Md. Dilser Khan vs Central Industrial Security Force

The instant petition under Article 226 of the Constitution of India has been filed by the petitioner against the order dated 28.04.2011 (Annexure P/4) whereby by the petitioner was awarded punishment of reduction of pay by two stages for a period of three years with cumulative effect. He further challenged the order dated 17.08.2011 (Annexure P/3) whereby his appeal was rejected, order dated 18.03.2013 (Annexure P/2) whereby the petitioner was punished with penalty of dismissal from service and also order dated 15.07.2013 (Annexure P/1) whereby his appeal was rejected by the appellate authority.

Brief facts of the case as mentioned in the petition, are that the petitioner was initially appointed as constable in the Central Security Force (for short “the CISF” ) by order dated 25.08.2008 (Annexure P/5). After completion of basic training, he reported to the CISF Unit, CPT, Cochin on 16.03.2009. After reporting, the petitioner met with the constable namely Sambjai Patil Ananda and lady constable namely Ku. Rinki. During his posting at CISF unit, Cochin he used to talk with them as colleagues and the petitioner was having good relation with other colleagues in the unit. On 31.08.2010 (Annexure P/6), the lady constable namely Ku. Rinki lodged a report before the higher authorities alleging ill behaviour of the present petitioner with her. The complaint does not reflect the date and time of the incident and the allegations were not particular against the petitioner. The said complaint was lodged at the instance of Constable namely Sambjai Patil Ananda. On the basis of said complaint, an enquiry committee namely Enquiry by Complaint Committee on Sexual Harassment was constituted and the enquiry committee enquired the matter by recording statements of the petitioner, complainant, other colleagues and the authorities of the petitioner. Ultimately, the enquiry report was submitted by the enquiry committee before the concerned authority vide Annexure P/7. On the basis of the aforesaid report, on 28.04.2011 (Annexure P/4), the final order was passed by respondent No.5 by exercising power under Rule 32 of the Central Industrial Security Force Rules, 2001 (hereinafter referred to as "the CISF Rules") by imposing penalty of reducing the pay of the petitioner by two stages for a period of three years and further ordered that he shall not earn increment during the said period and it shall have the effect of postponing his future increments of pay.

In pursuance of the order of Inspector General/SS, Chennai, letter No.7281 dated 17.09.2010, the complaint committee directed the petitioner to attend the enquiry and accordingly, the petitioner attended the preliminary hearing and appeared before the complaint committee as and when required. Though, the petitioner was served with the enquiry report of the complaint committee, but he was not given a chance to submit the representation and the complaint committee proceeded without issuing any charge/memorandum under Rule 36 of the CISF Rules and no departmental enquiry was conducted, as per the relevant provisions of law. Being aggrieved by the order dated 28.04.2011 (Annexure P/4), the petitioner preferred an appeal (Annexure P/8) before respondent No.4 in the month of May, 2011. The said appeal of the petitioner was rejected by respondent No.4 vide order dated 17.08.2011 (Annexure P/3). Being aggrieved by the same, the petitioner preferred a revision (Annexure P/9) before respondent No.3 questioning the said order. The revisional authority while entertaining the revision issued a show cause notice dated 13.09.2012 (Annexure P/10) proposing major punishment of “dismissal from service” to the petitioner by exercising power under Rule 54 of the CISF Rules. In the said show cause notice, the respondent No.3 directed the petitioner to make a representation against the proposed penalty within a period of 15 days from the date of receipt of the notice and failing which it would be presumed that he has nothing to represent and ordered as deemed fit without giving any further notice.

The petitioner submitted a detailed representation before respondent No.3 on 28.09.2012 (Annexure P/11). Vide order dated 18.03.2013 (Annexure P/2), respondent No.3 proceeded in the revision and on the basis of the reply submitted by the petitioner, respondent No.3 passed an order of penalty by dismissing the petitioner from service. Being aggrieved by the order dated 18.03.2013 (Annexure P/2), the petitioner again preferred an appeal before respondent No.2 and the said appeal was dismissed by the respondent No.2 by order dated 15.07.2013 (Annexure P/1). Hence, this petition has been filed by the petitioner for the following reliefs:-

i That, this Hon’ble Court may kindly be pleased to quash the order dated 15/7/2013 (Annexure P/1) passed by the respondent No. 2; order dated 18/3/2013 (Annexure P/2) passed by the respondent No.3; order dated 17/8/2011 (Annexure P/3) passed by the respondent No.4 and the order dated 28/4/2011 (Annexure P/4) passed by the respondent No.5.

ii. Cost of the petition may also be granted to the petitioner.

