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2015 DIGILAW 332 (GAU)

JITENDRA NATH BURMAN v. UNION OF INDIA

2015-03-18

BIPLAB KUMAR SHARMA

body2015
JUDGMENT : Biplab Kumar Sharma, J. The petitioner is aggrieved by Annexure-18 order dated 30th August, 2008, by which he was removed from service pursuant to a departmental proceeding. As regards the period of suspension for the period from 30th January, 2008 to 30th August, 2008, the same is to be treated as suspension for all purposes disentitling him to any further pay and allowances except the subsistence allowance that was paid to him during the said period. The petitioner is also aggrieved by the Annexure-20 appellate order dated 26th November, 2008, by which his appeal against the order of removal was dismissed being bereft of any merit. The petitioner while was serving as Head Constable/GD was placed under suspension in contemplation of a departmental proceeding. The period of suspension is as noted above. By Annexure-1 memorandum dated 23rd February, 2008, he was charged with 2(two) articles of charges. Alongwith the said memorandum, the statement of articles of charges and also the statement of imputation of misconduct, indiscipline, carelessness and negligence in support of articles of charge framed were also enclosed. The list of documents and witnesses were also furnished. The statement of imputation of misconduct etc. in support of the 2(two) articles of charges, is reproduced below:-- "Statement of Imputation of Misconduct, indiscipline, carelessness and negligence in support of articles of charge framed against No. 853150167 HC/GD (U/S) J.N. Barman of HQRS, Sector CISF unit oil Duliajan, Dibrugarh Distt. (Assam). Article of Charge-I The aforesaid CISF No. 853150167 Head Constable/GD (U/S) J.N. Barman of HQrs Sector, CISF Unit OIL Duliajan while posted at GCS-08 Drilling Location Out Post was detailed for PCC from HC to ASI/Exe w.e.f. 04.02.2008 to 11.04.2008 at RTC Barwaha vide office order No. E-37014/PCC/Adm-4/08/1136 dated 24 Jan, 2008. Consequent upon detailment, he submitted an application dated 28.01.2008 for unwilling to go for PCC due to wife's delivery case. As per existing instructions, his request for acceptance of unwillingness was processed to obtain the approval of Competent Authority. On 30.01.2008 at about 1135 hours, he entered inside the Bunker and counted the Ammunition and on asking the reason for again counting the ammunition, he warned his colleague Constable Har Gopal Choudhary to keep quite. As per existing instructions, his request for acceptance of unwillingness was processed to obtain the approval of Competent Authority. On 30.01.2008 at about 1135 hours, he entered inside the Bunker and counted the Ammunition and on asking the reason for again counting the ammunition, he warned his colleague Constable Har Gopal Choudhary to keep quite. In the meanwhile, he aggressively pointed the barrel towards Bunker door and burstly fired 30 rounds of service ammunition from his SMG Carbine No. 16006272 (Butt No. 51) without any provocation and sufficient reason. Constable Haripal Choudhary forcibly snatched his Carbine and hand over to post Commander SI/Exe C.S. Singh for safe custody. But, he arrogantly insisted to return the Carbine and also tried to break the lock where said carbine was kept in safe custody. Thus the aforesaid indiscipline act on the part of No. 853150167 Head Constable/GD (U/S) J.N. Barman of HQrs Sector, CISF Unit OIL Duliajan amounts to gross misconduct, indiscipline, disobedience of lawful orders of the competent authority and unbecoming of a good member of an Armed Force of the Union like CISF. Article of Charge-II The aforesaid No. 853150167 Head Constable/GD (U/S) J.N. Barman of HQrs Sector, CISF Unit OIL Duliajan while deployed at OIL Duliajan GCS-08 Drilling Location consumed liquor and thereafter under influence of liquor he, created nuisance on 30.01.2008 at about 1145 hours. On occurrence of the said incident at about 1400 hours QRT team headed by Shri C.L. Chakraborty, Assistant Commandant (holding the charge of HQrs Sector) reached at GCG-08 drilling location to handle/control the situation adequately. I/C QRT Team ordered him to ready for HQrs. Duliajan but, he instead of complying the valid order, threatened to assault the QRT team with iron rod and repeatedly denied to hand over the spare magazines under his possession. He was medically examined at OIL Duliajan Hospital in which consumption of liquor was confirmed by the Doctor. Thus the aforesaid indiscipline act committed by CISF No. 853150167 Head Constable/GD (U/S) J.N. Barman of HQrs Sector, CISF Unit OIL Duliajan amounts to gross misconduct, indiscipline, dereliction to duty, disobedience of lawful orders of the competent authority and unbecoming of a good member of an Armed Force of the Union like CISF." 2. On a bare perusal of the charges there is no manner of doubt that the same are very serious unbecoming of a member of the disciplined force. On a bare perusal of