Calcutta High Court (Appellete Side)
C.D. Gurung vs Union Of India &Ors on 17 May, 2016
Author: Shivakant Prasad
Bench: Shivakant Prasad
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present :
The Hon'ble Justice Shivakant Prasad
W.P. 7288 (W) of 2002
With
W.P. 11869 (W) of 2003
C.D. Gurung
-Vs.--
Union of India &Ors.
For the Petitioner : Mr. A. Pal (in WP 11869 (W) of 2003)
For the Respondents : Mr. U. Roy (in WP 7288(W) of 2002)
Heard On : 01.03.2016
C.A.V. On : 01.03.2016
Judgment On : 17.05.2016
SHIVAKANT PRASAD, J.
The brief facts in W.P. 7288(W) of 2002 is that the petitioner was employed in the Central Industrial Security Force (CISF) and posted at Central Industrial Security Force Unit, Indian Oil Corporation, Haldia at the relevant time maintaining very good record of service, but in the said CISF Unit, Indian Oil Corporation, Haldia due to extraneous reason, tendentiously some of the officers started damaging him.
Assistant Commandant issued him a Memorandum of Charge dated 06th November, 2000 alleging that he has not paid repairing charges of umbrella to umbrella maker. After he was promoted to the rank of Deputy Commandant, he remained posted in the same unit and issued another Memorandum of charge against the petitioner, dated 29th September, 2000.
The said Deputy Commandant, inspite of denial of the allegations by the petitioner imposed a penalty of pay fine equivalent to two days pay. He was issued with another Memorandum of charge dated 1st December, 2000 by the Deputy Commandant under Rule 35 of Central Industrial Security Force Rules, 1969, wherein it was alleged that the petitioner was found sleeping at the Bungalow of the said Deputy Commandant.
The petitioner submitted that at the relevant point of time he had gone to attend call of nature and that the checking officer took away his materials. An enquiry was conducted behind his back and during such enquiry statement of the petitioner was recorded and the penalty of pay fine equivalent to two days pay was awarded by his final order dated 16th December, 2000.
The said Assistant Commandant by his purported Memorandum of charges dated 7th February, 2001 alleged that the petitioner while on duty at Main Gate did not allow one Foreign National with computer related materials inside the Refinery premises and the said Assistant Commandant by his final order dated 20th February, 2001 awarded a penalty of withholding of one increment.
Being aggrieved by and dissatisfied with the appellate orders, the petitioner has preferred this application inter alia on the grounds that the penalties were imposed arbitrarily without conducting an enquiry behind the back of the petitioner by considering the records particulars of such records were never disclosed to the petitioner as no evidence has been adduced to verify the allegations and for that the appellate authority while deciding the Appeal relied upon the comments offered by the Disciplinary Authority.
Accordingly the petitioner has prayed for Mandamus commanding the respondents to set aside and/or quash the departmental proceeding and the Final orders passed therein.
The brief fact in W.P. 11869(W) of 2003 is that Inspector R.K. Dwidevi posted in the unit of CISF, Haldia and Shri S.P. Yadav, Deputy Commandant were harassing the petitioner and threatened him with dire consequences, only for the reason that the petitioner was directed to work as batman in the residence of the Deputy Commandant Shri S. P. Yadav, but he being a Government employee had denied to do such work as it was not within his duties. Being annoyed at this in the past he issued many charge-sheets and awarded unnecessary penalties.
On 4th June, 2001 he visited hospital as he was indisposed of and the doctor after due examination advised him rest for recovery apart from prescribing medicines. He informed the Duty Officer Shri Tarafdar, Sub-Inspector over phone that as he has since been advised rest the same may be recorded in the General Diary and after three days, when the petitioner again visited the said hospital the doctor again examined him and advised him rest for three days. Again the petitioner informed the matter to the Control Room but to his utter surprise, he was informed by the Duty Officer that he was marked absent for the past three days and that there is no entry in the General Diary regarding his indisposition.
Thereafter, he left for the office of the Deputy Commandant, on the way he met Shri R. K. Devedi, Inspector and asked him as to why he has been marked absent when he had duly informed about his indisposition. On being so asked the said Inspector R. K. Devedi lost his temper and assaulted the petitioner and kicked him and as a result the petitioner who was already sick, sustained injuries. Thereafter, he went to the hospital got necessary treatment and lodged a complaint before the police station.
Learned Additional Chief Judicial Magistrate directed the police to Investigate into the matter, but the Assistant Commandant influenced the police and police gave a report against the petitioner. Accordingly the case was dismissed.
It is contended that during the pendency of the said revision petition the concerned respondents hastily conducted the enquiry and during the said purported enquiry the principles of natural justice was violated and denied minimum opportunity to defend himself as the enquiry officer denied to issue notice to the defence witnesses in accordance with the Act to enforce attendance of the witnesses. The matter in which the enquiry was conducted would reveal that the sole intention of the enquiry officer was to any how prove the charges. However, on completion of the examination of the prosecution witnesses, the petitioner submitted his defence statement.
The respondents have acted malafide by initiating proceedings only against the petitioner though they have not initiated any proceedings against the said Inspector inspite of the fact that the petitioner had to be treated at the hospital for the injuries sustained and a police complaint had also been lodged.
Thus, being aggrieved by the final order of removal from service vide appellate order and the impugned revisional order, the petitioner prayed for writ in the nature of mandamus inter-alia on the grounds that the respondents failed to appreciate that Shri R. K. Dwivedi, Inspector is habitual in assaulting the constabularies and then making false complaints by fabricating documents. It is contended that on earlier occasion Shri R. K. Dwivedi, Inspector assaulted constable Pradeep Kumar and then made false complaints and manufactured documents, and managed to influence Senior Officers, as a result said Pradeep Kumar was also removed from service.
