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2019 DIGILAW 1158 (GAU)

Pushpa Kumari v. Union of India

2019-10-25

SANJAY KUMAR MEDHI

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JUDGMENT : SANJAY KUMAR MEDHI, J. The extra-ordinary jurisdiction of this Court has been sought to be invoked by filing this writ petition under Article 226 of the Constitution of India. The petitioner has put to question an order of penalty dated 31.12.2014, by which, she was removed from her service after a disciplinary proceeding. The said order was unsuccessfully challenged by the petitioner by filing a Departmental Appeal as well as a Revision and thereafter, the instant petition has been filed. 2. The facts of the case can be briefly stated as follows. 3. The petitioner was appointed as Lady Constable (GD) in the Central Industrial Security Force (hereafter ‘CISF’) and was posted at the Oil India Limited, Duliajan. The petitioner and her family, who are originally from Bihar, were residing at the Official Quarter at Duliajan. While in duty, the petitioner was placed under suspension vide an order dated 19.02.2013, contemplating a disciplinary proceeding on the charge of unauthorized absence of 40 (forty) days. In the enquiry so held, the petitioner had admitted the charge and taking into consideration the facts and circumstances of the case, a final order of penalty dated 09.03.2013, was passed by the Disciplinary Authority, whereby, a penalty of reduction in pay scale by 2 (two) stages was imposed upon the petitioner. It was further stated that the petitioner would not be entitled to any financial benefits for the period she was kept under suspension. 4. It appears that by invoking the provisions of Rule 54 of the Central Industrial Security Force Rules, 2001, the Deputy Inspector General, CISF, issued an order dated 01.08.2013, concluding that the charge against the petitioner was very serious in nature and accordingly, the earlier order of penalty dated 09.03.2013, was set aside with a direction to conduct a further enquiry. 5. Pursuant thereto, vide subsequent orders dated 19.08.2013, an Enquiry Officer and Presenting Officer were appointed to conduct a fresh enquiry. The Enquiry Officer vide report dated 04.12.2013, had come to a finding that the charge against the petitioner was proved. It may be mentioned that even in the initial enquiry, it was a case where the petitioner had admitted the charge. Thereafter, a final order dated 31.12.2013, was passed by the Commandant, CISF, by which, the penalty of removal from service was imposed upon the petitioner. It may be mentioned that even in the initial enquiry, it was a case where the petitioner had admitted the charge. Thereafter, a final order dated 31.12.2013, was passed by the Commandant, CISF, by which, the penalty of removal from service was imposed upon the petitioner. In the said order, it has been reflected that on completion of the enquiry, the Enquiry Officer had submitted his report along with the case file to the Disciplinary Officer on 04.12.2013 and the Disciplinary Officer found the enquiry report in conformity with the Rules and keeping in view the subject of natural justice, forwarded a copy of the same vide order dated 14.12.2013 to have the views of the petitioner. This aspect of the matter would be dealt with later in this judgment. It may be mentioned that against the final order of removal, the petitioner had preferred a Departmental Appeal which was, however, rejected vide an order dated 24.02.2014. The petitioner, thereafter, availed the recourse of filing a Revision which was also rejected vide an order dated 17.10.2014. 6. I have heard Shri P.K. Deka, learned counsel for the petitioner as well as Shri S.C. Keyal, learned Assistant Solicitor General of India, appearing on behalf of all the respondents. 7. Shri Deka, learned counsel for the petitioner, at the outset, has fairly submitted that he would be mainly confining his arguments on the quantum of the punishment as initially the charge in question was admitted by the petitioner. Additionally, Shri Deka, learned counsel, submits that there has been procedural impropriety in the enquiry and without any reason, the initial penalty, which was accepted by the petitioner, was set aside and a new enquiry was directed to be conducted. Shri Deka, learned counsel, has also indicated that the requirement of affording an adequate opportunity to safeguard the delinquent has not been adhered to in the proceedings which rendered the enquiry a nullity in law. 8. The learned counsel has submitted that the penalty in question has to be examined viz-a-viz the quantum of charge. Admittedly, in the instant case, the charge is of unauthorized absence of 40 days. 8. The learned counsel has submitted that the penalty in question has to be examined viz-a-viz the quantum of charge. Admittedly, in the instant case, the charge is of unauthorized absence of 40 days. Though it cannot be said that the said charge is not serious, what is to be considered as to whether the said charge should invite the extreme penalty of removal from service, moreso, when initially the Disciplinary Authority was of the view that a penalty of lowering in 2 (two) scales of pay would be sufficient and indeed vide order dated 09.03.2013, such penalty was imposed and consequential order thereto was also passed on 20.04.2013. There is nothing on record to show as to what led the authorities to issue the subsequent order dated 01.08.2013, by which, the earlier penalty was set aside and a new disciplinary enquiry was directed to be initiated. It is also failed to be understood as to why recourse of having another enquiry by appointing a fresh Enquiry