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2018 DIGILAW 134 (GAU)

Rajesh Kumar Roy @ Rajesh Roy v. Union of India

2018-01-25

HRISHIKESH ROY

body2018
JUDGMENT & ORDER : 1. Heard Mr. P.J. Phukan, the learned counsel appearing for the petitioner. The respondents are represented by the learned Central Govt. counsel. 2. The petitioner is a former constable of the B/66 Battalion of the CRPF and he challenges the order dated 09.09.2009 (Annexure-E), whereby the punishment of stoppage of one increment for three years without cumulative effect, which was initially awarded by the Commandant was later enhanced to the punishment of compulsory retirement, by the Deputy Inspector General, CRPF, Bhubaneswar. For imposing the more severe penalty, the revisional power under Rule 29 (d) of the Central Reserve Police Force Rules, 1955 (hereinafter referred to as the "CRPF Rules"), was invoked by the officer. 3.1 Questioning the legality of the enhanced punishment, the learned counsel Mr. P.J. Phukan submits that the DIG tried to justify his order on the basis of his personal opinion that the petitioner has a criminal mind and lacks tolerance but such opinion is not relatable to the past conduct of the delinquent or any evidence brought during the disciplinary proceeding. 3.2 The failure of the officer to apply his mind to the relevant material is demonstrated by the petitioners lawyer by pointing out that although no defence witness was adduced by the delinquent, the DIG mechanically referred to the statement of the defence witnesses, to give his decision. 3.3 The petitioner contends that the Commandant of the Battalion rationally justified the initial punishment of stoppage of increment by commenting on the good service record of the delinquent, future career and the backdrop of the incident on 06.08.2008. But all these relevant factors were ignored by the higher authority, who acted suo moto to enhance the punishment. 4. On the other hand, the learned Central Govt. counsel submits that the petitioner has already filed the representation on 14.11.2009 (Annexure-F) addressed to the Inspector General of Police, Eastern Sector, CRPF to challenge the higher penalty and accordingly the respondents contend that the delinquent should have awaited the outcome of the representation instead of rushing to the Court. Therefore the writ petition is described as a premature one. 5. Therefore the writ petition is described as a premature one. 5. The departmental enquiry was ordered against the delinquent constable under Section 11 (1) of the CRPF Act, 1949 read with Rule 27 of the CRPF Rules to enquire into the following charge as per the charge memo dated 06.12.2008 (Annexure-B): "ARTICLE-I That the said No.001381383 CT/GD Rajesh Kumar Roy of B/66 while functioning as CT (GD) on 6/8/2008 at about 0930 hours has committed an act of grave misconduct in his capacity as a member of the force u/s 11 (1) of CRPF Act 1949 in that he abused and misbehaved with his Coy personnel and assaulted No.015027319 CT/GD Shiv Swaroop Singh of B/66 on his head by a Khokri (Axe) and injured him.." 6. The explanation of the delinquent was not accepted and accordingly a departmental enquiry was initiated, where 11 prosecution witnesses were examined but no defence witness/evidence was adduced by the delinquent. According to the statement given by the delinquent before the Enquiry Officer, the incident on 06.08.2008 had started with exchange of comments leading to a scuffle amongst the two groups and he specifically stated that the khukri in his possession was thrown away to prevent use of the khukri in the scuffle amongst the CRPF personnel. However the khukri accidentally struck the constable Shiv Swaroop Singh, for which a minor injury was suffered. 7. After assessing the materials on record, the Enquiry Officer concluded that the charge was found to be proved and the matter was then placed for consideration before the disciplinary authority. 8. In his order dated 06.05.2009 (Annexure-C), the Commandant of the 66 Battalion CRPF noted that comments were exchanged between the two groups of constable, which led to mutual scuffle. When the constable Shiv Swaroop Singh tried to intervene in the melee, he was struck by a khukri causing minor head injury. The khukri was thrown away by the delinquent as a preventive measure and not struck with any wilful intent. This explanation and the entire backdrop of the incident and the relevant materials were examined by the Commandant. He also noted the good record and the service prospect and also the hardship for the family. On this basis, the punishment of stoppage of one increment for three years without cumulative effect was inflicted, under Section 11 (1) of the CRPF Act read with Rule 27 of the CRPF Rules. He also noted the good record and the service prospect and also the hardship for the family. On this basis, the punishment of stoppage of one increment for three years without cumulative effect was inflicted, under Section 11 (1) of the CRPF Act read with Rule 27 of the CRPF Rules. 