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2003 DIGILAW 108 (CAL)

Badal Pal v. Union of India

2003-03-10

Bhaskar Bhattacharya

body2003
JUDGMENT Bhaskar Bhattacharya, J. By this writ application, the writ petitioner, an employee of the Central Industrial Security Force ("CISF"), has challenged appellate order being No. V-11014/87/2000/ Appl./AD-II/BP/2000/7754 dated December 30, 2000 passed by the Deputy Inspector General NEZ and served upon the petitioner on July 12, 2001 upholding the final order being Memo No. 15014/9/ONGS (J)/DISC/BP/2000-934 dated September 25, 2000. 2. It appears from the record that the respondents/authorities had issued the following charged memorandum under Rule 34 of the CISF Rules, 1961 : "That No. 814250042 HC/GD Badal Pal of CISF Unit ONGC, Jorhat (HQ Coy) unauthorisedly entered into the house of W/Cr. P. Guha in his absence and he caught hold hand of Smt. Mithu Guha, wife of W/Cr. P. Guha and forcibly took her inside his house and attempted to molest her on 10.6.2000 at 19-00 hrs. and again on 12.6.2000 at 13 hrs. The above acts on the part of No. 814250042 HC/GD Badal Pal constitute gross misconduct, indiscipline and highly unbecoming of a member of Armed Force like CISF." 3. It further appears from the record that the following statement of imputation of alleged misconduct or misbehavour in support of the aforesaid article of charge was given to the petitioner : "That No. 814250042 HC/GD Badal Pal (U/S) of CISF Unit ONGC, Jorhat was residing at the 2nd Floor Quarter in the building of Old Welfare Centre, Rajabari, Jorhat where W/Cr. P. Guha is also staying. On 09-6-2000 W/Cr. P. Guha was admitted in the Hospital due to his chest pain. On 10.6.2000 at about 19-00 hrs. HC/GD Badal Pal entered inside the house of W/Cr. P. Guha seeing his wife Smt. Mithu Guha alone in her house. He caught hold the hand of Smt. Mithu Guha, wife of W/Cr. P. Guha, forcibly took her to his house and indulged for dishonest act and asked her to compromise with him. Somehow, Smt. Mithu Guha managed to escape from the grip of HC/GD Badal Pal and came to her Quarter. On 12-6-2000 at about 13-00 hrs. HC/GD Badal Pal again entered into the house of W/Cr. P. Guha and committed similar offence with the wife of W/Cr. P. Guha. But he could not succeed because she shouted for help and immediately HC/GD Badal Pal ran away from the house. On 12-6-2000 at about 13-00 hrs. HC/GD Badal Pal again entered into the house of W/Cr. P. Guha and committed similar offence with the wife of W/Cr. P. Guha. But he could not succeed because she shouted for help and immediately HC/GD Badal Pal ran away from the house. This act on the part of No. 814250042 HC/GD Badal Pal constitute gross misconduct, indiscipline and conduct highly unbecoming of a member of Armed Force like CISF." (Emphasis supplied) 4. The petitioner replied to the aforesaid charge. The respondents/authorities made departmental enquiry wherein Smt. Mithu Guha, her husband and three other employees gave evidence in support of charge while the petitioner alone deposed disputing the aforesaid allegation. Ultimately the disciplinary authority found him guilty and dismissed him from service. Being dissatisfied the petitioner preferred appeal but the same also ended in dismissal. 5. There is no dispute that the said Smt. Mithu Guha did not lodge any complaint before the police authority and no criminal case in accordance with Code of Criminal Procedure has been even initiated against the petitioner and as such, no question of medical examination of the petitioner and the said Smt. Mithu Guha arose. Even in the departmental proceeding there was no eyewitness of the alleged incident and all the four witnesses deposed what they had heard from Smt. Mithu Guha. When the aforesaid writ application came up for hearing, this court before inviting affidavit from respondents wanted to hear this writ application on a preliminary point whether under such circumstances the respondents/authorities were competent to initiate disciplinary proceeding and ultimately dismiss the petitioner by making enquiry about the alleged offence which is a criminal one within the meaning of section 366 of Indian Penal Code and conclusively triable by a Court of Sessions. Accordingly, I have heard Mr. Roy appearing on behalf of the petitioner and Mrs. Sengupta appearing on behalf of the respondents on the aforesaid preliminary question. At that time, I specifically made it clear that in the event this question is answered against the petitioner, then direction will be given for filing affidavit for the purpose of scrutinizing the order of dismissal on merit. 6. Roy appearing on behalf of the petitioner and Mrs. Sengupta appearing on behalf of the respondents on the aforesaid preliminary question. At that time, I specifically made it clear that in the event this question is answered against the petitioner, then direction will be given for filing affidavit for the purpose of scrutinizing the order of dismissal on merit. 