Manipur High Court
Md. Riyaj Ahmad vs The Union Of India on 25 April, 2024
Author: A. Guneshwar Sharma
Bench: A. Guneshwar Sharma
Digitally signed by
JOHN JOHN TELEN KOM
TELEN KOM Date: 2024.05.03
12:38:12 +05'30'
IN THE HIGH COURT OF MANIPUR
AT IMPHAL
WP(C)No.314 of 2014
Md. Riyaj Ahmad, aged about 39 years, S/o (L) Md. Siraj Ahmad, resident
of Sangaiyumham Puleipokpi, PO & PS and District Thoubal, Manipur.
......Petitioner
- Versus -
1. The Union of India, through the Secretary, Ministry of Home Affairs,
Government of India, New Delhi.
2. The Director General, Central Industrial Security Force(CISF),
Government of India, New Delhi.
3. The Inspector General/APS, Central Industrial Security Force(CISF),
APS Head Quarter, Government of India, New Delhi.
4. The Deputy Inspector General, CASO, CISF Unit, IGI Airport, New
Delhi.
5. The Commandant, CISF Unit, IGI Airport, New Delhi.
.... Respondents
BEFORE
HON'BLE MR. JUSTICE A. GUNESHWAR SHARMA
For the Petitioner : Mr. Kh. Tarunkumar, Sr. Adv. &
Mr. Jamon, Advocate
WP(C)No. 314 of 2014 Page 1
For the Respondents : Mr. S. Samarjeet, Sr. PCCG.
Date of Hearing : 11.01.2024.
Date of Judgement : 25.04.2024
JUDGEMENT&ORDER
(CAV)
[1] Heard Mr. Kh. Tarunkumar, learned senior counsel on behalf of
the petitioner and Mr. S. Samarjeet, learned Sr. PCCG for Union of India.
[2] The present writ petition has been filed by the petitioner praying
inter alia for issuance of a writ in the nature of Certiorari/ Mandamus or any
other appropriate direction to quash and set aside the impugned dismissal
order dated 18.07.2013 and appeal rejection order dated 24.10.2013 and
proceedings of the departmental initiated against the petitioner coupled with
a prayer to reinstate the petitioner to his post of constable in the CISF with
full back wages and other consequential benefits.
[3] The brief facts of the case narrated in the petition are that the
petitioner was earlier serving as a constable in the Central Security Force
and was officially posted at the Indira Gandhi International Airport, New Delhi
at the relevant time. On 27.09.2012, he received a telephone call from his
home by his brother to join at a prayer session at his home for Haj pilgrims
WP(C)No. 314 of 2014 Page 2
and on 28.09.2012, his brother, Md. Imdadur Rahman booked a ticket for
him from New Delhi to Imphal and on the same day he was to return back to
his place of posting. Thereafter, he proceeded for IGI Airport and after
reaching terminal No.3, one person approached him and asked in Manipuri
language with a request to carry a briefcase which was to be handed over at
Imphal to one person called Azim Khan. After reaching Imphal Airport, 5(five)
person in civilian dress who identified themselves as police, stopped the
petitioner for checking and they asked him to open the said briefcase but the
petitioner told them that the said brief case would be opened in front of the
owner of the briefcase. Thereafter, the petitioner was arrested and taken to
the Porompat Police Station, Imphal East. At the Police station, the briefcase
was opened and it was found that there were some tablets. Accordingly, Mr.
Azim Khan, whom the petitioner identified to be the owner of the briefcase,
along with Mr. Imaz Hussain were also arrested.
[4] Later on, the petitioner was handed over to Singjamei Police
Station, Imphal West and FIR being No.430(09) 2012 Singjamei PS U/s 9-A,
25-A/29 ND&PS Act was registered against him and later on, he was
released on bail by the Ld. Special Court (ND& PS), Manipur. While he was
under police custody, the Commandant, CISF Unit, IGI Airport, Palam, New
WP(C)No. 314 of 2014 Page 3
Delhi issued an order dated 02.10.2012 whereby the petitioner was placed
under suspension in terms of Sub Rule(2) of Rule 33 of CISF Rules, 2001
and on 05.11.2012 a charge Memorandum against the petitioner under Rule
36 of CISF Rules, 2001 was issued whereby 3(three) article of charges and
statement of imputation of misconduct were framed against him.
