Delhi District Court
(3) Commandant Cisf vs Sh. Joginder Singh on 30 October, 2012
ID No.02401C013440211
IN THE COURT OF SHRI PANKAJ GUPTA, ADDL. DISTRICT
JUDGE (CENTRAL07), TIS HAZARI COURTS : DELHI.
RCA NO.04/2011
(1) Union of India
(through its Secretary)
Ministry of Home Affairs,
New Delhi.
(2) Dy. Inspector General (CISF)
Ministry of Home Affairs,
North East Zone HQRS,
New Paltipura Colony,
Patna, Bihar.
(3) Commandant CISF
Unit Chandra Pura,
Thermal Power Station (DVC)
P.O. Chandrapur,
Distt. Girdih, Bihar. ............Appellants
Versus
Sh. Joginder Singh,
S/o Late Shri Chander Bhan,
R/o Village Bhagwatipur,
District Rohtak, Haryana. .............Respondent
Date of Institution : 25.03.2011
Date when the case reserved for order : 30.10.2012
Date of Order : 30.10.2012
1/9 UOI & Ors. vs. Sh. Joginder Singh
J U D G M E N T
1. This appeal is preferred by the appellants against the judgment and decree dated 22.01.2011 (the decree) passed by the Ld. Senior Civil Judge cum Rent Controller (Central), Delhi (the trial court) whereby the suit for declaration and mandatory injunction filed by the respondent was decreed in his favour and against the appellants.
2. Brief facts relevant for the disposal of the present appeal are that the respondent/ the plaintiff therein filed the suit for declaration and mandatory injunction against the appellants/the defendants therein and prayed that the dismissal order dated 31.12.1990 passed by the appellant no. 3 be declared illegal; and the order dated 07.10.1991 passed by the appellant no.2, so far as it was against the interest of the respondent be also declared against law and be set aside. It was also prayed that the respondent be reinstated in service with full back wages and other service facilities.
3. The appellants/defendants therein contested the suit. After trial of the suit, the trial court passed the judgment and decree in favour of the respondent.
4. Being aggrieved by the decree, the appellants preferred the appeal. The respondent contested the appeal and prayed for its dismissal.
5. I have heard the ld. counsels for the parties and have perused the material available on record including the trial court record.
2/9 UOI & Ors. vs. Sh. Joginder Singh
6. Admitted facts are that the respondent was employed with the Central Industrial Security Force (CISF) as Constable. He was charge sheeted by the appellants on 03.06.1990. The respondent participated in the disciplinary inquiry. After holding the disciplinary inquiry, vide order dated 31.12.1990 the respondent was removed from the services. Being aggrieved by the said order, the respondent preferred an appeal before the appellate authority i.e. the appellant no.2. Vide order dated 07.10.1991, the appellate authority modified the order dated 31.12.1990 to the extent that the removal order was set aside and the penalty was reduced. The respondent was ordered to be reinstated on certain conditions as mentioned in the said order. Being aggrieved by the said order, the respondent instituted the suit before the trial court seeking setting aside of the orders dated 31.12.1990 and 07.10.1991.
7. Counsel for the appellants strenuously pleaded that despite the fact that respondent/plaintiff therein failed to prove his case, the trial court had gone beyond the scope of the suit and then decreed the suit in favour of the respondent.
8. In the suit, the respondent challenged the orders dated 31.12.1990 and 07.10.1991 on three grounds (i) the respondent was not given the opportunity of being heard, therefore, there was violation of principle of natural justice; (ii) the appellants have not supplied the complete documents to the respondent which prevented him to defend his case properly; and (iii) he was not provided with the legal assistance to defend his case. On the basis of the above said three grounds, the respondent sought setting aside of the said orders.
3/9 UOI & Ors. vs. Sh. Joginder Singh
9. While declaring the issues no.1 and 2, the trial court held as
under :
"8..............................The plaintiff was required to show that order of removal from the service is illegal, arbitrary and against the principle of natural justice. He has taken a plea that the documents were not supplied in Hindi which is purely a technical plea because he has not brought on record as to how he suffered due to that. He has although understood the case and has rather made the statement Ex. DW 1/6 and admitted that as the leave was not allowed, he left the station without permission. The proceedings have been proved in Hindi in which he stated that he does not want to produce any document. There is no question of pressure on him and nothing has been brought on record that the statement was not made voluntarily. As far as the question of providing defence assistance is concerned, it is observed that when he himself has admitted that he does not want to say anything, then the question of providing defence assistance losses its significance. It was a simple case wherein the plaintiff has left the station without permission and proceedings were started. The plaintiff has failed to prove on record that principles of natural justice have been violated...................As far as guilt part is concerned, there is no need of interference by this court."
10. In view of the aforementioned observations, the trial court held that in the disciplinary inquiry, principle of natural justice was followed; and the respondent participated in the disciplinary inquiry and was given ample opportunities to put forth his defense. As such, the respondent failed to prove all the three grounds which were the basis of his suit to challenge the orders dated 31.12.1990 and 07.10.1991. Therefore, the trial court should have 4/9 UOI & Ors. vs. Sh. Joginder Singh dismissed the suit then and there. Instead to do so, the trial court had gone into the issue of imposition of penalty and held that the punishment awarded by the appellant no.2 was a major penalty.