6. Therefore, at this stage, the only question that arises for determination is whether in the absence of any specific law authorizing the respondents/authorities to investigate a particular alleged misconduct of the petitioner against the wife of a co-employee, which is otherwise an offence triable by a Court of Sessions alone and which is also not connected with the petitioner's duty as enrolled member of the force, the respondents/ authorities could adjudicate such question and find the petitioner guilty of such offence. 7. In order to appreciate such question, the following provisions of Central Industrial Security Force Act, 1968 ("Act") and Central Industrial Security Force Rules, 1969 (then in force) ("Rules") are reproduced below : "8. Dismissal, removal, etc., of members of the Force.-Subject to the provisions of Article 311 of the Constitution and to such rules as the Central Government may make under this Act, any supervisory officer may- (i) dismiss, remove, order for compulsory retirement of, or reduce in rank, any enrolled member of the Force whom he thinks remiss or negligent in the discharge of his duty, or unfit for the same; or (ii) award any one or more of the following punishments to any enrolled member of the Force who discharges his duty in a careless or negligent manner, to who by any act of his own renders himself unfit for the discharge thereof, namely:- (a) fine to any amount no exceeding seven day's pay or reduction in pay scale; (b) drill, extra guard, fatigue or other duty; (c) removal from any office of distinction or deprivation of any special emolument; (d) withholding of increment of pay with or without cumulative effect; (e) withholding or promotion; (f) censure." "10. Duties of members of the Force.-It shall be the duty of every member of the Force- (a) promptly to obey and execute all orders lawfully issued to him by his superior authority; (b) to protect and safeguard the industrial undertakings owned by the Central Government together with such other installations as are specified by that Government to be vital for the carrying on of work in those undertakings, situate within the local limits of his jurisdiction : Provided that before any installation not owned or controlled by the Central Government is so specified, the Central Government shall obtain the consent of the Government of the State in which such installation is situate; (c) to protect and safeguard such other industrial undertakings and installations for the protection and security of which he is deputed under section 14; (d) to protect and safeguard the employees of the industrial undertakings and installations referred to in clauses (b) and (c); (e) to do any other act conducive to the better protection and security of the industrial undertakings and installations referred to in clauses (b) and (c) and the employees referred to in clause (d); (f) to provide technical consultancy services relating to security of any private sector industrial establishments under section 14A; (g) to protect and safeguard the organisations owned or funded by the Government and the employees of such organisations as may be entrusted to him by the Central Government; (h) any other duty which may be entrusted to him by the Central Government from time to time." "11. Power to arrest without warrant.-(1) Any member of the Force may, without any order from a Magistrate and without a warrant, arrest- (i) any person who voluntarily causes hurt to, or attempts voluntarily to cause hurt to, or wrongfully restrains or attempts wrongfully to restrain or assaults, threatens to assault, or uses, or threatens or attempts to use, criminal force to any employee, referred to in clause (d) of section 10, or to him or any other member of the Force, in discharge of his duty as such employee or in execution of his duty as such member, as the case may be, or with intent to prevent or to deter him from discharging his duty as such member, or in consequence of anything done or attempted to be done by him in the lawful discharge of his duty as such member; (ii) any person who has been concerned in, or against when a reasonable suspicion exists of his having been concerned in, or who is bound taking precautions to conceal his presence under circumstances which afford reason to believe that he is taking such precautions with a view to committing a cognizable offence which relates to property belonging to, or in the premises of, any industrial undertaking referred to in clauses (b) and (c) of section 10, or relates to the other installations or to property in the premises of the other installations, referred to in those clauses; (iii) any person who commits or attempts to commit a cognizable offence which involves or which is likely to involve danger to the life of any person engaged in carrying on any work relating to any undertaking or installations referred to in clauses (b) and (c) of section 10. (2) If any person is found trespassing on the premises of any industrial undertaking referred to in clauses (b) and (c) of section 10, he may, without prejudice to any other proceedings which may be taken against him, be removed from such premises by an member of the Force." "12. (2) If any person is found trespassing on the premises of any industrial undertaking referred to in clauses (b) and (c) of section 10, he may, without prejudice to any other proceedings which may be taken against him, be removed from such premises by an member of the Force." "12. Power to search without warrant.