The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK OJC No.3444 of 2002 Abhimanyu Behera …. Petitioner(s) Mr. Sakti Sekhar, Adv. The Commandant-83 BN, CRPF, Assam and and Ors. -versus- …. Opp. Party (s) Mr. Chandrakanta Pradhan, CGC CORAM: DR. JUSTICE S.K. PANIGRAHI ORDER 02.01.2024 Order No. 34 1. This matter is taken up through hybrid arrangement. 2. The Petitioner has filed this Writ Petition for quashing of the orders dated 15.03.2001 under Annexure-1 passed by the Opposite Party No.1/ Commandant-83 BN, CRPF, Assam, 04.06.2001 under Annexure-2 passed by the Opposite Party No.2/ Deputy Inspector General of Police, CRPF, Hyderabad and 04.01.2002 under Annexure- 3 passed by the Opposite Party No.3/ Inspector General of Police, CRPF, Hyderabad. 3. Facts of the case as narrated in the Writ Petition are that initially the Petitioner was appointed in the year, 1983 as Sepoy and joined in the office of the Commandant, CRPF, Bhubaneswar. After completion of training, he was transferred to different places and lastly he was transferred to 83-BN and joined in April, 1994 at Manipur. In the year, 2000, the 83-BN shifted to Tripura. Signature Not Verified
Legal Reasoning
Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 21-Feb-2024 15:01:14 Page 1 of 11 // 2 // 4. The Petitioner was promoted to the post of L/NK in the year, 1994. During the last 17 years of service, there was no allegation whatsoever against the present Petitioner from any quarter. Rather, the performance of the Petitioner was quite satisfactory. While he was discharging his duty as an L/NK at Agartala, he was assigned the duties of KOTE on 07.06.2000. 5. While the matter stood thus, unfortunately, on 28/29.07.2000, three magazines and sixty rounds of SLR were alleged to have been stolen from C.T. Jaspal Singh and C.T. L. Biswas. Accordingly, the said two Sepoys were directed to submit report to the authorities regarding dislocation of three magazines and sixty rounds of SLRs. 6. It is also stated that though the three magazines and sixty rounds of SLRs were missing on 29.07.2000 in respect of one Magazine and twenty rounds of SLRs of C.T.L. Biswas, but the said Magazines and rounds were not found in the barrack. 7. During the course of investigation, HC DVR K.P. Swamy had assured in presence of other personnel on 02.08.2000 that he can provide three magazines for Rs.4,000/- from the local sources. Subsequently, it was observed that the local boy named Shyamalal Das was also involved in the incident with HC-OVR K.P. Swamy and both had given assurance in presence of Spy Personnel. But, subsequently, K.P. Swamy refused to accept the allegations. Accordingly, F.I.R. was lodged and the aforementioned incident revealed from the letter No.4.x- 12/2000 EC-II dated 10.08.2000 of the Signature Not Verified Commandant. Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 21-Feb-2024 15:01:14 Page 2 of 11 // 3 // 8. Due to non-availability of the said three Magazines and sixty rounds of SLRs, the Commandant directed for re-checking the KOTE. Accordingly, re-checking was taken place on 10.08.2000. During the course of search of the KOTE on 11.09.2000, three Magazines were found in the KOTE inside the Box and 60 rounds of SLRs were found in the Camp area Latrine. 9. The HC MVR Murty after completion of his leave joined in the company in the month of July, 2000 and after joining he demanded gratification from the Petitioner and he expressed his inability to meet his demand. So, he became vindictive and threatened the Petitioner time and again to oust the Petitioner from the service. 10. The order passed by the Disciplinary Authority against the Petitioner, he had preferred an appeal before the Appellate Authority. The Appellate Authority also without applying his mind has rejected the prayer in a mechanical manner vide order dated 04.06.2001 which is liable to be set-aside. He further preferred revision against the order of the Appellate Authority before the Inspector General of Police. During pendency of the said Revision, the Petitioner preferred O.J.C. No. 4559 of 2001 before this Court challenging the order of the Disciplinary Authority as well as the Appellate Authority. This Court had disposed of the said Writ Petition vide order dated 12.02.2002 with a direction to the revisional authority to dispose of the revision. 11. Pursuant to the order of this Court, revisional authority also rejected Signature Not Verified the revision petition filed by the Petitioner in a mechanical manner Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 21-Feb-2024 15:01:14 Page 3 of 11 // 4 // which is unsustainable in law. Therefore, the Petitioner is constrained to approach this Court by filing this Writ Petition.
