1 IN THE HIGH COURT OF JHARKHAND AT RANCHI. W.P. (S) No. 4977 of 2010 … Kiranpal Singh, Son of Sri Sher Singh, Resident of C/O- Jageshwar Prasad, 3 No. Charai, Chirkunda, P.O. & P.S.- Chirkunda, District-Dhanbad … … Petitioner -V e r s u s- 1. Union of India, through Secretary, Ministry of Home Affairs, C.G.O. Complex, New Delhi.
2. Director General, C.I.S.F., C.G.O. Complex, New Delhi.
3. Inspector General, Eastern Division, Headquarters, P.O.-Boring Road, P.S.-Kotwali, District-Patna, Bihar.
4. Deputy Inspector General of Police, C.I.S.F. Unit, Bharat Coking Coal Ltd., Dhanbad, P.O.-Koyla Nagar, P.S. and District- Dhanbad.
5. Commandant, Central Industrial Security Force, B.C.C.L., P.O.-Koyla Nagar, P.S. and District-Dhanbad.
6. Assistant Commandant, C.I.S.F. Unit, B.C.C.L., Dhanbad, Bagunia Camp (Hdqrs.) A-XII, P.O.-Koyla Nagar, P.S. and District-Dhanbad. … Respondents … CORAM: - HON’BLE MR. JUSTICE PRAMATH PATNAIK. … For the Petitioner : - M/s. Kumar Vaibhav and Pishabh Kamal, Advocates. For the Respondents: - M/s. Vibha Bakshi & D. Kumar, Advocates. … 08/22.07.2016 In the instant writ application, the petitioner has inter alia prayed for issuance an appropriate writ/direction for quashing the final order dated 25.11.2009, passed by the Commandant, C.I.S.F. Unit, B.C.C.L., Dhanbad pertaining to punishment of removal of the petitioner from services and for quashing the appellate order dated 23.12.009, passed by the Deputy Inspector General of Police, C.I.S.F. Unit, B.C.C.L., Dhanbad, whereby the appeal preferred by the petitioner has been dismissed and for quashing the order dated 29.04.2010, passed by the Deputy Inspector General of Police, Eastern Division, Headquarters, Patna, in terms of which the revision preferred by the petitioner has been dismissed and upon quashing the aforesaid order, to direct the respondents to reinstate the petitioner with all consequential benefits and continuity in service.
2. Sans details, the facts as disclosed in the writ application, is that, the petitioner was serving the respondent authority and posted as Constable in C.I.S.F. Unit, B.C.C.L., Dhanbad Area No.
12. The petitioner was placed under suspension on 29.05.2009 in contemplation of departmental 2 proceeding. The articles of charge were served upon the petitioner vide memo dated 7.8.2009. On 7.8.2009, the enquiry notice was served upon the petitioner, whereby it was informed that the Assistant Commandant has been appointed as the Enquiry Officer by the Senior Commandant. On 13.08.2009, an Enquiry Report was served upon the petitioner. During the pendency of the departmental proceeding vide Order dated 10.09.2009 issued by the Senior Commandant, the suspension of the petitioner was revoked. The petitioner preferred a representation in terms of the office memo dated 15.10.2009 on 27.10.2009 before the Administrative officer, C.I.S.F. Unit, B.C.C.L. The Commandant, C.I.S.F. Unit, B.C.C.L., Dhanbad (Respondent No.
5) passed final order dated 25.11.2009, whereby petitioner has been removed from his services. The appellate authority vide order dated 23.12.2009 has dismissed the appeal preferred by the petitioner before the Deputy Inspector General of C.I.S.F. Against the said order, the revision preferred by the petitioner before the Inspector General of C.I.S.F., Eastern Zone, Patna has been dismissed by the revisional authority vide order dated 29.04.2010. The petitioner has also preferred a mercy petition before the Ministry of Home Affairs and Director General of C.I.S.F., but the representation preferred by the petitioner has been dismissed. Left with no other efficacious, alternative and speedy remedy, the petitioner has been constrained to approach this Court invoking the extraordinary jurisdiction of this Court under article 226 of the Constitution of India for redressal of his grievances.
3. Heard Mr. Kumar Vaibhav, learned counsel for the petitioner and Ms. Vibha Bakshi, learned counsel for the respondents.
4. Counter affidavit has been filed on behalf of the respondent no. 3, repelling the contentions made in the writ application. It has been inter alia, submitted in the counter affidavit, that on going through the enquiry report and documentary evidence held on record, the Disciplinary authority agreed with the findings of the Enquiry officer and held the petitioner guilty of charges framed against him on the basis of statements of witnesses and documentary evidences adduced by them during the course of departmental enquiry. The orders passed by the Appellate as well as Revisional authorities confirming the decision of the Disciplinary Authority are well-justified in 3 the eyes of law since the Appeal and Revision Petition of the petitioner were found not convincing as well as mitigating facts to disprove his misconduct and devoid of merit. Hence, plea taken by the petitioner that the respondent authorities have failed to appreciate the case is not sustainable in the eyes of law.
5. Mr. Kumar Vaibhav, learned counsel for the petitioner has vehemently submitted that the respondents-authorities have failed to give proper weightage on the evidence laid down by the prosecution witnesses, hence come to a wrong and faulty conclusion. Learned counsel for the petitioner has submitted that from the evidences of the prosecution witnesses, the respondents authorities failed to evaluate that all the allegations levelled in the charge-sheet are false, as there are excessive differences in the evidence in their cross-examination and, as such, the entire enquiry report is liable to be set aside. Learned counsel for the petitioner has submitted that without assigning any reason and even without asking any show cause, the impugned order of punishment from removal from service cannot be said to be valid and judicious. Learned counsel for the petitioner has submitted that the respondents are not justified in imposing a major punishment on the petitioner without serving a valid second show cause notice indicating the punishment sought to be imposed upon the petitioner.