-(1) Whenever any member of the Force, not below the prescribed rank, has reasons to believe that any such offence as is referred to in section 11 has been or is being committed and that a search warrant cannot be obtained without affording the offender an opportunity of escaping or of concealing evidence of the offence, he may detain the offender and search his person and belongings forthwith and if he thinks proper, arrest any person whom he has reason to believe to have committed the offence. (2) The provisions of the [Code of Criminal Procedure, 1973 (2 of 1974)], relating to searches under that Code shall, so far as may be, apply to searches under this section. "13. Procedure to be followed after arrest.-Any member of the force making an arrest under this Act, shall without unnecessary delay, make over the person so arrested to a police officer, or, in the absence of a police officer take such person or cause him to be taken to the nearest police station together with a report of the circumstances occasioning the arrest." "18. Penalties for neglect of duty, etc.-(1) Without prejudice to the provisions contained in section 8, every member of the Force who shall be guilty of any violation of duty or willful breach or neglect of any rule or regulation or lawful order made by a supervisory officer, or who shall withdraw from the duties of his office without permission, or who, being absent on leave, fails, without reasonable cause, to report himself for duty on the expiration of the leave, or who engages himself without authority in any employment other than his duty as a member of the Force, or who shall be guilty of cowardice, may be taken into Force custody and shall, on conviction, be punished with imprisonment for a term which may extend to one year. (2) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, an offence punishable under this section shall be cognizable and non-bailable. (2) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, an offence punishable under this section shall be cognizable and non-bailable. (2A) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, the Central Government may invest the Commandant with the powers of a Magistrate of any class for the purpose of inquiring into or trying any offence committed by an enrolled member of the Force and punishable under this Act, or any offence committed by an enrolled member of the Force against the person or property of another member of the Force: Provided that- (i) when the offender is on leave or absents from duty; or (ii) when the offence is not connected with the offender's duties as an enrolled member of the Force; or (iii) when it is a petty offence even if connected with the offender's duties as an enrolled member of the Force; or (iv) when, for reasons to be recorded in writing, it is not practicable for the Commandant invested with the powers of a Magistrate to enquire into or try an offence, the offence may, if the prescribed authority within the limits of whose jurisdiction the offence has been committed so requires, be inquired into or tried by an ordinary criminal court having jurisdiction in the matter. (3) Nothing contained in this section shall be construed to prevent any member of the Force from being prosecuted under any other law for any offence made punishable by that law, or for being liable under any such law to any other or higher penalty or punishment than is provided for such offence by this section: Provided that no person shall be punished twice for the same offence." "Rule 34. Procedure for imposing major penalties.-(1) Without prejudice to the provisions of the Public Servants (Inquiries) Act, 1850 (37 of 1850), no order imposing on a member of the Force any of the penalties specified in clauses (a) to (d) of Rule 31 shall be passed except after an inquiry held as far as may be in the manner hereinafter provided. (2) The disciplinary authority shall frame definite charges on the basis of the allegations on which the inquiry is proposed to be held. (2) The disciplinary authority shall frame definite charges on the basis of the allegations on which the inquiry is proposed to be held. Such charges together with a statement of the allegations on which they are based, shall be communicated in writing to the member of the Force and he shall be required to submit, within such time as may be specified by the disciplinary authority, a written statement of his defence and also to state whether he desires to be heard in person. Explanation.