S.Goparam v. The Inspector General

IN THE HIGH COURT OF JUDICATURE AT MADRASDated:- 13.07.2006Coram:-The Hon’ble Mr. Justice P.SATHASIVAMandThe Hon’ble Mr. Justice V.DHANAPALANWrit Petition No.23327 of 2001S.Goparam… PetitionerVs.1. 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.… RespondentsPetition under Article 226 of the Constitution of India for theissuance of a writ of certiorari to call for the records relating tothe 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 secondrespondent in No.V-15014(1)/I/2KI/L&R (SZ)/4328, dated 21.05.2001, andquash the same. For Petitioner:Mr.T.N.SugeshFor Respondents: Mr.K.Veeraraghavan,Senior Central Government Standing Counsel.O R D E RP.SATHASIVAM, J.Aggrieved by the Order of the second respondent – Deputy https://hcservices.ecourts.gov.in/hcservices/ Inspector General, Central Industrial Security Force, Chennai-90,dated 21.05.2001; and the show cause notice, dated 10.11.2001, of thefirst respondent – Inspector General, Central Industrial SecurityForce, Mumbai; the petitioner has filed the above Writ Petition toquash 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 on01.07.1989 in the Central Industrial Security Force (CISF), NLC,Neyveli. On 19.12.1999, he was on ‘B’ shift duty from 13.00 hours to21.00 hours at the GWC Store Gate, Neyveli Lignite Corporation. Aftercompletion of his duty hours, he handed over the duty to his relieverwho was on ‘C’ shift duty. Everything was in tact when he handed overduty. The store key was kept with the officials of the NLC and notwith the CISF. Subsequently, on 20.12.1999, when the store was openedby the Chief Engineer, Electrical, NLC, at 09.30 hours, theft ofcertain materials was noticed. However, all the doors, windows andthe locks were seen intact. A police complaint was lodged. Nomention was made in the General Diary Entry that the theft hadoccurred during the duty hours of the petitioner on 19.12.1999. Thestolen materials were subsequently recovered by the police. Subsequently, a Charge Memo was issued to the petitioner on15.05.2000 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 thathe failed to safeguard the NLC undertaking property while on ‘B’ shiftduty on 19.12.1999 from 13.00 hrs to 21.00 hrs, due to which, a theftof property worth Rs.6,20,000/- was reported on 20.12.1999 and that itamounted to dereliction of duty and irresponsibility towardsassignment. The petitioner submitted a reply, denying the chargeframed against him. One R.Manavalan, Assistant Commandant, wasappointed as Enquiry Officer to enquire into the charge framed againstthe petitioner. Though there was no evidence to prove the chargeframed against the petitioner, yet, the Enquiry Officer submitted areport, holding the charge as proved. Copy of the said report wasfurnished to the petitioner by proceedings of the DisciplinaryAuthority dated 17.10.2000, whereupon, he submitted his explanationagainst the findings of the Enquiry Officer on 27.10.2000. On receiptof the explanation and, after examining the evidence, the DisciplinaryAuthority/third respondent held that it was not established that thetheft 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 couldnot be proved beyond doubt. However, after observing that awarding amajor penalty would not be justified, he imposed a punishment of“withholding of future increments for two years, which will not havethe effect of postponing further increments of pay” and regularisedthe period of suspension from 29.12.1999 to 16.10.2000 as on duty for https://hcservices.ecourts.gov.in/hcservices/ all purposes in and by his order dated 04.11.2000. The petitioner didnot prefer any appeal, however, the appellate authority, viz., theDeputy Inspector General (R2)/CISF took up the case for suo motureview and issued a show cause notice by his proceedings dated14.03.2001, stating that the punishment imposed by the DisciplinaryAuthority is lenient, and called upon the petitioner to show cause asto why the punishment already imposed should not be enhanced to thatof reduction in pay by three stages from Rs.3425/- to Rs.3200/- in thetime scale of pay of Rs.3150-75-3950-80-4590 for a period of twoyears, which will have the effect of postponing future increments, andto regularise the period of suspension as Dies-Non. He submitted hisreply to the show cause notice on 31.3.2001. However, the secondrespondent, by order dated 21.05.2001, enhanced the punishment asproposed in the show cause notice. Aggrieved by the said