[5] Thereafter, on 07.11.2012, the petitioner submitted a
representation to the Commandant, CISF Unit, IGI Airport, New Delhi
wherein a request was made to allow him to enjoy subsistence allowance
during his suspension period. Again on 29.11.2012, the petitioner while
under Judicial Custody submitted a representation wherein a request was
made to supply notice and other relevant departmental enquiry papers either
in English or Manipuri version as he was not acquainted with Hindi
language/script. He also submitted a written statement of defense dated
12.01.2013 wherein he denied all the charges levelled against him and not
to proceed any departmental enquiry against him and not to terminate him
from service.
[6] On 20.03.2013, the petitioner submitted another representation
to the DIG/CASO, CISF, Unit, IGI Airport, New Delhi wherein he made a
request to let him know whether he was to report to the IGI Airport or stayed
WP(C)No. 314 of 2014 Page 4
at Manipur to attend further enquiry. In response, the Commandant, CISF
Unit, IGI Airport, New Delhi issued an order dated 04.04.2013 whereby it was
ordered that during the suspension period, the petitioner would be at ASG,
Imphal till injunction order is vacated by the Court and was ordered that no
TA/DA whatsoever would be entitled to him during his stay in ASG, Imphal.
Accordingly, a departmental inquiry was initiated against him by appointing
Inquiry Officer and Presenting Officer. Based on the enquiry report dated
29.05.20213 submitted by the Enquiry Officer and in pursuance to the
findings of the departmental inquiry, the petitioner was dismissed from
service on 18.07.2013.
[7] The three heads of charge against the petitioners read as
follows:
Article of Charge-I
No 94344191 Constable Md. Riyaj Ahmad of 'K' coy of CISF Unit IGI
Airport New Delhi was detailed for extra duty at 1300 hrs on 28.09.2012 at
Haj Terminal but the member of the force did not turn for above duty. The
above act on the part of the member of the force amounts to dereliction of
duty and discipline. Hence the charge.
Article of Charge-II
WP(C)No. 314 of 2014 Page 5
No 94344191 Constable Md. Riyaj Ahmad of 'K' coy of CISF Unit IGI
Airport New Delhi was detailed for day shift duty on 29.09.2012 for Marshal
duty in Haj company-3. But the member of the force without any information
or permission from Competent Authority was found absent from duty as well
as unit. The above act on the part of the member of the force amounts to
dereliction of duty, gross misconduct and indiscipline. Hence the charge.
Article of Charge-III
No 94344191 Constable Md. Riyaj Ahmad of 'K' coy of CISF Unit IGI
Airport New Delhi without any leave or information from the Competent
Authority, left New Delhi to Imphal by Air India flight No. AI-889 on
28.09.2012. After arrival at Imphal Airport, he was arrested by Manipur Police
as some objectionable item was found in his possession, thereby tarnished
the image of the force. The above act on the part of the member of the force
amounts to gross misconduct and indiscipline. Hence the charge.
[8] During the departmental enquiry, 13 PWs, 2 CWs and the
charged official (the petitioner herein were examined) and vide report dated
29.05.2013, the Enquiry Officer held that all the three charges were proved.
Vide order dated 18.07.2013 passed by the Disciplinary Authority, ie,
Commandant, CISF Unit IGI Airport, New Delhi minutely considered the
WP(C)No. 314 of 2014 Page 6
report of the Enquiry Officer and agreed with findings of the enquiry and
imposed major penalty of dismissal from service to the petitioner with
immediate effect with disqualification for future employment under the
government. The petitioner submitted an appeal to the DIG/CASO, CISF
Unit, IGI Airport, New Delhi and prayed for some other form of punishment
apart from dismissal from service on humanitarian ground by considering his
long unblemished service. Vide order dated 24.10.2023 the appeal was also
dismissed holding that the petitioner belonging to a discipline force with high
expectation of discipline, deserved stringent punishment in view of his
misconduct.
[9] Being aggrieved by the said termination order dated 18.07.2013,
passed by Commandant, CISF Unit, IGI Airport, New Delhi order dated
24.10.2013 in appeal by the DIG/CASO, CISF Unit, IGI Airport, New Delhi,
the petitioner challenged these order along with the departmental
proceedings before this Court by way of the present writ petion amongst on
the grounds that - (i) vagueness of charge, (ii) not informing about availability
of defense assistance, (iii) Enquiry Officer examined the PWs and charged
officer and participated actively in the proceeding, (iv) the punishment is not
commensurate with the offence alleged, and (v) the dismissal of the
WP(C)No. 314 of 2014 Page 7
petitioner from service was in violation of principles of natural justice and in
violation of his fundamental rights. It is prayed that the order of termination
be set aside and the petitioner be re-instated to service with full back wages
and all consequential benefits.
