Calcutta High Court (Appellete Side)
Narendra Dutta Rai vs Union Of India & Ors on 29 September, 2016
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
Present :
The Hon'ble Mr. Justice Ashis Kumar Chakraborty
W.P. 17067(W) of 2008
Narendra Dutta Rai
Vs.
Union of India & Ors.
For the petitioner : Mr. Debabrata Saha Roy
Mr. Indrajit Mitra
Mr. Upendra Roy
Mr. Sunny Nandy
For the respondents : Mr. Arabinda Sen
Judgement on : 29.09.2016
Ashis Kumar Chakraborty, J.
In this writ petition, the petitioner who was a constable of Central Industrial Security Force (in short "CISF") posted at Unit CPM Panchgram has prayed for setting aside of the order dated May 29, 2006 passed by the Group Commandant, CISF Group HQRS, Guwahati as the disciplinary authority imposing penalty of removing him from service, the order dated July 28, 2006 passed by the Deputy Inspector General/NEZ, as the appellate authority affirming the said decision of the disciplinary authority and the final order dated August 23, 2007 passed by the Insp General / NEZ, being the revisional authority upholding the said decisions of the disciplinary authority and the appellate authority.
The relevant facts of the case are that in May , 2005 the petitioner was serving as the constable of CISF posted at the CISF Unit CPM Panchgram in the State of Assam. On October 31, 2005 the Group Commandant, CISF Group HQRS, Guwahati issued a memorandum informing the petitioner that an enquiry is proposed to be held against him with regard to three charges mentioned in the statement of article of charges annexed thereto. The petitioner was directed to submit his written statement of his defence against the said charges. The first charge levelled against the petitioner was that while he was detailed for 'B' shift duty on July 29, 2005 from 13.00 hrs. to 21.00 hrs. at New Gate duty post (hereinafter referred to as "the said duty post"), he was found under influence of alcohol and not performing his duty properly disobeying the instruction of his senior HC/GD S. Hazra who was also deployed with him at the said duty post, he was withdrawn from the said post by deploying another constable in his place and the said act of the petitioner amounts to gross misconduct, indiscipline, dereliction of duty and unbecoming of a member of a disciplined force like CISF. The second charge levelled against the petitioner was that on July 29, 2005 while he was being taken to the hospital for medical examination, he abused the Insp/Exe Rahatu Lal by using impolite and filthy language and also threatened him for life consequence in presence of other CISF personnel, the doctor of the hospital confirmed his intoxicated condition and the said act of the petitioner amounted to grave misconduct, indiscipline and unbecoming of a member of a disciplined force like CISF. The third charge was that the petitioner was not amenable to discipline and had not improved his conduct as expected from a member of the disciplined force in spite of having been panalised/punished earlier on thirteen occasions for his incorrigible habits, during his 14 years of service and thus he is a habitual offender. Along with the said memorandum dated October 31, 2005, the statement of article of charges framed against the petitioner, together with the statement of imputation of misconduct and misbehaviour in support of the articles of charges framed him, as also the list of documents on the basis of which the charges were framed and the list of witnesses through whom the charges framed against the petitioner were proposed to be sustained, were all forwarded to the petitioner.
On December 05, 2005 the petitioner filed his written reply to the said charge memorandum dated October 31, 2005 denying the charges levelled against him. The authority, however, did not find the said reply of the petitioner to be satisfactory and a decision was taken to hold a full-fledged regular departmental enquiry against the petitioner. Accordingly the Deputy Commandant of CISF Unit, CPM Panchgram was appointed as an enquiry officer, the Group Commandant, CISF Group HQRS Guwahati was appointed as the disciplinary authority and the SI/Exe of CISF Unit Panchgram was appointed as the presenting officer, respectively. In the enquiry proceeding held by the enquiry officer, the 11 witnesses mentioned in the list of witnesses forwarded to the petitioner adduced evidence and all the 9 documents mentioned in the list of documents forwarded to the petitioner by the said memorandum dated October 31, 2005 were also proved and exhibited by the prosecution witnesses. The Inspector Rahatu Lal adduced evidence as PW-1, the Sub-Insp S. Sarvanan adduced evidence as PW-2, the Assistant Sub-Insp G.P. Deondi adduced evidence as PW- 3, ASI V.K. Thakur adduced evidence as PW- 4, Head Constable B.T. Ghosh adduced evidence as PW- 5, Head Constable B.M. Nanjappa adduced evidence as PW- 6, the Head Constable Sanjoy Hazra adduced evidence as PW -7, Head Constable D.C. Sekharan adduced evidence as PW- 8, Constable J.S. Baidya adduced evidence as PW- 9 and Assistant Sub-Insp Anil Tirkey (In charge of Document Section) adduced evidence as PW- 10. Through the said prosecution witnesses, the 'B Shift Duty Deployment Register' dated July 29, 2005, 6 General Diaries recording the allegations relating to the charges levelled against the petitioner and the medical prescriptions slip dated July 29, 2005 of CISF Unit CPM Panchgram/HPC Hospital dated July 29, 2005 were all proved and exhibited. The petitioner asserted that his written reply dated December 05, 2005 be treated as his defence in the enquiry proceeding. However, in spite of opportunity granted to him, the petitioner did not adduce any evidence either by himself or through any witness before the enquiry officer. He also refused to take help of any serving member of the Force to assist him in the enquiry. The statements of all the prosecution witnesses were recorded in presence of the petitioner and each of the exhibits produced by the prosecution witnesses were taken on record only after showing the same to the petitioner, which he acknowledged by putting signature on each of the said exhibits. The petitioner was also allowed the cross-examine each of the ten prosecution witnesses, but he cross-examined only ASI/Exe G.R. Deondi (PW-3) and declined to cross-examine the remaining nine prosecution witnesses.
