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1988 DIGILAW 371 (PAT)

M. N. Mishra v. Union of India

1988-11-16

D.K.SEN, S.B.SINHA

body1988
JUDGMENT S. B. Sinha, J. This writ petition is directed against an order dated the 3rd November, 1986, passed by the Director General, Central Industrial Security Force (respondent no. 2) as contained in Annexure-l to the writ application whereby and whereunder the said respondent enhanced the punishment inflicted upon the petitioner from withholding of three increments with cumulative effect to that of removal from services. 2. The facts of this case, in brief, are as follows : The petitioner was appointed as a Security Guard in the Central Industrial Security Force and while posted at Durgapur he was placed under suspension by the Commandant (ADM) of the Central Industrial Security Force, Unit Durgapur Steel Plant II by an order dated the 8th July, 1981. Thereafter, by a charge-sheet issued to the petitioner containing 14 items of charges, a departmental enquiry was initiated against the petitioner. By an order dated the 12th July, 1982, passed by the disciplinary authority in the said proceeding the petitioner was dismissed from service. The petitioner challenged the said order in a writ petition filed in the Calcutta High Court and, by an order dated the 16th September, 1982, a Bench of the Calcutta High Court directed the petitioner to pursue the internal remedy by preferring a departmental appeal against the said order. 3. The petitioner thereafter filed a memorandum of appeal before the appellate authority on the 30th September, 1982, which was dismissed by an order dated the 11th February, 1983. The petitioner thereafter filed" revision application before the Director General, Central Industrial Security Force, New Delhi. 4. By an order dated the 20th February, 1984, as contained in Armexure-2 to the writ application, the order of dismissal passed against the petitioner was set aside and the authorities were directed to hold a fresh departmental proceeding all against the petitioner by appointing a new Inquiring Officer. 5. Pursuant to the said order, the petitioner joined his duty on the 10th March, 1984, but a fresh departmental enquiry in respect of the same charges was initiated against the petitioner who was again placed under 'suspension with effect from the 10th March, 1984. 6. 5. Pursuant to the said order, the petitioner joined his duty on the 10th March, 1984, but a fresh departmental enquiry in respect of the same charges was initiated against the petitioner who was again placed under 'suspension with effect from the 10th March, 1984. 6. On conclusion of the enquiry, the Inquiring Officer thereafter submitted his report where the petitioner was found not guilty in respect of seven charges, was given the benefit of doubt in respect of one charge and found guilty in respect of the rest of the six charges. 7. By an order dated the 9th November, 1984, the Commandant (Administration), Central Industrial Security Force Unit, Durgapur imposed a penalty by withholding seven increments of the salary of the petitioner. The said - order dated the 9th November, 1984, is contained in Annexure-5 to the writ application. 8. The petitioner thereafter preferred an appeal against the said order before the Deputy Inspector General, Central Industrial Security Force, Bokaro Steel City (the respondents no.3) on the 8th December, 1984. 9. By an order dated the 30th July, 1985, the respondent no. 3 as the appellate authority reduced the quantum of the punishment by modifying the order of the disciplinary authority dated the 9th November, 1984 and awarded a lessen punishment of withholding, of only three increments with cumulative effect. The said order dated the 30th July, 1985, is contained in Annexure-6 to the writ application. 10. The petitioner thereafter filed a revision application on the 23rd November, 1985, against the aforementioned order of the appellate authority before the respondent no. 2. The said revision petition is contained in Annexure7 to the writ application. 11. It appears that the respondent no. 2 being satisfied that the charges provided against the petitioner were serious in nature intended to impose a punishment of dismissal of the petitioner from service and with that end in view he issued a show cause notice to the petitioner on the 8th July, 1986, directing the petitioner to show cause as to why he should not be 10 dismissed from service. The said show cause notice is contained in Annexure-8 to the writ application. 12. On or about the 26th July, 1986, the petitioner submitted his representation showing cause against the proposed enhanced punishment. 13. The respondent no. The said show cause notice is contained in Annexure-8 to the writ application. 12. On or about the 26th July, 1986, the petitioner submitted his representation showing cause against the proposed enhanced punishment. 13. The respondent no. 2, without giving, the petitioner any further opportunity to adduce evidence and without giving him any opportunity of being heard in person or otherwise passed an order of removal from service against the petitioner by an order dated the 3rd November, 1986, and as contained in Annexure-l to the writ application. 14. Mr. Krishna Babadur Sinha, learned counsel appearing on behalf of the petitioner submitted that the order dated the 3rd November, 1986, the respondent no. 2 was violative of the mandatory provisions contained in the proviso to section 9 of Central Industrial Security Force Act, 1986 (hereinafter referred to as 'the Act' for the sake of brevity), insmuch as the petitioner was not given reasonable opportunity of being heard ill the matter of enhancement of penalty. 