High Court
Case Details
WP(C) 4781/2012 BEFORE THE HON’BLE MR JUSTICE UJJAL BHUYAN ere heard together and are being disposed of by this common order. Issue raised in the three writ petitions being the same, those w 2. At the outset, a brief narration of the facts may be necessary. WP(C) No.4779/2012 3. Petitioner was serving as a Constable in the Central Reserve Pol ice Force (CRPF). At the relevant point of time, the Battalion in which he was s erving, was deployed in the State of Manipur. 4.
Legal Reasoning
An incident of firing between insurgents and CRPF personnel took place in RIMS Hospital campus at Imphal on 07-01-1995. As a result of this firi ng incident, there were nine civilian casualties. Thereafter, order dated 08-01- 1995 was passed by the Commandant of the 79 Battalion, CRPF placing the petition er under suspension. Following a departmental enquiry, the disciplinary authority pas 5. sed order dated 16-11-1997 imposing the penalty of reduction in rank for a perio d of six months without cumulative effect on the petitioner. Petitioner was howe ver re-insisted in service. 6. It may be mentioned that in connection with the same incident, a criminal case was also registered under sections 302/507/320/34 IPC. Petitioner was arrested on 04-06-2001 and remained in custody for a period exceeding 48 ho urs. Accordingly, order dated 30-06-2001 was passed by the Commandant treating t he petitioner under deemed suspension w.e.f. 04-06-2001 in terms of Rule 10(2) o f the Central Civil Services (Classification, Control and Appeal) Rules, 1965, f or short CCS (CCA) Rules, 1965. CBI after completion of investigation filed char ge-sheet against the petitioner and others in the Court of Chief Judicial Magist rate, Imphal, Manipur. On a transfer petition filed by the Commandant, the case was transferred to the Court of Chief Judicial Magistrate, Kamrup at Guwahati, w ho thereafter committed the case to the Court of Sessions Judge. On committal, t he case was registered as Sessions Case No.199(K)/2001. 7. Subsequently, the petitioner was released on bail. But as notice d above, since he was in custody for more than 48 hours, order dated 30-06-2001 was passed by the Commandant declaring that petitioner was under deemed suspensi on w.e.f. the date of his arrest. 8. g the suspension of the petitioner. Thereafter, the Commandant passed order dated 09-10-2003 revokin 9. Trial of the sessions case ended in the conviction of the petiti oner under sections 302/307/326/34 IPC vide the judgment and order dated 17-03-2 008 passed by the learned Additional Sessions Judge (FTC) No.4, Kamrup, Guwahati . Petitioner was sentenced to undergo imprisonment for life with fine of Rs. 500 0/- and in default of payment of fine, to undergo rigorous imprisonment for anot her period of six months for the conviction under section 302 IPC. He was also s entenced separately for his conviction under the other sections, all the sentenc es were directed to run concurrently. 10. Following his conviction, petitioner was taken into custody and while he was lodged in the Central Jail, Guwahati, the Commandant through the Ja il Superintendent enquired as to whether the petitioner was willing to sign on h is pension papers. 11. Against his conviction and sentence, petitioner filed appeal alo ngwith three others, who were also convicted and sentenced like him by the same judgment, before this Court, which was registered as Criminal Appeal No.63/2008. This Court by judgment and order dated 23-05-2012 allowed the appeal and set as ide the conviction and sentence. All the accused persons were held not guilty of the charges brought against them and they were acquitted of the same. 12. Petitioner has stated that after his acquittal by the High Court he was released from jail. Respondents were intimated about his acquittal but n o decision was taken for his reinstatement in service. Aggrieved, he has filed t he writ petition seeking a direction to the respondents for his reinstatement in service. WP(C) No.4780/2012 13. lved in the firing incident on 07-01-1995. Petitioner in this case was also one of the CRPF constables invo 14. He was placed under suspension. Thereafter, a departmental enqui ry was conducted against him. By order dated 30-04-1996 issued by the Commandant of the 119 Battalion CRPF, penalty of revision in rank was imposed on the petit ioner. 15. As in the previous writ petition, in this case also, petitioner was convicted in the criminal trial under sections 302/307/326/34 IPC vide judgm ent and order dated 17-03-2008 passed by the Additional Sessions Judge (FTC) No. 4, Kamrup, Guwahati and sentenced like the petitioner of W.P.(C) No.4779/2012. Following his conviction and sentence, order dated 14-09-2008 wa 16. s passed by the Commandant in exercise of powers conferred under Rule 19(i) and (ii) of CCS (CCA) Rules, 1965 readwith Rule 27 (CC) (i) and (ii) of CRPF Rules, 1955 dismissing the petitioner from service with immediate effect. 17. As noticed above, in Criminal Appeal No.63/2008 where petitioner was also one of the appellants, this Court had set aside the conviction and sen tence and held him not guilty of the charges framed against him. 18. Petitioner submitted a representation dated 25-08-2012 before th e Commandant informing him about his acquittal in appeal and requested him for a copy of the dismissal order since he did not receive any copy of the same. Rece iving no response, petitioner has filed the present writ petition seeking a dire ction for his reinstatement in service. WP(C) No.4781/2012 19. /2012. Facts in this case are identical with the facts of WP(C) No.4780 Stand of the Respondents 20. Respondents have filed identical affidavits in all the three cas es. It is stated that Md. Razak, petitioner in WP(C) No.4779/2012, was compulsor ily retired from service w.e.f. 05-06-2008 following his conviction. Petitioner was asked to complete his documentation for pension but he declined on the groun d that his appeal was pending before the High Court. On receipt of the High Cour t order dated 23-05-2012, the matter was forwarded to the higher authority. High er authority has informed that if the State has not filed further appeal against the High Court order and if the person concerned files an appeal against the or der of compulsory retirement, the same can be disposed of in accordance with the service rule readwith FR 54. Since the matter is sub-judice before the High Cou rt, action will be taken only after decision of the High Court. 21.
