Ex. Constable Manjunath v. U.O.I.

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.(Oral)

1. After serving a charge sheet and bringing the petitioner before the Summary Security Force Court a finding of guilt has been returned on the evidence led notwithstanding that the appellant pleaded guilty to the charge. In view of the finding of the Summary Security Force Court the Disciplinary Authority has inflicted the punishment of dismissal from service. The statutory appeal filed by the petitioner has been dismissed vide order dated - Jan 2009. 2009:DHC:5289-DB

2. Briefly stated relevant facts are that the petitioner along with a constable Sibishan were detailed for duty at Naka Point No.2 in the area of Sodepur Bop. At 7:25 PM the petitioner used the SLR Butt No.271 of Constable Sibishan and attempted a suicide.

3. The petitioner was evacuated to the Government hospital and therefrom to a super specialty hospital at Kolkata.

4. The company commander lodged the FIR pertaining to the incident on 23.11.2005.

5. In the charge sheet issued to the petitioner the date of the incident got recorded as 22.11.2005 instead of 21.11.2005.

6. Learned counsel for the petitioner has raised the following issues before us at the hearing of the writ petition. It is firstly urged that by indicating to the petitioner that the incident took place on 22.11.2005 a serious prejudice has been caused to the petitioner for the reason the incident in question actually took place on 21.11.2005. The second plea urged is that there a delay in registration of the FIR which is fatal. The third contention urged is that the recommendations of the Commanding Officer to inflict the punishment of dismissal form service have been simply initialed by the Reviewing Authority. It is urged that the Reviewing Authority has to independently consider the matter. The fourth submission urged is that the petitioner has obtained a certificate from the Government hospital at Davanageri as per which the petitioner is fit for employment. Lastly it is urged that the service profile of the petitioner is clean and thus the punishment inflicted is disproportionate.

7. With respect to the first plea urged, we note that the Appellate Authority has noted the same and in our opinion has recorded a correct finding relatable thereto. The finding returned is that the record of the Summary Security Force Court Proceedings shows that the petitioner clearly understood that he was being charged with reference to the act of his attempting to commit suicide and that the said Act was committed on 21.11.2005 and that the petitioner was not confused with reference to the typographic error of the date being recorded in the charge memo as 22.11.2005.

8. Pertaining to the second plea we note that the said issue has also been noted by the Appellate Authority but has not been dealt with. The incident in question took place in the late evening of 21.11.2005. It took place at the Indo- Bangladesh Border. The concern of the fellow officers and the jawans was to first ensure good medical aid to the petitioner and thereafter to lodge the FIR.

9. Even otherwise, unless it is shown that the consequences of a belated FIR is manipulation of evidence or planting any eye witness the same is inconsequential. None has been shown.

10. That the past service record of the petitioner is satisfactory has been noted by the Appellate Authority who has returned a finding that notwithstanding the petitioner having a clean service record but the offence of attempt to commit suicide shows the suicidal tendency of the petitioner. It has been noted that being a Member of an Armed Force, the petitioner cannot function as a constable without being armed with arms and ammunitions. It has been held that under the circumstances it would be dangerous to retain the petitioner in service who would always be armed.

11. We concur.

12. That the petitioner has been declared fit by a Government doctor to perform duties is irrelevant for the reason it is not a case where the petitioner has been removed from service on account of physical infirmity.