Rajender Singh vs Union Of India And Ors
2013 Latest Caselaw 4830 Del

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*        IN THE HIGH COURT OF DELHI AT NEW DELHI


+                            W.P.(C) No.324/2013

%                                         Date of decision: 22nd May, 2013

         RAJENDER SINGH                                              ..... Petitioner
                             Through      Major K. Ramesh, Adv. with Ms. Archana
                                          Ramesh, Adv.

                             versus

         UNION OF INDIA AND ORS                                       ..... Respondents

Through Mr.Ankur Chhiber, Adv.

CORAM:

HON'BLE MS. JUSTICE GITA MITTAL HON'BLE MS. JUSTICE DEEPA SHARMA

GITA MITTAL, J (ORAL)

1. By way of the present writ petition, the petitioner has assailed the order

dated 6th November, 2010 passed by the Deputy Commandant, CISF finding the

petitioner guilty of the following charge:-

"No.034470754 Constable (GD) Rajender Singh of SSG, CISF, Greater Noida (U.P.) while deployed at Shri Madhavan Nair outpost Bangalore was detailed for "C" shift duty from 2100 hrs on 15.9.2010 to 0500 hrs on 16.9.2010 with Arms at the residence of the PP. The said Constable was found sitting on a chair and sleeping on duty at 2358 hrs. on 15.9.2010 when checked by Shri Devender Kumar Insp/exe. The post I/C. This

act of CISF No.034470754 Constable (GD) Rajender Singh tantamount to gross negligency and dereliction of duty on his part which is an unbecoming conduct being a member of a disciplined Armed Forces of Union of India like CISF. Hence the charge."

2. The petitioner was, by the same date, awarded the penalty of fine equivalent

to an amount of two days pay of the Central Industrial Security Force (CISF).

Aggrieved thereby, the petitioner preferred an appeal dated 4 th January, 2011 to the

Deputy Inspector General of the CISF. As it was proposed to enhance the

punishment imposed on the petitioner, under Rule 52(2)(c)(i) of the CISF Rules, a

show cause notice dated 19th January, 2011 was issued to the petitioner for this

purpose. The petitioner had made a representation dated 2nd February, 2011.

However, the representation of the petitioner was rejected and a final order dated

4th June, 2011 was passed against the petitioner imposing the punishment of

"withholding of the next increment for a period of one year without cumulative

effect". By this punishment, the original punishment of payment of an amount of

two days pay to the CISF was substituted. The petitioner assailed this order by

way of an appeal dated 18th July, 2011 which was rejected by an order dated 24 th

August, 2011. The petitioner's revision came to be rejected by the Inspector

General of the CISF by an order passed on 23 rd July, 2012. The petitioner has

assailed the orders dated 6th November, 2010; 4th June, 2011; appellate order dated

24th August, 2011 as well as the revisional order dated 23 rd July, 2012 by way of

the present writ petition.

3. The challenge by the writ petitioner rests primarily on the pure disputed

question of facts. The petitioner has contended that the impugned orders have

failed to consider the explanation of the petitioner to the effect that he was

performing his duties on the 16th September, 2010 as stood assigned to him and

that Constable H.P. Singh was also on duty with him. Reliance is placed on a

statement of Shri H.P. Singh given on the 19 th February, 2011. It is noteworthy

that in the statement dated 19th February, 2011, Shri H.P. Singh has not stated that

he was on duty on 16th September, 2010. He has merely proceeded to state that

Inspector/Executive Devender Kumar had gone for checking at the post where the

petitioner was performing duty with Ct. Ranjith K. and that both the constables had

come out from their post and saluted the checking officer. Interestingly, Ct.H.P.

Singh does not state that he was present there and obviously his statement is not

based on personal knowledge.

4. In fact, this statement deserves to be disbelieved for the reason that there

was no warrant for Shri H.P. Singh to be at the post at which the petitioner was

performing guard duty which was at the residence of a protected person. In any

case, reliance has been placed by the petitioner on an alleged entry in a register

which is urged to be even made contemporaneously as the inspection by Inspector

Devender Kumar. It has been explained by learned counsel for the petitioner that

the entry which the petitioner alleges that an inspection was conducted of the post

at about 1.00 a.m. by Inspector Devender Kumar and the entry had checked the

post actually at 1153 hrs. has been made more than one hour thereafter. The entry

has been made by the person who was on duty with the petitioner and was

obviously interested in protecting both of them. The entry does not contain any

record maintained by the CISF but is allegedly contained in the register maintained

by the local police. The entries are not in seriatim by the local police.

