Central Administrative Tribunal - Kolkata
V Abhilash vs Police on 26 May, 2020
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1 03/1457/2017
CENTRAL ADMINISTRATIVE TRIBUNAL
KOLKATA BENCH, KOLKATA
O.A/351/1457/2017 Date of Order-' ^6'5- ZJ®-30
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Coram^ Hon'ble Ms. Bidisha Banerjee, Judicial Member
Hon'ble Dr. (Ms.) Nandita Chatterjee, Administrative Member
Shri V. Abhilash, aged about 35 years, son of Shri V. i
Ayyappan, working as Constable (IRBn) and residing at
Pi'Othrapur, Port Blair - 744103.
••Applicant
Versus
1.. Union of India, service through the Secretary,
. * Government of: India,. Ministry of Home- Affairs, .
Jaisalmer House, 26, Mansingh Road,1 New Delhi -
110001.
3 m
« fcHlfis 1
i
2. The Lieutenant Governor, Andaman & Nicobar Islands,
Raj Niwas, Port Blair - 744101.
3. The Director General of Police (PHQ), Andaman &
Nicobar Police, Atlanta Point, Port Blair- 744101.
4. The Inspector General of Police (PHQ), Andaman &
Nicobar Police, Atlanta Point, Port Blair* 744101.
5. The Commandant, Office of the Commandant, India
Reserve Battalion, Andaman & Nicobar Police, Port •
Blair- 744101,
6. The Assistant Commandant (ii), Office of the
Commandant, India Reserve Battalion, Andaman &
Nicobar Police, Port Blair* 744101.
••Respondents.
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For ThelApplicant(s)~Mr. K C^Dasj counsel av.. . -•••? . i .
For The Respondent(s): Mr: R. Haider, counsel
ORDER
Per- Ms. Bidisha Baneriee. Member (J)» The applicant has preferred this O.A to seek the following reliefs- , "a) To quash and/or set aside the impugned Memorandum of Charge-Sheet dated 25.08.2008 imposed by the Disciplinary Authority against the applicant being Annexure A-3 of this original application.
b) To quash and/or set aside the impugned office order dated 29th May, 2008 issued by the Disciplinary Authority whereby s/our applicant was suspended on the ground that the disciplinary proceeding was contemplated against him. c} To quash and/or set aside the impugned Enquiry Report submitted by the Enquiry Officer dated 05.12.2016 which was supplied to the applicant vide office memo dated 14lh December 20l6.being Annexure A-17 of this original application. • ■ t .t
d) - "To quash and/or set aside the*impugned orderof/punishment being Order Book No. 248 t :
dated 2nt> February, 2017 imposed by the Disciplinary Authority against, the. .applicant by. f/T withholding his future increments for a period of five years with cumulative effect and the entire * 4 « 2 oa/1457/2017 suspension period is treated as 'Not spent on Duty' for all the purposes being Annexure A-19 of this original application.
e) To quash and/or set aside the impugned order of the Appellate Authority being Order Book No. 1313 dated 12,h May, 2017 by which the punishment order imposed by the Disciplinary ' Authority*has beem.upheldrbythe.Appellate Authority'and the statutory appeal preferred by the. ' * ' applicant has been rejected on non application of mind'and not considering the points raised by s the applicant in his statutory appeal and did not consider the observation made by this Hon'ble Tribunal in the order dated 29lh September, 2015 and repeated the same thing which they have done in the earlier proceeding being Annexure A-20 of this original application.
f) To declare that the entire disciplinary proceeding conducted by the Disciplinary Authority against the present applicant is otherwise bad in law and illegal which is utter violation of the statutory rules and also on the ground of dropping of the prosecution witness in terms of the office memo dated 5Ih September, 2016 being Annexure A-14 of this original application.
g) To pass an appropriate order-directing upon the respondent authority to exonerate your applicant from al charges after setting aside and/or quashing the charge-sheet, enquiry report, punishment orders imposed by the Disciplinary Authority as well as Appellate Authority and further directed the respondents to fix the proper pay scale of the applicant and to restore his pay and allowance as well as his increment along with all consequential benefits.
h) To pass an appropriate directing upon the respondent authority to grant all consequential and monetary benefits of the applicant after quashing the impugned orders challenged in the present original application.
- i) . To pass aniappropriateidirectingr.uponxthe'respondenf'authority'torproduce all the" -7 relevant records-f the disciplinary proceedings'initiated against the applicant before this Hon'ble Tribunal for proper adjudication of this case. J) To imposed cost upon the respondent authority for harassing the applicant unnecessarily.
k) To pass appropriate relief or reliefs as Your Lordships may deem fit and proper."
2. The applicant, a Cadet of Reserve Battallion, has pleaded that a Departmental-Enquiry under Rule 14 of Central Civil Service (Classification Control and AppeaORules, 1965 was instituted against vide Memorandum No. Comdt./IRBn/PC/DE/50/2008/1396 dated 25.08.2008 and the gravamen of indictments against the applicant are as under, extracted with supplied emphasis for clarity-
»• ARTICLE-I That on 19/05/2008 Ct/021074 V. Abhilash while posted at IRBn HQ Port Mout absented himself from the roll call conducted at about 1945 hrs and the report was entered in G.D vide entry No. 43 dated 19/05/2008. In the meantime, SHO, P.S Ogrobraj had informed that the said Ct/021074 V. Abhilash was cauaht bv the villagers and handed over to Police while he unauthorizedlv entered into the house of. a villager namely Shri Jainuddin. R/o Port Mout. Inquiry into the incident conducted by Shri Shaukat Hussain, Asst. Comdt. Revealed that on 19/05/2008 at about 1930 hrs, Shri Jainuddin, a shopkeeper on getting a telephonic all from his wife rushed to his house and found that someone in drunken state had entered in their kitchen of the residence located at Port Mout. On this he informed the matter to the villagers and with the help of the neighbours cauaht the intruder and handed him over to the 1 t i'fjf H # •*.*** ,f' 'r«»4c»es. •tr 3 oa/1457/2017 7 Police party headed by AS! Vikash Singh of P.S Ograbraj. Later he was identified as }* Ct/021074 V. Abhilosh of IRBn, Port Mout. He was sent to PHC Tushnabad for
-ft medical examination. The Medical officer conducted the medical examination of Ct/021074 V. Abhilosh & opined that smell of liquor was coming out from his mouth and breath and further also opined that he was under the influence of alcohol. The inquiry further revealed that on 19/05/2008 at about 1845 hrsr Ct/021074 V. Abhilosh had consumed liquor, drove Motor cycle in a drunken state and created nuisance in the public place & later on unouthorizedlv entered into the house of Shri Jainuddin. This is an act of indiscipline, grave misconduct, wilful absence, consumption of intoxicating drinks, and unouthorizedlv entry into a house on the part of Ct/021074 V. Abhilosh who had thereby acted in a manner unbecoming of a Govt servant which is in contravention of Rule 3 (1) (ii) & (Hi) and 22 of CCS (Conduct) Rules,.1964 and rendering him liable forpunishment under Rule -11 of CCS (CCA) Rules, 1965.
A statement of on which the article of charges was based, together with a list of Anlstr* documents by which, and a list of witnesses by whom, the charges were proposed to be it mm sustained was served to him. V. Abhilash submitted his written reply dated 27/08/2008.
c| y He was also given an opportunity for personal hearing by the then Commandant, IRBn SMS (Disciplinary Authority) on 05/09/2008.
After examining his written reply, V. Abhilash was reinstated into service from
-suspension and awarded the penalty of withholding of his future increments for a period of five years with cumulative effect vide order Book No. 1539 dated 12/09/2008 by the then Commandant, IRBn (Disciplinary Authority). V. Abhilash preferred an appeal against the said Order before the Director General of Police, A&N Islands (Appellate Authority) which was rejected vide Order Book No. 1939 dated 12/10/2009. The authority proceeded as if he had admitted his guilt.