It is also contended that the allegations contained in Article of Charge II are repetition of earlier punishment which the petitioner has already questioned before this Hon'ble Court. Specific Provisions has been made in CISF Act, prescribing the acts of commission and/or omission for which penalty can be inflicted but in the said CISF Act there is no provision of including past penalties and that the past penalties which have since been challenged in two separate writ petition which are subjudice. Therefore, the said subjudice matters could not be included as a separate allegations. The disciplinary authority, appellate authority as well as the revisional authority acted mechanically and without any application of mind as the representation against the purported findings, in the appeal petition and revision petition were not considered and discussed.
Mr. A. Pal, learned Counsel for the petitioner submitted that five numbers of defence documents produced before authorities were not considered.
It is submitted that the respondents have acted malafide by initiating proceedings against the petitioner though they have not initiated any proceeding against the said Inspector inspite of the fact that the petitioner had to be treated at the hospital for the injuries sustained and a police complaint had also been lodged.
Accordingly, the petitioner has prayed for issuance of writ in the nature of mandamus commanding the respondents to set aside and/or quash the purported departmental proceedings, final order of his removal from his service on two grounds, firstly, that the petitioner was not given opportunity of being heard by the authorities resulting in violation of principles of natural justice. Secondly, that the full-fledged enquiry was not conducted adhering to the procedure of Rule.
Mr. Pal submitted that the petitioner was indisposed and he was advised rest by the authorized Medical Officer. As per the practice in vogue the petitioner communicated to the Officer-in- Charge, CISF Control Room about his sickness and rest advice and requested the Officer-in-charge to make necessary entry in the General Diary. It is further submitted that the communication of the sickness of the writ petitioner was recorded in the duty deployment chart against item no. II which was deleted under the order of Inspector R.K. Dwivedi.
This contention of the petitioner was duly considered by the enquiry officer. It reflects from the report that as there was practice in the unit that on reporting sick, either the person has to personally come or send the medical book for getting the G.D. entry. Constable C.D. Gurang had neither personally come nor had sent his medical book so the G.D. entry for his sickness was not done because of him. The contention of the writ petitioner that on 06.6.2001 he had drawn attention of the Inspector against such sick report for which he was severally beaten by said Sri R. K. Dwivedi, Inspector on 06.6.2001 for which he visited the IOC Hospital, Haldia before the Medical Authority and lodgement of a complaint before the Police Authority are mere allegations.
The allegation that the writ petitioner requested for certain documents out of which vital documents like P.E. report; previous statements of witness had not been supplied with by the authority cannot be accepted in view of the fact that the documents asked for vide para 2(i) to (iii) and (iv) to (v) were not listed documents as per the charge memorandum dated 30th of June 2001 nor relevant to the charge hence were not supplied. It is depicted from the letter dated 4th of August 2001 of Group Commandant CISF that all the relevant documents for the purpose of proof of charge were supplied to the writ petitioner. It would appear from an Annexure- 'P7' that on 09.4.2002 the writ petitioner submitted his defence statement by taking all opportunity of defence before the Enquiry Officer.
Mr. Pal argued that the writ petitioner was appointed as Constable in the year 1993 and rendered his loyal service for safety and security of the establishment in accordance with the law as enumerated in Section 10 of the CISF Act & Rules 2001 wherever he was posted. After posting in the CISF Unit, IOC Haldia some officers started to damage his service records for extraneous reasons for not complying their unlawful orders especially the domestic work.
The writ petitioner was imposed number of minor penalties during the tenure of service in the IOC, Haldia Unit, four of which imposed within a span of five months are also under challenge in the present writ petition and that all the charges are on unfounded fact not sustainable in accordance with law for want of evidence and that those are fabricated and concocted without any material fact. Such contention of Mr. A. Pal has been objected by Mr. U. Roy, learned Counsel for the respondents on submission that the writ court cannot sit as appellate authority to examine the fact or for appreciation of evidence. True, I do agree with the contention of the learned counsel for the respondents because antecedents show a chequered career of the petitioner in the disciplined force which can be reflected from the tabular statements given hereunder. PAST PUNISHMENT PARTICULARS OF CISF NO. 931400262 EX-CONST. C. D. GURUNG FORMERLY OF CISF UNIT IOC, HALDIA.
Sl. Nature of Punishment, awarded by & final Remarks
No. delinquency order No. with date.
PETTY PUNISHMENT
1. Found slackness 3 days Extra duty for 4 hrs. daily
on duty at Watch by Dy. Comdt., CISF Unit IOC
Tower No. 2 at Guwahati vide USO Pt. II No.
1650 hrs. on 227/1998 dated 29.12.1998.
13.09.1998. Warned by Dy. Comdt., CISF Unit
IOC, Guwahati vide USO Pt. II No.
227/1998 dated 29.12.1998.
2. Found absent from 2 days Extra Drill (4 hrs. extra
duty post on duty) by Dy. Comdt., CISF Unit
27.11.1998. IOC Guwahati vide USO Pt. II No.
163/1999 dated 09.07.1999.
3. Fond not having
proper hair cut
during parade on
11.06.1999.
