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2009 DIGILAW 547 (UTT)

CONSTABLE ABBAS KHAN v. UNION OF INDIA

2009-11-03

SUDHANSHU DHULIA

body2009
JUDGMENT Heard Mr. T.A. Khan, Advocate for the petitioner as well as Ms. Anjali Bhargava, Standing Counsel for the Union of India/respondents. 2. A preliminary objection has been raised by the counsel for the Union of India that the petitioner has an alternative remedy of revision before the superior authority as provided in Rule 54 of the Central Industrial Security Force Rules, 2001. Rule 54 of the Central Industrial Security Force Rules reads as follows : “54. Revision. – (1) Any authority superior to the authority making the order may either on his own motion or otherwise call for the records of any inquiry and revise any order made under these rules, and may – (a) confirm, modify or set aside the order; or (b) confirm, reduce, enhance or set aside the penalty imposed by the order, or impose any penalty where no penalty has been imposed; or (c) remit the case to the authority which made the order or to any other authority directing such authority to make such further enquiry as it may consider proper in the circumstances of the case; or (d) pass such order as it may deem fit, within six months of the date of communication of the order proposed to be revised. Provided that no order imposing or enhancing any penalty shall be made by any revisioning authority unless the enrolled member of the Force concerned has been given a reasonable opportunity of making a representation against the penalty proposed and where it is proposed to impose any of the penalties specified in clauses (i) to (v) of rule 34 or to enhance the penalty imposed by the order sought to be revised to any of the penalties specified in those clauses, and if any, inquiry under rule 36 of Central Industrial Security Force Rules, 2001 has not already been held in the case no such penalty shall be imposed except after an enquiry in the manner laid down in the aforesaid rules. (2) The provisions of rule 52 relating to appeals shall apply so far as may be to such orders in revision. (3) Orders and instructions issued by the Central Government on this subject from time to time shall be applicable mutatis mutandis as applicable under Central Civil Services (Classification, Control and Appeal) Rules, 1965]. 3. However, this writ petition was admitted in the year 2003. (3) Orders and instructions issued by the Central Government on this subject from time to time shall be applicable mutatis mutandis as applicable under Central Civil Services (Classification, Control and Appeal) Rules, 1965]. 3. However, this writ petition was admitted in the year 2003. Pleadings are complete and matter is before this Court for final hearing. Although normally such matters have to be sent to the statutory authorities where the petitioner has an alternative remedy, yet in the present case when the entire pleadings have been exchanged and the matter is pending before this Court for the last six years, it would not be in the interest of justice to dismiss the petition on ground of alternative remedy. Therefore, the petition is decided on its merit. 4. Heard the counsel for the petitioner Mr. T.A. Khan as well as Standing Counsel for the Union of India Ms. Anjali Bhargava. 5. The petitioner is a constable in a para-military force, namely, Central Industrial Security Force. On 20.6.2002 when the petitioner was on duty at H.M.T., Ranibagh, Nainital, it was alleged that he indulged in a scuffle or “mar peet” with his superior officer who was a Sub-Inspector and did not obey his command. The disciplinary proceedings were initiated against the petitioner after giving him chargesheet, whereby three charges were levelled against the petitioner which are : (1) That he refused to obey the orders of Sub-Inspector Som Pal Singh and did not bring the rifle as asked for. Thus, indulged in an indisciplinary act. (2) He took up a fight with his superior officer, namely, Sub-Inspector Som Pal Singh and hit him with the belt, as a result of which Sub-Inspector Som Pal Singh sustained injuries in his head. Thus, he indulged in an indisciplinary act. (3) He was suspended from service vide order dated 20.6.2002 and thereafter he was directed to be attached with the Headquarter Qasim Pur, Aligarh. All the same, the petitioner did not comply with the orders. 6. In the enquiry which was constituted against the petitioner, all the charges against the petitioner were established. The enquiry officer had examined nine witnesses including the petitioner. The petitioner was also given an opportunity to cross examine the witnesses. All the same, the petitioner did not comply with the orders. 6. In the enquiry which was constituted against the petitioner, all the charges against the petitioner were established. The enquiry officer had examined nine witnesses including the petitioner. The petitioner was also given an opportunity to cross examine the witnesses. The Commandant, C.I.S.F., H.T.P.P. Unit, Qasim Pur in his punishment order after examining the entire evidence, which were given before the enquiry officer came to the conclusion that the charges against the petitioner stand proved. All the same, he awarded a minor punishment to the petitioner which was a reduction to a lower stage in the time scale of pay being the petitioner on a pay scale from 3425/- to 3050/- for a period of two years, with further orders of withholding the increment of the petitioner during this period with the rider that after the period of two years the decrease in the pay scale of the petitioner will not affect his future salary. 