Jharkhand High Court
Md.Kaiyum Ansari vs Union Of India & Ors on 5 April, 2013
Equivalent citations: 2013 (3) AJR 598
Author: Shree Chandrashekhar
Bench: Shree Chandrashekhar
1
W. P. (S) No. 6661 of 2002
In the matter of an application under Article 226 of the Constitution of India
Md. Kaiyum Ansari ... ... Petitioner
Versus
1. Union of India
2. Inspector General, CISF, Ministry of Home Affairs,
ES H.Qrs. Patna
3. Deputy Inspector General, CISF, Ministry of Home
Affairs, Bharat Coking Coal Ltd. (BCCL) CISF,
Dhanbad, Jharkhand
4. Commandant, CISF, Ministry of Home Affairs,
CISF Unit, CCWO, Dhanbad ... ... Respondents
For the Petitioner : Mr. A. Allam, Sr. Advocate
Ms. Sunita Kumari, Advocate
For the Union of India : Mr. Faizur Rahman, CGC
P R E S E N T
HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
By Court: Challenging orders dated 03.10.2000, 12.01.2001 and
25.07.2002, the petitioner has approached this Court by filing the present writ petition.
2. At the relevant time, the petitioner was posted as Sub Inspector of Police, CISF, CCWO, Dhanbad and in the night of 6th/ 7th July, 1999 an incident took place in which one Constable namely, S.C. Hota was beaten by four inmates and eventually he died. A criminal case was registered against those four persons and the petitioner was also implicated in said case. On 15.10.1999, a chargememo along with Article of imputation of charge, list of documents etc. were served upon the petitioner. The charges are as under, Article of Charge I :
That, the said CISF No: 802020031 SI/ Min. Md. Kayum Ansari of CISF Unit CCWO Dhanbad, is 2 charged with "grave misconduct" in that, in the intervening night of 0607th July, 1999 while CISF No:
73430241 HC S.C. Hota was beaten by some CISF Personnel at the Unit Hqrs. Complex itself, the said SI/Min. Md. Kayum Ansari is alleged to have aided, abetted and istigated the CISF Personnel, actively involved in the beating of HC S.C. Hota. Thus the said No: 802020031 SI/Min. Md. Kayum Ansari acted in a manner highly unbecoming of a member of an Armed Force of his rank. This act, on the part of the said NO: 802020031 SI Md. Kayum Ansari is highly prejudicial to the good orderly act of a member of an Armed Force, and hence the charge.
Article of Charge II :
That, the said CISF No: 802020031 SI/Min. Md. Kayum Ansari of CISF Unit CCWO Dhanbad, is charged with "gross misconduct" in that, in the intervening night of 0607th July, 1999 he is alleged to have brutally attacked/assaulted CISF No: 734300241 HC/GD S.C. Hota by slaps, lathies, fists and kicks etc. As a result of which HC/GD S.C. Hota succumbed to his injuries in BCCL Central Hospita, Khanbad on 08.07.1999 at about 1230 Hrs. This act, on the part of the said No: 802020031 SI/Min. Md. Kayum Ansari tantamounts to "gross misconduct" and is highly unbecoming of a member of an Armed Force, and hence the charge.
Article of Charge III :
That, the said CISF No: 802020031 SI/Min. Md. Kayum Ansari of CISF Unit CCWO (D), is charged with "serious misconduct" in that, in the intervening night of 0607th July, 1999 CISF No: 734300241 HC S.C. Hota was brutally beaten and assaulted by a few CISF Personnel, as a result of which HC/GD S.C. Hota succumbed to his injuries. SI/Min. Md. Kayum Ansari, being a member of an Armed Force and a responsible SubOfficer failed to take cognizance of beating of HC/GD S.C. Hota through it is alleged that he was very much present at the scene of crime. Thus, he failed to prevent such a henious crime going on, in his presence. This act on the part of said SI/Min. Md. Kayum Ansari, tantamounts to "serious misconduct" and highly unbecoming or a member of an Armed force, and hence the charge.3
Article of Charge IV :
That, the said CISF No: 802020031 SI/Min. Md. Kayum Ansari of CISF Unit CCWO (D), is charged with "gross misconduct" in that, in the intervening night of 0607th July, 1999 CISF No: 734300241 HC S.C. Hota was brutally beaten by some CISF Personnel and he remained a mere spectator of the whole incident, which, it is alleged, took place infront of him. Subsequently SI/Min. Md. Kayum Ansari, suppressed the fact of beating of HC S.C. Hota by some member of CISF and above all his involvement in the beating and thus vitiated the whole enquiry and tried to mislead the Senior Officers regarding this serious incident. This act, on the part of said No: 802020031 SI/Min. Md. Kayum Ansari, tantamounts to "gross misconduct" and highly prejudicial to the good order and discipline of an Armed Force, and hence the charge.
