Jammu & Kashmir High Court
Gautam Ray vs Union Of India Through Secretary on 11 August, 2023
Author: Rahul Bharti
Bench: Rahul Bharti
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Reserved on: 15.12.2022
Pronounced on: 11.08.2023
SWP no. 148/2004
Gautam Ray, age 34 years S/o Shri Jagdish Ray
R/o Village & PO Matihani, via Chupranoo Koth
Distt. Saharsa (Bihar).
.....Petitioner(s)
Through: Ms. Meenakshi Salathia, Advocate.
Vs
1. Union of India through Secretary,
Ministry of Home Affairs, Government
of India, New Delhi.
2. The Director General, Central Reserve
Police Force, CGO Complex, New
Delhi.
3. M S Shekhawat, Commandant, 5th Bn,
CRPF.
4. Sukhjit Singh, Deputy Commandant,
5th Bn, CRPF AD Nagar, Agartala
(Tripura West).
5. Sh. A Mani Dy. Commandant, 5th Bn,
CRPF, Ad Nagar, Agartala (Tripura
West)
..... Respondent(s)
Through: Mr. Harshwardhan Gupta, CGSC.
Coram: HON'BLE MR. JUSTICE RAHUL BHARTI, JUDGE
JUDGMENT
1. The petitioner was serving as a Constable in CRPF posted in F/5th Bn CRPF which was stationed in Srinagar (Kashmir) at the relevant point of time in the year 1992. On 31.05.1992, by an act of firing from the petitioner's end from his service weapon 2 SWP no. 148/2004 death of Mohd. Israil, Officer Commanding A/C CRPF came to take place for which the petitioner came to be booked for an offence under Section 11 of the CRPF Act, 1949 and also for commission of offence under criminal side.
2. For his said misconduct, the petitioner came to be dismissed from service w.e.f., 30.06.1993 by a course of action at the end of the respondents acting under CRPF Act, 1949.
3. This dismissal was challenged by the petitioner through a writ petition-SWP no. 1018/1999 before this court which writ petition came to be allowed vide a judgment dated 31.07.2001 passed by the Singe Bench against which a letters patent appeal-LPASW no. 248/2002 filed by the Union of India also came to be disposed of vide an order dated 29.07.2002.
4. The dismissal of the petitioner was set aside by the Single Bench of this Court in the aforementioned writ petition on the ground that the departmental/disciplinary enquiry which was held against the petitioner was an ex parte in nature when the petitioner was in judicial custody, booked and undertrial for the commission of offence under Ranbir Penal Code (RPC) related to death of said Mohd. Israil and, therefore, the action of dismissal of the petitioner from the service was not in accordance with the rules of natural justice and on that count the petitioner was held entitled to reinstatement with all consequential benefits but the Union of India and CRPF was left free to proceed afresh and pass 3 SWP no. 148/2004 appropriate orders after affording reasonable opportunity to the petitioner.
5. The Division Bench of this Court in LPA(SW) no. 248/2002 had directed the enquiry to be completed within one year from the order dated 29.07.2002 of the Division Bench.
6. It is on the basis of the judicial mandate so given in terms of the judgment dated 31.07.2001 of the Singe Bench read with order dated 29.07.2002 by the Hon'ble Division Bench that the petitioner came to be reinstated on 12.12.2002 and also proceeded against afresh in terms of disciplinary action under CRPF Act and the Rules, 1955.
7. On the basis of the de novo departmental proceedings, the petitioner came to be found guilty of misconduct and accordingly Commandant 5th Bn CRPF, in exercise of power under Section 11(1) of the CRPF Act, 1949 read with Rule 27 of the CRPF Rules, 1955, ordered dismissal of the petitioner and consequently, forfeited all the medals and decorations earned by the petitioner during his service. This dismissal of the petitioner came to be effected vide an Order no. P VIII-17/2002-5-EC-II dated 13.09.2003 passed by the Commandant 5 Bn CRPF A.D. Nagar, Agartalla.
4 SWP no. 148/2004
8. It is against this dismissal that the petitioner has again come to approach this Court with the present petition questioning his dismissal from the service.
9. The grounds of challenge to his dismissal are that the order of dismissal is born out of colourble exercise of power and an eye wash as the petitioner was implicated in a false and frivolous case.
