Document Fragment View

Matching Fragments

4. It has been further stated that while the preliminary enquiry conducted by Mr. P.K. Basu, Assistant Commandant, was in process, the respondent No. 6, who had personal bias against the petitioner, deliberately started another preliminary enquiry regarding the said incident behind the back of the petitioner. The same was intended to implicate the petitioner in a departmental proceeding in order to create another impediment in his due promotion. The said respondent No. 6 submitted a report alleging supervisory failure on the part of the petitioner. On the said basis the impugned memorandum of charges dated 13.1.06 containing three articles of charges was served on the petitioner initiating major penalty proceeding under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. The Articles of charges are as follows:

Thus Shri Z.S. Sagar failed to maintain absolute devotion to duty and acted in a manner unbecoming of an officer of his rank and service in an Armed Force of the Union like CISF.

5. The petitioner has contended that the charge sheet is based on the deliberate and malicious preliminary enquiry report of the respondent No. 6 and the same is unsustainable and vitiated being violative of the rule of fair play and principle of natural justice. By implicating the petitioner in the departmental proceeding, the respondent No. 6, who is junior to the petitioner, will enjoy the rank of I.G who has been promoted by superseding the petitioner. The petitioner has also refuted the allegation of supervisory lapse on his part relating to the aforesaid incident. It has been stated that the supervisory failure on the part of the petitioner has been alleged on the plea that he failed to lodge F.I.R in spite of being informed about the aforesaid occurrence even after submission of a written compliant by the Management/officials of Durgapur Steel Plant. It has been alleged that he also failed to maintain command and control over the staff of the C.I.S.F who connived with the driver of the Dumper in the said incident and that he had deliberately sent a false report to the C.I.S.F Head Quarters in order to protect the corrupt C.I.S.F personnel. It has been submitted that the charges are baseless and malicious. The petitioner being the D.I.G was the Head of the Unit and no such duty is cast by any rule on the Head of the Unit to lodge an F.I.R in case of any theft or loss of Plant's property. In fact, the C.I.S.F is not supposed to lodge an F.I.R in the matter of theft of the Plant's property, except in case, a culprit is apprehended red banded with the material by the C.I.S.F personnel. In the instant case, the incident was complained by the Management and on their complaint, the petitioner took immediate action and directed the C.I.S.F Commandant Mr. K.K. Singh to take quick steps to seize the Dumper. The driver with the Dumper, on chase, was apprehended and were handed over to the local police. The Management thereafter lodged the formal F.I.R. In any view an F.I.R is to be lodged by a person who is acquainted with the incident and who has firstly (Sic) information and not by the D.I.G, the Head of the Unit who was himself informed by others. It has been stated that not a single F.I.R in the matter of any crime has been lodged by the D.I.G himself in Durgapur Steel Plant. The allegation of not lodging the F.I.R by the petitioner cannot be termed as any lapse on his part and the same cannot be a cause for initiating departmental proceeding. The same cannot be brought within the ambit of misconduct in the facts and circumstances of the instant case and that too on the basis of the report of the respondent No. 6 whose action is actuated with malafide. It has been stated that in the past three junior officers have been given promotion by superseding Page 2326 the petitioner on one plea or the other and this time also the petitioner is being made a victim of malafide and bias only in order to deprive him of his due promotion. The petitioner has submitted that the suppression of first preliminary enquiry conducted by Mr. P.K. Basu, the immediate transfer of the petitioner from that place debarring him from supervising the further investigation and second uncalled for preliminary enquiry by respondent No. 6, basing the charges on the report of respondent No. 6 taken together clearly indicate the deliberate conspiracy against the petitioner to illegally deprive him of his due promotion. The said facts prima facie go to demonstrate the bias and malafide against the plaintiff and the same vitiates the entire departmental proceeding including the charges levelled against the petitioner and the same are liable to be quashed by this Court.

7. The main grievance of the petitioner in this case, is that the impugned departmental proceeding is based on the second preliminary enquiry conducted by the respondent No. 6 who had personal bias against the petitioner as his promotion to the rank of the Inspector General of Police was dependant on the result of the writ petition filed by the petitioner in Calcutta High Court and in order to create further impediment in the petitioner's promotion, he has been deliberately sought to be involved in another departmental proceeding on frivolous charges. The allegation of the said respondent Page 2327 No. 6 regarding the supervisory failure on the part of the petitioner is the result of the said personal bias and the same is wholly without any basis.