Iii. Any other relief, which this Hon’ble Court deems fit and proper, may also kindly be granted to the petitioner, in the interest of justice.

Learned counsel for the petitioner submits that the impugned orders passed by the respondent authorities are arbitrary, illegal and contrary to the law applicable to the facts and circumstances of the case. The order of dismissal from service has been passed by the revisional authority in an illegal and arbitrary manner by complete non-application of mind. It is well settled principle of law that the penalty of removal from service is a major penalty, which is also enumerated in Rule 34 of the CISF Rules. The respondent authorities committed gross illegality and irregularity in imposing the major penalty without following the procedure prescribed under Rule 36 of the CISF Rules. It is the settled position of law that natural justice in relation to disciplinary proceeding means observance of procedural fairness before holding a public servant guilty of misconduct and imposing a punishment on him for such misconduct and here the punishment of dismissal has been imposed upon the petitioner without following the procedure prescribed under the CISF Rules and hence the order of punishment i.e. dismissal from service is in complete violation of principles of natural justice. Respondent authorities did not consider either in revision or in the appeal against the order of dismissal that the complaint on the basis of which the petitioner has been held guilty is not in detail. Even the date & time of incident was not mentioned in the complaint and the complaint itself appears to be a concocted complaint at the instance of some of the colleague and in fact no such incident was occurred. The petitioner has been punished in an illegal and arbitrary manner on the basis of a concocted allegation without affording opportunity of hearing and without following the basic principles of natural justice. Therefore, the impugned orders are liable to be set aside.

Reliance has been placed on this Court’s order dated 04.08.2021 passed in W.P.(S) No. 1622 of 2013 in the matter of S.S. Raskar Vs. Union of India and others.

Learned counsel for the respondents strongly opposes the prayer of the petitioner and submits that the petitioner was posted at CISF Unit ASG Calicut with effect from 12.02.2011 to 07.07.2011. The petitioner was involved in sexual harassment case while he was posted in CISF Unit CPT Cochin against the colleague who was also posted in the same unit. The allegation against the petitioner was brought out in the complaint dated 31.08.2010 submitted by the victim wherein it was stated that the petitioner always used to misbehave with her and in the beginning she requested him to stay away from such activities, but he continued to do so. When the activities of the petitioner were unbearable, she warned him to stop such activities and also told him that if he fails to stop the same, she will make a complaint to the competent authority. One day when complainant was performing her duty In "B"-shift in New Power House near SBI ATM Centre, the petitioner came there and held her hand and kissed her by force. She slapped on his face and asked him to refrain otherwise she shall make a complaint to Commandant. On 22.08.2010, the petitioner again resorted to the similar action, thereafter, on 31.08.2010, a complaint was made against the petitioner. A copy of complaint was served to the petitioner on 22.10.2010. A committee of officers was constituted to enquire the complaint of sexual harassment against the petitioner vide order dated 17.09.2010. The complaint committee conducted the enquiry as per the laid down procedure under the relevant Rules and after careful consideration of all documents and relevant records, statement of prosecution witnesses and evidence available in the case file, the Complaint Committee submitted the enquiry report to the competent authority holding the complaint against the petitioner as proved. On being found guilty of the allegation, the petitioner was awarded the punishment of “Reduction of pay by two stages for a period of three years and further order in that he shall not earn increment during the said period and it shall have the effect of postponing his future increments of pay” on 28.04.2011 (Annexure P/4). Aggrieved by this order, the petitioner had preferred an appeal dated 31.05.2011 which was rejected by the competent authority on 17.08.2011 (Annexure P/3). Being aggrieved by the aforesaid orders of disciplinary and appellate authorities, a revision petition dated 29.03.2012 was submitted by the petitioner to the revisional authority i.e. IG/APS, New Delhi. On examining the case, the revisional authority issued a show cause notice proposing to enhance the punishment to that of 'Dismissal from Service' vide letter dated 13.09.2012 which was acknowledged by the petitioner and submitted reply dated 29.09.2012 for the same. Since the petitioner was posted to CISF Unit BIOM Kirandul which comes under the administrative control of IG/WS, CISF Mumbai, the complete case was forwarded to IG/WS for disposal of representation of the petitioner vide letter dated dated 16.10.2012 (Annexure R-1).

