Research › Search › Judgment

Kerala High Court · body

2001 DIGILAW 498 (KER)

Rappai v. Group Commandant, C. I. S. F.

2001-09-14

K.K.DENESAN

body2001
Judgment :- K.K. Dinesan, J. While the petitioner was serving as Head Constable in C.I.S.F. Unit, DSP, Durgapur, he submitted a petition dated 16.11.1983 to Commandant (Plant), C.I.S.F. Unit, Durgapur stating that the Company Commander was indulging in corrupt practices. A preliminary enquiry into the allegations contained in the above complaint was ordered and Asst. Commandant, C.I.S.F., Unit, D.S.P., Durgapur who enquired into the matter submitted his report to Commandant concerned. It was stated in the said enquiry report that the complaints made by the petitioner were baseless and false. Thereupon, the petitioner was served with a memo of charges dated 18.12.1983 under R.35 of the Central Industrial Security Force Rules (for short CISF rules ),1969 to show cause why penalty as contemplated in the rules should not be imposed on him for his in-disciplined conduct of making unfounded allegations against his superiors. Petitioner submitted his written statement of defence denying the charges against him. The explanation of the petitioner was found unsatisfactory and Ext. P1 order dated 16.12.1983 was passed by the Commandant (Plant) D.S.P., Durgapur imposing the penalty of'Censure'. 2. Against Ext. P1, petitioner filed a statutory appeal before the Deputy Inspector General contending that he was found guilty based on the preliminary enquiry which was conducted behind his back. The Appellate Authority set aside Ext. P1 and ordered that fresh proceedings will be initiated against the petitioner as contemplated under R.34 of the CISF Rules. This order was challenged by the petitioner before the High Court of Calcutta and that Writ Petition was disposed of quashing the order of the Appellate Authority and directing fresh enquiry if at all deemed necessary to be held under 0.34 of the C.I.S.F. Rules strictly in accordance with law within a specified time limit. Thereafter, fresh charge memo was issued to the petitioner under R.34 of the CISF Rules. The charge reads as follows: "That No. 7015214 HC (GD) V.G. Rappai while functioning as CHM of 'H' Coy C.I.S.F. Unit, DSP Durgapur had submitted representation dated 16.11.83 and made grave allegation of corruption against the Coy Commanders of 'H' Coy without any solid ground/ proof. The above acts of serious misconduct and grave indiscipline on the part of No. 7015214 HC (CD) V.G. Rappai are in violation to the provisions of C.I.S.F. Act and Rules and thereby unbecoming of a good member of the Force". 3. The above acts of serious misconduct and grave indiscipline on the part of No. 7015214 HC (CD) V.G. Rappai are in violation to the provisions of C.I.S.F. Act and Rules and thereby unbecoming of a good member of the Force". 3. Against the issuance of the above charge memo, the petitioner once again approached the High Court of Calcutta. In the said Writ Petition, the department was directed to proceed with the enquiry, but passing of the final orders in the enquiry was stayed and made subject to the result of the Writ Petition. Petitioner submitted his explanation to the memo of charges denying the allegation that he had committed indiscipline and other misconduct. Thereupon an enquiry was conducted by M.S. Rai, Deputy Commandant, CISF, Duliajan as directed by the disciplinary authority. In that enquiry one witness was examined in support of the charges. Petitioner himself gave evidence in the enquiry in support of the defence. He, however, did not examine any other person as a defence witness. 4. The Enquiry Officer as per Ext. P3 report came to the conclusion that the charges framed against the petitioner stood proved and he should be held guilty. The findings in Ext. P3 are extracted below: "The fact in issue in the instant proceedings are whether the delinquent No. 7015214 HC(GD) V.G. Rappai while functioning as CHM of "H" Coy of C.I.S.F. Unit, DSP Durgapur had submitted representation dated 16.11.83 making grave allegations of corruption against the Coy Commanders and whether he could or could not substantiate the allegations against the Inspectors. No. 7401029 Sl/Stno (Now Insp/Stno D.N. Das prosecution witness has not stated any thing regarding the charges against the delinquent. He has stated that he was working as PA to the Commandant (Plant) and has acted as per his instructions. The delinquent was given ample opportunity to produce any documents or his defence witness to substantiate the