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2018 DIGILAW 46 (ORI)

Prafulla Kumar Dash v. Union of India

2018-01-09

BISWANATH RATH

body2018
JUDGMENT : Biswanath Rath, J. Filing the writ petition the petitioner has sought for quashing of the order of punishment dated 27.11.2004 vide Annexure-6, the order of the appellate authority as well as the order of the revisional authority vide Annexures-8 and 9 confirming the order vide Annexure-6 and thereby requesting this Court for issuing a direction to the opposite parties to release all the consequential service benefits in favour of the petitioner. 2. Short background involved in the case is; on his voluntary retirement from Indian Army the petitioner was appointed as a Constable in Central Industrial Security Force (for short “CISF”) in the year 1994. After serving in different units throughout the Country he was transferred to Paradip CISF Unit just before six months of the alleged incident. The petitioner was deployed in Gate No. II on 22.07.2004 onwards to check the incoming trucks. While the petitioner was discharging above duty on 28.07.2004 the petitioner was served with an order of suspension on contemplation of a Disciplinary proceeding and fixing his Headquarters at Paradip. Opposite party no.4 issued the Memorandum along with article of charges on 07.08.2004. The charge-sheet contained at Charge No.I that while the petitioner was deployed in ‘B’ shift duty from 13.00 hours to 21.00 hours on 22.07.2004 at Gate No.II to check the incoming trucks he was found collecting money from truck drivers and khalasis of incoming trucks loaded with iron ore. During course of checking port passes, driving licences and passing off the money to a civilian named Sri Gagan Bihari Sahu, a truck owner who come near Gate No.II seeking early entry of his own truck. It was again observed that later on the petitioner instructed one civilian to directly collect money from drivers and khalasis to be given to him afterwards. The Charge no.II is that a gross misconduct, a serious indiscipline and an act of subordination on the ground that the petitioner did not bother shift in charge’s instruction not to allow a civilian to stand near him. The above charges were communicated to the petitioner vide Annexure-2. Petitioner submitted his show-cause reply on 13.08.2004 specifically denying the article of charges framed against him vide Annexure-3. The authority not being satisfied with the show-cause reply, initiated a Disciplinary proceeding and Shri A.R. Das was appointed as Enquiring Officer. The above charges were communicated to the petitioner vide Annexure-2. Petitioner submitted his show-cause reply on 13.08.2004 specifically denying the article of charges framed against him vide Annexure-3. The authority not being satisfied with the show-cause reply, initiated a Disciplinary proceeding and Shri A.R. Das was appointed as Enquiring Officer. It is alleged that despite the petitioner’s prayer to adduce evidence in defence and cross-examine the management witnesses, the Enquiring Officer did not pay any heed and finally the Enquiring Officer submitted his report on 11.10.2004 holding that both the charges leveled against the petitioner stood proved. Based on submission of a copy of the enquiry report, petitioner submitted his response on 22.10.2004 seriously disputing the enquiry report. Considering the enquiry report and response of the petitioner, the order of punishment was passed by the Disciplinary Authority on 27.11.2004 vide Annexure-6 with direction for reduction of pay to minimum stages, i.e., Rs.3500/-to Rs.3050/-in the time scale of pay of Rs.3050-75-3950-80-4590 for a period of six years with immediate effect. It is further alleged that No.943560061 Constable P.K. Dash will not earn increments of pay during this period and on expiry of the period the reduction will have the effect of postponing his future increments of pay. 3. Being aggrieved by the order of punishment, the petitioner preferred an appeal challenging the manner of conducting the enquiry, completing an enquiry without afford of natural justice, also on the ground that there has been mechanical application of mind in imposing the punishment. Appeal being rejected vide Annexure-8, petitioner filed a revision. Shri Tanmaya Kumar Mishra, learned counsel for the petitioner submitted that to the ill-luck of the petitioner, the revision was also dismissed thereby confirming the order of punishment by the Disciplinary Authority. 4. Challenging the impugned orders, Shri Tanmaya Kumar Mishra, learned counsel appearing for the petitioner contended that the impugned order of punishment is based on no evidence to prove the article of charges and thus remained on presumption only. Shri Mishra, learned counsel for the petitioner also contended that vital witness, namely, Gagan Behari Sahoo since died before the concerned enquiry gets start, there remained no material witness to establish the allegation. Further, the findings of the Enquiry Committee also remained contrary to the statement of the departmental witnesses, particularly the witnesses, namely, N.C. Samal, P.N. Dash, S.D. Bhuyan, C. Chandran and M.S. Raju. Further, the findings of the Enquiry Committee also remained contrary to the statement of the departmental witnesses, particularly the witnesses, namely, N.C. Samal, P.N. Dash, S.D. Bhuyan, C. Chandran