10. It is pleaded as a ground of challenge that the petitioner was never reinstated with all consequential benefits by the respondents which is reflective of the prejudiced and biased state of mind of the respondents towards the petitioner.
11. It is alleged as a ground of challenge that the witnesses who came to depose in the departmental proceedings against the petitioner had not uttered a single word against the petitioner in the course of criminal trial in which the petitioner came to be acquitted.
12. It is on the aforesaid premise attended with other related aspects that the petitioner is again impugning his dismissal from the service.
13. From the perusal of the record, one stark fact which comes into forefront is that the death of Mohd. Israil, the Officer Commanding A/C at the hands of the petitioner is undisputed. The petitioner, no doubt, came to be acquitted in a criminal case 5 SWP no. 148/2004 after having been first convicted by the trial court but getting acquitted in appeal that too on the basis of benefit of doubt, but it only meant that the petitioner was absolved of the criminal charge of murder of said official but that does not mean that the fact of death of said official having taken place at the hands of the petitioner was rendered negated and that was the essence of the action of the employer i.e., the Union of India and the CRPF to deal with the petitioner through departmental course of action under the CRPF Act and the Rules so as to relieve the petitioner from the service.
14. The outcome of the departmental enquiry was a five page enquiry report by an Enquiry Officer-Mr. A Mani, Deputy Commandant who had taken over the enquiry from the first appointed Enquiry Officer-Mr. Sukhjit Singh, Deputy Commandant who had to be relieved on account of his temporary attachment with IGP (Ops) CRPF, Tripura. In its enquiry report, the Enquiry Officer came to give finding that the death of Mohd. Israil, Officer Commanding A/C was due to firing on his head and even though there was no eye witness to the incident but the circumstantial evidence pointed to the action of the petitioner in causing the death of the said official by use of 7.62 SLR rifle issued to the petitioner which was in his possession at the time of the incident and thus the petitioner was held to be guilty of the offence of misconduct in his capacity as a member of the CRPF punishable under Section 6 SWP no. 148/2004 11(1) of the CRPF Act, 1949. This enquiry report is dated 05.07.2003 and came to be born out after the trial of the petitioner conducted in accordance with the CRPF Act and the Rules framed thereunder.
15. This Court has perused the original file of the disciplinary proceedings against the petitioner.
16. This Court sees no reason to censure the disciplinary proceedings so conducted in the matter against the petitioner. This Court has to bear in mind that the second time departmental proceedings were conducted bearing the mandate of the writ court judgment and as such full caution was taken to observe and follow not only the rules of the natural justice but also the legal provisions and, therefore, it cannot lie in the mouth of the petitioner still to say second time in his second writ petition that the disciplinary proceedings and consequent action against him is again vitiated with rules of natural justice.
17. Even if it could be allowed to be argued from the petitioner's end that the petitioner was innocent of the charge against him with respect to death of Mohd. Israil, Officer Commanding A/C, still the very fact that he was suspected to be the person to have caused the death of said official was a good enough basis for the establishment of the CRPF to see the act of the petitioner as amounting to misconduct and, therefore, for any disciplined force to bear in its cadre presence of a personnel who is guilty of 7 SWP no. 148/2004 breaching the very trust of the Force which obtains between the superior officer and subordinate is a factor in itself which can be pressed into service to relieve such a delinquent personnel from a disciplined force.
18. It is for this reason that the petitioner, in his writ petition, is found not divulging as to how the incident had come to take place but is resorting to fault finding with the disciplinary proceedings and consequent action against him, on generalized and technical plea, which otherwise are bereft of substance and more having the sound effect.
19. In the light of the aforesaid facts and circumstances born out from the record of this writ petition, this Court sees no illegality committed at the end of the respondents in conducting the departmental proceedings under the CRPF Act, 1949 read with CRPF Rules, 1955 in dealing with the petitioner and ordering his dismissal from the service.
20. The petition is, thus, found to be merit less and is accordingly dismissed along with application(s), if any.
(Rahul Bharti) Judge JAMMU 11.08.2023 Naresh, Secy.
Whether the order is speaking: Yes/No.
Whether the order is reportable: Yes/No.