Patna High Court - Orders
Dharmendra Kumar Yadav vs The Union Of India & Ors on 4 August, 2014
Author: Sharan Singh
Bench: Sharan Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.16071 of 2008
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Dharmendra Kumar Yadav son of Late Bodham Yadav, resident of village-
Choti Mirzapur P.S. Kasim Bazaar, Distt. Munger.
.... .... Petitioner/s
Versus
1. The Union of India through the Director General, Central Industrial
Security Force, Headquarter, C.J.O. Complex, Lodi Road, New Delhi.
2. The Inspector General, Central Industrial Security Force, C.I.S.F. Office
Complex, E.S. HQRs., Boring Road, Patliputra, Patna.13.
3. The Deputy Inspector General, C.I.S.F., Eastern Zone, Group
Headquarter, Boring Road, Patliputra Colony, Patna.11.
4. The Group Commandant, Central Industrial Security Force, C.I.S.F.
Office Complex, Boring Road, Patliputra, Patna-13.
5. The Deputy Commandant, C.I.S.F. Unit, I.O.C., Barauni.
.... .... Respondent/s
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Appearance :
For the Petitioner/s : Mr. S.B.K. Mangalam
Mr. Ajit Kumar Singh
For the Respondent/s : Mr. N.A. Shamsi (Asst.Sg)
Mr. Kumar Priya Ranjan
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CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI
SHARAN SINGH
C.A.V. ORDER
5 04-08-2014Order dated 05.04.2006 passed by the Group Commandant Central Industrial Security Force, (C.I.S.F.) Group Headquarter, Patna whereby punishment of removal from service has been imposed upon the petitioner, is under challenge in the present writ application.
Petitioner‟s appeal against the said order dated 05.04.2006 passed by the Disciplinary Authority has been dismissed by the Deputy Inspector General, Central Industrial Security Force, Eastern Zone, Group Headquarter, Patna vide order dated 15.06.2006. His revision petition against these two orders also Patna High Court CWJC No.16071 of 2008 (4) P2/13 came to be dismissed by the Inspector General, Central Industrial Security Force vide his order dated 05.10.2006. These two orders dated 15.06.2006 and 05.10.2006 are also under challenge in the present writ application.
Petitioner was a constable in Central Industrial Security Force and at the relevant point of time he was posted at C.I.S.F. Unit, I.O.C., Barauni. A chargesheet was served upon him vide Memo dated 10.09.2005 containing allegations of gross misconduct, indiscipline and disobedience of lawful orders of superiors, unbecoming of a member of a disciplined force. There were altogether four charges levelled against him, which are being quoted hereinbelow:-
"ARTICLE OF CHARGE-I An act of gross misconduct, indiscipline and disobedience of lawful orders of the superior in that No. 932295994 Constable D.K. Yadav of C.I.S.F. Unit IOC Barauni refused to receive the Movement Order No. bZ&38014 @ dsvkSlqc @ vkbZvkslh @ iz"kklu@2005@574 fnukad 30-04-2005 alongwith its enclosure Appendix A issued by Dy. Commandant, CISF Unit IOC Barauni for proceeding on regular posting to CISF Unit BIOP Dep-5 from Inspector/Exe D.K. Mishra on 01.05.2005 at 1845 hrs. He also prevented L/Constable Muneshwari Devi from taking Movement Order dated 30.04.2005. This act on the part of the said No. 932295994 Constable D.K. Yadav amounts to gross misconduct, indiscipline and disobedience of Patna High Court CWJC No.16071 of 2008 (4) P3/13 lawful orders of the superior.
ARTICLE OF CHARGE-II An act prejudicial to good orders and discipline of an Armed Force of the Union in that No. 932295994 Constable D.K. Yadav of CISF Unit IOC Barauni did not report for duty at CISF Unit, BIOP Dep-5 and overstaying from joining time wef. 11.05.2005 to till date without any information or prior permission from the competent authority even ignoring the instructions issued to him vide call-up notice sent to him from time to time. Such act on the part of a member of a discipline Force amounts to gross misconduct and prejudicial to good orders and discipline of an Armed Force of the Union.