15. Mr. Debi Prasad, learned senior Standing Counsel appearing on behalf of the Union of India submitted on the other hand, that the respondent no. 2 having issued a show cause notice to the petitioner and the petitioner having filed his representation pursuant thereto, no other opportunity was required to be given to the petitioner in terms of rule 49 of the Central Industrial Security Force Rules, J969 (hereinafter referred to as 'the Rules' for the sake of brevity). Accordii1g to Mr. Prasad, there was no procedural infirmity in passing the impugned order dated the 3rd November, 1986, and, accordingly, this writ petition should be dismissed. 16. Section 8 of the said Act provides that subject to the provisions contained in Article 311 of the Constitution and such rules as the Central Government may make under the Act, any suspervisory officer may reduce in rank any member of the force whom he thinks remiss or negligent in the discharge of his duty, or unfit for the same or award any punishment mentioned in clause (ii) of the said provision. Section 9 of the said Act provides for appeal and revision against order imposing punishment and reads as follows :- "(I) Any member of the Force aggrieved by an order made under section 8 may, within thirty days from the date on which the order is communicated to him, prefer an appeal against the order to such authority as may be prescribed, and subject to the provisions of sub-section (3), the decision of said authority thereon shall be final ; Provided that the prescribed authority may entertain the appeal after the expiry of the said period of thirty days, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time. (2) In disposing of an appeal the prescribed authority shall follow such procedure all may be prescribed. (3) The Central Government may call for and examine the records of any proceeding under section 8 or under subsection (2) of this section and may make such inquiry or cause such inquiry to be made and subject to the provisions of this Act, may pass such orders thereon as it thinks fit: Provided that an order imposing an enhanced penalty under sub-section (2) of sub-section (3) shall be made unless a reasonable opportunity of being heard has been given to the person effected by such order." 17. In terms of section 22 of the Act, the Central Government has promulgated the said Rules. Chapters IX and X of the said Rules provide for matters relating to penalties procedure relating thereto and also appeals, revisions and petitions. 18. Rule 47 of the said Rules reads as follows :- "(1) In the case of an appeal against an order of suspension, the appellate authority shall consider whether, ill the light of the provisions of rule 29 and having regard to the circumstances of case, the order of suspension is justified or not and confirm or revoke the order accordingly. Rule 47 of the said Rules reads as follows :- "(1) In the case of an appeal against an order of suspension, the appellate authority shall consider whether, ill the light of the provisions of rule 29 and having regard to the circumstances of case, the order of suspension is justified or not and confirm or revoke the order accordingly. (2) In the case of an appeal against order imposing any of the penalties specified in rule 31, the appellate authority shall consider: - (a) Whether the procedure prescribed in these rules has been complied with, and not, whether such non-compliance has resulted in violation of any provisions of the Constitution or in failure of justice; (b) Whether the findings are justified; and (c) Whether the penalty imposed is excessive or inadequate; and pass orders (i) setting aside, reducing or enhancing the penalty; (ii) remitting the case to the authority which imposed the penalty; or, to any other authority with such direction as it may deem fit in the circumstance of the cases : Provided that- (i) the appellate authority shall not impose any enhanced penalty which neither authority nor the authority which made the order appealed against is competent in the case to impose; (ii) no order imposing an enhanced penalty shall be passed unless the appellant is given an opportunity of making any representation which he may wish to make against such enhanced penalty; and (iii) if the enhanced penalty which the appellate authority proposes to impose is one of the penalties specified in clauses (a) to (d) of rule 31 and an enquiry under rule 34 has not already been held in the case; the appellate authority shall, subject to the provisions of rule 34 itself hold such inquiry or direct that such inquiry be held and thereafter on consideration of the proceedings of such inquiry and after giving the appellant an opportunity of making any representation which he may wish to make against such penalty, pass such orders as it may deem fit." Rule 49 of the said Rules is as follows :- "(1) Any authority superior to the authority making the order may, suo moto, if it considers necessary, revise an order, original of appellate passed by such lower authority which comes to his notice within a period of one year from the date of the order. (2) The revising authority may remit, vary or enhance the punishment imposed, or may order a fresh inquiry for the taking of further evidence in the case as it may consider necessary. (3) The provisions of rule 47 relating to appeals shall apply so far as may be to such orders in revision." 19. According to Mr. Debi Prasad, in terms of the proviso (ii) to rule 47 of the said Rules, the only requirement prescribed was that the delinquent officer should be given an opportunity to make a representation before an order imposing enhanced penalty is passed and no other or further opportunity is required to be given by the disciplinary authority. 