High Court
Case Details
WP(C) 7738/2005 BEFORE THE HON’BLE MR. JUSTICE B.K. SHARMA Heard Mr. R. Majumdar, learned counsel for the petitioner. Also heard Mrs. R. Bo ra, learned CGC. By means of this writ petition, the petitioner has prayed for setting aside and quashing of the Annexure-V order dated 31.5.2004, by which, pursuant to a depart mental proceeding, he was dismissed from service. In the departmental enquiry, t he under mentioned charges had been framed against the petitioner: (cid:28)Article-I That the said No. 861241361 Ct/GD Atul Chandra Kalita (under suspension) while f unctioning as Ct/GD of G/53 Bn, CRPF Sukhajan, Dist-Karbi Anglong (Assam) has co mmitted an offence of disobedience of orders/neglect of duty/ remissness in the discharge of duty/other other misconduct or misbehavior in his capacity as a mem ber of the force under section 11 (1) of CRPF Act, 1949 in that he went out of C oy camp of G/53 Sukhjan on 17/6/03 between 0900 hours to 0930 hrs without any pe rmission from competent authority i.e. coy Comdr. G. 53 Bn, CRPF. Article-II
Legal Reasoning
That during the aforesaid period and while functioning in the aforesaid office t he said No. 861241361 Ct/GD in G/53 Bn Sukhjan, Dist-Karbi Anglong (Assam) was g uilty of disobedience of order/neglect of duty/ remissness in the discharge of h is duty/other misconduct or misbehavior in his capacity as a member of the Force under section 11 (1) of CRPF Act, 1949 in that he left the G/53 Coy camp, Sukhj an, Dist-Karbi Anglong (Assam) on 17/6/03 without prior permission of Coy Comdr and went to the house of Shri Basant Barman, S/o Shri Khagen Barman of Vill-Sukh jan Basti, Ward No. 7, PS-Bokajan. There be misbehaved with an 18 years young gi rl namely Kumari Mamoni Barman, kissed her by force and tried to molest her with bad intention which is a serious misconduct of disciplined force like CRPF. FIR has been lodged by Shri Basant Barman vide Case No. 65/03 dated 17/6/03 under S ection 143/341/325/354 IPC. The said No. 861241361 Ct/GD Atul Chandra Kalita (un der suspension) was arrested by Civil police and detained in civil jail, Dist Ja il Diphu. Article-III
Legal Reasoning
That during the aforesaid period and while functioning in aforesaid office, the said No. 861241361 Ct/GD Atul Chandra Kalita (under suspension) was guilty of di sobedience of orders/neglect of duty/remissness in the discharge of his duty/oth er misconduct or misbehavior in his capacity as a member of the Force under Sect ion 11 (1) of CRPF Act, 1949 in that he left G/53 Coy camp, Sukhjan without perm ission of Coy Comdr. and went to the house of Basant Barman S/o Shri Khagen Barm an, Ward No. 7, PS Bokajan, Dist-Karbi Anglong and there he quarreled with famil y members of Kumari Mamoni Barman. He hit the mother of Kumari Mamoni Barman wit h a bamboo inflicting head injury due to which she has been hospitalized. (cid:29) In the enquiry proceeding, the charges No. 1 and 3 were held to have been establ ished against the petitioner and accordingly by the aforesaid order, he was dism issed from service. While holding so, the disciplinary authority made the follow ing observations: (cid:28)5. During the course of DE, statement of a number of prosecution witnesses were recorded. As per the statement of No. 015132789 Ct/GD Nitul Kumar Nath (PW-2), No. 680330959 Insp/GD R B Yadav (PW-1), 690020757 HC/GD Ajit Singh Coy CHM (PW-6 ) and 680263667 SI S K Diwedi (PW-7), charges framed as per article-I against No . 861241361 Ct/GD Atul Chandra Kalita is proved beyond any shadow of doubt. 6. Though, none of the PWs have stated in their statements that they have seen t he delinquent misbehaving with Miss Mamoni Barman but No. 861242361 Ct/GD Atul C handra Kalita (Delinquent) has himself accepted in his statement that he went to the girl’s residence which itself, is against the good conduct and moral bearin g of a member of the Force. Furthermore, the circumstantial evidences as brought out in the FIR lodged vide PS Bokajan Case No. 65/03 U/S 143, 341, 325, 354 of IPC and the Newspaper cutting placed as Exhibits-C and F respectively in the DE proceedings, has also partially proved the charge framed as per article-II that the delinquent has misbehaved with ulterior motives with the said girl. 7. As per statements of the delinquent as well as the statements of No. 01513278 9 Ct/GD Nitul Kumar Das (PW-2), 680330959 Insp/GD R B Yadav (PW-1) and 015130108 Ct/GD Sanjay Kr Rai (PW-4), charge framed as per article-III that the delinquen t went to the house of Shri Basant Barman and hit the mother of Miss Mamoni Barm an with a bamboo inflicting head injury has been proved beyond any shadow of dou bt as all the PWs except No. 680330959 Insp/GD R B Yadav (PW-1) have been and st ated in their statement that the delinquent No. 861241361 Ct/GD Atul Chandra Kal ita has hit the mother of Miss Mamoni Barman with a bamboo inflicting head injur y. 12. After careful examination of the DE proceedings, report of DEO and reply to Enquiry Officer’s report submitted by the delinquent, I found that the article-I and III have been fully proved ad article-II has been partially proved. Therefo re, in exercise of powers conferred upon me under Section 11 (1) of CRPF Act, 19 49 read with rule 27 of CRPF Rules 1955, I hereby award the penalty of (cid:28)DISMISSA L FROM SERVICE (cid:29) wef 31/5/04. (cid:29) Although in the writ petition, there is no pleadings to the effect that during t he enquiry, no Presenting Officer was appointed and that the Enquiry Officer him self cross examined the witnesses, but Mr. R. Majumdar, learned counsel for the petitioner placing reliance on the two decisions reported in (1993) 4 SCC 269 (U nion of India & Ors. Vs. R. Reddappa & Anr.) and the Division Bench judgment of this Court reported in 2011 (1) GLT 287 (Salam Kesho Singh Vs. State of Manipur & Ors.) submits that although not pleaded in the writ petition but the question of law can be gone into by this Court exercising certiorari jurisdiction. On the other hand, Mrs. Bora, learned CGC submits that the petitioner having not pleaded any prejudice in conducting the departmental enquiry, he is now preclud ed fro raising any prejudice and that too in absence of any pleadings in the wri t petition. In this connection she has referred to the decision reported in (199 6) 2 SCC 12 (Additional District Magistrate (City) Agra Vs. Prabhakar Chaturvedi & Anr.). Admittedly the petitioner before coming to the Writ Court did not prefer any dep artmental appeal as per the provision of the Rules. Mr. Majumdar, learned counse l for the petitioner submits that if an opportunity is given, the petitioner wou ld like to invoke the appellate jurisdiction of the appellate authority raising the aforesaid ground and all other grounds as may be available in law to the pet itioner. However, Mrs. Bora, learned CGC submits that by means of appeal, the pe titioner cannot be permitted to develop his case that too after a gap of so many years.
Decision
In view of the above, the writ petition is disposed of granting liberty to the p etitioner to approach the departmental appellate authority by preferring an appe al. In the event of such appeal being preferred, the appellate authority shall c onsider the same taking note of all the attending facts and circumstances and in accordance with law. Let the appeal be disposed of as expeditiously as possible , preferably within three months from the date of making the appeal by the petit ioner. It is made clear that the appellate authority shall decide the appeal on its own merit and not on the ground of limitation as the instant proceeding was pending before this Court.