Ajay Kumar vs Union Of India
2023 Latest Caselaw 848 Jhar

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   IN THE HIGH COURT OF JHARKHAND AT RANCHI
                     L.P.A. No.357 of 2021
                               ----
Ajay Kumar, aged about 53 years, son of Late Asharfi Lal
Sahu resident of Qr. No.4/47, Sector-XI C, P.O. & P.S. -
Sector-XI, District - Bokaro, Jharkhand.
                          ...    ...    Petitioner/Appellant
                           Versus
1.    Union of India, through the Secretary, Ministry of Home
Affairs, Union of India, P.O. & P.S. Khan Market, New Delhi.
2.   Director General, Central Industrial Security Force,
CGO Complex, Lodhi Road, P.O. & P.S. - Khan Market, New
Delhi.
3.   Inspector General, Central Industrial Security Force,
Eastern Headquarters, Boring Road, P.O. Patna, P.S. Boring
road, Patna.
4.   Deputy Inspector General, Central Industrial Security
Force, Bokaro Steel City, Bokaro, P.O. & P.S. - Bokaro,
District - Bokaro.
5.   Senior Commandant/Administrator, Central Industrial
Security Force Unit, Bokaro Steel Limited, P.O., P.S., &
District - Bokaro (Jharkhand).
                     ...   ... Respondents /Respondents
                            -------
CORAM :          HON'BLE THE CHIEF JUSTICE
           HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
                             ------
For the Appellant        : Mr. Niranjan Kumar, Advocate
For the Respondents      : Mr. Sunil Kumar, C.G.C.
                           --------

Order No. 06 : Dated 22nd February, 2023

Per Sujit Narayan Prasad, J.

The instant intra-court appeal, under Clause 10 of the

Letters Patent, is directed against the order/judgment dated

19.07.2021 passed by learned Single Judge of this Court in

W.P.(S) No.2130 of 2010 whereby and whereunder the order

of punishment dated 12.02.2009 passed against the

appellant by which the punishment has been imposed of

lowering down his pay scale by two stages and his pay scale

has been reduced from Rs.7780 + 2400/- (BP+GP) to

Rs.7170+2400/- (BP+GP) for two years with a further

direction that during this period he will not earn any benefit

of annual increment and after end of the period the pay scale

will affect further annual increment, has been refused to be

interfered with by dismissing the writ petition.

2. Brief facts of the case as per the pleadings made in the

writ proceeding, which are required to be enumerated herein,

read as under :-

The appellant-petitioner had joined the service on 31st

May, 1999 as Head Constable in the Central Security Force

and worked with full satisfaction of his superior authorities at

different place of his posing.

While the appellant-petitioner was posted in the Central

Industrial Security Force Unit at Bokaro Steel Limited,

Bokaro, a Memo was issued to him on 06.11.2008 by which a

decision was taken to initiate disciplinary proceeding against

him for the allegation that he, at the time of duty, had taken

intoxicated material and behaved in a manner which is not

supposed to be behaved by a public servant and, as such, the

same is misconduct and indiscipline and further, in

intoxicated condition, the petitioner had committed

altercation with the other members of the personnel.

After issuance of memorandum of charge, the petitioner

participated in the departmental proceeding. The enquiry

officer, after conducting the enquiry, found the charges

proved against the petitioner and submitted his enquiry

report to the disciplinary authority.

The disciplinary authority, thereafter, passed the order

on 12.02.2009 inflicting major punishment upon the

petitioner of lowering down his pay scale by two stages and

his pay scale has been reduced from Rs.7780 + 2400/-

(BP+GP) to Rs.7170+2400/- (BP+GP) for two years and that

during this period he will not earn any benefit of annual

increment and after end of the period the pay scale will affect

further annual increment.

