Research › Search › Judgment

Chhattisgarh High Court · body

2023 DIGILAW 684 (CHH)

Ram Manohar S/o Late Mangal v. Union of India

2023-12-11

RAJANI DUBEY

body2023
ORDER : 1. The petitioner has preferred the instant petition under Article 226 of the Constitution of India challenging the orders dated 16.05.2001 (Annexure P/1) passed by respondent No. 2, 19.11.2000 (Annexure P/2) passed by respondent No. 3 & 18.06.1999 (Annexure P/3) passed by respondent No. 4 whereby the major punishment was imposed upon the petitioner. 2. Brief facts of the case as projected by the petitioner, are that the petitioner was posted as Constable in Central Industrial Security Force (CISF) Unit BALCO Korba. On 31.12.1998, petitioner along with Shri A.N. Jaidi was deployed for checking of all the incoming/outgoing material/vehicle at the gate. During checking, one vehicle bearing No. MIL-6205 loaded with material belonging to M/s Richu Industries (Contractor) was loaded. At the time of loading of the vehicle, petitioner checked the material and subsequently, first shift was over. Immediately, the BALCO Vigilance team standing outside the gate, seized the said vehicle outside the gate by challenging of excess loaded material thereon. 3. For this lapse, a departmental proceeding was initiated against the petitioner by the disciplinary authority and issued a Charge Memo dated 14/15-01-1999 and placed him under suspension w.e.f. 02.01.1999. Thereafter, petitioner submitted his reply and on examination of his reply, the Disciplinary authority decided to conduct detailed enquiry in the case. In the departmental enquiry, the charges leveled upon the petitioner were found proved and the disciplinary authority imposed the penalty of “Reduction of pay to the minimum stage from Rs.3275/- to Rs.3050/- for a period of 05 years” vide order dated 18.06.1999 (Annexure P/3) treating his entire period of suspension from 02-01-1999 to 18-06-1999 as suspension only. 4. The petitioner, being aggrieved with the order of disciplinary authority filed an appeal before the appellate authority i.e. DIG/CISF EZ Hqrs, Patna. The appellate authority, after due consideration of entire relevant documents of the case found the penalty awarded by the disciplinary authority was inadequate to the gravity of the charges and decided to enhance the penalty. Accordingly, a show-cause-notice was issued to the petitioner proposing to enhance the penalty to that of “Removal from Service.” On receipt of the representation against the show-cause-notice from the petitioner, the appellate authority confirmed the proposed enhanced penalty of “Removal from Service” vide letter dated 09.11.2000 (Annexure P/2). 5. Accordingly, a show-cause-notice was issued to the petitioner proposing to enhance the penalty to that of “Removal from Service.” On receipt of the representation against the show-cause-notice from the petitioner, the appellate authority confirmed the proposed enhanced penalty of “Removal from Service” vide letter dated 09.11.2000 (Annexure P/2). 5. The petitioner, being aggrieved with enhanced penalty of his removal from service, field appeal before the appellate authority i.e. IG/CISF (ES) Hqrs Patna. The appellate authority, after due consideration, rejected his appeal being devoid of merit vide order dated 16.05.2001 (Annexure P/1). Thereafter, the petitioner filed the writ petition challenging the order passed by the disciplinary authority as well as appellate and revisional authority before the High court of Uttar Pradesh at Allahabad on 30.06.2001 and on 26.02.2018, the same was dismissed for want of jurisdiction. Hence, the present petition has been filed by the petitioner for the following reliefs: 10.1. The Hon’ble Court may kindly be pleased to issue an appropriate writ by quashing the impugned orders dated 16.05.2001 (Annexure P/1), 09.11.2000 (Annexure P/2) and 18.06.1999 (Annexure P/3) passed by the respondents No. 2 to 4. 10.2. The Hon’ble Court may kindly be pleased to call for the entire records from the possession of respondents including the Inquiry report for kind perusal of this Hon’ble Court. 10.3 Any other relief as this Hon’ble Court may deem fit looking to the facts and circumstances of the case may also be awarded. 