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2018 DIGILAW 897 (CAL)

Alauddin Mir v. Union of India

2018-12-07

AMRITA SINHA

body2018
JUDGMENT : Amrita Sinha, J. The petitioner filed the instant writ petition praying for setting aside the order of punishment dismissing the petitioner from service passed by the disciplinary authority on 30th September, 2008 and affirmed by the appellate authority on 14th November, 2008. 2. The petitioner was a constable of Central Industrial Security Force (CISF). A charge sheet was issued against him on 21st January, 2008 under the following charge: "An act prejudicial to good order and discipline of the Force is that No. 921401890 Constable Alauddin Mir (U/S), RJMI, Camp of CISF Unit ECL, Seetalpur was detailed in "B" shift duty from 1300 hrs to 2100 hrs on 14.12.2007 at R S 16 Cable Transformer duty post of RJML OCP. During his duty hours miscreants succeeded to take away 116 Mtrs. of Cable with coupling, approximate cost of which is Rs.1,41,000/- (Rupees one lac forty one thousand only) and also reportedly snatched the Walkie-Talkie from his possession. He did not utilize the services of Walkie-Talkie for help while on duty thereby facilitated the miscreants to take away the Cable and cooked up the story of snatching of Walkie-Talkie which was recovered by the police on 15.12.07 about one (01) KM away from R S 16 duty post acting on a telephonic information from someone which clearly indicates his connivance/involvement in the incident. The above act on the part of No. 921401890 Constable Alauddin Mir tantamount to gross misconduct, negligence, dereliction of duty unbecoming of a member of disciplined Force like CISF." 3. An inquiry officer was appointed to conduct the inquiry. The statements of the petitioner as well as the witnesses were recorded. The petitioner was given enough opportunity to disprove the charges levelled against him. He was given an opportunity to cross-examine the witnesses. The inquiry officer prepared his report and handed over a copy of the same to the petitioner. An opportunity to submit written representation against the report of the inquiry officer was also given to the petitioner and the petitioner submitted his written representation against the said inquiry report. The report of the inquiry officer along with the representation made by the petitioner against the same was placed before the disciplinary authority who after considering all the facts, the evidences of the witnesses and other relevant documents passed an order of penalty of dismissal from service with immediate effect on 30th September, 2008. 4. The report of the inquiry officer along with the representation made by the petitioner against the same was placed before the disciplinary authority who after considering all the facts, the evidences of the witnesses and other relevant documents passed an order of penalty of dismissal from service with immediate effect on 30th September, 2008. 4. The petitioner filed a statutory appeal against the final order of dismissal from service. The primary contention raised by the petitioner in the appeal was that the disciplinary authority without applying its mind mechanically passed the order of punishment without providing an opportunity to defend his case. No personal hearing was given by the disciplinary authority before imposing such punishment. The petitioner alleges that there has been violation of principles of natural justice. In his appeal the petitioner further mentioned that there was no charge against him in the last sixteen years of his service. He has an unblemished service career. He has been falsely implicated by jealous officers. The petitioner prayed for exonerating him of the charges. 5. The appeal of the petitioner was duly considered by the appellate authority. The appellate authority opined that due to the careless and negligence of the petitioner 116 metres of cable amounting to approximately Rs.1,41,000/- (Rupees one lac forty one thousand only) was stolen from the cable transformer duty post where and when the petitioner was on duty. The appellate authority further opined that the story made out by the petitioner about the attack by the miscreants and snatching away of walkie-talkie set at the point of a country made pistol was a sheer after thought. The appellate authority opined that the petitioner fabricated the story to cover his misdeeds as there was no proof of attack by the miscreants. The appellate authority held that had the petitioner utilised the walkie-talkie issued to him for duty he could have called for help from the Rajmahal camp but by not utilising the services of the walkie-talkie the petitioner facilitated the miscreants to take away 116 metres of cable. It was further opined that the petitioner cooked up the story of snatching of the walkie-talkie which was recovered by the police on the following day of the incident about one (01) KM away from the duty post. 6. It was further opined that the petitioner cooked up the story of snatching of the walkie-talkie which was recovered by the police on the following day of the incident about one (01) KM away from the duty post. 6. It is the specific case of the petitioner that the place where the incident took place is under control of organized criminals and several criminal activities are conducted