Jharkhand High Court
Laxmi Narayan Singha vs Union Of India & Ors. on 6 August, 2012
Author: Alok Singh
Bench: Alok Singh
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (S) No. 2377 of 2006
Laxmi Narayan Singha ..... Petitioner
Versus
1. Union of India through the Secretary, Ministry of Home Affairs, New Delhi
2. The Director General, C.I.S.F., New Delhi
3. The Inspector General, C.I.S.F., Patna
4. The Inspector General, C.I.S.F., Kolkata
5. The Inspector General, C.I.S.F., Dhanbad
6. The Commandant, C.I.S.F., Dhanbad .... Respondents
CORAM: HON'BLE MR. JUSTICE ALOK SINGH
For the Petitioner : Mr. Sidhartha Roy, Advocate
For the U.O.I. : Mr. Faizur Rahman, C.G.C.
-----
10 /06.08.2012Petitioner, Ex-Sepoy in the Central Industrial Security Force, is assailing the order dated 28.06.1999 passed by disciplinary authority, removing the petitioner from the service, as well as, the order dated 24.01.2001, whereby statutory appeal of the petitioner was dismissed.
Petitioner was charge sheeted on 17.02.1999. Charges are being reproduced hereunder:
"Charge No.-I That No.944521731 Const. L.N. Singha of HQ. Coy CISF Unit CCWO Dhanbad while detailed in 'B' shift duty on 29.1.99 from 1300 hrs to 2100 hrs at Garrage - Canteen Patrolling, withdrew himself from duty area from 1800 hrs to 1830 hrs without any information/permission of competent authority. Thus, Const. L.N. Singha committed an act of misconduct and dereliction of duties which is highly prejudicial to the good order and discipline of the Armed Force.
Charge No.-II That No.944521731 Const. L.N. Singha of HQ. Coy CISF Unit CCWO Dhanbad while detailed in 'B' shift duty from 1300 hrs to 2100 hrs on 29.1.99 at Garrage - Canteen Patrolling, consumed alcoholic liquor during duty hours and in the state of intoxication went to Steel Gate Market at about 1805-1830 hrs and created public nuisance there tarnishing the image of the Force in the eyes of public. Due to his unconscious condition under influence of liquor, he was withdrawn from duty at 1900 hrs vide Hqrs G.D. No.331 dated 29.1.99 since he was not in a position to perform his duties. The above acts on the part of Const. L.N. Singha amounts to gross misconduct and dereliction of duties which is highly prejudicial to the good order and discipline being a member of the Armed Force of the Union.2.
Charge No.-III That No.944521731 Const. L.N. Singha of CISF Unit CCWO Dhanbad has been awarded 08 (eight) minor punishments (i.e. withholding of increment-2, pay Fine-5 and Censure-1) during his short span of service (4 years) for his misconduct, indisciplined activities and dereliction of duties. He has been provided with sufficient opportunities to improve his conduct and discipline but he failed to show any reasonable improvement and repeatedly indulged himself in indisciplined activities and proved himself be to an incorrigible element. His habitual misconduct and dereliction of duties are prejudicial to the good order and discipline being a member of the Armed Force of the Union."
Enquiry Officer, while dealing with Charge No.-II, has recorded finding of facts, which reads as under:
"Further, it is also revealed from the statement of PWs that no one PWs have seen that the charged official in the state of intoxication, went steel gate and created public nuisance. In this regard, it is revealed that the medical examination has also not done by the PW-I or PW-II so without the documentary evidence and the statement of the PWs and evidence, it is not proved that the charged official had consumed liquor on duty hours and created the nuisance in the public. Hence, the charge- II levelled against the charged official has not proved due to insufficient ground/evidence."
Thereafter, a show cause notice was issued to the petitioner along with the copy of Enquiry Report on 15/16 April 1999. Thereafter, disciplinary authority has passed the impugned order. Statutory appeal filed, was also dismissed, vide order dated 24.01.2001.
I have heard learned counsel for the parties and perused the record. Commandant (Hqrs), C.I.S.F. Unit CCWO/BCCL, Dhanbad, in the impugned order, disagreed with the finding of fact recorded by Enquiry Officer at Charge No.-II and has observed in the impugned order that the departmental enquiry is quasi-judicial in nature and depends on the principle of probability of preponderances. He has recorded his own finding to the effect that Charge No.-II is proved against the petitioner. In the last, disciplinary authority has recorded as under:
"9. A member of the Force is expected to maintain high degree of discipline and extreme devotion/dedication to duties and is at all times binding upon specific and implied orders regulating behaviour. The misconduct of the Charged Official has been found an act of indiscipline, insubordination in such a degree as to be incompatible to the sincere and faithful discharge of bonafide Govt. duties which is untenable. On merit 3. of proven delinquency and admitting his fault in final representation, the Charged Official has proved himself totally an unfit person and his further retention in service is an organisation like Armed Force of the Union where discipline is of paramount importance, is not at all desirable. The concept of rule of law would also lose its validity if the instrumentalities is not enlarged with the duties of discharging their function in a fair and just manner. The act of the Charged Official is highly prejudicial and detrimental to the Force discipline and this case deserves to be dealt with deterrently to set an example in the Force.
