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2017 Supreme(Gau) 378
IN THE GAUHATI HIGH COURT (ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
HRISHIKESH ROY, J.
Shri Tapash Chandra Roy, S/O Adhar Chandra Roy – Petitioner
Versus
Union of India, Represented by the Secretary to the Govt. of India, Ministry of Home Affairs, New Delhi - Respondents
WP(C) No. 4034 OF 2010
Decided On : 11-05-2017
For the Petitioner:Mr. U.K. Nair (Sr. Adv.), Mr. B. Sarma, Mr. A. Chetry, Ms. M. Dutta, Advocates
For the Respondent:Ms. B. Sarma, CGC, Advocate
Headnote:
Central Industrial Security Force Rules, 2001 - Rule 33(1) - Service - Suspension - Petitioner was a Constable - Charge memo was issued against the delinquent - Held, In the above circumstances, while declaring that the DP was conducted in a reasonable manner with due opportunities to the delinquent, the findings vis-à-vis the Charges, are declared to be untenable - Therefore, Court finds enough justification to interfere with the major penalty inflicted upon the delinquent. Following such conclusion, the matter is remitted back to the disciplinary authority for deciding on another penalty under Rule 34 of the CISF Rules, which will enable the delinquent to remain in service. The period from the date of dismissal to the reinstatement for the delinquent should however be treated as absent from duty without back wages - But this period may be notionally counted for the purpose of pension and superannuation benefits - Case allowed
1. Heard Mr. U.K. Nair, the learned Sr. counsel appearing for the petitioner. The learned Central Govt. Counsel (CGC) Ms. B. Sarma represents the respondents.
2. The petitioner was a Constable in the Central Industrial Security Force (CISF) and his unit was deployed at the RDS Sector, ONGC, Nazira. Following the incident on 10.12.2007, in contemplation of a Disciplinary Proceeding (DP), the Constable was suspended on 13.12.2007 (Annexure-2) under Rule 33(1) of the Central Industrial Security Force Rules, 2001 (hereinafter referred to as the “CISF Rules”). Then the charge memo dated 22.12.2007 (Annexure-4) was issued against the delinquent, whereby response was sought on the following article of charges:-
ARTICLE OF CHARGE-I
“That No.983170138 Constable T C Roy of RDS sector, CISF Unit ONGC Nazira who was in possession of Arms & Ammunitions for the purpose of duty at Bogidol Magazine out post alongwith others, had threatened and pointed his AK-47, (Butt No.113) on HC/GD Panjab Patil who was on duty at Main gate, Morcha No.1 under the influence of liquor and compelled him to open the gate on 10.12.07 at about 2210 hrs and thereafter deserted from Bogidol Magazine out post with his Rifle, AK-47, Butt No.113 and 120 rounds without any intimation or permission of the Competent Authority. Thus, he had created panic on his colleagues and Post Commander of the above post with the help of fire arms. The above act on the part of No.983170138 Constable T C Roy amounts to gross misconduct, detrimental to the Force discipline and an act unbecoming of a good member of the Armed Force of the Union like CISF. Hence the charge.”
ARTICLE OF CHARGE-II
“That No.983170138 Constable T C Roy of RDS sector, CISF Unit ONGC Nazira after deserting the Bogidol Magazine outpost on 10.12.07 at about 2210 hrs with his Rifle, AK-47, butt No.113 and ammunitions, had hidden in an abandoned room of Police Colony under the influence of liquor duly loaded the said Rifle with ammunition with position of fire. His such act spreaded out panic on the troops of RDS Sector including Sector Commander. He was searched and managed to be taken out from the abandoned place and his arms & ammunitions were separated from him to avoid any untoward incident after great efforts taken by CISF personnel under supervision of Sector Commander. Thus, he has exhibited gross misconduct and an act unbecoming of a good member of the Armed Force of the Union like CISF. Hence the charge.”
ARTICLE OF CHARGE-III
“That No.983170138 Constable T C Roy of RDS sector, CISF Unit ONGC Nazira who was detailed for duty at Bogidol Magazine outpost of RDS Sector was found drunk excessively in the night of 10.12.07 and put the CISF troops of RDS sector in trouble. As such, he was taken to ONGC Sivasagar Hospital and admitted for treatment. According to Medical report, Final Diagnosis:- “Alcohol Intoxication” thus his such act has defamed the image of the Force. The above act on the part of No.983170138 Constable T C Roy amounts to gross misconduct, and an act unbecoming of a good member of the Armed Force of the Union like CISF. Hence the charge.”
3. An enquiry was then ordered and the charges were found to have been proved by the Enquiry Officer, as can be seen from the Enquiry Report dated 14.08.2008. The finding was then considered and after weighing the gravity of the misconduct, the punishment of dismissal from service was ordered against the delinquent on 17.09.2008 (Annexure-7). The resultant appeal filed by the constable was dismissed by the Appellate Authority on 24.01.2009 (Annexure-8) and the Revisional Authority too, upheld the punishment, under his order of 31.08.2009 (Annexure 9).
PETITIONER’S SUBMISSION
4.1 Assailing the harsh punishment, Mr. U.K. Nair, the learned Sr. counsel submits that while the delinquent can’t escape the consequences of being intoxicated but at the same time, there is no believable evidence on the more grievous charge relating to threatening the guard cons