the charges there is no manner of doubt that the same are very serious unbecoming of a member of the disciplined force. Responding to the charge-sheet, the petitioner by his Annexure-2 representation dated 3rd March, 2008 while denying the charges, stated thus:-- "Charge of Article-I: As regards to this charge, I am to submit that on being deployed at GCS-8 for duty from 21.10.2007. I have submitted an application for 30 days EL w.e.f. 12.2.2008 for wife delivery and the expected date of delivery was last week of February. When I came to know that I have been detailed for PCC at RTC Barwaha for H/C to ASI. On 28.1.2008, I was detailed to attend 'Sainik Sammelan'. Before Sainik Sammelan I met RI Insp. Krishan Pal Singh and put my problem before him, he ensure me that you apply leave from 25.2.2008 and fill up your unwilling form too. As per the advice of Insp. RI Krishan Pal Singh I did. On 29.1.2008 at about 1930 Post Commander Sl/Exe. C.S. Singh told me that you will be relieved tomorrow, i.e., 30.1.2008 to attend PCC at RTC Barwaha and your unwilling application is rejected. On 30.1.2008 I contact Coy Writer Constable Ram Babu over telephone and asked him about my unwilling application he replied me that the competent authority rejected the application at about 1100 hours. I took my lunch, after lunch I fold my bedding and got ready to move. I took out my arms and ammunition from the locker, when I checked my arms suddenly it start firing, I was very much nervous and unconscious. Most respectfully I submitted that I have not committed any act of misconduct, indiscipline, disobedience of lawful orders. The charge framed me against is totally false and a made up story. Charge of Article-II : That Sir I have submitted the sequence of events took place on 30.1.2008. Taking of alcohol, threatening the QRT without arms by a single person is not possible and without taking blood samples how the authority declares me that I was under the influence of liquor. As per the Doctor's OIL Hospital clearly mentioned that the patient is oriented. Where as the competent authority should try to solve my problem they are trying to harass me. Therefore 1 desire to heard personally. Thanking You." 3. As per the Doctor's OIL Hospital clearly mentioned that the patient is oriented. Where as the competent authority should try to solve my problem they are trying to harass me. Therefore 1 desire to heard personally. Thanking You." 3. During the enquiry proceeding, evidence was adduced and the petitioner was afforded with opportunity of being heard. On conclusion of the enquiry, the Enquiry Officer submitted the enquiry report and the petitioner was provided with the copy of the same vide Annexure-17 memorandum dated 13th August, 2008 requiring him to make representation against the same. As per the enquiry report, both the charges levelled against the petitioner stood established. After observing the due formalities, the impugned Annexure-18 order dated 30th August, 2008 having been passed with the penalty of removal from service with immediate effect, the petitioner preferred an appeal against the said order. Dealing with the appeal and other related materials, the appellate authority rejected the appeal being bereft of any merit vide Annexure-20 impugned order dated 26th November, 2008. Thereafter, the petitioner filed the writ petition on 14th May, 2013 [after expiry of nearly 5(five) years]. 4. Assailing the impugned orders, the petitioner has raised the following points as the grounds of assailment:-- (i) The enquiry proceeding was initiated against the petitioner with a predetermined mind; (ii) As regards the charge of being under influence of liquor, there being no evidence to establish the same, the said charge could not have been held to be established; (iii) The petitioner was denied the opportunity of a fair trial/enquiry; (iv) Both the authorities, i.e. disciplinary and appellate, failed to appreciate the evidence on record towards arriving at a just decision; (v) Although in the enquiry proceeding, the medical report was relied upon but the author of the said report having not been examined in the enquiry proceeding, the findings based on the said report is perverse. 5. The respondents have filed their counter affidavit denying the plea of illegality in passing the impugned orders. It has been stated that on receipt of the written statement of defence from the petitioner, he was heard in person on 14th March, 2008 and he was counseled to face the departmental enquiry by producing defence witnesses as well as the documents. The respondents have filed their counter affidavit denying the plea of illegality in passing the impugned orders. It has been stated that on receipt of the written statement of defence from the petitioner, he was heard in person on 14th March, 2008 and he was counseled to face the departmental enquiry by producing defence witnesses as well as the documents. It has been stated that the enquiry was conducted by appointing Enquiry Officer and