6. Learned counsel for the petitioner submits that the departmental enquiry was also initiated against the similarly situated persons Atmaram and A.N. Jaidi but they got discharged from the charges but the petitioner was punished by the enquiry authority without proving the charges leveled against him. It is the duty of the enquiry authority to prove each and every charges against the petitioner by producing the relevant and cogent evidence and in the present case, except the material that more than check list, articles were found in the truck, no other evidence has been produced and it has not been proved that whether the said material were loaded after the check list signed by the petitioner or after the end of shift one duty. It is the duty of the second shift persons to check the vehicle properly as the vehicle was permitted to go out in the second shift when the petitioner’s duty came to an end. It is the duty of the second shift persons to check the vehicle properly as the vehicle was permitted to go out in the second shift when the petitioner’s duty came to an end. Petitioner filed the appeal against the order of imposition of punishment and without any rhyme or reason, respondent No. 3 suo moto issued the notice for enhancement of the punishment and without considering the averment made in the reply by the petitioner, the punishment was enhanced and a major penalty of removal from service was imposed. Respondent No. 3 acted contrary to the provisions of law and exceeded his jurisdiction and in the show-cause-notice, nothing was mentioned as to why the punishment is liable to be enhanced and mere giving the show-cause-notice is not sufficient to fulfill the demand of natural justice as well as opportunity of being heard. 7. Reliance has been placed on the judgment of Hon’ble Apex Court in the matter of Union of India and Others vs. Managobinda Samantaray in Civil Appeal Nos. 1622-1623 of 2022 dated 24.02.2022. 8. Learned counsel for the respondents strongly opposes the prayer made by learned counsel for the petitioner and submits that the averment of the petitioner is baseless and there are sufficient evidence viz. Material gate passed duly checked with loaded material on the vehicle and signed by the petitioner, recovery list of excess material duly signed by BALCO Vigilance & other witnesses etc. held on record to hold the petitioner guilty of the charges. The respondent authorities acted as per rules & regulations and provisions of law and the punishment imposed upon the petitioner is proper and justified. There is no violation of natural justice and full opportunity was given to the petitioner. Therefore, the petitioner is not entitled to get any relief and the petition being without any substance is liable to be dismissed. 9. Heard counsel for the parties and perused the material placed on record. 10. It is not disputed in this case that the disciplinary authority imposed punishment upon the petitioner of reduction of pay scale for a period of 05 years and the appeal preferred by the petitioner before respondent No. 3 was dismissed enhancing the punishment to removal of service, was dismissed. 10. It is not disputed in this case that the disciplinary authority imposed punishment upon the petitioner of reduction of pay scale for a period of 05 years and the appeal preferred by the petitioner before respondent No. 3 was dismissed enhancing the punishment to removal of service, was dismissed. Learned counsel for the petitioner submits that this act of the Appellate authority is against the rules as it is not in accordance with the procedure of Rule 47(2)(c)(i) of the Central Industrial Security Force Rules, 1969. 11. Rule 47 of the Central Industrial Security Force Rules, 1969 reads as under: 47. Considerations of appeals: (1) In case of an appeal against an order of suspension the appellate authority shall consider whether, in the light of the provisions of rule 29 and having regard to the circumstances of the case, the order of suspension is justified or not and confirm or revoke the order accordingly. (2) In the case of an appeal against an order imposing any of the penalties specified in rule 31 the appellate authority shall consider: (a) whether the procedure prescribed in these rules has been complied with, and not whether such non-compliance has resulted in violation of any provisions of the constitution or in failure of justice. (b) whether the findings are justified. (c) whether the penalty imposed is excessive, adequate or in-adequate; and pass orders: (i) setting, aside, reducing, confirming or enhancing the penalty. (ii) remitting the case to the authority which imposed the penalty or to any other authority with such direction as it may deem fit in the circumstances of the case: Provided that: (i) the appellate authority shall not impose any enhanced penalty which such authority is not competent to impose. (ii) no order imposing an enhanced penalty shall be passed unless the appellant is given an opportunity of making any representation which he may wish to make against such enhanced penalty. (iii) if the enhanced penalty which the appellate authority proposes to impose is one of the penalties specified in CIs. (ii) no order imposing an enhanced penalty shall be passed unless the appellant is given an opportunity of making any representation which he may wish to make against such enhanced penalty. (iii) if the enhanced penalty which the appellate authority proposes to impose is one of the penalties specified in CIs. (a) to (d) of rule 31 and an inquiry under rule 34 has not already been held in the case, the appellate authority shall, subject to the provisions of rule 34 itself hold such inquiry