HIGH COURT OF JAMMU AND KASHMIR AT JAMMU. LPASW No. 13 OF 200.Om Parkash Petitioners Union of India and ors Respondent !Ms. Mandeep Reen, Advocate ^Mrs.Neeru Goswami, Senior Panel Counsel Honble Mr. Justice M.M. Kumar, Chief Justice Honble Mr. Justice Hasnain Massodi, Judge Date:
06. 11.2012 :JUDGMENT
: Per Massodi-J 1.On 1st September, 1998 at about 21:45 hours, a tragic incident took place at Patratu Thermal Power Station (PTPS), Patratu, Hazaribagh, Bihar, that claimed precious lives of two Central Industrial Security Force personnel.
2. The Central Industrial Security Force is an armed force of the Union constituted for better protection and security of Industrial 2 Undertakings owned by the Central Government. The appellant enrolled as Constable in the Force and his three colleagues namely, Constable Kartar Singh, Constable G.Patra and Head Constable S.R. Prasad were in the year, 1998, detailed at PTPS Patratu Cash Guard for round the clock duty for safety and security of PTPS Cash Section located in Administrative Building of the Power Station. They were accommodated in a room in the said building for housing the Cash Section, so as to enable them to repel any threat to the Cash Section and cash and valuables kept therein.
3. On the date of occurrence, i.e. 01.09.1998, the appellant completed his four hours duty at 4 PM and was relieved by his colleague, Constable Kartar Singh. Constable Kartar Singh completed his duty at 8 PM and was relieved by Constable G.Patra. Constable G.Patra and Head Constable S.R. Prasad at about 21:45 hours got entangled in a verbal dual. Constable G. Patra opened fire with his service rifle on Head Constable S.R. 3 Prasad, who died on spot. Constable G.Patra, thereafter, turned his service rifle to himself, pulled the trigger and committed suicide.
4. The appellant and his colleague Constable Kartar Singh stayed inside their room at the time of occurrence, made no attempt to intervene and disengage Constable G.Patra and Head Constable S.R. Prasad, and prevent the occurrence. The appellant and Constable Kartar Singh, according to the Supervisory Officers could have at least saved the Constable G. Patra, had they come out after hearing the first gun shot and tried to prevent Constable G.Patra from taking his own life.
5. The appellant and Constable Kartar Singh on account of cowardice shown by them in discharge of their duties were proceeded against under Central Industrial Security Force Act, 1968 and Rules made thereunder. The charges against the appellant read as under; 4 ARTICLE OF CHARGE-I An Act of cowardice, inaction and insubordination on the part of No.851320115 Constable Om Parkash of CISF Unit, PTPS Patra-tu in that he failed to protect the precious lives of HC/GD S.R. Prasad who was shot dead by Constable G.Patra on 01.9.98 at about 2145 hrs at PTPS Patratu Cash guard and later committed suicide although the said constable Om Parkash was present at Cash Guard where the incident had taken place. ARTICLE OF CHARGE-II An act of gross misconduct and suppression of fact on the part of the said No. 851320115 Constable Om Parkash in that he wilfully suppressed the fact of incident dated 01-9-98 happened at Cash Guard duty post with vested interest and given false statement misleading the higher formation although he had witnessed the entire incident before Const. G. Patra shot dead HC/GD S.R. Prasad and later committed suicide. 6. The appellant was placed under suspension. The charges during enquiry were proved against him. The Commandant, CISF Unit, PTPS, Patratu, Hazaribagh, Bihar on 23rd February, 1999, in exercise of powers conferred by Rule 29-A read 5 with Schedule-II to Rule 29-A and Section 31(c) of CISF Rules 1969, imposed punishment of Compulsory Retirement from Service with 2/3rd Pension and Gratuity on the appellant.
7. The appellant filed an appeal against the order of Commandant, CISF Unit, PTPS, Patratu, Hazaribagh, Bihar before Deputy Inspector General, Central Industrial Security Force, Patna, Bihar. The Appellate Authority did not find any merit in the appeal and the appeal was, accordingly, dismissed on 08.09.1999.
8. Aggrieved with the order of the Commandant, CISF Unit, PTPS, Patratu, Hazaribagh, Bihar dated 23rd February, 1999 and that of the Deputy Inspector General of Central Industrial Security Force dated 08.09.1999 (Appellate Authority), the appellant approached the writ Court with a writ petition registered as SWP No.2776/1999. The appellant on the strength of averments made in the writ petition sought a writ of Certiorari 6 quashing the order dated 23rd February, 1999 passed by Commandant, CISF Unit, PTPS, Patratu, Hazaribagh, Bihar respondent no.3 in the petition as also the order dated 8th September, 1999 passed by Deputy Inspector General, Central Industrial Security Force, Patna, Bihar respondent no.2. The appellant also prayed for a writ of mandamus commanding the respondents to allow him to resume his duty and pay him all the service benefits payable in wake of his reinstatement.
