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2007 DIGILAW 389 (GAU)

Ajay Kumar Biswal v. Union of india and ors.

2007-05-31

AFTAB H.SAIKIA

body2007
1. Heard Mr. A.K. Roy, learned counsel for the petitioner as well as Mr. D.C. Chakraborty, learned Central Government Counsel representing the official respondents/Union of India and others. 2. The legality and validity of the appellate orders dated 25/27-5-2007 passed by the appellate authority /Deputy Inspector General, Central Industrial Security Force Unit, Oil, Duliajan (for short, 'CISF') as well as the final order dated 18.2.2002 rendered by the Disciplinary Authority/ Commandant, CISF has been assailed in this writ petition on the sole ground of violation of Fundamental Principle of Natural Justice. 3. The petitioner while working as Sub-Inspector (Ministerial) (for short, 'SI') in the CISF, was served upon with a Memorandum dated 14.7.2001 by the Disciplinary Authority/Commandant, proposing to hold an inquiry against him under rule 34 of Central Industrial a Security Force Act, 2001 (for short, 'the Rule') by annexing the statement of articles of charges 2 in numbers. The said articles of charges is furnished below : "ARTICLES OF CHAGE-I "Gross misconduct, indiscipline and unbecoming of a member of the Armed Force in that No. 814400018 SI/Min A.K. Biswal while posted at CISF Unit CCL Kargali received an amount of Rs. 5,000 (Rupees five thousand only) on 13.7.2000 as illegal gratification from No. 704340747 SI/Exe A. Elangovan of CISF Unit CCL Kargali for cancellation of retirement notice issued to SI/Exe A. Elangovan vide order No. E-28014/ CISF/CCL/2000/2305, dated 11-07-2000. Hence the charge" ARTICLES OF CHAGE-II "Gross misconduct, indiscipline and unbecoming of a member of the Force in that No. 814400018 SI/Min A.K. Biswal, by virtue of being Head Clerk of CISF Unit CCL Kargali, wilfully detained the case and kept the file with him when No. 883200317 SI/Min P. Kottaya detected on 13-07-2000 about non-completion of 30 years of service by SI/Exe A. Elangovan owing to 181 days EOL granted to him on earlier occasion. Further he initiated a separate notings only on 14.7.2000 with mala fide intention without the notice of concerned dealing hand to initiate further notings which he (SI/Min A.K. Biswal) had put up directly a fair letter on 14-07-2000 for the signature of Commandant regarding cancellation order of retirement notice dated 11.7.2000, which was got signed by Dy. Comdt and Commandant, CISF Unit CCL Kargali on 14.7.2000 without obtaining approval of competent authority, i.e., DIG which is contrary to the office procedure. Hence the charge." 4. Comdt and Commandant, CISF Unit CCL Kargali on 14.7.2000 without obtaining approval of competent authority, i.e., DIG which is contrary to the office procedure. Hence the charge." 4. A departmental inquiry was proceeded against the petitioner and the Inquiry Officer having regard to the materials available on record including the consideration of the evidence both oral and documentary so adduced by the parties as well as hearing upon the petitioner found g that both the charges levelled against the petitioner were not proved. 5. The Disciplinary Authority, thereafter, after thoroughly going through the inquiry report so submitted on 3.1.2002 disagreed with the findings arrived at by the Inquiry Officer and assigning the reasons of such disagreement vide order dated 19.1.2002 held that the charged officer h was not able to rebut the charges in order to proof his innocence during the course of inquiry and the inquiry report lacked discussions on the basic points. The disciplinary authority annexing the said disagreement note dated 19.1.2002 and the inquiry report dated 3.1.2002 sent a forwarding letter dated 19.1.2002 to the petitioner directing the delinquent to submit his explanation within a period not later than 15 days from the date of receipt of the same. 6. The forwarding letter dated 19.1.2002 reads as under : "Government of India Office of the Commandant/OIL(D), Central Industrial Security Force, (Ministry of Home Affiars) CISF Unit OIL Duliajan, P.O.- Duliajan (Assam) Dt.: Dibrugarh 786 602 No. V-15014/Maj-12-/AKB/Disc/2001-483 19th January, 2002 Sub: Forwarding of Enquiry Report/ Disagreement Note of Disc. Authority Reference charge Memorandum No.V-15014/Maj-12/AKB/Disc-20001/ 2342, dated 14.7.2001 and departmental enquiry conducted by Shri Ramkishan, Dy. Commandant (Moran), CISF Unit OIL, Duliajan. 2. The report of enquiry and findings of Disciplinary Authority/ disagreement note are enclosed herewith. 