High Court · 2012

Heard Mr. J. Roy, learned counsel appearing for the petitioner a s well as Mr. D. Baruah, learned counsel CGSC appearing for all the respondents. The present writ petition has been filed challenging the order o f dismissal dated 16.03.2001 issued by the Commandant, 114 Bn., CRPF and appel late order dated 13.06.2001 passed by the Deputy Inspector General of Police (DI G), C.R.P.F Jamshedpur dismissing the appeal filed by the petitioner. The only g round raised in course of the hearing was that the aforesaid penalty of the dism issal from service was disproportionate to the charge proved against the petitio ner. In view of the above, only a few facts of the case as may be relevant for t he purpose of disposal of the writ petition, may be stated as follows. [2] The petitioner, who was serving as a Constable in the C.RP.F was served with the Memorandum of Charge dated 23.11.2000 which stated, amongst oth ers, as follows: (cid:28) That the said No.90310755 CT/GD Mukesh Kumar Tyagi of D/114 Bn C.R.P.F. while functioning as Constable/GD committed an act of misconduct and indiscipline in his capacity as a member of the Force under 11(1) of the C.R.P.F. Act, 1949 in t hat with utter disregard and showing insubordination with his seniors, he assaul ted and picked up quarrel with No. 82063025 HC/GD Shivanand Mishra on 13/11/200 0 at about 1945 hours in ORs Mess D/114 Bn C.R.P.F while under the influence of liquor which is prejudicial to good order and discipline of the Force (cid:29). The accompanying Statement of imputation of misconduct in suppor t of the Article of Charge stated as follows: (cid:28) That the said No.903010755 CT/GD Mukesh Kumar Tyagi of D/ 114 Bn C.R.P.F, whil e functioning as such committed an act of gross misconduct in his capacity as a member of the Force in that he came to D/ 114 ORs Mess under the influence of l iquor and assaulted/manhandled his senior No.82063025 HC/GD Shivanand Mishra who was taking his dinner showing utter disregard to his senior and acting in compl ete insubordination. No. 903010755 CT/GD Mukesh Kumar Tyagi caught his senior co lleague HC/GD Shivanand Mishra by hair, kicked at him and pulled him down. No. 8 2063025 HC/GD Shivanand Mishra got up and tried to retaliate leaving his dinner dish aside. In the meantime line sentry No-91310111 CT/GD Vithal Kukade interven ed and disengaged them. To retaliate HC/GD Shivanand Mishra went to line and pic ked up his official Carbine Butt No.38 Body No.15404024 and resorted to fire fro m carbine which created unpleasant scene in the Coy camp. Thus No.903010755 CT/G D Mukesh Kumar Tyagi committed an act of gross negligence under Section 11(1) o f C.R.P.F, Act, 1949 read with Rule 27 of the C.R.P.F. Rules, 1955. (cid:29) [3] An enquiry was duly conducted as per rules. The Enquiry Officer submitted the enquiry report on 22.02.2001 holding that the charges against the petitioner were proved. On the basis of the aforesaid enquiry report, the Discip linary Authority issued the order dated 16.03.2001 holding that the petitioner is not fit to continue in service and was dismissed from service by invoking S ection11(1) of C.R.P.F Act, 1949 read with Rules 27 of the CRPF Rules, 1955. Thereafter, an appeal was preferred by the petitioner, which was rejected by the Appellate Authority, i.e. the Dy. Inspector General, C.R.P.F, J amshedpur vide order dated 13.06.2001. [4] As mentioned above, the main ground of assailing the impugned di smissal order is that the penalty of dismissal from service was disproportionate to the charge proved. The petitioner has not raised any issue regarding the cor rectness of the charge proved against him. As regards the disproportionality of the penalty imposed, the learned counsel appearing for the petitioner has drawn attention of this Court to the order dated 13.06.2001 passed by the Appellate A uthority, i.e. the Dy. Inspector General, C.R.P.F, Jamshedpur. The relevant port ion of the said order is reproduced herein below: (cid:28)4 (c) The appellant caught hairs of HC Shivanand Mishra and kicked at him and p ulled him down which was proved during the course of DE. As per medical report t he appellant was found under the influence of liquor. The appellant himself also pleaded that he had consumed liquor. Of course, Ex-HC Shivanand Mishra was the main source of the incident of 13.11.2000, as he was abusing the appellant insi de the mess while he was taking food. The appellant had transgressed his limit by assaulting with the Hav. Shivanand Mishra straightaway, the appellant could h ave brought the matter to the notice of senior officers i.e. Platoon Commander a nd the Coy s Commander and dealt with him min a civilized manner. Assault of a f ellow personnel of the Force and that too senior to the appellant in rank and a ge proves rashness on the part of the appellant. This is indicative of the ind iscipline nature of the appellant. (cid:29)(emphasis added). [5] Learned counsel appearing for the appearing for the petitioner s ubmits that the petitioner had assaulted his superior HC/GD Shivanand