Delhi High Court
Vishal N.A. vs Union Of India & Ors on 6 February, 2024
Author: V. Kameswar Rao
Bench: V. Kameswar Rao
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: February 06, 2024
+ W.P.(C) 4879/2016
(9) VISHAL N.A. ..... Petitioner
Through: Mr. Ankur Chhibber and
Mr. Nikunj Arora, Advs.
versus
UNION OF INDIA & ORS ..... Respondents
Through: Mr. Rajesh Kumar and Ms. Mishika
Pandita, Advs. with Insp. Sanjay
Kumar, CISF, Law Officer
CORAM:
HON'BLE MR. JUSTICE V. KAMESWAR RAO
HON'BLE MR. JUSTICE SAURABH BANERJEE
V. KAMESWAR RAO, J. (ORAL)
1. This writ petition has been filed by the petitioner with the following
prayers:
"In view of the above, it is therefore most respectfully prayed
that this Hon'ble Court may be pleased to:
(i) issue a writ of certiorari for quashing the penalty order
dated 26.04.2014, the order dated 30.12.2014 passed by the
Appellate Authority as well as the order dated 30.09.2015
passed by the Reviewing Authority; and
(ii) Issue a writ of mandamus directing the respondent to
expunge the penalty of "Reduction of pay by one stage from
Rs.10560/- to Rs.10130/- in Pay Band 11(9300-34800) with
immediate effect for a period of one year" and grant all
consequential benefits to the petitioner as admissible in law.
(iii) Pass any such orders as the Hon'ble Court may deem fit
in the light of above mentioned facts and circumstances of the
case.
Signature Not Verified
Digitally Signed
By:JYOTIRMOY GHOSH W.P.(C) 4879/2016 Page 1
DASTIDAR
Signing Date:12.02.2024
16:16:58
2. The challenge in this writ petition is to the order of the Disciplinary
Authority dated April 26, 2024, Appellate Authority order dated December
30, 2014 and the Reviewing Authority order dated September 30, 2015
whereby the petitioner has been imposed the penalty of reduction of pay by
one stage from ₹10560/- to ₹10130/- in Pay Band II (9300-34800) with
immediate effect for a period of one year.
3. At the outset, it may be stated that the charge against the petitioner is
the following:
"Directorate General
Central Industrial Security Force
(Ministry of Home Affairs)
Block No. 13, CGO Complex
Lodhi Road, New Delhi-3
No.V-11014/48/2015/L&R 1225 Dated 30 September 2015
ORDER
WHEREAS, No. 061737798 Ex SI (Exe) Vishal N.A. of CISF
ASG Delhi (hereinafter referred to as the petitioner was dealt
under rule 36 of CISF Rules 2001, vide Charge Memorandum
No.V-15014/38/13)/Disc-36/13-21774 dated 06.11.2013 for the
following charge:-
Force No. 061737798 SI/Exe Vishal N. A. was deployed in CISF
Unit AIG Airport, New Delhi on 15.10.2013 at day shift from
0700 hours to 2000 hours at T-3 Departure Domestic for X-BIS
No 13 for domestic SHA screening. The Force member at about
1100 hours was unable to detect the dummy IED which was
kept in the bag of BWFS employee at X-BIS No. 13 during
screening, which shows grave negligence and dereliction his
duty."
By:JYOTIRMOY GHOSH W.P.(C) 4879/2016 Page 2
4. It is conceded position that the charge against the petitioner has been
proved.
5. Mr. Ankur Chhibber, learned counsel for the petitioner, has drawn our
attention to grounds (D), (E), (F) and (H) of the petition to contend that, in
similar circumstances where a person could not identify the dummy object
which was put in the x-ray machine, has either been imposed the penalty of
warning or has been let off. The relevant grounds in that regard are
reproduced as under :-
"D. Because respondents to failed to appreciate that the
petitioner has been treated unequally vis-à-vis other Force
Personnel who were dealt with for similar misconduct. The
petitioner was alleged for failing to detect a dummy IED and
was proceeded against for the said misconduct for major
penalty under Rule 36 of CISF Rules 2001 and was given the
aforesaid penalty. However, in the following cases, either no
statutory punishment was awarded or they were simply let off
with a warning in accordance with the instructions issued by
various circulars by the CISF authorities:
(a)SI/Exe Arun Athri of Mumbai Airport for his failure
to detect dummy on 22.05.2012 was given simply a
'warning' which is not a statutory punishment, vide
letter dated 05.06.2012.
(b)SI/Exe Vinay Kumar of I.G.I. Airport, New Delhi,
for similar lapse, on 28.09.2013 was punished with
'one-day's pay fine'-a very minor punishment. His
appeal was rejected by the Commandant. However, the
DIG/IGI Airport, the Reviewing Authority finding force
in his contentions vide order dated 06.12.2014 acceded
to his plea and exonerated him of the charge. It is
apposite to point out that SI/Exe Vinay Kumar is senior
to the petitioner in service and has served for more
than four years at Airport Security whereas the
petitioner had just put in 17 days of service at Airport
when the alleged incident happened.
By:JYOTIRMOY GHOSH W.P.(C) 4879/2016 Page 3
(c)SI/Exe UK Jha, senior to the petitioner was awarded
only 'warning' although a small knife passed
undetected when he was the screener, vide order dated
13.06.2014.
(d) SI/Exe Sanjay Kumar, senior to the petitioner was
awarded only 'warning' vide order dated 28.07.2014,
although a small knife passed undetected through the
scanner when he was on duty as Screener.
