Calcutta High Court (Appellete Side)

Nandi Lal Sikari vs Union Of India & Ors on 6 April, 2023

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                    IN THE HIGH COURT AT CALCUTTA

                     (Constitutional Writ Jurisdiction)

                              APPELLATE SIDE

Present:

The Hon'ble Justice Krishna Rao

                            WPA 12159 of 2003

                              Nandi Lal Sikari

                                   Versus

                            Union of India & Ors.



            Mr. K.B.S. Mahapatra
            Mr. Kashinath Bhattacharyya
                                                  .....For the Petitioner
            Mr. Basudev Chatterjee
            Mr. Santosh Kumar Pandey
                                                  .....For the U.O.I.


Heard on                 : 01.12.2022 & 09.02.2023

Judgment on              : 06.04.2023

Krishna Rao, J.:


      The petitioner has filed the instant writ application challenging the

order passed by the Deputy Inspector General, Central Industrial Security

Force, dated 28th February, 2003 wherein the Appellate Authority has

dismissed the appeal filed by the petitioner.


      On 30.01.1998, the Disciplinary Authority had issued a Memorandum

against the petitioner along with Article of charges on the allegation that the
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petitioner was detailed for temporary duty to CISF RTC Deoli for collection of

clothing and equipments on 16th September, 1997 afternoon as party in-

charge along with Constable O.P. Meena and Constable Sailender Kumar

vide Movement order dated 15th September, 1997. Constable O.P. Meena,

one of the party members, deserted from Agra Railway Station on 18th

September, 1997 at about 1300 hours without any permission from the

petitioner being the party in-charge but the petitioner failed to lodge any FIR

or G.R.P at Agra Railway Station regarding desertion of Constable O.P

Meena. The petitioner along with Constable, Sailender Kumar arrived at

CISF RTC Deoli on 19th September, 1997 at about 1830 hours but the

petitioner did not make any G.D. entry immediately after arrival at Deoli

regarding desertion of Constable, O.P. Meena from Agra Railway Station.

The petitioner made G.D. entry at main gate of CISF RTC Deoli regarding

their arrival and desertion of Constable O.P. Meena on 20th September, 1997

at about 0910 hours only after being asked by HC/GD R.C. Lal, CHM, Hq of

CISF RTC Deoli and thereby the petitioner tried to conceal the fact of

desertion of Constable O.P. Meena from Agra Railway Station.


      On completion of enquiry, the Disciplinary Authority issued an order

dated 17th June, 1998 by imposing punishment of reduction of pay by three

stages from Rs. 4135 to Rs. 3880 in the scale of pay for a period of three

years with effect from 17th June, 1998. In the said order, it was further

directed that the petitioner will not earn increment of pay during the period

of reduction and that on expiry of this period, the reduction will have the

effect of postponing his future increments of pay. The petitioner had
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preferred an appeal against the order of punishment before the Appellate

Authority but the Appellate Authority had rejected the appeal filed by the

petitioner.


      Mr. K.B.S. Mahapatra representing the petitioner, submitted that the

Disciplinary Authority had passed the order mechanically and without any

application of mind. He submits that mere not lodging an FIR about the

alleged desertion of Constable O.P. Meena does not constitute misconduct.


      Mr. Mahapatra submits that Constable, O.P. Meena had deserted from

Agra Railway Station has been reinstated and the punishment awarded to

him is lesser than which has been awarded to the petitioner. He submits

that the Disciplinary Authority as well as the Appellate Authority failed to

consider that the desertion of Constable, O.P. Meena was brought to the

notice of L/NK, A.K. Yadav but he has not made any G.D entry and the

blame has been shifted upon the petitioner.


      Mr. Mahapatra submits that in the charge memo, it is the admitted

case of the authorities that the Constable, O.P. Meena deserted the party of

his own without any intimation of permission from the petitioner but the

respondents have imposed punishment upon the petitioner.

Mr. Mahapatra submits that nature of punishment is prescribed

under Section 31 of the Central Industrial Security Force Rule, 1969 but in

the said Section, there is no provision for penalty of increments. He submits

that if the provision is not provided under law, the authorities cannot

impose punishment upon the employee.

