IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 13/07/2006
Coram
The Hon'ble Mr. Justice P.SATHASIVAM
and
The Hon'ble Mr. Justice V.DHANAPALAN
Writ Petition No.23327 of 2001
S.Goparam .. Petitioner
-Vs-
.The Inspector General
Central Industrial Security Force,
South West Sector,
RCF Complex, Chembur,
Mumbai-400074.
2. The Deputy Inspector General,
Central Industrial Security Force,
Southern Zone, D Block, Rajaji Bhavan,
Besant Nagar,
Chennai-600 090.
3. The Commandant,
CISF Unit, NLC,
Neyveli. .. Respondents
Petition under Article 226 of the Constitution of India for the
issuance of a writ of certiorari to call for the records relating to the
impugned proceedings of the first respondent in No.V-11014/(1)/07/WZ/
LC/SWS/01/7583, dated 10.11.2001, and the order of the second respondent in
No.V-15014(1)/I/2KI/L&R (SZ)/4328, dated 21.05.2001, and quash the same.
!For Petitioner : Mr.T.N.Sugesh
^For Respondents: Mr.K.Veeraraghavan
Senior Central Government Standing Counsel.
:ORDER
P.SATHASIVAM, J.
Aggrieved by the Order of the second respondent Deputy
Inspector General, Central Industrial Security Force, Chennai-90, dated
21.05.2 001; and the show cause notice, dated 10.11.2001, of the first
respondent Inspector General, Central Industrial Security Force, Mumbai; the
petitioner has filed the above Writ Petition to quash both the orders on
various grounds.
2. The case of the petitioner is briefly stated hereunder,
According to him, he was initially appointed as Constable on
01.07.1989 in the Central Industrial Security Force (CISF), NLC, Neyveli. On
19.12.1999, he was on B shift duty from 13.00 hours to 21.00 hours at the
GWC Store Gate, Neyveli Lignite Corporation. After completion of his duty
hours, he handed over the duty to his reliever who was on C shift duty.
Everything was in tact when he handed over duty. The store key was kept with
the officials of the NLC and not with the CISF. Subsequently, on 20.12.1999,
when the store was opened by the Chief Engineer, Electrical, NLC, at 09.30
hours, theft of certain materials was noticed. However, all the doors,
windows and the locks were seen intact. A police complaint was lodged. No
mention was made in the General Diary Entry that the theft had occurred during
the duty hours of the petitioner on 19.12.1999. The stolen materials were
subsequently recovered by the police.
Subsequently, a Charge Memo was issued to the petitioner on 15.05.20
00 and the same was later cancelled by order dated 17.07.2000. Thereafter,
the third respondent-Commandant, CISF Unit, NLC, Neyveli, issued another
charge-memo dated 18.07.2000 containing a charge that he failed to safeguard
the NLC undertaking property while on B shift duty on 19.12.1999 from 13.00
hrs to 21.00 hrs, due to which, a theft of property worth Rs.6,20,000/- was
reported on 20.12.1999 and that it amounted to dereliction of duty and
irresponsibility towards assignment. The petitioner submitted a reply,
denying the charge framed against him. One R.Manavalan, Assistant Commandant,
was appointed as Enquiry Officer to enquire into the charge framed against the
petitioner. Though there was no evidence to prove the charge framed against
the petitioner, yet, the Enquiry Officer submitted a report, holding the
charge as proved. Copy of the said report was furnished to the petitioner by
proceedings of the Disciplinary Authority dated 17.10.20 00, whereupon, he
submitted his explanation against the findings of the Enquiry Officer on
27.10.2000. On receipt of the explanation and, after examining the evidence,
the Disciplinary Authority/third respondent held that it was not established
that the theft took place during his duty hours on 19.12.1999 while he was on
B shift duty; and concluded that the charge framed against him could not be
proved beyond doubt. However, after observing that awarding a major penalty
would not be justified, he imposed a punishment of withholding of future
increments for two years, which will not have the effect of postponing further
increments of pay and regularised the period of suspension from 29.12.1999 to
16.10.2000 as on duty for all purposes in and by his order dated 04.11.2000.
