Central Administrative Tribunal - Kolkata
Etwa Ekka vs Police on 21 August, 2018
A RY1 1 o.a. 1158/2017
CENTRAL ADMINISTRATIVE TRIBUNAL
CALCUTTA BENCH, KOLKATA
O.A. 1158 of 2017 (A & N)
Coram : Hon'ble Ms. Bidisha Banerjee, Judicial Member
Hon'ble Dr. Nandita Chatterjee, Administrative Member
Etwa Ekka,
Aged about 45 years,
Son of Shri RagwaEkka,
Residing at RajeevNagar,
Camobell
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ECnstabtè Ct/021304?
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Applicant.
Versus
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TheLieutenarjtrGovernor,
Andarnan& N(LcobarIslands,
Raj Niwas,
k-,-Pit BIair. 744101 c
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2 The Andaman & NicobarAdministration,
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Service through theChief Secretary,
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Andaman &U'Jicobar.iAdmin,st.ration,
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\ij: .' ecretariatfPort Blair t744101 '
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/-3 The Director GeneraLof Police,' / t
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heCommandant,
India Reserve Battalion,
Andaman & Nicobar Islands,
Port Blair - 744101.
5. The Assistant Commandant,
India Reserve Battalion,
Andaman & Nicobar Islands,
Port Blair - 744101.
Respondents.
For the applicant : Mr. P.C. Das, Counsel
Ms. T. Maity, Counsel
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2 o.a. 1158/2017
For the respondents Mr. S.K. Ghosh , Counsel
'Reserved on : 23.07.2018
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Date of Order:
ORDER
Per: Bidisha Banerlee, Judicial Member As a sequel to an earlier 0. A., being 0 A N.65 of 2015 this application has been preferred.
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2 The legality a4prety of a speaking order0 dtd1905 17, issued by the Director Generalof!P011Ce asAppeUate:uthorItywherebY and whereunder the . I I k ..
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prayer of the-applicant forreinstatemen in service has.been rejectd,'is under 1 15. ( J' I r ch a lie nge ic'th IS 0 A ' r% J 3 -F :
IThe. 4d mitted fact hat.ciI I e T cijlled 1 ourfrom the pledngs of the ...
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While the ' bl
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A N P5lice4Crirase No 294/2010,'was registerd
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376/323/504 of,lPC om19.032O1O againstThim
- at PS Aberdeen :based on ................ / the complaihodfone MsMariayanE-kka(Vhe regist'ered complaint against the applicant' was that he-M ally exploiting paid Ms. Mariayam Ekka the complainant, under the guise of promise of marriage. As a result, she became pregnant on three occasions in 2007, 2008 and 2009and was compelled, by the applicant, to abort her pregnancies. in pursuance of the complaint and the criminal case registered against the applicant, he was arrested on 25.03.2010 and remanded to judicial custody. On the same day, Ms. Mariayam Ekka lodged another FIR No.311/2016, dated
-3 o.a. 1158/2017
India Reserve Battalion IRBn) constables approached her and shouted that she was the one who was responsible for the arrest of their friend Etwa (the applicant herein). They started beating her and using filthy and unparliamentary words. On the basis of the written report, a Criminal case under SectiOn 341/354/323/504/506/34 IPC was registered against the two constables.
Consequent on this, the two constables were placed under suspension and a departmental inquiry ordeçed agaist them Subsequent to his arrest and remand to judicial custody, the applicant was dismissed froImNservice, vide k~ Annexure A-3 Order B vezook No17L 6i,dt dO3 04 2010, invoking prov so to I . J Article 13.1(2)(b) of the Constitution of India red with Rule l4vui) of the CCSççA) Rules 16'4 -
- The Crimina' Lae fied tire the Learneu
AN id itionaleions Judge,
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ndaan & NicoUaisans
i Por la izA~ e h pplucant's
uittal f iled to pbve the
chges leiielJ&i against him beyond reasonble do d "the evidence
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against him was grossl1nsuficient S and inadêiate"
- . .•_ 4 Immediafv there suit1Cd a representation to 3rd respondent on 02.01.2013 requesting for reinstatement into service. the Since his case for reinstatement was not considered even after acquittal, he submitted an appeal to the first respondent on 06.11.2013. While the 3rd matter was under consideration by the Respondent, the respondent being the Appellate Authority disposed of his representations dated
02.01.2013 and 24.6.2013 rejecting his prayer for reinstatement.