Presenting Officer and the petitioner was also given an opportunity to take the assistance of a co-employee. During the enquiry, he declined to take anyone as his defence assistant. As regards the enquiry report furnished to the petitioner, the respondents have stated that in response to the same, the petitioner submitted his representation and thereafter, the disciplinary authority in consideration of the same in reference to the enquiry report and also the evidence on record passed the impugned order of removal from service. As regards the appellate order, it has been stated that the appeal was disposed of by a reasoned order taking into consideration all the relevant materials. Referring to the medical examination of the petitioner, the respondents have stated in their affidavit that during the medical examination, the petitioner voluntarily confessed about taking liquor in the morning of 30th January, 2008. The said medical examination report was exhibited in the enquiry to which the petitioner did not raise any objection. 6. As regards the plea of the petitioner that the evidence did not warrant the penalty of removal from service, the respondents have denied the same as incorrect and baseless. It has been stated that the act committed by the petitioner was undesirable in a disciplined force. It has further been stated that the petitioner was also imposed with the penalty on 2(two) occasions for unauthorized absence from duty. Orders of penalty were issued by the competent authority on 15th July, 1992 and 10th June, 2005. This has been referred to countering the plea that the petitioner had unblemished service career. Referring to the testimonies of PWs, it has been stated that the charges levelled against the petitioner stood clearly established in the enquiry. Finally it has been stated that in a departmental enquiry, the level of proof is "preponderance of probability" and not "beyond reasonable doubt". 7. I have heard Mr. S.K. Talukdar, learned counsel for the petitioner and have also heard Mr. Finally it has been stated that in a departmental enquiry, the level of proof is "preponderance of probability" and not "beyond reasonable doubt". 7. I have heard Mr. S.K. Talukdar, learned counsel for the petitioner and have also heard Mr. S. Chakraborty, learned Central Government counsel. 8. Referring to the materials on record, Mr. Talukdar, learned counsel for the petitioner submitted that if the evidences on record are analyzed, it cannot be said to be a case of establishing the charges that were levelled against the petitioner. Referring to the medical report, which finds mention in the enquiry report, he submits that the author of the medical report having not been examined, the said report could not have been placed reliance upon. He has placed reliance on the decisions in Kuldeep Singh Vs. The Commissioner of Police and Others, AIR 1999 SC 677 ; Nand Kishore Prasad Vs. State of Bihar and Others, AIR 1978 SC 1277 ; Surath Chandra Chakrabarty Vs. State of West Bengal, AIR 1971 SC 752 and Jiten Borah Vs. Union of India and Others, (2012) 5 GLT 347. 9. Countering the argument advanced by Mr. Talukdar, learned counsel for the petitioner, Mr. Chakraborty, learned Central Government counsel submitted that no procedural irregularity in conducting the enquiry proceeding having been pleaded with disclosure of material particulars, this Court exercising writ jurisdiction will be reluctant to sit on appeal over the findings recorded by the Enquiry Officer, disciplinary authority and the appellate authority. As regards the alleged non examination of the medical report, he submitted that the medical report was very much part of the documents exhibited and in fact the same was included in the list of documents. He further submitted that the petitioner himself having signed the medical report cannot now raise the plea of inadmissibility of the said report. He also placed reliance on certain decisions, which are Vinod Kumar and Another Vs. Union of India (UOI) and Others, (2011) 6 SCALE 580, The Commandant, 22 Battalion, CRPF Srinagar, C/o 56/APO and Others Vs. Surinder Kumar, (2011) 12 SCR 1189 and Union of India (UOI) and Others Vs. Manab Kumar Guha, (2011) 11 SCC 535 . 10. He also placed reliance on certain decisions, which are Vinod Kumar and Another Vs. Union of India (UOI) and Others, (2011) 6 SCALE 580, The Commandant, 22 Battalion, CRPF Srinagar, C/o 56/APO and Others Vs. Surinder Kumar, (2011) 12 SCR 1189 and Union of India (UOI) and Others Vs. Manab Kumar Guha, (2011) 11 SCC 535 . 10. I have given my anxious consideration to the submissions advanced by the learned counsel appearing for the parties and have also considered the materials available on record including the record pertaining to the disciplinary proceeding produced by Mr. Chakraborty, learned Central Government counsel. 