by hard-core criminals in the said area. The petitioner has mentioned several incidents of dacoity and encounter between the CISF personnel and the criminals in the said area. The petitioner submits that on the date and time of the incident the petitioner was at the duty post alone, without any arms. There wasn't enough lighting and approximately seven or eight miscreants suddenly attacked him on gun point and snatched away his walkie-talkie and assaulted him severely. Without the walkie talkie he was left with no means to communicate with the camp. He sustained grave injuries but somehow managed to escape and informed the matter to the authorities. He submits that he was admitted in the hospital for treatment of the injury that he sustained at the time of assault by the miscreants. He submits that the article of charge clearly indicates that the charge has been framed with a pre-determined, biased and a closed mind set. He denies that he has any connivance/involvement as regards the theft. He further submits that there has been violation of principle of natural justice as no opportunity of hearing was given to him prior to fixing up the quantum of punishment. 7. He relies upon the decision delivered in the case of Anil Kumar vs. Presiding Officer and Ors. reported in, (1985) AIR SC 1121 (paragraphs 5 and 6). He submits that the disciplinary authority as well as the appellate authority did not apply their mind in the matter and had mechanically dealt with the same. He further submits that the inquiry did not take place in accordance with the statutory rules and there has been contravention of the principles of natural justice. 8. He further relies upon the decision of M.V. Bijlani vs. Union of India & Ors. reported in, (2006) 5 SCC 88 (paragraph 25) and submits that the disciplinary authority while dealing with the case cannot take into consideration any irrelevant fact and at the same time cannot refuse to consider the relevant facts. 8. He further relies upon the decision of M.V. Bijlani vs. Union of India & Ors. reported in, (2006) 5 SCC 88 (paragraph 25) and submits that the disciplinary authority while dealing with the case cannot take into consideration any irrelevant fact and at the same time cannot refuse to consider the relevant facts. He further submits that the disciplinary authority cannot reject the testimony of the witnesses only on the basis of surmises and conjectures. 9. He also relies upon the decision delivered in the case of Union of India & Ors. vs. Gyanchand Chattar reported in, (2009) 12 SCC 78 (paragraphs 25 and 26) on the self-same proposition. 10. He cites the decision delivered in the case of Mohit vs. Union of India, (2018) 2 CalHN 560 (CAL) and submits that the punishment imposed is highly disproportionate to the charges. He prays for an order of reinstatement along with back wages. 11. The learned Advocates for the respondents submit that the entire case of the petitioner is false and concocted. He submits that several witnesses deposed against the petitioner and the petitioner has not been able to disprove the allegations levelled against him. He submits that the punishment that has been imposed is commensurate to the charges. He further submits that the scope of judicial review is highly limited. Enough opportunity was given to the petitioner to defend himself but from the evidence of the witnesses the charges against the petitioner has been proved. He submits that CISF is a disciplined force. Its members are required to maintain the highest level of honesty, sincerity and dedication to the service. He prays for dismissal of the writ petition. 12. In support of his case he relies upon an unreported judgment of this Court dated 23-12-2008 delivered by the Hon'ble Division Bench in FMA No. 1063 of 2007, CAN No. 6953 of 2006 (G. D. Paul vs. Union of India & Ors.) on the issue that lapses and indiscipline on the part of a member of a disciplined force ought not to be treated lightly. He further relies upon the constitution bench decision delivered in the case of Union of India vs. Tulsiram Patel reported in, (1985) AIR SC 1416 (paragraphs 44 & 45) on the proposition that there is no provision for issuing a second show cause notice prior to imposition of penalty. He further relies upon the constitution bench decision delivered in the case of Union of India vs. Tulsiram Patel reported in, (1985) AIR SC 1416 (paragraphs 44 & 45) on the proposition that there is no provision for issuing a second show cause notice prior to imposition of penalty. He cites the decision of High Court of Judicature at Bombay through Registrar vs. Sashikant S. Patil & Anr., (1999) Supp4 SCR 205 on the limited scope of judicial review by the high court under Article 226 of the constitution of India. 13. The Supreme Court in a catena of cases has laid down in clear terms the scope of judicial review by the High Court under Article 226 of the Constitution of India in service matters relating to disciplinary proceedings. It is the consistent view of the court that judicial review is not an appeal in disguise. It is not within the scope and authority of the High Court to re-appreciate evidence and arrive at a different finding. The review is limited only to the extent of satisfying itself that there has not been any instance of breach in the principles of natural justice and that the proceeding has been held in accordance with the relevant rules. See Sashikant (supra). 