Om Prakash Shukla, J
(1) Heard Mr. Shivam Sharma, learned Counsel representing the the petitioner and Mr. Deepanshu Dass, learned Counsel representing the Union of India/respondents.
(2) The present writ petition came to be filed by the petitioner in the year 1998 i.e. about 26 years ago, impugning order dated 3/4.12.1996 (Annexure No.1), 01.08.1997 (Annexure No.2) and 24.06.1998 (Annexure No. 3) and thereby seeking his re-instatement in service with all consequential benefits.
(3) Briefly stating, the petitioner was appointed on the post of Constable in CISF on 12.04.1987 and after training, he was posted at CISF KCC Khetri, Rajasthan and subsequently he was transferred to PGUTPP, Uchahar Unit of CISF in the year 1991 and thereafter to Rae Bareli unit of CISF on 10.08.1994. It has been claimed that the petitioner was thereafter sent in election duty in the month of April, 1996, wherein a memorandum dated 09.06.1996 came to be issued to him. The said memorandum inter-alia alleged that on 07.06.1996 between 21.00 Hours to 5.00 Hours, the petitioner’s duty was assigned at Quarter Guard and apparently, in the midnight, the Company Hawaldar Major checked the Quarter Guard as usual at about 2:00 hours, wherein the petitioner was found to be absent from the place of duty and he was found sleeping with rifle on his side in his room No. 22 and, as such, on the instance of Surendra Rai and Suraj Mani, the petitioner was woken from his sleep and sought an explanation. However, the petitioner failed to give any reply and instead went back on his duty. It is stated that the petitioner, after the service of the aforesaid memorandum, gave his written explanation on 09.06.1996.
(4) However, in the interregnum, the petitioner was placed under suspension and was also served with a charge-sheet on 23.06.1996 levelling charges on four counts. The 1st being, he was found sleeping on duty, which amounted to dereliction of duty; the 2nd being hurling abuses on colleagues and threatening them on 10.06.1996 at about 2:30 hours, which again amounted to violation of rules and amounted to serious indiscipline; the 3rd being his absence from the assigned duty at the Hon’ble High Court of Allahabad on 12.05.1996, amounting to dereliction of duty; and the 4th charge being absence from roll-call parade on 12.05.1996 amounting to defiance of orders of higher authorities.
(5) The petitioner appears to have given explanation to all the four charges. However, it seems thereafter, one Mr. I.P Singh, Inspector was appointed as Inquiry Officer on 20.07.1996. Apparently, the petitioner represented before his higher authority for change the said Inquiry officer, terming him to be an interested person, which, however, came to be rejected on 20.08.1996. The petitioner alleged bias against the inquiry officer on the ground that some earlier allegations levelled against the petitioner by the same said inquiry officer was found to be wrong and he was also exonerated from the said charges on the said earlier occasion. Thus, the petitioner alleging the inquiry officer to be biased sent several representations to his higher officers but without any success.
(6) Records further reveal that after the aforesaid failure to change the inquiry officer, the petitioner went on to participate in the said enquiry proceedings and the department produced several witnesses, including PW-1(Surajmani), PW-2( Surendra Rai), Pw-4 (Subhas Ram), PW-5 (Chottey Rai), PW-6 (J.K. Hambram), PW-7 ( L.D Joshi), who all were cross-examined by the petitioner. Thereafter, the statement of the petitioner was recorded on 08.09.1998 and subsequently a copy of the inquiry report was supplied to the petitioner on 12.10.1998, giving him opportunity to give his explanation against the said report.
(7) It appears that the petitioner gave a representation against the said inquiry report on 02.11.1996. However, it seems that the said explanation did not find favour with the competent authority and, as such, the petitioner was punished by removal from his service vide order dated 04.12.1996. Against the said order of removal from service, an appeal came to be filed by the petitioner, which was also rejected by the appellate authority vide order dated 01.08.1997. Against the said appellate order, the petitioner preferred a revision, which was also rejected vide order dated 24.06.1998.
