Himachal Pradesh High Court
Sh. Shankar Dass vs Union Of India Through Its Secretary on 1 October, 2021
Author: Chander Bhusan Barowalia
Bench: Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE Ist DAY OF OCTOBER, 2021
BEFORE
HON'BLE MR. JUSTICE CHANDER BHUSAN BAROWALIA,
JUDGE
.
CIVIL WRIT PETITION NO.1515 of 2012
Between:
SH. SHANKAR DASS
S/O LATE SH. TULSI RAM
R/O VILLAGE DETHAL,
P.O. KUMARSAIN,
TEHSIL KUMARSAIN, DISTRICT SHIMLA,
(H.P.) ......PETITIONER
(BY SH. RAMESH SHARMA, ADVOCATE)
AND
1. UNION OF INDIA THROUGH ITS SECRETARY
(MINISTRY OF HOME AFFAIRS) NORTH BLOCK
NEW DELHI.
2. DIRECTOR GENERAL, CENTRAL INDUSTRIAL
SECURITY FORCE, 13 CGO COMPLEX,
LODHI ROAD, NEW DELHI.
3. DEPUTY INSPECTOR GENERAL, CENTRAL INDUSTRIAL
SECURITY FORCE, 16/11 JAMNAGAR HOUSE,
NEW DELHI110011.
4. COMMANDANT, CENTRAL INDUSTRIAL SECURITY
FORCE UNIT GOVERNMENT BUILDING SECURITY
(GBS) NORTH BLOCK (MHA), NEW DELHI.
5. REGIONAL PAY AND ACCOUNTANT OFFICER,
CENTRAL INDUSTRIAL SECURITY FORCE,
CGO COMPLEX, LODHI ROAD, NEW DELHI.
DISTRICT SIRMOUR, H.P. ......RESPONDENTS
(BY SH. LOKENDER PAUL THAKUR,
SENIOR PANEL COUNSEL)
WHETHER APPROVED FOR REPORTING? Yes
This petition coming on for hearing this day, Hon'ble Mr.
Justice Chander Bhusan Barowalia, delivered the following:
JUDGMENT
The present petition is maintained by the petitioner for the grant of following substantive reliefs : ::: Downloaded on - 31/01/2022 23:09:29 :::CIS 2
(i) "To declare the acts of respondent while passing the punishment order reduction to lower time scale of pay vide Annexure P14, dismissal of appeal order Annexure P16 and revised order of punishment Annexure .
P18, as an arbitrary, discriminatory and illegal hence quash and set aside the Annexure P14, dated 17.3.2011, Annexure P16, dated 7.7.2011 and Annexure P18 dated 28.12.2011, in the interest of justice;
ii) To quash and set aside the impugned orders of respondents because it is against the principles of natural justice being passed against provisions of laws. It is submitted that no revised order can be passed without hearing the concerned member. No revised order can be passed by same officer under rule 54 of CISF Rules 2001;
iii) To direct the respondents to pay all consequential benefits of retirement, gratuity etc. along with 12% interest to the petitioner forthwith;
iv) To direct respondents to pay the pension as per CCS Pension Rules forthwith. The arrear may be directed to be paid with interest @12% to the petitioner;
v) To direct respondents to pay the petitioner the cost of the petition and to produce the record of the case before this Hon'ble Court.
2. As per the petitioner, he was appointed as Constable with the respondents, vide enrollment No.761300229, on 23.9.1976 and he was posted in Steel Plant at Durgapur (West Bengal). The petitioner served ::: Downloaded on - 31/01/2022 23:09:29 :::CIS 3 with the respondents at different stations in the Country.
He was promoted, as Head Constable in the year 1997 and was posted in National Fertilizer Ltd. Nangal .
(Punjab). Thereafter, in June, 2008, the petitioner was transferred to GBS (Govt. Building Security) North Block, New Delhi and served there till June, 2011.
Thereafter, he was transferred to Bharat Heavy Electrical Ltd., Haridwar and till he got volunteer retirement on 30.9.2011, he served there. Further, the petitioner served the respondents with his best ability and his services has always been appreciated by his superiors.