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0 a 1158/2017 41' AggrieVed, applicant preferred OA 65 of 2015 against the following oders:
4. 11 Orders of the 4th respondent dated 03.04.2010 dismissiflg the (1) applicant from service, and
(ii) Orders of the 3rd respondent dated 11.11.2013 rjectig the applicant's prayer for reinstatement into service after acquittal iin the criminal case."
The applicant in the earlier round had urged that his dismissal from service was in contravention of Article 311 and .that such action was arbitrary, illegal and ............... 14 and 21 of the in contravention of the proisio?is .cbntá1nêd •.
. rp. r under A?ticl.es
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Constitution of•lndijas• he was neither given any show caus.e. notice nor provided * _...., ,, 4 with any opportunitY of hearing. before his ' T1, i dismissal. He allegedthat:the entire againstall canons of action and inaction onthepart -.
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set aide. Further, that the II
service jirisprudenc* nd --
Appellate Uthority fàiled10 c6Vdérth'éfäCt 14 th'tth could n&t'be enied f/ I j c i1 . acompeteflt Court of law in thecrimiflal case reinstatement upon his acquittal by :
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héLwasJrOt reinstated even upon his
4sously*preJ UdICed if:
and that he would
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acquittal from a cIm.!.naI charges. , . I
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-Reeiad Ra V. State of
The aplicant had he vily,relied .-wup9n
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ç.iVil Appeal No.2839 of
in ,
Haryana(2012) 10
support of his contention, while the 2011(Risal Singh v. State of Haryana'in in which Hon'ble Apex respondents relied on Union of lnda v. Tulsi Ram Patel Court succinctly held as under:
"That, whether it was practicable to hold the inquiry or not must be judged in the context of whether it was reasonably practicable to do so. It is not a total or absolute impracticability which is required by clause (b). What is requisite is that the holding of the inquiry is not practicable in the option of a reasonable man taking a reasonable view of the prevailing situation. it is not possible to enumerate the cases in which it would not be reasonably practicable to hold the inquiry, about some instance!s by way 5 o.a. 1158/2017 I of illustration may, however, be given. It would not be reasonably practicable to hold an inquiry where the Government servant, particularly through or together with his associates, so terrorizes, threatens or intimidate witnesses who are going to give evidence against him with fear of reprisal as to prevent them from doing so or where the Government servant by himself or together with or through others threatens, intimates and terrorizes the officer who is the disciplinary authority or members of his family so that he is afraid to hold the enquiry or direct it to be held. It would also not be reasonably practicable to hold the inquiry where an atmosphere of violence or of general indiscipline and insubordination prevails, and it is immaterial whether the concerned Government servant is or is not a party to bringing about such an atmosphere. In this connection, we must bear in mind that numbers coerce and terrify while an individual may not. The reasonable attic.ability of holding an inquiry is a matter of assessment.1to .bè äerby the dR'ciplinary authority. Such ., ' 4 • ', authority is gener llyTg the happening It is because i-the disdiplinary authority is the besfj-uldeof this that Clause (3) of Article311makes thedecisionof,.,.the disciplinary authority on this .f '" - •-- 1.
question final " -
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T hisT ib OA ieto ow ingquestioT
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("(i) -,'Whether he aio?cf the, Dikipary It I Authority in invokingArticle ON
311) (b) of IidiaThr dssing 1 the álicart 1 L1 from ••4* 4* ' •- 4 y serice is maintainable, -
(ii) in reJetin his representtiop fo'?'reinstatement even aftrhia'quittal in the criminal us(and 'rope'i"
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d an Having discussedthe iplictiohf Tuli Rani Patedp.Rèena Rani and as also Risal Singh, (supra)thread bare, this Tribunalo,pined that "in the aforesaid judgments, the Hon'ble Supreme Court ruled that when reasons are not ascribed, the dismissal order is vitiated and consequently set aside. The instant OA is clearly distinguishable on facts inasmuch as the Disciplinary Authority has given in explicit terms the reasons as to why holding of an inquiry was not reasonably practicable. Hence, the judgments of the Hon'ble Supreme Court are not relevant to the facts and circumstances of the present case".
