Madras High Court
M. Sekar vs Director General Of Police, Central ... on 22 October, 2002
ORDER E. Padmanabhan, J.
1. The petitioner, a member of the Central Industrial Security Force, whose service conditions are governed by The Central Industrial Security Force Act, 1968, and The Central Industrial Security Force Rules, 1969, is the petitioner herein.
2. The petitioner prays for the issue of a writ of certiorari to call for the records relating to the order in No. V-11014/CISF/Disc/Hq/appeal-61/99-2001 dated 8.4.2000 passed by the 3rd respondent confirming the final order No. V-15014/CISF/SCCL/)CP-II/99/3887 dated 4.10.99 passed by the 4th respondent and the memorandum No. V-15014/CPCL/Ms/Disc/2001/804 dated 26.3.2001 issued by the 5th respondent herein and quash the same.
3. Heard Mr.Mohd. Ibrahim Ali, learned counsel appearing for the petitioner and Mr. G. Jeyachandran, learned Additional Central Government Standing Counsel appearing for the respondents.
4. The 4th respondent framed a charge against the petitioner on 13.9.99. The gravemen of the charge being "FIRING PIN DUPLICATE FITTED U.A". The charge reads thus:-
"No.824580182 Constable M.Sekher formerly of OCP-II area and presently posted to CISF Unit SCCL, (B) SRP Area, was issued with 7.62 SLR Butt No. 146 Regd. No. 15312760 by the OCP-II Area for undergoing unit level course held at RKP Area on 13.4.99 for a period of four weeks. After completion of the course, he deposited the said SLR to OCP-II Kote and on inspection of the said SLR by the Const/Armourer P. Unnikrishnan of RKP Area given remarks in inspection report 'FIRING PIN DUPLICATE FITTED. U.A.". Thus Const. M.Sekher has replaced the firing pin of the said SLR with duplicate one without any authority/permission of the competent authority to suppress the fact, which amounts to gross misconduct, indiscipline and negligence on duties. Hence, the charge."
5. The petitioner denied the article of charge. The 4th respondent, not satisfied with the explanation submitted, awarded the punishment of stoppage of one increment for a period of one year without cumulative effect by final order dated 4.10.1999. Being aggrieved the petitioner preferred an appeal before the 3rd respondent. The 3rd respondent, the appellate authority, set aside the said punishment award by the 4th respondent and ordered that the imputations of charge framed against the appellant on 13.9.99 being grave, be proceeded under Rule 34 after giving ample opportunity to the petitioner to defend himself by means of a regular departmental enquiry. The 3rd respondent also recorded a finding that the appellant requested for production of documents and requested for an enquiry, which has been declined. That apart, the 3rd respondent also recorded a finding that the punishment awarded is inadequate and not commensurate with the gravity of misconduct. Following the said order passed by the 3rd respondent, the 5th respondent issued articles of charge on 26.3.2001 under Rule 34 of The Central Industrial Security Force Rules, 1969, hereinafter referred to as the Rules.
6. Contending that the 5th respondent as well as respondents 3 and 4 have no jurisdiction and acted illegally, in violation of principles of natural justice as well as in violation of the statutory rules, the present writ petition has been filed. It is contended that the order of the 3rd respondent passed in the appeal is without jurisdiction. It is also contended that the disciplinary authority has chosen to impose a minor punishment of stoppage of one increment, while proceeding under Article 35, the appellate authority in the appeal preferred by the petitioner has neither the authority nor jurisdiction to set aside the said proceedings and directed initiation of proceedings for imposition of the major penalty under Rule 34. The impugned order is vitiated by non-application of mind by the appellate authority, besides being without jurisdiction.