The petitioner did not prefer any appeal, however, the appellate authority,
viz., the Deputy Inspector General (R2)/CISF took up the case for suo motu
review and issued a show cause notice by his proceedings dated 14.03.2001,
stating that the punishment imposed by the Disciplinary Authority is lenient,
and called upon the petitioner to show cause as to why the punishment already
imposed should not be enhanced to that of reduction in pay by three stages
from Rs.3425/- to Rs.3200/- in the time scale of pay of
Rs.3150-75-3950-80-4590 for a period of two years, which will have the effect
of postponing future increments, and to regularise the period of suspension as
Dies-Non. He submitted his reply to the show cause notice on 31.3.2001.
However, the second respondent, by order dated 21.05.2001, enhanced the
punishment as proposed in the show cause notice. Aggrieved by the said
enhancement of punishment, he preferred an appeal to the first
respondent/Inspector General, CISF, on 05.07.2001. However, the first
respondent, instead of considering the appeal filed by the petitioner against
the enhancement of punishment, has issued show cause notice dated 10.11.2001
(impugned proceedings), calling upon him to show cause as to why the
punishment should not be further enhanced to that of dismissal from service.
Questioning the same, the petitioner has filed the present Writ Petition.
3. The third respondent filed a counter affidavit on behalf of the
respondents, wherein, he denied all the allegations made in the affidavit. It
is stated that the respondents, by virtue of the power conferred under the
Central Industrial Security Force Act, 1968; and the Central Industrial
Security Force Rules, 1969; after taking note of the gravity of the charge,
imposed an appropriate punishment, hence, there is no merit in the Writ
Petition.
4. Heard Mr.T.N.Sugesh, learned counsel for the petitioner and
Mr.K.Veeraraghavan, learned Senior Central Government Standing Counsel.
5. In order to understand the claim of both the parties, it is useful
to refer to the article of charge framed against the petitioner, which reads
as under:-
STATEMENT OF ARTICLE OF CHARGE FRAMED AGAINST No.89140079 0 CONSTABLE
S.GOPARAM OF CISF UNIT NLC NEYVELI (T.N.)
ARTICLE-1
No.891400790 Constable S.Goparam of CISF Unit NLC Neyveli was deployed in B
shift duty on 19.12.99 from 1300 hrs to 2100 hrs., at GWC (Electrical) of
Mines-I. During his duty he failed to safeguard the Undertaking property due
to which a theft of Undertaking property worth Rs.620,000/- reported on
20.12.99 morning. This act on his part tantamounts to severe dereliction of
duties, gross remiss and highly irresponsible towards his assignment. Hence
the charge.
Sd./- .
COMMANDANT,
CISF UNIT NLC (N)
The petitioner submitted his reply, denying the charge. Not satisfied
with the explanation, one R.Manavalan, Assistant Commandant, was appointed as
Enquiry Officer on 08.08.2000. It is not in dispute that the petitioner was
afforded with opportunity in the enquiry proceedings. The Enquiry Officer
submitted the Enquiry Report on 10.10.2000 holding that due to carelessness on
the part of the petitioner and lack of responsibilities towards his
assignment, a theft of undertaking property worth Rs.620,000/- was reported on
20.12.1999. It is also not in dispute that the Enquiry Report was forwarded
to him and the petitioner submitted his explanation to the same on 27.10.2000.
The third respondent, by order dated 04.11.2000, after going into the charge,
entire enquiry proceedings, explanation of the petitioner etc., concluded that
the charge levelled against him could not be proved beyond doubt. However,
after finding so and observing that awarding of a major penalty will not be
justified; in exercise of the powers conferred upon him under Rule-29(A)
Schedule-II read with Rule-31(e) of CISF Rules, 1969; the third respondent
imposed a punishment of withholding of petitioner’s future increments for two
years, which will not have the effect of postponing his further increments of
pay and also ordered that the period of suspension from 29.12.1999 to
16.10.2000 will be treated as on duty for all purposes. It is useful to refer
the following conclusion arrived by the third respondent,
7. After analysing both the side of prosecution and defence, I have
observed that, the prosecution side failed to establish the charge as levelled
against the charged member. ……….
The following conclusion in para No.8 is also relevant:-
8. Since the charge levelled against the charged member could not
be proved beyond doubt, I am taking a lenient view this time.