ON 6 o.a. 1158/2017 /1 ( it ordered "that the first issue is answered against the applicant"
However, in regard to the second issue, this Tribunal held as under:
"24. The order of -the appellate authority suffers from a serious defect as he has not made it clear as to what was the evidence for arriving at the conclusion that the applicant had indulged in a criminal act evenwhen he was acquitted by the Trial Court and particularly when no appeal seems to have been filed against the order of the Additional Sessions Judge. in Sessions Case No.44 of 2010. Thus, the order of the appellate authority does not stand the test of iudicial scrutiny in this respect. His order has also failed to consider the pleas.of the. applicant that he was dismissed from service only on account of the crimina' caW8nd that he is entitled to clam 4,vt rminal càse it was incumbent on reinstate r J 4$. r
-. . . - - ,s r iiictifiedfinding as to WJT heaiplicaflt is•.not entitiea w despite.bis a uitin the Crimin reinstátementThus, on accp,üi; ilure of Etj 3rd.espondent to the applicanth appellate proØrIy ess theisfst ra WW ..z authoitvs order stad 1 yi te,. ' .,- -. •t , ourt in oindr Singh . 'Ifrhasbeen SCC 405)4hd in., Dipak ill_-The ChieØl the GoveFnmert must abaria v. Statec has passLand:that it efnd its actid Ifidavits. Iti alo well anrbt improvéi ityóf'a rde.has1. to judgedb1:je rasons ettled that the I. •: 4 r ad cannotbesup1E ited by fresbre.sonS in ,ntidhed in the he shaoe of aff.i, nr. otherwise. ..
d vie$that the
26. In t ue matter, we are or.ne :c rder is bad in law anth.is'iia set aside. Thus, ap'latei, the sècon sred in favour of-tIIêlppli ,.
thus quashed the
5. This Tribunál1in, the ëarJicr round in O.A.65'6f General), dated 11.11.2013, impugned order of the 3rd and directed the 3rd respondent to reconsider the representation of the applicant and afford him an opportunity of hearing with submission of any other relevant material in support of his prayer for reinstatement, within a period of six weeks from the date of receipt of a copy of its order and further "to consider objectively the further developments and all the issues raised by the applicant and pass a 7 o.a. 1158/2017 ' detailed and reasoned speaking order in accordance with law and communicate the same to the applicant within a period of four weeks thereafter".
Strangely enough having discussed the entire merit of the case incliding violation of Article 311, as well as reasonablereSS of invoking proviso to Article 311 (2) (b), this Tribunal observed as under "It is made clear that we hae not expressed any opinion on the merits of the contentions raised by the applicant in 3rd his appeal petition to the respondents".
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Therefore we embark"updh the task 6dëaIing with the legality and
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çlated 34 2010 dated
dismissal .
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propriety oftheorderof Appellateã'ith6ritY'P.fl J i.i I .1 / ,correcthess of the 03 04 2010 ivoking proviso'to Article 311 (2) (b) as well as the"
i' General. :
Appella te order ... 1 7 Wenoted that i .
clauses (a)b and (c) of 'T11e Constitution with clause bMdon, J, hond proviso Bench observed as1under:
vho spoke f or themaJOrltYOfithe1c0flstltutb0
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a/id applicaçon of clause (b) 133. The secopd con,t,onnec5Sary 01 V,5 çhT d;sipliary guthoriy 1sh ould rkord in of the second proviso at:sfaction that !twds notréasonablY practicable writing its r?asons fEr ,ts.s ,ricontemPlatTd brA rticle 311'2 This is a constitutional to hold the ,nqu n writing, the order dispensing obligation and if such re?sbnis.notreCOrdëd 1 with the inquiry and the order of penalty following thereupon would,-both be void and unconstitutional.
