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2002 DIGILAW 1018 (JHR)

Binada Nand Jha v. Union Of India

2002-09-13

VIKRAMADITYA PRASAD

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JUDGMENT Vikramaditya Prasad, J. 1. The petitioner was working as Naik in Central Industrial Security Force (hereinafter referred to as C.I.S.F. for short) and on 25.2.1994 he was on duty vide Annexure 1. The petitioner had a brilliant career in service which will be evident from Annexure 2. At the relevant time in the month of July, 1996 the petitioner was deputed on duty at New Delhi for a short period and he was suspended by the Assistant Commandant on I.S. duty vide Annexure 3 and subsequently that order was revoked vide Annexure 3/1. The petitioner was proceeded departmentally for the following charges :--Article of Charge-I "An act of gross misconduct and indiscipline in that No. 944430040 Naik B.N. Jha of CISF Unit FCI Sindary while deployed in election duty/IS duty in coy No. 204 in Delhi, abused and threatened to No. 7014117 ASI/Exe R.C. Sharma using unparliamentarily language in dining hall of CISF Unit BTPS Badarpur at about 21.00 hrs on 19.7.1996 after consuming alcohol." Article of Charge-II "An act of gross misconduct and indiscipline in that No. 944430040 Naik B.N. Jha of CISF Unit FCI Sindary, while deployed in election duty/IS duty in coy No. 204 in Delhi, manhandled/ assaulted No. 7014117 ASI/Exe R.C. Sharma using his fist at about 22.30 hrs on 19.7.1996 near Quarter Guard of CISF Unit BTPS Badarpur." 2. The matter was inquired by the Sub-Inspector who found the charges not proved, a copy of the enquiry report was handed over to the petitioner vide Annexure 5 to this writ application with a suggestion that he may file a representation/submission to the Commandant. It appears that the disciplinary authority did not agree with the findings of the inquiry authority and awarded punishment for payment of lower pay scale for a period of one year and for the date of passing of the order dated 29.7.1998 vide Annexure 6 then he was also advised by that order that he may file appeal before DIG and accordingly he filed an appeal before the DIG, the appellate authority. The appellant was dealt with under Rule 47 of the CISF Rules for above charges and appellate authority issued a show cause notice to the petitioner as to why he should not be dismissed from service vide Annexure 7. The appellant was dealt with under Rule 47 of the CISF Rules for above charges and appellate authority issued a show cause notice to the petitioner as to why he should not be dismissed from service vide Annexure 7. Thereafter it appears that after considering the cause shown by the petitioner the appellate authority passed the order modifying the proposed punishment of "Dismissal from service" that of "Removal from service with immediate effect" vide Annexure 8. Then it transpires that the petitioner filed a revision before the IG of the CISF, Eastern Sector. Head Quarters Patna and the IG vide Annexure 10 rejected the representation being devoid of merit and confirmed the order of appellant authority. 3. The question that has been raised in this writ is whether in face of the finding given by the inquiry officer that the charges were not proved, the respondent should have dropped the proceeding and should have passed the impugned orders and whether the extreme penalty of removal from service is disproportionate to guilt of the offence and whether in deciding the quantum of the punishment the past service of the petitioner could have been taken into consideration and also whether there was any legal evidence to prove the charges against the petitioner. 4. The basic question is whether the Disciplinary Authority could have disagree with the findings of the Enquiring Officer. As stated above, the enquiry officer had exonerated the petitioner from the charges. Rule 34(9) of the Central Industrial Security Force, 1969, (hereinafter referred to as the Rules for short) reads as follows : "The disciplinary authority shall, if it is not the Inquiry Authority referred to above, consider the record of the inquiry and record its findings on each charge." 5. From the aforesaid provisions it is clear that the mandate of this rule is that the disciplinary authority has to give findings of his own on each of charges. Even in case he agrees, with the findings of the Inquiry Officer. But since this power is vested in the disciplinary authority to give his own findings on each charges, it means that in exercise of this power, the disciplinary authority, in course of giving his own finding may differ with the findings of the Inquiry authority. Therefore, if the disciplinary authority differs from the finding of the inquiry authority, it is not in excess of his jurisdiction. Therefore, if the disciplinary authority differs from the finding of the inquiry authority, it is not in excess of his jurisdiction. Annexure 6 is the order passed by the commandant, who is the disciplinary authority in this case and he has given his own findings after considering the evidence, which has been discussed in that annexure. There is no provision in the Act and the Rule that in ease he differs or proposes to differ, then prior to differing he should have noticed the petitioner, though such provisions are found in some, other Acts. 6. Rule 34(10)(ii) reads as follows : "If it is of the opinion that any of the penalty specified in Clause (a) to (d) of Rule 31 should be imposed, such penalty may be imposed on the basis of evidence adduced during enquiry and it shall not be necessary to give the member of the Force any opportunity of making representation on the penalty proposed." Clause 11 of Rule 34 reads as follows : "Orders passed by the disciplinary authority shall be communicated to be member of the force who shall also be supplied with a copy of the port of the Inquiring Authority referred to above and, where the disciplinary authority is not the said Inquiry Authority, a statement of its findings together with brief reasons for disagreement, if any along with the findings of the said Inquiry Authority shall also to be supplied to that member." 7. The aforesaid two provisions are read together, Clause 11 of Rule 34 does not say that before disagreeing with the findings of the Inquiring Authority a notice be given to the proceedee that the disciplinary authority proposes to disagree with the findings of the Inquiring Authority. The only requirement is that the findings of the disciplinary authority with the reasons for disagreement along with the copy of the inquiry report shall also be supplied to the member of the force. Obvious it is that after the disciplinary authority re- examines the evidence collected during the enquiry and he disagrees with the findings of the enquiry authority and gives a reason for that finding in that report then if he provides a copy of that to the proceeding then the requirement of this rule will be satisfied. Obvious it is that after the disciplinary authority re- examines the evidence collected during the enquiry and he disagrees with the findings of the enquiry authority and gives a reason for that finding in that report then if he provides a copy of that to the proceeding then the requirement of this rule will be satisfied. Then a question will arise whether the disciplinary authority is required to give an opportunity to the proceedee for making representation on the penalty proposed. Clause 11 of Rule 34 does not say so, but the disciplinary authority can impose the penalty under Clause 10(i) of Rule 34 of the Rules, which reads as follows : "If the disciplinary authority, having regard to its findings on the charges, is of the opinion that any of the penalty specified in Clause (a) to (h) of Rule 31 should be imposed, it shall pass appropriate orders in the case." 8. In the aforesaid circumstances even in the event of disagreement the penalty is imposed by the disciplinary authority without giving any opportunity to the proceeding to make representation is not illegal. 