Gauhati High Court
Manoj Kumar Dutta vs The Union Of India And Ors on 8 April, 2021
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
Page No.# 1/8
GAHC010241802012
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/62/2012
MANOJ KUMAR DUTTA
S/O MOHAN CHANDRA DUTTA, VILL- USHAPUR, P.O.- PAROLIGURI,
DEMOW, SIVASAGAR, ASSAM, PIN-785671
VERSUS
THE UNION OF INDIA and ORS
REPRESENTED BY THE SECRETARY, MINISTRY OF HOME AFFAIRS NEW
DELHI-110001
2:THE DRECTOR GENERAL
CENTRAL RESERVE POLICE FORCE
CENTRAL GOVT. OFFICE COMPLEX
LODHI ROAD
NEW DELHI-110003
3:THE DY. INSPECTRO GENERAL OF POLICE
GROUP CENTER
CENTRAL RESERVE POLICE FORCE
KHATKHATI
ASSAM
PIN-797112
4:COMMANDANT
84 BATTALION
CENTRAL RESERVE POLICE FORCE
TO BE SERVED THROUGH THE RESPONDENT NO.2
5:SRI IMRAN KHAN
ASSISTANT COMMANDANT IRLA-5911 84 BATTALION
CENTRAL RESERVE POLICE FORCE
TO BE SERVED THROUGH THE RESPONDENT NO.
Page No.# 2/8
Advocate for the Petitioner : MR.R MAZUMDAR
Advocate for the Respondent : ASSTT.S.G.I.
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
ORDER
Date : 08.04.2021:
(uploaded on 02.06.2021).
Heard Mr. R. Mozumdar, learned counsel for the petitioner as well as Mr. R.K.D. Choudhury, learned ASGI appearing for the respondents.
2) The petitioner had joined service of the Central Reserve Police Force (CRPF for short) on 16.07.2007 at Group Centre, Khatkhati, Karbi Anglong, Assam. On successful completion of training in the year 2008, he was posted as Constable General Duty in the 84 Bn., CRPF.
3) The case projected by the petitioner is that on 11.12.2009, while posted at 'A' Company of 84 Bn., CRPF, one Hemant Kokre, Constable GD had spread a rumour that at about 2200 hours on 11.12.2009, the petitioner had told him that was in some tension and saying so took his own empty rifle and with barrel facing upwards, cocked the rifle and pressed the trigger. The said Hemant Kokre deposited the gun of the petitioner with the senior officials. Later on, disciplinary proceeding was initiated against the petitioner and by the order dated 06.07.2010, he was removed from service.
4) Therefore, by filing this writ petition under Article 226 of the Constitution of India, the petitioner, who at the relevant time was working, has assailed the enquiry conducted by the respondent no.5, who was the then Assistant Commandant, 84 Bn, CRPF as Page No.# 3/8 well as the legality of the order dated 06.07.2010 passed by the Commandant, 84 Bn, CRPF (respondent no.4). By the said order, not only the petitioner was removed from service with effect from the afternoon of 06.07.2010, i.e. the date of the passing of the impugned order, but it was also provided that medals and decorations, if any, were forfeited.
5) It is projected that by an order dated 29.12.2009, the respondent no.4 proposed an enquiry against the petitioner. Along with the copy of the said order, (i) a statement of the allegations, (ii) statement of imputation of misconduct, (iii) list of documents, and (iv) list of witnesses was served on the petitioner. It would be relevant to quote the statement of allegations, and statement of the imputation of misconduct, which are as follows:-
Article-One That, Force No. 075071268 C/GD Manoj Kumar Dutta of A/84 Bn., who was on duty in the post of C/GD in the Head Office of 84 Bn, Karan Nagar, Srinagar, on date 11/12/09 at about 22 hours, by dint of his position of being a member of the force under CRPF Rules, 1949, Section 11(1) has committed misconduct by attempting to shoot himself by misusing his service arms 5.56 mm INSAS rifle Butt No. 28, Body No. 7297, which is a punishable offence under Section 11(1) of CRPF Rules, 1949.
sd/- Rakesh Saw Commandant, 84 Bn., CRPF Dt. 29/12/09 Statement of the imputation of misconduct which are alleged against C/GD Manoj Kumar Dutta of A/84 Bn., CRPF.
