Ram Kumar Singh vs Union Of India Through The ...
2023 Latest Caselaw 2640 Jhar

                                          1


             IN THE HIGH COURT OF JHARKHAND AT RANCHI
                                  L.P.A. No. 313 of 2022
                                          With
                                  I.A. No. 2693 of 2023
         Ram Kumar Singh, aged about 54 years, son of Chanchal Prasad, Resident
         of E-95, Area No.6, DVC Colony, Maithon, P.O., P.S. Maithan & District-
         Dhanbad.

                                                           ... ... Petitioner/Appellant
                                              Versus

     1. Union of India through the Director General, CISF, Block 13, CGO
         Complex, Lodhi Road, P.O., P.S. & District-New Delhi.

     2. The Inspector General, CISF, Patliputra Colony, P.O., P.S. & District-
         Patna.

     3. The Deputy Inspector General, CISF, BCCL Unit, P.O., P.S. Koyla Nagar
         & District-Dhanbad.

                                                       ... ... Respondents/Respondents
                                        -------
      CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
                      HON'BLE MR. JUSTICE NAVNEET KUMAR
                                        -------
      For the Appellant   : Mr. Ajit Kumar, Sr. Advocate
                            Ms. Tanya Singh, Advocate
      For the Respondents : Mrs. Nitu Sinha, C.G.C.
                          ----------------------------
ORAL JUDGMENT
06/Dated: 07th August, 2023
Per Sujit Narayan Prasad, J.

I.A. No. 2693 of 2023:

1. This interlocutory application has been filed for condoning the delay of 52 days, which has occurred in preferring this appeal.

2. Mr. Ajit Kumar, learned senior counsel appearing for the appellant-writ petitioner has submitted that after the impugned order having been passed by this Court vide order dated 21.04.2022, the writ petitioner took some time to take legal advice for filing the letters patent appeal due to which delay of 52 days has occurred in filing the instant appeal. Therefore, it has

been prayed that the delay of 52 days in preferring the instant appeal may be condoned and the appeal may be heard on merit.

3. Mrs. Nitu Sinha, learned counsel appearing for the respondent has not objected to such prayer of the learned counsel for the appellant rather she has submitted that the delay may be condoned so that the issue be decided on merit.

4. This Court, considering the reason assigned therein and having no opposition on behalf of the respondents, is of the view that the delay of 52 days in preferring the instant appeal is required to be condoned.

5. Accordingly, this interlocutory application is allowed and the delay of 52 days in preferring this appeal, is hereby condoned.

L.P.A. No. 313 of 2022:

6. The instant appeal under clause 10 of the Letters Patent is directed against the order/judgment dated 21.04.2022 passed by the learned Single Judge of this Court in W.P.(S) No. 350 of 2009, whereby and whereunder, the order of punishment passed by the original, appellate and the revisional authority has been refused to be interfered with by dismissing the writ petition.

7. The brief facts of the case which requires to be enumerated herein, read as under:

That on 16.05.2007, the writ petitioner made an application before respondent no.3 mentioning therein that he came to know on 14.05.2007 from the said respondent that one PCO shopkeeper has claimed Rs.1300/- as outstanding dues against him and clarified his position and requested the respondent to look into the matter. Thereafter, vide letter dated 23.06.2007, the writ petitioner made application to his Dy. Commandant asking for the copy of the complaint which were made against him but in spite of supplying the same, the Dy. Commandant issued a letter to the writ petitioner vide letter no.318 dated 23.06.2007 advising him to settle the matter with those persons.

The respondents issued a charge-sheet vide letter no. 15014 dated 20.11.2007 consisting of four charges. The writ petitioner replied the show cause denying the charges which was returned vide letter no. 1040 dated 05.12.2007.

The writ petitioner again filed an application dated 11.12.2007 to the respondent no.3 praying to consider his reports given earlier to the authority concerned but it was not considered and departmental enquiry was initiated against him.

