Jagdish Jatav vs Union Of India & Ors
2023 Latest Caselaw 1975 Cal

Form No.J(2)

                IN THE HIGH COURT AT CALCUTTA
               CONSTITUTIONAL WRIT JURISDICTION
                        APPELLATE SIDE
Present :

The Hon'ble Justice Raja Basu Chowdhury

                             WPA 7660 of 2009

                                Jagdish Jatav
                                      Vs.
                             Union of India & Ors.


For the petitioner       :       Mr. K.B.S. Mahapatra,
                                 MR. Kasinath Bhattacharya.


For Union of India       :       Ms. Chandreyi Alam.


Heard on                 :       03.02.2023

Judgment on              :      24.03.2023.


Raja Basu Chowdhury, J:

   1. The present writ application has been filed, inter alia, challenging

      the final order passed by the disciplinary authority as well as the

      orders passed by the appellate and the revisional authority in

      connection with the disciplinary proceedings initiated against the

      writ petitioner.

   2. The writ petitioner is an employee in the Central Industrial

      Security Force (hereinafter referred to as 'C.I.S.F').      At the

      material point of time, he was posted at the CISF unit, Seetalpur,

      District Burdwan. In course of his employment, he was served
                                   2




  with a memorandum of charge dated 7th July, 2007 issued by the

  disciplinary authority of the petitioner intimating that the

  disciplinary authority proposes to hold an enquiry against him in

  respect   of   the    charges    detailed   in    annexure      to   such

  memorandum. A brief excerpt of the particulars of the articles of

  charge leveled against the petitioner, is set out herein below:-

             "An act prejudicial to good order and discipline of the
             Force in that No. 932293950 Constable Jagdish Jatav,
             RJML Camp of CISF Unit ECL Seetalpur was detailed
             for "C" shift duty on the night of 03/04.07.07 at CHP
             Interim Crusher and CHP-II area. During his duty hours
             a theft of Computer Accessories (Approx. cost of
             Rs.74000/- only) installed in the Cabin of Interim CHP
             was occurred. Being the duty sentry of that post he
             failed to protect the Govt. property for which he was
             deployed.
             The above act on the part of No. 932293950 Constable
             Jagdish     Jatav    tantamounts      to    gross   negligence,
             carelessness and deriliction of duty unbecoming of a
             member of a discipline Force, like CISF. Hence the
             charge."

3. Along with the aforesaid memorandum, he was supplied with a

  list of documents and a list of witnesses.            The petitioner duly

  responded to the said show-cause by a communication in writing

  dated 19th July, 2007.     Although the writ petitioner admitted

  being on duty on the night of 3/4th July, 2007, when the incident

  of theft had taken place, yet, he claimed that the lock which was
                                  3




   broken, was rusted on the cut points, so as to suggest that the

   cuts were old and did not occur on the date of the incident as

   alleged.

4. The petitioner claims to be innocent and had only detected such

   theft on the following morning when his reliever Satish Kumar

   had invited his attention to the broken locks.

5. Record reveals that the disciplinary authority after receipt of the

   reply to the show-cause cum charge-sheet decided to proceed

   with the departmental enquiry.      Such fact would corroborate

   from a notice dated 30th July, 2007.

6. A regular domestic enquiry was conducted. After conclusion of

   the domestic enquiry, the report of the enquiry was served on the

   petitioner for the petitioner to respond to the same. Such fact

   would appear from the communication in writing dated 3 rd

   November, 2007. The petitioner consequent upon receipt of the

   aforesaid enquiry report submitted a detailed representation

   dated 8th December 2007. The disciplinary authority upon

   considering the petitioner's reply and taking into consideration

   the report of the enquiry officer was, inter alia, pleased to hold

   vide its order dated 19th December 2007 that the articles of the

   charge framed against the petitioner is fully established and on

   the basis of powers conferred under Rule 32 of the Central

   Industrial Security Force Rules, 2001 (hereinafter referred to the
                                  4




   said Rules) was, inter alia, pleased to impose a penalty to the

   following effect.

