SARAN NARZARY vs THE UNION OF INDIA and ORS

Heard Mr. D.R. Gogoi, the learned Counsel for the petitioner. The respondents are represented by Mr. S.S. Roy, the learned CGC.

The petitioner was posted as a Constable (GD) in the 151 Bn. of the CRPF to which, on 13.5.2008 he was transferred from the 31 Battalion of

the same organization. The challenge here is to the order dated 30.9.2008 (Annexure-11), whereby, the petitioner was terminated from service, in

pursuant to a Disciplinary Proceeding.

The departmental inquiry was initiated through the Charge Memo dated 26.6.2008 (Annexurfe- 4) under Rule 27 of the Central Reserve Police

Force, Rules, 1955 (hereinafter referred to as ""the CRPF Rules""). The Statement of Allegations being relevant, is extracted hereinbelow for ready

reference :

Charge-1

That A/151 BN, CRPF NO.055130375 CT/GD, Saran Narzary, being the member of the Force Considered to be guilty of his

disobedience, neglect of duty, or remissions in the discharge of his duty or of other misconduct in his capacity as a member of the

Force is legally responsible under Section 11(1) of the Central Reserve Police Force, Act, 1949, in which Saran Narezary on

6.6.2008 while going on 15 days casual leave, at Jammu Railway Station, the RPF and other local police while checking him and his

luggage recovered 23 live rounds of 5.56 Insas Rifle which depicts his indiscipline which is against the discipline as well as the rules of

the Force.

Charge-2

That A/151 BN, CRPF NO.055130375 CT/GD, SARAN NARZARY, being the member of the Force Considered to be guilty

of his disobedience, neglect of duty, or remissions in the discharge of his duty or of other misconduct in his capacity as a member of

the Force is held liable under Section 11(1) of the Central Civil Services (Discipline) rules, 1964, in which Saran Narezary who was

posted in 31 BN CRPF illegally kept 23 live rounds of 5.56 INSAS Rifle, the information regarding which he did not furnish to his

higher authority either in 31 BN or 151 BN. In this way the accused concealed the facts and on 6.6.2008 while going on 15 days

casual leave at Jammu Railway Station the RPF and other local police while checking him and his luggage recovered 23 live rounds of

5.56 INSAS Rifle which depicts his indiscipline and well organized rules of the Force.

As can be seen from above, the Constable was proceeding on leave on 6.6.2008 to visit his ailing mother and was transiting through the Jammu

Tawi Railway Station. During routine checking of the passengers'' baggage by the Railway Police Force (RPF), 23 live rounds of 5.56 INSAS

Rifle were recovered from the Constable''s bag. This was construed to be a misconduct and accordingly Disciplinary Proceeding was initiated to

impose minor punishment, under Section 11 of the Central Reserve Police Force, Act, 1949 (hereinafter referred to as ""the CRPF Act""). The 2nd

CO of the 151 Battalion was appointed as the Inquiry Officer (IO). On the basis of the purported proceeding, the IO in his report dated

28.8.2008 (Annexure-8) concluded that both charges were proved beyond reasonable doubt. Accepting the inquiry finding, the punishment of

removal from service, was ordered by the Commandant.

1 The learned Counsel Mr. D.R. Gogoi refers to the perfunctory inquiry report to argue that adverse conclusion was drawn against the

delinquent without any cogent evidence to substantiate the charge. The Counsel refers to the extracted testimony of the six prosecution witnesses

to contend that none of them was a witness to the recovery of the bullets from the petitioner''s baggage. In fact, the RTO Inspector Khawja Abdul

Islam who was present during the alleged recovery, was withheld by the prosecution. Therefore, the very basis for the adverse conclusion against

the delinquent, is questioned by Mr. Gogoi.

5.2 The major failure to conduct the departmental inquiry in accordance with Rule 27(c) of the CRPF Rules, is highlighted by the learned Counsel

by submitting that the delinquent is unfamiliar with Hindi but was not provided with any defence assistance. Hence it is argued that the delinquent

was denied the opportunity to cross-examine the witnesses and the proceeding was not fair.

5.3 The delinquent strongly refutes the guilty plea in the so called statement (Annexure-7) recorded by the I.O. to project that the petitioner was

made to sign on a blank sheet but he had no opportunity to either comprehend or to make the alleged admission, as has been wrongly attributed to

the delinquent.

On the other hand, Mr. S.S. Roy, the learned CGC submits that 23 live bullets were recovered from the delinquent''s bag while he was

transiting on leave, through the Jammu Tawi Railway Station and on this basis, the disciplinary action is contended to be justified. The records of

the Disciplinary Proceeding could not however be produced by Mr. Roy as the concerned case papers are in custody of another CGC.

