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2015 Supreme(Gau) 1347
Gauhati High Court
Ujjal Bhuyan, JJ.
Soneswar Roy - Appellant
Versus
Union of India & Ors. - Respondent
WP(C) No. 343 of 2012
Decided On : 12-10-2015
For The Appellant : Mr. S.S. Sharma, Ms. L. Sarma and Ms. F. Khan.
For The Respondents: Mr. S.C. Keyal.
Headnote:
Constitution of India, 1950 – Article 226 - CRPF Rules, 1955 - Rules 27, 27A, 27(c), 27(c) (1), 27(c)(4) - CRPF Act, 1949 – Sections 9, 9(d) and 11(1), 11, 18 - Dismissed from service - Act of disobedience/dereliction of duty/indiscipline - Evidence - Affidavit - According to petitioner 132 Battalion to which he was attached was posted at in State of and - He had performed his duties from to on at command post as mobile BPO - As desired by who was section Commander petitioner along with accompanied to company headquarters situated at - Who was immediate superior of petitioner had some work at company headquarters - Terrorists mingled with crowd and could not be identified - But they continued to fire towards petitioner - Making an on spot assessment that firing back would not be a wise decision as it would certainly lead to civilian casualties petitioner decided to rush back to command post to report about incident and to arrange reinforcement - Ultimately reinforcement arrived at spot and injured were evacuated - It was stated that immediately after incident reinforcement team under leadership of Assistant Commandant reached spot and evacuated injured – Held, Petitioner informed him that terrorists had fired and had injured his associates at - He clearly deposed that attackers had fired at petitioner and due to firing three civilians sustained injuries - None of three personnel opened fired considering thick crowd in area - In his questioning by Enquiry Officer he reiterated above facts - Now from above it becomes evident that evidence of became very crucial as he was a material witness - In fact he was most important witness being an eye witness to entire incident - Moreover it was because of that petitioner and other personnel had to go to company headquarters - It is a salutary principle that a witness whose evidence is essential to unfolding of narrative should be called to depose in enquiry - Absence of such a material witness would seriously affect truth of prosecution case - Petitioner cannot be faulted for that - Regarding non-adducing of as a witness appellate authority found fault with petitioner for not presenting him as a witness ignoring fact that it is disciplinary authority who has to prove charge and therefore burden was on disciplinary authority to present as a witness - Evidently petitioner was not on duty therefore question of any dereliction of duty does not arise - In view of above deliberation on third issue is not necessary and writ petition is decided in favour of petitioner – Petition Allowed.
2. Petitioner was a Sepoy /General Duty in the Central Reserve Police Force (CRPF). At the relevant point of time, petitioner was attached to 132 Battalion, CRPF which was stationed at Srinagar in the State of Jammu and Kashmir. Following a departmental proceeding, petitioner was dismissed from service vide order dated 1.2.2011 issued by the Commandant, 132 Battalion, CRPF as the disciplinary authority, which order was upheld in appeal by the Appellate Authority.
3. Relevant facts leading to the filing of the writ petition may be briefly stated at the outset.
4. According to the petitioner, the 132 Battalion to which he was attached, was posted at Srinagar in the State of Jammu and Kashmir. He had performed his duties from 8 a.m. to 11 a.m. on 16.3.2010 at the command post as mobile BPO. As desired by Havildar Onkar Ram, who was the section Commander, petitioner along with Sepoy Basanta Kumar Medhi accompanied Onkar Ram to the company headquarters situated at Dashnami Akhara. Onkar Ram, who was the immediate superior of the petitioner, had some work at the company headquarters. After completion of the work, the three of them were returning back with petitioner at the front followed by Basanta Kumar Medhi in the middle and by Onkar Ram at the rear. After passing through the Maulana Ajad Road, the three of them entered Kukar Bazar lane where they were fired upon by unknown terrorists from close range taking advantage of the large crowd. As a result Onkar Ram and Basanta Kumar Medhi sustained bullet injuries and collapsed on the spot. Because of gun firing, there was commotion and people started running helter skelter. In such a situation, it became impossible for the petitioner to return fire. The terrorists mingled with the crowd and could not be identified. But they continued to fire towards the petitioner. Making an on the spot assessment that firing back would not be a wise decision as it would certainly lead to civilian casualties, petitioner decided to rush back to the command post to report about the incident and to arrange reinforcement. Ultimately reinforcement arrived at the spot and the injured were evacuated. Search operations were carried out to apprehend the terrorists. Later on Basanta Kumar Medhi succumbed to his injuries.
5. A charge memo dated 22.9.2010 issued by the Commandant was served on the petitioner. Petitioner was informed that an enquiry would be held against him under rule 27 of the CRPF Rules, 1955. He was further informed that enquiry would commence 48 hours after the allegations were read over to him. As per the imputation of allegations attached to the charge memo, it was alleged that petitioner had committed an act of disobedience/dereliction of duty/indiscipline when he left behind his injured colleagues with arms in an unconscious state at Kukar Bazar on 16.3.2010 and fled to the command post at Lal Chowk, thus behaving in a cowardly manner. Details of the allegations in support of the charge were furnished as Annexure 2 to the charge memo. It was stated that immediately after the incident reinforcement team under the leadership of Shri G. Orao, Assistant Commandant reached the spot and evacuated the injured. A list of documents and a list of witnesses were also enclosed to the charge memo.
6. Initially, the Enquiry Officer Shri Pratap Singh, Assistant Commandant examined the petitioner whereafter the disciplinary proceeding commenced. Evidence of the listed witnesses were recorded. At the conclusion of the enquiry the Enquiry Officer submitted his report to the disciplinary authority on 15.11.2010. As per the enquiry report, the charge against the petitioner stood fully proved.
7. Thereafter, the disciplinary authority passed the impugned order dated 1.2.2011 agreeing with th
