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2018 DIGILAW 268 (GAU)

NRIPEN DAS v. UNION OF INDIA

2018-02-13

HRISHIKESH ROY

body2018
JUDGMENT/ORDER : 1. Heard Mr. A.K. Purkayastha, the learned Counsel appearing for the petitioner. The respondents are represented by Mr. A.C. Kalita, the learned CGC. 2. The petitioner is a former constable of the CISF and he challenges his punishment of removal from service ordered on 29.12.2005 (Annexure-C). The rejection of his representation on the penalization ordered on 19.3.2010 (Annexure-F), is also under challenge by the delinquent. 3. The disciplinary action was initiated against the constable under Rule 36 of the Central Industrial Security Force Rules, 2001 (hereinafter referred to as "the CISF Rules") with the Charge Memo dated 4.5.2005, containing the following charge : "That No.8570154/851399263 Constable Nripen Das of CISF Unit ONGC Tripura while serving at CISF Unit, ECL Seetalpur, Lalmatia Camp took active part and indulged in torturing to a civilian Mohammed Rais Ansari, son of Haji Rustom Ali Ansari by bearing brutally in the night of 05/06.06.1993 along with other CISF personnel of the said camp, as a result, Mohammed Rais Ansari fell down and died in the Lalmatia Camp line on the same day. The heinous act on the part of No. 8570154/851399263 Constable Nripen Das has not only tarnished the image of the Force but also affected the tranquility of the CISF Unit, ECL Seetalpur, Lalmatia Camp, which shows gross misconduct, indiscipline and unbecoming of an enrolled member of the discipline Force. Hence the charge" 4. At the first instance, on consideration of the relevant facts, the Group Commandant, CISF Headquarter, Guwahati concluded that, it is not reasonably practicable to hold an inquiry on the incident in the CISF camp. Thus dispensing with the regular procedure, the punishment of dismissal was awarded on 16.7.1994. This was challenged by the aggrieved constable and under the judgment dated 3.5.1999 (Annexure-B) in the Civil Rule No.2060/1997, the High Court noted that the departmental inquiry into the charge was not entirely impossible and on that basis, quashed the penalization and ordered for reinstatement of the CISF constable. Liberty was however granted for initiation of disciplinary proceeding, in accordance with law. 5. The aggrieved employer then filed the Writ Appeal No.311/1999 but that was dismissed by the Division Bench on 25.11.2004. 6. Following the above intervention of the High Court, the delinquent constable was reinstated on 21.7.1994 but was placed under suspension, under Rule 33 (4) of the CISF Rules. 5. The aggrieved employer then filed the Writ Appeal No.311/1999 but that was dismissed by the Division Bench on 25.11.2004. 6. Following the above intervention of the High Court, the delinquent constable was reinstated on 21.7.1994 but was placed under suspension, under Rule 33 (4) of the CISF Rules. Thereafter the Charge Memo dated 4.5.2005 was issued but the charge was simply denied by the delinquent. The response to the Charge Memo was found to be unsatisfactory and accordingly the inquiry was ordered into the charge. 7. The record shows that during the inquiry, the delinquent was given the opportunity to avail a defence assistant but he chose to defend himself. The witnesses were examined and evidence were recorded with due opportunities to both sides and the charges were found to have been proved in a fair proceeding. The copy of the inquiry report was furnished to the delinquent against which, he submitted his response on 19.12.2005. After due consideration of the materials on records, the disciplinary authority awarded the punishment of removal from service to the delinquent, under his order dated 29.12.2005 (Annexure-C). 8. Although the CISF Rules provide for Appeal under Rule 46 of the CISF Rules, the delinquent neither filed any appeal, within the prescribed period nor did he approach the Revisional Authority, as permitted by Rule 54 of the CISF Rules. However, 3 years after the removal order of 29.12.2005, the delinquent addressed a representation on 28.3.2009, where he mentioned of his acquittal of the criminal charge and on that basis, prayed for his reinstatement. 9. The DIG of the CISF under the impugned order of 19.3.2010 however observed that the degree of proof in criminal and disciplinary proceeding are not identical and the conclusion in departmental proceeding is to be reached on preponderance of probability. Accordingly, the representation on the basis of acquittal in the criminal case, was found to be merit-less and the same was dismissed by the DIG, CISF. 10.1 The disciplinary action is challenged by the learned Counsel Mr. A.K. Purkayastha primarily on the ground of acquittal of the delinquent in the criminal case. The Counsel submits that the incident for the disciplinary action and the criminal case is the same and on this basis, Mr. Purkayastha argues that, when the criminal court had acquitted the delinquent, he should not have been penalized in the disciplinary proceeding. A.K. Purkayastha primarily on the ground of acquittal of the delinquent in the criminal case. The Counsel submits that the incident for the disciplinary action and the criminal case is the same and on this basis, Mr. Purkayastha argues that, when the criminal court had acquitted the delinquent, he should not have been penalized in the disciplinary proceeding. 