10. I, therefore, in exercise of the powers conferred upon me under rule 29 (A) Scheduled-II read in conjuction with Rule - 31 (b) of CISF Rules 1969 award the punishment of "Removal From Service" to No.944521731 Constable L.N. Singha with immediate effect.
Section 8 of the Central Industrial Security Force Act, 1968 is as under:
"8. Dismissal, removal, etc., of members of the Force.- Subject to the provisions of article 311 of the Constitution and to such rules as the Central Government may make under this Act, any supervisory officer may-
(i) dismiss, [remove] [,order for compulsory retirement of,] or reduce in rank, any [enrolled member] of the Force whom he thinks remiss or negligent in the discharge of his duty, or unfit for the same; or
(ii) award any one or more of the following punishments to any [enrolled member] of the Force who discharges his duty in a careless or negligent manner, or who by any act of his own renders himself unfit for the discharge thereof, namely:-
(a) fine to any amount not exceeding seven days' pay or reduction in pay scale;
(b) drill, extra guard, fatigue or other duty;
(c) removal from any office of distinction or deprivation of any special emolument;
[(d) withholding of increment of pay with or without cumulative effect;
(e) withholding of promotion;
(f) censure.] Punishment of dismissal, removal, compulsory retirement or reduction in rank can be passed, when disciplinary officer thinks that delinquent officer is negligent in discharging of his duties or remiss or unfit for the same. In the case in hand, there is no such finding recorded by disciplinary authority. The only finding recorded is that delinquent officer is highly prejudicial and detrimental to the discipline of the Force and this case deserves to be dealt with deterrently to set an example in the Force.
Hon'ble Apex Court in the case of Yoginath D. Bagde Vs. State of Maharashtra and another, (1999) 7 SCC 739 has held as under:
4."In view of the above, a delinquent employee has the right of hearing not only during the enquiry proceedings conducted by the enquiry officer into the charges levelled against him but also at the stage at which those findings are considered by the disciplinary authority and the latter, namely, the disciplinary authority forms a tentative opinion that it does not agree with the findings recorded by the enquiry officer. If the findings recorded by the enquiry officer are in favour of the delinquent and it has been held that the charges are not proved, it is all the more necessary to give an opportunity of hearing to the delinquent employee before reversing those findings. The formation of opinion should be tentative and not final. It is at this stage that the delinquent employee should be given an opportunity of hearing after he is informed of the reasons on the basis of which the disciplinary authority has proposed to disagree with the findings of the enquiry officer. This is in consonance with the requirement of Article 311 (2) of the Constitution as it provides that a person shall not be dismissed or removed or reduced in rank except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. So long as a final decision is not taken in the matter, the enquiry shall be deemed to be pending. Mere submission of findings to the disciplinary authority does not bring about the closure of the enquiry proceedings. The enquiry proceedings would come to an end only when the findings have been considered by the disciplinary authority and the charges are either held to be not proved or found to be proved and in that event punishment is inflicted upon the delinquent. That being so, the "right to be heard" would be available to the delinquent up to the final stage. This right being a constitutional right of the employee cannot be taken away by any legislative enactment or service rule including rules made under Article 309 of the Constitution."
In the notice dated 15/16 April 1999 (Annexure 2 to the writ petition), no reason has been disclosed, as to why disciplinary authority proposes to take contrary view, to the view of the Enquiry Officer at Charge No.-II. Notice is also silent about the proposed punishment. Therefore, finding recorded by Disciplinary Authority on Charge No.II is set aside.
In the present case, Charge nos.I and III are found to be proved against the petitioner. For Charge nos.I and III, removal from the services, seems to be shocking.
Mr. Faizur Rahman, appearing for the Respondents has fairly stated that the matter can be remitted back to the disciplinary authority to take decision afresh, on the question of imposition of penalty, in view of the fact that Charge nos.I and III stand proved against the petitioner.
5.For the reasons hereinabove, present petition is allowed. Impugned orders are quashed. The matter stands remitted to the Respondent no.6 to pass fresh order after giving liberty of making written submission and hearing the petitioner, in accordance with law.
(Alok Singh, J.) R.K.