After considering in detail the oral and documentary evidence adduced by the prosecution witnesses and the defence case stated by the petitioner in his reply dated December 05, 2005 the enquiry officer filed his report before the disciplinary authority on March 08, 2006 holding that all the three charges framed against the petitioner were proved.
A copy of the enquiry report was forwarded to the petitioner and he was also granted an opportunity to file representation, against the said enquiry report before the disciplinary authority. On April 19, 2006 the petitioner filed his representation against the enquiry report before the disciplinary authority. After detailed analysis of the oral and documentary evidence adduced by the prosecution witnesses, the petitioner's reply dated December 05, 2005 his written representation and the report of the enquiry officer, the disciplinary authority also found that all the three charges levelled against the petitioner have been proved. Thus, by the order dated May 29, 2006 the disciplinary authority agreed with the findings of the enquiry officer, held the petitioner guilty of the charges framed against him by the said memorandum dated October 31, 2005 and in exercise of powers conferred upon him under Rule 32 read in conjunction with Schedule- I with Rule 34(ii) of the CISF Rules 2001, imposed the penalty on the petitioner for removal from service with effect from the date of receipt of the said order by the petitioner. The disciplinary authority also recorded that against the said order the petitioner can file an appeal to the Deputy Inspector General, CISF NEZ HQRS, Kolkata within 30 days from the date of receipt of the said order.
Against the above order passed by the disciplinary authority, the petitioner filed an appeal before the Deputy Inspector General. After considering all the evidence both oral and documentary adduced by the said prosecution witnesses, the defence case of the petitioner and all the representations filed by the latter including the grounds urged in the said appeal, by an order dated July 28, 2006 the Deputy Inspector General, being the appellate authority refused to interfere with the order dated May 29, 2006 passed by the disciplinary authority and rejected the appeal. From the records it appears that after receipt of the decision dated July 28, 2006 passed by the Deputy Inspector General the petitioner filed a mercy appeal to the Director General, CISF when the petitioner was advised to file a revision petition before the revisional authority. However, instead of filing the revision petition before the Inspector General, the petitioner filed a writ petition before the Allahabad High Court which was rejected on April 20, 2007. Thereafter, the petitioner filed the revision petition before the Inspector General which was dismissed by the Inspector General on August 23, 2007. By the impugned order dated August 23, 2007 the Inspector General, after considering all the evidence adduced by the prosecution witnesses, the defence case of the petitioner and the report of the enquiry officer rejected the revision petition and upheld the orders dated May 29, 2006 and July 28, 2006 passed by the disciplinary authority and the appellate authority, respectively.
At the very outset of the hearing of this application Mr Arabinda Sen, learned advocate appearing for the respondent CISF authorities raised serious objection with regard to the maintainability of the writ petition. He urged that the charges were framed against the petitioner for his misconduct on July 29, 2005 at CISF Unit CPM Panchgram in the State of Assam, the memorandum dated October 31, 2005 was issued by the Group Commandant CISF Group HQRS., Guwahati and the same was received by the petitioner at Panchgram in the State of Assam, the enquiry proceeding was held by the enquiry officer in the State of Assam, the disciplinary authority also held the proceeding at Guwahati and passed the said order dated May 29, 2006 imposing punishment on the petitioner at Guwahati which was received by the petitioner at Guwahati and the petitioner is presently residing in the State of Utter Pradesh. On these facts, Mr. Sen urged that this Court lacks the territorial jurisdiction to entertain the present writ petition. In support of such contention, he relied upon on the decisions of the Supreme Court in the Cases of Oil and Natural Gas Commission -Vs.- Utpal Kumar Basu reported in (1994) 4 SCC 711 and in the case of Alchemist Ltd. and another -Vs.- State Bank of Sikkim and another reported in (2007) 11 SCC 335.
However, Mr. Debabrata Saha Roy, learned advocate appearing in support of the writ petition submitted that the impugned order dated July 28, 2006 and August 23, 2007 have been passed by the Deputy Inspector General CISF and Inspector General CISF, respectively from their offices at premises no. 553, East Kolkata Township, Kasba, Kolkata 700 107 situated within the jurisdiction of this Court exercising writ jurisdiction and as such 'the part of cause of action' of the petitioner to file the present writ petition, under Article 226(2) of the Constitution of India, arose within the jurisdiction of this Court. Therefore, according to Mr. Saha Roy, this Court has the jurisdiction to entertain the present writ petition of the petitioner. In support of such contention, he placed reliance on the decisions of the Supreme Court in the cases of Sri. Nasiruddin -Vs.- State Transport Appellate Tribunal reported in (1975) 2 SCC 671 and Kusum Ingots & Alloys Ltd. Vs. Union of India and another reported in (2004) 6 SCC 254.
In view of the objection raised by Mr. Sen with regard to the jurisdiction of this Court to entertain this present writ petition, I think it fit to decide such point first.
In the case of Mr. Utpal Basu (supra) citied by Mr. Sen, the supreme Court found since the tender related to the kerosene recovery processing unit of ONGC at Hazira in State of Gujarat, the consultant EIL issued the advertisement inviting tender from New Delhi, the tenders of the bidders were to be forwarded to EIL at New Delhi, the tenders were to be scrutinized at New Delhi, and the final decision with regard to the tender would be taken by the Steering Committee at New Delhi, the various meeting were held by EIL at New Delhi where the writ petitioner NICCO, along with other bidders were invited, the decision to reject the bid of NICCO and the decision to award the contract to CIMMCO was also taken at New Delhi. In these facts, the Supreme Court held that in the said case mere publication of the notice inviting tender in the newspaper circulated in Kolkata, the submission of offers and issuance of various letters to EIL by the writ petitioner from its office at Kolkata did not constitute 'any part of cause of action' under Article 226 (2) of the Constitution of India, upon the writ petition to challenge the decision of ONGC and EIL and the Steering Committee to award the contract to CIMMCO.