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Challenging the entire disciplinary proceedings, Ct/021074 V. Abhilash preferred an Original Application before this Tribunal at its Circuit Bench at Port Blair in O.A NO. 351/00040/2014 (Shri Abhilash -vs- Union of India & ors). Vide judgment/order dated 29/09/2016, this Tribunal set aside the orders passed by the Disciplinary Authority and the Appellate Authority and observed that the charged officer had not categorically admitted his guilt and directed Disciplinary Authority to conduct the enquiry as per Rule 14 of the CCS (CCA) Rules by giving an opportunity to the applicant Ct/021074 V. Abhilash to cross-examine the witnesses and to process the matter as per law.
As directed by this Tribunal, an enquiry was initiated. Inspector Shanta Bahadur and Sub inspector S. Anandan of IRBn were appointed as Inquiry Officer and Presenting Officer respectively. The Enquiry Officer (Inspector Shanta Bahadur, IRBn) after completion of the enquiry submitted his findings on 05/12/2016 by proving the charges framed against Ct/021074 V. Abhilash.
'■ A copyofthe findings'subfnitted'.bythe Inquiry officer wasrserved to.the charged officer Ct/021074 V. Abhilash giving him an opportunity to submit his reply, if any. He submitted his written reply on 19/12/2016.
In his written reply, the charged office contended that all the prosecution witnesses examined during the enquiry had admitted their statements but the complainant Shri Jainuddin changed a sentence in his earlier statement the Hindi word • i* > * ♦ • » * *»>. » ' * r * ♦ .
4 oa/1457/2017 Kitchen ka Baahar" by deleting the word "Kitchen ka Andar". Therefore the charge of unauthorized entering into the house was not proved.
....However..the.Disciplinary.Au.thor.ity.(.DA in.short).found that,..
"(i).Such contention-of the,charged officer has no meritias the.fact remains that ;
he had deliberately entered into the house of Shri Jainuddin in a drunken state. The plea »* taken by the charged officer that he had entered into the house to take shelter due to rain also appears to be an afterthought to cover up misgrave misconduct as a Bus stand exists in front of the house of Shri Jainuddin, where he could have taken shelter in case of rain. Ct/021074 V. Abhilash has also been heard in person on 09/01/2017. During the personal hearing, he did not raise any fresh points other than what he has submitted in his written reply and only prayed for leniency. In view of the above facts and circumstances of the case, I am fully convinced that the allegations level against Ct/021074 V. Abhilash stand proved. As a uniformed member of the disciplined force, instead of discharging his duty dilieentlv and sincerely, he had absented himself from :'2\~.......... " 'n*1, pist/J
- ^ Govt, duties unauthorizedly without any intimation/permission from the superior | officers" and \o Wm
(ii) Indulged in an act of grave misconduct by unauthorizedly entering into the . house of Shri Jainuddin after consuming liquor, driving the motor cycle in drunken state ■9 • •and creating nuisance at a public place." '
(iii) Such acts of indiscipline brings a negative impact on the image of Battalion and discipline of the force. It is obvious that showing any lenience towards him would be a bad precedent and would encourage other members of the Battalion to wrongly believe that such acts of indiscipline are minor delinquencies which could be overlooked and can be condoned."
"Such acts of grave misconduct on the part of the charged officer Ct/021074 V. Abhilash are in violation of Rule 3(1) (ii & iii) & Rule 22 of CCS(Conduct) Rules 1964. Therefore, Ct/021074 V. Abhilash is awarded with the penalty of withholding of his future increments for a period of five (05) years with cumulative effect. On account of the disciplinary proceedings, the charged officer Ct/021074 V. Abhilash had remained under suspension from 29/05/2008 to 11/09/2008. His suspension period is treated'as "NOT SPENT ON DUTY" for all purposes. During the period of suspension, he had drawn theisubsistencerallowancezas admissible under the rules and the remaining,^. .r i ' • • 4' -
portion of his pay and allowances* wilhstand forfeited the Government.'This-order of . * ** penalty of withholding of his future increments will take effect from the date of next * increment accruing to him.
If aggrieved by this order he may make an appeal to the Appellate Authority, if he so prefer, within 45 days from the date of receipt of this order."
3. The Appellate Authority affirmed the penalty: The applicant has preferred this O.A seeking quashing of the charge*sh<'et penalty order and ■* • * the appellate order.
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4. Ld. counsels were heard and records were perused.
At hearing, Id. counsel for the applicant would place the following, extracted hereunder for clarity-
(I) The charge:
ARTICLE-! Thot on 19/05/2008 Ct/021074 V. Abhiiosh while posted ot fRBn HQ Port Moot i-' „ absented'himself fronrthe roll coll-conducted-at about 1945 hrs and the report was.. »f;T; ^ h i entered in G.D vide entry No. 43 dated 19/05/2008.' In the meantime, SHO, P.S Oarabrai !?
* j r had informed that the said Ct/021074 V. Abhilash was cauaht by the villaaers and "v\ handed over to Police while he unauthorizedlv entered into the house of a villaaer i *1 namely Shri Jainuddin. R/o Port Moot. Inquiry into the incident conducted by Shri Shaukat Hussain, Asst. Comdt. Revealed that on 19/05/2008 at about 1930 hrs, Shri Jainuddin, a shopkeeper on aettina a telephonic all from his wife rushed to his house and found that someone in drunken state had entered in their kitchen of the residence * located at Port Mout. On this he informed the matter to the villagers and with the help of the neighbours caught the intruder and handed him over to the Police party headed by ASI Vikash Singh of P.S Ograbraj. Later he was identified as Ct/021074 V. Abhilash of IRBn, Port Mout. He was sent to PHC Tushnabad for medical examination. The Medical ■ * officer conducted the^medical examinatiomof Ct/021074'V. Abhilash & opined that smell * -f c 1 * i: of liquor was coming out from his mouth and breath and further also opined that he was under the influence of alcohol. The inquiry further revealed that on 19/05/2008 at about 1845 hrs. Ct/021074 V. Abhilash had consumed liauor. drove Motor cycle in a drunken state and created nuisance in the public place & later on unauthorizedlv entered into the house of Shri Jainuddin. This is an act of indiscipline, grave misconduct, wilful absence, < consumption of intoxicating drinks, and unauthorizedly entry into a house on the part of Ct/021074 V-. Abhilash who had thereby acted in a manner unbecoming of a Govt servant which is in contravention of Rule 3 (1) (ii) & (Hi) and 22 of CCS (Conduct) Rules, 1964 and rendering him liable for punishment under Rule -11 of CCS (CCA) Rules, 1965."
Placing supra. Id. counsel would contend that the complaint, against the ♦ applicant was that the complainant's wife saw-someone standing-"outeic/e ** their kitcheii' whereas the charge levelled was that the said Ct/021074 V. Abhilash was caught bv the villagers and handed over to Police while_he r? • -T* 7 / ' V 6 . oa/1457/2017 < unauthorizedlv entered into the house of a villager namely Shri Jainuddin.
Wt
-v '■// Therefore, the charge sheet was issued with bias and deserves to be quashed.
(II) Ld. counsel would further place the the earlier order dated 29.09.2015 Wj issued in O.A 40 of 2014, which runs thus;
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f/j V "2. Along with the O.A, M.A hos been filed so os to get the delay condoned in filing the O.A. •T
3. Indebutably and indisputably the germane facts absolute necessary for the M disposal of this O.A, would run thus.
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4. The applicant namely, Shri V. Abhilash has been working as Constable (IRBn). While so he was served with a charge-sheet vide Annexure A-3. For that the applicant .
y gave his reply, which was taken as an admission on*his part. Whereupon the .1 j disciplinary authority without holding an enquiry under Rule 14 of the CCS (CCA) Rules, 1965 imposed the punishment as under;-
it After hearing all his pleas and submission far a lenient view with the assurance that there would not be any recurrence of such lapses on his part in future, I am of the opinion that his misconduct is not acceptable and award him the penalty of withholding of
- * his future'increment foraperiod:offive years with cumulative-effect..During this period, he - > - :f J l - i will not earn any increment.1; .; i Ct/021074 V. Abhilash was placed under- suspension vide Order Book No. 1093 dated 29.5.2008 is reinstated into service with immediate effect. The period of his suspension will not be treated as spent on duty. During the period of suspension, he is entitled to draw only subsistence allowance as admissible under the rules and the remaining portion of his pay and allowances will be forfeited to the government.
