Pradip Kumar Debnath vs Union Of India & Ors
2022 Latest Caselaw 6234 Cal

                     IN THE HIGH COURT AT CALCUTTA
                      Constitutional Writ Jurisdiction
                                Appellate Side



Present:

The Hon'ble Justice Jay Sengupta



                             WPA 15848 of 2011

                               CAN 1 of 2022

                           Pradip Kumar Debnath

                                    Versus

                            Union of India & Ors.



For the petitioner              :     Mr. Jayok Kumar Gupta
                                      Mr. Pranab Halder
                                                                ..... Advocates


For the UOI                     :     Mr. Arijit Majumdar
                                                                ..... Advocate


Heard lastly on                 :     27.07.2022

Judgment on                     :     05.09.2022


Jay Sengupta, J.:

1.    This is an application praying for direction upon the respondents to

cancel and/or withdraw the final order, the appellate order and the

revisional order and reinstate the petitioner in service forthwith.

2. The petitioner joined his service with the Central Industrial Security

Force as a Constable and was posted at the India Steel Plant, Burnpur Unit.

On 17.08.2009, the petitioner was detailed at the light casting department

"C" area, in B shift from 13.00 hrs to 20.00 hrs. After completion of duty,

the petitioner handed over charge to Constable H.K. Mondal who, upon

assuming charge for the said area, checked the area and found marks of

removal of three numbers of iron plates from the machine shop of the LCD

area. He informed the superiors that led to holding of an enquiry against the

petitioner and two others who had been given the duty of manning the said

place. First, the petitioner was served with a memorandum of charge along

with articles of charge and statement of imputation. An enquiry was

conducted thereafter. After completion of such enquiry, the competent

authority issued a final order on 15.02.2010. The petitioner was awarded

the punishment of compulsory retirement from service with admissible

pension and gratuity. Thereafter, the petitioner preferred an appeal and then

a revision, which were rejected. During pendency of the matter, the

petitioner died and the applicants being the wife and the two daughters filed

the connected application being CAN 1 of 2022 with a prayer for

substitution. The prayer for substitution was allowed on 27.07.2022.

3. Learned counsel, appearing on behalf of the petitioner/applicant,

submitted as follows. First, the earlier charges of overstaying in leave or

absence without leave were of the years 1991, 1992, 1993, 1994 and lastly

of 2002. The present incident was of 2009. The earlier circumstances were

too far off to become a part of the same charge sheet or to sway the

respondent authorities to conclude that the petitioner was a habitual

offender. The Enquiry Officer was biased. Yet, the petitioner's prayer for his

removal was not accepted. Despite demand, the Beat Book i.e., the book

which would have borne out the factum of handing over of the charge was

not supplied to the petitioner. However, during the proceeding it was learnt

that the book contained an 'OK' remark at the time of handing over of the

charge by the petitioner. Two constables namely, Rumal Singh and Hitler

Soren were asked to inspect the place after the reliever allegedly detected the

missing plates. Those two constables were not examining during the

proceeding. Another officer who inspected the plates was also not examined.

In fact, the statement of the ASI to the Company Commandant implied that

the issue of the missing plates did not appear to be new. Yet, the said

Company Commandant was also not examined. It was not conceived of that

the reliever could be an interested witness. No one was concerned about the

alleged theft. In fact, the owner of the property being the SAIL did not even

lodge a complaint. The local police was also not informed. Instead, a belated

GD Entry was lodged. This was a case where all were biased against the

petitioner. Even the witnesses conjectured that since the petitioner had

earlier committed wrong, he must have done so this time as well. There was

no record as to the area which the petitioner was supposed to cover. After

all, the watch was divided into different areas and the guards were working

there in shifts. It was the petitioner who had taken charge from the earlier

guard. Non-examination of two constables was raised first in revision. The

impugned Memorandum dated 29th August, 2009 proposing to hold enquiry

by framing Articles of Charges against petitioner whereby Disciplinary

Authority before holding enquiry determined and/or came to a conclusion

that the petitioner was guilty of misconduct showed the close mind of the

Disciplinary Authority. The Report of the Enquiry Officer was nearly same as

was filed by the Presenting Officer in his written brief. By not allowing the

petitioner to examine Rumal Singh and Hitler Soren and by not producing

the Beat Book, the Authority had denied the petitioner an opportunity to

defend the charges, thus violating the principles of natural justice. On the

basis of mere concocted facts made out in the enquiry report, the

Disciplinary Authority, without any proper explanation and with a closed

mind, passed the order of punishment despite the facts that the alleged

incident took place after 1½ hours from handing over the charge to H.K.