              "Therefore, taking into account all the aspects, I fully
              agree with the findings of the Enquiry Officer and hold
              the charged official guilty of article of charge framed
              against him. During his duty hours charged official
              failed to protect the Govt. property for which he was
              detailed. Hence he deserves severe punishment. I,
              therefore, in exercise of powers conferred upon me
              under Rule-32 read in conjunction with schedule-I and
              with Rule (v) of CISF Rules, 2001 ordered that "THE
              PAY OF NO. 932293950 CONSTABLE JAGDISH
              JATAV BE REDUCED BY 03 (THREE) STAGES FROM
              RS. 3880/- TO RS. 3625/- IN THE TIME SCALE OF
              PAY FOR A PERIOD OF 02 (TWO) YEARS. IT IS
              FURTHER      DIRECTED      THAT     NO.    932293950
              CONSTABLE JAGDISH JATAV WILL NOT EARN
              INCREMENTS 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."

7. Being aggrieved the petitioner preferred an appeal. The appellate

   authority by an order dated 29th February, 2008 by taking into

   consideration the entirety of the facts of the case, concluded that

   it did not find any mitigating circumstances to interfere with the

   order of penalty dated 19th December, 2007 passed by the

   disciplinary authority and having found the appeal devoid of

   merit, rejected the same.
                                    5




8. That a revisional application though filed by the petitioner was

   ultimately turned down by the revisional authority by its order

   dated 11th November, 2008.

9. Challenging the aforesaid orders, inter alia, including the enquiry

   proceedings the present writ application has been filed.

10.       Mr. Mahapatra learned Advocate representing the writ

   petitioner by referring to the complaint dated 4th July, 2007

   forming annexure to the memorandum of charge, says that it is

   on the basis of this particular document that the entire enquiry

   proceedings had been initiated.           He says that in order to

   establish   the   factum   of   theft,   it   was   necessary   for the

   respondents to prove the aforesaid letter.          The aforesaid letter

had only surfaced during the investigation and as such, the

same is required to be proved, before the same could be

considered by the disciplinary authority.

11. In support of his aforesaid contention that till such time a

document is proved the same cannot be relied on in course of

enquiry proceedings, he places reliance on a judgment delivered

by the Hon'ble Supreme Court in the case of Roop Singh Negi v.

Punjab National Bank and Ors., reported in (2009) 2 SCC

570.

12. He says that the charges leveled against the petitioner are

vague and on the basis of the aforesaid charges the petitioner

could not have been held guilty. Simply because the petitioner

had participated in the enquiry proceedings the same does not

improve the charges. In support of his aforesaid contention, he

places reliance on a judgment delivered by the Hon'ble Supreme

Court in the case of Sawai Singh v. State of Rajasthan,

reported in (1986) 3 SCC 454.

13. The enquiry officer did not conduct the enquiry in

accordance with the rules. Admittedly, in this case, the

petitioner did not produce any witness. As such, in terms of

Rule 36(18)(b), it was the obligation of the enquiry officer to put

general questions to the petitioner on the circumstances

appearing against him in the evidence, for the purpose of

enabling the enrolled members of the force, to explain any

circumstances appearing in the evidence against him. Non-

compliance of the aforesaid procedure is not a mere irregularity

the same goes to the very root of the matter and vitiates the

entire enquiry. In support of his aforesaid contention, he places

reliance on the judgment delivered by this Hon'ble Court in the

case of R.K. Sharma v. Union of India & Ors., reported in

(2011) 3 CAL LT 210.

14. It is the obligation of the enquiry officer to act freely and

fairly, whenever the enquiry officer deviates, the enquiry stands

vitiated. In support of his contention, he places reliance on

another judgment delivered by the Hon'ble Supreme Court in the

case of Narinder Mohan Arya v. United India Insurance Co.

