Telangana High Court
Jai Narayan Singh, vs Govt. Of India, Ministry Of Home ... on 10 November, 2022
THE HON'BLE SRI JUSTICE E.V.VENUGOPAL
WRIT PETITION No.8989 of 2013
ORDER:
1 Petitioner challenges the proceedings dated 07.02.2013 of the second respondent whereunder the punishment of dismissal from service was modified to that of compulsory retirement. 2 The facts germane for consideration in this writ petition are that the petitioner joined the Central Industrial Security Force (CISF) in 1982. While working under the 4th respondent, he was subjected to departmental enquiry by framing two charges. The first charge was that he was running M/s. Virat Military Store, opposite to Gate No.2 of CISF/NISA Campus at Hakimpet and the second charge was that he misbehaved with Inspector. 3 After conducting the enquiry, the disciplinary authority, vide proceedings dated 31.12.2011 awarded punishment of dismissal from service on the petitioner. Aggrieved thereby, the petitioner preferred departmental appeal to the third respondent, which was dismissed by order dated 23.10.2012. Thereafter, the petitioner preferred a revision petition before the second respondent. In the said revision, the second respondent modified the punishment of dismissal from service awarded by the disciplinary authority to that of compulsory retirement, vide proceedings dated 07.02.2013. Hence the present writ petition. 2 4 Mr. Narinder Pal Singh, the learned counsel for the petitioner submitted that M/s. Virat Military Store belongs to his brother who is not a member of his family and hence charge under Section 36 is not maintainable. In fact, there is business rivalry with the supplier of CISF and his brother sells same items for lesser rate. He further submitted that the prosecution failed to produce even a single cash memo or cash receipt of M/s. Virat Military store signed by the petitioner in support of Charge No.1. It is his further submission that M/s. Virat Military Store is located outside and opposite to Gate No.2 whereas the petitioner is staying in CISF Barracks, Gate Register shows that he never went outside the CISF Camp, there is no absent mark, and hence running of store by the petitioner does not arise. 5 With regard to the Charge No.2, the learned counsel for the petitioner submitted that there is no record to show that the Inspector Johnson was appointed to conduct preliminary enquiry. It is his contention that as per CISF Discipline and Appeal Manual, 2006, the evidence collected during the preliminary enquiry is to be relied upon during the regular proceeding and it should be ensured that the CISF personnel concerned is supplied with the copies of such evidence so that he can put his defence effectively. In the present case, charge No.2 was framed based on the preliminary enquiry. As such, the 3 evidence collected during the preliminary enquiry was to be supplied to the petitioner but he was not supplied. The learned counsel for the petitioner relied on the decision of the Hon'ble Apex Court in Union of India Vs. P. Gunasekharan1 and contended that in disciplinary matters Court can interfere where finding is wholly arbitrary and capricious based on no evidence which no reasonable man could ever arrive at.
6 On the other hand, the learned counsel for the respondents submitted that insofar as charge No.1 is concerned, the petitioner himself states that the Military Store is being run by his brother. As per Rule 15 (1) and 15 (3) of CCS (Conduct) Rules, 1964, no Government servant shall except with previous sanction of Government engage directly or indirectly in any trade or business and every Government servant shall report to the Government if any member of his family is engaged in a trade or business or owns or manages an insurance agency or commission agency. It is on record that the petitioner had not at all informed the department about his running a business be it directly or indirectly (through his brother) whereas it was mandatory for him being a Government servant. Therefore, the Charge No.1 stands proved.
1 (2015) 2 SCC 610 4 7 With regard to the charge No.2, the learned counsel for the respondents submitted that the Commandant (Amn.) CISF had issued an order for Inspector / Exe. P.K.Johnson to conduct a preliminary enquiry vide order dated 06.07.2011. The petitioner had misbehaved with the said Johnson and refused to obey his order to record statement in the preliminary enquiry and the petitioner did not cooperate with the Inspector Johnson who had summoned him for the preliminary enquiry. He further submitted that the petitioner was provided with all the required documents mentioned in the Charge Memo based on which the charges were famed and even this fact was accepted by the petitioner during preliminary enquiry held on 29.09.2011 while replying to question No.4.