14. From the orders impugned herein it appears that the petitioner has been served with the charge sheet with specific charges mentioned therein. He was given opportunity to submit his written statement which the petitioner submitted in his defence. An inquiry officer was appointed to inquire into the charges. Deposition of the witnesses was recorded. The petitioner cross examined the witnesses. The report of the inquiry officer was forwarded to the disciplinary authority for passing necessary orders. The disciplinary authority after evaluating the evidence passed order of dismissal of the petitioner from service. The appellate authority reconsidered the case of the petitioner and passed a detailed reasoned order affirming the order of punishment. The allegation of the petitioner as regards non-compliance of the principles of natural justice does not hold good in the facts and circumstances of the instant case. 15. The appellate authority reconsidered the case of the petitioner and passed a detailed reasoned order affirming the order of punishment. The allegation of the petitioner as regards non-compliance of the principles of natural justice does not hold good in the facts and circumstances of the instant case. 15. The submission of the petitioner relying upon the case of Gyan Chand Chattar (supra) that every act of omission on the part of the delinquent cannot be a misconduct also does not have legs to stand upon inasmuch as the authority has come to a specific finding that the omission on the part of the petitioner to use his walkie-talkie to inform and raise alert at the time of need directly allowed the miscreants to steal 116 meters of cable resulting in monetary loss apart from bringing disrepute and disgrace to the force. The plea that the area was not lit up properly was also found to be false. Being a member of a disciplined force the petitioner was expected to perform his duties sincerely and dedicatedly without any carelessness and negligence. The authority after inquiry came to the conclusion that the alibi given by the petitioner for not making the call from his mobile phone and not using the walkie-talkie were all false and concocted. Moreover when the petitioner was aware that the area was infested with criminals and criminal activities flourished there he ought to have been doubly alert and vigilant at the time of duty. There is no occasion for laxity or lethargy while on duty and any failure to perform the duties with utmost integrity, sincerity and honesty is bound to entail serious consequences. 16. Relying upon the principle laid down in the case of Anil Kumar (supra) the petitioner tries to impress that the disciplinary authority did not follow the principles of natural justice and that there isn't enough evidence to prove the charges levelled against the petitioner. The impugned orders clearly mention that the petitioner was given enough opportunity to disprove the allegations made against him which he failed. The depositions of the witnesses prove in no uncertain terms that the petitioner was not truthful and was cooking up stories to mislead the prosecution. The decision of M.V. Bijlani (supra) also does not aid the petitioner in any manner. The depositions of the witnesses prove in no uncertain terms that the petitioner was not truthful and was cooking up stories to mislead the prosecution. The decision of M.V. Bijlani (supra) also does not aid the petitioner in any manner. In fact the said decision supports the case of the respondents wherein the Supreme Court specifically held that charges in a departmental proceeding are not required to be proved like a criminal trial but on preponderance of probability. In the instant case the charge against the petitioner was very specific and deposition was restricted to the charges alone. Hardly any irrelevant fact been taken into consideration. Similarly no relevant fact appears to have been missed out by the authority. The judgment in the case of Mohit (supra) also reiterates the settled proposition of law that the writ court has no jurisdiction to adjudicate upon the findings of a disciplinary authority. 17. The submission of the petitioner as regards disproportionate punishment also cannot be interfered by this court in view of the proposition that imposition of penalty and quantifying the punishment is the sole domain of the employer and unless the same is shockingly disproportionate the same ought not to be interfered with. The gravity of the charges levelled against the petitioner is such that the punishment imposed does not call for any interference especially when the disciplinary authority arrived at a definite finding that the incident of theft of such huge quantity of cable could not have been possible without the connivance and involvement of the petitioner. A dishonest person does not deserve to be a member of the disciplined security force. 18. In view of the discussions made herein above there is no scope to grant any relief to the petitioner. The writ petition fails and is hereby dismissed. 19. There will, however, be no order as to costs. 20. Urgent certified photocopy of this judgment, if applied for, be supplied to the parties on compliance of usual legal formalities.