Bachhraj Singh vs The Central Industrial Security Force and Others

Sujoy Paul, J.—Petitioner has filed this petition under Article 226 of the Constitution to challenge the order dated 17/11/2004, whereby the Commandant, Central Industrial Security Force (C.I.S.F.) inflicted on him punishment of removal from service with immediate effect. The appellate order Annexure-P/2 dated 31/01/2005 passed by Deputy Inspector General (DIG)/WZ is also called in question. The brief facts necessary for adjudication of this matter are as under:-

Petitioner was working on the post of Constable in CISF, which is constituted under CISF Act, 1968. The rules namely CISF Rules 2001 (hereinafter called as "Rules") are framed for the members of the Force. The case of the petitioner is that in May, 2004, petitioner was posted with the CISF unit, Currency Note Press, Nasik (hereinafter called as "CNP"). On 16/05/2004, petitioner was residing in government accommodation allotted to him in Indian Security Printers'' residential colony. In quarter No. 867 type-II, the petitioner had a quarrel with his neighbours, who were employees of CNP. The case of the petitioner is that he has been falsely implicated. Petitioner was served with a charge-sheet Annexure-P/4 dated 11/06/2004 issued by the Commandant. Parallely, a criminal case was also lodged against the petitioner. However, during pendency of the disciplinary proceedings, a compromise was entered into in the criminal case and accordingly, petitioner was acquitted.

Shri Vivek Jain learned counsel for the petitioner assailed the disciplinary proceedings, punishment and appellate order on the following grounds:- (1) Petitioner was subjected to criminal case on the basis of same allegations, for which the departmental enquiry was conducted. As per Section 320(8) of Code of Criminal Procedure, once a person is acquitted, he should be treated as exonerated for all purposes. After having been acquitted, it was no more open for the departmental authorities to punish him in the disciplinary proceedings. (2) The next contention is that allegations mentioned in the charge-sheet do not constitute misconduct against the petitioner. In addition, it is contended that even if the allegations constituted misconduct, it has no nexus with employment. The alleged incident took place beyond the duty hours and outside the premises, where petitioner was required to perform his duties. He relied on the judgment of Supreme Court reported in Glaxo Laboratories (I) Ltd. Vs. Presiding Officer, Labour Court, Meerut and Others, . (3) The next contention of Shri Vivek Jain is that as per 2001 rules, the Commandant was not competent to punish the petitioner. By taking this Court to the concerned chart Annexure-P/9, it is argued that only Director General, Senior Inspector General/Inspector General (head quarters), DIG or Senior Commandant were competent to inflict punishment of dismissal from service. The impugned dismissal order is passed by Commandant, who was not competent. No other point is pressed by learned counsel for the petitioner.

Shri Alok Katare on the other hand supported the order and disciplinary proceedings. He relied on the gazette notification dated June 9th, 2003, whereby CISF rules were amended to submit that the Commandant was very much competent to inflict the punishment of dismissal from service. He also produced the record of disciplinary proceedings for perusal of this Court.

I have bestowed my anxious consideration to the rival contentions of the parties and perused the record.

Before dealing with the legal points raised by the parties, I deem it proper to reproduce the charges alleged against the petitioner.

The Enquiry Officer in his finding opined as under:-

On the basis of said report, petitioner was punished.

Firstly, it is argued that the Commandant, CISF was not competent to punish the petitioner. This contention is based on Annexure-P/9, the schedule mentioned under the rules. However, I find no merit in this contention in the teeth of amendment in the rules (published in Gazette of India dated 9th June, 2003). In schedule I, in the heading of column No. 6 before the word "Commandant" the word "Senior Commandant" was inserted. This amendment shows that in column no. 6, the word Commandant was very much there. Thus, I am unable to hold that Commandant was not competent to punish the petitioner.

The Second contention of the petitioner is that in the criminal case, he was exonerated. Pursuant to his submission and as per Section 320(8) of Cr. P.C., he should be treated as exonerated for all purposes and after that, he cannot be subjected to a disciplinary proceedings. In the opinion of this Court, this submission is devoid of merit and substance. In catena of judgments, the Apex Court held that purpose and scope of departmental enquiry and criminal case are different. The nature of evidence required to establish charge is also different in both the cases. In departmental enquiry, some evidence is sufficient to hold the employee guilty and principle of preponderance of probabilities is applicable whereas in the criminal case sufficient evidence is required and principle of proof beyond the reasonable doubt is applicable. The employee is subjected to departmental enquiry because of his conduct, whereas he is subjected to criminal case when he commits an offence under any penal law. Mere acquittal in criminal case, does not lead to any prohibition to conduct the enquiry. More so, when such exoneration is not based on merits and is based on benefit of doubts or on any compromise. Recently, the Apex court opined this in The Deputy Inspector General of Police and Another Vs. S. Samuthiram, The relevant part reads as under:-

In the absence of any provision in the service rules for reinstatement, if an employee is even honourably acquitted by a criminal court, no right is conferred on the employee to claim any benefit including reinstatement. The reason is that the standard of proof required for holding a person guilty by a criminal court and the enquiry conducted by way of disciplinary proceeding is entirely different. In a criminal case, the onus of establishing the guilt of the accused is on the prosecution and if it fails to establish the guilt beyond reasonable doubt, the accused is assumed to be innocent. Strict burden of proof required to establish guilt in a criminal court is not required in a disciplinary proceedings and preponderance of probabilities is sufficient. There may be cases where a person is acquitted for technical reasons or the prosecution giving up other witnesses since few of the other witnesses turned hostile, etc. In the instant case, the respondent was not honourably acquitted by the criminal court and even if it is so, he is not entitled to claim reinstatement since the T.N. Service Rules do not provide so.

