Allowed

Ex-Hc/Driver, Force No. 850863303 Kanhaiya Lal v. the Union of India and Ors.

Gauhati HC15 Feb 2018WP(C)/4524/2010

Case brief

AI extract

What is this about?

Petitioner challenged compulsory retirement for driving under influence causing minor vehicle damage. Court quashed order due to procedural flaws, including lack of presenting officer, denied cross-examination, and conflicting witness evidence. Petitioner reinstated without back wages.

What did the court decide?

Compulsory retirement order quashed; petitioner reinstated in service without back wages; disciplinary authority permitted to re-conduct inquiry within 6 months.

Ex-Hc/Driver, Force No. 850863303 Kanhaiya… — Pension and Retirement Benefits | Gauhati HC (2018)

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Page No.# 1/5

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GAHC010199342010

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WP(C) 4524/2010

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1:EX-HC/DRIVER, FORCE NO. 850863303 KANHAIYA LAL

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KANHAIYA LAL S/O SHRI PHUNDI LAL VILL and P.O. DERI, DIST. TIKARAM GARH STATE-MADHYA PRADESH PRESENTLY RESIDING AT GROUP CENTRE, CRPF GUWAHATI

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VERSUS

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1:THE UNION OF INDIA and ORS REP. BY THE SECRETARY, MINISTRY OF HOME AFFAIRS, NEW DELHI.

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2:THE DIRECTOR GENERAL CENTRAL RESERVE POLICE FORCE CENTRAL GOVERNMENT OFFICE COMPLEX NEW DELHI.

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3:THE DEPUTY INSPECTOR GENERAL OF POLICE CENTRAL RESERVE POLICE FORCE GUWAHATI RANGE.

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4:THE COMMANDANT 60 BATTALION CENTRAL RESERVE POLICE AT LOCATION

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BEFORE

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THE HON’BLE MR JUSTICE HRISHIKESH ROY

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For the petitioner : Mr. R. Mazumdar,

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Mr. A. Kumar,

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Mr. D. Deka. …. Advocates.

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For the respondents : Ms. R. Devi … CGC.

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Date of hearing & judgment : 15.02.2018

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JUDGMENT AND ORDER (ORAL)

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Heard Mr. R. Mazumdar, the learned Counsel appearing for the petitioner. The respondents are represented by Ms. R. Devi, the learned CGC.

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The petitioner is a former Head Constable (Driver) of the 60 Battalion of the CRPF and the challenge here is to the order dated 30.3.2010 (Annexure-C) whereby, the penalty of compulsory retirement was ordered against the Head Constable. He also challenges the order dated 7.7.2010 (Annexure-E), through which the delinquent’s Appeal was rejected by the DIG of CRPF.

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The Disciplinary Proceeding was initiated with the Charge Memo dated 29.7.2009 under Rule 27 of the Central Reserve Police Force Rules, 1955 (hereinafter referred to as “the CRPF Rules”). The Article of Charges being relevant, the same are extracted hereinbelow for the ready reference:

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“ARTICLE-I

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That No.850863303 Kanhaiya Lal of HQ/60 Bn. CRPF, while functioning as HC/Dvr. has committed a serious misconduct in discharge of his duties in his capacity as a Member of the Force under Section 11(1) of CRPF Act, 1949 in that while on Govt. duty, he was driving the vehicle Regn. No. MH-14-V-7591 TATA-407, Turbo Model 2002 on 03/01/2009 in which he was found under the influence of alcohol and in highly intoxicated state”

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“ARTICLE-II

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That No.850863303 Kanhaiya Lal of HQ/60 Bn. CRPF, while functioning as HC/Dvr. has committed a serious misconduct in discharge of his duties in his capacity as a Member of the Force under Section 11(1) of CRPF Act, 1949 in that while performing the official duties in the capacity of Driver of Govt. Vehicle, on 03/01/2009 he drove the Vehicle Regn No. MH-14-V-7591 TATA-407, Turbo Model 2002 in a negligent manner under influence of alcohol due to which he lost control of the vehicle and the vehicle fell down into 75 feet deep ditch which resulted in the loss of Govt. property (vehicle) to the tune of RS.12,830/-”