20. Mr. Krishna Bahadur Sinha, learned counsel for the petitioner, submitted that the filing of a representation by itself will not constitute a reasonable opportunity of being heard in terms of the proviso to sub-section (3) of Section 9 of the said Act. 21. In this case, it is not in dispute that the petitioner was found guilty in respect of six items of charge. There cannot also be any doubt that the appellate authority and the revisional authority are empowered to pass an order enchancing the penalty imposed upon the delinquent employee. 22. In the show cause notice issued to the petitioner by the respondent no. 2, and as contained in Annexure-8 to the writ application, he inter alia, stated as follows:- "3. On examination of the record, I find that the charges of dereliction of duty and disobedience of the orders of the superior authority have been held proved and are t09 serious to be treated so lightly and deserve serious punishment commensurate with the gravity of the proven misconduct. Dereliction of duties and violation of the orders of the superior authority are grave offences which cannot be, pardoned in a disciplined force like CISF. His pleas have no force." "4. In view of the above position and considering the gravity of the offences, the petitioner deserves to be dismissed from service. Accordingly, by virtue of the powers vested in me under Rule 49 of CISF Rules, 1969, as revisioning authority, I propose to enhance the punishment to that of dismissal from service. The petitioner is given an opportunity to show cause as to why the punishment of dismissal from service should not be imposed. Accordingly, by virtue of the powers vested in me under Rule 49 of CISF Rules, 1969, as revisioning authority, I propose to enhance the punishment to that of dismissal from service. The petitioner is given an opportunity to show cause as to why the punishment of dismissal from service should not be imposed. His reply, if any, in this regard should be submitted within 10 days from the receipt of this show cause notice. If no reply is received within the period stipulated above, it will be deemed that he has nothing to state and further orders will be passed accordingly." 23. From a bare reading of the said show cause notice, it appears that the respondent no. 2 had already made up his mind before issuing the said notice and further for all practical purposes he purported to have dismissed the revision application filed by the petitioner with one sentence. "His pleas have no force." 24. The petitioner in his revision application as contained in Annexure-7 to the writ application, inter alia contended that he was not given any chance of making a representation against the action proposed to be taken against him and as is mandatorily required in terms of rule 34 (1. O) (ii) of the said rules. He further contended that although he was inflicted with the punishment of mere witholding of three increments with cumulative effect but the disciplinary authority did not pass an order of payment of full salary to him during the period he was placed under suspension and, according to the petitioner, this part of the order passed by the disciplinary authority was not maintainable. According to the petitioner, the charges levelled against him being of a minor nature a penalty of warning would have served the purpose. 25. The petitioner had also shown cause in answer to the said notice issued to him by the respondent no. 2. The same is contained in Anncxure-9 to the writ application. 26. The respondent no. 2, while passing the impugned order dated the 3rd November, 1986, as contained in Annexure-1 to the writ application, reiterated the articles of charges against the petitioner as in the show cause notice. In para 2 of the said order, he: quoted the main point taken by the petitioner relating to non-issuance of second show cause notice to him with regard to the quantum of punishment. In para 2 of the said order, he: quoted the main point taken by the petitioner relating to non-issuance of second show cause notice to him with regard to the quantum of punishment. However, in para 3 of the order dated the 3rd November, 1986 (Annexure-I) the respondent no. 2 mentioned the fact that the petitioner was given show cause notice in terms of rule 49 of the said Rules. In para 4, he has quoted the main point taken by the petitioner in his show cause and the rest of the paragraphs are as follows ;- "5. I have again looked into the matter very carefully and find that the charge no. IX, X, XI, XII, XIII and XIV of dereliction of duty and disobedience of the orders of the superior authority have been clearly proved. In reply to the show cause notice there is nothing new that he has brought out. Moreover everything has been done in accordance with existing Rules of CISF Rules, 1969. Hence his contentions at (a) to (c) have no force." "6. I find that the delinquency committed by the delinquent clearly makes him unworthy of retention in a disciplined force. I have no doubt in mind that retention of such a member in the Force would not only put a premium on inefficiency and indiscipline, but also Dot help to establish sound traditions for the Force. I am of the opinion that the delinquency is far too serious to be let off with anything other than removal. Accordingly, I enhance that punishment to that of removal from service with effect from the date of service of this order on constable M.N. Mishra." 