3. It has been submitted that in the year 2010, when the applicant was serving in Government Building Security North Block, New Delhi, a sting operation was conducted by the News 'X' Channel on 4.6.2010 in the said building and it has been alleged that the petitioner and one Lady Constable namely Smt. Annu Kumari were deputed at Gate No.6 IN on 4th June, 2010 and their duty hours were w.e.f. 13.00 O'clock to 21.00 O'clock and both while on duty, allowed a media person to enter Gate No.6 ::: Downloaded on - 31/01/2022 23:09:29 :::CIS 4 IN without checking the pass or Identity Card. It has been submitted that only the petitioner was suspended on this account and no action was taken against the .
other Lady Constable. The petitioner was suspended on 11.8.2010 by respondent No.3 and his Headquarters was fixed at Hqrs. Coy, CISF Unit, GBS, Mahipalpur, New Delhi and the said suspension order was revoked by P2).
r to respondent No.3, vide letter, dated 7.10.2010 (Annexure
4. It has been averred that respondent No.4 issued a memorandum of charges against the petitioner vide letter dated 20.9.2010 and the petitioner was also issued the statement of Inspector Shri R.L. Mina and statement of petitioner, which was recorded by respondent No.4 on 26.8.2010. The petitioner wrote a letter to respondent No.3, to supply him unedited CD, which was shown to him on 07.07.2010 in DIG office, Jamnagar and the statement of Lady Constable Annu Kumari vide letter dated 8.11.2010. Respondent No.3 appointed Assistant Commandant Sh. D.S. Sankhyan, as Enquiry Officer on 7.10.2010. The Enquiry Officer ::: Downloaded on - 31/01/2022 23:09:29 :::CIS 5 examined the petitioner before departmental enquiry on 30.10.2010, in which the petitioner again claimed the unedited CD shown to him on 7.7.2010 in the office of .
DIG at Jamnagar and the statement of Lady Constable Annu Kumari and during this proceeding, the statement of Working Incharge, namely Sh. R.L. Mina was again recorded. It has been submitted that said Sh. Mina also saw the alleged CD prepared by the media person in DIG office on 7.7.2010 and he had said in his cross examination that in said CD Lady Constable was shown while checking the pass of sting operating man. The Lady Constable was produced, as witness against the petitioner and said Lady Constable, who was on duty with the petitioner on that day for all hours, has stated that the petitioner has not allowed any person to enter the Gate No.6 IN without Pass and Identity card.
Therefore, both these witnesses thrashed the enquiry against the petitioner, but the Enquiry Officer continued the enquiry and again examined the petitioner on 1.1.2011.
5. It has been submitted that the petitioner was ::: Downloaded on - 31/01/2022 23:09:29 :::CIS 6 given statement of Constable Annu Kumari and a CD by the Enquiry Officer vide letter dated 4/512011, after initiating the enquiry and recording the statement of .
petitioner and CD sent to petitioner was not same, which was shown to him on 7.7.2010 in DIG office at Jamnagar by respondent No.4 and was only basis of enquiry. The petitioner again wrote a letter to the Enquiry Officer on 9.1.2011, stating therein that CD supplied to him is not the same and there is editing in it and supply the same unedited CD.
6. It has been submitted that the Enquiry Officer on the basis of examination of the petitioner, statement of Incharge Sh. R.L. Mina, statement of Lady Constable Annu Kumari and the edited CD, submitted the enquiry report to the Disciplinary Authority i.e. respondent No.4 on 3.2.2011. It has been averred that in enquiry report, the Enquiry Officer has also observed that no charge is proved after perusing the statements of PW1 and PW2, as well as, perusing and watching the CD received alongwith the department file. Paras 16 demonstrate that no charge is proved against the ::: Downloaded on - 31/01/2022 23:09:29 :::CIS 7 petitioner. Further, it has been stated in the report that there is one more CISF employee at the Gate at that time, but no efforts were made to the effect that who was .
