Remanded

Tankadhar Nayak v. C.R.P.F. and Ors.

Orissa HC17 Feb 2020WP(C)/12892/2010

Case brief

AI extract

What is this about?

The Court held that the punishment of removal from service was shockingly disproportionate to the offence of assaulting a superior while under the influence of alcohol. The Court interfered with the impugned orders and remanded the matter to the Disciplinary Authority to reconsider and impose an appropriate punishment as per Rule 27(a) of the CRPF Rules.

What did the court decide?

The matter remanded to the Disciplinary Authority to reconsider the punishment and impose penalty under Section 11 read with Rule 27(a) of the CRPF Rules, 1955.

Tankadhar Nayak Vs C.R.P.F. and Ors. — Labour and Industrial Disputes | Orissa HC (2020)

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W.P.(C) No.12892 of 2010

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17.02.2020 Heard submissions of learned counsel for the respective parties.

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This writ petition involves challenge to the enquiry report, an order of removal being passed by the Central Reserve Police Force Authority on a conclusion of enquiry proceeding as well as the order of the appellate authority.

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Background involving the case of the petitioner is that on an working day, petitioner since was not found in the working place and in the process involving some incident taking place therein, article of charges have been served on the petitioner observing that he was found to have committed an act of misconduct in his capacity as a member of the force U/s.11(1) of the Central Reserve Police Force Act, 1949 (for short the ‘Act’) in that, he has physically assaulted his superior, namely, Ishwar Das, Platoon Commander after consuming liquor. The said Ishwar Das was verifying his duty as a Platoon Commander when checked Morcha No.03, Sentry Chotturam told him that his substitute has not come since 2100 hrs. To enquire into the matter, Platoon Commander Ishwar Das went to the mess and asked the Hav T.D.Nayak, the delinquent about the duty. T.D Nayak however replied in an indisciplined way. Thereafter, Ishwar Das left the place and went to check duty register. The said delinquent at this point of time followed him and physically assaulted

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uks

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him from behind and such act is punishable u/s.11(1) of CRPF Act, 1949. On submission of the charges, petitioner made his response. Consequent upon the initiation of a disciplinary proceeding, the proceeding was concluded on participation of delinquent as well as establishment in conclusion of the enquiry, the enquiry officer submitted the report as follows :

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This action of departmental inquiry has proved that the force number 821261434 Head Constable/G D T D Naik on 15/6/2009 during the occurrence of the incident had consumed alcohol which was unauthorized. Head Constable/GD T Nayak treated the sub-inspector/GD Ishwar Das (high officials of the personnel) in an in-disciplined manner and made a quarrel with the Sub Inspector / GD Ishawar Das.

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But it has not been proved in a complete form that the head constable / GDD Nayak has physically attacked his senior first. Therefore, Article-i of the prosecution of this departmental inquiry is “partially proved”.

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“Article of charge-i is partially proved”.

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It further reveals that after the submission of the report as the Enquiry Officer was not competent to impose punishment following the provision of Section 27(6) of the CRPF Rules, 1955, the report was submitted to the competent authority and the competent authority however in disagreement with the observation of the Enquiry Officer passed the final order of punishment after providing opportunity of hearing to the petitioner on his defence. Finally, the Disciplinary Authority ordered removal of petitioner from service. Consequently appeal was also preferred and the said

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appeal was also dismissed in confirmation of the order passed by the Disciplinary Authority resulting the instant writ petition.

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Sri Parhi, learned counsel appearing for the petitioner further taking to the development through the enquiry proceeding and the plea of the parties taken before the Enquiry Officer as well as in the writ application contended that when there is no clear establishment of charges against the petitioner, there was no question of imposition of final penalty for removal of petitioner from service. Sri Parhi, learned counsel also contended that for the material available through the Enquiry Report in the worse though petitioner could have been penalized but however on imposition of other punishment as provided under Rule 27(a) of the CRPF Rules, 1955. Referring to the provision therein in demonstration of punishment provided therein Sri Parhi, learned counsel for the petitioner submitted that for the nature of allegation involving therein the impugned order should be interfered with and should be substituted with the other punishments as provided in the above rules.