The last limb of contention is that the alleged incident took place beyond the duty hours and out side the premises and therefore, does not constitute misconduct. The judgment of Supreme Court Glaxo Laboratories (I) Ltd. Vs. Presiding Officer, Labour Court, Meerut and Others, heavily relied upon. However, it is apt to quote the following passage from the said judgment, wherein the Apex court relied on yet another judgment of Supreme Court, it reads as under:-

In our opinion, on a plain reading of the clause, the words "within the premises or precincts of the establishment" refer not to the place where the act which is subversive of discipline or good behaviour is committed but where the consequence of such an act manifests itself. In other words, an act, wherever committed, if it has the effect of subverting discipline or good behaviour within the premises or precincts of the establishment, will amount to misconduct under Standing Order 24(1). We are unable to agree that Standing Order 24(1) leaves out of its scope an act committed outside though it may result in subversion of discipline or good behaviour within the premises or precincts of the establishment in question. Such a construction in our view would be quite unreasonable.

In the said judgment, Supreme Court further held as under:-

Therefore, even where the standing order is couched in a language which seeks to extend its operation far beyond the establishment, it would none the less be necessary to establish causal connection between the misconduct and the employment.

The Division bench has followed the same ratio recently in Union of India and Others Vs. Sukhbir Singh Bais, The Division Bench opined that the ratio decidendi of the judgment of Glaxo (supra) is that the conduct of the employee and it is effect on the employment is to be seen. Even if incident had taken place outside the premises and after working hours, if its adverse effect falls on the discipline of the establishment, it falls within the ambit of misconduct. In Samar Bahadur Singh Vs. State of U.P. and Others, the appellant a Constable in Provincial Armed Constabulary (PAC) after the working hours went to a liquor shop and forcibly and by threatening the employees of wine shop, grabbed bottle of liquor. Departmental enquiry was proceeded against him. Simultaneously, he was subjected to criminal case from where he was acquitted. In the departmental enquiry, he was punished, against which he preferred the WP, which was ultimately traveled to Supreme Court. The Apex Court in para 7 opined that the acquittal has no bearing or relevancy on the departmental enquiry because standard of proof in both the cases are totally different. In para 8, the Apex Court opined as under:-

Acquittal in the criminal case shall have no bearing or relevance to the facts of the departmental proceedings as the standard of proof in both the cases are totally different. In a criminal case, the prosecution has to prove the criminal case beyond all reasonable doubt whereas in a departmental process, the department has to prove only preponderance of probabilities. In the present case, we find that the department has been able to prove the case on the standard of preponderance of probabilities. Therefore, the submissions of the counsel appearing for the appellant are found to be without any merit.

A bare perusal of this portion makes it clear that an employee of disciplined force is required to maintain strict discipline even in public. In this case also where the alleged misconduct was beyond the duty hours, the employee was punished and it was upheld by the Supreme Court. The same principle deserves to be applied in the case of the petitioner. In Sukhbir Singh Bais (supra), the Division Bench opined as under:-

In the present case, both the charges are proved to the hilt and considering the gravity of charges, its nexus with the employment and considering the fact that the respondent was an employee of armed force, in our opinion, the interference by the Writ Court was unwarranted. The charge-sheet and the evidence clearly shows that the incident is arising out of the employment and it has a nexus with the same. Thus, even if it has taken place after the duty hours, it does constitute a misconduct. In Union of India (UOI) Vs. Ram Kishan, the Apex Court dealt with a case where the police personnel was not in uniform and committed an offence. It was opined that the employee was purporting to act as a police personnel even when he was in plain clothes. Thus, punishment was not interfered with. In Government of Tamil Nadu and others Vs. S. Vel Raj, , the Apex Court dealt with the stand of a police personnel where he stated that he was found in a drunken condition but he was in "mufti". It was also the stand of the delinquent employee that he had consumed "arrack". The Apex Court held that a disciplinary force one has to behave in a disciplined manner and, therefore, the said stand was not accepted and punishment of dismissal was upheld. The same punishment was affirmed by the Supreme Court in State of U.P. and others Vs. Harendra Kumar (2004) 13 SCC 117 , wherein the allegations were regarding consumption of liquor on duty. In Samar Bahadur Singh Vs. State of U.P. and Others, the Apex Court affirmed the punishment in case of consumption of liquor by a Police Constable. A Division Bench of this Court in Ashok Kumar Vs. State of M.P. and others, Writ Appeal No. 618/2012, has taken the same view on 03/12/2012. considering the aforesaid, it cannot be said that the punishment is harsh or excessive in nature.

In the considered opinion of this Court, the conduct of the petitioner amounts to serious misconduct. The conduct of the petitioner had an adverse impact on the image and discipline of the department. The petitioner acted in a very indecent and violent manner. This conduct is totally unbecoming for a member of disciplined force. No other flaw in decision making process is argued and established. Punishment cannot be said to be harsh or disproportionate. Petition is meritless and is hereby dismissed. No costs.