Meghalaya High Court
Shri Roshan Thakuri vs . The Union Of India & Ors. on 3 February, 2020
Author: H. S. Thangkhiew
Bench: H. S. Thangkhiew
Serial No. 06
Regular List
HIGH COURT OF MEGHALAYA
AT SHILLONG
WP(C) No. 286 of 2017
Date of Decision : 03.02.2020
Shri Roshan Thakuri Vs. The Union of India & Ors.
Coram:
Hon'ble Mr. Justice H. S. Thangkhiew, Judge
Appearance:
For the Petitioner(s) : Mr. K.C. Gautam, Adv.
For the Respondent(s) : Mr. K. Paul, CGC
i) Whether approved for reporting in No
Law journals etc.
ii) Whether approved for publication
in press: No
1. The facts of the case in a short compass is that the petitioner who was serving in the Central Industrial Security Force, in the year 2010, was suspended by order dated 19.10.2010 on being charged for being in a state of intoxication while on duty. Thereafter, in the departmental proceedings that followed, by final order dated 18.03.2011, the petitioner was imposed with the major penalty of immediate removal from service. Against the said order though an appeal had been preferred in accordance with the rules, the petitioner came to learn about the dismissal of the appeal only on 09.08.2016 and though the CISF Rules 2001, provide for remedy by way of revision against dismissal of the appeal, it appears that the same could not be availed of due to the time that had lapsed after the appellate order had been passed. Being aggrieved thereby, the petitioner had approached WP(C) No. 286 of 2017 Page 1 of 7 this Court by way of a writ petition being WP(C) No. 273 of 2016. This Court by judgment and order dated 02.02.2017, disposed of the said writ petition by allowing the petitioner to file a revision against the said dismissal order as provided under the CISF Act. Thereafter, as allowed by this Court, the petitioner had preferred a revision application challenging the final order dated 18.03.2011, which came to be dismissed vide order dated 21.06.2017. As such, the petitioner is once again before this Court assailing the final order dated 21.06.2017.
2. Heard Mr. K.C. Gautam, learned counsel on behalf of the petitioner and Mr. K. Paul, learned CGC on behalf of the respondents.
3. Mr. K.C. Gautam, learned counsel while opening his submissions contends that the final order of removal dated 18.03.2011 and the rejection of the second appeal is unwarranted inasmuch as, firstly the findings of the domestic enquiry was not based on any concrete evidence as the same was derived from the Breath Analyzer Report which was neither proved nor exhibited by any prosecution witness. He contends that, the report if not exhibited or proved cannot acquire the status of legal evidence. Secondly, he submits that even if the allegations as put up against the petitioner are correct, the punishment of removal from service was extremely harsh and disproportionate. He further submits that, the revision petition was disposed of by the respondents in a routine manner without entering into the merits and was treated as a mere formality without any proper adjudication as directed by this Court by order dated 21.06.2017. In support of his case, the learned counsel for the petitioner has placed reliance on the judgment of the Supreme Court in the case of Munna Lal vs. Union of India & Ors. reported in (2010) 15 SCC 399, and the judgment of the Calcutta High Court dated 22.06.2018 in the case of Narendra Dutta Rai vs. Union of India reported in 2018 SCC Online Cal 8613, wherein, he submits that the facts and circumstances of the case are similar to the case in hand, especially with regard to the WP(C) No. 286 of 2017 Page 2 of 7 element of doubt as to the charge of intoxication. Learned counsel has also placed reliance in the case of Central Industrial Security Force & Ors. vs. Abrar Ali reported in (2017) 4 SCC 507, on the point of disproportionate punishment. He concludes by reiterating his submissions that the very fact that the removal of the petitioner was based on evidence which was not admissible, the same has rendered the entire findings and the impugned orders illegal and liable to be struck down by this Court.
