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2020 DIGILAW 180 (JK)

Jasbir Singh v. Senior Commandant, Cisf

2020-03-19

SANJEEV KUMAR

body2020
JUDGMENT 1. Impugned in this writ petition is the show cause notice dated 23.03.2013 issued by respondent no.2 whereby the petitioner has been given an opportunity to intimate as to why he be not awarded the proposed penalty of 'removal from service'. 2. An advertence, though brief, to the factual antecedents leading to the filing of this writ petition, would be advantageous to appreciate the grounds of challenge urged by the petitioner to assail the impugned notice in proper perspective. 3. The petitioner is a Sub-Inspector working in Central Industrial Security Force ('CISF' for short). At the relevant point of time i.e. on 12.02.2011, the petitioner was on duty at Taj Mahal, Agra and was shift in-charge of the East Gate from 0500 hours to 1300 hours in the morning. It is alleged that the petitioner managed entry for 13 staff members of Kasturba Gandhi Girls School inside Taj Mahal campus without tickets and collected Rs.200/- illegally and unauthorisedly from the staff members of the School aforesaid on the assurance that he would provide them with tickets. On the basis of these allegations, a disciplinary enquiry was ordered and the petitioner was served with a memorandum of charges under Rule 36 of the CISF Rules, 2001 (for short 'Rules of 2001'). The petitioner pleaded not guilty to the allegations and, accordingly, the Enquiry Officer appointed by the Disciplinary Authority conducted a detailed enquiry into the aforesaid charges and concluded that the charges against the petitioner were not proved. The enquiry report was submitted to the Disciplinary Authority, who also agreed with the findings of the Enquiry Officer and exonerated the petitioner of the charges vide final order No.1621 dated 15 th August, 2011. 4. The matter did not end there. Respondent No.3, acting in the exercise of powers conferred upon him under Rule 54 of Rules of 2001 and after examination of disciplinary proceedings and finding some procedural infirmities and technical flaws in the enquiry, quashed the final order of exoneration of the petitioner from the charges leveled against him and ordered de novo enquiry into the allegations leveled against the petitioner. Accordingly, the Disciplinary Authority appointed one Sh. S.K.Sinha, Assistant Commandant as Enquiry Officer to conduct the de novo enquiry. The Enquiry Officer, however, found the charges against the petitioner proved in the de novo enquiry and submitted its report to the Disciplinary Authority. Accordingly, the Disciplinary Authority appointed one Sh. S.K.Sinha, Assistant Commandant as Enquiry Officer to conduct the de novo enquiry. The Enquiry Officer, however, found the charges against the petitioner proved in the de novo enquiry and submitted its report to the Disciplinary Authority. The petitioner represented against the findings of the Enquiry Officer and the Disciplinary Authority, after considering his representation, did not agree with the Enquiry Officer and exonerated the petitioner of the charges vide its order No.3323 dated 30.09.2012. Thereafter, respondent No.2 called the file of disciplinary proceedings for examination as per the provisions of Rule 54 of Rules of 2001 and found that the de novo enquiry conducted by the Enquiry Officer was as per the rules and the articles of charges had been proved by the evidence of the witnesses as well as the CCTV footage and, therefore, reversed the decision of the Disciplinary Authority. He issued show cause notice (impugned herein) to the petitioner, calling upon him to show cause as to why he be not inflicted with the penalty of 'removal from service'. It is this show cause notice which is impugned in this petition. 5. The impugned notice has been assailed by the petitioner, inter alia, on the following grounds: (i) That the proposed punishment of 'removal from service' is shockingly disproportionate to the alleged misconduct attributed to the petitioner; (ii) That the provisions of Rule 54 of Rules of 2001 have been invoked twice, illegally and arbitrarily and, therefore, the impugned notice is bad in the eyes of law; (iii) That the impugned show cause notice has been issued by respondent No.2 after formulating opinion that the petitioner deserves to be removed from the service and, therefore, is a mere formality; (iv) That the petitioner stood exonerated in two enquiries conducted by the Enquiry Officers in the self-same charges and, therefore, there was no warrant for invoking Rule 54 of CISF Rules 2001. (v) That the impugned notice is based upon no material and, therefore, is illegal and arbitrary. 6. (v) That the impugned notice is based upon no material and, therefore, is illegal and arbitrary. 6. The respondents have filed their reply affidavit and have justified the issuance of show cause notice on the ground that Rule 54 of Rules of 2001 confers powers on the Revisional Authority i.e. any authority superior to the authority making an order, to call for the records of any enquiry either on his own motion or otherwise and revise such order confirming, modifying or setting aside the same. It is submitted that there was enough evidence against the petitioner in the de novo enquiry on the basis of which the second Enquiry Officer had found the petitioner guilty of charges and, therefore, the Disciplinary Authority could not have taken a contrary view and exonerated the petitioner. The maintainability of the petition too has been challenged on the ground that the impugned notice is only a show cause notice against which no writ lies. 7. Heard learned counsel for the parties and perused the record of enquiry. 