This order of penalty of withholding of future increment of Ct/021074 V. Abhilash will take i effect from the date of next increment accruing to him." t 1 v Against which an appeal was filed before the appellate authority and the appellate authority vide order dated 12.10.2009 dismissed the appeal. The operative potion of it would run thus:-
:. "11. / am, therefore, satisfied that order passed by the competent authority is based on evidence • i<i
- ---and is just.The-contentions of.the.appellant are, therefore, .devoid of any merit. i * ■■ * 7 '.»• ' • - -
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12. As such, I find no reasomto interfere with'the'order~of-penalty withholding of his future' i •
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increment for a period offive years with cumulative effect issued vide Order Book No. 1539 dated 12/9/2008 passed by the Commandant, IRBn, A&N Islands (Disciplinary Authority). Hence, the appeal under reference preferred by appellant Ct/021074 V. Abhilash is hereby rejected.
Challenging and impugning the said order this O.A has been filed after several years virtually.
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7. r/?e points for consideration is as to, 7 (1) Whether the delay of three years and a half could be condoned for the j/ reasons set out in the O.A?
ST// 7 (2) Whether the disciplinary authority was justified in considering the l-v' y representation given by the applicant in response to the charge as admission?
And x r (3) Whether he was justified in straightway imposing punishment without conducting an oral enquiry as contemplated under Rule 14 of the CCS (CCA) Rules, 1965.
7. Both the points are taken up together for discussion as they are interlinked and xxx(not legible) with each other. At the outset itself we would like to point out that Rule 14 of the CCS (CCA) Rules,. 1965.contemDlatesrar.wholesomevrocedurerNo doubt once ,* ^ there is a supine admission by the applicant of the'charaes, no oral enquiry is necessary. • ' * f & Here it is to be seen whether there was unconditional admission of guilt on the part of cj A y the applicant with reference to the charge levelled as against him. Annexure A-6 'A contains the true translation of the so-called admission of the applicant in Hindi, and it is extracted hereunder for ready reference:
"To The Commissioner Indian Reserve Battalion Andaman & Nicobar Islands Sub: S.S./(RBn/Estt./V. T/50/2008/1396-Reg.
Respected Sir, I, the petitioner "V. Abilash,.Suspended Constable 021074 in the Indian Reserve . . 4 ! Battalion working under your .department: I received your suspension order on ^ ^ l 25/08/2008. In response to this I beg to state that on 19/05/2008 in the evening 7 ^ 'i after having dinner in IRBn canteen I went to Tusnabad for taking Parata etc and from where on returning the rain started on the way. In order to rescue from the rain, I sheltered a house situated in Port Mout Village where I was standing in the veranda. May be on that time one ladv was alone in the said house, she saw a Motor cycle was parking near her house and when she saw to me immediately she informed to call her husband by telephone and same time her husband came there and called the police authorities from the P.S Oarabrai bv telephone. The police • authorities were not ready to hear to me and on the basis of doubtful complaint . given bv the ladv, I was taken to Police station bv the police authority. Due to said reason I was absent in the role call in the Port Mout, and after information about mv custody, the duty officer Assistant Commissioner came at Port Mout and release me from Police Station and I was taken to Port Mout.
Sir, the aforesaid statements, when I was returning from Tusnabad then mv : i - intention was^onlv rescue^from raimand excepPthat I was no any intention to do* j- J any dirty plan about'the said lady in my mind but due to mistake that incident ivos: ? - • J occurred.
8 oa/1457/2017 It is therefore, requested to-your good self I will not do this type of mistake in future and forgive me as my first and last mistake, / will be regular and since in my duty and please to take lenient view and allow me to re-join my duty, I shall be very grateful to you.
W' Thanking You.
Yours obediently '
. (V. Abilash) ' *
2
Suspended Constable 021074
Indian Reserve Battalion
Port Blair."
8. A mere running of the eye over it would exemplify and demonstrate that it cannot be countenanced and upheld as an admission of guilt of the charge levelled as against him. In the said annexure A-6 he only narrated his defence. No doubt there, he pointed out and admitted his presence at the verandah of the said house where the A •i* a c Vi complainant lady was staying. But he never admitted that he trespassed into the house i & 'A with any mala fide intention. The charge against him was serious. The authority alleged as against him that he absented himself from duty and the charge did not end there, but in an integrated manner it contains the allegations as though he in a drunken state trespassed into the house of the complainant. As such, the above extract of the alleged admission cannot be taken as admission of guilt which wos capable of paving the wav * L ^forthe~disciplinary'authority'tdTimposeLthe punishment^undenRule 14 of the CCA (CCA) x\ ^ $• Rules. 1965. • > T.i
9. The appellate authority did not consider the above aspects which we have referred to supra.
Condoning the delay, it was ordered, as under-
"12. Major penalty was imposed as punishment. But it is unheard ofxxxxfnot legible) service jurisprudence that a disciplinary authority could waive oral enquiry and < impose a major penalty and that too, when the charged official has not categorically admitted his guilt. Hence keeping the aforesaid fact in mind and also the applicant's desire all along to get redressal at the hands of DGP, we are of the opinion that we need not take a draconian view concerning condoning of the delay and, as such, we condone the delay in filing the O.A and set aside the order passed i by the disciplinary, authority andialsoXhe appellate authority and issue direction to . . i.
■ the disciplinary authority~to~conduct~enquiryras.per^Rule 14 of theXCS (CCA) Rules 1 'i giving also an opportunity to the applicant to cross-examine the witnesses and process the matter os per law within three months from the date of receipt of a copy of this order. The applicant shall cooperate with the authority for speedy disposal of the oral enquiry.
13. Accordingly, the M.A and O.A are disposed of. No costs."
Placing the above, Ld. Counsel would vociferously submit that the authorities have proceeded with absolute bias closed mind and illegally.
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F/ (III) L*d. counsel would place the report-ofE.O dated:12.09.2018 Annexure A- .
5, that records the following, (extracted with emphasis for clarity); / / "OFFICE OF THE COMMANDANT, India Reserve Battalion, Andaman & Nicobar Islands.
Port Mout, dated the 12th September 2008.
ORDER BOOK NO. 1539.
A disciplinary proceedings under Rule 14 of CCS (CCA) Rules, 1965 were instituted against Ct/021074 V. Abhilash vide this office Memorandum No. Comdt/IRBn/PC/DE/50/2008/1396 dated 25.08.2008 on the following article of charge framed against him.
ARTICLE-) That on 19/05/2008 Ct/021074 V. Abhilash while posted at IRBn Ha Port Mout absented himself from the roll call conducted at about 1945 hrs and the report was entered in G.D vide entry No. 43 dated 19/05/2008. In the meantime, SHO, P.S Ograbraj had informed that the said Ct/021074 V. Abhilash was caught by the villagers and handed over to Police while he unauthorizedly entered into the house of a villager namely Shri Jainuddin, R/o Port Mout. Inquiry into the incident conducted by Shri Shaukat Hussain, Asst. Comdt. Revealed that on 19/05/2008 at about 1930 hrs, Shri Jainuddin, a shopkeeper on t getting a telephonic all from his wife rushed to his house and found that someone in drunken state had entered in their kitchen of the residence located at Port Mout. On this he informed the matter to the villagers and with the help of the neighbours caught the intruder and handed him over to the Police party headed by ASI Vikash Singh of P.S Ograbraj. Later he was identified as Ct/021074 V. Abhilash of IRBn, Port Mout. He was sent to PHC Tushnabad for medical examination.The Medical tofficer conductedx-the. medical examination of i »*' * : m 1*4 . Ct/021074 V. Abhilash & opined'that'-smell of liquor;was coming out from his mouth and breath and further also opined that he was under the influence of alcohol. The inquiry further revealed that on 19/05/2008 at about 1845 hrs, Ct/021074 V. Abhilash had consumed liquor, drove Motor cycle in a drunken state and created nuisance in the public place & later on unauthorizedly entered into the house of Shri Jainuddin.