Ltd. & Ors., reported in (2006) 4 SCC 713.

15. By drawing attention of this Hon'ble Court to the final

order passed by the disciplinary authority and the appellate

order passed by the appellate authority, he says that both the

aforesaid authorities committed procedural irregularity in taking

into consideration the evidence adduced by Shri H.C. Lamba

since, H.C. Lamba was not a named witness. The respondents

have taken into consideration his statements to fill up the lacuna

in the case, which is not permissible in terms of Rule 36 (16) of

the said Rules. The petitioner has not only been inflicted with a

punishment but had been held guilty of charges of negligence,

which would scar the petitioner for life. The respondents have

attached a stigma on the petitioner, without holding a proper

enquiry. The entire enquiry proceedings stand vitiated. The

order of punishment inflicted on the petitioner should be set

aside.

16. Per contra, Ms. Alam, learned Advocate representing the

respondents submits that there has been no procedural

irregularity in connection with the enquiry conducted by the

respondents. Admittedly, the petitioner was on duty when the

incident had taken place. Subsequent to such incident being

detected the same was reported by the ECL Authorities and a

G.D. Entry was also lodged on 4th July, 2007 by the CISF

personnel. The petitioner was charge-sheeted and was supplied

with not only, the statement and articles of charge but also list of

documents and the list of witnesses. Both the G.D. Entry as well

as complaint lodged by the ECL Authorities forms part of such

disclosure.

17. The petitioner had responded to the charge-sheet. The

response of the petitioner was duly taken into consideration by

the disciplinary authority, prior to the disciplinary authority

deciding whether or not to continue with the enquiry. A regular

enquiry was held against the petitioner. The petitioner was given

adequate opportunity to defend. The petitioner participated in

such enquiry and did not raise any issue as regards violation of

principles of natural justice. After conclusion of the enquiry, the

report of the enquiry officer was forwarded to the petitioner, for

the petitioner to respond to the same. By drawing attention of

this Court to the enquiry report, she says that the petitioner did

not disown the factum of his presence and also did not deny the

occurrence. The only defense that the incident may have taken

place earlier that to on the basis of an analogy that there were

rust marks on the locking device. The petitioner did not question

the jurisdiction or authority of the enquiry officer to adduce

evidence during the enquiry proceedings. Neither did he object to

the witness being examined. She says that the petitioner while

replying to the charge-sheet or while responding to the enquiry

report, did not question the charge-sheet and had never claimed

the charge-sheet to be vague. The aforesaid claim that the

charge-sheet is vague is an after thought.

18. By referring to the final order dated 19th December, 2007

she says that the petitioner had also cross-examined H.C. Lamba

and in course of such cross-examination the said witness

confirmed that the cut marks on both the locks "were fresh and

not rusting". The enquiry officer had conducted the enquiry as

per the procedure laid down in the said rules. Not only the

prosecution witness was examined in presence of the petitioner,

the statement of the prosecution witness, including his cross-

examination was also recorded in his presence. As such, it

cannot be said that there had been non-compliance of Rule

36(18)(b) of the said rules.

19. There are no procedural irregularities committed by the

disciplinary authority or by the appellate authority. The order

passed by the disciplinary authority is also not disproportionate

to the charges which have been proved and as such, the present

writ application deserves to be dismissed with costs.

20. Considered the submissions made by the learned

Advocates appeared for the respective parties and have

considered the materials on record. I find that the petitioner has

been charge-sheeted by a memorandum of charge dated 7th July,

2007. From the nature of charges leveled against the petitioner,

it would appear that notwithstanding the petitioner being posted

as a security personal to protect life and property, he failed to do

so, for which he has been charged with gross negligence,

carelessness and dereliction of duty, unbecoming of a member of

a disciplined force like CISF. It also appears that a distinct

incident of theft which occurred on the night of 3rd - 4th July,

2007 at the CHP Interim Crusher, when the petitioner was on

duty, had been highlighted in the charge-sheet, wherein the

petitioner has been charged of having failed to protect

government property for which he was deployed. From the

aforesaid charge-sheet and the documents it would appear that

the duty roaster for the shift duty as on 3rd July, 2007 has been

annexed. Not only the name of the petitioner, the place of

posting, but the duty post of the petitioner also appears recorded

on such roaster. I find that the factum of the petitioner being on

duty at the relevant date has not been denied.