7. Per contra, on behalf of respondents 1 to 5, a common counter affidavit has been filed by Group Commandant, CISF Group Head Quarters, Chennai. After referring to earlier disciplinary actions and the imposition of punishment thereof, the respondent has set out the circumstances leading to the framing of the Article of charge. According to the respondents, the petitioner had managed a duplicate firing pin from the local market and fitted the same in the SLR without any permission from the competent authority. The Deputy Commandant initiated action under Rule 35 by framing charges on 13.9.99. On merits the said authority rejected the explanation offered and imposed the penalty of stoppage of one increment for a period of one year without cumulative effect. On appeal, the Commandant, being the appellate authority, with reference to the request made by the petitioner to consider or verify 14 numbers of documents pertaining to the SLR and further requested to hold an enquiry in the matter, while noticing that there has been a defect in the procedure and the imputations being grave in nature, the appellate authority set aside the minor punishment imposed against the petitioner and directed continuation of disciplinary proceedings under Rule 34 of the CISF Rules, 1969, with a view to afford ample opportunity to the petitioner to defend himself in a regular departmental enquiry.
8. The petitioner preferred a representation to the Deputy Inspector General, Southern Zone, Chennai, which was rejected. Once again the petitioner preferred a representation to the Inspector General, CISF-SWS, Mumbai, which authority also, on a consideration rejected the representation as devoid of merits by order dated 12.3.2001.
9. Proceedings under Rule 34 of the rules were initiated against the petitioner by issuing Article of charge on 26.3.01 mentioning that the charge is framed under Rule 34 of the rules. It is submitted that there is no illegality with the order passed by the appellate authority or that the charge framed by the disciplinary authority for remand. The petitioner submitted his written representation dated 4.4.2001 to the charge memo dated 26.3.2001. A regular departmental enquiry was considered necessary by the Group Commandant, CISF, Chennai. The Group Commandant, Chennai, is the disciplinary authority so far as the petitioner is concerned and he appointed Inspector/Exe. Ranjit Singh of CISF Unit, CPCL, Manali, as the enquiry officer to enquire into the Article of charge framed against the petitioner by order dated 16.4.2001.
10. It is pointed out by the respondent that all the contentions raised by the petitioner are devoid of merits and the writ petition has been moved due to frustration and fear and with a view to delay the proceedings. The appellate authority has the authority to set aside the order passed by the original authority and direct the initiation of disciplinary proceedings under Rule 34 for imposition of a major penalty and after remand the Deputy Commandant, who is also the disciplinary authority, in terms of explanation to sub-rule (2) of Rule 34 is the competent authority to frame the charge. Further the petitioner has submitted his objections which was considered by the Group Commandant, who is the disciplinary authority to impose the major penalty insofar as the petitioner is concerned and the said disciplinary authority has appointed an enquiry officer after considering the objections. There is no illegality in the proceedings and the contention that the respondents have neither the authority or jurisdiction is devoid of merits. The learned counsel appearing for the petitioner reiterated the said contentions, while the learned Additional Central Government Standing Counsel contended that there are no merits.
11. The points that arise for consideration in this writ petition are :-
"i) Whether the 3rd respondent, the appellate authority, has acted arbitrarily, without jurisdiction and acted in violation of Rule 47 in setting side the minor penalty imposed and ordering initiation of disciplinary proceedings under Article 34 for the imposition of major penalty ?
ii) Whether the 5th respondent who has framed the memorandum of charge on 26.3.2001 has acted without authority and jurisdiction as he is not the disciplinary authority to impose major penalty in terms of Rule 34 read with 29-A of Schedule II ?
iii) Whether the proceedings of the respondents are liable to be quashed ?"
All the above three points could be considered together.
12. The petitioner is a member of CISF. It is admitted by the counsel for the petitioner and it is also the statutory rule 35 read with Schedule II of the rules, for imposing of minor penalty, namely, penalty specified under Clauses (e) to (h) of Rule 31, the Deputy Commandant is the competent disciplinary authority. Such a minor penalty has been imposed by the disciplinary authority. On appeal the appellate authority has exercised the jurisdiction vested in it under Rule 47 of the rules. Sub-rule (2) of Rule 47 provides for an appeal against an order imposing any of the penalty specified under Rule 31 and the appellate authority shall consider whether the procedure prescribed under the rules has been complied with or not or whether such non-compliance is in violation of the provisions of the Constitution or resulted in failure of justice? or whether the findings are justified and whether the penalty imposed is excessive, adequate or inadequate?
