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2020 DIGILAW 202 (CAL)

Wangkhemayum Bishonath Singh v. Union Of India

2020-02-12

AMRITA SINHA

body2020
JUDGMENT Amrita Sinha, J. - The petitioner was a member of the Central Industrial Security Force (CISF for short). Pursuant to a disciplinary proceeding initiated against him he was placed under suspension. The petitioner was served with the memorandum of charges followed by the article of charge. Copy of the documents and the list of witnesses relied upon by the employer was provided to him. A Presenting officer and an Inquiry Officer were appointed. A regular disciplinary proceeding was held. The Presenting officer submitted that the petitioner ought to get the benefit of doubt. The Inquiry Officer arrived at the conclusion that the charges against the petitioner stood proved. The disciplinary authority after going through the documents and upon perusal of the depositions came to the conclusion that the charged official was guilty of the charges imposed upon him. He was imposed the punishment of reduction of pay by three stages in the revised pay band and grade pay for a period of three years with immediate effect. He would not earn increments of pay during the period of reduction and the same would have the effect of postponing his future increments of pay. 2. The petitioner preferred an appeal against the order of penalty and the Appellate Authority opined that there is no reason to interfere with the order of punishment and rejected the appeal of the petitioner. The petitioner accepted the order of the Appellate Authority. 3. The Inspector General conducted a suo motu review of the disciplinary proceeding and invoked the provision of Rule 54 of the CISF Rules, 2001 and proposed to enhance the penalty to "dismissal from service". The petitioner was given an opportunity to submit his representation against the proposed punishment. On consideration of the representation made by the petitioner the Inspector General passed the order of penalty of dismissal from service. 4. The petitioner is aggrieved by the order of dismissal from service and has filed the instant writ petition praying for quashing the penalty imposed upon him. 5. It has been submitted that according to Rule 36(5)(c) of CISF Rules, 2001 when a disciplinary authority itself enquires into any articles of charge or appoints an inquiry authority for holding any enquiry it may, by order, appoint a member of the Force to be known as the 'presenting officer' to present on its behalf the case in support of the article of charge. It has been submitted that as the disciplinary authority appointed a presenting officer accordingly the brief submitted by the presenting officer is the brief of the disciplinary authority. 6. In support of the aforesaid contention the petitioner has relied upon an unreported judgment passed by a coordinate Bench of this court on 22nd March, 2011 in WP 7141 (W) of 2006 S. K. Ajmer -vs- Union of India & Ors. wherein the court held that the case the presenting officer submitted before the Inquiring Authority is actually the case of the disciplinary authority and the disciplinary authority was bound by what the presenting officer submitted before the Inquiring Authority. The disciplinary authority taking a stand contrary to the one taken by the presenting officer before the Inquiring Authority is without jurisdiction. 7. The petitioner submits that the allegation which has been brought against the petitioner does not relate to his employment, did not take place in the course of his employment, did not take place within the duty hours or at the place of duty and accordingly the disciplinary proceeding is not maintainable and bad in law. 8. In support of the aforesaid contention the petitioner relied upon the decision delivered by the Hon'ble Division Bench of the Orissa High Court reported in the matter of Prahallad Padhi -vs- Secretary, Department of Water Resources, Bhubaneswar & Ors., 2009 LabIC 2182 wherein the court held that as the misconduct arises out of a criminal charge which does not relate to the office and has not been committed in the course of employment or at the place of employment or in connection with the employment the disciplinary proceeding may not be permissible. 9. The petitioner relies upon the decision delivered by the Hon'ble Supreme Court in the matter of M/s. Glaxo Laboratories Ltd. -vs- Presiding Officer, Labour Court, Meerut & Ors., 1984 1 SCC 1 on the issue that if the misconduct does not fall within the enumerated misconducts in the relevant standing order, the same would not attract any penalty in a disciplinary proceeding. 10. 10. The petitioner further relies upon the judgment delivered by the Hon'ble Supreme Court by a three Judge Bench in the matter of A. L. Kalra -vs- Project and Equipment Corporation of India Ltd., 1984 3 SCC 316 wherein the court held that failure to keep high standard of moral, ethical or decorous behaviour befitting an officer of the Company by itself cannot constitute misconduct unless the specific conduct falls in any of the enumerated misconduct. Where misconduct when proved entails penal consequences, it is obligatory on the employer to specify and if necessary define it with precision and accuracy so that any ex post facto interpretation of some incident may not be camouflaged as misconduct. 