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Responding to the Charge Memo, the delinquent in his reply of 6.8.2009 (Annexure-A) explained the circumstances of the accidental damage to the truck driven by him. The sudden appearance of a cow on the wet and slippery hilly road and the attempt of the driver to protect the vehicle from turning turtle were the factors mentioned by the delinquent. The charge of driving under the influence of alcohol was however categorically denied. But he admitted to be stressful due to family problems and drinking earlier.

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The explanation of the Head Constable (Driver) was found to be unsatisfactory and accordingly the Assistant Commandant was appointed to enquire into the charges. The Inquiry Officer considered the report of Dr. S.R. Pal, who noted that alcohol was found in the blood sample of the delinquent. The evidences of the witnesses who travelled in the truck were taken into account and on that basis, the conclusion was drawn on 9.10.2009 (Annexure-B) that the Head Constable (Driver) lost control of the vehicle on 1.3.2009 because he was intoxicated.

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The inquiry finding was then considered by the Commandant and the penalty of compulsory retirement was ordered on 30.3.2010 (Annexure-C) against the Head Constable (Driver). The Appeal filed by the delinquent was dismissed on 7.7.2010 (Annexure-E), by the Appellate Authority.

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7.1 The petitioner assails the fairness of the inquiry proceeding by contending that presenting officer was not appointed and the delinquent was not provided with any defence assistant. The learned Counsel Mr. R. Mazumdar submits that the Statement of Witnesses were recorded in absentia and the delinquent had no opportunity to cross-examine them but he was made to sign on the statements, recorded elsewhere by the Inquiry Officer.

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7.2 The failure of the prosecution to facilitate cross-examination of the Doctor, who gave the adverse medical report is projected to have caused prejudice to the delinquent and on that basis, the Counsel submits that the departmental proceeding is vitiated.

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7.3 The petitioner points out the unreliability of the testimony of the prosecution witnesses, who spoke of the backward movement, whereas the Headlight and the frontal Bumper of the truck were damaged. Accordingly the version of the prosecution witnesses are projected to be unbelievable.

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7.4 The petitioner refers to his two decade long accident free driving duties and his responsible conduct all along his career. Projecting the small accident to be the first in his career, the delinquent questions the harshness of the punishment for the minor incident resulting in repairing cost of Rs.12,830/- for truck, which amount is already recovered from the salary of the Head Constable (Driver).

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8.1 On the other hand, Ms. R. Devi, the learned CGC submits that driving under intoxication is a serious misconduct and such habits cannot be encouraged in a disciplined organization like the CRPF.

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8.2 The learned CGC submits further that the absence of Presenting Officer and Defence Assistant in the departmental inquiry is argued for the first time in the High Court and the same should not be considered by the Writ Court, while examining the fairness of the departmental proceeding.

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The Court has considered the submission of the rival counsel.

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The role of the Inquiry Officer in a Disciplinary Proceeding must not be partisan and he cannot assume the role of Judge as also the Prosecutor. The absence of presenting officer perforce require the Inquiry Officer, to also discharge the role of the Prosecutor. This violates the rule of fair play, as has been held by this Court in Salam Kesho Singh vs. State of Manipur reported in 2011 (1) GLT 287. This ratio in this judgment is culled out from analysis of earlier judgments of the Supreme Court.

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In so far as the deficiencies in the departmental enquiry pointed for the first time before this Court, as the issue pertains to a question of law, the same can certainly be raised by the affected party and accordingly the contention raised to the contrary by the learned CGC is negated.

