WP(C) 3783/2002 BEFORE HON’BLE MR. JUSTICE RANJAN GOGOI. JUDGMENT & ORDER 1. The petitioner who was working at the relevant point of time as a Consta ble in the C.R.P.F. was charge-sheeted by memo dated 14.12.2001 in respect of ce rtain acts of alleged misconduct committed by him on 25.10.2001 while on duty at Bangtol Bazar, Kokrajhar District. The charge-memo was accompanied by a detail statement of the allegations on which the charges were founded as well as by a l ist of documents and list of witnesses. 2. On receipt of the charge memo dated 14.12.2001 the petitioner submitted his reply which having been found to be unsatisfactory an enquiry was ordered by the disciplinary authority who had also appointed an enquiry officer. In the co urse of the enquiry proceeding, wherein 16 witnesses were examined and the state ments of the petitioner was also recorded, the petitioner had fully participated . Thereafter, at the conclusion of the enquiry a report was submitted by the en quiry officer to the disciplinary authority who on due consideration of the said report came to the conclusion that all the charges levelled against the petitio ner (four in number) were established. Thereafter, by order dated 27.4.2002, the petitioner was dismissed from service. Aggrieved, this writ petition has been f iled. 3. It would be relevant to notice, at this stage, that charge No.4 levelled against the petitioner, in essence, was in respect of firing of 13 rounds from the service weapon allotted to the petitioner resulting in the death of one Head Constable Saidullah Khan. In respect of the said incident there was a report to the police by the C.R.P.F. authorities which had led to a Sessions Case i.e. Se ssions Case No.41 of 2003 under Section 302, I.P.C. against the petitioner. In t he said sessions case, by judgment and order dated 23.3.2004, the learned Sessio ns Judge, Kokrajhar, acquitted the accused/petitioner of the charge under Sectio n 302, I.PC. 4. The charges levelled against the petitioner by charge memo dated 14th De cember 2001 may now be noticed : STATEMENT OF CHARGES FRAMED AGAINST NO.971170449 CT/GD LEKH RAJ (U/S) OF C/16TH BN. CRPF. ARTICLE - I That No.971170449 Ct/GD Lekh Raj (U/S) of C/16th Bn. CRPF while functioning as C T/GD committed an act of gross misconduct/indiscipline in his capacity as a memb er of the force U/S 11(1) of CRPF Act, 1949 in that while he deployed for counte r insurgency duty on 25.10.01 at Bangtol C/16 Bn. CRPF, coy post consumed countr y liquor while being on duty and misbehaved with one civilian and created nuisan ce at public place where Durga Puja functions were going on. ARTICLE - II That No.971170449 Ct/GD Lekh Raj (U/S) of C/16th Bn. CRPF while functioning as C T/GD committed an act of gross misconduct/indiscipline in his capacity as a memb er of the force U/S 11(1) in that he on misbehaving with civilian indulged into arguments with No.761260341 late H/C/GD Saidullah Khan who was his section comma nder and used abusive language in presence of Civil Police S.I., outpost, Bangto l and acted in a insubordinate manner against his senior which is prejudicial to good order and discipline of the force. ARTICLE - III That No.971170449 Ct/GD Lekh Raj (U/S) of C/16th Bn. CRPF while functioning as C T/GD committed an act of gross misconduct/indiscipline in his capacity as a memb er of the force U/S 11(1)of CRPF Act, 1949 in that he after relief of section fr om duties during Durga Puja occasion at Bangtol Bazar and again during the fall in checking of arms/ammunitions at Coy location (inside the camp) again indulgin g into arguments/abuses/ altercations with said No.761260341 late H/C/GD Saidull ah Khan and fired 13 (thirteen) rounds out of his personal weapon i.e. S.L.R. Bu tt No.202 body No.15107595 at his superior (Sec.Commander) HC/GD Saidullah Khan unauthorisedly without any order by his competent authority. ARTICLE - IV That No.971170449 Ct/GD Lekh Raj (U/S) of C/16th Bn. CRPF while functioning as C T/GD committed an act of gross misconduct/indiscipline in his capacity as a memb er of the Force U/S 11(1)of CRPF Act, 1949in that he fired 13 rounds from a defe nded position at No.751260341 HC/GD Saidulla Khan (Late) resulting into instanta neous death of HC Saidullah Khan and terrorized the whole section/Coy. Personnel . Thus committing an unlawful act by Govt. weapon which was issued to him for bo nafide public interest and not to misuse it. Thus Ct. Lekh Raj (U/S) committed a n act of gross misconduct as a member of the Force 5. A reading of the charges levelled against the petitioner would go to sho w that under the