Andhra HC (Pre-Telangana)
S.G. Constable, A.K. Mandal Cisf, Unit ... vs Union Of India (Uoi) Rep. By Its ... on 2 November, 1996
Equivalent citations: 1996(4)ALT911
JUDGMENT S.R. Nayak, J.
1. At the relevant time, the petitioner was serving as Security Guard - Constable in the services of the Central Industrial Security Force Unit at Calcutta. While he was working in Unit 76 C.P.T. Calcutta, he was placed under suspension by the Commandant, C.P.T., Calcutta vide service order Part-I, No. 88/82 dated 7th September, 1982 (MP-P1) under sub-rule (1) of Rule 30 of C.I.S.F. Rules, 1969. A charge memo dated 2-11-1982 (M.P2) was issued by the Commandant. The charge memo reads as follows:-
"Charge No. 1:- No. 7317424, S.G., A.K. Mandal of 'B' Coy. C.I.S.F., Unit C.P.T. Calcutta, is charged with-GROSS MISCONDUCT- in that he was detailed for duty at shed No. 2, N.S.D. ground floor in 'C shift from 12-00 hours on 31-8-82 to 5-00 hours on 1-9-82. At about 4-30 hours, on 1-9-82, he was found in possession of a roll of Polyster Textile cloth numbering 555 made in Japan, without any authority."
The Commandant, C.I.S.F., C.P.T., Calcutta, who is respondent 4 is the disciplinary authority under the rules. The disciplinary authority, not being satisfied with the explanation offered by the petitioner-delinquent, proceeded to hold departmental enquiry by appointing an Enquiry Officer. Before the Enquiry Officer, three witnesses were examined on behalf of the disciplinary authority and two witnesses on behalf of the delinquent. The Enquiry Officer, after holding the enquiry, recorded the finding that the petitioner was found in possession of a polyster textile cloth piece numbering 555 made in Japan in his possession without any authority, while he was on duty at shed No. 2, N.S.D. from 21-00 hours on 31-8-1982 to 5-00 hours on 1-9-1982. The Commandant passed the order on 16-3-1983 directing removal of the petitioner from service as a disciplinary measure. The petitioner preferred an appeal to the Deputy Inspector General, (East Zone). The appellate authority, while concurring with the finding recorded by the Enquiry Officer and that of the disciplinary authority, reduced the punishment and directed that the pay of the petitioner be reduced by three stages for two years with cumulative effect from the date of his reporting for duty. The further revision preferred by the petitioner to the Director General, C.I.S.F. was rejected by an order dated 12-3-1985. There afterwards, the petitioner submitted a representation dated 19-9-1989 to the Director General seeking reconsideration of his decision and to set aside the punishment imposed by the disciplinary authority as reduced by the appellate authority. It appears that an appeal was also sent to the Secretary, Ministry of Home Affairs, Government of India on 30-12-1989 through the counsel of the petitioner. On 6-2-1990, the Deputy Inspector General, C.I.S.F., (East Zone) issued an office memo informing the petitioner that there was no scope to review the mercy petition filed by the petitioner. Having failed to secure any reliefs, the petitioner ultimately filed this writ petition in this Court on 25-4-1991.
2. Heard the learned counsel for the petitioner and the learned Standing Counsel for the respondents.
3. The learned Counsel for the petitioner firstly contended that the finding recorded by the Enquiry Officer and accepted by the disciplinary authority that the petitioner unauthorisedly removed polyster textile cloth numbering 555 made in Japan was not a subject matter of the charge, and therefore, the very basis for imposing the penalty is non-est, and the order of the disciplinary authority cannot be sustained. The learned counsel secondly would contend that there is absolutely no acceptable substantial evidence to prove the fact that the cloth found in the possession of the petitioner was the cloth belonging to the Department. Thirdly, the learned counsel would submit that the evidence of the witnesses examined on behalf of the petitioner has not been properly considered by the disciplinary authority. Lastly, he would submit that the appellate authority ought to have re-apprised the entire evidence on record and recorded its own finding, whereas the appellate authority summarily confirmed the finding recorded by the disciplinary authority without consideration of the evidence on record.
