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2015 DIGILAW 1124 (GAU)

Pooja Nath v. Union of India

2015-09-02

UJJAL BHUYAN

body2015
JUDGMENT : This case was heard on 18.08.2015 and today is fixed for delivery of judgment. Heard Ms. J.M. Konwar, learned counsel for the petitioner and Mr. S.C. Keyal, learned Assistant Solicitor General for the respondents. By filing this petition under Article 226 of the Constitution of India, petitioner seeks quashing of order dated 18.10.2011, passed by the Commandant, Central Industrial Security Force (CISF) Unit, GBS, New Delhi as the disciplinary authority imposing the penalty of removal from service. Further challenge has been made to the appellate order dated 29.03.2012 as well as the revisional order dated 07.08.2012 upholding the order of penalty. Facts of the case may be briefly stated at the outset. Petitioner was a lady Constable in the CISF, GBS, New Delhi. On 21.04.2011, a show cause notice was issued to her to show cause as to why a departmental proceeding should not be initiated against her on the charge that during her stay in the women’s barrack, certain articles of other lady constables were found missing, which were recovered from her personal box at around 09.50 hrs. on 07.03.2011. Petitioner was accordingly charged with having committed an act of indiscipline, which was unbecoming of a member of a disciplined force, like the CISF. Petitioner submitted her written statement on 13.05.2011 specifically denying the charge levelled against her. It appears that the disciplinary authority was not satisfied with the written statement furnished by the petitioner and it was decided to hold inquiry against the petitioner. Accordingly on 25.05.2011 Enquiry Officer was appointed so also a Presenting Officer. In the course of the inquiry, Enquiry Officer examined as many as six witnesses on behalf of the disciplinary authority and in addition, one independent witness was examined. Thereafter, the petitioner was examined. On completion of inquiry, Enquiry Officer submitted report to the disciplinary authority holding that the charge against the petitioner stood proved. Copy of the inquiry report was furnished to the petitioner, to which she submitted her reply. After consideration of the report of inquiry and the reply of the petitioner, the disciplinary authority came to the conclusion that the charge against the petitioner was established. Petitioner had committed an act of gross negligence and indiscipline, which could not be overlooked and, therefore, she was liable to be punished. After consideration of the report of inquiry and the reply of the petitioner, the disciplinary authority came to the conclusion that the charge against the petitioner was established. Petitioner had committed an act of gross negligence and indiscipline, which could not be overlooked and, therefore, she was liable to be punished. Consequently, penalty of removal from service was imposed on the petitioner by the disciplinary authority vide the order dated 18.10.2011. Petitioner filed appeal dated 31.10.2011 which was considered by the Deputy Inspector General (Security), the appellate authority, but rejected vide order dated 29.03.2012. Revision petition filed on 21.06.2012 was considered by the revisional authority i.e., Inspector General, CISF. Vide order dated 07.08.2012, the revisional authority affirmed the penalty imposed, which was found to be commensurate with the gravity of the misconduct. Accordingly, revision petition was rejected. Aggrieved, present writ petition has been filed. Respondents through the Commandant have filed a common affidavit. It is stated that for accommodation of CISF lady bachelor personnel, a lady barrack is available in ‘N’ Company, CGO of CISF Unit GBS, New Delhi. Petitioner was staying there along with other CISF lady personnel. Lady Constable, Gunja Kumari was the in-charge of the lady barrack. On 07.03.2011 a few lady personnel of the barrack informed her that some of their cloths were missing. When Gunja Kumari observed that it could be the handy work of stray monkeys, the lady personnel did not agree and they decided amongst themselves to check the belongings of all the lady personnel. In the course of their search, they found the missing items kept in the personal box of the petitioner whereafter, the missing items were taken over by the respective lady personnel. Gunja Kumari reported the matter on the next date before the higher authority whereafter, a preliminary inquiry was conducted on 09.03.2011. In the preliminary inquiry, petitioner made a statement that she had mistakenly kept the used cloths of the lady personnel in her personal box. Thereafter, departmental proceedings were initiated under Rule 36 of the CISF Rules, 2011 by issuing show-cause notice dated 21.04.2011 to the petitioner. Petitioner submitted her written statement belatedly on 13.05.2011, which was found to be not satisfactory by the disciplinary authority. Accordingly, inquiry was ordered by appointing Enquiry Officer and Presenting Officer. In the course of the inquiry, full opportunity was granted to the petitioner to defend herself. Petitioner submitted her written statement belatedly on 13.05.2011, which was found to be not satisfactory by the disciplinary authority. Accordingly, inquiry was ordered by appointing Enquiry Officer and Presenting Officer. In the course of the inquiry, full opportunity was granted to the petitioner to defend herself. Enquiry Officer in his report held the charge to be proved against the petitioner. Copy of the same was furnished to the petitioner pursuant to which she submitted her response. Thereafter, the impugned penalty was imposed, which has been affirmed in appeal and revision. It is stated that charge against the petitioner having been proved in a duly constituted inquiry, commensurate penalty was imposed on the petitioner. Contending that there is no merit in the writ petition, respondents seek dismissal of the writ petition. Ms. Konwar, learned counsel for the petitioner submits that from a dispassionate analysis of the