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2018 DIGILAW 264 (CAL)

Mohit v. Union of India

2018-02-15

I.P.MUKERJI, MD.MUMTAZ KHAN

body2018
JUDGMENT : 1. A constable belonging to the Central Industrial Security Force (CISF) is before us in appeal. He appeals against the judgment and order dated 7th January, 2016 of this Court in the writ application (WP 26853 of 2015) declining to interfere with the order of the departmental disciplinary authority directing the appellant's removal from service. This Court was approached after the exhaustion of alternative remedies. The incidents relate to the intervening night between 31st July and 1st August, 2013. Between 23rd July, 2013 and 1st August, 2013, from 10 p.m. up to 6 O'clock in the morning, the appellant's duty was in an area in the Durgapur Steel Plant complex, which according to Mr. Sanyal appearing for the appellant covers an area of 7 to 8 Sq. k.m. His learned advocate also says that during day time on 31st August, 2013, he had done full duty. He was asked to do further duty from 11 p.m. onwards till 6 am that night. 2. The disciplinary proceedings were started against the appellant on three charges. The first was that he was not found in his place of duty for sometime around midnight. We have not been favoured any material to show the exact time he reported back to duty but he was not found to be there at around 11.30 p.m. The second charge made against him that he was aiding and abetting Chingres to commit theft. 3. The third charge was that the appellant had not deposited his arms on time after cessation of duty. 4. A full length enquiry was made against the him. An enquiry report was prepared on 16th January, 2014. The disciplinary authority by his order dated 16th February, 2014 punished him with removal from service. 5. It appears that the learned Court below entertained submissions on behalf of the parties with regard to the merits of the matter, as a Court of Appeal and expressed observations and findings thereon. For example, the observation "It also appears to be slightly far-fetched that a person would take leave for dinner in course of a duty that commence at 11 p.m., or the observations "The fact that the miscreants in this case were not terrorists does not absolve the petitioner of the grievous misconduct in creating a breach in the security.....". For example, the observation "It also appears to be slightly far-fetched that a person would take leave for dinner in course of a duty that commence at 11 p.m., or the observations "The fact that the miscreants in this case were not terrorists does not absolve the petitioner of the grievous misconduct in creating a breach in the security.....". Furthermore, the remark "To make matters worse, the previous conduct of the petitioner in the Force was not inspiring and such dismal record prompted the authorities to order his removal from service". 6. A lot of emphasis was sought to be laid on the recording of the appellant's phone number in the mobile phone of one of the miscreants. This was part of charge 2. It was specifically upheld by the disciplinary authority. The part of the charge alleging complicity with the miscreants was not proved. Therefore, the rest of the disciplinary proceedings had to be taken into account. 7. This Court in the exercise of its writ jurisdiction is not exercising an appellate jurisdiction. The disciplinary authority after having accepted the enquiry report endorsed the findings thereon and pronounced the punishment of removal from service as against the appellant. Usually, the Writ Court has no jurisdiction to adjudicate upon the findings of a disciplinary authority. It does have the power to examine whether the order has been proportionate or disproportionate, fair or unfair, reasonable or unreasonable etc. 8. We are of the opinion that when charge 2 had not been proved the punishment of removal from service on proof of charges 1 and 3 was disproportionate. Any reasonable person in the place of the disciplinary authority would have thought in terms of any other punishment, but one not resulting in loss of service. 9. If you take the matter as a whole, at this stage, the conduct of the appellant did not warrant punishment of removal from service. No doubt, the CISF is a disciplined force. But it is a disciplined force in a democratic country. Therefore, even a member of this force should not be denied fair play. 10. In those circumstances, we set aside the order of the disciplinary authority as affirmed by the appellate authority and also set aside the judgment and order of the Hon'ble Single Judge order dated 7th January, 2016 relating to the punishment part only. 11. Therefore, even a member of this force should not be denied fair play. 10. In those circumstances, we set aside the order of the disciplinary authority as affirmed by the appellate authority and also set aside the judgment and order of the Hon'ble Single Judge order dated 7th January, 2016 relating to the punishment part only. 11. We remit the matter to the disciplinary authority to award any punishment except (a) dismissal (b) removal and (c) compulsory retirement, provided in Rule 31, of the Central Industrial Security Force Rules, 1969, within eight weeks of communication of this order. 12. With the above observations, the appeal (MAT 164 of 2016) and the connected application (CAN 1423 of 2016) are disposed of. Urgent certified photo copy of this order, if applied for, be given to learned advocates for the parties upon compliance of all requisite formalities.