11. At the very threshold of commencement of hearing, Mr. Chakraborty, learned Central Government counsel drew the attention of the Court that there was unexplained delay in filing the writ petition. As noted above, the writ petition was filed after about 5(five) years of passing the impugned orders dated 30th August, 2008 (Annexure-18) and 26th November, 2008 (Annexure-20). The delay in filing the writ petition is sought to be explained in paragraph 3(v) of the writ petition, which is quoted below:-- "(v) That pursuant to his removal from service, the petitioner met with an accident leading to fracture of both of his legs. In the meantime, the petitioner, in absence of any source of income started facing serious financial constraint. Pursuant to his recovery, the petitioner started a petty business, which did not do. The petitioner even resorted to daily wage labour to meet the expenditure of his family including education expenses of his children, medical expenses and other day to day expenditure. Eventually, to overcome the financial constrain, the petitioner engaged himself as security personnel in private security agency in various parts the State. The petitioner in the meantime started depositing some amount of money to pursue his case and eventually has approached this Hon'ble Court challenging his removal. It is respectfully submitted that the delay, if any has occasioned in approaching this Hon'ble Court is wholly unintentional and beyond his control. It is respectfully submitted that Your Lordships may be pleased to condone the delay, if any taking place in filing the present case." 12. If we go by the aforesaid explanation furnished, the petitioner met with an accident leading to fracture of both of his legs. He also tried to earn livelihood by doing petty business and even resorting to work as daily wage labour. If we go by the aforesaid explanation furnished, the petitioner met with an accident leading to fracture of both of his legs. He also tried to earn livelihood by doing petty business and even resorting to work as daily wage labour. He also engaged himself as security personnel in private security agency in various parts of the State. 13. Above explanations furnished in the above quoted paragraph are without any material particulars. On a total reading of the above quoted paragraph seeking to explain the delay, it appears that the petitioner was not interested to challenge the impugned orders, rather he was happy with his petty business with the eventual engagement as security personnel in private security agency. Such explanation towards condonation of delay in filing the writ petition cannot be said to be cogent and sufficient. Irrespective of this position, the case of the petitioner has been considered on merit. 14. The plea of the petitioner that the medical report was not accepted and also that the author of the said medical report was not examined is absolutely misplaced. Alongwith the memorandum of charge-sheet, a list of documents was enclosed clearly mentioning therein, amongst others, the hospital medical prescription dated 30th January, 2008 and the hospital medical report of the same date. The petitioner was also allowed inspection of the said documents. The petitioner submitted his written statement of defence (Annexure-2) without any reservation. The said written statement has been quoted above, in which the petitioner, in reference to article of charge No. II, categorically stated "As per the Doctor's OIL Hospital clearly mentioned that the patient is oriented". The petitioner himself has enclosed the copies of the prescription and medical report, referred to above. Annexure-21 is the prescription of OIL India Hospital, in which it was categorically mentioned that the petitioner admitted consumption of alcohol but he was oriented to time, place and could take personal care of himself. The much talked about medical report also reveals that on clinical examination (Annexure-22), he was found under the influence of alcohol. However, he could take care of himself during the time of examination. He also admitted taking of alcohol in the morning and he was oriented to time, place and could take personal care of himself. 15. It is in the evidence on record that PW 1 produced the medical certificate. However, he could take care of himself during the time of examination. He also admitted taking of alcohol in the morning and he was oriented to time, place and could take personal care of himself. 15. It is in the evidence on record that PW 1 produced the medical certificate. Although the petitioner has annexed the copy of the medical certificate alongwith the writ petition (Annexure-22), but significantly relevant portion of the said certificate is missing in the said copy. When said certificate was exhibited in the said enquiry proceeding, the same was signed by PW 1, the petitioner himself, the Presenting Officer and also the Enquiry Officer. Thus, the petitioner was aware that the medical certificate was exhibited and he also accepted the same and put his signature as a token of acceptance. This part of the medical certificate is totally omitted from the copy of the same annexed to the writ petition. Not only that, even the prescription annexed to the writ petition (Annexure-21) contains the signatures of the PW 1, the petitioner, the Presenting Officer and the Enquiry Officer. However, as in the case of the medical certificate, in the copy of the prescription also annexed to the writ petition, those signatures are missing. 