Jharkhand High Court
No. 7517759 Cook, Ayodhya Pandey vs Union Of India (Uoi) And Ors. on 13 April, 2004
Equivalent citations: 2004(2)BLJR1080, [2004(2)JCR405(JHR)], 2004 LAB. I. C. 2585, 2004 AIR - JHAR. H. C. R. 1871, (2004) 2 JLJR 333, (2004) 2 JCR 405 (JHA), 2004 BLJR 2 1080
Author: Tapen Sen
Bench: Tapen Sen
JUDGMENT Tapen Sen, J.
1. The petitioner, a cook under the Central Industrial Security Force is aggrieved by the following Orders :--
(a) order dated 17/18.9.1997 (Annexure 7) passed by the respondent No. 3 dismissing the petitioner from service,
(b) order dated 31.9.1998 (Annexure 8) passed by the respondent No. 2 rejecting the appeal of the petitioner, and
(c) order dated 16.10.2001 (Annexure 11) passed by the respondent No. 6 rejecting the revision filed by the petitioner.
The petitioner, in addition to the aforementioned prayers also prays for a direction upon the respondents for his salary and other admissible benefits.
2. From the facts pleaded, it is evident that on 1.10.1975 the petitioner was appointed as a cook in the C.I.S.F. and was assigned Code No. 7517759 whereafter he was posted under the C.I.S.F. at Ghanudih Colliery, Jhaira, Area No. IX under the Bharat Coking Coal Limited. On 12.7.1990, the petitioner was transferred to the Bokaro Steel City where he was posted in 'F' Company where he worked till 1992.
3. The petitioner has stated that while he was so posted at Bokaro Steel, City, he had filed a Writ Petition before the then Ranchi Bench of the Patna High Court which was numbered as CWJC No. 2260 of 1992(R) wherein he had made a prayer that the respondents should be directed to grant him an off day in each week as per policy decision as this was being granted to other similarly situated employees.
4. It is stated that upon having come to learn about this writ petition, the respondents Nos. 3 and 4 reacted and even during the pendency of the said Writ Application, passed an order transferring the petitioner from Bokaro to the Kuteshwar Lime Stone Mine, Bari Katni Mines in the State of Madhya Pradesh. Being aggrieved, the petitioner filed another writ application which was registered as CWJC No. 2993 of 1992 (R) before the said Ranchi Bench and by order dated 1.10.1992 (Annexure 1), a Division Bench passed an interim order staying the operation of the order transferring him to Madhya Pradesh.
5. It is further stated that notwithstanding the aforementioned order of interim stay, the petitioner was subjected to coercion and/or threats as a result whereof, he was compelled to join at the transferred place referred to above, namely at the Kuteshwar Lime Stone Mine, Bari Katni Mines in the State of Madhya Pradesh. In the meantime, his wife who was suffering from ailment, expired.
6. Thereafter the petitioner was served with a charge-sheet containing allegations of being absent from duty. He filed his reply and faced inquiry but nevertheless, according to the petitioner, the respondents inflicted the punishment of reduction of pay from Rs. 1050/- to Rs. 1030/- for one year and debarred him from receiving salary for seven months. All this, according to the petitioner, was done with a mala fide intention and without following the due process of law.
7. Subsequently, the petitioner was again transferred from Kuteshwar Lime Stone Mines, Madhya Pradesh to Jorhat in Assam by letter dated 18.5.1995 as contained in Annexure 2. On the next day, i.e, on 19.5.1995, the petitioner filed a representation before the respondent No. 3 (vide Annexure 3) wherein he prayed that he be given some money so that he could go and join at the transferred place, namely Jorhat in Assam. This document, i.e. Annexure 3 has however been vehemently, denied by the respondents in their counter affidavit wherein they have stated that Annexure 3 is a fabricated document and in fact this is not the representation which he had filed. On the contrary, these respondents have brought on record another representation of the same date and which has been marked as Annexure D to the counter affidavit submitting that it was a representation for loan from his General Provident Fund. The contents of his representation referred to by the respondents are different from the language of the petitioner's document brought on record vide Annexure 3.
8. Be that as it may, since it is not necessary to dwell on this aspect any further, it would be only relevant to go back to the pleadings of the petitioner. The petitioner has stated that on 20.5.1995 he was forcibly relieved and no money was given to him where after he again filed a representation to the higher authority but when he did not receive any positive response, he filed a writ petition in the High Court at Jabalpur which was registered as Writ Petition No. 3307 of 1995. That writ petition was disposed off on 3.7.1995 with a direction upon the respondents to pass final orders on the representation of the petitioner within two months.