27. Plainly, the respondent no. 2 appears not to have applied his mind at all to the relevant facts. He has assigned no reason whatsoever in support of the said order. The very fact that he merely says that there is nothing new in his show cause without considering the effect thereof clearly shows that he did not apply his judicial mind. Further, even in his opening sentence he stated that he had again looked into the matter and found that the charges nos. IX, X, XI, XII, XIII, and XIV of dereliction of duty and disobedience of the orders of the superior authority have been clearly proved. Further, even in his opening sentence he stated that he had again looked into the matter and found that the charges nos. IX, X, XI, XII, XIII, and XIV of dereliction of duty and disobedience of the orders of the superior authority have been clearly proved. The word "again" is significant as it refers to the show cause notice dated 4/8.7.86 issued to him and as contained in Annexure-8 to the writ application which clearly demonstrates the fact that he proceeded with a pre-conceived opinion against the petitioner and apparently with a bias as against him. The respondent no. 2 while exercising his purported power under Rule 49 of the said rules was acting as a quasi judicial authority. As by reason of the impugned notice, the respondent no. 2 expressed his desire to terminate the service of the petitioner in discharge of his quasi judicial functions he ought to have given serious and detailed considerations-of the contents of the representation filed by the petitioner. 28. It is a cardinal principle of Datural justice that a justice should not only be done but manifestly seem to be done. Reference in this connection may be made to the case of Ashok Kumar Yadav and others VS. The State of Haryana and others ( AIR 1987 SC 454 ). 29. It is also a fundamental principle of law that the disciplinary authority which exercises its quasi judicial power should assign some reasons in support of its order. So far as the question of imposition of enhanced punishment is concerned, the respondent no. 2 was acting as original authority and not as a revisional authority. The Supreme Court of India recently in the case of Rain Chandar vs. Union of India ( AIR 1986 SC 1173 ) held as follows :- ".........Such being the legal position, it is of utmost importance after the Forty Second Amendment as interpreted by the majority in Tulsiram Patel's case that the Appellate Authority must not only give a hearing to the Government servant concerned but also pass a reasoned order dealing with the contentions raised by him in the appeal. We, wish to emphasize that reasoned decisions by Tribunal, such as the Railway Board in the present case, will promote public confidence in the administrative process. We, wish to emphasize that reasoned decisions by Tribunal, such as the Railway Board in the present case, will promote public confidence in the administrative process. An objective consideration is possible only if the delinquent servant is heard and given a chance to satisfy the Authority regarding the final orders that may be passed on his appeal. Considerations of fair play and justice also require that such a personal hearing should be given." 30. Although in terms of rule 49 of the said Rules, a delinquent officer, against whom enhancement of penalty is proposed, is required to file representation only but the proviso to section 9 of the Act appears to be absolutely dear under which a person going to be affected by an order imposing an enhanced penalty should be given reasonable opportunity of being heard. It is true that in terms of sub-section (3) of Section 9 of the said Act, a revision would have been maintainable before the Central Government but the power of revision in terms of rule 49 of the said Rules is upon an authority superior to the authority making the order who can take a suo motu action if it considers necessary. The scope of the revisional jurisdiction under the aforementioned two provisions are different and the jurisdiction of the respective authorities operate in different situations. 31. Mr. Sinha submitted that under Rule 49 of the said Rules, the respondent no. 2 could only exercise his jurisdiction suo motu and as such the impugned order dated the 3rd November, 1986, being Annexure-l to the writ application, was illegal and without jurisdiction as the respondent no. 2 could not have passed the same on the basis of the application filed by the petitioner. Although the contention of Mr. Sinha may have substance but as the petitioner himself invited a decision from respondent no. 2 in the matter by filing a revision petition before him and thus Submitted himself to the jurisdiction of the respondent no.2, in my opinion, the petitioner cannot be permitted to challenge the authority of respondent no. 2 at a later stage. However, it may be contended that by reason of the rule making power, the Central Government could not have created another forum for revision when one forum had already been created under the Act. 2 at a later stage. However, it may be contended that by reason of the rule making power, the Central Government could not have created another forum for revision when one forum had already been created under the Act. But, in the instant case, it is not necessary to consider the question further as this writ petition can be disposed of on other points. 