This is an act of indiscipline, grave misconduct, wilful absence, consumption of intoxicating drinks, and unauthorizedly entry into a house on the part of * r* Ct/021074 V. Abhilash who had thereby acted in a manner unbecoming of a Govt, servant which is in contravention of Rule 3 (1) (ii) & (ill) and 22 of CCS (Conduct) Rules, 1964 and rendering him liable for punishment under Rule -11 of CCS (CCA) Rules, 1965.
A statement of imputation of grave misconduct and gross indiscipline on which the article of charge were based, together with a list of documents by which, and a list of'witnesses by whom, the. charge were proposed to be sustained, were also given to him along with the above said memorandum dated 25/08/2008.
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10 oa/1457/2017 The delinquent Ct/021074 V. Abhilash, vide his written reply dated 27/08/2008 has voluntarily admitted the charge framed against him and pleaded guilty about the incident.
I have carefully and dispassionately examined the written reply of Ct/021074 V. Abhilash, in response to the Memorandum No. Comdt./IRBn/PC/DE/50/2008/1396 dated 25.08.2008 and given him an opportunity for personal hearing on 05/09/2008.
During the oral submission he did not raise anv fresh issues/points irrespective of-his ~written~submissiontin his* defencei Ct/021074 V. Abhilash * however, accepts his guilt and assures to not to repeat such acts in future.
After hearing all his pleas and submission for a lenient view with the assurance that there would not be any recurrence of such lapses on his part in future, I am of the opinion that his misconduct is not acceptable and award him the penalty of withholding of his future increment for a period of five years with cumulative effect. During this period he will not earn any increment.
Ct/021074 V. Abhilash was placed under suspension vide Order Book No. 1093 dated 29/05/2008 is reinstated into service with immediate effect. The period of hi suspension will not be treated as spent on duty. During the period of suspension he is entitled to draw only subsistence allowance as admissible under the rules and the remaining portion of his pay and allowances will be forfeited to the government.
This order of penalty of withholding of future increments of Ct/021074 V. Abhilash will take effect from the date of next increment accruing to him. .•» $ .• .1 (K.C. Dwivedi, IPS) Commandant, IRBh"
A&N Islands"
The E.O's report dated 15.12.2016, (Annexure A-17 page 125 of the O.A), records the following* "FINDINGS
1) That the charged framed against Ct/021074 17 Abhilash 19/05/2008 he was found absent in the roll coll conducted at about 1945 hrs in IRBn (HQ) Port Mout and the report was entered GO entry No. 43 dated 19/05/2008. In the meantime, SHO, P.S Ograbraj had informed that Ct/021074 V. Abhilash was caught by the villagers and handed over to Police while he unauthorizedly entered into the house of a villager namely Shri Jainuddin, R/o Port Mout. Inquiry into the incident conducted by Shri Shaukat Hussain,AC-Ill, IRBn, in which it was revealed that on 19/05/2008 at about '. 1930 hrs,. Shri Jainuddinro:shopkeeper,zon-getting~a telephonic all from his wife rushed J to his house and found that someone in drunken'state had entered in their kitchen of the residence located at Port Mout. On this he informed the matter to the villagers and with the help of the neighbours caught the intruder and handed him over to the Police party headed by AS! Vikash Singh of P.S Ograbraj. Later he was identified as Ct/021074 V. Abhilash of IRBn, Port Mout. He was sent to PHC Tushnabad for medical examination. The Medical officer conducted the medical examination of Ct/021074 V. Abhilash & opined that smell of liquor was coming out from his mouth and breath and further also opined that he was under the influence of alcohol. The inquiry further revealed that on 19/05/2008 at about 1845 hrs, Ct/021074 V. Abhilash had consumed 77 r / 11 oa/1457/2017 :*/ ' V* r--"
r //qt/or, rfro^e /Wofor c^c/e /n a drunken state and created nuisance in the public place & 1/ / later on unauthorizedly entered into the house ofShriJainuddin.
- 2)' All the prosecution witnesses examined during the enquiry admitted their statement. » ♦
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Only Shri Jainuddin PW-6 changed asentence in hisstatementthe Hindi word "kitchen ka baahar" by deleting the word "kitchen ka andar".
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3) The defence also admitted the charge of wilful absent and consumption of liauor • framed against Ct/021074 V. Abhilash.
4) The defense in his brief stated that the charge of trespassing into a house by Ct/021074 V. Abhilash could not be established beyond doubt, but during the course of enquiry Shri Jainuddin clearly stated that the charged officer was standing outside of his kitchen, which proved that the charged officer entered into the premise of the Shri Jainuddin, Port Mout.
5) Also, PW-3 HC/021059 S.K. Hofeez stated that while returning from Tusnabad to Port Mout the charged officer who was riding the motorcycle stopped the vehicle in front of the bus stand due to rain and after come argument with the charged officer, PW-3 HC/021059 S.K. Hafeez left the charged officer and came to (HQ), Port Mout to attend the roll call.
6) That even the existences of a bus stand in front of the house of Shri Jainuddin the ■■ charged officer Ct/021074 V. Abhilashrentered unauthorizedly into the premises of Shri i ♦ : I ' Jainuddin on 19/05/2008 to takezshelterinsteadof'takinfyshelter at the bus stand at * 1 ' that time. Thus, the charge of unauthorizedly entering into the house of a villager by Ct/021074 l/. Abhilash is proved. Hence, the claim in the defense brief of trespassjng into a house could not be established bevond doubt does not stand.
7) That from the statement of witnesses and documents it is proved that on 19/05/2008 at 1945 hrs Ct/021074 V. Abhilash was absent from the roll call and he had consumed liquor, drove Motor Cycle in a drunken state and created nuisance in the public place and later on unauthorizedly entered into the house of Shri Jainduddin.
•* f CONCLUSION After analyzing the documents and statements of the witnesses during the course of enquiry it is proved that on 19/05/2008 at 1945 hrs Ct/021074 V. Abhilash was absent from the roll call and he had consumed liquor, Drove Motor Cycle in a drunken state and created nuisance in the public place and unauthorizedly into the house of Shri Jainuddin.
1i -'Thusrthe charge Jevelled.againsttthe~chargedTofficerLCt/p21074^ V. Abhilash" through ; .
■ * t
memorandum No. Comdt./IRBn/PC/DE/50/2008/1396 .dated 25.08.2008 is stand »
proved.
(Shanta Bahadur)
Inspector, IRBn
\
Enquiry Officer"
Ld. counsel would submit that the E.O has miserably failed to conclude 4 in accordance with the charge. He has travelled beyond the charge.
(IV) The order of the disciplinary authority records the following:
"/ have perused the enquiry report submitted by the Enquiry Officer, the written reply submitted by the charged officer tand the documentary i ^ «*> imr.
f I
; * * 4 * * »■ '••k •* *
f
* »*«.**-*«» h*' t
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12 oa/1457/2017
evidences/statements on record. In his written reply, the charged officer has contended that oil the prosecution witnesses examined during the enquiry had admitted theirstatements but the'comolainant Shri Jainuddin changed a sentence : * • k in his earlierstotemenvthe Hindi'word "Kitchen ka Baahar" by deleting the word nf "Kitchen ka Andor". Such contention of the charged officer has no merit as the r fact remains that he had deliberately entered into the house of Shri Jainuddin in a r drunken state. The plea taken by the charged officer that he had entered into the house to take shelter due to rain also appears to be an afterthought to cover up misgrave misconduct as a Bus stand exists in front of the house of Shri Jainuddin, where he could have taken shelter in case of rain. Ct/021074 V. Abhilash has also been heard in person on 09/01/2017. During the personal hearing, he did not raise any fresh points other than what he has submitted in his written reply and only prayed for leniency.
