Telangana High Court

Bhagirath Sharma, vs The Union Of India, on 8 July, 2022

Bench: G Sri Devi

            THE HONOURABLE JUSTICE G. SRI DEVI

                       W.P. No. 32250 of 2012

ORDER:

This Writ Petition is filed seeking a Writ of Mandamus

declaring the order No.V-15014/L&R/SS/Rev/BS/2011-565

dated 28.11.2011 passed by the 2nd respondent confirming the

orders, dated 19.07.2011 and 10.03.2011, passed by respondent

Nos.3 and 4, as illegal, arbitrary, without jurisdiction and in

violation of the provisions of CISF Act.

The relevant facts leading to the case are that while

working as Head Constable/GD, the petitioner was issued charge

memo under Rule 36 of CISF Rules, 2001, vide letter dated

08.11.2010. The petitioner was initially issued with a charge

memo under Rule 37 of CISF Rules, 2001 with the same set of

charges vide Assistant Commandant/MM Area Memorandum

dated 19.03.2010, to which the petitioner submitted his

explanation. Being not satisfied with the said explanation, the 5th

respondent/Assistant Commandant awarded him punishment of

'Five days pay fine' vide final order dated 21.04.2010. Aggrieved 2 GSD,J W.P.NO.32250 of 2012

by the same, the petitioner preferred an appeal on 06.05.2010

before the 4th respondent/Commandant, CISF Unit, which was

rejected being devoid of merits vide order dated 07.06.2010.

Against the said order, the petitioner filed a revision on

14.06.2010 and that the 3rd respondent/Deputy Inspector General

passed an order dated 31.07.2010 quashing the orders passed by

the authorities below the revisioning authority without prejudice

to take action by the Unit Commander from the stage where the

discrepancy has crept in and directed the Disciplinary Authority

to pass appropriate orders as per law by giving reasonable

opportunity to the petitioner. Pursuant to the said orders, the

Disciplinary Authority cancelled the final order, dated 21.04.2010,

of the 5th respondent/Assistant Commandant and issued a fresh

charge sheet vide charge memorandum dated 08.11.2010, to

which the petitioner submitted his reply denying the charges

levelled against him. The 4th respondent/Disciplinary Authority

appointed an Enquiry Officer to conduct regular departmental

enquiry and thereafter the Enquiry Officer submitted his report

holding that the charges against the petitioner were proved.

                                   3                             GSD,J
                                                  W.P.NO.32250 of 2012

Thereafter, the 4th respondent/Disciplinary Authority, after

considering the findings of the Enquiry Officer and the final

representation submitted by the petitioner against the Enquiry

Report, imposed punishment of reduction of pay by one stage for

a period of one year and he will not earn increment during the

period of reduction and that on expiry of the period, the

reduction will have the effect of postponing his future increments

of pay, vide order dated 10.03.2011. Aggrieved by the said order,

the petitioner preferred an appeal to the 3rd respondent/Deputy

Inspector General and the same was rejected vide order

19.07.2011. The revision filed before the 2nd respondent/Inspector

General against the said order was also dismissed by order dated

28.11.2011. It is further stated that the action of the 4th respondent

imposing punishment of reduction of pay by one stage for a

period of one year is beyond the jurisdiction and purview of the

4th respondent as he cannot impose increased punishment than

one imposed by the 5th respondent, wherein only the fine of 'five

days pay' was imposed. It is further stated that the enquiry itself

is void ab intio as Enquiry Officer and Presenting Officer were 4 GSD,J W.P.NO.32250 of 2012

below the rank of Assistant Commandant and, therefore, the

impugned orders are liable to be set aside.

A detailed counter-affidavit has been filed by the

respondents stating that the punishment order is perfectly in tune

with law and in strict conformity with the provisions of CISF Act

and Rules as penalty has been inflicted upon him after due

consideration of gravity of offence. It is further stated that the

conclusion arrived by the Enquiry Officer is purely based on the

corroborative documentary evidence adduced during the

departmental enquiry and basing on the evidence on record, the

penalty was awarded to the petitioner, which is well

commensurate with the offence committed by the petitioner. It is

further submitted that the petitioner has availed all the

departmental remedies available in law by submitting appeal and

revision petition which were rejected being devoid of merits. It is

further stated that the CISF is a Central Armed Police Force of the

Union of India, which requires discipline of the highest order.

Therefore, the writ petition is liable to be dismissed.

                                     5                            GSD,J
                                                   W.P.NO.32250 of 2012

Heard learned Counsel for the petitioner and learned

Central Government Standing Counsel for the respondents and

perused the entire material available on record.

