Shiva Prakash Singh vs Director General, Central Industrial Security Force and Others

L. Mahapatra, J.—The Petitioner in this writ application challenged the order of punishment imposed by the Disciplinary Authority in a disciplinary proceeding, Annexure-26, directing removal of the Petitioner from service. The Petitioner also challenges the order contained in Annexure-17 wherein he has been censured for his conduct in refusing to accept the notice dated 13.6.95 in course of inquiry.

The case of the Petitioner is that he joined as Head Constable in the Central Industrial Security Force and was posted at K.C.C. Katri, Rajasthan in May, 1981. Subsequently, he was transferred to BHEL, Haridwar and later on in Indian Oil Corporation, Saurbasti in New Delhi. Because of the outstanding performance, he was promoted as A.S.I. in October, 1990 and was posted at Bokaro Steel Plant, Bokaro. For his work at Bokaro he had been awarded a gallantry award in 1993. It is further case of the Petitioner that during his service career he had received commendations for his performance while working at Bokaro Steel Plant. In the year 1995 he was transferred to Rourkela Steel Plant at Rourkela. While working in Rourkela Steel Plant, he was assigned the out-post duty from 17.1.95 to 19.1.95. On 20.1.95 he was posted to Modernization Gate of the Plant which is the entry point of the trucks and lorries carrying raw materials to the Steel Plant. The Petitioner was assigned duties from 6 A.M. to 7 P.M. and from 7.20 P.M. to 10.30 P.M. On 20.1.95 he was served with a notice of suspension issued by the Deputy Commandant, Administration, fixing his Head Quarter at CISF Unit at Rourkela and shortly thereafter on 10.2.95 he was served with a memorandum of charges. It was alleged in the memorandum of charges that during the period from 20.1.95 to 27.1.95 the Petitioner while functioning in ''C'' Company demanded illegal gratification from the contractors and instructed the subordinate staff to collect illegal gratification from the contractors and pay him thereby amounting to grave mis-conduct and breach of trust. The further allegation in the memorandum of charges is that since his subordinate to whom he had instructed to collect the illegal gratification namely, P.C. Malla and Dwarika Prasad, refused to comply with his order, he had threatened them with dire consequences. The Petitioner was called upon to submit his reply within ten days from the date of receipt of memorandum of charges. Thereafter, an Enquiry Officer was appointed and after completion of inquiry, the report was submitted finding the Petitioner guilty of the charges and on acceptance of the inquiry report, the order of punishment was imposed. The appeal filed by the Petitioner having been dismissed, the present writ application has been filed.

Shri S.P. Misra, the learned Counsel appearing for the Petitioner challenged the order of punishment on the following grounds:

(i) Whether the Enquiry proceeding has been vitiated by not providing opportunity to the Petitioner to cross examine the witnesses and examine himself.

(ii) Whether the punishment imposed vide Annexure 17 and 26 are to be quashed for not conducting the inquiry in a fair, honest way and in confirmity with the requirements of natural justice.

(iii) In the absence of the specific charge being brought home against the Petitioner whether the punishment imposed is liable to be quashed.

(iv) Whether in view of the manner of holding the inquiry deviating from the quintessence of the rules of natural justice the proceeding is to be held vitiated and ultravires.

(v) Whether the delay caused in commencing the inquiry alone has resulted in vitiating the entire proceeding and justifies judicial notice to be taken.

In support of his contention, the learned Counsel drew attention of the Court to several documents annexed to the writ application and submitted that the Petitioner was not given due opportunity of cross examining the witnesses or examining himself. It was also contended that the charges were vague and, therefore, the Petitioner could not have been found guilty of the same. He also challenged the order of punishment on the ground of delay caused in commencing the inquiry as well as conclusion of the departmental proceeding. Shri Mishra also challenged the Annexure-17 on the ground that in course of inquiry due to non-acceptance of noticed issued from the Enquiry Officer he was censured by the Assistant Commandant and for inflicting this punishment no inquiry whatsoever was conducted and, therefore, the order contained in Annexure-17 is not sustainable.

The learned Sr. Standing Counsel, referring to the proceeding record submitted that reasonable opportunity of cross-examining the witnesses had been given by the Enquiry Officer to the delinquent-Petitioner and all the relevant documents required by the Petitioner were also either supplied or allowed to be inspected. The Petitioner did not produce any defence witness and two of the witnesses named to be examined on behalf of the defence refused to come to the inquiry and, therefore, the Petitioner cannot have a grievance that he was not allowed to examine the defence witnesses. On the above submission, the learned Sr. Standing Counsel prayed for dismissal of the writ application.

