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2017 DIGILAW 1 (MEG)

Roshan Thakuri v. Union of India

2017-02-02

S.R.SEN

body2017
JUDGMENT : S.R. Sen, J. Heard learned counsel for the petitioner, Mr. KC Gautam as well as learned CGC, Mr. R.Deb Nath. The petitioner's case in a nutshell is that: "The case of the petitioner in a short compass is that he was recruited into the Central Industrial Security Forces at a recruitment rally held at Umroi, Ri-Bhoi District, Meghalaya sometime in the year 1990 and has since been posted at various CISF Units across the length and breadth of the country. That the Central Industrial Security Force was constituted by an Act of the Parliament (Act No. 50 of 1968). The CISF is constituted primarily as a regulated armed force of the Union of India to provide for protection and security of Industrial undertakings owned by the Union Government and other important industrial undertakings in the country, for the purpose of administrative efficiency the CISF is divided into four Administrative Zones, with each zone entrusted with the administration of units attached to it. The CISF Units, falling within the North Eastern Region have their administrative Head Quarter at Kolkata, in the State of Meghalaya the CISF Unit is stationed at Umroi airport and North East Space Organization (NESO), Ri-Bhoi District, Meghalaya. That during the year 2010 the petitioner was posted at CISF Unit OIL, Duliajan, Assam. On 18-02-2010 while the writ petitioner was detailed at shift duty from 0500 hrs to 1300 hrs, at Railway Gate Industrial Sector, OIL, Duliajan, Assam, at about 0800 hrs he was requested by Head Constable G.B. Baleswar posted at LPG Gate watch tower which is about 50(Fifty) footsteps from the Railway Gate for help to make entries of LPG Bullets Vehicles. The petitioner while obliging to the request made was proceeding to his post after making the entries, one Senior Inspector Mr. Kanikar arrived at the scene and demanded explanation from the petitioner as to what he was doing at the LPG Gate when he was supposed to be detailed at Railway Gate as per duty roster. The petitioner while obliging to the request made was proceeding to his post after making the entries, one Senior Inspector Mr. Kanikar arrived at the scene and demanded explanation from the petitioner as to what he was doing at the LPG Gate when he was supposed to be detailed at Railway Gate as per duty roster. Inspector Kanikar did not accept the explanation forwarded by the petitioner and was infuriated not finding the petitioner at his detailed post, Inspector Kanikar charged the petitioner for being in a state of intoxication thereafter the petitioner was taken to the control room and later to the OIL Hospital where a Ward Boy conducted breath analyzer test on the petitioner and thereafter the petitioner was once again taken to the control room where he was ordered as suspended with immediate effect and on the next day was handed with the letter of suspension issued under No. F-200016/CISF/SUSP./Bill/2010/567 dated 19-10-2010. The petitioner subsequent to being placed under suspension vide impugned order dated 19-10-2010, the Commandant CISF Unit OIL Duliajan, vide letter dated 09-11-2010 forwarded the article of charges against the petitioner accusing him inter-alia of misconduct and conduct unbecoming of a member of the CISF and charged the petitioner under 4(four) distinct heads of charge. The petitioner show caused against the impugned order of suspension which was not accepted by the respondents. Thereafter departmental proceedings were drawn up against the petitioner and vide final order dated 18/03/2011 the petitioner was imposed with the major penalty of immediate removal from services of the CISF. The petitioner thereafter, was confronted with a series of unfortunate events including death of mother and sister plus financial burden of raising a family consisting of minor children forcing the petitioner to take odd menial jobs, the respondents however did not communicate to the petitioner the fate of his appeal. Later when the petitioner represented to the DIG CISF he was informed that his appeal was rejected vide order dated 7th May 2011. This fact was informed to the petitioners by the respondent authorities vide their letter under No. 15014/CISF/Corres/L&D/OIL (D)/ 2016-6837 dated 09/08/2016 issued in reply to the petitioners correspondence dated 09/06/2016. The correspondence further informed the petitioner that his representation dated 9.6.2016 cannot be considered as under the CISF Rules there is no provision for a second appeal. This fact was informed to the petitioners by the respondent authorities vide their letter under No. 15014/CISF/Corres/L&D/OIL (D)/ 2016-6837 dated 09/08/2016 issued in reply to the petitioners correspondence dated 09/06/2016. The correspondence further informed the petitioner that his representation dated 9.6.2016 cannot be considered as under the CISF Rules there is no provision for a second appeal. The petitioner in this writ petition is challenging his dismissal from service by the respondents." 2. Learned counsel for the petitioner submits that the petitioner had filed a statutory appeal sometime in 2011 before the concerned authority and the same was disposed but the order was not communicated to the petitioner. As a result, the petitioner could not make any revision petition before the appropriate authority or court. He also drew the attention of this Court to para 3a of the affidavit dated 23-11-2016. The same is reproduced herein below: "3a. That the Petitioner has not exhausted the alternative departmental/statutory remedy available to the Writ Petitioner under section 9(2A) of CISF Act 1968 and as per rule 54 of CISF Rules 2011 by way of revision. But, the Writ Petitioner has approached the Hon'ble Court without exhausting complete departmental remedies. In this regard, reference may kindly be made to the Judgment and order dated 27.05.2016 passed by the Hon'ble High Court of Himachal Pradesh at Shimla in CWP No. 3080 of 2009 filed by Sh. Khiali Ram v. Union of India and others" 3. On perusal of the said para, it appears that the petitioner's statutory appeal was rejected and observed by the respondent that the petitioner had not exhausted the alternative departmental statutory remedy available to the writ petitioner under section 9(2A) of CISF Act 1968 and as per rule 54 of CISF Rules 2011 by way of revision. In the case of Sh. Khiali Ram v. Union of India and others passed in CWP NO. 3080 of 2009 dated 27-05-2016 and ultimately came to the conclusion that; "Accordingly, the present petition is permitted to be withdrawn with liberty granted to the petitioner to avail alternative remedy available to him under the provisions of the Central Industrial Security Force Act, 1968 and is further directed that in any case such revision etc. 3080 of 2009 dated 27-05-2016 and ultimately came to the conclusion that; "Accordingly, the present petition is permitted to be withdrawn with liberty granted to the petitioner to avail alternative remedy available to him under the provisions of the Central Industrial Security Force Act, 1968 and is further directed that in any case such revision etc. is filed by the petitioner within a period of eight weeks from today, the concerned authority shall adjudicate the same on merits without entering into the question of limitation etc." 4. After hearing the submission advanced by the learned counsel for the petitioner, learned CGC for the respondents, Mr. R.Deb Nath did not deny the proposition of law referred by the petitioner counsel. So, after hearing both the parties and considering the affidavit and the judgment referred above, it is hereby ordered that the petitioner is at liberty to avail alternative remedy available to him under CISF Act, 1968 and he can place the revision before the appropriate authority or court within 4(four) weeks from the date of this order and the authority concerned shall adjudicate his grievances on the basis of merit of the case without going to the question of limitation. 5. With this observation and direction, the instant writ petition is allowed to that extent and stands disposed of.