It is the case of the writ petitioner that the respondent without paying heed to all these infirmities showed all the allegations proved against the writ petitioner and sent the brief of enquiry to him vide letter no. 280 dated 17.02.2008.

The writ petitioner was thereafter served with a second show cause notice dated 03.04.2008 which was duly responded by the writ petitioner denying all the charges levelled against him. The respondent passed the order dated 30.04.2008 which was challenged by filing an appeal on 05.05.2008 before the appellate authority which was also rejected vide order dated 30.07.2008 against which, revision was preferred on 20.09.2008 which was also rejected vide order dated 22.12.2008.

Being aggrieved with the same, the writ petitioner preferred a writ petition being W.P.(S) No. 350 of 2009, whereby and whereunder, order of punishment passed by the original, appellate and the revisional authority has been refused to be interfered with by dismissing the writ petition.

8. It is evident from the factual aspect as referred hereinabove that the writ petitioner was departmentally proceeded by issuance of charge sheet on 20.11.2007 leveling therein altogether four charges.

"Article of Charge-I

An act of gross misconduct, deception and indiscipline in which No. 911360266 Insp/Fire R.K. Singh of CISF Unit DVC Maithon had taken Rs. 200/- (Rupees two hundred only) during the year 2006 as loan from No. 931360219 SI/Fire Abhay Kumar Singh of CISF Unit DVC Maithon presently posted at CISF Unit RSTPP Rihandnagar and when SI/Fire Abhay Kumar Singh asked to refund the said loan amount, No. 911360266 Insp/Fire/R.K.

Singh refused to return the said amount and abused SI/Fire Abhay Kumar Singh by using unparliamentary language."

Article of Charge-2

An act of gross misconduct, deception and violation of Rule-15 (1) (b) of conduct rules, 1964 in which No. 911360266 Insp/Fire R.K. Singh of CISF Unit DVC Maithon has engaged himself in negotiation for providing loans to civilians without obtaining the previous sanction of the competent authority. For this purpose he had collected money from following personnel by giving false assurance to provide loans:

Sl. No. Name & address Amount

1. Shri Santosh Kumar Singh S/O Late Rs. 2000/-

Yadunanda Singh resident of Q. No. 19/03 K type, Kali Pahadi, Maithon

2. Shri Manoj Kumar Saw S/o Arjun Saw Rs. 6000/-

resident of Area No. 4, Tempo stand More, Maithon

3. Shri Rajesh Kumar Karmakar S/o Vijay Rs. 3000/-

Kumar, Qtr. No. MH-238/E, Aajad Nagar Maithon

Article of Charge-3

An act of gross misconduct, deception and tarnishing the image of Force in public in which No. 911360266 Insp/Fire/R.K. Singh of CISF Unit DVC Maithon refused to return the cost of grocery items, tea and telephone calls, which he has taken/made on loan basis, inspite of repeated requests of the shop owners. The details of the same are as under-

         Sl. No.                      Name & address              Amount
         1.             Shri Manoj Kumar Saw S/o Arjun Saw      Rs. 2,560/-
                        resident of Area No. 4, Tempo Stand More,
                                                                (cost      of
                        Maithon                                 ration)

2. Shri Madhusudan Prasad Singh, S/o Late Rs. 1309/-

Rajendra Prasad, Area No. 4, New Market,(Telephone Maithon call charges)

3. Shri Sukhdev Ram S/o Late Rameshwar Rs. 117/-

Ram, Aampura Basti, Area No. 5, Maithon (Tea charges)

Article of charge 4

That, No. 911360266 Insp/Fire R.K. Singh of CISF Unit DVC Maithon inspite of having been awarded 13 punishments for various misconducts in the past, he has failed to correct himself and remained incorrigible."