(8) The learned Counsel for the petitioner challenging all these three impugned orders has taken several grounds in the present petition, including (i) non-application of mind by the punishing authority, (ii) inquiry officer being biased, (iii) inquiry being conducted without following the principles of natural justice, (iv) the apparent prejudice of the inquiry officer Shri I.P. Singh, (v) non-consideration of his several representation for change in inquiry officer, (vi) refusal to supply documents during inquiry, (vii) inquiry not having been conducted in a fair manner, (viii) absence of any presenting officer during the departmental inquiry, (ix) recording of the statement being not proper, (x) non-consideration of the repetition of the petitioner by the punishing authority, (xi) order of removal being too excessive and not being commensurate with the gravity of charges levelled against him, (xii) Rejection of appeal in a mechanical manner, etc.
(9) During the course of hearing, a legal objection of lack of jurisdiction of the Deputy Commandant in terms of Rule 34 of the Central Industrial Security Rules, 1969 to appoint inquiry officer had been pointed out by the petitioner by referring to CISF Circular No.9/78, however, the same was opposed by the learned counsel for the respondents on the ground that no such ground or pleading has been taken in the writ petition. However, this Court vide an order dated 08.12.2021 permitted the petitioner to amend the writ petition.
(10) Further, the learned Counsel for the petitioner referring to a letter dated 03.08.1998 of the CISF has submitted that since the revisional powers under the CISF Act, 1968 has been conferred to Central Government only under Section 9(3) of the CISF Act, 1968 and not to DG/CISF, the said powers cannot be delegated to the DG/CISF. He has pointed out to the contents of the said letter, wherein it has been suggested that an amendment be made in the CISF Act, 1968 to bring in conformity with the provisions of Rule 49 of the CISF Rules, 1969, thereby giving revisional powers to DG/CISF. According to the learned Counsel, since the revision filed by the petitioner has not been considered/dismissed by the Central Government, the said impugned dismissal is without any authority and the same is liable to be set-aside.
(11) Per contra, the learned Counsel for the respondent has contended that the petitioner was on election duty when the various acts of misconduct were committed by him and at that point of time, Shri S.H. Ansari, Dy. Commandment of CISF, TSL Naini was his overall in-charge. Further, it has been stated that as far as circular No. 9/78, wherein it has been observed that “Disciplinary Authority” used in sub Rule (4) of Rule 34 of the CISF Rules, 1969 would only imply, the appointing authority is concerned, besides the point that the petitioner had not taken the said ground before the Appellate authority, revisional authority or the present writ petition, the explanation to Rule 34(2) clearly stated that the term “Disciplinary Authority” shall include the authority competent under the said rules to impose upon the member of the Force any of the penalties specified in clause (e) to (h) of Rule 31. According to him, the Disciplinary authority is the Dy. Commandant, who is also well competent to issue charge-sheet and as such appoint Inquiry officer within the meaning of sub-rule 1(4) of Rule 34 of CISF Rules, 1969. As regards the Circular dated 03.08.1998, it has been contended by the learned Counsel for the respondents that no doubt, the revisional powers under CISF Act had been conferred on Central Government only under Section 9(3) of the CISF Act, 1968 and not DG, CISF, however, the said stands amended with retrospective effect in the CISF Act, 1968 vide amendment act namely “the CISF (Amendment and validation) Act, 1999 dated 29.12.1999 vide section 6 read with section 10 of the said Act of 1999.
(12) As far as the merits of the present writ petition is concerned, it has been contended that the petitioner has been subjected to a fair trial, which he has participated and the punishment inflicted was commensurate to the various allegations levelled against him, which were found to be true. It has been submitted that there was no irregularity in appointment of Inquiry Officer, all the documents have been duly supplied to the petitioner as is apparent from the records itself and there is no bias in the inquiry held by the inquiry officer. It has been further contended that mere allegations of irregularity in disciplinary proceeding, is not sufficient and the petitioner has failed to show as to how prejudice is caused to him and all those pleas which have not been taken by the petitioner may be deemed to have been taken and rejected. It was also submitted that the punishment should not be ordinarily interfered by this Court as has been held in several Judgments passed by this Court as well as the Hon’ble Supreme Court. Thus, he has submitted for rejection of the present writ petition as being without merits.
