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2015 DIGILAW 1098 (GAU)

Akhilesh Kr. Mishra v. Union of India

2015-08-28

HRISHIKESH ROY

body2015
JUDGMENT 1. Heard Mr. P.P. Baruah, the learned counsel appearing for the petitioner. The respondents are represented by Mr. C.K.S. Baruah, the learned Central Govt. counsel. 2. A disciplinary proceeding was drawn up against the petitioner, who was a Constable (GD) in the 131 Battalion of the CRPF, through charge memo dated 02.09.1999 (Annexure-A). Under Rule 27 of the Central Reserve Police Force Rules, 1955 (hereinafter referred to as the “CRPF Rules”) 4 charges were levelled and the substance of the imputation pertains to the Constable procuring out living permission with the false pretext to meet with his wife Deepa Mishra, who suddenly arrived from Bihar because of domestic problem. But it was found later that he utilized the opportunity to spend time with one local lady Deepa Deka at a hotel in Bongaigaon from 27.07.1999 to 29.07.1999. The lady in question turned out to be a married lady with 2 children and had travelling from Mangaldoi (Assam) and not from Bihar. The 2nd charge relates to the petitioner leaving the camp area without obtaining permission to stay with the same lady at a hotel in Mangaldoi from 21.07.1999 to 30.07.1999. Thus it was alleged that the petitioner acted in a manner unbecoming of a member of a disciplined force and thus he violated the provisions of Section 11(1) of the CRPF Act, 1949. The 3rd and 4th charges pertains to desertion of the CRPF camp without permission, on two separate occasions. 3. An Enquiry Officer was appointed to examine the charges and the delinquent Constable participated in the proceeding. His primary defence was that the lady Deepa Deka was deserted by her husband Prafulla Deka and the delinquent produced a marriage agreement dated 16.08.1999 to project that he is married to the lady in question. Smt. Deepa Deka in her testimony before the Enquiry Officer agreed that she was married to Prafulla Deka and 2 sons were born out of that wedlock, but she alleged desertion by her husband. Then she became acquainted with the Constable and they agreed to marry each other. 4. Several witnesses were produced by the employer to prove that the petitioner secured the out living permission by making a false representation about his wife suddenly arriving from Bihar. The witnesses also proved that the lady for whom permission was sought was not married to the petitioner and in fact he was a bachelor. 4. Several witnesses were produced by the employer to prove that the petitioner secured the out living permission by making a false representation about his wife suddenly arriving from Bihar. The witnesses also proved that the lady for whom permission was sought was not married to the petitioner and in fact he was a bachelor. The so called marriage agreement dated 16.08.1999 was executed on stamp paper of Rs.6/-, but this was not accepted by the Enquiry Officer as the lady was still married and her marriage to Prafulla Deka was not dissolved through due process. That apart the alleged incidents took place during July, 1999, whereas the marriage agreement was executed on 16.08.1999 and hence the defence version that the petitioner left the camp to meet up with his married wife who purportedly came from Bihar was found to be unbelievable. As the delinquent failed to cross-examine the prosecution witnesses and did not produce any acceptable evidence to prove his innocence, all the 4 charges were found to have been established and accordingly the Enquiry Officer gave his report on 26.11.1999 to the disciplinary authority. 5. The Commandant of the Battalion examined the enquiry report and also the response of the delinquent to the enquiry findings. The disciplinary authority concurred with the conclusion recorded against the delinquent and after considering the gravity and the nature of the charges, ordered for dismissal of the Constable, by invoking the power under Section 11 of the CRPF Act read with Rule 27 of the CRPF Rules, through its order dated 18.12.1999 (Annexure-C). An appeal was then filed against this order, but the same was dismissed by the appellate authority on 08.08.2000. 6. Earlier the petitioner had filed a writ petition before the Allahabad High Court, but the same was withdrawn on 24.10.2007 and thereafter this petition is filed in this Court of competent jurisdiction. 7. Assailing the finding of the Enquiry Officer, Mr. P.P. Baruah, the learned counsel submits that the delinquent was in a love relationship with the married lady Deepa Deka, who was deserted by her husband and accordingly he argues that the conduct of the petitioner should be construed in the appropriate perspective. 7. Assailing the finding of the Enquiry Officer, Mr. P.P. Baruah, the learned counsel submits that the delinquent was in a love relationship with the married lady Deepa Deka, who was deserted by her husband and accordingly he argues that the conduct of the petitioner should be construed in the appropriate perspective. The learned counsel refers to the statement given by the lady before the Enquiry Officer to project that Deepa Deka was divorced by her husband and accordingly it is argued that she was free to marry the petitioner. 8. But on the other hand, the learned Central Govt. counsel submits that the previous marriage of Deepa Deka was not dissolved through due process nor she could produce any evidence to show that she was free to marry the delinquent. Therefore it is argued that no consideration can be shown to the petitioner who secured out living permission under false pretext of his wife suddenly arriving from Bihar for some domestic problem. 9. The primary defence of the delinquent was that he met with his wife Deepa Deka and to prove the marital status he produced the agreement dated 16.08.1999. But the Enquiry Officer did not accept the marriage agreement executed on Rs.6/- stamp paper as the lady had falsely declared herself to be unmarried in the said agreement while she was still married to her husband Prafulla Deka. Moreover, there was no formal divorce between Deepa Deka and her husband Prafulla Deka. 10. The proceeding of the departmental enquiry shows that adequate opportunity was provided to the delinquent to prove his innocence but he failed to prove the defence version that he left camp to meet his wife who suddenly arrived unannounced from Bihar. 11. But when the out living permission was secured by the petitioner with a false pretext of meeting with his wife and he used the opportunity for the tryst with a lady married to another person and taking note of the fact that the petitioner was a bachelor then, it is abundantly clear that the conclusion reached by the Enquiry Officer is a believable conclusion, as Deepa Deka was still to be divorced from her husband. Moreover, the so called marriage agreement in the stamp paper executed on 16.08.1999 can have no bearing on the marital status of the two parties in respect of the incidents which occurred in the previous month i.e. July, 1999. 12. When a disciplinary proceeding is drawn up against an employee, the standard of proof is preponderance of probabilities and some relevant material to justify the conclusion reached by the Enquiry Officer and the writ Court is not expected to act as an appellate authority to judge the merit of the conclusion reached by the Enquiry Officer. Interference would be justified only when there is procedural error leading to manifest injustice. But in the present case, as earlier noted, the delinquent was afforded a fair opportunity to defend the charges and the conclusion of the Enquiry Officer is based on relevant evidence. In such circumstances, I find no infirmity with the enquiry proceeding and the conclusion reached against the delinquent. 13. When the charges are analyzed in its proper perspective, it is apparent that the petitioner has made false representation to his superior, broke Rules, left camp without authorization only to spend time with a married woman and in this manner he committed serious breach of discipline. When such is the nature of the misconduct, it is natural for the employer to opt for severe punishment as it is a natural case warranting loss of confidence, by the employer. 14. For the above reasoning, I find no reason to interfere with the disciplinary proceeding and hence this case is found devoid of merit and the same is accordingly dismissed. No cost.