(e) ASI/Exe RK Roy was awarded only 'warning' vide
order dated 18.05.2014 for his failure to detect two
litres of juice passed through the scanning machine
undetected, when he was on duty as Screener when the
permissible limit is only 100ml. Therefore, it suffices to
say that the case of the petitioner has been isolated and
treated to his disadvantage. It is also submitted that the
punishment imposed upon the petitioner is very severe
and is highly discriminatory and also violative of the
'principle of equality' before law and equal protection
of law' enshrined in Article 14 of the Indian
Constitution. For an alleged misconduct of such trivial
nature, the impugned penalty is grave enough to shock
the conscience of a prudent person. Such a penalty is
not maintainable as per law laid down by Supreme
Court in the matter of B.C. Chaturvedi vs. UOI, AIR
1996-SC 484.
Copies of relevant orders are annexed herein as
Annexure P-32.
E. Because respondents have failed to appreciate that a
similarly situated force personnel namely SI (Exe) Sunil
Prakash Panna like the petitioner herein was also given a
penalty of reduction of pay vide order dated 15.04.2014 for
failure to detect dummy scissor being a certified screener
pursuant to which the revision petition was preferred by the
aforementioned force personnel and the same was allowed
and further the punishment was reduced from the penalty of
reduction of pay by one stage to that of 'Censure' vide order
dated 16.02.2016. Therefore, having given relief to similarly
situated personnel, the respondents are duty bound to set
By:JYOTIRMOY GHOSH W.P.(C) 4879/2016 Page 4
aside the harsh penalty imposed upon the petitioner herein
also.
F. Because respondents have failed to appreciate that in
another similar case, SI (Exe) Bimal Vishwas was given the
punishment of Censure for failure in detecting dummy pistol
and lighter while performing his duty at VIP X-S Duty Post at
Terminal-1, IGI Airport vide order dated 04.07.2015.
Pursuant to which, the aforesaid force personnel moved an
appeal which was allowed vide order dated 27.01.2016
wherein the personnel was exonerated from the punishment
of 'censure'. Therefore, having; given relief to similarly
situated personnel, the petitioner is also entitled to the same
relief.
H. Because respondents have failed to appreciate that yet
another similarly situated force personnel namely, Rajesh
Kumari, was also given the punishment of censure vide order
dated 21.04.2015 in a case similar to that of the petitioner
herein. On preferring an appeal, the aforemientioned
personnel was exonerated from the punishment of censure
vide office order dated 31.12.2015. Therefore, on having
taken a lenient view in case of other similarly situated
personnel, the respondents cannot deny the same to the
petitioner herein."
6. He submits that, in terms of the Circular No. AS-17/2006 dated
October 16, 2006 and ADG/APS Circular No. O-
42013/CISF/APC/OPS(2)/Circular(AS)-08-3525 dated April 24, 2009 issued
by the respondents, the authorities could not have imposed the penalty of
reduction of pay by one stage as imposed by them against the petitioner.
7. It is his submission that, if it is the first failure on the part of the
employee, he can only be warned to be more careful and not to repeat such
lapses in future. He also submits that, in one case, the officer has been
exonerated. Therefore, the nature of charge/gravity of charge being same,
By:JYOTIRMOY GHOSH W.P.(C) 4879/2016 Page 5
the petitioner should be exonerated. He submits the respondents have not
disputed the grounds taken in the petition.
8. Mr. Chhibber has relied upon the judgment of the Supreme Court in
the case of State of Uttar Pradesh and Others v. Raj Pal Singh, (2010) 5
SCC 783, wherein, the Supreme Court has in paragraphs 5 and 6, held as
under:-
"5. Though, on principle the ratio in aforesaid cases would
ordinarily apply, but in the case in hand, the High Court appears
to have considered the nature of charges levelled against the five
employees who stood charged on account of the incident that
happened on the same day and then the High Court came to the
conclusion that since the gravity of charges was the same, it was
not open for the disciplinary authority to impose different
punishments for different delinquents. The reasoning given by the
High Court cannot be faulted with since the State is not able to
indicate as to any difference in the delinquency of these
employees.
6. It is undoubtedly open for the disciplinary authority to deal
with the delinquency and once charges are established to award
appropriate punishment. But when the charges are same and
identical in relation to one and the same incident, then to deal
with the delinquents differently in the award of punishment,
would be discriminatory. In this view of the matter, we see no
infirmity with the impugned order requiring our interference
under Article 136 of the Constitution."
9. On the other hand, Mr. Rajesh Kumar, learned counsel for the
respondents has relied upon the circular dated April 24, 2009, stating that,
when misdemeanor in the manner committed by the petitioner is held to be
proved, a disciplinary action is required to be initiated with appropriate
punishment.
By:JYOTIRMOY GHOSH W.P.(C) 4879/2016 Page 6
10. Noting the stand taken by the petitioner that on identical charge (s),
the officers were either warned or exonerated, we are of the view, in view of
the law laid down by the Supreme Court as noted above, the plea urged by
Mr. Chhibber is required to be considered by the Reviewing Authority being
the final Authority. Accordingly, keeping in view the punishment imposed
on the other officers, the Reviewing Authority is directed to take a final
decision on the aspect of parity in punishment imposed against the petitioner
within a period of 12 weeks as an outer limit. Needless to say, the
respondents shall communicate the outcome thereof to the petitioner within a
week thereafter.
11. With the aforesaid, we dispose of the writ petition.
V. KAMESWAR RAO, J
SAURABH BANERJEE, J
FEBRUARY 06, 2024/aky
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