In the case of Alchemist Ltd. (supra) the Supreme Court found the dispute arose when the State of Sikkim was desirous of disinvesting 49% of its equity capital in the State Bank of Sikkim having its Head Office at Gangtok in the State of Sikkim. The State of Sikkim invited offers for strategic partnership, the interested parties were asked to submit their application at the Head Office of the bank at Gangtok, which would also be scrutinized by the Board of Directors of the bank at Gangtok. The writ petitioner company having its registered office at Chandigarh submitted its offer from Chandigarh to the Bank at Sikkim, the Chairman of the bank visited Chandigarh and held some meetings with the petitioner company at Chandigarh, and by a letter dated February 20, 2004 the bank informed the petitioner company that its proposal was accepted in principle subject to consideration and approval of the Government of Sikkim. However, ultimately the Government of Sikkim took a decision at Gangtok not to approve of the proposal of the petitioner company and such decision was communicated by the bank to the petitioner company at Chandigarh and the petitioner also withdrew its letter dated February 20, 2004. The petitioner company filed a writ petition before the Punjab and Haryana High Court wherein it challenged the decision Government of Sikkim not to approve the proposal submitted it and the decision of the bank to withdraw its earlier communication dated February 20, 2004. The petitioner company urged that since it had submitted the proposal from its office at Chandigarh, it received the said letter dated April 20, 2004 from the bank at Chandigarh, the chairman of the bank held various meetings at Chandigarh, it made fixed deposit with State Bank of India, Chandigarh as directed by the respondent bank, a 'part of cause of action' to file the said writ petition arose within the jurisdiction of the Punjab and Haryana High Court. The Punjab and Haryana High Court rejected the writ petition on the ground of lack of territorial jurisdiction to entertain the same. In the special leave petition filed by the writ petitioner, the Supreme Court upheld the decision of the Punjab and Haryana High Court. The Supreme Court held when the proposal of the writ petitioners were submitted to the bank at Gangtok in the State of Sikkim and all the decisions challenged in the writ petition were taken by the Government of Sikkim and the bank at Gangtok, the submission of the proposal by the petitioner from Chandigharh and receipt of the said letter dated November 20, 2004 by the writ petitioner at Chandigarh and the fixed deposit made by the petitioner with State of Bank of India Chandigarh cannot be said to be the essential, integral and material fact so as to constitute a 'part of cause of action' within the meaning of Article 226 (2) of the Constitution of India and the High Court was right in dismissing the writ petition.
However, in the present case both the decisions dated July 28, 2006 and August 23, 2007 have been passed by the Deputy Inspector General and the Inspector General, respectively from their offices at 553, East Kolkata Township, Kasba, Kolkata- 700 107 within the territorial jurisdiction of this Court for exercise of powers under Article 226 of the Constitution of India. In the case of Kusum Ingots & Alloys Ltd. (supra) relied by the petitioner the Supreme Court held that where an order is passed by a Court or tribunal , a 'part of cause of action' arises at that place. Therefore, inasmuch as the orders dated July 28, 2006 and August 23, 2007 passed by the Deputy Inspector General and the Inspector General of CISF, respectively which are the subject matters of challenge in the present writ petition were passed in Kolkata, I accept the contention of the petitioner that the 'part of cause of action', within the meaning of Article 226 (2) of the Constitution of India, arose within the jurisdiction of this Court and the present writ petition is well maintainable before this Court.
With regard to the merits of the writ petition Mr. Debabrata Saha Roy, learned advocate appearing for the petitioner submitted that in the instant case the first charge framed against the petitioner was that while the petitioner was detailed for duty on July 29, 2005 from 13.00 hrs. to 21.00 hrs. at the said duty post, he was found under influence of alcohol and not performing his duty properly, disobeying the instruction of his senior HC/GD S. Hazra and he was withdrawn from the New Gate duty post by deploying another constable and the second charge framed against the petitioner was that he abused the Inspector/Exe. Rahatu Lal by using impolite and filthy language and also threatened him for life consequences in presence of other CISF personnel, while he was taken to hospital for medical examination and the doctor of the hospital confirmed his intoxicated condition. By referring to the prescription slip dated July 29, 2005 which was exhibited, as PW- 1/Ex. P.1 before the Enquiry Office, Mr. Saha Roy pointed out that the said prescription only mentioned that the petitioner was making irrelevant talks, displayed abnormal behaviour and smell of alcohol was found. He contended that from the said prescription slip dated July 29, 2005 it is clear the said doctor of the HPC Hospital advised to consult 'Forensic Medicine' for further investigation of the petitioner, but the petitioner was not taken to any doctor of Forensic Medicine', nor was he any subjected to any blood test. Thus, according to Mr. Saha Roy, there was no medical evidence to prove that the petitioner had consumed alcohol on July 29, 2005 and only on the basis of oral evidence of the witnesses produced by the presenting officer before the enquiry officer, the first and second charge levelled against the petitioner were not proved satisfactorily and consequently the third charge levelled against the petitioner lost its significance and became irrelevant. He strongly urged that in the absence of any blood report or any report of the Forensic Medicine department it was not proved that the petitioner had consumed alcohol on July 29, 2005 and the finding of the enquiry officer that the charges levelled against the petitioners were proved, as well as the decision of the disciplinary authority dated May 29, 2006, the decision of the appellate authority dated July 28, 2006 and the decision of the revisional authority dated August 23, 2007 concurring with the finding of the enquiry officer, as also the imposition of the major penalty on the petitioner of removal from service are all vitiated by patent illegality. In support of such contention, Mr. Saha Roy relied on the decisions of the Supreme Court in the case of Bachubhai Hassanalli Karyani vs. State of Maharashtra reported in 1971(3) SCC 930 and in the case of Munna Lal vs. Union of India and Ors. reported in (2010) 15 SCC 399. On these grounds, he pressed for setting aside of the order dated August 23, 2007 passed by the revisional authority affirming the orders dated May 29, 2006 and July 28, 2006 passed by the disciplinary authority and the appellate authority, respectively.