11. The petitioner prays for setting aside the order passed in the disciplinary proceeding and in the suo motu review and to reinstate him in service along with all consequential benefits. 12. The respondents on the other hand submit that the order passed under Rule 54 of the CISF Act is appealable in terms of Section 9(1) of the CISF Act which in turn is revisable under Section 9(2A) of the CISF Act. It has been submitted that as per Section 15 of the CISF Act, 1968 every member of the post shall for the purpose of this Act be considered to be always on duty and shall at any time be liable to be employed at any place within India. It has been argued that on the relevant date the petitioner was very much on duty and he was requested to perform night duty and accordingly the petitioner cannot be said to be on leave or out of his workplace. 13. It has been contended that according to Rule 54(1) of the CISF Rules any authority superior to the authority making the order may either on his own motion or otherwise call for the records of any enquiry and revise any order made under the Rules. It has been submitted that prior to enhancing the order of penalty the petitioner was given a reasonable opportunity to make his representation against the proposed penalty. According to Rule 54(2) the provisions of Rule 52 relating to appeals shall apply so far as may be to such orders in revision. It has been submitted that prior to enhancing the order of penalty the petitioner was given a reasonable opportunity to make his representation against the proposed penalty. According to Rule 54(2) the provisions of Rule 52 relating to appeals shall apply so far as may be to such orders in revision. It has been argued that the order passed by the Revising Authority is appealable and accordingly the instant writ petition is liable to be dismissed on the ground of availability of an alternative remedy. 14. The respondents have relied upon the definition of 'misconduct' which says that misconduct it to be construed in the light of the service/conduct rules or regulations applicable to each establishment. It includes "improper behaviour", "intentional wrong doing", "deliberate violation of Rules or standard of behaviour or culpable neglect of duties." According to the definition relied upon by the respondent the Presenting officer is one who is appointed by the disciplinary authority to present the case on behalf of the disciplinary authority. 15. The respondents contend that the scope of judicial review in matters arising out of disciplinary proceeding is extremely limited and the court ought not to interfere with the penalty imposed upon a delinquent in the absence of specific allegation of violation of the principles of natural justice or violation of the Rules. In the instant case the petitioner was given every opportunity to defend himself which the petitioner miserably failed. 16. The respondents rely upon the decision delivered by the Hon'ble Supreme Court in the matter of State Bank of India & Ors. -vs- Ramesh Dinkar Punde, 2006 7 SCC 212 paragraph 9 wherein the court held that it is impermissible for the High Court to re-appreciate evidence which has been considered by the Inquiry Officer, the Disciplinary Authority and the Appellate Authority. 17. It has been argued that in the case at hand, the respondents namely the Inquiry Officer, the Disciplinary Authority and the Appellate Authority appreciated the evidence and documents placed on record and thereafter came to a finding that the allegation levelled against the petitioner stood proved. The Revising Authority suo motu took up the case and prior to enhancing the order of penalty gave opportunity to the petitioner to explain his case. The decision of the Revising Authority is based on cogent evidence, is perfectly justified and ought not to be interfered with. 18. The Revising Authority suo motu took up the case and prior to enhancing the order of penalty gave opportunity to the petitioner to explain his case. The decision of the Revising Authority is based on cogent evidence, is perfectly justified and ought not to be interfered with. 18. The respondents also rely upon the decision delivered by the Hon'ble Supreme Court in the matter of Union of India & Ors. -vs- Himmat Singh Chahar, 1999 4 SCC 521 wherein the court held that the High Court is entitled to exercise its power of judicial review by invoking jurisdiction under Article 226 but that would be for a limited purpose to find out whether there has been infraction of a mandatory provision of the Act prescribing the procedure which has caused gross miscarriage of justice or for finding out whether there has been violation of the principles of natural justice which vitiates the entire proceeding or that the authority exercising the jurisdiction had not been vested with the jurisdiction under the Act. 19. In the instant case there has been no infraction of the law and the principles of natural justice has been strictly followed. 20. The respondents pray for dismissal of the writ petition. 21. I have heard the submissions made on behalf of both the parties. 22. Admittedly, an Inquiry Officer was appointed to enquire into the charges levelled against the petitioner. A Presenting officer was also appointed to present the case of the authority. Evidence was adduced and the Disciplinary Authority imposed the penalty of reduction of pay by three stages for a period of three years with cumulative effect. The appeal preferred by the petitioner stood dismissed. 