...The reason for 134 ........................................................................................
dispensing with the inquiry need not contain detailed particulars, but the clause (b) reason must not be vague or just a repetition of the language of of the second proviso. For instance, it would be no corn pliarce 'ith the requirement of clause (b) for the disciplinary authority simply to state that he was satisfied that it was not reasonably practicable to hold any inquiry."
91 /7 8 o.a. 1158/2017We noted that the disciplinary authority while recording his reasons for
8. invoking proviso to Article 311 (2) (b), wholely based upon the complaint filed by Mariam Ekka which she lodged with P.S. Aberdeen, u/S 376/323/504 of IPC about I promise to marry, exploiting her sexually, compelling her to abort the pregnancies thrice, etc. all of which were criminal charges while the applicant got acquitted of all the charges in the criminal cases.
The order of the Addi. Sessions Judge;-A& N Islands records the following:
9. s st h,leäeOSiflg as PW-1Staeç tf1at she met with accused "The victim girl w three years agoand then developed relationship iw,th,m&She also stated that she ih--OU accused persD Frorr the complaint the accydth.0t accused it is the etiidènt that :- 9 ! .
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had pfOmised to mdtr'aflththefl rpped her o ië.veral ocaSiOflS r' Ond rq on two I. "gave her occasi5hs her prég'haflCièS wee iterm7natèd.4'when the acc.used pregnancies were terminated kwhen the ac'used gave her nfè'thcines She , a. rf -
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S666used forcibly raped_her and she ! 1 alsoja!!eged that,n theyear..2OO9t1
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became pregn4t - ''• --- -- ... .-. .
by theaccused but she -hadSomerIflfectb0fl.s. Shealso made a!legptioflS that
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I theaccused abusedher and.'then also assaulte.dher and then. rejused to L( I t -
. aiso.tstatedthat she gave statement'bef0re the marryiher. The PW:1 if k *..,r
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Mdgistrate I stating thefqcts The PW-1 Vvas cross-examined bythejdefefl5e ounsel and inher cross-examination the pW-Ladmltted that she made the She iàlsOamitt that .he filed stbtement/O5 fut&ed'by the &ãll •1 *..
I onjquestPY police Thus, from the cros -am1flqti0n of the complaint -
4ce ca, ot be at all v,ctiM (PWi') it 4,s.,. quite evjdent that the vicl'im's ëv,dên filed on,rque5t by police and relied upon as she admitted that her cffse wasil NIL fforeMagistrateW0stut0rethbY poli&.
whateveiShe seated 14, statednothg ain~t the accused person PW-2 the mother, f 4rnffPry her daughter but the except that she rejuesJed the dcciised to accused turned down her reqcrest and that the accused and the victim ' stayed together for 2/3 days. The PW-7 also stated that the victim Mariam Ekka and the accused resided at Vanvasi Kalyan Ashram together and one day they had quarrelled. PW-9 stated that the accused and the victim stayed together as husband and wife at her house as tenant. The PW-iO, stated that Mariam and the accused resided together at Vanvasi Kalyan Ashram. Though from the evidence of PW-2, PW-7, PW-9 and PW-10 it is evident that they all. have stated that the victim and the accused stayed together for a few days but this piece of evidence cannot be accepted as any proof of the charges against the accused person, in view of the evidence .
of the victim girl herself as PW-1. The PW-1 in her evidence on oath did not say anything that she and the accused stayed together as husband and e wife. The evidence of PW-1 as per FIR and the statement before th IT 9 o.a. 1158/2017 Magistrate cannot.be accepted as substantiative piece of evidence against the accused person since the victim admitted that she made the statement / before the Magistrate and also statement before police as directed.by the police.
in view of the evidence of the victim girl it is found that the medical evidence cannot be relied upon. From the medical evidence also it is not proved that the accused committed rape or committed assault to the, victim. Since the prosecution charges could not be proved by the independent witnesses, it is found that the evidence of PW-13 and other police evidence cannot be relied upon to hold that the charges against the accused person could be proved by the prosecution.
retore the a 376/323/419/504 IPCwith èY!beyon.d 7a.son able. doubts. The r it JQund that prosecution side fOiid'Jp prye the tharges Therefo, against' the .-w?cdsed personan hEcfccused person cannot be held guilty.
