Full Text
Date of Decision: March 03, 2013
AJIT SINGH ..... Petitioner Represented by: Mr.A.K.Bhakt, Advocate
HON'BLE MR. JUSTICE JAYANT NATH PRADEEP NANDRAJOG, J. (Oral)
JUDGMENT
1. Since all and sundry grounds have been urged in the writ petition which are premises on factually wrong facts, we shall be dealing with each ground urged immediately after noting the relevant facts concerning the ground urged.
2. Appointed as a Constable in CISF on June 12, 1976, as of the year 1994, the petitioner was deployed at ‘D’ Coy of CISF Unit posted at BSL Bokaro.
3. On April 27, 1994 a charge memo was issued to the petitioner listing out three charges which allege as follows: -
(i) On March 17, 1994 the petitioner was detailed to perform duty with arms and ammunitions at Slag Dhump D-24 for the period from 05.00 A.M. to 01.00 P.M. but the petitioner remained absent from his duty and instead consumed liquor from a nearby cottage; 2013:DHC:1149-DB
(ii) On March 17, 1994 at about 01.00 P.M. the petitioner loaded his rifle and threatened to kill Lance Naik C.Urav and
(iii) On March 17, 1994 the petitioner after loading his rifle went to the
4. First ground urged is that the charge sheet is vague. Now, from a perusal of the three charges we find that the time, the place and the facts constituting the wrong have been succinctly stated. Except for mumbling jumbling in language which is most inaudible to the Court, learned counsel insists that the charges are vague. We need not reason with the ground urged for the reason the answer is self-evident. All particulars required to be stated have been disclosed to the petitioner.
5. On April 28, 1994 the petitioner wrote a letter to the Commandant, i.e. the Disciplinary Authority requesting that listed documents mentioned in Annexure III to the charge memo be supplied to enable him to prepare his defence. Record would evidence that all documents were supplied to him on April 30, 1994 and on May 02, 1994 the petitioner submitted his written reply wherein he denied the charges framed against him and stated that on March 17, 1994 he had not absented himself from duty and that he had performed his duty diligently at all times. That he had not extended any threat to Lance Naik C.Urav. He stated that what happened was that when Lance Naik C.Urav came to relieve him from his duty he i.e. the petitioner was required to hand over the rifle to C.Urav but he refused to take the same on the ground that it was dirty whereupon he went to Kote NCO to deposit the rifle and rounds. Since Kote NCO had gone for lunch he waited for him and sat on a cot there and started cleaning the magazine of the rifle. At that time SI Mohd.Arif and Coy CHM R.C.Shekharan came there and attempted to take possession of the rifle and the rounds. Petitioner objected. SI Mohd.Arif and Coy CHM R.C.Shekharan said that an action would be taken against him for causing damage to the rifle. He refused to give the rifle and rounds and told them that Kote NCO would prepare a report if the rifle was found damaged by him. At this SI Mohd.Arif and Coy CHM R.C.Shekharan started beating him and he suffered injuries on his eyes and hand and fainted. He stated that officers: Balraj Singh, Arun Kumar and Suni Dutt Yadav were present at that time. Thereafter he went to the Coy Headquarters as directed by Assistant Commandant S.K.Sinha. He tried to complain about the aforesaid incident to the superior officers on 17/18.03.1994 but in vain. Finally on March 19, 2014 he made a written complaint regarding the incident to his superior officers.
6. The next contention urged is that the relied upon documents were not supplied to the petitioner, a plea which is contrary to the record.
7. The aforesaid reply given by the petitioner was not found satisfactory by the Disciplinary Authority and on May 13, 1994 an Enquiry Officer was appointed to conduct an enquiry into the charges framed against the petitioner.
8. On June 01, 1994 the Enquiry Officer conducted a preliminary hearing wherein the petitioner pleaded not guilty to the charges framed against him. The order sheet of said date would reveal that upon being asked by the Enquiry Officer whether petitioner desires a defence assistant at the enquiry, the petitioner replied in the negative.