A perusal of the order of the 2nd respondent/Inspector

General, Central Industrial Security Force, dated 28.11.2011,

would show that the petitioner was issued charge memorandum

under Rule 36 of CISF Rules 2001 vide letter dated 08.11.2010 for

the following article of charges:

Charge - I

"That CISF No.844504542 HC/GD Bhagirath Sharma of Mandamari Area CISF Unit SCCL Singareni while detailed for 'B' shift duty at Main Gate of Area Stores from 1300 hrs to 2100 hrs on 02.02.2010 had left his duty post unattended, went to Area Stores Motor side duty post of No.834090226 HC/GD Mahipal Singh and indulged in gossiping at about 1700 hrs on 02.02.2010 when checked by D.K.Chakraborty, Assistant Commandant. The above acts of No.8444504542 HC/GD Bhagirath Sharma tantamount to gross negligence and dereliction of lawful duties being a member of disciplined Armed Force."

Charge - II :

"That CISF NO.844504542 HC/GD Bhagirath Sharma of Mandamari Area CISF Unit SCCL Singareni exhibited the acts of 6 GSD,J W.P.NO.32250 of 2012

insubordination with his senior officers D.K.Chakraborty, Assistant Commandant and threatened his official driver namely Ashok with red eyes and frown forehead in loud voice when called him in the Orderly Room at about 1215 hrs on 05.02.2010 in the presence of No.833370091 HC/GD R.K.Sharma CHM resulting which the orderly room proceedings could not be concluded properly. The above acts of HC/GD Bhagirath Sharma amounts to gross misconduct, insubordination with his senior officer, breaching peace in the orderly room proceedings and grave act of indiscipline being member of disciplined Armed Force of the Union."

The petitioner has submitted his reply to the aforesaid

charge memo on 29.11.2010 denying the charges levelled against

him. Thereafter, as per the existing procedure, the 4th

respondent/Disciplinary Authority appointed Inspector P.K.Das

as an Enquiry Officer and Sub Inspector Aditya Kumar as

Presenting Officer to enquire into the charges levelled against the

petitioner. During the course of enquiry, the petitioner had

submitted a representation dated 11.12.2010 seeking to change

the Enquiry Officer and Presenting Officer as they were

answering the questions on behalf of SI/Exe N.Rajan (P.W.3).

Subsequently, the aforesaid officers were replaced by appointing 7 GSD,J W.P.NO.32250 of 2012

Inspector/Exe Bhupender Singh and Sub Inspector/Exe Ramesh

Kumar as Enquiry Officer and Presenting Officer respectively

vide order dated 16.12.2010. The Enquiry Officer has conducted

the enquiry as per the existing procedure and submitted his

report by holding that the charges were proved against the

petitioner. Thereafter, the 4th respondent/Disciplinary Authority,

after considering the entire material available on record, imposed

punishment of reduction of pay by one stage for a period of one

year and that he will not earn increment during the period of

reduction and that on expiry of the period, the reduction will

have the effect of postponing his future increments of pay, vide

order dated 10.03.2011. The appeal and revision preferred by the

petitioner against the said order were dismissed vide orders

dated 19.07.2011 and 28.11.2011 respectively.

The main contention of the learned Counsel for the

petitioner is that the entire disciplinary proceedings conducted by

the Enquiry Officer are in gross violation of principles of natural

justice, as the Enquiry Officer (Inspector) and Presenting Officer

(Sub Inspector) were below the rank of the Assistant 8 GSD,J W.P.NO.32250 of 2012

Commandant, who is the complainant in the case. In support of

his contention he relied upon a decision of this Court in

M.Koteswara Rao v. Senior Manager (Ghat), APSRTC, Chittoor

District1.

It is settled proposition that initiation of a departmental

proceeding and conducting an enquiry can be by any authority

other than the competent authority to impose the proposed

penalty. In the instant case, basing on the complaint of one

D.K.Chakravarthy, Assistant Commandant, a charge

memorandum has been issued to the petitioner and the Enquiry

Officer and the Presenting Officer are Inspector and Sub

Inspector respectively and the said Assistant Commandant was

examined as a witness in the enquiry proceedings. Admittedly,

the enquiry should not have been conducted by an Officer, who is

subordinate to the complainant, particularly when the superior

officer is also a witness in the case.

A some-what identical situation arose in M.L.Kumar v.

A.P.S.R.T.C., Cuddapah2. In the said case, the employee

1997 (3) ALD 491

(1992) 2 LLJ 23 9 GSD,J W.P.NO.32250 of 2012

misbehaved with the Divisional Manager of the Corporation. The

enquiry was conducted by the Subordinate Officer and the

Superior Officer (Complainant) was the witness in the enquiry.

While dealing with the said situation, this Court held that

"Enquiry should not have been conducted by Subordinate Officer

to the Complainant". It was also observed as under:-

"the principle that justice must not only to be done, but must be seen to be done is applicable to judicial as well as domestic proceedings. The principles of natural justice as applicable to the domestic proceedings have been held to include with them, the right to employee to have a fair trial".