9. The writ petitioner has defended the charge but having not been found to be satisfactory, the decision was taken for commencing regular departmental proceeding and in terms thereof, enquiry officer was appointed before whom the writ petitioner has appeared and defended his case by putting forth his defence. The enquiry officer, however, has found the charges proved and thereafter, the same was forwarded before the disciplinary authority. The disciplinary authority has accepted the said

finding and awarded the writ petitioner with the punishment of compulsory retirement vide order dated 30.04.2008 passed by the respondent no.3 to the writ petition. The aforesaid order was refused to be interfered with by the appellate authority and the revisional authority vide orders dated 30.07.2008 and 22.12.2008 respectively.

Being aggrieved with the punishment of compulsory retirement has filed a writ petition being W.P.(S) No. 350 of 2009 but the said writ petition had also been dismissed by refusing to interfere with the impugned orders, against which the instant appeal has been preferred.

10. Mr. Ajit Kumar, learned senior counsel appearing for the appellant-writ petitioner has submitted that the entire fact has not properly been appreciated by the enquiry officer while proving the charge since no documentary evidence in support of the charge as has been levelled in the memo of charge of taking loan from the civilians, has been brought on record.

11. It has further been submitted that even accepting the charge to be correct, then, the same does not require for giving major punishment of compulsory retirement when under the list of punishment, other major punishments are there, i.e., withholding of the increment or lowering down of pay-scale as would appear from the provision of Ruel 34 of the Central Industrial Security Force Rules, 2001 as under Rule 34(v) and Rule 34(vi) thereof.

12. Learned senior counsel, on the aforesaid premise, has submitted that the impugned order having been passed by the original, appellate and revisional authority cannot be said to be proper at least on the ground of quantum. The aforesaid aspect of the matter has also not been appreciated in right perspective by the learned Single Judge, therefore, the present appeal.

13. Per contra, Mrs. Nitu Sinha, learned counsel appearing for the respondents has defended the order passed by the learned Single Judge by making submission that there are appreciation of the facts based upon the finding recorded by the disciplinary authority having been affirmed by the appellate and revisional authority, hence, if the learned Single Judge has

refused to interfere with the decision taken by the administrative authority, the same cannot be said to be incorrect by taking into consideration the scope of judicial review in exercise of power conferred under Article 226 of the Constitution of India.

14. It has also been submitted by responding to the argument advanced on behalf of the appellant that no documentary evidence has been produced in support of imputation of charge as has been levelled in the memorandum of charge, that the witnesses have duly been supported the aforesaid charge in course of enquiry but the delinquent, the writ petitioner, has refused to cross-examine and as such, the enquiry officer has considered the said aspect of the matter to be admission on behalf of the writ petitioner and if on that ground, the charge has been found to be proved based upon the deposition of the witnesses, the same cannot be said to suffer from perversity and once the finding is not perverse, there is no reason to exercise the power of judicial review.

15. Learned counsel, on the aforesaid premise, has submitted that if in such premise, the learned Single Judge has refused to interfere with the administrative decision of the disciplinary authority, the same cannot be said to suffer from error.

16. We have heard the learned counsel for the parties, perused the documents available on record as also the finding recorded by the learned Single Judge.

17. The issue pertains to the legality and propriety of the decision taken by the administrative disciplinary authority as per the ground taken on behalf of the appellant that the finding recorded by the enquiry officer is not based upon the any documentary evidence and the same is perverse. The second argument has been advanced that the punishment of compulsory retirement since is a major punishment taking into consideration the nature of charge, the same is disproportionate to the offence committed, if any.

18. While, on the other hand, Mrs. Nitu Sinha, learned counsel for the respondents has refuted the said argument basis her submission regarding the scope of judicial review which is to be exercised by the High Court in

exercise of power conferred under Article 226 of the Constitution of India. Therefore, this Court, before appreciating the argument advanced on behalf of the parties and coming to the factual aspect, deems it fit and proper to refer the settled position of law as has been settled by the Hon'ble Apex Court in various cases regarding power of judicial review which is to be exercised in the matter of decision taken by the administrative authority. Reference may be made to the judgment rendered by the Hon'ble Apex Court in Union of India vs. P. Gunasekaran, AIR 2015 SC 545 wherein at paragraph 13 thereof, following guidelines have been laid down for showing interference in the decision taken by the disciplinary authority and not to interfere with the decision which read as under:

"13. 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, re-appreciating even the evidence before the enquiry officer. The finding on Charge No. 1 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 Article 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.