3. An enquiry was conducted and in the enquiry report dated 08.02.2000, Charge Nos. 1 and 2 were not found proved and the enquiry officer has observed that Charge Nos. 3 and 4 stand proved in view of the 'circumstantial evidence'. A copy of the said enquiry report was given to the petitioner on 04.04.2000 and he submitted his reply on 21.04.2000. The disciplinary authority passed order of penalty on 03.10.2000 imposing the penalty of reducing the petitioner to the lower rank of ASI/Clerk until he is found fit, after a period of 5 years from the date of that order, to be restored to the rank of SI/Min. and during the suspension period between 10.07.1999 to 20.06.2000, he will not be considered on duty and he will get only subsistence allowance. Thereafter, the petitioner preferred an appeal. On 12.01.2001, the appellate authority considered the defence of the petitioner and found that only Charge No. 3 stood proved against the petitioner and accordingly, he reduced the punishment of demotion of five years to three years and other punishment deducting half salary during the period of suspension remained untouched.
44. A counteraffidavit has been filed on behalf of the respondents justifying the orders passed in the disciplinary proceeding against the petitioner. It has been submitted by the learned counsel for the respondents that the charge against the petitioner stood proved in view of the fact that he has not denied his presence at the place of incident. The enquiry against the petitioner was conducted fairly and in view of the settled law with respect to power of the High Court in exercise of jurisdiction under Article 226 to interfere with the findings recorded in the disciplinary enquiry, this is not a case which warrants interference by this Court.
5. The learned counsel for the petitioner has submitted that the petitioner was not afforded reasonable opportunity to defend himself. The enquiry officer has concluded the enquiry by recording the evidence of all the prosecution witnesses in a single sitting on 10.12.1999. Earlier also, the date for enquiry was fixed however, that was deferred by enquiry officer himself and the petitioner was not given any notice for the last sitting held by the enquiry officer. These facts have not been controverted in the counteraffidavit and in the order of the appellate authority also these facts have come on record. He has further submitted that the finding recorded by the enquiry officer is perverse. There is no evidence against the petitioner and a presumption has been raised against the petitioner that he and he alone was responsible for not averting the unfortunate incident. On these grounds he has submitted that this is a fit case which requires interference by this Court.
6. It appears that on 08.02.2000, the enquiry report was submitted by the enquiry officer in which a finding has been recorded that Charge Nos. 3 and 4 have been found proved in view of the 'circumstantial evidence'. What were those circumstances which have been taken against the petitioner, have not been 5 discussed by the enquiry officer in his detailed report. The petitioner himself has not disputed his presence at the place of incident. His plea is that his superior namely, N.N. Mathew was present when the unfortunate incident took place. He is a ministerial staff who is not supposed to disobey the orders of his superiors and he is also not suppose to take any initiative in the presence of his superiors. This is also an admitted fact that there were several other persons present when the incident took place however, none of them have been proceeded against departmentally. It is also a matter of record that this petitioner took initiative to take the injured Mr. S.C. Hota to the hospital and it has also come on the record that he has tried to intervene when Mr. Hota was being assaulted by four other inmates.
7. A perusal of the charges framed against the petitioner would disclose that those are inherently improbable and contradictory. In the first place the Charge Nos. 1 and 2 have been framed for assaulting Mr. S.C. Hota whereas Charge No. 3 was framed for not taking any action for preventing the incident and Charge No. 4 has been framed alleging that the petitioner tried to mislead the enquiry against those four inmates and he remained spectator at the place of incident.
8. The charge for assaulting Mr. Hota which are Charge Nos. 1 and 2 could not have been framed in one departmental enquiry against the petitioner along with Charge Nos. 3 and 4. Further, the finding recorded by the enquiry officer for holding Charge Nos. 3 and 4 proved against the petitioner are imaginary and without any basis. The disciplinary authority has failed to consider the specific plea taken by the petitioner. No step has been taken by the disciplinary authority to ascertain whether the petitioner and petitioner alone could have been held responsible for not preventing the unfortunate incident. There is also no finding recorded by the disciplinary authority or the enquiry officer 6 that the petitioner himself has abstained willfully and did not take any step to avert the incident.