Legal Reasoning
In the affidavits filed in the other two cases, respondents have stated that penalty of dismissal from service was imposed on the petitioners fo llowing their conviction in the criminal trial. It is contended that petitioners should have exhausted the departmental channel by filing appeal under the CRPF Rules, 1955 before filing writ petition. It is averred that copies of the dismis sal order were communicated to the petitioners. Submissions Mr. S. Chamaria, learned Counsel for the petitioners submits tha 22. t the three petitioners were initially subjected to disciplinary proceeding foll owing which they were punished, though retained in service. However, following t heir conviction in the criminal trial, petitioners were ousted from service, com pulsory retirement in one case and dismissal in the other two cases. The basis o f the above punishment was the conviction order of the Criminal Court. However, in appeal, a Division Bench of this Court set aside the conviction and sentence and gave the petitioners a clean acquittal. Since the very foundation of the dis missal or compulsorily retired order was removed, there would be no justificatio n to continue with such orders of penalty. Consequently, petitioners are entitle d to reinstatement. He, therefore, submits that this Court may pass appropriate direction in this regard. Submissions of learned Counsel for the petitioners have been res 23. isted by Mr. J.M.A. Choudhury, Mrs. R. Borah and Mr. J. Deka, learned Central Go vernment Counsel appearing for the respondents in the three cases. They have ref erred to various provisions of the CRPF Act, 1949, CRPF Rules, 1955 and CCS (CCA ) Rules, 1965 to contend that after their acquittal, petitioners should have fil ed appeal before the departmental authorities as provided under the statute. Wit hout availing the alternative remedy, petitioners have sought to invoke the writ jurisdiction of this Court. According to them, this is not a case where alterna tive remedy can be avoided. They have referred to and relied on a decision of th e Hon’ble Supreme Court in the case of Union of India -Vs- VK Bhaskar reported i n (1997) 11 SCC 383. Discussions and Conclusion 24. Submissions made have been considered. 25. As already noticed, facts are not in dispute. The three petition ers had already faced disciplinary action following departmental proceedings. Af ter their conviction in the criminal trial, their services have been terminated, order of compulsory retirement in one case and orders of dismissal in the other two cases. 26. All the three petitioners had already suffered punishments depar tmentally following departmental action. By virtue of their conviction in the cr iminal trial, final penalty orders as indicted above were passed. Thus, the orde r of compulsory retirement and the orders of dismissal were based entirely on th eir conviction in the criminal trial. The very basis of their above punishments have now been removed since this Court in criminal appeal had set aside the conv iction and sentence of the petitioners and had given them a clean acquittal. The refore, in the opinion of the Court, the above punishments though might have bee n justified when imposed, would now no longer be justified following the acquitt al of the petitioners by the High Court. Therefore, petitioners have made out a case for reinstatement in service. 27. Learned Central Government Counsel have argued that both under t he CRPF Rules as well as under the CCS (CCA) Rules, 1965 there is provision for appeal but without preferring appeal, the petitioners have rushed to the Court. They have referred to the decision of the Hon’ble Supreme Court in the case of V K Bhaskar (supra) to contend that in the event of acquittal in appeal, the emplo yee can move for review of the dismissal order. They have submitted that respond ent No.2 i.e. the DIGP, CRPF Group Centre, Khanapara, Guwahati is the appellate authority and if appeals are filed by the petitioners, those will be given due c onsideration in accordance with law. 28. It is true that in view of the changed situation following their acquittal by the High Court, the petitioners ought to have approached the depar tmental authority first. But it is also a settled proposition that the bar of al ternative remedy is not an absolute bar without any exception. The writ petition s are pending before this Court since October, 2012. At this stage, asking the p etitioners to file appeal or revision before the departmental authority, in the contextual facts of the case, may only be a mechanical exercise. The respondents are aware of the situation and in their affidavits they have stated that since the matter is before the Court, action will be taken only after the decision by the Court. However, the Court is of the opinion that since the decision of reins tatement is an administrative one, it should be taken by the administrative auth ority. 29. Accordingly, respondent No.2 is directed to take on board the ca ses of the three petitioners for reinstatement and pass appropriate order(s) the reon in accordance with law, keeping in view the observations made above, within a period of three months from the date of receipt of a certified copy of this o rder. 30.