Court No. - 36
Case :- WRIT - A No. - 1156 of 2014 Petitioner :- Mohd. Nurunnabi Respondent :- Union Of India And 4 Others Counsel for Petitioner :- Sudhanshu Pandey,Anil Kumar Mishra, Madan Ji Pandey Counsel for Petitioner:- A.S.G.I.,H.N.Shukla,HarshitaRani,R.B.Singhal,S.C.
Hon'ble Mrs. Sunita Agarwal,J.
The present writ petition has been filed challenging the order of punishment dated 21.6.2010 passed by the respondent no.5, the order of dismissal of service of petitioner dated 30.11.2010 by respondent no.4 and the appellate and revisional order passed by respondent nos.3 and 2.
Shorn of details, it is noted here that a charge sheet dated 5.7.2009 under Section 37 of C.I.S.F Rules 2001 (Central Industrial Security Force) was served on the petitioner to which reply was submitted by him on 17.7.2009. Initially, an order dated 3.8.2009 was passed imposing minor punishment of reduction to the lower stage in the time scale of pay (one stage) for a period of three years, without cumulative effect and having no adverse effect on his pension. However, a fresh charge sheet was issued on 16.2.2010 initiating disciplinary enquiry on the same set of allegations which had resulted in passing the order of punishment dated 21.6.2010, which was modified by the respondent no.4, by order dated 30.11.2010 for imposing major penalty of dismissal from service.
The punishment orders are subject matter of challenge in the present petition on the ground that respondent no.5 had no jurisdiction to modify the order dated 3.8.2009 awarding minor punishment to the petitioner. The respondent no.5 has erred in modifying the punishment by issuing fresh charge sheet on 16.2.2010 on the same set of allegations which were levelled in the charge sheet dated 5.7.2009, proceedings of which was culminated with the passing of the order dated 3.8.2009. Moreover, once the said punishment was further modified by respondent no.5 taking aid of Rule 54 of C.I.S.F Rules 2001 by order dated 21.6.2010, it was not open for respondent no.4 to again invoke the said Rule 54 to modify or revise the punishment for imposing major punishment of dismissal from service.
Further, taking aid of the proviso to Rule 54 of Rules 2001, it is contended that before imposing major punishment as per Clause (I) to (v) of Rule 34, it was incumbent on the respondent no.4 to initiate fresh enquiry, as without enquiry it was not open for him to modify the punishment, on the enquiry report which was already considered by the disciplinary authority ie respondent no.5 to impose minor punishment. Next submission is that the punishment of dismissal is highly disproportionate to the charges found proved against the petitioner. Submission is that another employee namely Mahesh Sharma who was also chargesheeted with the petitioner for the same incident, occurred on 2.7.2009, had been given liberal consideration and was allowed to retire voluntarily. For the same offence two different punishments cannot be provided to two employees. The entire matter had been proceeded by the respondents with predetermined mind. The punishment orders dated 21.6.2010 and 30.11.2010, accordingly, are liable to be set aside. The appellate and revisional authority did not consider any of the aforesaid aspect of the matter.
Learned counsel for the respondent in revert submits that initially the petitioner and another employee namely Mahesh Sharma were issued show cause notice dated 5.7.2009, separately, proposing action under Rule 37 of C.I.S.F Rule 2001 whereunder minor punishment was awarded to both the petitioner and Mahesh Sharma. The charge memorandum as well as penalty order passed in respect of both the petitioner and Sri Mahesh Sharma was set aside vide order dated 8.12.2009 and a fresh decision was taken to initiate regular departmental enquiry. A charge sheet under Rule 36 of C.I.S.F Rules 2001 was, thereafter, issued on 16.2.2010, the said charge memorandum was served on the petitioner on 19.2.2010. An enquiry officer was appointed on 5.3.2010. The notice of enquiry was served on the petitioner wherein the petitioner had participated and cross examined the department witnesses and also recorded his statement.
During the course of enquiry, the report of presenting officer dated 26.4.2010 filed before the enquiry officer was served on the petitioner to which he submitted a reply in writing on 6.5.2010, wherein he contended that the memo of appeal dated 28.2.2010 provided to the enquiry officer shall be treated as his reply to the charge sheet.
The enquiry officer submitted his report on 22.5.2010 whereupon a second show cause notice dated 24.5.2010 was issued. Copy of enquiry report was received by the petitioner on 31.5.2010 to which a reply was submitted on 7.6.2010. After perusal of the enquiry report and the explanation offered by the petitioner, the disciplinary authority proceeded to impose punishment of the reduction of pay to the minimum stage (from Rs.7260/- to 6460/- in the time scale of pay 5200-20,200/- plus Grade pay Rs. 2000/-) for a period of three years with the further direction that the petitioner will not earn increments of pay during the period of reduction and the reduction will have the effect of postponing his future increment of pay.