[10] Mr. Kh. Tarunkumar, learned senior counsel for the petitioner
submits that the whole disciplinary proceeding against the petitioner is
vitiated for violation of many mandatory requirements. Firstly, it is argued that
the charge No. III is very vague and simply stated about arrest of the
petitioner for possession of some objectionable item. It is pointed out that the
nature of objectionable item was not disclosed during the enquiry and
dismissal of the service of the petitioner for arrest in possession of
undisclosed item is not warranted. It is submitted that the impugned orders
and disciplinary proceeding could be quashed on this ground alone. In this
regard, learned senior counsel relies on the decision of the Hon'ble Supreme
Court in the case of Govt. of AP v. A. Venkata Raidu: (2007) 1 SCC 338 @
Para 9 holding that a charge sheet should not be vague but should be
specific and details of the charge should be mentioned. It was held that no
finding of guilt could be fixed on the basis of such vague charge. Reference
is also made to the case of Anant R. Kulkarni v. Y P Education Society:
WP(C)No. 314 of 2014 Page 8
(2013) 6 SCC 515 2 Para 16 that charges should be specific and definite
details of the incident which formed the basis of charges of involving penal
consequences should be mentioned. It was held that no enquiry could be
sustained on such vague charges.
[11] As a second point, learned senior counsel for the petitioner
submits that the enquiry proceeding is vitiated for not providing defense
assistance to the petitioner during the disciplinary proceeding. It is stated that
the petitioner, being a constable, was not aware of the all the technicalities
of the proceedings and he was never informed about the availability of the
defense assistance to him and he could not properly answer all the questions
asked by the Enquiry Officer and as such much prejudiced was caused to
him. It is highlighted that the same is in violation of the principle of fair
procedure and the disciplinary proceeding is also vitiated on this ground. Mr.
Kh. Tarunkumar, learned senior counsel cites the decisions reported as
(2005) 3 GLT 154 @ Para 7 & 9 which held that when the charged officer is
a constable, principle of natural justices requires that he be defended propery
during the enquiry.
[12] Thirdly, it is strenuously argued that the disciplinary proceeding
is vitiated as the Enquiry Officer acted as judge-cum-prosecutor by actively
WP(C)No. 314 of 2014 Page 9
participating in the prosecution. It is pointed out that in the order dated
18.07.2013 passed by the Commandant (Disciplinary Authority), it was
recorded in para 2 that the Enquiry Officer recorded statements of 13 PWs,
2 CWs and examined the petitioner. The relevant portion is reproduced as
".... During the Departmental Enquiry, Enquiry Officer recorded the
statements of 13 PWs and 02 CWs in the presence of Charged Official and
Presenting Officer and Charge Official was provided all opportunities to cross
examine the PWs and CWs..." The Enquiry Officer also asked the charged
official 19 questions relating to the three charges. Learned senior counsel
has pointed out that the Enquiry Officer actively participated himself in the
proceeding by taking the role of Presenting Officer thereby becoming himself
as a prosecutor to establish the charges against the petitioner. It is submitted
that the same is impermissible and vitiates the whole proceeding for violation
of the principles of natural justice and the Enquiry Officer acted as a judge-
cum-prosecutor. Reliance is placed on the decision of the Hon'ble Apex
Court in the cases of State of Uttaranchal v. Kharak Singh: (2008) 8 SCC
236 @ Para 17 to the point that the Enquiry Officer cannot act as an
investigation, a prosecutor and a judge. In the case of Moni Shankar v.
Union of India: (2008) 3 SCC 484 @ Para 30, it was held that the Enquiry
WP(C)No. 314 of 2014 Page 10
Officer acted as a prosecutor and not as an independent quasi-judicial
authority by asking many leading questions and accordingly the punishment
was set aside. It is pointed out that in the case in hand, the Enquiry Officer
asked 19 leading questions to the petitioner in addition of examination of 13
PWs and 2 CWs himself and thus the whole proceeding is vitiated. Decision
reported as (2005) 3 GLT 154 @ Para 7 & 8 is also referred on this point.
[13] Regarding the question of jurisdiction of this Court, it is pointed
out that part of the cause of action arose in the State of Manipur as the
petitioner was arrested in Manipur and Charge-III is with respect to the
factum of this arrest. Relying on the decision in the case reported as Nawal
Kishore Sharma v. Union of India: (2014) 9 SCC 327 @ Para 17, it is
submitted that this Court has jurisdiction to deal with this case.