allegations made by him against his superiors in his application dated 16.11.83. But he (delinquent) has not been able to produce, even a solitary piece of evidence either oral or documentary, to establish his allegation, failure on the part of the delinquent to substantiate the allegations clearly prove that the allegations made by him against his superiors was false and fabricated which is in violation of C.I.S.F. Act and Rules. But he (delinquent) has not been able to produce, even a solitary piece of evidence either oral or documentary, to establish his allegation, failure on the part of the delinquent to substantiate the allegations clearly prove that the allegations made by him against his superiors was false and fabricated which is in violation of C.I.S.F. Act and Rules. Considering the above aspect I am inclined to infer that all the charges framed against the delinquent No. 7015214 HC(GD) V.G. Rappai stands proved and I hold him guilty. Certified that the enquiry has been conducted under R.34 of C.I.S.F. Rules, 1969." Petitioner was served with Ext. P3 enquiry report and he was asked to show cause why penalty should not be imposed on him based on the report of the Enquiry Officer. Petitioner submitted his representation dated 2.3.1994 stating that there was no justification to find him guilty and to impose penalty on him. Thereafter the 5th respondent issued Ext. P5 order dated 2.4.1994 reducing the pay of the petitioner by 3 stages from Rs. 1150/- to 1075/- for a period of one year with effect from 2.4.1994. Petitioner preferred an appeal before the 2nd respondent and that appeal was dismissed by Ext. P7 dated 20.12.1994. Against Ext. P7 petitioner filed a revision before the 3rd respondent. But the 3rd respondent confirmed the order passed by the Appellate Authority by Ext. P8. He filed Ext. P9 further revision before the 4th respondent. But that revision was not entertained stating that no such remedy was available to him under the Rules. 5. Petitioner has prayed for a writ of certiorari quashing Exts. P5, P7 and P8 and for a direction to the respondents to disburse him all arrears of salary and increment due to him. 6. The main contention of the petitioner is that (i) no evidence was adduced in the enquiry to prove that the allegations made by him in his petition dated 16.11.1983 were not true and (ii) that the evidence given by him during his examination as a witness has been totally discarded by the Enquiry Officer and the disciplinary authority. The Appellate Authority and the Revisional Authority also committed the same error. 7. A counter affidavit has been filed on behalf of the respondents. The Appellate Authority and the Revisional Authority also committed the same error. 7. A counter affidavit has been filed on behalf of the respondents. In the said counter affidavit it is stated that the "orders passed by the disciplinary, appellate and revisional authority are legal and fair and not vitiated by any error of law; because these were based on the basis of evidence adduced in a duly conducted departmental enquiry wherein petitioner was afforded due opportunity to (i) take assistance of any member of the force to present his case during enquiry (ii) inspect and to take extract of relevant records, (iii) produce his defence witnesses, (iv) to cross examine the prosecution witness and present his case etc. but he neither produced any defence witnesses nor valid evidence to disprove the proven delinquency." 8. From a perusal of Ext. P3 enquiry report it is clear that the only witness who was examined in support of the charges was one D.N. Das. Regarding this the enquiry report (Ext. P3) says as follows: "No. 7401029 Sl/Stno (now Insp/Stno) D.N. Das has been examined as prosecution witness. In his statement Insp/Stno has stated that during the year 1983 the Departmental Case against No. 7015214 HC (CD) V.G. Rappai started and at that time he was working as Sl/Stno to the then Commandant (Plant) of DSP, Durgapur. The documents concerning to HC(GD) V.G. Rappai was received in the Commandant (Plant) the chargesheet was issued to HC/GD Rappai. He has further stated that he was working in the capacity of Stno to Commandant (Plant) and know anything more regarding this case. Delinquent No. 7015214 HC(GD) V.G. Rappai was given opportunity to cross examine PW Insp/Stno D.N. Das but he declined to avail the opportunity." 