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2019 DIGILAW 966 (GAU)

Union of India v. Santosh Kumar Singh

2019-08-29

ARUP KUMAR GOSWAMI, SANJAY KUMAR MEDHI

body2019
JUDGMENT : Sanjay Kumar Medhi, J. 1. This intra-court appeal has been preferred by the Union of India and two others against a Judgment and Order dated 10.05.2018 passed by the learned Single Judge in WP (C) No. 4517/2008. The said writ petition was instituted by the present Respondent No. 1 as the petitioner whereby, an order of penalty of dismissal from service following a disciplinary proceeding was successfully challenged before the learned Single Judge. 2. The brief facts of the case may be culled down as follows. 3. The Respondent No. 1 (writ petitioner) was a Constable in the Central Industrial Security Force (CISF). While in service, a Charge Memo dated 30.04.1996 was served upon him whereby two charges were levelled against him. For better appreciation, the articles of charges are quoted herein below: "ARTICLE-I That No. 912292014 Constable Santosh Kumar of CISF Unit ONGC (DVP) Jorhat who was detailed for duties at GP-87 Camp Cholapathar manhandled SI/Exe R.G. Karnan, Incharge field party GP-87 and GP-8 on 17.1.96 at about 0930 hrs. The act of above Constable amounts to gross indiscipline and misconduct being a member of the force. Hence the charge. ARTICLE-II No. 912292014 Constable Santosh Kumar of CISF Unit ONGC (DVP) Jorhat was detailed for duties at GP-87 Camp Cholapathar on 17.1.96. At about 0930 hrs SI/Exe R.G. Karnan, Incharge field party GP-87 and GP-8 came to the mess of GP-87. While SI/Exe R.G. Karnan was doing official conversation with No. 711520077 HC/GD K.P. Tiwari, in the mean time No. 912292014 Constable Santosh Kumar who was detailed for duty at main gate of GP-87 entered the mess and used vulgar words in his regional/local language, SI/Exe R.G. Karnan objected to the language of the Constable Santosh Kumar and advised him to speak properly. On that No. 912292014 Constable Santosh Kumar stating pushing and manhandled SI/Exe R.G. Karnan till he fell down. Thus he exhibited gross indiscipline and misconduct." 4. On that No. 912292014 Constable Santosh Kumar stating pushing and manhandled SI/Exe R.G. Karnan till he fell down. Thus he exhibited gross indiscipline and misconduct." 4. The pleaded case of the writ petitioner was that in connection with the aforesaid Charge Memo, an enquiry authority was appointed before whom he had submitted a written application dated 20.07.1996 whereby five documents were requested to be furnished with i.e. (1) Special Report, (2) Medical Report, (3) the previous statement of the SI R.G. Karnan, (4) the Report of the Investigator and (5) the Report given by Sri R.G. Karnan to the disciplinary officer immediately after the incident. 5. Out of the aforesaid five nos. of documents, only the documents against serial nos. 1 and 2 i.e. Special Report and Medical Report were furnished to the writ petitioner and the rest were denied. In the enquiry so held, the department presented five nos. of witnesses and Medical Report and Special Report which were also exhibited through the witnesses. The writ petitioner also adduced four nos. of defence witnesses. It is the case of the petitioner that no Presenting Officer was appointed in the disciplinary proceeding and the Enquiry Officer acted as the Presenting Officer. 6. From a perusal of the records produced before us, so far as PW-2 Shri K.P. Tiwari is concerned, inconsistencies are seen in his testimony given on 12.08.1996 and the reexamination done on 17.08.1996. 7. PW-4 K. Subervalu also changed his version given on 22.07.1996 and later when examined on 12.08.1996. 8. PW-5 i.e. Constable S.K. Meena deposed that his earlier statement was made on duress and was not the correct version and had deposed regarding some scuffle. 9. It is not in dispute that the incident having occurred on 17.01.1996, the related disciplinary proceeding would be under the Central Industrial Security Force Rules, 1969. As per the said Rules, the delinquent should be given adequate opportunity to inspect the records and also to take extracts thereof. It is the further case of the writ petitioner that though against the order of penalty of dismissal an appeal was preferred, the same was not considered. It is the further case of the petitioner that he had initially approached the Hon'ble Allahabad High Court. The Hon'ble Allahabad High Court, however vide order dated 15.09.2006 dismissed the petition for want of jurisdiction. It is the further case of the petitioner that he had initially approached the Hon'ble Allahabad High Court. The Hon'ble Allahabad High Court, however vide order dated 15.09.2006 dismissed the petition for want of jurisdiction. It is only thereafter that the writ petitioner has successfully challenged the impugned order before this Court. 10. We have heard Shri S.C. Keyal, learned Assistant Solicitor General of India appearing on behalf of the appellants as well as Shri R. Mazumdar, learned counsel for the respondent/writ-petitioner. As indicated above, the records of the proceeding have been produced before us, which have been carefully examined. 11. Shri Keyal, the learned ASGI has submitted that interference by a writ court in disciplinary proceedings is not to be done in a routine manner, more so, when the same involves a disciplined force. In the instant case, it is submitted that there is no procedural irregularity or illegality which warrants interference by this Court against the penalty imposed. It is further submitted that since out of five documents, though three of the documents were not given to the delinquent, they were not used against the writ-petitioner, and therefore, no prejudice whatsoever has been suffered by him due to non-furnishing of the said documents. It is further submitted that the facts and circumstances of the case are such that the involvement of the petitioner in assault of a senior officer is proved and therefore, he is liable to be awarded a penalty in accordance with law. As regards absence of a Presenting Officer, it is submitted that such presence is not mandatory and absence by itself will not vitiate the proceeding. 