Mr. Mahapatra relied upon unreported judgment passed by the

Coordinate Bench of this Court in WP No. 17354 (W) of 2001 (Deonath

Mishra versus Union of India & Ors.) and WP No. 972 (w) of 2002

(Shivanand Hari versus Union of India & Ors.) and submits that this

Court had set aside the order of punishment with regard to the increment.

Mr. Bhudev Chatterjee representing the respondent authorities

submits that the petitioner being the in-charge had the duty to inform about

the desertion of the Constable, O.P. Meena but he failed to perform his duty

and had suppressed the fact about the desertion of Constable, O.P. Meena.

Mr. Chatterjee submits that the petitioner had the knowledge about

the desertion of Constable, O.P. Meena at Agra Railway Station itself but he

failed to inform the railway police at Agra and even after reaching at Deoli,

the petitioner has not informed the desertion of Constable, O.P. Meena till

the morning of 20th September, 1997.

Mr. Chatterjee submits that due to the misconduct of the petitioner,

the Disciplinary Authority had initiated proceeding by issuing Memorandum

along with Article of charges and on receipt of the Memorandum, the

petitioner has submitted his reply. On receipt of reply, the Disciplinary was

not satisfied with the explanation and accordingly regular enquiry was

conducted.

Mr. Chatterjee submits that during the enquiry, three witnesses were

examined and the petitioner has cross-examined the witnesses. The Enquiry

Officer has submitted report and the enquiry report was duly supplied to the

petitioner and the petitioner has submitted his reply.

Mr. Chatterjee submits that the Disciplinary Authority after

considering the materials on record had passed the order of punishment

and the Appellate Authority had also considered the evidence and the

document and had rejected the appeal filed by the petitioner. He submits

that the Disciplinary Authority after considering the materials on record and

the evidence has passed the order of punishment and as such this Court

cannot re-appreciate the evidence under the writ jurisdiction.

Mr. Chatterjee submits that even in Section 31 as well as in Section

41 of the CISF Act, 1968, provision for withholding of increment is provided

and thus the Disciplinary Authority has passed the order of punishment in

accordance with law.

In the order of punishment dated 17th June, 1998, the Disciplinary

Authority has described about the charge leveled against the petitioner and

the procedure adopted by the authorities for conducting disciplinary

proceeding against the petitioner. It is on record, that the petitioner was

given proper opportunity of hearing during the disciplinary proceeding.

During the enquiry, three witnesses were examined to prove the charge

leveled against the petitioner and from the evidence the witnesses and

record, it is established that the Constable, O.P. Meena had deserted from

Agra Railway Station and the same was within the knowledge of the

petitioner being the in-charge but the petitioner has not reported the matter

to the Railway Police at Agra Railway Station. Even it is also established that

the petitioner reached Deoli on 19th September, 1997 at 1830 hours but he

has not made any G.D. entry at Deoli and only on the next day i.e. on 20th

September, 1997 at about 0910 hours only after being asked by the Head

Constable R.C. Lal, the petitioner has made G.D. entry at Deoli regarding

the desertion of Constable, O.P. Meena.

Section 31 and Section 40 of Central Industrial Security Force Rule,

1969 reads as follows:

"31. Nature of penalties :- The following penalties may, for good and sufficient reasons and as hereinafter provided, be imposed on a member of the Force, namely-

(a) dismissal;

(b) removal;

(c) compulsory retirement;

(d) reduction to a lower class or grade or rank or to a lower time scale or to a lower stage in the time-scale of pay;

(e) withholding of increment or promotion;

(f) removal from any office of distinction or deprivation of special emolument;

(g) fine to any amount not exceeding 7 days pay;

(h) censure."

40. Withholding of increment :- In the case of withholding of increment as a punishment, the order shall state the period for which the increment is to be withheld and whether it shall have the effect of postponing further increments."

In the above provisions withholding of increment is prescribed as

penalties and as such the submission made by Mr. Mahapatra is not

sustainable. As regard the judgment relied by the petitioner, in the said

case, the Learned Advocate for the respondent has admitted that the

authorities specifically do not empower to withhold increment and the

provision of Section 31 and Section 41 of CISF Rule, 1969 was not produced

before the Hon'ble Court.

In view of the above, this Court finds that the Disciplinary Authority

had imposed penalty upon the petitioner by conducting proper and regular

enquiry, and this Court did not find any irregularity in the said enquiry and

thus the petitioner is not entitled to get any relief.

WPA 12159 of 2003 is thus dismissed.