32. In our considered opinion, as the power of the Appellate Authority and the Revisional Authority relating to enchancement of punishment is the same, the Revisioual Authority must also give a reasonable opportunity of being heard to the delinquent officer before an enhanced punishment is imposed upon him. If the provision of rule 49 of the said Rules is not interpreted in that manner, the same may be liable to be declared ultra vires the said Act. 33. In Ram Cbander's case (wpra), the Supreme Court quoted with approval the judgment of the Privy Council in High Commissioner for India vs. I. M. Lall (AIR 1948 PC 121) as also its earlier decision in Khem Chand vs. Unioo of India ( AIR 1958 SC 300 ). In the said case, the Supreme Court stated the law in the following terms :- "15. In I.M. Lall's case, Lord Thakerton while interpreting the words 'a reasonable opportunity of showing cause against the action proposed to be taken in regard to him' in Sub-so (3) of S. 240 of the Government of India Act, 1935, speaking for the Judicial Committee of the Privy Council, observed; "In the opinion of their Lordships, no action is proposed within the meaning of the sub-section until a definite conclusion has been come to on the charges, and the actual punishment to follow is provisionally determined on. Before (Prior to ?) that stage,-the Charges - are unproved and the suggested punishments are merely hypothetical." (Emphasis supplied). That very distinguished Judge went on to say : "It is on that stage reached that the Statute gives the civil servant the opportunity for which sub-so (3) makes provision). And then added: "Their Lordships would only add that they see no difficulty in the statutory 0PPortumty being a reasonably afforded at more then one stage. That very distinguished Judge went on to say : "It is on that stage reached that the Statute gives the civil servant the opportunity for which sub-so (3) makes provision). And then added: "Their Lordships would only add that they see no difficulty in the statutory 0PPortumty being a reasonably afforded at more then one stage. If the civil servant has been through an enquiry under Rule 55, it would not be reasonable that be should ask for a repetition of that stage, if duly carried out but that would not exhaust his statutory right, and be would still be entitled to represent against the punishment proposed as the result of the findings of the inquiry." "17. In Khem Chand's case ( AIR 1958 SC 300 ), the Court following the judgment of the Privy Council in I.M. Lall's case came to the same conclusion from the word 'reasonable'. The Government servant must not only be given ail opportunity but such opportunity must be a reasonable one. In order that the opportunity to show cause against the proposed action may be regarded as a reasonable one, it is quite necessary that the Government servant should have the opportunity to say, if that be his case, that he has not been guilty of any misconduct to merit any punishment at all and also that the particular punishment proposed to be given is much more drastic and severe than he deserves. It referred to the above passages from the judgment of the privy council in I. M. Lall's case and observed : "Further opportunity is to be given to the Government servant after the charges have been established against him and a particular punishment is prop05ed to be meted out to him." In short, the substance of the protection provided by Rules, like R. 55 referred to above, was bodily lifted out of the rules and together with an additional opportunity embodied in S. 240(3) of the Government of India Act, 1935 so as to give statutory protection to the Government servant had now been incorporated in Art. 311 (2) so as to convert the protection into a constitutional safeguard. The legal consequence, therefore, was that: "At the second stage, the delinquent Government servant was, therefore, entitled to contend - (a) That the inquiry at which the findings were arrived at was vitiated by a breach of the principles of natural justice. The legal consequence, therefore, was that: "At the second stage, the delinquent Government servant was, therefore, entitled to contend - (a) That the inquiry at which the findings were arrived at was vitiated by a breach of the principles of natural justice. (b) That the findings were not supported by the evidence in the proceedings, or that the evidence against him was not worthy of credence or that he was not guilty of any misconduct to merit any punishment at all. (c) That punishment proposed would not be properly awarded on the finding arrived at, that is to say, the charges proved did not require the particular punishment proposed to be awarded." 34. In view of the aforesaid authoritative pronouncements of the Supreme Court and the Privy Council, there cannot be any doubt that the word 'reasonable opportunity' means something more than a mere representation. 35. For the reasons as stated hereinbefore, it appears to me that the impugned order dated the 3rd November, 1986, is vitiated as- (a) the respondent no. 2 proceeded in the matter with a pre-conceived opinion and closed mind ; (b) the said impugned order is not supported by any reason recorded by the respondent no. 2 ; (c) the respondent no. 2 failed to consider the defence raised by the petitioner and the same was not dealt with at all in the impugned order; (d) a reasonable opportunity of being heard within the meaning of the said Act was not given to the petitioner; and (e) the respondent no. 2 acting as a quasi judicial authority under rule 49 of the said Rules failed to take into account that both the first disciplinary authority and the appellate authority had awarded -to the petitioner a minor punishment of withholding of increments of salary and he interfered with the same lightly. 36. Accordingly, the order dated the 3rd November, 1986, passed by the resp0ndent no. 2 as contained in Annexure-1 to the writ petition is quashed and the matter is remitted to the said respondent for a fresh decision in accordance with law. Let a writ of certiorari be issued. 37. In the facts and circumstances, there will, however, be no order as to costs.