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2020 DIGILAW 549 (CAL)

Rashpal Singh v. Union Of India

2020-07-01

SUBRATA TALUKDAR

body2020
JUDGMENT Subrata Talukdar, J. - In this writ petition the petitioner challenges the Disciplinary Proceeding (for short DP) initiated and completed against him culminating in an order of removal from service issued by the Disciplinary Authority (for short DA) dated 20th February, 2014. 2. Highlighting the brief facts of the case, Ms. Dey, Learned Counsel appearing for the petitioner, submits that the petitioner was appointed as a Constable with the Central Industrial Security Force (for short CISF) in the year 2008 and, while serving at Durgapur, the petitioner was served with a Charge Sheet (for short CS) on the 8th of October, 2013. 3. The CS contained three Charges which, inter alia, alleged that the petitioner was unauthorisedly absent from his barracks on 25th September, 2013 and, on the same date he, along with two other Constables had, under the influence of liquor, created public nuisance as well as damage to property of a hotel at Durgapur City Centre. 4. The penalty of Removal from Service as issued by the DA under the CISF Rules 2001 (for short the CISF Rules) was challenged by the petitioners before the Appellate Authority (for short AA) on the 1st of March, 2014. The AA upheld the order of the DA by its order dated 28th July, 2014 whereupon, on the 17th of May, 2016, the petitioner filed a Revision Petition before the Revisional Authority (for short RA). The petitioner alleges that without entering into the merits of the issue, the RA dismissed his Revisional Application on 19th July, 2016. 5. It is submitted that the petitioner was singled out for the extreme punishment of removal although two other Constables purportedly accompanying him on the date of the incident, i.e. on 25th September, 2013, were granted minor punishments. Additionally it is alleged that the principles of double jeopardy were violated since the petitioner has been vexed more than once on similar disciplinary grounds. Learned Counsel for the petitioner further raises the point of nonapplication mind in the DP. It is contended that the RA ought not to have dismissed the Revisional Application of the petitioner citing expiry of limitation since, after the dismissal of his appeal by the AA, the petitioner had to leave for his native place in Jammu where he underwent psychiatric treatment. 6. Refuting the stand of the petitioner, Mr. It is contended that the RA ought not to have dismissed the Revisional Application of the petitioner citing expiry of limitation since, after the dismissal of his appeal by the AA, the petitioner had to leave for his native place in Jammu where he underwent psychiatric treatment. 6. Refuting the stand of the petitioner, Mr. Nandi, Learned Counsel appearing for the Respondents/CISF, submits that the petitioner has admitted to his involvement in the riotous incidents of 25th September, 2013 by signing a mutual agreement with the hotel owner in the local police station. In the mutual agreement the petitioner agreed to pay compensation to the hotel owner for the damage caused to his property. However, the petitioner signed the mutual agreement using a false name. 7. It is submitted that prior to instituting the DP, the DA conducted a Preliminary Enquiry (for short PE) for verifying the incident of 25th September, 2013, Since the PE found the incident to be authentic, the DP was instituted. It is submitted that it is not the case of the petitioner that the incident of 25th September, 2013 did not happen. On the contrary the defence of the petitioner is that he should be handed a minor punishment at par with the two other Constables similarly arraigned with him in the DP. 8. It is pointed out that the petitioner during his short tenure as a Constable has already received four minor and one major Punishment prior to the incident of 25th September, 2013. Such was not the case with the two other Constables who had committed their first offence by participating in the incident of 25th September, 2013. Further since the petitioner failed to show improvement in his service conduct in spite of four minor and one major punishment, he was removed from service. In the DP it was clearly found that the petitioner is unworthy of continuing in service as a member of a disciplined force. On the other hand, the two other Constables/colleagues were inflicted the proportionate punishment of reduction of pay and future increments. 9. Learned Counsel for CISF contends that the petitioner was treated in accordance with law without any arbitrariness. It is submitted that the petitioner was granted full opportunity to participate in the DP. However, the petitioner chose not to reply to the Report of the Enquiry Officer (EO). 