In the matter of an application under Article 226 of the Constitution of India v. 1. Union of India 2. The Inspector General, C.I.S.F, Eastern Sector, Patna 3. The
Case Details
1 W. P. (S) No. 1455 of 2005 In the matter of an application under Article 226 of the Constitution of India ------ Nageshwar Prasad Shaw ... ... ... Petitioner Versus 1. Union of India 2. The Inspector General, C.I.S.F, Eastern Sector, Patna 3. The Dy. Inspector General, C.I.S.F. Unit, B.T.P.S, Bokaro 4. The Commandant-cum-Disciplinary Authority, ... B.T.P.S, Bokaro ... ... Respondents ------ For the Petitioner
Legal Reasoning
: Mr. K.K. Srivastava, Advocate Mrs. Kavita Singh, Advocate For the Union of India : Mr. Faizure Rahman, C.G.C. ----- P R E S E N T HON’BLE MR. JUSTICE SHREE CHANDRASHEKHAR ------ By Court: Challenging the penalty order dated 20.12.2003 and the revisional order dated 09.11.2004, the petitioner has filed the present writ petition. 2. The petitioner was appointed as Head Constable in the year 1986 and he was posted as Head Constable Driver, B.T.P.S, Bokaro Thermal since 2001. By letter dated 14.12.2002, the petitioner was directed to furnish details of the TVS (Victor) motorcycle bearing No. JH-09 B/1588 which was found to be in his possession for the last two months. The petitioner furnished the details of purchase of the said motorcycle on 16.12.2002 and by letter dated 20.12.2002, the petitioner further furnished the details of payment of money. The father-in-law of the petitioner also intimated the authority that the said motorcycle was purchased by him for his younger daughter who was soon to be married. On 07.02.2003, the petitioner was issued a show-cause notice requiring him to explain within three days why he failed to furnish 2 property details in terms of Rule 18(3) of C.C.S. (Conduct) Rules. The petitioner submitted his explanation however, on 24.04.2003 a departmental proceeding was initiated against the petitioner in which the petitioner submitted his written statement on 09.05.2003. The enquiry officer submitted a report to the Commandant on 25.06.2003 holding the petitioner guilty of charge under Rule 18 (3) of C.C.S. (Conduct) Rules. The petitioner filed his reply to the second show-cause notice on 18.07.2003 reiterating his stand that the said motorcycle was purchased by his father-in- law for his younger daughter who was soon to be married and the petitioner was only using the said motorcycle during the said period. He further submitted that his father-in-law had, in fact, taken back the motorcycle from him. The Commandant passed the penalty order on 20.08.2003 imposing punishment of reduction of scale of pay by two stages from Rs. 4600 to Rs. 4400 for a period of two years with further directions that the petitioner will not earn two years' increment and it would have effect on the future increments. The petitioner preferred appeal on 20.09.2003 however, the appellate authority without considering the materials on record rejected the appeal by order dated 09.11.2004. 3. A counter-affidavit has been filed on behalf of the respondents stating that the departmental enquiry was conducted as per Rule and procedure laid down thereunder and the petitioner was given all possible reasonable opportunity to defend his case. The penalty imposed upon the petitioner was commensurate with the gravity of the proved misconduct and therefore, no interference is required in the matter by this Court. 4. Heard the learned counsel appearing for the parties and perused the documents on record. 5. The learned counsel appearing for the petitioner has submitted that since the motorcycle was not purchased by the petitioner or from the fund made available by him therefore, it was 3 not necessary for him to inform the department about the temporary possession of the said motorcycle with him. 6. On the other hand, the learned counsel appearing for the respondents has pointed out that invoice for the said motorcycle was issued in the name of the petitioner and the registration is in the name of the wife of the petitioner, therefore, in all probability, the said motorcycle has been purchased by the petitioner and the petitioner has intentionally suppressed the details of the purchase of motorcycle from the department. 7. Countering the plea of the respondents, the learned counsel for the petitioner has submitted that the invoice was issued in his name because he and his wife had gone to the showroom for selecting the motorcycle. The wife of the petitioner being the elder daughter had taken initiative in the matter and since it was purchased at Bokaro, the name of the wife of the petitioner was reflected in the registration certificate of the said motorcycle. As a matter of fact, the said motorcycle has been taken away by his father-in-law and the name of the owner of the motorcycle has also been now changed. Learned counsel has further submitted that in any case the misconduct alleged is not such that would warrant the infliction of a major penalty upon the petitioner and therefore, the order of penalty and the revisional order are liable to be quashed. 8. A perusal of the show-cause notice dated 06.02.2003 discloses that the petitioner was charged for concealing the fact of purchase of TVS (Victor) motorcycle. The petitioner was granted only three days' time to submit his explanation. A perusal of charge-memo dated 24/25-04-2003 reveals that the department had already concluded that the petitioner had purchased the said motorcycle on 20.06.2002 and since he had not informed the department, the said charge was framed against him. During the enquiry, four witnesses were examined by the department who all have deposed regarding use of motorcycle by the petitioner and no 4 entry regarding purchase of the said motorcycle being made in the service book of the petitioner. However, none of the witnesses have stated anything which would discredit the stand taken by the petitioner that the said motorcycle was neither purchased by him nor he had provided any fund for the purchase of the said motorcycle. The father-in-law of the petitioner had also submitted an affidavit to the effect that the said motorcycle was purchased by him for his younger daughter who was soon to be married. The petitioner has stated that in January, 2003 itself the said motorcycle was taken by his father-in-law and given to his younger daughter in her marriage and the name in the registration paper of the motorcycle was accordingly changed. The petitioner has also pleaded that he had no knowledge about the Rule which required him to furnish details regarding purchase exceeding Rs. 10,000/- made by him. The petitioner has also brought to the notice of the enquiry officer that another employee namely, SI/Min. Indrajit Singh had also failed to furnish information regarding purchase made by him and he was awarded punishment of 'Censor'. On these grounds the petitioner pleaded that taking into consideration his past unblemished service for 17 years, he should be exonerated from the charges framed against him. I find that this aspect of the matter has not been properly examined by the enquiry officer. The enquiry officer has simply disbelieved the defence of the petitioner. The disciplinary officer has also not given any cogent reasons for agreeing with the finding of misconduct recorded by the enquiry officer. 9. In “Narinder Mohan Arya Vs. United India Insurance Co. Ltd. & Ors.”, reported in (2006) 4 SCC 713, the Hon'ble Supreme Court has held that the evidence adduced on behalf of the management must have nexus with the charges. The enquiry officer cannot base his findings on mere hypothesis. Mere ipse dixit on his part cannot be substitute of evidence. 5 10. There is no material on record to suggest that the petitioner willfully suppressed the information regarding possession of the motorcycle. No effort was taken by the department to obtain the purchase details of the motorcycle which was found in possession of the petitioner. Therefore, there is no evidence on record to conclude that the said motorcycle was purchased by the petitioner in the name of his wife from his own funds. There is no finding recorded either by the enquiry officer or the disciplinary authority disbelieving the plea of the petitioner that he had no knowledge about the Rules requiring him to furnish information about the said motorcycle. 11. In view of the aforesaid discussion, I am of the view that benefit of doubt could have been given to the petitioner and therefore, the order dated 20.12.2003 as confirmed by the revisional order dated 09.11.2004 is modified into a punishment of 'Censor'. 12. The writ petition is allowed in the aforesaid terms. (Shree Chandrashekhar, J.) Jharkhand High Court, Ranchi Dated: 12/04/2013 Manish/A.F.R.