2023 Supreme(Cal) 245

IN THE HIGH COURT AT CALCUTTA
RAJA BASU CHOWDHURY, J.
Kamalender Singh & Another - Appellant
Versus
Union of India & Others - Respondent
W.P.A. No. 502 of 2009
Decided On : 10-02-2023

A member of the Central Industrial Security Force (CISF) cannot be punished for misconduct unless the same is enumerated in the CISF Rules or the Act. The disciplinary authority must hold a regular enquiry before inflicting any punishment, especially when the allegations relate to misbehaving with the wife and children of a member of the force.

Headnote:

CENTRAL INDUSTRIAL SECURITY FORCE ACT - SECTIONS 8 AND 18 - MISCONDUCT - ENQUIRY - JURISDICTION - A member of the Central Industrial Security Force (CISF) cannot be punished for misconduct unless the same is enumerated in the CISF Rules or the Act. The disciplinary authority must hold a regular enquiry before inflicting any punishment, especially when the allegations relate to misbehaving with the wife and children of a member of the force. The Assistant Commandant, CISF, does not have the jurisdiction to investigate or adjudicate into the misconduct or charges levelled against the petitioner under Section 18(2A) of the Act, as he was not invested with the powers of a Magistrate.

Fact of the Case:

The petitioner, a Head Constable/Driver in the CISF, was issued a charge sheet for misbehaving with the wife and two sons of another CISF member. The disciplinary authority found him guilty and imposed a minor penalty. The petitioner challenged the order before the appellate authority, which upheld the disciplinary authority's decision. The petitioner then filed a writ petition in the High Court.

Finding of the Court:

The High Court held that the charge against the petitioner was not an enumerated misconduct under Section 8 of the CISF Act or the CISF Rules. The Court also held that the Assistant Commandant, CISF, did not have the jurisdiction to investigate or adjudicate into the misconduct or charges levelled against the petitioner under Section 18(2A) of the Act, as he was not invested with the powers of a Magistrate. The Court further held that the disciplinary authority could not punish the petitioner without holding a regular enquiry, as the allegations related to misbehaving with the wife and children of a member of the force.

Issues: 1. Whether the charge against the petitioner constituted misconduct under the CISF Act or the CISF Rules? 2. Whether the Assistant Commandant, CISF, had the jurisdiction to investigate or adjudicate into the misconduct or charges levelled against the petitioner under Section 18(2A) of the Act? 3. Whether the disciplinary authority could punish the petitioner without holding a regular enquiry?

Ratio Decidendi: 1. The Court held that the charge against the petitioner was not an enumerated misconduct under Section 8 of the CISF Act or the CISF Rules. The Court relied on the judgments of the Supreme Court in Rasiklal Vaghajibhai Patel v. Ahmedabad Municipal Corporation & Anr. and A. L. Kalra v. Project and Equipment Corporation of India Ltd. to hold that an act which otherwise constituted a misconduct, is not capable of being held out as misconduct committed by the concerned employee unless the same is enumerated in the service rule. 2. The Court held that the Assistant Commandant, CISF, did not have the jurisdiction to investigate or adjudicate into the misconduct or charges levelled against the petitioner under Section 18(2A) of the Act, as he was not invested with the powers of a Magistrate. The Court relied on the judgment of the Supreme Court in Secy. to Govt. v. A.C.J. Britto to hold that the judgment delivered in the case of A. L. Kalra is no longer a good law. 3. The Court held that the disciplinary authority could not punish the petitioner without holding a regular enquiry, as the allegations related to misbehaving with the wife and children of a member of the force. The Court relied on the judgment of this Court in Probodh Kumar Bhowmick v. University of Calcutta & Ors. to hold that the employer has an inherent right to initiate a disciplinary proceeding against its employees, but it cannot punish the employee without holding a regular enquiry.

Final Decision: The High Court set aside and quashed the final order passed by the disciplinary authority dated 18th July, 2006 and the order passed by the appellate authority on 8th March, 2008. The petitioner was entitled to all consequential benefits.