Jharkhand High Court
Ram Avtar Tiwari vs Union Of India Through Director General on 20 February, 2023
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 2388 of 2009
Ram Avtar Tiwari, S/o Sri Ram Janam Tiwari, R/o Village -
Abhaday, P.O. - Ramgarh, P.S. Ramgarh, District - Bhabhua,
Kaimur presently residing at C.I.S.F. Unit, CCL, Kargali, Khasmahal,
"E" Company, P.O. - Bermo, District- Bokaro
... ... Petitioner
Versus
1. Union of India through Director General, Central Industrial
Security Force (CISF) CGO Complex, Lodi Road, New Delhi
2. The Inspector General, Central Industrial Security Forces (herein
after mentioning CISF) Eastern Region, Patna
3. The Deputy Inspector General, CISF Unit, unit CCL, Bokaro
4. The Commandant, CISF Unit CCL Kargali, P.O. P.S. Bermo
District Bokaro
5. The Asstt. Commandant, CISF Unit CCL Kargali, Khasmahal,
P.O. - Bermo, District - Bokaro
6. Sri A.P. Mishra, the Enquiry Officer, Father's name not known,
CISF Unit, CCL., Kargali, Khasmahal, P.O. & P.S. Bermo, District
- Bokaro ... ... Respondents
With
W.P.(S) No. 2324 of 2009
Mukesh Chandra Sharma @ Mukesh Chand Sharma, S/o Sri Mohan
Singh, R/o Village - Enchera, P.O. - Badirca, P.S. Nadwai, District -
Bharatpur (Rajasthan) presently residing at CISF Unit, CCL, Kargali,
Khasmahal, "E" Company, P.O. - Bermo, District - Bokaro
... ... Petitioner
Versus
1. Union of India
2. The Inspector General, Central Industrial Security Forces (herein
after mentioning CISF) Eastern Region, Patna
3. The Deputy Inspector General, CISF Unit, CCL, Bokaro
4. The Commandant, CISF Unit CCL Kargali, P.O. P.S. Bermo
District Bokaro
5. The Asstt. Commandant, CISF Unit CCL Kargali, Khasmahal,
P.O. - Bermo, District - Bokaro
6. Sri A.P. Mishra, the Enquiry Officer, Father's name not known,
CISF Unit, CCL., Kargali, Khasmahal, P.O. & P.S. Bermo,
District - Bokaro ... ... Respondents
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Petitioners : Mr. H.K. Mahato, Advocate
Mrs. Ahalya Mahto, Advocate
For the Respondents : Mrs. Nitu Sinha, Advocate
Mrs. Bakshi Vibha, Advocate
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2
14/20.02.2023 Heard Mr. H.K. Mahato, learned counsel appearing on behalf of
the petitioners along with Mrs. Ahalya Mahto, Advocate.
2. Heard Mrs. Nitu Sinha, learned counsel appearing on behalf of the respondents along with Mrs. Bakshi Vibha, Advocate.
3. Writ petition No. 2388 of 2009 has been filed for the following reliefs:
"(a) To set aside the order dated 12.02.08 passed by the Commandant, CISF Unit, CCL, Kargali, and the subsequent order(s) dt. 27.7.08 and 16/19 January, 2009 passed by the D.I.G., CISF Unit CCL, Kargali and the I.G., CISF, Eastern Region, Patna respectively by which the order of commandant is not interfered and appeals again order dt. 5.3.08 are dismissed.
(b) For any other relief(s) so that order aforesaid be set aside and conscionable justice be done to the petitioner without any stricture in his service as would be deemed fit and proper by this court, in the facts and circumstances of this case."
4. Writ Petition No.2324 of 2009 has been filed for the following reliefs:
"(a) To set aside the order dated 05.03.08 passed by the Commandant, CISF Unit, CCL, Kargali, and the subsequent order(s) dt. 27.7.08 and 15.01.09 passed by the D.I.G., CISF Unit CCL, Kargali and the I.G., CISF, Eastern Region, Patna respectively by which the order of commandant is not interfered and appeals again order dt. 5.3.08 are dismissed.
(b) For any other relief(s) so that order aforesaid be set aside and conscionable justice be done to the petitioner without any stricture in his service as would be deemed fit and proper by this court, in the facts and circumstances of this case."
Arguments of the petitioners.