first charge it was alleged that the petitioner, while on duty at Bangtol Bazar on 25.10.2001, had consumed liquor and had thereafter misbehave d with a civilian person and had created nuisance at a public place where the Du rga Puja celebrations were going on. The second charge levelled against the peti tioner is that he got into arguments with his superior i.e. Head Constable Saidu llah Khan and had used abusive language in presence of civil police officials an d had acted in an insubordinate manner against his senior. Under the third charg e levelled against the petitioner it is alleged that after return to the camp an d while the arms were being deposited the petitioner had again got into argument s and had abused his senior, Head Constable Saidullah Khan, and had also fired 1 3 rounds from his service weapon unauthorisedly and without any order of the com petent authority. The fourth charge levelled against the petitioner is to the ef fect that by firing 13 rounds form his service weapon the petitioner had killed his superior, Head Constable Saidullah Khan, and had terrorized the whole sectio n/the entire CRPF personnel in the camp. 6. As already noted, 16 witnesses, in all, were examined in support of the charges levelled. The English translation of the depositions of the witnesses ex amined in support of the charges which has been placed in a Paper Book by Sri C. Baruah, learned Central Govt. Counsel, has been duly perused by the Court. On s uch perusal the Court has found that evidence had been led in support of each ch arge by examining each of the witnesses and, naturally, therefore the statements made by the witnesses are largely repetitions of each other. The Court, therefo re, has found it convenient to consider and note the sum total of the evidence t endered in support of each of the charges levelled against the petitioner. 7. Insofar as the first and the second charge is concerned, i.e. consumptio n of alcohol by the petitioner while on duty; misbehaviour with the civilian in the Puja Mondap; and entering into arguments with No.761260341 late H/C/GD Sa idullah Khan who was his section commander and use of abusive language in presen ce of Civil Police, the evidence of PW 2, S.I. Sri Brahmanand, PW 3, Sri T.C. Tohobildar, S.I. Civil police and PW 9 Constable Yashpal Dogra would be relevant . While PW 2 had merely deposed that there was some arguments in the Puja Mondap on the date of the occurrence PW 3 had categorically deposed that the petitione r did not abuse his superior or anybody at that place. PW 3 in his evidence had deposed that he was informed by the petitioner that he had consumed alcohol (bee r) and that the petitioner was also medically examined. However, no report of th e medical examination of the petitioner is available in the records placed befor e the Court. Insofar as PW 9 is concerned, the evidence of the said witness is m ore or less to the same effect i.e. that there was no commotion, nuisance or mis behaviour at the Puja Mondap. In this regard the evidence of PWs 4 and 5 would a lso be relevant. The aforesaid two witnesses in their evidence had deposed that there was hot exchange of words between the petitioner and the deceased though t he said witnesses had not stated, with any degree of accuracy, the actual words used. 8. Insofar as the charge Nos.3 and 4 is concerned, the evidence of PW s 2, 4, 5, 6, 8 and 9 would be relevant. According to PW 2, he had seen the deceased rush towards the petitioner with the carbine in his hand. In fact, according to this witness, the deceased h ad fired from his carbine in the direction of the petitioner and it is only on a ccount of his intervention in the matter that the bullet got fired in the air. P W 4, on the other hand, has deposed that after return to the camp the petitioner had persisted in his arguments with the deceased and had also remarked that the deceased was not fit to be a commander. According to PW 4, on hearing this stat ement the deceased got enraged and lifted his carbine towards the petitioner. PW s 5 and 6 also deposed in a similar manner though from the evidence of PW 6 it i s clear that the deceased had also abused the petitioner and lifted his carbine pointing to the direction of the petitioner. PW 8 in his evidence has stated tha t the petitioner started abusing the deceased in the first instance and on being enraged the deceased fired three rounds pointing to the petitioner. The evidenc e of PW 9 is more or less to the same effect i.e. that it is the petitioner who had initially started to abuse the deceased. 