Rukhshana Najnin v. Union of India

CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR HON'BLE MR. JUSTICE RATNAKER BHENGRA For the Appellants For the Respondents : Mr. Anurag Kumar, Advocate : Mr. Madan Prasad, Advocate --------------- O R D E R 20th April 2022 Per, Shree Chandrashekhar, J. The legal heirs of Md. Sohrab are in appeal against the order dated 27th June 2013 passed in WP(S) No. 1249 of 2004.

2. Md. Sohrab who was employed as Constable in CISF Unit at BTPS (DVC) Bokaro Thermal was served a charge-memo dated 30th July 1993 on 07th August 1993 on the allegation that (i) he outraged modesty of Shanti Devi amounting to misconduct (ii) refused to accept movement order and railway warrant on 25th May 1993 and thereby committed disobedience of lawful order within the meaning of section 18 of CISF Act, 1968. And his past misconduct was proposed to be taken into consideration while deciding 2 LPA No. 312 of 2013 the quantum of punishment.

3. By an order dated 28th February 1994, the disciplinary authority exercising the powers under Rule 29(a) of CISF Rules, 1969 while agreeing with the inquiring officer that the charges which were grave in nature were proved in the domestic inquiry awarded punishment of dismissal from service. The appeal preferred by Md. Sohrab was dismissed by an order dated 21st September 1994 holding as under : “7. In view of the above analysis, I found that the disciplinary case of ex-Const. Mohd. Sohrab has been rightly judged by the disciplinary authority and he is not a fit member to be retained in a disciplined Armed Force of the Union. His involvement in a grave criminal case such as trying to outrage the modesty of a woman speak volumes about his bad character. Besides, I found that the charges have been well proved on the basis of the enquiry conducted within the framework of CISF Rules and Regulations. Further, the ex-Constable has also not brought out any cogent points to prove his innocency in the criminal case. As such, I do not find any valid reason to interfere with the orders passed by the disciplinary authority. Therefore, ex-Const. Mohd. Sohrab is hereby informed that his appeal petition has been considered by the undersigned and rejected being devoid of any single merit in it. The suspension period will be treated as suspension only as the disciplinary authority has not regularised the period.”

4. The Ex-Constable approached the writ Court in CWJC No. 2796 of 1994(R) and by that time he was acquitted in S.T. No. 174 of 1995 by judgment dated 11th November 1998.

5. The writ Court referred to the judgment in “M. Paul Anthony v. Bharat Gold Mines Ltd.” (1999) 3 SCC 679 and set-aside the order of punishment. By an order dated 16th August 2002, CWJC No. 2796 of 1994(R) was allowed and the matter was remitted back to the disciplinary authority to pass a fresh order in the light of the judgment in “M. Paul Anthony”.

6. Finally, by an order dated 07th January 2003 the Commandant, CISF who is the disciplinary authority modified the order of punishment of dismissal from service to reduction of pay to the lowest stage. However, it was ordered that for the intervening period from 09th March 1994 to the date of the re-instatement a separate order for regularisation shall be passed and Md. Sohrab was directed to report for joining within 15 days provided he does not prefer to file an appeal. 3 LPA No. 312 of 2013

7. As would appear from the records of the case, Md. Sohrab challenged the order dated 07th January 2003 before the appellate authority however without success and his appeal was dismissed by an order dated 23rd August 2003. The disciplinary authority passed a separate order on 08 th February 2003 as regards regularisation for the period between 09th March 1994 to 19th January 2003.

