Joginder Singh Gautam vs Union Of India & Ors

Md. Nizamuddin, J

Heard learned advocates appearing for the Parties.

This Writ Petition has been filed challenging the impugned order dated 27th June, 2012 and order dated 2nd January, 2013 relating to the issue of the disciplinary proceedings and imposition of punishment in question.

Relevant facts involved in brief in this case as appears on perusal of relevant records are hereunder.

Petitioner was appointed to the post of Constable in Central Industrial Security Force (CISF) in the year 2003. While working in the CISF Unit petitioner was charged and disciplinary proceeding was initiated against him. Petitioner was charged under Rule 36 of the CISF Rules and Articles of Charges were as follows:

"........... Article of ChargeNO.-1 No. 034690118 SI/Exe Joginder Singh Gautam of CISF Unit KoPT Kolkata is charged with gross misconduct, misbehaviour and an act of indiscipline, in that, when detailed in 'A' shift duty on 13.07.2011 from 0500hrs to 1300 hrs as shift I/c at Gate No. 13, in KPD-II area misbehaved with insp/Exe Kishor Kumar in a loud voice who was briefing the shift and also unnecessary arguments with Shri N.C. Choudhary, DC in from of other shift personnel at 0500 hrs in the HQrs Coy Unit lines at "Bhutghat". He also threatened Insp/Exe Kishor Kumar and created an unhealthy situation in the unit lines.

The above act on the part of No. 034690118 SI/Exe Joginder Singh Gautam amounts to gross misconduct, misbehaviour and an act of indiscipline which is unbecoming of a member of a disciplined Force of the Union like CISF. Hence the charge.

Article of Charge No.-II

That the said No. 034690118 SI/Exe Joginder Singh Gautam of CISF Unit Kopt Kolkata during a short span of 08 years of service in CISF has involved himself in various delinquencies and thereby has been awarded 06 (six) minor punishments. Even then he did not mend himself and has developed an incorrigible character, which amounts to an act of indiscipline and gross misconduct on his part. Hence, the charge."..............

In the present case, a charge sheet was issued to the petitioner on 20.07.2011 containing two charges mainly for gross misconduct, misbehaviour and an act of indiscipline. During the last 8 years of his service, several minor punishments were imposed upon the petitioner and the same would be evident from Article of Charge-II. In reply to the charge sheet, petitioner merely denied the same.

Ultimately, on the basis of the enquiry report submitted by the Enquiry Officer, Disciplinary Authority passed final order on 07.11.2011 for 'Removal from Service' with immediate effect without pensionary benefits.

The petitioner filed a departmental appeal against the aforesaid order and the Appellate Authority by its order dated 20th February, 2012 modified the order of punishment by reinstating the petitioner in service considering his age, having long service ahead and his plea for giving an opportunity to rectify himself. It was proposed by the Appellate Authority to treat the intervening period i.e. from the date of his 'Removal from service' to the date of rejoining duty on reinstatement as 'Dies-non'. The petitioner was given liberty to make representation within 15 days from the date of rejoining of his duty. Concluding portion of the aforesaid order of the Appellate Authority is as follows:

"............. AND WHEREAS, I have carefully considered the appeal preferred by the appellant, the departmental proceeding files, findings of the Enquiry Officer and other related documents held on record and I have applied my mind to the case. I find that the Articles of charge levelled against the appellant were held proved on the basis of overwhelming evidence held on record. The Enquiry Officer had conducted the enquiry in a fair and judicious manner and afforded him all reasonable opportunities to rebut the adverse evidence and to submit sufficient material in support of his defense. He, however, failed to do so. There is also no material irregularity or miscarriage of justice in this case. There is no doubt about the misdemeanour on the part of the appellant which has been aptly proved during the enquiry. But the final order passed by the Disciplinary Authority awarding him the penalty of "Removal from Service" vide Sr. Commandant, CISF Unit KoPT Kolkata Final Order No. V-15014/Maj- 05/KoPT/Disc/JS/2011/8765 dated 07.11.2011 appears to be harsh, disproportionate vis-a-vis the gravity of the misconduct he was found guilty and in exercise of powers conferred upon me under Rule-52 of CISF Rules, 2001, I, therefore, reduce the punishment to that of "Reduction of pay to the minimum stage from Rs. 13840/- + Rs. 4200/- (GP) to Rs. 10890/- + Rs. 4200 (GP) in the Pay Band Rs. 9300-34800/- + Grade Pay Rs. 4200/- for a period of two years. Further, it is ordered that he will not earn increments of pay during the period of reduction and that no expiry of this period, the reduction will have the effect of postponing his future increments of pay i.e. from the date of "Removal from Service" to meet the ends of justice.

AND THEREFORE, I the undersigned am inclined to give him a chance and pass an order for re-instatement in service considering the age of the appellant, having long service ahead and his plea for giving and opportunity to rectify himself. The appellant is directed to report to the Dy. Commandant, CISF Unit, NHPCL Subansiri (Assam) within 15 days from the date of receipt of the order, failing which it will be presumed that he is no longer interested to re-join service on re-instatement and this order will stand cancelled without any further notice. It is also proposed to treat the intervening period i.e. from the date of "Removal from service" to the date of re-joining duty on re-instatement as 'Dies-non'. He is given an opportunity to submit his representation, if any, within 15 days from the date of re-joining duty, against the aforesaid proposal.".................