, 1Acc9rdingly, the accused pers5n isAiab!e tobe acquitted ofjhe sa,d charges 'ci. •q 1 sr.. ...,, .I.. I / c Hence&t is, orderedthat / .1 that ;the accuse s the s6icha.rges u/s 376/323/4 19/5O4 IPC R?is disch?âd-frñ Ihe bail bounds ' _.-
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that tDisplinary
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Authority, issued itsordr'...on 3 4 2010-diThissing'the applicant and held as ,..._, ., F
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"On 04.03.20IO.MissMariayarn-.EkkapPeared VQ_ 't!f1 i.
before..the undersigned cL during publichearing and discussèd the above incident briefly On this, to ascertain the fcts, Miss MariayamEkka(cornplaiht) & Ct/021304 Etwa were called in my ôfficeon 11.01.201O :WTerein the above c6nstable accepted his fault and assured to get married with Miss Mariayam Ekka shortly. On the same day both the above Miss MariayaIn Ekka (complainant) & Ct/021304 Etwa were sent to the office of th Assttt Commandant -- I, IRBn, who had forwarded her complaint to Statiok House Officer, P.S. Aberdeen for further necessary action. Whereas, the accused Ct/021304 Etwa being a member of a disciplined force was responsible for protecting the life and honours of the citizens of the Islands but instead of discharging his duty honestly and sincerely, he himself has indulged in criminal activities, which is most abhorrable, most reprehensible and most unexpected from a member of a uniformed force. If the member of the Battalion, who is charged with the sacred responsibility of upholding the rule of law indulges in such acts of crime and _--:7' 10 o.a. 1158/2017
/7 lawlessness, it shatters the faith of the common man in the Government's law & order machinerY. It also attracts immediate public attention and compels the authorities to take stern action against erring officials. Such acts of misdemeaflour produce undesirable and negative impact on the organization. Such gross misconduct directly erodes the very basis of the on which functioning of the Battalion i.e. "Public Trust", the foundation IRBn has been raised. The reputation and image assiduously built on sustained and good teamwork, suffer irreparable damage when an individual member of the service trips and indulges in such an abhorrent 4 Etwa act. And after such acts of gross misconduct, if the accused Ct/02130 is allowed to continue in the Battalion, it would be detrimental to the public interest & trust.
It is under these compelling circum5tance that the provision of Article 311(2) (b) of the ConstitUtiOnO-"d is beiniflVPked in this case for the la\w eforciflg machinery. The sake of justice and restoirTg 1p~ AF tmeflt and the society above ConableIiä'S.bec0me a inability tth4ePar rom service It and deserveSte Iighest level.pLpufllshmeult of dismissal fAA àseIl,as for th'é4stabl.ihme1t of rule wouldbe455th1n the p ubliir NN by pblid atilarge of la, wh h is expct I Not dñly that, th frind of ontabIe/O2l3O4 Etwa.either on his instigation or ontheir own wated'tO teacha lesson to MissMariYam I. Ekka
-. - '. Etwa TThee I RBn .,..