-In this sub-rule and in sub-rule (3), the expression the disciplinary authority' shall include the authority competent under these rules to impose upon the member of the Force any of the penalties specified in clauses (e) to (h) of Rule 31. (3) The member of the Force shall for the purpose of preparing his defence be permitted to inspect and take extracts from such official records as he may specify, provided that such permission may be refused if, for reasons to be recorded in writing, in the opinion of the disciplinary authority, such records are not relevant for the purpose or it is against the public interest to allow him access thereto. (4) On receipt of the written statement of defence or if no such statement is received within the time specified, the disciplinary authority may itself inquire into such of the charges as are not admitted or if it considers it necessary so to do appoint a supervisory officer or an officer not lower in rank than an inspector, or a Board of Inquiry as the Inquiring Authority to conduct the inquiry. (5) The member of the Force so charged may be permitted by the Inquiry Authority referred to above to present his case with the assistance of any other member of the Force approved by it. (6) The Inquiring Authority referred to above shall, in the course of the inquiry, consider such documentary evidence and take such oral evidence as may be relevant or material in regard to the charges. The member of the Force shall be entitled to cross-examine witnesses examined in support of the charges, to give evidence in person and to produce defence witnesses. If the said Inquiring Authority declines to examine any witness on the ground that his evidence is not relevant or material, it shall record its reasons for the same in writing. The member of the Force shall be entitled to cross-examine witnesses examined in support of the charges, to give evidence in person and to produce defence witnesses. If the said Inquiring Authority declines to examine any witness on the ground that his evidence is not relevant or material, it shall record its reasons for the same in writing. (7) At the conclusion of the inquiry, the Inquiring Authority referred to above shall prepare a report of the inquiry, recording its findings on each of the charges together with reasons therefor. If in the opinion of such authority, the proceedings of the inquiry establish charges different from those originally framed, it may record its findings on such charges, provided that findings on such charges, shall not be recorded unless the members so charged has admitted the facts constituting the said charges or has had an opportunity of finding himself against them. (8) The record of the inquiry shall include- (i) the charges framed against the member of the Force and the statement of allegations furnished to him under sub-rule (2) of this rule; (ii) the written statement of defence, if any, submitted by the member of the Force; (iii) the oral evidence taken in the course of the inquiry; (iv) the documentary evidence considered in the course of the inquiry; (v) the orders, if any, made by the disciplinary authority and the Inquiring Authority referred to above in regard to the inquiry; and (vi) a report setting out the findings on each charge and the reasons therefor. (9) The disciplinary authority shall, if it is not the Inquiring Authority referred to above, consider the record of the inquiry and record its findings on each charge. (10)(i) If the disciplinary authority, having regard to its findings on the charges, is of the opinion that any of the penalties specified in clauses (a) to (h) of Rule 31 should be imposed, it shall pass appropriate orders in the case. (ii) If it is of the opinion that any of the penalties specified in clauses-(a) to (d) of Rule 31 should be imposed, such penalty may be imposed on the basis of evidence adduced during inquiry and it shall not be necessary to give the member of the Force any opportunity of making representation on the penalty proposed. (ii) If it is of the opinion that any of the penalties specified in clauses-(a) to (d) of Rule 31 should be imposed, such penalty may be imposed on the basis of evidence adduced during inquiry and it shall not be necessary to give the member of the Force any opportunity of making representation on the penalty proposed. (11) Orders passed by the disciplinary authority shall be communicated to the member of the Force who shall also be supplied with a copy of the report of the Inquiring Authority referred to above and, where the disciplinary authority is not the said Inquiring Authority, a statement of its findings together with brief reasons for disagreement, if any, along with the findings of the said Inquiring Authority shall also be supplied to that member.” "Rule 37. Special procedure in certain cases.