Jammu & Kashmir High Court
Jeet Kumar vs Union Of India & Others on 17 December, 2021
Author: Tashi Rabstan
Bench: Tashi Rabstan
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Reserved on : 03.12.2021
Pronounced on : 17.12.2021
SWP No.2903/2013
Jeet Kumar .....Petitioner
Through: Mr. Abhinav Sharma, Sr. Adv., with Mr.
C.S. Azad, Advocate and Ms Saba Atiq,
Advocate
versus
Union of India & others .....Respondent(s)
Through: Mr. Vishal Sharma, ASGI with
Mr. Eishaan Dadhichi, CGSC
Coram: HON'BLE MR. JUSTICE TASHI RABSTAN, JUDGE
JUDGMENT
1. Through the medium of this petition, the petitioner is seeking to quash :
i. Order No.PVIII-02/2012-Estt-2/44 dated 26.04.2012 issued by respondent No.5, whereby the petitioner has been removed from service;
ii. Inquiry report dated 26.04.2012 submitted by respondent No.6, whereby findings given were that the offending vehicle was being driven by the petitioner with high speed;
iii. Order No.RXIII.44/2012-Estt.-1(13) dated 29.08.2012 issued by respondent No.4, whereby the appeal filed by the petitioner came to be dismissed.
The petitioner is also seeking a direction to the respondents to reinstate him in the service as Constable Driver.
2. The facts-in-brief, as projected in the writ petition, are that the petitioner came to be appointed as a Constable GD on 01.07.2004 in Central Reserve Police Force. On 05.08.2011 when the petitioner was posted in 44 Bn. in MT 2 SWP 2903/2013 Platoon, Srinagar, he, in the early morning, was detailed for carrying some CRPF officials from the headquarters of 44 Bn. CRPF to Convoy Ground Srinagar in vehicle No.HR55H-3607 (TATA 407) medium vehicle. It is averred that he was driving the vehicle at an average speed of about 13 to 14 kms per hour and when the vehicle reached Bemina Chowk, Srinagar, suddenly one alto car which was running in front of the petitioner's vehicle suddenly applied brakes and, in order to avoid collision with the alto car, the petitioner too suddenly applied brake, as a result of which the vehicle hit the road divider and overturned hitting the alto car as well. CRPF personnel, who were sitting in the vehicle and the civilians in alto car suffered injuries. One of the occupants of the CRPF vehicle succumbed to his injuries in the hospital. Accordingly, FIR No.191/2011 came to be registered with Police Station Parimpora, Srinagar for offences under Sections 279, 337, 304-A, 338 RPC and challan produced in the Court of Judge Small Causes, Srinagar. However, the petitioner came to be acquitted on 08.08.2013. The respondents had also initiated a departmental inquiry against the petitioner. After conclusion of the inquiry, the Inquiry Officer, i.e., respondent No.6 submitted the inquiry report on 26.04.2012, whereby findings given were that the offending vehicle was being driven by the petitioner with high speed. Acting on the report of inquiry officer, respondent No.5 vide Order No.PVIII-02/2012-Estt-2/44 dated 26.04.2012 removed the petitioner from service with effect from the date of issuance of said order. Appeal filed against the said order too came to be dismissed by respondent No.4 vide Order No.RXIII.44/2012-Estt.-1(13) dated 29.08.2012.
3. Learned senior counsel appearing for petitioner argued that there was no negligence on the part of petitioner nor the petitioner had been driving the 3 SWP 2903/2013 vehicle with over speed. Because the driver of alto car had suddenly applied brakes and if the petitioner too would not have suddenly applied brake, there would have been chances of more damage to human lives. He further argued that witnesses M.R. Murgam and Constable D. Ramlu had specifically stated during inquiry that the vehicle was being driven in normal speed. However, the inquiry officer had failed to appreciate the evidence of material witnesses. He further argued that no independent witness was examined during the inquiry nor the petitioner was allowed to produce any defence in his favour nor the inquiry officer called the civilian witnesses and two other CRPF witnesses.
