Union of India (UOI) vs Raghubans Ojha

Jayanta Kumar Biswas, J.—This appeal is against the judgment and order dated May 10, 1991 passed by a learned Judge of this Court on a writ petition which was registered as Civil Rule No. 16229 (W) of 1985. Respondent No. 1 in this appeal was the writ Petitioner. The writ Petitioner challenged his dismissal from service. By the impuged judgment and order the learned Judge set aside the order of dismissal and directed reinstatement with all back wages.

On May 1, 1980 the writ Petitioner was appointed as constable in Central Industrial Security Forces Unit of Durgapur Steel Plant. On June 25, 1984 he was suspended in contemplation of a disciplinary proceeding. A charge-sheet dated July 12, 1984 was served on the writ Petitioner. The charges were as follows:

Article of charge No. 1. No. 8017882 Constable R.B. Ojha was detailed for ''A'' shift duty at vehicle gate on 21.06.84 from 06.00 hrs. to 14.00 hrs. to control and check the incoming vehicles to the plant. During his duty at 09.15 hrs. he allowed one unauthorised truck No. BRW-7417 inside the plant willingly and dishonestly in which a theft of 05.440 M.T. of Steel Scrap, valued Rs. 10,880/- took place.

Article of charge No. II. No. 8017882 Constable R.B. Ojha while performing duty at Vehicle Gate on 21.6.84, he dishonestly allowed one unauthorised truck No. BRW-7417 giving a false entry slip, putting his own signature and with office stamp by which the truck lifted 05.440 M.T. of Steel scrap from SMS pit site with an intention to take those materials out of the Plant unauthorisedly.

Article of charge No. III. No. 8017882 Constable R.B. Ojha while on duty at Vehicle Gate on 21.6.84, he dishonestly allowed the said truck at 09-15 hrs. without recording it in the vehicle register maintained at the Vehicle Gate.

Following the procedure for imposing major penalties as laid down in Rule 34 of The Central Industrial Security Force Rules, 1969 (in short ''the C.I.S.F. Rules, 1969) an enquiry was held. The writ Petitioner participated in the enquiry. Witnesses were examined and cross-examined. Documents were exhibited. On conclusion of the enquiry, the inquiring authority submitted its report dated December 16, 1984. The inquiring authority in its findings recorded that while charge Nos. 1 and 3 stood proved, the writ Petitioner was entitled to benefit of doubt regarding charge No. 2.

On January 3, 1985 the Commandant (Plant), C.I.S.F. Unit, Durgapur Steel Plant, i.e. the disciplinary authority, passed the punishment order. Paragraphs 5, 6 and 7 of that punishment order are quoted below:

5) Allowing unauthorised truck inside the plant without recording in the vehicle register is a gross offence on the part of the member of the Force., There is no point for overlooking or remaining busy. The delinquent should be discharged from the service but taking into lenient view considering the forged entry slip and his first offence he is given chance to improve his service career.

6) However, the undersigned orders for the punishment of withholding of increment for 3 years without cumulative effect to the delinquent constable R.B. Ojha.

He will be treated as non-duty during his suspension period from 25.6.84 to 31.12.84 and will not get anything expect the subsistance allowance as per rule. A copy of this order along with a copy of the findings be issued to the individual concerned on proper receipt.

Being aggrieved the writ Petitioner preferred an appeal. By an order dated April 1, 1985 the Deputy Inspector General, C.I.S.F. Unit, Durgapur Steel Plant, who was the appellate authority, rejected said appeal and confirmed the punishment imposed by the disciplinary authority.

Against the appellate authority''s order writ Petitioner submitted a further appeal dated April 22, 1985 to the Director General, C.I.S.F. Since there was no provision for filing a second appeal, the Director General treated writ Petitioner''s said appeal dated April 22, 1985 as a revision.