Officer and Presenting Officer was required in view of the earlier admission of the charge by the delinquent petitioner. Though it is a fact that the admission was later on retracted, when the earlier penalty of reduction of scale of pay by 2 (two) stages, was accepted by the petitioner, there was in fact no further requirement of again undertaking an exercise to prove the same very charge. This Court has also considered the fact that even while doing so, the principle of natural justice and affording all necessary safeguards to the petitioner was not adhered to inasmuch as before giving the petitioner an opportunity to represent against the enquiry report, which was against her, it appears that the Disciplinary Authority had already applied mind and has also come to a finding that the enquiry was conducted in accordance with law. 9. For ready reference, the part of the final order containing the said observation is extracted herein below— “On completion of the enquiry, the E.O. submitted his report along with the case file to the Disciplinary Officer (D.O.) on 04.12.2013. In his report, the E.O. commented that the Charges leveled against the accused persons were fully established. 9. For ready reference, the part of the final order containing the said observation is extracted herein below— “On completion of the enquiry, the E.O. submitted his report along with the case file to the Disciplinary Officer (D.O.) on 04.12.2013. In his report, the E.O. commented that the Charges leveled against the accused persons were fully established. The D.O. found the enquiry report in conformity with the rules and keeping in view the concept of natural justice, forwarded a copy of the report to the accused vide letter No. B-15014/Major-06/PK/L&D/OIL II/13-12374 dtd 14.12.2013, and directed the accused to submit her written objection, if any, to him within 15 days of receipt thereof.” 10. Though that itself would have been a ground for interference with the impugned action, it is seen that the authorities had opted to impose the major penalty of removal from service for the charge of unauthorized absence for 40 days. As stated above, both the Departmental Appeal and the Revision was rejected by the authorities. 11. The statute holding the field, namely, the CISF Rules, 2001, lays down the procedure of imposition of penalties and also the nature of penalties. Amongst major penalties as envisaged in Rule 34 of the said Rules, Removal as well as Reduction to lower time scale of pay are prescribed. It is seen that the proceeding against the petitioner had culminated in a final order of penalty of reduction of lowering the pay scale by 3 (three) stages of the petitioner which itself is a major penalty and there is nothing on record to show as to why there was a requirement to review the said exercise by invoking the powers under Rule 54 of the Act. 12. Shri Keyal, learned counsel, however, contends that every case has to be decided on its own facts and the present is a case where the petitioner belongs to a disciplinary force. Unauthorised absence in other organization cannot be equated to with a disciplinary force and therefore, the authorities are fully justified in imposing the penalty of removal. 13. The rival contentions of the learned counsels have been duly considered. Unauthorised absence in other organization cannot be equated to with a disciplinary force and therefore, the authorities are fully justified in imposing the penalty of removal. 13. The rival contentions of the learned counsels have been duly considered. Though Shri Keyal, learned Assistant Solicitor General of India, may be correct in his proposition that each case has to be decided on its facts and that unauthorized absence in a disciplinary force cannot be equated to the case of unauthorized absence in other civil organization, what is significant to note in this case is that the authorities having come to a conclusion to culminate the earlier proceeding by imposing the penalty of reduction by lowering of scale by 3 (three) stages, which itself a major penalty, what were the incriminating circumstances which led the authorities to set aside the earlier proceedings and initiate a new enquiry when the petitioner herself had admitted the said penalty. 14. Shri Deka, learned counsel, has placed reliance on certain case laws regarding the proportionality. This Court, however, is of the opinion that there is no dispute that the charge involved in this case is a grave charge considering the organization the petitioner was employed is a disciplined force. However, the interference which this Court is making is only because of the fact that the disciplinary proceeding having culminated in an order of major penalty in the form of lowering of scale by 3 (three) stages, without any justifiable reason or materials, there was no action to redo the same exercise which had culminated in an order of removal from service. 15. In view of the aforesaid facts and circumstances, this Court is of the opinion that the impugned order of penalty of removal of service is liable for interference and accordingly, the same is set aside. This Court, however, does not make any observation on the legality and validity of the initial penalty of reduction of lowering of pay scale by 3 (three) stages as the same is not the subject matter of challenge in this proceeding. It is clarified that since the subsequent action is the subject matter of challenge, the initial penalty as imposed vide the order dated 09.03.2013, will remain intact. 16. The writ petition is, accordingly, disposed of. 17. As the removal is set aside, the petitioner would be consequently entitled for reinstatement with all notional benefits.