High Court · 2012

It appears that the petitioner had approached the High Court of Judicature at Al lahabad by filing a writ petition being Civil Rule (Misc) Writ Petition No. 3020 3/2004. By the said writ petition he had challenged the aforesaid order of dismi ssal from service, later on substituted to that of compulsory retirement. Te wri t petition was dismissed by order dated 19.9.2006 holding the same not maintaina ble on the ground of territorial jurisdiction. Challenging the said order, the p etitioner had approached the Apex Court by filing an SLP, which was also dismiss ed by order dated 16.3.2009, both on the grounds of delay as well as on merit. It is after the aforesaid development, the petitioner filed the instant writ pet ition challenging the enquiry report and the final order of compulsory retiremen t. I have heard Ms. P. Chakraborty, learned counsel for the petitioner as well as M r. M. Goni, learned CGC appearing for the respondents. I have also perused the e ntire materials on record. Two fold submissions made by the learned counsel for the petitioner are that the enquiry proceeding was vitiated in view of the fact that the request made by th e petitioner to change the Enquiry Officer was not acceded to without assigning any reason. Her second leg of argument is that even if the charges levelled agai nst the petitioner are said to have been established in the enquiry, then also t he extreme penalty of compulsory retirement was not called for and accordingly, this Court exercising its jurisdiction under Article 226 of the Constitution of India should set aside and quash the impugned order. Mr. Goni, learned CGC on the other hand submits that the prayer of the petitione r to change the enquiry officer was rejected by the disciplinary authority on va lid ground. He further submits that after such rejection of the prayer, the peti tioner having appeared before the Enquiry Officer, the principle of estoppel wil l operate against him. As regards the plea of penalty being disproportionate, he submits that having regard to the seriousness of the charges and the limited sc ope of interference in the matter of imposition of penalty, exercising writ juri sdiction this Court will be reluctant to interfere with the penalty of compulsor y retirement. The petitioner was imposed with the penalty of compulsory retirement by substitu ting the earlier penalty of dismissal from service by order dated 7.6.2004. Five years thereafter, the instant writ petition was filed. At that time the petitio ner was 60 years of age. He has also preferred the departmental appeal belatedly and so also the appeal before the Apex Court. Both the authorities dismissed th e appeals, both on merit as well as on the ground of delay. Even if the order of penalty of compulsory retirement is interfered with at this stage, the petition er cannot be reinstated in service as in the normal course, he would have retire d from service on attaining the age of superannuation. Applying the principle of no work no pay, no direction can also be issued for payment of arrear salary to the petitioner. However, such a course of action would arise only when it is he ld that the impugned orders are not sustainable in law. The two charges levelled against the petitioner are quoted below :- (cid:28)Article of Charge-1 Gross misconduct, indiscipline in that No. 751190058 Constable Sumitvir Singh CI SF Unit OIL Duliajan while posted at Industrial Sector was found without shaving on 08.08.1996 at about 1540 hrs. when Coy. Commander, Industrial Sector carried out kit inspection of Industrial line. While he was directed to shave his beard s, he refused. Further he was put up in orderly room on 09.08.1996 and Asstt. Co mmandant also ordered to shave his beards, even then he refused to so. Thus, he disobeyed the lawful order of higher authorities. Hence the charge. Article of Charge-II Gross misconduct and indiscipline in that No. 751190058 Constable Sumitvir Singh of industrial Sector CISF Unit OIL Duliajan, refused to receive suspension orde r in presence of other members of the Force when the suspension order was being tendered on him at about 1800 hrs. on 12.08.1996 by Inspector /Exe. S.K. Biswas. Hence the charge. (cid:29) In the enquiry proceeding, the petitioner had raised an objection against the En quiry officer. The said objection was considered by the disciplinary authority a nd the petitioner was informed that his objection was not tenable as the ground on which the objection was raised, had nothing to do with the Enquiry Officer. After the aforesaid rejection of the objection raised by the petitioner, the Enq uiry Officer had issued notice to him to attend the enquiry but the petitioner d eclined to receive the notice and also did not attend the enquiry. Resultantly, the Enquiry Officer had to conduct the enquiry exparte and thereafter submitted his report to the disciplinary authority on 24.1.1997 holding both the charges a s proved against the petitioner. The copy of the enquiry report together with the statement of prosecution witnes ses was sent to the petitioner seeking his representation, if any. Although, he received the enquiry report, no representation was submitted. Thereafter, in con sideration of the entire evidence on record, the disciplinary authority passed t he impugned order dated 10.4.1997 (Annexure-2) imposing the penalty of dismissal from service. As to what followed thereafter had been noted above. His appeal w as rejected both on the ground of delay and merit and thereafter by the impugned Annexure-5 revisional order, the penalty of dismissal from service was reduced to that of penalty of compulsory retirement from service. Thus, the departmental authorities have already dealt with the case of the petitioner leniently consid ering his long length of service, I see no reason to interfere with the same. For all the aforesaid reasons, I do not find any merit in the writ petition and accordingly it is dismissed, leaving the parties to bear their own costs.