Delhi High Court
Rajeshwar Singh vs Union Of India And Ors. on 28 July, 1989
Equivalent citations: 39(1989)DLT324
JUDGMENT Mahesh Chandra, J.
(1) The petitioner has filed this writ petition challenging the termination of his services vide orders dated 9th March, 1981 and 23rd June, 1986.
(2) Facts giving rise to this petition are that the petitioner had joined the Central Industrial Security Force (hereinafter referred to as 'CISF') as a security guard and after requisite training he was initially posted at Durgapur Steel Plant where he worked till 13th August, 1971. He was thereafter posted at Khetri Copper Complex and in course of time was posted at Rastriya Chemical Fertilizer, Chembur. Bombay. Some incident is t have taken place on 24th February, 1980 there and m course of time on 5th March, 1980 a memorandum (Annexure 'A') was issued by the Commandant initiating an enquiry against the petitioner and in consequence of the enquiry a show cause notice (Annexure 'D') is alleged to have been served on 2nd January, 1981 against which he represented and in consequence order dated 9th March, 1981 was passed ordering his removal from service. An appeal was preferred on 12th March, 1981 which was disposed of as late as 23rd June, 1986 and the said appeal was dismissed resulting in ultimate termination of services of the petitioner.
(3) The first contention of the petitioner is that the petitioner was governed by the Central Industrial Security Force Rules, 1969 (hereinafter referred to as 'CISF Rules, 1969') whereas charge sheet was served upon him under Central Civil Services (Classification, Control and Appeal) Rules, 1965 (hereinafter referred to Ccs (CCA) Rules, 1965) and the enquiry was also held against him under Ccs (CCA) Rules, 1965 and as such the said enquiry and orders resulting there from are illegal and void. In this behalf my attention has been drawn to Annexure 'A'. A perusal of the said annexure shows that it clearly brings out in the very first para that "the undersigned proposes to hold an enquiry against Shri Rajeshwar Singh. Sc Cisf No. 7008162 under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965". My attention has further been. drawn to Cisf Rules, 1969. Rule 29 thereof lays down as under : "RULES governing discipline--(1) Supervisory owners shall" be governed by the rules applicable to the officers of the. Central Government of corresponding class in respect of disciplinary proceedings, punishments, appeals, revisions and representations. (2) The members of the Force shall in such matter be governed by the rules' in this Chapter".
Perusal of sub-rule '2 places the matter beyond any shadow of doubt that in the matter of disciplinary proceedings, punishments. appeals, revisions and representations members of Cisf were governed by the Cisf Rules, 1969 as contained in Chapter Ix thereof It is submitted on behalf of the respondent that reference to Rule 14 of the CCS(CCA) Rules, 1965 was by sheer oversight or typing mistake and would not vitiate the enquiry. However, persual of Annexure 'A' further shows that it was not at one place that reference to CCS(CCA) Rules 1965 has been made therein rather reference to para 4 of the said charge-sheet would also indicate that it has been brought out therein as well that if the petitioner did not comply with the provisions of Rule 14 of the CCS(CCA) Rules, 1965 the enquiry officer would hold the enquiry ex-parte. Furthermore, my attention has been drawn to para 5 of Annexure 'A' wherein reference has been made to Central Civil Services (Conduct) Rules, 1964 as well and in the face thereof it is difficult to accept that reference to CCS(CCA) Rules, 1965 was through an oversight or typographical error. It may further be mentioned here that on comparison of relevant provisions of Cisf Rules, 1969 with the provisions incorporated in CCS(OCA) Rules, 1965 I find that there does exist difference in the provisions of the two and consequently in such a situation it cannot be accepted that enquiry could be held under CCS(OGA) Rules, 1965 as against Cisf Rules, 1969. Where the employee is governed by one set of rules in the matter of disciplinary proceedings but inquiry is held under another set of rules such an inquiry would be violative of principles of natural justice and findings based upon such an enquiry cannot be upheld much less the punishment imposed in consequence of such findings. It would be no gainsaying that there was not any material difference in two sets of rules.
(4) It is further submitted on behalf of the respondent that in any event, even if the enquiry was held under CCS(OCA) Rules, 1965 but show cause notice Annexure 'D' was issued under Rule 34 of the Cisf Rules. 1969 and therefore the mistake is cured. No doubt "how cause notice was issued under Rule 34 Cisf Rules 1969 but that would not cure the initial defect and lacuna whereunder charge-sheet was served under CCS(CCA) Rules. 1965 and enquiry was held under Ocs (OCA) Rules, 1965. The prejudice which had already been occasioned to the petitioner by serving charge-sheet and holding an enquiry under CCS(CCA) Rules. 1965 would not stand obliterated and cured by giving a show cause notice under Rule 34 Cisf Rules. 1969."
