Girdhari Lal vs Dy.Inspector General, C.I.S.F.and Others

Petitioner was a constable on probation in the Central Industrial Security Force (CISF). He was allegedly involve in a quarrel with some civilians

and the manager of a cinema hall at Jaggi Road, Assam. He was first placed under suspension and then removed from service by order dated

24081987, passed by respondent No. 2 pursuant to a departmental inquiry. He filed an appeal against his removal which was not considered

because of being unsigned. He has now filed this petition to question his removal from service.

Petitioner's primary challenge to his removal flows from three flanks, viz: (i) that a charge sheet against him was framed by an incompetent authority

(Asstt. Commandant); (ii) that no inquiry report was furnished to him; and (iii) that no second show cause notice was issued to him proposing his

removal from service in terms of rule 34(1)(11)b of the CISF Rules.

In the objections filed and supported by an affidavit of the DIG of the CISF. It is asserted that the Assistant Commander was the disciplinary

authority under rules and that a copy of the inquiry report was served on petitioner and received by him on 01091987 and that no show cause

notice was required to be given to him before passing the final orders of removal from service in view of the amendment made in the rules in 1981.

It is also claimed that he was granted hearing both in the departmental inquiry and before the order was passed against him and that his appeal

against his removal could not be signed by him.

Petitioner's whole case rests on the alleged violation of the principles of natural justice and contravention of the provisions of Rule 34. His first plea

that the Asstt. Commander was not competent to frame the charge appears to be made cursorily because it is nowhere specifically averred in the

petition. Moreover, now that it stands clarified that the Asstt. Commander was disciplinary authority under the rules, it becomes unnecessary to

dilate on it further. The same holds true about furnishing of a copy of the inquiry report said to have been served on the petitioner on 01091987.

There is no reason to disbelieve the official version in this regard. Therefore.all told it does not seem to be a case of any violation of the principles

of natural justice.

Now all that remains to be seen is whether a second show cause notice was required to be served on the petitioner proposing punishment of

removal to enable him to make the representation?

Petitioner's counsel, Mr. Salaria, has placed reliance on Rule 34(10)(11)(b) and the judgement of the Supreme Court in Union of India V/s Moh'd

Ramzan (AIR 1991 S.C. 471) in support. He urged that the respondents were under an obligation to give this notice irrespective of the 42nd

Amendment in the Constitution and the CISF Rules.

At this stage, it would be appropriate to reproduce the relevant rule for proper appreciation of the submission :

Unamended : Rule 34(10)(ll)(b) :

(b) give the member so cahrge a notice stating the action proposed to be taken in respect of him and calling upon him to submit within a specified

time such representation as he may wish to make against the proposed action;

Amended : Rule 34(10)(ll)

If it is of the opinion that any of the penalties specified in clauses (a) to (d) of rule 34 should be imposed, such penalty may be imposed on the basis

of evidence adducted during the inquiry and it shall not be necessary to give the member of the force, any opportunity of making representation on

the penalty proposed.

A plain reading of the amended rules leaves no room for doubt that it obviates the necessity to issue a second show cause notice , to enable the

delinquent employee to make a ; representation. Since petitioner's claim to second show cause notice is based on the unamended rule, it naturally

evaporates with the amended rule. He had to swim with the provisions of the Rule. He cannot base his claim on what suits him in the rule and

refuse to accept what goes against him. Therefore, as long as he relies upon the provision of this rule, it would have to be in conformity with the

rule as it stands.

Mr. Salaria's reliance on Moh'd Ramzan Khan's case (supra) is equally misplaced. The Supreme Court ruled in this case :

While by law application of natural justice could be ruled out or truncated, nothing has been done by 42nd amendment which could be taken as

keeping natural justice out of the proceedings and applicability of rules of natural justice to such an enquiry is not affected by 42nd amendment.

Therefore, supply of a copy of inquiry report, alongwith recommendations, if any, in the matter of proposed punishment to be inflicted would be

within the rules of natural justice and the delinquent would, therefore, be entitled to the suplly of a copy thereof.

As would be evident, the Apex Court was dealing with the issue of the supply of the copy of the inquiry report to the delinquent employee and not

with his right to be given a show cause notice. It is also to be noted that this judgement was given prospective application in AIR 1994 SC 1074.

That apart, this judgement does not rule that it was mandatory to give a second show cause notice proposing punishment to a delinquent employee

in disregard to the provision of the service rules. Where employee's claim in this regard flows from the Rules, it would die or survive in accordance

with such Rules.

This writ petition accordingly fails and is dismissed.