9. There is no manner of doubt and it is not even disputed by the petitione r that in the present case he had fired 13 rounds from the service weapon allott ed to him which had resulted in the death of his superior, Head Constable Saidul lah Khan. However, according to the petitioner, he had acted in self defence and as the carbine of the deceased was fired first in the direction of the petition er, the petitioner was left with no alternative but to return the fire resulting in the death of the deceased. There is evidence available, which is overwhelmin g in nature, that it is the deceased who had initially opened fire at the petiti oner which would have resulted in disastrous consequences had it not been for th e intervention of the PW 2, S.I. Brahmanand. That apart, a reading of the judgme nt and order dated 23.3.2004 passed by the learned Sessions Judge in Sessions Ca se No.41 of 2003 would go to show that the plea of self defence was specifically taken by the petitioner in the trial against him and the learned Sessions Judge , after due consideration of the evidence on record, had upheld the said plea an d on that basis had acquitted the accused/petitioner. 10. Reliance has been placed by Sri A. S. Choudhury, learned Senior Counsel appearing for the petitioner, on a decision of the Apex Court in G. M. Tank vs. State of Gujarat & another, reported in AIR 2006 SC 2129, to contend that when t he charge in a criminal case and in a departmental proceeding is identical and t he same witnesses are examined in both the proceedings it would be unfair and op pressive to allow the findings recorded in the departmental proceeding to stand in the face of the subsequent findings that may be recorded in the criminal case . Paragraphs 31 and 32 of the judgment in G. M. Tank (supra) which lays down the aforesaid proposition may be usefully extracted herein below : 31. The judgment relied on by the learned counsel appearing for the responde nts are distinguishable on facts and on law. In this case, the departmental proc eedings and the criminal case are based on identical and similar set of facts an d the charge in a departmental case against the appellant and the charge before the Criminal Court are one and the same. It is true that the nature of charge in the departmental proceedings and in the criminal case is grave. The nature of t he case launched against the appellant on the basis of evidence and material col lected against him during enquiry and investigation and as reflected in the char ge sheet, factors mentioned are one and the same. In other words, charges, evide nce, witnesses and circumstances, are one and the same. In the present case, cri minal and departmental proceedings have already noticed or granted on the same s et of facts namely, raid conducted at the appellant’s residence, recovery of art icles therefrom. The Investigating Officer, Mr. V. B. Raval and other department al witnesses were the only witnesses examined by the Enquiry Officer who by rely ing upon their statement came to the conclusion that the charges were establishe d against the appellant. The same witnesses were examined in the criminal case a nd the criminal court on the examination came to the conclusion that the prosecu tion has not proved the guilt alleged against the appellant beyond any reasonabl e doubt and acquitted the appellant by his judicial pronouncement with the findi ng that the charge has not been proved. It is also to be noticed the judicial pr onouncement was made after a regular trial and on hot contest. Under these circu mstances, it would be unjust and unfair and rather oppressive to allow the findi ngs recorded in the departmental proceedings to stand. 32. In our opinion, such facts and evidence in the department as well as cri minal proceedings were the same without there being any iota of difference, the appellant should succeed. The distinction which is usually proved between the de partmental and criminal proceedings on the basis of the approach and burden of p roof would not be applicable in the instant case. Though finding recorded in the domestic enquiry was found to be valid by the Courts below, when there was an h onourable acquittal of the employee during the pendency of the proceedings chall enging the dismissal, the same requires to be taken note of and the decision in Paul Anthony’s case (supra) will apply. We, therefore, hold that the appeal file d by the appellant deserves to be allowed. 