The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.19541 of 2013 (In the matter of an application under Articles 226 and 227 of the Constitution of India, 1950). Rajesh Kumar Singh …. Petitioner(s) -versus- Union of India and Ors. …. Opposite Party (s) Advocates appeared in the case through Hybrid Mode: : For Petitioner(s) Mr. R. Acharya, Adv. For Opposite Party (s) : Mr. Debasish Tripathy, CGC CORAM: DR. JUSTICE S.K. PANIGRAHI DATE OF HEARING:-29.04.2024 DATE OF JUDGMENT: -16.07.2024 Dr. S.K. Panigrahi, J. 1. The Petitioner, through this Writ Petition, seeks to contest the directive of compulsory retirement, including the full compensation of pension and gratuity, as well as the subsequent order dated 26.02.2010, which dismissed the appeal against the punitive order. Additionally, the Petitioner challenges the rejection order dated 30.06.2010, issued by the revisional authority in response to the Revision Petition submitted on 01.04.2010 inter alia on the ground of arbitrary, illegal and in violation of natural justice. Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 16-Jul-2024 17:23:06 Page 1 of 21 I. FACTUAL MATRIX OF THE CASE: 2. The brief facts of the case are as follows: (i) The petitioner entered into service of Constable in C.I.S.F. on 10.7.1994. While continuing as such as C.I.S.F Unit, NALCO, Angul a charge-sheet was issued under Rule-36 of C.I.S.F. Rules, 2001 on 18.05.2009 by the Asst. Commandant, C.I.S.F. Unit, NALCO (“Opposite Party No.5”) alleging gross misconduct, indiscipline and dereliction of duty with respect of the following charges/allegations:
Legal Reasoning
a. The petitioner was assigned to sentry duty at the Smelter Fire Station from 1500 to 1700 hours. During his duty, he did not wear a helmet or headgear. Upon being questioned by Inspector Lokesh Chand, Coy Commander of the Smelter Fire Wing, regarding his failure to wear the required helmet, the petitioner responded inappropriately. He threw the helmet onto a cement planter and declared that he would not wear the helmet, challenging the inspector to take any action he deemed necessary. b. The petitioner unexpectedly and aggressively assaulted Inspector Lokesh Chand by punching him and hitting him with a stick. Consequently, Inspector Lokesh Chand sustained injuries to his nose, right temple, right wrist, and left thigh. c. He abandoned his duty and left the Unit Line/family quarters as of the afternoon of 03.09.2009, and did not return to his post. (ii) In response to the charge-sheet, the petitioner submitted the written reply to the Disciplinary Authority denying the charges on 29.05.2009 which was rejected by the Commandant, C.I.S.F., NALCO (“Opposite Page 2 of 21 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 16-Jul-2024 17:23:06 Party No.4”) and thereafter a departmental proceeding was initiated which was concluded on 25.09.2009 and communicated to the petitioner on 01.10.2009. (iii) The disciplinary authority issued the final order on 19.10.2009 imputing the penalty of compulsory retirement with full compensation and pension and gratuity as admissible to him on the date of his compulsory retirement (iv) The above order passed by the Disciplinary Authority was appealed by the petitioner under Section-9 of the C.I.S.F. Act read with Rule-46 of C.I.S.F. Rule 2001 before the Deputy Inspector General, C.I.S.F., Eastern Zone, HQ, Patna on 09.11.2009 challenging the penalty imposing which was also rejected. (v) Aggrieved by the appellate order, the petitioner submitted a revision petition to the Inspector General, C.I.S.F., Eastern Sector HQ, Patna-13 on 01.04.2010 challenging the appellate order and also the punishment awarded by the disciplinary authority which was disposed of on 30.06.2010 with rejection of the revision petition. II. SUBMISSIONS ON BEHALF OF THE PETITIONER: 3. Learned counsel for the Petitioner earnestly made the following submissions in support of his contentions: (i) The enquiry report was scribed in Hindi which is hand written, so, it was difficult on the part of the petitioner to go through it properly. The petitioner filed an application before the opposite party no.4 to issue English Translation copy of the enquiry report dated 25.9.2009 for better appreciation of the finding of the Enquiry officer but in obedience