Madhya Pradesh High Court
Rajendra Singh Parmar vs Union Of India on 25 April, 2024
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
ON THE 25 th OF APRIL, 2024
WRIT PETITION No. 21583 of 2019
BETWEEN:-
RAJENDRA SINGH PARMAR S/O SHRI DHUL SINGH
PARMAR, AGED ABOUT 41 YEARS, OCCUPATION:
SERVICE, PRESENTLY WORKING AS CONSTABLE CISF
(GD) POSTED AT GAIL, VIJAYPUR, DISTRICT GUNA
(MADHYA PRADESH)
.....PETITIONER
(BY SHRI MPS RAGHUVANSHI - SENIOR ADVOCATE WITH SHRI D.S.
RAGHUVANSHI - ADVOCATE)
AND
1. THE UNION OF INDIA THOUGH ITS SECRETARY,
DEPARTMENT OF HOME, GOVT. OF INDIA, NEW
DELHI
2. THE DEPUTY INSPECTOR, GENERAL OF CISF
(CENTRAL ZONE), HEAD OFFICE, BHILAI
(CHHATTISGARH)
3. THE SENIOR COMMANDANT (APPELLATE
AUTHORITY), CISF UNIT, BHEL, BHOPAL
(MADHYA PRADESH)
4. THE DEPUTY COMMANDANT, CISF UNIT, GAIL,
VIJAYPUR GUNA (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI PRAVEEN KUMAR NEWASKAR - DY. SGI)
This petition coming on for admission this day, th e court passed the
following:
ORDER
The present petition, under Article 226 of the Constitution of India, has 2 been filed by the petitioner being aggrieved by the order dated 12.04.2019 passed by Respondent No.2 whereby the order of imposition of minor penalty of withholding of one increment for a period of 01 year, which was challenged by the petitioner in Appeal, in which the petitioner was exonerated from the departmental enquiry vide order dated 22.03.2019 was set aside and directions for issuance of fresh charge-sheet to him were made. Further, challenge is made to the order dated 02.05.2019 (Annexure P/2), which is a fresh charge-sheet issued in pursuance to the order dated 12.04.2019 and also challenge is made to final order dated 14.11.2019 (Annexure P/8) whereby punishment of reduction of pay by one stage from Rs.34,200/- to Rs.33,300/- (in the level- 04 of pay matrix Rs.25,500/- to Rs.81,000/-) for a period of one year with immediate effect, with a further direction that he will not earn the increments of pay during the period of reduction and on expiry of such period, the reduction will have the effect of postponing the future increments of his pay, after issuance of second charge sheet was imposed.
2. Shri M.P.S. Raghuvanshi - learned Senior Counsel alongwith Shri D.S. Raghuvnashi - Advocate while assailing the impugned orders has argued that the very order order dated 12.04.2019 by which the earlier order passed in Appeal of exoneration of the petitioner from departmental enquiry was set aside and directions for issuance of fresh charge sheet were made, was per se illegal and was de-hors the provisions of Rule 54 of the Central Industrial Security Force Act, 2001 (for short ''Rules of 2001''), as no opportunity of hearing was granted to the petitioner and in his absence, directions were issued to the authority to issue a fresh charge sheet to him.
3. While referring to Rule 54 of the Rules of 2001, it has been contended that Proviso to Rule (1) of Rule 54 of the aforesaid Rules clearly spells that no 3 order imposing or enhancing any penalty shall be made by any revisioning authority unless the enrolled member of the Force concerned has been given a reasonable opportunity of making a representation against the penalty proposed and where it is proposed to impose any of the penalties specified in Clauses (i) to (v) of Rule 34 or to enhance the penalty imposed by the order sought to be revised to any of the penalties specified in those Clauses, and if any, inquiry under Rule 36 of the Rules of 2001 has not already been held in the case no such penalty shall be imposed except after an enquiry in the manner laid down in the aforesaid Rules.
4. It was further argued that since the revisional authority itself has directed the disciplinary authority to invoke the provisions of Rule 36 of the Rules of 2001 and to again issue a charge sheet, the requirement as provided under the provisions of Rule 54 was required to be adhered to and an opportunity of hearing was required to be granted to the petitioner, but since the said opportunity has not been granted to him, the order passed by the Revisional Authority (Annexure P/1) being de hors the principle of natural justice is bad in law.
5. In support of his arguments, reliance was placed on the judgment of the Hon'ble Supreme Court in the matter of Chairman-Cum-M.D., Coal India Ltd. & Others vs. Anant Saha & Others reported in (2011) 5 SCC 142 wherein it has been held that if initial action is not in consonance with law, subsequent proceedings would not sanctify the same. In such a fact situation, the legal maxim "sublato fundamento cadit opus" is applicable, meaning thereby, in case a foundation is removed, the superstructure falls.
6. On the basis of the aforesaid arguments as well as the judgment of the 4 Hon'ble Supreme Court in the matter of Chairman-Cum-M.D., Coal India Ltd. & Others vs. Anant Saha (supra), it was prayed that the present petition deserves to be allowed and the impugned order dated 12.04.2019 (Annexure P/1) deserves to be quashed and consequently, issuance of charge-sheet vide Annexure P/2 and a final order dated 14.11.2019 (Annexure P/8) in pursuance thereof are also required to be quashed.
