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2016 DIGILAW 564 (JHR)

Rupesh Kumar Singh v. Union of India

2016-04-05

PRAMATH PATNAIK

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JUDGMENT : Pramath Patnaik, J. 1. In the instant writ application, the petitioner has prayed for quashing of the order dated 06.08.2011 passed by respondent no.4, the appellate authority confirming the order dated 28.05.2011 passed by the respondent no.5 pertaining to ‘removal from services’. 2. The brief facts, as has been disclosed in the writ application, in a nutshell is that while the petitioner was posted as constable at Dugda Range for controlling crime and giving due information to the higher authorities since 16.04.2010 and in course of his posting, illegal money was collected from the members of Truck owners association by the members of Central Industrial Security Force and its officials which was not communicated to higher authorities. The inaction on the part of the petitioner amounts to gross indiscipline, misconduct and involvement in corrupt practices. The said charge was issued on 21.12.2010 and inquiry officer was appointed. On the basis of statement of the delinquent those who have been proceeded departmentally separate and on the basis of confessional statement, the charges against the petitioner have been found to be proved. The respondent no.5 relying on the findings of the inquiry officer passed the final order dated 28.05.2011 whereby the petitioner has been removed from services and the period of suspension has not been treated as duty period and further debarred the petitioner from getting anything except the subsistence allowance during the period of suspension. Aggrieved by the order of removal from services the petitioner preferred appeal before the appellate authority which was upheld by respondent no.4 vide order dated 06.08.2011. Being aggrieved by the impugned order of removal from services, left with no alternative, efficacious and speedy remedy, the petitioner has approached this Court under Article 226 of the Constitution of India, invoking extraordinary jurisdiction of this Court for redressal of his grievance. 3. Mr. Manoj Tandon, learned counsel appearing for the petitioner has strenuously urged that on perusal of the inquiry report it is quite evident that the Charge No.2 is a case of no evidence. Learned counsel further submits that the Commandant, who is the disciplinary authority, reached the spot became judge of his own cause. Learned counsel further submits that the ground taken in the appeal have not been considered by the appellate authority vide order under Annexure-4. Learned counsel further submits that the Commandant, who is the disciplinary authority, reached the spot became judge of his own cause. Learned counsel further submits that the ground taken in the appeal have not been considered by the appellate authority vide order under Annexure-4. Learned counsel further submits that the evidences collected during the course of preliminary inquiry could not have been used as evidence to award punishment. In this respect, learned counsel for the petitioner has referred to the decision of the Hon’ble Apex Court reported in (2013) 4 SCC 301 (Nirmala J. Jhala vs. State of Gujarat & Anr.). Learned counsel has referred to Annexure-11 of the rejoinder, wherein the co-delinquent has been given a minor punishment of warning. In this respect, learned counsel for the petitioner has referred to the decision of the Hon’ble Apex Court reported in (2013) 3 SCC 73 (Rajendra Yadav vs. State of M.P. & Ors.) (para-8 to 12) relating to parity of punishment and also referred to the judgment of Hon’ble Apex Court reported in (2011) 6 SCC 376 (Commissioner of Police, Delhi & Ors. vs. Jai Bhagwan) (para 15 to 18). Learned counsel has also referred to the decision of the Hon’ble Apex Court reported in (2013) 6 SCC 530 (Chairman, L.I.C of India & Ors. vs. A. Masilamani) (para-19). 4. Per contra, a counter affidavit has been filed on behalf of the respondents controverting the averments made in the writ application. In the counter affidavit, it has been submitted that the petitioner was issued charge sheet under Rule 36 of CISF Rules 2001 (amended Rule 36 of CISF Rules 2003) vide charge memorandum dated 21.12.2010 on two article of charges. After receipt of the charge memorandum, petitioner has submitted his written statement of defence denying the article of charges framed against him. Thereafter, a departmental enquiry was ordered under the provisions of Rule 36 of CISF Rules 2001 and the inquiry officer was appointed. During preliminary enquiry on 10.01.2011 the petitioner denied the charges levelled against him and the petitioner was examined by the inquiry officer as per provisions contained in Rule 36 of the CISF Rule 2001 (now amended Rule 2003). After careful consideration of all the materials available in the case file, the enquiry officer established the articles of charge framed against the petitioner as proved beyond any shadow of doubt. After careful consideration of all the materials available in the case file, the enquiry officer established the articles of charge framed against the petitioner as proved beyond any shadow of doubt. Being aggrieved with the findings of the inquiry officer, a copy of the enquiry report was supplied to the petitioner by the disciplinary authority vide memorandum dated 30.04.2011 providing him opportunity to submit representations, if any against the enquiry report. On going through the enquiry report and documentary evidences on record, the disciplinary authority found that the Assistant Commandant had got secret information on 10.12.2010 that illegal money collected from Truck Samiti is likely to be distributed amongst CISF personnel at DCW Dugdha, he being the Area Commander, surprisingly checked the spot and recovered Rs.1000/- from the 06 sub-officers involved in collection of illegal gratification. A seizure list was prepared on the spot and all the 06 sub-officers involved in illegal gratification had signed on the same and they had accepted their guilt in writing and promised not to commit such mistake in future and requested to be excused. During course of preliminary enquiry, all sub-officers who were found involved in collection of illegal money have disclosed that constable R.K. Singh deployed in Crime and Intelligence Wing is the kingpin of the entire episode. The disciplinary authority after considering the representation as well as evidence on record observed that the proven charges are of very serious nature as well as of unbecoming member of the Force and hence imposed the punishment of ‘removal from services’ vide final order dated 28.05.2011 which has been confirmed by the appellate authority vide order dated 06.08.2011. It has further been submitted that the petitioner has not availed the statutory remedy under Rule 54 of the CISF Rules 2001 and, therefore, the writ petition filed by the petitioner is premature and is liable to be dismissed. 