Under Article 226/227 of the Constitution of India, the High Court shall not:

(i). re-appreciate 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. The Hon'ble Apex Court in Management of State Bank of India vs. Smita Sharad Deshmukh and Anr., (2017) 4 SCC 75, has laid down that it is equally settled position of law that the High Court sitting under Article 226 of the Constitution of India can certainly interfere with the quantum of punishment, if it is found disproportionate to the gravity of offence.

20. In Central Industrial Security Force and Ors. vs. Abrar Ali, AIR 2017 SC 200, the following guidelines have been laid down, showing interference by the High Court in the matter of punishment imposed on conclusion of the departmental proceeding, the extract of para-8 thereof, is referred hereinbelow:

"8. Contrary to findings of the Disciplinary Authority, the High Court accepted the version of the Respondent that he fell ill and was being treated by a local doctor without assigning any reasons. It was held by the Disciplinary Authority that the Unit had better medical facilities which could have been availed by the Respondent if he was really suffering from illness. It was further held that the delinquent did not produce any evidence of treatment by a local doctor. The High Court should not have entered into the arena of facts which tantamounts to reappreciation of evidence. It is settled law that re-appreciation of evidence is not permissible in the exercise of jurisdiction under Article 226 of the Constitution of India. In State Bank of Bikaner and Jaipur v. Nemi Chand Nalwaiya, reported in (2011) 4 SCC 584 : (AIR 2011 SC 1931, Para 6), this Court held as follows:

"7. It is now well settled that the courts will not act as an appellate court and reassess the evidence led in the domestic inquiry, nor interfere on the ground that another view is possible on the material on record. If the inquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be grounds for interfering with the findings in departmental enquiries. Therefore, courts will not interfere with findings of fact recorded in departmental enquiries, except where such findings are based on no evidence or where they are clearly perverse. The test to find out perversity is to see whether a tribunal acting reasonably could have arrived at such conclusion or finding, on the material on record. The courts will however interfere with the findings in disciplinary matters, if principles of natural justice or statutory regulations have been violated or if the order is found to be arbitrary, capricious, mala fide or based on extraneous considerations. (Vide B.C. Chaturvedi v. Union of India [(1995) 6 SCC 749: 1996 SCC (LandS) 80: (1996) 32 ATC 44] : (AIR 1996 SC 484) ; Union of India v. G. Ganayutham [(1997) 7 SCC 463: 1997 SCC (LandS) 1806] : (AIR 1997 SC 3387) ; Bank of India v. Degala Suryanar-ayana [(1999) 5 SCC 762: 1999 SCC (LandS) 1036] : (AIR 1999 SC 2407) and High Court of Judicature at Bombay v. Shashikant S. Patil. (AIR 2000 SC 22)".

In Union of India and Ors. v. P. Gunasekaran, reported in (2015) 2 SCC 610 : (AIR 2015 SC 545, Para 13), this Court held as follows:

"13. 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, re-appreciating even the evidence before the inquiry 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 Article 226/227 of the Constitution of India, shall not venture into reappreciation of the evidence. The High Court can only see whether:

(a) the inquiry is held by a competent authority;

(b) the inquiry 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.

Under Article 226/227 of the Constitution of India, the High Court shall not:

(i) re-appreciate the evidence;

(ii) interfere with the conclusions in the inquiry, 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."