12. Per contra, Shri Mazumdar, the learned counsel for the writ-petitioner/respondent submits that the reason of non-furnishing of the three documents which were relied upon in the enquiry is that the contents of the said documents were in favour of the petitioner and if the same were with the petitioner, he would have been in a position to confront the witnesses with such documents. It is in this context, it is submitted that the plea that the three documents which were not furnished with the petitioner were not utilised against him falls through. It is in this context, it is submitted that the plea that the three documents which were not furnished with the petitioner were not utilised against him falls through. It is the categorical stand of the petitioner that there was no occasion to initiate a disciplinary proceeding and therefore imposition of the penalty of removal from service was wholly uncalled for which is otherwise also grossly disproportionate and excessive. It is further submitted that no Presenting Officer was appointed in the disciplinary proceeding and the Enquiry Officer also played the role of the Presenting Officer. The said action itself vitiates the entire proceeding and is against the basic principles of natural justice. The witnesses in the disciplinary proceeding were made to change their versions with the only intention to fulfil the desired objectives. 13. Shri Mazumdar also submits that an Appellate Court considering the intra-court appeal is not required to substitute its own views against the views expressed by the learned Single Judge when such views are plausible and possible. It is settled law that only because another view is permissible to be taken as per law, the view of the Hon'ble Single Judge should not be interfered with. 14. The rival submissions of the learned counsels for the parties have been duly considered. The learned Single Judge after discussing the various case laws holding the field came to the conclusion that the Enquiry Officer cannot assume the dual role of a Judge and a Prosecutor. The said view, in our respectful opinion, is based upon the common law doctrine namely justice, equity and good conscience and therefore there cannot be any scope to interfere with such findings. We have also carefully examined the records of the disciplinary proceeding produced before us which suggest in sufficient terms that the Enquiry Officer had also assumed the role of the Presenting Officer. This aspect of this matter has been specifically dealt with by the learned Single Judge in paragraph 14 of the judgment which is quoted herein below: "The new repealed CISF Rules, 1969 was substituted by the Central Industrial Security Force Rules, 2001 (hereinafter referred to as ‘the CISF Rules, 2001’). The Note appended to Sub-Rule (16) of Rule 36 of the CISF Rules, 2001, prohibits new evidence or recall of witness to fill up the gap in the evidence. The Note appended to Sub-Rule (16) of Rule 36 of the CISF Rules, 2001, prohibits new evidence or recall of witness to fill up the gap in the evidence. The Court is conscious here that the DP relates to an incident (17.1.1996) when the CISF Rules, 2001 was occupying the field. But there can be no quarrel with the general principle that an Enquiry Officer cannot assume the dual role of Judge and Prosecutor. Therefore, absence of similar prohibitory provision in the earlier CISF Rules, 1969 will not alter the legal position on the neutrality, expected from the Enquiry Officer. We would go further to record that the proceeding is also vitiated because of non-furnishing of essential documents to the delinquent which has caused prejudice to him and the ground of prejudice has been specifically pleaded in the writ petition. In fact the respondent/writ petitioner has provided sufficient indication that the contents of the documents which were not furnished to him were in his favour and in that view of the matter, the appellant cannot take the plea that since the documents were not used against the respondent delinquent, those were not required to be furnished to him." 15. As regards the direction for reinstatement of the petitioner instead of ordering a de novo enquiry, we find that the learned Single Judge has taken into consideration the long period of 22 years which have already passed and therefore the present is not a fit case for remand and such direction, in our view is a reasonable and justified one. 16. The principles to be followed by an Appellate Court deciding an intra-court appeal are well recognised. It has been laid down that if the opinion expressed by the learned Single Judge is a plausible and possible opinion, only because of the fact that an alternate opinion is available, the same should not normally be interfered with. Interference with the view of the learned Single Judge may be justified only when the view so arrived at is unreasonable or perverse, which is not the situation in the instant case. For ready reference one may gainfully refer to the case of the Hon'ble Apex Court in the case of Management of Narendra and Company Private Limited vs. Workmen of Narendra and Company, (2016) 3 SCC 340 . 17. For ready reference one may gainfully refer to the case of the Hon'ble Apex Court in the case of Management of Narendra and Company Private Limited vs. Workmen of Narendra and Company, (2016) 3 SCC 340 . 17. In view of the aforesaid facts and circumstances and the discussions, we do not find any case for interference with the Judgment and Order dated 10.05.2018. 18. Accordingly, this appeal stands dismissed.