Delhi High Court
Surat Singh vs Union Of India And Anr. on 17 November, 2008
Author: Mool Chand Garg
Bench: Sanjay Kishan Kaul, Mool Chand Garg
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of reserve: 31.10.2008
Date of decision: 17.11.2008
+ WPC No. 2511/1989
SURAT SINGH ..........Petitioner
Through: Mr. Rishikesh, Advocate
Versus
UNION OF INDIA & ANR. .........Respondents
Through: Gaurav Duggal, Advocate CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL HON'BLE MR. JUSTICE MOOL CHAND GARG
1. Whether the Reporters of local papers may be allowed to see the judgment? Yes
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be Yes reported in the Digest?
MOOL CHAND GARG,J
1. The petitioner joined services as Security Guard in Central Industrial Security Force (in short "CISF") on 11.02.1977. He was later designated as Constable. On 5.12.1985 his Commandant issued him a Charge Sheet containing the following two charges;
"Charge No.I No. 7736134 Constable Surat Singh of CISF Unit PPT Paradip is charged with gross indisciplined conduct in that while deployed at Fishing Gate for „B‟ shift duty on and 27.10.85, he deserted the duty post at about 1900 hrs and was found quarreling with a tempo driver in an indisciplined manner attracting a large number of the public Charge No. II No. 7736134 Constable Surat Singh of CISF Unit P.T. Paradip is charged with grave misconduct in that on 30.10.85 at about WPC No. 2511/1989 Page 1 of 12 2150 hrs when checked by Shri B.S. Das Mahapatra, Asstt. Commandant No. 7736134 Constable Surat Singh was found in possession of loose coins and currency notes amounting to Rs. 21.40 from his own pocket in contravention of this office order No. E-42013/1/84/Adm-5350 dated 13.11.84 at the fishing gate where he was deployed for „B‟ shift duty on 30.10.85. He failed to give any satisfactory account about the possession of extra cash in his possession to Asstt. Commandant B.C. Das Mahapatra."
2. Since the written statement of the petitioner was not found satisfactory, the Commandant directed holding of an enquiry against the petitioner under Rule 34 of the CISF Rules in respect of the aforesaid charges by the Assistant Commandant. The Enquiry Officer exonerated the petitioner of the First charge, but found him guilty of the second charge. The Commandant, based upon the report of the enquiry officer and taking into consideration his past record, sentenced him to be dismissed from service on 16th January, 1987. An appeal filed against the aforesaid order was dismissed by the Deputy Inspector General, CISF, Eastern Zone vide order dated 10.6.1987. The revision petition filed by the petitioner also met the same fate as it was also dismissed by the Inspector General vide orders dated 16.9.1988. The petitioner claims to have also filed another petition under Article 49 of the CISF Rules, 1969 on 1.12.1988 (though denied by the respondents) but it was of no avail. The petitioner by way of filing the present writ petition has prayed for the issuance of appropriate writ/direction for quashing his conviction and sentence of dismissal and has also prayed for his reinstatement in service with all consequential benefits.
3. The learned counsel appearing for the petitioner has assailed the punishment of dismissal in respect to the second WPC No. 2511/1989 Page 2 of 12 charge and submitted that the punishment was not sustainable for the following reasons:-
i) No show cause notice was served upon the petitioner before imposing the punishment of dismissal (a major punishment) though required under Rule 34(10)(ii)(b)(c) of the CISF Rules framed under the CISF Act, 1969 (for short 'the Act').
ii) The Office Order dated 31.11.1984 allegedly violated by the petitioner had been issued by the Commandant, who had no authority or jurisdiction to issue such an order, instructions or directions in as much as, it tantamounts to exercising powers to frame laws or amend the laws enacted by the Parliament.
iii) Even otherwise, taking into consideration the provisions of Section 8 of the Act, the aforesaid punishment ought not to have been inflicted upon the petitioner merely because he was found in possession of an amount more than the permissible limit at the time of his search, which is not an offence involving moral turpitude or involving the petitioner in some corruption charges and, therefore, could not have been subject of awarding major punishment.
iv) Petitioner has made a reference to the judgments of the Hon'ble Supreme Court in Raj Kumar Vs. Union of India, AIR 1969 SC 180 and Kerala Financial Corporation Vs. Commissioner of Income-Tax, AIR 1994 SC 2416.
