Calcutta High Court (Appellete Side)
Mohan Subba vs Union Of India & Others on 14 July, 2015
Author: Samapti Chatterjee
Bench: Samapti Chatterjee
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present: The Hon'ble Justice Samapti Chatterjee
WP 8709 (W) of 2001
Mohan Subba
Vs
Union of India & Others.
For the Petitioner : Mr. K.B.S. Mahapatra, Learned Advocate
Mr. Abhishek Paul, Learned Advocate
For the KMC : Mr. Sushavan Sengupta, Learned Advocate
Mr. Subir Pal, Learned Advocate
Heard on : May 7, 2015
Judgment on : July 14, 2015.
Samapti Chatterjee, J.
1. The petitioner filed the present writ petition for quashing the departmental proceedings including the final order dated 11th February, 2000 issued by Commandant/ADM CISF Unit DSP, Durgapur.
2. It is submitted that when the petitioner was employed in Central Industrial Security Force (hereinafter referred as CISF) and posted at CISF Unit, Durgapur Steel Plaint he was issued with a memorandum of charges under Rule 34 of CISF Rules 1969 by the Commandant, CISF Unit, Durgapur Steel Plant on 25th October, 1999. The memorandum of charges are quoted below:-
"STATEMENT OF ARTICLE OF CHARGES FRAMED AGAINST NO.901310837 CONSTABLE MOHAN SUBBA OF CISF UNIT DAP DURGAPUR.
ARTICLE-I "That No.901310837 Constable Mohan Subba of CISF Unit, DSP Durgapur did not turn up for "C" shift duty on 28.02.99 as well as remained absent from Unit lines wef.28.02.99 to 05.03.99 without any prior permission form/intimation to the competent authority. This act on the part of No.901310837 Const. Mohan Subba tantamounts to gross misconduct, indiscipline and dereliction of duty, he being the member of a disciplined Armed Force i.e. CISF".
ARTICLE-II "That No.901310837 Constable Mohan Subba of CISF Unit, DSP Durgapur deserted the Unit lines on 10.03.99 and thereby remained absent from 10.03.99 to 13.03.99 unauthorisedly. This act on the part of No.901310837 Const. Mohan Subba tantamounts to gross misconduct, indiscipline and dereliction of duty, he being the member of a disciplined Armed Force i.e. CISF." ARTICLE-III "That No.901310837 Constable Mohan Subba of CISF Unit, DSP Durgapur deserted the Unit lines on 12.05.99 and remained absent wef.12.05.99 to 13.07.99 unauthorisedly. This action the part of No.901310837 Constable Mohan Subba tantamounts to gross misconduct, indiscipline, dereliction of duty and unbecoming of the member of a disciplined Armed Force i.e. CISF".
ARTICLE-IV "That No.901310837 Constable Mohan Subba of CISF Unit, DSP Durgapur is inculcating the incorrigible habit of committing offence and he has been awarded 05 minor penalties in the past on the various occasion during his short span of service in CISF. This act on the part of No.901310837 Const. Mohan Subba tantamounts to unbecoming of the member of a disciplined Armed Force i.e. CISF".
COMMANDANT (ADM) CISF UNIT DSP DURGAPUR"
Thereafter, Sri P.K. Ghosh Deputy Commandant was appointed as Enquiry Officer.
3. It is submitted that the Deputy Commandant conducted the enquiry whimsically and found that the allegations leveled against the petitioner has been proved. The said enquiry report was communicated to the petitioner on 21st December, 1999 by the Commandant. Thereafter the disciplinary authority by final order dated 11th February, 2000 imposed punishment upon the petitioner for removal from the service.
4. Thereafter being aggrieved the petitioner preferred appeal before the Deputy Inspector General, CISF, Durgapur Steel Plant being the appellate authority and the appellate authority vide the order dated July 22, 2000 also rejected the petitioner's appeal thus affirming final order passed by the disciplinary authority.