Mishra aft er he was abused by the said Shivanand Mishra which stands amply supported by th e finding and the material available on records as reflected in the order of the Dy. Inspector General, C.R.P.F, Jamshedpur as quoted above. It is the contentio n of the petitioner that the petitioner assaulted his superior Shivanand Mishra only after he was abused and thus provoked. In other words, the assault was made in retaliation to the abuse made by the said Shivanand Mishra and it was as a result of the provocation by the said Shivanand Mishra. Therefore, it has been submitted that since the petitioner assaulted the said Shivanand Mishra after be ing provoked and as such, the said Shivanand Mishra being responsible for the ep isode, the penalty of dismissal from service imposed on the petitioner is dispro portionate to the petitioner. [6] Countering the above submission of the petitioner, the learned c ounsel for the respondents submits that though the said Shivanand Mishra HC/GD m ay have provoked the petitioner, it was not of grave nature which warranted such a violent behaviour from the petitioner a subordinate. The learned counsel for the respondents has drawn attention of this Court to the statement made by one i ndependent witness No.5, Bitul Kukude, who stated that at about 1920 Havaldar S N Mishra came to the mess and was served food by the Mess Constable. He stated t hat Havaladar SN Mishra was abusing constable Mukesh Tyagi while eating food an d the said witness Bitul Kukdu tried to convince Mishra not to abuse anyone and go away from there but he did not listen and started giving more abuses. By th at time, the petitioner Constable Mukesh Tyagi came and asked Mishra to whom he was abusing. The petitioner then caught hold of the hair of Mishra and threw hi m on the floor and kicked once on his back. Mukesh got up to hit back but could not as they were separated by Bitul Kukude. Learned counsel for the respondents submits that only when petitioner came later and learnt that the said Mishra w as abusing him, the petitioner assaulted him. There is no evidence to support th at the petitioner had acted on a sudden and grave provocation by the said Shivan and Mishra HC/GD. Learned counsel for the petitioner submits that the petition er was being subjected to constant abuse by the said Shivanand Mishra HC/GD whi ch led him to assault the said Head Constable. However, even if the petitioner was subjected to abuse by the said Head Constable, Shivanand Mishra, there is n o material to indicate that the said abuse was grave and highly provocative so a s to warrant such a retaliatory assault by the petitioner. There is no fixed judicial parameter to determine whether any pe [7] nalty is disproportionate to the charge proved and each case has to be decided o n the peculiar facts and circumstances obtaining in each case. In the present c ase as discussed above what transpires from material on records is that there wa s no sudden and grave provocation from the Shivanand Mishra, Head Constable whic h compelled the petitioner to assault Shivanand Mishra in the manner described a bove. There is nothing to indicate that the abuse by the said Head Constable was highly provocative or inflammatory. There is nothing on material to indicate th at the petitioner assaulted the superior officer on the spur of the moment being blinded by rage because of grave provocation. It is for the petitioner to show that considering the nature of the charge, the penalty of dismissal was shocking ly disproportionate, which in the opinion of the Court, under the facts and cir cumstances as discussed above, the petitioner has failed to do so. Court would i nterfere with the penalty only when the punishment is so disproportionate to t he proved offence that it shocks the conscience of the Court or is so perverse or irrational that it cannot be allowed to stand.[See Union of India -vs- Bodup alli Gapalaswami: (2011) 13 SCC 553]. The proved charge is that the petitioner pulled the hair of his superior, pulled him down and kicked him. It was not an assault by way of self defence or by way of retaliation under grave and sudden provocation. Mere provoc ation is not enough to indulge in the aforesaid act of violence. The provocation ought to have been sudden and grave so as to justify any such assault. In the o pinion of the Court the proved charge is grave enough to justify such a punishme nt. The penalty can not be said to be outrageous or irrational or perverse. The petitioner was serving in an organization where maintenance of discipline is of paramount importance. The finding of the Appellate Authority that the petitioner had crossed the limit by assaulting his superior officer instead of reportin g to the superior or that he could have brought to the notice of the higher auth orities to sort out the undisciplined behaviour of the said Shivanand Mishra, ca n not be said to be unreasonable. Considering the above, this Court is of the view that there is n o merit in the present writ petition and accordingly, the same stands dismissed .