Legal Reasoning
12. Learned counsel for the petitioner submits that in order to harass the Petitioner, Sri M.V.R. Murty somehow managed to take the three Magazines and sixty rounds from the bed of C.T. Jaspal and L. Biswas and kept inside the KOTE as he had free access to the КОТЕ being KOTE SOS. 13. It is also submitted that during verification, though the three magazines and sixty rounds of SLRs were found from the KOTE and the Latrines but the Petitioner was in no way responsible for the so called theft due to the reasons as stated above. 14. After missing of SLRs and rounds, the Petitioner was placed under suspension pending disciplinary proceeding. The Petitioner was served with the memorandum of charge dated 10th October, 2000 indicating therein three articles of charge, i.e. charge No.I, II and III. 15. The procedure was not maintained by the Opposite Parties in the matter of initiation of proceeding but practically the principles of natural justice were violated, because the present petitioner was not allowed to defend himself and he was to admit by force that he committed theft alleged to have been committed on 29.07.2000. 16. It is also submitted that after the suspension the so called proceeding was initiated and the petitioner was compelled to admit that he had taken three magazines and sixty rounds of SLRs. Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 21-Feb-2024 15:01:14 Page 4 of 11 // 5 // 17. By way of the order dated 21.10.2000, one N.K. Jaiswal, Deputy Commandant was appointed as Inquiry Officer to inquire into the charges. 18. The Inquiry Officer submitted the inquiry report before the Disciplinary Authority. After following the procedures, order of dismissal was issued by the Opposite Party No.1 vide order dated 15th March, 2001. 19. It is crystal clear from the impugned order passed by the Opposite Party No.1 in dismissing the Petitioner from service that the order is clear reflection of non-application of mind because admittedly, there was no shortage in the KOTE, so the question to meet the shortage in the KOTE, the so called theft was committed by the Petitioner is not only non-application of mind but also the story borne out of imagination. 20. It is also submitted that during verification of KOTE though three magazines were recovered but practically there was no shortage in the KOTE. So, there was no necessary to keep the three magazines inside the KOTE by the Petitioner who was the KOTE in-charge and obviously the action of keeping three magazines inside the KOTE by somebody was only to oust the present petitioner from the service. 21. The articles/charges framed by the Opposite Parties are, the petitioner on intervening night on 28/29.07.2000 lifted three magazines and sixty rounds of SLRs from the bed of Jaspal and Biswas to make good deficiency of Arms held for the charges. But, Signature Not Verified even though there was no deficiency in the KOTE, the charges Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 21-Feb-2024 15:01:14 framed against the petitioner is clear non-application of mind and Page 5 of 11 // 6 // subsequent action in dismissing the present petitioner relying on the so called charges is untenable in law. 22. It is further submitted that during the proceeding though the Petitioner was allowed in pen and paper to show cause and to cross- examine the prosecution witnesses, but, the Petitioner was not allowed to defend him or to submit any show cause reply nor to cross-examine any prosecution witnesses as he was threatened by the Commandant who is the disciplinary authority to admit that he had committed the theft. Hence, there is no occasion to submit the defence statement nor to cross- examine the prosecution witnesses. That apart, the Commandant was directly involved in the issue. Another facet of the matter is that nobody will dare to give evidence in favour of the present Petitioner, as a result of which, the proceedings initiated against the Petitioner is clearly vitiated, due to non-compliance of statutory provision. 23. It is also submitted that despite the oral submission made by the Petitioner regarding his innocence for the so-called theft, he was compelled by the Commandant to admit that he had taken three magazines and sixty rounds of SLRs kept inside the KOTE to fill up the vacancy. But, practically there was no shortage in the KOTE. 24. It is further submitted that there was no whisper against the present Petitioner either by the Inquiry Officer or the Disciplinary Authority regarding utilization of the theft materials (three Magazines and sixty rounds of SLRs) in somewhere else except to meet the deficiency of Signature Not Verified the KOTE. There was also no practical shortage in the KOTE. Hence, Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 21-Feb-2024 15:01:14 Page 6 of 11 // 7 // the action of the authorities in dismissing the Petitioner from service is clearly non-application of mind and colourable exercise of power. 25. He further submits that there has been no deficiency in KOTE or had there been any scope to utilize the theft material, the presumption could drawn that the materials were taken away by the petitioner to utilize in the aforesaid purpose. The materials cannot be taken away by the present petitioner, and the Opposite Parties while dismissing the service had not taken into consideration the intention of the present petitioner for committing so called theft. So, the action taken by the Opposite Parties in dismissing the Petitioner from service is liable to be set-aside. 26. Admittedly, there was some dispute between the Petitioner and Head Constable Sri N.V.R. Murty who had free access to the KOTE being SOS and hence, the theft Magazines and SLRs must be kept inside the KOTE by Sri Murty in order to oust the present Petitioner from the service somehow or other. 