MUKESH NIGAM Vs. STATE OF UTTARAKHAND
LAWS(UTN)-2013-2-44
HIGH COURT OF UTTARAKHAND
Decided on February 25,2013

MUKESH NIGAM Appellant
VERSUS
STATE OF UTTARAKHAND Respondents

JUDGEMENT

BARIN GHOSH, J. - (1.) A person in custody was being shifted from one place to the other. While shifting him, it became necessary to take a train journey. The person was accompanied by two police constables, of whom one was the appellant. By jumping from the train, the person concerned managed to escape. The companion constable of the appellant tried to prevent the person from jumping from the train, but was unsuccessful, as he was dragged out from the train by the person concerned. Appellant remained in the train watching the situation. After the matter was reported, a preliminary inquiry was made, when it was suggested that the appellant remained a mute spectator during the episode. On the basis thereof, a charge -sheet was issued. That was replied by the appellant. In the reply, appellant held out that the person, who escaped, made him to drink something, which led to his unconsciousness and, taking advantage of the situation, the person concerned escaped by jumping from the train. On receiving this reply, by an order, the disciplinary authority dismissed the appellant from his service. Aggrieved thereby, appellant preferred an appeal, followed by a revision and, having lost in both, approached this Court by filing a writ petition, which has been dismissed by the judgment and order under appeal.
(2.) THE contention of the appellant is that the impugned decision was taken in a hurry, without conducting a proper inquiry, and giving the appellant an opportunity to defend himself.
(3.) OPPORTUNITY to defend, in the instant case, is statutory in nature. Issuance of the charge -sheet, itself, was while informing the appellant what were the charges against him, but equally to give him an opportunity to defend against those charges. Appellant gave a reply to the charge -sheet and, therein, accepted the fact that he was a mute spectator while the escape took place. He justified his mute conduct on the basis of some outside influence inflicted on him, but by the person who escaped. In other words, he stated that he remained mute because he became unconscious for he had consumed something, which was supplied to him by the person, who escaped. This being the situation projected by the appellant himself in three dimensions before the disciplinary authority, nothing further was required to be enquired. The person, who escaped, was given in custody of the appellant. Appellant was so naive that he permitted himself to become unconscious by allowing that person in custody to give him something to be eaten and, consequentially, to become unconscious. If a decision has been taken to remove such kind of a person, judicial review court cannot say that the decision is interferable. The appeal fails and the same is dismissed.;


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