(Per : HONOURABLE MR.JUSTICE G.B.SHAH) 1. This Special Civil Application has been filed by the petitioner challenging the impugned order dated 31.12.2010 passed by Dy. Inspector General (WZ) C.I.S.F. Complex, New Mumbai whereby the Appeal preferred by the petitioner is dismissed confirming the order dated 6.10.2010 passed by the disciplinary authority.
2. The facts of the case in brief are that the petitioner, at the relevant point of time, was discharging his duties in the intelligence department in CISF Unit KGPP Kawas. A charge sheet dated 14.06.2010 came to be issued along with Memorandum of Charge alleging inter alia that one Ex-Member Kishorilal and another Ex-Member Subash Singh, after completion of their duty hours on 13.5.2010 remained absent from Unit Line and that the petitioner failed to keep a vigil on them and that such information was not passed on to the higher officials. The second alleged charge is that the said Ex- Members Kshorilal and Subhash Singh having left the Unit without permission, committed the alleged offence of rape and the petitioner failed to gather such information of alleged commission of offence of rape and also failed to inform the higher authorities. On 23.6.2010 a detailed reply was given to the said charge sheet setting forth his defence that the members who are going for purchase in the vehicle of Mess Purchasing were not required to make entry in the out-pass register and that the same was made mandatory only by an order dated 7.8.2010 of Dy.Commandant CISF and further the act of the alleged commission of the offences by the Ex- Members was outside the periphery of the unit which the petitioner could not foresee etc. Being dissatisfied with the reply, departmental inquiry was initiated and the alleged charges are brought home by Inquiry Officer's report dated 20.9.2010. By letter dated 22.9.2010 the petitioner was called upon to have his say on the findings recorded by the Inquiry Officer. The petitioner gave his written submission on 27.9.2010. The disciplinary authority i.e. respondent No.2 by its order dated 6.10.2010 inflicted punishment of reduction of pay by one stage from Rs.8,540/- (Basic pay Rs.8,540 + GP Rs.2,400/-) to Rs.8,220/- (Basic Pay Rs.8,220/- + GP Rs. 2,400/-) in PB 1 (Rs. 5200-20,200/-) for a period of one year from the date of this order with a further direction that the petitioner will not earn any increment of pay during the period of reduction and that on expiry of this period, the reduction will have the effect of postponing his future increments of pay. This order dated 6.10.2010 was challenged by the petitioner by way of appeal which was dismissed by order dated 31.12.2010 confirming the order of the disciplinary authorities which is impugned in the present petition.
3. We have heard learned counsel for the petitioner. He has submitted that the authorities below including the inquiry officer failed to consider the defence of the petitioner. The defence of the petitioner was that he was discharging his duties alone in the Intelligence Wing of the Unit and that the strength of the Wing was less as compared to the sanctioned strength. It is also submitted that till 7.8.2010 there was no office order mandating any member of the Force going in purchase vehicle of Mess to make an entry in the Out Pass Register. So far as the second charge is concerned, the learned counsel has submitted that the commission of alleged offence took place outside the periphery of the Unit which the petitioner could not foresee and as soon as the information was received about the same, it was passed on to the higher officials. It is further submitted that the appellate authority has failed to take into account the findings recorded in the preliminary inquiry on 24.5.2010 by Assistant Commander/Fire, C.I.S.F. Unit, NTPP, Kawas wherein no adverse finding is recorded against the petitioner and it is specifically recorded that “nobody is taking the responsibility for the alleged incident except the accused-Ex-Members.” The defence version of the petitioner has further been corroborated by the statements recorded during the inquiry. Therefore, the findings of the inquiry officer is de hors the record of the case as the evidence brought on record has not been considered at all. He has further submitted that though some relevant and important documents were demanded by the petitioner, the same were not furnished which has caused serious prejudice to the case of the petitioner and hence there is violation of principles of natural justice. The learned counsel further submitted that though the accused were prosecuted for charges levelled against them under sections 365, 376 and 114 of