Manas Kumar Behera vs Union of India and Others

Samapti Chatterjee, J—The petitioner filed the present writ petition for quashing the findings of the authority, the final order dated 5th November, 2004 and also the order passed by the authority dated 3rd March, 2005.

The petitioner was appointed as a Constable on 15th August, 1972 in the Central Industrial Security Force (hereinafter referred to as CISF Unit) at MAMC, Durgapur. Since the petitioner has been suffering from various ailments in the year 1999, therefore, the petitioner was advised by the Doctor to take food on a short interval. In view of that during his duty hours he had to purchase food from outside and for that purpose he had to keep some money with him all time. On 28th September 1999, before joining his duty the petitioner made an entry in the duty register that he is having an amount of Rs. 30/- as pocket money with him and joined his duty at Truck Tanker Lorry Gate and during his duty hours the gate was closed all along and there was no movements of any angles and he was on the tower. When the Deputy Commandant CISF Unit I.O.C. Haldia reached near the tower and the petitioner opened the gate then the said Deputy Commandant asked how much money the petitioner was having and the petitioner disclosed that for purchasing food as per Doctor''s advice due to his illness he had thirty rupees with him and he entered the same amount in the duty roaster before entering his duty. In spite of that the petitioner was asked to give the said rupees to the said officer and as per his order he gave the said thirty rupees to the said Deputy Commandant.

Thereafter on 22nd September 1999 the petitioner was placed under suspension by the said Deputy Commandant and a memorandum of charges under Rule 34 of CISF Rules 1969 was issued by the Group Commandant by his memo dated 1st December, 1999. In the said charge it was alleged that the petitioner received illegal gratification even though there was nobody to offer such illegal gratification.

The petitioner applied for the statement of prosecution witnesses which was recorded in Hindi but since the petitioner is a Oriya speaking person therefore by application dated 9th December 1999 before the Group Commandant for supplying the statement recorded in Hindi either in english or in Oriya language as he does not know Hindi. But his application was turned down by the Group Commandant.

On 31st December, 1999 the petitioner submitted his reply against the purported charges. It is submitted that on 21st January, 2000 the Group Commandant without considering the petitioner''s reply against the purported charges mechanically appointed Sri J.S. Sahota, Assistant Commandant as enquiry officer. The petitioner on 31st January, 2000 and also on 17th February, 2000 made representation before the authority for change of enquiry officer and prayed that an officer of the rank of commandant to be appointed as enquiry officer in view of the continuous threatening by complainant who was Deputy Commandant. Therefore, any officer below the rank of Deputy Commandant of Haldia Belt would not be able to go against the orders of the complainant. The petitioner''s prayer for change of enquiry officer was turned down by the Group Commandant on 4th March, 2000. The petitioner time to time made representations before the authority for supply of relevant documents but those documents were not supplied to the petitioner by the disciplinary authority.

On 12th April, 2000 the petitioner submitted his defence statement wherein he specifically pointed out that requirement of natural justice has been violated in his case and the allegation of illegal gratification does not survive in the absence of offerer of such gratification. As such the prosecution failed to produce any person who alleged to have paid the said thirty rupees as gratification to the petitioner. The petitioner raised as many as 37 points to quash the purported charges leveled against him. The petitioner on 1st August, 2001 was directed by the disciplinary authority to submit representation against the enquiry report.

Thereafter on 17th April, 2000 the petitioner was communicated with the enquiry report dated 15th April, 2000 along with the statements by the Group Commandant and on 22nd August, 2001 the petitioner was asked by the disciplinary authority to submit his representation against the enquiry report and the petitioner accordingly submitted his representation on 31st December, 2001 against the enquiry report.

Thereafter the disciplinary authority vide its final order dated 5th November, 2004 found the petitioner guilty and imposed penalty of deduction of pay by two stages for a period of two years with cumulative effect.

Challenging the said final order dated 5th November, 2004 the petitioner preferred an appeal before the appellate authority on 4th December, 2004 and the appellate authority vide its order dated 3rd March, 2005 rejected the petitioner''s appeal. Feeling aggrieved the petitioner filed the present case for quashing of the charges leveled against the petitioner and the final order passed by the disciplinary authority on 5th November, 2004 and the confirmation of the final order by the appellate authority dated 3rd March, 2004.