9. On perusal of Annexure-6 it is found that in paragraph 3 the disciplinary authority no doubt has stated that he is differing with the findings of the enquiry officer but in fact he has given no reason rather what he has done that he has written two charges on which enquiry was done. This is not itself a reason for disagreeing and further more in paragraph 4, though he has not given finding on two distinct charges separately but a composite finding is there for proving both the charges. In the aforesaid circumstances, since the reason of disagreement has not been given specifically then there has been non-compliance of Section 34(ii) of the Rules. 10. In the aforesaid circumstances, since the reason of disagreement has not been given specifically then there has been non-compliance of Section 34(ii) of the Rules. 10. The appellate authority was justified in detecting these errors (vide para 5 of Annexure-7) and quashed the final order i.e. Annexure 6) and he himself served a show cause notice on the petitioner to show cause as to why he should not be given enhanced punishment of dismissal from service and after considering the show cause he has passed the impugned order i.e. the appellate order contained in Annexure-8 against which the revision was preferred vide Annexure-9 in which the punishment was confirmed Rule 47 of the Rules is the power of the appellate authority in exercise of its power the appellate authority has to look whether the compliance of all the provisions of the Acts and Rules and the Constitution have been done* and whether there has been any failure of justice. It has also been found that whether the findings are justified and whether the penalty imposed is excessive adequate or inadequate and passed order setting aside reducing confirming or enhancing penalty and remitting the case to the authority which imposed the penalty then under Rule 47-C(ii) provides to enhance the penalty, but it cannot enhance the penalty without giving an opportunity to the proceeding for making representation against enhancement. 11. A very peculiar question now arises is that when the appellate authority (vide Annexure 7) has quashed the final order of the disciplinary authority (Annexure 6) then it means that the appellate authority (vide Annexure 7) not only quashed the findings of the disciplinary authority but also quashed the punishment awarded by the disciplinary authority (vide Annexure 7). So by that Annexure 7, the punishment ceases to exist because of its having been quashed. Consequently, before the appellate authority, though he examined the matter afresh, there existed no penalty which the appellate authority had proposed to enhance. So by that Annexure 7, the punishment ceases to exist because of its having been quashed. Consequently, before the appellate authority, though he examined the matter afresh, there existed no penalty which the appellate authority had proposed to enhance. The question of enhancement only arises when something which is sought to be enhanced exists, for example if there is a retirement age then the question of its enhancement may be there, if there is a salary drawn by an employee then the question of enhancement of salary may arise but if there is neither retirement age nor salary then the question of their enhancement does not arise, So if the penalty imposed by the disciplinary authority was quashed then there was no punishment left to be enhanced. Rather it became a case that the appellate authority was himself imposing a punishment after examining the matter afresh and in the circumstance it was complete de novo examination. The question is whether the appellate authority under the aforesaid Rule could award any punishment at his own (as against the enhancement of a punishment awarded by the disciplinary authority). The aforesaid rule empowers the appellate authority to set aside, reduce, confirm or enhance the penalty but it does not empower the appellate authority to impose a penalty on its own for the first time in view of this legal proposition, the appellate authority was not competent to impose a penalty on its own and thus this penalty was in excess of exercise of the jurisdiction vested in the appellate authority under Rule 47 of the rules. 12. Consequently, there is no legal necessity of quashing the order of disciplinary authority (Annexure 6), because it was already quashed by the appellate authority vide Annexure 7 and so far Annexure 8 is concerned it cannot be sustained for simple reason that it is the excess of the power of the appellate authority and, accordingly, it has to be quashed. Consequently, there is no legal necessity of quashing the order of disciplinary authority (Annexure 6), because it was already quashed by the appellate authority vide Annexure 7 and so far Annexure 8 is concerned it cannot be sustained for simple reason that it is the excess of the power of the appellate authority and, accordingly, it has to be quashed. Annexure 9 is revisional order, the power of revisional authority is under Rule 49 Sub-clause (2) which reads as follows : "The revising authority may remit, vary or enhance the punishment impose or may order a fresh injury for the taking of further evidence in the case as it may consider necessary." Again revisional authority can enhance the penalty and the same logic will be applicable as has been discussed in the case of the appellate authority. The revisional authority has confirmed the order of the appellate authority, so as stated above, if the order of the appellate authority is beyond jurisdiction then its confirmation by the revisional authority can not make it legal. Therefore, the revisional order is also quashed. 13. On the basis of the aforesaid discussion Annexure 8, order of appellate authority and Annexure 9 the order of revisional authority are hereby quashed. Since the order of the disciplinary authority suffers from illegality it also cannot be sustained. Moreover it was quashed, though the right term would have been set aside by Annexure 7 (para 5). Consequently the petitioner is directed to be reinstated as the order of his dismissal from service has been quashed. 14. The writ is allowed with the aforesaid directions.