7. Per contra, Shri Praveen Kumar Newaskar - Dy. SGI for the respondents while supporting the orders impugned herein has submitted that as per Rule 54 of the Rules of 2001, there is no requirement of providing any opportunity of hearing to the delinquent, if a contrary view is taken by the revisional authority to that of the below authority whereby the petitioner has been exonerated from the charges levelled against him.
8. It was further submitted that after issuance of the directions of the revisional authority vide order dated 12.04.2019, a fresh charge sheet has already been issued to the petitioner, the entire enquiry had been completed, the order of penalty Annexure P/8 has already been passed which is an appelable order. It was thus prayed that the present petition on the ground of availability of alternate remedy and being devoid of any substance deserves to be dismissed.
9. Heard counsel for the parties and perused the record.
10. Rule 54 of the Rules of 2001 which deals with the revisional powers in the Proviso to Sub-Rule (1) lays down that no order imposing or enhancing any penalty shall be made by any revisioning authority unless the enrolled member of the Force concerned has been given a reasonable opportunity of making a representation against the penalty proposed. For ready reference, Rule 54 of the Rules of 2001 is quoted hereinbelow:
554. [Revision.-(1) Any authority superior to the authority making the order may either on his own motion or otherwise call for the records of any inquiry and revise any order made under these rules, and may-
(a) confirm, modify or set aside the order; or
(b) confirm, reduce, enhance or set aside the penalty imposed by the order, or impose any penalty where no penalty has been imposed; or
(c) remit the case to the authority which made the order or to any other authority directing such authority to make such further enquiry as it may consider proper in the circumstances of the case; or
(d) pass such order as it may deem fit, within six months of the date of communication of the order proposed to be revised:
Provided that no order imposing or enhancing any penalty shall be made by any revisioning authority unless the enrolled member of the Force concerned has been given a reasonable opportunity of making a representation against the penalty proposed and where it is proposed to impose any of the penalties specified in clauses (i) to (v) of rule 34 or to enhance the penalty imposed by the order sought to be revised to any of the penalties specified in those clauses, and if any, inquiry under rule 36 of Central Industrial Security Force Rules, 2001 has not already been held in the case no such penalty shall be imposed except after an enquiry in the manner laid down in the aforesaid rules. (2) The provisions of rule 52 relating to appeals shall apply so far as may be to such orders in revision.
(3) Orders and instructions issued by the Central Government on this subject from time to time shall be applicable mutatis mutandis as applicable under Central Civil Services (Classification, Control and Appeal) Rules, 1965.]
11. Proviso to Sub-Rule (1) of the Rules of 2001 further lays down that where it is proposed to impose any of the penalties specified in clauses (i) to (v) of rule 34 or to enhance the penalty imposed by the order sought to be revised to any of the penalties specified in those clauses, and if any, inquiry under rule 36 of Central Industrial Security Force Rules, 2001 has not already been held in 6 the case no such penalty shall be imposed except after an enquiry in the manner laid down in the aforesaid rules.
12. After reading the aforesaid provision, it is clear that if a revisional authority proposes to impose any punishment as provided in Clauses (i) to (v) of the Rule 34 of the Rules of 2001, opportunity of hearing is required to be granted and an enquiry is also required to be conducted as provided under the Rules, but herein case, it appears from the record that neither any opportunity of hearing was granted to the petitioner nor the procedure as prescribed under Rule 34 of the Rules of 2001 had been adhered to.
13. Since the very order passed by the Reivisonal Authority Annexure P/1, dated 12.04.2019 is de hors the principal of natural justice, therefore, according to this Court it is not sustainable. Accordingly, the same is hereby set aside.
14. Further, as it has been laid down by the Hon'ble Supreme Court in the matter of Chairman-Cum-M.D., Coal India Ltd. & Others vs. Anant Saha (supra) that if the initial action is not in consonance with law then the directions for issuance of fresh charge sheet and the order of penalty passed thereupon cannot be said to be sanctified, therefore, issuance of fresh charge sheet and the order of penalty vide Annexures P/2 and P/8 respectively are also nor proper and therefore, they are also hereby set aside.
15. In case if the Revisional Authority finds that while exercising the suo motu revisional powers, it is still required to analyze the matter then the said exercise be done after giving an opportunity of hearing to the petitioner.
16. It is also observed that since prior to passing of the second punishment order, the petitioner was promoted to the post of Head Constable on 22.02.2019 vide Annexure P/7, dated 25.02.2019, but in lieu of punishment 7 order Annexure P/8, the petitioner was not allowed to work on the promotional post. In that regard, since the very order Anneuxre P/1 has been set aside by this Court which was the basis for passing of the order of punishment Annexure P/8 which has lost its sanctity, the respondents are directed to take work from the petitioner of his promotional post and pay all the emoluments which are appended to the said post.
17. With the aforesaid observations and directions, the present petition is allowed and disposed off finally.
(MILIND RAMESH PHADKE) JUDGE pwn* Digitally signed by PAWAN KUMAR PAWAN DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, ou=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, 2.5.4.20=b864d1ab4ace2215bfcf3ab301c34 KUMAR d631287f1b1cdd90b4a49f265f02d9d593f, postalCode=474001, st=Madhya Pradesh, serialNumber=61B9D129971D2EA4FD4455E D49EA436EA65E26164BEEED89153191C56E 98CE21, cn=PAWAN KUMAR Date: 2024.04.26 10:44:48 +05'30'