MINOR PUNISHMENT
4. Absent from 01 day pay fine by Asstt. Comdt.,
Director General's CISF Unit IOC, Guwahati vide F/O
Sainik Sammelan No. V-15015(CDG)/99- Disc/960
held on dated 01.03.1999
28.01.1999
5. Absent from 01 day pay fine by Asstt. Comdt., Appeal 'REJECTED' by
Musketry Parade CISF Unit IOC Haldia vide F/O No. Dy. Comdt., CISF Unit
as well as Central V-15014/CISF/ IOC(H)/Disc/960 IOC Haldia vide order
Roll Call held in dated 01.03.1999. No. V-15019/ Appl/
the Parade Ground CISF/IOC(H)/2000/310
& Unit line 0 dated 03.6.2000.
respectively on
17.02.2000.
6. On relieving after 07 days pay fine by Asstt. Comdt., Appeal 'REJECTED' by
completion of CISF Unit IOC Haldia vide F/O No. DC, CISF Unit IOC
Refresher Course V-15014/CISF/IOC(H)/Disc-35/ Haldia Vide order No. V-
from CISF Unit CDG/2000/ 2347 dated 27.04.2k. 15019/Appl/ CISF/
HDC Haldia on IOC(H)/2000/3101
30.3.2k at 1235 dated 03.6.2000.
hrs, he did not
report back to Unit
Control Room 7
went to his
residence at his
own. Also absented
himself from
Game/PE Test on
the same day.
When he was cited
in Orderly Room to
explain the reason
for absenting from
such regimental
duties, he
represented
himself in rude
manner.
7. Reported 15 05 days pay fine by Asstt. Comdt., On Appeal, punishment
minutes late in CISF Unit IOC Haldia vide F/O No. was reduced to '02 days
evening Musketry V-15014/CISF/IOC (H)/Disc-35/ pay fine' by DC, CISF
Parade held on CDG/2000/3148 dated 05.06.2k. Unit IOC Haldia vide
17.02.2k & seeking order No. V-15019/
the reason for late Appl/CISF/IOC(H)/2000
arrival, he /4399 dated 02.8.2000.
misbehaved with
Insp/Exe A.S.
Kandiyan &
threatened him.
8. After completion of 02 days pay fine by Dy. Comdt., Appeal 'REJECTED' by
'C' shift duty at CISF Unit IOC Haldia vide F/O No. Group Commandant,
Adm. Building on V-15014/CISF/IOC(H)/Disc-35/ CISF Gp. HQrs., Kolkata
24.8.2000, he left CDG/2000/7111 dated 31.10.2k. vide order No. V-
the duty post 11014/10/ Adm. II /
without proper GHC/2001/2750 dated
handing/ taking 22.5.2001.
over to his reliever
i.e. 'A' shift duty
personal & gave
OK report to I/C
Control Room
whereas his
reliever reported
about broken of
glass of Main Gate
Adm Building.
9. Got repaired his 04 days pay fine by Dy. Comdt., On Appeal, punishment
umbrella but did CISF Unit IOC Halida vide F/O No. was reduced to 'Censure'
not pay the V-15014/CISF/IOC(H)/Disc-35/ by Group Commandant,
repairing charges CDG/2000/7659 dtd. 01.12.2k. CISF Gp. HQrs., Kolkata
to the umbrella vide order No. V-
maker and 11014/14/ Adm. II/
misbehaved with GHC/2001/2806 dated
him as well as local 24.05.2001.
people/member of
the Patikhali Party
Office resultantly
they made a
written complaint
against Ct. C.D.
Gurung on
03.10.2000.
10. Found sleeping at 02 days pay fine by Dy. Comdt., Appeal 'REJECTED' by
duty post during CISF Unit IOC Haldia vide F/O No. Group Commandant,
'C' shift duty in the V-15014/CISF/IOC(H)/Dsc-35/ CISF Gp. HQrs., Kolkata
night of 14/ CDG/2000/ 7916 dated 16.12.2k. vide order No. V-
15.11.2000 at DC 11014/13/Adm. II/
Bunglow when GHC/2001/2814 dated
checking officer 25.05.2001.
SI/Exe R.K. Dwiwedi.
11. While performing Withholding of one increment Appeal 'REJECTED' by
'A' shift duty, he for a period of one year without DC, CISF Unit IOC
was directed by cumulative effect by Asstt. Haldia vide order No. V-
SI/Exe Deep Comdt., CISF Unit IOC Haldia vide 15019/Appeal/
Chand, I/C Control F./O No. V- CISF/IOC(H)/2001/151
Room to allow one 15014/CISF/IOC(H)/Disc- 35/ 2 dated 27.3.2001.
foreigner with CDG/2001/903 dtd 20.02.2001
Computer
materials inside
the Refinery
Premises after
getting permission
from the Superior.
But he made
argument &
misbehaved with
said SI/Exe.
It is also submitted by Mr. Pal that in the instant case no witness has been examined to prove the charges as apparently shown in each of the four final orders of the disciplinary authority or in the appellate order. On the sole reason the writ court has every power to interfere how decision is drawn to prove the guilt of the petitioner. No doubt, it is settled principle of law laid by the Hon'ble Apex Court that the Court will lift the veil to view the reality or substance of the order. It is true that the Court in appeal as a rule of practice, is loath to interfere with finding of fact recorded by the trial Court but if such a finding is based on no evidence or is result of a misreading of material evidence or is so unreasonable or grossly unjust that no reasonable person would judicially arrive at that conclusion, it is the duty of the court to interfere and set matters right (1975) 1 SCC 574 Para 23. It was further held by the Hon'ble Apex Court that True the jurisdiction exercised by the Hon'ble High Court under Article 226 or the Tribunal is not as wide as it is in appeal or revision but once the Court is satisfied of injustice or arbitrariness then the restriction, self imposed or statutory, stands removed and no rule or technicality on exercise of power, can stand in way of rendering justice. The Division Bench of Himachal Pradesh High Court keeping in view of settled law of Apex Court held that Court cannot be mute spectator to miscarriage of justice or denial of fundamental right.
