The Deputy Inspector General Central Industrial Security Force & Ors. v. S.Ambigapathy

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 21.11.2008CORAM:THE HONOURABLE MR. JUSTICE S.J.MUKHOPADHAYAANDTHE HONOURABLE MR. JUSTICE V.DHANAPALANWRIT APPEAL No.269 OF 2000 1. The Deputy Inspector General Central Industrial Security Force Southern Zone, Rajaji Bhavan Besant Nagar, Chennai-902. The Director General Central Industrial Security Force, 13, C.G.Os.Complex, Lodhi Road, New Delhi-3 ... Appellants/ Respondents in W.P.16171/92Vs.S.Ambigapathy ... Respondent/ Petitioner in W.P.16171/92Writ Appeal filed under Clause 15 of the Letters Patent againstthe order of the learned single Judge of this court dated 3.12.1999made in W.P.No. 16171 of 1992 Writ Petition filed under Article 226of the Constitution of India praying to issue a writ of certioraricalling for the records connected with the orders of the DirectorGeneral (CISF) New Delhi as the second respondent herein issued inNo.V-14013/68/84/A L & R/1232 dated 30.9.92 confirming the orders ofthe first respondent in No.C-17023/MPT/01/80-INT/SZ/7 dated 3.5.1980and quash the said orders. For Appellants: Mr.M.S.Govindarajan, For Respondent: Mr.P.V.S.Giridhar https://hcservices.ecourts.gov.in/hcservices/ J U D G M E N TV.DHANAPALAN,J.This Writ Appeal has been preferred against the order of thelearned Single Judge, dated 3.12.1999, passed in W.P.No: 16171/92,whereby the learned Judge allowed the Writ Petition filed by therespondent herein, and set aside the order of the first appellantand directed reinstatement of the respondent with all backwages, attendant benefits and continuity of service from the date of hisdismissal from service till he is reinstated.

The aforesaid order was canvassed in this Appeal and byjudgement dated 5.9.2003, a Division Bench of this Court allowedthe appeal setting aside the order of the learned Single Judge. TheDivision Bench while setting aside order passed in the Writ Petitionhad considered the following aspects, viz., that the appellant, Central Industrial Security Force is an armed force whereindiscipline is of the utmost importance; the respondent committed theacts of indiscipline in consort with others establishes thedeliberate intent of the respondent to disobey the rules, whichincludes deliberate absence from parade, acts of insubordination tothe commands of the superior officers and shouting of rebelliousslogans; retention of persons who indulge in such acts will but seta poor example to others in the organisation who have not indulgedin such acts; the rigour of the discipline is bound to be diluted, thereby having an adverse impact upon the efficiency of theorganisation itself; the Industrial Security Force is meant tosafeguard all public sector installations and it can illafford tohave among its members persons who are indisciplined and who do nothesitate to defy the orders of the superiors and desist fromperforming duties, which are essential for keeping the unitefficient and useful.

As the above said judgement had been rendered ex parte, without hearing the counsel who was on record for the respondent, who did not represent the case on the date of hearing, therespondent engaged the present counsel and preferred WAMP.No:3491 of2005 to condone the delay of 669 days in filing the petition to setaside the ex parte judgement dated 5.9.2003. Accepting the reasonsassigned by the respondent, by order dated 4.1.2006, the FirstBench of this Court allowed the said WAMP, set aside the ex partejudgement and ordered for revival of the Writ Appeal for de novoconsideration.

Heard Mr.M.S.Govindarajan, learned counsel appearing for theappellants and Mr.P.V.S.Giridhar, learned counsel appearing for therespondent.

Learned counsel for the appellants submitted that in theinstant case, the respondent herein along with other securitypersonnel have committed grave misconducts of deliberate absencefrom parade, acts of insubordination to the commands of the superiorofficers and shouting of rebellious slogans; retention of persons https://hcservices.ecourts.gov.in/hcservices/ etc., which are against the Central Industrial Security Force Rules,1969. Learned counsel also submitted that as per Rule 37(b) of the Central Industrial Security Force Rules, 1969, holding of thedepartmental enquiry is dispensed with. According to the learnedcounsel, the Central Industrial Security Force being a disciplinedForce, considering the grave misconducts of the respondent, whichincludes raising rebellious slogans against the Deputy InspectorGeneral of the Force, the first appellant has rightly imposed thepunishment of dismissal from service which is in proportion with themisconducts committed by him.

In response, learned counsel for the respondent contendedthat in the absence of any departmental enquiry, the allegationscannot be held to be proved and even assuming so, the punishment ofdismissal from service is disproportionate to the gravity ofallegations. Ultimately, learned counsel for the respondent prayedthis court to show indulgence as the petitioner has been out ofemployment from the date of his dismissal from service and if he isin service, he would be retiring by March, 2009.