that employee and why he has not been initiated in the enquiry, when both the deputed employee denies entry of any person without Pass inside the gate. The Enquiry Officer has also stated that CDs are different, in one CD Lady Constable has been shown while checking the pass and in other CD petitioner has been shown while checking the pass. It is also submitted that no person has been shown while passing from Gate No.6 IN where the petitioner and Lady Constable were on duty. It has been alleged that law is well settled that if conclusion arrived at by the Enquiry Officer is ipsi dixit and based on no evidence on record, the action taken by the disciplinary Authority deserves to be quashed. It clearly states that there is some editing in the CD. Further that there were 10 gates in the building and media persons generally were allowed inside the building from Gate No.4 and any person once entered the building can go to any place in the building means if a person enters ::: Downloaded on - 31/01/2022 23:09:29 :::CIS 8 from any other gate can come upto the gallery of Gate No.6 IN, in the building. However, after observing all these aspects, the Enquiry Officer submitted his report .
against the petitioner and the petitioner also submitted his reply to respondent No.4 against the enquiry report on 21.2.2011.
7. It has been submitted that the Disciplinary Authority/respondent No.4, after receiving the enquiry report passed the punishment order on 17.3.2011, against the petitioner. The petitioner has been punished with reduction of pay scale by one stage from Rs.10990/ +4200/ to Rs.10540/ +4200/ in the time scale of pay for two years with immediate effect and he will not earn the recurring increments of pay during the period of reduction and that on expiry of this period, the reduction will have the effect of postponing his future increment of pay.
8. It has been alleged that the petitioner filed an appeal against that order of Disciplinary Authority in April, 2011 and the Appellate Authority without appreciating all aspects of the matter, dismissed the ::: Downloaded on - 31/01/2022 23:09:29 :::CIS 9 appeal vide its order dated 7.7.2011 and upheld the punishment given to the petitioner.
9. It has been submitted that the petitioner, .
aggrieved and dissatisfied with the actions of the respondents, during pending appeal period, submitted a letter to his higher Authority at Haridwar for volunteer retirement on 24.6.2011 and the petitioner got volunteer retirement on 30.9.2011 and since then, he is living in his village. Further, it has been submitted that the petitioner received a letter on 23.01.2012 from the office of respondent No.2, wherein a Corrigendum has been issued thereby some modification was made in the punishment order of Disciplinary Authority, dated 17.3.2011 by respondent No.3. According to this Corrigendum dated 28.12.2011, the petitioner has been punished with more severe punishment, by reduction of pay by one stage from Rs.10,500/+2800/ to Rs.10,110/ +2800/ in the time scale of pay for a period of two years with immediate effect. Further it was ordered that No.761300229 petitioner will not earn the increment of pay during the period of reduction and that on expiry ::: Downloaded on - 31/01/2022 23:09:29 :::CIS 10 of this period, the reduction will have the effects of postponing his future increments of pay. Therefore, earlier order has been changed thereby more reduction .
has been made in this order. It has been averred that the petitioner received this corrigendum letter on 23.01.2012, when he was attending his wife, who had been under treatment and remained indoor patient in Indira Gandhi Medical College and Hospital, Shimla w.e.f. 28.01.2012 to 06.3.2012 for operation of fibroid and when wife of the petitioner discharged from the hospital, he approached his counsel to file the present writ petition.
10. In reply to the petition, it is admitted by the respondents that the news clipping of the sting operation was telecasted in the NEWS 'X' TV Channel on 22.06.2010. Based on the directions from APS Hqrs,. an enquiry was conducted by Sh. Nirvikar, the then Commandant GBS, New Delhi, about the said sting operation. The News clipping, which was telecasted on 22.06.2010, at NEWS 'X' TV Channel, was procured from U.S. Vig. (MHA), a CD of unedited version of the sting ::: Downloaded on - 31/01/2022 23:09:29 :::CIS 11 operation was also received from APS Hqrs., on 11.08.2010. On scrutiny of the unedited CD, it was found that on 04.06.2010 CISF No. 761300229 HC/GD Shankar .