23. The Revising Authority suo motu took up the case and reviewed the order of punishment and imposed the penalty of removal from service. The respondents took recourse to the provision laid down in Rule 54 of the CISF Rules, 2001. 24. According to Rule 54(1) any authority superior to the authority making the order may either on his own motion or otherwise call for the records of any inquiry and revise any order made under the rules and may - (a) ........................ (b) confirm, reduce, enhance or set aside the penalty imposed by the order, or impose any penalty where no penalty has been imposed; or (c) ........................ (d) ........................ 25. (b) confirm, reduce, enhance or set aside the penalty imposed by the order, or impose any penalty where no penalty has been imposed; or (c) ........................ (d) ........................ 25. Provided that no order imposing or enhancing any penalty shall be made by any Revising Authority unless the enrolled member of the Force concerned has been given a reasonable opportunity of making a representation against the penalty proposed or to impose any of the penalties specified in clauses (i) to (v) of Rule 34 or to enhance the penalty imposed by the order sought to be revised to any of the penalties specified in those clauses. 26. In the instant case the revising authority enhanced the penalty and imposed the major penalty of dismissal from service. The respondents have taken the plea that the order passed by the revising authority is appealable and thereafter revisable. While passing the impugned order of dismissal it appears that the revising authority did not take note of the report prepared by the Presenting Officer who was appointed to present the case on behalf of the authority in support of the article of charge levelled against the petitioner. The Presenting Officer concluded that the petitioner should be given the benefit of doubt. The Inquiry Officer after going through the report of the Presenting Officer as well as the charged official came to the conclusion that the charge levelled against the petitioner stood proved. Relying upon the report of the Inquiry Officer the disciplinary authority imposed the penalty of reduction of pay which is a major penalty according to Rule 34 of the CISF Rules, 2001. 27. A coordinate Bench of this court in the matter of S. K. Ajmer (supra) held that "the disciplinary authority presenting his case before the Inquiring Authority through his duly appointed Presenting officer was not competent to take a different stand at the time of consideration of the report of the Inquiring Authority." The court was of the view that "the disciplinary authority taking a stand contrary to the one taken by his Presenting officer before the Inquiring Authority acted without jurisdiction." The court set aside the order passed by the disciplinary authority as well as the appellate authority and directed the respondents to pay the petitioner all benefits which he would have been entitled in the absence of the punishment inflicted by the disciplinary authority. 28. 28. The petitioner has also relied upon the decisions on the issue that as the alleged offence arose beyond the course of duty accordingly the same cannot be held as misconduct and disciplinary proceeding ought not to have been initiated on the said charges. The Hon'ble Supreme Court in the matter of A. L. Kalra (supra) laid down that "where misconduct when proved entails penal consequences, it is obligatory on the employer to specify and if necessary define it in precession with accuracy so that any ex post facto interpretation of some incident may not be camouflaged as misconduct. The petitioner has also relied upon the judgment of the Supreme Court in the matter of M/s. Glaxo Laboratories (supra) on the self same issue. 29. In Prahallad Padhi (supra) a Division Bench of the Orissa High Court held that as the misconduct does not relate to office and has not been committed in the course of employment or at the place of employment or in connection with the employment of the employee a disciplinary proceeding may not have been permissible. 30. In the instant case even though the charge of molestation was brought against the petitioner surprisingly neither the complainant nor the employer lodged any criminal complaint against the petitioner. The management came to the conclusion that the act of the petitioner amounted to gross misconduct, sense of irresponsibility, violation of instructions/good orders of the Force and unbecoming of a member of the disciplined Force. 31. Molestation is a criminal offence punishable under the criminal laws of the land. Relying on the principle of preponderance of probabilities the authority concluded that the charge of molestation against the petitioner was proved even though the Presenting officer gave the benefit of doubt to the petitioner. Molestation per se is not mentioned in the CISF Act, 1968 or the CISF Rules, 2001 as misconduct, and as such, the complaint lodged by the complainant ought not to have been proceeded with by the disciplinary authority by drawing up disciplinary proceedings. 32. The ratio laid down in Himmat Singh Chahar (supra) on the issue of scope of judicial review under Article 226 of the Constitution of India is well settled. 