In the absence of the original records, the Court has read the annexed testimony of the prosecution witnesses and finds that none of these

witnesses were eye witnesses or were present, at the Jammu Tawi Railway Station when the so called recovery was made from the petitioner''s

bag. In fact, all the witnesses are of the hearsay category. Moreover, the only relevant witness i.e. RTO Inspector Khawja Abdul Islam who was

present at the station, was withheld. Therefore, the conclusion of the IO is not relatable to the testimony of any of these witnesses.

In so far as the admission statement of the delinquent recorded by the I.O., it is seen that the said statement was recorded in Hindi and the

possibility of the delinquent being unaware of the content of the statement, cannot entirely be ruled out, in view of his rudimentary knowledge of

Hindi.

How a departmental inquiry is to be conducted is prescribed by Rule 27 of the CRPF Rules and due opportunity must be afforded to the

delinquent to defend the charge and also to cross-examine the witnesses. But in the absence of a defence assistance, with his rudimentary

knowledge of Hindi, the BODO tribesman from interior Assam can hardly be expected to independently participate in the proceeding or to cross-

examine the prosecution witnesses. Therefore, the denial of fair opportunity to the delinquent specified by Rule 27(c), is clearly noticed in the

instant case.

Moreover, even a cursory glance of the 28.8.2008 Inquiry Report (Annexure-8) shows that the I.O. failed to base his conclusion with

reference to any evidence recorded by him. In fact, abrupt conclusion is drawn without reference to any material. The glaring deficiencies in the

inquiry finding can be easily appreciated from the following extract of the full Inquiry Report :-

Departmental Enquiry Report of Force No.-055130375 Saran Narzary.

1) On 28.2.2005 Force No.-055130375 Saran Narzary was posted as CT/GD of CRPF.

2) He was posted at 31 BN after undergoing basic training at Central Training College till 9.4.2009.

3) On 31.5.2008 he being transferred from 31BN CRPF to 151 BN CRPF reported at Preet Nagar, Jangiyal.

4) On 6.6.2008 due to ill health of his mother he took sudden casual leave of 15 days.

5) At the time of checking at the railway station Jammu 23 live rounds of 5.56 mm (INSAS) rifle were recovered from him.

6) The recovered 23 live bullet rounds of 5.56 mm was kept in a safe and secured place in 151 BN Headquarter.

7) The recovered 23 live bullets of 5.56 mm INSAS Rifle were kept with him during the time of encounter with the terrorist when he was at 31

BN.

8) On 7.6.08 Force No.-055130375 Saran Narzarys suspended vide order NO.P-VIII-4/2008-EC-II- 151 and handed over to Gandoh

Headquarter.

9) In this regard a preliminary inquiry was done by Sri Suresh Kumar Yadav which report along with the documents are enclosed herewith.

10) When inquired the 31 BN, it was proved that 23 live rounds of 5.56 INSAS rifles recovered from the accused are from that BN.

CONCLUSION

Considering the above mentioned facts, the charge NO.1 (recovering the 23 live rounds of 5.56 INSAS rifle from the bag of the accused) is

proved beyond reasonable doubt/shadow of doubt. Charge No.2 that accused has illegally kept 23 live rounds of 5.56 INSAS rifle while he

stayed at 31 BN is also proved beyond reasonable doubt/shadow of doubt.

The recovery of live bullets from the delinquent''s baggage may warrant a Disciplinary Proceeding but it must be established that the CRPF

constable himself kept the bullets in his bag. This is particularly necessary in the context of the petitioner''s stand to the effect that he had not locked

his bag and therefore, some miscreant secretly placing the bullets without the delinquent''s knowledge, is a distinct possibility. I feel that such a

scenario cannot entirely be ruled out because there is no credible evidence about bullets being recovered from the delinquent''s bag or his role on

the matter.

The Disciplinary Proceeding suffered serious legal infirmity as it was in deviation of the procedure laid down by Rule 27 of the CRPF Rules.

Moreover the absence of defence assistance has resulted in denial of fair opportunity to the delinquent to rebut the charge or even to cross-

examine the prosecution witnesses. The prosecution witnesses are of the hearsay category and more importantly there is no implication of the

delinquent in their testimony. Hence it must be declared that the conclusion is not based on any relevant evidence. The Disciplinary Proceeding is

accordingly found to be vitiated and the penalization of the delinquent upon such vitiated proceeding in my perception, will not be justified.

In view of above, the impugned order dated 30.9.2008 (Annexure-11) of the Commandant of the 151 Battalion, CRPF is set aside and

quashed. Consequently, subject to medical fitness, the terminated constable should be taken back in service. However, taking all circumstances

into account, upon reinstatement, he is held entitled to 50% back wages. It is ordered accordingly.

With the above order, the case stands allowed without any order on cost.