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Date of Decision: 4th December, 2009
BRIJ LAL THAKUR ..... Petitioner
Through: Mr.Ranbir Singh Kundu, Advocate
Through: Mr.A.K.Bhardwaj, Advocate with Ms.Jagriti Singh, Advocate
HON'BLE MR. JUSTICE SURESH KAIT
JUDGMENT
1. Whether the Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporter or not? No
3. Whether the judgment should be reported in the Digest? No PRADEEP NANDRAJOG, J.
1. At the outset we may note that neither the record of enquiry, nor the report of the Enquiry Officer, much less the impugned order inflicting punishment of dismissal from service inflicted upon the petitioner has been filed by the petitioner, who challenges the action of the respondents in terminating his service. 2009:DHC:5170-DB
2. We are pained to note that the pleadings in the writ petition are disjunctive and one gets no clue whatsoever as to what is the case of the petitioner.
3. However, since the record of enquiry has been produced before us we propose to dispose of the writ petition with reference to the record of enquiry.
4. We crystallize the submissions urged by learned counsel for the petitioner which needs to be dealt with.
5. It is firstly urged that there is no evidence against the petitioner to sustain the finding of guilt. It is secondly urged that the petitioner was not granted the opportunity to cross examine the witnesses of the prosecution. It is thirdly urged that the petitioner has been acquitted by the Court of Sessions with respect to the trial of the petitioner for having committed rape on Ms.Pathurang Reang.
6. Relevant facts are that on 7th April, 1995 a charge memo was served upon the petitioner alleging that while on duty under the command of Civil Police SI D.R.Majumdar and SI/DG D.C.Dogra the petitioner went to a hut along with his rifle under pretext of fetching drinking water. He misbehaved with the female members staying in the hut.
7. At the enquiry held, the female alleged to be the target of the beastly instinct of the petitioner; namely Pathurang Reang was cited as PW-13.
8. SI D.R.Majumdar was cited as PW-10 and SI D.C.Dogra was not cited as a witness, but we note from the record of enquiry that he has been examined.
9. At the enquiry Ms.Pathurang Reang deposed against the petitioner and we note that the petitioner has not cross examined her.
10. We may note that the record of enquiry shows that the petitioner has not cross examined any witness.
11. SI D.R.Majumdar deposed that a written complaint was received from the husband of the prosecutrix. SI D.C.Dogra deposed that after the complaint was received an identification parade was conducted at the village in which the prosecutrix pointed out and identified that it was the petitioner who had molested her.
12. We note that after the prosecution led its evidence i.e. at the culmination of the enquiry, the petitioner was generally examined with reference to the evidence against him and in response to question No.2 he admitted that the evidence of all witnesses of the prosecution was recorded in his presence and copy thereof was immediately supplied to him. In response to the next question i.e. question No.3 he admitted that he was granted an opportunity to cross examine all the witnesses of the prosecution and he voluntarily chose not to cross examine any.
13. Thus, the allegation of the petitioner that he was denied the opportunity to cross examine the witnesses is false.
14. The incriminating evidence against the petitioner is the testimony of Ms.Pathurang Reang as also the testimony of SI D.R.Majumdar and SI D.C.Dogra. We note that the testimony of Ms.Pathurang Reang clearly inculpates the petitioner.
15. That the prosecutrix chose not to respond to the summons issued by the Court of Sessions at Tripura resulting in the petitioner being acquitted is neither here nor there for the reason it is settled law that in relation to a domestic enquiry the Court has to consider the evidence led at the domestic enquiry. We may note that in the decision reported as 2007 (10) SCC 385 Noida Entrepreneurs Association Vs. Noida & Ors. in para 11 and para 16 it was observed as under:- “11. A bare perusal of the order which has been quoted in its totality goes to show that he same is not based on any rational foundation. The conceptual difference between a departmental enquiry and criminal proceedings has not been kept in view. Even orders passed by the executive have to be tested on the touchstone of reasonableness. [See Tata Cellular Vs. Union of India and Teri Oat Estates (P) Ltd. Vs. U.T., Chandigarh.] The conceptual difference between departmental proceedings and criminal proceedings have been highlighted by this Court in several cases. Reference may be made to Kendriya Vidyalaya Sangathan Vs. T.Srinivas, Hindustan Petroleum Corpn. Ltd. Vs. Sarvesh Berry and Uttranchal RTC Vs. Mansaram Nainwal.
16. The standard of proof required in departmental proceedings is not the same as required to prove a criminal charge and even if there is an acquittal in the criminal proceedings the same does not bar departmental proceedings. That being so, the order of the State Government deciding not to continue the departmental proceedings is clearly untenable and is quashed. The departmental proceedings shall continue.”
16. We may note that the record produced by the respondent shows that the order of penalty inflicted upon the petitioner was duly served upon him.
17. As a Member of the CRPF the petitioner had no business to misbehave with a civilian female and outrage her modesty.
18. With reference to the record of enquiry produced, we find no merit in the writ petition which is dismissed.
19. Since the petitioner is without a job, we refrain from awarding costs.
PRADEEP NANDRAJOG, J. SURESH KAIT, J. December 04, 2009 mm