In view of the above facts and circumstances of the case, I am fully convinced that the allegations level against Ct/021074 V. Abhilash stand proved. As a uniformed member of the disciplined force, instead of discharging his duty diligently and sincerely, he had absented himself from Govt., duties unauthorizedly without any intimation/permission~fromzthesuperiorofficers~and'indulged in~an'act~of'grave~ ' misconduct by unauthorizedly entering into the house of Shri Jainuddin after consuming liquor, driving the motor cycle in drunken state and creating nuisance at a public place. Such acts of indiscipline brings a negative impact on the image of Battalion and discipline of the force. It is obvious that showing any lenience towards him would be a bad precedent and would encourage other members of the Battalion to wrongly believe that such acts of indiscipline are minor delinquencies which could be overlooked and can be condoned.
Such acts of grave misconduct on the part of the charged officer Ct/021074 V. Abhilash are in violation of Rule 3(1) (H & Hi) & Rule 22 of CCS(Conduct) Rules 1964. Therefore, Ct/021074 V. Abhilash is awarded with the penalty of withholding of his future increments for a period of five (05) years with cumulative effect On account of the disciplinary proceedings, the charged officer Ct/021074 V. Abhilash had,.remained under, suspension from .29/05/2008 to \ ll/09/20087:His:suspension~period :is~treated-as "NOTiSPENT'ON DUTY" for ail " ' f 'i purposes: During the period of suspension, he hadf drawn the subsistence allowance as admissible under the rules and the remaining portion of his pay and allowances will stand forfeited the Government. This order of penalty of withholding of his future increments will take effect from the date of next increment accruing to him.
If aggrieved by this order he may make an appeal to the Appellate Authority, if he so prefer, within 45 days from the'date of receipt of this order."
Ld. Counsel would strenuously urge that the conclusion of Disciplinary Authority is clearly vitiated as he has travelled beyond the charge, failed to apply his mind on the correctness of drawal of charges and. therefore act&( _ malafide and with perversity.
11 VJ *"r*-*^ «<** «4«. ** ; ** jkv * . .Ifl $ * » •* * ** • •*-- J
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V) The appeal that records the following:
g uti which \;nm- nf ihe ' QtK^lion raisril . Ocpositirm niiulc liy lli.- ' UnnaiK> ;ip|H:ari-il Piiiscf »nic«n <lurin£ C'rnss j I'rosccunmi Witness bcfoi'c 1.0 for Wiuu-ss : I'.xiiininution by the ;
rtcordini: his • i
l
IK'fvaici- Assisumcs- -
tk-j>oshi()i'
01 •2 " ";"6r - • r-"
• ful ; AS
■»
Shn l.nknailutn ! 0 - Clan vent Ans As per ihc inj'onnation i
t oi I5u4 2'.*;s iAV-oi disclose ns to what • received from sialinn writer ,
condition the i 1 IO'Sj? Bis)*an Sinuli the!
• charged oiliect ! Charged Ofl'icci was standing .
B * t
• tountl staodmu t>n
( the verandah of,the
/
j
m ihe house as informed !v,
Sliri Moidcen. k/o Port Mont .
i
1 house7
t : n ■: When the .! Ans At about illOO bVa.on
i > charged OlViccr was i 10/05/2008 l
- under ipninuu'c of
I i)lc<3hul° -------,
• 02' Ts' o-s 20'jf*'Shri.' T0 2 ' Can vou i Ans. When 1 reached ai the"!!
Vikash Singh disclose ns to what \ spol at about 2000 hrs on
. t»\V.02 condition the 1 iQ'QSaOOS the Chnrpcd. i
;
s
M • <>O<ccr \k-ixs unit/iirj .sou u) i *
e .ll.lllycti ii.
i •
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I; ; ;
lixintt ninncliiv.n"
! tl>« mitlM oT fosv people unUei
\ ilie tt>OviRitce or ticiuni ns
I
. smell >v»» c.'imnj^ 1'rons Hi«. ii
i
__ _ 1 •I'no.ilj.
fl
tip« 20*1 r« 'Sln'i To 2 ' <2fvn \'»*>. i • Ans N'es. ii>o vs.iiposc n. ;
S K I-lnice/. 1 disclose fho ; nueompuity \'
At.bilftsh is to
• t> W-'i'. rnci/i'niis.Mt »s u> I collect my >.inirot'tn t.-ovis'Ci'
rvl W't 1 N t'l-om tltc inilor i>l I nsn.-ibnil
* ttCC'MTlpfl Ml Vt'J » Ul:
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[t ^ *\ h > n • t»> J i' '
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*1 u sh nnUji^r* , s*i Uikx.? (.'i/OSl*»l *
. M.'lnJliy li1'iln its pj.l-.-on rictcr | O -I WlH - • Ans N' Altbitust. w;i;. dns-tliji 1 ill i sn (tel tin. Iti-'iU.-i i tile ivn'IC><- Pit;.-
i • j)11_*» c: » . .An:. Ve-t. ihei-c \s-ns nn'^Iin.:
:
1 rain o" that d»y ru iim* of i ttcident'-' ■ o <- Ch n < s-oti { Ans ___...... .......... 14 :
We stopped inironi : v.--.
disclose Hie ti«s-> t.s ( tlte hurt Staitcl fftort-.-iIVtif V j io wltetv yoii i. ...V • Al'ltilHsh look bis J mobile ill..- slieltcr \sl.oi 1'bon.: mul miked ss-nb HHN-1 :
! . t l»e'o i ax (i n e ' i 1 .a li it io it j i nt i mi.-ii him the t>u;i ( 111i»I ti.es .sill tsv little l<tt e in K..II C ' t» 11 l >n 1..- n. iS.Of, 1 , i l/r •••< -2 11 S K I IntV-e.t.
, IKHn t PW. i tit-hi c-.l It • I..
h«.-iii'rMLt itinl sitMCCl
bs- ititit
, Ss-mits I. iicl.i-submit tlie t':.»t-.
! wlucb occii'ie.l . tbe o:
| iMCicJcm ni svameU li.i ssil'ni'U
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ti wriuein simc-mont in aUdtlt.xt -
to bi:t ;•>I'es ioi is si .m i ;i m-i n
- I'eeixideci emlte:'
<. In I .1 X'; S o.
I l/< Vci2 I (15V S K l-ln l'e«: a. '
. I K.I1n ( l»\V- » ) .1 ti r'i n^. l 51;. i
l>roecer(in}< StibiMit let] .in .
I 1.1 U'l ict.t n.n finiiie.-uinst. tlitu he '
I i
: ; .Use s seams lo" n;lil mis ;
! fti<**V f'nai in vs-Miion Anti he j
svili discios«i the I'ncts ct.innji ' t he. ctoss cxaminmion Vise -1
| letter received I'l-ons j
l H/C/021050 S.tC. Wufecv. ia. •
| marked ns Exhibit S-3/2 And
:
j sijtrtattjro ns li>chit>it 3>-a/3 And .
l:
i m lettet it was tnenttonctJ the I
• time rocffctcd frt pr*r»-U3t#s * t \ '
i xt.itemctH shoctld , have: . toeett
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...................______________ _ ^>5 msicrfd c-f r.rv:.
i . t-sammaiion
I by ; Ans The reason ts ibai me '
j charged ofl'iccr Cl/02 lO?^ V. ;
} 0-1- Can you led us •< Ahhilash came to me at ;abom • i the reason behind of ! 1815 hrs on 19/05/2008.^ * ~ ;• ! difleiing die lime I i i ! (only halfan houi)'1 i 1 Q.2. Can you Ans The Charged OO'icer ! disclose the purpose : warned io uo io Tushnabad to j 1 of coming iho j have packed dinner i.e ntcat ! Charge OiTicer to . and paraiha.
vou0 !0 At what time Ans We leS't for Tushi',al)?.d ' you along with CO for hardly 1 30 minutes iaier | left for Tushnabad to j | bring the packed : i ___,!i dinner1!1______________________________________ :
: Q4 VVheiher you : Ans. \\!c went Tushnabad bv ;
I reached Tushnabad motorbike
! by bus or by any
! other mode of; i
___. (ransporf.1_______ j______________________ Q.5 Can you tel! the > Ans. ) don't remember the I regisuaiion number ! regisiration number oi* liie I of the motor bike? j.bikc._____________________ ! Q.6. Who was the Ans: The owner of the bike ; ' C I owner of the . bike | was my colleague USanjay , ' 1 ' vourself or the CO9 I Barla :
! 0 7 Have vour arty , Ans I am not aware whether ! . idea Vlr Sanjay i he is in habit of taking drink : j Bark-; your friend 1 or not J also in itabii of} :
taking drinkornoj?! 0 8. Did you ever ^~Ans. Yes. 1 lasted/drink only last c/drink liquor ■ binhdav parties' functions I j during the period J occasionalK • from vour ii to ; ;
; appointment 1 19/05/2008° I j O n Would you be Ans No. I was not drunk on :
in poshing to recall j 19/05/2008 whether you took/drink liquor on ! j I9/05/20089__ ____' ____ ___ ______ __ _ ' : Q 10 Have you any ; Ans While going towards .