4. In reply to the submissions made by the learned counsel for the petitioner, Mr. K. Paul, learned CGC submits that there is no infirmity in the proceedings and that the removal of service of the petitioner was after due process and after affording adequate opportunity to the petitioner in accordance with law and rules as applicable. Learned counsel submits that the scope of review is extremely limited inasmuch as, the findings were arrived at on the basis of sufficient oral, documentary and circumstantial evidence which was adduced during the course of the departmental enquiry and that all the articles of charge levelled against the petitioner stood proved. The learned counsel has drawn the Court's attention to the records especially to the questions which were put to the petitioner which finds place at page- 45 of the writ petition, wherein, the petitioner in reply had admitted that he had consumed liquor. This he submits, leaves no doubt about the guilt of the petitioner.
5. Learned counsel submits that the petitioner was a member of a Disciplined Armed Force of the Union (CISF) and was bound to maintain a high degree of discipline, integrity and devotion to his duty, but however, in total disregard to his designated duty, had deliberately absented himself and indulged in gross acts of indiscipline by leaving the vulnerable duty post in a sensitive area without any permission from the competent authority, and further was found in an intoxicated condition, apart from also indulging in abusing WP(C) No. 286 of 2017 Page 3 of 7 his superiors. Learned counsel also submits that the past service record of the petitioner is also unsatisfactory and he had been awarded with one major and six minor punishments by different disciplinary authorities for his indiscipline.
6. Learned counsel to support his case has placed reliance on the same judgment of CISF vs. Abrar Ali (supra) and submits that the High Court cannot re-appreciate the evidence nor does sit on appeal against the order of the disciplinary authorities but is only to confine itself as to whether the enquiry was vitiated for non-compliance of certain conditions, as laid down by the Supreme Court in the case of Union of India vs. P. Gunasekaran reported in (2015) 2 SCC 610. He closes his submissions by asserting that there has been no procedural infirmity nor any violation of the principles of natural justice, and further the intoxication being admitted by the petitioner, no case has been made out for interference and the punishment so meted out is reasonable in consideration of the gravity of the proven charges.
7. Having heard the learned counsels, and having examined the materials on record especially the records of the proceedings, this Court is to examine the case of the petitioner on two aspects, whether there are any procedural lapses in the enquiry and whether the punishment awarded is disproportionate to the charged offence.
8. It is noted that, the said proceedings under Rule 36 of CISF Rules 2001, was initiated against the petitioner on 8 th and 9th November, 2010 on four charges namely;
Charge I: Found in inebriated condition at about 2045 hours while briefing conducted by SI/Exe Rahul Patil on 08.09.2010 before detailed night shift duty at traffic controlling duty industrial Sector Main Gate from 2100 to 0500 hours on 08.09.2010.
WP(C) No. 286 of 2017 Page 4 of 7Charge II: Had misbehaved and threatened to Insp./Exe F.B. Kinikar at Unit Control Room at about 2115 hours on 08.09.2010.
Charge III: on 09.09.2010 deployed 'B' shift duty with Arms at Industrial Gate Watch Tower. Found in inebriated/intoxicated condition at about 1240 hours while briefing conducted by Si/Exe Rahul Patil. Upon arrival of Coy Commander, got down from shift bus in spite of refusal by shift I/C, Si/Exe Rahul Patil and went to quarter and absented himself from duty. Charge IV: Incorrigible habit of committing misconducts in- spite of award with 01 Major and 06 Minor punishments by different Disciplinary Authorities.
