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2022 DIGILAW 2591 (MAD)

Sabyasachi Pandey v. Union of India, New Delhi

2022-08-08

D.KRISHNAKUMAR

body2022
JUDGMENT (Prayer: Writ Petition filed under Article 226 of the Constitution of India, for the issuance of a writ of Certiorarified Mandamus, to call for the records of the order passed by the Commandant / Legal Letter No.V-11014/148/L-20672 (E) 1388, dated 07.09.2021 and quash the same and consequently direct the 2nd respondent to dispose the Appeal dated 30.06.2021 submitted by the petitioner on merits within the time fixed by this Court.) 1. This Writ Petition is filed to quash the order, dated 07.09.2021 passed by the 2nd respondent and for a consequential direction to the 2nd respondent dispose of the appeal, dated 30.06.2021 preferred by the petitioner on merits. 2. It is the case of the petitioner that while the petitioner was on deputation with BOI Delhi (IB), a charge memorandum, dated 24.03.2020 was issued on him. The petitioner sent a written statement of defence to the charge memo, dated 24.03.2020. Thereafter he was intimated that the Enquiry Officer was appointed by the Disciplinary Authority for holding enquiry in respect of the said Charge Memo. Enquiry was conducted from 11.05.2020 to 01.06.2020 and Enquiry Report was submitted on 06.06.2020. The petitioner made representation on 10.06.2020. Thereafter, the 2nd respondent vide order dated 08.07.2020, imposed punishment of removal from service with immediate effect against the petitioner. Aggrieved against the said punishment, the petitioner preferred an appeal under Rule 46 of CISF rules, 2001 before the 4th respondent viz., the Deputy Inspector General, CISF SZ-1, Chennai on 28.07.2020 and the same was rejected on 04.11.2020, against which the petitioner has preferred Revision before the 3rd respondent viz., the Inspector General CISF, South Sector, Chennai and the same was also rejected on 07.04.2021. Aggrieved against the said order, dated 07.04.2021 passed in the Revision, the petitioner preferred another appeal on 30.06.2021 along with an application for condonation of delay. However, after few months, the proceedings, dated 07.09.2021 was issued by the 2nd respondent, observing that the petitioner has already exhausted departmental remedies by way of appeal and revision and hence, no intervention is warranted at this stage. Claiming that the said proceeding, dated 07.09.2021 is unfair and unlawful, the petitioner is before this Court. 3. According to the petitioner the impugned order, dated 07.09.2021 is liable to be set aside on the ground that the order is unsustainable in law since the 2nd respondent is an appellate authority. Claiming that the said proceeding, dated 07.09.2021 is unfair and unlawful, the petitioner is before this Court. 3. According to the petitioner the impugned order, dated 07.09.2021 is liable to be set aside on the ground that the order is unsustainable in law since the 2nd respondent is an appellate authority. The learned counsel also brought attention of this Court to the provision of Section 9 in the Central Industrial Security Force Act: 9. Appeal and revision:- (1) Any "enrolled" member of the Force aggrieved by an order made under section 8 may within thirty days from the date on which the order is communicated to him prefer an appeal against the order to such authority as may be prescribed, and subject to the provisions of sub section (2A), sub section (2B) and subsection (3), the decision of the said authority thereon shall be final: Provided that the prescribed authority may entertain the appeal after the expiry of the said period of thirty days, if he is satisfied that the appellant was prevented by sufficient cause from filling the appeal in time. (2) In disposing of an appeal the prescribed authority shall follow such procedure as may be prescribed.(2A) Any enrolled members of the Force aggrieved by an order passed in appeal under sub-section (1) may, within a period of six months from the date on which the order is communicated to him, prefer a revision petition against the order to such authority as may be prescribed and in disposing of the revision petition, the said authority shall follow such procedure as may be prescribed. (2B) The authority, as may be prescribed for the purpose of this sub-section, on a revision petition preferred by an aggrieved enrolled member of the Force or suo-moto, may call for, within a prescribed period, the records of any proceeding under section 8 of sub-section(2) or sub-section (2A) and such authority may, after making inquiry in the prescribed manner, and subject to the provisions of this Act, pass such order thereon as it thinks fit." (3) The Central Government may call for an examine the record of any proceeding under section 8 or under sub-section (2), sub section (2A) or sub section (2B) of this section and may make such inquiry or cause such inquiry to be made and subject to the provisions of this Act, may pass such order thereon as it thinks fit; Provided that no order imposing an enhanced penalty under sub-section (2) or sub-section (3) shall be made unless a reasonable opportunity of being heard has been given to the person affected by such order. 