ABHAY KUMAR NAYAK Vs. UNION OF INDIA

JUDGEMENT

(1.) This case has brought to lime light the havoc that cold and rigid approach and attitude may cause to a human being when a modicum of compassion and humanism could have brought about his salvation. On the forensic plane, however, it raises the question : Is the dismissal of the petitioner -a constable in the Central Reserve Police Force -just, fair and reasonable ?

(2.) THE Central Reserve Police Force was constituted under Central Act LXVI of 1949. Inter alias, its duty was to preserve and restore order in any local area within the Union in the event of disturbance therein. The petitioner was appointed to the force as a constable with effect from September 20, 1971. For a decade he served at different places inside the Union and at the relevant time he was posted at Bhubaneswar, the battalion headquarters. On May 11, 1983, he was commanded to relieve a constable of the 66th battalion who was to proceed on leave. He was to accompany a unit which was also proceeding to Mizoram. The petitioner has alleged that though the other members of the unit were provided with arms and ammunitions, he was not provided with the same. He apprehended danger to his life, His pleading for supply of arms went unheeded. Adequate allowance was not provided. Out of Rs. 200/ - given to him, he was directed to pay Rs. 150/ - to his wife for maintenance of his family which would be left behind. The petitioner complained of the inadequate funds that he was to carry. He has alleged that his life was twice in danger at the hands of the terrorists but due to sheer luck, he could survive. Despite such happenings, his Commandant refused to provide him with arms. He was directed after sometime to return to his headquarters. On the way he was not provided with food. As he had no money, he starved. He has made some allegations against the Commander of the unit. Return from Mizoram not being relevant, it is unnecessary to recount the same. He was placed under suspension on May 13, 1983. For a month and a half, he was not given subsistence allowance. A sum of Rs. 90/ - only was paid out of the Reserve Police Fund. A copy of the memorandum initiating the proceeding has been filed as Annexure -B. Four heads of charges were framed and were as hereunder : 'Article -I That the said No. 710506034 Ct. Abhoy Kumar Nayak in his capacity of a member of the force refused to perform duty without arms when called upon to do so by a lawful authority. His such refusal amounts to an act of disobedience under Section 11(1) of CRPF Act, 1949. Article -II That the said No. 710606034 Ct. Abhoy Kumar Nayak as a member of a party which was returning from 66 Bn. CRPF to GC, CRPF, Bhubaneswar en -route misbehaved with the party commander No. 680381018 NK Kedar Nath Pal and against the order of the party commander left the party and his personal belongings at Howrah Railway Station and returned alone, of his own, to GC, CRPF, Bhubaneswar. His action amounts to acts of disobedience and misconduct under Section 11(1) of CRPF Act, 1949. Article -III That the said No. 710606034 Ct. Abhoy Kumar Nayak misbehaved with the SM Har Lai in roll call and spoke in a manner unbecoming of a member of the force. His action amounts to acts of disobedience and misconduct under Section 11(1) of CRPF Act, 1949. Article -IV That the said No. 710606034 Ct. Abhoy Kumar Nayak while in close arrest in GC, Q. C. refused to take his meals in spite of direction to do so. His action amounts to acts of disobedience and misconduct under Section 11(1) of CRPF Act, 1949.' The petitioner has alleged that copies of the complaint, statements of witnesses on the basis whereof the proceeding was initiated were not furnished to him. Dates of enquiry were not intimated to him. He was placed under cell and witnesses were not examined in his presence in violation of all accepted principles and provisions contained in Rule 27 of Central Reserve Police Force Rules, 1955. Order of dismissal as per Annexure -1 was passed by the Commandant (opposite party No. 4) in the enquiry conducted behind his back Copy of the report of the enquiring officer and copies of the statements of witnesses examined during the enquiry were not furnished to him. He preferred an appeal in darkness without knowing the materials placed against him in the enquiry, the reasoning and the findings of the enquiring officer. The appeal was dismissed by the Deputy Inspector General of Police (opposite party No. 7) as per Annexure -5. The petitioner has alleged that for 12 years, he has rendered blameless service. For his commendable service, he was given the 'Kathin Seva' award and his service -sheet is without a blot. The rest of the lamentations in the writ application are not relevant for our purpose,