,for lodging a t1ii hand evenwhn they I Constables felt '- arrdted sooneFör ler for ii kne'WTthat ilk 5hbe&0 respect frthe iystem
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cor'nmitting suchhein&iS criè.B(kthe ' '• * • rnot dri.ng-.rnanfler in full%KP ubliC view. and attacked the complalnaht :fl Probably they were 'so sure ofthe inactibn of'.the law enforcemén agency that they thoughtof. tëähiriI tl%e brn áina.ntã1e5t0n for coriplaifling
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f'br6watiflg her. they had
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probably#' als'o thoughf of getting the omp1aiflt withdrawr !11 forcibly
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have be
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scnmalCt0r their act of
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facing departQentat
'tese CornelIing situation the violenc& &
- . •• continUatlOn0f\ .• Constable/031304 Etwa on th( rolls '6f IRBn would be ndtst"irrt crimjnal'iUstice system. detrimental to blord to deal with Cbnstable/021304 in this background, it departmental proceedings. It is teared that once Etwa through regular, these constables are out of jail, they won't allow the deia.rtmefltaI proceedings to get completed. Neither they would allow the complainant and the witnessesto come to the witness box to depose against them. They may not even hesitate to eliminate the complainant from the scene."
As already said, the aforesaid dismissal order was issued long before the therefore, issued without having any, applicant's discharge from criminal case, order of acquittal. Nevertheless, the, occasion to come across or peruse the
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11 o.a. 1158/2017authority failed to record reasons why it found holding of inquiry as "not reasonably practicable".
11. But the Appellate Authority, the DG, A & N Islands had the occasion to peruse the order of acquittal to appreciate correction of invoking the proviso, and entitlement to reinstatement in view of acquittal, yet he solely banked upon the wisdom of the disciplinary authority and issued the following order:
"The possibility of .winning ...over the C&riplainant/ victim girl by the Appellant herein on the pForiieof m arriage cannot be ruled out Moreover,.'iti thestr(t aeth or' tirider challenge before the £ j undersigned being the Appellate Authority is mainl'i çeq uired to be looked into the aspect a to whetherlAThclê..311 (2) (b) of tIe'Constitutiofl of India 'L .i.-' ..J- ... ." ..
) andV.the piovision oRulè lljviii) 6f CçS'(CCA) Rules, ,1964have been rightlyeercised bythe dismising the Appellant hre in $ .• ; ,ko o,rtof tire11'1 k
-, X nd read withI.CS(CCA)RüI .1'.I(iiiIo 964.-.:he facts 1eadingto the aeG 4 dah19/03/2 0 the egitration of asafso ponted outthatFhmately e omplaint ofMsMriaya mE 3fte _ es IRBn consbIs have a .2n0t10Nh 0-.
attacked and intimaed he compl ina Ic led to registration of nother crmiaJ cas.,uA 34173547323/504/p6/34iRC againsche two cnstabIe The aiddônstables were plcoder uspensin and a
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Departmental' Enquiry was initiated againstthem I m of theconsidered view that the ApeIlant hèrein.wasjighttv dismis'éd.fFom .srvice by the Discioliñarv luthoritby invoking dismissed ittal . frorTSrJmI reasonable doubt applies. Moreover, the ord,er-passed by the Disciplinary Authority has also beenpiThrbtrHQn'ble Tribunal in its judgmentL order dated 10/04/2017.
The third contention of the Appellant that due to his dismissal from service he is leading a very miserable life without any source of income and he be reinstated into service so that he can earn bread & butter for him and his poor parents. Such contention of the Appellant is devoid of any merit as he should have thought before indulging in such an act of grave misconduct being member of disciplined organization.
xxx xxx xxx The representations of the Appellant herein have been reconsidered and the prayer for his reinstatement into service in view of his acquittal from . the criminal case has been rejected being devoid of any merit."12 o.a. 1158/2017
V S 12.
A bare perusal of the order supra would show, reveal & demIonstrate that while the disciplinary authority issued its order without noticing the acquittal order, the Appellate Authority had the occasion to go through the aquittal ordr yet failed to consider the following issues:
reasonableness of invoking the proviso i.e. why it was not found by the disciplinary as reasonably practicable to hold an enquiry against the employee, who was charged with criminal offence.
why he did not Tdesrv arensttemefltWhen comIlaintS were in
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ithor the expertise regard to sexua l nor the mechan s,ofa Criminal Court to prve e1Sam'eyefl the basis of preponderance of probabilities --
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ln.theaf.o'esaid backdrdp the Ap3eUat or'der iquashed vith;opportUfltY
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