[14] Mr. S. Samarjeet, learned Sr.PCCG submits that there is no flaw
in the disciplinary proceeding initiated against the petitioner. It is pointed out
that the petitioner himself admitted the contents of Charge Nos. I & II of
absence from duty and leaving station without permission of his senior and
as such the charges are deemed to be proved on admission. Regarding the
Charge-III, it is denied that the same is vague. Even though the memo of
charge simply mentioned 'objectionable item', the detail of the object seized
WP(C)No. 314 of 2014 Page 11
from the custody of the petitioner was clearly indicated during the enquiry
and the petitioner had enough opportunity to defend himself. It is pointed
out that in the written statement [Annexure-a-5] submitted by the petitioner
to the Commandant, CISF Unit, IGI Airport, New Delhi, the petitioner himself
admitted seizure of objectionable items from his possession by Manipur
Police. Mr. S. Samarjeet, learned Sr. PCCG has raised the objection to
technical plea to the plea of vagueness of charge and active participation by
the Enquiry Officer during the proceeding in his appeal filed before the
appellate authority, ie, DIG and hence such plea cannot be raised for the first
time in the writ petition. It is also denied that the principles of natural justice
have been violated during the enquiry and it is pointed out that during the
preliminary hearing dated 18.02.2013, the Enquiry Officer asked the
petitioner as to whether he would like defence assistance, the petitioner
answered in negative. It is further submitted that Rule 36(15) of CISF Rules,
2001 permits the Enquiry Officer to ask questions to the witnesses and the
charged official and hence there is infirmity in the proceeding. It is clarified
that in the present case, Enquiry Officer asked few questions only and other
parts were done by the Presenting Officer.
WP(C)No. 314 of 2014 Page 12
[15] Learned counsel for the respondents relies on the following
decisions of the Hon'ble Supreme Court-
(a) Chairman-cum-Managing Director, Coal India Ltd. v. Mukul
Kumar Chaudhuri: AIR 2010 SC 75 :
(b) High Court of Judicature at Bombay v. Shashikant S. Patil:
AIR 2000 SC 22:
-High Court is not court of appeal and ought not to interfere the
finding of the Enquiry Officer in absence of any procedural
irregularity.
(c) Nirmala J. Jhala v. State of Gujarat: AIR 2013 SC 1513-
Standard of proof in a disciplinary proceeding is preponderance
of probabilities and the doctrine of proof beyond reasonable
doubt is not applicable.
(d) Union of India v. Managobinda Samantary: Civil Appeal
Nos. 1622-1623 of 2022; Judgment dated 24.02.2022 @ Pr.9-
Once the charge is proved, quantum of punishment is the sole
discretion of the decision-making authority. The quantum of
punishment could be interfered only in case of perversity, gross
disproportionality and violation of the principles of natural justice.
WP(C)No. 314 of 2014 Page 13
[16] Mr. S. Samarjeet, learned Sr. PCCG finally submits that charges
I & II are proved by admission and with regard to charge III, there is no
infirmity in the proceedings. The petitioner was offered the option of availing
defence assistance which he did not accept. Due process was followed and
there is no violation of natural justice. In the circumstances, the quantum of
punishment for dismissal from service to maintain the discipline in the force
ought not to be interfered by this Court in a writ proceeding. It is pointed out
that the scope of interference is very limited only in case of perversity and
disproportionality. It is prayed that the writ petition be dismissed.
[17] This Court considers the materials on record, the submissions
made at bar and the relevant law in this regard.
[18] From the case record it is seen that the petitioner left Delhi for
Imphal on 28.09.2012 by Air India flight AI-889 with a return ticket for the
same day by AI-890. During the course of hearing, the petitioner admitted
that he left Delhi without informing his seniors and due to his arrest at Imphal
he could not attend extra duty. He further admitted his arrest at Imphal, but
did not admit the fact that he was carrying drug knowingly. It is his specific
case that someone at Delhi airport requested him to carry a brief case as gift
WP(C)No. 314 of 2014 Page 14
for his relative. The outcome of the criminal case with respect to FIR No.
430(09)2012 Singjamei PS u/s9A/25A/29 NDPS Act is not intimated to this
Court and perhaps the same is pending.
[19] From the proceedings of the enquiry and related orders, it is seen
that the Enquiry Officer had actively participated in the proceeding by
recording statements of all 13 PWs and examining the petitioner himself by
asking 19 questions. This Court does not find any merit in the submission of
Mr. S. Samarjeet, learned Sr. PCCG that Enquiry Officer may ask some
questions in terms of Rule 36(15). In the present case, it is not an instance
of asking some stray questions, rather the Enquiry Officer took the role of
Presenting Officer and the same is impermissible. Accordingly, the enquiry
proceedings are vitiated and is liable to be set aside.