21. The law is also settled regarding the consideration to be given by the High Court under Article 226 of the Constitution of India regarding the proportionality of the punishment by taking into consideration the gravity of charge as per the ratio laid down by the Hon'ble Apex Court wherein it has been held that the interference in the order of punishment can be made if the conscience of the Court shocks that the punishment which has been imposed is highly disproportionate to the offence committed but while coming to such conclusion, it is incumbent upon the High Court to give a reason as to why the conscience of the Court has shocked. Reference in

this regard be made to the judgment rendered by the Hon'ble Apex Court in Director General, RPF and Ors. Vs. Ch. Sai Babu, (2003) 4 SCC 331 wherein at paragraph-6 it has been observed that the punishment imposed was extreme was not enough to disturb or modify the punishment imposed on a delinquent officer since the learned Single Judge has not recorded reasons to say as to how the punishment imposed on the respondent was shockingly or grossly disproportionate to the gravity of charges held proved against the respondent. Paragraph-6 of the said judgment is being reproduced as under:

"6. As is evident from the order of the learned Single Judge, there has been no consideration of the facts and circumstances of the case including as to the nature of charges held proved against the respondent to say that penalty of removal from service imposed on the respondent was extreme. Merely because it was felt that the punishment imposed was extreme was not enough to disturb or modify the punishment imposed on a delinquent officer. The learned Single Judge has not recorded reasons to say as to how the punishment imposed on the respondent was shockingly or grossly disproportionate to the gravity of charges held proved against the respondent. It is not that in every case of imposing a punishment of removal or dismissal from service a High Court can modify such punishment merely by saying that it is shockingly disproportionate. Normally, the punishment imposed by a disciplinary authority should not be disturbed by the High Court or a tribunal except in appropriate cases that too only after reaching a conclusion that the punishment imposed is grossly or shockingly disproportionate, after examining all the relevant factors including the nature of charges proved against, the past conduct, penalty imposed earlier, the nature of duties assigned having due regard to their sensitiveness, exactness expected of and discipline required to be maintained, and the department/establishment in which the delinquent person concerned works".

22. This Cout is now proceeding to examine the argument and the factual aspect by taking into consideration the finding recorded by the enquiry officer. Although the enquiry report has not been made part of the paperbook but the entire finding of the enquiry officer has been reiterated by the disciplinary authority by imposing the punishment of compulsory retirement as would appear from the order dated 30.04.2008 as appended as Annexure-17.

23. We, on consideration of the said finding, has found that the enquiry officer has issued notice to the person concerned from whom the allegation of taking loan has been levelled against the appellant. All the persons concerned have been examined as witnesses on behalf of the employer and as would appear from the discussion so made by the

disciplinary authority that all have supported the charges levelled against the appellant. Further, it appears that the witnesses who have supported the charge have been left for cross-examination by the appellant but the appellant has refused to cross-examine.

24. The enquiry officer, therefore, has come to the finding as would appear from the original order that in absence of any cross-examination, the testimony of the witnesses will be treated to be in admission on behalf of the appellant-writ petitioner and basis upon the same understanding, the enquiry officer has found the charges proved against the appellant.

25. The charge no.1 is with respect to taking loan from the CISF personnel while charge no.2 is with respect to engaging himself in negotiation for providing loans to civilians without obtaining the previous sanction of the competent authority, charge no.3 is with respect to misutilizing his official position by refusing to return the cost of grocery items, tea and telephone calls, which he has taken/made on the loan basis in spite of repeated requests of the shop owners and charge no.4 is with respect to the punishment already imposed so as to show that he is habitual in causing nuisance even though he is a member of the discipline force.

26. In view of the aforesaid discussion and taking into consideration the argument advanced on behalf of the parties, this Court is now proceeding to consider two issues, i.e.,

(i) Whether the finding recorded by the enquiry officer can be said to be perverse and;

(ii) Whether any interference in the order of punishment can be made on the ground of quantum of punishment said to be shockingly disproportionate.