Challenging the order of the Appellate Authority the petitioner filed Revision Petition before the Revisional Authority and the same was also dismissed by an order dated 27th June, 2012, concluding portion of the same is as follows:

".................. AND WHEREAS, I have been carefully gone through the revision petition and all connected papers kept in the proceeding files. It is seen the charges levelled against the petitioner have been proved based evidences adduced during the course of departmental enquiry. The petitioner has not put forth any material fact or evidence to rebut the charges. The proceeding enquiry has been conducted in a fair manner following established Rules and Procedures. There is no procedural infirmity in the proceeding enquiry. The petitioner has been afforded all reasonable opportunities to defend his case in pursuance of the principles of natural justice. The punishment awarded by the AA is commensurate with the delinquencies.

AND THEREFORE, in view of above, I find no sufficient reason to interfere with the orders of the Appellate Authority and hence the revision petition, being devoid of merit, is rejected."....................

As per the order passed by the Appellate Authority the petitioner was given an opportunity to submit his representation but he failed to submit the same. Accordingly, the proposal of treating the intervening period from the date of removal from service to the date of reinstatement i.e. from 07.11.2011 to 10.02.2012 as 'Dies-non' was confirmed.

Challenging the order passed by the Revisional Authority and the order dated 2nd January, 2013 passed in conformity with the order passed by the Appellate Authority, the petitioner filed the present Writ Petition. All the authorities below concurrently came to the finding based on facts that the petitioner is guilty and accordingly the Appellate Authority by a well reasoned speaking order imposed appropriate penalty by interfering with the order of punishment passed by the disciplinary authority by reducing the punishment. The petitioner failed to make out any ground substantiating that the findings arrived by the statutory authorities are based on no evidence and they are clearly perverse. The statutory authorities after following the principles of natural justice, other relevant provisions of law and after taking into consideration the previous conduct of the petitioner imposed proportionate punishment.

Petitioner has challenged the aforesaid impugned orders mainly on the ground that order dated 2nd January, 2013 declaring the period from the date of removal from service to the date of re-instatement in service as 'Dies-non' and on the ground that the impugned punishment is disproportionate and it amounts to taking away legitimate expectation of the benefit of pay scale and infringement of his right guaranteed under the Constitution.

Learned advocates appearing for the respondents opposes this Writ Petition by contending that the Appellate Authority had given the petitioner an opportunity to submit his representation which he failed, with regard to the proposal of treating the intervening period from the date of removal from service to the date of reinstatement i.e. from 07.11.2011 to 10.02.2012 as 'Dies-non' confirmed. He further contends that all the authorities below concurrently came to the finding of facts that the petitioner is guilty. He contends that petitioner failed to make out any ground substantiating that the findings arrived by the statutory authorities are based on no evidence or perverse. Principle of natural justice and provisions of law were observed in the case of the petitioner. He also relied on a decision in the case of Central Industrial Security Force & Ors. -vs- Abrar Ali reported in (2007) 4 SCC 507 where the Hon'ble Supreme Court as appears in paragraph 15 of the said decision in detail laid down the guidelines with regard to the scope of interference by the Court in the matter of disciplinary proceeding and the punishment which are as follows:

"(15). In Union of India v. P. Gunasekaram, this Court held as follows: (SCC pp. 616-17, paras 12-13)

"12. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, reappreciating even the evidence before the enquiry officer. The finding on Charge I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise, of its powers under Articles 226/227 of the Constitution of India, shall not venture into reappreciation of the evidence. The High Court can only see whether:

(a) the enquiry is held by a competent authority;

(b) the enquiry is held according to the procedure prescribed in that behalf;

(c) there is violation of the principles of natural justice in conducting the proceedings;

(d) the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;

(e) the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;

(f) the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;

(g) the disciplinary authority had erroneously failed to admit the admissible and material evidence;

(h) the disciplinary authority had erroneouslyadmitted inadmissible evidence which influenced the finding;

(i) the finding of fact is based on no evidence.

Under Articles 226/227 of the Constitution of India, the High Court shall not:

(i) reappreciate the evidence;

(ii) interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;

(iii) go into the adequacy of the evidence;

(iv) go into the reliability of the evidence;

(v) interfere, if there be some legal evidence on which findings can be based;

(vi) correct the error of fact however grave it may appear to be;

(vii) go into the proportionality of punishment unless it shocks its conscience."

Considering the submission of the parties and relevant records and grounds made out in the Writ Petition and the decision of the Hon'ble Supreme Court in the case of Abrar Ali (supra) I find the impugned orders of the authorities below imposing punishment is not disproportionate to the nature of misconduct and the impugned orders are well reasoned and speaking one and does not require interference by this Court sitting in writ jurisdiction.

Accordingly this Writ Petition W.P. No. 37154 (W) of 2013 is dismissed and there will be no order as to costs.

Urgent certified photocopy of this judgment, if applied for, be supplied to the parties upon compliance with all requisite formalities.