4. The learned counsel also relied on Rule 46 of CISF Rules in support of his contention and the same is extracted hereunder: 46. Appeal against order imposing penalties – (1) An enrolled member may prefer an appeal against all or any of the following orders, namely :- (i) an order of suspension made or deemed to have been made under rule 33; (ii) an order imposing any of the penalties specified in rule 34, made by the disciplinary authority or by any appellate or revising authority. (2) Such appeal shall be made to the authority immediately superior to the authority who has imposed the penalty. NOTE: (i) Appeal against the order of Deputy Inspector General shall lie to the Sector Inspector General and against the order of the Sector Inspector General to the Director General. (ii) Appeal against the order of the Deputy Inspector General at Force Headquarters including Deputy Inspector General (Training and Fire) shall lie to Inspector General (Headquarters) and against the order of Inspector General (Headquarters) to the Director General. (iii) Appeal against the order of the Director General shall lie to the Central Government. (ii) Appeal against the order of the Deputy Inspector General at Force Headquarters including Deputy Inspector General (Training and Fire) shall lie to Inspector General (Headquarters) and against the order of Inspector General (Headquarters) to the Director General. (iii) Appeal against the order of the Director General shall lie to the Central Government. (iv) Where the person who made the order appealed against becomes, by virtue of his subsequent appointment or otherwise the appellate authority in respect of such order, an appeal against such order shall lie to the authority to whom such person is immediately subordinate. (3) There shall be no second appeal. But when the appellate authority imposes a penalty higher than the one appealed against, an appeal shall lie to the authority next superior to the appellate authority. 5. In reply, the learned standing counsel appearing for the respondent submitted that the appeal preferred by the petitioner on 30.06.2021 is not maintainable since he has already exhausted the remedies before the respondent authorities by way of appeal before the 4th respondent and revision before the 3rd respondent and hence there is no provision for appeal remedy once again. Therefore, the petitioner has been informed that the appeal, dated 30.06.2021 is not maintainable. Hence, the learned Standing counsel prayed for dismissal of the Writ Petition. 6. Heard the learned counsel for both side and perused the materials available on record. 7. On a perusal of the counter affidavit it is clearly seen that there is no provision to file an appeal / application against the order of revision. Therefore, the petitioner was informed vide order dated 07.09.2021 that the petitioner has already exhausted the departmental remedies by way of appeal and revision. The Enquiry Officer has also conducted the enquiry in a fair manner by providing all reasonable opportunity to the petitioner to defend his side. The disciplinary authority considered all the material available on record and upheld the same and passed final order on 08.07.2020 in exercise of power conferred under Rule 32 r/w Schedule – I and Rule – 34 (ii) of CISF Rules, 2001. 8. In view of the above, this Court is of the opinion that there is no appeal provision against the order of revision before the 2nd respondent. 8. In view of the above, this Court is of the opinion that there is no appeal provision against the order of revision before the 2nd respondent. However, the petitioner is at liberty to challenge the final order, dated 08.07.2020 by way of revision before the respondent concerned and it is for the respondent to consider the same and pass appropriate orders on merits. 9. With the above observation, this Writ Petition stands dismissed. No costs. Consequently, connected miscellaneous petition is closed.