In order to explain the meaning of the words 'Forensic Medicine' as mentioned by the doctor of the said hospital in the prescription slip dated July 29, 2005, learned counsel of the petitioner placed reliance on the definition of the word 'Forensic Medicine' as stated in Black's Law Dictionary, 6th Edition to mean the science which teaches the application of every branch of medical knowledge to the purposes of law; and the branches of science which are required to enable a court of law to arrive at a proper conclusion on a contested question affecting life and property. He also relied on the definition of the words 'Forensic Medicine' appearing in The Law of Lexicon to mean the science which deals with the application of every branch of medical knowledge to the purposes of the law.
However, Mr. Arabinda Sen, learned counsel appearing for the respondents submitted that neither in his written reply dated December 5, 2005 while dealing with charges levelled against him by the charge memorandum dated November 24, 2005, nor at any stage of the proceeding before the enquiry officer, the petitioner raised any defence on his behalf that in the absence of any test of his blood being carried on July 29, 2005 or that since he was not subjected to any investigation of forensic medicine, the charge levelled against him for consumption of alcohol during duty hours on July 29, 2005 could not be proved. He further submitted that even in his representation against the report of the enquiry officer filed before the disciplinary authority, the petitioner did not raise any such contention. Mr. Sen further submitted that it is settled law that the standard of proof in a departmental proceeding is not as strict, as in a criminal proceeding and unlike in a case of criminal trial were the guilty of the accused is required to be proved beyond doubt, the standard of proof in case of disciplinary proceeding is only preponderance of probabilities. According to him, when the witnesses produced by the presenting officer in their evidence before the enquiry officer stated that on July 29, 2005 the petitioner being under the influence of alcohol, he was not performing his duty at the said duty post properly, disobeyed the instructions of his senior HC/GD S. Hazra (PW-7) and also abused Insp/Exe Rahatu Lal and threatened him for life consequences in presence of other CISF personnel while he was being taken to the said hospital, the first and second charge levelled against the petitioner were sufficiently proved. So far as the third charge levelled against the petitioner, Mr. Sen submitted that the same was proved by PW-10, by producing the document which was marked as PW-10/ Ex.P.1. Thus, he contended that all the three charges levelled against the petitioner were sufficiently proved before the enquiry officer and the petitioner cannot challenge either the finding of the enquiry officer or any of the decisions of the disciplinary authority or the appellate authority or the revisional authority on the aforementioned ground urged by the petitioner before this Court. According to him, the writ petition filed by the petitioner is devoid of any merit and the same is liable to be dismissed.
I have considered all the materials on record, as also the submissions made by both Mr. Roy and Mr. Sen, learned counsel appearing for the respective parties. In the instant case, by the Memo dated October 31, 2005 the articles of charge framed against him, together with the statement of imputation of misconduct and misbehaviour in support of the article of charges framed, the list of documents and the list of witnesses by whom the said articles of charge framed against him were proposed to be sustained were all communicated to the petitioner. Thereafter, the petitioner filed his reply dated December 05, 2005 denying all the charges levelled against him. Since the said reply of the petitioner was not found satisfactorily, a full-fledged departmental proceeding was initiated against the petitioner by appointing the enquiry officer and the Presenting Officer, the petitioner availed opportunity to defend his case by himself.
As already recorded above, the ten prosecution witnesses adduced evidence before the enquiry officer and proved all the relevant documents, comprising the relevant shift duty deployment register, various G.D. entries lodged against the petitioner recording all the events that took place on July 29, 2015, the said medical prescription slip of the said doctor dated July 29, 2005 and PW10/Ex.P.1 the imposition of minor penalties on the petitioner on earlier 13 occasions, including various occasions when he committed misconduct under the influence of alcohol. All the said documents were proved and exhibited before the enquiry officer in presence of the petitioner and he put his signature on each of the said exhibited documents. The petitioner was also granted opportunity to cross-examine all the prosecution witnesses, but he declined to cross-examine the prosecution witnesses except G.P. Deondi, the Shift In-charge, (PW-3) who deployed J.S. Baidya (PW-9) at the said post in place of the petitioner, after making necessary G.D. Entry. The petitioner put only one question to the PW-3 to which the latter answered that he had checked the said post and the petitioner was not present at the said duty post. On February 26, 2006, the presenting officer had submitted his written brief to the enquiry officer, a copy whereof was also supplied to the petitioner and he also filed his representation before the enquiry officer on March 4, 2006. The petitioner himself, however, did not adduce any evidence before the enquiry officer to deny any of the charges levelled against him. Before the enquiry officer the petitioner all along maintained that his defence to the charges framed against him are those which he has stated in his reply dated December 05, 2005 where he did not claim that in the absence of any blood report or report of forensic medicine finding that he had consumed liquor on July 29, 2005 the first or the second charge framed against him was not proved.
