Gauhati High Court
Anil Kumar Upadhyay vs The Union Of India & 5 Ors on 2 May, 2017
Author: Hrishikesh Roy
Bench: Hrishikesh Roy
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
WP(C) No.3576/2014
Anil Kumar Upadhyay
S/O- Ashok Kumar Upadhyay,
Vill.- Tulsicharpara,
P.O.- Nathamalpur,
P.S.- Krishnanagarh,
Dist.- Bhojpur, Bihar.
... PETITIONER.
VERSUS
1. The Union of India,
Through the Secretary to the Ministry of Home Affairs,
New Delhi.
2. The Director General, SSB,
Force Hear Quarter, R.K. Puram,
East Block V, Sector- I, New Delhi- 110066.
3. The Inspector General
Frontier Hear Quarter, SSB,
No. 345, Nikita Complex, G.S. Road, Khanapara, Ghy- 22.
4. The Dy. Inspector General
Sector Head Quarter, SSB, Bongaigaon, Pin- 783380.
5. The Commandant
15th Bn., SSB, Bongaigaon,
Dist.- Bongaigaon, Assam, Pin- 783380.
6. G.S. Bhandari
Dy. Commandant,
15th Bn., SSB, Bongaigaon, Assam, Pin- 783380.
...RESPONDENTS.
For the petitioner : Mr. M.H. Ahmed
Mr. Z. Rahman
Mr. M.R. Choudhury
.... Advocates
For the respondents : Mr. B. Chakravarty.
....CGI
Date of hearing & judgment : 02.05.2017
WP(c) No.3576/2014
Page 1 of 5
2
BEFORE
THE HON'BLE MR JUSTICE HRISHIKESH ROY
JUDGMENT AND ORDER (ORAL)
Heard M.H. Ahmed, the learned Counsel appearing for the petitioner. Mr. B. Chakravarty, the learned CGI appears for the respondents.
2. The petitioner is a former Head Constable (Ministerial) in the 15th Battalion of the Sashastra Seema Bal (SSB), Bongaigaon and was charged with violation of good order and discipline, under Section 43 of the Sashastra Seema Bal Act, 2007 (hereinafter referred to as "the SSB Act"), for having entered the Mahila Barrack of the Battalion at around 0015 hours, on the intervening night of 14th - 15th April, 2013. He was charged with indisciplined conduct leading to compromising the security of the occupants of the Mahila Barrack.
3.1 The Head Constable was apprehended inside the Mahila Barrack by six female constables and when the matter was reported to the superiors, a hearing was arranged by the adjutant for the petitioner. He was placed under suspension on 15.4.2013 and the offence report under Rule 44 of the Sashastra Seema Bal Rules, 2009 (hereinafter referred to as "the SSB Rules") was submitted against the petitioner.
3.2 The petitioner pleaded not guilty to the charges and the Deputy Commandant of the Battalion, was ordered to ensure the Record of Evidence (ROE).
4. During the ROE, the statements of prosecution and defence witnesses were recorded in presence of the petitioner and he was afforded the opportunity to cross-examine the prosecution witnesses. Then the ROE was submitted by the Deputy Adjutant and after due consideration of the same, the battalion Commandant heard the petitioner and under the SSB Rules, the Summary Force Court (SFC) under Section 82 of the SSB Act, was ordered against the delinquent Head Constable.
5. Before the SFC on 29.4.2013, the petitioner pleaded not guilty to both the charges and accordingly the evidence was recorded. Thereafter the SFC had WP(c) No.3576/2014 Page 2 of 5 3 found the petitioner to be guilty of the charges and initially ordered for his dismissal on 29.4.2013 (Annexure-4). But subsequently, the penalty of dismissal was converted to removal from service, on 21.6.2013 (Annexure-5), by the Commandant of the Battalion. The resultant Appeal filed by the delinquent Head Constable was rejected at first, as time barred on 6.12.2013 but later on, the Appellate Authority upheld the disciplinary action, under its order dated 24.1.2014 (Annexure-8) 6.1 Assailing the legality of the disciplinary action, the learned Counsel Mr. M.H. Ahmed submits that the petitioner was denied a fair opportunity during the ROE and the SFC procedures. He submits that although the evidence of Constable M.C. Alengwon (PW-1) was recorded in the ROE, this vital witness was not produced during the SFC procedure and thus the adverse finding is contended to be reached, without due evidence.
6.2 The petitioner contends that some of the evidence was recorded in english and since the petitioner was familiar with only Hindi, he was prejudiced and was denied a reasonable opportunity to defend the charges.
