Calcutta High Court (Appellete Side)
Dipesh Chandra Mondal @ D.C.Mondal vs Union Of India & Others on 1 December, 2017
1
222 01.12.201 W.P. 12741 (W) of 2017
BD
7.
Dipesh Chandra Mondal @ D.C.Mondal
Vs
Union of India & Others
Mr. K. B. S. Mahapatra,
Mr. Kasinath Bhattacharya.
... For Petitioner
Mr. Indrajeet Dasgupta.
... For Respondents
It appears that in the first sentence of my order dated November 13, 2017 there is a typographical mistake. The respondents did not file the affidavit on that date but they sought to file it. The first sentence should have been "today the respondents wished to file an affidavit...". Let this sentence of the order be accordingly corrected. Other portions of that order remain unaltered.
The petitioner is an employee of the Central Industrial Security Force (CISF, for short). By a letter dated May 15, 2016 the Deputy Commandant of the relevant unit of the CISF asked for an explanation from the petitioner for his failure to discharge the duty on May 11, 2016. The petitioner had given his reply subsequently by a letter of the same date. The Deputy Commandant warned the petitioner not to repeat such mistake in future otherwise suitable action as deemed fit would be taken against him.
Subsequently, a charge sheet was issued against the petitioner in respect of the self same charge and the Assistant Commandant hold him guilty and awarded him a penalty of fine of an amount equivalent to one (01) 2 day's pay. The petitioner filed an appeal and in the appeal he had taken the point that he had already been warned in respect of the same charge and therefore, a fresh proceeding was not maintainable. The Appellate Authority, i.e. the Deputy Commandant had specifically recorded that after the disposal of formal action dealing the petitioner on the same charge for failure to discharge the duty under Rule 37 of the Central Industrial Security Force Rules and awarding punishment by the Assistant Commandant was not justified. He very specifically observed that in spite of the fact that procedures for the two actions were different but the charge was the same. He had reduced the punishment awarded by the Assistant Commandant to censure to meet the ends of justice.
The petitioner filed a revision against the said order and the Senior Commandant rejected the revision of the petitioner as devoid of any merit. The punishment awarded by the respondent is under challenge in the present writ petition.
Mr. Dasgupta, the learned advocate for the respondents, wanted to impress upon the Court that warning and dropping the matter at this stage is not a measure of punishment recognised by the Central Industrial Security Force Act. Therefore, if the former warned a formal action the petitioner could not escape the liability of facing a departmental action in terms of Rule 37 of the said Rules.
The issue is not whether the petitioner made himself liable to prosecution for any minor penalty. What is 3 important to know is that after the petitioner had taken the point before the Appellate Authority, i.e. the Deputy Commandant who had issued the letter of warning earlier, he substantially agreed with the contention of the petitioner that after he had been dealt with once and issued a warning letter ought not to have been proceeded again by way of a fresh proceeding. He also recorded that the charge for both of them was the same. He himself having found so it was not proper on the part of the Appellate Authority by merely to reduce the sentence from fine to censure.
The letter of warning makes it very clear that the respondents had decided to drop the matter at that stage. Otherwise there would not have been any occasion for them to record that if in future the petitioner had repeated the same he would be dealt with in accordance with the Rules. That was a very clear expression of the decision of the respondents not to proceed with this matter any further. Thereafter, the respondents ought not to have proceeded with the fresh proceeding at all. If the Appellate Authority had not accepted the contention of the petitioner and rejected the same that would have been a very different thing. But the Appellate Authority having accepted that the petitioner ought not to have been dealt with once again over the same charge, should have exonerated him and set aside the order of the Assistant Commandant wholly. He should have appreciated that the question was not merely reduction of penalty. The question was whether the case against the petitioner having once been dropped by the 4 respondent, the petitioner was liable to be imposed any punishment at all. The Deputy Commandant having found that the act of the respondent in initiating the proceeding was not justified ought not to have awarded any punishment whatsoever. The effect of reducing the sentence is that the petitioner was found guilty but considering the mitigating circumstances his penalty is reduced. When the petitioner is not liable to be punished in any way the reduction of penalty is not the right approach.
Mr. Dasgupta verbally challenged the order of the Appellate Authority by submitting that the two procedures being different, there was every scope for the Assistant Commandant to pass the order which he did. Unfortunately, the Force has not challenged the order of the Appellate Authority either by way of revision or before this Court. Thereby they have accepted the order and once the order was accepted there is no escape from the very well settled legal position that if a proceeding is improper no punishment therein can be given. I find that the Senior Commandant also failed to appreciate the basic aspect of penology and rejected the revision petition on the ground that there was mitigating circumstances. It appears that he failed to address himself to the issue from the proper perspective. He had not approached the issue from the angle as mentioned above. On the contrary, the justification of the punishment after being reduced by the Appellate Authority was the issue before him.
For the reasons aforesaid, I find sufficient merit in 5 the writ petition and I hold that both the Appellate Authority as well as the revisional authority erred in not holding that once it is held that fresh proceeding at the instance of the respondents was not justified should not have imposed any punishment. The award of punishment as reduced by the Appellate Authority and retained by the revisional authority are hereby set aside. The writ petition is allowed.
There will be no order as to costs.
Urgent photostat certified copy of this order, if applied for, be supplied to the parties on priority basis.
(Dr. Sambuddha Chakrabarti, J.)