(13) Having heard the submissions of the parties, this Court is of the view that the present petition seeking quashing of the dismissal order as well as the order in appeal and revision has been challenged by the petitioner primarily for two reasons. The first being that the petitioner has sent representations to the higher authorities for change in the inquiry officer on the ground that he is biased, however, the same was not allowed and second that opportunity to defend was not adequately provided to the petitioner as document were not supplied to him. Further a ground, although not taken in the writ petition but subsequently amendment by the petitioner is relating to the implication of Rule 34(4) of the extant rules, which provides that the appointing authority is the only competent authority to appoint an inquiry officer for a departmental proceeding.
(14) Although, this Court is premised to examine the various grounds agitated by the petitioner for preferring the present writ petition, however this Court is reminded of the limited jurisdiction in entertaining this kind of petition as has been laid down by a larger bench of the Hon’ble Apex Court in the case of B.C. Chaturvedi Vs. Union of India and others: (1995) 6 SCC 749, wherein a three Judge Bench of the Apex Court held in paragraph-12 as under :-
"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. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to re- appreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held that the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case."
(15) Keeping in view the judicial limitation as propounded by the Hon’ble Apex Court, this Court finds that the present writ petition has a chequered history of being pending since the last more than twenty-six years. A close scrutiny would reveal that this writ petition was dismissed for non-prosecution on at least 5 different occasions on 06.02.2009, 05.03.2009, 10.03.2010, 13.12.2013 and 09.03.2018. Apparently one of the reasons for pendency of this writ petitions for such a long year is due to lack of diligence in pursuing the present writ petition by the petitioner. However, the delay in pendency of this writ petition would not hold back this Court in adjudicating the present writ petition on its own merits, keeping in view the grounds agitated by the contesting parties.
(16) As far as the ground agitated by the petitioner relating to implication of Rule 34(4) of the 1969 Rules, to contend that the appointing authority is only competent to appoint the enquiry officer, this court finds that Rule 29-A of the CISF Rules, 1969, inter-alia states that
“The disciplinary authority in respect of a member of the Force for the purpose of imposing any particular penalty or the passing of any disciplinary order shall be the authority specified in this behalf in Schedule II under whose administrative control of the member is serving and shall include any authority mentioned in the said schedule superior to such authority”.
(17) Apparently, the petitioner was posted as a Constable under the supervision and authority of unit head i.e the Deputy Commandant and was in election duty and as such as per rule 29A read with Schedule II of the Rules, the Dy. Commandant being the unit head and within whose administrative control the petitioner was serving, was the competent disciplinary authority. Further, Rule 7A of the extant rules prescribes the duties of a Deputy Commandant as follows:
“7-A. Duties of Deputy Commandant – (1) The Deputy Commandant shall assist the Commandant in the discharge of his duties; and where he is placed as head of the unit, he shall discharge all the duties of a Commandant and shall exercise only those financial powers that are delegated to him under the relevant rules.
(2) The Deputy Commandant shall be responsible for the efficiency, discipline, and morale of the personnel under him and shall also be responsible for the security of the undertaking or its part entrusted to him.”
(18) This Court finds that the use of the word ‘discipline’ in rule 7A sub-rule (2) sufficiently indicate that the Deputy Commandant is responsible for the discipline of the personnel under him and since he is responsible for the discipline for the said personnel as a corollary, he is also competent to take such measures as may be prescribed by law to ensure that the discipline is enforced. Thus, this Court has no hesitation in holding that the Deputy Commandant in view of the provisions of Rule 7-A read with rule 29A of the Rules, 1969, was the sole person responsible for the discipline of those under him including the petitioner and as being the head of the unit concerned is the appropriate Disciplinary Authority and is to exercise all the powers and duties of Commandant except such financial powers as are not delegated to him.