27. Issue no.1: So far as the said issue is concerned, as has been laid down by the Hon'ble Apex Court by propounding the guidelines to show interference that the enquiry report must be perverse. Perversity means that if any material has been put forth before the adjudicator or the Court of Law in the judicial capacity or in the quasi-judicial capacity, if not considered or if erroneously considered, then, the same will be said to be

perverse. The word 'perverse' has been interpreted by the Hon'ble Apex Court in Arulvelu and Anr. vs. State [Represented by the Public Prosecutor] and Anr., (2009) 10 SCC 206 while elaborately discussing the word perverse has held that it is, no doubt, true that if a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then, the finding is rendered infirm in law. Relevant paragraphs, i.e., paras-24, 25, 26 and 27 of the said judgment reads as under:

"24. The expression "perverse" has been dealt with in a number of cases. In Gaya Din v. Hanuman Prasad [(2001) 1 SCC 501] this Court observed that the expression "perverse" means that the findings of the subordinate authority are not supported by the evidence brought on record or they are against the law or suffer from the vice of procedural irregularity.

25. In Parry's (Calcutta) Employees' Union v. Parry & Co. Ltd. [AIR 1966 Cal 31] the Court observed that "perverse finding" means a finding which is not only against the weight of evidence but is altogether against the evidence itself. In Triveni Rubber & Plastics v. CCE [1994 Supp (3) SCC 665 : AIR 1994 SC 1341] the Court observed that this is not a case where it can be said that the findings of the authorities are based on no evidence or that they are so perverse that no reasonable person would have arrived at those findings.

26. In M.S. Narayanagouda v. Girijamma [AIR 1977 Kant 58] the Court observed that any order made in conscious violation of pleading and law is a perverse order. In Moffett v. Gough [(1878) 1 LR 1r 331] the Court observed that a "perverse verdict" may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence. In Godfrey v. Godfrey [106 NW 814] the Court defined "perverse" as turned the wrong way, not right; distorted from the right; turned away or deviating from what is right, proper, correct, etc.

27. The expression "perverse" has been defined by various dictionaries in the following manner:

1. Oxford Advanced Learner's Dictionary of Current English, 6th Edn.

"Perverse.--Showing deliberate determination to behave in a way that most people think is wrong, unacceptable or unreasonable."

2. Longman Dictionary of Contemporary English, International Edn.

Perverse.--Deliberately departing from what is normal and reasonable.

3. The New Oxford Dictionary of English, 1998 Edn.

Perverse.--Law (of a verdict) against the weight of evidence or the direction of the judge on a point of law.

4. The New Lexicon Webster's Dictionary of the English Language (Deluxe Encyclopedic Edn.)

Perverse.--Purposely deviating from accepted or expected behavior or opinion; wicked or wayward; stubborn; cross or petulant.

5. Stroud's Judicial Dictionary of Words & Phrases, 4th Edn.

"Perverse.--A perverse verdict may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence.""

28. This Court is now proceeding to examine as to whether the finding recorded by the enquiry officer can be said to be perverse. As we have already referred hereinabove by taking note of the fact that the witnesses from whom the loan have been taken by the writ petitioner have been made witnesses who have supported the imputation of charge in their chief. The delinquent employee has refused to cross-examine the witnesses. The enquiry officer has taken into consideration the aforesaid aspect of the matter in entirety and as such, according to our considered view, the same cannot be said to be perverse finding.

29. The charge is also required to be referred hereinabove. Although the law is well settled that on the basis of the previous punishment there cannot be any punishment otherwise it will lead to double punishment for same offence but the law is well settled that while considering the conduct of the delinquent employee, the disciplinary authority is to take into consideration his habit and his past conduct and if the same is to be considered then a separate charge is to be formulated so that the concerned delinquent employee be able to respond regarding his propriety/correctness.

30. It appears from the finding recorded as has been discussed by the disciplinary authority that the imputation of charge no.4 regarding 13 punishments already imposed have not been disputed.

