Jammu & Kashmir High Court
Narender Kumar vs Union Of India &Ors.; on 18 July, 2018
Equivalent citations: AIRONLINE 2018 J AND K 39
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
SWP No. 1092/2012
Date of decision:18.07.2018
___________________________________________________________
Narender Kumar Vs. Union of India &ors.
___________________________________________________________
Coram:
Hon'ble Mr. Justice Sanjeev Kumar, Judge.
Appearing Counsel:
For petitioner(s)/appellant(s) : Ms. Rozina Afzal, Advocate.
For Respondent(s) : Mr. N.A.Choudhary, Advocate.
___________________________________________________________ i. Whether approved for reporting in Press/Media : Yes/No ii. Whether to be reported in Digest/Journal : Yes/No
1. Through the medium of the instant petition, the petitioner seeks quashing of Office Memorandum No. E-31014/MACP/IOC (H)/Admn. II/II-2138 dated 13.07.2011 (Annexure-P1) whereby his request made in the representation was rejected by referring to the letter of CISF Head Quarter regarding rejection of the representation. He also seeks quashment of Order dated 18.09.2009 (Annexure P-3) issued by Assistant Commandant, CISF Unit, PGICL, Wagoora (respondent No.4), Communication dated 14.01.2008 (Annexure P-4) issued by respondent No.4 and Final Order dated 06.09.2007 (Annexure P-5) issued by respondent No. 4 by which the punishment of censure was awarded to him.
2. The facts as projected in this petition, briefly put, are that the petitioner joined CISF on 27.06.1987 on the post of Constable. After joining the CISF, he completed his training at BSL Bokaro, SWP No. 1092/2012 Page 1 of 14 Bihar and after completion of his training; he was posted at Sri Harikote, Andhra Pradesh. During his long service career, he has performed his duty at various places all over India, i.e., at Hindustan Petroleum Corporation Ltd. Refinery, Visakhapatnam, Parichha, Thermal Power Project, Jhansi, Indian Oil Complex, Shakur Basti, Delhi National Fertilizers Ltd. Nangal (Punjab), Industrial Retraining Institute, Naini, Allahabad, (U.P), Indian Oil Corporation, Panipat (Haryana), PGCIL, Wagoora (J&K), Iron & Steel Plant, Burnpur (West Bengal) and presently he is posted at India Oil Corporation, Haldia, West Bengal. On account of his hard work, utmost devotion, dedication and unblemished service record, there has been no major punishment to his discredit. Because of his excellent performance of duties, the petitioner was awarded with more than 40 Commendations, entries of excellent service and Good Turnout Certificate issued by the DG. He was also awarded with seven days Special Leave with Cash award too.
3. It is contended by the petitioner that he was transferred to PGCIL, Wagoora (J&K) on 05.12.2004 and the respondent No.4 joined PGCIL Wagoora somewhere in the year 2007 on the post of Assistant Commandant. It is further submitted that since December 2005 to December, 2006 there was nothing adverse against him and he was performing his duties excellently to the full satisfaction of his superiors.
4. Further case of the petitioner is that after respondent No.4 joined as Assistant Commandant, he started having grudges against him inasmuch as he started harassing him on one pretext or the other. In order to cause damage to the service career of the petitioner, respondent No.4 with his deep rooted prejudice and bias against him issued an Advisory Memo dated 11.07.2007 without even calling SWP No. 1092/2012 Page 2 of 14 any explanation, reply or representation on the most unfounded allegations. Advisory was in the following manner:-
"from reliable sources, it is learnt that you are visiting off and on this officers of PGCIL Management and maintaining relations with them, which is not desirable from the members of the Force. It is also learnt that some of the personnel from the management staff are visiting your residence. Being member of the Armed Force of the Union, this act on your part speaks your indiscipline activity on your part and a defaming factor for the Force".
5. It is stated that the allegations leveled in the Advisory Memo were totally false, frivolous and concocted. It is further contended that respondent No.4 again served another Memo dated 03.08.2007 thereby alleging therein that the petitioner was found absent from his duty at 7.45 AM on 17.07.2007 when checked by him despite that previously also the petitioner had been given warning/instructions by him. It is contended that except for the Advisory Memo dated 11.07.2007 containing false allegations, no such warning/instructions were issued to the petitioner, because the petitioner was not lacking anywhere.
