Misconduct By CRPF Constable By Fleeing From Spot During Attack By Militants: Calcutta HC Upholds Order Of Removal From Service

The Calcutta High Court recently declared that the Disciplinary Authority as well as the Appellate Authority had rightly punished the petitioner for removal of service from the Central Industrial Security Force (CISF) after he was found to have committed gross misconduct by failing to react by using his weapons and fleeing from the spot during an attack by militants, thereby leaving his colleagues and the ONGC staff they were protecting in grave danger.

The High Court, therefore, refused to interfere with the order of the respondent authorities for the removal of the petitioner from service after following due process of law, since it was passed without actuated by any malafides.

The Single Judge Bench of Justice Krishna Rao observed that “The petitioner has been found to have committed gross misconduct as he failed to react and fire from his automatic service weapon to counter-attack the militants and fled away from the spot after throwing away his service SMG carbine with three magazines full of 90 live around of 9 mm ammunition, leaving his colleagues and ONGC staffs into the mouth of death”.

Advocate Abdul Hamid Molla appeared for the Petitioner, whereas Advocate Rudra Jyoti Bhattacharya appeared for the Union of India.

In the present case, the petitioner was a Constable in CISF and was promoted to the post of Head Constable, CISF Unit, ONGC, Jorhat. When the petitioner was detailed for escorting of field party and the convoy was embraced and attacked by the suspected militants who started firing at random. It was averred that the petitioner had fallen and got a chest injury which made him feel giddy thus, he took possession in a bush which was at a distance of 100 m from the site of the militant’s attack and subsequently became unconscious. By way of a Memo, the Commandant, being the Disciplinary Authority issued a Memorandum along with an Article of charges under Rule 36 of CISF Rule, 2001, on the allegation that the petitioner had fled away from the scene of the incident leaving his colleagues and ONGC employees when the convoy of the ONGC field party GP-33 was ambushed by the suspected militant group on their way back to base camp. The petitioner left his SMG Carbine 9 mm, 90 live rounds - 9mm with three magazines unattended in the bushes near the place of the incident though he was deployed on escort duty. The Disciplinary Authority was not satisfied with the explanation offered by the petitioner and accordingly, a regular enquiry was conducted by appointing Enquiry Officer. Thereafter, the Disciplinary Authority passed the final order of punishment of removal from the service of the petitioner. Hence, the petitioner had approached the High Court.

After considering the submission, the Bench noted the evidence of the Prosecution Witness, wherein it was stated that on enquiry at the place of incident, it was found that the petitioner at the time of the incident had fled away from the place of the incident along with his arms and ammunition and the CISF personnel had searched the petitioner at the place of the incident by calling his name to no avail.

As regards the opportunity of hearing, the Bench found from the record that all the witnesses were examined in the presence of the petitioner and he had cross-examined many of the witnesses except some, as well as regarding the supply of enquiry report, the petitioner had admitted that he had submitted his representation against the enquiry report.

The High Court took note of the fact that the petitioner had also suppressed the fact that the review filed by him against the order of the Appellate Authority during the pendency of the writ application, was dismissed.

The Bench referred to the Constitution Bench case of State of Orissa v. Bidyabhushan Mohapatra, wherein it was held that the “Power of judicial review was meant to ensure that the individual received fair treatment and not to ensure that the conclusion which the authority reached was necessarily correct in the eye of the Court. When an inquiry was conducted on the charges of misconduct by a public servant, the Court or Tribunal would be concerned only to the extent of determining whether the inquiry was held by a competent officer or whether the rules of natural justice and statutory rules were complied with”.

The Bench also reiterated that the question of the quantum of punishment in disciplinary matters was primarily for the disciplinary authority, and the jurisdiction of High Courts under Article 226 of the Constitution or of the Administrative Tribunals was limited and was confined to the applicability of one or the other of the well-known principles known as ‘Wednesbury Principles’.

Accordingly, the High Court dismissed the petition.

Cause Title: Mir Majibur Rahaman v. Union of India

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