-Notwithstanding anything contained in Rule 34, Rule 35 or Rule 36, where a penalty is imposed on a member of the Force- (a) on the ground of conduct which had led to his conviction on a criminal charge; or (b) where the disciplinary authority is satisfied, for reasons to be recorded in writing, that it is not reasonably practicable to follow the procedure prescribed in the said rules. The disciplinary authority may consider the circumstances of the case and pass such orders thereon as it deems fit. A member of the Force who has been convicted to rigorous imprisonment on a criminal charge shall be dismissed from service. In such case no evidence need be given to prove the charge. Only a notice shall be given to the party charged proposing the punishment of dismissal for his having been convicted to rigorous imprisonment and asking him to explain as to why the proposed punishment of dismissal should not be imposed." 8. The provisions contained in sections 362 and 366 of the Indian Penal Code are also quoted hereunder as those are relevant:- "362. Whoever by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person." "366. The provisions contained in sections 362 and 366 of the Indian Penal Code are also quoted hereunder as those are relevant:- "362. Whoever by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person." "366. Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall also be punishable as aforesaid." 9. After going through the aforesaid provisions it is apparent that the allegations levelled against the petitioner, if found to be true, clearly come within the purview of section 366 of the Indian Penal Code and according to the provisions contained in the Code of Criminal Procedure, the same is a cognizable offence not compoundable at the instance of the parties and is solely triable by Court of Sessions. According to section 4 of the Code of Criminal Procedure, unless specifically excluded by any law, any offence committed by a person within the territory of this country should be dealt with in accordance with the mandate contained in the Code. According to section 4 of the Code of Criminal Procedure, unless specifically excluded by any law, any offence committed by a person within the territory of this country should be dealt with in accordance with the mandate contained in the Code. However, sections 11 and 12 of the Act authorise any member of the force to search and arrest any person committing a cognizable offence in the premises of any industrial undertaking under the circumstances mentioned therein but section 13 of the Act casts a duty upon the member of the force making an arrest under the Act to make over the persons so arrested to a police officer or in the absence of a police officer to take such person or cause him to be taken to the nearest police station together with a report of the circumstances occasioning the arrest. It is, therefore, obvious that thereafter the procedure provided in the Code of Criminal Procedure should be followed in the matter of trial of such person. 10. Section 18(1) of the Act however, points out certain circumstances under which a member of the force may be taken in to "Force Custody" and be punished on conviction with imprisonment for a term which may extend to a period of one year. 11. Sub-section (2A) of the said section 18 at the same time, gives power to the Central Government to invest the Commandant with the power of a Magistrate of any class for the purpose of inquiring into or trying any offence committed by an enrolled member of the Force which are punishable under the Act or any offence committed by such enrolled member against the person or property of another member of the Force. 12. Sub-section (3) of section 18 provides that nothing contained in section 18 should be construed to prevent any member of Force being prosecuted under any other law for any offence punishable by that law or for being liable under any such law to any other or higher penalty or punishment than is provided for such offence by this section with the limitation that no person shall be punished twice for the same offence. 13. 13. The allegations made against the petitioner being an offence of abduction with the intention of sexual intercourse with the wife of another member of the Force do not come within the purview of section 18 and it is not in dispute that the respondents have not taken recourse to section 18 for punishing the petitioner for committing such offence. 