9. On perusal of the enquiry report dated 03.01.2009, it is seen that the process was conducted in accordance with Rule 34 of the CISF Rules of 2001. The petitioner was given opportunity to produce any serving member of the force as defence assistant which was declined. Several witnesses present on the day of the alleged incident on 18.10.2010 were examined and the petitioner was given an opportunity to cross examine. As many as nine witnesses corroborated the alleged charges against the petitioner, and the statements so recorded, as well as prosecution exhibits, were supplied to the writ petitioner under proper acknowledgment. It is observed that there was no infirmity in the conduct of the proceedings and the writ petitioner was given adequate opportunity to put up his case. By a detailed order dated 18.03.2011 which is also impugned herein, the writ petitioner was awarded the penalty of 'removal from service'. It is noted that in the order dated 18.03.2011 itself, it is recorded that in response to the Presenting Officer's brief and thereafter the representation to the inquiry report, the writ petitioner had promised that indisciplined behaviour on his part shall not recur in future and sought pardon apart from admitting his misdemeanours. The order also recorded the findings with regard to WP(C) No. 286 of 2017 Page 5 of 7 the fact that the writ petitioner had unauthorisedly left his duty post, threatened and abused his superiors under the influence of alcohol and also that the medical report dated 19.10.2010 clearly confirmed that the writ petitioner had consumed alcohol.
10. The order dated 21.06.2017 passed in the revision petition filed by the writ petitioner also dwelt in detail on the various points raised by the writ petitioner apart from examining the final order and consequently upheld the order of removal, apart from taking note of the bad service record of the petitioner and the fact that in spite of being awarded one major and six minor punishments, by different disciplinary authorities, had failed to mend himself but rather developed incorrigible habits. The Revisional Authority on the aspect on the severity of punishment held that, had the petitioner maintained a good record of service, the punishment could have been suitably modified but however the case of the petitioner could not be considered sympathetically as he had repeatedly exhibited unbecoming behaviour, though a member of a disciplined Central Armed Police Force like the CISF. The authority also noted that another departmental inquiry had been conducted and completed against the petitioner on similar charges but kept in a dormant stage due to the pendency of the instant proceeding. The authority also found the acts on the part of the petitioner to be highly prejudicial to a disciplined force i.e. CISF.
11. The two proceedings which had culminated in the orders dated 18.03.2011 and 21.06.2017 which are questioned and assailed by the writ petitioner as being arbitrary and illegal, on careful examination, in the considered opinion of this Court cannot be said to suffer from any infirmity or are vitiated in any manner on account of any failure to adhere to procedure established nor has there been any violation of the principles of natural justice. The scope of judicial review in such matters, especially to re-appreciate or to make re-assessment of the findings of an inquiry is very limited especially WP(C) No. 286 of 2017 Page 6 of 7 when there does not exist any palpable error in the conduct of the proceedings, and the punishment arrived at, not one that shocks a person conscience.
12. In respect of the assertions that the punishment meted out to the petitioner was harsh and disproportionate the disciplinary authorities cannot be said to have inflicted a punishment that is disproportionate or unduly harsh, inasmuch as, all the charges against the petitioner stood proved. The punishment given has also taken into consideration the track record of the petitioner and the fact that as a member of a disciplined force such behaviour cannot be condoned. The judgments relied upon by the counsel for the petitioner namely Munna Lal vs. Union of India & Ors. (supra) is of no assistance, inasmuch as, the consumption of alcohol by the petitioner was corroborated by the other witnesses and also admitted by the petitioner himself. Similarly, the judgment in the case of Central Industrial Security Force & Ors. vs. Abrar Ali (supra) is distinguishable, inasmuch as, in the referred case the charge is only of desertion for 5 days and the facts and circumstance are altogether different and not similarly situated whereas in the instant case the proven charges against the petitioner, are of a more serious nature coupled with his service record. As regard the judgment of the Calcutta High Court in the case of Narendra Dutta Rai vs. Union of India (supra) the same though having only persuasive value is also not helpful to the petitioner as in that case the intoxication was in doubt and the entire case hinged on this aspect which is not the situation in the present case.
13. For the foregoing facts and circumstances, there is no merit in the instant case and the same is accordingly dismissed.
14. No order as to costs.
JUDGE Meghalaya 03.02.2020 "V. Lyndem PS"
WP(C) No. 286 of 2017 Page 7 of 7