High Court · 2012

Heard Mr. R. Sarma, learned counsel for the petitioner. Also heard Mr. N . Upadhyay, learned State Counsel.

2. By means of this writ petition, the petitioner has challenged the depart mental proceeding and the consequential orders passed by the disciplinary and ap pellate authority. The disciplinary authority passed the impugned order on 11.9. 98 imposing the penalty of stoppage of 5 (five) increments with cumulative effec t. The appellate authority has also confirmed the said order by Annexure-14 orde r dated 28.5.2001. Being aggrieved, the petitioner had preferred an appeal regis tered and numbered as 55 ATA/2001 before the Assam Administrative Tribunal. The Tribunal by its impugned judgement and order dated 9.4.2003 having upheld the or der of penalty, the petitioner has filed the instant writ petition.

3. According to Mr. Sarma, learned counsel for the petitioner, the enquiry was conducted in most illegal and arbitrary manner in which the petitioner was n ot given any opportunity to defend his case. He further submits that the petitio ner having been acquitted in the criminal case pertaining to the same charge, no departmental proceeding could have been initiated on the same set of charge. Ac cording to him, in the facts and circumstances, the penalty imposed is grossly e xcessive.

4. Mr. N. Upadhyay, learned State Counsel on the other hand submits that th e fact finding authorities having passed the impugned orders, this Court exercis ing its jurisdiction under Article 226 of the Constitution of India will not sit on appeal over those findings. Supporting the impugned orders, he submits that having regard to the gravity of the offence, the petitioner should consider hims elf lucky to go away with the imposed penalty. According to him, it was a fit ca se for dismissal from service. I have considered the rival submissions made by the learned counsel for 5. the parties. I have also considered the materials on record. The petitioner whil e was serving as Constable in the 1st Assam Special Reserve Force Bn. Was placed under suspension by Annexure-2 order dated 7.11.1996. That was followed by the charge sheet dated 20.2.1997. The charge against the petitioner, although, frame d one single charge with the element of two charges, one that of leaving the du ty post without permission from the Patrolling In-charge and involvement in cri minal activities and the 2nd relating to committing an offence under Section 376 IPC and other incidental acts. For a ready reference, the charge that was level led against the petitioner by memorandum of charge sheet dated 20.2.1997 is repr oduced below :- (cid:28)Charge No.1 While you were performing duty on 26.10.96 as per requisition of O/C Ron gsai P.S. at Rongsai Bazar, you left the duty post at about 9-30 p.m. without pe rmission from the Petrolling In-charge and involved in criminal activities. So, you are charged with unauthorised absence and gross misconduct.

2. When you were absenting unauthorisedly from duty on 26.10.96 at 9-30 p.m., yo u entered into the house of one Smti. Renu Rishi (nearby the ASRF.1 Camp) W/o la te Naresh Rishi of Rongsai Bazar breaking the door and raped her daughter Smti S umitra Rishi aged about 14 years old, and you were detected by the local people in the spot and chased you from there to Rongsai O.P. where you have taken shelt er. The public become violent and attacked the ASRF.1 Camp and looted watch, V.I .P., Bag etc. and broken the door/ windows. You have fired 10(ten) rounds in bla nk from your rifle. The public lodged F.I.R. at Rongsai O.P. and accordingly reg istered a case at Lakhipur P.S. against you vide No. 182/96 U/S 457/376 IPC and arrested you. You were detained under Judicial custody for 15 days. Your involve ment has caused severe loss to the Govt. properties including 10(ten) rounds amm unitions. Therefore, you are charged with moral turpitude and gross indiscipline and crimi nal misconduct. You should submit your written statement in defence within 10(ten) days from the date of receipt of this communication. In case, if you intend to inspect those documents you should write to the undersigned within 7(seven) days from the date of receipt of this communication and submit your reply within 10(ten) days from the date of completion of the inspection. (cid:29)

6. The petitioner submitted his reply on 10.6.97 (Annexure-5) denying the c harge. He also stated about the criminal proceeding launched against him which r esulted in final report. It was contended that since the petitioner was acquitte d in the criminal charge, the disciplinary proceeding should be abandoned.

7. In due course, the disciplinary authority appointed the Enquiry Officer to conduct an enquiry relating to the charge levelled against the petitioner. Su ch a course of action was adopted being not satisfied with the reply submitted b y the petitioner against the charge sheet. On conclusion of the enquiry, the Enq uiry Officer held the petitioner guilty of both the charges i.e. unauthorisedly leaving the duty post and being guilty of moral turpitude and gross indiscipline . It was found that the petitioner had caused firing in frenzy and in the proces s made loss of 10(ten) rounds of 303 ammunitions to the Government.