To countenance the above submission, learned counsel forthe appellants, Central Industrial Security Force, submitted thatthe grave misconducts being unauthorised absenteeism from attendingthe parade; indulging in various acts of discipline viz., rebelliousslogans, wilful and deliberate acts of insubordination, disobedienceof the orders of the superior officers, neglect and violation of hisduties and threat of violence, the appellate authority has rightlyset out the reason that since the misconducts are collective actionby the group in which the respondent has also participated, theprocedure prescribed to hold a departmental enquiry by serving awritten charge sheet etc., under Rules 34, 35 and 36 of the CentralIndustrial Security Force Rules, 1969 would be a futile and it isnot reasonably practicable to hold such an inquiry, the petitionercannot insist for a departmental enquiry. In support of hissubmission, learned counsel referred to the rulings of the ApexCourt in Union of India Vs.

Learned counsel for the respondent also relied on thejudgement of the Apex Court in Indian Railway Construction Co.,Ltd.,Vs. Ajay Kumar, reported in (2003) 4 SCC 579, to contend that theorder of dismissal is violative of Art.311(2) of the Constitutionviz., principles of natural justice has not been followed since theappellate authority has not conducted any departmental enquirybefore inflicting the punishment of dismissal from service and thusthe petitioner was prevented from defending the allegations of gravemisconducts. It is also contended that the reason recorded by theappellate authority for the impracticability of holding adepartmental enquiry is not proper and the same having not beencanvassed or dealt with by the learned Single Judge, the propercourse would be to direct the authorities to hold an enquiry. Inthat context, the Supreme Court observed as under:-"The power to dismiss an employee by dispensingwith an enquiry is not to be so exercised as tocircumvent the prescribed rules.

Residually, Learned counsel for the respondent also placedreliance on the judgement of the Apex Court in Arjun Chaubey Vs.Union of India, reported in AIR 1984 SC 1356, and contended that theorder of dismissal is illegal as it suffers for want of jurisdictionsince the same has been passed by Raja Sreedharan, Deputy InspectorGeneral (South Zone) of the Central Industrial Security Force, against whom the alleged rebellious slogans were raised andtherefore, the DIG who had been nurturing a grudge against therespondent, cannot sit in his own cause and decide the issue. Inthe said decision, the Apex Court observed;-"The order of dismissal was illegal on theground that the order was passed by the Superintendent after considering the explanationhimself which violated the principles of naturaljustice. The main thrust of the charges against theemployee related to his conduct qua the Superintendent. Therefore, it was not open to the Superintendent to sit in judgement over theexplanation offered by the employee and decide thatthe explanation was untrue. No person could be ajudge in his own cause and no witness could certifythat his own testimony was true. Any one who had apersonal stake in the enquiry must have kept himselfaloof from the enquiry". (emphasis supplied)

As regards the contention of impracticability of conductingthe departmental enquiry, it is not in dispute that the firstrespondent has recorded reason that since the misconducts have beencommitted by the respondent along with other members, which is acollective action, recourse to normal procedure of serving chargememo and holding of a regular departmental enquiry would be futile, we are of the considered view that to arrive at a decision onreasonableness, the court has to find out whether the firstrespondent has left out relevant factors or taken into accountirrelevant factors. The decision of the first respondent must havebeen within the four corners of the law, and not one which nosensible person could have reasonably arrived at, having regard tothe above principles and must have been a bona fide one. Thedecision could be one of many choices open to the authority but itwas for that authority to decide upon the choice and not for thecourt to substitute its view.

It is not in dispute that the respondent belonging to a https://hcservices.ecourts.gov.in/hcservices/ disciplined force has to act with a sense of discipline and decorum. In the name of presenting demands, they cannot hold the employer toransom. If an act or omission of an employee reflects upon hischaracter, reputation, integrity or devotion to duty or is anunbecoming act, certainly the employer can take action against him. In this context, reference may be made to the following observationsof Lopes,C.J., in Pearce V. Foster (1886-90) All ER Rep. Ext.1752:"If a servant conducts himself in a wayinconsistent with the faithful discharge of his dutyin the service, it is misconduct which justifiesimmediate dismissal. That misconduct, according to myview, need not be misconduct in the carrying on theservice of the business. It is sufficient if it isconduct which is prejudicial or is likely to beprejudicial to the interests or to the reputation ofthe master, and the master will be justified, notonly if he discovers it at the time, but also if hediscovers it afterwards, in dismissing that servant. "The above view was reiterated by a three Judge Bench of the ApexCourt in Union of India Vs. K.I.Dhawan, reported in (1993) 2 SCC 56.

