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2016 DIGILAW 321 (ORI)

Dharanidhar Parida v. Director General, Central Industrial Security Force

2016-04-21

A.K.RATH

body2016
JUDGMENT : Dr. A.K. Rath, J. The petitioner, a quondam employee of Central Industrial Security Force (in short, “CISF”), has filed this writ petition assailing the order of punishment of removal from services passed by the Commandant, the Disciplinary Authority, opposite party no.2, which was confirmed by the D.I.G., Eastern Zone, CISF, appellate authority. 2. Bereft of unnecessary details, the short facts of the case are that the petitioner was appointed as a Constable in CISF in the year 1977. While he was working in the CISF Unit, NALCO, Damanjodi, the disciplinary authority issued charge-sheet. The charges are quoted hereunder. “I. No.724340815, Constable D.D. Parida of CISF Unit NALCO Damanjodi was deserted from Unit Lines/barracks of CISF Unit NALCO Damanjodi at about 1130 hrs on 11.6.96 without permission or sanction of leave from competent authority. He remained absent without leave from 11.6.96 to till date. He was issued call up notices through telegram dated 13/14 June’ 96, letter No.E-24018/CISF/ NALCO(D)/96/2578, dated 10 July’ 96 and V-15016(01)/Major/NALCO(D)/96/2649, dated 16.7.96 with direction to report for duty immediately. He disobeyed the instructions of the competent authority. II. No.72430815, Const. D.D. Parida is a habitual offender who has been awarded major/minor punishments for six times for remaining OSL and failed to improve himself in spite of ample opportunities given to him which renders him unsuitable to be a member of disciplined and Armed Force.” 3. The petitioner was asked to show-cause. He denied the charges. Thereafter, the Enquiry Officer was appointed to enquire into the charges. After affording reasonable opportunities, the Enquiry Officer submitted the report stating therein that the charges were proved. The report was supplied to the petitioner on 9.5.97. The petitioner received the same on 16.5.97, but did not file any reply. A reminder was issued to him. But he failed to submit the reply. The disciplinary authority, opposite party no.2, agreed with the finding of the Enquiry Officer and awarded punishment of removal from services. The petitioner unsuccessfully filed appeal before the opposite party no.1. The same was dismissed. 4. Pursuant to issuance of notice, a counter affidavit has been filed by the opposite parties. The sum and substance of the case of the petitioner is that while working as a Constable in CISF Unit, NALCO, Damanjodi, the petitioner remained unauthorised absent from 11.6.96. A telegram was issued to him with a direction to report for duty. 4. Pursuant to issuance of notice, a counter affidavit has been filed by the opposite parties. The sum and substance of the case of the petitioner is that while working as a Constable in CISF Unit, NALCO, Damanjodi, the petitioner remained unauthorised absent from 11.6.96. A telegram was issued to him with a direction to report for duty. He did not join. He was a habitual offender. Previously the penalty was awarded to him. It is further stated that the petitioner had received memorandum of charges and submitted his reply. Since the same was not found satisfactory, an Enquiry Officer was appointed to enquire into the matter. After conducting the enquiry, the Enquiry Officer submitted a report on 5.5.1997 holding the charges as proved. Thereafter, a copy of the report was supplied to the petitioner. The petitioner received the same on 16.5.97, but did not submit any representation. A reminder was sent to him to make representation. On the basis of the finding of the Enquiry Officer, the disciplinary authority held that the petitioner was guilty of charges and awarded punishment of removal from services. The petitioner received the order on 23.6.1997. Being aggrieved the order of punishment, he filed appeal before the opposite party no.1 on 12.8.1997. The appellate authority dismissed the same on merit. 5. Heard Mr. A.Ch. Mohanty, learned counsel for the petitioner and Mr. K.C. Kar, learned Central Government Counsel for the opposite parties. 6. Mr. Mohanty, learned counsel for the petitioner submits that the petitioner was seriously ill. He made an application to the authorities. Further, the charges levelled against him even if found to be proved, the punishment is disproportionate to the gravity of the charges. He relies on the decision of the Kerala High Court in the case of P.P. Gopalan vs. The D.I.G. and another, 1986 LAB.I.C. 980. 