Sumindra Prasad Singh v. Commandant C I S F — 1995 DIGILAW 251 (KER)

JUDGMENT 1. Petitioner was a Constable in the Central Industrial Security Force. In March, 1993 disciplinary proceedings were initiated against the petitioner and he was placed under suspension. The allegation was that he was found sleeping while on duty. While the departmental enquiry was in progress he was again served with a memo of charge alleging that he was absent from regimental duty without permission. Third respondent was appointed as the enquiry officer. One Naik T.M. Nair acted as the defence assistant of the petitioner in the enquiry proceedings. Petitioner alleges that, during the pendency of the enquiry proceedings, the 3rd respondent and the Deputy Commandant B.M. Tiwari sought assistance of the petitioner in filing a complaint against Naik T.M. Nair. Petitioner was not willing to depose any falsehood. He was found guilty in the enquiry proceedings and penalty was imposed on him. The suspension was revoked with effect from 21st July 1993. Again on 22nd July 1993 petitioner was placed under suspension alleging that the petitioner dishonestly and fraudulently made a medical advice chit by forging the signature of an Assistant Medical Officer attached to C.P.T. Hospital. The allegation against the petitioner was that on 24th June 1993, A.S.I. Surender Lal and H.G /G.D. P. Unnikrishnan found the petitioner with unshaven face. On seeing the petitioner, they asked why he had not shaven his face and growing beard. It is alleged that he had got shaving excuse from Dr. Joy of the C.P.T. Hospital. They demanded certificate from the petitioner and the petitioner gave them a chit stating that it was issued by the said Doctor. It is alleged that the chit produced by the petitioner was found to be forged one and disciplinary proceedings were initiated against the petitioner. Petitioner was served with a memo of charge alleging that he produced a false chit alleging that it was issued by Dr. Joy and that the chit was false and it was produced with a view to cheat his superiors. One V. Jayadhar, Inspector of the C.I.S.F. was appointed as the enquiry officer. Enquiry was partly conducted by V. Jayadhar. Later, Jayadhar was detailed for internal security duty and in his place 3rd respondent was appointed as the enquiry officer. Petitioner alleges that the 3rd respondent was enmically disposed towards him and, therefore, he shall not be the enquiry officer. One V. Jayadhar, Inspector of the C.I.S.F. was appointed as the enquiry officer. Enquiry was partly conducted by V. Jayadhar. Later, Jayadhar was detailed for internal security duty and in his place 3rd respondent was appointed as the enquiry officer. Petitioner alleges that the 3rd respondent was enmically disposed towards him and, therefore, he shall not be the enquiry officer. Petitioner also alleges that the 3rd respondent directed the petitioner to give up his defence assistant Naik T. M. Nair. Petitioner further alleges that Naik T.M. Nair was told not to act as defence assistant to the petitioner. The enquiry continued and the petitioner was found guilty. He was imposed with a punishment of reduction of his pay by two stages. Petitioner then filed appeal before the 2nd respondent Deputy Inspector General C.I.S.F., Southern Zone. The 2nd respondent on receiving the appeal issued show cause notice to the petitioner as to why the penalty shall not be enhanced to that of removal from service. Petitioner submitted his explanation to the show cause notice and after hearing the appeal, by Ext. P39 order, the proposal to remove him from service was confirmed and the petitioner was ordered to be removed from service. Petitioner challenges Ext. P34 enquiry report, Ext. P-36 the first order of punishment by the initial authority and Ext. P-39 the appellate order. 2. A detailed counter affidavit is filed by respondents 1, 2 and 4. The allegations in the Original Petition are denied. It is contended that the Original Petition is not maintainable as the petitioner has not exhausted his statutory remedy of appeal against the order of removal to the next higher authority, namely, Inspector General, South West Sector, C.I.S.F., Bombay as provided under R.42 of C.I.S.F. Rules. It is submitted that an appeal would lie against Ext. P-39 order. It is also pointed out that even alter exhausting the statutory remedy of appeal against Ext. P-39, the petitioner can file a revision before the Central Government. The denial of natural justice to the petitioner in the disciplinary proceedings is denied. Petitioner was under suspension with effect from 27th March 1993 and he was again served with another memo of charge for not attending the regimental duty. It was during the period of suspension he acted fraudulently and produced a false medical advice chit. Initially V. Jayadhar was appointed as the enquiry officer. Petitioner was under suspension with effect from 27th March 1993 and he was again served with another memo of charge for not attending the regimental duty. It was during the period of suspension he acted fraudulently and