9. Learned Counsel for CISF contends that the petitioner was treated in accordance with law without any arbitrariness. It is submitted that the petitioner was granted full opportunity to participate in the DP. However, the petitioner chose not to reply to the Report of the Enquiry Officer (EO). The petitioner also did not file his Revisional Application within time and allowed a considerable period of time to lapse between the final order of the AA passed on 28th July, 2014 and the filing of his Revisional Application on 17th May, 2016. It is submitted that the petitioner used the alibi of being treated for alleged psychiatric conditions only on the basis of OPD prescriptions from a Government Hospital. The duration and depth of his claimed psychiatric treatment cannot be gauged from the OPD prescriptions. In the absence of a contemporaneous confirmation by a Medical Board, the OPD prescriptions can be of little help to the petitioner. 10. Accordingly, the alibi of treatment to explain away the limitation provided under the CISF Rules for filing a Revisional Application could not be accepted. In this connection Learned Counsel for CISF places heavy relies on the exhaustive order of the AA affirming the decision of the DA. 11. With reference to the claim to suffer double jeopardy, Learned Counsel for CISF submits that in view of the past conduct of the petitioner who had already earned four minor and one major punishment without showing signs of self-improvement, in service conduct as also observed by the AA, the penalty of removal from a disciplined force is proportionate and not violative of the principle of double jeopardy. In this regard, Mr. Nandi distinguishes the judgement relied upon by Ms. Dey as reported in 2017 (4) WBLR (SC) 272 by arguing that Paragraph 10 of the judgement vindicates the stand of the respondents. For the benefit of this discussion Paragraph 10 is reproduced hereinbelow:- "10. Charge No.3 was that the Respondent had become habitual in committing indiscipline and disorderliness. A reference was made to two major penalties of deduction of pay and one minor punishment of reduction of seven days salary earlier. The Disciplinary Authority found that the Respondent did not improve in spite of being punished earlier. Charge No.3 was that the Respondent had become habitual in committing indiscipline and disorderliness. A reference was made to two major penalties of deduction of pay and one minor punishment of reduction of seven days salary earlier. The Disciplinary Authority found that the Respondent did not improve in spite of being punished earlier. The High Court agreed with the contention of the Respondent and held that a fresh enquiry cannot be initiated into a misconduct for which a delinquent had already suffered a penalty. The High Court found that any penalty imposed under Charge No.3 would amount to double jeopardy. We disagree with the finding of the High Court as we are of the view that the Respondent was not being tried again for previous misconduct. As the Respondent did not improve in spite of being punished earlier and had become habitual in indiscipline and disorderliness, the Disciplinary Authority rightly found Charge No.3 as proved. The desirability of continuance of the Respondent was considered on the basis of his past conduct which does not amount to double jeopardy. In any event, past conduct of a delinquent employee can be taken into consideration while imposing penalty. We are supported in this view by a Judgement of this Court in Union of India v. Bishamber Das Dogra, (2009) 13 SCC 102 held as follows: "30. .... But in case of misconduct of grave nature or indiscipline, even in the absence of statutory rules, the authority may take into consideration the indisputable past conduct/service record of the employee for adding the weight to the decision of imposing the punishment if the facts of the case so require." 12. Learned Counsel for CISF also distinguishes the judgements relied upon by Learned Counsel for the petitioner as reported in 2015 (2) SCC 610 and 2018 (1) CLT 556. It is submitted that the petitioner has been unable to make out a case of perversity in the DP as well as a case of disproportionality and/or arbitrariness. The DP factored in the past conduct of the petitioner while imposing the punishment qua the charges. 13. Having heard the parties and considering the materials placed, this Court finds that the DP was neither perverse nor devoid of the principles of natural justice. The DP factored in the past conduct of the petitioner while imposing the punishment qua the charges. 13. Having heard the parties and considering the materials placed, this Court finds that the DP was neither perverse nor devoid of the principles of natural justice. This Court reiterates the law fairly settled that when a DP in neither flawed in procedure nor in arriving at a conclusion which is plausible, a judicial verdict should not step in as a substitute, either of the process or of the decision. 14. The writ petition thus fails. 15. W.P. No. 19406 (W) of 2016 stands dismissed. 16. There will be no order as to costs. 17. Urgent Xerox certified photocopies of this judgment, if applied for, be given to the parties upon compliance of the requisite formalities.