7. The scope of interference of the High Court under Article 226 of the Constitution of India to the order passed by the disciplinary authority is no more res integra. In the case of State of Andhra Pradesh and others vs. S. Sree Rama Rao, AIR 1963 SC 1723 , the Supreme Court in paragraph 7 of the report held: “7. The scope of interference of the High Court under Article 226 of the Constitution of India to the order passed by the disciplinary authority is no more res integra. In the case of State of Andhra Pradesh and others vs. S. Sree Rama Rao, AIR 1963 SC 1723 , the Supreme Court in paragraph 7 of the report held: “7. There is no warrant for the view expressed by the High Court that in considering whether a public officer is guilty of the misconduct charged against him, the rule followed in criminal trials that an offence is not established unless proved by evidence beyond reasonable doubt to the satisfaction of the Court, must be applied, and if that rule be not applied, the High Court in a petition under Article 226 of the Constitution is competent to declare the order of the authorities holding a departmental enquiry invalid. The High Court is not constituted in a proceeding under Article 226 of the Constitution a Court of appeal over the decision of the authorities holding a departmental enquiry against a public servant: it is concerned to determine whether the enquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Where there is some evidence, which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent Officer is guilty of the charge, it is not the function of the High Court in a petition for a writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence. The High Court may undoubtedly interfere where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion, or on similar grounds. But the departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there be some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under Article 226 of the Constitution.” 8. On the anvil of the decision cited supra, the case of the petitioner may be examined. The submission of Mr. Mohanty, learned counsel for the petitioner that the petitioner was ill is difficult to fathom. No document pertaining to the illness of the petitioner has been filed either before the Enquiry Officer or before this Court. The petitioner remained unauthorised absent from 11.6.96 for a period of 4½ months. He belongs to a disciplinary force. It cannot be said that the punishment is disproportionate to the gravity of the charges.The decision cited by Mr. Mohanty is distinguishable on facts. In that case, the petitioner was a Security Guard in CISF. While he was serving as a Security Guard in CISF Unit, Visakhapatnam, he was served with a memo dated 26.12.1979 issued by the DIG, CISF, Southern Zone, Madras informing him that an enquiry will be conducted against him for the grave misconduct in sleeping while on duty at 17.40 hrs. on 14.8.1979 when checked by one ASI and indecent and indisciplined behaviour towards officers. He was asked to submit a written statement of defence in answer to the charges. He denied the charges framed against him and contended that there was no factual basis for the charges of misbehaviour or his sleeping at 17.40 hrs. The disciplinary authority held the enquiry into the charges framed against the petitioner. The petitioner submitted the representation to the disciplinary authority requesting him for a change in the personnel of the enquiry officer as according to him. The DIG declined to accede to the request for a change of the personnel of the enquiry officer and directed the disciplinary authority to proceed with the enquiry expeditiously. The Enquiry Officer conducted an enquiry and submitted a report. The Enquiry Officer found the charges against the delinquent officer proved. The DIG declined to accede to the request for a change of the personnel of the enquiry officer and directed the disciplinary authority to proceed with the enquiry expeditiously. The Enquiry Officer conducted an enquiry and submitted a report. The Enquiry Officer found the charges against the delinquent officer proved. The disciplinary authority accepted the finding of the Enquiry Officer and issued notice to the petitioner asking him to show-cause as to why he should not be dismissed from services on the basis of the charges proved against him. He submitted his explanation. The disciplinary authority imposed the punishment of dismissal of the petitioner from service with immediate effect. The same was confirmed by the appellate authority. The learned Single Judge held that the petitioner was a last grade employee, who cannot be expected to be familiar with the procedure prescribed by the Rules. The enquiry was conducted by an Assistant Commandant, an Officer of the Department who acted as the prosecutor. He was, therefore, the Prosecutor and Judge rolled into one. Learned Single Judge further came to hold that there was no proper enquiry against the petitioner before he was dismissed from service. In the said case, no reasonable opportunity was provided to the delinquent employee. Furthermore, the Enquiry Officer cross-examined the witnesses and submitted the report. Under such circumstance, the learned Single Judge allowed the writ application. 9. Judging the case from any angle, this Court is of the considered opinion that the writ petition, sans any merit, deserves dismissal. Accordingly, the same is dismissed.