3. No. 814400018 SI/Min AKBiswal, CISF Unit OIL, Duliajan is hereby given an opportunity for making representation. Any representation which he may wish to make against the above enquiry report of E.G. and findings/disagreement note of Disc. Authority will be considered by the undersigned before issue of final order. Such a re-presentation, if any, should be made in writing. Sd/illegible COMMANDANT CISF UNIT OIL DULIAJAN" 7. Any representation which he may wish to make against the above enquiry report of E.G. and findings/disagreement note of Disc. Authority will be considered by the undersigned before issue of final order. Such a re-presentation, if any, should be made in writing. Sd/illegible COMMANDANT CISF UNIT OIL DULIAJAN" 7. In reply to such disagreement note of the Disciplinary Authority, the petitioner on 30.1.2002 preferred a representation against such inquiry report/disagreement note of the Disciplinary Authority, requesting to justice with a prayer that he wanted to be heard in person before the issuance of final order. 8. In response to such representation, as revealed from the records as placed before the court. The Disciplinary Authority by his order dated 1.2.2002 consider the request of personal hearing directed him to appear personally on 4.2.2002. However, on that date though the delinquent appeared, hearing could not be taken place due to preoccupation of the Disciplinary Authority in other official duties from 4.2.2002 to 8.2.2002 and accordingly the petitioner was asked to appear again on 11.2.2002 and accordingly he was heard. 9. In the order sheet revealed from the 'Commandant Request Room a Register of CISF Unit, OIL, Duliajan, it was recorded that during the course of hearing, the petitioner could not make any new point in addition to the points he had already put forward in the earlier representation dated 30.1.2002 and the Disciplinary Authority on consideration of the factual situation including materials available on b record and also having given the opportunity of hearing, the petitioner, passed the final order dated 18.2.2002 under the Rule 32(1) Schedule I read with Rule 34(v) of the Rules imposed the following punishment upon the petitioner : "...7. I, therefore, in exercise of powers conferred under rule 32(1) Schedule I read with rule 34(v) hereby award No. 814400018 SI/Min A.K. Biswal punishment of reduction of pay by one stage from Rs. 6,550 to Rs. 6,375 in the time scale of pay for a period of two years with immediate effect. It is further directed that No. 814400018 SI/Min A.K. Biswal will not earn increments of pay during the period of reduction and that on expiry of this period, the reduction will have the effect of postponing his future increments of pay.' 8. The period of suspension of No. 814400018 SI/Min A.K. Biswal from 6.7.2001 to 7.1.2002 is treated as Not on Duty for all purposes. The period of suspension of No. 814400018 SI/Min A.K. Biswal from 6.7.2001 to 7.1.2002 is treated as Not on Duty for all purposes. He will not be paid anything more than whatever he has already been paid as subsistence allowance. 9. No, 814400018 SI/Min A.K. Biswal is hereby informed that if he wished to prefer an appeal against the punishment he may submit an appeal to the Dy. Inspector General, CISF Unit, OIL, Duliajan within 30 days of receipt of this order." 10. Being aggrieved by imposition of such major punishment under the petitioner filed an appeal before the appellate authority, i.e., the Deputy Inspector General, CISF on 12.3.2002. 11. The appellate authority vide impugned order dated 27/29.4.2002 issued show-cause notice to the petitioner directing him to submit his reply within 7 days from the date of receipt of the notice and accordingly the petitioner submitted his reply on 16.5.2002. 12. The reply, so submitted by the petitioner of the show-cause notice is reproduced hereunder : “To The Dy. Inspector General, CISF Unit, OIL, Duliajan (Through proper channel) Subject: Reply to show-cause notice : Regarding Sir, Kindly refer to Show Cause Notice issued under letter No. V-18614/Maj/ AKB/OIL(D)/AP/SI/02-2371, dated 27/29-04-2002. 2. I have been issued with show-cause notice by the hon'ble DIG to enhance the penalty to that of 'Reduction of pay to the lowest stage in the time scale of pay for a period of three years with cumulative effect' vide letter under reference. In this connection it is submitted that the penalty which has already been awarded by the Disciplinary Authority on dated 18.2.2002 is unjustified and arbitrary. I had submitted an appeal petition on dated 12.3.2002 to set aside the unjustified penalty awarded by the disciplinary authority. 