It is evident from the provision contained in Section 37(b)of the Central Industrial Security Force Act, which prescribes theprocedures to be followed in certain cases of misconduct, whichinteralia contains "notwithstanding anything contained in Rule 34,Rule 35 or Rule 36, where a penalty is imposed on a member of the Force, where the disciplinary authority is satisfied, for reasonsto be recorded in writing, that it is not reasonably practicable toallow the procedure prescribed in the said Rules, the disciplinaryauthority may consider the circumstances of the case and pass suchorders thereon as it deem fit.

A careful reading of the above provision would make itclear that the procedures contemplated for imposing majorpenalties, minor penalties and petty penalties respectively under Rules 34,35 and 36, if the authority is satisfied for reasons to berecorded in writing that it is not reasonably practicable to followthe procedures prescribed in the said rules he can dispense withthe usual procedures contemplated under the Act. In the instantcase, admittedly, the authority has recorded reasons for notfollowing the procedures and dispensed with the procedurescontemplated while imposing the punishment. Therefore, it isnot necessary to remit the matter with a direction to thedisciplinary authority to conduct an enquiry.

Placing reliance on the decision of Arjun Chaubey, referredto earlier, it was argued by the learned counsel for the respondentthat the charges are only general in nature apart from vague and notdefinite and it only says that slogan and abuses were hurled uponMr.Raja Sreedharan, Deputy Inspector General of the CISF. But thevery same Officer has proceeded and passed the order of dismissal. It is argued that when the Officer is in the position of a witness, he cannot sit over on his own decision when the charge itself isrelating to him and therefore, it cannot be said that he was free https://hcservices.ecourts.gov.in/hcservices/ from bias in passing the order of dismissal and on that ground thedismissal is vitiated. It is evident that as against the order ofdismissal, dated 3.5.1980, the respondent preferred an Appeal tothe Director General, CISF, New Delhi and the appeal was alsodismissed by order dated 11.3.1981.

However, the respondent had the grievance that withoutproviding an opportunity, the appellate authority considered theappeal and therefore approached this Court by filing the WP.No:1822of 1994. This Court while setting aside the order of dismissalpassed against him by the appellate authority, by order dated9.3.1992, remitted back the matter to the appellate authority forrehearing and disposal in accordance with law.

On such remittal, the respondent was again directed toappear before the Director General of CISF at New Delhi on 22.9.1992and he was heard in person by the Appellate Authority with the helpof an interpreter and after hearing the respondent and finding thatthere ware overwhelming evidence against the him, by the impugnedorder dated 30.9.1992, the Appellate Authority dismissed the appeal. Aggrieved of the said order, the present Writ Petition has beenpreferred by the respondent.

It is also not in controversy that though rebelliousslogans were raised and written slogans were pasted against thedisciplinary authority, namely, Sree Raja Sreedharan, IPS (DIG,CISF), he had not witnessed the same and hence he is not in theposition of a witness. It is also not in dispute that a chargememorandum, dated 24.4.1980, with regard to the misconduct of therespondent was issued on 28.4.1980. But it is the respondent whorefused to receive the charge memo and such refusal was alsorecorded. Therefore, the order of dismissal passed by thedisciplinary authority after recording the reasons for theimpracticability of non compliance of Rules 34,35 and 36 is not inany way contrary to the Rules. It is also to be taken note of thatwhen the order passed by the appellate authority was set aside andremitted back for rehearing, the respondent had not demanded anyenquiry as observed by this Court in its judgment dated 9.3.1992.Further, on remittal, considering the facts and circumstances ofthe case, the directions issued by this Court, the evidence onrecords, the submissions of the respondent at the time of rehearing, the appellate authority has dismissed the appeal by passing aspeaking order on 30.9.1992.

To decide the competency of the Disciplinary Authority topass the order of dismissal and the power of the appellateauthority, we have to necessarily look into the Central IndustrialSecurity Force Act, 1968 and the Rules framed thereunder. Section8 of the Act deals with dismissal, removal etc., of a member of theforce, wherein it is specifically contemplated that "subject to theprovision of Art.311 of the Constitution and to such Rules as the Central Government may make under this Act, any Supervisory Officermay (i) dismiss or remove or reduce in rank any enrolled member ofthe Force whom he thinks remiss or negligent in the discharge of hisduty or unfit for the same; or (ii) award anyone or more of the https://hcservices.ecourts.gov.in/hcservices/ following punishments to any enrolled member of the Force whodischarges his duty in a careless or negligent manner or who act ofhis own renders himself unfit for the discharge thereof, (a) fineto any amount not exceeding seven days' pay or reduction in payscale; (b) drill, extra guard, fatigue or other duty; (c) removalfrom any office of distinction or deprivation of any specialemolument".

Under Section 9 of the Act, it is provided that "anyenrolled member of the Force aggrieved by an order made under Section 8 may, within 30 days from the date on which the order iscommunicated to him, prefer an appeal against the order to suchauthority as may be prescribed, and subject to the provisions of subsection (3), the decision of the said authority thereon shall befinal.