5. It is also submitted that Article I , the charges leveled against the petitioner on the ground that petitioner remained absent from shifting duty on 26th February, 1999 and from the Unit lines from 28th February, 1999 to 5th March, 1999. In the Article No.II of the said charges it was alleged that the petitioner remained absent from 10th March, 1999 to 13th March, 1999. In the Article-III of the charge-sheet it was alleged that the petitioner remained absent from 12th May, 1999 to 13th July, 1999.
6. Mr. K.B.S. Mahapatra, learned Advocate appearing for the petitioner strongly contended that the Enquiry Officer without any evidence from the authorised medical attendant arbitrarily in his enquiry report stated that the petitioner managed to obtaining medical certificate. Because of such remarks, the enquiry officer lost its impartiality and has acted as a prosecutor. Therefore, the enquiry report is vitiated as the enquiry officer failed to act impartially.
7. Mr. Mahapatra further contended that it is evident from record that at relevant point of time the petitioner was sick and due to his sickness he failed to attain his duties.
8. Mr. Mahapatra also vehemently contended that the date of marriage of the petitioner was fixed on 10th March, 1999 at Durgapur and for that purpose the petitioner prayed for leave. The authority with some ulterior motive rejected the petitioner's prayer for leave to perform his marriage ceremony. The petitioner even prayed before the commandant that even if he has been entrusted in the A and B shift duty he was willing to attend his duties and thereafter he would go for his marriage. But that was also turned down by the authority and the petitioner was entrusted in the night shift duty preventing him from performing his marriage ceremony fixed on that date. Therefore, Mr. Mahapatra urged that the petitioner had no option but to leave for attending his marriage ceremony. After completion of his marriage ceremony petitioner returned on 14th March, 1999.
9. Mr. Mahapatra also contended that it is evident from records that when on 11th May, 1999 the petitioner was on duty at watched tower he fell down from the tower and sustained fracture at his backbone. For that purpose he was advised by the Doctor to take rest and the said sickness was duly communicated to the competent authority.
10. Mr. Mahapatra further contended that the disciplinary authority had also taken the medical certificates and the X-Ray reports which were returned by the authority's letter dated 24th February, 2000.
11. Mr. Mahapatra further contended that enquiry officer capriciously opined that the medical certificates had been procured and while doing so the said enquiry Officer did not take any evidence from the Doctor who after due examinations of the injury of the petitioner had issued those medical certificates. Therefore, the observation made by the enquiry officer that the petitioner managed to obtain those certificates is very much illegal, arbitrary and also contrary to natural justice.
12. Mr. Mahapatra also strongly contended that the purported charge- sheet was issued to the petitioner in english and therefore the petitioner time to time prayed before the authority for a Hindi version of the said charge-sheet as he had no knowledge in english and was to know the contents of the purported charges but curiously enough the petitioner was denied by the disciplinary authority to supply the copy of the charge-sheet in Hindi.
13. Mr. Mahapatra also vehemently contended that the findings by the enquiry officer was conflicting and contradictory as he stated that "The Charged official also failed to justify his absence from 7th June,1999 to 13th July,1999 for which there was no medical documents. Even if the medical rest issued by the DSP Hospital authority from 12th May,1999 to 6th April,1999 is given due sanctity". But in his findings it was mentioned that the allegation regarding desertion from 12th May,1999 to 13th July,1999 stands fully proved.
14. Mr. Mahapatra heavily emphasized on the point that such inconsistency and contradiction in the findings is mala fide, baseless, whimsical, unfair, unjust and unwarranted. Therefore, the enquiry report stands vitiated.
15. Mr. Mahapatra also strongly urged that the Director General Central Industrial Security Force in the circulation No.3/2001 dated 9th February, 2001 issued guidelines that when in the final order the absence period is regularised by grant of leave of whatsoever kind, then the allegation of misconduct will not survive and punishment for such absence shall have to be set aside.