produced a false medical advice chit. Initially V. Jayadhar was appointed as the enquiry officer. Petitioner had raised objection against the conduct of enquiry. Petitioner's defence assistant did not turn up for enquiry on 22nd September 1993, the date on which the enquiry was posted. Later Jayadhar was detailed for internal security duty and the 3rd respondent was appointed as the enquiry officer. It was not with any mala fide intention that the 3rd respondent was appointed as the enquiry officer. The enquiry officer had not instructed the petitioner to remove his defence assistant. Third respondent never told the defence assistant to withdraw from the enquiry. The enquiry was done properly. It was proved that the petitioner had produced false chit on 24th June 1993. The plea of the petitioner that the 3rd respondent was biased against him is totally baseless. The gravity of his misconduct and magnitude of his involvement was considered for imposing punishment on the petitioner. The appellate authority found that the punishment awarded by the disciplinary authority did not commensurate with the grave misconduct committed by the petitioner. 3. I heard petitioner's counsel and Standing Counsel for the respondents. The first contention urged by counsel for the respondents is that an appeal is provided against Ext. P-39 order under R.42(2) of the Central Industrial Security Force Rules, 1969. According to petitioner's counsel no second appeal is provided in the instant case for the reason that the penalty imposed by the appellate authority is higher than what was within the competence of the authority which imposed the original penalty. R.42(2) of the C.I.S.F. Rules, 1969 reads as follows: "There shall be no second appeal. But when the appellate authority Imposes a penalty higher than the one appealed against, an appeal shall lie to the authority next superior to the appellate authority only if the penalty imposed by the appellate authority is higher than what was within the competence of the authority which imposed the original penalty" (Emphasis supplied). 4. In the instant case, initial order was passed by the first respondent the Commandant of the C.I.S.F., Cochin Port Trust. Petitioner preferred an appeal before the 2nd respondent. 4. In the instant case, initial order was passed by the first respondent the Commandant of the C.I.S.F., Cochin Port Trust. Petitioner preferred an appeal before the 2nd respondent. Admittedly, the first respondent could have imposed a penalty of removal of the petitioner from service, but he had chosen to impose a penalty of reduction of pay by two stages. As per R.42(2) normally there shall be a second appeal when the appellate authority imposes a penalty higher than the one appealed against. In this case, that is satisfied in the sense that the appellate authority, the second respondent, has imposed a penalty which is higher than the penalty imposed by the initial authority. But the last Limb of R.42(2) says that a second appeal will lie only if the penalty imposed by the appellate authority is higher than what was within the competence of the authority, which imposed the original penalty. This was an amendment added subsequent to the original R.42(2). As per the earlier unamended R.42(2) a second appeal would lie against the order of the appellate authority in a case where the appellate authority imposes a penalty higher than the one appealed against, but by virtue of the amendment a second appeal could be filed only if the penalty imposed by the appellate authority is higher than what was within the competence of the authority which imposed the original penalty. In the instant case, the Commandant was competent himself to impose a penalty of removal from service and the 2nd respondent, the appellate authority, by imposing a penalty of removal from service, has not imposed a penalty higher than what was within the competence of the authority which imposed the original penalty. R.42(2) of the C.I.I.S.F. Rules is clear and unambiguous and a reading of the rule reveals that in a case of this nature no second appeal would lie against the order of the appellate authority. 5. Learned counsel for the respondents submitted that Ext. P-39 order passed by the appellate authority is to be treated as original order as the order passed by the first respondent merged with this order and in that sense an appeal would lie against Ext. P-39. I am unable to accept this contention. Of course, the petitioner could have filed a revision against the impugned order. P-39 order passed by the appellate authority is to be treated as original order as the order passed by the first respondent merged with this order and in that sense an appeal would lie against Ext. P-39. I am unable to accept this contention. Of course, the petitioner could have filed a revision against the impugned order. But, the Courts have repeatedly held that the right to file a revision is not normally treated on par with right of appeal and it is not necessary that the petitioner has exhausted that remedy before invoking the writ jurisdiction under Art.226 of the Constitution. So, 1 do not think that the Original Petition is not maintainable for the reasons put forward by respondents, especially in a case where the petitioner alleges violation of the principles of natural justice. 