4. On the other hand, the respondents justified the punishment awarded to the petitioner primarily on the ground of WPC No. 2511/1989 Page 3 of 12 the punishments imposed upon him under the CISF Rules on 8 occasions prior to the incident in question. They have detailed those incidents and the punishments awarded as follows:-
"i) Being found guilty of the charge of grave indiscipline in that he was found sleeping while on duty, he was awarded the punishment of „ stoppage of increment for one year‟ vide commandant, CISF Unit, FCI Sindri Order No. V-15012/1/78/Admn.I/159 dated 26.5.1978.
ii) Being found guilty of charge of grave indiscipline and misconduct in that while under influence of liquor he quarreled with Security Guard Hardwari lal and created nuisance in camp, he was awarded the punishment of „Stoppage of one increment for one year with cumulative effect‟ vide Unit Service Order Part, II No. 78/79 dated 24.11.1979 of CISF Unit, FCI Sindhri.
iii) Being found guilty of charge of grave misconduct in that he flatly refused to accept the official letter he was awarded the punishment of "Censure" vide Unit Service Order Part-II No. 582/80 dated 13.9.1980 of CISF Unit, Rourkela Steel Plant, Rourkela.
iv) Being found guilty of charge of grave misconduct in that he did not turn up to perform "B" shift duty on 15.4.1980 and was found lying on his cot fully drunk and used filthy languages and assaulted his superior, for which he was awarded the punishment of „stoppage of increment for a period of two years without cumulative effect‟, vide Unit Service Order Part-II No. 581/80 dated 13.9.1980 of CISF Unit, R.S.P. Rourkela.
v) Awarded the punishment of „fine equal to 02 days pay for sleeping at at the duty post on 20.8.1981 vide Unit Service Order Part-II No. 113/1981 dated 1.11.81 of CISF Unit, FBP Farakka.
vi) Awarded the punishment of „Stoppage of one increment without cumulative effect for sleeping on duty, vide CISF Unit, FBP Farakka order No. V-
15015/Admn./FBP/6620 dated 31.10.1981.
vii) Awarded the punishment of „pay fine equal to one day‟ for absenting from morning parade on 14.2.86 vide Unit Service Order Part.II No. 119/86 dated 27.11.86 of CISF Unit, PPT Paradip.
Viii) Awarded the punishment of „Censure‟ for absenting from his duty post on 29.9.1986, vide order No. V-15011/1/86/Disc./F.O./7175 dated 18.12.86 of CISF Unit, PPT Paradip."
5. It is submitted that in respect of the second charge there is no dispute that the petitioner was found in possession of a sum of Rs. 21.40 while on duty which is contrary to the order issued in this regard by the Commandant and for which he failed to give WPC No. 2511/1989 Page 4 of 12 any satisfactory explanation. It has been submitted that the punishment was in accordance with the provision of Section 8 of the Act which inter alia provides that any supervisory officer may dismiss any enrolled member of the Force whom he thinks remiss or negligent in the discharge of his duty or unfit for the same. Section 8 of the Act is reproduced hereunder:
"8. Dismissal, removal etc. of enrolled members of the Force :- Subject to the provisions of article 311 of the Constitution and to such rules as the Central Government may make under this Act supervisory officer may -
(i) dismiss, remove, order of compulsory retirement or reduce in rank any "enrolled" member of the Force whom he thinks remiss or negligent in the discharge of his duty, or unfit for the same; or
(ii) award any one or more of the following punishments to any "enrolled" member of the Force who discharge his duty in a careless or negligent manner, or who by any act of his own renders himself unfit for the discharge thereof, namely:-
(a) fine to any amount not exceeding seven days pay or reduction in pay scale;
(b) drill, extra guard, fatigue or other duty.
(c) removal from any office or distinction or deprivation of any special emolument.
(d) withholding of increment of pay with or without cumulative effect.
(e) withholding of promotion.
(f) Censure"
6. It is submitted that the second charge attracted provision of Section 8 of the Act, 1968 and as such the penalty was imposed upon the petitioner.
7. Thus, the respondents have also submitted that Rule 34 of the Rules framed under the CISF Act, 1968 was amended in 1982, i.e., prior to the date when the petitioner was held guilty of the second charge and in accordance with the said rule, there is no requirement to give any notice to the petitioner before inflicting WPC No. 2511/1989 Page 5 of 12 the penalty of dismissal upon him. Reference has been made to the amended rule. Sub-Rule 10(i) of which reads as under:
(10)(i) If the disciplinary authority, having regard to its findings on the charges is of the opinion that any of the penalties specified in Cls. (a) to (h) of rule 31 should be imposed, it shall pass appropriate orders in the case.
