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2012 DIGILAW 1005 (CAL)

M. S. Lokheande v. UNION OF INDIA

2012-11-30

JAYANTA KUMAR BISWAS

body2012
Judgment : The petitioner in this WP under art.226 of the Constitution of India dated August 24, 2009 is questioning the orders of the disciplinary authority, appellate authority and revising authority passed in the disciplinary proceedings initiated against him. By a charge-sheet dated April 28, 2008 (WP p.31) the proceedings were initiated against the petitioner. Two charges were framed. Necessary details were given in the statement of imputation of misconduct. The article of Charge I is quoted below:- “That No. 874420034 Constable M S Lokhande of ‘HQ’ Coy, CISF Unit, ISP Burnpur entered inside the plant at about 22.30 hrs on 08.04.2008 unauthorisedly and without any bonafide purpose and was moving in the plant in suspicious manner. Further on being challenged by the on duty personnel, No. 874420034 Constable M S Lokhande pelted stones on them. The above act on the part of No. 874420034 Constable M S Lokhande tantamount to gross misconduct, indiscipline and unbecoming of a member of the disciplined Force like CISF.” The article of Charge II is quoted below:- “That No.874420034 Constable M S Lokhande of ‘HQ’ Coy. CISF Unit, ISP Burnpur has inculcated an incorrigible habit of committing offences and dispite being charge sheeted and awarded with several punishments for his acts of various misconduct and indiscipline he failed to improve upon his conduct and proved himself to be a habitual offender thereby unbecoming of a member of the disciplined Force like CISF.” The statement of imputation concerning the article of Charge I is quoted below:- “No. No.874420034 Constable M S Lokhande of ‘HQ’ Coy. CISF Unit, ISP Burnpur entered inside the plant at about 22.30 hrs on 08.04.2008 without any bonafide purpose and he along with No.064700397 Constable Jawalkar D R was found sitting hiding behind a stack of stones by No.824500520 HC/GD K Muhiia and No.871130088 Constable P P Hembram of Flying squad when they reached near Damodar Cement Plant from FSNL site. They challenged those two persons, but both the persons started fled away from the place. Hence they chased those two persons, but both the persons started pelting stones on them and disappeared near APR Garage. In the meantime No.944500136 Constable Sudip Bala (Dog Handler) was coming up for duty through the way nearer to APR Garrage. HC/GD K Mukhia and Constable P P Hembram asked him to help them. They also called HC/GD R B Sharma, CHM/‘C’ Coy for help. In the meantime No.944500136 Constable Sudip Bala (Dog Handler) was coming up for duty through the way nearer to APR Garrage. HC/GD K Mukhia and Constable P P Hembram asked him to help them. They also called HC/GD R B Sharma, CHM/‘C’ Coy for help. Thereafter they all started searching the persons disappeared at APR Garage. During search both the persons appeared before them and they were recognized as Constable M S Lokhande and Constable Jawalkar D R. As such movement of No.874420034 Constable M S Lokhande inside the plant without any bona fide duty during odd night hours at about 2230 hrs on 08.04.2008 was suspicious which amounts to an act of grave misconduct, indiscipline and unbecoming of a member of the Armed Force like CISF. Hence the charge.” In the statement of imputation concerning the article of Charge II necessary details of the four disciplinary proceedings in which the petitioner had been punished were given. The first punishment was inflicted by an order dated May 13, 1997 concerning a misconduct committed on April 22, 1997 and the last punishment was imposed by an order dated December 21, 2001 concerning a misconduct committed on October 30, 2001. The proceedings had been initiated under r.35 of the Central Industrial Security Force Rules, 1969. The petitioner submitted a reply dated July 05, 2008 (WP p.81). He denied that on April 08, 2008 he had entered the plant in question. He stated that on April 8, 2008 he was on sick leave. An officer appointed by the disciplinary authority conducted the inquiry. The petitioner participated in the inquiry. In support of the charges the prosecution examined five witnesses including K. Mukhia, Sudip Bala, P.P. Hembram and R.B. Sharma, the four persons named in the statement of imputation concerning the article of Charge I. In defence the petitioner examined only himself. In his defence statement the petitioner contended, inter alia, that the inquiry remained incomplete, because statements of Jawalkar DR and Dr. N.D.Majhi were not recorded. In his report dated July 18, 2008 (WP pp.84-90) the officer conducting the inquiry recorded that the petitioner was given opportunity of defending himself by producing defence witness and cross-examining the prosecution witnesses; and that he could examine the doctor of ISP Burnpur Hospital and constable Jawalkar DR. N.D.Majhi were not recorded. In his report dated July 18, 2008 (WP pp.84-90) the officer conducting the inquiry recorded that the petitioner was given opportunity of defending himself by producing defence witness and cross-examining the prosecution witnesses; and that he could examine the doctor of ISP Burnpur Hospital and constable Jawalkar DR. Recording this, the inquiry officer rejected the contention that for non-examination of the doctor and the constable the inquiry remained incomplete. After appreciating the evidence the officer held that both the charges were duly proved. The disciplinary authority gave the petitioner a