(3.) DURING hearing, the case took a different shape. In paragraph -8 it has been alleged by the, petitioner that on March 7, 1983, he was taken to the Group Hospital of the battalion at Bhubaneswar and was admitted as an indoor patient and was then referred to the Government Medical College at Cuttack (S. C. B Medical College and Hospital) for advice and treatment. He was examined by Dr. Bimbadhar Das, Professor of Psychiatry and Mental Hygiene and a course of treatment was prescribed. This aspect has been admitted by the opposite parties in paragraph -4 of the return. It is stated : '.. In the month of March, 1983, the petitioner was found to be behaving irrationally and for that reason he was sent to Medical College, Cuttack, on the advice of Medical Officer in charge of Group Centre, CRPF, Bhubaneswar, where he was examined by the Doctor.' Annexure -A, the report submitted by the Commandant 66th Bn. CRPF, Mizoram, is very revealing and is as follows : 'No. 710606034 Ct. A. K. Naik of your Group Centre had reported at this location with a party of Tear Smoke personnel under command of No. 680383485 NK. G. P. Sukla on 20.5.1983. On arrival at this location the party was kept at the Bn. Hqr. Right from the day the party had reached at this location, it was found that No. 710606034 Ct. A. K. Naik was in the habit of talking and acting in a strange manner. On 21.5.1983, be was produced for interview in the office of the Adjutant. The constable was wearing a large 'Tilak' on his forehead while he was in full uniform. He was advised by the subordinate staff to remove the 'Tilak' before he was marched in the office. The constable refused to comply. When questioned by the Adjutant also he started on with a string of irrelevant and incomprehensive replies. The Commandant also interviewed him. When questioned about the 'Tilak' the constable started stating that he is a Panda from Jagannath Puri and he will always wear the 'Tilak' and such gibberish. The constable was kept under observation. During the course of his stay it transpired that he was sent from GC, CRPF, Bhubaneswar, against his wishes on attachment to this unit and his family was at GC, CRPF, Bhubaneswar, and the constable declined to perform normal duties on the plea that he was having some direct communication with his 'God'. Since his case was suspected to be one of mental ailment, he was despatched back to GC, CRPF, Bhubaneswar, on 23.5.1983.' These materials changed the complexion of the problem and inclined us to think that possibly the real issue had been side -tracked and we were following a false scent. The matter required examination in depth. We thereupon called upon the parties to file further affidavits and documents relating to the illness of the petitioner since March, 1983. Pursuant to our direction, the petitioner filed Annexure -11 series, the tickets and prescriptions granted by the physician at the Group Hospital and the physician at the S. C. B. Medical College and Hospital. The opposite parties produced the original record maintained at the Group Hospital relating to the petitioner. We would refer to the documents a little later. At this stage we may refer to the pleadings. The petitioner in his rejoinder has stated that he was not aware why he hid been sent to the Specialist at the S. C. B. Medical College and Hospital. Later on he was told that he was suffering from 'Manic depressive psychosis', he had not the means to purchase the medicines prescribed. The opposite parties in their return have admitted that the petitioner was under treatment from 21 -5 -U83 31 -8 -1983. There was no material to show that the petitioner was under treatment from 1 -4 -1983 to 2 -6 -1983 as alleged by the petitioner. The charges related to the period when he was not ill, i.e., the incidents dated 11 -5 -1983, 23 -5 -1983,28 -84983 and 29 -8 -1983. They have admitted that he was under treatment at the Group Hospital from 8 -6 -1983 to 11 -6 -1983 for mental ailment. But he was normal on 12 -6 -1983. He again complained of mental trouble on 17 -6 -1983 and was treated at the hospital. Regarding the conduct during the enquiry, they have averred that the petitioner appeared on June 26, 1983 and expressed that he would not participate as he did not believe in oral enquiry nor did he give any reply to the questions asked by the enquiring officer.