The writ petitioner, being aggrieved with the order of

punishment dated 12.02.2009 passed upon the

memorandum of charge pertaining to use of intoxicated

article which has been considered to be a gross misconduct

and indiscipline being a member of the disciplined force,

preferred appeal before the appellate authority but the same

has been dismissed vide order dated 16.07.2009.

Thereafter, the appellant-petitioner filed revision

application before the revisional authority but the same has

also been dismissed vide order dated 04.01.2010.

The appellant-petitioner, being aggrieved with the order

dated 12.02.2009 passed by the disciplinary authority, order

dated 16.07.2009 by the appellate authority and the order

dated 04.01.2010 passed by the revisional authority, has

preferred writ petition before this Court being W.P.(S)

No.2130 of 2010 and the learned Single Judge of this Court,

after taking into consideration the scope of judicial review

conferred to the High Court under Article 226 of the

Constitution of India and considering the nature of charge of

taking intoxicated material and the behavior which is not

supposed by a public servant, has refused to interfere with

the order of punishment by dismissing the writ petition,

which is the subject matter of the instant intra-court appeal.

3. Mr. Niranjan Kumar, learned counsel appearing for the

appellant-petitioner, has submitted that the learned Single

Judge has not appreciated the fact about applicability of the

punishment as has been inflicted as enshrined under Rule

34(iv) of the Central Industrial Security Force Rules, 2001

(hereinafter to be referred to as „Rules, 2001‟) whereby and

whereunder the nature of the same has been made to be

major punishment while it is evident from the list of

punishment as referred under Rule 34(viii) that the reduction

to a lower stage in the time scale of pay for a period of not

exceeding three years, without cumulative effect has been

provided therein and as such, the effect of punishment

imposed against the appellant-petitioner making it with

cumulative effect is contrary to the punishment enshrined

under the provision of Rule 34(viii) of Rules, 2001 and,

therefore, the order of punishment is not sustainable but the

learned Single Judge since has failed to appreciate this

aspect of the matter, therefore, the order impugned requires

interference by quashing and setting it aside.

4. Per contra, Mr. Sunil Kumar, learned counsel appearing

for the respondents, has submitted that there is no error in

the impugned order since the learned Single Judge has

refused to interfere with the order of punishment, after taking

into consideration the fact that on the basis of the nature of

allegation and the charge having been found to be proved, the

disciplinary authority has decided to impose punishment in

the nature of major penalty and, therefore, the punishment

under the head „Major Penalty‟ as contained under Rule 34

(iv) of the Rules, 2001 has been inflicted upon the appellant-

petitioner and, as such, the same cannot be said to suffer

from an error.

Learned counsel for the respondents has submitted in

response to the argument advanced on behalf of the appellant

that so far as the reference being made of punishment

enshrined under Rule 34(viii) of the Rules, 2001 is concerned,

the same is not at all applicable in the facts and

circumstances of the given case since the same is under the

head „Minor Penalties‟ but the disciplinary authority has

decided to impose major penalty considering the nature of

charge, therefore, the punishment as under the head „Major

Penalty‟ under Rule 34(iv), has been decided to be inflicted

upon the appellant-petitioner and, as such, there is no

question of applicability of punishment as enshrined under

Rule 34 (viii) of the Rules, 2001.

Learned counsel for the respondents, in the backdrop of

the aforesaid ground, has submitted that the order impugned

requires no interference.

5. We have heard the learned counsel for the parties,

perused the documents available on record as also

considered the finding recorded by the learned Single Judge

in the impugned order.

6. This Court, after going through the factual aspect, has

found from the material available on record that the

appellant-writ petitioner was working under the Central

Industrial Security Force (CISF) and was proceeded

departmentally for the charges that he, at the time of duty,

had taken intoxicated material and behaved in a manner

which is not supposed to be behaved by a public servant and,

as such, the same is misconduct and indiscipline and

further, in intoxicated condition, the petitioner had abused

the other members of the Unit.