to the Page 3 of 21 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 16-Jul-2024 17:23:06 instruction of the opposite party no.4 vide their letter dated 1.10.2009, the petitioner without delaying the matter submitted a written representation on 16.10.2009 in Hindi with a prayer to exonerate all the charges with sympathetic consideration. (vi) The charge-sheet is in gross violation of Rule-36 read with Rule-32 of C.I.S.F. Rules, 2001. As per Rule-32, the extent of power of the Disciplinary Authority has been described in Schedule-I. The Assistant Commandant can be a Disciplinary Authority only for a minor penalty. Therefore, taking into account the quantum of punishment in the Disciplinary proceeding, the order of punishment is without jurisdiction, hence, liable to be set aside. (vii) When the charge-sheet was issued by the opposite party No.5 in exercise of power under Rule-36, the opposite party No.4 being the Appellate Authority cannot act as the Disciplinary Authority, therefore the entire Disciplinary Proceeding which was conducted at the direction of the Appellate Authority is vitiated. (viii) The petitioner has not been informed with regard to change of Disciplinary Authority, therefore, the Disciplinary Proceeding is absolutely without jurisdiction and the same is liable to be quashed. (ix) The office Memorandum dated 18.05.2009 issued by the Opposite Party No.5 in which it has been clearly mentioned that the undersigned purposes to hold an enquiry against No.941407768 Constable Rajesh Kumar Singh of C.I.S.F. Unit, NALCO, Angul under Rule-36 of C.I.S.F. Rules, 2001. It clearly indicates that the opposite party No.5 has issued the charge-sheet exercising the power of Disciplinary Authority. All Page 4 of 21 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 16-Jul-2024 17:23:06 orders issued by the opposite party No.4 including the appointment of Enquiry officer and consideration of Enquiry report and passing of Final order are in gross violation of statutory Rule-36 read with Rule-32, therefore, the entire Disciplinary proceeding is liable to be quashed. (x) While passing the final order the grievance of the petitioner was although considered but the final order is unreasoned and non- speaking. (xi) The allegation of assault and counter assault and subsequent to the incident of assault medical treatment was undertaken by both the parties which have not been taken into account in its proper prospective. Without making any effort to find out the real truth and in absence of any police investigation, the final order of punishment is not sustainable in the eye of law. (xii) The opinion of the Disciplinary Authority of the Final order regarding non-examination of the Doctor and non- submission of F.I.R. before the concerned Police Station is not sustainable in the eye of law which is very much prejudicial to the petitioner. Further, the hospitalization of the petitioner was out-rightly rejected by the Disciplinary Authority is not acceptable in the eye of law. (xiii) The reason assigned by the learned Disciplinary Authority are based on no sound principle of law and there is no legal sanction to the said reasons, therefore, the same is liable to be quashed (xiv) The final order is non-sustainable in the eye of law because the opposite party No.5 being the original Disciplinary Authority would not have passed the order of punishment of compulsory retirement. Page 5 of 21 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 16-Jul-2024 17:23:06 (xv) The Appellate order has mentioned the 26 grounds taken by the Appellant assailing the Final order, but the Appellate Authority disposed of those grounds in one paragraph without discussing the matter in its proper prospective. The Revisional Authority also suffers from the anomaly as it disposed of all the ground in one paragraph mechanically without applying the judicial mind. (xvi) The order of punishment is too harsh and not commensurate with the gravity of the offence. The petitioner joined in C.I.S.F. Service on 10.7.1994 and discharged its duties effectively. Although the Disciplinary proceeding was started for minor penalties but in arbitrary exercise of power to the petitioner has been imposed with major punishment. III. SUBMISSIONS ON BEHALF OF THE OPP. PARTIES: 4. (i).