Dass and No. 063570021 Lady Constable Annu Kumari were detailed for B shift duty from 1300 hrs to 2100 hrs at Gate No. 06 of North Block GBS, New Delhi. They allowed that person inside the building without any valid ID or pass and Lady Constable Annu Kumari was also standing there, but they did not ask the identity of the person. During the inquiry, it was revealed by the PEO that HC/GD Shankar Das posted at Gate No. 06 IN tried to deny the entry to the visitor initially but, succumbed to pressure/persuasion later and did not search the visitors whom they allowed inappropriately. The so called PSO & media men moved in the corridor of basement, as Gate No. 06 IN and ground floor corridor of North Block.
It was found that HC/GD Shankar Dass violated the orders/directions and allowed the entry to media men through Gate No. 06 IN without any valid permission.
11. It has been submitted that the departmental enquiry was conducted by Sh. D.S. Sankhyan AC (now ::: Downloaded on - 31/01/2022 23:09:29 :::CIS 12 retired) and the charge levelled against the petitioner was proved by the E.O. The Commandant, CISF Unit GBS, New Delhi, agreeing with the finding of EO .
awarded the penalty of "Reduction of pay" by one stage from Rs. 10990+4200/ to Rs 10540+4200/ in the time scale of pay for a period of two years with immediate effect. It has further been ordered that No.761300229 HC/GD Shankar Das will not earn the increment of pay during the period of reduction and that on expiry of this period the reduction will have the effect of postponing his future, increments of pay vide order No.V15014/ CISF/GBS/Disc/Maj (Shankar Das)/2010199, dated 17.03.2011.
12. It has been submitted that in a fact finding enquiry conducted by Sh. Nirvikar, the then Commandant, CISF Unit GBS, New Delhi, it was revealed that the whole sting operation on 04.06.2010 was covered by stealthy camera. On examination of the clipping shown about gate No. 06 IN, it was revealed that a man in safari suit came out from the building, HC/GD Shankar Das allowed one person from Gate No. 06 IN ::: Downloaded on - 31/01/2022 23:09:29 :::CIS 13 without any valid entry pass. By repeated persuasion, the petitioner HG/GD Shankar Das succumbed to the pressure and allowed one person (performing sting .
operation) through Gate No. 06 IN and they were also not frisked while entering.
13. It has been submitted that the whole episode is based on sting operation conducted by the media person of News 'X' Channel, who was succeeded to gain entry by concealing sting Camera through Gate No. 06 IN, where the petitioner was on duty and failed to prevent his entry, which is revealed from the unedited copy of the CD, received from APS Hqrs., New Delhi, which was shown to him on 11.08.2010. For the above lapse, the petitioner was placed under suspension on 11.08.2010 itself. Hence, the statement of Lady Constable Annu Kumari cannot be acceptable.
14. It has been submitted that it is evident from the sting operation camera that on 07.07.2010, the petitioner was shown news clipping telecasted by News 'X' Channel. Whereas on receipt of an unedited copy of CD received on 11.08.2010 from APS Hqrs., the same ::: Downloaded on - 31/01/2022 23:09:29 :::CIS 14 was also shown to the petitioner on the same day, where it is clear that the petitioner was checking the pass at Gate No. 06 IN. During the course of departmental .
enquiry, written statement of defence was submitted by the petitioner on 09.01.2011, wherein there is no request made by the petitioner to the EO to supply him a copy of unedited CD shown to him on 11.08.2010, rather in his written statement of defence, he only stated that both the CDs are not tallying with each other.
15. It is further submitted that based on the observation raised by Commandant, CISF BHEL, Haridwar, necessary amendment was made in the pay fixation made under 6th CPC of the petitioner w.e.f.