27. It is also submitted that whenever the Magazines were recovered from the KOTE and SLR Rounds were recovered from inside the Latrine, the present Petitioner voluntarily informed the Commandant regarding the availability of the theft materials inside the KOTE which clearly established the bonafide attitude/intention of the present Petitioner. That apart, there was no single scrap of paper showing deficiency in the KOTE. Therefore, the finding of the Inquiry Officer as well as the Disciplinary Authority to meet the Signature Not Verified deficiency to the effect that the Petitioner has committed the so called Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 21-Feb-2024 15:01:14 theft is completely erroneous. Page 7 of 11 // 8 // 28. It is further submitted that there is no evidence against the present Petitioner to prove that he had committed theft except the statement of Sri Bardohi, Constable. As the Petitioner had no occasion to cross- examine the prosecution witnesses, the statement of the Bardohi cannot be relied upon. 29. Thereafter, the Petitioner was placed under suspension pending disciplinary action vide Commandant 83 BN. CRPF office order Memorandum No.P.VIII-5/2000- EC.II dated 10/8/2000. Sri N.K.Jaiswal, Dy. Commandant 83 BN. CRPF was appointed as Enquiry officer vide order dated 10.10.2000 to inquire into the charges framed against the Petitioner vide order dated 21.10.2000. 30. During the course of Departmental Inquiry, the charges framed against the Petitioner were proved beyond doubt and accordingly, the Petitioner was dismissed from service vide Commandant 83 BN. CRPF office order No- P.VIII-4/2000-EC.II dated 15.3.2001 following the provisions made under the Statutory Rules. 31. Being aggrieved, the petitioner preferred an appeal before the DIGP. CRPF, Hyderbad. The Opposite Party No.2/ DIG of Police, CRPF Hyderabad, after careful consideration of the case rejected the appeal being devoid of merit vide office order No-R.XIII-9/2001-Estt-3 dated 04.06.2001. Being aggrieved, the Petitioner again preferred a revision before the Inspector General of Police, Southers Sector, CRPF which was also dismissed vide order dated 04.01.2002. 32. It is also submitted that the previous clean record of service has no Signature Not Verified relevancy to the present crime/offence committed by the Petitioner. Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 21-Feb-2024 15:01:14 The Petitioner was assigned with the duties of Kote NCO on Page 8 of 11 // 9 // 07.06.2000 for one month. But due to administrative reasons he could not be changed and was directed to continue as such for another one month. However, it has no relevancy to the crime which he had committed. 33. He further submits that the term ’One Man’ used by the Petitioner was none else except the Petitioner himself, who had theft/lifted 2 SLR Magazines and 40 rounds in respect of No.911130489 Ct. Jaspal and 1 SLR Magazine and 20 rounds in respect of No.870830159 Ct. Laxman Biswas from their beds to make good the deficiency of SLRS held on his charge. Since the SLRs and rounds were lifted/theft by the Petitioner on the intervening night of 28/29-7-2000 and kept in the Coy Kote by himself, the same could not be traced out even after making extensive search and Game were found/recovered from the Coy Kote on 11.8.2000 during physical layout of Kote. 34. It is also submitted that the Petitioner should have made complaint in writing if there was such illegal demand from any one. Moreover, during the course of Departmental Inquiry, the petitioner has admitted his fault on 06.11.2000, 15.01.2001 before the Inquiry Officer. In fact, HC M.V.R. Murty was performing the duties of Kote S.O. and coy CHM E/83 CRPF and the Petitioner as Kote NCO. The CHM is not supposed to handle the Arms/Amns in the Kote. The petitioner has also admitted during the course of his statement on 15.01.2001 before the Inquiry Officer that inspection party reached Coy location (E / 83) on 28.7.2000 for quarterly inspection. The Signature Not Verified petitioner himself has counted the SLR Magazines and found 3 Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 21-Feb-2024 15:01:14 Page 9 of 11 // 10 // magazines missing and to make good the deficiency of the same, he lifted or disclosed such facts at any stage which he should have done. 35. It is also submitted that the Petitioner was given ample opportunity to defend his case and the disciplinary authority after applying his mind judiciously served the charge-sheet based on documentary evidence. The Petitioner was also given full opportunity to cross- examine the P.Ws. including No.820620163 HC M. C. Bardolni but he refused to cross- examine. The Petitioner did not tell anyone regarding the fact of pressure by HC M.V.R. Murty which he should have done. 36. On perusal of the orders dated 15.03.2001 under Annexure-1 passed by the Opposite Party No.1/ Commandant-83 BN, CRPF, Assam, 04.06.2001 under Annexure-2 passed by the Opposite Party No.2/ Deputy Inspector General of Police, CRPF, Hyderabad and 04.01.2002 under Annexure-3 passed by the Opposite Party No.3/ Inspector General of Police, CRPF, Hyderabad and taking into account the submissions made by the learned counsel for the Parties, this Court is of the view that the Petitioner has himself admitted his fault before the Inquiry Officer as well as before the Disciplinary Authority during the course of personal interview. The statement of the Petitioner dated 15.1.2001 are quite clear and sufficient in this regard. The Petitioner was given ample opportunity to defend his case at each and every stage of Departmental Inquiry. He was also given full opportunity to cross-examine the P.Ws. The Petitioner has not only Signature Not Verified admitted his fault before the Disciplinary Authority and Inquiry Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 21-Feb-2024 15:01:14 Officer but he has also accepted his fault in the presence of Coy Page 10 of 11 // 11 // personnel as is evident from the proceedings of Departmental Inquiry. 37. In such view of the matter, the Petitioner has failed to make out a case. Accordingly, this Writ Petition is dismissed being devoid of merit. B.Jhankar ( Dr. S.K. Panigrahi) Judge Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 21-Feb-2024 15:01:14 Page 11 of 11