ARTICLE OF CHARGE-III
Further act of gross indiscipline,
misconduct and unbecoming of a member of a
Discipline Force on the part of No. 932295994
Constable D.K. Yadav of CISF Unit IOC Barauni in that he forcibly entered into the Quarter No. E- 68, CISF Site Colony on 13.05.2005 at 1430 hrs. and physically assaulted to Shri Kailash Singh, Father of L/Constable Muneshwari Devi, so brutally that the later was fell down on the ground/surface of the quarter unconsciously. This act on the part of the said No. 932295994 Constable D.K. Yadav amounts to gross misconduct and unbecoming of a member of a discipline Force."
ARTICLE OF CHARGE-IV Continued act of gross misconduct, indiscipline, disobedience of lawful orders of the superior and unbecoming of a member of Patna High Court CWJC No.16071 of 2008 (4) P4/13 discipline Force on the part of No. 932295994 Constable D.K. Yadav of C.I.S.F. Unit, IOC Barauni in that he failed to improve upon his conduct despite being punished with 6 minor punishments for various delinquencies in the past and repeatedly involved in indiscipline activities thus proving himself to be incorrigible. Hence, his past conduct shall be taken into account while deciding the quantum of punishment in the current proceedings."
The petitioner submitted his written statement of defence in reply, denying the charges. A departmental proceeding accordingly was initiated under the provisions of Rule 36 (5)
(a)/(b) of the Central Industrial Security Force Rules, 2001. An Enquiry Officer as well a Presenting Officer were appointed for the purpose of the departmental enquiry. In course of the departmental enquiry, prosecution witnesses were examined. There is no grievance that the petitioner was not given an opportunity to cross-examine the prosecution witness in course of enquiry or any plea that he was not given opportunity to lead his evidence. The Enquiry Officer found the charges to be proved on analysis of the material on record of the disciplinary proceeding. A copy of the enquiry report was supplied to the petitioner asking him to submit his representation, if any, against the enquiry report. He submitted his written statement against the enquiry report. The Patna High Court CWJC No.16071 of 2008 (4) P5/13 Disciplinary Authority upon consideration of the report of the Enquiry Officer, the petitioner‟s representation against findings of the Enquiry Officer as well as evidence available on record of the disciplinary proceeding, recorded his agreement with the findings of the Enquiry Officer and held the petitioner guilty of all the charges framed against him. Considering nature of charge against the petitioner, the Disciplinary Authority imposed upon the petitioner punishment of removal from service by the impugned order dated 05.04.2006. The petitioner preferred appeal before the Appellate Authority i.e. the Deputy Inspector General of Police, C.I.S.F., Eastern Zone, Group Headquarter, Patna. The Appellate Authority upon consideration of the petitioner‟s memo of appeal and other material on record of the departmental proceeding, rejected the appeal holding that there was nothing wrong with the departmental proceeding and the Appellate Authority had properly appreciated apprehended the evidence and awarded punishment which was proportionate to the alleged and proved misconduct. The Revisional Authority i.e. Inspector General, C.I.S.F., Patna dismissed the revision petition holding specifically that the petitioner deserved stringent punishment to maintain discipline in the Force and observed that punishment imposed upon the petitioner was commensurate with the gravity of the offence. On Patna High Court CWJC No.16071 of 2008 (4) P6/13 the analysis of the evidence on record, it was held by the Revisional Authority that the petitioner made every possible effort to cover up his fault and to avoid his movement on transfer. This is the background in which the present writ application has been filed.