8. It is well settled that ordinarily writ petition is not maintainable against the show cause notice and the aggrieved person is well within his right to reply the show cause notice. However, if the show cause notice is without jurisdiction or has been issued with premeditation or is otherwise mala fide, this Court may entertain the writ petition. In the case of Siemens Limited vs State of Maharashtra, (2006) 12 SCC 33 , the Honble Supreme Court, in paragraphs 9 and 11 of the judgment, held thus: '9 Although ordinarily a writ court may not exercise its discretionary jurisdiction in entertaining a writ petition questioning a notice to show cause unless the same inter alia appears to have been without jurisdiction as has been held by this Court in some decisions including State of Uttar Pradesh v. Brahm Datt Sharma and Anr. AIR 1987 SC 943 , Special Director and Another v. Mohd. Ghulam Ghouse and Another, (2004) 3 SCC 440 and Union of India and Another v. Kunisetty Satyanarayana, 2006 (12) SCALE 262 ] , but the question herein has to be considered from a different angle, viz, when a notice is issued with pre-meditation, a writ petition would be maintainable. AIR 1987 SC 943 , Special Director and Another v. Mohd. Ghulam Ghouse and Another, (2004) 3 SCC 440 and Union of India and Another v. Kunisetty Satyanarayana, 2006 (12) SCALE 262 ] , but the question herein has to be considered from a different angle, viz, when a notice is issued with pre-meditation, a writ petition would be maintainable. In such an event, even if the courts directs the statutory authority to hear the matter afresh, ordinarily such hearing would not yield any fruitful purpose [See K.I. Shephard and Others v. Union of India and Others (1987) 4 SCC 431 : AIR 1988 SC 686 ]. It is evident in the instant case that the respondent has clearly made up its mind. It explicitly said so both in the counter affidavit as also in its purported show cause. 11 A bare perusal of the order impugned before the High Court as also the statements made before us in the counter affidavit filed by the respondents, we are satisfied that the statutory authority has already applied its mind and has formed an opinion as regards the liability or otherwise of the appellant. If in passing the order the respondent has already determined the liability of the appellant and the only question which remains for its consideration is quantification thereof, the same does not remain in the realm of a show cause notice. The writ petition, in our opinion, was maintainable'. 9. In the light of the settled legal position when the impugned show cause notice is examined, it clearly transpires that respondent No.2, after going through the record of second enquiry, came to the conclusion that the material collected during the enquiry did not justify exoneration of the petitioner from the charges and that the petitioner deserved to be inflicted major penalty of 'removal from service'. The impugned notice only provides the petitioner an opportunity to show cause as to why he be not awarded the proposed penalty, whereas the guilt of the petitioner is already concluded by respondent No.2. It is noteworthy that the Disciplinary Authority, after considering the enquiry report submitted by the second Enquiry Officer and the representation filed by the petitioner against such enquiry had exonerated the petitioner of the charges. 10. It is noteworthy that the Disciplinary Authority, after considering the enquiry report submitted by the second Enquiry Officer and the representation filed by the petitioner against such enquiry had exonerated the petitioner of the charges. 10. It is true that in terms of Rule 54 of Rules of 2001, respondent No.2 was well within his powers to summon the record of enquiry and revise the order passed by the Disciplinary Authority. He was also empowered by Rule 54 of Rules of 2001 to confirm, modify or set aside the order or even impose any penalty where no penalty had been imposed, but, in the instant case, respondent No.2, in terms of order impugned, has proposed to inflict major penalty of 'removal from service' after holding the petitioner guilty despite his exoneration of the charges by the Disciplinary Authority. It was, thus, a pure and simple case of the Revisional Authority differing with the Disciplinary Authority and, therefore, before reversing the exoneration of the petitioner of the charges leveled against him, it was incumbent upon respondent No.2 to first hear the petitioner. 11. As is apparent from the plain reading of the impugned notice, the conclusion with regard to the guilt of the petitioner, who stood exonerated by the Disciplinary Authority, has been arrived at by respondent No.2 ex parte and without affording him an opportunity of being heard. The petitioner has been straightway put on show cause notice for proposed penalty. He has not been given the relevant material relied upon by respondent No.2 to take a view contrary to the Disciplinary Authority and this has rendered the show cause notice a mere formality or a ritual, whereas the Revisional Authority has predetermined that the petitioners deserves to be inflicted major penalty of 'removal from service'. 