(19) Additionally, this Court cannot be oblivious to the fact that the petitioner has not raised this objection as to procedural irregularity either during the inquiry or during the appeal or during the statutory revision preferred by him. Even before this Court, the aforesaid ground has been sought to be introduced by way of amendment after 22/23 years of filing of the present writ petition. In any case, there are two ways in which the contravention of rules in appointment of the inquiry officer may be flagged by the delinquent officer, the first being during the inquiry itself and the second being after the inquiry, provided that the delinquent officer is able to show as to how the said appointment has caused prejudice to his rights. Admittedly, the petitioner in the present case during the inquiry did not flag the irregularities in appointment of the inquiry officer and at the later stage, although a ground had been taken after 22/23 years of filing of the present writ petition, however there is absolutely no ground nor any iota of mention as to how the same has caused prejudice to the petitioner. Further, this Court finds that the petitioner has not only participated in the proceedings but has also cross-examined almost seven departmental witnesses and relied on several documents during the departmental proceedings. There had been no report of biasness by the petitioner during the said proceedings.
(20) It would be appropriate at this stage, to quote few paragraphs from the judgment of the Hon’ble Apex Court, which are relevant to the present context. The Apex Court in the case of H.V. Nirmala vs Karnataka State Financial Corporation and Ors. : (2008) 7 SCC 639 observed as follows :-
10. Appellant did not raise any objection in regard to the appointment of the Enquiry Officer. He participated in the enquiry proceeding without any demur whatsoever. A large number of witnesses were examined before the Enquiry Officer. They were cross-examined. Appellant examined witnesses on her own behalf. Learned Single Judge as also the Division Bench of the High Court opined that the appellant has failed to establish that any prejudice has been caused to her by reason of appointment of a Legal Advisor as an Enquiry Officer and as the appellant has participated in the enquiry proceeding, she could not be permitted to raise the said contention.
11. Mr. Patil, however, would submit that such a contention which goes to the root of jurisdiction can be urged at any stage. We do not agree. Appointment of an incompetent enquiry officer may not vitiate the entire proceeding. Such a right can be waived. In relation thereto even the principle of Estoppel and Acquiescence would apply.
12. In State Bank of India vs. Ram Das: (2003) 12 SCC 474 this Court held ( SCC P.484, Para 27) :
"It is an established view of law that where a party despite knowledge of the defect in the jurisdiction or bias or malice of an arbitrator participated in the proceedings without any kind of objection, by his conduct it disentitles itself from raising such a question in the subsequent proceedings. What we find is that the appellant despite numerous opportunities made available to it, although it was aware of the defect in the award of the umpire, at no stage made out any case of bias against the umpire. We, therefore, find that the appellant cannot be permitted to raise the question of bias for the first time before this Court."
(21) That the next ground agitated by the petitioner was regarding the bias in the whole process of inquiry by the inquiry officer. The petitioner has contended that the inquiry officer Shri I.P. Singh was biased as he had already called explanation of the petitioner while he was posted as Company Commander on 24.03.1996, to the effect that he was absent from P.T. parade and the petitioner was directed to submit reply within 24 hours failing which disciplinary proceedings were to be initiated against him and on the basis of explanation called by Shri I.P. Singh proceedings were initiated, which eventually came to be dropped and he was exonerated. Thus, it has been contended by Shri I.P. Singh, Inspector that since he was appointed as inquiry Officer to inquire into the charges framed against the petitioner within the meaning of sub-rule 1(4) of Rule 34 of CISF Rules, 1969, he was bound to be bias because of the earlier proceedings.