8. The petitioner was provided with the copy of the enquiry report. He was asked as to why the tentative opinion of the disciplinary authority to impose pe nalty of stoppage of five increments with cumulative effect should not be made f inal. In response thereto, the petitioner submitted his representation on 27.7.1 998. Thereafter, the disciplinary authority passed the impugned order dated 11.9 .1998 imposing the penalty of stoppage of five annual increments with cumulative effect.

9. Being aggrieved, the petitioner made an appeal to the appellate authorit y. The appeal having not been disposed off, he had approached the Tribunal by fi ling case No. 21 ATA/1999. The case was disposed of by the Tribunal by its order dated 4.4.2001, directing the appellate authority to dispose of the appeal. The appellate authority by its order dated 28.5.2001 dismissed the appeal making a challenge to which the petitioner once again approached the Tribunal by filling Appeal Case No. 55 ATA/2001. The Tribunal upon hearing the parties and upon cons ideration of the materials on record, passed the impugned judgement and order da ted 9.4.2003. By the said judgement, the appeal preferred by the petitioner havi ng been dismissed, the petitioner filed the instant writ petition.

10. Although, the Tribunal has dismissed the appeal, it has made a recommend ation to the disciplinary authority to pass appropriate order in respect of enti tlement or otherwise of subsistence allowance during the period of suspension an d regularisation of the period of suspension.

11. Although, Mr. R. Sarma, learned counsel for the petitioner has submitted that the petitioner was not given all reasonable opportunity of being heard in the departmental enquiry but apart from making a vague and indefinite statement in paragraph 24 of the writ petition to the effect that the disciplinary action against the petitioner was wholly illegal and arbitrary as the same was done beh ind the back of the petitioner, without informing him about the documents relied upon in the enquiry, no concrete materials with specific instances have been pl eaded so as to contend that denial of the documents resulted in violation of the principles of natural justice.

12. As regards the plea of the petitioner that he having been acquitted in t he criminal proceeding, the disciplinary authority could not have initiated the departmental proceeding, suffice is to say that acquittal in criminal case does not necessarily lead to dropping of a departmental proceeding. Standard of proof in both the proceedings is quite different. While in a criminal case, the guilt will have to be established beyond all reasonable doubt but in a departmental p roceeding it is the preponderance of probability in respect of the charge levell ed. In this connection, I may gainfully refer to the decisions of the apex Court reported in (1996) 6 SCC 455 (State of Karnataka and another Vs. T. Venkatarama ) ; (2004) 6 SCC 482 (Allahabad District Cooperative Bank Ltd., Allahaba d Vs. Vidhya Varidh Mishra) ; (1997) 11 SCC 361 (Govind Das Vs. State of Bihar a nd others) and (2000) 10 SCC 177 (State of A.P. Vs. K. Allabaksh).

13. In the instant case, the enquiry was conducted not only in respect of th e charge relating to commission of the heinous crime of rape but also relating t o his unauthorised absence and / or leaving the duty post without permission fro m the Patrolling In-charge. The charge was also in respect of firing of 10(ten) rounds in blank from the rifle of the petitioner and also as to how the public b ecame violent and attacked the camp and caused damage to the belongings of the C amp.

14. In the enquiry, the witnesses examined unequivocally stated about the m isconduct attributed to the petitioner and in the cross examination, they could not be dislodged from what they stated in their examination in chief. The fact f inding bodies like the Enquiring Authority, Disciplinary Authority, Appellate Au thority and finally the Tribunal having gone through the entire materials and up held the order of penalty, this Court cannot sit on appeal over such findings, s o as to return another finding other than the one arrived at by the said authori ties.

15. At this stage, Mr. R. Sarma, learned counsel for the petitioner submits that instead of stopping of five increments with cumulative effect, the discipli nary authority may consider the same for conversion to non-cumulative effect. It will be entirely up to the authority to deal with that aspect of the matter. Th is Court is only concerned with the impugned orders when it is found that the sa id orders are not liable to interfered with, this Court exercising its power of judicial review under Article 226 of the Constitution of India, cannot return a different finding.

16. t however, any order as to costs. Subject to the above observation, the writ petition is dismissed, withou