9. The aforementioned direction of the Jabalpur Bench was not complied with which prompted the petitioner to file a Contempt Application which was registered as Contempt Petition No. 212/1995 and by an order dated 22.2.1996, the respondents were directed to pay three months salary to the petitioner out of his G.P.F. According to the petitioner the amount should have been Rs. 9,000/- but he was paid only Rs. 3,090/-. This, according to the petitioner, was again a violation of the order of the High Court.
10. The petitioner states at paragraph 18 that he then requested for a fresh movement order after he had received the aforesaid sum of Rs. 3,090/- but no such order was issued and therefore, he could not join on his transferred place. In the meantime, on 11.10.1995, the respondents served a charge-sheet under Rule 34 of the C.I.S.F. Rules, 1968 framing charges under the five different heads mainly alleging that the petitioner had not obeyed the order of transfer dated 18.5.1995 (Annexure 2):
11. According to the petitioner this charge-sheet was in English which he could not understand and therefore, on 19.4.1997 (Annexure 4) he filed a representation requesting that he should be given a Hindi version thereof. On 2.5.1997 (Annexure 5) he was informed that his representation was being forwarded to the Unit Officer. In the meantime, taking help of some of his colleagues, he sent a written explanation through registered post to the Company Commander-cum-Inquiry Officer B.S.I., Bokaro but according to the petitioner, the same was refused to be accepted and it was returned to the sender. The photocopy of the envelope has been marked as Annexures 6 and 6/1 to the writ application. Thereafter the petitioner received the final order dated 17/18.9.1997 (Annexure 7) passed by the respondent No. 3 dismissing the petitioner from service. This is the first impugned order.
12. The petitioner preferred an appeal, but that was also rejected by the second impugned order dated 31.1.1998 as contained in Annexure 8. Being aggrieved, the petitioner filed a writ petition before this Court which was registered as CWJC No. 1065 of 2001 and by order dated 21.3.2001 (Annexure 9) the said writ petition was dismissed as withdrawn giving liberty to the petitioner to file a presentation before the appropriate authority. Thereafter the petitioner filed a revision before the respondent No. 6 on 15.5.2001 vide Annexure 10 but that was also rejected by the third impugned order dated 16.10.2001 as contained in Annexure 11.
13. According to the learned counsel for the petitioner, the punishment is illegal inasmuch as it has been passed without giving any opportunity of hearing and it is not at all commensurate with the nature of the charges. According to him be has a brilliant service record and he had never disobeyed nor shown indiscipline and while passing the order of punishment the respondents did not take into consideration his past unblemished service. The learned counsel for the petitioner has further submitted that under Section 8 the respondents had the option of awarding other lesser punishment and they should not have straightaway dismissed him from service for an offence that did not warrant such dismissal.
14. A counter affidavit has been filed on behalf of the respondent Nos. 1 to 6 where it has inter alia been stated that the writ petitioner is not entitled to any relief from this Court.
15. Before proceeding to deal with the merits of the case one thing that appears to be very strange is that although the petitioner has given reference of CWJC No. 2993 of 1992(R) at paragraph 9 stating that by order dated 1.10.1992 (Annexure 1) his order of transfer to Madhya Pradesh was stayed by an interim order, he however has not stated anything in the Writ petition with regard to dismissal of that writ petition of 16.3.1993 and it is only when the respondents, in their counter affidavit at paragraph 24 brought this fact to the notice of this Court by stating that this writ petition was dismissed by a Division Bench vide Annexure 'B' to the said counter affidavit that the petitioner comes out with a reply stating that on account of the death of his wife he could not come and consult his counsel and the writ petition was dismissed on that day, i.e. 16.3.1993. Though this writ petition related to the petitioner's transfer for Madhya Pradesh, yet the petitioner should have in all fairness, disclosed the fact that this writ petition stood dismissed on 16.3.1993 and it was only thereafter that he was ordered to be transferred from Madhya Pradesh to Jorhat in Assam by order dated 18.5.1995.
16. Another peculiar feature of this case is that although the petitioner stood transferred by order dated 18.5.1995, he obstructed the implementation thereof for a very long period of time in fact, there is an oblique reference at paragraph 15 to W.P. No. 3307 of 1995 which the petitioner had filed at Jabalpur and in this paragraph he has stated that by order dated 3.7.1995 the respondents were directed to dispose off his representation within two months. The order of the Jabalpur High Court passed on 3.7,1995 has not been brought on record and no statement has been made as to whether the order of transfer passed on 18.5.1995 was stayed or quashed.
