Ram Naresh Jha vs The Union Of India Through The ...
2021 Latest Caselaw 1814 Jhar

                                1

IN THE HIGH COURT OF JHARKHAND AT RANCHI
                    W.P.(S) No. 6215 of 2012
     Ram Naresh Jha                                 ..... Petitioner
                             Versus
  1. The Union of India through the Director General of Central
     Industrial Security Forces (CISF) (Ministry of Home), having
     office at Boring Road, P.O-G.P.O, P.S. Patliputra, District-
     Patna (Bihar).
  2. The Deputy Inspector General of Central Industrial Security
     Forces (CISF) (Ministry of Home),having office at Bokaro
     Steel Plant, Bokaro Ispat Nagar, P.O. & P.S. Bokaro,
     District-Bokaro.
  3. The Commandant cum Disciplinary Authority office of the
     Deputy Inspector General, Central Industrial Security
     Forces (CISF) (Ministry of Home), having office at Bokaro
     Steel Plant, Bokaro Ispat Nagar, P.O. and P.S. Bokaro,
     District- Bokaro (Jharkhand).                ..... Respondents
                             ---------
     CORAM: HON'BLE MR. JUSTICE DEEPAK ROSHAN
                             ---------
     For the Petitioner           : Mr. Manoj Tandon, Advocate.
     For the Respondents          : Mr. Pratyush Kumar, Advocate
                             ---------
                            JUDGEMENT

C.A.V. On 25.01.2021 Delivered on 20.04.2021.

Heard learned counsel for the parties through V.C.

2. The instant writ application has been preferred by

the petitioner praying for following reliefs:-

"(i) To quash/set aside order of punishment contained in letter no.-1928 dated 23.05.2011 passed by the Commandant/Disciplinary Authority (respondent no.3) whereby and whereunder the pay of the petitioner has been reduced from 10890/- +4200/- (B.P.+G.P.) to 10020/-+ 4200/- (B.P.+G.P.) for 3 years with a direction that even after 3 years the said reduction will have cumulative effect on the future increments; and that the period of suspension of the petitioner from 27.10.2010 to 04.01.2011 shall

not be treated on duty and the petitioner shall not be entitled to anything more than what he has been paid as subsistence allowance;

(ii) To quash/set aside the appellate order dated 30.07.2011 passed by respondent no.2 whereby and whereunder the appeal preferred by the petitioner has been rejected;

(iii) To also quash/ set aside the revisional order dated 30.04.2012 whereby and whereunder the revision of the petitioner has been rejected by respondent no.1;

(iv) To direct the respondents to pay all the consequential benefits to the petitioner including the full salary for the period of his suspension from 27.10.2010 to 4.1.2011;

(v) For any other appropriate relief or reliefs to which the petitioner is found to be entitled in the facts and circumstances of this case as also to do conscionable justice to the petitioner;

3. Mr. Manoj Tondon, learned counsel for the petitioner

contended that the impugned order has been passed

without following Rule 34(v) of C.I.S.F. Rules which says

that there should be a lower stage in the time scale of pay.

Though the punishment has been passed under the said

rules whereby the respondents have imposed punishment

by ordering reduction of pay by two stages which are

against the provision itself.

4. His next limb of argument is that even taking into

consideration the allegation as proved, but since the

amount of theft article was very meager; such a harsh

punishment should not have been imposed. On the

question of proportionality; the departmental proceeding

being a quasi-judicial, the principle of natural justice are

required to be complied with in true letter and spirit which

has not been complied in this case.

In support of aforesaid contention, the petitioner

relied upon the judgment passed in the case Nirmala J.

Jhala Vs. State of Gujarat and Another reported in

(2013) 4 SCC 301 wherein at para 14 it is held as under;

"14. In Noor Aga v. State of Punjab, it was held that: "88. ... '17. The departmental proceeding being a quasi- judicial one the principles of natural justice are required to be complied with. The courts exercising power of judicial review are entitled to consider as to whether while inferring commission of misconduct on the part of a delinquent officer relevant piece of evidence has been taken into consideration and irrelevant facts have been excluded therefrom. Inference on facts must be based on evidence which meet the requirements of legal principles."

5. Learned counsel further submits that it is true that

the jurisdiction of the High Court in judicial review is

limited, however, the disciplinary proceeding being quasi-

criminal in nature there should be some evidence to prove

the charge and the enquiry officer is bound to take all

relevant facts which has not been done in this case.

In support of the aforesaid contention the petitioner

relied upon the judgment passed in the case of M.V. Bijlani

Vs.Union of India and others, reported in (2006) 5 SCC

88, wherein at para 25 it has been held as under;

"25. 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 proceeding are not required to be proved like a criminal trial i.e. beyond all reasonable doubt, 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."