On July 1, 1985 the Director General passed an order thereby calling upon the writ Petitioner to show cause as to why the punishment should not be enhanced to that of dismissal from service. Paragraphs 4 and 5 of said order are quoted below:

On examination of the case record, I find that the charges of derelication of duty and dishonesty have been held proved and far too serious to be let off so lighty and deserves exemplary punishment. His pleas have no force. This is a case of fence eating the grass. The CI.S.F. personnel are posted for the protection of the undertaking property and the persons who show lethargy, carelessness and negligence in the discharge of their duties, resulting in theft of the plant property, should have no place in the force.

In view of the above position and considering the gravity of misconduct I propose to enhance the punishment to dismissal from service. The Petitioner is accordingly given an opportunity to show cause as to why the punishment should not be enhanced as proposed. His reply, if any, in this regard should be submitted within 10 days from the recepit of this show cause notice. If no reply is received within the period stipulated above, it will be deemed that he has nothing to state and further orders will be passed.

On July 16, 1985 the writ Petitioner submitted his reply after considering said reply the Director General passed the final order dated August 20/24, 1985 whrereby the punishment was enhanced to that of dismissal from service. Paragraphs 5 and 6 of the said final order passed by the Director General in exercise of his revisional power, are quoted below:

I have again looked into the matter very carefully and find that the charges 1 & 3 of dereliction of duty and dishonesty have been clearly proved. In reply to the show cause notice he has only reiterated what he had said earlier and which had been rightly rejected and has not brought out any new point. His contentions at (a) to (c) have no force.

I find that the charges border on dishonesty and the delinquency committed by the delinquent clearly makes him unworthy of retention in a disciplined Force. I have no doubt in my mind that retention of such a member in the Force would not only put a premium on inefficiency and lack of character, but also not help to establish sound traditions for the Force. I also find that the delinquency is far too serious to be let off with anything other than dismissal. Accordingly, I enhance the punishment already awarded, to that of dismissal from service with effect from the date of service of this order on him.

In the aforesaid background the writ petition dated September 20, 1985 was filed parying for cancellation of the said dismissal order. It was contended in the writ petition that the Director General had passed the order without considering writ Petitioner''s case; that said revising authority had no authority or jurisdiction to issue the show cause notice to enhance punishment; that the Director General had acted mala fide and with bias; and that the order had been passed without giving opportunity of hearing to the writ Petitioner.

The Respondents in the writ petition, who are appelants before us, contested the said writ petition by filing an affidavit-in-opposition. It was, inter alia, stated in the said opposition that during the short span of his service the writ Petitioner had been awarded punishment on two earlier occassions for his negligence in duties. It was further stated that a copy of enquiry report had been supplied to the writ Petitioner together with the order passed by the disciplinary authority and it had been done in terms of Rule 34(11) of the C.I.S.F. Rules, 1969. It appears, the writ Petitioner did not file any reply to the said opposition filed by the Respondents in the writ petition.

By the, Judgment and order impugned in this appeal the learned Judge was pleased to set aside the said revisional order whereby punishment of dismissal had been imposed on the writ Petitioner. The learned Judge confirmed the order passed by the disciplinary authority who had imposed the punishment of withholding of increments for three years without cumulative effect. The learned Judge set aside the order passed by the revising authority on the ground that it was not-inconformity with Sub-rule 3 of Rule 49 of the C.I.S.F. Rules, 1969.

The judgment and order is quoted below:

This writ application is directed against the order passed by the disciplinary authority to the effect that the three annual increments shall be withheld against the said order. An appeal was preferred. The Appellate authority confirmed the order of the disciplinary authority, Petitioner thereafter came up in revision before the Revisional authority. The Revisional Authority passed an order as contained in annexure ''E'' at pages 39 and 40 of the writ application.

I have carefully considered the pros and cons of the entire order as also the submission of Mr. Dipak Mukherjee and found that ingenuiety (?) crept in the revisional order. Mr. Mukherjee further claimed that the Revisional Authority duly applied its mind to the materials on record and thereafter enhanced the punishment from withholding the three increments. The contention of Mr. Mukherjee in my view, cannot be accepted for the sole reason that the revisional authority while discharging its revisional power failed to exercise his functions in terms of Sub-rule (3) of Rule 49 of The Central Industrial Security Force.