21. Record reveals that the writ petitioner had responded to

the charge-sheet and in his response he had, inter alia, claimed

as follows:-

"the petitioner feels that no occurrence in the night of 3rd - 4th July, 2007 took place in CHP II area which is mentioned in annexure 1."

22. The aforesaid would demonstrate that the petitioner could

not assert with conviction that no theft had taken place on the

night of 3rd - 4th July, 2007. It would also appear from the

aforesaid reply that the petitioner had claimed that no FIR has

been lodged with regard to the aforesaid incident. Incidentally,

however, one of the annexures to the memorandum of charge is

the G.D. extract, which appears to have been signed by the

Deputy Commandant and such G.D. extract records the factum

of theft.

23. Record reveals that the disciplinary authority after taking

into consideration the reply filed by the petitioner had proposed

to proceed with the enquiry, by appointing an enquiry officer to

enquire into the charges levelled against the petitioner. The

petitioner appears to have participated in such enquiry without

raising any objection. In course of such enquiry the petitioner did

not claim there had been violation of the principles of natural

justice or infraction of any rule. Although Mr. Mahapatra learned

Advocate representing the petitioner has claimed that the

enquiry officer committed irregularity in procedure, in permitting

H.C. Lamba to be examined, the petitioner however, did not

object to the said H.C. Lamba being examined and on the

contrary, had duly cross-examined him. I find that it is well-

within domain of the enquiry officer to examine any person as

witness if he is of the opinion that production of such evidence or

witness is necessary in the interest of justice. The relevant

portion of Rule 36(16) of the said Rules is extracted herein below:

"Rule 36(16) If it shall appear necessary before the close of the case on behalf of the Disciplinary Authority, the Inquiring Authority may, in its discretion, allow the Presenting Officer to produce evidence not included in the list given to the enrolled member of the Force or may itself call for new evidence or recall and re- examine any witness and in such case the enrolled member of the Force shall be entitled to have, if he demands it, a copy of the list of further evidence proposed to be produced and an adjournment of the enquiry for three clear days before the production of such new evidence, exclusive of the day of adjournments and the day to which the enquiry is adjourned. The Inquiring Authority shall give the enrolled member of the Force an opportunity of inspecting such documents before they are taken on the record. The Inquiring Authority may also allow the enrolled member of the Force to produce new evidence, if it is of the opinion that the production of such evidence is necessary, in the interests of justice."

24. Although Mr. Mahapatra, has attempted to contend that

the enquiry officer is precluded from calling any witness to fill up

any gap in the evidence or to cover up inherent lacuna or defect,

I am of the view that by examining H.C. Lamba who had in fact,

visited the spot, and confirmed theft of computer and its

accessories, the enquiry officer did not commit any irregularity in

procedure. I am afraid that the objection raised by Mr.

Mahapatra cannot be sustained. The judgment relied on by Mr.

Mahapatra in this case of R.K. Sharma (supra) does not assist

the petitioner. The aforesaid judgment is distinguishable on

facts. In any event, the Hon'ble Court in paragraph 17 to 19 has

recognized the jurisdiction and or authority of the enquiry officer

to permit evidence not included in the list. The relevant portion

of the aforesaid judgment is set out herein below.

"17. Admittedly, the disciplinary authority did not appoint any presenting officer and counsel for the petitioner has submitted that the lapse has vitiated the whole inquiry. According to counsel for the respondents appointment of a presenting officer was not a mandatory requirement of law. The inquiry was conducted in terms of the provisions of rule 36 of the Central Industrial Security Force Rules, 2001.