9. Thus, the third plea urged that the enquiry was vitiated because petitioner was denied a defence assistant is rejected being contrary to the record.
10. At the enquiry, the prosecution examined 7 witnesses; viz. SI Mohd.Arif PW-1, HC Jogender Mishra PW-2, CHM R.C.Shekharan PW-3, Lance Naik C.Urav PW-4, Ct.J.P.Maleda PW-5, Naik M.Karwa PW-6 and Ct.Satpal Singh PW-7.
11. SI Mohd.Arif PW-1, stated that on March 17,1994 Lance Naik C.Urav informed him that he was to relieve the petitioner from duty. The petitioner was to hand over the rifle to him but he refused to take the same as there was dust and water in the barrel and magazine of the rifle. He further informed him that the condition of the petitioner was not good at that time inasmuch as blood was oozing from his hand and he appeared to be intoxicated. Lance Naik C.Urav further informed him that he i.e. Lance Naik C.Urav refused to take charge from the petitioner whereupon the petitioner threatened him and said that if he would not take charge he would kill 10-15 persons. Thereafter the petitioner loaded the rifle and went inside the barrack. Ct.A.Raja and Aftab Hussain were witnesses to the incident. Thereafter the CHM, the Kote In-charge and he ran towards the barrack to ensure that no untoward incident should happen. On entering the barrack they saw that the petitioner has kept the rounds on a cot whereupon he i.e. SI Mohd.Arif took the rounds in his possession and told Kote In-charge to take the rifle in his custody. On hearing the same the petitioner got angry and grabbed the collar of his shirt and tried to hit him with the rifle, upon which CHM and Kote In-charge caught hold of the petitioner and took the rifle from him. The control room was informed about said incident. ASI Fakir Chand was detailed to get the petitioner medically examined and the CHM was told that five jawans be detailed with the petitioner. When he tried to inform superior officers over the telephone the petitioner repeatedly disconnected the telephone. He made an entry to said effect in the GD Register. At 02:35 PM the CHM informed that after assaulting him the petitioner had run away. He saw that the vest of the CHM was torn and he was injured. Petitioner was tried to be located, but in vain. Therefore no medical examination could be got conduced.
12. HC Jogender Mishra PW-2, stated that on March 17, 1994 at about 01:10 P.M. he came to the barrack after finishing his duty where he saw that SI Mohd.Arif, Coy CHM Shekharan, Ct.Balraj Singh, Ct.Chandan and the petitioner were present on upper barrack. After sometime the aforesaid persons came down.
13. CHM R.C.Shekharan PW-3, stated that on March 17, 1994 at about 01:15 P.M. the petitioner and Ct.J.P.Maleda returned after performing duty. At that time Lance Naik C.Urav told the petitioner to clean the rifle and that only thereupon he would take charge. Being CHM he told the petitioner to clean the rifle and give the charge to Lance Naik C.Urav and thereafter went to take lunch. After sometime SI Arif called him and Kote NCO Pillai also accompanied him. They went to the petitioner who was present at upper barrack. The petitioner was sitting on a cot with 10 rounds and a rifle. SI Arif immediately took possession of 10 rounds and asked Kote NCO to take the rifle in his custody. At this the petitioner tried to hit SI Arif whereupon he and Kote NCO caught hold of the petitioner and came down with the rifle and rounds. Thereafter some officers were detailed to get conducted the medical examination of the petitioner. The petitioner went behind the garden of ‘D’ Coy on the pretext of answering the call of nature and ran from there.
