Madras High Court
Moslem Mondal vs The Union Of India (Uoi), Rep., By The ... on 28 October, 2003
ORDER K.P. Sivasubramaniam, J.
1. This writ petition is directed against the order of the fourth respondent dated 15.10.1998, confirming the order of the fifth respondent dated 29.1.1998.
2. The petitioner is working as Assistant Sub Inspector, CISF Unit, MRL, Manali. Petitioner states that while he was working at the Durgapur Steel Plant, there was an outbreak of fire on 9.10.1985. He suffered burn injuries while performing his duty on his face, forehead, nose and other parts of the body. He was hospitalised for about 82 days. The burn injuries had also caused disability, as a result of which he was medically advised to take up light duty and subsequently, he was posted in the CISF Unit, MRL.
3. On 27.12.1997, the petitioner was called upon to explain as to why disciplinary action should not be taken against him as he was allegedly found sleeping at about 0255 hours on 28.11.1997. He submitted his explanation on 30.12.1997. However, a memorandum of charges dated 19.1.1998 was issued under Rule 35. The charges are as follows:-
CHARGE - I "Gross indiscipline and negligence of duty in that No.703280402 ASI/Exe M.Mondal of CISF Unit MRL Manali was found sleeping on duty at 0255 hrs when detailed at East Gate on 'C' shift duty on 27.11.1997 from 2100 hrs to 0500 hrs on 28.11.1997 when checked by Company Commander A.P. Velu, CISF Unit MRL Manali".
CHARGE - II "Gross negligence of duty and supervision of duty in that No.703280402 ASI/Exe M. Mondal of CISF Unit MRL Manali as In charge of East Gate allowed HC/GD P. Yadav and Constable Prem Singh at duty point to sleep inside the sentry room during 'C' shift duty at 0255 hrs when they were detailed at East Gate from 2100 hrs on 27.11.1997 to 0500 hrs on 28.11.1997".
4. It was alleged that when the Company Commander A.P. Velu was carrying out his night checking on the particular day, he found the petitioner sleeping while on duty. The general diary entry was made on 27.11.1997. It was further alleged that one Yadav, Head Constable and Prem Singh, Constable were also detailed for duty in the East Gate at about some time and they were also found sleeping. The general diary entry was made on the same date. Therefore, it was alleged that the petitioner was guilty of gross negligence of duty and was also guilty of lack of supervision.
5. The petitioner submitted his explanation on 24.1.1998, denying the charges. It is stated that the Checking Officer wanted him to be a witness to the contention of the Checking Officer that all others who had performed the duty at East Gate were sleeping. The petitioner had refused to comply with the said request. The petitioner had further submitted that the allegations were false and that nobody was sleeping and there was no slackness on his part. However, an order rejecting his explanation was passed by the fifth respondent on 29.1.1998 and imposing a punishment of withholding all increments for a period of two years, which will not have the effect of postponing the future increments. An appeal was filed to the Group Commandant/the fourth respondent, who also dismissed the appeal by order dated 15.10.1998, confirming the order of punishment. Hence, the above writ petition.
6. I have perused both the affidavit and the counter filed by the respondents.
7. Learned counsel for the petitioner states that though action was initiated also against Yadav, Head Constable, Prem Singh, Constable, one of them was cleared of the charges on the ground that the petitioner had permitted him to take rest as he was not doing well. However, the other individual viz., the Head Constable was also punished for sleeping while on duty.
8. Learned counsel contends that the petitioner has been penalised only because he did not oblige the Checking Officer, by becoming a witness in support of the charges against other individuals. Learned counsel also contends that there was no proper enquiry and that no entry had been made in the beat book. No documents were also furnished to the petitioner, to enable him to file a proper reply.
9. Learned counsel for the respondents/CISF contends that under Rule 35, for infliction of minor penalties, no enquiry is contemplated. The entry has been duly made in the general diary and the petitioner was permitted to peruse the said entry. Therefore, there was no violation of any principle of natural justice. Considering the nature of the duties assigned to the petitioner, being an Assistant Sub Inspector, he was expected to function with vigilance and also to have proper control over his subordinates viz., the Head Constable and the Constable, who were also allowed to sleep alongwith the delinquent. The punishment was also minor and hence no interference was called for.
10. We have considered the submissions of both side.
11. It is true that for inflicting minor penalty, no oral enquiry is contemplated under Rule 35 of CISF Rules. However, it cannot be disputed that basic materials have to be furnished to the delinquent, to enable him to give a proper explanation. It is not disputed that no entry has been made in the beat book, which is in the custody of the delinquent himself. It is also not disputed that the usual practice, in such circumstances, is to make a corresponding entry in the beat book maintained by the delinquents themselves. The fact that entry has been made in the general diary, is not sufficient. It is pertinent to note that no enquiry is conducted and therefore, it is imperative that the delinquent is put on notice about the allegations against him. In all similar cases, simultaneous entry is made in the beat book maintained by the delinquents and such entry has the result of putting the delinquent on notice. Thereafter, a corresponding entry is made in the general diary and some times followed by a special report also. In the absence of any entry in the beat book, the delinquent is disabled from raising any contention regarding the incident. Therefore, in this case, the admitted failure to make entry in the beat book, has to be treated as a defect, disabling the delinquent from furnishing a proper reply to the charges.
12. Further more, in this case, while we expressed our desire to see the entry in the general diary, we are informed that the general diary has been destroyed due to passage of time. We are unable to accept the explanation thus offered on behalf of the respondents. Notice in the writ petition had been served on the respondents 3 to 5 on 19.4.1999 itself and on 23.4.1999 on the first respondent and on 8.3.2000 on the second respondent. Therefore, after having received the notice in the writ petition, the respondents ought not to have destroyed the general diary. The alleged entry in the general diary, being the only piece of evidence relied on by the respondents and the same not being made available before this Court, we are inclined to hold that the writ petitioner is entitled to succeed.
13. With the result, the impugned orders are quashed and the writ petition is allowed. No costs. Connected WMP is closed.