The revisional authority considered the reply submitted by the petitioner against show cause notice and being found not satisfactory imposed the penalty of "dismissal from service" vide order dated 18.03.2013 (Annexure P/2). Aggrieved with the order of revisional authority, the petitioner submitted an appeal dated 17.04.2013 to the DG/CISF which was considered and rejected by the appellate authority vide order dated 15.07.2013 (Annexure P/1). The competent authority passed the orders in accordance with rules and regulations of CISF. The petitioner was also afforded ample opportunity to defend his case and he admitted that he received a copy of complaint and further stated that he had no objection for conducting the enquiry by complaint committee. The statements of the prosecution witnesses were recorded in the presence of the petitioner. The petitioner was also afforded sufficient opportunity to cross examine the prosecution witnesses and examine the listed and other documents. The revisional authority observed that the penalty awarded by the disciplinary authority to the petitioner is not commensurate with the gravity of proven serious allegation of sexual harassment and issued a show cause notice. The petitioner was provided all reasonable opportunity to defend his case during the course of enquiry and punishment order. Therefore, the instant petition is liable to be dismissed.

Reliance has been placed on circular No. 01/2006 dated 15.01.2006.

Heard counsel for the parties and perused the material placed on record.

It is not disputed in this case that the petitioner was posted as constable in CISF and on the basis of the complaint submitted by one lady colleague, enquiry was conducted against the petitioner. The enquiry committee submitted the enquiry report to the competent authority holding the complaint against the petitioner as proved and disciplinary authority awarded the punishment of reduction of pay by two stages for a period of three years and further order in that he shall not earn increment during the said period and it shall have the effect of postponing his future increments of pay. Against this order, the petitioner preferred an appeal and the same was rejected vide order dated 17.08.2011 (Annexure P/3). Being aggrieved by the same, the petitioner filed revision before respondent No.3 i.e. revisional authority. The Revisional authority issued show cause notice to the petitioner proposing penalty of dismissal from service. In response to which, the petitioner filed reply on 28.09.2012 (Annexure P/11). Being dissatisfied with the reply filed by the petitioner, revisional authority passed the order dated 18.03.2013 (Annexure P/2) dismissing the petitioner from service. Being aggrieved by the same, the petitioner preferred an appeal before the competent authority which was dismissed vide order dated 15.07.2013 (Annexure P/1).

This Court in similar matter after observing CISF rules, in the matter of S.S. Raskar Vs. Union of India and others passed in W.P.(S) No. 1622 of 2013 vide order dated 04.08.2021 held in paras 9, 10, 11, 14 & 15 as under:-

Sub-section (2B) of Section 9 of the CISF Act would show that the authority exercising suo motu power of revision by virtue of proviso to Section 9 of the CISF Act before enhancing penalty has to give a reasonable opportunity of being heard to the person affected by such order. As such, the revisional authority must also give reasonable opportunity of being heard to the delinquent under Rule 54 of the CISF Rules before enhancing the punishment imposed upon him.

In the matter of Khem Chand v. Union of India and others; AIR 1958 SC 300, the Supreme Court has considered the decision of the Privy Council in the matter of High Commissioner for India v. I.M. Lall; AIR 1948 PC 121 and held that the Government servant must not only be given an opportunity to defend but such opportunity must be a reasonable one. In order that the opportunity to show cause against the proposed action may be regraded as a reasonable one, it is quite necessary that the Government servant should have the opportunity to say, if that be his case, that he has not been guilty of any misconduct to merit any punishment at all and also that the particular punishment proposed to be given is much more drastic and severe than he deserves. It has been held in paragraph 19 of Khem Chand's case (supra) as under: -

"19. To summarise: the reasonable opportunity envisaged by the provision under consideration includes:

(a) An opportunity to deny his guilt and establish his innocence, which he can only do if he is told what the charges levelled against him are and the allegations on which such charges are based;

(b) an opportunity to defend himself by cross-examining the witnesses produced against him and by examining himself or any other witnesses in support of his defence; and finally

(c) an opportunity to make his representation as to why the proposed punishment should not be inflicted on him, which he can only do if the competent authority, after the enquiry is over and after applying his mind to the gravity or otherwise of the charges proved against the government servant tentatively proposes to inflict one of the three punishments and communicates the same to the government servant."