31. This Court, therefore, is of the view that the charge no.4 has been taken as an aid to meet out the services of the writ petitioner holding him not fit to be a member of the discipline force by taking into consideration his conduct as per the charge nos.1, 2 and 3 as referred hereinabove.

32. The disciplinary authority, on consideration of the finding, has found the conduct of the writ petitioner fit not to be a member of the disciplined force and accordingly, punishment which is lesser in gravity in comparison to that of the dismissal and removal has been imposed. The matter would have been different if the finding so recorded by the enquiry officer is found to be perverse but we have already observed hereinabove by going through the discussion made by the disciplinary authority by that the finding so recorded by the enquiry officer is not perverse and accordingly, this Court is of the view that when the finding recorded by the enquiry officer is not perverse and suffers from no impropriety, the punishment based upon the same cannot be said to suffer from error. The said finding is being given by taking into consideration the limited scope of the High Court in exercise of power conferred under Article 226 of the Constitution of India wherein the evidence is not to be reappreciated.

Accordingly, the issue no.1 is answered.

33. Issue no.2: The said issue pertains to the proportionality of punishment as has been held by the Hon'ble Apex Court in Director General, RPF and Ors. Vs. Ch. Sai Babu (supra) that while considering the issue of quantum of punishment, interference can be shown by the High Court in exercise of power conferred under Article 226 of the Constitution of India but while doing so, it is incumbent upon the Court to assign reason as to what lead the High Court in coming to the conclusion that the punishment so inflicted is highly disproportionate to the misconduct.

34. It is also required to refer herein that the parameter to be considered for a member of the disciplined force and the civilian are totally different since the expectation from the member of disciplined force is having more and if there will be any misutilization of the post by a member of the disciplined force, the same will lead to an anarchical situation in the entire discipline force which is not permissible.

35. (i) Further, the proportionality is to be seen from the nature of misconduct in the allegation levelled and the charge sheet herein, according to our considered view, is based upon the imputation of charge that the writ petitioner while holding the post of Sub-Inspector in the Central Industrial

Security Force has misutilized his official position by taking loan and by not repaying it as per the shopkeepers from where he has purchased grocery items etc. There can be an excuse that a member of the discipline force can taken loan or purchase grocery item on the condition of making payment after some time but that is not the allegation herein, rather, the allegation is that the writ petitioner has taken loan from the civilians as also has given false commitment to provide loan without due permission of the sanctioning authority and even refused to return the money to the shopkeepers from whom the foodgrains or the tea, etc. have been purchased/consumed.

(ii) This misconduct shows that the writ petitioner being a member of the disciplined force has misutilized his official position and the aforesaid aspect of the matter has duly been supported by the witnesses, the complainant, from whom either money was taken or false commitment was given for providing loan facilities without any sanction from the competent authority.

(iii) Therefore, this Court is of the view that if the disciplinary authority has imposed punishment of compulsory retirement so as to weed out the writ petitioner from service even though under the head of major penalties, Rule 34 of the CISF Rules, 2001, harshest punishment is dismissal then removal then compulsory retirement and in that view of the matter, according to our considered view, the authorities have taken lenient view in inflicting punishment of compulsory retirement so as to separate him from service and simultaneously his future has been taken care of since the writ petitioner was entitled for pensionary benefit when the order of punishment was passed and as has been submitted at bar that the writ petitioner is getting the facility of the compulsory retirement based upon his services rendered.

Accordingly, the issue no.2 is answered.

36. This Court, after having discussed the factual aspect and coming to the order passed by the learned Single Judge, is of the view that the learned Single Judge has taken into consideration the fact both on fact and law as

has been referred hereinabove. Therefore, this Court is of the view that the same requires no interference.

37. Accordingly, the instant appeal fails and stands dismissed.

38. Pending interlocutory application(s), if any, also stands disposed of.

(Sujit Narayan Prasad, J.)

(Navneet Kumar, J.) Saurabh/-

A.F.R.