Civil Writ Petition No. 15348 of 1999. Case: Zuber Ahmed Vs The Union of India and Ors.. High Court of Punjab (India)
| Case Number | Civil Writ Petition No. 15348 of 1999 |
| Counsel | For Appellant: Surinder Sharma, Advocate and For Respondents: Puneeta Sethi, Addl. C.G.S.C., Anil Malhotra, Advocate, Amicus Curiae and R.S. Cheema, Senior Advocate, Special Amicus Curiae |
| Judges | Rajiv Narain Raina, J. |
| Issue | Central Excise Act, 1944 - Sections 10, 10(n), 11, 12(1), 12(2), 9; Central Reserve Police Force Act 1949 - Sections 1, 10, 10(1)(n), 10(i)(c), 10(m), 10(n), 11, 11(1), 12, 12(1), 12(2), 13, 15, 16, 16(2), 18, 2, 2(b), 2(e), 9; Code of Criminal Procedure, 1973 (CrPC) - Sections 11, 12, 13, 20, 24, 26, 29, 3, 30, 313, 32, 34, 36, 37, 389, 4, 484... |
| Judgement Date | April 30, 2015 |
| Court | High Court of Punjab (India) |
Judgment:
Rajiv Narain Raina, J.
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This writ petition is by Zuber Ahmed, an ex-constable of the Central Reserve Police Force against a punishment order dated March 19, 1993 inflicted by the Commandant, 84th Battalion, CRPF, Faridkot, Punjab dismissing him from service following an order passed earlier in the day awarding him sentence of simple imprisonment till the rising of the Court in a judicial trial held by the same Commandant-6th respondent concluding it in ten days. The sentence was imposed on the petitioner by the Commandant after trial by virtue of powers vested in him by the Central Government under s. 16 of the Central Reserve Police Force Act, 1949 read with GSR-43 (F) dated January 26, 1978 ('CRPF Act' for short) which authorized him to act as the Chief Judicial Magistrate to try the commission of offences committed by a member of the Force including the one under the residuary clause in sub-s. (n) of s. 10 of the Act under which the petitioner was charged and tried for what in pith and substance amount to an attempt to molest and to outrage the modesty of a woman by leaving his call of duty for about 10 minutes by change of guard post with another constable though the charges are not exactly worded thus. This petition was admitted by the Division Bench on November 29, 2001 to be heard within one year but could not be for reasons beyond control of this Court in the face of mounting arrears of cases. Before he approached this Court the petitioner had already lost six years in pursuing his remedy in the Calcutta High Court only to be told at the end of the day that it lacked territorial jurisdiction in the matter. That is how he came to this Court in 1999 being the proper forum for vindication of his rights asserted against the CRPF for alleged wrongful dismissal from service in the year 1993 when the petitioner was a young constable aged about 24 years. His date of birth recorded in the dismissal order is December 14, 1967 which makes him about 48 years of age.
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The Act reveals that s. 10 lists sixteen less heinous offences which invite imprisonment for a term which may extend to one year, or with fine which may extend to three months' pay, or with both. Under s. 10(n) a member of the Force is punishable if he: "is guilty of any act or omission which, though not specified in this Act, is prejudicial to good order and discipline;" The sentence till the rising of the court was imposed on the petitioner for committing offences defined in s. 10(n) of the Act vide judgment of conviction and sentence dated March 19, 1993 on the following charge:-
"I, Pushkar Singh, Chief Judicial Magistrate, do hereby charge you Zuber Ahmed as follows:-Firstly-That you on 19.10.92 at about 2320 hrs. while on duty, left your duty place and entered in the house of Shri Kala Singh, Security aide of Shri P.S. Badal, Ex-Chief Minister of Punjab and caught hold of mouth of Smt. Gurdev Kaur wife of Shri Kala Singh with malafide intention and ran away from the scene after hearing alarm from the children of Smt. Gurdev Kaur and thereby, committed an offence punishable under s. 10(n) of CRPF Act, 1949 and within cognizance of this court. I, hereby direct that you be tried by me in this court on the above charge."
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What followed was dismissal from service based on judgment of conviction on the charge framed by virtue of recording of finding of guilt and order of sentence of imprisonment till the rising of the court. The Office Order dismissing the petitioner from service carried further burdens. The period of suspension from October 22, 1992 to March 19, 1993 was ordered to be treated as period not spent on duty. The pay and allowances were restricted to the subsistence allowance already drawn. The period described as desertion from November 16, 1992 to January 1, 1993 (56 days) was treated as dies non. However, no charge was framed against Zuber Ahmed for desertion from duty during any period including the period of suspension, which could have been a serious charge, if laid, on a member of the Force.