6. Counsel for the petitioner elaborately argued that there was violation of the principles of natural justice on the ground that the enquiry was not conducted properly by the 3rd respondent and that there was bias on his part towards the petitioner. Petitioner based this contention on the ground that the third respondent was purposely appointed as the enquiry officer. Initially one Jayadhar was the enquiry officer and he was detailed for some other duty and in his place 3rd respondent was appointed. According to the petitioner, the 3rd respondent had requested the petitioner to file false complaint against Naik T. M. Nair and as the petitioner was not willing to lend his helping hand for this illegal act, the 3rd respondent entertained ill will towards the petitioner. In order to substantiate this contention petitioner relied on some of the representations submitted by him to the. disciplinary authority. Petitioner in Ext. P-11, stated that the whole proceedings were initiated because of a conspiracy by the superior officers and in Ext. P-17 letter also be alleged that if the enquiry is conducted by the officers of the Cochin Unit it will not be free and lair. In Ext. P-20, petitioner alleged that there was bias on the part of the Commandant and the enquiry officer. Petitioner has also alleged in Ext. P-28 letter that the enquiry officer refused the assistance of Naik T. M. Nair when the petitioner himself was giving evidence as a defence witness. In the letter dated 19th October 1993, the case of the petitioner was that the Dy. Comdt. Petitioner has also alleged in Ext. P-28 letter that the enquiry officer refused the assistance of Naik T. M. Nair when the petitioner himself was giving evidence as a defence witness. In the letter dated 19th October 1993, the case of the petitioner was that the Dy. Comdt. Shri B. M. Tivari told the petitioner that if he was not giving a complaint against Naik T. M. Nair the Commandant would see that the petitioner was booked by hook or crook. Based on these correspondence it is contended by the petitioner that there was bias on the part of the enquiry officer. 7. Learned counsel for the petitioner relied on series of decisions of the Supreme Court to substantiate the contention that there was bias on the part of the enquiry officer and the disciplinary authority. One of the earliest decisions on the subject of bias was by His Lordship Justice Gajendragadkar as he then was in a case reported in Manak Lal v. Dr. Prem Chand AIR 1957 S. C. 425. That was a case in which the appellant was an advocate of the Rajasthan High Court. Disciplinary proceedings were taken against the appellant for allegedly committing professional misconduct. The Tribunal came to the conclusion that the appellant was guilty of professional misconduct in having got a false stay order written by the clerk by improper means and thereby he managed to take and illegal and undue advantage for his clients and therefore deserves to be punished. The appellant contended that "C' the Chairman of the Commission had filed Vakalath on behalf of the opposite parties in proceedings under S.145 Cr. P. C. and had in fact argued the case and in that the appellant had acted as a pleader for applicants in S.145 proceedings and out of that proceedings the misconduct proceedings arose. The Supreme Court held thus: "The constitution of the Tribunal suffered from a serious infirmity in that C was appointed as member of the Tribunal and in fact acted as its Chairman. The Supreme Court held thus: "The constitution of the Tribunal suffered from a serious infirmity in that C was appointed as member of the Tribunal and in fact acted as its Chairman. Actual proof of prejudice in such cases may make the appellant's case stronger but such proof is not necessary in order that the appellant should effectively raise the argument that the tribunal was not properly constituted." But in that case the Supreme Court did not accept the contention of the appellant for the reason that he did not raise his objection before the Tribunal at the early stage. 8. In another decision reported in A. K. Kraipak v. Union of India AIR 1970 SC 150 the Supreme Court held that mere suspicion of bias is not sufficient. There must be reasonable likelihood of bias and in deciding the question of bias we have to take into consideration human probabilities and ordinary course of human conduct. That was a case for selection to the Indian Forest Service and one Naquishbund was the Chief Conservator of Forest of the Jammu and Kashmir. He was one of the persons seeking selection to the Indian Forest service. Naquishbund was one of the members of the selection board. Even though he did not participated in the deliberations of the Committee when his name was considered, the Supreme Court was of the view that: "the very fact that he was a member of the selection board must have had its own impact on the decision of the selection board. Further, admittedly he participated in the deliberations of the selection board when the claims of his rivals particularly that of bias was considered." 