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2014 DIGILAW 802 (ORI)

Niranjan Singh v. Union of India

2014-11-26

B.R.SARANGI

body2014
ORDER Heard Mr. Bibekananda Nayak, learned counsel for the petitioner and Mr. S.K.Das, learned counsel for the opposite party. The petitioner has filed this application seeking following relief: ".................... issue notice to the opposite parties as to why the writ application should not be allowed and after hearing both the order vide Annexures-2, 10 and 13 and 16 may be quashed. And it may be further held that the petitioner is entitled to salary from 3.6.1996 to 8.10.98 treating the said period as duty for all purpose. And further the petitioner is entitled to full salary for the period the petitioner was under suspension." Mr. Bibekananda Nayak, learned counsel for the petitioner, in course of hearing, states that he does not want press the relief sought as against Annexures-2, 10, and 16 and only confines his prayer with regard to the order passed in Annexure-13, the show cause notice issued by the authority on 11.1.1999 in exercise of power under Rule 49-A of the Central Industrial Security Force Rules, 1969. It is stated that the show cause notice has been issued by the incompetent authority contrary to the statute, therefore the same is without jurisdiction. Mr. S. K.Das, learned counsel for the opposite party strenuously urged that the action has been taken against the petitioner inconsonance with the direction given by the Hon'ble Punjab and Haryana High Court and by virtue of the said direction, the Commandant, CISF unit being the disciplinary authority has issued the show cause. Therefore, this Court should not interfere with the same. After hearing learned counsel for the parties and on going through the records, it appears that the petitioner, who was working as a Constable under the Central Industrial Security Force faced an inquiry and subsequently he has been imposed major penalty of removal from service. Thereafter, on reconsideration made, he has been reinstated with minor penalty, but for the period he was dismissed and taken back in service, that period has to be construed inconsonance with the provisions contained in Rule 49-A of the Central Industrial Security Force Rules, 1969 (hereinafter referred to as 'the 1969 Rules'). On perusal of the notice of show cause, it appears that the Commandant, CISF Unit, RSP Rourkela has issued such notice. On perusal of the notice of show cause, it appears that the Commandant, CISF Unit, RSP Rourkela has issued such notice. The Commandant being the disciplinary authority, he could not issue such show cause notice in view of the provision contained in Rule 49-A of the Central Industrial Security Force Rules, 1969. For better appreciation, Rule 49-A is quoted below: "49-A. Dies non-Notwithstanding anything contained in these rules an appellate authority or a revising authority may, on reinstatement of a member of the Force in service after setting aside a penalty of dismissal, removal or compulsory retirement without exonerating such member of the Force of the charges which resulted in any of those penalties, after giving any opportunity to the member of the Force concerned to show cause against such action and for reasons to be recorded in writing, order that the intervening period between the date of dismissal, removal or compulsory retirement as the case may be and the date of reinstatement be treated as dies non for purpose of his service." On perusal of the aforementioned rules, it appears that either the appellate authority or the revisional authority may, on reinstatement of a member of the Force in service after setting aside a penalty of dismissal, removal or compulsory retirement without exonerating such member of the Force of the charges which resulted in any of those penalties, after giving any opportunity to the member of the Force concerned to show cause against such action and for reasons to be recorded in writing, order that the intervening period between the date of dismissal, removal or compulsory retirement as the case may be and the date of reinstatement be treated as dies non for purpose of his service. Therefore, the notice of show cause having been issued by the disciplinary authority on the direction of the Punjab and Haryana High Court is without jurisdiction. It is well settled principle of law laid down by the apex Court in a Constitutional Bench in the case of A.R.Antulay v. R.S.Nayak and another, AIR 1988 SC 1531 wherein it is held that the Supreme Court, by its directions could not confer jurisdiction on the High Court to try any case when it did not possess such jurisdiction under the scheme of the 1952. Therefore, as per the statute, either the appellate authority or the revisional authority is competent to take such action. Therefore, as per the statute, either the appellate authority or the revisional authority is competent to take such action. The disciplinary authority could not have issued notice to show cause contrary to the provisions of Rule 49-A of 1969 Rules as he is incompetent and as such the same is without jurisdiction. In that view of the matter, the notice of show cause dated 11.1.1999 under Annexure-13 is hereby quashed. The writ petition is disposed of. Issue urgent certified copy as per rules.