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The statement of the history of facts, briefly put, are on the following lines: The petitioner was enrolled as a Constable in CRPF on April 30, 1987 and was allotted the 84th Battalion, CRPF. He served at different places in Pinjore and Jammu etc. and was, ultimately, posted to the 84th Bn., then stationed in Police Lines, Faridkot, Punjab. While posted on field duty at the CRPF Headquarters at Faridkot, the petitioner was deployed on guard duty to the private residence of Shri Parkash Singh Badal, the then former Chief Minister, Punjab to stand security and escort duty at his private residence in Chandigarh.
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On the intervening night of 19th/20th October, 1992, the petitioner was deputed on guard duty at the front gate of the residence along with one Constable Himmat Singh posted on the fateful day to guard the backyard of the house. The case set up against the petitioner was that while the two guards were on duty from 2200 hours to 2350 hours, on the night of the occurrence, an unidentified person entered the servant quarters of one Kala Singh, a personal aide [in the charge framed on March 5, 1993 the nomenclature 'Security aide' is used] of the then ex-Chief Minister, Punjab who lived with his family in the servant quarters at the rear of the house. While the then ex-Chief Minister and Kala Singh were away on tour, it was alleged by Smt. Gurdev Kaur wife of Kala Singh that a person whose face was covered had trespassed into her private family quarters and had tried to outrage her modesty by muffling her mouth and threatening her with dire consequences if she did not keep her mouth shut. She alleged that the intruder was in 'CRP dress' holding a rifle.
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On October 22, 1992, the Commandant, 84th Bn., CRPF placed the petitioner, Constable Himmat Singh and Lance Naik U.N. Gaikwar, Guard Commander, also posted at the residence for security duty, under suspension in exercise of powers conferred by r. 27(a) of the CRPF Rules, 1955 in contemplation of departmental proceedings. A preliminary enquiry/investigation was ordered vide office order dated October 27, 1992 for misbehaviour/manipulation of records regarding incident dated October 19, 1992 with Smt. Gurdev Kaur. It was conducted by Shri P. Sivanandan, Assistant Commandant, CRPF who went into the incident and found that on the intervening night of 19th/20th October, 1992, Constable Himmat Singh was on guard duty on the rear side of the house where Smt. Gurdev Kaur lived with her family. The petitioner is alleged to have approached and requested Constable Himmat Singh for swapping duties for a few minutes, which were agreed to by Constable Himmat Singh and accordingly, they exchanged places for a while. The incident is timed to the period as said before from 2200 hours to 2350 hours. Both the guards allegedly reported the incident to their senior officer/s thereafter. When the petitioner reported the matter to his Platoon Commandant, his demeanour was recorded by the Force official as in a "...fearsome state of mind and was unable to speak due to fear of the consequences of the act committed by him, which would ultimately point out that he was the person who had entered the room of Shri Kala Singh with bad motives". The intention of Constable Himmat Singh in exchanging duties was seen as one without ill motive. However, it was found that he should not have done what he did without knowledge of his Guard Commandant. The then Platoon Commandant posted at the residence on that day/night was found to have concealed facts from his superiors and was said to have tried to hush up the matter. Till that time, nor thereafter was a CRPF police case or first information report under the criminal law registered on the incident against the petitioner.
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The Commandant, 80th Bn. CRPF, Mr. M.S. Sethi, who was not the petitioner's Commandant considered the preliminary enquiry report authored by Mr. Sivanandan, Assistant Commandant, and recommended dispassionately on November 13, 1992 that "No judicial trial is recommended as this will pave the way to unwanted publicity of the incident as well as there is a likelihood of tarnishing the fidelity of a woman through cross-examination etc". I should imagine that there was wisdom in this line of thinking. It was recommended by the officer that a departmental enquiry be conducted against the petitioner for gross negligence of duties in entering the house of Kala Singh with bad motive. Constable Himmat Singh was also recommended to be dealt with departmentally for swapping duties without permission of superiors. Constable Himmat Singh is said to have apologized to Smt. Gurdev Kaur even though he was not at fault. Lance Naik U.N. Gaikwar was recommended to be absolved of the charges although he was posted on the spot as Guard Commandant but could not be imputed knowledge of the private arrangement between the two guards. It is the stand of the respondent CRPF in paragraph 7 of the written statement that the preliminary enquiry report was examined and considered by superior authorities who ordered departmental enquiry against the defaulters vide office order "dated 30.1.1992 except Constable Zuber Ahmed as he had deserted the Force. The petitioner reported at his own on 11.1.1993 after desertion of 56 days and he was tried judicially". The reason stated for departure from domestic enquiry was by assumption of acts of desertion which would have been rather serious in nature with respect to a member of the disciplined force. But the charge framed was not of desertion.
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It is the further case that on the intervention of the Personal Assistant to the then ex-Chief Minister, Punjab on October 20, 1992 the matter was decided to be reported to the 84th Bn., being the petitioner's parent battalion. This is how the matter fell to the lot of the 6th respondent/Commandant who would later on sentence and dismiss the petitioner from service on...
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