Delhi High Court

Randhir Singh vs Central Industrial Security ... on 22 December, 2011

Author: Anil Kumar

*               IN THE HIGH COURT OF DELHI AT NEW DELHI

+                              WP(C) No.7716/2011

%                         Date of Decision: 22.12.2011

Randhir Singh                                               .... Petitioner

                       Through Mr.Subhashish Mohanty, Advocate.

                                   Versus


Central Industrial Security Force & Anr.                 .... Respondents

                       Through Mr.Jatan Singh, Central Government
                               Standing Counsel.

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MS. JUSTICE INDERMEET KAUR


ANIL KUMAR, J.

CM No.17479/2011

Allowed subject to all just exceptions.

WP(C) No.7716/2011

1. The petitioner has challenged the order dated 15th February, 2006

and order dated 30th June, 2007 imposing major penalty on the

petitioner of "reduction of pay by three stages from Rs.3800 to 3575/-

in the time scale of pay of Rs.3050-75-3950-80-4590/- for a period of 2

years with further directions 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."

2. The petitioner was appointed as a constable in Central Industrial

Security Force on 28th June, 1988 and was on deputation with Delhi

Administration Police, New Delhi on September, 2001. The petitioner

contended that Central Industrial Security Force is under the Ministry

of Home Affairs having its headquarter at New Delhi and Deputy

Inspector General is one of the subordinate officers and he was the

appellate authority of the petitioner.

3. According to the allegations of the petitioner he had underwent

treatment from 20th May, 2004 upto 23rd March, 2005 for multiple

diseases in Central Government Health Scheme Dispensary, Kingsway

Camp, New Delhi. The petitioner had applied for leave under Central

Civil Service (Medical Attendance) Rules, 1944 on account of his various

ailments. He also produced medical certificates issued by

doctor/medical attendants for grant of leave. The petitioner was

declared fit by the doctors to assume duty and thereafter the petitioner

was repatriated to his parent department by movement order dated 23rd

March, 2005 from Delhi Police and he joined the duty with Central

Industrial Security Force, Headquarter on 24th March, 2005.

4. On repatriation to the Central Industrial Security Force petitioner

was posted to F.B.P., Farakka. The petitioner was issued a

memorandum of charge dated 14th June, 2005 framing three Article of

Charges for the alleged misconduct and indiscipline on the part of the

petitioner. According to the article of charge issued against the

petitioner he was relieved from Delhi Armed Police with effect from 28th

May, 2004 and he was to report to his parent department, however, he

remained absent unauthorisedly for 299 days from 29th May, 2004 upto

23rd March, 205 without any intimation to the respondents or

permission from the competent authority and thus committed a gross

misconduct and an act of indiscipline. The other article of charge

against the petitioner was that with effect from 29th March, 2005 when

he was relieved from CISF Unit, Farakka after availing the eligible

joining time he was to report to the Unit on 11th April, 2005 but he

failed to do so and reported to the Unit after one day. The third charge

made against the petitioner was that he submitted medical certificates

bearing No.205478 dated nil, No.359919 dated nil, No.359920 dated

nil, No.359921 dated nil, No.359922 dated nil and No.96817 dated 23rd

March, 2005 to cover up his prolonged unauthorized absence which

certificates were manipulated by him and this amounted to gross

misconduct and indiscipline on his part.

5. The petitioner denied the charges made against him. However, the

disciplinary authority proposed a departmental enquiry under Rule 36

of CISF Rules, 2001. The petitioner objected to conduct of departmental

enquiry by the respondents and relied on Rule 41 of CISF Rules, 2001

and contended that the disciplinary proceedings should have been

commenced and concluded by Delhi Police and not by the respondents.

Rule 41 of CISF Rules, 2001 is reproduced for the sake of reference

which as under:

"Rule 41- Provision regarding enrolled member of the Force, lent to State Government etc. -

(1) Where the services of an enrolled member of the Force and lent to a State Government or other authority herein after in this rules referred to as "borrowing authority", the borrowing authority shall have the powers of the appointing authority for the purpose of placing such member of the Force under suspension and of the Disciplinary Authority for the purpose of conducting a disciplinary proceedings against him."

6. The respondents, however, conducted the disciplinary

proceedings and enquiry officer after examining the witnesses and the

documents produced before him and considering the statements of the

witnesses and the petitioner submitted the report on 18th January,

2006 holding that the article of charge 1 and 3 were proved against the

petitioner. The enquiry officer, however, held that the charge 2 against

the petitioner was not made out.

7. The copy of the enquiry report dated 18th January, 2006 was

supplied to the petitioner and the petitioner replied to show cause

notice of the respondents. The disciplinary authority of the petitioner,

Commandant, CISF, Unit: FBP, Farakka, however, by order dated 15th

February, 2006 and order dated 30th June, 2007 awarded the major

penalty of reduction of pay by 3 stages for a period of two years with

further stipulation that the petitioner will not earn increment of pay

during the period of reduction and on expiry of this period, the

reduction will have the effect of postponing his future increments.

8. Against the final order dated 30th June, 2007 the petitioner

preferred a revision petition dated 18th October, 2008 contending that

there had been violation of the principles of natural justice in the

enquiry conducted against him. The petitioner also alleged

discrimination contending inter-alia that identical allegations were

made against four other enlisted members of respondent No.1 namely

Prakash Singh, Md.Raisuddin, Onkar Singh Panwar and Manjit who

were however, absolved of the charges made against them by the

appellate authority by his order dated 21st August, 2006, however, the

petitioner has been punished on similar charges.

9. The revision petition filed by the petitioner was however, returned

by order dated 31st May, 2008 holding that a statutory appeal is

provided under Rule 46(ii) of CISF Rules, 2001 and without filing the

appeal, the revision filed by the petitioner was not maintainable. The

petitioner, thereafter, filed an appeal on 28th June, 2008 and also

sought condonation of delay in filing the appeal. The petitioner also

relied on Rule 47 of CISF Rules, 201 contemplating that the appeal can

be maintained even after the expiry of the period within which the

appeal has to be filed, if the appellant shows sufficient cause for not

preferring the appeal in time.

10. The respondents, however, by order dated 13th July, 2009

rejected the appeal being barred by time. Aggrieved by the order of the

disciplinary authority and the appellate authority, the petitioner has

preferred the present writ petition contending inter-alia that the

respondents were not the competent authority for conducting the

departmental proceedings against the petitioner and relied on Rule 41

of CISF Rules, 2001. The petitioner contended that the borrowing

authority could only initiate the disciplinary proceeding against him as

he was on deputation at the time the alleged misconduct was

committed by the petitioner. The orders of punishment passed against

the petitioner have also been challenged on the ground that the enquiry

officer had overlooked the statements of the doctors attending the

petitioner to the effect that the said doctor was attending the illness of

the petitioner from 20th May, 204 to 23rd May, 2005. According to the

petitioner the enquiry officer had not considered the medical certificates

issued by the concerned medical doctors advising bed rest to the

petitioner. The petitioner asserted that the bed rest advised to him was

in consonance with the medical certificates issued as per CISF Rules,

2001 and CCS (MA) Rules, 2001 and CCS (Leave) Rules, 1972. The

petitioner‟s grievance is also that the enquiry report is vitiated as the

medical certificates issued by the competent authority which were

produced before the enquiry officer were not considered by the enquiry

officer which had been overlooked and therefore the findings of the

enquiry officer are completely vitiated. The petitioner asserted that he

had intimated the respondents when he was on deputation with Delhi

Administration Police that he is unwell and could not have attended the

duties from 20th May, 2004 to 23rd March, 2005 with the respondents.

11. The petitioner has challenged his order of punishment on the

ground that he has been discriminated as four other personnel of CISF

namely Prakash Singh, Md.Raisuddin, Onkar Singh Panwar and Manjit

were charged with similar charges, however, they have been absolved of

the charges by the appellate authority and their period of absence has

been regularized. According to the petitioner the respondents ought to

have accepted the medical certificates issued by the medical attendants

of CGHS Dispensary and in the circumstances there was sufficient

reason for the petitioner not to have joined duty during the relevant

period.

12. This Court has heard the learned counsel for the petitioner in

detail and has perused the record produced before this Court and has

also heard the learned counsel for the respondent Sh.Jatan Singh who

has appeared on advance notice.

13. The first submission of the learned counsel for the petitioner that

the disciplinary action could be initiated by the borrowing authority

under Rule 41 of CISF Rules, 2001 is misconceived and is contrary to

tenor and import of the rule. Rule 41 does not stipulate that any alleged

misconduct by any official who is on deputation has to be tried

necessarily and only by the borrowing department. The said rule only

vests the borrowing department with powers of appointing authority for

purpose of placing such member of the Force under suspension and of

the Disciplinary Authority for the purpose of conducting the disciplinary

proceedings. The said rule does not lay down in any manner divesting

the parent department or authority to take away the power of

disciplinary action of the parent department against the charged officer.

In any case perusal of the charges reveals that the petitioner was

repatriated from Delhi Armed Police on 28th May, 2004 and he was to

report to the parent department on 29th May, 2004. The petitioner,

however, remained absent unauthorisedly from 29th May, 2004 to 23rd

March, 2005 for a period of 299 days without sanction of any leave from

the parent department. If the petitioner was relieved on 28th May, 2004

(afternoon) which fact has not been denied by the petitioner, the

absence of the petitioner from his parent department from 29th May,

2004 to 23rd March, 2005 has to be tried by the parent department and

not by borrowing department. In the circumstances the disciplinary

authority would be the parent department of the petitioner that is

Central Industrial Security Force and not the borrowing department,

Delhi Armed Police. This submission of the petitioner is, therefore, not

acceptable and is rejected.

14. The other plea raised by the petitioner is that the enquiry office

did not consider the medical certificates produced by the petitioner. The

petitioner has produced the medical certificates dated 24th May, 2004

which stipulates that petitioner was suffering from Diarrhea. The date

of certificate is 24th May, 2004. This is not clear as to how on 24th May,

2004 that is on the date of the certificate it could be held by the medical

authorities that the petitioner would be entitled for 52 days period of

absence on account of an ailment like Diarrhea. The petitioner has also

produced a prescription dated 4th November, 2004 in which on various

dates he has been allegedly advised bed rest for two weeks on every

occasion that is on 4th November, 2004, 16th November, 2005, 13th

January, 2005, 10th February, 2005, 2nd December, 204, 30th

December, 2004, 27th January, 2005 and 24th February, 2005. On every

occasion on the abovenoted dates the petitioner has been advised rest

for two weeks. However, it has not been stipulated as to what was the

ailment of the petitioner. The petitioner has also produced another

certificate dated nil advising a period of absence for 12 weeks from 15th

July, 2004. It is alleged that his absence would be absolutely necessary

and the ailment described in the said medical certificate though illegible

appears to be colic. The petitioner has produced yet another

prescription dated 4th November, 2004 and a certificate dated nil

advising 10 weeks rest from 30th December, 204 without specifying his

ailment.

15 Perusal of the enquiry report reveals that all these certificates

which were produced by the petitioner including other documents like

prescriptions etc. were considered by the enquiry officer in detail. The

enquiry officer has also considered in detail the statement of Dr.Ram

Kishan, Sr.CMO who deposed on the basis of medical OPD

slip/prescription deposing that general medicines are issued to the

patient on the basis of prescription by the pharmist in the dispensary

counter and no account is maintained regarding issue of general

medicines nor the issue of general medicines are registered by the

person in the counter. Regarding petitioner he had deposed that he was

given treatment on the basis of DAP Belt No.848 and Dr.R.K.Dixit had

attended him on 20th May, 2004. According to him the petitioner was

suffering from Colic pain and thereafter the petitioner had Diarrhea and

he had been issued general medicines. According to the said doctor the

petitioner suffered Jaundice only for two weeks from 15th July, 2004 to

3rd August, 2004 and he was given bed rest for two weeks. After 4th

November, 204 it was alleged that the petitioner was suffering from

back pain.

16. After considering the testimonies and the documents the enquiry

officer analyzed in detail whether the charged official was officially sick

and whether it was accepted by the Delhi Armed Police authorities. This

has not been challenged that the petitioner was repatriated on 28th

May, 2004. Whether the charged official was entitled for treatment

under the CGHS Scheme and whether the charged official was actually

sick and his treatment is well supported by both medical papers and

documents has also been considered in great detail by the enquiry

officer. Considering the various facets of various documents and

contradictions in them, the enquiry officer inferred various

controversies and held that there was reasonable doubt about the

sickness of the petitioner. It has also been held that the charged official

had knowledge of his repatriation from Delhi Armed Police on 28th May,

2004 and in the circumstances it was held that it can be reasonably be

inferred that the medical certificates had been manipulated and had

been managed by the petitioner to create a defense for his unauthorized

absence on account of his alleged sickness.

17. Regarding the entitlement of the petitioner for medical treatment

it was inferred that the OPD prescriptions of the petitioner were made

on the basis of his belt No.848/DAP. The petitioner did not have a

CGHS Card nor the said belt number from date of his repatriation.

Therefore, the medical papers produced by the petitioner to

substantiate his prolonged absence on account of his alleged sickness

could not be accepted even for the alleged treatment in Ayurvedic

Dispensary, Kingsway Camp. The prescription/OPD slip and medical

certificates were, therefore, managed and manipulated by the petitioner

by impersonation which has no value and do not justify his

unauthorized absence.

18. The enquiry officer has also referred to the major contradictions

in the medical certificate as for the same period the certificates reveal

that he was suffering from Jaundice and other medical certificate

No.A359921 details that he was suffering from back pain. The enquiry

officer has gone to the extent of considering the medicines which were

issued to the petitioner which were Liv 52, Livotrit, Rohotakarist.

Taking into consideration various medicines, prescription and

contradictory certificate showing that the petitioner was allegedly

suffering from Jaundice according to some certificates and back pain

according to him other certificates, it has been inferred that on account

of contradictions which causes reasonable doubt about the alleged

prolonged treatment of the petitioner from the period 15th July, 2004 to

23rd May, 2005, the medical documents produced by the charged

official do not justify his absence and the documents are manipulated

and managed by the petitioner in his personal capacity to mislead the

respondents. The enquiry officer also referred to the statement of the

doctor that he had given the treatment to the petitioner on the basis of

his belt No.848 DAP assuming that he was serving in DAP whereas in

the verification report it appeared that constable Randhir Singh holding

Belt No.843 DAP was under the treatment of CGHS. The petitioner was

not issued any medicine from the dispensary whereas the verification

report reflects that the charged official was prescribed and issued

medicine from Ayurvedic Dispensary which was found to be highly

contradictory.

19. This cannot be disputed that the judicial review of a decision is

the review of decision making process and not re-appreciation of the

evidence unless there is apparent irregularity or perversity in the

findings of the enquiry officer and the disciplinary authority. The

learned counsel for the petitioner is unable to point out that while

analyzing the evidence and the documents, the enquiry officer and the

disciplinary authorities have taken into consideration irrelevant facts or

have refused to consider the relevant facts. From the perusal of the

enquiry report it is apparent that the relevant testimony of the

witnesses have been considered and the testimonies have not been

rejected on the basis of surmises and conjectures nor the respondents

have enquired into the allegations with which the petitioner has not

been charged with. In fact it is not the case of the petitioner that the

enquiry officer has gone into the allegation with which he has not been

charged with. The Supreme Court in 92006) 5 SCC 88, M.V.Bijlani v.

Union of India had held at page 95 as under:-

"It is true that the jurisdiction of the Court in judicial review is limited. Disciplinary proceedings, however, being quasi-criminal in nature, there should be some evidence to prove the charge. Although the charges in a departmental proceedings are not required to be proved like a criminal trial, i.e., beyond all reasonable doubts, we cannot lose sight of the fact that the Enquiry Officer performs a quasi- judicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with."

20. The learned counsel for the petitioner is also unable to show any

procedural lapse in conducting the enquiry and awarding the

punishment by the disciplinary authority. Though the petitioner had

filed the revision petition and thereafter filed an appeal, however, while

filing the appeal the petitioner failed to make out sufficient cause for

condonation of delay and thus the appeal was also dismissed as barred

by time. Even on merits the petitioner has not been able to make out

sufficient grounds which would show any illegality, irregularity or

perversity in the findings of the enquiry officer or the action taken by

the disciplinary authority in awarding the punishment to the petitioner.

21 In the totality of the facts and circumstances the petitioner has

failed to make out any such grounds which will entail any interference