10.2 The petitioner contends that the disciplinary authority should have awaited the outcome of the criminal case and should not have taken the disciplinary action prior to conclusion of the criminal proceeding. In support of his submission, the learned Counsel for the petitioner relies on the following decision- (i) 2001 (3) GLT 528 (Biplab Mazumdar vs. Union of India). (ii) (1999) 3 SCC 679 (M. Paul Anthony vs. Bharat Gold Mines Ltd.). 11.1 On the other hand, the learned CGC Mr. A.C. Kalita submits that continuation of the criminal proceeding will not require the disciplinary authority to await the conclusion of the criminal case and the Counsel submits that law permits disciplinary action without awaiting for conclusion of the criminal case. 11.2 The learned CGC questions the maintainability of the writ petition as the delinquent failed to approach the Appellate or the Revisional Authority, under Rule 46 and 54 of the CISF Rules and on this basis, the dismissal of the writ petition is urged by the respondents. 11.3 Referring to the judgment dated 25.2.2009 in the Sessions Case No.207/2006 of the 1st Addl. Sessions Judge, Godda, the learned CGC points out that that the acquittal verdict was on the principle of benefit of doubt and accordingly he argues that disciplinary action can be sustained on the basis of charge being established, on the criteria of preponderance of probability. 12. Let me now examine whether the judgments cited by the petitioners Counsel can justify this Courts intervention in the present case. The termination of service in the case of Biplab Mazumder (supra) was intervened by the High Court because, the concerned Sub-Inspector of the Railway Protection Force was under probation and he was removed from service, only on the basis of the FIR and no disciplinary inquiry was conducted into the charges. But in the case in hand, a proper enquiry was made into the charge in a disciplinary proceeding and the penalty was ordered through a due process. But in the case in hand, a proper enquiry was made into the charge in a disciplinary proceeding and the penalty was ordered through a due process. Therefore, the ratio of Biplab Mazumder (supra) rendered on different facts will not aid the delinquent, in the present case. 13. In the other case relied by Mr. Purkayastha, the Supreme Court in M. Paul Anthony (supra) specifically held that departmental proceeding and the proceedings in the criminal court can proceed simultaneously and there is no legal bar on parallel continuance. Therefore, the recourse to disciplinary proceeding against the CISF constable during the continuation of the criminal case is permitted by law. It might however be desirable to keep in abeyance, the disciplinary proceeding, during the criminal court proceeding but no legal fatality is attached to disciplinary action, initiated before conclusion of the proceedings in the criminal court. This in my perception is the applicable ratio of M. Paul Anthony (Supra) and this does not help the delinquent in the present case. 14. The acquittal of the constable in the criminal case does not mean automatic exoneration from the charges in the disciplinary proceeding as the standard of proof, are different for the disciplinary action and for conviction in the criminal court. Moreover, it was not a case of clean acquittal but the accused were granted the benefit of doubt, in the Sessions Case NO.207/2006. Therefore, the intervention against the disciplinary action in my view, is not warranted on the basis of the acquittal in the criminal case. Hence the plea made to the contrary by the petitioners lawyer, is negated. 15. The affidavit filed by the Group Commandant, CISF on 1.8.2011 indicates that the disciplinary action was taken against several CISF constables who were charged for the same incident and were similarly acquitted by the criminal court. Therefore, this cannot be treated to be a case of arbitrary and targetted disciplinary action against one individual. In fact harsher penalty of dismissal from service was inflicted on four CISF constables who too were acquitted and the lower punishment of compulsory retirement and removal from service was imposed for the petitioner and another constable. Therefore it is not a case of discriminatory penalization. 16. In fact harsher penalty of dismissal from service was inflicted on four CISF constables who too were acquitted and the lower punishment of compulsory retirement and removal from service was imposed for the petitioner and another constable. Therefore it is not a case of discriminatory penalization. 16. That apart, the punishment of removal from service was inflicted against the delinquent constable on 29.12.2005 but he kept silent and failed to seek the statutory remedy, provided by the CISF Rules. Several years after the punishment of removal, the representation was addressed on 28.3.2009, following the acquittal order dated 25.2.2009. Thus it is a clear case of belated approach to the Writ Court without availing the alternative remedy, provided by the CISF Rules. 17. For the above reasons, I feel that this is not a fit case for invocation of the discretionary jurisdiction of the Writ Court. Thus the case is found devoid of merit and accordingly the same is dismissed. No cost.