6. Per contra, Ms. Vibha Bakshi, learned counsel for the respondent has vociferously submitted that the petitioner has been found guilty of charges framed against him in a duly constituted departmental enquiry. Learned counsel for the respondent has submitted that the petitioner was afforded reasonable opportunity to defend his case, which he has also availed and the Disciplinary authority after careful consideration and taking all aspects into account agreed with the findings of the enquiry officer and found the petitioner guilty of charges framed against him. Learned counsel for the respondent has submitted that being a member of the Disciplined Force, involvement in theft of management property for which he was deployed, is a serious offence and the punishment awarded by the Disciplinary authority is commensurate with the gravity of offence.
7. After hearing the learned counsel for the respective parties at length and on perusal of the records, I am of the considered view that the petitioner 4 has been able to demonstrate foundational facts and law to make out a case for interference due to the reasons stated hereinbelow : - (i) The respondents authorities have not properly appreciated the statements made by Prosecution witnesses since, they are not at all trust worthy and are contradictory from each other and that was evident from their cross- examination at the time of enquiry proceedings (ii) The impugned order of punishment for removal from service is violative of the principles of natural justice and is also contrary to the Service jurisprudence. (iii) On perusal of the enquiry report (Annexure-5), it is crystal clear that the enquiry officer has expressed his suspicion on the earlier charges and the allegation that the petitioner was a mute spectator and was hand in gloves for the theft of the management property, is based on surmises and conjectures and the factum of arriving at the conclusion that the petitioner was guilty for the commission of the alleged offences is not based on factual facts. Moreover, in the enquiry, the charges are to be proved to the hilt, but, it appears that the enquiry report is based on suspicion and there is no clinching material evidences to apportion guilt on the delinquent petitioner. The view of this Court is further fortified by the judgment of the Hon'ble Apex Court rendered in the case of Roop Singh Negi-versus-Punjab National Bank and Ors. reported in (2009) 2 SCC570 wherein, in para 23 of the judgment, the Hon'ble Apex Court has been pleased to, inter alia, hold as under : - 23. Furthermore, the order of the disciplinary authority as also the appellate authority are not supported by any reason. As the orders passed by them have severe civil consequences, appropriate reasons should have been assigned. If the enquiry officer had relied upon the confession made by the appellant, there was no reason as to why the order of discharge passed by the criminal court on the 5 basis of selfsame evidence should not have been taken into consideration. The materials brought on record pointing out the guilt are required to be proved. A decision must be arrived at on some evidence, which is legally admissible. The provisions of the Evidence Act may not be applicable in a departmental proceeding but the principles of natural justice are. As the report of the enquiry officer was based o merely ipse dixit as also surmises and conjectures, the same could not have been sustained. The inferences drawn by the enquiry officer apparently were not supported by any evidence. Suspicion, as is well known, however high may be, can under no circumstances be held to be a substitute for legal proof.” (iv) The Hon’ble Apex Court in catena of decisions has held that in the enquiry proceedings, the oral evidences is to be led against the delinquent persons to prove the charge against him and mere production of documents is not enough to conclude that the charge against the officer stands proved. In the case of State of Uttar Pradesh and Ors. Vs. Saroj Kumar Sinha reported in (2010) 2 SCC772 in para 28, the Hon’ble Apex Court has been pleased to hold:
28. An inquiry officer acting in a quasi-judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the department/disciplinary authority/Government. His function is to examine the evidence presented by the Department, even in the absence of the delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved. In the present case the aforesaid procedure has not been observed. Since no oral evidence has been examined the documents have not been proved, and could not have been taken into consideration to conclude that the charges have been proved against the respondents.” (v) The impugned order of punishment of removal from services is not commensurate with the proved misconduct or proved charges and the punishment is excessive and 6 grossly disproportionate to the alleged charges. The Hon’ble Apex Court in the case of Lucknow Kshetriya Gramin Bank & Anr. Vs. Rajendra Singh as reported in (2013) 12 SCC372in the placitum held as under: “However, the judicial review of the quantum of punishment is available with a very limited scope. The court would frown upon only when the penalty imposed appears to be so disproportionate to the nature of misconduct that it is shocking to the conscience of the court. Even in such a case when the punishment is set aside as shockingly disproportionate, the appropriate course of action is to remit the matter back to the disciplinary authority or the appellate authority with direction to pass appropriate order of penalty. The court by itself cannot mandate as to what should be the penalty in such a case.”
8. On cumulative effect of the facts, reasons and judicial pronouncements and as a logical sequitor, the final order dated 25.11.2009, passed by the Commandant, C.I.S.F. Unit, B.C.C.L., Dhanbad and the appellate order dated 23.12.009, passed by the Deputy Inspector General of Police, C.I.S.F. Unit, B.C.C.L., Dhanbad as well as the order dated 29.04.2010, passed by the Deputy Inspector General of Police, Eastern Division, Headquarters, Patna, being not legally sustainable are hereby quashed and set aside. The matter is remitted to the disciplinary authority i.e. the Commandant, C.I.S.F. Unit, B.C.C.L., Dhanbad (Respondent No.
5) to consider the matter afresh and pass appropriate order in accordance with law on the quantum of punishment within a period of four months. (Pramath Patnaik, J.) APK