3. That, I seek intervention of appellate authority to set aside the unjustified penalty. I feel that the appellate authority has not considered the documents produced by me during the course of departmental enquiry and documents enclosed along with appeal petition. 4.That, it is my humble request to the hon'ble DIG to reconsider the documents which have enclosed along with my appeal petition in the name of justice at the time of issue of appellate order. Hope I will get justice from hon'ble DIG in appellate order. Yours faithfully, Sd/ (AK Biswal) Place- Dulijan Sub-Inspector/Min Date- 6.5.2002 No. 814400018 CISF Unit, OIL Dulijan" 13. Hope I will get justice from hon'ble DIG in appellate order. Yours faithfully, Sd/ (AK Biswal) Place- Dulijan Sub-Inspector/Min Date- 6.5.2002 No. 814400018 CISF Unit, OIL Dulijan" 13. The appellate authority on consideration of the materials available on record as well as upon hearing arguments of the petitioner as appellant as reflected in paragraph 6 of the impugned order, found the petitioner guilty of those articles of charges aforementioned confirmed the finding of the Disciplinary Authority but enhanced the penalty recording its reason in paragraph 6 itself and passed the order in paragraph 7 as follows : "7. I, therefore, in exercise of powers conferred under rule 52(2)(c)(I) read with rule 54(b) of CISF Rules, 2001, hereby enhance the punishment to that of "Reduction of pay in respect of No. 814400018 SI/Min A.K. Biswal to lowest stage (i.e., from Rs. 6,550 to Rs. 5,500) in the time scale of pay Rs. 5500-175-9000 for a period of 03 (three years) with immediate effect. It is further directed that he will not earn the increments of pay during the period of reduction and that on expiry of this period. The reduction will have the effect of postponing his future increments of pay." Hence this writ petition. 14. Challenging impugned appellate order as well as findings of the Disciplinary Authority, in the final order dated 18.2.2002, Mr. Roy, learned counsel for the petitioner has forcefully contended that after meticulously inspection both the impugned appellate order and final order passed by the Disciplinary Authority would go to show that it is apparent on the face of the record that no reasonable opportunity of hearing was ever afforded to the petitioner. His clear stand is that it is a case where so called opportunities of hearing was given to the petitioner, which manifestly a post decisional hearing and thus it cannot be said to be hearing in the eye of law. According to him, the final decision as regards the guilt of the petitioner against those articles of charges had already been conceived by the Disciplinary Authority and same is reflected from its disagreement note dated 19.1.2002. In such a circumstances, the hearing so afforded to him on 10.2.2002 was a farce. That apart, the appellate authority also in enhancing the punishment so imposed by the Disciplinary Authority as indicated above, no opportunity of hearing whatsoever was given to the petitioner. 15. In such a circumstances, the hearing so afforded to him on 10.2.2002 was a farce. That apart, the appellate authority also in enhancing the punishment so imposed by the Disciplinary Authority as indicated above, no opportunity of hearing whatsoever was given to the petitioner. 15. To drive his submission home. Mr. Roy he has relied upon the following decisions of the Apex Court including this High Court : (1) K.I. Shephard and others v. Union of India and others AIR 1988 SCC 686 . (2) Punjab National Bank and others v. KunjBehari Misra AIR 1998 SC 2713 . (3) Van Khuma v. State ofMizoram and others (2004) 2 GLT 571. 16. In order to resolve the issue raised herein, it would be necessary to quote the relevant provision of sub-rule 21 under rule 36 of the Rules as follows: "36. Procedure for imposing major penalties, g 21. (i) The disciplinary authority, if it is not itself the inquiring authority, may, consider the records of inquiry and record its findings on cash charge. The disciplinary authority may, for reasons to be recorded by it in writing remit the case to the inquiry authority for further inquiry and report and the inquiring authority shall thereupon proceed to hold the further inquiry according to the provisions of this rule as far as may be. (ii) The disciplinary authority shall, it disagrees with the findings of the inquiring authority on any article of charge, record its reasons for such disagreement and record its own finding on such charge if the evidence on record is sufficient for the purpose." 