A counter affidavit has been filed on behalf of the Respondents justifying the impugned orders. Before I deal with the submissions made on behalf of the petitioner, I must record that there is no assertion in the writ application alleging any procedural lapse in course of the departmental proceeding. There is no allegation of violation of principles of natural justice during the departmental proceeding. It is settled principle of judicial review of administrative action in a writ jurisdiction that the superior courts scrutinize the decision making process and not the correctness of the decision itself unless such decision is found to be perverse based on no materials or irrelevant materials or extraneous considerations. The charges as framed against the petitioner certainly constitute grave misconduct for a member of disciplined force like Central Industrial Security Force. It has been stated in the writ application that the authorities were biased against the petitioner for his intimate relationship with the Lady Constable Muneshwari Devi. It has also been asserted in the writ Patna High Court CWJC No.16071 of 2008 (4) P7/13 application that the Respondents did not consider the medical certificates issued by the Doctors / Government Medical Officers of I.O.C. It has further been asserted that the authorities did not consider the deposition of defence witness, Lady Constable Muneshwari Devi.
In paragraph No. 27 of the writ application, it has been stated that removal from service is "slightly excessive and harsh and not commensurate with the charges." There is a vague statement that detailed procedure for major penalty proceeding was not followed and it has been asserted that only Senior Commandant could pass the order for removal of service and not the Group Commandant. However, no provision has been put forth on behalf of the petitioner as to how the Group Commandant was not the Disciplinary Authority. The Respondents in the their counter affidavits dealing with the said statement made in the writ application have stated that Commandant is the Appointing Authority of Constables in Central Industrial Security Force and the Commandant who is posted in C.I.S.F., Group Headquarters is called the to Group Commandant. Accordingly, it has been stated in the counter affidavit that Group Commandant was well within his jurisdiction to act as a Disciplinary Authority. This statement has not been controverted by the petitioner in his reply to the Patna High Court CWJC No.16071 of 2008 (4) P8/13 counter affidavit.
From the charges levelled against the petitioner as have been quoted above, it would appear that the first charge against the petitioner was that he refused to receive the Movement Order dated 01.05.2005 and he prevented Lady Constable Muneshwari Devi also from receiving the Movement Order of the same date. From the impugned order passed by the Disciplinary Authority, it appears that on the date of issuance of the said order, the petitioner got himself hospitalized. The C.I.S.F. personnel attempted to serve upon the petitioner a copy of the Movement Order in the hospital but he refused to receive it on the pretext of his sickness and hospitalization. Movement Order with respect to Lady Constable Muneshwari Devi was also attempted to be served upon her in the hospital as she was discharged from the hospital but the petitioner prevented her also from receiving the Movement Order. It also appears from the said order dated 01.05.2005, the C.I.S.F. personnel again went to the hospital to deliver him the impugned order but by that time he was discharged. The petitioner was hospitalized only for one day at I.O.C. Hospital, Barauni. On 01.05.2005, he alongwith Lady Constable Muneshwari Devi came to office for receiving payment for the month of April, 2005. Both of them were asked to acknowledge the Movement Order but they Patna High Court CWJC No.16071 of 2008 (4) P9/13 refused. Finally, the Movement Order was pasted at their official residence.
The prosecution witnesses in course of the proceeding supported the allegation as would appear from the order of the Disciplinary Authority. As regards Charge No. 2, it has been alleged that by virtue of Movement Order dated 30.04.2005, the petitioner was required to report his place of posting by 11.05.2005. He did not join. He was sent continuous reminders to his address but he absented himself without any authority. There is a charge related to the petitioner entering into the official residence of a Lady Constable Muneshwari Devi. As per the allegation, father of Lady Constable Muneshwari Devi had objections to petitioner‟s visit to residence of Muneshwari Devi upon which the petitioner manhandled him and pushed him on the ground. Father of Muneshwari Devi was examined in course of disciplinary proceeding as P.W.-10 who supported the charge.
The plea on behalf of the petitioner is that Lady Constable Muneshwari Devi did not support the charge and she did not have any objection to the petitioner visiting her residence. As has been quoted herein above, the petitioner himself has stated in this writ application that the petitioner has intimate relationship with Lady Constable Muneshwari Devi.
Patna High Court CWJC No.16071 of 2008 (4)
P10/13 It has been contended on behalf of the petitioner that statement of defence witness Muneshwari Devi was not considered by the Disciplinary Authority. This contention is not tenable. The Disciplinary Authority has considered the statement of Lady Constable Muneshwari Devi and has discarded her statement in the facts and circumstances of the case, as she was found to be a co-acted partner of the petitioner. The Disciplinary Authority taking into account the previous record of the petitioner, after having found him guilty of the charges levelled against him, imposed punishment of removal from service.
