. If fitness is not an obstacle, the constable should be taken back in service. It is ordered accordingly. 18. With the above order, the case stands allowed to the extent indicated, without any order on cost.