After considering the evidence adduced by all the respective prosecution witnesses, on March 8, 2006 the enquiry officer submitted his enquiry report before the disciplinary authority holding that all the charges framed against the petitioner were proved. A copy of the enquiry officer's report was also sent to the petitioner against which he filed his representation before the disciplinary authority on April 19, 2006. Although, in this writ petition the petitioner has not disclosed a copy of the said representation dated April 19, 2006, but from the order dated May 29, 2006 passed by the disciplinary authority it appears that in his said representation the petitioner only stated that he had not done anything that will turn in such an embarrassing situation for him and he is shameful and very much hurt that in his service life an enquiry commission has been appointed to enquire into the allegations made against him for the gross misconduct while discharging official duty; during his long tenure about fourteen years' service, he has always been discharging his official duty with his best ability and will try to follow the same till retirement. He further stated that the present happening shocked him both mentally and morally, if the disciplinary authority decision results in a negative impact on his service, he will be totally ruined along with his family and he requested the disciplinary authority to exonerate him from the charges levelled against him. In its order dated May 29, 2006, the disciplinary authority considered all the materials on record, report of the enquiry officer and the said representation dated April 19, 2006 filed by the petitioner. It is to be noted that while passing the said order dated May 29, 2006, the disciplinary authority re-appreciated in detail the evidence adduced by each of the ten prosecution witnesses before the enquiry officer. The disciplinary authority also considered the case made out by the petitioner in his written representation dated April 19, 2006 that he did not consume alcohol during his duty hours, he was being deployed for the heavy duty at the New Gate duty post regularly and on that date due to some physical problem as per the instruction of the Assistant Commandant he went back to the unit line to take rest, he sat on the cement slab to relax near the said new gate, the PW-1, PW-2, PW-5 and PW-6 had given their statements against him under pressure, he had not given any threatening to PW-1, he was not feeling well so he went to the male ward of the hospital to relax for sometime and found no merit in the said case sought to be made out by the petitioner.
With regard to the first charge levelled against the petitioner, on a detail analysis of the evidence adduced by the prosecution witnesses in paragraph 10 of the order dated May 29, 2006 the disciplinary authority held as follows:
"10. On careful analysis of the facts and statements and also the documents held on record, it appears that PW-1 (Inspector/Exe Rahatu Lal, Company Comdr) and PW-7 (HC/GD Sanjay Hazra) have corroborated in their statements that the charged official was detailed in 'B' shift duty on 29.07.2005 from 13.00 hrs. to 21.00 hrs. at New Gate duty post. This also supported by the PW-1/Ex.1. At about 16.50 hrs. on 29.07.05, PW-3 (ASI/Exe G.C. Deondi, Shift Incharge) informed PW-1 that the charged official is in drunken condition and not performing his duty properly which is supported by the document exhibited as PW-3/Ex.1. PW-1 directed PW-3 to deploy PW-9 (Const J.S. Baidya), who is on his duty at C & C duty post, in place of charged official which also supported by the statement of PW-1 and PW-9 (Const J.S. Baidya) and also by the document exhibited as PW.3/Ex.2 and PW.7/Ex.1 I also find that PW-2 (SI/Exe S. Sarvanan), PW-4 (ASI/Exe. V.K. Thakur), PW-5(HC/GD B.T. Ghosh) and PW-6 (HC/GD B.M Nanjappa) have corroborated in their statements that when they went to the unit line as per the directions of PW-1 and asked charged official to come with them for medical examination, charged official straightway refused and went towards New Gate duty post on wearing his uniform. This also supported by GD Sl No. 660 dated 29.07.2005 which is exhibited as PW-1/ Ex.2. I further find that when PW-1, PW-2, PW-4, PW-5 & PW-6 arrived at New Gate Duty post, they found that the charged official was sitting on a cement slab in drunken condition by removing his uniform cap and shoes. On asking the charged official to come for medical examination at HPC hospital by PW-1, he refused the same and started making unnecessary arguments with PW-1 under the influence of liquor. This fact is corroborated with the deposition of PW-1, PW-2, PW-4, PW-5 & PW-6 & PW-7. Moreover, from the endorsement made on the prescription slip dated 29.07.2005 issued by the treating doctor of HPC hospital mentioning "IRRELEVANT TALKS, ABNORMAL BEHAVIOUR, SMELL OF ALCOHOL FOUND', which is exhibited as PW-1/Ex.5, it is confirmed that the charged official was doing abnormal behaviour under the influence of liquor as smell of alcohol was found from his mouth. In his defence statement, charged official failed to clarify anything when he was found in alcoholic condition and also found unable to perform duty on 29.07.2005. So, it is going to establish that the charged official, who was detailed for 'B' shift duty from 13.00 hrs. to 21.00 hrs on 29.07.2005 at New Gate duty post, was found under the influence of liquor during his duty hours and he was withdrawn from the New Gate duty post by deploying another Constable namely J.S. Baidya. Therefore, it is clear that charged official has displayed gross misconduct, indiscipline and dereliction of duty on his part. Thus, the Article of charge No. I levelled against the charged official is fully established."
With regard to the second charge framed against the petitioner, after analysing the evidence adduced by the petitioner and the prosecution witnesses in paragraph 11 of the said order dated May 28, 2006 the disciplinary authority held as follows:
"11. With regard to article of charge-II, it appears that PW-1 (Inspector/Exe Rahatu Lal), PW-2 (SI/Exe S. Sarvanan), PW-4 (ASI/Exe. V.K. Thakur), PW-5(HC/GD B.T. Ghosh) and PW-6 (HC/GD B.M Nanjappa) have corroborated in their statements that when the charged official was taking to HPC hospital for medical examination, he misbehaved with Inspector/Exe Rahatu Lal, (PW-1) by using impolite and filthy language and also threatened him for life consequences by saying that "RAHATU LAL, AGAR MERI NOKARI KO NUKSAN HUA TO MAIN AAPKO CHODOONGA NAHIN, GOLI MAR DOONGA" (I will kill you if my service will be no more). I also find that PW-1 and PW-5 have corroborated in their statements that on reaching hospital, when charged official was taken to the doctor, charged official denied to undertake his medical examination and again misbehaved with Inspector/Exe Rahatu Lal, (PW-1) and threatened him by touching his body saying that "OYE RAHATU LAL, AGAR MERA MEDICAL KARAOGE OUR MERI NOKARI KO KUCH HO GAYA TO MAIN TUMHE GOLI MAR DOONGA" ( I will kill you if my medical examination will be undertaken and my service will be no more).