In my considered opinion cited decision is distinguishable from the facts and circumstances of the case. As held in U.O.I. versus the Gyan Chand Chattar reported in (2009) 12 Supreme Court cases 78 that an enquiry is to be conducted against any person in a strict adherence to the statutory provisions and the principles of natural justice. That charges should be specific, definite and setting out the details of the incident which formed the basis of the charges. No enquiry can be sustained on vague charges. Enquiry has to be conducted fairly, objectively and not subjectively. Findings should not be perverse or unreasonable, nor the same should be based on conjectures and surmises. The authority must record reasons for a arriving at the finding of fact in the context of the statute defining the misconduct. It is true that even if the delinquent does not take the defence raised any protest saying that the charges are vague, that does not absolve the enquiring authority from being vitiated for the reason that there must be fair play in action, particularly, in respect of an order involving adverse or penal consequences.
Mr Paul has alleged that the petitioner was not given opportunity of defence and of being heard and secondly that the enquiries conducted by the enquiring authority was not in adherence to the statutory provision. The rules provide for procedure in relation to disciplinary proceedings depending upon the nature of the penalty proposed to be made taken that is to say, whether a major penalty a minor penalty.
Section 11 of CCS (CCA) Rules 1965 provides the following penalties may, for good and sufficient reasons and as hereinafter provided, be imposed on a Government servant, namely:-
"Minor Penalties -
(i) censure;
(ii) withholding of his promotion;
(iii) recovery from his pay of the whole or part of any pecuniary loss caused by him to the Government by negligence or breach of orders;
(iiia) reduction to a lower stage in the time-scale of pay by one stage for a period not exceeding three years, without cumulative effect and not adversely affecting his pension.
(iv) withholding of increments of pay;
Major Penalties -
(v) save as provided for in clause (iii) (a), reduction to a lower stage in the time-scale of pay for a specified period, with further directions as to whether or not the Government servant will earn increments of pay during the period of such reduction and whether on the expiry of such period, the reduction will or will not have the effect of postponing the future increments of his pay:
*[(vi) reduction to lower time-scale of pay, grade, post or Service for a period to be specified in the order of penalty, which shall be a bar to the promotion of the Government servant during such specified period to the time-scale of pay, grade, post or Service from which he was reduced, with direction as to whether or not, on promotion on the expiry of the said specified period -
(a) the period of reduction to time-scale of pay, grade, post or service shall operate to postpone future increments of his pay, and if so, to what extent; and
(b) the Government servant shall regain his original seniority in the higher lime scale of pay, grade, post or service.] *[Substituted vide the Central Civil Services (Classification, Control and Appeal) Amendment Rules, 2009 notified vide F. No. 11012/2/2005-Estt (A)]
(vii) compulsory retirement;
(viii) removal from service which shall not be a disqualification for future employment under the Government;
(ix) dismissal from service which shall ordinarily be a disqualification for future employment under the Government.
Provided that, in every case in which the charge of possession of assets disproportionate to known-source of income or the charge of acceptance from any person of any gratification, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act is established, the penalty mentioned in clause (viii) or clause (ix) shall be imposed:
Provided further that in any exceptional case and for special reasons recorded in writing, any other penalty may be imposed."
Whereas rule 14 of the said rules 1965 provides for procedure for imposing Major penalties whereas rule 16 lays down the procedure for imposing minor penalties. This scheme of difference in treatment is now well recognised in public services in India and the disciplinary rules of different Central services, State services and Public sector undertakings are generally based on this dichotomy.
Generally speaking the procedure for imposing major penalty involves:
(i) the delivery of a charge-sheet;
(ii) appointment of an enquiry officer;
(iii) providing opportunity to the charged officer to summit defence and to be heard;
(iv) the enquiry where oral and documentary evidence is produced by both sides;
(v) the preparation of the report after the conclusion of enquiry and forwarding the same to the disciplinary authority (whether disciplinary authority is not itself the enquiring authority);
(vi) action on the enquiry report by the disciplinary authority i.e. making of order imposing penalty;
(vii) commutation of the orders;
(viii) appeal from the orders of the disciplinary authority to a higher authority;
(ix) revision and review.
Thus, the procedural safeguards are significantly wider in relation to major penalties than in relation to minor penalties. It would suffice to consider the different stages of proceedings relating to major penalties only. Therefore, it can safely be said that in case of proceeding relating to minor penalties statutory procedure as per Rule 14 is not required to be adhered to.
It is submitted by Mr. A. Pal in respect of the 1st charge that it is not sustainable because the de facto complainant i.e. umbrella maker made the complaint which was eventually withdrawn by those local persons admitting untrue fact. So, the withdrawal of complaint ipso facto remove all contention of the allegation made earlier as per definition of Black legal dictionary. Hence, fact itself nullify the modified penalty by appellate authority.
It would appear from Annexure 'P3' that the Deputy Commandant passed final order against the 1st charge after having considered the written reply of the petitioner and awarded penalty of pay fine equivalent to four days of pay vide Final Order No. V- 15014/CISF/IOC(H)/Disc-35/CDG/2000/7659 dated 01.12.2000 and in consideration of representation of the petitioner Annexure- 'P4' by order dated 24/5/2001 bearing No. V-11014/14/Ad. II/GHC/2001/2806 Group Commandant being the appellant authority reduced the said penalty of pay fine equivalent to four days pay to that of 'CENSURE' to meet the ends of justice only after having considered the fact that there was withdrawal of complaint in respect of the 1st charge but the behaviour alleged was not accepted from a member of disciplined force which creates administrative problems to the organization. Therefore, I am of the view that every reasonable opportunity of being heard was given to the petitioner and it cannot be said that there was violation of principle of natural justice.