18. Clause (c) of sub-rule (5) of Rule 36 provides as follows:

"(c) Where the Disciplinary Authority itself inquiries into any article of charge or appoints an Inquiring Authority for holding any enquiry into such charge, it may, by an order, appoint a member of the Force to be known as the 'Presenting Officer' to present on its behalf the case in support of the articles of charge."

Clause (b) of sub-rule (10) of Rule 36, provides as follows:

"(b) The Inquiring Authority shall, if the enrolled member of the Force fails to appear within the specified time or refuses or omits to plead, require the Presenting Officer to produce the evidence by which he proposes to prove the articles of charge, and shall adjourn the case to a later date, not exceeding thirty days, after recording an

order that the enrolled member of the Force may, for the purpose of preparing his defence--

.............................................................................. ..............."

Sub-rule (15) of Rule 36 provides as follows:

"(15) On the date fixed for the inquiry, the oral and documentary evidence by which the articles of charge are proposed to be proved shall be produced by or on behalf of the Disciplinary Authority. The witnesses shall be examined by or on behalf of the Presenting Officer and may be cross-examined by or on behalf of the enrolled member of the Force. The Presenting Officer shall be entitled to re-examine the witnesses on any points on which they have been cross examined, but not on any new matter, without the leave of the Inquiring Authority. The Inquiring Authority may also put such questions to the witnesses as it thinks fit."

19. While sub-rule (16) of Rule 36 provides that if it shall appear necessary before the close of the case on behalf of the disciplinary authority, the inquiring authority may, in his discretion, allow the presenting officer to produce evidence not included in the list given to the enrolled member of the Force, clause (c) of sub- rule (18) of the rule provides that the inquiring authority may, after the completion of the production of evidence, hear the presenting officer, if any, appointed and the enrolled member of the Force, or permit them to file written briefs of their respective cases, if they so desire."

25. Mr. Mahapatra, has also, inter alia, claimed since the

petitioner has not adduced any evidence, and it was the duty and

obligation of the enquiry officer to put general questions to the

petitioner on the circumstances appearing against him in the

evidence for the purpose of enabling the petitioner to explain the

circumstances appearing in the evidence against him and the

enquiry officer having not done so, the enquiry proceedings stand

vitiated. I, however, find from the final order passed by the

disciplinary authority that the enquiry officer after recording the

statement of the prosecution witness, had also examined the

petitioner. Such fact would corroborate from relevant portion of

Paragraph 2 of the final order which is extracted herein below.

"2............................................................................ .........................The Enquiry Officer has conducted the enquiry as per laid down procedures and CISF Rules. The statements of all Prosecution Witnesses (PWs) have been recorded in presence of the charged official and exhibits produced thereon. Charged official was afforded all reasonable opportunity to defend his case either by himself or by appointing any serving member of the Force as his Defence Assistant. But the charge official neither submitted the name of Defence Assistant nor Defence Witness. The Enquiry Officer has examined the prosecution exhibits produced by the PWs. After recording the statements of PWs and examination of the charged official, the Presenting Officer submitted his written brief and handed over to the Enquiry Officer. The copy of PO's brief note was supplied to the charged

official on 24.09.07. Accordingly, the charged official submitted his reply on 29.09.07 to the Enquiry Officer. On receipt of reply of the PO's brief note from the charged official, the Enquiry Officer submitted his Enquiry Report to the Disciplinary Authority holding the charge as proved."

The aforesaid objection raised by Mr. Mahapatra, thus, fails.

26. Although Mr. Mahapatra has, inter alia, argued that the

prosecution was required to prove the documents and the

prosecution having not proved the complaint lodged by Eastern

Coalfields Limited, the proceedings stand vitiated. I find that the

prosecution has been able to prove most of the documents

including the G.D. Entry. The judgment delivered by the Hon'ble

Court in the case of Narinder Mohan Arya (supra) is also

distinguishable, the same does not assist the petitioner.