01.01.2006 vide CISF Unit GBS, New Delhi, vide USO PartII No.826/2011 dated 26.11.2011. Accordingly, necessary amendment/Corrigendum was also issued in the punishment order awarded to the petitioner vide letter No. 6711, dated 28.12.2011 and the same was forwarded to the Commandant, CISF Unit BHEL, Haridwar to serve to the petitioner, which he acknowledged on 24.01.2012. The amendment in the pay ::: Downloaded on - 31/01/2022 23:09:29 :::CIS 15 fixation was made as per observation raised by the Commandant, CISF Unit BHEL, Haridwar and the subsequent amendments were also issued in the .
punishment order, which is in order and served to the petitioner. The amendment in the punishment order dated 17.03.2011 was done to the extent of pay portion only due to refixation of his pay. The quantum of punishment earlier awarded by order dated 17.03.2011 has remained the same in Corrigendum dated 28.12.2011 and it cannot be said to be a fresh and severe punishment. Further, it is submitted that the petitioner did not exhaust the departmental enquiry, which was available with him for submitting his revision petition to IG/ APS CISF Hqrs., New Delhi against the order of Disciplinary Authority dated 17.03.2011, which were upheld by the Appellate Authority vide order dated 07.07.2011. Before exhausting the departmental remedy fully, the petitioner approached the Hon'ble Court, which is not justified.
16. It has been submitted that the order passed by the Appellate Authority, vide order dated 07.07.2011, ::: Downloaded on - 31/01/2022 23:09:29 :::CIS 16 is based on the proven charge levelled against the petitioner, which is in order. Moreover, as regards regularization of his sick period are concerned, the .
averments of the petitioner are totally denied. The petitioner was detailed in "B" shift duty on 30.04.2009, but he did not turn up for duty and absented himself from duty without any intimation or permission from the Competent Authority.
Further that the reported for duty on 14.05.2009, after remaining AWL, r petitioner w.e.f. 30.04.2009 to 13.05.2009. In this regard, preliminary inquiry was ordered and a prima facie was found against the petitioner. During the preliminary inquiry, it was also revealed that the petitioner was called for a second medical opinion at CISF Hospital, Saket, New Delhi, but the petitioner was reluctant to appear before the CISF Medical Officer at Saket, New Delhi. Accordingly, he was chargesheeted for his unauthorized absence and was awarded the punishment of "CENSURE" vide order dated 12.12.2009. It has been submitted that a show cause notice was issued for regularization of his AWL, period against HPL as per ::: Downloaded on - 31/01/2022 23:09:29 :::CIS 17 FR17 (a) vide order dated 09.03.2010.
17. It is submitted that the main allegation against the petitioner vide charge memo issued by the .
Disciplinary Authority is about the petitioner failed to prevent the entry of News 'X' Channel media person while on duty on 04.06.2010 at Gate No. 6 IN, which was found in unedited CD shown to the petitioner on r to 08.11.2010 and the allegation has been established from the evidence on record. As such the averments of the petitioner are baseless.
18. It is submitted that the contention of the petitioner is not acceptable. Rule 54 of CISF Rules 2001 says about the review of cases by the Revisioning Authority. The corrigendum on the penalty imposed upon the petitioner by the Disciplinary Authority issued vide order dated 28.12.2011 was amended and was issued on the basis of the subsequent amendment made in the pay fixation order from 2006. On the basis of amendment in the pay fixation, the pay of the petitioner was automatically reduced and accordingly corrigendum on ::: Downloaded on - 31/01/2022 23:09:29 :::CIS 18 the penalty imposed upon the petitioner was issued and a copy of the same has been acknowledged by the petitioner on 24.01.2012.
.
19. It has been submitted that the averments of the petitioner are false and baseless. It has also been submitted that pensionary benefits of the petitioner was never withheld by the respondents and that efforts have been made to finalize and payment of the pensionary benefits to the petitioner. As such, there is no violation of the provisions of Constitution of India. It has specifically been mentioned that the petitioner never sent any complaint about nonreleasing withheld of pensionary benefits, before filling the present Writ petition.
20. It has been submitted that as per the Rules application for VRS is accepted unconditionally. Further that any conditional VRS, which compelled him to go for VRS, the same would have not been accepted by the Competent Authority, which can be ascertained from Commandant, CISF Unit BHEL, Haridwar. The charge levelled against the petitioner for his lapses while on duty, which was proved and was awarded the penalty for reduction by the Disciplinary Authority as per rule, ::: Downloaded on - 31/01/2022 23:09:29 :::CIS 19 which is in order. As such the averments of the petitioner are baseless.
21. In rejoinder to the reply filed by the .
respondents, the petitioner reasserted the contents of the petition.
