Sri Shiv Nandan Mondal vs The Union Of India & Ors
2023 Latest Caselaw 6615 Cal

                    IN THE HIGH COURT AT CALCUTTA
                   CONSTITUTIONAL WRIT JURISDICTION
                                  (Appellate Side)


Present:     THE HON'BLE JUSTICE RAJARSHI BHARADWAJ


                                           W.P.A 19518 of 2003


                                           Reserved on  : 24.07.2023
                                           Pronounced on: 29.09.2023


     Sri Shiv Nandan Mondal
                                                                        ...Petitioner

                                         -Vs-


     The Union of India & Ors.                                      ...Respondents

Present:-

Mr. K.B.S. Mahapatra ... for the Petitioner

Mr. Pulakesh Bajpayee ...for the Respondents

Rajarshi Bharadwaj, J:

1. The instant writ application has been preferred challenging, inter alia ,

final order dated January 21,2002 imposing punishment of reduction of pay

by two stages from Rs.4,700/- to Rs.4,500/- for a period of three years and

postponing future increments of pay against one Shiv Nandan Mandal herein

the writ petitioner, subsequent final order dated May 25/27, 2002 enhancing

earlier punishment to that of reduction of pay to the lowest pay for three years

and postponing future increments of pay and ensuing all such orders being

passed by Commandant CISF Unit Oil, Duliajan herein respondent No. 5.

2. The facts of the case are that the petitioner joined the Central Industrial

Security Force (CISF) Department on April 25, 1983 and on June 12, 2001, he

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was posted to carry out duties in the capacity of Post Commander at H.N.W

location drilling point Duliajan. His duty consisted of controlling and

supervising the constables posted at the main gate and to check the entry of

any person or vehicles.

3. On 12.06.2001, a truck No. AS-25-6827 loaded with picket bricks with

valid challan No.27 arrived at HNW gate for unloading the same inside HNW

location. The writ petitioner detained the truck for more than one hour on the

pretext that bricks were less in number as per challan and not stacked

properly. He demanded Rs 1500/- from the contractors for the release of the

truck. When they expressed their inability to pay such amount, he reduced

the amount to Rs 1000/- and directed them to pay the amount the next day.

4. A memorandum of charges dated July 10, 2001 was prepared by

respondent No.5 proposing to hold an enquiry against the petitioner on the

charges of "Gross misconduct, indiscipline, wilful breach of Rules & Regulations

and unbecoming of a member of an Armed Force in that ASI/Exe S. N. Mondal of

field Sector, CISF Unit OIL. Duliajan while deployed as Post Commander for

duties at HNW location (Outpost of Field Sector) demanded Rs.1500/- as illegal

gratification from Contractor's Supervisors namely Dinesh Gogoi and Munna

Boral on 12.06.2001 by means of not allowing and unnecessarily detaining

truck No.AS-25-6827 loaded with picket bricks with valid challan"

5. The petitioner denied the allegations of the charges against him and

thereafter a Departmental Enquiry was conducted. During the course of

enquiry, depositions of 07 (seven) prosecution witnesses and 03 (three)

defense witnesses were recorded. The enquiry led to a Final Order No. V-

15014/Maj-10/OIL(D)/SNM/Disc/2002-533 passed by respondent No.5 dated

January 21,2002 imposing punishment of "Reduction of pay by two stages

from Rs. 4700/- to Rs. 4500/- in the time of pay for a period of 3 years with

immediate effect. It is further directed that he will not earn the 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."

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6. The petitioner was assessed as an officer with "BELOW AVERAGE"

performance in the annual confidentiality report for the year of 2001 covering

aspects of his work and conduct including performance, potentiality and basic

qualities during pendency of proceedings vide order dated January 21, 2002.

7. The petitioner was issued a notice on April 27/29, 2002 under exercise

of Rule 54(b) of CISF Rules 2001 to show cause as to why the said penalty

should not be enhanced. By representation dated May 07, 2002, the petitioner

provided sufficient cause that the penalty should not be enhanced.