and M.S. Raju. Shri Mishra, learned counsel appearing for the petitioner further contended that looking to the nature of allegation and the statements of the departmental witnesses brought on record, all allegations against the petitioner appear to be false and imaginary and also remained unproved. For non-examination of Gagan Bihari Sahoo, a vital witness to establish the case against the petitioner, there appears no material to connect the petitioner with the charges. The Disciplinary Authority and the other higher authorities have all failed in appreciating these vital aspects of the matter resulting the impugned order becomes bad in law. Further, even for the death of said Gagan Bihari Sahoo, there is also no possibility of a fresh inquiry involving the charges. It is under the circumstances, Shri Mishra, learned counsel appearing for the petitioner prays this Court for interfering in the impugned orders vide Annexures-6, 8 and 10 and while setting aside the same to allow the writ petition. 5. Learned Additional Solicitor General appearing for the contesting opposite parties taking this Court to the counter averments and further the statements of the persons involving the disciplinary proceeding, submitted that the petitioner was facing serious charges of extracting money for passing of trucks. Further, there is also deliberate ignorance of the direction of the higher authority in working out certain directions. Further, taking this Court to the statements so recorded during the enquiry proceeding, particularly the statements of the departmental witnesses, learned Addl. Solicitor General appearing for the contesting opposite parties submitted that for the evidence therein there has been right consideration of the issue by the Enquiring Authority and consequently there has been right decision by the Disciplinary Authority as well as the appellate authority and the revisional authority. Further, for imposition of lessor punishment, there is also no case made out requiring this Court for interfering in the impugned orders. Learned counsel for the contesting opposite party thus prayed for rejecting the writ petition for having no merit involving the matter. 6. Further, for imposition of lessor punishment, there is also no case made out requiring this Court for interfering in the impugned orders. Learned counsel for the contesting opposite party thus prayed for rejecting the writ petition for having no merit involving the matter. 6. The admitted fact involved herein is that the petitioner was charge-sheeted on two charges as indicated hereinabove in paragraph-2, as a consequence, the petitioner faced a departmental proceeding, departmental proceeding was concluded with afford of opportunity to the petitioner, Disciplinary authority finding a prima-facie case against the petitioner based on the enquiry report, consequently awarded punishment as imposed in Annexure-6 by the Disciplinary Authority, an appeal being filed by the petitioner was dismissed, consequently revision by the petitioner also got dismissed whereby confirming the order of the Disciplinary Authority. 7. Petitioner faced the article of charges as follows :- “Article of charge-I A gross misconduct, a serious breach of discipline, an immoral act and misuse of official capacity by No.943560061 Constable P.K. Dash of ‘C’ Coy of CISF Unit PPT Paradip in that while deployed in ‘B’ shift duty from 1300 hrs to 2100 on 22.07.2004 at gate No.II to check incoming trucks he was found collecting money from truck drivers and Khalasis of incoming iron ore trucks during the course of checking Port passes and driving license and passing on the money to a civilian named Shri Gagan Bihari Sahu, a truck owner who had come near to gate No.II for early entry of his truck. Later on Const. P.K. Das instructed the civilian to directly collect money from the drivers and khalasis to be given to him (Ct. P.K. Dash) afterwards. The civilian obliged in the hope of a favour of early and out of turn entry of his truck. When the civilian was searched a sum of Rs.656/-(Rupees Six hundred and fifty six only) consisting of currency notes and Coins of different denominations was recovered. Article of charge-II A gross misconduct, a serious indiscipline and an act of insubordination by No.943560061 Constable P.K. Dash of ‘C’ Coy of CISF Unit PPT Paradip in that while deployed in ‘B’ shift duty from 1300 to 2100 hrs on 22.07.04 at gate No.II he did not bother for the shift in charge’s instruction not to allow a civilian to stand near him. In spite of repeated request, he (Const P.K. Dash) not only allowed the civilian to stand near him but also used him to collect money from truck drivers and khalasis on his (Const P.K. Dash) behalf.” 8. Based on the allegation, departmental proceeding was initiated involving the petitioner. There is also no dispute that the strength of charges is based on recording of initial statement of one Gagan Bihari Sahoo, an outsider. To satisfy their case the Department examined Sri N.C. Samal, Deputy Commandant of CISF as P.W.1, Sri P.N. Dash, SI/Exe. as P.W.2 and Sri S.D. Bhuyan, SI/Exe. as P.W.3. Though named Gagan Bihari Sahoo as P.W.4, but P.W.4 could not be examined for his death on 23.08.2007 before commencement of the enquiry. There has been also examination of Court witnesses called as C.Ws., Inspector/Exe. B.M. Rout (C.W.1), Constable Sri C. Chandran (C.W.2) and Constable M.S. Raju (C.W.3). Relevant statements of the above witnesses reads as follows :- P.W.1 – N.C. Samal in his statement has stated that on being informed by S.I.