Mr. Mahapatra, learned Advocate appearing for the petitioner submitted that the charge could not be sustained in the absence of evidence and the acceptance of illegal gratification of rupees thirty was not proved by any sort of evidence advanced by any witnesses. Therefore, he submitted in absence of any evidence charges leveled against the petitioner could not be sustained. In support of his contention Mr. Mahapatra relied on a Supreme Court decision reported in State of Assam Vs. Mohan Chandra Kalita and Another, AIR 1972 SC 59 . Paragraph-6 is quoted below:-

"Paragraph-6- As we said earlier, there was no charge against the respondent that he had not paid the full amounts to those entitled to compensation or that he had authorised anyone to collect any fee. This enquiry into extraneous allegations with which the respondent was not charged must have certainly prejudiced the enquiry officer against the respondent. Even if we were to ignore this aspect, there is no evidence to connect the respondent with the allegation that he had authorised the collection of Garibhara much less can it be said, as averred in the charge, that he realised from those persons to whom compensation was being paid, certain percentage of compensation money due to them for payment of hire charges of the vehicle in which he had visited the office of the Mauzadar from Dhekiajuli."

Mr. Mahapatra further vehemently urged that mere raising charges against the incumbent will not be sufficient to hold the incumbent guilty unless the charges are proved by the evidence. In support of his contention Mr. Mahapatra relied on a Supreme Court decision reported in Commissioner of Police, Delhi and Others Vs. Jai Bhagwan, (2011) 129 FLR 1094 : (2011) 6 JT 63 : (2011) 5 SCALE 696 : (2011) 6 SCC 376 : (2011) 2 SCC(L&S) 132 and also relied on a Supreme Court decision reported in Union of India (UOI) and Others Vs. Gyan Chand Chattar, (2009) 122 FLR 684 : (2009) 8 JT 473 : (2009) 8 SCALE 575 : (2009) 12 SCC 785 : (2010) 1 SCC(L&S) 129 : (2009) 11 SCR 124 : (2009) 3 SLJ 421 : (2009) 5 SLR 214 Union of India and Others vs Gyan Chand Chattar).

Mr. Mahapatra also referred to Rule 36 of Central Industrial Security Force Rules, 2001 which is quoted below:-

"Para-3 Rule-II- a statement of the imputation of misconduct of misbehaviour in support of each article of charge, which shall contain-

(a) a statement of all relevant facts including any admission or confession made by the enrolled member of the Force.

(b) A list of documents by which, and a list of witnesses by whom, the articles of charge are proposed to be sustained."

And he vehemently argued that the disciplinary authority has violated the statutory provision as referred under Sub-Rule II of Rule 36 of the said Rules, 2001.

Mr. Mahapatra contended that as per the said Rule it was obligatory on the part of the disciplinary authority to file list of documents and a list of witnesses by whom the Articles of charges are proposed to be sustained which is lacking in this present case. Therefore, as per Paragraph 35 of the decision in Union of India And Others (Supra) the present purported charge-sheet followed by disciplinary proceedings, final order and subsequently appellate authority''s order should be quashed as principle of natural justice was not followed by the authority at the time of holding the disciplinary proceedings.

Mr. Mahapatra in support of his contention also relied on a Division Bench Judgment reported in 2011 (2) CHN (CAL) Page-498 Paragraph-30 (Krishna Choudhury vs State of West Bengal) where the Hon''ble Division Bench of this Court considering the Supreme Court cases held that a departmental enquiry cannot be conducted in a casual manner in the absence of presiding officer. It becomes difficult for the enquiry officer to conduct the enquiry proceedings in an unbiased manner in the absence of Presiding Officer as the said enquiry officer sometimes had to perform the duties which is required to be discharged normally by the Presiding Officer.

In the conclusion Mr. Mahapatra submitted that the impugned charge-sheet followed by final order of the disciplinary authority and the subsequent confirmation order by the appellate authority could not be sustained in the eye of law. Therefore, the impugned charges, the final order of the disciplinary authority which was subsequently affirmed by the appellate authority should be quashed and set aside by this Hon''ble Court.

Per contra, Mr. Tapas Kumar Chatterjee, learned Advocate appearing for the authority submitted that as per Rule the incumbent is entitled to carry ten rupees in his pocket. Therefore, for extra twenty rupees in his pocket the petitioner should have obtained permission from the authority but he failed to do so.