[20] The petitioner admitted Charge Nos. I & II, but did not admit the
contents of Charge No. III even though he admitted his arrest at Imphal. The
question of conscious possession of contraband was not considered during
the enquiry and/or in the appellate proceeding. The service of the petitioner
could not be terminated on the basis of arrest memo and seizure memo
mentioning recovery of drug, when this fact was not considered during the
enquiry and in absence of any finding from the criminal court. It is the specific
WP(C)No. 314 of 2014 Page 15
case of the petitioner that he was not aware of the contents of the brief case
handed over to him at Delhi airport. Charge No. III is also very vague and
mentioned only recovery of 'objectionable item' without specifying the details.
There is active participation of the Enquiry Officer during the proceeding. In
the circumstances, it is held that finding of Charge-III is vitiated. As the
petitioner had admitted Charges- I & II, the technical flaws in the enquiry
proceedings shall not affect their legality and the findings of the Enquiry
Officer, Disciplinary Authority and Appellate Authority are not disturbed.
Accordingly, Charge Nos. I & II are proved on admission. This Court is of the
opinion that punishment of dismissal from service with disqualification from
future employment is not commensurate with nature of charges of absence
from duty and leaving station without permission from the authority.
[21] It is the settled proposition of law that punishment is in the realm
of the disciplinary authority and it has full power and discretion in awarding
appropriate punishment prescribed by the statutory rules. Usually, High
Courts, while exercising the supervisory jurisdiction under Articles 226 & 227
of the Constitution of India, are not to interfere with the punishment awarded
by the competent authority as an appellate court and judicial review may be
WP(C)No. 314 of 2014 Page 16
resorted if the punishment is not proportionate and not commensurate with
the alleged misconduct.
[22] In the present case, the disciplinary authority held that all the
three charges were proved against the petitioner and imposed punishment
of dismissal from service with disqualification from future employment,
keeping in view to maintain the strict discipline in the force. The same was
upheld by the appellate authority. However, this Court upheld on admission
by the petitioner, the findings on the first two charges of absence from duty
and leaving station without permission of the seniors, but set aside the third
charge of arrest with objectionable items, as the proceeding was perverse
due to active participation of the Enquiry Officer who acted both as a
prosecutor and judge. Such conduct of the Enquiry Officer is as opposed to
settled principles of natural justice as held in various cases by the Hon'ble
Supreme Court.
[23] This Court is of the view that punishment of termination of service
is shockingly disproportionate with the alleged charge of absence from duty
and leaving station without permission after annulling the finding on third
charge. It is an admitted fact that the absence from duty was due to the arrest
WP(C)No. 314 of 2014 Page 17
of the petitioner at Imphal and the same is not deliberate. Therefore, the
punishment requires re-consideration.
[24] In the case of Union of India v. Giriraj Sharma: 1994 Supp (3)
SCC 755, Hon'ble Supreme Court held that the punishment of dismissal from
service for overstayed of a period of 12 days was disproportionate and
remanded the matter for awarding a minor penalty after re-instating the
service of the charged officer. In the case of Krushnakant B. Parmar v.
Union of India: (2012) 3 SCC 178 @ Pr. 24 & 25, instead of remitting the
matter for awarding the minor penalty, Hon'ble Supreme Court molded the
relief by re-instating the charged official with 50% back wages, thereby
modifying the punishment of dismissal from service.
[25] Accordingly, it is directed that the petitioner be re-instated to his
service with immediate effect. Keeping in mind that the incident occurred in
the year 2012 and instead of remanding the case to the disciplinary authority
for passing an appropriate order in lieu of dismissal from service and to do
complete justice, this Court intends to modify the punishment. The quantum
punishment of dismissal from service is modified as 'withholding increment
of pay for 3 years with cumulative effect'. It is clarified that the period of
termination shall be considered as during service, but the petitioner shall not
WP(C)No. 314 of 2014 Page 18
be entitled to back wages and any amount paid during period of suspension
shall not be recovered.
[26] With these directions and observations, the appeal is partly
allowed and disposed of. No cost.
[27] Send a copy of this order to the Commandant, CISF Unit, IGI
Airport, New Delhi for information and necessary compliance.
JUDGE
FR/NFR
John Kom
WP(C)No. 314 of 2014 Page 19