5. Learned counsel for the petitioner(s) has submitted that the petitioners were subjected to two different disciplinary proceedings arising out of the same incident and, therefore, these two cases have been tagged together. The learned counsel further submits that both these petitioners were posted for security of KMP store and at that point of time, there was an attack of 400-500 extremists in the nearby camp which was only 200 yards away from the place of attack. The aggression of the extremists continued for about three and a half hours and during the incident, two CISF personnels were killed and four SLRs were looted. He submits that the allegations against the petitioners are that in spite of the fact that the petitioners were having 200 rounds of live cartridges, but Ram Avtar Tiwari fired only 20 rounds and Mukesh Chandra Sharma fired only 19 rounds. He submits 3 that the petitioners had acted as per the situation and merely because they had fired only 19/20 rounds, they have been punished in the departmental proceedings for not firing appropriately during the attack. The learned counsel submits that the defence witnesses have stated that the extremists ultimately ran away because of the fact that the petitioners were firing from KMP store. He also submits that the petitioners had tried to come forward and fire, but there was counter- firing and therefore, they could not proceed any further.
6. The learned counsel has also submitted that the support force which came on the spot much later was responsible for the harm caused and the petitioners have merely been made scapegoats in the entire incident. The learned counsel submits that the enquiry officer as well as all the three authorities have not considered these aspects of the matter and accordingly, all the three impugned orders passed by the disciplinary authority, appellate authority and the revisional authority are perverse and are fit to be set aside.
Arguments of the Respondents.
7. Learned counsel for the respondents, on the other hand, has submitted that all the three authorities have passed reasoned order considering each and every argument of the petitioners. She also submits that at the stage of enquiry, the petitioners duly participated and witnesses were examined. The petitioners had also led defence evidences. The enquiry officer recorded findings against the petitioners after considering entire materials placed before the enquiry officer. She submits that no procedural flaw has been pointed out by the petitioners. She also submits that there is no perversity in the impugned action and order.
8. The learned counsel submits that the scope of interference in the matter of disciplinary proceeding is very limited as has been held by the Hon'ble Supreme Court from time to time. In absence of any perversity or procedural irregularity, there is no scope for interference under Article 226 of the Constitution of India when all the three authorities have given consistent finding with regard to the guilt of the petitioners.
4Findings of this Court in W. P. (S) No. 2324 of 2009
9. The foundational facts are in dispute. In the year 2000, the petitioner was appointed as constable in C.I.S.F. and at the relevant point of time on 07.04.2007, the petitioner along with one Head Constable, namely, Ram Avatar Tiwari (petitioner in W.P. (S) No. 2388/2009) was on duty since 6 pm to 5 am in K.M.P. Store. In the evening at about 7:30 p.m. on 06.04.2007, extremists in large number attacked Khasmahal camp line situated about 200 yards away from K.M.P. Store. While on duty, the petitioner was issued one Self Loaded Rifle (SLR Butt No. 33) with 200 rounds live cartridges.
10. The case of the petitioner is that the petitioner and the Head Constable informed the matter by their device to the enforcement party, but the enforcement party reached only after the extremists fled away at about 10 p.m. and awaiting the enforcement party, the petitioner and the Head Constable fired intermittently/alternatively, due to which the extremists fled away and whatever life, property, arms and ammunitions were saved, it could be saved only for their valiant action.
11. On the other hand, the case of the department is that the senior officers/reinforcement party informed the petitioner and the Head Constable over wireless to take action, but the petitioner did not make successful firing on the extremists to save the life and property of the personnel present in Khasmahal camp line, as a result of such non- action on the part of the petitioner and the Head Constable, extremists took away Self Loading Rifles and killed 2 C.I.S.F. personnels in operation. The present petitioner fired only 19 rounds out of available 200 rounds from KMP Store. The effective range of self-loading rifle was 300 yards, whereas KMP Store duty post manned by the petitioner was situated only 200 yards away from Khasmahal camp line from where they could have encountered the extremists very effectively by making successful firings.
12. On account of the aforesaid action/inaction of the petitioner, he was served with order dated 15.05.2007 issued by the Deputy Commandant, CISF unit CCL Kargali informing him that a 5 departmental proceeding has been contemplated and the petitioner was suspended under Rule 33 (1) of CISF Rules. The order of suspension of the petitioner was confirmed on 12.06.2007 and a memo of charge was issued alleging dereliction of duty and cowardice act on the part of the petitioner while dealing with the aforesaid incident and alleging that in spite of directions issued by the higher authorities and reinforcement party, the petitioner could not undertake effective firing on the extremists and fired only 19 rounds out of available 200 rounds.