Mr. Pal also submitted as regards 2nd charge that it is made in respect of an event allegedly occurred when the writ petitioner left the duty place with the permission of the superior authority when he did not get opportunity of handing over charge to the reliever who did not come even after 40 minutes when 'C' shift duty at 5 hours was over. Alleged damage of glass was not reported by the 'C' shift inspecting team nor it was seen by any person at the time of flag hoisting at 5 O'clock in the morning. Hence, the fact itself no way justify the imposition of penalty.
As regards 2nd charge annexure- 'P6' it is evident that the writ petitioner made representation vide annexure- 'P7' to the Deputy Commandant stating that he left his residence as per the order of S.I. Mr. Das. The gross indiscipline was alleged against him to the effect that while he was detailed for 'C' shift duty at administrative building on 24.8.2000 he left the duty post after completion of his duty without ensuring proper handing/taking over with the duty person who was detailed for 'A' shift duty at administrative building. Moreover, during his duty hours glass of main gate at administrative building was found broken though the petitioner gave report to control room in-charge as O.K. He was awarded penalty of pay fine equivalent to two days pay against which the petitioner appealed before the Group Commandant being the Appellate Authority who by order vide No. V- 11014/10/Ad. II/GHC/ 2001/2750 dated 22.05.2001 Annexure- 'P10' did not find any cogent reason to interfere with the order of penalty passed by the Disciplinary Authority and his representation was accordingly rejected. Therefore, I find that the petitioner was reasonably heard before the authorities and no violation of principle of natural justice can be inferred.
Mr. Pal further submitted as regards 3rd charge that the allegation against the petitioner for having slept on duty hours is not substantially proved for want of entries in the beat book at the duty place which was mandatory procedure in the security duty by force personal. Taking away the clothing of the petitioner by one R. K. Diwedi by allowing him to go on sleeping is a cock and bull story not based on any material fact during night checking. It is contended that the petitioner went to attend nature's call by leaving his material which he told immediately to his fellow constables. The veracity of statement of the petitioner was not examined even when prayer for inquiry in this matter is made by the petitioner as recorded in the final order. Accordingly, it is urged that for the sole reason the penalty is not sustainable in law.
It would appear from Annexure-'P12' that the petitioner participated in the inquiry by giving his explanation. Inquiry Officer after giving him hearing by his order dated 16.12.2000 imposed penalty for pay fine equivalent to two days pay vide Annexure-'P13' and he again made his representation Annexure- 'P14' to Group Commandant and by appellate order vide order No. V-11014/13/Ad. II/GHC/2001/2824 dated 25.5.2001 Group Commandant did not find any reason to disbelieve the report of Checking Officer in the General Diary immediately after the incident against the petitioner. Therefore, it cannot be said that there was no entry in the beat book as alleged by the petitioner. If such fact was found by the Inquiry Officer and the Appellate Authority there is no reason to disbelieve the entry as made by the Checking Officer, namely, S.I. R. K. Dwivedy in the General Diary. Thus, there is no case of violation of principle of natural justice.
Mr. Pal further invites my attention to 4th charge Annexure- 'P16' by which gross indiscipline was alleged against the petitioner and contended that as per existing procedure a person with visitors pass cannot take material inside the area without any written permission by the Management Official and that the petitioner did not encourage illegal order of a Sub-Inspector who asked the petitioner on duty at main gate of the IOC to allow a foreigner to go inside the establishment with a computer and other material when the oil refinery is the sensitive and highly security zone area where written permission of the IOC authority is absolutely necessary. The same Sub-Inspector without asking the Gate in charge asked the constable to allow the foreigner which the petitioner firmly with high degree of honesty disallowed. Hence, fact itself shows degree of hostile attitude towards the petitioner which culminated at the level even at the cost of high security of the establishment and it is further alleged that the authority wilfully and deliberately did not conduct full-fledged enquiry when it was prayed for by the petitioner to avoid the possibilities of disclosure of material fact from the witness either prosecution witness or defence witness where there was no embargo to conduct enquiry under settled principle of law.
It would appear from the Final Order vide Annexure-'P8' that in his representation the petitioner has stated that he had consulted with S.I. (Exe) C.S. Das under whose leadership he was discharging his duties in 'A' shift at RMG on 15.01.2001 and pointed out that instead of approaching the gate in charge, S.I. (Exe.) Deep Chand, I/C Control Room held threat and abused him obliquely but on the documents placed before the Officer his replies was not convincing and satisfactory and it was found on enquiry that the petitioner was detailed for 'A' shift duty on 15.01.2001 at refinery main gate with rifle getting verbal order of one of the IOC officer namely, S. K. Ray (PjM) regarding allowing of one visitor along with computer accessories, I/C Control Room directed him to allow the said visitor inside the plant who was having visitors pass issued from CISF Pass Section and the petitioner had refused to carry out the lawful order of the senior and misbehaved with S.I. Deep Chand in aggressive mood in front of other personnel at the gate. If the petitioner had doubt relating to allowing the said visitor he could have told the I/C RMG Control Room/Refinery Main Gate for the needful instead he disobeying the order of the superior which is not expected from the disciplined member of the Force. Accordingly, penalty was imposed by withholding one increment for a period of one year which will not have the effect to postpone his future increment. This order was appealed against before the Deputy Commandant by his representation annexure -'P19' and by the appellate order vide No. V-15019/Appl/CISF/IOC(H)/2001/1512 dated 27.03.2001 Deputy Commandant concurred with the finding of Assistant Commandant by rejecting his representation. Therefore, it cannot be said that the petitioner was not given fair hearing before the authorities.