9. The appellate authority while partly disagreeing with the order of penalty and holding the Charge No. 3 proved against the petitioner, has held , "the appellant has miserably failed to prevent/resist the assailants from assaulting Ex HC/GD S.C. Hota and his action and attitude in the whole incident was passive. He cannot absolve his responsibility by pleading that he himself had not actively taken part in assaulting the Ex HC/GD S.C. Hota and that he told the assailants not to assault him. In fact, he could never raise himself to the expected level of a responsible subofficer and exercise due command and control over the assailants who were junior to the appellant in rank. The Article of Charge No. III which has been proved against the appellant is serious in nature. However, after holding the Article of Charge No. 1, II & IV not proved I find that the quantum of punishment awarded by the disciplinary authority is of little higher side in view of the proven delinquency of the appellant at Article of Charge No. III. I am of the opinion that the punishment of reduction to the rank of ASI/Clk for a period of 03 years will meet the ends of justice. It is therefore, ordered that No. 802020031 SI/Min. Md. Kayum Ansari is reduced to the lower rank of ASI/Clk, until he is found fit after a period of 03 years, to be restored to the higher post of SI/Min. The punishment awarded by the Disciplinary Authority vide his final order dated 03.10.2000 stands modified to the extent."
Such finding recorded by the appellate authority is also perverse for the reason that without any material on record a presumption has been raised against the petitioner that he failed to raise himself to the expected level of a responsible SubInspector and exercise due command and control over the assailants.
710. The power of the High Court in exercising the jurisdiction under Article 226 of the Constitution of India has been settled by a catena of judgments of the Hon'ble Supreme Court. It has been consistently held by the Hon'ble Supreme Court that the High Court while exercising jurisdiction under Article 226 of the Constitution of India, has power to interfere with the finding recorded in domestic enquiry when such finding is based on 'no evidence' and it has also power to interfere with the order of penalty if it is excessive or grossly disproportionate to the misconduct alleged or if the order of penalty is such that no reasonable employer would have imposed on the employee. It has also been held that if the order of sentence is an outrageous defiance of logic, then the sentence would not be immune for correction. In "Council of Civil Service Unions Vs. Minister for the Civil Service", reported in (1984) 3 All ER 935, Lord Diplock observed, "Judicial review has I think developed to a stage today when, without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground I would call 'illegality', the second 'irrationality' and the third 'procedural impropriety'. That is not to say that further development on a case by case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the futurte of the principle of 'proportionality' which is recognised in the administrative law of several of our fellow members of the European Economic Community;..."
11. In the case of "Om Kumar & Ors. Vs. Union of India", reported in (2001) 2 SCC 386, the Hon'ble Supreme Court has observed, 8 "The quantum of punishment in disciplinary matters is primary for the disciplinary authority to decide and the jurisdiction of the High Courts under Article 226 of the Constitution of India or of the Administrative Tribunals is limited and is confined to the applicability of one or other of the wellknown principles known as Wednesbury principles. "
12. In "Rajit Thakur Vs. Union of India & Ors." reported in (1987) 4 SCC 611, the Hon'ble Supreme Court has held, "Judicial review generally speaking, is not directed against a decision, but is directed against the "decisionmaking process". The question of the choice and quantum of punishment is within the jurisdiction and discretion of the courtmartial. But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality, as part of the concept of judicial review, would ensure that even an aspect which is, otherwise, within the exclusive province of the courtmartial, if the decision of the court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. Irrationality and perversity are recognised grounds of judicial review."
13. In "Bhagat Ram Vs. State of Himachal Pradesh", reported in (1983) 2 SCC 442, the Hon'ble Supreme Court has held that the penalty imposed must be commensurate with the gravity of the misconduct, and that any penalty disproportionate to the gravity of the misconduct would be violative of Article 14 of the Constitution.
14. In view of the aforesaid discussions, I am of the view that the Charge No. 3 against the petitioner has also not been proved. There is no evidence on record to establish charge No. 3 against the petitioner. The Appellate Authority has raised a 9 presumption against the petitioner which in law could not have been raised against the petitioner and this is the sole basis for finding the charge proved against the petitioner, which cannot be sustained in law.
15. In view of the above, the writ petition is allowed.
(Shree Chandrashekhar, J.) Jharkhand High Court, Ranchi Dated: 05/04/2013 Manish/A.F.R.