enhancementof punishment, he preferred an appeal to the firstrespondent/Inspector General, CISF, on 05.07.2001. However, the firstrespondent, instead of considering the appeal filed by the petitioneragainst the enhancement of punishment, has issued show cause noticedated 10.11.2001 (impugned proceedings), calling upon him to showcause as to why the punishment should not be further enhanced to thatof dismissal from service. Questioning the same, the petitioner hasfiled the present Writ Petition.3. The third respondent filed a counter affidavit on behalf ofthe respondents, wherein, he denied all the allegations made in theaffidavit. It is stated that the respondents, by virtue of the powerconferred under the Central Industrial Security Force Act, 1968; andthe Central Industrial Security Force Rules, 1969; after taking noteof 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 andMr.K.Veeraraghavan, learned Senior Central Government StandingCounsel.5. In order to understand the claim of both the parties, it isuseful to refer to the article of charge framed against thepetitioner, which reads as under:- “ STATEMENT OF ARTICLE OF CHARGE FRAMED AGAINSTNo.891400790 CONSTABLE S.GOPARAM OF CISF UNIT NLCNEYVELI (T.N.)ARTICLE-1 “No.891400790 Constable S.Goparam ofCISF Unit NLC Neyveli was deployed in ‘B’ shiftduty on 19.12.99 from 1300 hrs to 2100 hrs., atGWC (Electrical) of Mines-I. During his duty he https://hcservices.ecourts.gov.in/hcservices/ failed to safeguard the Undertaking property dueto which a theft of Undertaking property worthRs.6,20,000/- reported on 20.12.99 morning. Thisact on his part tantamounts to severe derelictionof duties, gross remiss and highly irresponsibletowards his assignment.” Hence the charge.Sd./- ………………….COMMANDANT,CISF UNIT NLC (N)”The petitioner submitted his reply, denying the charge. Not satisfiedwith the explanation, one R.Manavalan, Assistant Commandant, wasappointed as Enquiry Officer on 08.08.2000. It is not in dispute thatthe petitioner was afforded with opportunity in the enquiryproceedings. The Enquiry Officer submitted the Enquiry Report on10.10.2000 holding that due to carelessness on the part of thepetitioner and lack of responsibilities towards his assignment, atheft of undertaking property worth Rs.6,20,000/- was reported on20.12.1999. It is also not in dispute that the Enquiry Report wasforwarded to him and the petitioner submitted his explanation to thesame on 27.10.2000. The third respondent, by order dated 04.11.2000,after going into the charge, entire enquiry proceedings, explanationof the petitioner etc., concluded that the charge levelled against himcould not be proved beyond doubt. However, after finding so andobserving that awarding of a major penalty will not be justified; inexercise of the powers conferred upon him under Rule-29(A) Schedule-IIread with Rule-31(e) of CISF Rules, 1969; the third respondent imposeda punishment of withholding of petitioner's future increments for twoyears, which will not have the effect of postponing his furtherincrements of pay and also ordered that the period of suspensionfrom 29.12.1999 to 16.10.2000 will be treated as on duty for allpurposes. It is useful to refer the following conclusion arrived bythe third respondent, “ 7. After analysing both the side ofprosecution and defence, I have observedthat, the prosecution side failed toestablish the charge as levelled againstthe charged member. ..........“The following conclusion in para No.8 is also relevant:-“ 8. Since the charge levelled against thecharged member could not be proved beyonddoubt, I am taking a lenient view thistime.”6. Having found that the charge levelled against the Officer has https://hcservices.ecourts.gov.in/hcservices/ not been proved, it is not understandable as to how the thirdrespondent armed himself with an authority to impose any punishmentmuch less lesser punishment. Now, let us consider the action taken bythe second respondent – Deputy Inspector General, CISF, Southern Zone,Chennai. The second respondent, in his notice, dated 14.03.2001, suomotu reviewed the case of the petitioner and, after finding that thepunishment imposed by the Disciplinary Authority is lenient and notcommensurate to the gravity of the offence committed by him, calledupon the petitioner to show cause why reduction in pay by three stagesfrom 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 ofpostponing his future increment, should not be imposed to meet theends of justice. In the same notice, there was also a proposal toregularise the suspension period as Dies-non.7. Learned counsel appearing for the petitioner questionedthe action of the second respondent on two grounds, viz., (a) on the relevant date, he is not the authoritycompetent to review and enhance the punishment suomotu, (b) the show cause notice, dated 14.03.2001,refers only lesser punishment and proposes to imposehigher punishment forgetting that the DisciplinaryAuthority has concluded that the only charge framedagainst the petitioner could not beproved/substantiated. 