Legal Reasoning
Per contra, learned counsel for the Opposite Parties earnestly made the following submissions in support of his contentions: Since the petitioner had deserted the Unit HQ, the charge memo in question was sent to his home address which he acknowledged on 23.05.2009 and submitted written representation in response to the charge memo which was received on 02.06.2009. As the reply of the petitioner was found not satisfactory, a regular Departmental enquiry was ordered by appointing Enquiry Officer and Presenting Officer under the provision of Sub-Rule (2) of Rule-36 of CISF Rules-2001. (ii). The enquiry officer conducted the departmental enquiry as per laid down procedure affording all reasonable opportunities to the petitioner Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 16-Jul-2024 17:23:06 Page 6 of 21 to defend the case and completed the enquiry. The Enquiry Officer, after careful consideration of all the evidence available in the case file and the statement of PWs recorded during the course of enquiry and defense of the petitioner, submitted his enquiry report on 25.09.2009 to the Disciplinary Authority wherein all the charges were categorically established. As per Rules on the subject, a copy of the Enquiry report was also supplied to the petitioner vide Memorandum No.6535 dated 01.10.2009. The petitioner acknowledged the same on 01.10.2009 and submitted his written representation against enquiry report on 16.10.2009. (iii). The Disciplinary Authority meticulously went through the records available in the case file, statement of PWs, written brief of the presenting Officer, Report of Enquiry Officer and representations submitted by the petitioner against brief note and enquiry report. After taking into consideration all the above aspect, which came out during the Departmental Enquiry, the Disciplinary Authority held the petitioner guilty of all the charge framed against him and penalized him with compulsory retirement. (iv). The offence committed by him is serious in nature for which he deserves exemplary punishment and retention of such person in the force shall contaminate the entire working atmosphere of the force. (v). During the course of preliminary hearing, the petitioner had wished to conduct enquiry in Hindi language. Accordingly, the Departmental enquiry was conducted in Hindi language by the Enquiry Officer. The petitioner is trying to mislead the Court by saying that he does not read Page 7 of 21 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 16-Jul-2024 17:23:06 and speak Hindi properly whereas he belongs to State of Bihar and his mother tongue is Hindi. His application dated 03.07.2009 and 17.07.2009 is symptomatic of the same as the petitioner had applied for Hindi version of Charge Memorandum and requesting to provide statement of enquiry report in Hindi as he does not understand English language. As per request of the petitioner whole Departmental Enquiry was conducted in Hindi language and supplied to the petitioner. Besides, the petitioner also submitted his representation against enquiry report in Hindi, which he himself admitted. This clearly speaks that petitioner had tried to prevent Departmental Enquiry by using delay tactics as well as now misleading the court submitting false and fabricated issue. (vi). As per Rule-32, and Schedule-I of the CISF Rules, 2001, the Assistant Commandant is a disciplinary authority for an enrolled member of the force. Therefore, there is no legal infirmity in issuing the Charge Memo for major proceeding by an Asst. Commandant. (vii). The petitioner was dealt under Rule-36 by the Disciplinary Authority and it was considered that the punishment which he deserves is not under the purview of the charge-sheet issuing authority. Hence, the same was disposed of by exercising the power by the appointing authority and awarded the punishment vested under CISF Rules. As such, there is no violation of any rules and when the final order was passed by the Commandant, i.e. Opposite Party No.04 and the DIG is the next appellate authority and the petitioner has fully availed the opportunity. Hence, the question does not arise that the proceeding was finalised under direction of any one and no Disciplinary Authority has Page 8 of 21 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 16-Jul-2024 17:23:06 been changed in the instant case. There is no restriction on issue of charge memorandum by the Disciplinary Authority. But, in law it is mandatory that the major penalties be awarded by an Appointing Authority only. On dispassionate consideration of the case, the appointing authority on the basis of overwhelming documentary evidence awarded the punishment which is commensurate with gravity of offence. The petitioner is trying to mislead this Court by submitting worthless comments. Thus, the averment of the petitioner bears no merit for consideration. (viii). The fact remains that the petitioner has assaulted inspector/Fire Lokesh Chand in presence of other personnel of the Force. There are sufficient documentary evidences available with the department like G.D. entry and PE report. The statements deposed by the witnesses are corroborating with each other. IV. COURT’S REASONING AND ANALYSIS: 5. 6. I have heard the representations of the counsels appearing for the respective parties at length. First of all, it is trite in law that the power of judicial review exercised by a Court or a Tribunal against the orders of a departmental enquiry committee is only limited to ensuring that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the Court. Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 16-Jul-2024 17:23:06 Page 9 of 21 7. In case of State of Orissa v. Bidyabhushan Mohapatra,1 the Constitutional Bench of the Supreme Court noted that, considering the seriousness of the proven misconduct, the disciplinary authority possessed the authority and jurisdiction to impose the corresponding penalty. This penalty was not subject to review by the High Court under Article 226. The relevant excerpts are produced hereinbelow: “If the conditions of the constitutional protection have been complied with, is not justiciable. Therefore if the order may be supported on any finding as to substantial misdemeanour for which the punishment can lawfully be imposed, it is not for the Court to consider whether that ground alone would have weighed with the authority in dismissing the public servant. The Court has no jurisdiction if the findings of the enquiry officer or the Tribunal Prima facie make out a case of misdemeanour, to direct the authority to reconsider that order because in respect of some of the findings but not all it appears that there had been violation of the rules of natural justice.” 8. In B.C. Chaturvedi vs. Union of India,2 the Supreme Court also held that judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the Court. The relevant excerpt is produced hereinbelow: “Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair