High Court
Case Details
WP(C) 2031/2006 BEFORE HON’BLE MR. JUSTICE A.K. GOSWAMI This writ petition is directed against the order dated 18.11.2002 passed by the Commandant ASRF Bn-II, removing the petitioner from his service as a Constable o f Assam Special Reserve Force Battalion - II, in short, ASRF Bn-II, pursuant to a departmental proceeding. 2. The petitioner was suspended by an order dated 22.02.2001 pending drawal of departmental proceeding by the Commandant ASRF Bn-II. Thereafter, a show-cau se notice dated 26.03.2001 was issued by the Commandant, ASRF Bn-II to the petit ioner, requiring him to show-cause under Rule 9 of Assam Services (Discipline an d Appeal) Rules, 1964, for short, Rules of 1964, read with Article 311 of the Co nstitution of India as to why any of the penalties prescribed under Rule 7 of th e Rules of 1964 shall not be inflicted upon him. He was charged with gross negli gence of duty and misconduct on the basic allegation that while he was on sentry duty in Gate No. 2 of Battalion Headquarters from 1800 Hrs to 2000 Hrs on 21.02 .2001, a group of extremists entered the Battalion campus through the Gate No. 2 and they started indiscriminate firing resulting in the death of 3 persons and injury to 2 persons, besides looting of 2 rifles including one belonging to him. The written statement of defence was to be filed within 10 days of the date of receipt of the show-cause notice dated 26.03.2001 provided he did not intend to inspect the documents. If he intended to inspect the documents having relevance with the issue, he was to make a request within 7 days and thereafter to submit the written statement within 10 days from date of completion of the inspection. With the said show-cause notice dated 26.03.2001, statement of allegations, list of documents as well as list of witnesses were enclosed. The departmental proce eding was numbered as DP No. 6 of 2001. 3. The petitioner submitted his written statement on 09.04.2001 denying the charge and stating that the fateful incident had taken place on (cid:28)Siva (cid:29) puja day when the road was full of people and at around 06:30 p.m., some persons carryin g sophisticated arms entered into the Battalion through the broken fence and ove r-powered him from his backside. 4. Not being satisfied with the written statement, an Enquiry Officer was a ppointed. The Enquiry Officer submitted his report on 19.10.2002, holding that c harge was proved against the petitioner. Agreeing with the findings of the Enqui ry Officer, a show-cause dated 25.10.2002 was issued by the Commandant, ASRF Bn- II enclosing the copy of the Enquiry Report and requiring the petitioner to show -cause within 10 days from the date of the aforesaid communication as to why pro posed punishment of discharge from service be not imposed upon him. The petition er had submitted his show-cause reply. Thereafter, by the impugned order, the pe titioner was removed from service. The petitioner submitted a representation dat ed 10.11.2003 to the Director General of Civil Defence and Commandant General of Home Guards. But he did not receive any response. 5.
Legal Reasoning
No affidavit-in-opposition was filed by the respondents. However, Mr. S. Sarma, learned State Counsel has produced the relevant records. 6. Mr. S.K. Sinha, learned counsel for the petitioner submits that the Enqu iry Officer conducted the enquiry in violation of the principles of natural just ice. There was no Presenting Officer on behalf of the Department and the Enquiry Officer acted as the Presenting Officer. The petitioner was also not allowed to inspect the listed documents. The statement of defence of the petitioner was re corded first by the Enquiry Officer and then he was asked to go out from the roo m of the Enquiry Officer. Thereafter, statements of the departmental witnesses w ere recorded by the Enquiry Officer in absence of the petitioner and the petitio ner was not allowed to cross-examine the departmental witnesses. The petitioner was denied defence assistance. No opportunity was granted to examine his witness es. He has submitted that there is violation of mandatory provisions of Rule 9 o f the Rules of 1964 and as such the enquiry is vitiated. It is also his contenti on that the finding recorded by the Enquiry Officer is perverse. Having regard t o the charge framed, a perusal of the Enquiry Report would go to show that the E nquiry Officer had travelled beyond the charge. No opportunity was granted to th e petitioner to show-cause against the Enquiry Report but he was asked to show-c ause against the proposed penalty only, which has also vitiated the punishment i mposed. The punishment imposed upon the petitioner is disproportionate and is al so discriminatory inasmuch as minor punishment was awarded to four persons again st whom disciplinary proceedings were initiated on the charge that extremists ha d snatched away their arms and ammunitions from their possession. He has conclud ed his argument by submitting that the disciplinary authority had taken into con sideration alleged previous indisciplined conduct which is not permissible in la w. Accordingly, he submits that the impugned order of removal is liable to be se t aside and the petitioner reinstated in service. He has relied on the following decisions: 1. 2. 3. 4. 5. 6. . 7. Ors). 2003 (2) GLT 157 (Thaneswar Kalita Vs State of Assam & Ors). 1987 (2) GLR 210 (Madhab Chandra Das Vs The State of Assam & Ors). 2011 (1) GLT 287 (Salam Kesho Singh Vs State of Manipur & Ors). (2008) 8 SCC 236 (State of Uttaranchal and Ors Vs Kharak Singh). (2008) 8 SCC 469 (State of Punjab Vs Dr. P.L. Singla). 2012 (5) GLT 264 (Paban Chandra Das Vs Indian Oil Corporation Ltd & Ors) (2001) 1 SCC 182 (Kumaon Mandal Vikas Nigam Ltd. Vs Girja Shankar Pant & (2006) 4 SCC 348 (A Sudhakar Vs Postmaster General, Hyderabad & Anr). 8. 7. Mr. Sarma has submitted that the list of documents and the witnesses wer e furnished alongwith the show-cause notice dated 26.03.2001. In the said notice , it was also indicated that he may inspect the documents. However, he did not m ake any request for inspection of the documents and submitted the written statem ent. It is also submitted that outcome of the proceeding does not depend on docu ments having regard to the charge framed against the petitioner. He was notified that recording of evidence of the witnesses was fixed on 12.10.2001 at 11:00 a. m. and he was requested to be present. The said letter also advised him that if he so desired, he could take the assistance of any departmental employee for the purpose of the disciplinary proceedings by taking approval of the Commandant. H owever, he did not ask for any defence assistance. The allegation of denial of o pportunity of cross-examination is also not borne out of record and he had actua lly declined cross-examination. Therefore, no credence can be placed on his alle gation that listed witnesses were examined in his absence. The learned State Cou nsel submits that gross negligence of duty is well established from the evidence of witnesses examined by the department. Abdul Gafar Shekh, who was an eye-witn ess, had deposed that the petitioner was moving around with his son during duty hours, his rifle slung on his shoulders and one of the extremists, after enterin g the campus, snatched away his rifle. As the son of the petitioner grabbed him, the extremist demanded that the child be taken away and accordingly, the petiti oner went away from that place with the child and immediately thereafter, they s tarted firing. It is submitted by him that though no Presenting Officer was appo inted, the same will not vitiate the enquiry. Charge having been established, it cannot be said that punishment is disproportionate to the magnitude of negligen ce, which resulted in death of three persons. The submission of Mr. Sinha that t he petitioner was meted out discriminatory treatment in respect of imposition of punishment is wholly not tenable, Mr. Sarma submits. The learned State counsel has submitted that all procedural safeguards were scrupulously observed during t he enquiry. Even if the 2nd show-cause notice did not require the petitioner to show-cause against the report of the Enquiry Officer, in absence of any prejudic e pleaded, no case is made out for interference with the penalty imposed. In res pect of misconduct of grave nature, past conduct can also be taken into consider ation and at any rate, on the basis of the charge established, the punishment of removal of a member of a disciplined force cannot be said to be disproportionat e or unwarranted, he submits. He places reliance on the following judgments: 1. 2. 3.