8. We have heard the submissions made by learned counsel for the parties. It may be observed that the scope of interference by this Court in respect of any departmental enquiry/Court Martial proceeding is limited to the extent of holding a judicial review so as to examine if there is any violation of the statute or the rules framed thereunder and further to find out if the process adopted in convicting and sentencing the accused does not suffer from any bias or mala fide which may vitiate the trial. Interference is also called for if the sentence imposed upon the accused is found to be shockingly disproportionate. Thus, there being no dispute that the petitioner was found in possession of a sum of Rs.21.40 which is a violation of an administrative instruction issued by the authorities which have been issued so as to ensure that there is no corruption or that corruption is checked, no infirmity can be found insofar as the findings of enquiry officer is concerned.
9. On a perusal of Section 8 of the Act and Rule 34 framed thereunder, it cannot be disputed that the punishment of dismissal can be imposed upon an accused held guilty of the charges leveled against him if the competent authority thinks that the accused was remiss or negligent in discharge of his duty or was found unfit for the same.
10. During the course of argument, the learned counsel for the WPC No. 2511/1989 Page 6 of 12 petitioner emphasized that in the present case, there was no occasion to have imposed the punishment of dismissal against the petitioner which is not only excessive, vindictive, harsh, exorbitant but is also grossly disproportionate to the charges leveled against him and is not commensurate with the gravity of the alleged offence and as such the said punishment is liable to be quashed and set aside. In this regard, the petitioner has relied upon Kailash Nath Gupta Vs. Enquiry Officer, (R.K. Rai), Allahabad Bank & Ors (2003) 9 SCC 480, Dev Singh Vs. Punjab Tourism Development Corporation Ltd. & Anr. (2003) 8 SCC 9, Ex. Naik Sardar Singh Vs. Union of India & Ors. AIR 1992 SC 417, Union of India & Ors. Vs. Giriraj Sharma AIR 1994 SC 215 and Ranjit Thakur Vs. Union of India (1987) 4 SCC 611.
11. The petitioner has also relied upon a Division Bench judgment of this Court as reported in Ex.Sepoy Sube Singh Vs. UOI and Ors., 140 (2007) DLT 26 DB, where it has been held as under:
"We are of the view that the minimum which the petitioner must be held entitled to, is the service pension and other benefits due upon completion of the 15 years of service in the Indian Army. This can be achieved by directing that instead of the petitioner's discharge taking effect on the date mentioned in the impugned order, the same shall take effect on the date he would have completed 15 years of pensionable service. Consequently, the petitioner's discharge pursuant to the impugned order of discharge shall be deemed to have taken effect from 21st October, 2002. The extended period of service will not however entitle the petitioner to any arrears of salary, but for purposes of all retiral/pensionary benefits, the petitioner shall be deemed to have completed his pensionable service as on the date of his discharge. The respondents shall in consequence of the above, process the petitioner's case for payment of pension and ensure that the same is released to the petitioner expeditiously but not later than six months from the date of the pronouncement of this order."
12. In the present case, two basic questions arise for WPC No. 2511/1989 Page 7 of 12 consideration:
i) There is nothing on record to prove that a show cause notice was issued to the petitioner before imposing major punishment of dismissal upon him as is required by Sub-
Rule 10(ii) Sub-Clause (b) of Rule 34 of the CISF Rules framed under the Act.
ii) The allegation made by the petitioner that the relevant Office Order which is alleged to have been violated by the petitioner is not an order issued by the competent authority or by an authority empowered to issue such an instruction.
13. Insofar as the first objection taken by the petitioner regarding existence of Sub-Rule 10(ii) Sub-clause (b) of Rule 34 of the CISF Rules requiring issuance of a show cause to be issued to the petitioner before awarding the major punishment of dismissal is concerned, the respondents in their written submissions have pointed out that the aforesaid Rule, as it existed when the punishment was ordered, did not provide for issuance of any show cause notice prior to imposition of a major punishment to the accused if the disciplinary authority on the basis of the evidence, which has come on record, is of the view that a major punishment can be imposed upon an accused, i.e., the petitioner in this case. Insofar as the first objection taken by the petitioner regarding non-issuance of a show cause notice before imposing the penalty of dismissal relying upon sub-rule 10(ii) sub clause B of Rule 34 CISF Rules, 1969 is concerned, the respondents have WPC No. 2511/1989 Page 8 of 12 placed before us a copy of the amended Rules which was applicable at the relevant time and which does not require issuance of any show cause notice. The Rules were amended on 28.11.1981 vide G.S.R. 1109 by the Central Government pursuant to powers conferred upon them under Section 22 of the Central Industrial Security Force Act, 1968. According to the amended Rules for sub clause (ii) of sub-rule 10 of Rule 34 following had been substituted:
„‟(ii) If it is of the opinion that any of the penalties specified in clauses (a) to (d) of rule 31 should be imposed, such penalty may be imposed on the basis of evidence adduced during inquiry and it shall not be necessary to give the member of the Force any opportunity of making representation on the penalty proposed."
