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2011 DIGILAW 958 (MP)

Padam Singh Shakya v. Union Of India

2011-08-18

R.S.JHA

body2011
JUDGMENT ( 1. ) THE petitioner has filed this petition being aggrieved by the order dated 23-9-2008 whereby the petitioner, who was working as a constable in the Central Industrial Security Force and was posted at BHEL, Bhopal, has been punished with compulsory retirement and also against the order dated 23-2-2009 by which the appeal filed by him against the order of compulsory retirement has been dismissed. ( 2. ) THE brief facts leading to the filing of the present petition are that the petitioner, who was working as a constable in the Central Industrial Security Force and was posted at BHEL, Bhopal, was suspended by order dated 11-4-2008 and a charge-sheet was issued to him on 15-4-2008 on the ground that he had permitted his sister-in-law, Smt. Soni Shakya, to stay along with his family in the Government quarter allotted to him without obtaining prior permission from the concerned authorities and introduced her to constable Veeraiya Hosmat with the intention of establishing a matrimonial relationship between them as a result of which the said Smt. Soni Shakya started visiting the house of constable Veeraiya Hosmat. It was alleged that the aforesaid conduct of the petitioner, who was a member of the armed forces, amounted to a misconduct and accordingly, an enquiry was initiated against him. The petitioner submitted his reply and adduced oral and documentary evidence on the basis of which an enquiry report was submitted on 8-8-2008 by the Enquiry Officer giving a finding to the effect that the charge levelled against the petitioner stood proved. A notice on the enquiry report was issued to the petitioner to which he filed his reply on 13-9-2008 and, thereafter, by the impugned order dated 23-9-2008 a punishment of compulsory retirement was imposed upon the petitioner. The petitioner, being aggrieved by the order of compulsory retirement filed an appeal before the appellate authority on 1-10- 2008 which also stood dismissed vide impugned order dated 23-2-2009 being aggrieved by which the petitioner has filed the present petition. ( 3. ) THE learned counsel for the petitioner submits that the petitioner's sister- in-law is within the definition of a "close relative" under the Rules relating to House Rent and City Compensatory Allowance issued by the authorities. ( 3. ) THE learned counsel for the petitioner submits that the petitioner's sister- in-law is within the definition of a "close relative" under the Rules relating to House Rent and City Compensatory Allowance issued by the authorities. It is submitted that Rule 8 therein specifically enumerates the close relatives who can live in a quarter allotted to a Government servant and sub-rule (iii) thereof clearly mentions "sister-in-law". It is, therefore, submitted that Smt. Soni Shakya, being a close relative of the petitioner, was entitled to stay in the Government quarter allotted to the petitioner and, therefore, the petitioner did not commit any misconduct. It is further submitted that the authorities, while punishing the petitioner with compulsory retirement have totally exonerated constable Veeraiya Hosmat, who, it is alleged developed some kind of a relationship with the sister- in-law of the petitioner. It is urged that in such circumstances, as no misconduct was committed by the petitioner, the aforesaid proceedings against him deserve to be quashed more so as the petitioner has been victimized and discriminated against inasmuch as while no proceedings were initiated against the constable Veeraiya Hosmat, the petitioner has been singled out and removed from service. ( 4. ) AT the outset, the learned counsel appearing for the respondents, raised a preliminary objection as to the maintainability of the writ petition on account of availability of an alternative efficacious remedy against the appellate order before the revisional authority under the provisions of section 9 of the Central Government Industrial Security Act, 1968. It is further submitted by the learned counsel for the respondents that as per the rules governing the petitioner's services he was required to strictly comply with the directions and instructions issued by the superior authorities. It is submitted that the petitioner's superior authorities vide the instructions dated 2-4-2008 and 4-4-2008 had clearly instructed all persons in the unit to obtain prior permission from the superior authority prior before permitting a relative to reside with them in the Government quarter. It is submitted that the petitioner's superior authorities vide the instructions dated 2-4-2008 and 4-4-2008 had clearly instructed all persons in the unit to obtain prior permission from the superior authority prior before permitting a relative to reside with them in the Government quarter. It is stated that as the petitioner did not obtain prior permission before permitting Smt. Soni Shakya, his sister-in-law to stay with him and a categorical finding of fact to this effect has been recorded by the Enquiry Officer in the enquiry which has been affirmed by the disciplinary authority and appellate authority, no fault can be found with the order imposing