17. Five months after the order of transfer, charge-sheet was served upon him being charge-sheet dated 11.10.1995. The petitioner has straightaway stated at paragraphs 19 and 20 that after receiving the same, he could not understand the contents thereof as it was in English and therefore, on 19.4.1997 he filed a representation requesting for a Hindi version thereof. In other words, these two paragraphs suggest that after 11.10.1995, the petitioner acted for the first time on 19.4.1997. Thus, there is a gap of about 18 months from the date of receipt and the representation referred to above.
However, from the counter affidavit filed by the respondents it is evident that in fact, on 6.11.1995, the petitioner had already filed a reply to the charge-sheet. In reply to this statement, the petitioner, though baldly denying and disputing the same, has however stated, inter alia as follows :--
"It is humbly stated that if the petitioner has submitted his reply to the charge-sheet on 6.11.1995, but it was found unsatisfactory. But the answering respondents has not explain that on what ground the same was found unsatisfactory and it is more surprising that it was not considered anywhere and the respondents have no courage to show the explanation dated 6.11.1995."
[Quoted verbatim]
18. The aforementioned stand of the petitioner is to be found in paragraph 7 of his reply to the counter affidavit but it cannot be said to be a specific denial of the event that he had, in fact, filed a reply on 6.11.1995. Moreover a mere bald denial is not acceptable to this Court because even in the final order which has been passed on 17/18.9.1997 (Annexure 7), it has been specifically mentioned that the petitioner had filed his reply to the charge-sheet on 6.11.1995 and when it was not found satisfactory, Inquiry Officers were appointed. Thus the attempt on the part of the petitioner to say that he did not understand the contents of the charge-sheet is not acceptable to this Court. Moreover even assuming that he did not understand the English version, it was his bounden duty to have made a request for the Hindi version immediately thereafter but admittedly and as per his own version he waited for 18 months before he made that request. This apart, the grievance of the writ petitioner to the effect that S.K. Rao who had been appointed as an Inquiry Officer is the same person who was later on cited as PW cannot be said to have caused any prejudice because when it came to the notice of the respondents that S.K. Rao had been cited as a PW they therefore changed him and appointed B.P. Singh as Inquiry Officer whereafter there was again a reshuffle due to administrative reasons. All these things have been stated at paragraph 5 of the counter affidavit. It is an allegation of the petitioner that the Inquiry Officer conducted their inquiry in his absence but such a stand cannot be accepted taking into consideration the own conduct of the petitioner. In this context and at the risk of repetition, it is stated that charge-sheet dated 11.10.1995 was served and even assuming that the petitioner filed a representation for the Hindi version thereof on 19.4.1997 it is evident that he deliberately kept himself away for so many months. Let it be recorded that this Court, upon consideration of the pleadings made, is not prepared to accept the stand of the petitioner that he did not file any reply on 6.11.1995. On the contrary, it is evident from a perusal of the impugned order as also from the contents of paragraph 5 of the counter affidavit that the petitioner did in fact file reply on 6.11.1995.
18. It is also evident that the petitioner, on every available pretext, attempted to prevent implementation of the orders passed by superior authorities of an institution which is supposed to maintain the highest traditions of discipline. It is essential that in the Army, the Department of Police, Para Military and semi Armed Forces, discipline and obedience has to be maintained, even if it is at the risk of absolute inducement. An order of transfer cannot be allowed to be prevented from being implemented because once a person like the petitioner is appointed in such disciplined force, he is supposed to be aware that one of the main feature of his service is that he can be transferred wherever and whenever it becomes necessary. By attempting to forestall such a step of the respondents and prevent an order of transfer from being implemented is itself an attempt to forestall the implementation of such a feature of a service where discipline is the watchword. This cannot be viewed sympathetically and this Court, exercising the power of judicial review, is reluctant to interfere. For the same reason, this Court is also not inclined to take a view and hold that the punishment inflicted is not commensurate with the nature of the allegations made inasmuch as the punishment that has been inflicted does not in the facts and circumstances of this case, shock the conscience of this Court.
For the foregoing reasons therefore, this Court is of the opinion that this writ petition should not be allowed to succeed and it is therefore dismissed, but without any costs.