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2004 DIGILAW 845 (JHR)

Dhirendra Nath Hembrom v. Union Of India

2004-08-20

HARI SHANKAR PRASAD

body2004
JUDGMENT Hari Shankar Prasad, J. 1. This writ has been filed for quashing Annexure-4 by which the appellant authority dismissed the appeal of the petitioner as also the An-nexure-2 by which the disciplinary authority passed an order of removal from service against the petitioner. 2. The short questions to be answered in this writ are :-- 1. Whether the enquiry was vitiated because a junior man conducted the enquiry in which senior person appeared as a witness who had made allegation on the petitioner? 2. Whether, the disciplinary authority was justified in disagreeing within the finding of the enquiry officer without giving any opportunity to the petitioner before passing such order? 3. Whether without serving any show cause notice the disciplinary authority could have passed the order of removal from service against the petitioner? 4. Whether in the circumstances the petitioner has been prejudiced? 5. Whether the appreciation of evidence Is perverse? 3. The question aforesaid arise out of the following facts-- The petitioner at the relevant time was Head Constable of the Central Industrial Security Force (Est.) and was on duty in A shift at slag dump area as incharge on 22.3.1994, S.K. Mondol, Deputy Commandant had visited the area along with his driver and noticed some people seeing them fleeing away. He also noticed that a person running away towards the opposite direction was in uniform and the officials when reached there found the petitioner there. According to the petitioner that was a thoroughfare and the people used to pass through that. The Deputy Commandant found Rs. 59 thrown where this petitioner was found standing. Thereafter the petitioner was departmentally proceeded on two charges :-- Charge No.--I "CISF No. 7513133 HC/GD D.N. Hembram is charged with gross misconduct while he was deployed for duty at slag dump area in 1st shift from 0500 hrs to 1300 hrs., at about 0810 hrs., Shri S.K. Mondal, Dy Comdt/Adm checked the area and it was found that HC/GD D.N. Hembram connived with the criminals and allowed them to move freely in his duty area." Charge No.--II "CISF No. 7513133 HC/GD D.N. Hembram is charged with gross misconduct while he was deployed for duty at slag dump area in 1st shift from 0500 hrs to 1300 hrs., at about 0810 hrs., he had thrown a sum of Rs. 59/- (Rs. 59/- (Rs. Fifty Nine Only) which was in his possession while Shri S.K. Mondal, Dy Commandant called him towards his jeep and thus, he violated the unit standing order No. 3/89 dt. 30.3.1989. Petitioner participated in the enquiry. 4. After enquiry the enquiry officer submitted the enquiry report to the disciplinary authority. The enquiry officer had found the charge No. 1 not proved and the charge No. 2 proved but the disciplinary authority on considering the materials available on records and re-appreciating the evidence as collected by the enquiry officer differed with the finding of the enquiry officer and held that both the charges were proved and consequently he passed the order petitioners removal from the service. 5. It is found that earlier the petitioner had filed a writ bearing No. 1228 of 1995 (R), which was disposed of by order dated 7.8.1995 (Annexure-3). In that writ the petitioner had raised the points that an enquiry officer had found that only the second charge had been proved so without giving any opportunity or without serving a copy of the enquiry report upon the petitioner the disciplinary authority could not have disagreed with the finding of the enquiry officer. He has also raised the question that he was not served any show cause before passing of the final order of removal by the disciplinary authority and in appeal preferred under Rule 29-A read with Schedule-II of the Central Industrial Security Force Rules the Deputy Inspector General without giving any opportunity to the petitioner to place his case and confirmed the disciplinary order. The Court allowed the writ and observed that the enquiry report should have been served on the petitioner before punishment was imposed and the matter was remitted to the Deputy Inspector General to dispose of the appeal of the petitioner afresh by passing a speaking order dealing with all the contentions raised by the petitioner in his memo of appeal. Consequent to that order the petitioner filed a fresh appeal and the impugned Annexure-4 has been passed. 6. Now the case of the respondent is that on a fresh appeal having been preferred by petitioner it was considered afresh in the light of the judgment of the High Court (supra). Consequent to that order the petitioner filed a fresh appeal and the impugned Annexure-4 has been passed. 6. Now the case of the respondent is that on a fresh appeal having been preferred by petitioner it was considered afresh in the light of the judgment of the High Court (supra). It has been stated in paragraph 18 of the writ petition that without giving any opportunity to the petitioner to make a representation against the said enquiry report, the disciplinary authority, respondent No. 3 passed the final order as contained in memo No. 5319 dated 23/28th November, 1994. The respondents have given a reply to this paragraph, in the counter affidavit where they have stated that one copy of the finding of the enquiry officer was served upon him directing to submit his final representation if any vide order No. V-15015/ CISF/CO (A)/ADM.IB/94-3733 dated 24.9.1994 and the petitioner had also submitted his final representation on 11.10.1994 which was considered by the disciplinary authority before passing the final order. Accordingly the order on penalty was passed by the disciplinary authority vide final order No. 5319 dated 23/28.11.1994. No rejoinder has been filed by the petitioner countering this claim of the respondent. Thus it is found that after the enquiry had been concluded the enquiry report was served upon the petitioner and he has filed objection though in his writ petition the petitioner says that he was prejudiced because the enquiry officer was junior man to the Commandant but nothing is shown on the record that he ever protested against that order. 