Jay Prakash Marmu vs The Director Central Industrial Security Force

K. Ravichandrabaabu, J.—The petitioner is aggrieved against the order of removal from service. The petitioner was a Head Constable in the Central Industrial Security Force. Based on the charge memo dated 08.07.2009, a punishment of reduction of pay by one stage from Rs.8120 BP + 2400 GP to Rs.7810 BP + 2400 GP in the time scale of pay of Rs.5200 - 20200 for a period of four years with effect from 9.10.2009 was imposed on the petitioner. The charge levelled against the petitioner was that he was arrested by the police at Nayapalli Police Station, Bhubaneswar on 30.04.2009, while on leave, in connection with an offence of cheating a woman and that he was remanded to judicial custody exceeding 48 hours and was released on bail on 7.5.2009 and rejoined the Unit on 13.5.2009. The said charge further proceeded that the petitioner neither informed promptly to the competent authority about his arrest and judicial detention from the place of arrest nor did he inform the competent authority about his arrest after rejoining the duty. Therefore, the disciplinary authority initiated proceedings on the ground that he has suppressed the material information which amounts to gross misconduct. The first appellate authority by way of suo motu review, issued a show cause notice to the petitioner on 10.02.2010 calling for explanation as to why the punishment should not be enhanced. The petitioner gave a reply stating that he has not been convicted and not informing the arrest and remand may not be taken as a serious misconduct to remove the petitioner from service. However, the appellate authority by order dated 7.4.2010 enhanced the punishment to one of removal from service with immediate effect. Aggrieved against the same, the petitioner preferred a revision before the revisional authority, who in turn by order dated 22.06.2010 confirmed the order of the appellate authority. Aggrieved against those orders, the present writ petition is filed before this Court.

The learned counsel appearing for the petitioner mainly contended that the only allegation made against the petitioner in the charge is that he failed to inform the arrest and remand to the competent authority even after re-joining the duty on 13.5.2009. Thus, he submitted that mere failure on the part of the petitioner to inform about the said arrest and detention cannot attract major punishment of removal from service, especially under the circumstances that the petitioner was also subsequently acquitted in the said criminal case. Therefore, the learned counsel submitted that the punishment imposed on the petitioner is highly excessive and therefore the authorities ought to have considered the proportionality of punishment before imposing the same on the petitioner. The learned counsel further submitted that the suo motu review exercised by the first appellate authority is also beyond the limitation period of six months and therefore on that ground also, that order has to be set aside.

We have gone through the suo motu review order passed by the first appellate authority under Rule 54 of Central Industrial Security Force Rules, 2001 (hereinafter referred to as "the Rules") the above said Rules. A perusal of Rule 54 of the said Rules would show that the revisional authority has to pass an order within six months from the date of communication of the order proposed to be revised. In this case, the original authority passed the order on 9.10.2009 and the first appellate authority passed an order on 7.4.2010, that too, after issuing show cause notice calling for explanation. Therefore the order dated 7.4.2010 is well within the time of six months as contemplated under Rule 54(1)(d) of the above said Rules and therefore we do not find any merit in the submission made by the learned counsel appearing for the petitioner with regard to limitation aspect.

We have gone through the order passed by the first appellate authority for considering the matter on merits, more particularly with regard to quantum of punishment and its proportionality. The said authority has enhanced the punishment only by stating that the petitioner has admitted the charge during the course of departmental enquiry and he being a disciplined member of the force, suppressed the material facts about his arrest intentionally, which deserved stringent punishment.

In our considered view, we do not think that such major punishment of removal from service is warranted, under the facts and circumstances of the case, merely because the petitioner failed to inform the authorities about the arrest and remand after rejoining duty. Further, it is submitted by the learned counsel for the petitioner, that the petitioner was also acquitted subsequently by the Criminal Court. Therefore, in our considered view, such a major punishment seems to be excessive and therefore the proportionality of the punishment requires to be re-considered by the first appellate authority.

As the power of considering the excessive punishment has to be exercised by the authorities as contemplated under Rule 52(2)(c), we find that this matter needs to be remitted back to the first appellate authority so as to consider as to whether the punishment imposed on the petitioner is excessive or adequate or proportionate to the charge levelled against him. Accordingly, the orders of the first appellate authority and revisional authority are set aside and the matter is remitted back to the first appellate authority to pass fresh orders within a period of eight weeks. The petitioner is directed to place the copy of the order of acquittal passed by the criminal court along with a copy of this order to the first appellate authority within two weeks and the said authority, on being satisfied with the materials placed, shall pass orders as stated supra.

The writ petition is disposed of with the above observation. No costs.