4. Learned senior counsel further argued that since the petitioner had already been acquitted in the criminal case, as such it was mandatory on the part of the respondent No.4 to seek prior sanction of Inspector General before inflicting the punishment of removal from service in terms of of Rule 27 (6)(ccc) of the Central Reserve Police Force Rules, 1955.
5. Objections have been filed on behalf of respondents contending therein that as per statements of PWs 1 & 2 the vehicle was moving at a high speed, as a result of which the petitioner could not control the vehicle and met with an accident. It is further averred that though the petitioner has been acquitted in the criminal proceedings but the same does not give him an automatic right to be reinstated and given other service benefits. Further, it is averred that the offence committed by the petitioner is grave as one of his colleagues had expired due to rash and negligent driving. It is averred that the revision petition preferred by the petitioner came to be dismissed vide Order No.R.XIII- 26/2013-Adm-III dated 17.12.2013 being devoid of merit.
4 SWP 2903/2013
6. I have heard learned counsel appearing for the parties, considered their rival contentions, perused the original record, which was produced after the matter was reserved, and also gone through the file.
7. As per objections filed, the vehicle-in-question, which was being driven by the petitioner on 06.08.2011, left the HQ/44 around 05:15 hrs in the morning. At page-7 of the original record it reveals that when the vehicle had hardly travelled for just about 5-6 kilometers it met with an accident at about 05:40 in the morning; meaning thereby in 25 minutes the vehicle had only covered the distance of 5 to 6 kilometers. If one calculates the average speed of vehicle, it comes to around 15 kilometers per hour, then how it could be said that the vehicle-in-question was running at a high speed. Even if it is assumed that at the time of accident the vehicle-in-question was running at a high speed, even then the respondents in the introductory part of the objections have themselves averred that the alto car, which was going ahead of the vehicle-in- question, was at abnormal speed and the driver of the said alto car suddenly stopped the said car, as a result of which the petitioner herein tried to turn his vehicle on left side but since there was a truck parked, he then tried to turn the vehicle on the right side and in the melee the vehicle-in-question hit the divider of the road and overturned thereby hitting the said alto car as well. This is the precise stand of respondents as regards occurring of accident-in-question. Once the respondents have themselves admitted that the Alto car which was not running at a normal speed and the driver of said Alto car suddenly stopped it, then how could the petitioner be held responsible for the accident-in-question, when, as per respondents themselves, the petitioner made every genuine effort to avoid the said accident thereby tuning the vehicle-in-question towards left side but when there was a truck parked, he again turned the vehicle towards 5 SWP 2903/2013 right side and in the melee the vehicle hit the divider of the road. Then how could the petitioner being fastened with the allegation of negligent when the other vehicle, running abnormally, had suddenly stopped the same in the midest of the road, as every person could get confused by this act of others even if the vehicle running behind is on normal speed and there are every chances of accident.
8. Further, as per the record, PW-1 deposed that the vehicle-in-question was running more than the normal speed.
9. The record further reveals that PW-2 had specifically deposed that he was sitting in front seat of the vehicle-in-question which was running at a normal speed, whereas the driver of alto car suddenly stopped the vehicle in the mid of the road. Though to a question, he deposed that the speed of the vehicle was about 60 kilometers per hour. Thus, there was a contradiction in the statement of PW-2.
10. PW-3 firstly deposed that the speed of vehicle was normal. However, he thereafter deposed that the speed of the vehicle was between 50 to 60 kilometers per hour. It seems the second version of PW-3, i.e., "the speed of the vehicle was between 50 to 60 kilometers per hour" has been inserted after getting the signatures of PW-3 because these very words certainly and totally differ from the writing pattern of overall deposition of PW-3. Further, the writing impression of overall version of PW-3, running in three pages, is light, whereas these very words are something dark and with a different pen. Even, these very words were tried to be fitted in the open space left with the actual version of PW-3 that "the speed of the vehicle was normal". Not only this, going by the statements of witnesses running from page 13 to page 39, in all 6 SWP 2903/2013 these pages word "5" is written in one single pattern, whereas in these particular words of answer No.1 of question No.1 of PW-3, i.e., "the speed of the vehicle was between 50 to 60 kilometers per hour", the pattern of word "5" is totally different, which means someone had an intention to get the petitioner implicated.