16. Since the learned counsel for the petitioner has exclusively referred to the testimonies of the witnesses (copies enclosed to the writ petition), I have gone through the same meticulously. The relevant evidence in this regard is briefly discussed. 17. PW 1 in his deposition categorically stated that the petitioner was asked to move to HQ but he denied to do so and he was taken to Head Quarter by use of force by QRT. He also stated that he was taken to OIL Hospital as his mouth was smelling alcoholic and the same was admitted by himself in front of the Doctor. He also stated that he was taken to OIL Hospital as his mouth was smelling alcoholic and the same was admitted by himself in front of the Doctor. Although PW 1 was questioned, but nothing contradictory could be brought out rather, in response to the question No. 3 "What was my condition when you have seen first in GCS-8 on 30.1.08", PW 1 replied "I found you standing at the bunker entrance gate in uniform holding one SMG Magazine in hand and you were aggressive." Similarly in response to question No. 4 put by the petitioner as to whether PW 1 find him intoxicated, the PW 1 replied "When I saw you at the bunker gate I could not make out on this point because of distance. But when I actually caught hold of you later on, I felt smell of alcohol coming out from your mouth." 18. PW 1 was also questioned by the PO. One of his questions was "Where was the weapon of fire SMG of the charged official when you arrived at the scene of incident." The reply to the question of the PW 1 was "By the time I reached with QRT his weapon had already been taken charge of by the post Commander S/E. S.C. Singh and kept in his custody." 19. In tune of the said evidence, PW 2, PW 3, PW 5 and PW 6 also stated about the misconduct/charges attributed to the petitioner. PW 2 in his deposition stated that on being asked as to "why he had fired rounds from his SMG", he replied "Jo hona tha, who ho goya. Aap mere samne se chalejaye, Nahi to thik Nahi hoga". PW 2 also stated that when he asked the petitioner to hand over his SMG, he refused. In cross-examination, answering the particular question, PW 2 replied that the QRT team had put the petitioner in vennet. Reacting to the question as to whether smell of alcohol was coming out from the mouth of the petitioner, this witness categorically stated that he could smell alcohol while talking to the petitioner after the incident. 20. PW 3 in his deposition stated as to how the petitioner came in Bunker and suddenly started firing from his SMG Carbine. As soon as he stopped firing, PW 3 snatched the SMG from the petitioner and handed over the same to the Constable. 20. PW 3 in his deposition stated as to how the petitioner came in Bunker and suddenly started firing from his SMG Carbine. As soon as he stopped firing, PW 3 snatched the SMG from the petitioner and handed over the same to the Constable. He also stated that the petitioner was asked to follow them for Duliajan but he refused to do so and started running away from the Bunker but he was caught by QRT party and other force members. He was then brought back to CISF Unit HQ, Duliajan. Significantly while cross-examining this witness, the petitioner himself asked "When I run away from the bunker and was apprehended by QRT, did I threaten the QRT members or any of them", meaning thereby that the petitioner had run away from the Bunker and was apprehended by QRT. 21. PW 5 in his deposition stated as to how he heard firing sound and when he rushed to the Bunker could see the petitioner standing near his berth holding SMG. He also stated as to how other security personnel arrived and the SMG was taken over from the petitioner and was handed over to Constable A.R. Tiwari. PW 5 also stated that although due to the firing by the petitioner, his suitcase, civil clothes and uniform got damaged but he would not demand for compensation. Answering to the question put by the petitioner as what was his condition after the incident of firing, the PW 5 replied "You were looking frightened and under tension". 