It is submitted by Mr. U. Roy, learned Counsel for the respondents that the petitioner was appointed in CISF Force on 20.7.1993 and he had reported at CISF unit IOC, Haldia on being posted on the strength of order of transfer from CISF unit IOC, Gowahati on 01.7.1999. It is evident from his service record that he was awarded petty punishment for his misconduct and dereliction of duty while posted at CISF unit IOC, Gowahati as depicted from the tabular statement given on behalf of the respondents. Therefore, the petitioner cannot claim to have maintained a good service record until he was posed at Haldia.
Mr. Roy further submitted that the petitioner was dealt with under the provision of Rule 35 of CISF Rule, 1969 for having committed misconduct and after observing due procedure under relevant rules the petitioner was awarded with the minor penalties and the relevant procedure were strictly adhered to in finalising the disciplinary proceedings. It would be profitable to reproduce the provision of the said Rules as under:
"35. Procedure for imposing minor penalties.--(1) No order imposing any of the penalties specified in Cls. ( e) to (h) of rule 31 shall be passed except either--
(a) The member of the Force is informed in writing of the proposal to take action against him and of the allegations on which it is proposed to take action and given an opportunity to make any representation he may wish to make, and
(b) such representation, if any, is taken into consideration by the disciplinary authority.
The record of proceedings in such cases shall include--
(i) a copy of the intimation to the member so charged of the proposal to take action against him;
(ii) a copy of the statement of allegations communicated to him;
(iii) the representation, if any, made by the member so charged; and
(iv) the order on the case together with the reasons therefor." In this context, it is argued by Mr. Pal that in the old rule though enquiry in respect of minor penalty is not provided but it was not expressly excluded. To remove any deficiency in the rule it is clearly provided in rule 70 that where there is no provision or insufficient provision in the rule, the members of the force is to be governed by rules applicable to the officer holding corresponding posts of the central government. The corresponding provision in this matter in mother code of CCS(CCA) Rule under rule 16 which provides discretion of the authority to conduct enquiry under rule
14. The CISF 2001 Act and Rules removed the deficiency in the old rule and provided identical provision of enquiry similar to that of rule 16 of the CCS(CCA) Rules.
It is further contended that though conducting enquiry is discretionary but it does not mean that not conducting inquiry is prerogative of the authority. It is unfair on the part of the disciplinary authority to avoid the regular enquiry especially when the petitioner all along agitated with allegation against the authority. It is gross violation of rule of natural justice when authority neither expressed the reason of not conducting enquiry nor recorded any reason in the final order of each penalty. The law has no approval to such unfair acts nor any court would accept the plea of discretionary power of the authority for the ends of justice, equity and fair play.
Mr. Pal has further submitted that the Division Bench of Madras High Court in consonance with an identical matter in respect of the Central Industrial Security Force (CISF) highlighted in it's earlier judgment in W.P. No. 21952 of 2004 held that though it is discretion of the disciplinary authority but not conducting the enquiry without reason the ultimate penalty cannot be sustained and a reference to a decision in case of M. A. Rahim v. Union of India & Ors. (2009 LAB. I.C. 3858) has been cited in support of his submission inviting my attention to observation made in paragraph 8 and 9 wherein the decision in (2002 SCC (L & S) 188) has been followed holding that if the charges are factual and denied by the delinquent then, an enquiry should be called for which is minimum requirement of the principles of natural justice and such requirement cannot be dispensed with.
In the cited decision allegation against constable was that while on duty, he failed to stop criminals from entering plant by scaling over compound wall. Delinquent sent reply to show-cause notice, and also representation to higher officials alleging victimization. It was held that it was incumbent on part of Disciplinary Authority either to inform petitioner of reasons for not holding enquiry into charges or, accepting request made by petitioner, order for conduct of an enquiry, imposition of penalty of payment of fine equivalent to two day's pay, without holding enquiry, not proper.
It has been observed that Clause (b) of Rule 37 of CISF Rules though gives an option to the Disciplinary Authority to hold an enquiry at his desire, a careful consideration to the said rule makes it clear that where the delinquent denies the charges and prays for holding of an enquiry, two options are before the Disciplinary Authority, viz. to hold or not to hold an enquiry. In former case, no prejudice is caused to the delinquent as his request for holding an enquiry is accepted and an enquiry is ordered. If, however, the Disciplinary Authority desires not to hold an enquiry in terms of Rule 37(b), before proceeding further in the matter, a duty is cast on him to record the reasons for not holding an enquiry and inform the delinquent of the same. Such recording of the reasons and communicating the delinquent thereof are mandatory requirements to be fulfilled by the Disciplinary Authority inasmuch as Disciplinary Authority's desire not to hold an enquiry in spite of the specific request made by the delinquent may cause prejudice to the interest of the delinquent. Further, holding of an enquiry in such a case may not result in any prejudice to the department but would be in interest of both parties, viz. the delinquent and the department. In the cited case allegation against petitioner constable was that while on duty, he failed to stop the criminals from entering the plant by scaling over the compound wall. Delinquent sent reply to show cause notice and also sent representations to the higher officials alleging victimization, still Disciplinary Authority imposed punishment without holding enquiry. Thus, it is urged that order imposing penalty as well as the orders passed by appellate and the revisional authority confirming the same are liable to be quashed and the matter required reconsideration.