(5) It has also been urged by the learned counsel for the respondent that the petitioner has not shown if any prejudice has occasioned to him by this mistake. I am afraid there is no force in this submission. It is not necessary for the petitioner to show what, if any. prejudice had occasioned to him. In these circumstances the prejudice would be inherent in serving the charge-sheet and holding an enquiry under CCS(CCA) Rules, 1965. moreso, when admittedly there are some difference in the provisions of the two rules on the point in dispate. Serving of a charge-sheet and holding an enquiry under Ocs (CCA) Rules, 1965 would be in violation not only of service rules but also would be against principles of natural justice and where the principles of natural justice are violated the prejudice would be inherent and it is not necessary for the petitioner to prove anything beyond that. In these circumstances the order of termination of services of the petitioner stands vitiated and the writ petition is liable to be allowed Oh this ground itself.
(6) Learned counsel for the petitioner has further submitted that the department had initially proposed to examine only five witnesses in support of the charge but in actuality as many as "even witnesses were examined. In this behalf, my attention has been drawn by the. learned counsel for the petitioner to Annexures 'A' and 'B'. Annexure 'A' is the charge-sheet and there are four annexures to this Annexure 'A' and perusal of Annexure Iv thereto shows that the department proposed to examine five witnesses namely. Inspector Dharbha Vishwanath (Coy. Commdr.). Si Karam Singh, Hcf R. L. Sawant, Hco N. A. Shinde. and SGN animate Sathe in support of the charge-sheet. However, perusal of Annexure 'B' which is the enquiry report shows that seven witnesses were examined and on comparison of these witnesses in the two annexure (I further find that of the five witnesses mentioned in Annexure A, Hcg N.A. Shinde was not examined at all and further that three more witnesses. namely. Sg Gulab Singh, Sg Manukhthi and Sg Abekar were examined. This certainly would act to the prejudice of the case of the petitioner and principles of natural justice would be deemed to have been violated by adoption of such a course by the enquiry officer. This course tends to prejudice the defense even. Learned counsel for the respondent has not been able to explain the circumstances in which this departure had taken place in the examination of witnesses and consequently also it would be difficult to sustain the enquiry report and the termination orders in the face of such a situation and I hold accordingly.
(7) It has likewise been urged that Public Witness I and Public Witness 2 namely. Si Karan Singh and Insp. Darbha Vishwanath were exa mined in the absence of the petitioner and they could not be even cross-examined. From the persual of the copies of the statement of these witnesses, I find that certainly these two witnesses were examined on the back of the petitioner and the petitioner could not even cross-examine these witnesses. Examining witness on the back of the petitioner is in violation of the basic principles of natural justice regarding holding of such an enquiry and consequently any finding based on such an evidence cannot be upheld and the writ is liable to be allowed on this ground as well.
(8) Learned counsel for the petitioner has drawn my attention to Annexure I to the charge-sheet (Annexure 'A') which. brings out the statement of Articles of charges framed against the petitioner in the enquiry and these read as under :
"ARTICLEI In subordination and Misbehavior with the Superior Officer while on duty in which No. 7008162 Sg Rajeshwar Singh, when checked on duty Anp (Plant) (Corner) Patrolling on 24-2-1980 at about 0930 hrs. threatened and abused Si Karan Singh of his Coy. When Si was on official checking round.
Article II Remissness and willful neglect of his duty in which No. 70008162 Sg Rajeshwar Singh attended the duty under influence of liquor on 24-2-1980 and was actually in possession of 114 bottle of liquor when checked by Si Karan Singh.
Article III Gross misconduct and indiscipline in which No. 70008162 Sg Rajeshwar Singh, while on duty on 24-2-1980 created such a scene under the influence of liquor which lower the image of the disciplined force.
Article IV willful absence from duty post in which No. 7008162 Sg Rajeshwar Singh found absent from his duty post sulphuric Acid Plant and when checked by Si Karam Singh and was found near Anp Plant (Corner).
Article V Challenged the disciplinary Authority/Head of the Department. Cisf Unit i.e. Commandant in taking action against 7008162 Sg Rajeshwar Singh in which he littered the unparliamentary language against the Disciplinary Authority.
Article VI Desertion for duty in which No. 7008162 Sg Rajeshwar Singh willfully deserted himself from his duty post sulphuric Acid Plant from 1000 hrs. without any intimation permission".
(9) Further submission of the learned counsel for ihe petitioner is that enquiry report shows that the petitioner has been exonerated of charges under Articles Ii, Iii and V which have been held to be not proved and Articles of Charges at S, No. I, Iv and Vi have only been held to be proved and the enquiry officer has himself observed at page 13 of his report that Article of Charge No. Vi was more or less repetition of Article of Charge No. IV. He has urged that even considering the findings of the enquiry officer that charges under Article I, Iv and Vi have been proved, the extreme penalty of removal from service is disproportionate to the guilt of the accused. It is also urged that there was non-compliance with provisions of Section 8 of the Central Industrial Security Force Act, 1968 (hereinafter referred to as 'CISF Act, 1968'). Section 8 of the Cisf Act, 1968 lays down a" under :
"8.Dismissal, removal etc. of members of the Force- Subject to the provisions of Article 311 of the Constitution and to such rules as the Central Government may make under this Act, any supervisory officer may
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(I)dismiss, suspend or reduce in rank and (enrolled member)of the Force whom he thinks remiss or negligent in the discharge of his duty, or unfit for the same: or (II)award any one or more of the following punishments to any (enrolled member) of the Force who discharges in a careless or negligent manner or who by any act of his own renders himself unfit for the discharge thereof, namely :
(A)fine to any amount not exceeding seven days' pay or reduction In pay scale: (B)drill, extra guard, fatigue or other duty;
(C)removal from any office of distinction or deprivation of any special employment".