13. The appellate authority in terms of Rule 47 (2)(c) could set aside, reduce, confirm or enhance the penalty or remit the case to the authority which imposed the penalty or of any other authority with such direction as it may deem fit. Sub-rule (2) of Rule 47 reads thus :-
"(a) Whether the procedure prescribed in these rules has been complied with, and not whether such non-compliance has resulted in violation of any provisions of the constitution or in failure of justice ;
(b) Whether the findings are justified ; and
(c) Whether the penalty imposed is excessive, adequate or inadequate and pass orders, --
(i) setting aside, reducing, confirming or enhancing the penalty ;
(ii) remitting the case to the authority which imposed the penalty or to any other authority with such direction as it may deem fit in the circumstances of the case."
14. A perusal of the said rule makes it abundantly clear that the appellate authority has the jurisdiction to set aside the penalty and remit the case to the authority, which passed the penalty or to any other authority with such direction as it may deem fit. The appellate authority could himself hold such enquiry or direct such enquiry to be held and, thereafter, proceed further.
15. In the light of the said statutory rule, the contention that the appellate authority cannot interfere in the appeal preferred by the petitioner, set aside the minor penalty and direct fresh proceedings for a major penalty cannot be sustained. Apart from Rule 47, Rule 49 also enables any authority superior to the authority making the order, may suo motu revise the original order passed by such lower authority within one year from the date of the order and the revising authority may remit, vary or may order a fresh enquiry for taking further evidence in the case as it may consider necessary. Therefore, it is clear that the appellate authority in this case has acted in accordance with the statutory rule and the contention advanced by the counsel for the petitioner cannot be sustained.
16. That apart the writ petitioner contended before the appellate authority that many documents have not been produced despite request and there is violation of principles of natural justice as well as procedural rules. Taking into consideration of the said appeal grounds and also viewing the imputation, namely, replacement of duplicate firing pin being grave in nature, in the considered view of the appellate authority, the said authority rightly passed the order impugned by setting aside the minor penalty and remitting the matter with a direction to initiate action under Rule 34 for imposition of a major penalty. The contention advanced by the counsel for the petitioner in this respect is a misreading of the rule and a misconception as well and it cannot be countenanced.
17. Nextly it was contended by the learned counsel for the petitioner that after the remand by the appellate authority, once again the Deputy Commandant has framed the charge under Article 34 and framing of the charge by the Deputy Commandant for imposition of major penalty is without authority and in excess of jurisdiction. This contention has been advanced overlooking the explanation to sub-rule (2) of Rule 34. The explanation of sub-rule (2) of Rule 34 reads thus :-
"Explanation :- In this sub-rule and in sub-rule (3), the expression "disciplinary authority" shall include the authority competent under these rules to impose upon the member of the Force any of the penalties specified in Cls. (e) to (h) of rule 31."
18. A reading of the above explanation would show that for the purpose of sub-rule (2) and sub-rule (3), the disciplinary authority includes the authority competent under the rules to impose any of the penalty specified under clauses (e) to (h) of Rule 31. In other words, in terms of the explanation appended to sub-rule (2) of Rule 34, an authority who is competent to impose minor penalty is the disciplinary authority and he is one of the disciplinary authorities who is competent to frame the charge even for imposition of major penalty. The contention of the learned counsel that once again the Deputy Commandant who has framed the charge, not being a disciplinary authority to impose a major penalty in terms of Rule 34 is without jurisdiction cannot be sustained at all. This contention overlooks the explanation to sub-rule (2) of Rule 34.