17. Referring to KI Shepherd's case (supra) it is firmly contended in favour of the petitioner that the Supreme Court in its clear term discarded the post decisional hearing. In paragraph-16 the Apex Court held as under : "16. We may now point out that the learned Single Judge of the Kerala High Court had proposed a post-amalgamation hearing to meet the situation but that has been vacated by the Division Bench. For the reasons we have indicated, there is no justification to think of a post-decisional hearing. On the other hand the normal rule should apply. It was also contended on behalf of the respondents that the excluded employees could now represent and their cases could be examined. We do not think that would meet the ends of justice. For the reasons we have indicated, there is no justification to think of a post-decisional hearing. On the other hand the normal rule should apply. It was also contended on behalf of the respondents that the excluded employees could now represent and their cases could be examined. We do not think that would meet the ends of justice. They have already been thrown out of employment and having been deprived of livelihood they must be facing serious difficulties. There is no justification to throw them out of employment and then give them an opportunity of representation when the requirement is that they should have the opportunity referred to above as a condition precedent to action. It is common experience that once a decision has been taken, there is a tendency to uphold it and a representation may not really yield any fruitful purpose." 18. Relying upon in KunjBehari Misra's case (supra) the learned counsel for the petitioner has contended that, the Apex Court, while dealing with the Regulation 7(2) of Punjab National Bank Officer Employees (Discipline and Appeal) Regulations, 1977 which is pari-materia with the rule 21(2) of the Rules held that although in the said provision of Regulation 7(2) it was not specifically provided that when Disciplinary Authority disagreed with the finding of the Inquiry Officer recording its own reasons to such disagreement, it did require to give an opportunity of hearing to the delinquent officer, the Principle of Natural Justice requires that the authority, which is to take a final decision and going to impose any penalty, should give an opportunity to the charged officer of hearing by permitting to file representation before it and thereafter record its own finding on the charges framed against the delinquent officer. 19. It would be necessary and apt to quote paragraph 19 of the aforesaid , case, which run as under : "19. The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7(2). As a result thereof whenever the disciplinary authority disagrees with the inquiry authority on any article of charge then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. As a result thereof whenever the disciplinary authority disagrees with the inquiry authority on any article of charge then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the inquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the inquiry officer. The principles of natural justice, as we have already observed, required the authority, which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file representation before disciplinary authority records its findings on the charges framed against the officer." 20. With reference to Van khuma's case (supra), learned counsel for the petitioner has contended that, this court in paragraph-13 held that a post decisional hearing was no hearing in the eye of law. The said paragraph reads as follows: "13-The Apex Court in the case of K.I. Shephardv. Union of India (1987) 4 SCC 431 and in the case of Hindustan Petroleum Corporation v. H.L. Trehan, (1989) 1 SCC 765 has held that post decisional hearing is no hearing in the eye of law. There can be no deprivation or curtailment of any existing right advantage or benefit enjoyed by a government servant without complying with the rules of natural justice by giving the government servant concerned an opportunity of being heard. Any arbitrary or whimsical exercise of power prejudicially affecting the existing condition of service of a government servant will offered against the provision of article 14 of the Constitution of India. The post decisional opportunity of hearing does not subserve the rules of natural justice. Once a decision has been taken, there is a tendency to uphold it and on representation may not yield any fruitful purpose." 