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HIGH COURT OF CALCUTTA
J.K. BISWAS, J.
R. K. Sharma - Appellants
Vs
Union Of India - Respondents
W.P. No. 11903 (W) of 2006
Decided on: March 11, 2011
CONSTITUTIONAL LAW - CENTRAL INDUSTRIAL SECURITY FORCE RULES, 2001 - REMOVAL FROM SERVICE - INQUIRY - OPPORTUNITY OF HEARING - PRINCIPLES OF NATURAL JUSTICE - APPOINTMENT OF PRESENTING OFFICER - MANDATORY REQUIREMENT - NON-COMPLIANCE - VITATES PROCEEDINGS - FAILURE TO QUESTION ENROLLED MEMBER OF THE FORCE - VIOLATION OF RULE 36(18) - INCURABLE IRREGULARITY - ORDER OF REMOVAL FROM SERVICE QUASHED.
Fact of the Case:
The petitioner, a constable in the Central Industrial Security Force (CISF), was removed from service for allegedly engaging in a scuffle with a superior officer at the International Terminal Building of the NSCBI Airport in Kolkata. The disciplinary authority's order was upheld by the appellate and revising authorities.
Finding of the Court:
The court found that the disciplinary authority had failed to appoint a presenting officer to present the case in support of the articles of charge, as required by Rule 36(5)(c) of the Central Industrial Security Force Rules, 2001. The court also found that the inquiring authority had acted as both the prosecutor and the judge, in violation of the principles of natural justice, by examining the witnesses in support of the articles of charge and cross-examining the petitioner.
Issues: 1. Whether the appointment of a presenting officer was a mandatory requirement in the inquiry proceedings. 2. Whether the inquiring authority's failure to appoint a presenting officer and acting as both the prosecutor and the judge vitiated the proceedings. 3. Whether the inquiring authority's failure to question the petitioner, as required by Rule 36(18)(b), rendered the proceedings incurably irregular.
Ratio Decidendi: 1. The court held that the appointment of a presenting officer was a mandatory requirement under Rule 36(5)(c) of the Central Industrial Security Force Rules, 2001. The presenting officer was responsible for presenting the evidence in support of the articles of charge and examining the witnesses. 2. The court held that the inquiring authority's failure to appoint a presenting officer and acting as both the prosecutor and the judge violated the principles of natural justice. This was because the inquiring authority was responsible for conducting the inquiry in an impartial manner and ensuring that the petitioner was given a fair opportunity to defend himself. 3. The court held that the inquiring authority's failure to question the petitioner, as required by Rule 36(18)(b), rendered the proceedings incurably irregular. This was because the petitioner was entitled to an opportunity to explain any circumstances appearing against him in the evidence.
Final Decision: The court allowed the petition, set aside the orders of the revising, appellate, and disciplinary authorities, and the report of the inquiring authority. The petitioner was ordered to be reinstated into employment within four weeks and given all benefits to which he would have been entitled in the absence of the order of the disciplinary authority removing him from service.
1. THE petitioner in this Article 226 petition dated May 10, 2006 is questioning an order of the disciplinary authority dated May 8, 2003 (at p.61) inflicting the punishment of removal from service with immediate effect affirmed by the appellate and revising authorities by orders dated August 7, 2003 (at p.84) and March 4, 2004(at p. 130) respectively.
2. WHILE working as a constable in the Central Industrial Security Force (in short CISF) the petitioner was suspended with effect from November 15, 2002.
The disciplinary authority issued a charge-sheet dated November 19, 2002 making the following allegation:
"That No.004340182 Constable R. K. Sharma of CISF Unit, NSCBI Airport Kolkata entered in the International Terminal Building at about 2200 hrs on 12.11.2002 without any official business and indulged himself in a scuffle with Si/Fire Rajesh Kumar who was detailed at MEDH(ITB) by way of catching hold the uniform of the latter in the visitor's Lounge of International Terminal Building in presence of visitors, passengers and employees of Airport Authority, thus, No. 004340182 Constable R. K. Sharma committed an act of gross indiscipline, misconduct, insubordination and tarnished the image of the Force."
3. THE disciplinary authority appointed an inquiring authority. While on behalf of the disciplinary authority four witnesses were examined, the petitioner examined two witnesses in proof of his case that he did not catch hold of uniform of Si/Fire Rajesh Kumar and engage himself in scuffles with the officer as alleged in the charge-sheet. THE inquiring authority submitted a report dated April 5, 2003 that the charge was proved.
4. ACCEPTING the findings of the inquiring authority the disciplinary authority inflicted the punishment of removal from service and the petitioner's statutory appeal and revision application were rejected by the respective authorities.
The admitted position is that the revision application and the appeal decided on the basis of parawise comments submitted on behalf of the disciplinary authority behind the petitioner's back were rejected by the respective authorities without disclosing to the petitioner what case was submitted by the disciplinary authority and also without giving him opportunity of hearing.
5. ACCORDING to counsel for the respondents since the relevant rules did not require the authorities deciding the revision application and the appeal to supply the parawise comments submitted on behalf of the disciplinary authority and give the petitioner an opportunity of hearing, it cannot be said that failure to supply the relied on parawise comments and give the petitioner opportunity of hearing has incurably vitiated the decisions of the authorities.
6. SHE has been given opportunity to consider the Supreme Court decision in Ram Chander v. Union of India and Ors., AIR 1986 SC 1173 and she has submitted that the principle laid down in the case will not apply to this case in which opportunity of hearing would have been a mandatory statutory requirement only in case of enhancement of penalty.
The appeal of the petitioner was to be decided in terms of the provisions of Rule 52 of the Central Industrial Security Force Rules, 2001.
7. THE relevant parts of sub-rule (2) of rule 52 are quoted below:
"(2) In the case of an appeal against the order imposing any of the penalties specified in rule 34, or enhancing any penalty imposed under the said rules, the appellate authority shall consider –
(a) whether the procedure laid down in these rules has been complied with and if not whether such non-compliance has resulted in the violation of any provisions of the Constitution of India or in the failure of justice;
(b) whether the findings of the disciplinary authority are warranted on the basis of the evidence on the record; and
(c) whether the penalty or the enhanced penalty imposed is excessive, or adequate, or inadequate and pass orders - (i) confirming, enhancing, reducing or setting aside the penalty; o
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