' idea that a 'BAR' is ■ Tushnabad bus stop, and while j located at ' on return the bike skid near :
- j Tushnabad which the petrol pumj) outlet i:
was hardly 1G-20 Tushnabad and + thereafter i ! t mtrs away from the stopped bike at bus^stand near ! > location where I Loha barrack range office.
r i
, yourself and charged
i officer along with
.:- ; bike were standing'' ____
10 11. Can vou , Ans. I don't know who is,
4
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: disclose ihc distance Jainudeen and location of hi> .'l of your location (bus I house, ■■ r stand ■ near Loha j
-i • : ; "
i t .
i ■ • ?
/ Barrack range i
i
ofTicc) from the '
r
|0.
r>'
residential house .of j i
i• Mr Jainudecii. a i
* i
. Shopkeeper at !
(
■ Ourabraj'* __ ___^________________________
i Q 12. 6o vou know i Ans Yes. I know him He is
i
anybod\ naming ! an IRBn Constable.
Ajith Toppo ;
;
____I Ct/021 i IW
* | Q.l? Do you know j Ans. I don't know anything i
i :.v. ' anvihing about him ! about him whether he drinks j !
I
: in particular whether i or not.
i he drinks liquor or i ;
i not?
|Q. 14 Would you be Ans. So far I remember. I • m position to j went only once to Tushnabad | :
disclose how many ! alongwith CO on bike ' . t:me> you came to '6C ' Tushnabad on 5 M t ; 19/05/2008 from j j-
I:
i *
! IRBtv. HC) 'Poii.' -
: » • -* $-
i Mout? «L-
I
Re-examination - by •
I PO
: Ans As there was drizzling ;
S
I Q2. In your • both of us were standing ;
statemem vou stated j beside the bike t ' that you stopped near range office bus stand, if so where yourself and CO ;
went?
1 0 £l When you met i Ans l met him at about .2100-.
with CO alter the hrs on the «;anie dn> i e f incident of id'O.'-CO'XS. he was slnmess 19/05 2008 and . and was in from of GO Room what a> his ; condition'* i 1 Q'5' Can you { Ans. Yes. the bike was taken • ! disclose whelhct the i in friendship by me because i motorbike used on j Sanjay Barla refused to give i: j ' 19/05/2008 was ; to CO V Abhilash and the ;
■ ; shared or taken.from j keys were handed over to,me :;
i ^4 t
' | Sanjay Barla . fn | at my risk. . f. i
, friendship and who I V
' took (he bike from
Sanjay BtirirC________ _______ _____ __________ ___ i
j Q 6 If it so. who Ans On next day the keys and j and when returned 1 motor bike were icceived by the bike were Sanjay Barla accompanied by • received by Sanjay i me and Cl/021061 Vinod Nair .
Barla? j from PS Ograbraj. | !
"-srte* WW-' && aai? K* |f^'A- * • ^1-^:-.^ ^ . • if-
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16
oa/1457/2017
in position to state Mom before Roll Cal! at about as to when you lOOOhrs reached 1RB 010} ;
w v ____ Ron Moufi_______ _j__ ________________________ l imbi S '' K1 Q 5 At what time I Ans. It was appro* between .
►.t
f
1
t
m- -
p\\. \ou reached the spot 1^30 hrs*2000 hrs on the day of incident? • ofincidcnt 0 2 \\nio deputed > Ans I was deputed by the o.i at the spot ni vs|K) PS Ourabrai .tlotui w tii (.T-
-'l .nodent ami how Si \'tka.'it ik PC' lot; B i'.i:,
;; PtMice (icorut
:C . ;:'ioal> 'sere moK'
at the team''
p 0 3 What you , Ans 1 noticed that there was .
noticed after arrival approx 03 to 0-4 persons were , at the .spot0 surrounding the charged j ' officer Mr Abhiiash Si '3U 0 4 \Vas thcie an\ Ans N'o & •£-
•fe
lady at the spot of
incident0 _
> - -
A O 5 ('an you tell us Ans So I remember the CO
•il acluallv where the was standing outside :he
___ CO was standing * kitchen
r xHTx. V h-.Ori V-- Bipm QA What was the Ans When I reached .t: the
c C fr'ffC'gC' PE*o5 condition of . spot. I noticed him to be a
Abhiiash when \ou normal person
reached at the spot,
T
would you be in
'J position io clarify '
*;, • the status of
Abhiiash (C0)° ' _ _ _ __ _
0 5 Would you Ans 1 don't icmcmboi
fmdsmell of hquoi
from his mouth'
Q 0 Whether he wa3 An> ! cannot say anvthmr _ °Lnujl> ^ Z/t Shri M He admitted his j i Jamudeen- ■ earlier statement that f PL.;y> was recorded on * . 22/05/200S and during prelinnna! ^ enquiry Ho also idetiufied his signature The statemem miuked as • Exhibit S-P and his : signature on it as i>- i Exhibit S-fV) and intends to add the Hindi word "kitchen ko huaiuir " b\ deleting the word "
Kitchen kt; -.wJ.it and docs not want to , add any more lac is i to his previous .
I State merit-________ ■ V » 17 oa/1457/2017
-t --
_________________02. .
,0.2 Von have jusi j Ans. 1 here was ncavy ram at ! added the Hindi | that point of time and my i word "kitchen ka i wife when switched on the baahar" instead of i light of the kitchen, she saw a j "Kitchen ka andur" * man standing outside the } would you be in ; kitchen completely drenched \ j position to sav that . by the rain Since she could , • whether there was 1 not identifv the person j ; any ladv member m i standing and trembling due to j j « S' jthc< kitchen-, at that • drenched. She .informed me • ; point oftimb'* • over telephone to'come home • i immediately It was at about | IdOO hrs-19.10 hrs ^ 0 3 When you j Ans saw the person j i reached home and ' completely drenched and 1 1 saw the person, what i shivering when I enquired , • was his condition' j from him he said that I urn ;
i j completely drenched in and ;
i
__, waiting for the rain to stop.__ ;___ --I
J.
i Q.4. Would you be 1 Ans As 1 remember, he was j.
in position to i drunk as smell was coming
disclose whether the j out from his mouth but he was ' ' person drenched in ' in sense because'of this. I did ! rain watet and not make any complaint but shivering was drunk i only informed about the • or not? i situation at PS Ograbraj.
i Cross Examination ;
! bv l\0
: Ans. Mv shop and house arc
' Q.l Can you tell • separate and it is approx.700- ;
whether your shop | 800 meters distance. I
i
i
&
and * • house are } J . ;v
i separate and if what 'i 1 *
i
(f,
I is the distance0_______i____________________________
j Q.2. Can you tell : Ans. Yes. a bus stand is there ! * i whether any bus . m front of my house stand is theic m . from of vour house'' In view of the position as discussed above this undersigned would pray to your goodscir to exonerate him from the charges so levelled against him.
Thanking you Yours faithfullv.
