IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5TH DAY OF APRIL, 2019 BEFORE THE HON' BLE MR.JUSTICE R. DEVDAS WRIT PETITION NO.47085/2013(S-DIS) BETWEEN SRI PARAMESH G NAYAK S/O GURAPPA AGED ABOUT 33 YEARS R/AT C/O LOKESH "SRINIVASA NILAYA" HIRENDAHALLI MAIN ROAD BIDARAHALLI HOBLI VIRGO NAGAR POST BANGALORE-560049 (BY SRI K SRINIVASA, ADVOCATE) AND 1. THE UNION OF INDIA REP BY ITS SECRETARY MINISTRY OF HOME AFFAIRS NORTH BLOCK NEW DELHI-110 001 2. THE DEPUTY INSPECTOR GENERAL OF POLICE CENTRAL RESERVE POLICE FORCE RANGE HEAD QUARTER PALLIPURAM THIRUVANTHAPURAM KERALA-695316 ... PETITIONER 3. THE COMMANDANT CENTRAL RESERVE POLICE FORCE 143 BATTALION, LAMPHELPAT IMPHAL-795004 MANIPUR STATE ... RESPONDENTS (BY SRI K S BHEEMAIAH, ADVOCATE FOR R1 TO R3) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER OR REMOVAL FROM SERVICE DT.30.8.12, PASSED BY THE R3, VIDE ANN-D, & ALSO THE ORDER PASSED BY THE R2, APPELLATE AUTHORITY DT.NIL JANUARY 2013, VIDE ANN-F, TO THE WP AND ETC.
THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER R. DEVDAS J., (ORAL):
The petitioner is in the services of the respondent- Central Reserve Police Force, having been selected and appointed as a Constable/GD in the year 2003. When the petitioner was discharging his duties, at 143 Battalion, Lamphel Kote, Imphal, Manipur, an incident occurred on 11.10.2010, which became the basis for the dispute.
2. It is submitted by the learned counsel for the petitioner that the petitioner had back pain and he was not normally given duty of sentry, since a sentry was required to stand for two hours with a machine gun. Further, it is submitted that since another Constable was not available for doing sentry duty, the petitioner was posted as sentry at Kote between 5.00 a.m. to 7.00 a.m. When the petitioner was standing guard as sentry at Kote, another Constable by name Fomin Mohan, was seen chasing a Head Constable/GD by name U.Vincent in front of the Kote, where the petitioner was standing guard. It is submitted that when the said Fomin Mohan was chasing U.Vincent with a gun in his hand, the petitioner did not try to intervene or stop said Fomin Mohan from opening fire against U.Vincent. It is given to understand that said Fomin Mohan killed three Constables by opening fire.
3. The charges were framed against the petitioner that while functioning as Constable/GD of G/143 Battalion, CRPF, the petitioner committed an act of misconduct in his capacity as a member of the Force under Section 11(1) of the CRPF, Act, 1949, in that, on 11.10.2010, while he was performing Kote sentry duty from 5.00 hours to 7.00 hours, Constable Fomin Mohan opened fire with the intention to kill Head Constable/GD U.Vincent and chased him in front of the Kote. However, the petitioner failed to control the Constable Fomin Mohan effectively even though being an armed sentry of Kote and instead shamefully abandoned the sentry post and took shelter in a barrack where Company office was functioning, which is prejudicial to the good order and discipline of the Force and unbecoming of a member of the Force.
4. Though it is seen that in the enquiry report it is recorded that the petitioner pleaded guilty, however a full fledged enquiry has taken place.
5. The Learned counsel for the petitioner submits that the petitioner has not pleaded guilty. The Learned counsel for the petitioner further submits that the petitioner has explained the actual facts and tried to justify that he was not in a position to do much in the circumstances where the Constable Fomin Mohan was in an enraged condition and in the process, he has killed three Constables. It is further submitted that the petitioner has sought to explain the situation and that nothing could be done by the petitioner and if at all he tried to do something in the process, he also would have killed. The Learned counsel for the petitioner submits that the punishment imposed is disproportionate to the charge leveled against the petitioner. In that regard, the learned counsel for the petitioner places reliance on a judgment of the Hon’ble Supreme Court, in the case of Union of India and Others Vs. P.Gunasekaran, reported in (2015) 2 SCC 610.
6. Per contra, the learned counsel for the respondent would seek to justify the impugned order. It is submitted by the learned counsel for the respondent that the petitioner being an armed sentry belonging to the disciplinary Force should have at least attempted to diffuse the situation. It was also submitted that the petitioner having been armed, should have shot at the legs of the Constable Fomin Mohan, when he saw that he was attacking another Head Constable, U.Vincent. On the contrary, it has been proved that the petitioner took shelter inside Company office, which is an act of cowardice.
7. Heard the learned counsels on both the sides and perused the writ papers and departmental enquiry reports.
8. It is an undisputed fact that though it is recorded that the petitioner pleaded guilty, a full fledged enquiry has taken place. It is also an admitted fact that the petitioner went into the barrack where Company office was functioning, immediately after the first shot was fired by Constable Fomin Mohan. The records would also suggested that the petitioner has not resisted much by trying to place any oral and documentary evidence in support of his contention that he was not guilty. However, this Court is of the opinion that the punishment imposed against the petitioner is disproportionate to the guilt alleged against the petitioner.
9. The Hon’ble Supreme Court in the case of P.Gunasekaran (supra) has held that the High Court can only consider whether enquiry held by the competent authority was in accordance with the procedure established by law and principles of natural justice, whether irrelevant or extraneous considerations and/or exclusion of admissible or material evidence or admission of inadmissible evidence have influenced decision rendering it vulnerable. However, it has been held that the High Courts can go into the proportionality of punishment if it shocks its conscience.
10. As noted above, the charge leveled against the petitioner was that he was guilty of an act of cowardice. However, it is an admitted fact that three Constables were killed by the Constable Fomin Mohan and if the petitioner, had tried to interfere, there was every possibility that he would have been killed. For the charges leveled against the petitioner and the guilt alleged against the petitioner, this Court is of the considered opinion that the punishment of removal from service is highly disproportionate, even if it is held that the petitioner was guilty of an act of cowardice.
11. In the light of the above, this Court deems it fit to set-aside the impugned order dated 30.08.2012, at Annexure-D and order of the Appellate Authority, dated Nil January, 2013 at Annexure-F, while remanding the matter back to the respondent-authority to reconsider the quantum of punishment imposed on the petitioner, in the light of the observations made above.
It is ordered accordingly.
With the above observations, the writ petition is disposed of.
It is needless to observe that the respondent-authority is required to reconsider and pass orders as expeditiously as possible and at any rate within a period of three months from the date of receipt of certified copy of this order.
The Departmental Enquiry Reports that were submitted by the respondent is ordered to be returned back to the respondent, forthwith.
SD/- JUDGE DL