6. It is further case of the petitioner that the Memo dated 03.08.2007 was totally false. He had fully explained that on that day, he was suffering from acute dysentery inasmuch as that his trouser and underwear had got dirty and at 7.40 AM, he had to go to his quarter situated just near to the duty point to change the clothes. It is submitted that the distance between the quarter and the post was just about 9 meters, thus, the petitioner fully explained that there was no laxity on his part. It is stated that the medicine was taken by him on the advice of the concerned doctor without taking any meal, due to which he suffered from dysentery. It is submitted that in the reply filed by the petitioner, he explained the true and correct facts of the SWP No. 1092/2012 Page 3 of 14 matter, however, no order in pursuant to the reply was passed/issued by respondent No.4 and on the contrary, respondent No.4 again out of prejudice and bias issued Memorandum dated 16.08.2007, thereby proposing to initiate disciplinary proceedings against the petitioner under Rule 37 of the CISF Rules, 2001 on the basis of the charges leveled in Memo dated 03.08.2007. Vide Memorandum dated 16.08.2007, the petitioner was directed to submit his representation against the allegations.
7. It is further stated that in response to the Memo dated 16.08.2007, the petitioner submitted his reply dated 23.08.2007, wherein the petitioner fully explained that he had already submitted his reply in response to the Memo dated 05.08.2007 and the same was his reply to the Memo dated 16.08.2007 as well. The petitioner further requested that keeping in view the facts of his sickness, he may be absolved from the charges. Thereafter, respondent No. 4 passed Final Order dated 16.09.2007 thereby on the one hand he accepted the contention of sickness of the petitioner as correct and on the other hand, imposed the punishment of censure upon him. It is submitted that the said Final Order is self-contradictory, in that, when the explanation/submission of the petitioner have been found satisfactory, there is no reason to award punishment of censure to the petitioner.
8. It is further contended that respondent No.4 again issued another Memo dated 14.01.2008, whereby the petitioner was informed that he has been rated Below Average on the allegations: "he is in habit of bypassing department and maintained relation with the management." It is submitted by the petitioner that Memo dated 14.01.2008 was totally false, frivolous and unfounded and submitted that he explained that the ACR has been recorded out of SWP No. 1092/2012 Page 4 of 14 prejudice, bias, casteism and discrimination to him. The representation of the petitioner was rejected vide order dated 13.05.2008. It is also submitted by the petitioner that the impugned order dated 13.05.2008 shows that the same is non-speaking and the contentions and submissions made by him had neither been considered by the Authority nor taken care of, while passing the said order and, thus, the representation has been rejected in most mechanical manner without application of mind.
9. Thereafter, the petitioner submitted a representation to the DIG, North-Zone, Saket, New Delhi against the impugned order, wherein he explained as to how he was meted out with hostile discrimination by respondent No.4 and how his ACR has been deliberately down- graded. Besides this, the petitioner also explained his contentions of innocence. In response to the representation of the petitioner dated 13.06.2008, he was informed vide Memo dated 16.12.2008 that there is no provision for second appeal and the representation was not considered.
10. It is further submitted by the petitioner that he was eligible for his promotion to the post of HC/GD in the year 2009 but his name was not considered, while the Constables who stood juniors to him were promoted. The petitioner again made a representation dated 09.04.2009 to respondent No.2 wherein he explained that his ACR has been deliberately down-graded and he is totally innocent. Thereafter he was informed vide order dated 18.09.2009 that there is no jurisdiction to entertain representation against the annual remarks for the year 2007 and thus, his representation was not considered.
11. It is next contended by the petitioner that not only he was deprived of his due promotion but also the benefit of Modified Assured SWP No. 1092/2012 Page 5 of 14 Career Progression Scheme (MACP) was also denied to him and hence the petitioner made another representation dated 23.09.2010 to the Director General, CISF, Lodhi Road, New Delhi, herein respondent No.2, for grant of said benefit with effect from its due date.
