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Bombay High Court Reinstates CISF Constable Accused Of Raping Colleague's 5 Yrs Old Daughter

Sharmeen Hakim
17 Jan 2022 4:11 AM GMT
Bombay High Court Reinstates CISF Constable Accused Of Raping Colleagues 5 Yrs Old Daughter
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Being accused of heinous crime not reason to not conduct departmental enquiry before dismissal, it held.

The Bombay High Court has held that being accused of a heinous crime is not a good enough reason not to conduct a departmental enquiry before dismissing a constable from service under Rule 39(ii) of the Central Industrial Security Force (CISF) Rules akin to Article 311(2) of the Constitution. The court quashed the Central Industrial Security Force (CISF)'s orders regarding the...

The Bombay High Court has held that being accused of a heinous crime is not a good enough reason not to conduct a departmental enquiry before dismissing a constable from service under Rule 39(ii) of the Central Industrial Security Force (CISF) Rules akin to Article 311(2) of the Constitution.

The court quashed the Central Industrial Security Force (CISF)'s orders regarding the dismissal of a constable for allegedly raping a colleague's five-year-old daughter. Instead, it ordered the constable's reinstatement with a rider that CISF was not barred from initiating an enquiry subsequently.

The division bench of Justices Prasanna Varale and NR Borkar observed,

"We must state that dismissal from service is the harshest punishment and it is akin to economic death penalty for an employee. Therefore, more objective approach was required to be adopted by the disciplinary authority while dispensing with the inquiry."

Thirty-two-year-old CISF constable Udaynath Tirkey posted at Jawaharlal Nehru Port Trust (JNPT) was accused of raping his colleague's 4.8 year-old daughter in 2018. He was booked under sections Section 376(rape) of the IPC and Sections 4 and 8 of the Protection of Children from Sexual Offences (POCSO) Act, 2012.

He approached the court against two orders of CISF, the first order dismissing him from service on April 4, 2018, based on a preliminary enquiry, and the second of the Inspector General CISF upholding the dismissal.

Under Rule 39 akin to Article 311(2) of the Constitution, if the disciplinary authority is satisfied for reasons to be recorded in writing, it is not reasonably practicable to conduct an inquiry in the manner provided in these rules, enquiry need not be held.

The disciplinary authority's four reasons under Rule 39 of CISF Rules for disallowing the constable from presenting his side in the form of a disciplinary enquiry are as follows:

a. The conducting of disciplinary inquiry may hurt the sentiments and emotions of local residents and fellow members of the force.

b. Producing the victim as prosecutor witness in disciplinary inquiry is not feasible. The victim cannot be further subjected to the trauma of cross-examination.

c. The petitioner is already under arrest and will be either in police custody or judicial custody for a long period.

d. The petitioner committed a heinous crime.

The court observed that none of the circumstances, which the disciplinary authority has taken into consideration, can be said to be sufficient to dispense with the disciplinary inquiry. The court cited the authoritative pronouncement of the Supreme Court in the case of Union of India v/s. Tulsiram Patel.

"It appears …that disciplinary authority had got swayed away by the fact that petitioner is involved in the heinous crime and conducting of disciplinary inquiry may hurt the sentiments and emotions of local residents and fellow members of the force."

Arguments

Advocate Rajeev Kumar for the petitioner, pointed out glaring loopholes in the prosecution's story to allege incorrect usage of Rule 39(ii) of the CISF Rules. According to the complainant victim's father, the medical officer at JNPT Hospital informed him about the child's ruptured hymen after which the child narrated the alleged incident. However, the medical officer said that the child had been complaining of itching, did not have a ruptured hymen neither were there injuries on her private parts.

Kumar argued that the FIR thus seems to be lodged on a misconception or malafides of Assistant Commandant P.S. Rawat, who held a grudge against the petitioner.

On the other hand, Advocate Ashok Shetty for the respondents claimed that in compliance with the Rules, the Disciplinary Authority had recorded reasons why it is not reasonably practicable to conduct a regular departmental inquiry. Therefore, the orders deserved to be upheld, he submitted.

Case Title: Udaynath Tirkey v. CISF & Ors.

Citation: 2022 LiveLaw(Bom) 8

Click Here To Read/Download Judgment


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