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Wednesday, January 26, 2022

Bombay HC reinstates CISF constable booked for sexually abusing colleague’s minor girl

The court said, dismissal from service is the “harshest punishment akin to economic death penalty” for an employee and therefore a more objective approach should have been shown by the disciplinary authority.

Written by Omkar Gokhale | Mumbai |
Updated: January 15, 2022 3:21:29 pm
The FIR was lodged against the petitioner on March 29, 2018, for offences punishable under Section 376 of the IPC and relevant provisions of the Protection of Children from Sexual Offences (POCSO) Act, 2012. (File)

The Bombay High Court Friday set aside an order by the Central Industrial Security Force (CISF) unit at the Jawaharlal Nehru Port Trust that dismissed in April 2018 from service a 32-year-old constable for allegedly raping and sexually abusing a nearly 5-year-old daughter of one of his colleagues.

The order was set aside as the accused was dismissed without a regular departmental inquiry and not given an opportunity to defend the charges. The High Court also directed the security force to reinstate him.

After perusing submissions, Justice Borkar, who authored the verdict for the bench, observed dismissal from service is the “harshest punishment akin to economic death penalty” for an employee and therefore a more objective approach should have been shown by the disciplinary authority. It added that instead, it got “swayed away” with a presumption that it may hurt sentiments of local residents and other members of the force.

The petitioner claimed that the case against him was out of misconception and filed with malafide at the instance of the respondent colleague, who in the past was angry with the petitioner.

A division bench of Justice Prasanna B Varale and Justice Nitin R Borkar Friday passed the judgment in the constable’s plea.

The FIR was lodged against the petitioner on March 29, 2018, for offences punishable under Section 376 of the IPC and relevant provisions of the Protection of Children from Sexual Offences (POCSO) Act, 2012.

On receipt of the preliminary inquiry report and the report of the Intelligence Wing, the Disciplinary Authority on April 4, 2018 passed the order dismissing the petitioner from service citing CISF Rules which permit not holding a disciplinary inquiry.

CISF had noted that the petitioner had committed a “heinous crime” and “conducting of disciplinary inquiry may hurt the sentiments and emotions of local residents and fellow members of the force”.

It added, “Producing a victim as a prosecutor witness in a disciplinary inquiry is not feasible. The victim cannot be further subjected to trauma of cross-examination. The petitioner is already under arrest and will be either in police custody or judicial custody for a long period.”

The petitioner was dismissed while he was in judicial custody and was later released on bail.

Advocate Rajeev N Kumar, representing the petitioner, submitted that malafide on part of the respondent colleague are “writ-large” as an order of the suspension was passed even before the registration of crime and the authorities ought to have conducted regular departmental inquiry granting opportunity for the petitioner to be heard.

Kumar also added that there was a delay in lodging the FIR. He added that the medical examination of the victim was conducted and the report neither suggested any injury on the private parts nor was the hymen ruptured, which established that the complaint was wrongly filed by the father of the victim with “malafide” intentions.

The bench referred to a Supreme Court verdict and added, “However, it appears from the order impugned that the respondent disciplinary authority had got swayed away by the fact that petitioner is involved in heinous crime and conducting of disciplinary inquiry may hurt the sentiments and emotions of local residents and fellow members of the force. None of the circumstances, which the disciplinary authority has taken into consideration, can be said to be sufficient to dispense with disciplinary inquiry.”

Holding that the impugned order “cannot be sustained”, the bench allowed the plea and directed the authority to reinstate the petitioner with all “consequential benefits”.

The court also clarified that the respondents are not precluded from initiating departmental inquiry against the petitioner or suspending him after reinstatement during the pendency of disciplinary inquiry/criminal trial in accordance with the law.

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