4. On the other hand, Smt. Chaya Devi, the learned Standing Counsel for the respondents-authorities would submit that the writ petition is liable to be dismissed in limine on the ground of laches. The learned counsel points out that the disciplinary authority made the order on 16-3-1983 and the same was affirmed by the appellate authority on 23-4-1984 and by the revisional authority on 12-3-1985, and there is absolutely no satisfactory explanation for inordinate delay in approaching this Court in the year 1991.
5. Let me first consider the preliminary objection raised by the learned Standing Counsel relating to the laches. It is true that the order passed by the disciplinary authority came to be affirmed by both the appellate authority and the revisional authority in the year 1985 itself. But the explanation of the learned Counsel for the petitioner for not approaching this Court immediately there afterwards is that the petitioner hoping that he would get justice at the hands of the higher ups in the Department, chose to make representation to the Director General and to the Secretary, Ministry of Home Affairs, Government of India. I have already referred to the representations made by the petitioner after the revisional authority dismissed his representation. In the normal course, I would not have entertained the writ petition, but, here I find that the procedure adopted by the disciplinary authority resulting in the imposition of penalty of removal from service was in utter violation of principles of natural justice, and the doctrine of fairness in action. Therefore, since there was some delay in approaching this Court, the writ petition cannot be thrown out only on that ground. Therefore, I think that it is just and proper for this Court to decide the writ petition on merits.
6. The arguments of the learned counsel for the petitioner are well-founded. In the charge memo issued to the petitioner, it was nowhere alleged that the cloth which was found in possession of the petitioner was the property of the Department or that, that property was removed or stolen from some other place within the premises of shed No. 2, N.S.D. Therefore, the finding recorded by the disciplinary authority that the fact that the petitioner removed the polyster textile cloth numbering 555 unauthorisedly was proved beyond doubt is unsustainable. It is settled law that a charge framed against a delinquent should be precise, definite and it should set out all the relevant and material particulars and information, the object being that such disclosure of relevant materials and factors relating to the charge should facilitate the delinquent to submit his effective representation, and if this rule is breached, then, the action should be held to be violative of principles of natural justice. This serious flaw in the charge sheet goes to the root of the matter, and therefore, on that ground alone, the order passed by the disciplinary authority and affirmed by the appellate and revisional authorities cannot be sustained and liable to be interfered with.
7. The learned counsel for the petitioner was right in contending that even the aforementioned finding recorded by the disciplinary authority is not grounded on any acceptable relevant substantial evidence. S.S.G. Navami, No. 7105259 was the witness examined on behalf of the disciplinary authority, who claims to be an eye witness to the alleged misconduct committed by the petitioner. The evidence of S.S.G. Navami was blindly accepted by the disciplinary authority without proper consideration of the evidence of the two witnesses examined on behalf of the delinquent. Enquiry Officers and disciplinary authorities are required to act judiciously and reasonably; they are required to record their findings on questions of facts after careful and critical evaluation of the evidence let in on an issue. In the present case, except paraphrasing the evidence of the witnesses of the petitioner, the disciplinary authority has not applied its mind and failed to critically evaluate the evidence of the other witnesses. The evidence of the petitioner was also brushed aside, and no reason is given by the disciplinary authority as to why his evidence should be totally disbelieved. The delinquent had pleaded that the cloth found in his possession was his "langoti" cloth. Even according to the disciplinary authority, he was found in possession of a piece of cloth, and in that view of the matter, the disciplinary authority ought to have decided whether the cloth found in possession of the petitioner was a langoti cloth or some other cloth. The very initiation of the disciplinary proceedings was fatally defective. The petitioner is punished on the ground that he possessed the cloth belonging to the employer and this ground was not subject-matter of the charge framed against the petitioner, and therefore, the penalty imposed by the disciplinary authority cannot be sustained in law. The procedure adopted by the disciplinary authority suffers from errors apparent on its face. A case is made Out for interference.
8. The writ petition is allowed. The impugned order passed by the disciplinary authority is quashed. Consequently the orders made by the appellate authority and the revisional authority shall not have any effect It is made clear that the petitioner is entitled to all the benefits, pecuniary and other- wise, flowing from the quashing of the impugned order. No costs.