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2011 Supreme(Cal) 450
HIGH COURT OF CALCUTTA
J.K. BISWAS, J.
G.C. Bilarwan - Appellants
Vs
Union Of India - Respondents
W.P. No. 25708 (W) of 2006
Decided on: March 29, 2011
K.B.S. Mahapatra, Gokul Chandra Chakraborty, Partha Chakravarty, Asish Kumar Roy, Tanmoy K. Ghosh
The court emphasized the importance of giving the charged employee an opportunity of hearing and recording findings of disagreement before imposing a penalty in disciplinary proceedings, even if the rules do not explicitly require it.
Headnote:Natural Justice - Disciplinary Proceedings - Central Civil Services (Classification, Control and Appeal) Rules, 1965 - The court found that the Disciplinary Authority violated the principles of natural justice by passing the penalty order without giving the petitioner an opportunity of hearing and recording findings of disagreement. The court held that the Disciplinary Authority was obligated to give the petitioner an opportunity of hearing and record findings of disagreement, even though the rules did not explicitly provide for it. The court also found that the final order was vitiated by non-application of mind and directed the respondents to give the petitioner all benefits to which he would have been entitled in the absence of the penalty order.
Fact of the Case:
The petitioner challenged an order imposing a penalty of "Withholding of one increment for three years without cumulative effect" issued by the Deputy Inspector General (Pers), Central Industrial Security Force.Finding of the Court:
The court found that the penalty order violated the principles of natural justice as the petitioner was not given an opportunity of hearing and the Disciplinary Authority did not record findings of disagreement.Issues:
Whether the penalty order violated the principles of natural justice and whether the Disciplinary Authority should be given liberty to proceed afresh from the stage of giving hearing before recording findings of disagreement.Ratio Decidendi:
The court held that the Disciplinary Authority was obligated to give the petitioner an opportunity of hearing and record findings of disagreement, even though the rules did not explicitly provide for it. The court also held that in such a case, the Disciplinary Authority could be permitted to proceed afresh after hearing the petitioner and recording findings.Final Decision:
The court allowed the petition, set aside the penalty order, and directed the respondents to give the petitioner all benefits to which he would have been entitled in the absence of the order.1. THE Court-THE petitioner in this art.226 petition dated November 24, 2006 is aggrieved by an order dated May 31, 2006 (at p.88) issued by the Deputy Inspector General (Pers), Central Industrial Security Force inflicting on him the penalty of "Withholding of one increment for three years without cumulative effect."
2. BY issuing a charge-sheet dated June 5, 2002 (at p.29) the Deputy Inspector General (Pers/Hqrs) initiated the departmental proceedings against the petitioner who was working as a Deputy Commandant, CISF Unit, BSL Bokaro. The charge was as follows:
"That Shri GC Bilarwan while posted and functioning as DC in CISF Unit, BSL Bokaro committed a gross misconduct in that when there was a scuffle between CISF personnel and the villagers of Lewatand village on 15.01.2002 which finally led to the abduction of Constable V.S. Rai by the villagers, he did not appreciate the ground reality, in right prospective, nor did he carry out the rescue operation methodically and tactfully instead, he left the CISF personnel free to carry out the rescue operation even by using physical force. As a result, the CISF personnel not only beat up the villagers but also damaged their houses and house hold articles. Thus, Shri G.C. Bilarwan, DC failed to perform his duties with full devotion and gave very poor account of his leadership and also lowered the image of the CISF. Shri G.C. Bilarwan, DC also and in a manner unbecoming of an officer of his status, rank and service of an Armed Force of the Union like CISF."
3. AFTER conclusion of the inquiry held in terms of the provisions of r. 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 which were applicable to the case, the Inquiring Authority prepared a report dated March 24, 2005 (at p.49) containing his findings that the charge was not proved and forwarded the report with all the records in terms of the provisions of sub-r.(23) of r. 14 to the Disciplinary Authority.
4. THE Disciplinary Authority who was required to take action on the report in terms of r. 15 issued a letter dated June 17, 2005 (at p.70) forwarding thereunder a copy of the report and the reasons for which he was unable to agree with the Inquiring Authority. THE petitioner asked to make representation, if any, submitted a detailed representation dated August 20, 2005 (at p.74) contending why the Disciplinary Authority should not disagree with the findings of the Inquiring Authority.
5. IT appears that under cover a letter dated November 22, 2005 the Secretary, Ministry of Home Affairs, Government of India forwarded the matter to the Union Public Service Commission for its advice, and that by its letter dated April 25, 2006. (at p.91) the Commission advised that, on the facts, "ends of Justice would be met" if a penalty of withholding of one increment for three years without cumulative effect was imposed on the petitioner.
6. ON the basis of the advice the Disciplinary Authority passed the impugned order dated May 31, 2006. The petitioner had no remedy of appeal against the order passed by the Disciplinary Authority by order and in the name of the President.
7. MR Mahapatra appearing for the petitioner has submitted that the punishment order passed by the Disciplinary Authority without hearing the petitioner and recording his findings of disagreement and based solely on the advice of the Union Public Service Commission, being contrary to law, is liable to be set aside. He has relied on Punjab National Bank and Ors. v. Kunj Behari Misra, (1998)7 SCC 84; Yoginath D. Bagde v. State of Maharashtra and Ann, (1999)7 SCC 739; Lav Nigam v. Chairman and MD, ITI Ltd. and Anr., (2006)9 SCC 440 and Shekhar Ghosh v. Union of India and Anr., (2007)1 SCC 331.
8. MR Roy appearing for the respondents has submitted that there is no reason to say that without recording his findings the Disciplinary Authority proceeded to consider the question of inflicting punishment, for in the document supplied to the