or direct that such inquiry be held and thereafter on consideration of the proceedings of such inquiry [***] opportunity of making any representation which he may wish to make against such penalty pass such orders as it may deem fit. 12. In this case, the appellate authority issued notice to the petitioner on 31.01.2000 and operative Para of the said notice is as under: 4. The disciplinary authority duly considered these pleas in his final order which is a reasoned and speaking order. However, the undersigned is of the view that the disciplinary authority has not properly analysed the gravity of the charges framed against the appellant while awarding the less proportionate punishment. The charges have been duly proved by the Enquiry Officer after considering the material and circumstantial evidences adduced during the enquiry. Since the charges are serious in nature and the dereliction of duty of constable Ram Manohar has been proved. I find that the punishment awarded by the disciplinary authority is inadequate. 5. If the checking would have done properly by Constable Ram Manohar, the excess material could have always been detected even he being a Constable and whose primary duty is to protect Plant property. By committing such a grave offence, the appellant has brought down the image of the CISF in the eye of the official of the public sector undertaking. The punishment awarded by the disciplinary authority for such serious offence is explicitly inadequate. Therefore, the undersigned in exercise of powers conferred upon under Rule 42(2)(c)(i) and read with Rule 31(b) of CISF Rules 1969, is hereby proposes to enhance the punishment awarded by the disciplinary authority to No. 892331788 Constable Ram Manohar to that of “Removal from Service.” Constable Ram Manohar is hereby directed to explain why the proposed enhanced punishment should not be inflicted upon him, within 15 days or receipt of this notice. If no representation is received within the stipulated time period, it will be considered that he has nothing to represent and the proposed enhancement of punishment order will be passed without giving any further notice or time. 13. Hon’ble Supreme Court in the matter of Shama Prashant Raje vs. Ganpatrao and Others, (2000) 7 SCC 522 held in Para 5 as under: “........Undoubtedly, in a proceeding under Articles 226 and 227 of the Constitution the High Court cannot sit in appeal over the findings recorded by a competent tribunal. The jurisdiction of the High Court, therefore, is supervisory and not appellate. Consequently, Article 226 is not intended to enable the High Court to convert itself into a Court of appeal and examine for itself the correctness of the decision impugned and decide what is the proper view to be taken or order to be made. But notwithstanding the same, on a mere perusal of the order of an inferior tribunal if the High Court comes to a conclusion that such tribunal has committed manifest error by misconstruing certain documents, or the High Court comes to the conclusion that on the materials it is not possible for a reasonable man to come to a conclusion arrived at by the inferior tribunal or the inferior tribunal has ignored to take into consideration certain relevant materials or has taken into consideration certain materials which are not admissible, then the High Court will be fully justified in interfering with the findings of the inferior tribunal.” 14. In the light of aforesaid discussion, in this case also, on 07.04.2000, petitioner replied the said show-cause-notice and objected that the enquiry officer found him partly liable for the acts but the appellate authority duly considered the representation of the petitioner, passed the impugned order Annexure P/2 in consonance with Rule 47(2)(c)(i) of CISF Rules, 1969. Petitioner is a member of CISF and it is clear from the facts and circumstances of the case that primary duty of the petitioner is to protect the plant properties but he did not perform his duty with due care and the appellate authority rightly observed that if the checking had been done properly by the petitioner, then excess materials would have been detected at the gate. In the given facts and circumstances of the case, the judgment relied upon by the learned counsel for the petitioner being distinguishable is of no help to the petitioner. 15. In these circumstances, it is clear that before passing the order, the appellate authority issued show-cause-notice to the petitioner and gave an opportunity of making any representation and the petitioner also replied to the show-cause-notice issued to him and thereafter, the appellate authority passed the order in accordance with law. Thus, the petitioner has failed to establish any irregularity or illegality during departmental enquiry or in the action of the appellate authority. 16. On the basis of the aforesaid discussion, the instant petition being without any substance is liable to be and is hereby dismissed.