9. No argument is required to show that the evidence of the prosecution witness is hardly sufficient to bring home the guilt of the delinquent employee. It is true that allegations of misconduct have been made against the petitioner in the memo of charges, that is to say, he made baseless and false imputations against his superiors alleging that they were indulging in corruption. The burden of proving that the allegations made by the petitioner against his superiors were baseless and false is initially on the disciplinary authority and the said authority should discharge that burden by adducing some legally acceptable evidence. The burden of proving that the allegations made by the petitioner against his superiors were baseless and false is initially on the disciplinary authority and the said authority should discharge that burden by adducing some legally acceptable evidence. As rightly submitted by the learned counsel for the petitioner, whatever materials were collected during the preliminary enquiry conducted would not be of any avail unless those materials are brought on record in the formal enquiry as evidence with opportunity to the petitioner to controvert those materials. It is to be remembered in this context that the preliminary enquiry was conducted behind the back of the petitioner and those exparte materials cannot form the foundation of an order that finds the petitioner guilty of the charge. The sum and substance of the contention of the petitioner is that the only item of evidence to prove his alleged guilt is the evidence of D.N. Das which evidence by any stretch of imagination is hardly sufficient to bring home the guilt of the petitioner. 10. In this connection it is pertinent to refer to Ext. P4 representation submitted by the petitioner against Ext. P3 enquiry report before the disciplinary authority. The facts and circumstances elaborately stated in that representation assume importance and the disciplinary authority ought to have adverted to those facts so as to deal with the issue in the judicious manner. 11. The disciplinary authority has passed Ext. P5 in full agreement of the findings of the enquiry officer. In my view, Exts. P3 and P5 have proceeded on the wrong assumption that once charges are framed against the employee then it becomes the duty and liability of the delinquent to disprove the allegations contained in the charge memo. I have no hesitation to hold that this approach made by the respondents is basically wrong. The question of disproving the allegations by the petitioner arises only after the disciplinary authority brings relevant materials on record in the enquiry as proof of the allegations against him, in the presence of the delinquent employee and with opportunity to him. In this case, this has not been done. It follows that there is no evidence in the enquiry to prove that the petitioner is guilty of the charges. On this sole ground, the impugned orders are liable to be set aside. 12. In this case, this has not been done. It follows that there is no evidence in the enquiry to prove that the petitioner is guilty of the charges. On this sole ground, the impugned orders are liable to be set aside. 12. Regarding the second limb of the contention raised by the counsel for the petitioner, I find that that contention is also legally sustainable. All the authorities right from the Enquiry Officer upto the Revisional Authority say that the petitioner did not adduce any evidence in support of his defence. It is seen that the said finding is factually incorrect. If the authorities meant that the petitioner did not examine any other person as a witness in the enquiry, and the evidence of such witnesses alone can be taken as evidence in support of the defence, then the finding of the respondents is correct. But the petitioner submits that though he did not examine any other person as a witness on his side, he himself was examined as a witness in the enquiry. The statements given by him in chief examination were subjected to cross examination by the enquiry officer. Ext. P10 is the deposition of the petitioner thus recorded by the Enquiry Officer. None of the respondents has considered the evidence of the petitioner recorded in Ext. P10. They were under the erroneous belief that there existed no defence evidence at all. This is a glaring illegality which renders the orders passed against the petitioner invalid. 13. I therefore hold that Exts. P5, P7 and P8 are vitiated for errors apparent on the face of the record and are liable to be quashed. I do so. The petitioner shall be paid the arrears of salary and other benefits as per Rules as though no penalty was imposed on him. 14. The Original Petition is allowed. No costs.