The writ petitioner-appellant was subjected to the

enquiry in which he had fully participated without making

any complaint of not providing adequate and sufficient

opportunity.

The enquiry officer found the charges proved which

having been accepted by the disciplinary authority, the

punishment of lowering down his pay scale by two stages and

his pay scale has been reduced from Rs.7780 + 2400/-

(BP+GP) to Rs.7170+2400/- (BP+GP) for two years and that

during this period he will not earn any benefit of annual

increment and after end of the period the pay scale will affect

further annual increment, has been imposed.

The writ petitioner-appellant, being aggrieved with the

said order, preferred statutory appeal before the Deputy

Inspector General but the same has also been dismissed vide

order dated 16.07.2009. Thereafter, he preferred revision

against the same, but that was also dismissed vide order

dated 04.01.2010.

The writ petitioner-appellant, being aggrieved with the

orders dated 12.02.2009 of the disciplinary authority, order

dated 16.07.2009 of the appellate authority and the order

dated 04.01.2010 of the revisional authority, has challenged

the same by filing writ petition being W.P.(S) No.2130 of 2010

but the writ petition has also been dismissed taking into

consideration the scope of judicial review in showing

interference with the orders passed by the administrative

disciplinary authorities.

7. The writ petitioner - appellant has raised two issues

while questioning the impugned order, i.e., (i) the order

impugned requires interference on merit and (ii) the

punishment imposed as enshrined under Rule 34(iv) of the

Rules, 2001 was at all not attracted, rather the punishment

enshrined under Rule 34(viii) of the Rules, 2001 was required

to be inflicted upon the writ petitioner-appellant and the

basic difference between these two punishments are that the

punishment prescribed under Rule 34 (iv) of lower down the

pay scale is with cumulative effect while the punishment as

enshrined under Rule 34(viii) contains punishment of

lowering down the pay scale without cumulative effect.

The ground has been taken that in the facts and

circumstances, the authority ought to have imposed

punishment under Rule 34(viii) of the Rules, 2001.

8. So far as the first ground is concerned which pertains to

the power of judicial review of the High Court in showing

interference with the order passed by the administrative

disciplinary authority is concerned, the law is well settled

that the scope of judicial review is very least to be exercised

by the High Court sitting under Article 226 of the

Constitution of India.

The Hon‟ble Apex Court while dealing with the scope of

power under Article 226 of the Constitution of India, has

considered the same in the case of Union of India v. P.

Gunasekaran reported in AIR 2015 SC 545 wherein at

paragraph 13 thereof, the following guidelines has been laid

down for showing interference in the decision taken by the

disciplinary authority and not to interfere with the decision

which reads hereunder as:

"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

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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."

We have examined the issue as per the guidelines

stipulated by Hon'ble Apex Court in the aforesaid judgment

and after going through the material available on record, we

are of the view that no case is made out to interfere with the

impugned decision of the authority so far as its merit is

concerned since the order of punishment has been passed by

the authority on the basis of the proved charge which has

been proved after providing due opportunity of hearing to the

writ petitioner - appellant in course of enquiry. The writ

petitioner-appellant has also not raised the issue of

jurisdiction or perversity.

9. This Court, therefore, is of the view that considering the

nature of the allegation levelled against the writ petitioner-

appellant which is of taking intoxicated material and

behaving not like a member of the disciplined force, the

enquiry officer has found the charge proved and the same

having been accepted by the disciplinary authority, the

punishment as enshrined under Rule 34(iv) of the Rules,

2001 has been imposed, as such, it is not a case where this

Court, under Article 226 of the Constitution of India, is to

exercise power showing interference.

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Accordingly, this ground is having no substance and, as

such, the same is hereby rejected.

10. The second ground has been agitated about the

applicability of the punishment as referred under Rule 34(viii)

of the Rules, 2001 and not the punishment which has been

imposed as stipulated under Rule 34(iv) of the Rules, 2001.