As per deposition of PW-1, PW-2, PW-4, PW-5 and PW-6, the charged official was medically examined by the doctor of HPC hospital who confirmed his intoxicated condition indicating "IRRELEVANT TALKS, ABNORMAL BEHAVIOUR, SMELL OF ALCOHOL FOUND" which is supported by the medical prescription slip dated 29.07.05 exhibited as Pw-1/Ex.5. I also find that PW-1 made an GD entry vide Sl. No. 661 dated 29.07.05 to this effect which is exhibited as PW.1/Ex.3. A detailed report was also submitted by Inspector/Exe Rahatu Lal, Company Comdr (PW-1) regarding consuming of alcohol while on duty by charged official and his indiscipline behaviour to the Deputy Comdt, CISF Unit CPM Panchgram vide his letter dated 02.08.05 which is held with record as PW.1/Ex.4. Hence, from the statements of PW-1, PW-2, PW-5 and PW-6 and evidences held on record, it is clear that charged official, while taking to HPC hospital for medical examination on 29.07.05, abused Inspector/Exe Rahatu Lal, (PW-1) by using impolite and filthy language and also threatened him for life consequences. Therefore, it is clear that charged official has displayed grave misconduct and indiscipline. And thus, the Article of charge No.II levelled against the charged member is fully established."
With regard to the third charge framed against the petitioner, after appreciating the both oral and documentary evidence adduced by the prosecution witnesses, the disciplinary authority held that PW-10 produced the documentary evidence PW-10/Ex.P.1 and proved that the petitioner had earlier been punished/penalized on 13 different occasions, out of which on four occasions, he was punished for various misconducts under the influence of alcohol and held that the even the third charge levelled against the petitioner was also proved.
In the said order dated May 29, 2006 the disciplinary authority also held that misconduct of the petitioner were proved beyond any doubt on the basis of overwhelming documentary as well as oral evidence adduced by the prosecution witness and absence of any evidence from the petitioner, the disciplinary authority further held that this is a case of very serious misconduct and violation of the Government orders on the part of the petitioner which not only tarnished the image of the Force, but also affected the morale of other disciplined members of the Force. According to the disciplinary authority, in view of the past record of the petitioner of being awarded 13 minor punishments on different occasions, during his short span of 14 years service, have left no impact of the petitioner and he has failed to mend his ways and conduct himself as a member of disciplined paramilitary force. On these grounds, by the said order dated May 29, 2006 the disciplinary authority exercised power under Rule 32 read in conjunction with schedule-I and with Rule 34(ii) of CISF Rules, 2001 and imposed the penalty upon the petitioner for his removal from service with effect from the date of receipt of the said order by the petitioner.
From a reading of the above order dated May 29, 2006 it is evident that even before the disciplinary authority the petitioner had raised no defence by alleging that the first and the second charge framed against him were not proved inasmuch as he was not subjected to any further investigation of 'Forensic Medicine' as advised by the said doctor of HPC hospital on July 29, 2008 as recorded in the said prescription slip dated July 29, 2005 marked as (PW-1/Ex.5).
Against the above decision of the disciplinary authority the petitioner filed an appeal before the appellate authority on June 13, 2006. In the said appeal the petitioner alleged as follows:
a) He had been performing the guard duties as per derailment orders made by his superior to the best of his ability and there was no complaint against him by any superior about his performance.
b) The duty at the said duty post is very tough and hard as the sentry has to physically search each and every vehicle entering the unit, he had requested his superiors including the company commander to rotate him from the said duty because he had been running temperature prior to the date of incident, that is, on July 29, 2005, but due to the personal enmity with the company commander his request was not acceded.
c) After being withdrawn from duty while he was taking rest at Unit line, Insp/Exe.
Rahatu Lal along with S.I./Exe. S. Sarvanan, A.S.I. V.K. Thakur, HC/GD B.T. Ghosh and few other persons asked him to accompany them for medical check up on the false allegation that he was under the influence of liquor and behaving abnormally while on duty.
d) On the way to the hospital he did not use any insubordinate/threatening words to the company commander or any of the superiors, the attending doctor of hospital did not carry out any investigation, nor any blood sample was taken from his body to determine the alcohol content in his body and the doctor told the company commander that there was nothing wrong with him except physical de-hydration, but on the insistence of the company commander, the doctor endorsed some adverse remarks against him.
While deciding the above appeal, by the order dated July 28, 2006 the appellate authority dealt with each of the above contentions of the petitioner. With regard to the first contention raised on behalf of the petitioner, the appellate authority held that from the records it is evident that during his short span of service of fourteen(14) years, the petitioner was awarded thirteen (13) minor punishments for his various misdemeanor like absence from duty, leaving the duty post without permission before completion of duty, reporting for duty after consuming liquor, consumption of alcohol during VHF wireless course, etc. misbehaviour with woman under the influence of liquor. The appellate authority also rejected the second contention raised by the petitioner on the ground that if, he had been running with temperature for last few days he could have undergone medical treatment and availed of medical rest, if advised by the physician, but he had produced no medical advice of any doctor. The appellate authority further held that the allegation of the petitioner having any enmity with the company commander is also unfounded as he failed to prove the same by producing any evidence. The appellate authority after reappreciating the evidence adduced by the prosecution witnesses rejected the third contention of the petitioner that the PW-1, PW-2 and PW-5 visited the unit line and asked the petitioner to accompany them for medical check up on the false allegation that he was under the influence of liquor and was behaving abnormally while on duty. So far as the fourth contention of the petitioner, the appellate authority found that it is established from the statements of Insp/Exe. Rahatu Lal (PW-1) and S.I./Exe. Sarvanan (PW-II), HC/GD B.T. Ghosh, PW-5 and HC/GD B.N. Nanjappa (PW-6) that while the petitioner was taken to HPC Hospital for medical examination, he misbehaved with Insp/Exe. Rahatu Lal by using impolite and abusing words and threatening him for life consequences. The appellate authority further found that from the evidence of the prosecution witnesses it was also established that the petitioner was examined by a doctor of HPC Hospital who confirmed his intoxicated condition and made an endorsement irrelevant talks, abnormal behaviour, smell of alcohol found. Considering the evidence on record, the appellate authority found that the petitioner misbehaved with Insp/Exe. Rahatu Lal by using impolite and filthy languages and also threatened him with life consequences and medical officer of HPC Hospital confirmed the petitioners intoxicated condition. With the above findings, the appellate authority rejected the appeal filed by the petitioner.
