The Inspector General, Central Industrial Security Force (North) and Others vs G.C. Bilarwan, Deputy Commandant and Others

Nishita Mhatre, J—The appeal is directed against the decision of a learned single Judge of this Court by which the writ petition filed by the respondent No. 1 (hereinafter ''respondent'') has been allowed and the disciplinary proceedings held against him and the punishment imposed have been set aside.

The brief facts relating to the present case are as follows:

"The respondent was employed with the Central Industrial Security Force (hereinafter referred to as ''CISF'') as a Deputy Commandant. On 15th January, 2002 while he was posted in the CISF Unit, BSL Bokaro, there was a scuffle between the CISF personnel and the villagers of Lewatand village. A constable of the CISF was abducted by the villagers. The respondent informed his superior officers and they directed him to rescue the abducted constable. The allegation against the respondent is that he did not ensure that the men deployed under him for the rescue operation acted in a restrained manner and instead, he permitted them to use physical force against the villagers. The CISF personnel as a result beat the villagers and damaged their property. This, according to the appellants, indicated that the respondent had failed "to perform his duties with full devotion" and that "he gave very poor account of his leadership and also lowered the image of the CISF." The appellants alleged that the respondent had "acted in a manner unbecoming to an officer of his status, rank and service of an arm force of the Union like CISF." These were the allegations levelled against the respondent in a charge-sheet issued to him on 5th June, 2002, almost six months after the alleged incident."

The respondent replied to the charge-sheet denying all the allegations contained in it by his letter dated 29th January, 2003. An enquiry was conducted against the respondent in terms of Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules. Both the presenting officer and the respondent submitted their respective contentions before the enquiry officer in writing. The enquiry officer submitted his report to the disciplinary authority indicating that the charges had not been proved against the respondent. The enquiry officer was a Commandant of the CISF. The enquiry officer held based on the evidence led before him that it was not possible to fix the responsibility on the respondent regarding the lack of command and control of the CISF personnel and the failure to tackle the situation tactfully and methodically. The enquiry officer noted that the prosecution has examined those persons who had allegedly indulged in the assault and attack on the villagers as prosecution witnesses.

A note of disagreement by the disciplinary authority was furnished to the respondent along with the findings of the enquiry officer on 17th June, 2005. He was called upon to submit his representation to enable the disciplinary authority to take suitable action in the matter. Accordingly the respondent submitted his representation with respect to the note of disagreement on 20th August, 2005. The disciplinary authority concluded that the charges levelled against the respondent were proved.

The enquiry proceedings, the findings of the enquiry officer and the note of disagreement of the disciplinary authority along with the representation of the respondent were forwarded to the Union Public Service Commission (hereinafter for short ''UPSC'') for advice. By a communication dated 28th April, 2006, the UPSC recommended that the penalty of withholding of one increment for three years without cumulative effect should be imposed on the respondent. The UPSC noted that the respondent was aware of the incident and therefore he could have done ''something'' to avoid the situation. It noted that there was evidence which leads to the probability that the respondent had given an unwritten approval to the jawans to rescue the jawan who had been abducted.

By an order dated 31st May, 2006 the disciplinary authority imposed the penalty recommended by the UPSC of withholding of one increment for three years without cumulative effect. No opportunity was afforded to the respondent to submit a representation with respect to the proposed punishment.

Aggrieved by the order of punishment the respondent preferred a writ petition before this Court under Article 226 of the Constitution of India. The learned single Judge by the impugned judgment held that since the respondent was not afforded an opportunity to represent his case with respect to the proposed punishment, the order was bad. The learned single Judge has relied on several judgments of the Supreme Court to arrive at this decision. The contention of the petitioners that the matter should be remanded to the stage where the error in the disciplinary proceedings had crept in did not find favour with the learned Judge. This was because the learned Judge felt that it would not be in the interest of justice to give an opportunity to the disciplinary authority to proceed afresh as it had already recorded its findings and the UPSC had recommended the punishment. The learned Judge therefore concluded that it would be well-nigh impossible that the disciplinary authority would arrive at a different conclusion and agree with the enquiry authority in a post decisional hearing.

Mr. P.S. Biswas, the learned Counsel for the appellants, submitted that it is well-settled that when there is a defective enquiry, the authorities should be permitted to conclude the enquiry in a just manner by remanding the matter to the stage where the error had occurred. The learned Counsel submitted that a post decisional hearing can be afforded in such a case. He then submitted that it would not be advisable to permit the respondent who belongs to a disciplined force to go scot free without imposing any punishment. According to him, the very fact that the respondent was unable to control his men who ransacked the village indicated that he had acted in a manner unbecoming of the charge vested in him.

We have perused the judgments of the Supreme Court in the case of Punjab National Bank and Others Vs. Sh. Kunj Behari Misra, (1998) 6 AD 220 : AIR 1998 SC 2713 : (1998) 2 CTC 742 : (1998) 5 JT 548 : (1998) LabIC 3012 : (1998) 2 LLJ 809 : (1998) 4 SCALE 608 : (1998) 7 SCC 84 : (1998) SCC(L&S) 1783 : (1998) 1 SCR 22 Supp : (1999) 1 SLJ 271 : (1998) AIRSCW 2762 : (1998) 6 Supreme 486 , Yoginath D. Bagde Vs. State of Maharashtra and Another, AIR 1999 SC 3734 : (1999) 7 JT 62 : (1999) 5 SCALE 620 : (1999) 7 SCC 739 : (1999) SCC(L&S) 1385 : (1999) 2 SCR 490 Supp : (2000) 1 SLJ 174 : (1999) AIRSCW 3775 : (1999) 8 Supreme 129 , Luv Nigam v. Chairman & MD, ITI Ltd. & Anr reported in (2006) 9 SCC 440 and Shri Shekhar Ghosh Vs. Union of India (UOI) and Another, (2007) 112 FLR 661 : (2007) 1 JT 63 : (2006) 11 SCALE 363 : (2007) 1 SCC 331 : (2007) 1 SCC(L&S) 247 : (2006) 8 SCR 274 Supp cited before the learned single Judge. We find that the observations of the Supreme Court in the aforesaid judgments support the opinion of the learned Judge.