7. Since there was a provision for an appeal against the said order under Rule 46 read with Rule 52 of the Central Industrial Security Force Rules, 2001, the petitioner preferred an appeal before the appellate authority i.e. the Deputy Inspector General, North Zone. The appellate authority after considering the entire case came to the conclusion that an assault on a senior in a disciplined organization such as C.I.S.F. is a very serious offence for which the appellant deserves an exemplary punishment. However, the satisfactory service record of the petitioner/appellant was also considered by the appellate authority and thereafter under Rule 52 of the Central Industrial Security Force Rules, 2001 whereby he has got powers to increase the quantum of punishment, the appellate authority had increased the punishment. According to the enhanced punishment instead of lowering the appellant/petitioner to the last pay-scale for a period of two years, it has been made for a period of six years, without any increment, and further this period of six years will also have the effect in the future salary of the petitioner. 8. The petitioner has challenged the order of the appellate authority on the ground that the appellate authority does not have the power to enhance the punishment. Moreover, according to the petitioner, the punishment which has been awarded is severe punishment. 8. The petitioner has challenged the order of the appellate authority on the ground that the appellate authority does not have the power to enhance the punishment. Moreover, according to the petitioner, the punishment which has been awarded is severe punishment. Rule 52 of the Central Industrial Security Force Rules, 2001 reads as follows : “52. Consideration of appeals. – (1) In the case of an appeal against an order of suspension, the appellate authority shall consider whether in the light of the provisions of [rule 33] and having regard to the circumstances of the case, the order of suspension is justified or not and confirm or revoke the order accordingly. Consideration of appeals. – (1) In the case of an appeal against an order of suspension, the appellate authority shall consider whether in the light of the provisions of [rule 33] and having regard to the circumstances of the case, the order of suspension is justified or not and confirm or revoke the order accordingly. (2) In the case of an appeal against the order imposing any of the penalties specified in rule 34, or enhancing any penalty imposed under the said rules, the appellate authority shall consider – (a) whether the procedure laid down in these rules has been complied with and if not whether such non-compliance has resulted in the violation of any provisions of the Constitution of India or in the failure of justice; (b) whether the findings of the disciplinary authority are warranted on the basis of the evidence on the record; and (c) whether the penalty or the enhanced penalty imposed is excessive, or adequate, or inadequate and pass orders – (i) confirming enhancing, reducing or setting aside the penalty; or (ii) remitting the case to the authority which imposed or enhanced the penalty, or to any other authority with such directions it may deem fit in the circumstances of the case; [(iii) No order imposing enhanced penalty shall be made in any other case unless the appellant has been given a reasonable opportunity, as far as may be in accordance with the provisions of rule 37, of making a representation against such enhanced penalty.] Provided that – (i) If such enhanced penalty which the appellate authority proposes to impose is one of the penalties specified in clauses (i) to (v) of rule 34 and an inquiry under rule 36 has not already been held in the case, the appellate authority shall, subject to the provisions of rule 39, itself hold such an inquiry or direct that such inquiry be held in accordance with rule 36 and thereafter on a consideration of the proceedings of such inquiry make such orders as it may deem fit; and (ii) If the enhanced penalty which the appellate authority proposes to impose is one of the penalties specified in clauses (i) to (v) of rule 34 and an inquiry under rule 36 has already been held in the case, the appellate authority shall make such orders as it may deem fit.” 9. From a bare perusal of the Rules referred above, it is clear that the appellate authority has the powers to enhance the punishment of the disciplinary authority under Rule 52 (2)(c)(i), subject to the proviso therein. Moreover, it is clear that before imposing a minor penalty the disciplinary authority has conducted an inquiry and, therefore, the punishment which has been imposed upon the petitioner is only after conducting enquiry in which the petitioner participated and he was given full opportunity to cross the witnesses and he did so. In view of the aforesaid provision of Rule 52 where the appellate authority was having full powers to even enhance the punishment, this court finds no anomaly if the punishment has been enhanced as in view of this Court also, the Central Industrial Security Force is a disciplined force which is a para military force of the country. First and foremost requirement to be a member of this force is discipline. The findings against the petitioner are clear and categorical that he assaulted a senior officer with his belt and did not obey his orders. The punishment awarded to the petitioner is not harsh and does not suffer from any disproportionality. There is also no violation of any procedure. As such, this Court is not inclined to interfere with the orders of the appellate authority. 10. The writ petition has no merit and is dismissed. No order as to costs.