Mondal, the Reliever Constable of the next shift and no such complaint

about the alleged theft of 3 small iron plates was lodged by the Steel

Authority of India. The Disciplinary Authority, without issuing Show Cause

Notice about proposed punishment as per Article 311 (2) of the Constitution

of India, straightaway passed the Final Order of Punishment as per report of

the Enquiry Officer who came to a conclusion that the delinquent employee

failed to protect Government property and he was awarded 5 minor

punishments during his tenure of service and as such, the charges had

been proved. Reliance was placed on the decision in the case of A.L. Kalra

reported in AIR 1994 SC 1361, on the question of equal treatment. Denial of

equal protection of law could be judicially reviewed. In the instant case, the

petitioner and other two employees were on duty on 17.08.2009 at the same

shift, but they were awarded minor punishments. Yet, the petitioner was

awarded major punishment. This tantamounted to violation of Article 14 of

the Constitution of India. An executive action denying equal protection could

be reviewed judicially. Reliance was placed on AIR 1979 SC 1022.

4. Learned counsel representing the Union of India submitted as follows.

There was no infirmity whatsoever in the procedure adopted by the

respondent authorities in respect of the disciplinary proceeding. The enquiry

was conducted in terms of Rules 36 of the CISF Rules 2001. The petitioner

was allowed all opportunities to defend himself in the course of enquiry. The

petitioner was given every possible opportunity to cross-examine each and

every witness. The statements of witnesses bear the signatures of the

witnesses, the petitioner, the enquiry officer and the presenting officer. The

depositions given during disciplinary enquiry were all corroborated by other

evidence. As regards the facts of the case the petitioner was deployed at the

light casting department 'area of ISP', Burnpur and asked to keep a strict

vigil and guard for the plant and its machinery and the other items as it

came under his area of patrolling. As per entries 4, 5 and 6 of the duties and

responsibilities in the Standard Operating Procedure issued by the Deputy

Commandant, ISP, Burnpur unit, the petitioner was to monitor his area in

respect of trespass or any illegal/criminal activity. Yet, he failed to protect

the property belonging to the plant. As per clause 3.8 of the CISF Discipline

and Appeal Manual, 2004 the disciplinary authority ought to impose penalty

on a member of the forces only on the strength of the evidence on record

and enhanced penalty or previous instance of mis-conduct in service record

could be imposed only if these instances had been included in a separate

charge in the memorandum of charges. In the present case, the disciplinary

authority included all the previous mis-conducts of the petitioner in the

article of charges no. (ii). In a disciplined force, habitual offenders are a

threat to one's own administration. On merits, sufficient number of

witnesses were examined, more pertinently the reliever. The beat book, even

if produced, would have hardly come to any aid of the petitioner in view of

the abundance of evidence present. Other staffs charged with the petitioner

had different punishments given because there was hardly any reason to

book them for enhanced punishment. On the question of judicial review,

reliance was placed on the decision of the Hon'ble Apex Court in B.C.

Chaturvedi vs. Union of India and anothers (1995) 6 SCC 749 and it was

submitted that a judicial review was not an appeal from a decision but a

review of the manner in which the decision was made. The relief could be

appropriately moulded by a High Court or a Tribunal only if the punishment

imposed by the disciplinary authority or the appellate authority shocked its

conscience, which was not the case here. In the present case, when the

charges were proved against the petitioner in the disciplinary proceeding,

the competent authority duly considered the length of the service of the

petitioner, the pensionary entitlement, the series of mis-conducts and only

thereafter, passed the final order. Reliance was also placed on Union of India

Versus P. Gunasekaran (2015) 2 SCC 610. Relying on the decision in Om

Kumar & Ors. Versus Union of India, (2001) 386, it was submitted that the

Court would not apply proportionality because no issue of fundamental

freedoms nor of discrimination under Article 14 applied in the context. The

petitioner was given several opportunities to rectify himself, yet he continued

with the mis-conducts. Even then the disciplinary/competent authority took

a lenient view by not imposing the strictest punishment considering the

facts such as length of service, pensionary entitlement, etc.

5. I heard the learned counsels appearing on behalf of the parties and

perused the writ petition, the affidavits and the written notes.