*
/
y
Dated'- !9.'12'20!b (V. Abhibish)
CT.'02107.1
IRBn. i'on Mom
VI) Ld. counsel would place the order in appeal, issued by the DGP/A&N Islands that records the following:
"Inquiry into the incident was conducted by Shri Shaukat Hussain, Asst Comdt revealed that on 19/05/2008, at about 1930 hrs, Shri Jainuddin, a Shopkeeper on getting a telephonic call from Ms wife rushed to his house and found that someone in drunken state had entered in their kitchen of the residence located at Port Mout. On this he informed the matter to the villagers and with the help of 18 oa/1457/2017 the neighbours caught the intruder and handed over tojhe Police party headed r- ■ by PSI VikasrSingh of P.S Ograbraj. iLater.he wasridentified as Ct/021074 V. ; ' Abhilash of IRBn/ Port Mout." He' was" sent to PHC^Tushnabad^for"medicah ■•'*•*! f examination. The Medical Officer conducted the medical examination of • ¥S Ct/021074 V. Abhilash and opined that smell of liquor was coming out from his f '■ mouth and breath and further also opined that he was under the influence of alcohol. The inquiry further revealed that on 19/05/2008 at about 1845 hrs, Ct/021074 V. Abhilash had consumed liquor, drove Motor cycle in a drunken state and created nuisance in the public place and later on unauthorisedlv entered into the house ofShriJainuddin.
V. Abhilash submitted his written reply dated 27/08/2008 admitting the charges levelled against him and pleaded guilty about the incident Ct/021074 V. Abhilash was also given an opportunity for persona! hearing before Commandant IRBn on 05/09/2008.
An whereas, as directed by the Hon'ble CAT, a regular departmental enquiry was (( ms £ . i ' \ jnitiated~against~the7applicantnlnspectOKsShantacBahaclun:and2-Subzlnspect'on-S^ »/ .1•* Anandan of IRBn were appointed as Inquiry Officer and Presenting Officer respectively vide Order No 04 dated 01/02/2016 to conhuct the enquiry into the charges framed against Ct/021074 V. Abhilash vide Memorandum No. Comdt./IRBn/PC/DE/50/2008/1396 dated 25.08.2008. The Enquiry Officer conducted the departmental enquiry proceedings and proved the charges levelled against the applicant.
Xxxxx I And whereas, in his appeal, the Appellant has mainly contended that the complainant Shri Jainuddin changed a sentence in his early statement the Hindi word "Kitchen ka Baahar" instead of the word "Kitchen ka andar" as said in the earlier statement. Such contention is devoid of any merit as the Appellant had consumed liquor on 19/05/2008. droved Motor Cycle in a drunken state and .* createdrnuisancerin-'aT-oublic:olacezand later omunauthorizedlv entered into the.
i < ■ ■ 1 1 ... 1 ' *
premises of Shri Jainuddin without anvcoaentreason.' *
And Whereas, the Appellant was also heard in person by the undersigned on 31/03/2017. During the personal hearing the Appellant did not raise any fresh points other than what he has mentioned in the instant appeal and during the course of departmental enquiry. Being a member of a disciplined force, he is not supposed to indulge, in such an act of indiscipline. His conduct has brought defame to the Battalion and such an act from any member of the force cannot be absolved. And, I am satisfied that the order passed by the Discolinary Authority is in order and correct as it is based on the evidences adduced during the enquiry and the charges were proved in the departmental enquiry. The contentions of the appellant are, therefore, devoid of any merit.
I have dispassionately perused the Enquiry Report submitted by the Enquiry Officer, the order, passed by the Disciplinary Authority, the documents on record, and the instant Appeal preferred by the^Appellant: After careful-consideration of'*. * 19 oa/1457/2017 the case of the appellant, I do not find any merit in his appeal to interfere with the order of penalty imposed vide Order Book No. 248 dated 02/02/2017 passed by » the Commandant, IRBn, A &N Islands (Disciplinary Authority). Hence, the appeal H under reference preferred by appellant Ct/021074 V. Abhilash, IRBn is hereby & rejected."
/ y Citing the above, Ld. Counsel would vociferously plead that, the complaint was that, the wife of complainant found someone "standing outside ' >l i " ■ •* > the kitchen", while the punishment was upheld as his wife rushed to his house and found that someone in drunken state had entered in their kitchen of the residence located at Port Moof'. Therefore, the Appellate Authority has clearly travelled beyond complaint, the charge and acted illegally.
y %
«
Vll) Further, Id. counsel would invite our attention to the deposition during enquiry, as extracted hereunder-
STATEMENT OF SHRI M. JAIIMUDDIN, S/O LATE M. MOHAMMED, R/O PORT MOUT. (PW-6) RECORDED ON 09/07/2016.
-m v * * -• ■'% ''u
l xxxxxx
Cross Examination by D. A.
Q2. You have just added the hindi word "kitchen ka baahar" instead of "Kitchen ka andar" would you be in a position to say that whether there was any lady member in the kitchen at that point of time?
* Ans: There was heavy rain at that point of time and-mv wife when switched on the light of the kitchen, she saw a man standing outside the kitchen completely drenched bv the rain. Since she could not identify the person standing and trembling due to drenched. She informed me over telephone to come home immediately. It was at about 1900-1930 hrs. Q3. When you reached home and saw the person, what was his condition?
f Ans: I saw the person completely drenched'and shivering when I enquired from m him he said that I am completely drenched in and waiting for the rain to stop. .
Q4. Would you be in a position to disclose whether the person drenched in rain and shivering was drunk or not?
Ans: As I remember, he was drunk as smell was coming out from his mouth but he was in sense because of this, I did not make any complaint but only informed about the situation at PS Ograbraj. % use ■** « « ** T*-»W**T 'f * * t iff-* 9* ' * « * 4 ♦ *** « i t r m ... * tr ■* a- -4* 4 i «f r' r- *r * 20 oa/1457/2017 Q5. Have you any enmity with the CO?
Ans: No.
•* - f •
!
■/
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t1
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' *
FINDINGS
Xxxxxxxxxxxxxxx
6. That even the existences of a bus stand in front of the house of Shri Jainuddin the charged officer Ct/021074 V. Abhilash entered unauthorizedlv into the premises of Shri Jainuddin on 19/05/2008 to take shelter instead of taking shelter at the' bus stand at that time. - Thus, the charge of •i ♦ unauthorizedlv entering into the house of a villager by Ct/021074 V. Abhilash is proved. Hence, the claim in the defense brief of trespassing into a house could not be established beyond doubt does not stand.
CONCLUSION After analyzing the documents, and.statements of the witnesses during the ■: !• ■^course of enquiry~it is proved^thatron.19/05/2008 ,atiil945. hrs Ct/021074 V.^ -' . » Abhilash was absent frorrvthe roll call and he-hadxonsumed liquor. Drove ■ ■ in i-.
Motor Cycle in a drunken state and created nuisance in the public place and unauthorizedlv into the house of Shri Jainuddin.
Thus the charge levelled against the charged officer Ct/021074 V. Abhilash through memorandum No. Comdt./IRBn/PC/DE/50/2008/1396 dated 25.08.2008 is stand proved."
Placing the above, Ld. Counsel would submit that'there was absolutely r nothing on record to prove,
(i) That there was a formal complaint against the applicant by f Jainuddin.
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(ii) That a complaint was lodged that he had "unauthorisedly entered *■1 <-
into the house of Jainuddin"
(hi) That, there was any evidence that he had entered into the kitchen of
Jainuddin or even into his house.
(iv) That the applicant had admitted his. guilt that he had consumed
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liquor, drove Motor cycle in a drunken state and created nuisance in the public place and later on unauthorisedly entered into the house of Shri Jainuddin n* •'3 Vlf- mrr * >. ' ■n -- * • 'A •f •* .. •• *1 IW* • W * ^.1 t ' ■ .• . V 'V l 9 V , 21 oa/1457/2017 J Therefore, both the Disciplinary Authority as well as the Appellate Authorities have misdirected themselves in not correctly appreciating the defence statement and the statement of eye witness while analysing the evidence. Their conclusion is based on no evidence, particularly in view of the narrative,.presented by the applicant..in .his. appeal idated.. 19.12.2016, as :
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extracted supra.
Ld. counsel would therefore voice his concern over the fairness in the procedure.
tfllstrj]
% 6. We noted that in the earlier round this Tribunal had quashed the penalty ' ' »,
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order and remanded the matter back for fresh enquiry. The applicant had firmly put up his defence. Neither the enquiry report nor the penalty or . appellaten. ordersrTreveal. that'^rthe : .lacunae - pointed out . in the . .