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The witnesses who have testified before the Inquiry Officer, specifically mentioned about the wet and slippery road conditions and the backward movement of the truck, when the driver was unable to manoeuvre the vehicle. If the vehicle travelled backward and rested on a ditch with the delinquent at the wheel, the expected damage would be to the rear end of the vehicle. But what is seen here is that the Headlight and the front Bumper of the truck got damaged. Thus the testimony of the witnesses does not match with the frontal damage suffered by the truck. Therefore, the conclusion drawn by the Inquiry Officer on the basis of such inconsistent testimonies, is found to be acceptable.

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It is also relevant to note that the delinquent had served as a driver for 21 years and had no occasion ever to be pulled up for driving, under the influence of alcohol and the incident on 1.3.2009 was the first in his career as a CRPF driver. The delinquent in his immediate reply given on 6.8.2009, had highlighted his stressful mental state due to family problem and had also truthfully admitted that he had consumed some alcohol earlier. But then he was suddenly called upon for duty. He had no difficulty in driving the truck to the town but in the return trip, he had to urgently manoeuvre to avoid hitting a stray cattle and that is how the accident occurred. But fortunately none had suffered injury and the damage to truck was minimal. In such circumstances the minor accident should be treated either as a fortuitous accident or as a less heinous offence, under Section 10 of the Central Reserve Police Force Act, 1949 (hereinafter referred to as “the CRPF Act”) and any of the minor penalties in my perception, could have met the ends of justice. But instead, for the first time accident by the long serving driver, which did not result in any loss of life and slightly damaged the truck, the major penalty of compulsory retirement, was inflicted by the disciplinary authority.

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When I notice that the delinquent had no defence assistance and in the absence of a Presenting Officer the Inquiry Officer played the dual role of prosecutor, the conclusion drawn does

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not inspire confidence. Moreover, there was utter failure of the Inquiry Officer to facilitate the crossexamination of the Doctor and the witnesses whose evidences were the basis of the adverse finding.

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The damage to the truck driven by the Head Constable (Driver) was minimal and the repair charge (Rs.12,830/-) was recovered already from the petitioner’s salary. The reasonableness of the explanation of the delinquent, of the circumstances leading to the loss of control of the truck on account of wet and slippery condition and the straying cattle, was entirely overlooked by the authorities. Thus serious prejudice was caused to the delinquent for the one sided conclusion drawn against him.

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That apart, the Inquiry Report was furnished to the delinquent only on 19.12.2009 while he was posted at Tripura and on the very next day on 20.12.2009, he was transferred to Jharkhand. This prevented the delinquent from pointing out the deficiencies in the inquiry proceeding. Thus the required opportunity was not made available to the delinquent.

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While the charge of attending duty in an intoxicated state, can be a case of major misconduct, the departmental authority should have arranged for examination of the doctor to prove the allegation. The cross examination of the doctor should have been facilitated. But conclusion was reached by the Inquiry Officer on the basis of the unreliable testimonies of the witnesses, whose version does not match with the frontal damage caused to the truck.

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Because of such infirmities in the departmental proceeding, I am of the considered opinion that penalization of Head Constable (Driver) on the basis of such defective inquiry, cannot be sustained. In my view, the decision making process resulting in the penalty was legally flawed and thus the impugned order dated 30.3.2010 (Annexure-C) is set aside and quashed. Consequently, the respondents are directed to reinstate the petitioner in service. But in view of the fact that the petitioner has been receiving pension after his compulsory retirement, he need not be paid any back wages. However, if the disciplinary authority wishes to re-conduct a departmental inquiry through due process, they are at liberty to do so, within 6 months of reinstatement. It is ordered accordingly.

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The writ petition stands allowed with the above direction without any order on cost.

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JUDGE

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Comparing Assistant

Ex-Hc/Driver, Force No. 850863303 Kanhaiya Lal v. the Union of India and Ors.

Case brief

What is this about?

What did the court decide?

Ex-Hc/Driver, Force No. 850863303 Kanhaiya Lal v. the Union of India and Ors.

Case brief

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What did the court decide?

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