Delhi High Court
Debashish Bhattacharya vs Uoi & Anr. on 30 May, 2011
Author: Pradeep Nandrajog
$~17
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 30th May, 2011
+ W.P.(C) 3824/2011
DEBASHISH BHATTACHARYA ..... Petitioner
Through: Mr.Arvind Jain, Advocate with
Mr.Kuldeep Singh, Advocate
versus
UOI & ANR. ..... Respondents
Through: Ms.Barkha Babbar, Advocate
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE SURESH KAIT
1. Whether the Reporters of local papers may be allowed
to see the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be reported in the Digest?
PRADEEP NANDRAJOG, J.(Oral)
CM No.7967/2011
Allowed subject to just exceptions.
W.P.(C) No.3824/2011
1. Heard learned counsel for the parties at the
preliminary admission stage itself.
2. Since petitioner has filed all relevant documents,
with consent of learned counsel the matter is disposed of at
the first hearing.
3. Vide charge memorandum dated 16.12.2008 the
petitioner was charged as under:-
"Charge Article - I
Force No.024850030 Constable D.Bhattacharya was
ordered for duty at SHA Gate No.2 on 23.11.08 from
20:00 to 24.11.08 upto 07:00 hrs. and at SHA Gate
No.11 on 25.11.08 in day shift, but he remained
absent from duty on both the dates without the
permission of competent authority. Thereafter,
Constable Mohd.S.D.Wajid Khan was deputed in his
place on 23.11.08 and Constable Satnam Singh on
25.11.08, which is confirmed as per report registered
in Roznamcha No.994 and 995 on 23.11.08 at 20:06
and 20:10 hrs. and the Report No.158 dated
23.11.08 sent by the Company Commander „C‟
Company. The above said act of Force
No.024850030 Constable D.Bhattacharya, being a
member of disciplined force, tantamount to gross
negligence towards his duties.
Charge Article - II
Force No.024850030 Constbale D.Bhattacharya
consumed liquor and used abusive language against
the barrack members and officers at „C‟ Company on
6.12.08 at about 20:20 hours. He was asked by the
competent authority for medical examination, for
which he refused at the first instance but second
time he was taken to Govt. Hospital Safdarjung and
medical examination of Constable Devashish
Bhattacharya was conducted by the Doctor. Its
report has been entered at Bijwasan Camp‟s
G.D.No.109, 110, 112 and 113. The above act of
024850030 Constable D.Bhattacharya tantamount to
gross misconduct and indiscipline.
Charge Article - III
Force No.024850030 Constable D.Bhattacharya, „C‟
Company, CISF Unit, IGI Airport, New Delhi was
punished with below-mentioned penalties in his past
services, for his remaining absent from Unit Line,
gross negligence towards his duties and
disobedience of the orders of his officers, losing and
concealing the third copy of Railway Warrant, but
despite this the above-mentioned force member
failed to improve his conduct. Therefore, charged.
S. Charge Penalty
No.
1. Getting withdrawn Awarded the
railway warrant from penalty of
CISF BRC - TAPS Tarapur "Censure" vide
in a wrong manner and Final Order No.V-
concealing third copy. 15014/CISF/BRC-
TAPS/04-717 dated
3.5.04 of Assistant
Commandant, CISF
BRC - TAPS,
Tarapur.
2. For losing third copy of Awarded the
Railway Warrant at CISF penalty of
BRC - TAPS Tarapur. "Censure" vide
Final Order No.V-
15014/CISF/BRC-
TAPC/07-271 dated
8.2.07 of Assistant
Commandant, CISF
BRC-TAPS, Tarapur.
3. For remaining absence Awarded the
from Unit Line of CISF penalty of
Unit, IGI, Delhi. "Deduction of salary
equivalent to salary
of three days" vide
Dy.Commandant/Te
rm-II, CIST Unit, IGI,
Delhi‟s Final Order
No.V-
15014/(30/08)/Rule-
37/Dy.Com. Term-
II/08-346 dated
1.7.08.
4. Gross negligence towards Awarded the
his duties and penalty of
disobedience of orders of "Deduction to
officers during posting salary of seven
with CISF Unit, IGI, Delhi. days" vide Asstt.
Commandant, CISF
Unit, IGI Delhi‟s
Final Order No.V-
15014/(61/08)/Rule-
37/Term-2/08-914
dated 25.11.08.
4. Needless to state Article III of the charge was
simply informing the petitioner his past conduct and making it
known to him that if held guilty pertaining to Article I and/or
Article II of the charge sheet, the said past conduct would be
taken into account on the issue of penalty to be levied.
5. The Inquiry Officer has indicted the petitioner of
having committed the wrongs as per Article I and Article II of
the charge and after supplying the inquiry report to the
petitioner, the Disciplinary Authority has levied the penalty of
removal from service which has been upheld by the Appellate
Authority.