8 Having heard the learned counsel for the parties and having perused the entire material available on record, the point for determination in this writ petition is 'whether the action of the 2nd respondent in awarding punishment of compulsory retirement on the petitioner is proper and justifiable'? 9 For the sake of reference, I deem it appropriate to extract Rule 15 (1) and 15 (3) of CCS (Conduct) Rules, 1964, which read as under:
15. PRIVATE TRADE OR EMPLOYMENT:5
(1) Subject to the provisions of sub-rule (2), no Government servant shall, except with the previous sanction of the Government-
(a) engage directly or indirectly in any trade or business, or
(b) negotiate for, or undertake, any other employment, or
(c) hold an elective office, or canvass for a candidate or candidates for an elective office, in any body, whether incorporated or not, or
(d) canvass in support of any business of insurance agency, commission agency, etc., owned or managed by any member of his family, or (3) Every Government servant shall report to the Government if any member of his family is engaged in a trade or business or owns or manages an insurance agency or commission agency.
10 The Articles of charge framed against the petitioner are as under:
Article - I That the said No.824480341 Head Constable / General Duty Jai Narain Singh (under Suspension) while functioning at CISF/NISA Hyderabad has committed grave misconduct, indiscipline act and disobeyed the order and violated the CISF Rules, without obtaining the permission from the competent authority has opened a Military Store namely M/s. Virat Military Store, Opposite to Gate No.2 of CISF / NISA Hyderabad and started selling useful items. Being a member of the discipline force, his action is unlawful and against the discipline of the force. (underlined by me) Article - II That during the aforesaid period and while functioning in the aforesaid office, the said No.824480341 Head Constable / General Duty Jai Narain Singh (under Suspension) has committed grave misconduct and disobeyed the orders. That on 07.07.2011 at 15.30 hours when Inspector P.K.Johnson called him for recording his statement during Preliminary Enquiry, he has misbehaved with him and disobeyed his lawful orders. He has disobeyed the orders of his superior and misbehaved with his senior. Therefore, No.824480341 Head Constable / General Duty Jai Narain Singh (under Suspension) being a member of the discipline force, his action is unlawful and against the discipline of the force.
11 As many as nine witnesses were examined during the course of the preliminary enquiry. All of them in one voice stated that the relatives of the petitioner herein were running a military 6 store opposite to Gate No.2 of CISF/NISA Campus at Hakimpet. From a conjoint reading of Charge No.1 and Rule 15 (1) and 15 (3) of the CCS (Conduct) Rules, 1964, it is obvious that the petitioner was not directly involved in any trade. 12 In the instant case, it was not the case of the respondents to inflict the petitioner into any of the necessary requirements of the above stated provisions as it was clearly stated in the Article of Charge No.1, read above that the petitioner without obtaining permission from the competent authority has opened a Military Store namely M/s. Virat Military Store, Opposite to Gate No.2 of CISF / NISA Hyderabad and started selling useful items, which in my considered view is a defective one. It is the case of the petitioner that it is his brother, who cannot be treated as a member of his independent family, which is borne by record, that petitioner's brother was operating the said business much prior to the writ petitioner's joining into the service of the respondent CISF and had been living separately at a different place to that of the writ petitioner. Nowhere alleged that the writ petitioner has neither obtained any sanction from the government nor has been charged under Rule 15 (1) (d) of the Rules except that he violated the provision stated supra, which is completely ambiguous. Moreover, the authority failed to appreciate the evidence produced pertaining to the licence obtained by his brother from 7 the licensing authority which establishes the case of the writ petitioner that he is not connected to the Charge No.1 and that he is operating a private store by name Virat Military Store and thereby violated the said Rule.
13 It is the case of nobody that the petitioner was present in the private store and was selling the articles. But the Article of Charge reads otherwise i.e. he (the petitioner) himself opened the store and selling the articles. The above charge speaks about the direct involvement of the writ petitioner in the alleged conducting of the business opposite to the Gate No.2 of CISF / NISA Hyderabad and started selling useful items. But the evidence collected during the preliminary enquiry speaks otherwise. The said evidence is of no help to the case of the respondents. The case of the petitioner, right from the beginning, is that the said shop belongs to his brother and he has nothing to do with his brother. So in the considered opinion of this Court, the respondent authorities failed to establish the Charge in verbatim. Hence in unequivocal terms it can be said that the Charge No.1 was not proved against the petitioner.