8. Coming to the first ground of attack, it is brought toour notice that on the date, viz., 14.03.2001, when the secondrespondent took up the case for suo motu review under Section 9 (3) ofthe CISF Act, only the Central Government had the power to review andnot the second respondent. The said provision, viz., Section 9(3) ofthe CISF Act, 1968, reads as follows:-" 9. Appeal and revision.--(1) ......... .......... (2) ...... (3) The Central Government may call forand examine the record of any proceeding underSec.8 or under sub-section (2) of this section andmay make such inquiry or cause such inquiry to bemade 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 CentralGovernment has the power to review and pass appropriate orders https://hcservices.ecourts.gov.in/hcservices/ including modifying the order of the Disciplinary Authority. Inasmuchas the petitioner had not preferred any appeal against the order ofthe Disciplinary authority, in the light of sub-Section-3, the secondrespondent did not have the power under the said provision to take upsuo motu review, hence, the proceedings were without jurisdiction. Toput it clear, on the relevant date, viz., on 14.3.2001, as per theprovisions stood then, the Central Government alone had the power totake up suo motu review and the show cause notice issued forenhancement of the punishment by the second respondent cannot besustained.10. Coming to the second contention, we have already extractedthe conclusion of the Disciplinary Authority holding that the onlycharge levelled against the petitioner has not been proved, in suchcircumstances, we are of the view that there is no question ofimposing punishment either leniently or moderately. Even if thesecond respondent or any other authority having jurisdiction wants toimpose a higher punishment, before setting at motion any of theirproceedings in that regard, the petitioner must be afforded anopportunity with reference to the same by way of show cause notice.Here, in the show cause notice issued by the second respondent, theonly reason made (that is available at page 59 of the typed set) isthat the punishment imposed by the Disciplinary authority is lenientand is not commensurate to the gravity of the offence committed by thepetitioner. The same proceeds as if the Disciplinary Authority hasaccepted the finding of the Enquiry Officer, took a lenient view andimposed a lesser punishment. In the absence of any reason, based onwhich the second respondent differed from the decision of theDisciplinary Authority, the show cause notice, dated 14.03.2001, whichspeaks only about ‘lesser punishment’ cannot be held to be a validnotice in the eye of law. As rightly pointed out, the secondrespondent failed to appreciate that the finding was in favour of thepetitioner and the charge was not proved; and that punishment cannotbe enhanced merely because the charge is serious. Punishment canonly be imposed on the basis of the material evidence in support ofthe charge and inasmuch as the finding of the Disciplinary Authorityclearly states that the charge is not proved, we are of the view thatenhancement of the punishment by the second respondent cannot beaccepted. In view of the above infirmities in the order of the secondrespondent, the subsequent order of the first respondent, proposingto enhance the punishment to that of dismissal from service, cannot besustained. https://hcservices.ecourts.gov.in/hcservices/

11. In these circumstances, the impugned proceedings of the firstrespondent dated 10.11.2001 and the order of the second respondentdated 21.5.2001 are quashed. The petitioner is entitled to allservice and monetary benefits. Writ Petition is allowed. No costs.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarJI.To1. 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.+1cc to Mr.T.N.Sugesh, Advocate Sr 30118+1cc to Mr.K.Veeraraghavan,Advocate Sr 30352NG (CO)km/20.7.W.P. No.23327/2001.