punishment upon the petitioner as the misconduct alleged against him stood proved. ( 5. ) I have heard the learned counsel appearing for the parties at length and gone through the record of the case. ( 6. ) IN the instant case as the learned counsel for the petitioner has categorically stated that he does not wish to press the petition on the factual aspects of the matter but has confined his arguments only to the aspect as to whether a misconduct, per se, is made out against the petitioner on the basis of the charge itself even if it is admitted the preliminary objection as to the maintainability of the petition though sustainable, is ignored at this stage. Having heard the learned counsel for the parties and on a perusal of Rule 8 of the House Rent and City Compensatory Allowance Rules, a copy of which has been filed along with the petition as Annexure P-12, it is clear that "sister-in- law" has specifically been mentioned in Rule 8(iii) as a close relative who can live in the Government quarter along with a Government servant. It is also clear from a perusal of Annexure R-2 filed by the respondents along with the return that paragraph 2 of the instructions dated 2-4-2008, which requires obtaining of prior permission before a member of the force permits a guest to stay with him, relates not to a "close relative" of the member of the force but to a "guest". It is further clear from a perusal of paragraph 5 of the instructions dated 4-4-2008 that it only requires giving of intimation on the arrival of a relative to the company commander and does not require obtaining of any prior permission in respect of a relative as admitted by the respondents. It is also clear from a perusal of the charge levelled against the petitioner that he has been accused of having permitted his sister-in-law to live with him without obtaining prior permission and not on the ground that he did not give intimation of her arrival to the company commander as required by paragraph 5 of the instructions dated 4-4- 2008. ( 7. ) IN view of the above even if the charge as levelled against the petitioner and the finding against the petitioner in the departmental enquiry is read in juxtaposition with Rule 8 of the House Rent and City Compensatory Allowance Rules, Annexure P-12, the instructions dated 2-4-2008 as well as the instructions dated 4-4-2008, Annexure P-2, issued by the respondents, it is clear that the act of the petitioner in permitting his sister-in-law to stay with him, who was a close relative, does not fall foul of any of the instructions issued by the respondents or any of the conduct rules and, therefore, does not amount to a misconduct under the provisions of the Act and the Rules. It is also clear that as the petitioner was not required to obtain prior approval before permitting a close relative to stay with him either under the instructions dated 2-2-2008 or the instructions dated 4- 4-2008, more so as it is stated by the learned counsel for the petitioner that in fact his sister-in-law came to stay with him some time in the month of March, 2004 i.e. prior to issuance of the instructions, Annexure R-2, dated 2-4-2008 and 4-4-2008 and, therefore, the charge levelled against him was misconceived as permitting his sister-in-law to stay with him does not amount to a misconduct. IN such circumstances, even if a finding to the effect that the petitioner permitted his sister-in-law to stay with him is recorded by the Enquiry Officer and affirmed by the disciplinary and appellate authorities, no act of misconduct warranting imposition of punishment of removal from service by way of compulsory retirement could be attributed to the petitioner. IN such circumstances, even if a finding to the effect that the petitioner permitted his sister-in-law to stay with him is recorded by the Enquiry Officer and affirmed by the disciplinary and appellate authorities, no act of misconduct warranting imposition of punishment of removal from service by way of compulsory retirement could be attributed to the petitioner. IN the facts and circumstances of the case as I have recorded a conclusion to the effect that the charge levelled against the petitioner was itself misconceived and no misconduct on the basis of the charge levelled against the petitioner is made out even if the finding recorded against him are not disturbed, the order of imposition of punishment upon the petitioner cannot be sustained. ( 8. ) FROM a perusal of the record it is also surprising that while the petitioner has been proceeded with departmentally and removed by way of the impugned punishment, constable Veeraiya Hosmat, against whom more serious allegations have been made, has neither been proceeded with departmentally nor any punishment has been imposed against him and the petitioner has been singled out and removed from service. In view of the aforesaid facts and circumstances of the case, the impugned order dated 23-9-2008 imposing punishment of compulsory retirement upon the petitioner and the appellate order dated 23-2-2009 dismissing him from service are hereby quashed and the petitioner is directed to be reinstated in service along with all consequential benefits. In the facts and circumstances of the case there shall be no order as to costs. Petition allowed.