6.3 Referring to the evidence of two defence witnesses i.e. Pankaj Dubey and John Munna Bara, the petitioner contends that their evidence on the presence of the delinquent in his own Barrack, was not appropriately appreciated in the disciplinary proceeding.
7.1 On the other hand, Mr. B. Chakravarty, the learned CGC produces the original records of the SFC procedure and submits that the petitioner committed a serious mis-conduct by entering into the female barrack on the night of 14th April and therefore, he committed a gross mis-conduct, which cannot be condoned.
7.2 The learned CGC refers to the evidence of many female constables residing in the Mahila Barrack, which establishes unequivocally that, the petitioner entered the Mahila Barrack on the intervening night of 14th - 15 April and therefore he submits that the gross mis-conduct was proved with reliable witness and the delinquent is punishable under the SSB Act and the SSB Rules.
7.3 Referring to the fairness of the proceedings before the ROE and SFC, Mr. WP(c) No.3576/2014 Page 3 of 5 4 Chakravaty submits that all opportunities were provided to the delinquent to defend the charges and evidence was recorded in his presence. He was explained the English testimony in Hindi and he signed all pages of the proceedings certifying his understanding and presence in the proceedings. He was also afforded due opportunity to cross-examine the witnesses. In fact, the original punishment of dismissal was substituted by removal from service and accordingly the learned CGC submits that since the disciplinary action was through a fair proceeding, intervention of the Court may not be justified.
8. When the records of the disciplinary proceedings are perused, it is quite clear that all due opportunities were afforded to him. The guilty finding is found to have been based on cogent material and the evidence of both sides received due consideration. Hence under the test of preponderance of probability, the delinquent being guilty was established. Thus no prejudice was caused and it can't be described to be a case of unreasonable procedure as due adherence is seen with the SSB Rules.
9. The Constable/GD/Female Rupasi Barman was on sentry duty at the Mahila Barrack, when the petitioner went to meet her and the evidence of Rupasi Barman reflects that the petitioner was harbouring romantic interest towards the female constable. That is why, in order to offer her a gift on the New Year eve, he entered the female barrack, when she herself unlocked the barrack gate.
10. For the lapses of the lady constable in allowing entry of the delinquent during her sentry duty, a parallel proceeding was drawn up and under the order dated 26.4.2013 (Annexure-9), the female constable on being found guilty of both the charges, was inflicted the penalty of forfeiture of 2 years seniority in the rank of constable and also forfeiture of 2 years' service, for the purpose of promotion. The mis-conduct of the petitioner in entering the female barrack at night and the mis-conduct of the sentry constable Rupasi Barman in facilitating the entry of the petitioner to the female barrack arise out of one incident and are somewhat similar. Yet we find that a much lesser punishment was imposed against the female constable whereas her partner in crime was given the punishment, of termination from service.
11. The nature of the charge levelled against the petitioner reflects that his WP(c) No.3576/2014 Page 4 of 5 5 was an act of romantic overtures where some reciprocal reaction is also seen from the female constable, who was on a sentry duty at the Mahila Barrack. Both were on prolonged telephonic talk just before the incident at midnight, even while Rupasi Barman was deployed for sentry duty in the Mahila Barrack. Undoubtedly, it was a case of mis-conduct which deserves disciplinary action, but the question is whether two constables with similar charges of misconduct, can be discriminated in imposing the penalty, by the disciplinary authority.
12. The indisciplined conduct of the petitioner is not dissimilar with the female constable and therefore the unequal treatment of the two delinquents by the disciplinary authority is found to be unjustified. The misconduct committed by the petitioner, was facilitated by the lady constable sentry at the Mahila Barrack and undoubtedly it was an act of indiscretion and unbecoming of a conduct of a member of the disciplined force. But at the same time, the circumstances of the situation cannot entirely be ignored, for determining the proportionate penalty for a case of this kind.
13. All the attending circumstances including the evidence of the sentry constable Rupasi Barman and the lesser punishment inflicted upon her makes, the Court believe that a disproportionate punishment was inflicted upon the petitioner, by terminating his service. Various lesser penalty under Section 51 of the SSB Act is provided and any of those punishment, short of extinguishment of service could have in my opinion, better serve the cause of justice. Having reached this conclusion, the punishment of removal from service is quashed and the matter is remitted back to the disciplinary authority of the 15th Battalion of the Sashastra Seema Bal to impose any lesser punishment which will facilitate the Head Constable (Ministerial) to retain his job. It is ordered accordingly.
14. With the above order the case stands allowed without any order on cost.
JUDGE Datta WP(c) No.3576/2014 Page 5 of 5