On a careful scrutiny of the revisional order I find the Revisional authority did not act in terms of Sub-rule (3) of Rule 49. It is well settled that then statute something being done in a certain manner it must be done in that manner. All other mode of performance than those specified in statute is strictly forbidden and is violative of rules of natural justice.

Reference may be made to the decision of the Supreme Court in the case of Ram Chandra Kesav Adete v. Govinda Chanuro. reported in AIR 1975 915 paragraph 25.

Sub-rule 2(a)(b)(c) of Rule 47 lays down certain conditions which are required to be complied with for disposal of the revision under the provisions as contained in Sub-rule (3) of Rule 49. The Revisional order is therefore not in confirmity with Sub-rule (3) of Rule 49 and I set aside the revisional order. The order passed by the disciplinary authority are hereby confirmed. The Petitioner shall be allowed to join his duty and shall be paid all the service benefits subject to the order passed by the Disciplinary authority within a period of six months from date. The entire back log of his salary and allowances shall be made available to the Petitioner in three equal instalments commencing from the month of July, 1991 and thereafter two instalments in the month of October and December, 1991.

The Rule is made absolute to the extent indicated above.

There will be no order as to costs.

Being aggrieved by the said judgment and order dated May 10, 1991 the Union of India and Ors. who were Respondents in said writ petition, preferred this appeal, on August 14, 1991. By an order dated November 11, 1991 a Division Bench of this Court condoned the delay in perferring the appeal and rejected the stay application filed by the Appellants. The appeal has now come up before us for final hearing.

Before us, the learned Advocate appearing for the Appellants, has submitted that the revisional order had been passed by the competent authority in strict compliance with the provisions of Rule 49 of the C.I.S.F. Rules, 1969; and as such, the learned Judge committed an error in setting aside such lawful order. The learned Advocate appearing for the writ Petitioner/Respondent No. 1 has submitted before us that, the revisional order was rightly set aside by the learned Judge as it had been passed in violation of provision of Rule 47 of the C.I.S.F. Rules 1969. He has further submitted that the Appellants having reinstated the writ Petitioner, the appeal should be dismissed.

In view of the above we are now called upon to decide the questions: (i) as to whether the revising authority while passing the order dated August 20/24, 1985 acted in violation sub-rule of 3 of Rule 49 of the C.I.S.F. Rules, 1969 by not discharging his function in the manner as indicated in cls. (a), (b) and (c) of Rule 47 thereof, or not; and (ii) as to whether because of. writ Petitioner''s reinstatement by Appellants, the appeal is liable to be dismissed or not.

For deciding the first question raised before us, we feel it necessary to reproduce the provisions of said Sub-rule 47 and 49 of the C.I.S.F. Rules, 1969. Those rules read as under:

47: Considerations of appeals.-(1) In case of an appeal against an order of suspension the appellate authority shall consider whether, in the light of the provisions of Rule 29 and having regard to the circumstances of the case, the order of suspension is justified or not and confirm or revoke the order accordingly.

(2) In the case of an appeal against an order imposing any of the penalties specified in Rule 31 the appellate authority shall consider,-

(a) Whether the procedure prescribed in these rules has been complied with, and not whether such non-compliance has resulted in violation of any provisions of the constitution or in failure of justice;

(b) Whether the findings are justified; and

(c) Whether the penalty imposed is excessive, adequate or inadequate; and pass orders,-

(i) Setting aside, reducing, confirming or enhancing the penalty;

(ii) remitting the case to the authority which imposed the penalty or to any other authority with such direction as it may deem fit in the circumstances: Provided that-

(i) the appellate authority shall not impose any enhanced penalty which such authority is not competent to impose;

(ii) no order imposihg an enhanced penalty shall be passed unless the Appellant is given an opportunity of making any representation which he may wish to make against such enhanced penalty; and

(iii) if the enhanced penalty which the appellate authority proposes to impose is one of the penalties specified in C Is. (a) to (d) of Rule 31 and an inquiry under Rule 34 has not already been held in the case, the appellate authority shall, subject to the provisions of the Rule 34 itself hold such inquiry or direct that such inquiry be held and thereafter on consideration of the proceedings of such inquiry opportunity of making any representation which he may wish to make against such penalty pass such orders as it may deem fit.

