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2010 DIGILAW 662 (CAL)

Kanailal Kumar v. UNION OF INDIA

2010-06-18

TAPEN SEN

body2010
JUDGMENT 1. LEAVE is granted to the learned Counsel for the Petitioner to amend the cause title of these Petitions by incorporating the Senior Commandant of the Central Industrial Security Force, Unit at Farakka Super Thermal Power Project. 2. IN these two Writ Petitions, the Petitioner, Kanailal Kumar, prays for an Order commanding upon the Respondents to set aside and withdraw the charge sheet/charge Memorandum dated 15.10.2005 issued by the Senior Commandant of the Central INdustrial Security Force, Unit at Farakka Super Thermal Power Project in the District of Murshidabad and as contained in Annexure - P3. By reason by the said Memorandum, the Petitioner was said to have proved himself to be a habitual offender and was accordingly directed to show cause and to indicate as to whether he wanted personal hearing. IN Paragraph - 4 of the said Memorandum, it was indicated that if the Petitioner did not file his Cause within the period indicated above or did not present himself before the Enquiry Officer, then the matter will proceed ex parte. The Petitioner has also prayed for quashing the Order dated 17.11.2005 as contained in Annexure - 'P12' whereby and whereunder the Senior Commandant had rejected the prayer of the Petitioner for change of the Enquiry Officer and had directed him to attend the enquiry and co-operate. 3. IN the other Writ Petition being W.P. 5410(W) of 2007, the Petitioner has prayed for quashing the Order dated 20.3.2006 passed by the said Senior Commandant (Annexure - P6) whereby and whereunder yet another Memorandum was issued making similar directions. The Petitioner has also prayed for quashing the final Order dated 26.8.2006 passed by the Commandant in the capacity of the Disciplinary Authority whereby and whereunder, and in view of an Order of compulsory retirement from service with full pensionary benefits passed in another disciplinary proceeding, the Memorandum dated 15.10.2005 was ordered to be kept in abeyance with an observation that if the Petitioner was reinstated in service, then further proceedings will continue from that stage. The Petitioner has also challenged the Order dated 16.11.2006 passed by the Appellate Authority as contained in Annexure - P16 whereby and where under the Appeal of the Petitioner against the Order of compulsory retirement was rejected. 4. The Petitioner has also challenged the Order dated 16.11.2006 passed by the Appellate Authority as contained in Annexure - P16 whereby and where under the Appeal of the Petitioner against the Order of compulsory retirement was rejected. 4. FROM the charges levelled as against the Petitioner, it is evident that while one S. K. Biswas, Deputy Commandant, was briefing the B. Shift duty personnel at about 12.50 hours on 4.10.2005, the Petitioner was also present. As per the allegations, the Deputy Commandant had instructed that no one should carry any Bag (Jhola) for carrying tiffin box and water bottle during duty hours as it did not look good in uniform. It is alleged that the Petitioner disregarded and began arguing in an indisciplined manner with a loud voice and said that he would carry the Bag (Jhola). He then marched before the Senior Commandant and while the Deputy Commandant was reporting this fact to him, the Petitioner, in an indisciplined, indecent and in a high pitched voice said "MAIN C. O. SAHAB SE BAAT KAR RAHA HUN, AAP C. O. SAHAB KO KYUN PIN MARTA HAIN V According to the allegations, the Petitioner therefore had exhibited an act of gross indiscipline, misconduct and insubordination. Apart from the aforesaid, the other charge was that he was absent from duty on earlier occasions, misbehaved with an Inspector as well as a Constable and had used unparliamentary language had left the duty-place unmanned etc. Let it be recorded that these charges were mentioned under Article 2 and it shows that punishments were already inflicted upon him on earlier occasions. 5. IN the other charge sheet dated 20.3.2006, impugned in W.P. No. 5410(W) of 2007, the 1st Article of charge was gross indiscipline in not complying with an Order of the D.I.G. in connection with change of Headquarters during suspension. So far as the 2nd Article of charge is concerned, the charges were that he had refused to receive an Order of suspension, refused to receive a movement Order and refused to receive the suspension Order and movement Order. Article 3 of the said Memorandum was that he had submitted five Petitions, whose language was improper and couched in derogatory manner. Article 4 of the charges was that he had sent the Petitions directly to the Director criticizing the functioning of the Department which had been published in the Newspapers. Article 3 of the said Memorandum was that he had submitted five Petitions, whose language was improper and couched in derogatory manner. Article 4 of the charges was that he had sent the Petitions directly to the Director criticizing the functioning of the Department which had been published in the Newspapers. The Statement of Imputations have also been included in the said Memorandum. 6. THE enquiry conducted found him guilty of all the charges and the Disciplinary Authority by his Order dated 26.8.2006 imposed the punishment of compulsory retirement of service with full pensionary benefits and the Appellate Authority rejected the Appeal. A Supplementary Affidavit has been filed in Court by the Petitioner in W.P. No. 5410(W) of 2007 in which he has stated that he has not accepted any pensionary benefits till date. The said Supplementary Affidavit is taken on record. 7. THOUGH normally this Court does not interfere in matters pertaining to disciplinary proceedings unless it is satisfied that the same is patently illegal or without authority or arbitrary but in this case, this Court notices that the most important allegation against the Petitioner is behaving in an intemperate and insubordinate manner and exhibiting arrogance to his Authorities. This Court however hastens to add that these are not the language used in the Memorandum of Charges but are of this Court and which have been recorded on interpretation of the import of the Memorandums thereby incorporating the same in the manner as above. The Memorandums further show that the Petitioner had earlier been punished for other similar acts of insubordination. Being a member of disciplined force, the Authorities were right in declaring him to be a habitual offender. However, from the nature of the allegations made, this Court is of the view that perhaps the punishment of compulsory retirement is disproportionate. This Court is further of the view that one last opportunity should be given to the Petitioner and if he commits any further acts of misdemeanour including the acts mentioned in the Memorandums which are involved in this case, then no further chances should be given to him. 8. FOR the foregoing reasons, the impugned Orders including the charge sheets are set aside. Since this Court is not the Disciplinary Authority, it has no intention of substituting the punishment with a lesser punishment. 8. FOR the foregoing reasons, the impugned Orders including the charge sheets are set aside. Since this Court is not the Disciplinary Authority, it has no intention of substituting the punishment with a lesser punishment. This Court therefore remands the matter to the Disciplinary Authority to consider the desirability of imposing a lesser punishment upon the Petitioner in accordance with law and as expeditiously as possible and preferably, within a period of eight weeks from the date of receipt of a copy of this Order. The Petitioner must bear in mind that this is a last and final chance being given to him and if he repeats such misdemeanours in future, he will not be shown any further leniency. Let it further be recorded that the Petitioner has given an undertaking in Court that henceforth he shall obey the Order of the Seniors and show respect to them and shall not repeat such acts. 9. THESE Writ Petitions are accordingly disposed of. 10. SUBJECT to an application for certified copy being made and proof in support thereof being furnished, let a plain photocopy of this Order, duly counter-signed by the Assistant Registrar (Court), be handed over to the learned Counsel for the Parties, on usual undertakings.