6. Relying upon the aforesaid judgment he submits that

since it was a case of theft, as such the enquiry officer

should have considered each and every aspect of the

matter. He further referred to the charge-sheet and submits

that it has been alleged that Sri Pramod Kumar along with

Munna Kisku entered the premises without valid paper and

permission and as a result, theft has been committed. In

this regard he submits that during departmental enquiry,

the statement of Munna Kisku whose name is referred in

the memo of charge was exhibited as defence exhibit

CO/D2, however the enquiry officer has not given any

finding on it.

7. Leaned counsel further submits that the other co-

employee has been given lower punishment whereas the

petitioner has been picked by the respondents-authorities

and has been imposed major punishment of lowering down

the scale by two stages with cumulative effect which is not

sustainable in the eyes of law.

He concludes his argument by submitting that

the impugned order of punishment is fit to be quashed and

set aside and also the appellate and revision order which

has not taken into consideration the grounds taken by this

petitioner in his appeal and revision respectively; and they

have rejected the respective applications of the petitioner

with non-application of mind.

8. Mr. Pratyush Kumar, learned counsel for the Union

of India opposes the prayer of petitioner and submits that

no interference is required with the impugned order. He

further submits that there are no procedural irregularities

in the instant writ application and all the authorities;

whether it is a disciplinary authority or the appellate

authority and even the revision authority; all have

considered the claim of the petitioner and rejected the

same.

9. On the question of non-appreciation of defence

exhibit CO/D2, he submits that under Article 226 of the

Constitution of India the writ court cannot sit in appeal and

cannot re-appreciate the evidence.

10. On the question of proportionality learned counsel

submits that when it is a case of theft and there is

involvement of CISF personnel; the respondent department

has lost confidence and when there is a loss of confidence

or faith; there cannot be any question on quantum of

punishment. As a matter of fact, since the allegations were

so serious in nature, the petitioner should have been

dismissed, but the disciplinary authority has taken a liberal

view by just degrading two stages of pay with cumulative

effect.

11. On the question/argument that Rule 34(v) stipulates

that there should be reduction of only one lower stage;

learned counsel submits that this contention is not

sustainable in the eyes of law and same is misconceived. He

further submits that Rule 34 also stipulates minor

penalties in which there is reference of withholding of

increment of pay and in Sub-rule (viii) it has been

stipulated for reduction to a lower stage in time scale of pay

by one stage. So when the minor punishment itself

stipulates for reduction to a lower stage in time scale of pay

by one stage it cannot be presumed that for major penalty

there will be reduction to one lower stage in the time scale

of pay.

12. Learned counsel for the respondent concluded his

argument by submitting that there is no infirmity in the

impugned order and so far as the allegation of the pick and

choose between the similarly situated employee; he referred

the supplementary counter affidavit which clearly

transpires that the charge against S. S. Mishra; the co-

delinquent employee was not same and similar which has

been given in details in para 3 of the supplementary

counter-affidavit.

13. Having heard learned counsel for the parties and

after going through the materials available on record, it

appears that a charge-sheet was issued against this

petitioner while he was holding the post of Sub-Inspector in

the CISF Unit of BSL Bokaro. The allegation is that while

the petitioner was on duty on 1700 hours on 21.10.2010 at

CEZ gate in the capacity of shift in charge; during his

course of duty, the petitioner misused his power and in

collusion and in connivance with anti-social elements,

namely, Shri Pramod Kumar (civil person), scooter Bajaj No.

BR-20-B-2060 and Shri Munna Kisku (civil person), scooter

no. BR-20D-1551; allowed them without valid paper and

permitted to enter into the gate at 1840 hours to 1900

hours and caused theft of property. In this way, the

petitioner was held responsible for dereliction of his duty,

misconduct, indiscipline and violation of the directions of

higher officers.

The petitioner filed a reply and thereafter, a

departmental proceeding was initiated against him and the

petitioner has been imposed punishment whereby pay of

the petitioner has been reduced from 10890/-+4200/-

(B.P.+G.P.) to 10020/-+ 4200/- (B.P.+G.P.) for 3 years with

a direction that even after 3 years the said reduction will

have cumulative effect on the future increments; and that

the period of suspension of the petitioner from 27.10.2010

to 04.01.2011 shall not be treated on duty and the

petitioner shall not be entitled to anything more than what

he has been paid as subsistence allowance.

14. The petitioner emphatically contended that as per the

Rule 34(v) there should be reduction of one lower stage

because the rule provides as such and by reducing the pay

scale by two stages with cumulative effect is illegal.

To appreciate this argument Rule, 34(v) which deals

with the nature of penalties in CISF Rules, 2001 is quoted

herein below;

"34. Nature of Penalties - The following penalties may, for good and sufficient reasons and as hereinafter provided, be imposed on an enrolled member of the

Force, namely:-

Major Penalties :-

(i)......

(ii).....

(iii)......

(iv).....

(v) save as provided for in clause (viii) below, reduction to a lower stage in the time scale of pay for a specified period with further directions as to whether or not the enrolled member will earn increments of pay during the period of such reduction and whether on the expiry of such period, the reduction will have the effect of postponing the future increments of his pay. Minor penalties :-

(vi).....