14. In view of that reliance placed by learned counsel for the petitioner on sub rule 10 (ii) sub clause B of Rule 34 of the CISF Rules, 1969, which stood amended, is of no consequence and as such the first point raised by the petitioner is rejected.
15. However, insofar as the second point is concerned, the offence committed by the petitioner is only in relation to the office order issued by the Commandant. There is nothing on record which may go to show that the said office order had any sanction of the rule making authorities or that of the statute.
Thus, violation of the said office order, which is in the nature of an administrative instruction, is not supposed to attract the penalty of dismissal imposed upon the petitioner even though he suffered some punishment earlier, more so, because having more money in one's pocket though may be violative of the office order issued by the Commandant does not ipso facto mean that the WPC No. 2511/1989 Page 9 of 12 said money was money received by the petitioner illegally or was a proof of corruption. Thus, the punishment of dismissal imposed upon the petitioner has to be declared as disproportionate to the crime committed by the petitioner for the simple reason that the power available with the Commandant under Section 8 of the Act to dismiss an incumbent from service cannot be directed for violating office order which does not have a sanction of any statute or the Rules framed by the Central Government and is only violation of an office order issued by the Commandant at his own level. This point, though raised by the petitioner before the inquiry officer, the appellate authority, the revisional authority as well as before us has not been satisfactorily explained and replied by the respondents. The only justification given is that no proper explanation was furnished by the petitioner about possessing higher amount than permissible and having not disclosed the possession of the entire amount at the first go. However, in this regard the enquiry officer has simply brushed aside the explanation furnished by the petitioner with respect to the possession of the higher amount, which it is stated, was a balance returned to him by the medicine vendor out of a note of Rs. 50/- which was given by the petitioner to the said vendor for the purchase of medicine.
16. In these circumstances, we are of the considered view that the punishment imposed upon the petitioner dismissing him from service is disproportionate to the second charge proved against the petitioner and requires interference by this Court while exercising its power under Article 226 as the said punishment is WPC No. 2511/1989 Page 10 of 12 disproportionate to the alleged violation, i.e., having more money in one's pocket than as provided by the Office Order issued by the Commandant himself having no sanction of either the Act or the Rules framed thereunder. However, taking into consideration the period which has elapsed since the impugned order dated 16.01.1987 was passed, we are of the view that it would be appropriate to mould the relief which can be granted to the petitioner taking into consideration the judgment delivered by a Division Bench of this Court in Sube Singh's case (Supra), i.e., to convert the punishment of dismissal into that of the compulsory retirement but with a direction that the petitioner will be deemed to be in service till such time he attains pensionable service.
17. This direction is necessitated taking into consideration the fact that the petitioner joined CISF in 1977 and continued to serve the respondents at least till 16th of January, 1987 when he was dismissed from service and further his appeal and revision were dismissed only on 16th of September 1988. While passing the aforesaid directions, we are constrained to observe that even the Appellate Authority has not dealt with the legal pleas raised by the petitioner, as aforesaid. The Revisional Authority has simply dittoed the order passed by the appellate authority without even dealing with the submissions, as aforesaid. In view of the aforesaid conclusion drawn by us, there is no need to discuss other judgments cited by the petitioner.
18. A writ of mandamus is issued thereby directing the respondents to treat the petitioner in service and have compulsory retired from service on completion of pensionable WPC No. 2511/1989 Page 11 of 12 service with the entitlement of pension and other retiral benefits from such notional date of retirement without any back-wages. The retiral benefits because of the back wages and the arrears of pension pursuant to this order be remitted to the petitioner within a period of three months from today.
19. The petition is allowed in the aforesaid terms leaving the parties to bear their own costs.
MOOL CHAND GARG, J SANJAY KISHAN KAUL, J NOVEMBER 17, 2008 sv/ag WPC No. 2511/1989 Page 12 of 12