6. Having found that the charge levelled against the Officer has not
been proved, it is not understandable as to how the third respondent armed
himself with an authority to impose any punishment much less lesser
punishment. Now, let us consider the action taken by the second respondent
Deputy Inspector General, CISF, Southern Zone, Chennai. The second
respondent, in his notice, dated 14.03.2001, suo motu reviewed the case of the
petitioner and, after finding that the punishment imposed by the Disciplinary
Authority is lenient and not commensurate to the gravity of the offence
committed by him, called upon the petitioner to show cause why reduction in
pay by three stages from Rs.3425/- to Rs.3200/- in the time scale of pay of
Rs.3150-75-3950-80-4590 for a period of two years, which will have the effect
of postponing his future increment, should not be imposed to meet the ends of
justice. In the same notice, there was also a proposal to regularise the
suspension period as Dies-non.
7. Learned counsel appearing for the petitioner questioned
the action of the second respondent on two grounds, viz.,
(a) on the relevant date, he is not the authority competent to review and
enhance the punishment suo motu,
(b) the show cause notice, dated 14.03.2001, refers only lesser punishment and
proposes to impose higher punishment forgetting that the Disciplinary
Authority has concluded that the only charge framed against the petitioner
could not be proved/substantiated.
8. Coming to the first ground of attack, it is brought to our notice
that on the date, viz., 14.03.2001, when the second respondent took up the
case for suo motu review under Section 9 (3) of the CISF Act, only the Central
Government had the power to review and not the second respondent. The said
provision, viz., Section 9(3) of the CISF Act, 1968, reads as follows:-
" 9. Appeal and revision.--(1) .........
..........
(2) ......
(3) The Central Government may call for and examine the record
of any proceeding under Sec.8 or under sub-section (2) of this section and may
make such inquiry or cause such inquiry to be made and subject to the
provisions of this Act may, pass such order thereon as it thinks fit:’
9. The above provision makes it clear that only the Central
Government has the power to review and pass appropriate orders including
modifying the order of the Disciplinary Authority. Inasmuch as the petitioner
had not preferred any appeal against the order of the Disciplinary authority,
in the light of sub-Section-3, the second respondent did not have the power
under the said provision to take up suo motu review, hence, the proceedings
were without jurisdiction. To put it clear, on the relevant date, viz., on
14.3.2001, as per the provisions stood then, the Central Government alone had
the power to take up suo motu review and the show cause notice issued for
enhancement of the punishment by the second respondent cannot be sustained.
10. Coming to the second contention, we have already extracted the
conclusion of the Disciplinary Authority holding that the only charge levelled
against the petitioner has not been proved, in such circumstances, we are of
the view that there is no question of imposing punishment either leniently or
moderately. Even if the second respondent or any other authority having
jurisdiction wants to impose a higher punishment, before setting at motion any
of their proceedings in that regard, the petitioner must be afforded an
opportunity with reference to the same by way of show cause notice. Here, in
the show cause notice issued by the second respondent, the only reason made
(that is available at page 59 of the typed set) is that the punishment imposed
by the Disciplinary authority is lenient and is not commensurate to the
gravity of the offence committed by the petitioner. The same proceeds as if
the Disciplinary Authority has accepted the finding of the Enquiry Officer,
took a lenient view and imposed a lesser punishment. In the absence of any
reason, based on which the second respondent differed from the decision of the
Disciplinary Authority, the show cause notice, dated 14.03.2001, which speaks
only about lesser punishment cannot be held to be a valid notice in the eye
of law. As rightly pointed out, the second respondent failed to appreciate
that the finding was in favour of the petitioner and the charge was not
proved; and that punishment cannot be enhanced merely because the charge is
serious. Punishment can only be imposed on the basis of the material evidence
in support of the charge and inasmuch as the finding of the Disciplinary
Authority clearly states that the charge is not proved, we are of the view
that enhancement of the punishment by the second respondent cannot be
accepted. In view of the above infirmities in the order of the second
respondent, the subsequent order of the first respondent, proposing to enhance
the punishment to that of dismissal from service, cannot be sustained.
11. In these circumstances, the impugned proceedings of the
first respondent dated 10.11.2001 and the order of the second respondent dated
21.5.2001 are quashed. The petitioner is entitled to all service and monetary
benefits. Writ Petition is allowed. No costs.
JI.
To
1. The Inspector General,
Central Industrial Security Force,
South West Sector,
RCF Complex, Chembur,
Mumbai-400 074.
2. The Deputy Inspector General,
Central Industrial Security Force,
Southern Zone, D Block, Rajaji Bhavan,
Besant Nagar, Chennai-600 090.
3. The Commandant,
CISF Unit, NLC,
Neyveli.