Calcutta High Court (Appellete Side)
Rama Prosad Pan vs Union Of India & Ors on 7 October, 2024
Author: Hiranmay Bhattacharyya
Bench: Hiranmay Bhattacharyya
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Before:
The Hon'ble Justice Hiranmay Bhattacharyya
W.P.A. 382 of 2011
with
IA No. CAN 4 of 2021
Rama Prosad Pan
versus
Union of India & Ors.
For the Petitioner : Mr. Sujash Ghosh Dastidar
Mrs. Maheswari Sharma
Mrs. Tulika Banerjee
Mrs. Sayori Mukherjee
Ms. Sankari Roy .......advocates
For the Union of India : Mr. Pulakesh Bajpayee
Ms. Kausiki Bose ... advocates
Reserved on : 18.07.2024
Judgment on : 07.10.2024
Hiranmay Bhattacharyya, J.:-
1. The writ petitioner has prayed for setting aside the enquiry report, the final
order of punishment of the disciplinary authority, the appellate order and
the revisional order in this writ petition. The disciplinary authority passed
an order of dismissal of the petitioner from service. The petitioner has
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prayed for setting aside of the order of dismissal from service and for
reinstatement in service with back wages.
2. Petitioner joined as a Constable (GD) in the year 1988 and while he was
posted at ISP Unit, Burnpur he was placed under suspension. The petitioner
was served with a memorandum of charges dated 12.08.2008 containing
four Article of Charges. The charges levelled against the petitioner are as
follows.
"
I. On Sainik Sammelan for the month of August, 2008 at recreation hall,
the petitioner came up with certain grievances regarding proposed gift
of wrist watch by the ISP Burnpur management, encashment of
compensatory leave for the period from January 2008 and June 2008
and entry of contractor labourers through new gate. It was contented
that in spite of the DIG giving suitable responses to the grievances, the
petitioner indulged in undesired arguments with the DIG in loud voice
and indecent manner. This act amounted to insubordination and
misbehavior with the senior officer which amounts to gross misconduct,
indiscipline and unbecoming of a member of the disciplined force like
CISF.
II. While on patrolling duty at Modernization site with rifle and
ammunitions on 22.07.2008, the petitioner left the area of his duty
unguarded and went to a village which is not within his duty
jurisdiction of CISF, where are truck with few criminals were present.
This amounted to abandonment of his duty for making unauthorized
and illegal contact with criminals for wrongful gains.
III. While on patrolling duty on 22.07.2008, the petitioner brought with him
a mobile phone which is against the office orders. Therefore, the
petitioner has exhibited an act of gross misconduct and indiscipline
which is unbecoming of a member of the CISF.
IV. The petitioner had inculcated and incorrigible habit of committing
offence and despite being charge sheeted and awarded with several
punishments for his act of various misconduct and discipline he failed
to improve upon his conduct and has proved himself to be a habitual
offender which tantamount to gross misconduct and indiscipline which
is unbecoming of a member of CISF."
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3. Petitioner submitted a representation against the said charge memo denying
the charges levelled against him. An Enquiry Officer and Presenting Officer
were appointed. After completion of departmental enquiry the Enquiry
Officer submitted his report before the disciplinary authority on 23.09.2008
holding that all the charges against the petitioner have been proved.
Petitioner submitted his representation against the enquiry report and the
disciplinary authority after considering the enquiry report and the materials
on record, which awarded the penalty of compulsory retirement from service
with pension and gratuity admissible to him on the date of compulsory
retirement from service in terms of Rule 40 of CCS Pension Rules. Being
aggrieved by the aforesaid penalty order, the petitioner, filed an appeal
petition and the appellate authority by an Order dated 30.12.2008 rejected
the same. Thereafter, the petitioner filed a revision petition dated
28.02.2009 which was disposed of by the revisional authority thereby
observing that there are some irregularities in conducting the disciplinary
enquiry by the Enquiry Officer and there are also technical defects at the
appellate stage. The revisional authority directed reinstatement of the
petitioner in service by setting aside the enquiry report the penalty order
and the appellate order and directed a de novo enquiry to be conducted from
the stage of appointment of Enquiry Officer and Presenting Officer by giving
reasonable opportunity to the petitioner.
4. Thereafter, the petitioner was reinstated in service on 03.06.2009. Enquiry
Officer and Presenting Officer were appointed to conduct de novo enquiry
into the charges framed against the petitioner. The Enquiry Officer after
conducting the departmental enquiry submitted the Enquiry Report dated
18.01.2010 before the disciplinary authority observing that the charges
against the petitioner are proved.
5. Petitioner submitted a written statement of defense against the enquiry
report. The disciplinary authority after considering the enquiry report, the
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written statement of defence submitted by the petitioner and other relevant
records awarded the punishment of dismissal from service.
6. Being aggrieved by the said penalty order, the petitioner submitted an
appeal petition which was rejected by the appellate authority by order dated
05.06.2010.
7. Petitioner submitted a revision petition before the revisional authority and
such authority rejected the revision petition upon holding that the same is
devoid of any merit.