14. Section 8 of the Act gives power to the Supervisory Officer to dismiss an enrolled member of the Force whom he thinks remiss or negligent in discharge of his duty or unfit for the same. The present case is not one of remissness or negligence in the discharge of the duties of the petitioner mentioned in section 10 of the Act. The petitioner however, can be declared unfit for the duty if he is found guilty of charge resulting in conviction. Therefore, so long the petitioner is not found to be so guilty by the competent Court, the Supervisory Officer cannot consider whether any penalty should be imposed against the petitioner on such ground. 15. It appears from Rule 37 of the Rules that where any penalty is imposed on an enrolled member of the force on the ground of conduct which has led to his conviction on a criminal charge, the employer is not required to comply with the formalities of Rule 34 to Rule 36. The Supreme Court in the case of Union of India vs. Tulsiram Patel, reported in AIR 1985 SC 1416 , while considering the last paragraph of Rule 37 quoted earlier observed that those are clumsily worded and make little sense. According to the Apex Court, to provide that a member of CISF who has been convicted to rigorous imprisonment on a criminal charge "shall be dismissed from service" and at the same time to provide that "only a notice shall be given to the party charged proposing the punishment of dismissal for his having been convicted to rigorous imprisonment and asking him to explain why the proposed punishment of dismissal should not be imposed" is a contradiction in terms. If either of these provisions are taken as mandatory, the Supreme Court proceeded, it would be void as violating the second proviso to Article 311(2) of the Constitution because the penalty contemplated by second proviso to Article 311(2) is not the penalty of dismissal only but also of removal or reduction in rank and to make it mandatory to issue a notice to show cause against the proposed penalty of dismissal would equally violate the second proviso because it would whittle down the exclusionary effect of the second proviso. The Supreme Court thus concluded that both these provisions in the last paragraph of Rule 37 must be read as directory and not mandatory. 16. Therefore, so long the petitioner has not faced trial before the criminal Court leading to conviction, the supervisory officer could not even consider whether any action should be taken against the petitioner in terms of section 8 of the Act. 17. I am, therefore, of the view that once a cognizable offence is alleged to have been committed by a member of the force against the wife of another member of the force in the official quarter, the respondents by virtue of the power conferred under sections 11 and 12 of the Act can at the most arrest and search such employee but thereafter he is required to be handed over to the police for trial and if the employee is convicted in the long run, such fact can afford a ground of dismissal on the ground that he becomes unfit for the discharge of his duty. 18. Although Mrs. Sengupta, the learned counsel appearing on behalf of the respondents vehemently contended that her clients are entitled to adjudicate such question in a departmental proceeding notwithstanding the fact that no complaint has even been lodged before police, I am not at all convinced by such submission. The respondents/authorities in the present case have outrageously usurped the jurisdiction of a Sessions Court, investigated the alleged offence and found him guilty. Mrs. Sengupta could not produce any law enabling her clients to adjudicate such question in a disciplinary proceeding. If the contention of Mrs. The respondents/authorities in the present case have outrageously usurped the jurisdiction of a Sessions Court, investigated the alleged offence and found him guilty. Mrs. Sengupta could not produce any law enabling her clients to adjudicate such question in a disciplinary proceeding. If the contention of Mrs. Sengupta is accepted, then one can legitimately argue that the respondents/authorities are also entitled to try even an allegation of murder and pronounce that an employee is guilty of murder and consequently dismiss him from service although no criminal case has at all been initiated in accordance with the Criminal Procedure Code. 19. I thus find that on the face of materials on record the respondents/authorities totally acted without jurisdiction in probing the allegation of "abduction with the intention of committing sexual intercourse with the wife of another member of the Force" which is not connected with the petitioner's duties enumerated in section 10 of the Act. The order passed by the respondents/authorities being without jurisdiction I set aside the order of dismissal and direct the respondent to reinstate him within a month with full benefits of the service. Therefore, this is a case where there is no necessity of giving direction for filing affidavits and this case is disposed on the pure question of law mentioned above. 20. In the facts and circumstances, there will be, however, no order as to costs.