12. It is further case of the petitioner that vide impugned Office Memorandum dated 13.07.2011, the petitioner has been informed that vide CISF Head Quarter, Delhi letter dated 01.06.2011 intimated through CISF, NES Head Quarter, Kolkata dated 20.06.2011, he has not been granted the financial benefits under MACP Scheme and the promotion due to the reason that while posted at PGCIL, Wagoora (J&K), he was graded Below Average in the ACR for the year 2007 by the Assistant Commandant, herein respondent No.4. It is further submitted by the petitioner that he has further been informed that he has not been granted up-gradation and promotion to the post of HC/GD due to "Below Average" ACR grading. It is submitted that after the then Assistant Commandant was transferred from PGCIL, Wagoora (J&K) in the last quarter of the year 2007, in the year 2008, the petitioner was even awarded the Good Turnout Reward and he was categorized as a hard worker constable. Thus, it becomes clear that the ACR grading and punishment of censure, on the basis of which the service career of the petitioner has been marred are contrary to the performance of the petitioner who has been performing his services in most professional manner as a dedicated personnel.
13. Being aggrieved, the petitioner has filed the instant writ petition thereby challenging the arbitrary, illegal and prejudicial action on the part of the respondents, particularly by respondent No.4, resulting into downgrading his ACR for the year 2007, award of SWP No. 1092/2012 Page 6 of 14 punishment of censure to him, consequently resulting into denial of promotion to the post of HC/GD, non-grant to him the benefit of Modified Assured Progress Scheme as per VIth Pay Commission in gross violation of the law, rules and principles of Natural Justice.
14. The respondents have filed their reply/objections wherein it is stated that the petitioner was awarded punishment of withholding of one increment for one year without cumulative effect on 02.06.1988 for gross misconduct and dereliction of duty by entering out of bound area for catching fish and punishment of censure on 20.03.2003 for scuffle with another Constable. The petitioner was also awarded punishment of censure on 06.09.2007 as he was found absent from duty post while checking by Assistant Commandant on 17.07.2007 at about 0745 hrs. It is also contended that the averments of the petitioner regarding grant of more than 40 commendations entries for various reasons is also misleading. As per service documents, the petitioner was granted 11 cash rewards and 05 commendations for his various good work during his service, i.e., total 16.
15. In the reply/objections, it is also contended by the respondents that the petitioner was posted at CISF Unit, PGCIL Wagoora w.e.f. 05.12.2005 from CISF Unit, IOC, Panipat and respondent No.4 joined CISF Unit, PGCIL, Wagoora on 31.12.2006 on regular posting. As per service record of the petitioner, he was graded Average in the ACRs for the year 2005 and 2006.It is also contended that allegations of harassment as claimed by the petitioner against respondent No.4 are false and baseless as respondent No.4 had issued an Advisory Memo on 11.07.2007 for the improper conduct/activities of the petitioner with a direction to mend his improper conduct/activities in future.
SWP No. 1092/2012 Page 7 of 1416. In clause (c) to reply to the grounds, the respondents contended that before assessing his overall performance in the year 2007 and writing of ACR-2007, the petitioner throughout the year was given ample opportunity to rectify his shortcomings by issuing the following Advisory Memos with advise to improve his performance:
S.No. Reason Letter No. & Date
01. He was found without of Coy.Commander
B.P.Jacket on dated 24.04.2007 Letterdated
at about 1700 at Watch Tower 27.04.2007. He
No. 06 when checked by also accepted not
Commandant, HEP, Uri during to repeat such
visit. mistake in future.
02. Quarreled with Constable Verbally warned
A.G.Lone on 25.05.2007 in in orderly room
family accommodation out to repeat such
mistake in future.
03. Advisory memo regarding off Advisory memo
and on the officers of PGCIL dated 11.07.2007
management and maintaining
liaison with them and some of
the staff are visiting his
residence.
04. Found absent from duty post Awarded Censure
watch tower No.11 on vide F.O. No. 134
17.07.2007 at about 0745 hours dated 06.09.2007 when checked by Asstt.
Commandant.
05. Quarreled with the family of Warned vide Constable M.A. Dar on Letter No. 138 31.8.2007 with the help of his dated 7.9.2007 wife. with a advise not to repeat such mistake in future But the petitioner did not take the benefit of above advises and also did not improve his performance. Accordingly, he was rightly graded as "Below Average". In clause (E) to the reply to the grounds, the respondents submitted that the petitioner was found not SWP No. 1092/2012 Page 8 of 14 fit for grant of promotion and the benefits of MACP in a duly constituted DPC due to his poor service records.
17. Having heard learned counsel for the parties and perused the record, the only question that begs determination is as to whether the penalty of censure awarded to the petitioner and his degrading of ACR for the year 2007 is in consonance with the laid down procedure and in compliance to the principles of natural justice.