32. The ratio laid down in Himmat Singh Chahar (supra) on the issue of scope of judicial review under Article 226 of the Constitution of India is well settled. The court held that judicial review may be exercised for a limited purpose to find out whether there has been infraction of any mandatory provisions of law prescribing the procedure which has caused gross miscarriage of justice or for finding out whether there has been violation of the principles of natural justice which vitiates the entire proceeding or the authority acted without jurisdiction or not. The power of judicial review cannot be a power of an appellate authority permitting the High Court to re-appreciate evidence and come to a conclusion that the evidence is insufficient for the conclusion arrived at by the competent authority. 33. In the case at hand the revising authority concluded that the charge of molestation was proved and inflicted the punishment of dismissal from service. Molestation not being one of the enumerated offences according to the service rules guiding the petitioner, the disciplinary proceeding against the petitioner ought not to have been initiated. Moreover, when the Presenting Officer opined that the petitioner should be given the benefit of doubt then the disciplinary proceeding ought to have been dropped. The stringent punishment of dismissal ought not to have been imposed upon the fanciful interpretation of the conduct of a member by a particular officer. As misconduct in a departmental proceeding is proved upon preponderance of probabilities, the disciplinary authority ought to be doubly sure and convinced about the involvement of the delinquent in the alleged misconduct prior to the imposition of the highest penalty otherwise the very purpose of conducting the disciplinary proceeding will get vitiated. Both the employer and the employee should know the parameters within which they should tread and stepping beyond which would lead to penal consequences. It may not be possible to lay out a strict boundary but the broad heads can surely be demarcated. This would lead to strict discipline in the Force. 34. The action of the respondent authority is contrary to the principles laid down by the Hon'ble Supreme Court in the matter of A. L. Kalra (supra), M/s. Glaxo Laboratories (supra) and by a coordinate Bench of this court in the matter of S. K. Ajmer (supra). 35. This would lead to strict discipline in the Force. 34. The action of the respondent authority is contrary to the principles laid down by the Hon'ble Supreme Court in the matter of A. L. Kalra (supra), M/s. Glaxo Laboratories (supra) and by a coordinate Bench of this court in the matter of S. K. Ajmer (supra). 35. Moreover, the entire incident took place beyond the duty hours of the petitioner. The submission of the respondent that a member of the Force is always on duty cannot he held good in the facts and circumstances of the case. The incident is also not related to the duty of the petitioner. Had the misconduct been an enumerated one, directly related to the job that was to be performed by the petitioner in course of his official duty, then non-performance of the same would have been otherwise. That not being so, dismissing the petitioner from service, on an allegation which can be dealt with under criminal law, was inappropriate. 36. Neither the disciplinary authority nor the appellate authority or the revising authority could take a stand contrary to what has been taken by the Presenting officer who gave the benefit of doubt to the petitioner. 37. The issue of availability of alternative remedy as taken by the respondents will not stand in the way of the Writ Court to interfere with the impugned order if the same has been passed de hors the provisions of law. It is settled law that availability of alternative remedy is not a complete bar to exercise powers under the Constitution. The order passed by the disciplinary, appellate and the revising authority has caused great miscarriage of justice and the same is required to be set right by this court. The breach of law is required to be remedied by the interference of court. 38. This is also not a fit case that requires a re-adjudication. As per the ratio laid down by the Supreme Court, as dealt with hereinabove, the initiation of the disciplinary proceeding on such allegation was bad and impermissible in law. 39. In view of the discussions made hereinabove the impugned orders of the disciplinary authority, appellate authority and the revising authority are set aside. As per the ratio laid down by the Supreme Court, as dealt with hereinabove, the initiation of the disciplinary proceeding on such allegation was bad and impermissible in law. 39. In view of the discussions made hereinabove the impugned orders of the disciplinary authority, appellate authority and the revising authority are set aside. The respondents are directed to reinstate the petitioner in service immediately and to pay all consequential benefits to him, as entitled in law, by treating him in service, at the earliest, but positively within a period of four months from the date of communication of a copy of this order. 40. W.P 769 (W) of 2013 is disposed of. 41. No order as to costs. 42. Urgent certified photocopy of this judgment, if applied for, be supplied to the parties on compliance of usual legal formalities.