The petitioner ultimately challenged the said order dated July 28, 2006 passed by the appellate authority by filing the revision petition before the Inspector General. Although in this writ petition, the petitioner has not disclosed a copy of the revision petition, but from the order dated August 23, 2007 passed by the revisional authority it appears that in his revision petition, the petitioner had urged the following grounds:
i) that the duty of the post "new gate" was very tough and hard, he had been doing the said duty continuously for one month and had requested his superiors including coy.
commander to rotate him in duty.
ii) that on July 29, 2016 he was again detailed at "new gate" guard post, he requested the coy commander to change him from the said duty on the ground of poor health, but due to personal enmity the coy commander did not accept the said request;
iii) that since he was feeling very weak, after informing the shift in- charge he had withdrawn himself from duty and while he was taking rest at the unit line, the coy commander with few other CISF personnel asked him to accompany them for medical examination on the false allegation that he was under the influence of liquor and they physically dragged him into the vehicle for medical check u;.
iv) that on the way to the hospital he did not use insubordinate / threatening language to the Coy Commander or any superior, the doctor at the hospital did not carry out any investigation, on the basis of insistence of the Coy Commander, he endorsed some adverse remarks against him on the medical prescription and because of conspiracy by the Coy Commander, charge memorandum containing serious charges were framed against him;
v) that he is a poor person who has been penalised without considering the truth and factual position and that having a large family and the sole bread earner and requested his case to be considered sympathetically.
While passing the impugned order dated August 23, 2007 the revisional authority decided all the above points urged by the petitioner on merit. The revisional authority rejected the aforementioned first and second contentions raised by the petitioner on the ground that the "new gate" duty post is situated adjacent to the office of the Deputy Commander and the said gate is used only for the purposes of entry/exist of the plant employees and that no materials/goods vehicles are allowed entry or exist through the said gate. After considering the evidence adduced by the prosecution witnesses, the revisional authority further found that the plea of the petitioner that he had requested Coy Commander to change his duty post due to the poor health is without any substance and in fact, on the complaint lodged by the HC/GD S. Hazra who was also deployed of the petitioner at the same post, the petitioner was withdrawn from the duty at the new gate post, as he did not obey the instruction of the ASI/Exe G.C. Deondi, Shift in-charge to perform his duty property and follow the instruction of superior, that is, HC/GD S. Hazra.
After considering the materials on record, the revisional authority also rejected the aforementioned third contention of the petitioner and held that it is a fact that the petitioner did not withdraw himself from duty due to his poor health or illness as pleaded by him and he was replaced from duty by constable J.S. Baidy due to his abnormal behaviour under the influence of liquor and he not performing the duty properly as directed by the shift-in charge. After considering the materials on record and the evidence adduced by the PW-1, PW-2, PW-5 and PW-6 and the prescription slip being exhibited as PW-1, Ex.5, the revisional authority also rejected the aforementioned fourth contention raised by the petitioner. The revisional authority even rejected the fifth contention of the petitioner by holding that he is a most indiscipline person and is a habitual offender for having committed various acts of misconduct for which he has been penalised thirteen (13) times by different disciplinary authorities and even after affording opportunities the petitioner has failed to mend himself, and has indulged himself in serious misconduct which depicts that he has become incorrigible. The revisional authority further held that when the charges framed against the petitioner have been proved in a duly conducted departmental proceeding, the plea of the petitioner that he has been penalised without considering the truth has no merit.
With all the above findings, the revisional authority held that the charges levelled against the petitioner have been proved beyond doubt, on the basis of evidence adduced before the enquiry officer during the course of departmental proceeding, after affording all reasonable opportunities to the petitioner to defend himself and the petitioner has not been able to make out any mitigating circumstances to interfere with the order dated May 29, 2006 passed by the disciplinary authority and upheld by the appellate authority vide order dated July 28, 2006 and rejected the revision petition. From the report of the enquiry officer it is evident that the petitioner was given sufficient opportunity to produce any evidence or documents in his defence. He also refused to take the help of any serving member of the Force to assist him in the enquiry conducted by the enquiry officer . When the petitioner was given an opportunity to place his case before the enquiry officer, by his letter dated February 22, 2006 stated that whatever he stated in the said reply dated December 05, 2005 is his defence case. In the said reply dated December 05, 2005 it was not the case of the petitioner that in the absence of his blood report or any report of forensic medicine the first or the second charge levelled against him cannot be proved. Further, neither the petitioner adduced any oral evidence, nor did he produce any document to defend deny or dispute any of three the charges levelled against him. He even did not cross-examine the prosecution witnesses who testified that he was under the influence of liquor, while performing duty on July 29, 2005 at the said duty post and thereafter, he misbehaved with Inspector Rahatulal and threatened him with life consequences.