Effect of earlier charges:

6. The petitioner's grievances were that the earlier charges of overstaying

in leave or absence without leave of the years 1991, 1992, 1993, 1994 and

2002 were made of part of the charge sheet although the present incident

was of 2009 and this swayed one and all to come to an adverse inference

that since the petitioner was charged with so many earlier incidents, then he

must be the one responsible for the present incident. There is a provision for

including earlier incidents of indiscipline in a charge that would include the

present incident. The Discipline and Appeal Manual of the CISF provides

that if the charge is that the delinquent personnel indulged in the

misconduct frequently, the frequency with full particulars of the earlier

incidents should also be brought out. In fact, paragraph 3.18 of the

document specifically deals with previous conduct reference. It provides that

enhanced penalty on the ground of existence of previous instances of

misconduct in service record should be imposed only if these instances have

been included as a separate charge in the memorandum of charge. In the

instant case, this condition was complied with. The enquiry and the

proceeding were all conducted after considering the depositions given by

different persons as also upon examination of the relevant records. There is

nothing on record to show that the authorities were influenced or swayed by

the petitioner's earlier misdemeanour. Moreover, if such incidents had taken

place in a span of so many years, then the same can be said to have some

kind of consistency and the time gap between the last incident of 2002 and

the present one of 2009 was not too far wide.

Non-production of Beat Book

7. A Beat Book would, at best, bear out the factum of handing over the

charge. If any infirmity is noticed immediately as regards earlier patrol, the

same might find a place in the Beat Book or in any other contemporaneous

documents. But, if a thing like removal of three iron plates is discovered in

course of the next patrol a little after the change of guards, the same may

not find a place in the Beat Book. Therefore, one cannot find fault with the

non-production of the Beat Book or cast an unnecessary shadow of doubt

over such issue.

Number of witnesses or its quality?

8. It is settled law that the number of witnesses in an adjudication is not

important, but the quality is. Some witnesses, who had detected the missing

plates, were indeed examined. Therefore, non-examination of two other

constables namely, Rumal Singh and Hitler Soren cannot be said to be fatal

to the case against the petitioner. Moreover, the ASI's purported reference to

a conversation with the Company Commandant does not necessarily show

that the going missing of the plates was an old issue.

Reliever's evidence

9. The guard, who relieved the petitioner of his duty, is perhaps the best

witness. By no stretch of imagination, can he be termed as an interested

witness. Sometime after taking charge, the going missing of plates was

detected and were brought to the notice of others.

No complaint by the Steel Authority of India

10. That no separate complaint was lodged by the Steel Authority of India

for going missing of the three iron plates is of no consequence whatsoever.

After the detection of theft, the same was notified to the superiors in the CIS

Force. A G.D. Entry was lodged. In such matters, it is not necessary that the

authorities, whose property the CISF was protecting, would themselves have

to come down to lodge a formal complaint.

Report of Enquiry Officer vis-a-vis the Presenting Officer

11. The report of Enquiry Officer and the Presenting Officer and the

version of the Presenting Officer may fairly be little similar as they deal with

the same facts and issues. One cannot cast unnecessary insinuation if the

same are found to have something in common.

Power of review

12. The power of reviewing the actions of a Disciplinary Authority is very

limited indeed. As was held in B.C. Chaturvedi (Supra), a judicial review is

not an appeal from a decision, but a review of the manner in which the

decision was made. An interference is warranted only if the punishment,

imposed by the Disciplinary Authority or the Appellate Authority, shocks the

conscience of the High Court or the Tribunal. Although the nature and

certain facets of the evidence were referred to earlier, the same were only for

the purpose of comprehending whether the punishment could be termed as

'shocking'. In fact, instead of awarding the maximum punishment of removal

from service, a relatively lenient view was taken considering the petitioner's

length of service and pensionary entitlement. Therefore, in the facts of the

present case the punishment awarded to the present petitioner is found

quite appropriate, far from what can be termed as shocking. That apart, no

apparent irregularity could be found in the manner in which the authorities

dealt with the disciplinary proceeding, the appeal and the revision.

Unequal treatment meted out to the petitioner

13. It appears that the others who were charged with the petitioner for the

same final act were awarded different punishments. As would be evident

from the revisional order, punishments were awarded to the persons

charged based on the roles they were performing. Besides, there is nothing

on record to show that the authorities could find any reason to award

enhanced punishment to those others. However, in the case of the present

petitioner, there was a consistent series of earlier acts of indiscretion which

coupled with the role played by the petitioner could fairly prompt the

authority to award a harsher punishment to him than to those others.

14. In view of the above, I do not find any worthwhile reason to interfere

with the final order, the appellate order and the revisional order passed by

the respondent authorities.

15. Accordingly, the writ petition is dismissed.

16. However, there shall be no order as to costs.

17. Urgent photostat certified copies of this judgment may be delivered to

the learned Advocates for the parties, if applied for, upon compliance of all

formalities.

(Jay Sengupta, J.)

P. Adak