8. The order dated 08th February 2003 passed by the disciplinary authority in this regard reads as under: “No. 862300436 Const. Md. Sohrab of CISF Unit BTPS (DVC) Bokaro was re-instated in service wef 20.01.03 with the punishment of Reduction of pay to the lowest stage from Rs. 900/- to Rs. 855/- in the time scale of pay of Rs. 825-15-900 EB-20-1200 for a period of five years which will have the effect of postponing his future increments of pay vide USO part-I No. 02/2003 dated 21-01-03. A show cause notice vide no. (231) dated 22-01-03 was issued to him proposing to treat the intervening period as “Dies-Non” for all purposes and he was given an opportunity to submit his representation, if any against the proposal within 07 days. Further on his request, he was given 12 days instead of 07 days. No. 862300436 Const. Md. Sohrab has submitted his representation on 30-01-03 in which he requested that the intervening period from 9.3.94 to 19.01.03 should not be treated as Dies-Non as he was not absented himself from service deliberately or intentionally rather his absence was compelled by the order of dismissal. His plea is unsatisfactory. He has not put forth any cogent reason in his representation to help him for not treating intervening period as “Dies-Non”. As per directives issued by Hon'ble High Court, Ranchi dated 16.08.02 a fresh final order has been issued. In the fresh final order, he was given an opportunity of re-instatement (from the date of joining to this unit) with partial modification of earlier punishment of Dismissal from service and given him a chance to improve his conduct. He has not performed any duty during the intervening period. On the principle of “NO WORK NO PAY” it is ordered that the intervening period from 9-3-94 to 19-01-03 i.e. from the date of dismissal to the date of re-instatement in service be treated as “Dies-Non” for the all purposes of his service.”

9. The said order was challenged by Md. Sohrab in WP(S) No. 1249 of 2004. It appears that during pendency of the writ petition Ex-Constable passed away and in his place his wife and other legal heirs were substituted. WP(S) No. 1249 of 2004 has been disposed of by an order dated 27th June 2013 against which the present Letters Patent Appeal has been filed.

10. Mr. Anurag Kumar, the learned counsel for the appellants would raise contentions primarily to challenge the decision of the 4 LPA No. 312 of 2013 disciplinary authority to treat the period between 09th March 1994 to 19th January 2003 as “Dies-Non”. The aforesaid challenge has been mounted by the appellants for the reason that salary and other consequential benefits were not paid to the ex-employee, as a consequence of the period of absence from duty being treated as “Dies-Non”.

11. The powers of the writ Court of judicial review of the decisions of departmental authority are concerned with irrationality, proportionality and the decision making process and not the merits of the decision.

12. In “Syed Yakoob v. K.S. Radhakrishnan” AIR 1964 SC 477 the Hon'ble Supreme Court has held that a certiorari would lie against an order of quasi-judicial authority if the said order has been passed in breach of the rules of natural justice or contrary to the service rules. Both these aspects are not attracted in the present case and it cannot be held that the order dated 07th January 2003 suffers from irrationality.

13. The writ Court took note of the apprehension expressed on behalf of the legal heirs of Md. Sohrab that on account of break in service for about nine years pensionary benefits accruing to the Ex-Constable may not be paid to them. The writ Court has taken note of this aspect of the matter in paragraph nos. 5 and 6 of the order dated 27th June 2013 which read as under: Petitioner has assailed the action of the respondent “5. treating the said period as “Dies-Non” on the ground that petitioner could not perform his duty as he was forced to remain out of service on account of dismissal which was subsequently set aside by this Court. Therefore, the intervening period could not have been treated as “Dies-Non”. An air of uncertainty has been raised by the petitioner- widow that because of the impugned order passed contained at Annexure-7 as she would be denied the consequential pensionary benefits since the said intervening period of March 1994 to January 2003 would be treated as break in service. The aforesaid controversy has however been clarified by 6. the respondents in their counter affidavit specifically in para 11 thereof wherein it is specifically contended that the intervening period from 9.3.1994 to 19.1.2003 i.e. from the date of dismissal till the reinstatement of the services of the petitioner has been regularized as “Dies-Non” on the principle of “No Work No Pay” by the impugned order dated 8.2.2003.”

14. It is stated at bar that all legally payable pensionary benefits have already been paid to the legal heirs of Md. Sohrab. As to merits of the case, we concur with the learned Single Judge that other two charges which 5 LPA No. 312 of 2013 were found proved by the inquiring officer remained intact and only the punishment of dismissal from service was modified. In such eventuality, it could not have been contended on behalf of the Ex-Constable that he was prevented from attending duties on account of any illegal action on the part of the employer.

15. The aforesaid being the factual situation and the position in law, we find no reason to interfere with the writ Court's order and, accordingly, LPA No. 312 of 2013 is dismissed. (Shree Chandrashekhar, J.) (Ratnaker Bhengra, J.) Jharkhand High Court, Ranchi Dated: 20th April 2022 RK/Tanuj/ NAFR