9. As regards the test to be applied regarding apparent bias the House of Lords in the decision reported in R. V. Cough 1993 (2) All ER 724 laid down the test to be applied when a decision is impugned on the grounds of apparent bias. The House was concerned to resolve a pre-existing conflict on the authorities, some of which favoured a test of whether there was a real danger of bias by the decision-maker, others a test of whether a reasonable person might reasonably suspect bias on the decision-maker's part. R. V. Cough has resolved this conflict in favour of the more stringent test, that of a real danger of bias. Lord Goff's speech are to the following effect: "........ R. V. Cough has resolved this conflict in favour of the more stringent test, that of a real danger of bias. Lord Goff's speech are to the following effect: "........ bias is such an insidious thing that, even though a person may in good faith believed that he was acting impartially, his mind may unconsciously be affected by bias .... the approach of the law has been .... to look at the relevant circumstances and to consider whether there is such a degree of possibility of bias that the decision in question should not be allowed to stand .... it is not necessary that actual bias should be proved; and in practice the inquiry is directed to the question whether there was such a degree of possibility of bias on the part of the tribunal that the court will not allow the decision to stand .... since .... the court investigates the actual circumstances, knowledge of such circumstances as are found by the court must be imputed to the reasonable man .... if, in the circumstances of the case as ascertained by the court, it appears that there was a real likelihood, in the sense of a real possibility, of bias ..... justice requires that decision should not be allowed to stand." 10. When any decision is challenged on the ground of apparent bias the court must ascertain the relevant facts and circumstances and to consider the matter through the eyes of a reasonable man and decide whether having regard to those circumstances, there was a real danger of injustice being occurred as a result of bias. Injustice will have occurred as a result of bias if 'the decision-maker unfairly regarded with disfavour' the case of a party to the issue under consideration by him. "When considering whether there is a real danger of injustice, the court is giving effect to the maxim that justice must not only be done but be seen to be done, but does so by examining all the material available and giving its conclusion on that material. It is not necessary for the applicants to demonstrate a real possibility that the decision would have been different but for bias; what must be established is real danger of bias having affected the decision in the sense of having caused the decision-maker, albeit unconsciously, to weigh the competing; contentions, and so decide the merits, unfairly. It is not necessary for the applicants to demonstrate a real possibility that the decision would have been different but for bias; what must be established is real danger of bias having affected the decision in the sense of having caused the decision-maker, albeit unconsciously, to weigh the competing; contentions, and so decide the merits, unfairly. If the court having done so is satisfied that there is no danger of the alleged bias having created injustice then the application to quash the decision should be dismissed. 11. In the instant case, I do not think that there was any cause for serious prejudice to the petitioner. It is true that the petitioner raised objections regarding the enquiry. He had also raised objection regarding the change of the enquiry officer. But the allegations made by the petitioner are not factually proved by any cogent evidence, petitioner's definite case is that be was asked to give false evidence against Naik T. M. Nair. But it remains only as an allegation and it is not supported by any proof. The fact that the enquiry officer searched for additional evidence and collected evidence behind the back of the petitioner is not of much consequence as it was only a departmental enquiry. In the facts and circumstances of the case the allegation of the petitioner that there was bias on the part of the enquiry officer and disciplinary authority cannot be accepted. 12. Learned counsel for the petitioner elaborately argued that there was total absence of evidence against the petitioner. It is argued that the enquiry officer went wrong in holding that the petitioner produced a false excuse chit alleging that it was issued by Dr, Joy. I do not propose to go into this question as in a proceedings of this nature a re-appraisal of the evidence is not contemplated. It has been so held by the Supreme Court in State of Maharashtra and another v. Madhukar Narayan 1991 (1) SCC 57 . 