11. In the present case charge No.3 partly and charge No.4, essentially, dea ls with the causing of death of Head Constable Saidullah Khan by the petitioner by firing from his service weapon. On the same facts, the petitioner was tried o n a charge under Section 302, I.P.C. The petitioner had set up a plea of self d efence which was the same plea that was taken in the departmental proceeding. In the criminal trial which was closed subsequently the plea set up by the petitio ner was found to be fully established on the basis of the evidence tendered in t he case. In such a situation, the Court is unhesitatingly of the view that the l aw laid down by the Apex Court in G. M. Tank (supra) would squarely apply to the facts of the present case. The relevant part of the findings on the charges ins ofar as causing of death of Head Constable Saidullah Khan is, therefore, interfe red with and set aside. 12. This will bring the Court to a consideration of the remaining charges le velled against the petitioner. The petitioner has been charged for consumption o f alcohol while on duty. In the statement of facts in support of the said charge it has been mentioned that such consumption of liquor was by going to the marke t which was situated nearby. No material has been laid in the departmental proce eding, as evident from a scrutiny of the evidence recorded therein, to the above effect. Though medical examination of the petitioner is claimed to have been ca rried out no report of such examination had been laid before the Court. Under th e first two charges i.e. charge Nos.1 and 2 it has been also alleged that the pe titioner had created commotion/nuisance and had abused his superior officer at t he Puja Mondap. PWs 3 and 9 had categorically denied that any such incident took place. The charge of consumption of alcohol while on duty and misbehviour or co mmission of nuisance at a public place as levelled against the petitioner, there fore, is not substantiated by the evidence and materials on record. 13. The further charge levelled against the petitioner as contained partly i n charge No.3 is that he misbehaved with his superior officer. The evidence of P Ws 2, 4, 5, 6, 8 and 9 makes it amply clear that while the petitioner and the de ceased were returning to the camp after duty from the Puja Mondap they were exch anging heated arguments and once they had reached the Camp and had fallen into l ine for deposit of the arms the petitioner continued to argue with the deceased and had in fact abused him. There is evidence to show that the petitioner had ev en referred to his superior officer (deceased) as not being fit to be a section commander. There is also evidence to the effect that the petitioner had used abu sive language against his superior though there is also material to show that hi s superior officer had behaved in the same way. The evidence of PWs 8 and 9 make s it amply clear that insofar as verbal abuse is concerned it is the petitioner who started it first. In such circumstances, the charge levelled against the pet itioner of using abusive language to his superior officer and showing disrespect to a higher rank, in the considered view of the Court, must be held to have bee n established by the evidence and materials available on record. 14. The next question that has to engage attention of the Court is what reli ef the petitioner is entitled to in view of the conclusion reached and recorded herein above. The imposition of punishment is a managerial function in the case of an industrial employee and that of the employer in other cases. Courts are no t the appropriate authority for deciding as to what should be an adequate measur e of punishment as such decision invariably involves consideration of a wide ran ging variety of facts and circumstances which the Court may not be aware of and may also be singularly ill-equipped to deal with. 15. In the present case the charge of abusing a senior and superior officer and showing disrespect to a senior officer has been proved against the petitione r. In such circumstances, the Court is of the view that what should be the adequ ate measure of punishment on account of the aforesaid charge held to be proved s hould be left to the decision and discretion of the disciplinary authority of th e petitioner. 16. Consequently, the writ petition is allowed. The impugned order dismissin g the petitioner from service is set aside with leave to the respondents to re-d ecide on the quantum of penalty that should now be imposed on the petitioner kee ping in view the findings and conclusions recorded by the Court in the present o rder. The respondents will act promptly in the matter and in any case within a p eriod of three months from the date of receipt of a copy of this order or a cert ified copy thereof.