9. The appellants case before the writ Court was essentially factual in character. The appellant narrated the sequence of events that took place in the late evening of 1st September, 1998 at PTPS, Hazaribagh, Patna, Bihar to prove that he after performing his duties and taking his dinner was sleeping in the room and was not in a position to prevent the occurrence. The appellant denied that he was guilty of cowardice and dereliction of his duty or that any negligence was attributable to 7 him. The writ Court vide judgment dated 01.11.2001 dismissed the writ petition observing that whatever was averred in the writ petition was to be looked into by the Enquiry Officer and the Appellate Authority and that the writ Court was not to assume the role of the Appellate Authority and sit an appeal over findings recorded by the respondents 2 and 3 on the basis of evidence available to them.
10. The appellant questions the writ Court judgment dated 01.11.2001 on the grounds identical to the grounds set up in the writ petition. It is denied that the appellant was guilty of negligence towards his duty. The writ Court is said to have failed to appreciate that rule 31 of the Central Industrial Security Force rules, 1969 was flouted by the respondents while passing the impugned orders. The writ Court, according to the appellant, erroneously refused to exercise the writ jurisdiction unmindful of the appellants case that the conclusions drawn by the Enquiry Officer and 8 the Appellate Authority were based on assumption and presumption and, thus, arbitrary in nature and further that the respondents were biased against the appellant.
11. We have gone through the appeal as well as writ record and have heard learned counsel for the parties.
12. The judicial review of administrative action/decision, as laid down by the Supreme Court in Ranjit Thakur Vs. Union of India 1987(4) SCC 61.is restricted to illegality, irrationality perversity and procedural impropriety. The Court may also stretch its wings and examine such action/decision where the sentence/punishment is outrageous defies logic or is not commensurate with the misconduct proved against the delinquent officer. However, irrationality and perversity remain the baseline in judicial review. The judicial review, it has been held times without number, is not 9 directed against the decision but against the decision making process. Having said so, let us proceed to examine the case set up by the appellant before the writ Court, to see whether any of the grounds on which judicial review of administrative action/decision is permissible was urged by the appellant before the writ Court.
13. From perusal of the writ Court record, it transpires that the primary challenge to the impugned orders as set out in the writ Petition, was factual in character. The appellant was at pains to point out that the occurrence took place so quickly that not time was left for him to intervene and save the situation. The conclusions drawn by the Enquiry Officer reflected in the impugned order dated 23rd February, 1999, according to the appellant, were arbitrary in character and a mala fide exercise to find a scapegoat and an effort by the respondent nos.2 and 3 to save their skin. The appellant insists that the Compulsory Retirement with 2/3rd 10 Pension and Gratuity was major punishment not expected to be passed in a casual manner as was done in his case. The appellant did not assail the impugned orders as illegal, irrational or perverse. His case was that he had done, whatever was possible in the facts and circumstances, and that as because of mode and manner in which the occurrence took place, it was not possible for him to intervene and save either of the officers, who lost their lives. The appellant has not even in the memorandum of appeal come up with a clear stand that the conclusions drawn by the Enquiry Officer were irrational, illegal and based on no evidence and therefore, perverse. The appellant instead makes a vague statement that the writ Court order is bad in law and outcome of bias and mala fides. The writ Court was, therefore, right in concluding that the appellant wanted it to assume the role of the appellate Court, examine and re-appreciate the evidence recorded and find out whether the evidence pointed to negligence or 11 cowardice on part of the appellants. The writ Court obviously could not jump for such a role and re-appreciate the evidence as if it was sitting in an appeal over the findings returned by the Commandant, CISF or the observations made by Deputy Inspector General, Central Industrial Security Force, as Appellate Authority.
14. The above discussion apart, a closer look at the impugned order dated 23rd February, 1999 would reveal that the conclusions drawn by the Enquiry Officer are based on the evidence recorded and are well reasoned. The findings returned cannot be labelled as irrational, illegal and perverse. There is not even a whisper about the procedural irregularity in the body of the petition or the memorandum of appeal and as the record made available by learned counsel for the respondents would show the respondents appear to have followed the procedure and left no room for even a suspicion regarding adherence to the procedure laid down under rules”
15. The appellant has not, in the writ petition, questioned quantum or proportionality of the punishment awarded or assailed the power and jurisdiction of the respondent no.3 to award the punishment of Compulsory Retirement with 2/3rd Pension and Gratuity. The feeble effort, however, is made in para VIII of the petition to complain that the punishment awarded was major punishment and could not have been awarded in a casual manner. In the memorandum of appeal as well, the appellant does not specifically question the power and jurisdiction of respondent no.3 to award the punishment or that the punishment was not commensurate with the misconduct proved against the appellant. However, in para 7(c) of the appeal, it is insisted that rule 31 of Central Industrial Security Force Rules, 1969 was flouted by the respondents. The plea though vague may, yet be examined on the touch stone of rules relevant to the controversy”
16. Rule 29-A read with Schedule-II of CISF Rules, 1969 identifies the Authority that may act as disciplinary authority in respect of the member of the Force for the purpose of imposing penalty or for passing any disciplinary order. In case of penalty of Compulsory Retirement, Commandant is included as the disciplinary authority in respect of all members of the Force except Inspectors. Rule 31 enumerates the penalties that may be imposed by the Disciplinary Authority on member of the Force. The penalties prescribed include Compulsory Retirement. It needs to be seen whether the Disciplinary Authority was competent to impose the punishment of Reduction of Pension and Gratuity.