13. The next question to be considered is whether the punishment inflicted on the petitioner is arbitrary or illegal on the principle of proportionality. Loard Diplock in G. C. H. O. case (Counsel of Civil Services Unions v. Minister for the Civil Service 1985 AC 374) held that the doctrine of proportionality is now considered as a ground for judicial review of administrative action. Loard Diplock in G. C. H. O. case (Counsel of Civil Services Unions v. Minister for the Civil Service 1985 AC 374) held that the doctrine of proportionality is now considered as a ground for judicial review of administrative action. This doctrine was originally recognised in Germany and has recently been adopted in France and other member states of the European Economic Community. This principle requires authorities to employ means which are appropriate to the accomplishment of a given law, and which are not in themselves incapable of implementation or unlawful. This principle requires that the least harmful of more than one available means be adopted to achieve a particular objective. In an illuminating Essay by Jeffrey Jowell and Anthony Lester O.C. in the caption "Proportionality: Neither Novel Nor Dangerous" it is stated: "It is well established in the Criminal law that the punishment must fit the crime in the sense of being proportionate to the gravity of the offence. The notion of an excessive condition of bail, of an excessive fine, or of a punishment which is cruel or unusual are deeply rooted in English attitudes towards impermissible state action: that the means employed should be reasonably related or proportionate to the actions of the state or public authorities. In relation to violent offences against the person, it is trite law that force used in self defence must bear proportionate relation to the danger posed by the attack." (See New Directions in Judicial Review. Current Legal Problems at page-60). This doctrine of proportionality was accepted by the Supreme Court as a ground for judicial review in the decision reported in Ranjith Thakur v. Union of India AIR 1987 SC 2386 . That was a case where a delinquent officer was subjected to Court Martial Proceedings and sentenced to imprisonment for refusing to eat food disobeying the lawful command issued by his superior officer. His Lordship Justice Venkatachaliah as he then was held: "The doctrine of proportionality, as part of the concept of judicial review would ensure that even on an aspect which is otherwise within the exclusive province of the Court Martial, 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." 14. Irrationality and perversity are recognised grounds of judicial review." 14. The petitioner also placed reliance in a decision reported in Bhagat Ram v. State of H. P. AIR 1983 SC 454 wherein it has been held: "It is equally true 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 Art.14 of the Constitution." 15. In Sardar Singh v. Union of India AIR 1992 SC 417 the Supreme Court set aside the punishment of 3 months rigorous imprisonment and dismissal from service being severe, arbitrary and violative of S.72 of the Army Act. That was a case where an Army Jawan was found to be in possession of 7 bottles of rum within area under prohibition while going to home town. He was having permit to carry 5 bottles. 16. Applying the above principles to the case in hand, I am of the view that the punishment imposed on the petitioner is arbitrary and excessive. The allegation is that the petitioner had not shaven his face and he did not have the excuse from the doctor and when the petitioner was asked he produced a false chit. Even if the petitioner had produced a false chit, violation, if any, committed by the petitioner is that he had not shaven his face. It may be noticed that the petitioner was under suspension and he was not attending to official duty in the strict sense and the disciplinary authority after having considered the relevant aspects came to the conclusion that he should have been visited with a penalty of reduction of pay by two stages in time-scale of pay of Rs. 825-15-900-EB-20-1200 for a period of two years with effect from 1st April, 1994 and appellate authority issued a show-cause notice and enhanced the punishment of and removed the petitioner from service alleging that it was necessary to inflict such a punishment to maintain strict discipline. I am of the view that the punishment was more harmful than the one to achieve a particular objective. Therefore, I quash the impugned order passed by the appellate authority and restore the punishment imposed on the petitioner by Ext. P-36 order by the Commandant. I am of the view that the punishment was more harmful than the one to achieve a particular objective. Therefore, I quash the impugned order passed by the appellate authority and restore the punishment imposed on the petitioner by Ext. P-36 order by the Commandant. In the result, respondents are directed to reinstate the petitioner forthwith and he shall be paid salary and allowances for the period he was out of service. Original Petition is disposed of as above.