In Punjab National Bank & Ors (supra) the Supreme Court reiterated its observations in the case of Managing Director, ECIL, Hyderabad, Vs. Karunakar, etc. etc., AIR 1994 SC 1074 : (1993) 6 JT 1 : (1994) 1 LLJ 162 : (1993) 3 SCALE 952 : (1993) 4 SCC 727 : (1993) 2 SCR 576 Supp : (1993) 3 SLJ 193 and observed that it would be most unfair and iniquitous that where the charged officer succeeds before the enquiry officer, he is deprived of an opportunity of representing his case to the disciplinary authority before that authority differs with the enquiry officer''s report and, while recording a finding of guilt, imposes punishment on the officer. The Court held thus:

"...whenever the disciplinary authority disagrees with the enquiry authority on any article of charge, then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the enquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the enquiry officer. The principles of natural justice, as we have already observed, require the authority which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer."

In Yoginath D. Bagde (supra) the Supreme Court considered the Punjab National Bank''s case (supra) and its earlier decisions and held as under:

"In view of the above, a delinquent employee has the right of hearing not only during the enquiry proceedings conducted by the enquiry officer into the charges levelled against him but also at the stage at which those findings are considered by the disciplinary authority and the latter, namely, the disciplinary authority forms a tentative opinion that it does not agree with the findings recorded by the enquiry officer. If the findings recorded by the enquiry officer are in favour of the delinquent and it has been held that the charges are not proved, it is all the more necessary to give an opportunity of hearing to the delinquent employee before reversing those findings. The formation of opinion should be tentative and not final. It is at this stage that the delinquent employee should be given an opportunity of hearing after he is informed of the reasons on the basis of which the disciplinary authority has proposed to disagree with the findings of the enquiry officer. This is in consonance with the requirement of Article 311(2) of the Constitution as it provides that a person shall not be dismissed or removed or reduced in rank except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. So long as a final decision is not taken in the matter, the enquiry shall be deemed to be pending. Mere submission of findings to the disciplinary authority does not bring about the closure of the enquiry proceedings. The enquiry proceedings would come to an end only when the findings have been considered by the disciplinary authority and the charges are either held to be not proved or found to be proved and in that event punishment is inflicted upon the delinquent. That being so, the "right to be heard" would be available to the delinquent up to the final stage. This right being a constitutional right of the employee cannot be taken away by any legislative enactment or service rule including rules made under Article 309 of the Constitution."

(Emphasis added)

This line of reasoning in Punjab National Bank (supra) and Yoginath D. Bagde (supra) has been followed and reiterated by the Supreme Court in Luv Nigam (supra).

The common thread running through these judgments is that an opportunity must be afforded to a delinquent employee to represent his case with respect to the punishment proposed to be imposed on him. Admittedly in this case immediately after the UPSC sent its recommendation of the punishment to be imposed on the respondent, the disciplinary authority issued its order awarding the punishment. No opportunity was given to the respondent to react to the proposed punishment. The disciplinary authority acted contrary to the well settled principles of law enunciated by the Supreme Court in the aforesaid judgements.

Therefore, the enquiry against the respondent was violative of the principle of natural justice as laid down to them under Rule 14 of the CCS (CCA) Rules and in the various decisions of the Supreme Court. In fact, the Supreme Court has observed in Yoginath D. Bagde (supra) that where there is no specific opportunity to be given for hearing the delinquent, it has to be read into the rule.

The learned Counsel urged that the learned single judge has erred in not following the practice adopted by the Supreme Court of remanding the proceedings to the authority to the stage where the error had crept in and the principles of natural justice had been breached. He submitted that the respondent could be afforded and opportunity to respond to the proposed punishment if the matter is remanded. The punishment, if any, would be imposed only after considering his reply.

The learned single Judge has apparently not remanded the matter to the disciplinary authority for deciding the matter afresh as a post decisional hearing would not suffice. In the case of Shekhar Ghosh (supra) the Supreme Court has observed that a post-decisional hearing is not sufficient to correct the mistake of not affording a pre-decisional hearing which is warranted when the decision involves civil consequences. There can be no doubt that the decision to impose the punishment of stoppage of increment results in civil consequences and therefore it was incumbent on the disciplinary authority to afford a hearing to the respondent before it accepted the recommendations of the UPSC and imposed the penalty.

We see no reason to differ from the findings arrived by the learned single Judge especially when the respondent''s case for voluntary retirement has been accepted by the appellants.

The appeal is dismissed. In view of the dismissal of the appeal, the application being CAN 1264 of 2012 is also dismissed. No order as to cost.

Urgent certified photocopies of this judgment, if applied for, be given to the learned Advocates for the parties upon compliance of all formalities.