8. In an appellate order dated 25/27 May 2002 issued by Deputy Inspector

General CISF, Duliajan herein respondent No. 4, the penalty against the

petitioner was enhanced as proposed in the purported show cause notice. The

penalty was enhanced to that of "reduction of pay in respect of no. 834341713

ASI/Exe S.N Mandal to the lowest stage (i.e., from Rs. 4700/- to Rs. 4000/-) in

the time scale of pay Rs.4000/-- 100-6000/- for a period of 03(three) years with

immediate effect. It is further directed that he will not earn the 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."

9. The petitioner aggrieved by the appellate order enhancing penalty,

preferred further appeal dated September 19, 2002 before Inspector General

CISF, Kolkata, herein respondent No. 3 and later submitted a Mercy Petition

before Director General CISF herein respondent No.2 to set aside the

punishment awarded and take a judicious overall consideration into the

matter afresh. The said petition was rejected. Thus, aggrieved by the preceding

orders of the respondent authority, the present writ application lies.

10. It has been submitted by the Learned Counsel for the writ petitioner

that there is no report from the OIL Management or entry in the G.D with the

CISF or with the police relating to the alleged illegal gratification of money by

the petitioner. The Enquiry Officer solely relied on the written statements of

the complainants namely one Dinesh Boral and Birbar Boral for alleged

demand of bribe made during the preliminary enquiry and the evidence

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advanced by such defense witnesses were wrongfully not taken into

consideration.

11. The adverse entry in favour of the petitioner in the annual confidential

report before finalization of case is biased and unreasonable on part of the

respondent authority. By the successive rejection of appeals, review petition

and mercy petition whimsically, arbitrarily without appropriately considering

representation of the petitioner on multiple occasions, the respondent

authority has confused the matter so as to deny relief to the petitioner.

12. The Learned Counsel for respondent authority submits that the final

order awarding enhanced punishment to the petitioner is the result of

domestic enquiry in due compliance of the CISF Rules and Regulations.

During the course of enquiry, the petitioner denied to have any defense

assistant rather he defended his case himself. As per his request, three

witnesses were called by enquiry officer for giving evidence as defense witness.

However, the defense witnesses expressed that they had no knowledge about

the levelled charges as neither was present at the time of occurrence. The fact

of demanding illegal gratification by the petitioner is well established from the

corroborative statements of the prosecution witnesses which were recorded in

his presence and he availed the opportunity to cross-examine each of the

witnesses.

13. It is further submitted that the petitioner did not submit any new facts

which would warrant interference with the impugned orders of punishment

and in order to save himself proceeded to pressurize one Munna Boral,

prosecution witness to give deposition in his favour. The respondent has the

authority and discretion conferred by the state to reduce and/or enhance the

minor/major punishment inflicted upon and in the instant case, such

enhancement of punishment is backed by reason.

14. Having heard the Learned Counsel for the parties and on perusal of

records, this Court finds that the disciplinary proceedings instituted against

the writ petitioner is maintainable in law. The petitioner has failed to prove his

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innocence as well as rebut the charges levelled against him and is correctly

found to be guilty of illegal gratification of money by the respondent authority.

There has been no conclusive confirmation on part of the defense witnesses

produced during the enquiry proceedings that the petitioner did not demand

the alleged bribe and the evidence adduced by the petitioner fails to prove that

the charges levelled against him are incorrect. The entry made in the material

register as to the timings of entry and exit of such truck further substantiates

the statements of the prosecution witnesses that the petitioner had detained

such truck for more than one hour with malafide intention. Further, the

action of the petitioner to invite a prosecution witness to lunch who had

earlier deposed against him with a view to obtain favorable admittance and

suppress the fact of demanding illegal gratification proves the guilty mind of

the petitioner.

15. The order of enhanced punishment in the present case is after

consideration of prosecution case, defense case, case files, inquiry report and

other related documents held on record. The misdemeanor of the petitioner

has been proved beyond reasonable doubt. In such view, the writ application

being WPA 19518 of 2003 fails as the application lacks merit and the same is

dismissed accordingly.

16. There shall, however, be no order as to costs. Urgent Photostat certified

copy of this judgment, if applied for, be given to the parties, as expeditiously

as possible, upon compliance with the necessary formalities in this regard.

(RAJARSHI BHARADWAJ, J)

Kolkata 29.09.2023 PA (BS)