18. Insofar as the grievance of the petitioner with regard to downgrading of his ACRs is concerned, it is noted that the Controlling Officer of the petitioner i.e. Assistant Commandant during the year 2007 graded the petitioner "Below Average" in the ACRs for the year 2007. The adverse ACRs were communicated to him on 14th January, 2008 by the respondent No.4. The exact remarks that were mentioned in the ACRs of 2007 read as under:
"He is below average constable. He is in habit of bypassing department and maintains relation with management."
19. It further transpires that petitioner feeling aggrieved with the recording of adverse ACRs submitted an appeal on 5th February, 2008 to the Commandant, CISF Unit, HEP, Uri which was considered and rejected by the Commandant aforesaid. The decision taken on the appeal was also communicated to the petitioner by respondent No.4's Letter No. 15015/CISC ACR/Squ/2008/122 dated 13th May, 2008. Petitioner submitted another appeal to the DIG, CISF Headquarter, Northern Sector, Saket, New Delhi on 13th June, 2008 projecting his grievance against the adverse ACRs recorded by the respondent No.4 and upheld by the Commandant, CISF concerned. The appeal was dismissed by the office of DIG, CISF, NZ, Headquarters on the SWP No. 1092/2012 Page 9 of 14 ground that as per Clause 2.13 of Chapter 2 of CISF Establishment Manual, there was no provision for second appeal against the recording of adverse ACRs. The reply was communicated to the petitioner on 16th December, 2008. The petitioner appears to have filed another appeal before the IGP, CISF, NZ, Headquarters, New Delhi but the same too was not entertained.
20. From the sequence of events narrated above, it is abundantly clear that the petitioner was downgraded in the ACRs for the year 2007 and the same was communicated to him on 14 th January, 2008. He moved the higher authorities against the recording of adverse ACRs but the same was put quietus by the respondents on 13th June 2008, when the appeal preferred by the petitioner was dismissed by DIG, CISF, NZ, Headquarters, the petitioner though made further appeals to the DIG and IG but with no avail. It is, thus, for the petitioner to explain as to why he did not approach the court after his appeal was rejected by the DIG or even IG in the year 2009. Therefore, in the absence of any explanation coming forth, this court is left with no option but to presume that petitioner accepted the verdict of the higher authorities and felt satisfied. That apart, the manner in which appeal of the petitioner against his adverse ACRs was dealt with also cannot be ignored only on account of delay and latches.
21. Writing of ACRs, it may be stated, is prerogative of the Controlling Authority, who while recording ACRs has to take into consideration the work, conduct and demure of the employee under consideration and then make objective assessment. It is stated by the respondents that prior to the recording of the adverse ACRs, the petitioner had been issued advisory to improve his conduct but the petitioner instead of improving his conduct, as advised, persisted with his conduct which was unbecoming of the member of a Belt Force.
SWP No. 1092/2012 Page 10 of 14When representation/appeal was preferred by the petitioner before the Commandant, CISF Unit, HEP Uri, the same should have been considered objectively and the decision taken thereon should have been supported by reasons. This would have at least given satisfaction to the petitioner that his grievance has been considered objectively and for the reasons contained in the order, the same has not been accepted. Unfortunately, in the instant case, the Commandant appears to have rejected the appeal summarily without indicating any reasons. In these circumstances, the petitioner is right in submitting that recording of ACRs, more particularly the decision on his appeal, is in violation of the principles of natural justice. For this reason, this court is of the view that the order of the Commandant, CISF Unit, HEP Uri rejecting the appeal of the petitioner against the adverse ACRs for the year 2007 as communicated to the petitioner vide Assistant Commandant, CISF Unit PGCIL Wagoora's letter No. E-15015/CISF/ACR/DOC/2008- 112 dated 13th May, 2008 deserves to be quashed and direction needs to be issued to the Commandant to decide the appeal of the petitioner afresh and if necessary, after affording an opportunity of being heard to the petitioner. Ordered accordingly. The decision in this regard shall be taken by the Commandant within a period of four weeks from the date the certified copy of this order is served upon him by the petitioner.