Similarly, the judgment delivered by the Hon'ble Supreme Court

in the case of Roop Singh Negi (supra) also does not assist the

petitioner.

27. Admittedly, in this case the petitioner has not disputed

that he was on duty on the night shift of 3/4th July, 2007. In the

instant case, the factum of the lock being cut open, is also not in

dispute and the petitioner with conviction could not disclaim that

there had been no theft on the night shift of 3/4th July, 2007.

The complaint lodged by Eastern Coalfield Limited is not the only

document based on which the enquiry officer had reached its

findings. H. C. Lamba who visited the spot had confirmed the

theft. As such, the contention of Mr. Mahapatra that the factum

of theft had not been proved, cannot be sustained.

28. The next point argued by Mr. Mahapatra is that the

charge-sheet is vague. I find that the petitioner in reply to the

charge-sheet had never raised such an issue. Although by relying

on the judgment delivered by the Hon'ble Supreme Court in the

case of Sawai Singh (supra) it is claimed that mere participation

in enquiry proceeding does not improve the charges if the same

is vague, I am of the view that such judgment does not assist the

petitioner. The petitioner had never questioned the charge-sheet

and had never claimed the same to be vague either while

responding to the charge-sheet or in course of the enquiry. I am

afraid that the aforesaid contention raised by Mr. Mahapatra is

by way of an afterthought and does not assist the petitioner at

all.

29. I find that the enquiry officer upon detailed discussions by

considering the materials on record all of which were made

available to the petitioner, had arrived at a finding that the

charges have been proved against the petitioner. The petitioner

had duly responded to the enquiry report. The disciplinary

authority upon taking into consideration all relevant factors,

inter alia, including the charge-sheet, reply by the petitioner, the

enquiry proceedings, the response to the enquiry report by the

petitioner, having arrived at the finding to hold the petitioner

guilty of the charges, had, inter alia, inflicted a punishment of

reduction of pay of the petitioner by 3 stages from Rs. 3880/- to

Rs. 3625/-. Although the petitioner had preferred an appeal, the

appellate authority having found no mitigating circumstances to

interfere with the order of the penalty, passed by the disciplinary

authority, rejected the appeal as being devoid of merit. The

revisional application filed by the petitioner met with the same

fate.

30. I do not find that the order directing the reduction of pay of

the petitioner by 3 stages in the time scale of pay for a period of 2

years, with a further direction that he shall not earn increments

of pay during the period of reduction and that on expiry of the

period, the reduction will have the effect of postponing his future

increments of pay, does not appear to be shocking or

disproportionate. It appears that the disciplinary authority who

is invested with the discretion to impose appropriate punishment

keeping in view the magnitude and gravity of the misconduct,

had imposed the aforesaid penalty on the petitioner, the

appellate authority also did not interfere with the same.

31. I do not find that the order of punishment to be shockingly

disproportionate, for this Court to interfere with the same. If

CISF personnel who is entrusted with the duty of security is

permitted to disown his failure, despite committing an act of

gross dereliction of duty, and is permitted to go scot-free, then in

my opinion the same would tantamount to failure of justice. I do

not find any illegality, far less jurisdictional error, committed by

the disciplinary authority, either in holding the petitioner guilty

or in confirming the charges and in inflicting punishment on the

petitioner. I also do not find any procedural irregularity

committed by the enquiry officer in conducting the enquiry

proceedings or the appellate authority in rejecting the appeal.

32. The writ application being WPA No. 7660 of 2009 fails and

is accordingly, dismissed.

33. There shall be no order as to costs.

34. Urgent photostat certified copy of this order, if applied for,

be given to the parties on priority basis upon completion of

requisite formalities.

(Raja Basu Chowdhury, J.)