Revision.-(1) Any authority superior to the authority making the order may,suo motu, if it considers necessary, revise an order, original or appellate, passed by such lower authority which comes to his office within a period of one year from the date of the order.

(2) The revising authority may remit, vary or enhance the punishment imposed or may order a fresh inquiry for the taking of further evidence in the case as it may consider necessary.

(3) The provision of Rule 47 relating to appeals shall apply so far may be to such orders in revision.

It is apparent from the impugned judgment and order that the learned Judge did not mention as to which of the requirements of Rule 47(2) had not been complied with by the revising authority. The Learned Counsel appearing for the Respondent No. 1 also has not been able to tell us the same. It may be mentioned that no contention was raised in the writ petition to the effect that the revising authority had passed the order in violation of Rule 49(3) of the C.I.S.F. Rules, 1969 or that any of the requirements of Rule 47(2) thereof had not ben complied with by the said authority.

In terms of Rule 49(3) the revising authority was required to pass the order in revision after complying with the relevant provisions of Rule 47. From the order dated July 1, 1985 passed by the revising authority proposing to enhance the punishment and calling upon the writ Petitioner to show cause, we find that said authority after examining the materials on recorded concluded that the enquiry had been conducted following the procedure prescribed in the C.I.S.F. Rules, 1969; and that the findings were justified, but the penalty imposed was utterly inadequate. That the revising authority was competent to impose the enhanced penalty of dismissal, is a fact which is not disputed. Before passing the order imposing the enhanced penalty the Respondent No. 1 was given an opportunity of making representation. He accordingly submitted representation. It was not a case where no enquiry had been held under Rule 34. After considering writ Petitioner''s representation the revising authority passed the final order dated August 20/24, 1985.

So, we find that the two orders passed in revision by the revising authority satisfied all the requirements of cls. (a), (b) and (c) of sub-r. (2) of said Rule 47 of the C.I.S.F. Rules, 1969. That being the position we find no reason to say that the revising authority acted in violation of Rule 49(3) of the C.I.S.F. Rules, 1969 by not discharging his function in the manner prescribed by cls. (a), (b) and (c) of Rule 47(2) thereof, while passing the final order dated August 20/24, 1985.

For the foregoing reason we hold that the conclusion recorded by the learned Judge was wholly unwarranted in the facts and circumstances of the case. We do not find any infirmity in the order dated August 20/24, 1985 passed by the revising authority imposing enhanced penalty of dismissal from service on the Respondent No. 1.

On the second question, we, however, have no material on record before us. The Learned Counsel for the Respondent No. 1 has orally submitted before us that pursuant to the judgment and order of the learned Judge his client was reinstated into service. The Learned Counsel for the Appellants has, however, not disputed the fact of reinstatement. We are told that the prayer for stay having been refused, under threat of contempt, Appellants reinstated the Respondent No. 1. The question is, in the circumstances, have the Appellants lost their right to prosecute the appeal ?

We find that the Appellant never accepted the judgment and order in question. They challenged it and applied for stay of operation thereof. Admittedly, the Appellants did not prefer the appeal after accepting the impugned judgment and order and acting upon the same.

Therefore, we leject the contention that the appeal should be dismissed as the Appellants had complied with the impugned judgment and order by reinstating the Respondent No. 1 into service. We hold that the Appellants by complying with the order during pendency of the appeal, did not loose their right to prosecute the appeal.

For the foregoing reasons, we allow this appeal, set aside the impugned judgment and order, and dismiss the writ petition. There will be no order as to costs.

Ashok Kumar Mathur, C.J.

I agree.