22. PW 6 is another witness, who, in his deposition, stated that the security personnel were talking and trying to convince the petitioner to return ammunition and magazine available with him but he refused and was demanding back his Carbine, which were kept lock in Almirah. He also stated that when the petitioner did not listen to anyone, QRT personnel apprehended him by use of force and recovered magazine and live rounds from him. 23. Analyzing the evidence with detailed discussion of the same, the disciplinary authority imposed the penalty of removal from service. Prior to that, the petitioner on conclusion of the enquiry proceeding submitted his written statement in which he prayed for apology describing the incident as unfortunate and also assured that no such incident would occur on his part in future, meaning thereby that he virtually admitted the accusation made against him. 24. Prior to that, the petitioner on conclusion of the enquiry proceeding submitted his written statement in which he prayed for apology describing the incident as unfortunate and also assured that no such incident would occur on his part in future, meaning thereby that he virtually admitted the accusation made against him. 24. In Kuldeep Singh (supra), the Apex Court emphasized the need for arriving at a conclusion on the basis of some evidence. If there is no evidence to sustain the charges framed against the delinquent, he cannot be held to be guilty, as in that event, the findings recorded by the Enquiry Officer would be perverse. In the instant case, there is categorical finding of the Enquiry Officer relating to the charges levelled against the petitioner. It is not a case of no evidence and the findings being perverse. 25. In Nand Kishore Prasad (supra) also it was held that there must be some evidence towards arriving at a conclusion establishing the charge and that suspicion cannot be allowed to take the place of proof even in domestic enquiries. In the instant case, it is not a case of establishing the charges on surmises and conjectures and/or on suspicion. There is definite evidence establishing the charges against the petitioner. 26. In Surath Chandra Chakrabarty (supra), the Apex Court was concerned with vague and indefinite charge. As to what was the charges levelled against the petitioner has been noted above, which cannot be said to be vague and indefinite. 27. In Jiten Borah (supra), it was held that the opinion of the handwriting expert ought to have been proved by the author. That was a case relating to establishing the charge against the petitioner primarily on the basis of the opinion of the handwriting expert. Same is not the case in hand. Apart from the medical report and the prescription, which were duly accepted and signed by the petitioner without any objection, the witnesses examined by the disciplinary authority also categorically stated about the consumption of liquor by the petitioner and also the incident referred to in the charges. 28. In Vinod Kumar (supra), the Apex Court dealing with the scope and ambit of judicial review in respect of proportionality of penalty/punishment in respect of members of CRPF, a disciplined force, held that the punishment of dismissal from service was not disproportionate. 28. In Vinod Kumar (supra), the Apex Court dealing with the scope and ambit of judicial review in respect of proportionality of penalty/punishment in respect of members of CRPF, a disciplined force, held that the punishment of dismissal from service was not disproportionate. As in the instant case, in the said case also the appellants while carrying out duty of patrolling consumed liquor and fired indiscriminately 23 and 29 rounds, respectively, from their weapons in the air. Having been dismissed from service on the proven charge, they assailed the punishment of dismissal from service on the ground of being disproportionate. It was held that having regard to the misconduct on the part of the members of the disciplined force, the penalty was not disproportionate. 29. In Surinder Kumar (supra), the Apex Court dealing with the penalty of dismissal from service awarded to a CRPF personnel held that Section 12 of the CPRF Act, 1949 empowers the competent authority to award dismissal even in case where a CRPF personnel undergoes imprisonment under Section 10(n) of the Act. In the said case also dealing with the plea of disproportionate punishment, it was held that interference of the Court is warranted only when such punishment is strikingly disproportionate. 30. In Manab Kumar Guha (supra), it was held that the High Court while exercising the power of judicial review in respect of the order of disciplinary authority does not act as a Court of appeal and appraise evidence. Interference is called for only when the findings are perverse. 31. The decisions on which the learned counsel for the petitioner has placed reliance are of no help to the case of the petitioner. On the other hand, the decisions on which the learned counsel for the respondents has placed reliance find support to the submissions made by him. 32. Rule 36 of the CRPF Rules, 2001 prescribes the procedure for imposing major penalties. On perusal of the records of the enquiry proceeding, nothing is discernible that the procedure laid down therein was in any manner violated. That apart, it is not the pleaded case of the petitioner that there was any violation of the procedure laid down in Rule 36 of the said Rules. 33. For all the aforesaid reasons, I do not find any merit in the writ petition. The writ petition is dismissed without, however, any order as to costs.