8. Mr. Y.V. Giri, learned Sr. counsel appearing on behalf of the petitioner, submitted that the impugned departmental proceeding against the petitioner is vitiated on account of malice and bias as the same is grounded on the said second preliminary enquiry conducted in absence of the petitioner by the respondent No. 6. The said respondent No. 6 was promoted to the rank of the Inspector General of Police by superceding the petitioner as the petitioner's promotion order was under sealed cover and the promotion of the respondent No. 6 to the rank of the Inspector General of Police was conditional subject to the result of the writ petition pending before the Calcutta High Court being W.P No. 1504/03, the said respondent No. 6 was thus actuated with malice in creating the said second preliminary enquiry report in which supervisory failure on the part of the petitioner was baselessly alleged and as such the contention of the respondents that the second preliminary enquiry report has no bearing on the initiation of the impugned departmental proceeding has no substance. Learned Counsel submitted that none of the allegations makes out any case of alleged misconduct, yet the departmental proceeding has been initiated on the basis of the malicious report of the respondent No. 6. If the same is allowed to continue, it would be an abuse of process and blatant violation of rule of fair play and principle of natural justice. Learned Counsel submitted that the petitioner's allegation of bias is not unfounded as in the circumstances of the case, he has got conspicuous reason to complain bias and to protest against the departmental proceeding initiated against him which is likely to affect his promotion, the third time. Learned Counsel submitted that there are ample materials to prove reasonable apprehension of bias which is sufficient to vitiate the entire proceeding and that it is not necessary to prove actual bias. Learned Counsel placed reliance on a decision of the Supreme Court in Kumaon Mandal Vikas Nigam Ltd. v. Girja Shank Pant and Ors. reported in (2001) 1 SCC 182. He submitted that in the past also, the petitioner's promotion orders had been kept under sealed cover on three occasions and consequently three persons, junior to him, were promoted by superceding the petitioner and this time also, the departmental proceeding has been deliberately initiated against the petitioner only in order to deprive him of his long due promotion. Earlier, the petitioner was proceeded against the minor punishment charges and was punished. But the same was set aside by the Allahabad High Court in Civil Miscellaneous Writ Petition No. 18726/93 by order dated 18.9.06. The petitioner's allegation of malafide is not unfounded and without any basis. The petitioner, this time has been charge-sheeted for the alleged supervisory failure on his part for not lodging an F.I.R by himself. In Union of India and Ors. v. J. Ahmed , it has been held by the Apex Court that failure to maintain absolute devotion to duty and action in a manner unbecoming of an officer cannot be basis of the disciplinary proceeding unless and until there is evidence that some real act leading to such charge was done because of some improper motive or extraneous consideration. It has been further held that mere omission to do a particular act would not constitute a failure to devotion to duty. Testing on the said principle, the imputation even accepted, does not constitute any basis of disciplinary proceeding. He further referred to and relied on a decision of the Supreme Court in Zunjarrao Bhikaji Nagarkar v. Union of India and Ors. and submitted that vague and indefinite information can not be the basis of a disciplinary proceeding and that there Page 2328 must exist reasonable basis for disciplinary authority to proceed against an employee and that the failure to exercise quasi judicial power properly itself is not a misconduct as a wrong decision is subject to the judicial review. For bringing an act or omission within the ambit of misconduct, the negligence should not be of mere carelessness, indulgence or omission, but also a palpable negligence. He further referred (Sic) respondent No. 6 was biased as it is difficult to prove the state of mind of a person, but it is sufficient if there is a reasonable likelihood of bias. It has been stated that the Supreme Court in the said decision, inter alia, has held that if the decision of the Selection Board is vitiated, the final recommendation must also be vitiated and they cannot be dissociated from the selection made by the Selection Board which is the foundation of the recommendation of the U.P.S.C. Learned Counsel contended that the very basis of initiation of the proceeding in the instant case is preliminary enquiry report of respondent No. 6 which is tainted with bias. Any decision made by the concerned authority at the subsequent stage on the said basis, is also vitiated. Learned Counsel thus concluded that the departmental proceeding against the petitioner being founded on P.E of respondent No. 6 the reasonable apprehension of bias cannot be excluded and the entire proceeding is thus vitiated and is liable to be quashed by this Court for the ends of justice.