I have considered the ratio of decision with reference to the factual aspect of this case in which I found in the foregoing paragraphs that the petitioner was given proper opportunity to defend his case and after enquiry he was inflicted with minor punishment in respect of the said four separate charges at different point of time while on duties.
It is axiomatic from the records that the final orders reached the approval by the highest appellate authority which reflect in unequivocal term the misconduct and dereliction of duty on the part of the petitioner while discharging his duty assigned to him and has rendered himself unbecoming of a member of discipline force. Therefore, in my considered view the above cited decision is not apposite to the facts and circumstances of the instant case.
Mr. Pal has also referred to a decision of the Division Bench of this Hon'ble Court in a case of Ratna Bhattacharya v. Union of India and Ors. (2013 LAB I C 638), by adverting to observation at para 16 and 17 it is submitted that the matter is identical to the present case. It was held that a full-fledged departmental inquiry under rule 14 of CCS (CCA) rule is necessary to be conducted even for imposing minor penalty specially when charge was denied. It is further held that Disciplinary Authority must come to the conclusion for cogent reason that there is no need to hold a full-fledged inquiry to assess whether the Disciplinary Authority has in fact applied his mind to this aspect of the matter.
It is, thus, submitted by Mr. Pal that none of the aforementioned final orders of penalty disclosed examination of any witness to arrive at a decision as to the guilt of the petitioner. It is held by the Hon'ble Apex Court that disciplinary proceeding is quasi criminal in nature and there should be some evidence to prove the charge. See; (2006) 5 SCC 88 para 25.
I have gone through the decisions, in particular with reference the Division Bench decision of this Court in which case the delinquent was charged for participation in demonstration held by her on some local issues in front of the chamber of the Superintendent and for insulting him in filthy language.
The ratio of decision in my consideration view is not well-nigh within the facts and circumstances of the instant case which I have already discussed in the foregoing paragraphs holding that the petitioner participated in the inquiry held by the Inquiry Officer and on due consideration of the allegations and reply given by the petitioner, he was imposed with minor punishments well within the preview of Section 35 of CISF Act, 1968 with Rules 1969. Therefore, it cannot be said in the present case that there was departure from the approved legal position and contention of the petitioner that he did not even get any opportunity of hearing after submitting his written reply.
Mr. Roy contended that the old Central Industrial Security Force Act, 1968, the Central Industrial Security Force Rules, 1969 was framed and in that Rules, the Rule 31 contemplates the nature of penalties which reads thus--
"31. Nature of penalties-- The following penalties may, for good and sufficient reasons as hereinafter provided, be imposed on a member of the Force, namely--
(a) dismissal;
(b) removal;
(c) compulsory retirement;
(d) reduction to a lower class or trade or rank or to a lower time scale or to a lower stage in the time-scale of pay;
(e) withholding of increment or promotion;
(f) removal from any office of distinction or deprivation of special emolument;
(g) fine to any amount not exceeding 7 days' pay;
(h) censure. Explanation.--........", Inviting my attention to the above rule Mr. Pal submitted that the harshest punishment amongst the four punishments challenged in the W.P. No. 7288 (W) of 2002 is the punishment like reduction to one grade lower pay scale.
I differ from such submission because punishment inflicted on the petitioner withholding of one increment for a period of one year without cumulative effect in my view is not a harse punishment which are, as per the aforesaid provision, a minor punishment.
It would not be out of the context to take note of the provision of Rule 36 of the said Rule which provides that petty punishments shall ordinarily be awarded in Orderly Room. It would appear from the record that the punishments have received their approval by appellate authority on the basis of representations submitted by the petitioner. Thus, it is clear that the petitioner was given show-cause notice before every charges and the petitioner himself replied to every show-cause notices and all such replies were taken into consideration before passing the final orders, ergo, it cannot be said that there is violation of the statutory procedure as provided in rule 35 of Central Industrial Security Force Act, 1968.
Rule 34 deals with procedure for imposing major penalties which reads thus, "34. Procedure for imposing major penalties.--(1) Without prejudice to the provisions of the Public Servants (Inquiries) Act, 1850 (37 of 1850)" no order imposing on a member of the Force any of the penalties specified in Cls. (a) to (d) of rule 31 shall be passed except after an inquiry held as far as may be in the manner hereinafter provided. (2)...., Therefore, by conjoint reading of both the Rules as 31 and 34 of the Old Act of 1968 and old Rules of 1969, it can easily be inferred that only in case of providing punishments as envisaged in clause (i) to (v), an enquiry is required which necessarily means that in case of imposing punishments under Clause (vi) to (viii) no enquiry is essential, therefore, in the instant case the respondent authorities acted pursuant to the provisions of the CISF Act 1968 and the Rules 1969 framed there under."
It is reiterated by Mr. Roy with this submission that the petitioner is a habitual offender, he many of times exploited his official post and took undue advantage from the outsiders and took their services without giving them their considerations by putting them under the fear of his official post, many a times the petitioner misbehaved with the senior officers, many times he did not comply with their official orders, once he broke all the barriers by not letting an foreign official to get into the oil refinery especially when he was duly authorised to do so, and at that moment the senior officials asked him to let him into the refinery but he insanely stopped him and thereby degraded the force, the refinery as well as the national integrity especially in front of a foreign official, though after that he was not given any major punishment and kept in the force, and without taking any lesson out of it, the petitioner later on assaulted a higher official and had beaten him to such an extent that he was admitted to hospital with bleeding injury for which the petitioner was ultimately removed. Hence, the prayer for the writ petitioner for setting aside minor punishments should be dismissed with exemplary cost.