11. At the outset, it is mentioned that the respondent challenged the orders dated 31.12.1990 and 07.10.1991 on the basis that it were passed in violation of principle of natural justice only. The entire plaint is silent that the penalty imposed by the appellant no.2 vide order dated 07.10.1991 did not commensurate with the nature of offence. It implies that the respondent admitted that the penalty imposed was otherwise as per the rules but questioned the same on the ground of violation of principle of natural justice. As discussed above, the trial court itself held that there was no violation of principle of natural justice, therefore, there was no occasion for the trial court to go into the question of quantum of penalty which was not questioned by the respondent himself. Despite that the trial court held that the penalty imposed by the appellant no.2 was the major penalty and a minor penalty should have been imposed. The entire judgment is silent as to how the trial court had come to the said conclusion and what was the basis and material available with the trial court to hold so. While holding so, the trial court relied upon the judgment passed by the Hon'ble Supreme Court in "Ex Naik Sardar Singh vs. Union of India reported in 1991 (3) SCC 213 wherein it was held that punishment must be commensurate with the gravity of misconduct and disproportionate severe punishment is arbitrary and is open to the court interference. As discussed above, the respondent himself had not challenged the quantum of the penalty nor was it the case of the respondent that the penalty did not commensurate with the charges leveled against him, Therefore, there was no occasion for applicability of the said judgment in the 5/9 UOI & Ors. vs. Sh. Joginder Singh said suit. As such, it can be held that while holding so, the trial court not only had gone beyond the scope of the suit but also had given the findings to that effect without any basis and material available on record.
12. Vide order dated 07.10.1991, admittedly the punishment awarded vide order dated 31.12.1990 was reduced, removal order was set aside and the respondent was reinstated in service with certain conditions. Case of the respondent was that part of the order which was in his favour was right and part of the order which was against him that was bad because it was in violation of principle of natural justice. Once appeal was heard and the order was passed then either the entire order would be in violation of principle of natural justice or the said principle was followed from beginning till end but it could not be bifurcation. Therefore, once it was held that there was no violation of principle of natural justice, then the said prayer for setting aside the order dated 07.10.1991 should have been dismissed. The trial court also observed that the relief as prayed in the plaint cannot be granted. Despite that the trial court set aside the order dated 07.10.1991 and directed the appellant no.2 to give minor penalty to the respondent within 02 months from that day. Simultaneously, it was held that the respondent be deemed to be in services from the date of his termination from the services with back wages and all consequential relief subject to adjustment of minor penalty to be given to him. As such, firstly, vide the decree the trial court gave a relief to the respondent which was not prayed for. Secondly, on the one hand, the trial court remanded back the matter to the concerned authority to give the minor penalty and on the other hand, the trial court awarded the relief of full back wages with consequential relief as prayed for in the plaint. It is not understandable once the matter was remanded back to give minor penalty 6/9 UOI & Ors. vs. Sh. Joginder Singh then why the relief of back wages was given. And if the relief of back wages was warranted in the suit, then why the matter was remanded back to give minor penalty. Hence, it can be held that on the one hand, the trial court held that the respondent failed to prove his case and the appellants passed the reasoned orders and on the other hand, the trial court gave the relief to the respondent which he was not entitled to at all.
13. The trial court observed that the respondent/plaintiff like persons work under extremely difficult circumstances and under this disciplinary unit, their prayer of leave had been declined casually by the superior officers. On the basis of the said observation, it was directed to send the copy of the judgment to the concerned departments so that they could frame the leave rules afresh so that the employees may get the leave in case of urgency. During the course of arguments counsel for the appellants pleaded that there was no occasion to give such directions. On the contrary, counsel for the respondent pleaded that the said directions were rightly given in the said suit. The plaintiff filed the suit. In the plaint, the respondent/the plaintiff had not made a single averment that the concerned authority had declined sanction of the leave applied by him in violation of service/conduct rules. The respondent/plaintiff has not touched at all the service/conduct rules framed by the appellants regarding applying for sanction of leave and disposal of the said applications. As such, the issue of grant and rejection of the leave applications, the rules framed in that regard was completely foreign to the said suit. Despite all that the trial court had gone into that issue. The appellant no.1 is an organization having its separate code and service/conduct rules to regulate the services. Being so, the appellant no.1 is well empowered and competent to frame the rules, keeping in view the 7/9 UOI & Ors. vs. Sh. Joginder Singh service conditions and its object. Till the issue of the said rules being unreasonable in nature and/or there was violation of the same being raised, there was no occasion for the trial court to issue such directions. Further, the respondent joined the services at his own knowing fully well the service /conduct rules. If he could not follow the service/conduct rules, he was under no compulsion to join and/or remain in services and could have left the services at any point of time. But on the pretext that service/conduct rules were strict, which was not the case of respondent himself in the said suit, a relief should not have been granted to the respondent which otherwise, he was not entitled to.
14. In Director (Mkt.), Indian Oil Corpn. Ltd. v. Santosh Kumar, 2006 (11) SCC 147, the Hon'ble Supreme Court held :
"Constitution of India, Articles 14 & 226 - Departmental proceedings - Natural justice - Speaking orders - The disciplinary as well as the appellate authority in departmental proceedings are required to pass well reasoned speaking orders However, if the orders of disciplinary authorities are set aside on that ground, the matter should be referred to the authorities back for proceeding afresh instead of directing reinstatement with continuity and full back wages".
15. In view of the aforementioned judgment and discussions, it can be held that the trial court acted in highly perverse manner and decreed the suit against all canon of justice. Therefore, the decree granted by the trial court is not sustainable in law and is liable to be set aside.
16. Therefore, the appeal is allowed. The judgment and decree dated 8/9 UOI & Ors. vs. Sh. Joginder Singh 22.01.2011 passed by the Ld. Senior Civil Judge cum Rent Controller (Central), Delhi is set aside. Consequently, the suit filed by the respondent is dismissed. No order as to cost. Decree sheet be drawn accordingly. Trial court record be sent back along with the copy of judgment.
Appeal file be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT, On 30th Day of October, 2012.
(PANKAJ GUPTA)
ADJ(CENTRAL07)/DELHI
30.10.2012
9/9 UOI & Ors. vs. Sh. Joginder Singh