17. It is pertinent to point out that Reduction in Pension and Gratuity either by itself or in combination with compulsory retirement is not included in list of penalties that may be imposed on a member of the Force. However, learned 14 counsel for the respondents argues that in terms of Rule 70, CISF Rules, 1969, the respondent no.2 while awarding punishment could press into service Rule 40 of Central Civil Services (Pension) Rules, 1972. It is submitted that Rule 70 of CISF leaves room for application of rules and orders for the time being applicable to the officers holding posts in the Central Government, to the Supervisory Officers and members of the Force in respect of the matters regarding conditions of service for which no provision or insufficient provision has been made in CISF Rules of 1969. Rule 40(1) of Central Civil Services (Pension) Rules, 1972 reads as under; 40.Compulsory retirement pension (1) A Government servant compulsorily retired from service as a penalty may be granted, by the authority competent to impose such penalty, pension or gratuity or both at a rate not less than two-thirds and not more than full compensation pension or gratuity or both admissible to him on the date of his compulsory retirement.”
18. In terms of Rule 40(1), the retirement benefits which would be admissible to an officer on whom the penalty or compulsory retirement is imposed would be full compensation pension or gratuity or both admissible to him on the date of his compulsory retirement or 2/3rd of such pension or gratuity as may be directed by the disciplinary Authority. In other words, Rule 40 of Central Civil Services (Pension) Rules, 1972 incorporates safeguards in favour of Central Government employee imposed penalty of Compulsory retirement. It prohibits reduction of pension and gratuity below 2/3rd of pension and gratuity payable to such employee. The Competent Authority, therefore, cannot as penalty slashed down the pension and gratuity due to a government servant compulsorily retired, to less than 2/3rd of pension and gratuity payable to him. The question is whether Rule 40 of Central Civil Services (Pension) Rules, 1972 could have been 16 made use of by the respondent no.3, while awarding punishment of reduction of pension and gratuity to 2/3rd of pension and gratuity payable to the appellant. To find answer to the question, we may have to revisit and analyse Rule 70 of CISF Rules, 1969 that according to learned counsel for the respondents enables the respondent no.3 to press into service Rule 40 of Central Civil Services (Pension) Rules, 1972.
19. It is pertinent to point out that Rule 70 of CISF Rules, 1969 is residuary in character. The rule makes scope for application of rules and orders for the time being applicable to the employees of the Central Government to the Supervisory Officers and members of the Force, only in respect of the matters relating to conditions of service for which no provision or insufficient provision has been made in CISF Rules, 1969. Rule 31 CISF Rules deals with nature of penalties that may be imposed on the Supervisory Officers or members of the Force. 17 The rule makers in their wisdom have not included Reduction in Pension and Gratuity in the list of penalties that may be awarded under Rules. However, the area of penalties and procedure, including nature of penalties cannot be said to be a field not dealt with or left uncovered under CISF Rules, 1969. Rule 70, therefore, cannot be made use of to import or incorporate Rule 40 of Central Civil Services (Pension) Rules, 1972; the reason being that it is not a subject on which no provision or insufficient provision exists in CISF Rules, 1969. The penalty not included by Rule makers in the list of penalties embodied in Rule 31 of CISF Rules, that can be imposed on Supervisory Officers or members of the Force, cannot be awarded by making use of Rule 40 of Central Civil Services (Pension) Rules, 1972. This apart, Rule 40 of Central Civil Services (Pension) Rules, 1972 is not by itself penal rule or a rule prescribing a punishment. It only lays down the limitation of 18 the penalty of reduction in pension and gratuity wherever under rules such penalty is provided for. For this reason also, Rule 40 of Central Civil Services (Pension) Rules, 1972 cannot be taken to supplement and add to Rule 31 of CISF Rules, 1969. Their resistible conclusion to which the above discussion leads us is that the respondent no.3 could not in addition to punishment of Compulsory Retirement impose punishment of reduction in pension and gratuity to 2/3rd of pension and gratuity due to the appellant.
20. For the reasons discussed, the impugned order dated 23rd February, 1999 passed by respondent no.3 is quashed to the extent it provides for reduction of pension and gratuity to 2/3rd of pension and gratuity due to the appellant. However, the order to the extent it provides compulsory retirement is maintained. The Letters Patent Appeal is allowed to the said extent. The Letters Patent Appeal on hand and 19 the writ petition are destined to succeed to the said extent and are disposed of accordingly.
21. No order as to costs. (Hasnain Massodi) (M.M. Kumar) Judge Chief Justice Jammu 06.11.2012 V a r u n B e d i