19. In the present case, factually the Deputy Commandant has been directed to frame the article of charge by the appellate authority. Therefore, even though the article of charge has been issued by the Deputy Commandant, who is competent to impose minor penalty alone, still he being a disciplinary authority ho could issue a charge under Rule 34 for imposition of major penalties. Hence, this contention also deserves to be rejected.
20. In the present case, after the Deputy Commandant framing the charges, the petitioner submitted his objections and they were placed before the Commandant, who is the competent authority, not being satisfied with the explanation or objection submitted, appointed enquiry officer to proceed further in the matter. This is in conformity with sub-rule (4) of Rule 34. Sub-rule (9) and (10) of Rule 34 provides that the disciplinary authority, who is not the enquiring authority, has to consider the record of the enquiry and record his findings on each charge and having regard to the findings of the charges, if the disciplinary authority is of the opinion that nature of the penalties specified in clauses (a) to (h) of Rule 31 should be imposed, the disciplinary shall pass appropriate orders in the case.
21. Factually also in this case, though the Deputy Commandant framed the charges as directed by the appellate authority, the petitioner submitted his explanation and the Commandant, who is the competent authority to impose the major penalty has considered the explanations/objections and not being satisfied with the explanation offered has appointed an enquiry officer under sub-rule (4) of Rule 34 to proceed further. This also is in conformity with the regulations. The petitioner has not referred to above factual aspect of the commandant considering the objections and appointing an enquiry officer to proceed further and it is the Commandant, who has to pass final orders on the charges framed after the submission of enquiry report by following the procedure prescribed under sub-rules (5) to (10) of Rule 34.
22. It is brought to the notice of this Court that CISF Rules have been amended and CISF Rules, 2001 came into force on 2.11.2001 and CISF Rules, 1969 stands repealed. CISF Rules, 2001, hereinafter is referred to as New Rules. Rule 34 enumerates the nature of penalties and enumerates major penalties as well as minor penalties, besides providing an explanation that certain of the omissions shall not amount to penalty. New Rule 36 prescribes the procedure for imposing major penalties. Rule 32 prescribes the disciplinary authority and the disciplinary authority is designated as seen from Schedule I. Sub-rule (3) of new rule 32 reads thus :-
"35 (3) A disciplinary authority competent under Schedule-I to impose any of the penalties specified in clause (VI) to (x) of rule 34 may institute disciplinary proceedings against any enrolled member of the Force for imposition of any of the penalties specified in clause (i) to (v) of rule 34 notwithstanding that such disciplinary authority is not competent under Schedule-I to impose any such penalties."
23. Therefore, even in terms of new rules, the disciplinary authority, who is competent only to impose a minor penalty, namely, penalties falling under Rule 34 (vi) to (x) of Rule 34 is also the disciplinary authority and he may institute disciplinary proceedings for imposition of any of the major penalties as enumerated in Rule 34 (i) to (v) notwithstanding the fact that the said authority is not competent under Schedule I to impose any such penalties. This is a direct answer to the contention advanced by the petitioner. In other respect the New rules are imparimeteria with the repealed Rules.
24. Rule 36 (20)(i) also enables the authority, who is competent to impose minor penalties and not competent to impose any of the major penalties specified in Rule 34 has itself inquired into or cause to be inquired into the articles of any charge and if he is of the opinion that the major penalty specified under Rule 34 should be imposed upon, that authority shall forward the records to the disciplinary authority, who is competent to impose any of the major penalties. Rule 52 of the new rule also confers powers on the appellate authority to remit the appeal with such directions as it may deem fit. Thus applying the new rules also there is no escape and all the contentions advanced by the counsel for the petitioner cannot be countenanced.
25. In the result, the points are answered against the petitioner, all the contentions fail and, consequently, this writ petition is dismissed. No costs. Consequently, connected W.M.P. No.14129 of 2001 is dismissed and W.V.M.P. No.30294 of 2001 is closed.