(10) This Section shows that the case of the petitioner would be governed by the first part of the Section which deals with dismissal. It has been urged that before the order of dismissal could be paused, there should be a finding by the punishing authority that the petitioner was remiss and negligent in discharge of his duties or was unfit for the same which ha¯ not been done in the instant case by the punishing authority. It is also urged that Oh the question of remissness and neglect of duties, the petitioner has already been exonerated by the enquiry officer keeping in view his finding upon Article Ii of Charges and therefore he could have been removed only if there was a finding that the petitioner was unfit for duty, which has not been,given by either of the Disciplinary authority or the Appellate authority. Certainly Article Il of the Changes related to Remissness. and willful neglect of hi duties and on this Article of Charges the petitioner has been exonerated and it has been held by the enquiry officer that this charge has not been proved against the petitioner. In these circumstances there appears to be much substance in the submission of the learned counsel for the petitioner in this behalf, particularly because there is no finding by the Disciplinary authority or the Appellate Authority that the petitioner was unfit for his duties.
(11) It has also been argued on behalf of the petitioner that Disciplinary Authority has not applied its mind to the matter before him in as much as he has not given proper findings' in accordance with Cisf Rules, 1969 and have not come to his ' independent conclusions. In this behalf- my attention has been drawn to Rule 34 sub rule (9) which enjoins upon the disciplinary authority when it is also not the enquiry authority to consider the record^ of the inquiry an.d records its findings on each charge. It reads as under : "9.The disciplinary authority shall, if it is not the Inquiry Authority referred to above, consider the record of the inquiry and record its findings on each charge".
PERUSAL of para 4 of Annexure D shows that it has been recorded therein by the Disciplinary Authority that "on careful consideration of the E.O's report I agree with the findings of the enquiry officer" and as such it follow., that the disciplinary authority has not corns to an independent conclusion regarding the guilt of the petitioner. Likewise the order of removal which is Annexure E to the writ petition also indicates that the disciplinary authority has not taken independent decision with regard to guilt to the petitioner therein either. On this score as well the writ petition is liable to be allowed.
(12) Lastly it has been .submitted that even the appellate authority while considering the appeal did not comply with Rule 47(2) of Cisf Rules, 1969 and in this behalf my' attention is drawn to para 3 of order dated 23rd June, 1986 (Annexure G) which does show that there is no strict compliance with Rule 47(2) of the Cisf Rules, 1969 by the appellate authority and passing remarks that "on a careful perusal of the case record "indicates that the charges I, Iv and Vi are clearly proved. The punishment awarded to him is for good and sufficient reasons and is in no way disproportionate to the proven delinquency....." would not be a strict compliance of rule 47(2) of the Cisf Rules, 1969. It was in this context that it was precisely observed in Ram Chander vs. Union of India and others, as under : "These authorities proceed upon the principle that in the absence of a requirement in the statute or the rules, there is no duty cast on an appellate authority to give reasons where the order is one of affirmance. Here, Rule 22(2) of the. Railway Servant Rules in express terms required the Railway Board to record its findings on the three aspects stated therein. Similar are the requirements tinder Rule 27(2) of the Central Civil Services (Classification, Control and Appeal) Rules 1965. Rule 22(2) provides that in the case of an appeal against an order imposing any of the penalties specified in Rule 6 or enhancing any penalty imposed under the said rule, the appellate authority shall consider as to the matters indicated therein. The word (consider has different shades of meaning and must in Rule '22(2) in the context in which it appears, mean an objective consideration by the Railway Board after due application of mind which implies the giving of reasons for its decision".
(13) It may be observed that there is a purpose behind such provisions. There is an increasing tendency amongst the disciplinary authorities and appellate authorities to accept the finding of enquiry officer without applying their independent mind. They tend to function as mere rubber stamps which cannot be permitted which has to be deprecated and it has to be insisted that these authorities arrive at their independent conclusions and they must be required to strictly comply with rules in this behalf. Justice should not only be done but should also seem to be done. The very purpose of having separate inquiry, disciplinary and appellate authorities would be frustrated if the later ones function as rubber stamps. The writ petition is liable to be allowed on this score as well.
(14) No other point has been urged before me.
(15) In view of my discussion and findings above, the writ petition is allowed with cost. The impugned orders are quashed and the petitioner is reinstated with full benefits and seniority and promotion. The costs are assessed at Rs. 2500.