The first question raised by the learned Counsel is that the Petitioner was not given adequate opportunity to cross examine the witnesses who had been examined on behalf of the department. In order to examine the contention raised by the learned Counsel for the Petitioner we had directed the learned Addl. Standing Counsel to produce the departmental proceeding records and at the time of hearing the record was produced. From the record, it appears that one P.C. Malla was examined as P.W. 1 who in his deposition stated that on 23.1.95 he worked with the present Petitioner for the first time. At about 8 A.M. the labour for general shift went inside the plant for work and the pedestrian gate was closed. Thereafter the truck movement was allowed through the modernization gate. When the truck movement started, the Petitioner asked him to check the vehicles properly and no vehicle should gain entry into the plant without Drivers'' Pass, labour pass etc. This witness also stated that the Petitioner told him that he wants to buy a bicycle and he should to something. When the witness expressed his inability to do anything, the Petitioner threatened him. This witness has been cross-examined at length by the Petitioner. Similarly, P.W. 2 Dwarika Prasad, has stated that the Petitioner had directed him to collect money from the truck supervisors and give to him, but he refused to collect the money from the trucks or supervisors. This witness has also been cross-examined at length. P.W. 3, T. Singh, stated that he was persuaded by P.W. 4 to lodge a complaint against the Petitioner and, therefore, he had submitted the complaint. Much reliance was placed by the learned Counsel on the statement of this witnesses. However, it also appears that the Petitioner has cross-examined him. P.W. 4, P.K. Nayak, working as Supervisor, Eastern Transport Corporation has stated that the Petitioner tried to collect Rs. 10/- from each truck and he refused to give him any money for which he was harassed later on at the hands of the Petitioner. This witness has also been cross-examined. Since all the four witnesses examined on behalf of the department have been adequately cross-examined by the Petitioner, we do not find any force in the contention of the learned Counsel appearing for Petitioner that the Petitioner was not allowed adequate opportunity to cross-examine the witnesses and thereby there was violation of principle of natural justice.

So far as the other contention of the learned Counsel for the Petitioner that the required documents were not supplied to the Petitioner is concerned, it is stated in paragraph-10 of the counter that the Petitioner did not request for any document. From the disciplinary proceeding records also, we do not find anything to show that the Petitioner had requested to supply documents and the prayer was turned down. Accordingly we do not find any merit in the said ground. The third point raised before this Court is that the Petitioner was not allowed the defence witnesses to be examined. It appears from the letter dated 6th July, 1995 that the Petitioner wanted the Enquiry Officer and two more witnesses to be examined on behalf of defence and the prayer was refused on the ground that the Enquiry Officer could not be examined as witness and the other two witnesses who were supposed to be examined by the defence refused to appear before the Enquiry Officer. Therefore, it cannot be said that the Petitioner was not permitted to put in defence witnesses. It was open for the Petitioner to produce the two witnesses before the Enquiry Officer instead of requesting the Enquiry Officer to get them examined. However, we can not lose sight of the fact that even the enquiry officer took steps to get the two witnesses who were named to be examined by the Petitioner but they refused to appear before the Enquiry Officer. In view of the observations made above, we do not find any force in the contention of the learned Counsel for the Petitioner that the Petitioner had not been given adequate opportunity to cross-examine the witnesses or looking into the documents or put in defence witness. A perusal of the records, we find that adequate opportunity had been given to the Petitioner to cross-examine the witnesses. So far as the examination of the defence witnesses are concerned, as observed earlier, the Petitioner did not produce the defence witnesses for examination and instead requested the Enquiry Officer to get the witnesses to be examined for the defence. It also appears from the statements referred to above that the two witnesses refused to be examined in the enquiry and, therefore, the Petitioner cannot make any grievance that he was not given adequate opportunity to examine the defence witnesses.

Shri Mishra, the learned Counsel appearing for the Petitioner relied on the statement of P.W. 3 and submitted that since he has been induced by the P.W. 4 to lodge the complaint as admitted by him in his evidence, the Court may accept the case of the Petitioner that the charges were framed on the basis of the complaint which contained false allegations. We are unable to accept such contention P.W. 4 himself has stated that the Petitioner wanted to collect Rs. 10/- from each truck and this fact was also corroborated by P.Ws. 1 and 2. Though we are not sitting in appeal against the decision of the disciplinary authority, since a question was raised, we verified the entire record and we do not find any infirmity in the finding of the Enquiry Officer based on such evidence. Law is well settled that the High Court shall not sit in appeal against the decision of the disciplinary authority and only when the Petitioner is capable of making out a case that he findings arrived at by the Enquiry Officer are based on no evidence, the Court may interfere. Here is a case where we find ample evidence available supporting the charges and therefore this Court cannot interfere with the findings of the Enquiry Officer as well as the punishment imposed in Annexure-26 by the Disciplinary Authority which is based on the findings of the Enquiry Officer.

So far as the order contained in Annexure-17 is concerned, it appears that an order of censure has been passed for the conduct of the Petitioner in not accepting the notice issued from the Enquiry Officer. Censure is a minor punishment and for imposition of minor punishment a regular disciplinary proceeding is not required. Moreover, two separate orders passed on two sets of allegations cannot be challenged in one writ application. We, therefore, refrain from interferring with the order in Annexure-17.

Shri Mishra, the learned Counsel appearing for the Petitioner further contended that the punishment imposed is highly disproportionate and less or punishment should be substituted in place of punishment or removal from service. The learned Counsel referred to some decisions which have no application to the present case. The two decisions relied upon by the learned Counsel relate to cases where orders of punishment were confirmed by the Labour Court/Industrial Tribunal. Here is a case where the Petitioner has challenged the order of punishment passed in the departmental proceeding before this Court and there is no dispute at the Bar that in such a case while confirming the findings of the Enquiry Officer as well as the order of the Disciplinary Authority, the High Court has no jurisdiction to interfere with the punishment which is within the domain of the disciplinary authority and the High Court cannot substitute a punishment in place of punishment imposed by the Disciplinary Authority.

In view of the discussions made above, we do not find any merit in the writ application and the same stands dismissed.

P.K. Mohanty, J.

I agree.