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letter/representation forwarded by the applicant, were considered, and discussed by the said authorities.
It is true that the applicant took shelter outside the kitchen of Jainuddin as it was raining, but the authorities have miserably failed to analyse evidence to support their conclusion on the guilt of the applicant in regard to the allegations of "wilful absence from duty" of "creating nuisance in:a public place" and of "unauthorized entry'into a house", even on'the basis of preponderance of probabilities leaving aside clear evidence. The authorities should justify whether the penalty imposed is commensurate with the allegations levelled to the extent they stand proved.
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7. The legal proposition is discussed hereunder:
/ In Union of India vs. H.C. Goel, (1964)4*SCR^718; it was held: * *.
"22 The two infirmities are separate and distinct though, conceivably, in some cases, both may be present. There may be cases of no evidence even where the Government is acting bona fide; the said infirmity may also exist where the Government is acting mala fide and in that case, the conclusion of the Government not supported by any evidence may be the result of mala fides, but that does not mean that if it is proved that there is no evidence to 11 « support the conclusion of the Governmentja writ of certiorari will not issue without further proof of mala fides. That is why we are not prepared to accept the learned Attorney-General's argument that since no mala fides are alleged against the appellant in the present case, no writ of certiorari can be issued in favour of the respondent."
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4.:
In Moni Shankarv. Union of India and Anr., (2008) 3'SCC 484; the Hon'ble .'t*
Supreme Court held:
"17. The departmental proceeding is a quasi judicial one. Although the provisions of the Evidence Act are not applicable in the said proceeding, principles of natural justice are required to be complied with. The Court exercising power of judicial review are entitled to »> • consider as to whether while inferring commission of misconduct on the part of a delinquent officer relevant piece of evidence has been taken into consideration and irrelevant facts have been excluded therefrom. Inference on facts must be based on evidence which meet the requirements of legal principles. The Tribunal was, thus, entitled to arrive at its own conclusion on the premise that the evidence-adduced by the department even if it is taken on its face value to be correct imits'entiretv. meet^the^reauirements ofburden: ,V*V
-- ------------ *-- i. - tf ■ - 1 --" .......................... ■* """ -- T < of proof, namely preponderance of ^probability. If on such evidences, the test of the doctrine of proportionality has not been satisfied, the Tribunal was within its domain to interfere. We must place on record that the doctrine of unreasonableness is giving way to the doctrine of proportionality."
In Narinder Mohan Arya vs. United India Insurance Co. Ltd., (2006) 4 SCC 713 it was held that:- f i "26. In our opinion the learned Single Judge and consequently the Division Bench of the High Court did not pose unto themselves the correct question. The matter can be viewed from two angles. Despite limited jurisdiction a civil court it was entitled to interfere in a case where the report of the Enquiry Officer-is based on no evidence. In a suit filed by a delinquent employee in a civil court as •M***'*'** ■^'**''*'Wialso#a**.writi*court?rtink4hemevent„thetfindings jn the * • t * %■' 23 oa/1457/2017 departmental proceedings are questioned before it should keep in mind the following: (1) the enquiry officer is not permitted to collect any material from outside sources during the conduct of the enquiry, f State of Assam and Anr. v. Mahendra Kumar Das and Ors, 1(1970) 1 SCC 709] (2) In a domestic enquiry fairness in the procedure is a part of the principles of natural justice [Khem Chand { v. Union of India and Ors. (1958 SCR 1080) and State of Uttar Pradesh v. Om Prakash Gupta (1969) 3 SCC 775]. (3) Exercise of discretionary power involve two elements (i) Objective and (it) subjective and existence, of the exercise of an objective element is a condition precedent for exercise of the subjective element, f K.L Tripathi v. State of Bank of India and Ors.(1984) 1 SCC 43]. (4) It is not possible to lay down any rigid rules of the principles of natural justice which depend on the facts and circumstances of each case • * but'the concept offair play in action: is the basis. [Sawai Singh v. •r State of Rajasthan (1986) 3 SCC 454] (5) The enquiry officer is not permitted to travel beyond the charges and any punishment vVn'nifj,':
imposed on the basis of a finding which was not the subject matter of the charges is wholly illegal. [Export inspection Council of India v. Kalyan Kumar Mitra [1987 (2) Cal. U 344.] (6)1 Suspicion or presumption cannot take the place of proof even in 0 domestic enquiry. The writ court is entitled to interfere with the findings of the fact of any tribunal or authority in certain circumstances. [Central Bank of India Ltd, v. Prakash Chand Jain (1969) 1 SCR 735 and Kuldeep Singh v. Commissioner of Police (1999) 2 SCC 10]."
Yet again in M.V. Bijlani vs. Union of India &Ors., (2006) 5 SCC 88, Hon'bleApex Court held:
^ . »*' "25:. Although'the charges in a departmental proceedings are not required to be proved like a criminal trial, i.e., beyond all « reasonable doubts, we cannot lose sight of the fact that the Enquiry Officer performs a quasi-judicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with. "
In Jasbir Singh Vs. Punjab & Sind Bank &Ors. [(2007) 1 SCC 566], Hon'ble Apex Court followed Narinder Mohan Arya Vs. United India Insurance Co. Ltd.
&Ors (supra) stating that "In a case of this nature, therefore, the High Court *' •**« ^ i .+<■ V « *- ,.« , J H 4 * w
24 oa/1457/2017 / / should have applied its mind to the fact of the matter with reference to the
-j' materials brought on records. It failed so to do."
In Roop Singh Negi vs. Punjab National Bank and Others reported in (2009)2 Supreme Court Cases-570 the Hon'ble Supreme Court observed as under:
"14. Indisputably, a departmental proceeding is a quasi judicial proceeding. The Enquiry Officer performs a quasi judicial function. The charges leveled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the Investigating Officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No-witness was'examined to~prove the said documents.
i 4* *'■ The managemenVwitnesses'merely tendered.the documents and did \ i:
not prove the contents thereof Reliance, inter alia, was placed by the Enquiry Officer on the FIR which could not have been treated as evidence."
In Roop Singh Negi vs. Punjab National Bank and Others it was held that "suspicion, as is well known, however high may be, can under no circumstances be held to be a substitute for legal proof".
In B.C. Chaturvedi v. Union of India & Others, (1995) 6 SCC 749, the Hon'ble Apex Court on the scope of judicial review has held as under:
' "Judicial review is not an appeal from a decision but a review* - of the manner^in which the decision is made. Power of judicial • > review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the Court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/ Tribunal is concerned to determine whether the inquiry was held by a Competent Officer or whether the inquiry was held by a Competent Officer or whether Rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical Rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When ^ _ the authority accepts that evidence and conclusion receives support mmw ... :■ 3 &'.■%* * ;- {» t V >
25 4 * 03)1457/2017 . "
■*!l therefrom, the Disciplinary Authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal it its i r power of judicial review does not act os Appellate Authority to re-
appreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the Rules of natural justice or in violation of statutory Rules prescribing the mode of inquiry or where the conclusion or finding reached by the Disciplinary Authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case."
*#• Laying down the scope of judicial-review, the*Hon'ble"Apex Court irvUnion ■ • * .
of India v. P. Gunasekaran, (2015) 2 SCC 610, has further observed as under;
"Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an Appellate Authority in the disciplinary proceedings, re-appreciating even the evidence before the enquiry officer. The finding on Charge No. I was accepted by the Disciplinary Authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second Court of first appeal. The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into re-appreciation of the evidence. The High Court can only see whether:
(a) the enquiry is held by a Competent Authority;
(b) the enquiry is held according to the procedure prescribed in .that behalf;1
" (c) - there is violation iof~ the^principles^ ofi natural justice in. -
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conducting the proceedings;
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(d) the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case."
8. In the aforesaid backdrop, we deem it appropriate to quash the penalty order as well as the appellate order and remand the matter back for appropriate orders in accordance with law. No costs.
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(Nandita Chatterjee) (Bidisha Banerjee)
Member (A) Member (J)
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