The Deputy Inspector (north zone) (C.I.S.F) Head Quarter, New Delhi, however, invoking his power under Rule 54 (1)(b) C.I.S.F Rules 2001 issued notice to the petitioner on 24.9.2010 calling upon him to explain as to why punishment of removal from service shall not be awarded to him. Reply dated 6.11.2010 was submitted by the petitioner, after consideration of the said reply punishment was modified vide order dated 30.11.2010. The contention is that the first order of punishment dated 3.8.2009 has no relevance, in as much as, the disciplinary authority had decided to proceed under Rule 36 of C.I.S.F Rules by conducting a departmental enquiry. No dispute, whatsoever, had been raised by the petitioner to the chargesheet dated 16.2.2010 served on him. After participating in the enquiry, he cannot be allowed to assail the order dated 21.6.2010 on the ground that two different punishment were imposed on him vide orders dated 3.8.2009 and 21.6.2010. The fact of the matter is that the punishment order dated 21.6.2010 was passed in accordance with the Rule 36 of Rules 2001 after departmental enquiry wherein the petitioner had participated. The power under Rule 54 of Rules 2001 was exercised by the higher authority, the Deputy General (North Zone, C.I.S.F), New Delhi after putting the petitioner to the notice. The order of punishment dated 21.6.2010 cannot be said to be review of earlier punishment order dated 3.8.2009 which was passed without enquiry under Rule 37 of the Rules 2001. It is always open for the disciplinary authority to conduct a departmental enquiry when it proposes to impose a major penalty. It was also well within the jurisdiction of the higher authority to the disciplinary authority to invoke jurisdiction under Rule 54 of the Rules 2001 to increase punishment.
In so far as the contention of proportionality of punishment it is contended that the punishment of dismissal was imposed as the misconduct on the part of the petitioner in dereliction of duty and assault on his colleague during the course of duty was grave and found proved in the departmental enquiry. The punishment cannot be said to be disproportionate to the said charge of misconduct.
Considering the submissions of learned counsel for the parties and perused the record.
The record indicates that a show cause notice dated 5.7.2009 was served on the petitioner asking him to furnish his explanation on the charge of remaining absent from the place of duty for about one hour on 2.7.2009, when he was posted at the Admin Gate in N.T.P.C, Shakti Nagar. Another charge was that he fought with another 'Enrolled member of the force' who was also posted along with him. It appears that after receipt of reply, the disciplinary authority had inflicted minor punishment vide order dated 3.8.2009 without enquiry. But later on, it had decided to make full- fledged enquiry into the said charges, and as such a fresh charge sheet was issued to the petitioner on 16.2.2010 proposing a regular departmental enquiry. The petitioner did not confront to the said decision of the disciplinary authority and after denying charges, he had participated in the departmental enquiry. The disciplinary authority in its own wisdom had inflicted punishment provided in Rule 34 under (vi) of the CISF Rules 2001. The order of punishment passed by the disciplinary authority had, however, been revised suo moto by the Deputy Inspector General, CISF in exercise of power under Rule 54 (1)(b) of the Rules 2001.
The charge against the petitioner was that he was posted at the Admin. Gate in N.T.P.C Shakti Nagar, in the first shift from 5.00 hrs to 13.00 hrs (1.00 a.m) on 2.7.2009, and as soon as the duty time started, he kept seated for one hour in a CCTV room near the Admin. Gate. Thereafter, at about 6.15 a.m, he came out of the said room and sat on a chair near Admin Gate. On confrontation by another security guard, Mahesh Sharma, he assaulted him. This act of the petitioner which amounted to indiscipline, dereliction of duty and misbehaviour with the fellow “Enrolled member of the force” had been proved in the departmental enquiry wherein due opportunity of hearing has been provided to the petitioner. No infirmity, therefore, can be pointed out in the decision making process. The submission that the power under Rule 54(1)(b) was wrongly exercised by the respondent no.4, the Deputy Inspector General C.I.S.F, New Delhi, is not substantiated.
From a careful perusal of Rule 54 (1)(b) which provides as under:-
“54. Revision- (1)Any authority superior to the authority making the order may either on hiw own mothion or otherwise call for the records of any enquiry and revise any order made under these rules, and may-
(a) …........
(b) confirm, reduce, enhance or set aside the penalty imposed by the order, or impose any penalty where no penalty has been imposed; or (c….........
(d)...........
Provided that no order imposing or enhancing any penalty shall be made by any revisioning authority unless the enrolled member of the Force concerned has been given a reasonable opportunity of making a representation against the penalty proposed and where it is proposed to impose any of the penalties specified in clauses (i) to(v) of rule 34 or to enhance the penalty imposed by the order sought to be revised to any of the penalties specified in those clauses, and if any, inquiry under rule-36 of Central Industrial Security Force Rules, 2001 has not already been held in the case no such penalty shall be imposed except after an enquiry in the manner laid down in the aforesaid rules.”
The respondent no.4 being superior authority to the disciplinary authority, had revised the punishment awarded to the petitioner after giving him a notice and consideration of his explanation. Reasonable opportunity of making a representation against the penalty proposed has duly been awarded to the petitioner. As a full-fledged enquiry had already been held, there was no requirement of fresh enquiry. The submission in this regard based on proviso to sub-rule (1) of Rule 54 of Rules 2001 is misconceived.
As far as the submission of learned counsel for the petitioner that the punishment is not commensurate with the charge proved in the departmental enquiry, suffice it to note that the petitioner is a member of disciplined force namely the Central Industrial Security Force, which has been constituted for the protection and security of the Industrial undertakings owned by the Central Government. Any act or dereliction of duty or indiscipline has to be viewed seriously. The act of indiscipline and absence from the place of duty for one hour is a misconduct which would entail major punishment as is inflicted by the respondent no.4 in its own wisdom, well within its domain.
It is well settled that in exercise of judicial review, the Court cannot substitute its own view to the decision taken by the disciplinary authority on the ground of disproportionality of punishment unless the punishment awarded is so grossly disproportionate as to shock conscious of the Court. The power of judicial review in a case of disciplinary proceeding is limited to the extent of decision-making process and cannot be invoked to substitute the opinion formed by the disciplinary authority to arrive at a different conclusion like appellate authority.
In the instant case, no good ground is made out to interfere in the order of punishment awarded by the respondent no.4 on the plea of disproportionality.
The writ petition is, accordingly, dismissed.
Order Date :- 31.7.2019 Harshita