12. That apart, the gist of statements recorded before the Enquiry Officer which have been strongly relied upon by respondent No.2 to hold the petitioner guilty, do not, in any probability, implicate the petitioner in the charges leveled against him. It has come amply on record that the complainant Kavita Verma had paid Rs.300/- to one Mr. Vivek Kumar (Guide) and not to the petitioner. It has come amply on record that the complainant Kavita Verma had paid Rs.300/- to one Mr. Vivek Kumar (Guide) and not to the petitioner. The complainant Kavita Verma, in her statement before the Enquiry Officer, has deposed that on 12.02.2011 when she along with others reached East Gate, they came to know that the tickets would be given from the other Gate and the Guide standing there told that he would arrange tickets for them from the other Gate. She sent her school peon Arun Pratap Singh along with Rs.300 with the Guide. The Guide received Rs.200/-and returned Rs.100/- to Arun Partap Singh and in the meanwhile, the school children and the staff entered the Taj Mahal premises. She further stated that after 20 to 25 minutes when she was talking about the Guide having not turned up with tickets, a lady home guard accompanying them suggested to go to enquiry office. In the enquiry officer, a person in civil uniform, told her to lodge a complaint in writing and in the meantime, the Guide also came and gave her 13 tickets, but by that time, she had already given her complaint in writing. 13. Going by the statement of complainant, explaining the sequence of events that had taken place on 12.02.2011 outside Taj Mahal premises and also looking to CCTV footage wherein the petitioner was only seen coming inside and going out of the East Gate, the guilt of the petitioner cannot be said to have been established by any reasonable probability and preponderance of evidence. It is true that a member of disciplined force is required to behave exemplary and cannot be permitted to commit acts or omissions which are calculated to tarnish the image of the force, yet the major penalty of 'removal from service' cannot be inflicted on such member without there being any sufficient material. 14. It is true that a member of disciplined force is required to behave exemplary and cannot be permitted to commit acts or omissions which are calculated to tarnish the image of the force, yet the major penalty of 'removal from service' cannot be inflicted on such member without there being any sufficient material. 14. In the instant case, as noted above, the findings of guilt were arrived at by respondent No.2 taking a view contrary to the one taken by the Disciplinary Authority, as such, in my opinion, at this stage also, the petitioner was entitled to an opportunity of being heard as the enquiry record reveals that respondent No.2 did not provide requisite material, particularly the enquiry report and the decision of the disciplinary authority to the petitioner along with impugned show cause notice, so as to provide the petitioner a reasonable opportunity of making effective representation against the penalty proposed. 15. Keeping in view the totality of circumstances and the fact that the petitioner has been subjected to disciplinary enquiry twice; in the first enquiry, he was exonerated by the Enquiry Officer and in the de novo enquiry, the Disciplinary Authority, disagreeing with the findings of the second Enquiry Officer, again exonerated him; I am of the view that invoking Rule 54 of Rules of 2001, yet again, was totally uncalled for. That apart, respondent No.2 acted in sheer violation of principles of natural justice and reversed the findings of the Disciplinary Authority exonerating the petitioner of the charges leveled against him without giving him an opportunity of being heard. 16. The show cause notice was issued after holding the petitioner guilty ex parte and predetermining that on the basis of evidence available in the second enquiry, the petitioner deserved to be removed from the service. The observation of respondent No.2 in the impugned notice, that he was exercising the powers under Rule 54 of Rules of 2001 only for the purposes of enhancing the penalty, is totally absurd. Exoneration of charges is not a penalty envisaged under Rule 34 of CISF Rules which is classified as major and minor penalty. The impugned notice has, thus, proceeded on a wrong premise and, therefore, cannot be held to be in consonance with law. Exoneration of charges is not a penalty envisaged under Rule 34 of CISF Rules which is classified as major and minor penalty. The impugned notice has, thus, proceeded on a wrong premise and, therefore, cannot be held to be in consonance with law. Even on merits, the findings recorded by respondent No.2 in paragraph 4 are not in consonance with the evidence collected during the second enquiry conducted against the petitioner. 17. For all these reasons, I find merit in this petition and hold that the impugned notice is nothing short of an attempt by the respondents to vex the petitioner again and again for the same charges. Accordingly, this petition is allowed. The impugned show cause notice is quashed. Record be returned to the learned counsel for the respondents.