11. PW-4 deposed that the speed of vehicle-in-question was between 50 to 60 kilometers per hour. Here also, the words "50 to 60" were over written over the actual statement made and here also the pattern of word "5" is totally different. It seems the statements of witnesses have been tampered with under a conspiracy. It also raises a doubt towards the inquiry officer. The person who tampered with the statements of witnesses can easily be identified by his writing pattern, especially the way he writes the word "5" after going through the official records of the relevant time as also by getting these particular statements forensically examined. It seems the appellate authority as well as the revisional authority too have dismissed the appeal and the revision without going through these facts and without applying proper application of mind.
12. PW-5 deposed that the speed of the vehicle was more than normal. He further deposed that it was between 40-50 kilometers per hour. Here also the pattern of second version seems to be different from the full deposition of PW-
5. All these insertions have been made only to a specific question, i.e., "उस समय वाहन की क्या रफ्तार रही होगी।"
13. In a criminal case, to fix the liability of the accused, the evidence adduced should lead beyond all shadows of doubt towards the guilt of the accused and onus of proof of the case lies on the prosecution not on the accused. If the onus is not discharged properly by the prosecution, the guilt of 7 SWP 2903/2013 the accused cannot be fixed. In the instant case the evidence led by the prosecution witnesses is not only mutually inconsistent but also against the record, so cannot be considered at all, especially when it raises a doubt towards the inquiry officer himself.
14. Learned counsel for petitioner next argued that in terms of Rule 27(6)(ccc) of Central Reserve Police Force Rules, 1955, the respondents were required to obtain prior sanction of the Inspector General before removing the petitioner from service. However, the stand of respondents is that since the petitioner came to be removed from service on 26.04.2012, i.e., much before the petitioner came to be acquitted by the criminal court on 08.08.2013, as such there was no occasion to obtain the sanction from the competent authority in terms of Rule 27(6)(ccc) of CRPF Rules.
15. Although departmental proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar in their being conducted simultaneously, though separately, but since the petitioner has now been acquitted, as such in terms of Rule 27(6)(ccc) of CRPF Rules, sanction of Inspector General was required to be taken. As regards the contention of learned counsel for respondents that the petitioner came to be acquitted by the criminal court only because the prosecution had failed to lead evidence and to produce the witnesses, the fault squarely lies with the prosecution as the prosecution had failed to lead evidence and produce witnesses despite granting of numerous opportunities. Otherwise too, the stand of respondents in their objections is that the alto car, which was going ahead of the vehicle-in- question, was at abnormal speed and the driver of the said alto car suddenly stopped the said car, as a result of which the accident occurred. 8 SWP 2903/2013
16. Therefore, in view of what has been discussed above, the writ petition is allowed, Order No.PVIII-02/2012-Estt-2/44 dated 26.04.2012 issued by respondent No.5 is hereby quashed. Consequently, Order No.RXIII.44/2012- Estt.-1(13) dated 29.08.2012 issued in appeal as well as Order No.R.XIII- 26/2013-Adm-III dated 17.12.2013 issued in revision too shall stand quashed. The petitioner shall be reinstated in service with immediate effect with all consequential benefits. Commandant-Respondent No.5 is also directed to himself initiate inquiry with regard to tampering of statements of prosecution witnesses and take stern action against the erring official(s). Let such inquiry be completed within a period of three months from the date a certified copy of this order is made available to them. The action taken report of such inquiry be also submitted to the Registrar (Judicial) of this Court. Registry to send a copy of this order to respondents 2 & 3 herein. Registry to take on record the copy of signal dated 10.12.2021 provided by the respondents after the matter was kept reserved for judgment.
17. Registry to hand over the record against proper receipt.
Jammu: (Tashi Rabstan)
17.12.2021 Judge
(Anil Sanhotra)
Whether the order is reportable ? Yes/No
Whether the order is speaking ? Yes/No
ANIL SANHOTRA
2021.12.17 15:41
I attest to the accuracy and
integrity of this document