14. Lance Naik C.Urav PW-4, stated that on March 17, 1994 he was detailed to perform duty at Slag Dhump D-24. He was to take charge of the rifle from the petitioner. When he was about to take charge of the rifle from the petitioner he found that there was dirt and water in the rifle upon which he asked the petitioner to clean the rifle. The petitioner was intoxicated at that time. The petitioner told him that if he does not want to take the charge of the rifle he i.e. Lance Naik C.Urav should return the rounds whereupon he returned the rounds. Thereafter the petitioner loaded the rifle and said that in case the charge of the rifle was not taken he would kill 10-20 persons. He reported the aforesaid incident to the Coy Commander.
15. Ct.J.P.Maleda PW-5, stated that on March 17, 1994 along with the petitioner he was detailed to perform duty at Slag Dhump D-24. The petitioner left from the duty and went to a nearby cottage. When the petitioner did not return he went towards the cottage to bring the petitioner. On reaching the cottage he saw that the petitioner was talking to the occupants of the cottage. He asked the petitioner to return as it was time to hand over the charge to their relievers. The petitioner was intoxicated and smell of liquor was coming from his mouth at that time. Thereafter he brought the petitioner to ‘D’ Coy Lines.
16. Naik M.Karwa PW-6, stated that on March 17, 1994 he was detailed to perform duty at Quarter Guard of D Coy for the period from 01:00 P.M. to 09:00 P.M. While he was taking charge he heard loud voices coming from outside whereupon he came out of the control room and saw that the petitioner and Lance Naik C.Urav were talking to each other regarding taking of charge of a rifle. Whereas the petitioner was asking Lance Naik C.Urav to take charge of the rifle, Lance Naik C.Urav was saying that he would take charge after the petitioner cleaned the rifle. The petitioner started loading the rounds in the rifle and said that he would see as to how charge would not be taken. At this Lance Naik C.Urav went to report the incident to the Coy Commander who, accompanied by Kote NCO came there. In the meantime the petitioner went inside the lines with the rifle in his hand upon which Mohd.Arif and CHM R.C.Shekharan went to the barrack to take the rifle from the petitioner. After sometime SI Arif informed him that the petitioner had misbehaved with him and broke the button of his shirt. One button of the shirt was broken at that time. An entry to said effect was made in the GD Register. While SI Arif was making a call in the control room the petitioner came there and repeatedly kept disconnecting the call made by SI Arif. Thereafter SI Arif directed the CHM to take the petitioner from there i.e. the control room upon which the CHM and petitioner went towards the line. 10 minutes thereafter CHM came to him and informed him that the petitioner had beaten him and tore his vest. The vest of CHM was torn at that time. He made an entry to said effect in GD Register. Thereafter some jawans were detailed to search the petitioner but in vain.
17. Ct.Satpal Singh PW-7, stated that on March 17, 1994 at about 09:30 A.M. he had met the petitioner at D-24.
18. In defence, the petitioner examined 3 witnesses viz. Ct.Sunil Dutt Yadav DW-1, Ct.Balraj Singh DW-2 and Ct.Arun Kumar Tyagi DW-3
19. Ct.Sunil Dutt Yadav DW-1, stated that on March 17, 1994 at about 01:15 P.M. he went to the upper barrack to take lunch. The petitioner was coming down at that time and enquiring about Kote Constable. Thereafter the petitioner went up and kept the rifle and rounds on a cot where he was sitting and started cleaning the rifle. In the meantime SI Arif and CHM Shekharan came there and the petitioner and SI Arif and CHM Shekharan started to beat each other. On being questioned the witness stated that an injury was present on the eye of the petitioner when he had seen the petitioner at about 01:15 P.M. on March 17, 1994.
20. Ct.Balraj Singh DW-2, stated that on March 17, 1994 at about 01:00- 01:15 P.M. the petitioner came to the barrack and made enquiries about Kote Constable. Thereafter the petitioner kept the rifle and round on a cot where he was sitting and started cleaning the rifle. At that time SI Arif and CHM Shekharan came there and picked up the rounds and rifle. When the petitioner objected to picking up of rounds and rifle by SI Arif he i.e. SI Arif slapped the petitioner upon which the petitioner fell on the cot. Thereafter SI Arif and CHM Shekharan with the rounds and rifle went towards the Kote.
