Shib Kumar Roy vs Union of India (UOI)

Paritosh K. Mukherjee, J.—This writ petition is being opposed on behalf of Central Industrial Security Force authority.

It appears from the writ petition that Shib Kumar Roy, appointed under Central Industrial Security Force, was proceeded departmentally and a final order of dismissal dated August 29, 1989, has been passed in respect of the Petitioner.

The following charges were framed against the writ Petitioner under Rule 34 of the Central Industrial Force Rules, 1969, which are set out hereinbelow:

Article No. I

An act prejudicial to good order of discipline in that whereas the said L/NK S.K. Roy, on termination of Refresher Course as Ad hoc Recruits Training Centre, CISF DSP, Durgapur, was issued with a Movement Order on 8.3.89 (FN) from the Training Centre, directing him to report at Intelligence Branch, he did not report to Intelligence Branch and thereby disobeyed the lawful orders of his superior officers, in violation of Section 18 of CISF Act, 1968.

Article No. II

An act prejudicial to good order of discipline in that No. 7531187 L/NK S.K. Roy unauthorisedly absented from his duty without leave or permission of the competent authority and deserted from the Unit w.e.f. 8.3.89 (FN) and continues to remain so without sufficient or reasonable cause, in violation of Section 18 of CISF Act, 1968.

Article No. III (Supplementary Charge)

That the said L/NK S.K. Roy is habituated to absenting without leave, and unauthorized overstaying leave, as is evident from his previous record of service. Should the charges contained in Articles I and II above be proved in course of enquiry, his past record of service will be taken into account.

It appears from the aforesaid charges that the Petitioner was charged to act prejudicial to good order of discipline, as he disobeyed the lawful orders of his superior in violation of the provision of the Central Industrial Security Force Act, 1968.

As per charge No. II, it appears that the authorities have charged him having unauthorized absented without leave and without permission of the competent authority and deserted from the Unit with effect from March 8, 1989, and continued to remain so without sufficient and reasonable cause in violation of the provision of Section 18 of the Central Industrial Security Force Act, 1968.

it appears that the Disciplinary authority has gone through the entire proceeding and noticed that the Enquiry officer has conducted the enquiry ex parte, and the Enquiry officer has given sufficient time to the charged officer to appear before the Enquiry officer for defending his case.

Further, according to the Disciplinary authority, absence from duty without permission is a serious breach of discipline, which is cognizable and non-bailable offence within the meaning of Section 18 of the Central Industrial Security Force Act, 1968, and such default cannot be ignored for the sake of administration and discipline. The Disciplinary authority felt that the delinquent constable was an incorrigible member of the Force and he passed maximum penalty of removal from service with immediate effect, that is, from August 29, 1989.

At the time of admission of the writ petition on December 8, 1989, Monoranjan Mallick, J. passed directions for affidavit.

This writ petition was heard in part by me on March 12, 1992, when after hearing Mr. Tapan Kumar Mukherjee, learned Advocate for the Petitioner, this Court adjourned the hearing in order to enable the Respondents Central Industrial Security Force authorities to represent this case.

Today, at the final hearing of writ petition, Mr. Amitava Dutta, learned Advocate appearing on behalf of the Respondents, files his affidavit-in-opposition.

Having heard the learned Advocates of both the sides, I am of the view that the impugned order of removal from service cannot be sustained in law, firstly, because it was passed ex parte and without affording and opportunity to the writ Petitioner, and secondly, because of the fact that the punishment of removal from service inflicted in respect of the Petitioner for absenting from duty, is disproportionate to the charges.

In this connection, my attention has been drawn to the judgment of the Supreme Court in the case of Bhagat Ram Vs. State of Himachal Pradesh and Others,

On the question of meeting minor punishment, instead of major punishment of dismissal, in para. 15 of the said judgment the Supreme Court observed as follows:

The question is, once we quash the order, is it open to us to give any direction which would not permit a fresh enquiry to be Held? After all, what is the purpose of holding a fresh inquiry? Obviously, it must be to impose some penalty. It is equally true that the pen ally imposed must be commensurate with the gravity of the misconduct, and that any penalty disproportionate to the gravity of the misconduct would be volatile of Article 14 of the Constitution. Having been influenced by all these relevant considerations, we are of the opinion that no useful purpose would be served by a fresh inquiry. What option is open to us in exercise of our jurisdiction under Article 136 to make an appropriate order. We believe that justice and fair play demand that we make an order of minor penalty here and now without being unduly technically apart jurisdiction, we are fortified in this view by the decision of this Court in Hindustan Steels Ltd., Rourkela Vs. A.K. Roy and Others, where this Court after quashing the order of reinstatement proceeded to examine whether the party should be left to pursue further remedy.

Accordingly, two increments with future effect of the Appellant be withheld and he must be paid 50 % of the arrears from the date of termination till the date of reinstatement.

Although lesser punishment was considered by the Supreme Court, in exercise of power under Article 136 of the Constitution, in my view, the said power is also available to a learned Judge exercising jurisdiction under Article 226 of the Constitution, and this observation of the Supreme Court has also been followed by me in the case or Sudhangsu Sekhar Rout v. Union of India 1988 (2) C.L.J. 439.

Strong reliance has been placed on the decision in the case of Council of Service Union v. Minister for Service (1984) 3 W.L.R. 1174 (H.L.) wherein the House of Lords observed that anything disproportionate should be discarded.

In the result, the writ petition succeeds.

The charge-sheet, the enquiry report and the order of removal from service dated August 29, 1989 (Annex. ''I'' to the writ petition) are all set aside.

The Petitioner is directed to resume duties forthwith, preferably within a period of one week from communication of this order, and the Petitioner will be entitled to all back wages, as if order of removal has not been passed in respect of the Petitioner.

The Respondents, however, are given liberty to proceed in respect of the Petitioner if any charge could be lawfully framed for the alleged delinquency.

The writ petition is disposed of, as above.

There will be no order as to cost.

Let a xerox copy of this order be supplied to the learned Advocate for the Petitioner on usual undertaking.