9. The punishment imposed by the disciplinary authority was not challenged by the delinquent but a suo moto proceeding was initiated for enhancement of punishment, by the Deputy Inspector General of Police. The show-cause was issued on 19.06.2009 (Annexure-D) proposing the penalty of removal from service to which the delinquent gave the representation offering his apology with request to allow him to continue in service. However the revisional authority recorded his personal opinion that the delinquent has a criminal mind and lacks tolerance. Accordingly, his retention in service was found to be unjustified. With such perception the original punishment of stoppage of increment was enhanced to compulsory retirement, under the impugned order of 09.09.2009 (Annexure-E). 10. The mere exchange of words and minor scuffle amongst the CRPF personnel may not warrant drastic punishment and therefore it is necessary to examine whether the delinquent made a wilful assault with his khukri, leading to the injury on constable Shiv Swaroop Singh. The counter affidavit filed by the DIGP on 22.07.2010 reflects that for the khukri assault, the Jaddangi Police Station Case No.27/2008 was registered under Section 324/34 of the IPC and the two constables involved in the incident were arrested by the civil police. When the case was examined by the learned Chief Judicial Magistrate, Addateegala, Andhra Pradesh, the learned Court under the CC No.124/2008 dated 02.09.2008 concluded that the offence is compoundable in nature and accordingly both accused (including the delinquent), were discharged. 11. The above finding of the criminal court practically rules out the possibility of attack with criminal intention, as only a minor injury was suffered and the probable cause is most likely an accidental injury, when the khukri was thrown away by the delinquent. The opinion of the Deputy Inspector General that the delinquent has a criminal mind and lack tolerance, is not relatable to any past misconduct or available material in the proceeding. Therefore such negative comments is nothing but the biased opinion of the revisional authority, without any substance. 12. The opinion of the Deputy Inspector General that the delinquent has a criminal mind and lack tolerance, is not relatable to any past misconduct or available material in the proceeding. Therefore such negative comments is nothing but the biased opinion of the revisional authority, without any substance. 12. The failure by the DIGP to apply his mind is also discernible from the fact that he referred to the evidence of the defence witnesses, whereas the delinquent never adduced any defence witness/evidence, in the departmental enquiry. Therefore the enhancement of punishment ordered against the delinquent under the impugned order dated 09.09.2009 (Annexure-E), is found to be unmerited. 13. As regards the stand of the respondents that this writ petition was filed in haste without awaiting the outcome of the representation filed by the delinquent on 14.11.2009 (Annexure-F), I have explored the option of directing disposal of the representation by the Inspector General of Police, but feel that since this matter is pending for last over 8 years, this will cause prejudice to the petitioner. According to my assessment the interest of justice would be better served with final conclusion of the proceeding, in this forum itself. 14. It is seen that enhancement of punishment for the delinquent was irrational and is legally unsustainable. The original punishment imposed by the Commandant of the Battalion had however balanced the need for discipline and awarding the appropriate punishment for the misconduct, with due attention to all relevant circumstances. Therefore the impugned order of the DIG, CRPF issued on 09.09.2009 (Annexure-E) is quashed and the earlier order dated 06.05.2009 (Annexure-C) of the disciplinary authority is restored as the punishment for the delinquent. It is ordered accordingly. 15. With the above order, the case stands allowed in the manner indicated without any order on cost.