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Mr. C.K. Pradhan, learned counsel appearing for the Union of India on the other hand taking this Court through the material available before the Enquiry Officer submitted for there being clear evidence establishing the allegation involving the petitioner, finding that the ultimate observation of the Enquiry Officer remains contrary to the materials available

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therein, the Disciplinary Authority was right in giving his independent observation and thereby also penalizing the petitioner with the stringent punishment for his having in-discipline behavior while holding discipline service.

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Taking this Court to the observation of the Appellate Authority Sri Pradhan also contended that for the observation therein, there is also no infirmity in the order passed by the Appellate Authority requiring this Court to interfere in the impugned order.

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This Court finds that petitioner was imposed with the following article of charges:

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“That The said No.821261434 IIC/GD T.D. Nayak of D/178Bn, CRPF while functioning as HC/GD is found to have committed an act of misconduct in his capacity as a member of the force under section 11(1) of CRPF Act, 1949 in that he has physically assaulted his superior No.814270984 Platoon Commander of D/178SI/GD Ishwar Das after consuming liquor. On 15/6/09 SI/GD Ishwar Das was performing the duties of platoon commander. When he checked Morcha No.3, sentry CT/Bug Chotu Ram told that his substitute has not come since 2100 hrs. To enquire the matter, Platoon Commander SI/GD Ishwar Das went to mess and asked the platoon Hav HC/GD T.D.Nayak about the duty. But HC/GD T.D Nayak replied in an in-disciplined way. Thereafter, SI/GD Ishwar Das left the mess and went to check duty Register. The said HC/GD T.D.Nayak then followed him and physical assaulted him from behind, which is punishable u/s.11(1) of CRPF Act, 1949.”

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Considering the rival contentions of the parties and the proceeding through the enquiry report, this Court finds though there has been examination of several witnesses but there is no clear material as to whether petitioner has physically attacked his senior

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first even though there has been establishment of the charge partially. Further it is also clear that the incident took place as a matter of confrontation admittedly when petitioner was under the influence of alcohol. For the observation of the Enquiry Officer that it has not been proved in complete that Head Constable has physically attacked his superior and therefore article of charges leveled by the prosecution involving the departmental enquiry was partially proved. This Court looking to the conditions of the delinquent at the time of the incident and the revelation of the fact that the delinquent was engaged with one of his friend dining while such incident took place, even though this Court finds the behavior of the delinquent not upto the mark but for the observation herein the authority while punishing the delinquent should not have imposed the punishment of removing him from service on the other hand they should have penalized him through the other punishment as provided under Section 11 r/w rules 27(a) of the CRPF Rules, 1955 . This Court hence finds the punishment imposed on the petitioner is shockingly disproportionate to the nature of offence. This Court therefore while interfering with the order of punishment passed by the Disciplinary Authority as well as Appellate Authority remands the matter back to the Disciplinary Authority for reconsideration on the aspect of punishment involving the petitioner. Entire exercise in terms of direction herein above be completed within a period of two months from the date of communication of the order. As a

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consequence of the above, petitioner’s position shall be relegated back prior to the stage of award of punishment by Disciplinary Authority and the financial benefit, if any, considering the fact that petitioner has already attained the age of superannuation shall be dependent on the ultimate outcome on the order to be passed by the Disciplinary Authority under the direction of this Court.

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With the above observation, the writ petition stands disposed of.

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Issue urgent certified copy as per rules.

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…....……………………… Biswanath Rath, J.

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Tankadhar Nayak v. C.R.P.F. and Ors.

Case brief

What is this about?

What did the court decide?

Tankadhar Nayak v. C.R.P.F. and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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