16. Mr. Mahapatra also strongly urged that Article IV of earlier charges was also added to the impugned charges which is bad in law as repeatation of the earlier charges in the subsequent charges is not accepted in law.
17. Mr. Mahapatra further contended that Sub Section 3 of Rule 18 of the CISF Act, 1968 was observed as bad law by an unreported decision of Hon'ble Justice Bhattacharya in Writ Peition No.11699 (W) of 2002 (Constable Haradhan Gorai, CISF, Salban Vs Union of India & Others) . Some extract of the said Judgment is quoted below :-
"After hearing the learned counsel for the parties and after going through the provisions contained in Central Industrial Security Force Act, 1968 and the rules framed thereunder, I find substance in the contention of Mr. Chakraborty that in view of specific provision contained in proviso to Section 18(3) of the said Act, there is no scope of reframing Charge-III on the basis of past misconduct for which the petitioner had already got punishment."
18. Mr. Mahapatra further contended due to absenting for some period from the duties extreme punishment of removal from service is too harsh, disproportionate, therefore, should not be imposed. In support of his contention Mr. Mahapatra relied on a Supreme Court decision reported in 2013 LAB.I.C. Page-3139 (Supreme Court) (Jai Bhagwan v. Commr. Of Police and Others) Paragraphs-9,1o and 11 which are quoted below :-
"Para-9-What is the appropriate quantum of punishment to be awarded to a delinquent is a matter that primarily rest in the discretion of the disciplinary authority. An authority sitting in appeal over any such order of punishment is by all means entitled to examine the issue regarding the quantum of punishment as much as it is entitled to examine whether the charges have been satisfactorily proved. But when any such order is challenged before a Service Tribunal or the High Court the exercise of discretion by the competent Authority in determining and awarding punishment is generally respected except where the same is found to be so outrageously disproportionate to the gravity of the misconduct that the Court considers it be arbitrary in that it is wholly unreasonable. The superior Courts and the Tribunal invoke the doctrine of proportionality which has been gradually accepted as one of the facets of judicial review. A punishment that is so excessive or disproportionate to the offence as to shock the conscience of the Court is seen as unacceptable even when Courts are slow and generally reluctant to interfere with the quantum of punishment. The law on the subject is well settled by a series of decisions rendered by this Court. We remain content with reference to only some of them.
Para-10-In Ranjit Thakur v. Union of India (1987) 4 SCC 611 : (AIR 1987 SC 2386), this Court held that the doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the Court-Martial, if the decision even as to the sentence is in defiance of logic, then the quantum of sentence would not be immune from correction. Irrationality and perversity, observed this Court, are recognized grounds of judicial review. The following passage is apposite in this regard :
"the doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the Court-Material, if the decision even as to sentence is an in defiance of logic, then the quantum of sentence would not be immune from correction. Irrationality and perversity are recognized grounds of judicial review".
Para-11-Similarly, in Dev Singh v. Punjab Tourism Development Corporation limited (2003) 8 SCC 9 : (AIR 2003 SC 3712 : 2003 AIR SCW 4222), this Court, following Ranjit Thakur's case (supra) held:
"...a court sitting in an appeal against a punishment imposed in the disciplinary proceedings will not normally substitute its own conclusion on penalty. However, if the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the court then the court would appropriately mould the relief either by directing the disciplinary/appropriate authority to reconsider the penalty imposed or to shorten the litigation it may make an exception in rare cases and impose appropriate punishment with cogent reasons in support thereof. It is also clear from the above noted judgments of this court, if the punishment imposed by the disciplinary authority is totally disproportionate to the misconduct proved against the delinquent officer, the court would interfere in such a case."
19. Therefore, Mr. Mahapatra concluded his argument by submitting that the disciplinary proceedings followed by the final order passed by the disciplinary authority and subsequently the decision of the appellate authority should be quashed by this Hon'ble High Court, as the same is shockingly disproportionate.