22. This brings me to the challenge of the petitioner to final order dated 06.09.2007 issued by respondent No.4, whereby the petitioner was reprimanded under Rule 32 of the CISF Rules, 2001. From the perusal of order dated 06.09.2007, it transpires that the petitioner was issued Memorandum of Charges on 16th July, 2007 under Rule 31 of the CISF Rules, 2001. As a matter of fact, there was only one SWP No. 1092/2012 Page 11 of 14 charge alleged against the petitioner i.e. that the petitioner who was posted at Watch Tower No.11 for duty on 17th July, 2007 and was found absent at 0745 on checking by the respondent No.4. The petitioner submitted detailed reply to the charge and explained his temporary absence from the duty. He had specifically taken the plea that he had suddenly fallen sick due to loose motions. It is also stated by the petitioner in his reply that due to loose motions he had been put in awkward position and therefore, he had to rush to his place to change his Uniform. He has also specifically stated that after changing his Uniform he reported back for duties within five minutes. The Disciplinary Authority though took note of the explanation tendered by the petitioner with regard to his illness but without giving any reasons reprimanded him under Rule 32 of the CISF Rules, 2001. No enquiry was held nor any opportunity of being heard was provided to the petitioner. It is not the case of the respondents that petitioner had admitted his guilt. Undoubtedly, in his reply, the petitioner had admitted that he remained absent from the Tower for five minutes but at the same time he had put-forth reasons which made him to leave the Tower for five minutes. The Disciplinary Authority should have considered those reasons and if the same were beyond the control of the petitioner, appropriate decision thereon should have been taken. But, as is apparent from the order impugned, the Disciplinary Authority took the explanation as admission of guilt and imposed a minor penalty upon the petitioner. Needless to say that in the matter of disciplinary proceedings, the respondents are bound to follow the procedure laid down in Rule 37 for imposition of minor penalties. "Reprimand" which is a form of "censure", is a minor penalty and the same can only be imposed after following the procedure laid down in Rule 37. Rule 37 envisages the compliance with principle of natural justice SWP No. 1092/2012 Page 12 of 14 and holding of an enquiry in the manner laid down in sub-rules (3) to (22) of Rule 36.
23. Admittedly, in the instant case, Rule 37 has been complied with in breach. From the perusal of the records, it is apparent that a clarification was sought from the petitioner by the respondent No.4 vide its Communication dated 3rd October, 2007 which was replied in detail by the petitioner. Subsequently, memorandum of charges was served on the petitioner on 16th August, 2007 and in response thereof, the petitioner reiterated his stand which he had taken while submitting his clarification with regard to his temporary absence from duty. The Disciplinary Authority without holding any inquiry into the charge and without providing any opportunity to the petitioner to substantiate his defense taken in his reply straightway proceeded to impose a minor penalty of "censure/reprimand".
24. That being the position, the final order imposing the minor penalty upon the petitioner too cannot sustain. Accordingly, the final order dated 06.09.2007 impugned in the writ petition is quashed, leaving it open to the respondents to hold an inquiry in terms of Rule 37 of the CISF Rules in accordance with the norms laid down for holding an enquiry and pass appropriate order as may be warranted. Since this court has found both the orders i.e. one by Commandant in appeal pertaining to the downgrading of ACRs for the year 2007 and the second pertaining to the imposition of minor penalty bad in the eye of law, as such, the respondents are directed to consider the case of the petitioner for promotion to the post of Head Constable (GD) as per his seniority and in accordance with the Rules, the adverse ACRs for the year 2007 and order of imposition of penalty of reprimand notwithstanding. The consideration of the petitioner for promotion, however, shall be subject to the outcome of the fresh SWP No. 1092/2012 Page 13 of 14 inquiry, if any, initiated by the respondents and also the disposal of the appeal by the Commandant against the recording of the adverse ACRs for the year 2007. The consideration of the case of the petitioner for his promotion to the post of Head Constable (GD) would depend upon disposal of the appeal by the Commandant CISF. In case the appeal is decided in favour of the petitioner and adverse remarks made against him in the ACRs of 2007 are quashed, the case of the petitioner shall be considered for promotion to the post of Head Constable (GD) with retrospective effect, as claimed by the petitioner. He shall also be entitled to consequential benefits.
25. The writ petition is disposed of in the above terms.
(Sanjeev Kumar) Judge Jammu:
18.07.2018 Pawan Chopra SWP No. 1092/2012 Page 14 of 14