8. The learned Advocate appearing for the petitioner contended that the
departmental enquiry is vitiated as the same was conducted in violation of
Sub-Rule 15, 16 and 18 (b)of Rule 36 of the Central Industrial Security
Force Rules, 2001 (for short the "2001 Rules"). In support of such
contention the learned advocate for the petitioner placed reliance on the
decisions in the case of State of Maharashtra vs. Wasudeo Madhukarrao
Pande reported at 2021 Supreme (Bom) 1185 and Ram Sahodar
Rajwade vs. The Director-General, Central Industrial Security Force
and Others reported at 2022 Supreme (Bom) 842.
9. The learned advocate appearing for the respondent seriously disputed the
submissions made by the learned advocate for the petitioner. He contended
that the departmental enquiry was conducted in accordance with the
principles of natural justice. He further contended that such proceedings
were conducted strictly in accordance with the 2001 Rules. He further
submitted that the Enquiry Officer in his report held that the charges
against the petitioners are proved. Considering the gravity of the charges
proved, the disciplinary authority inflicted the punishment of dismissal from
the service. The appellate authority after considering the appeal petition has
rejected the same by a speaking order. The revisional authority also held
that the revision petition is devoid of any merit and accordingly rejected the
same.
10. Heard the learned advocates for the parties and perused the materials
placed.
11. Record reveals that the revisional authority on an earlier occasion observed
that there are some irregularities in conducting the departmental enquiry by
the Enquiry Officer and there were certain technical defects even at the
appellate stage. The revisional authority accordingly directed reinstatement
of the petitioner in service after setting aside the Enquiry Report dated
23.09.2008, Penalty Order of the disciplinary authority dated 17.10.2008
and the Appellate Order dated 30.12.2008. The revisional authority further
directed a de novo enquiry to be conducted from the stage of appointment of
Enquiry Officer and the Presenting Officer.
12. Thereafter, the de novo enquiry proceedings started with the appointment of
Enquiry Officer and Presenting Officer to enquire into the charges framed
against the petitioner. The Enquiry Officer submitted his report dated
18.01.2010 before the disciplinary authority. The petitioner was given
opportunity to submit written statement of defence against the enquiry
report. Petitioner duly submitted his written statement against the enquiry
report. The disciplinary authority after considering the enquiry report, the
written statement of defence submitted by the petitioner as well as other
materials on record passed the final order of penalty.
13. Petitioner was given opportunity to cross-examine the PWs. Petitioner also
examined himself when the petitioner was asked as to whether he wants to
produce any defence witness, he replied in the negative. The written brief of
the Presenting Officer was also forwarded to the petitioner. Petitioner also
filed his representation against the Enquiry Report. After going through the
enquiry report this Court finds that the departmental enquiry was
conducted in accordance with the principles of natural justice. The
disciplinary authority took into consideration the written statement of
defence filed by the petitioner against the enquiry report and passed the
Final order assigning cogent reasons in support of the ultimate conclusion.
It further appears from the order of the disciplinary authority that
considering the gravity of the charges proved against the petitioner, the
order of penalty of dismissal from service was passed.
14. The appellate authority also took into consideration the grounds taken by
the petitioner in the appeal petition and passed a detailed and speaking
order. The appellate authority held the penalty of dismissal from service
awarded to the petitioner is well commensurate with the gravity of the
misconduct.
15. The petitioner, thereafter, preferred a revision petition. After going through
of the order of the revisional authority this Court finds that each and every
ground raised by the petitioner in the revision petition was considered and
the same were dealt with by passing a reasoned order. The revisional
authority further observed that the past record of 15 punishments is part of
the charge which indicates that despite giving several chances to improve,
the petitioner preferred to remain an undisciplined member of the Force.
16. At this stage it would be relevant to take note of the decision of the Hon'ble
Supreme Court in Union of India vs. P. Gunasekaran reported at (2015) 2
SCC 610 wherein the Hon'ble Supreme Court laid down the broad
parameters within which the High Court ought to exercise its powers under
Article 226/227 of the Constitution of India in matters relating to
disciplinary proceedings. The Hon'ble Supreme Court held thus-
"12. ....The High Court, in exercise of its powers under Articles 226/227 of the
Constitution of India, shall not venture into re-appreciation of the evidence. The
High Court can only see whether:
(a) the enquiry is held by a competent authority;
(b) the enquiry is held according to the procedure prescribed in that behalf;
(c) there is violation of the principles of natural justice in conducting the
proceedings;
(d) the authorities have disabled themselves from reaching a fair conclusion by
some considerations extraneous to the evidence and merits of the case;
(e) the authorities have allowed themselves to be influenced by irrelevant or
extraneous considerations;
(f) the conclusion, on the very face of it, is so wholly arbitrary and capricious
that no reasonable person could ever have arrived at such conclusion;
(g) the disciplinary authority had erroneously failed to admit the admissible
and material evidence;
(h) the disciplinary authority had erroneously admitted inadmissible evidence
which influenced the finding;
(i) the finding of fact is based on no evidence.