(22) This Ccourt has already held that the appointment of inquiry officer in the case of petitioner was in accordance with the provisions of Rules governing disciplinary proceedings. Further, from records of the present case, it is available that the petitioner has replied in negative regarding any objection to the appointment of inquiry officer Shri I.P. Singh during the inquiry proceedings. This Court also finds that the inquiry officer Shri I.P. Singh has no administrative control over the petitioner. Furthermore, Shri I.P. Singh was neither a prosecution witness nor a defence witness and in no way was related to the inquiry proceedings.
(23) The well-established canons controlling the field of bias in service jurisprudence can reasonably extended to the element of prejudice as well in such matters. Prejudice de facto should not be based on a mere apprehension or even on a reasonable suspicion. It is important that the element of prejudice should exist as a matter of fact or there should be such definite inference of likelihood of prejudice flowing from such default, which relates statutory violations. It will not be permissible to set aside the departmental inquiries in any of these classes merely on the basis of apprehended prejudice. In the present case, no instances of proved bias have been pleaded by the petitioner in the present writ petition or shown from the records of the present case. Thus, this Court finds no basis for any bias or prejudice in appointment of the inquiry officer Shri I.P. Singh in the inquiry proceedings.
(24) The next ground taken by the petitioner is relating to not having been provided with reasonable opportunity to defend his case in the departmental proceedings on the ground that all the documents have not been supplied to him. This Court finds that it would be profitable to quote a very celebrated judgment of the Hon’ble Supreme Court on the aspect of providing reasonable opportunity to a delinquent officer in a departmental proceeding. The Hon’ble Apex Court in the case reported as Managing Director, ECIL, Hyderabad Vs. B. Karunakar : (1993) 4 SCC 727 held that the theory of reasonable opportunity and the principles of natural justice have been evolved to uphold the rule of law and to assist the individual to vindicate his just rights. They are neither incantation to be invoked nor rites to be performed on all and sundry occasions. Whether, in fact, prejudice has been caused to the employee or not on account of denial of report to him, has to be considered on the facts and circumstances of each case. The Apex Court has clarified even the stage to which the departmental proceedings ought to be reverted in the event the order of punishment is set aside for these reasons.
(25) Further, it will be useful to refer to the judgment of Apex Court in the case of Haryana Financial Corporation v. Kailash Chandra Ahuja : 2008 (9) SCC 31 at page 38 where the Court held as under :-
"From the ratio laid down in B. Karunakar it is explicitly clear that the doctrine of natural justice requires supply of a copy of the inquiry officer's report to the delinquent if such inquiry officer is other than the disciplinary authority. It is also clear that non- supply of report of the inquiry officer is in the breach of natural justice. But it is equally clear that failure to supply a report of the inquiry officer to the delinquent employee would not ipso facto result in the proceedings being declared null and void and the order of punishment non-est and ineffective. It is for the delinquent employee to plead and prove that non- supply of such report had caused prejudice and resulted in miscarriage of justice. If he is unable to satisfy the court on that point, the order of punishment cannot automatically be set aside."