Relying upon the judgment in M.L.Kumar v. A.P.S.R.T.C.,

Cuddapah (2 supra), this Court in M.Koteswara Rao v. Senior

Manager (Ghat), APSRTC, Chittoor District (1 supra) in

paragraph Nos.45 to 47 observed as under:-

"45. The undisputed facts are that the 2nd respondent is the appointing authority and also the complainant, who had figured as witness before the Enquiry Officer (of the rank of a Junior Scale Officer). The 1st respondent who had issued the charge sheet also a 10 GSD,J W.P.NO.32250 of 2012

senior to the petitioner and he is a Senior Scale Officer, who again figured as witness before the Enquiry Officer. Both the complainant and the Officer, who issued charge-sheet, are administratively superiors to the Enquiry Officer. Under these circumstances, can it be said that the proceedings are tainted by bias.

Though the Regulation do not in many words provide that a Senior Officer should not be examined by the Junior Officer in a disciplinary proceedings, but at the same time, the principles of fair-play requires that there should neither be bias in the proceedings nor the real likelihood of bias. The test for real likelihood of bias is that one should not put a question to himself " I am biased?", but he should look the mind of the party before him. Therefore, the Court does not look at the mind of the Enquiry Officer, who functions as a quasi-judicial authority to find out whether he is likely to be influenced by the higher Officers or whether there is any likelihood of bias creeping into proceedings. But, the test is that even if the Enquiry Officer is impartial, if right minded persons would think that, in the circumstances of the case, there was a real likelihood of bias on his part, then the Enquiry Officer should not function as such and if he functions and renders a decision that gets invalidated. Thus, the Court will not enquire whether the Enquiry Officer in 11 GSD,J W.P.NO.32250 of 2012

fact favoured one side unfairly. Suffice if the reasonable people think that he did. The reasons are obvious that Justice must be rooted in confidence. The said confidence is destroyed when the right minded people can say that the Judge was biased. Let us consider the case on hand whether the real likelihood of bias has been established.

46. Admittedly, the person who issued the charge- sheet figured as a witness before the Enquiry Officer, who is subordinate in rank. So also, appointing authority who is a complainant is higher in rank to that of Enquiry Officer, who also gave statement before the Enquiry Officer, a subordinate Officer by many stages. In fact the petitioner right from the beginning has been making a hue and cry not to allow the Enquiry Officer to proceed with the enquiry as the Enquiry Officer being subordinate would be susceptible for leaning towards his superiors when they are examined before him. In such a situation, it is always reasonable to think that the mind of the Officer of a lower rank is prone to influence when his higher Officers present before him and give statement against the delinquent officer. Therefore, the Enquiry Officer cannot be said to act independently, however clean his conscience may be and inescapable conclusion one can 12 GSD,J W.P.NO.32250 of 2012

draw is that there was real likelihood of bias. The crucial test that has to be applied in such cases is whether there was a real likelihood of bias. If a reasonable man of ordinary prudence appraised of the facts and situation comes to the bona fide conclusion that there was real likelihood of bias, it is sufficient to invalidate the proceedings, and actual bias need not be proved. Thus, I hold that the bias is inherent in the proceedings.

47. It is always desirable that when the higher Officer is a complainant than the delinquent Officer, the enquiry should be conducted by an officer not below the rank of the complainant. Otherwise, it is prone to suffer from bias inherent in the proceedings. Nothing could have prevented the authorities from nominating the Enquiry Officer of the equivalent or higher rank of the Regional Manager. The Corporation cannot also apply the doctrine of necessity in this case, as it cannot be said that there were no Officers of the rank of the Regional Manager and above. In fact the order of punishment was passed by another Officer of the same rank.

Therefore, viewed from any angle, I am driven to an irresistible conclusion that the disciplinary proceedings suffer from bias inherent. Proceedings 13 GSD,J W.P.NO.32250 of 2012

which are afflicted with the bias can neither be cured nor dissected. Therefore, such proceedings have necessarily to he declared as illegal and invalid. Accordingly, entire disciplinary proceedings including the order of punishment passed by the 5th respondent and also the modified order passed by the 4th respondent are illegal and unsustainable in law, and they are set aside. In view of this finding, I do not intend to consider the contention of the learned Counsel for the petitioner that the findings of the Enquiry Officer are perverse and the punishment meted out to the petitioner both by the 5th respondent and modified by the 4th respondent are arbitrary and grossly disproportionate to the misconduct if any committed by the petitioner."

In view of the specific observations made in M.Koteswara

Rao v. Senior Manager (Ghat), APSRTC, Chittoor District

(1 supra) and that the facts of the said case were also similar to

the facts of the present case, as the Enquiry Officer and the

Presenting Officer were inferior to the rank of the Assistant

Commandant/de facto complainant, who was also examined as a

witness before the Enquiry Officer, this Court is of the considered

view that the entire disciplinary proceedings were hit by 14 GSD,J W.P.NO.32250 of 2012

principles of bias. Therefore, such proceedings have necessarily

to be declared as illegal and invalid and as such there is no need

to delve into the details of the charge memo and the findings of

the Enquiry Officer.