(vii)....

(viii) Reduction to a lower stage in the time scale of pay by one stage for a period not exceeding three years, without cumulative effect and not adversely affecting his pension;

(ix) withholding of increment of pay; ............"

From conjoint reading of Rule 34(v) and Rule 34 (viii)

it appears that the contention of the petitioner that Rule-

34(v) stipulates for reduction to a lower stage as such the

reduction of pay for more than one stage is not permissible;

is wholly misconceived, inasmuch as, the letter 'a' in sub-

rule (v) does not denote "one stage" because for minor

penalties under sub-rule (viii) the punishment has been

stipulated as reduction to a lower stage in the time scale

pay by one stage for the period not exceeding three years.

The word 'a' used by the legislature i.e."reduction to

'a' lower stage" in Rule 34(v) does not mean for one stage.

The legislature was conscious by using the word 'a' in sub-

rule (v) and (viii). By looking to both the aforesaid sub-rules

it clearly transpires that "reduction to 'a' lower stage" is

used in both sub-rules; however, in sub-rule-(viii) which is

minor punishment the legislature has clarified by

incorporating "Reduction to a lower stage in the time scale of

pay by one stage", which is missing in case of sub-rule-(v)

of section-34 of CISF Rules.

If the contention of the petitioner is accepted and 'a'

is to be considered as 'one stage' then ; sub rule (viii) will

have no meaning which itself says reduction of lower stage

of time scale by one stage for the period not exceeding three

years.

15. In view of the aforesaid facts it is held that Rule 34

(v) does not speak for one lower stage and the letter 'a' does

not and cannot be read as 'one'. In this view of the matter

the contention of the petitioner is rejected.

16. So far as the contention of the petitioner with regard

to lesser punishment imposed to similarly situated person

is concerned; in the supplementary counter-affidavit it has

been clearly stated that the charge against this petitioner as

well as the co-employee was entirely different.

17. Further, so far as the contention of the petitioner

with regard to proportionality and quantum of punishment

is concerned; it is seen that since it is a case of theft and

the involvement of the petitioner has been proved in that

theft, as such, obviously it is a serious charge and

in the disciplined force any loss of confidence or faith

cannot be ignored. In this regard, reference may be made to

the judgment passed in the case of Divisional Controller,

N.E.K.R.T.C. Versus H.Amaresh reported in (2006) 6 SCC

187, wherein at para 8 it has been held as under;

"18. In the instant case, the misappropriation of the funds by the delinquent employee was only Rs 360.95. This Court has considered the punishment that may be awarded to the delinquent employees who misappropriated the funds of the Corporation and the factors to be considered. This Court in a catena of judgments held that the loss of confidence is the primary factor and not the amount of money misappropriated and that the sympathy or generosity cannot be a factor which is impermissible in law. When an employee is found guilty of pilferage or of misappropriating the Corporation's funds, there is nothing wrong in the Corporation losing confidence or faith in such an employee and awarding punishment of dismissal. In such cases, there is no place for generosity or misplaced sympathy on the part of the judicial forums and interfering therefore with the quantum of punishment. The judgment in Karnataka SRTC v. B.S. Hullikatti2 was also relied on in this judgment among others. Examination of the passengers of the vehicle from whom the said sum was collected was also not essential. In our view, possession of the said excess sum of money on the part of the respondent, a fact proved, is itself a misconduct and hence the Labour Court and the learned Judges of the High Court misdirected themselves in insisting on the evidence of the passengers which is wholly not essential. This apart, the respondent did not have any explanation for having carried the said excess amount. This omission was sufficient to hold him guilty. This act was so grossly negligent that the respondent was not fit to be retained as a conductor because such action or inaction of his was bound to result in financial loss to the appellant irrespective of the quantum."

18. Even otherwise, the disciplinary authority after

considering each and every aspect of the matter imposed

the punishment. Further so far as re-appreciation of

evidence is concerned that the letter of Munna Kisku which

is exhibit CO/D2 has not been considered and as such the

entire proceeding is vitiated, is not sustainable in the eye of

law because it is a settled principle that the writ court

cannot sit in appeal and cannot re-appreciate the evidence.

In this regard, the Hon'ble Apex Court in judgment

rendered in the case of Union of India and Others Vs. P.

Gunasekaran, reported in (2015) 2 SCC 610, has held at

para 12 and 13 as under;

"12. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, reappreciating even the evidence before the enquiry officer. The finding on Charge I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Articles 226/227 of the Constitution of India, shall not venture into reappreciation 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) reappreciate 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."

19. In view of the aforesaid discussions and findings; the

contention raised by the learned counsel for the petitioner

is rejected and the judgments referred by him is not

applicable in the facts and circumstances of this case.

Consequently, no relief can be granted to this

petitioner and the instant writ application stands dismissed

being devoid of merit.

(Deepak Roshan, J.) Jharkhand High Court Dated/20 /4 /2021 Amardeep/AFR