11. This Court, in order to answer the instant ground,

deems it fit and proper to refer the punishment as stipulated

under Rule 34 of Rules, 2001 which reads hereunder as:-

"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) dismissal from service which shall ordinarily be a disqualification for future employment under the Government;

(ii) removal from service which shall not be a disqualification for future employment under the Government;

(iii) compulsory retirement

(iv) reduction to lower time scale of pay, grade, post or service for a period to be specified in the order of penalty, which shall be a bar to the promotion of the enrolled member of the Force during such specified period to the time scale of pay, grade, post or service from which he was reduced, with direction as to whether or not, on promotion on the expiry of the said specified period-

(a) the period of reduction to time-scale of pay, grade, post or service shall operate to postpone future increments of his pay; and if so, to what extent; and

(b) the enrolled member of the Force shall regain his original seniority in the higher time scale of pay, grade, post or service.]

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(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) censure,

(vii) withholding of his promotion;

(viii) reduction to a lower stage in the time scale of pay for a period of not exceeding three years, without cumulative effect and not advenely affecting his pension

(ix) withholding of increment of pay;

(x) fine to any amount not exceeding of 7 days' pay."

It is evident from the list of punishment which contains

under its two heads, one is under Major Penalties and

another is under Minor Penalties.

Under the head „major Penalties‟ the punishment as has

been referred under Rule 34(iv) stipulates about reduction to

lower time scale of pay, grade, post or service for a period to

be specified in the order of penalty, which shall be a bar to

the promotion of the enrolled member of the Force during

such specified period to the time scale of pay, grade, post or

service from which he was reduced, with direction as to

whether or not, on promotion on the expiry of the said

specified period the period of reduction to time-scale of pay,

grade, post or service shall operate to postpone future

increments of his pay; and if so, to what extent; and the

enrolled member of the Force shall regain his original

seniority in the higher time scale of pay, grade, post or

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service.

Admittedly herein, the memorandum of charge has been

issued and while issuing the aforesaid memorandum of

charge vide Memo dated 06.11.2008, the decision was taken

to conduct an enquiry in pursuance to the provision as

contained under Rule 36 of the Rules, 2001. Rule 36

stipulates procedure for imposing Major Penalties. Since the

departmental proceeding was initiates for imposing Major

Penalties, as such, the punishment as enshrined under the

head „Major Penalties‟ is required to be inflicted after the

charge having been proved against the writ petitioner-

appellant.

The punishment as inflicted i.e., lowering down his pay

scale by two stages and his pay scale has been reduced from

Rs.7780 + 2400/- (BP+GP) to Rs.7170+2400/- (BP+GP) for

two years and that during this period he will not earn any

benefit of annual increment and after end of the period the

pay scale will affect further annual increment, is in

pursuance of the punishment as enshrined under Rule 34(iv)

of the Rules, 2001 which is under the head „Major Penalties‟

while the punishment as enshrined under Rule 34(viii) of the

Rules, 2001 is under the head „Minor Penalties‟ and, as such,

the same is not to be inflicted in view of the fact that the

enquiry has been initiated under the provision of Rule 36 of

the Rules, 2001 which stipulates for imposing Major Penalties

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and, therefore, the punishment stipulated under the head

„Minor Penalties‟ cannot be imposed.

12. This Court, therefore, is of the considered view that the

argument which has been advanced by questioning the

punishment under Rule 34(viii) instead of Rule 34(iv) of the

Rules, 2001, is having no substance.

Accordingly, the same is hereby rejected.

13. This Court, after discussing the fact in entirety as above

and taking into consideration the law laid down by the

Hon'ble Apex Court and after considering the same, when the

order impugned has been scrutinized, the same, according to

our considered view, requires no interference.

14. Accordingly, the instant appeal fails and is dismissed.

(S.K.Mishra, C.J.)

(Sujit Narayan Prasad, J.) Birendra/ A.F.R.