Mr. Chatterjee further submitted that on 23rd May, 2008 the petitioner retired from his service.

Mr. Chatterjee also vehemently urged that it would be evident from paragraph-9 of the affidavit-in-opposition that the petitioner himself filled up the application in Hindi version which shows that he knows Hindi. Therefore it is not correct to submit on the part of the petitioner that petitioner does not know Hindi. Mr. Chatterjee finally submitted that writ petition should be dismissed for lack of merits.

Considering the submissions advanced by the learned Advocates appearing for the respective parties and after perusing averments and records I find that the statements of PWs were supplied in Hindi to the petitioner though the petitioner prayed before the authority to supply those documents either in English or in Odiya version as he is a Odisi speaking employee, admittedly which was not provided by the authority to the petitioner.

It is also evident that the petitioner from time to time requested the authority for change of enquiry officer but the disciplinary authority refused to change the enquiry officer. As a result the petitioner was compelled to participate in the proceedings under a biased enquiry officer.

I also find that the petitioner from time to time prayed before enquiry officer for supplying the relevant additional documents which was denied. It is also noticed that a personal hearing was given to the petitioner by one officer and order of penalty was issued by another officer which is against the principle of natural justice. Not only that no presiding officer was appointed in spite of repeated request made by the petitioner. The enquiry officer acted both as Judge and as agent of the prosecution which is not permissible. It was not proved that any person offered bribe of thirty rupees to the petitioner. Furthermore, there is no provision in the Rule of 2001 for reduction of pay with cumulative effect. It was not proved that anyone saw that petitioner received illegal gratification from any person. Penalty levied wholly on presumption of facts based on hypothesis of findings of enquiry officer but not on evidence.

It is well settled principle of law that charges could not be sustained on mere conjecture in absence of evidence. Facts of taking or receiving illegal gratification not proved by evidence, therefore could not be sustained. Not only that such a serious charge of corruption should be proved to the hilt as it has civil and criminal consequences. It could not be proved on mere probabilities. Furthermore, proof and suspicion are different and distinct. One has to prove the charges against the delinquent on the basis of the oral and documentary evidence which are admittedly absent in this proceedings. The allegation of illegal gratification required to be proved beyond shadow of doubt and it could not be proved on mere probabilities. Suspicion cannot be a substitute for a legal proof.

I find it is also cannot ignored that at the time of holding proceedings the authority has violated the statutory provision which is not at all permitted in the eye of law. Authority must record reasons for arriving at the conclusion of committing misconduct and every act or commission on the part of the delinquent could not be treated as misconduct. More so, fake and indefinite information could not be a basis of initiating disciplinary proceedings on the charges of accepting illegal gratification. Therefore, considering Supreme Court decision referred by Mr. Mahapatra and after considering the records I have no hesitation to hold that the charges leveled against the petitioner and findings of the disciplinary proceedings followed by the appellate authorities'' order could not be sustained.

I also find that the enquiry officer had acted as agent of the prosecution and he has led the prosecution evidence and therefore the enquiry report has lost impartially. Therefore, the proceedings should be vitiated.

I cannot ignore the fact that no presiding officer was appointed to present the case before the enquiry officer on behalf of the prosecution and such responsibility was shouldered by the enquiry officer himself. It is very much pertinent to mention that in the relevant CISF Rules there is no provision of imposing penalty of reduction of pay with cumulative effect. Therefore, the purported final order is beyond the Rules and as a result liable to be quashed and set aside.

Accordingly the charges leveled against the petitioner and the final order of the disciplinary authority and the subsequent order of the appellate authority are hereby quashed and set aside.

Since a considerable period has already elapsed, therefore, I direct the respondent authority to pay the petitioner''s arrear salaries since date of his suspension, facing the disciplinary proceedings and litigation, the petitioner reached the age of superannuation on 23rd May 2008. Therefore, I direct the respondent authority to pay the petitioner''s arrear salaries without interest till the petitioner reached the age of superannuation and to pay arrears of retiral benefits with 9 per cent interest to the petitioner within a period of 4 (four) weeks from the date of communication of this order.

With these aforesaid directions this writ petition is allowed without any order as to costs.

Urgent photostat certified copy of this judgment, if applied for, be supplied to the parties after fulfilling all the formalities.