5. Mr.Ankur Chhiber, learned standing counsel for the respondents has placed

before us the original register maintained by the respondents in respect of guard

duties being performed by CISF personnel. Our attention has been drawn to the

entry at serial no.955 made at 2358 hours on the 15th September, 2011 which is the

entry in the register of the incident.

6. The respondents have contended that while the petitioner was deployed at

Shri Madhavan Nair outpost Bangalore was detailed for "C" shift duty from 2100

hrs on 15.9.2010 to 0500 hrs on 16.9.2010 with Arms at the residence of the

protected person, he was found sitting on a chair and sleeping on duty at 23:58

hours on 15.09.2010 when checked by Shri Devender Kumar Insp./Exe the then

post I/C. On these allegations, the petitioner was dealt under Rule 37 of the CISF

Rules 2001 and on being found guilty of the charge, the Disciplinary Authority

awarded him the penalty of pay fine equivalent to an amount of two days pay vide

final order dated 6.11.2010.

7. The above entry in the register produced from the Unit is supported by the

statement of Devender Kumar Inspector/Executive. No reason is forthcoming as to

why the Inspector would make false allegations against the petitioner. In any case,

these contentions of the petitioner are pure disputed questions of fact which cannot

be appropriately gone into in these writ proceedings.

8. Mr.Ramesh, learned counsel for the petitioner has challenged the imposition

of the higher penalty upon the petitioner by the order dated 4 th June, 2011. It is

urged that Section 18 of the Central Industrial Security Force Act does not

envisage any enhancement of punishment by the person imposing the same. It is,

further, contended that proviso to sub-section 3 of Section 18 specifically

stipulated that no person shall be punished twice for the same offence.

9. A perusal of Section 18 of the Central Industrial Security Force Act would

show that sub-Section 3 enables a member of the CISF to be prosecuted under any

other law for an offence punishable by that law. The reference in sub-Section 3 is

to prosecutions by other authorities including the police or any other specialised

agency exercising power under enactments other than the Central Industrial

Security Force Act, 1968. The reference is to a person being punished twice for

the same offence. In this context it is apparent from the bare reading of the

statutory provision that the legislature has in fact prohibited the trial of a person

twice for the same offence, i.e. to say that the CISF personnel cannot be tried under

the CISF Act by the CISF and additionally by any other authority exercising

jurisdiction under any other law for the same offence.

10. The instant case is not concerned with two trials by two authorities resulting

in different punishments for the same offence but is concerned with enhancement

of sentence which has been imposed upon the petitioner.

11. In this regard, reference deserves to be made to Rule 52 (2)(c) of the CISF

Rules which reads as follows:-

"52. Consideration of appeals.-

(1) xxx xxx xxx (2) (a) In the case of an appeal against the order imposing any of the penalties specified in rule 34, or enhancing any penalty imposed under the said rules, the appellate authority shall consider-

(b) xxx xxx xxx

(c) whether the penalty or the enhanced penalty imposed is excessive, or adequate, or inadequate and pass orders-

(i) Confirming, enhancing, reducing or setting aside the penalty; or

(ii) Remitting the case to the authority which imposed

or enhanced the penalty, or to any other authority with such directions it may deem fit in the circumstances of the case;

(iii) No order imposing enhanced penalty shall be made in any other case unless the appellant has been given a reasonable opportunity, as far as may be in accordance with the provisions of rule 37, of making a representation against such enhanced penalty."

12. The Central Industrial Security Force Rules have been enacted in exercise of

powers under Section 22 of the Central Industrial Security Force Act, 1968. Rule

52 refers to the jurisdiction of the appellate authority. Rule 52(2)(c) empowers

and enables the appellate authority to consider whether the penalty or an enhanced

penalty imposed upon a person is excessive or adequate or inadequate and enables

the appellate authority to confirm or enhance or reduce or set aside the penalty. In

the instant case, it is an admitted position that the appellate authority issued a

notice to show cause to the petitioner dated 19th January, 2011 and the petitioner

submitted a reply dated 2nd February, 2011 to the final order which was passed on

4th June, 2011 by appellate authority. The Appellate Authority considered the

submissions of the petitioner and imposed the enhanced punishment upon him.

There is no challenge to the constitutionality of the Rule 52 (c) before us. It

cannot, therefore, be disputed that the appellate authority was adequately

empowered by virtue of provisions of Rule 52(2)(c) to enhance the punishment

imposed upon the petitioner by the Deputy Commandant.

13. For all the foregoing reasons, we find no merits in the writ petition which is

hereby dismissed.

(GITA MITTAL) JUDGE

(DEEPA SHARMA) JUDGE MAY 22, 2013 aa