As such, from the aforesaid decision of the Supreme Court, it is quite vivid that reasonable opportunity means something more than a mere representation.

The revisional authority has exercised the suo motu revisional power within the meaning of sub-section (2B) of Section 9 of the CISF Act read with Rule 54(1) of the CISF Rules, but while exercising the suo motu revisional jurisdiction, the revisional authority did not make any inquiry and also did not assign any reason except holding that charges proved are serious, and simply issued show cause notice proposing enhanced punishment after prejudging the issue that since the charges proved are serious in nature therefore it calls for exercising the suo motu revisional jurisdiction. The memo issuing show cause notice dated 31-3-2012 only states that since the charges proved are serious, therefore punishment deserves to be enhanced. The revisional authority while issuing show cause notice should have recorded sufficient reasons that the penalty imposed by the disciplinary authority is totally disproportionate to the misconduct proved against the petitioner and then only the suo motu revisional jurisdiction case could have been registered and thereafter, notices could have been issued to the petitioner. But that is missing in the show cause notice dated 31-3-2012. It is also apparent from the record that after the show cause notice was issued, the revisional authority failed to consider the defence raised by the petitioner and it was not dealt with at all in the impugned order and reasonable opportunity of being heard was not afforded within the meaning of proviso to Section 9 of the CISF Act read with Rule 54 of the CISF Rules.

Apart from this, the revisional authority while issuing show cause notice had already made up its mind to propose major penalty to the petitioner while issuing notice, whereas the procedure that was expected to follow was, after recording brief reasons that penalty inflicted by the disciplinary authority is disproportionate to the misconduct alleged to have been committed by the petitioner, the revisional authority could have issued show cause notice and thereafter, making enquiry as required under sub-section (2B) of Section 9 of the CISF Act along with the CISF Rules and if it is satisfied that it is a case for enhancement of penalty proposed in terms of Rule 54 of the CISF Rules, then, after hearing the petitioner, he should have issued fresh notice giving the proposed punishment asking the petitioner to file representation in terms of Rule 54, as he was acting as a quasi judicial authority and thereafter it could have also taken decision to enhance the punishment as the disciplinary authority looking to misconduct inflicted the petitioner with minor penalty which the petitioner has accepted and implemented and thereafter, could have interfered with in the order of penalty enhancing it to major punishment.

In light of above, in the present case, it is clear that the disciplinary authority passed order of reduction of pay by two stages for a period of three years and further order in that he shall not earn increment during the said period and it shall have the effect of postponing his future increments of pay. The competent authority did not file any appeal or revision against this order and when the petitioner filed revision against the appellate order, then the revisional authority issued show cause notice to the petitioner holding that the charges found proved against the petitioner are serious and therefore, proposed major penalty. After the reply filed by the petitioner, the revisional authority passed the impugned order enhancing the punishment and awarded major punishment of “dismissal from service” to the petitioner. While exercising the suo motu revisional jurisdiction, the revisional authority did not make any inquiry and also did not assign any reason except holding that charges proved are serious, and simply issued show cause notice proposing enhanced punishment. The revisional authority while issuing show cause notice should have recorded sufficient reasons that the penalty imposed by the disciplinary authority is totally disproportionate to the misconduct proved against the petitioner and then only the suo motu revisional jurisdiction case could have been registered and thereafter, notices could have been issued to the petitioner. But that is missing in the show cause notice dated 13.09.2012. It is also apparent from the record that the revisional authority only considered the reply filed by the petitioner and reasonable opportunity of being heard was not afforded within the meaning of proviso to Section 9 of the CISF Act read with Rule 54 of the CISF Rules.

Thus, looking to the order passed by this Court in the matter of S.S. Raskar (supra), provisions of Section 9 of the CISF Act read with Rule 54 of the CISF Rules and facts and circumstances of the case, the order of revisional authority enhancing the punishment is not in accordance with rules and is hereby quashed. However, the order of punishment as imposed by the disciplinary authority is restored.

The writ petition is allowed to the extent indicated hereinabove.