13. The petitioner denied the charges on 26.11.2007 explaining the reason for limited firing and that he was firing one by one and he was instructed that the reinforcement party will be reaching shortly and the extremists had also fired at him, but he was not hit. It was also stated that on account of firing made by him, one or the other extremists must have died, but the department could not confirm death of any of the extremists. It was also stated that the petitioner and the Head Constable had fired from their place of duty and on account of their firing, the extremists had to run away. When the rounds available with the CISF personnel present in the camp had ended, then the extremists entered and on account of effective firing from the side of the KMP Store by the petitioner and the other personnel, the extremists did not come to KMP Store and they took away 4 SLRs. It was because of the firing done by the petitioner and the Head Constable, the life of CISF Personnel in the KMP Store could be saved and they are not responsible for the two CISF Personnels, who were killed during the attack of extremists and for the arms, which were looted. It was also stated by the petitioner in his explanation that the operation continued for a long time, but the reinforcement party came after the extremists had left.
14. The petitioner duly participated in the departmental proceedings. Altogether 5 witnesses were examined from the side of the department and the petitioner was given due opportunity to cross- examine the witnesses. The petitioner also produced 5 defence witnesses and thereafter, the petitioner was given opportunity to give his written defence statement which he duly filed and the defence 6 statement of the petitioner was duly examined and considered. Thereafter, a brief note was given by the presenting officer and ultimately, the departmental proceedings was closed.
15. The enquiry officer by a detailed order dealing with all the materials on record found the petitioner guilty and recorded that the petitioner was just 200 yards away from the Khasmahal camp and was posted in KMP camp store with another personnel, namely, Ram Avatar Tiwari and in spite of having 200 rounds, he fired only 19 rounds. In the entire incident and on account of inaction or lack of appropriate action/cowardice from the side of the petitioner, the extremists killed 2 CISF personnels and looted 4 SLRs. On the other hand, the security personnel of the camp Sri Dilip Singh had fired 200 to 250 rounds to save the camp and another CISF personnel, namely, Bhagwati Singh who was not even on duty took rifle from the kot and fired 250 to 300 rounds. Even, the personnel who was martyred, namely, Hosiyar Singh was firing till his last breathe, but the petitioner and the Head Constable posted with him, who were located at a height from the place of occurrence which was about 15 to 18 meters high and was just 200 yards away fired only 19 rounds and Head Constable Ramavatar Tiwari fired only 20 rounds and thus in the entire operation, which was continued for about 3 hours, the petitioner and Mr. Tiwary failed to take appropriate steps while on duty leading to loss of arms and loss of life of two CISF personnels.
16. The petitioner was forwarded a copy of the enquiry report, to which he submitted his reply and ultimately vide impugned order dated 05.03.2008, the petitioner was found guilty and consequently imposed the punishment of reduction of salary from 3575 to 3425 in two stages below for two years and during this period of reduction annual increment was to be affected. The period of suspension from 15.05.2007 to 09.07.2007 was to be treated as non-working days and nothing more apart from the subsistence allowance was to be paid.
17. The petitioner filed appeal against the order of punishment. The appellate authority has also considered the materials on record and dismissed the appeal by a well-reasoned order dated 27th July, 2008.
7The revisional authority also rejected the revision by a well-reasoned order dated 15.01.2009.
18. This Court has gone through the impugned orders and finds that all the three impugned orders are well-reasoned orders. The petitioner had duly participated in the departmental proceedings and granted opportunity to cross-examine the witnesses and had also led his defence evidence and thereafter following the due procedure, the petitioner has been punished.
19. There is no scope for consideration by this Court as to whether the petitioner had adequately fired or not. This aspect of the matter has been duly appreciated by all the three authorities and all of them have returned consistent findings.
20. The scope of interference in the matter of disciplinary proceedings under Article 226 of the Constitution of India is very limited. There is neither any procedural irregularity nor any violation of principles of natural justice nor any other illegality or irregularity has been found and therefore, no interference is called for in the impugned orders under Article 226 of the Constitution of India.
21. Accordingly, the present writ petition is dismissed.
22. Pending interlocutory application, if any, is closed.
Findings of this Court in W.P. (S) No. 2388 of 2009
23. The petitioner - Ram Avatar Tiwary was on duty at the relevant point of time along with the petitioner in W.P. (S) No. 2324/2009. The petitioner was the Head Constable and was on duty at KMP Store. His initial year of appointment is 1982 and was appointed as constable and was promoted to head constable in the year 2000. He was armed with Self Loading Rifle with 200 rounds on the uphill K.M.P. Stores, 200 yards away from Khasmahal camp - the place of occurrence.