Mr. S.B.K. Mangalam, learned counsel appearing on behalf of the petitioner has vehemently contended that it was improper on behalf of the Respondents to have attempted to serve the movement order when the petitioner was hospitalized. He has referred to the medical prescription dated 01.05.2005 of Dr. Ram Naresh Singh whereby he was advised absolute bedrest for two weeks. It has been stated in paragraph No. 7 of the writ application that in his reply to the articles of charge, he had taken the plea that he was not physically fit to move long distance since he was suffering from acute backache, spinal problem and was advised complete bedrest by the Doctor and subsequently he was admitted to I.O.C. Hospital for his medical treatment. In respect of this Patna High Court CWJC No.16071 of 2008 (4) P11/13 treatment, the petitioner has brought on record a medical prescription dated 01.05.2005, pathological test report dated 01.05.2005 and another medical prescription dated 15.05.2005 which has been brought as Annexure-2 to the writ application, does not at all indicate that the petitioner had any complaint of acute backache or spinal problem. He is said to have complained of abdominal pain and vomiting etc. His statement that subsequently he was admitted in I.O.C. Hospital for his medical treatment appears to be incorrect on the face of it since the petitioner was hospitalized prior to 01.05.2005 i.e. on 30.05.2005 when the C.I.S.F. personnel attempted to serve upon him the Movement Order. Another medical prescription dated 15.05. does not bear the year. By way of supplementary affidavit, the petitioner has brought on record in medical prescription dated 06.06.2005, which was not brought on record alongwith the writ application. In Annexure-8 to the supplementary affidavit which is dated 06.06.2005, it has been mentioned that petitioner had complained pain in lowback and chest and accordingly he was advised bedrest. This document was admittedly not produced by him in course of departmental enquiry.
The statement made in paragraph No. 7 of the writ application read with Annexure-2 at page 31 is apparently false. Patna High Court CWJC No.16071 of 2008 (4)
P12/13 The conduct of the petitioner even in course of the present writ proceeding is reprehensible as he had attempted to mislead this Court by making contradictory statement particularly in paragraph No. 7 of the writ application. There is no averment in the writ application that petitioner was suffering from Jaundice. In paragraph No. 4 of the supplementary affidavit filed by the petitioner, it has been stated that the petitioner‟s leg was fractured and he was being treated for that through traction when alleged Movement Order was allegedly been served upon him in orthopedic hospital itself. This statement is controverted by his own document i.e. prescription dated 01.05.2005 by Dr. Ram Naresh Singh and the source that on 01.05.2005 the petitioner was not hospitalized.
Be that as it may, as no procedural lapse in course of disciplinary proceeding has been pointed out by learned counsel for the petitioner, the order of the Disciplinary Authority needs no interference. Findings of the Disciplinary Authority cannot be said to be perverse. He has considered the evidence on record and after appraisal of such evidence he has recorded his findings of petitioner‟s guilt. This Court would not normally reappraise evidence in a proceeding under Article 226 of the Constitution of India. It has been stated in the writ application that the Patna High Court CWJC No.16071 of 2008 (4) P13/13 punishment is „slightly excessive and harsh, and not commensurate with the charges‟. The Disciplinary Authority is the best judge to asses as to what would be a fit punishment for a proved misconduct. This Court cannot substitute its own opinion in place of opinion of the Disciplinary Authority in matter of imposing punishment. According to me, the charges framed against the petitioner constitute grave misconduct and punishment cannot be said to be shockingly disproportionate to the proved misconduct.
I have perused the orders passed by the Appellate Authority as well as the Revisional Authority, I find that they have applied their mind before rejecting the petitioner‟s appeal and revision, the orders are well reasoned and speaking and, therefore, do not require interference by this Court.
This application is accordingly dismissed.
(Chakradhari Sharan Singh, J.) Saif/-