Article- One That, Force No. 075071268 C/GD Manoj Kumar Dutta, of A/84 Bn. was on duty in the Head Office of 84 Bn., Karan Nagar, Sri Nagar. For his duty, he was issued with one 5.56 mm INSUS Rifle, Butt No. 28, Body No. 7297. This employee had Page No.# 4/8 duty from 1900 hours to 2100 hours on 11/12/09 in Morcha No. 12. After completion of his duty, this employee came to the Line with his service rifle and stated to talk over phone. At that time, Force No. 031460844 Ct/GD Hemant Kokre was present in the LINE. After taking on the phone, Force No. 075071268 C/GD Manoj Kumar Dutta raised his service rifle 5.56 mm INSUS rifle, Butt No. 28, Body No. 7297, and shouted that I am going to shoot myself and started handling the rifle. Force No. 031460844 Ct/GD Hemant Kokre immediately snatched the right from Ct/GD Manoj Kumar Dutta and along with his own weapon, came to the Guard Commander Force No. 82049004 Haw/GD Rambali Ram and told him everything. After that, the Guard Commander went there and reported the matter to his higher officers and deposited the weapon of that employee in the armoury. The Force No. 075071268 C/GD Manoj Kumar Dutta committed act of misconduct in this manner although he was a member of the Force, which is a punishable offence under Section 11(1) of CRPF Rules.
sd/- Rakesh Saw Commandant, 84 Bn., CRPF Dt. 29/12/09
6) As an enquiry was initiated against the petitioner under Rule 27 of the CRPF Rules, the respondent no.4, by Office Order dated 13.01.2010, appointed the respondent no.
5 as the Enquiry Officer to enquire into the charges framed against the petitioner. On the basis of statement of witnesses, the respondent no.5 concluded that it was established that at 2200 hours on 11.12.2009, the petitioner had attempted to shoot himself by his service revolver and thereby committed misconduct as per Section 11(1) of the CRPF Rules, 1955. Accordingly, the respondent no.4 held that the petitioner had not availed defence assistant and that he been given full opportunity to cross- examine all the witnesses and that despite 15 (fifteen) days time granted, the petitioner could not produce any defence witness and as such, agreeing with the finding of the Enquiry Officer, vide impugned order dated 06.07.2010, the petitioner was removed from service.
Page No.# 5/8
7) Assailing the enquiry report and order of removal, the learned counsel for the petitioner has submitted that it was not in dispute that the evidence tendered by the witnesses were to the effect that (i) magazine was not fitted in his service rifle, (ii) that he had lifted up the rifle and pressed the trigger. It is submitted that none of the witness had stated that the petitioner had aimed at himself before pressing the trigger, as such, the finding that the petitioner had attempted suicide is without any admissible evidence and that these facts were totally overlooked. It is also submitted that in course of enquiry, the statement of witnesses were not provided to the petitioner, which amounted to denial of opportunity of effective cross-examination of the witnesses. It is also submitted that in course of the departmental enquiry, in the absence of appointment of a Presenting Officer, the respondent no.4 had assumed the role of a judge as well as of a prosecutor, which had vitiated the proceeding as it was in violation of Rule 27 of the CRPF Rules, 1955. In support of his submissions, the learned counsel for the petitioner has placed reliance on the following cases -(1) Union of India Vs. Ram Lakhan Sharma, (2018) 7 SCC 670; (2) The Union of India & Ors. Vs. Ex-Constable GD Atul Chandra Kalita, WA 305/2017 decided on 01.02.2019 (DB); (3) Manager, Borsabari Tea Estate Vs. Addl. Deputy Commissioner, Golaghat & Anr., 1995 (1) GLT 120 (DB); (4) Arshad Hussain Laskar Vs. The Union of India & Ors., W.P.(C) 7870/2015, decided on 30.03.2021; (5) Santosh Kumar Singh Vs. The Union of India & Ors., W.P.(C) 4517/2008 decided on 10.05.2018.
8) Per contra, the learned A.S.G.I. there was nothing on record before this Court to show that in course of the departmental proceeding, the petitioner had ever made a request for appointment of a presenting officer. Moreover, it also was submitted that the enquiry was conducted about 11 years back in the year 2010 and therefore, it was too late in the day for the learned counsel for the petitioner to take shelter of such a ground. Countering the case citations, it has been submitted that Rule 27 of the CRPF Rules, 1955 did not make it mandatory for appointment of Presenting Officer. Moreover, it is submitted that the cases on which the learned counsel for the petitioner had placed reliance were decided later in point of time, i.e. after the departmental proceeding in the present case had concluded and therefore, Page No.# 6/8 ratio of those cases cannot be retrospectively applied in this case in hand.