20. Per Contra, Mr. Tapas Kumar Chatterjee, learned Advocate appearing for the Union of India argued that the petitioner failed to give any reply against the Article of charges as a result of which the petitioner accepted the charges. Therefore, the punishment imposed by the authorities should not be interfered with by this Hon'ble High Court.
21. After considering the submissions advanced by the learned Advocates appearing for the respective parties and after perusing the records and after going through the provisions of the said CISF Act 1968 and the rules framed thereunder I find some substance in the contentions of Mr. Mahapatra that in view of specific provision contended in proviso in Section 18 (3) of the said Act there is no scope of framing charge IV on the basis of passed misconduct for which the petitioner had already got punishment.
22. I also find some merit in his contention that while imposing punishment the respondent authority ought to have been guided by the provisions contained in the Rule 34 of the said Rules 1968 and according to the Sub Rule 10 of Rule 34 the disciplinary authority while imposing punishment can only look into the charges framed against the employee and the findings recorded therein. Therefore, in view of my findings that there was no just reason for framing Charge-IV, the employer acted illegally in considering the findings recorded on the Charge No.IV while imposing punishment. The punishment imposed in this case was the complete outcome of the findings of Charges I,II, III, & IV. Thus, the ultimate punishment imposed upon the petitioner under Rule 31 ( C ) stands vitiated for taking into consideration the findings of Charge No.IV though admittedly the Charge No.IV was the earlier charges which was again added to the impugned charge-sheet.
23. It is settled principle that repeatation of earlier charge in the subsequent charge is bad in law. Therefore, the ultimate punishment imposed upon the petitioner under Rule 31 ( C ) is vitiated for taking into consideration findings on Charge No.IV and such act on the part of the respondent authority was in violation of Section 18 (3) proviso of the act.
24. I also cannot ignore the submissions made by Mr. Mahapatra that the Director General of the Force in circular No.3/2001 dated 9th February, 2001 has issued guidelines that when in the final order the absence is regularised by grant of leave of whatsoever kind then, the allegation of misconduct would not survive and the punishment for such absence is liable to be quashed.
25. I also find some force in the argument of Mr. Mahapatra that the findings of the enquiry officer is self conflicting and contradictory as the enquiry officer himself stated "the charged official failed to justify his absence from 7th June, 1999 to 13th July, 1999 for which there is no medical document, even if the medical test issued by DSP Hospital Authority from 12th May, 1999 to 6th June, 1999 is given due sanctity" whereas the enquiry officer stated in his findings that the allegation regarding desertion from 12th May, 1999 to 13th July, 1999 stands fully proved. As the inconsistency and contradiction in the findings of an enquiry officer is wholly illegal, unfair, unjust the same cannot be sustained in the eye of law.
26. Considering the Supreme Court decision reported in Jai Bhagwan case (supra) and also considering the unreported Judgment passed by Justice Bhattacharya I am of the opinion that impugned punishment cannot be sustained in the eye of law as admittedly the Charge No.IV which an earlier Charge was added in the impugned Charges which is clearly bad in law. Not only that considering the records I am of the view that impugned punishment of dismissal from service is also too harsh and shockingly disproportionate considering the Articles of charges leveled against the petitioner, therefore, should be quashed.
27. I, therefore, set aside the ultimate impugned punishment imposed upon the petitioner which has been affirmed by the appellate authority and direct the disciplinary authority to consider the question of punishment afresh on the basis of the findings recorded on Charges No.I, II and III. The respondent authority is directed to reconsider the question of punishment and would be at liberty to impose any lesser punishment than the dismissal from service on the basis of my findings recorded above.
28. Such decision would be taken within eight (8) weeks from the date of communication of this order.
29. The writ petition is allowed to the extent indicated above.
30. There will be no order as to costs.
31. Urgent photostat certified copy of this judgment, if applied for, be supplied to the parties after fulfilling all requisite formalities.
(Samapti Chatterjee, J).