5. Mr. Rajiv Sinha (ASGI), appearing for respondents-UOI has assiduously argued that as per terms and conditions of service, every member of Force is expected to maintain absolute discipline, integrity and his conduct should be always honest and upright. Any breach of rules and regulations is punishable under specific rules/regulations of the organization. The petitioner was deployed to perform his duty in Crime and Intelligence Wing at DCW Dugdha area w.e.f 16.04.2010. Any breach of rules and regulations is punishable under specific rules/regulations of the organization. The petitioner was deployed to perform his duty in Crime and Intelligence Wing at DCW Dugdha area w.e.f 16.04.2010. Hence the main purpose of deployment of personnel in intelligence wing is that they have to collect advance information of illegal activities, corrupt practices of members of the force and inform or forecast future happenings immediately/promptly to the superior officers. But the petitioner failed to inform such activities to the senior officers which shows his carelessness of duty. Therefore, the petitioner was issued with charge memorandum dated 21.12.2010 and on the basis for charge the matter was enquired and in the enquiry the charges have been proved and disciplinary authority basing on the report of the enquiry officer passed the order of removal from service which has been confirmed by the appellate authority. Learned A.S.G.I. further submits that as per the procedure laid down, the petitioner has been given ample opportunity to defend himself which he has been availed and petitioner has cross examined the prosecution witnesses during the course of departmental enquiry. The appellate authority considering the findings of the enquiry report, statement of witnesses and documentary evidences adduced by them during the course of departmental enquiry, found that the charge proved against the petitioner is very serious in nature as well as unbecoming of a member of the Force. Hence, the appellate authority did not find any cogent reason to interfere with the order of the disciplinary authority and rejected the same being devoid of merit. 6. After hearing learned counsel for the respective parties and on perusal of the record, I am of the considered view that the impugned order of punishment of removal from service dated 28.05.2011 being confirmed by the appellate authority dated 06.08.2011 is not legally sustainable due to the following facts and reasons: (I) In the instant case on perusal of the impugned order passed by the disciplinary authority it is quite apparent that the evidences collected during the preliminary enquiry has been taken into consideration as well as evidence to award punishment is not permissible, because the evidence which was collected during the preliminary enquiry is that of Commandant who was on the spot, collected the information and subsequently become the disciplinary authority. (II) During course of hearing, it has been urged by the learned counsel for the petitioner that the co-delinquent has been inflicted with the punishment of warning vide Annexure-11 to the rejoinder, whereas petitioner has been inflicted with the major punishment. In this respect, the Hon’ble Apex Court has referred to the decision rendered in the case of Rajendra Yadav Vs. State of Madhya Pradesh and Others as reported in (2013) 3 SCC 73 , in particular paragraph 9, which is quoted herein below: “9. The doctrine of equality applies to all who are equally placed; even among persons who are found guilty. The persons who have been found guilty can also claim equality of treatment, if they can establish discrimination while imposing punishment when all of them are involved in the same incident. Parity among co-delinquents has also to be maintained when punishment is being imposed. Punishment should not be disproportionate while comparing the involvement of co-delinquents who are parties to the same transaction or incident. The disciplinary authority cannot impose punishment which is disproportionate i.e. lesser punishment for serious offences and stringent punishment for lesser offences.” (III) So far as order passed by the appellate authority is concerned, the same appears to be non-speaking and cryptic order. The grounds taken in appeal have not been considered by the appellate authority. The Hon’ble Apex Court in case of Chairman, Life Insurance Corporation of India and Ors. vs. A. Masilamani reported in (2013) 6 SCC 530 , at paragraph 19 has been pleased to hold: “19. The word “consider” is of great significance. The dictionary meaning of the same is, “to think over”, “to regard as”, or “deem to be”. Hence, there is a clear connotation to the effect that there must be active application of mind. In other words, the term “consider” postulates consideration of all relevant aspects of a matter. Thus, formation of opinion by the statutory authority should reflect intense application of mind with reference to the material available on record. The order of the authority itself should reveal such application of mind. The appellate authority cannot simply adopt the language employed by the disciplinary authority and proceed to affirm its order (Vide Indian Oil Corpn. Ltd. v. Santosh Kumar and Bhikhubhai Vithalabhai Patel v. State of Gujarat).” In the case in hand the appellate authority has failed to appreciate the relevant provisions of the CISF Rules. The appellate authority cannot simply adopt the language employed by the disciplinary authority and proceed to affirm its order (Vide Indian Oil Corpn. Ltd. v. Santosh Kumar and Bhikhubhai Vithalabhai Patel v. State of Gujarat).” In the case in hand the appellate authority has failed to appreciate the relevant provisions of the CISF Rules. 7. In view of the reasons stated in the foregoing paragraphs, the impugned order of punishment of removal from services dated 28.05.2011 and the order of the appellate authority dated 06.08.2011 being unsustainable are quashed and set aside and the matter is remitted to the respondents to pass the appropriate order on the quantum of punishment, taking into consideration the reasons stated in the preceding paragraph within a period of twelve weeks from the date of receipt of a copy of this order. 8. With the aforesaid directions, the writ petition stands, disposed of.