(26) Further, there is another aspect of the matter. The petitioner by merely putting allegations of irregularity in disciplinary proceedings cannot escape his responsibility to show that prejudice has been caused to him by the same. In the case of Burdwan Central Cooperative Bank Limited & Anr. Vs. Asim Chatterjee & Ors., (2012) 2 SCC 641, the Hon’ble Supreme Court held that
“However, there is one aspect of the matter which cannot be ignored. In B. Karunakar's case (supra), despite holding that non-supply of a copy of the report of the Inquiry Officer to the employee facing a disciplinary proceeding, amounts to denial of natural justice, in the later part of the judgment it was observed that whether in fact, prejudice has been caused to the employee on account of non-furnishing of a copy of the inquiry report has to be considered in the facts of each case. It was observed that where the furnishing of the inquiry report would not make any difference to the ultimate outcome of the matter, it would be a perversion of justice to allow the concerned employee to resume his duties and to get all consequential benefits. It was also observed that in the event the Inquiry Officer's report had not been furnished to the employee in the disciplinary proceedings, a copy of the same should be made available to him to enable him to explain as to what prejudice had been caused to him on account of non-supply of the report. It was held that the order of punishment should not be set aside mechanically on the ground that the copy of the inquiry report had not been supplied to the employee. This is, in fact, a case where the order of punishment had been passed against the Respondent No.1 on allegations of financial irregularity. Such an allegation would require serious consideration as to whether the services of an employee against whom such allegations have been raised should be retained in the service of the Bank. Since a Bank act in a fiduciary capacity in regard to people's investments, the very legitimacy of the banking system depends on the complete integrity of its employees. As indicated hereinbefore, there is a live-link between the Respondent No.1's performance as an employee of the Samity, which was affiliated to the Bank, and if the Bank was of the view that his services could not be retained on account of his previous mis-demeanour, it is then that the second part of B. Karunakar's case (supra) becomes attracted and it becomes necessary for the court to examine whether any prejudice has been caused to the employee or not before punishment is awarded to him. It is not as if the Bank with an ulterior motive or a hidden agenda dismissed the Respondent No.1 from service, in fact, he was selected and appointed in the Appellant-Bank on account of his merit and performance at the time of interview. It cannot be said that the Bank harboured any ill-feeling towards the Respondent No.1 which ultimately resulted in the order of dismissal passed on 8th May, 2010. We, therefore, repeat that since no prejudice has been caused to the Respondent No.1 by the non-supply of the Inquiry Officer's report, the said Respondent had little scope to contend that the disciplinary proceedings had been vitiated on account of such non-supply.”
(27) Having traced the law on the issue, it would be apt to record that it is an admitted fact as stated in para 9 of the Counter Affidavit that the petitioner was supplied all documents requested by him vide his application dated 20.08.1996, and the same is also evident from the petitioner’s own receiving in his own hand-writing dated 21.08.1996 on his said application. Furthermore, the petitioner during the inquiry has admitted that he had received all documents sought by him and as is apparent from para 19 of the counter affidavit that the delinquent petitioner was also allowed inspection of all records. The Apex Court in the case of Debotosh Pal Choudhary Vs Punjab National Bank & Ors. : (2002) 8 SCC 68, inter-alia held
“5. The petitioner had been given documents for inspection as per the list given by the Presenting Officer and he made a statement on 18.7.1988 that he had verified all the documents and papers and inspected the documents as per the list given in the letter dated 24.5.1988. The Inquiring Authority allowed the petitioner to file a list of documents and as sought for by his letter dated 24.5.1988, the request for inspection or copies was also allowed. It is thereafter the Enquiry Officer has relied upon the documents produced by the Presenting Officer and adverted to various documents produced by the petitioner as well. Therefore, the contention of the petitioner that he did not have reasonable opportunity to inspect the documents is incorrect.”
(28) Additionally, in the present writ petition, the petitioner was not able to point out as to which document was not provided to him in the department proceedings. The contention of the petitioner relating to non-supply of documents, in the absence of any specific enumeration, is devoid of merits and as such the present ground of the petitioner fails.
(29) Admittedly, the petitioner was a member of disciplined armed force, namely, Central Industrial Security Force but had acted in a most reprehensible manner, which is unexpected from a member of disciplined force. If the character of a cop is found to be unsatisfactory, it would be perilous in public interest to allow him continue in public service. Recently, the Hon’ble Supreme Court in the case of Ex Sepoy Madan Prasad Vs Union of India and Others [2023 Livelaw (SC) 580] has held that discipline is the implicit hallmark of armed forces and a non-negotiable conditions of service.
(30) Having regard to the aforesaid facts and circumstances of the case, what this Court find is that learned counsel for the petitioner has failed to point out any illegality, perversity or ambiguity in the orders under challenge so as to warrant the indulgence of this Court under Article 226 of the Constitution of India.
(31) In view of the aforesaid, this Court do not find any justifiable ground to exercise extraordinary jurisdiction to interfere with the orders impugned and as such, the present writ petition, being devoid of merits, is dismissed.
(32) However, in the facts of the present case, there shall be no order as to costs.