21. On the other hand, in support of both the impugned orders, Mr. Chakraborty, learned Central Government Counsel has submitted that there was no violation of Principle of Natural Justice as it apparent from the initiation of the disciplinary proceeding itself as well as the final order of punishment so imposed by the appellate authority. On the other hand, in support of both the impugned orders, Mr. Chakraborty, learned Central Government Counsel has submitted that there was no violation of Principle of Natural Justice as it apparent from the initiation of the disciplinary proceeding itself as well as the final order of punishment so imposed by the appellate authority. It reflects that the petitioner was all along afforded with reasonable opportunity of hearing so as to defend his case properly either by filing representation or by asking him to file reply on show-cause notice and even he was given personal hearing conceding to his request, though the same was not permissible under the law. In this context, according to the learned Central Government Counsel the submissions and allegations so made by the petitioner that he was denied to opportunity of hearing so guaranteed under the Principles of Natural Justice do not hold the field. He has further contended that the competent authority was wholly and fully justified in imposing the penalty on consideration of gravity of the offence so committed by the delinquent officer after finding him guilty of the articles of charges so levelled against him. 22. We have given our anxious consideration to the extensive arguments put forward by the learned counsel for the rival parties and also meticulously examined the entire materials so made available on record including the relevant record produced on behalf of the official respondents. It transpires that when the Disciplinary Authority did not subscribe its view so expressed by the Inquiry Officer, who found both the charges levelled against the petitioner to be not proved, the authority concerned gave its disagreement note having discussed thoroughly the entire facts and circumstances of the case as well as the material evidence on record, both oral and documentary and accordingly it took the view that the findings of the Inquiry Officer could not be accepted and further observed that the charged officer was not able to revert the charges to proof his innocence during the course of inquiry. Accordingly, the disagreement note dated 19.1.2002 along with inquiry report.of the Inquiry Officer dated 3.1.2002 was sent to the petitioner to file reply vide communication dated 19,1.2002 as already quoted hereinabove. Accordingly, the disagreement note dated 19.1.2002 along with inquiry report.of the Inquiry Officer dated 3.1.2002 was sent to the petitioner to file reply vide communication dated 19,1.2002 as already quoted hereinabove. The petitioner has submitted his representation on 30,1.2002 and before passing the final order on 21.2.2002 as revealed from the record, the petitioner was also given personal hearing on 16.2,2002, thereafter, the impugned final order was passed. 23. Against such imposition of the punishment vide the final order dated 18.2.2002 petitioner preferred statutory appeal before the Deputy Inspector General, CISF Unit, OIL, Duliajan being the appellate authority who in turn issued a show-cause notice dated 27/29.4.2002 and asked the petitioner to submit reply to the show-cause within a period of 7 days. After that petitioner filed his reply to the show-cause on 16.5.2002 and eventually, on consideration of the appeal petition, case files, report of enquiry, representation to show-cause notice, record of defence of the appellant and the entire factual premises on record including the arguments put forward by the appellant, the appellate authority upheld the finding of the Disciplinary Authority. However, punishment was enhanced as already indicated above. 24. In view of such circumstances as discussed above, this court is of the view that the petitioner was given his due reasonable opportunities of hearing by the Disciplinary Authority before passing both the impugned appellate order as well as final order. Hence, the ratio as propounded in those above cited judicial authorities cannot be made applicable in the instant case, inasmuch as it is not a case of post decisional hearing at all. The record did not reflect that opportunity of hearing was given to the petitioner at post decisional stage. The facts narrated hereinabove would clearly indicate that the petitioner was given his due and adequate opportunity of hearing at every stage of the proceeding. 25. In view of what has been discussed and observed above, this court find that this writ petition is devoid of any merit, accordingly the same stands dismissed. However, there shall be no order as to costs.