13. Under Articles 226/227 of the Constitution of India, the High Court shall
not.
(i) re-appreciate the evidence;
(ii) interfere with the conclusions in the enquiry, in case the same has been
conducted in accordance with law;
(iii) go into the adequacy of the evidence;
(iv) go into the reliability of the evidence;
(v) interfere, if there be some legal evidence on which findings can be based.
(vi) correct the error of fact however grave it may appear to be;
(vii)go into the proportionality of punishment unless it shocks its conscience."
17. It is a settled proposition of law that the scope of interference with the order
passed by the authorities in disciplinary matters is very limited. This Court
has to consider whether the case on hand falls within the exceptions carved
out in P. Gunasekaran (supra).
18. This Court has already observed that the departmental enquiry was held in
accordance with the principles of natural justice. This Court has to now
consider the contention of the petitioner that the departmental enquiry was
held in violation of the procedure laid down under the 2001 Rules.
19. The learned Advocate appearing for the petitioner would contend that the
Presenting Officer cross examined the witnesses produced on behalf of the
disciplinary authority in violation of Rule 36 (15) of the 2001 Rules. He
further submitted that the Presenting Officer put questions to the witness of
the management in order to fill up the gap in the evidence in violation of
Rule 36 (16) of the 2001 Rules.
20. After going through the order of the revisional authority this Court finds that
more or less similar nature of objection was raised by the petitioner before
the revisional authority and such authority after considering the materials
on record arrived at a factual finding that neither the Presenting Officer has
cross examined the witnesses of the management nor asked them any
leading questions. It was further observed in the said order that during the
course of de novo enquiry the Presenting Officer raised queries in the
presence of the petitioner which is clarificatory in nature. It was further
observed that the petitioner did not raise any objection when the Presenting
Officer raised such queries.
21. This Court has also gone through the portion of the evidence placed by the
learned advocate for the petitioner and is of the considered view that the
Presenting Officer has not cross examined the witnesses of the management.
The learned advocate for the petitioner in course of his argument could not
satisfy this Court that the Presenting Officer tried to fill up any gap in the
evidence. This Court is, therefore, not inclined to accept the contention of
the learned Advocate for the petitioner that the departmental enquiry was
conducted in violation of Sub-Rule 15 and 16 of Rule 36 of the 2001 Rules.
22. The learned Advocate for the petitioner would further contend that the
inquiry authority did not put any question to the petitioner on the
circumstances appearing against him in the evidence as per the mandate of
Sub Rule 18(b) of Rule 36 of 2001 Rules. In order to decide the said issue it
would be relevant to take note of Sub Rule 18(b) of Rule 36 of the 2001
Rules which is extracted hereinafter.
"18(a) ....................
(b) The inquiring authority may, after the enrolled member of the Force
closes, his case, and shail, if the enrolled' member of the Force has not
examined himself, generally question him on the circumstances
appearing against him in the evidence for the purpose of enabling the
enrolled member of the Force to explain any circumstances appearing in
the evidence against him.
(c) .............
(d) ..............
(e) ............."
23. On a plain reading of the aforesaid Sub Rule this Court holds that the same
shall come into play when the enrolled member of the Force has not
examined himself.
24. It is not the case of the petitioner that he has not examined himself. Record
reveals that the petitioner examined himself in the departmental enquiry.
This Court is, therefore, of the considered view that Sub-Rule 18(b) of Rule
36 of the 2001 Rules cannot come to the aid of the petitioner.
25. That apart, the learned advocate for the petitioner could not demonstrate
that the de novo enquiry was conducted in violation of the directions passed
by the revisional authority while directing reinstatement of the petitioner.
Therefore, the decision of the Hon'ble Supreme Court in Govt. of A.P and
Others vs. Gudepu Sailoo and Others reported at (2000) 4 SCC 625 also
cannot come to the aid of the petitioner in the case on hand.
26. The order of the revisional authority is a speaking order. The same does not
suffer from any infirmity warranting interference under Article 226 of the
Constitution of India.
27. There is, however, no quarrel to the proposition of law laid down in Ram
Sahodar Rajwade (supra) that, if the enrolled member of the Force had not
examined himself in defence, it was the mandatory duty of the Enquiry
Officer to put all such circumstances appearing in the evidence against him
not only in terms of the mandate of the statute but also in compliance with
the principles of natural justice. The said decision cannot come to the aid of
the petitioner as it is not the case of the petitioner that he had not examined
himself in defence.
28. In Wasudeo Madhukarrao Pande (supra) the delinquent therein also did
not examine himself. The said decision being distinguishable on facts
cannot be applied to the case on hand.
29. For all the reasons as aforesaid the writ petition stands dismissed. The
application also stands disposed of. There shall be, however, no order as to
costs.
30. Urgent Photostat certified copies, if applied for, be supplied to the parties
upon compliance of all formalities.
(HIRANMAY BHATTACHARYYA, J.)
(P.A.- Sanchita, Rinki)