7. It is stated in the impugned order that there is no rule for serving show cause notice before passing final order by the disciplinary authority. However a copy of the findings of the enquiry officer was supplied to the appellant for submission of the final representation before passing final order. 8. Rule 31 of the Central Industrial Security Force Rules, 1969 provides the nature of penalties which is in the following order :-- (a) dismissal; (b) removal; (c) compulsory retirement; (d) reduction to a lower class or grade or rank or to a lower time scale or to lower stage in the time scale of pay; ........................... ............................ Rule 34 prescribes procedure for imposing major penalties. ............................ Rule 34 prescribes procedure for imposing major penalties. Rule 34 (1)(ii) are relevant for the purpose of determination of this case which reads as follows :-- 34(10)(ii) "If it is of 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 evidences 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." Taking shelter of the aforesaid provision the respondents have argued that there was no necessity for serving show cause notice upon the proceedee before imposing the penalty as the awarded penalty fell under one of the major penalties enumerated above. 9. The learned counsel for the petitioner have relied on AIR 1963 SC 1612 and has argued that under Article 311(ii) the reasonable opportunity to show cause must have been given. If the dismissing authority differs from the findings of enquiry officer either wholly or partially, recorded in the enquiry report it is essential that the provisional conclusions reached by the dismissing authority must be stated in the notice in order to give the delinquent officer a reasonable opportunity to show cause under Article 311, (2), but in this case though the disciplinary authority differed from the finding of the enquiry officer at least in respect of charge No. I, then it was his duty to issue show cause notice before passing the final order on punishment. Referring to AIR 1970 Cal 179 it was argued that the disciplinary authority may disagree with the finding of enquiring officer but the disciplinary authority has to give notice of such disagreement to delinquent before taking final decision. 10. It is not in dispute that the disciplinary authority has differed at least in respect of charge No. 1 with the finding of the enquiry officer. In AIR 1999 SC 2407 it was held that on finding of facts recorded in enquiry, disciplinary authority may disagree with the enquiry officer giving reasons for disagreement. Such finding of disciplinary authorities cannot be interfered with by High Court. The High Court not being an appellate authority, it is not entitle to reappreciate evidence arrived at by the disciplinary authority. Such finding of disciplinary authorities cannot be interfered with by High Court. The High Court not being an appellate authority, it is not entitle to reappreciate evidence arrived at by the disciplinary authority. In AIR 1999 (6) SCC 415 it has been held that the departmental enquiry report if not supplied is inconsequential if no prejudice is caused. The petitioner not having been able to show prejudice before High Court then in that circumstances no interference can be made by the High Court. It has been noted that during the enquiry the petitioner has not made any protest against mode and manner of enquiry, he has not disputed the claim of the respondent that he was not given opportunity of filing representation and after consideration of that punishment was awarded, therefore on his mere submission that prejudice was caused it Is not substantiate from the facts particularly when the petitioner failed to file any rejoinder. This question is answered accordingly. 11. Be as it may, but all these matters relating to prejudice etc. had been raised in earlier writ and the Honble Court remitted the matter to the appellate authority. This petitioner has been given a fair and reasonable opportunity to ventilate all his grievances under the cover of the High Court orders. 12. Now the question is whether the second show cause was necessary. The sight cannot be lost of the fact that the matter was remitted back to the appellate authority and the appellate authority was directed to consider all the pleadings raised by the petitioner. This means that even the question of show cause and the non-serving of it before awarding the punishment showing the protest have to be raised by him before the appellate authority and which the appellate authority had to consider. Thus even at the appellate stage the petitioner has been given opportunity to plead against the punishment, which had been awarded. In 1998 (4) SCC 310 the Honble Apex Court has held as follows :--"When the disciplinary authority imposed penalty but the report becoming available to the charged employee before he submitted appeal. Employee had opportunity to assail enquiry report, in appeal and in writ petition filed in the High Court. No prejudice shown to have caused to the petitioner. Now supply of the report before imposition of penalty by the disciplinary authority, therefore held, did not vitiate the enquiry." 13. Employee had opportunity to assail enquiry report, in appeal and in writ petition filed in the High Court. No prejudice shown to have caused to the petitioner. Now supply of the report before imposition of penalty by the disciplinary authority, therefore held, did not vitiate the enquiry." 13. The circumstances of this case is exactly similar. Under the order of the High Court this matter was remitted to the appellate authority where the petitioner participated. Thus in the light, of this decision it is now not necessary that second show cause should have been served to the petitioner before passing the order. The decision referred to by the petitioner in the circumstances become inapplicable. All the questions are answered. 14. In the result this writ is dismissed. The petitioner, if so advised, may file revision and the revisional authority may consider whether the penalty imposed against the petitioner is commensurate with the charges.