evidence recorded in the course of the inquiry, it would be evident that the charge against the petitioner cannot be said to have been proved. The alleged stolen goods were not exhibited in the inquiry and no seizure list was prepared. The stolen goods were allegedly recovered from the personal box of the petitioner by a few lady constables sharing the barrack who were the interested parties. The recovery was not made in the presence of any independent person or any higher authority. No proper procedure was followed. No reliance could be placed on the alleged admission of guilt by the petitioner made during the preliminary inquiry, as it was obtained under duress. Petitioner did not admit or make any confessional statement in the course of the inquiry. In such circumstances, making sweeping statement that petitioner was guilty of committing theft is wholly untenable and cannot be accepted. She further submits that in the facts and circumstances of the case, imposition of the penalty of removal from service is not only excessive and disproportionate to the gravity of the charge, but is also shocking to the judicial conscience. In this connection, learned counsel for the petitioner has placed reliance on a number of decisions. She, therefore, submits that this Court may intervene in the matter and grant suitable relief to the petitioner. Opposing the submissions made by learned counsel for the petitioner, learned Assistant Solicitor General submits that scope of interference by way of judicial review in findings of departmental proceeding is very limited. She, therefore, submits that this Court may intervene in the matter and grant suitable relief to the petitioner. Opposing the submissions made by learned counsel for the petitioner, learned Assistant Solicitor General submits that scope of interference by way of judicial review in findings of departmental proceeding is very limited. The writ court would not examine the evidence or the penalty imposed like an appellate court. Examination by the writ court would be confined to the well laid down principles of Wednesbury’s reasonableness. Due opportunity of hearing was granted to the petitioner and a fair procedure was followed, following which the charge against the petitioner stood proved. In the circumstances of the case, the penalty of removal from service imposed on the petitioner cannot be said to be disproportionate to the gravity of the offence. Therefore, no interference is called for. Submissions made by learned counsel for the parties have received the due consideration of the Court. No doubt petitioner was a member of a disciplined force and being a member of a disciplined force, like the CISF, she was required to maintain absolute discipline. No act of indiscipline or negligence can be condoned. However, having said so, it should also be borne in mind that members of disciplined force, like the CISF, are also citizens of India and are not denuded of their right to a fair procedure. Even in the case of army personnel, the Hon’ble Supreme Court in the case of Lt. Col. Prithi Pal Singh Bedi Vs. Union of India, reported in AIR 1982 SC 1413 observed that persons subject to the Army Act, 1950 do no cease to be citizens of India so as to wholly deprive them of their rights under the Constitution. Though provisions of the Evidence Act, 1872 may not be strictly applicable to a departmental proceeding, nonetheless, the charge brought against the delinquent must be proved. It is a settled proposition of law that suspicion or presumption cannot take the place of proof even in a domestic inquiry. The charge brought against the delinquent must be proved by the disciplinary authority in the enquiry in accordance with law though the standard of proof may not be as strict as in a criminal trial. The charge against the petitioner has already been noticed above. The charge brought against the delinquent must be proved by the disciplinary authority in the enquiry in accordance with law though the standard of proof may not be as strict as in a criminal trial. The charge against the petitioner has already been noticed above. It was alleged that personal articles of a few lady Constables were reportedly missing, which were later on found in the personal box of the petitioner. In the affidavit filed by the respondents, it is stated in para 17 that nobody in their statements had stated that the missing items were stolen by the petitioner, but the stolen items were found in the personal box of the petitioner. The stolen items were recovered from the personal box of the petitioner during a search carried out by the lady Constables themselves as per their own decision. It is evident from the materials on record that no complaint was lodged before the disciplinary authority or before any other authority by any of the lady Constables complaining about their cloths being missing. A group of lady Constables staying together took the decision to search the boxes of the lady Constables in the evening of 07.03.2011. After opening one or two boxes, they proceeded to open the box of the petitioner. When the box of the petitioner was opened, neither any independent person was present nor any higher authority of the CISF. No list of the stolen goods was prepared. No list of recovered goods was prepared. Infact, these stolen goods allegedly recovered from the personal box of the petitioner were not exhibited in the inquiry. None had seen the petitioner stealing the missing cloths. Infact, in their affidavit, the respondents have admitted that none of the witnesses had stated that the missing articles were stolen by the petitioner. Finding the missing cloths in the personal box of the petitioner may raise suspicion, even bonafide suspicion, about involvement of the petitioner in the missing of the personal articles, but as has been held by the Apex Court in a catena of decisions, suspicion, howsoever grave, cannot take the place of proof even in a departmental proceeding where the charge has to be proved as is understood in law. Petitioner had taken a consistent stand in her written statement