-P.N. Dash (P.W.2) regarding collection of money by a civilian at Gate No.II on 22.07.2004 he reached at Gate No.II along with B.M. Rout (C.W.1) and P.N. Dash (P.W.2) was already there. The P.W.1 called the civilian – Constable P.K. Dash who are engaged for passing of the incoming vehicles at Gate No.II, he himself conducted pocket checking of Constable – P.K. Dash, the delinquent-petitioner and found no excess money than his declaration. On the other hand, he recovered a sum of Rs.656/-of different denominations from the pocket of the civilian – Gagan Bihari Sahoo (P.W.4) (not examined) appearing to be the owner of a truck bearing registration No.ORO-9D-7822. Though he has stated that the civilian disclosed and confessed to have collected the aforesaid amount from the incoming loaded truck drivers/helpers, but Gagan Bihari Sahoo, as appears, could not be examined to establish this allegation. Similarly, on examination of P.N. Dash (P.W.2) who appears to be already available at the spot when P.W.1 reached there, though he has stated to have noticed the delinquent-petitioner standing along with the civilian side by side and stretched their hands into the cabin of the said truck appears to be checking passes/documents. Similarly, on examination of P.N. Dash (P.W.2) who appears to be already available at the spot when P.W.1 reached there, though he has stated to have noticed the delinquent-petitioner standing along with the civilian side by side and stretched their hands into the cabin of the said truck appears to be checking passes/documents. Suspecting their foul intention P.W.2 called both of them and he has only stated that Gagan Bihari Sahoo being interrogated by Deputy Commandant he disclosed himself to be the owner of a truck bearing registration No.ORO-9D-7822 and also further disclosed that he had visited Gate No.II and contacted P.K. Dash, the delinquent-petitioner requesting him to allow his truck into Port area. It also appears that on the approach of Gagan Bihari Sahoo, P.K. Dash, the delinquent-petitioner gave him some amount to keep with him. P.W.2 has also stated that on the instruction of Constable P.K. Dash he started collecting money from incoming iron ore loaded trucks. It is only on this statement of Gagan Bihari Sahoo his pocket was searched and an amount of Rs.656/-were recovered. It is taken note that Gangan Bihari Sahoo could not available for proving of the above. On the cross-examination of P.W.2, it appears that he has stated that he had not received any complaint from that particular truck driver/helper Gagan Bihari Sahoo and also not from any other driver/helper of the trucks which were in queue about collection of illegal money by the delinquent-petitioner. As it appears, the P.W.2 has contradicted his own statement given in chief during cross-examination. Similarly, coming to examine the statement of P.W.3, this witness appears to have stated in cross-examination that he had not seen anything unusual in the hands of Constable – P.K. Dash, the delinquent-petitioner while bringing out his hand from the cabin of the truck. But, he suspected that there was some collection of illegal money. This witness in cross-examination has also stated that he had not received any such complaint from any truck driver/khalashi. Evidence particularly so far as C.W.2 is concerned, he has a categorical statement in the cross-examination that he had neither seen the civilian standing near P.K. Dash nor any instruction was given to him by the shift-in-charge not to allow the civilian to stand near him. He has also not stated that he had not marked P.K. Dash defying any orders of the shift-in-charge. He has also not stated that he had not marked P.K. Dash defying any orders of the shift-in-charge. The statement of C.W.2 also gets corroborated by C.W.3. 9. For the clear contradictions in the evidence of many witnesses, for non-establishment of the charges involving the delinquent-petitioner and further for non-examination of the vital witness – Gagan Bihari Sahoo, based on whose statement charges involving the petitioner was framed, the enquiry becomes defective. Coming to the contradictions in the evidence, this Court also observes that the finding of Enquiry Officer so also the Disciplinary Authority remain defective as there is no proper appreciation of evidence on record. As a consequence, the punishment order since based on such defective enquiry as well as no proper consideration of evidence, this Court finds, the punishment order imposed by the Disciplinary Authority vide Annexure-6 is not sustainable in the eye of law. Consequently, the orders of the appellate authority as well as the revisional authority vide Annexures-8 and 10 also suffer. 10. As a result, this Court interfering in the impugned orders vide Annexures-6, 8 and 10, set-aside the same. Consequently, the opposite parties are directed to treat the petitioner’s service not affected by any order of punishment. Resultantly, petitioner is entitled to all such benefits which may be calculated and released in favour of the petitioner within a period of two months from the date of this judgment. 11. The writ petition succeeds. No costs.