It is definite under the Act that the "Supervisory Officer"means any of the Officer appointed under Section 4 and any otherofficer appointed by the Central Government as a Supervisory Officerof the Force. Therefore, the disciplinary authority for the purposeof this case is that any supervisory officer as contemplated under Section 4, which clearly indicates that the Central Government mayappoint a person to be a Director General of Force and may appointother person to be Inspector General, Deputy Inspector General, Commandant, Deputy Commandants or Assistant Commandants of that Force. Therefore, the Officer who has framed the charges andproceeded against is the Deputy Inspector General of the Force whois in a supervisory cadre, namely Disciplinary Authority as providedunder Rule 29-A and Schedule II specified in that behalf.

The only allegation against the Disciplinary Authorityappears to be that the respondent has raised slogans against him andtherefore, he cannot sit on his own decision in a matter where hehimself is related to the incident. Therefore, a specific plea israised that the order of the disciplinary authority naturally cannotbe free from bias. A Constitutional Bench of the Supreme Court inthe case of Arjun Chaubey Vs. Union of India, reported in AIR 1984SC page 1356, referred to earlier, held that an order of dismissalis illegal if the same is passed by the disciplinary authority afterconsidering the explanation himself which would be violative of theprinciples of natural justice as it was not open to him to sit injudgement over the explanation offered by the employee and decidethat the explanation was untrue. Applying the well settled legalmaxim, that no person could be a Judge in his own cause, we holdthat in the case on hand, it is not open to the Deputy InspectorGeneral, CISF, to decide the misconduct of the respondent who raisedrebellious slogan against the Deputy Inspector General, CISF andpass the punishment of dismissal from service. Any one who had apersonal stake in the enquiry must have kept himself aloof from theenquiry.

An analysis of the above, clearly ruled that no personcould be a Judge in his own cause and no witness could certify thathis testimony was proved. Therefore, the charge of a misconductrelating to himself after considering by himself to the explanation https://hcservices.ecourts.gov.in/hcservices/ of the employee cannot be held to be proper and the same is inviolation of principles of natural justice. Section 8 of the CISFAct stipulates that dismissal, removal etc., of members of the Force shall be subject to the provision of Art.311 of the Constitution. In this case, the facts and circumstances of thecase would reveal that the Disciplinary Authority himself has sitover on his own cause. Therefore, there cannot be a fairness andreasonableness in the exercise of the powers exercised by him asthe Disciplinary Authority and hence, there is a clear violation of Art.311 of the Constitution of India, namely, principle of naturaljustice, and therefore the order of dismissal passed by the Disciplinary Authority cannot be sustained.

In the light of the above discussion and on a carefulconsideration of the Constitution Bench ruling of the Supreme Courtand on a consideration of the relevant Sections in the Act and the Rules in question, though the CISF is an Armed Force of the Union of India, wherein discipline is of paramount importance and the Disciplinary Authority as well as the Appellate Authority haveviewed the matter as if the respondent is an indisciplined person, they have decided not to retain him in the Force, an there being noquarrel over the above ethical value and the maintenance ofdiscipline in the armed Force, at the same time, we hold that whilethe authority who is competent to decide the award of punishment, itis necessary for him to follow the procedures contemplated under Actand there must be a strict adherence to the Rule of Law. Theauthority who intended to maintain the discipline must be thefollower and must give strict adherence to the Rule of Law also. Thelegitimate expectation of every one is that before the delinquent isto be punished, he must be provided with an opportunity and it isthe ordained principle that if there is any action contrary to theprinciples of natural justice, the rudimental concept of adhering tothe principle is to be followed which is the foundation of fairnessand impartiality in the action of the authority concerned. Therefore, we feel that the authorities below have not at allfollowed the procedures contemplated in Section 8 of the Actbefore imposing the punishment. Therefore, in the light of theabove position, it is corollary to follow the procedure ascontained in Section 8 of the Act. In consequence, it is proper forthis Court to direct the appellants to appoint an independentdisciplinary authority who is in the same rank of Deputy InspectorGeneral of the said Force, and proceed independently taking intoconsideration of the facts and circumstances of the case and thematerial evidence available and also the relevant provisions of the Act and the Rules of CISF and pass appropriate orders, in accordancewith law, within a period of two months from the date of receipt ofa copy of this judgement, as the respondent is left with only fourmonths of service.

We, accordingly set aside the order of dismissal, dated3.5.1980 passed by the disciplinary authority, namely, the DeputyInspector General, CISF, Southern Zone, Chennai, as well as theorder of confirmation, dated 30.9.1992, passed by the appellateauthority, namely, the Director General of CISF, New Delhi. However, we make it clear that we are not in agreement with the reasoning of https://hcservices.ecourts.gov.in/hcservices/ the learned Single Judge in its entirety and therefore, interfereand modify the order of the learned Single Judge to the extentindicated above.