It is settled law that departmental proceedings are not criminal trial and in spite of the fact that the same are quasi-judicial and quasi-criminal, doctrine of proof beyond reasonable doubt does not apply in such cases, but the principle of preponderance of probabilities would apply. The Court has to see whether there is evidence on record to reach the conclusion that the delinquent has committed a misconduct. In this regard reference may be made for this view to the decision of the Supreme Court in the case of Nirmala Jhala vs. State of Gujrat reported in (2013) 4 SCC 301 (Para-
17). It is also trite law that High Court while exercising writ jurisdiction does not reverse finding of enquiry authority on the ground that the evidence before it was insufficient and if there is some evidence to reasonably support conclusions of enquiring authority, it is not the function of the Court to review evidence and to arrive at its own independent finding. The enquiry authority is the sole judge of the fact so long as there is some legal evidence to substantiate its finding; adequacy or reliability of evidence is not a matter which can be permitted to be canvassed before the writ Court. This view finds support from the decision of the Supreme Court in the case of R.S. Saini vs. State of Punjab & Ors. reported in (1999)8 SCC 90.
In the present case, from the report of the enquiry officer, as well as the orders passed by the disciplinary authority, the appellate authority and the revisional authority it is evident that the prosecution witnesses adduced overwhelming evidence to establish that the petitioner, who was detailed for 'B'-shift duty from 13.00 hrs. to 21.00 hrs. on July 29, 2005 at new gate duty post, was found under the influence of liquor during his duty hours and he had to be withdrawn from the new gate duty post by deploying another constable namely, J.S. Baidya. The petitioner, however, did not even cross-examine the prosecution witnesses namely, PW-1, PW-2, PW-5, PW-6 and PW-7, nor did he adduce any evidence. When the petitioner did not cross-examine the prosecution witnesses PW-1, PW-2, PW-5, PW-6 and PW-7 who adduced evidence in support of the first charge framed against him that he was under the influence of liquor during his duty hours, the petitioner did not dispute any evidence adduced by any of the said prosecution witnesses.
For all the above reasons, I do not find any infirmity in the findings of either the enquiry officer or the disciplinary authority or the appellate authority or the revisional authority that the first charge framed against the petitioner was proved. It is settled law that a judgment of a Court should not be read as a statute and the decision of the Supreme Court has to be considered in the context in which it was rendered and a little difference in facts or additional facts may make a lot of difference in the precedential value of decision. In this regard, reference made to the decision of the Supreme Court in the case of Bhavnagar University vs. Palitana Sugar Mill (P) Ltd. reported in (2003) 2 SCC 111. Unlike the facts of the present case already discussed above, in the case of Munna Lal (supra) relied upon by the petitioner, the Supreme Court found that the evidence was not satisfactory to prove that the appellant was found drunk on the day when he was on duty and, therefore, it was held that in the absence of positive medical evidence, it was held that the charge levelled against the appellant that he joined his official duty in drunken condition was not proved. In the case of Bachu Bhai Hassanalli Koryani (supra) relied upon the petitioner, the Supreme Court was dealing with an appeal filed by the appellant who was convicted by the learned Presidency Magistrate in a criminal case under Section 304-A and 337 of the Indian Penal Code as read with Section 117 of the Motor Vehicles Act. It is settled law that in a criminal proceeding the standard of proof is strict and as such when the Supreme Court found that no urine test of the appellant was carried out and no blood report of the appellant was produced by the prosecution, the charge framed against the appellant for drunken driving an offence under the Indian Penal Code was not proved. As already discussed above, the standard of proof in a departmental proceeding is not as strict in a criminal proceeding, the standard is preponderance of probabilities, and, as such, the said decision of the Supreme Court in the case of Bachu Bhai Hassanalli Koryani (supra) has no application in the present case. For all the reasons already mentioned above, the definition of the word 'Forensic Medicine' as defined in Black's Law Dictionary and The Law of Lexicon relied on behalf of the petitioner has no application in the present case.
So far as the second charge framed against the petitioner that on July 29, 2005 while he was being taken to the said hospital for medical examination, he abused the Insp/Ex. Rahatu Lal by using impolite and filthy language and also threatened him for life consequence, from the facts of the case as already discussed above it is evident that the prosecution witnesses adduced overwhelming evidence to substantiate the said charge and the petitioner did not cross-examine any of the said prosecution witnesses, nor did he himself adduce any evidence to dispute the second charge framed against him. Accordingly, I am unable to find any infirmity with the findings either of the enquiry officer or that all the disciplinary authority or the appellate authority or the revisional authority that the second charge framed against the petitioner was proved. In any event, the learned counsel appearing for the petitioner did not challenge the finding of the enquiry officer and that of the disciplinary authority, appellate authority as well as the revisional authority that the second charge framed against the petitioner was proved.
With regard to the third charge framed against the petitioner, the PW-10 (the Incharge of the Document Section) produced and proved the relevant document (PW-10/ (PW-10/Ex. P.1) evidencing imposition of minor punishments on earlier 13 occasions on the petitioner, which was not even disputed by the petitioner. Thus, in the instant case, when the first and second charges framed against the petitioner were proved in the disciplinary proceeding there is no scope to find any infirmity in the decisions of the disciplinary authority, the appellate authority and the revisional authority that third charge was also proved against the petitioner.
Before parting with the matter, it may be pointed out that, even it be accepted for the sake of argument that the first charge framed against the petitioner was not proved there is no scope to interfere with the punishment imposed upon the petitioner by the disciplinary authority which is upheld by the appellate authority as well as the revisional authority, when the second and third charge framed against the petitioner were proved.
For all the foregoing reasons, I do not find any merit of the present writ application. Accordingly, the writ petition, being W.P. No. 17067(W) of 2008 stands dismissed and the interim order passed, if any also stands vacated.
However, there shall no order as to costs.
Let urgent certified server copy of this judgment, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
(Ashis Kumar Chakraborty, J.)