Mr. Pal relied on a decision in Union of India and Others v. R. Reddappa and Another reported in (1993) 4 Supreme Court Cases 269, in which case about 800 railway employees were dismissed under Rule 14(ii) of Railway Servants (Discipline and Appeal) Rules for participating in the Loco Running Staff Association strike in Jan., 1981. In each of these cases the disciplinary authority held that holding an inquiry was not reasonably practicable. The Hyderabad Bench of the Central Administrative Tribunal set aside the orders of dismissal on the ground of absence of any material to support the said finding. Rejecting the contention that in doing so the Tribunal had exceeded its jurisdiction, the Supreme Court held that an illegal order passed by the disciplinary authority does not assume the character of legality only because it has been affirmed in appeal or revision unless the higher authority is found to have applied its mind to the basic infirmities in the order.
The Supreme Court gave the following directions:
(1) The dismissed employees should be reinstated within three months. (2) Since the dismissal orders were found bad on merits three years ago, the employees should be paid compensation equivalent to three years' pay inclusive of dearness allowance on the scale of pay prevalent in the year of the judgment.
This benefit should be available even to retired employees and to the heirs of dead employees.
(3) Without entitlement to promotional benefits, notional continuity of service for the period of absence should be given to the employees including the retired and dead ones for calculating the pensionary benefits. I have respectfully gone through the decision which is quite distinguishable from the facts of the instant case.
It is further pointed out by Mr. Pal that this very principle has been reiterated in case of Govt. of A. P. and others v. Mohd. Nasrullah Khan, (2006) 2 SCC 373: (AIR 2006 SC 1214); wherein it was held:
"(11) By now it is a well-established principle of law that the High Court exercising power of judicial review under Article 226 of the Constitution does not act as an appellate Authority. Its jurisdiction is circumscribed and confined to correct errors of law or procedural error, if any, resulting in manifest miscarriage of justice or violation of principles of natural justice.
Judicial review is not akin to adjudication on merit by re-appreciating the evidence as an appellate authority."
Paragraph 12 reflects that--
"12. Findings based on no evidence or ignoring evidence even though the principles of law of evidence are not applicable in departmental proceedings, misinterpretation of important documents forming the fundamental basis of the charge against the delinquent and conclusions based on the material on record not supporting the finding etc. would all be errors amongst other such errors within the ambit of judicial review. We need not reiterate that the Court cannot be a silent spectator to miscarriage of justice or denial of fundamental rights. It is in this background of the law that the factual matrix has to be considered."
Mr Paul further referred to an unreported decision dated 17.6.2004 passed in W.P. No. 11659(W) of 2002 authored by a Single Bench of this Hon'ble Court in which case challenge was against an order of compulsory retirement passed by competent authority in respect of which authority had refused to entertain the appeal preferred against such order of compulsory retirement on the ground of being barred by limitation. It is contended that three Articles of Charges were framed. It is contended that charge -III was the repetition of previous allegation against the petitioner on the basis of which punishment had already been given and as such there was no scope for framing a fresh charge on the selfsame ground. Accordingly drawing to the said analogy of the decision, Mr. Pal urged that the respondent authority ought not have framed Article of Charge-II in respect of passed punishment particulars awarded to the petitioner being the petty punishment and minor punishment and ought not have taken into consideration while imposing the punishment of removal from service. It is pointed out that in view of specific provision contained in proviso to Section 18(3) of Central industrial Security Force Act, 1968 and the rules framed thereunder as the petitioner has already got punishment, the respondent or the authorities should have guided themselves by provision contained in rule 34 of the said Act. In the cited decision the Single Bench of this Court was of the view that framing of Charge-III was against the specific provision of a statute and authority could not take into consideration the findings on the said charge while imposing punishment with the observation that the punishment imposed in the case was the outcome of the cumulative effect on the findings of Charges-I, II & III. Thus, ultimate punishment imposed upon the petitioner under rule 31(c) had vitiated for taking into consideration the finding on Charge-III and such act on the part of the respondent authority was in violation of Section 18(3) proviso of the Act.
The fact of the unreported decision cited above, in my considered view is on different footing. I have gone through the report of the Inquiry Officer, the final order of the authority, order of the appellate authority and revisional authority and I conclude that though Article of Charge-II was framed to show antecedents of misconduct and dereliction of duty on the part of the petitioner and petty and minor punishments inflicted on him but that cannot be construed as cumulative effects on the findings of the Inquiry Officer while imposing ultimate punishment of his removal from the service. It is pertinent to take note of the fact as to the observation made by the Group Commandant being the revisional authority who after taking into account the oral and documentary evidence in the course of the enquiry was of the view that the charged official has acted in a manner most unbecoming of a member of the disciplined force by assaulting his senior officer. Therefore, I do not find violation of proviso to section 18(3) of CISF Act, 1968 and rules framed thereunder.
Therefore, bone of contention of Mr. Paul that the Charge- sheets were issued on extraneous reason and penalties were imposed arbitrarily without conducting an enquiry or conducting enquiry behind the back of the petitioner with tendentious and mala fide reasons without any evidence adduced to verify the allegations resulting in miscarriage of justice cannot be accepted. As such, I do not find the order of removal from service being devoid of any merit.
Accordingly, both the writ petitions being W. P. No. 7288 (W) of 2002 and W.P. No. 11869 (W) of 2003 are hereby dismissed, however, without any order as to costs.
Urgent certified photocopy of this Judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities.
(SHIVAKANT PRASAD, J.)