21. Ct.Arun Kumar Tyagi DW-3, stated that on March 17, 1994 he was sleeping in the barrack when at about 01:15 he heard some noises due to which he woke up. He saw SI Arif and CHM Shekharan were standing beside the cot where the petitioner was sitting. The rifle of the petitioner was lying on the cot. CHM pushed the petitioner and SI Arif slapped the petitioner on his head upon which the petitioner fell towards the window. SI Arif and CHM Shekharan took the rifle and rounds in their custody, which act was objected to by the petitioner.
22. As regards documentary evidence, the petitioner produced some medical documents which recorded that on March 18, 1994 there were multiple abrasions on the person of the petitioner as also a blunt injury above the eye.
23. Vide a report dated July 01, 1994 the Enquiry Officer indicted the petitioner of the charges framed against him. In so concluding, it was held by the Enquiry Officer that the witnesses examined by the Department corroborate each other but the defence witnesses did not support each other. The Enquiry Officer heavily relied upon the fact that the petitioner had absconded when he was directed to get himself medically examined.
24. After supplying the report of the Enquiry Officer to the petitioner and considering the reply filed, agreeing with the findings retunred by the Enquiry Officer penalty of removal from service was inflicted upon the petitioner against which appeal and revision filed thereafter were rejected on March 04, 1995 and December 09, 1996.
25. Instant petition challenges the penalty order, the appellate order and the revisional order.
26. With respect to the evidence led at the enquiry, the plea is that there is perversity in the findings. It is submitted that the finding of guilt returned by the Enquiry Officer and accepted by the departmental authorities is unsupported by the evidence on record.
27. The ‘uncontroverted’ evidence of Ct.J.P.Maleda PW-5, leaves no manner of doubt that the petitioner had left his duty for sometime on March 17, 1994 and had gone to a nearby cottage and consumed liquor there. (Most significantly, witness Ct.J.P.Maleda PW-5 has not been cross-examined by the petitioner thus his deposition remains unchallenged.) The evidence of SI Mohd.Arif PW-1, CHM R.C.Shekharan PW-3, Lance Naik C.Urav PW-4 and Naik M.Karwa PW-6 when seen in the light of contemporaneous GD entries in connection with the present case establish the charges (ii) and (iii) framed against the petitioner i.e. the petitioner threatened to kill Lance Naik C.Urav and misbehaved with SI Mohd.Arif and Coy CHM R.C.Shekharan on March 17, 1994. Most significantly, the conduct of the petitioner of absconding and not subjecting himself to medical examination on March 17, 1994 is indicative of the guilt of the petitioner. Furthermore, the deposition of Sunil Dutt Yadav DW-1, that an injury was present on the eye of the petitioner when he had seen him at about 01:15 P.M. on March 17, 1994 before he was allegedly beaten by SI Mohd.Arif and CHM R.C.Shekharan. demolishes the defence taken by the petitioner that the injury in the eye was suffered by him at the hands of SI Mohd.Arif and CHM R.C.Shekharan. Thus Article 1 of the charge stands proved in view of the uncontroverted testimony of Ct.J.P.Maleda PW-5 and Articles 2 and 3 of the Charge stand proved through the other evidence.
28. Last plea urged is that the penalty is disproportionate to the gravity of the wrong, a plea which is rejected by us noting that for similar misconducts of being intoxicated and misbehaviour with senior officers in the past six punishments were inflicted upon the petitioner. In those indictments since there was no physical force used and there was no threat to use the firearm, lighter penalties were inflicted. Instant indictment is severe. WE do not find the penalty of removal from service disproportionate to the wrong committed.
29. The writ petition is dismissed but without any orders as to costs.
(PRADEEP NANDRAJOG) JUDGE (JAYANT NATH)
JUDGE MARCH 03, 2014 mamta