Indian Penal Code, they were acquitted by order dated 30.8.2011 rendered in Sessions Case No.69 of 2011 passed by Addl.Sessions Judge wherein the learned Sessions Judge observed that the prosecution has not produced any satisfactory and cogent evidence to prove the charges levelled against them. He has finally submitted that the procedure as laid down in Rule 36 of the CISF Rules, 2001 has not been scrupulously followed while imposing major penalty under Rule 34 of the said Rules on the petitioner. In support of his argument, learned counsel has placed reliance on two decisions of the Hon'ble Apex Court- (i) in the case of Bhagat Ram v. State of Himachal Pradesh & Others [1983 (2) SCC 442] (ii) in the case of Ex-Naik Sardar Singh v. Union of India [(1991) 3 SCC 213]
4. We have considered the above referred submissions in light of the documentary evidence forthcoming on the record. The submission of the petitioner that he was discharging his duties alone in the Intelligence Wing of the Unit and that the strength of the Wing was less as compared to the sanctioned strength, in our view, is no defence because in our considered view, one has to discharge his/her duty to the best in the circumstance one is working. In every department there are reasons and reasons for not having the complete filled up sanctioned strength. Moreover, if the member of the Force went in purchase vehicle of Mess then also the concerned official, in the present case-the petitioner, has to keep watch and make report and in our considered view the disciplinary authority has rightly come to the conclusion that for the discharge of the said duty, no mandate is required. Because the office order dated 7.8.2010 was issued subsequent to the incident, it cannot be said that the said work was not within the duty of the petitioner. It has come on record that the petitioner was deployed in INT section of the Unit to keep close watch on the activities of the personnel posted in the Unit and was entrusted the responsibility to collect advance information about the incident that may happen in the Unit. As the petitioner has failed on the said aspect, Ex-HC Subhash Singh and Ex-HC/GD Kishorilal absented themselves from the unit lines and allegedly committed grave offence of outraging modesty of a woman and the petitioner appears to have not reported the incident immediately or as early as he could. There appears no substance in the submission made by the learned counsel for the petitioner that as the alleged incident took place outside the periphery of the Unit, the charge No.2 has been wrongly framed and wrongly decided against the petitioner.
4.1. It is well settled legal position that during the preliminary inquiry if none has taken the responsibility in discharging the duty, it does not mean that regular inquiry could not be initiated.
5. The petitioner belongs to a disciplined force and members of such Force are required to maintain discipline and to act in a manner befitting his duty and strict action is warranted, where an employee is found to be negligent or commits act of misconduct. Now the point is whether the punishment awarded to the petitioner is disproportionate to the offence alleged. If the petitioner had carefully performed his duty, he could have restricted the outside visit of Kishorilal and Subhash Singh and in turn could have avoided the offence alleged to have been committed by both these officers.
5.1. Be that as it may, the respondents, in our opinion, after holding departmental disciplinary proceedings in accordance with the principles of natural justice, had inflicted punishment of reduction of pay as aforesaid. We are not required to interfere with the findings arrived at by the disciplinary authority and the punishment of stoppage of one increment awarded as referred above, in our considered opinion, cannot be said to be shocking to our conscience and therefore, the aforesaid punishment awarded does not call for any interference. Referring the documents forthcoming on record of this proceeding, it cannot be said that the procedure as laid down in Rule 36 of CISF Rules, 2001 has not been scrupulously followed while imposing the penalty under Rule 34 of the said Rules. In our considered view, the penalty, as above, is commensurate with the gravity of misconduct. In our view the principles laid down in 1983 (2) SCC 442 & 1991 (3) SCC 213 (supra) has been taken care of while imposing the punishment on the petitioner.
6. For the aforesaid reasons, we do not find any merit in the petition and it is accordingly dismissed at the stage of admission.
[D. H. WAGHELA, J.]
[G. B. SHAH, J.]
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