6. With respect to Article I of the charge it may be
stated that the petitioner admitted being absent from duty at
20:00 hours on 23.11.2008 till 07:00 hours on 24.11.2008 and
thereafter on 25.11.2008.
7. Learned counsel for the petitioner urges that the
explanation given by the petitioner of being unwell has
wrongly been rejected by the authorities, but concedes that
petitioner has no proof and indeed gave none of his stated
sickness and thus we concur with the reasoning of the Inquiry
Officer that the petitioner gave no justifiable excuse for being
absent from duty on 23.11.2008 and 25.11.2008.
8. Pertaining to Article II of the charge, we may note
that Insp.Subhash Ram PW-1 has stated that due to high alert
being sounded on 6.12.2008 he stayed at the Bijwasan Camp
and about 20:20 hours HC B.R.Sinha (BHM) told him over the
telephone that the petitioner had drunk alcohol and was
abusing everybody and creating a nuisance and that after
receiving information he took SI Sukhdev to the Bijwasan
Camp and found petitioner abusing the jawans from U.P. and
Bihar. He was calling them dogs and was bragging of his
contacts with a senior politician from the State of Bengal.
Petitioner was stating that he comes from a Naxilite infested
area and could get even with everybody. Petitioner was taken
to the hospital where he was found to consume alcohol much
in excess of the permissible limits and that he made a GD
Entry PW-1 Ex.1 with respect to the incident. Insp.B.L.Bairwa
appeared as PW-2 and corroborated PW-1. He stated that the
senior politician named by the petitioner was the Chief Minister
of West Bengal, Sh.Buddhadeb Bhattacharya. SI Sukhdev
Singh PW-3 corroborated PW-1 and PW-2. So did HC Ram
Kumar PW-4 and HC B.R.Sinha PW-5, the BHM who first noted
the petitioner abusing fellow jawans from the State of U.P. and
Bihar and calling them dogs. Ct.S.K.Kanojia PW-6 corroborated
PW-1 to PW-5. Neutral witness ASI/Clerk L.Raja Babu, deposed
that in the past 6 punishments were levied upon the petitioner,
4 being the ones which was notified under Article III of the
charge and 2 more. The said 2 more were petitioner using
undesirable and obscene language against one Partho Dass on
19.9.2008 as also creating a nuisance and abusing force
personnel in the unit lines on 28.8.2008.
9. Learned counsel for the petitioner submits that for
the misdemeanours constituting Article III of the charge the
petitioner had been punished in the past and therefore the
department could not have taken into account the said
offences committed by the petitioner.
10. The argument ignores somebody being punished
for a wrong and a past wrongful conduct being taken into
account for purposes of levying penalty when further
misdemeanours are committed.
11. It is settled law that the past conduct of an
employee can always be considered by the Disciplinary
Authority on the question of levy of punishment. Thus, Article
III of the charge was not by way of a misconduct alleged
against the petitioner for which the Department intended to
penalize him. It was simply intimating the petitioner that his
past conduct would be considered by the Disciplinary Authority
pertaining to the first two charges.
12. It is then urged that salary was deducted for the
absence on the dates notified as per Article I of the charge and
thus counsel urges that stated wrong pertaining to Article I of
the charge could not be considered on the issue of levy of
penalty.
13. The answer is simple. Salary was deducted on the
principle of „No work no pay‟. The misdemeanour remained for
purposes of taking disciplinary action.
14. It is lastly urged that the penalty imposed is grossly
disproportionate to the gravity of the offence.
15. We do not agree. Petitioner joined CISF on
23.4.2002 and we note that in 7 years‟ time the petitioner has
earned as many as 7 penalties.
16. The petitioner cannot incite regional ill feelings. His
utterances proved through the testimony of PW-1 to PW-5
shows that he brags of his political connections in the State of
West Bengal. He brags of his coming from a Naxilite infested
area. He talks poorly of the fellow jawans who come from the
State of U.P. and Bihar. He belittled them. He called them
dogs.
17. Anyone who incites communal or regional negative
sentiments is unfit for public service in a secular democracy.
18. Taking into account the past conduct of the
petitioner, who appears to be an incorrigible person, we are of
the opinion that the penalty of removal from service cannot be
called shockingly disproportionate. We highlight that CISF is
an armed force and God knows anything could have happened
where a jawan uses foul language against a community of
jawans.
19. The writ petition is dismissed in limine.
20. No costs.
CM No.7966/2011
Since the writ petition has been dismissed in limine
instant application which seeks interim orders is dismissed as
infructuous.
PRADEEP NANDRAJOG, J.
MAY 30, 2011 SURESH KAIT, J.
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