made during the inquiry and thereafter, in her response to the inquiry report. Petitioner had taken a consistent stand in her written statement made during the inquiry and thereafter, in her response to the inquiry report. She stated that the barrack in-charge had infact, suggested that it could be the handy work of the monkey, who might have taken away the personal articles. The lady Constables, whose personal articles were missing, such as, Ranju Jha, Padma Kohli and Babli Srivastava did not lodge any complaint for days together. They also did not seem to be unduly worried about their personal articles being missing. It was on that particular day and time when all of them confronted the petitioner together and charged her with stealing their cloths. She stated that she used to keep the key of her personal box on her bed, but on that particular day, she did not find it on her bed. However, brushing aside her plea, Gunja Kumari and Ranju Jha decided to break open her box. She, therefore, alleged that she was a victim of a larger conspiracy and a few lady Constables had conspired to get rid of her. She further stated that Ranju Jha always used to look for an opportunity to pick up quarrels with her. As already noticed, it was only the version of the other lady constables against the version of the petitioner that their missing cloths were found from the personal box of the petitioner. There was no proof to hold that petitioner had stolen the personal articles of the other lady Constables which were recovered from her personal box. In such circumstances, Court is of the considered opinion that the decision of the disciplinary authority as confirmed by the Appellate Authority and by the Revisional Authority does not appear to be justified. Section 8 of the CISF Act, 1968 provides for punishments that may be imposed on a member of the Force following a departmental proceeding. The penalties start from censure right upto dismissal. When the statute provides for imposition of various punishments for committing various degrees of misconduct, it becomes the duty of the disciplinary authority to apply his mind to the misconduct and the commensurate penalty that may be imposed. In the instant case, the disciplinary authority after holding that the petitioner had committed an act of gross negligence and indiscipline concluded that she should be punished. Thereafter, penalty of removal from service was imposed. In the instant case, the disciplinary authority after holding that the petitioner had committed an act of gross negligence and indiscipline concluded that she should be punished. Thereafter, penalty of removal from service was imposed. Though detail reasonings may not be warranted, yet it is necessary that there should be some material in the order of penalty to suggest application of mind by the disciplinary authority as to why the particular penalty was imposed. While imposing penalty relevant factors, such as, gravity of the misconduct, past conduct of the delinquent etc. are required to be considered. No such application of mind to such consideration is discernible in the impugned order. The disciplinary authority concluded that since petitioner had committed an act of gross negligence and indiscipline, for which she should be punished, the penalty of removal from service was imposed. Perhaps, noticing this shortcoming, the appellate authority tried to justify the imposition of penalty of removal from service. However, the revisional authority while justifying the penalty held that petitioner had committed theft, which was indicative of moral turpitude reflecting her deviant tendency, which could be highly prejudicial to the Force in the long run. I am afraid, such a sweeping conclusion is not backed by the record. As already discussed above, it is nobody’s case that petitioner had stolen the personal articles of other lady Constables though the needle of suspicion may be on her because the missing articles were allegedly recovered from her personal box, but that would not be sufficient to come to any legally sustainable conclusion that petitioner had stolen personal articles of her colleagues for the reasons already discussed. There is another aspect of the matter. The orders impugned display lack of sensitivity towards a grave charge brought against a woman, who happened to be a lady Constable. Charging an unmarried woman of being a thief in the Indian social context is highly stigmatic liable to remain as a stigma for the rest of her life. Without the charge being lawfully proved, petitioner could not have been branded as a thief thereby greatly impeaching the dignity of a woman. Beyond this, the Court would not like to make any further comment. Without the charge being lawfully proved, petitioner could not have been branded as a thief thereby greatly impeaching the dignity of a woman. Beyond this, the Court would not like to make any further comment. In the light of the discussions made above, the penalty of removal from service imposed on the petitioner vide the order dated 18.10.2011 as affirmed in appeal and revision cannot be sustained and is, accordingly, set aside and quashed. Petitioner shall be reinstated in service. In Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya & Ors., reported in (2013) 10 SCC 324 , the Apex Court has restated the principles relating to payment of back wages on reinstatement and held that denial of back wages would amount to indirectly punishing the employee, who suffered from the illegal act of the employer. Following the principles laid down in Deepali Gundu Surwase (supra), the Apex Court in the recent case of KS Ravindran Vs. New India Assurance Co. Ltd., reported in (2015) 7 SCC 222 directed payment of 50% of back wages within six weeks, failing which 9% interest per annum was directed to be paid. Having regard to the above, respondents are directed to pay 50% of the back wages to the petitioner on her reinstatement within a period of three (3) months from the date of receipt of a certified copy of this order. Writ petition is accordingly allowed. No costs.