24. It is not in dispute from the side of this petitioner also that the incident had taken place and operation continued for about 3 hours and 2 CRPF personnels were martyred in the incident and 4 SLRs were looted by the extremists. It is further not in dispute from his side that he had fired only 20 rounds, out of 200 rounds available with him 8 and similar allegation as that of the petitioner in W.P. (S) No. 2324/2009 was levelled against him.
25. This petitioner was also placed on suspension vide order dated 15.05.2007 in contemplation of departmental proceedings and was served with memo of charge, to which he duly responded on 26.11.2007 and denied the charges. The enquiry officer was appointed. Although, this petitioner had made a request to change the enquiry officer and also the presenting officer, but such request was declined. The reason for change of enquiry officer and the presenting officer was that those were the persons who were supposed to rush to the camp with the aid of reinforcement and just to save their own skin from the responsibility, the petitioner and the other, namely, Mukesh Chandra Sharma (petitioner in W.P. (S) No. 2324/2009) were being made scapegoat. However, upon decline of the request to change the enquiry officer and the presenting officer, the petitioner had participated in the departmental proceedings and the petitioner was found guilty vide enquiry report, which was forwarded to him vide order dated 11.01.2008, to which he responded on 18.01.2008. However, his explanation was rejected and punishment was imposed vide order dated 12.02.2008. Consequently, his salary from Rs. 4600 was reduced to Rs. 4400 in two stages below for two years and during this period of reduction annual increment was to be affected. The period of suspension from 18.05.2007 to 09.07.2007 was to be treated as non-working days and nothing more was payable except subsistence allowance. The petitioner preferred appeal and the appellate authority also by a detailed order dismissed the appeal on 27.07.2008, against which the petitioner filed revision, but the same was also dismissed by a detailed order dated 16/19th January, 2009.
26. From perusal of the records of this case, it appears that in the enquiry proceedings, altogether 5 witnesses were examined from the side of the department and the petitioner was granted full opportunity to cross-examine the witnesses. The petitioner had also produced altogether 5 witnesses and out of them, 2 of the witnesses had deposed that on account of firing being done by the petitioner from the side of 9 KMP Store, the extremists hurriedly searched the camp for 15 to 25 minutes and had taken away 4 SLRs, but it was not in dispute that for around 3 to 4 hours of operation, the petitioner was having 200 rounds and had fired only 20 rounds and 2 CISF personnels were martyred during the operation. The enquiry officer was of the view that if the petitioner would have acted adequately and would have actively participated by more firing, then the life of two CISF personnels and the 4 SLRs weapons could have been saved. The enquiry officer after scrutiny of the materials found the petitioner guilty. The disciplinary authority after adhering to the principles of natural justice held the petitioner guilty by a well-reasoned order. The appellate authority dismissed the appeal by a well-reasoned order and the revisional authority also dismissed the revision by a reasoned order.
27. The plea of the petitioner that the enquiry officer and the presenting officer were not changed in spite of his request was also considered by the authorities and the proceeding was found to be in accordance with law. The plea of bias raised by the petitioner has not been established by the petitioner and the petitioner had asked for change of enquiry officer/presenting officer and when his plea was rejected, he duly participated in the enquiry proceedings, cross- examined the witnesses of the department and also led his defence evidence. Accordingly, no case of biasness is made out.
28. The fact that the incident is not in dispute and admittedly, the petitioner along with another constable was posted at KMP Store which was at the height and just 200 yards away from the place of extremists attacked in large number. It is not in dispute that during the operation, 2 CISF personnels had lost their life and 4 SLRs weapons were looted. It is also not in dispute that the entire operation continued for around 3 to 4 hours and petitioner and another was in close proximity from where he could have fired, but he fired only 20 rounds out of 200 rounds. This action of the petitioner was found to be grossly inadequate and was held to be dereliction of duty and sign of cowardice and on this count, the petitioner has been punished.
1029. There is no scope for consideration by this Court as to whether the petitioner had adequately fired or not. This aspect of the matter has been duly appreciated by all the three authorities and all of them have returned consistent finding.
30. In view of the aforesaid facts and circumstances and considering the limited scope of interference in the departmental proceedings, no case for interference has been made out.
31. This writ petition is accordingly dismissed.
32. Pending interlocutory application, if any, is closed.
(Anubha Rawat Choudhary, J.) Mukul/-