copy of the report of the officer conducting the inquiry and gave him opportunity of making representation, if any. Accordingly, the petitioner submitted a representation dated August 18, 2008 (WP p.91). He did not make any allegation that the inquiry officer had denied him opportunity of examining defence witness. After considering the report submitted by the officer conducting the inquiry, the representation of the petitioner against the findings recorded in the report, and the evidence and materials forming part of the report of inquiry, the disciplinary authority passed the final order dated September 3, 2008 (WP p.99) inflicting the penalty of compulsory retirement from service with immediate effect with pension and gratuity. Against the order of the disciplinary authority the petitioner lodged an appeal. By an order dated December 1, 2008 (WP p.120) the appellate authority rejected the appeal. The appellate authority specifically examined the proportionality of the penalty and held that the penalty inflicted by the disciplinary authority, on the facts, was “justified and proportionate to serious proven charges.” The petitioner filed a revision petition. By an order dated June 24, 2009 (WP p.139) the revising authority examining all the grounds stated in the revision petition rejected the revision petition. Mr. Roy appearing for the petitioner has submitted as follows. The charge that the petitioner had unauthorisedly entered the plant was not proved. No evidence was given to prove the motive. The prosecution ought to have examined the doctor and the quarters’ master without whose permission the petitioner on sick leave could not leave his quarters “at the dead of night.” For undisclosed reason Jawalakar was not examined. The charge that the petitioner had unauthorisedly entered the plant was not proved. No evidence was given to prove the motive. The prosecution ought to have examined the doctor and the quarters’ master without whose permission the petitioner on sick leave could not leave his quarters “at the dead of night.” For undisclosed reason Jawalakar was not examined. Relying on Union of India v. H.C. Goel, AIR 1964 SC 364 , the State of Uttar Pradesh v. Madan Mohan, AIR 1967 SC 1260 and Mohd.Yunus Khan v. State of Uttar Pradesh & Ors., (2010) 10 SCC 539 , Mr. Roy has said that in any case a penalty grossly disproportionate to the misconduct was inflicted completely overlooking the fact that the penalty of compulsory retirement leading to loss of livelihood and long future service term could not be seen as lightly as was done, especially when no public interest element was involved in the case. The respondents are contesting the WP by filing an Affidavit-in-Opposition to which the petitioner has filed an Affidavit-in-Reply. The respondents have justified their actions saying that the allegations were duly proved, and that the penalty inflicted is quite proportionate to the gravity of proven misconduct. As noted hereinbefore, in proof of its case the prosecution examined five witnesses including the four persons named in the statement of imputation concerning the article of Charge I. The four persons named in the statement of imputation were directly involved in the incident. In support of his case the petitioner examined himself. After examining the evidence taken down in the inquiry, the officer conducting the inquiry concluded that the allegation that the petitioner unauthorisedly entered the plant was duly proved. The disciplinary authority, the appellate authority and the revising authority all, evidently, agreed with the officer conducting the inquiry. Power under art.226 is not to be exercised for re-appreciating the evidence taken down in the inquiry and recording independent findings on the question whether the petitioner unauthorisedly entered the plant as alleged in the article of Charge I. There is no reason to hold that the findings of the officer conducting the inquiry are perverse or based on no evidence. It is not for this Court to substitute its findings for those of the officer. It is not for this Court to substitute its findings for those of the officer. As to the allegation made in the article of Charge II, documentary evidence in proof thereof was produced before the officer conducting the inquiry, and the allegation that on the four occasions mentioned in the statement of imputation concerning the article of Charge II the petitioner had been punished in the respective disciplinary proceedings was not disputed. Hence there is no reason to say that Charge II was not proved. The allegations are duly proved. There is no merit in the case that the inquiry remained incomplete for non examination of Jawalkar, the accomplice, and the doctor who had advised the petitioner bed rest, but had nothing to do with the incident. Correctness of the things recorded in the inquiry report (as noted hereinbefore) has not been disputed. The petitioner did not want to examine any defence witness other than himself. Hence it is wrong to say that the prosecution failed to examine material witnesses. There is no merit in the contention concerning proportionality of the penalty inflicted by the disciplinary authority and affirmed by the appellate and revising authorities. Referring to the petitioner’s past conduct and the seriousness of the misconduct the appellate authority and the revising authority held that the penalty inflicted by the disciplinary authority was just and proportionate to the gravity of the proven misconduct. For these reasons, I dismiss the WP. No costs.