22. I have heard the learned counsel for the parties and gone through the records of the case.
23. Mr. Ramesh Sharma, learned counsel for the petitioner has argued that the respondent without their being any material on record had inflicted the penalty upon the petitioner and even the Appellate Authority without application of mind has dismissed the appeal. He has argued that there is nothing on record to show that the petitioner was at all negligent in the discharge of his official duties. He has further argued that the penalty just inflicted upon the petitioner on the basis of suspicion. He has argued that there is nothing before the authorities to come to the conclusion that the person who did the sting operation has gone inside when the petitioner was on duty. He has argued that though the petitioner has taken the voluntary retirement, but he is ::: Downloaded on - 31/01/2022 23:09:29 :::CIS 20 getting lesser emoluments.
24. On the other hand, it is argued by Mr. Lokendar Paul, Senior Panel Counsel for the respondents .
has argued that the sting operation was carried on and it was found that it was petitioner, who was negligent towards his duties and person performing the sting operation could entered the premises. He has further argued that the penalty imposed upon the petitioner is just and reasoned and no inference is required for. He has further argued that the petitioner was having a statutory remedy of revision before the higher authorities, which he had not availed, as there was efficacious remedy available to the petitioner. The present petition is liable to be dismissed
25. In rebuttal, learned counsel for the petitioner has argued that the petitioner is now 61 years of age and the penalty, as imposed upon the petitioner was without any reasonable ground and the orders qua imposing penalty are required to be set aside.
26. After going through the record in entirety, this Court finds that the punishment awarded to the ::: Downloaded on - 31/01/2022 23:09:29 :::CIS 21 petitioner is not reasonable for the reason that because of the reduction of the pay by one stage in the Time Scale of pay for a period of two years with immediate effect and .
not to earn the increments of pay during the period of reduction and that on expiry of this period, the reduction will have the effect on future increments of pay has increased tremendously, as he has been put to a lower grade. This was neither the intention of the punishment order and it is because of the unforeseen circumstances.
The punishment becomes thus severe. This Court otherwise also finds that there were many employees working on the different Gates and the sole responsibility cannot be fixed upon the petitioner only. Though, this Court cannot sit as an Appellate Authority, so far as the inquiry is concerned and cannot reweigh or reappreciate the evidence, as it is not a Court of Appeal, but the entire evidence is taken into consideration. It seems that the petitioner is suffering from severe punishment then what was at all in the mind of the Disciplinary Authority. This has happened for the unforeseen circumstances.
::: Downloaded on - 31/01/2022 23:09:29 :::CIS 2227. The respondents had categorically taken a stand in Para11 (I) of their reply, which is reproduced as under: .
"That in reply to this para, it is submitted that the order passed by the Disciplinary authority is based on proven charge leveled against the petitioner, which was upheld by the Appellate authority, which is in order.
But, the petitioner without availing the departmental remedies fully for not submitting any revision petition before the Revisioning authority, he approached the Hon'ble Court which is not justified."
Meaning thereby that had these facts brought to the notice of Revisional Authority, the Revisional Authority could have considered the case of the petitioner. This Court finds that the petitioner has taken voluntary retirement, a lenient view is required to be taken in the matter and taking into consideration of the aspects of the case, this Court at the first instance deems it necessary and appropriate that the Revisional Authority should consider the matter in the light of the observations made herein above. So, the instant petition is required to be treated as a Revisional Petition by the ::: Downloaded on - 31/01/2022 23:09:29 :::CIS 23 Revisional Authority, i.e. Respondent No.2, who will consider the case of the petitioner and pass a reasoned order taking into consideration all the circumstances, .
including the subsequent events i.e. the voluntary retirement. The Revisional Authority is directed to consider the case of the petitioner within a period of four months from today and pass an appropriate order.
this Court again if required.
r to Needless to say that the petitioner can always approach
28. The petition stands disposed of in the aforesaid terms, so also the pending application(s), if any.
No order as to costs.
(Chander Bhusan Barowalia) Judge October 01, 2021 (M. gandhi) ::: Downloaded on - 31/01/2022 23:09:29 :::CIS