9) On a perusal of the records produced, it is seen that none of the witnesses examined had given a positive statement that the rifle of the petitioner was fixed with magazine. Similarly, none of the witnesses had stated before the Enquiry Officer (respondent no.5) that the petitioner had aimed at any part of his body while shooting an unarmed rifle. It is not the case of the respondents that after first attempt had failed, the petitioner had made any attempt to find the magazine and to arm the rifle and then to again make another attempt to shoot at himself. Thus, in this case, even if the allegations of the witnesses are accepted as gospel truth for the sake of argument, there was a single incident of lifting up an unarmed rifle without any magazine and single pressing of the trigger without aiming at himself. The respondents have not been able to show any provisions of law or any authority on the point that raising-up a rifle and pressing trigger of an unarmed rifle with no magazine fitted amounts to attempt to commit suicide or amounts to abatement of suicide. Thus, under the facts as revealed from the records of disciplinary proceeding, the Court is inclined to hold that in this case the finding that the petitioner had committed misconduct in attempting to shoot himself is based on no evidence on record.
10) On the point that the Enquiry Report by respondent no.5 was vitiated by non- appointment of Presenting Officer, it is seen that there is nothing in the CRPF Rules, 1955 which requires appointment of a Presenting Officer. However, the Division Bench of this Court in the case of Ex-Constable GD Atul Chandra Kalita (supra) , had held that non appointment of Presenting Officer had vitiated the Enquiry proceeding in respect of a member of CRPF, which was also followed in the case of Arshad Hussain Laskar. Nonetheless, in this case, it is noticed that the respondent no.5, i.e. the Enquiry Officer acted as the prosecutor against the petitioner. Thus, the learned counsel for the petitioner has been able to show that the Enquiry was vitiated under the principle of bias, which had come into play. Apparently, owing to such bias, the respondent no. 5 did not appreciate the evidence in its correct perspective and the respondent no.4, being the Disciplinary Authority also mechanically accepted the Enquiry Report and punished the petitioner with removal from service.
Page No.# 7/8
11) It would be pertinent to mention that the Court is conscious of the well settled law that this Court is not sitting in appeal over the disciplinary proceeding. However, it is seen from the discussions above that the impugned decision taken in course of the disciplinary authority it vitiated by perversity, because though the article of charges mention that the petitioner had shouted that he would kill himself and then he had handled his service rifle, yet, there is no evidence on record that the petitioner had made any attempt to arm the rifle by fitting magazine therein. Moreover, although the petitioner had allegedly pressed the trigger, no bullets were actually fired and no used bullet cartilage was recovered and deposited with the authorities. It is highly improbable that a CRPF Constable, who is otherwise well trained in handling arms would not know the difference of his service rifle in loaded and un-loaded condition and it is also highly improbable that with an unarmed service rifle, the petitioner could actually and fatally shoot at himself. Thus, although there was a mock shooting, there was no attempt to commit suicide and/or there was no commission of any covert or overt act by the petitioner to actually kill himself. Therefore, the punishment of removal from service is shocking to the conscience of the Court, which calls for interference with the impugned order dated 06.07.2010.
12) As a result of the discussions above, the Court is inclined to hold that the enquiry conducted by the respondent no.5, who was the then Assistant Commandant, 84 Bn, CRPF as well as the legality of the order dated 06.07.2010 passed by the Commandant, 84 Bn, CRPF (respondent no.4) are both vitiated and therefore, the Court has no hesitation to set aside and quash (i) the Enquiry Report submitted on 20.04.2010, and (ii) the Office Order no. PVIII08/2009-ESTT-TWO/84 dated 06.07.2010, by the Commandant 84Bn CRPF, FCCI, Camp Jammu (J&K). Consequently, the petitioner has become entitled to be forthwith reinstated in service, which shall be done within a period of 2 (two) months from the date of receipt of a copy of this order.
13) Consequently, the matter stands remanded back to the Disciplinary Authority Page No.# 8/8 (respondent no.4), who would be at liberty to hold a de novo disciplinary proceeding against the petitioner, if so advised. The respondent nos.1 to 4 are directed to treat the period the petitioner was removed from service as suspension period, but without pay. However, the petitioner shall only be entitled to notional benefit of his pay and other emoluments.
14) It is clarified that although the matter was orally disposed of on 08.04.2021, but due to inadvertence, this file got was mixed up with some other record. However, this file had been traced out only on 29.05.2021 and this order could be uploaded only on 02.06.2021.
JUDGE Comparing Assistant