14 As far as the second Charge is concerned, from the proceedings dated 06.07.2011 Mr.P.K.Jahnson Inspector / Exe was directed to enquire into the matter and submit a report with regard to the above irregularity committed by the petitioner. 8 Therefore, the said Johnson was the competent person to conduct a preliminary enquiry. In the Inter Office Note dated 13.07.2011 prepared and submitted by said Johnson, it was mentioned as under:
"On 7.7.2011 at 15.30 Hrs, HC/GD Jai Narayan came to my office at Canteen. I have explained him about the nature of enquiry and asked him to state his version so that I could record it. He categorically refused to give any statement by saying that he was not informed about the PE by any disciplinary authority and that he wanted a letter in writing. I being the PEO, wrote a letter in English for his attendance in the enquiry and handed over to him. He refused to accept the letter saying he does not follow English and wanted the letter in Hindi. I have translated the letter in Hindi and handed over to him. He again refused to accept the same by saying that an Inspector was not competent to issue any letter and that he would accept the letter only when signed by Disciplinary Authority.
I have tried to make him understand the nature of enquiry. He was agitated and argued with me by questioning my very authority to summon him to take the statement. He further asked for a copy of letter issued by competent authority which appointed me as Preliminary Enquiry Officer. I explained him that it was not in practice and not required by law and also that it was beyond the scope of a PEO. He was very much agitated. This clearly shows his arrogance and insubordination. Then he refused to give any statement and walked out of my office. Hence his statement could not be recorded in the Preliminary Enquiry conducted against him."
15 From the above portion of extract made from the letter of the Inspector Johnson, it is clear that the petitioner did not cooperate with the PEO and his behavior with the Inspector is unbecoming of a subordinate officer.
16 The disciplinary authority had imposed punishment of dismissal from service. The appellate authority had also confirmed the same. However, the revisional authority had 9 modified the punishment of dismissal from service to that of compulsory retirement.
17 In State of Karnataka v. N.Gangaraj2 the apex Court has categorically stated that the Tribunal or High Court cannot interfere with the findings of fact recorded by the disciplinary authority by reappreciating evidence as if they were appellate authority. Three authorities have discussed the evidence available on record. At every stage, the authorities have not violated the procedure or the Rules of natural justice. Vide letter dated 06.07.2011 the Inspector by name Johnson was directed to conduct preliminary enquiry against the petitioner with regard to the alleged violation of the Rules and the petitioner was given reasonable opportunity. Hence I am of the considered view that Charge No.2 was held proved.
18 Though the disciplinary authority as well as the appellate authority have imposed the punishment of dismissal from service, the second respondent had taken a lenient view by modifying the punishment to that of compulsory retirement. However, in the above case i.e. N.Gangaraj (1 supra), the Hon'ble apex Court while holding the parameters as to when the High Court shall not interfere with the disciplinary proceedings, 2 (2020) 3 SCC 423 10 underlined that the High Court shall not go into the proportionality of punishment unless it shocks its conscience. 19 In the instant case, the writ petitioner was ultimately imposed punishment of compulsory retirement. But, in my considered view the said punishment is disproportionate to the proved misconduct of the writ petitioner insofar as the Charge No.2 is concerned. The gravity of the Charge No.2 in this case does not call for such a big punishment. Therefore, the writ petitioner deserves some relief from this Court. 20 In Union of India Vs. Ram Karan3 the Hon'ble Apex Court held as follows:
23. Even in cases where the punishment imposed by the disciplinary authority is found to be shocking to the conscience of the Court, normally the disciplinary authority or the appellate authority should be directed to reconsider the question of imposition of penalty. The scope of judicial review on the quantum of punishment is available but with a limited scope. It is only when the penalty imposed appears to be shockingly disproportionate to the nature of misconduct that the Courts would frown upon. Even in such a case, after setting aside the penalty order, it is to be left to the disciplinary/appellate authority to take a call and it is not for the Court to substitute its decision by prescribing the quantum of punishment. However, it is only in rare and exceptional cases where the court might to shorten the litigation may think of substituting its own view as to the quantum of punishment in place of punishment awarded by the competent authority that too after assigning cogent reasons.
21 In view of the principle enunciated in the case cited supra, this Court is of the considered view that it is a fit case to direct the respondent authorities to consider the case of the writ 3 MANU/SC/1049/2021 11 petitioner for imposition of an appropriate punishment proportionate to the proven misconduct.
22 Accordingly, this writ petition is partly allowed. The punishment of compulsory retirement imposed on the petitioner is hereby set aside. The respondent authorities are directed to consider the case of the writ petitioner for imposing appropriate punishment to the proven misconduct under Charge No.2 in accordance with law. No order as to costs.
23 Miscellaneous petitions, if any, pending in this writ petition shall stand closed.
______________________ E.V.VENUGOPAL, J.
Date: 10-11-2022 Kvsn