Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Cal) 1133

IN THE HIGH COURT AT CALCUTTA
SUBRATA TALUKDAR, LAPITA BANERJI, JJ.
Union of India and Others – Appellants
Versus
Subhas Chandra Das – Respondents
MAT No. 3210 of 2003, CAN No. 1 of 2003 (Old No. CAN 9663 of 2003), CAN No. 2 of 2003 (Old No. CAN 9664 of 2003), CAN No. 3 of 2010 (Old No. CAN 4215 of 2010)
Decided On : 30-06-2023

Advocates:
Advocate Appeared:
For the Appellants : Indrajeet Dasgupta, Puspita Bhowmick.
For the Respondents: Victor Chatterjee, Sunny Nandy.

The Appellate Authority must comply with the procedure prescribed in Rule 47(2) of the CISF Rules while considering an appeal against a disciplinary order. The Appellate Authority must consider all the evidence on record before coming to its findings. Procedural irregularities in disciplinary proceedings can vitiate the proceedings and render the decision-making process perverse.

Headnote:
CISF - Disciplinary Proceedings - Judicial Review - Appellate Authority's Order - Compliance with Rule 47(2) of CISF Rules - Consideration of Evidence - Procedural Irregularities - Perversity in Decision-Making Process.
Fact of the Case:

The appellant, a constable with the Central Industrial Security Force (CISF), was dismissed from service following a departmental enquiry. He filed a statutory appeal, which was dismissed. He then filed a writ petition in the High Court, which set aside the appellate order and directed the Appellate Authority to consider the appeal afresh in terms of Rule 47(2) of the CISF Rules. The Appellate Authority passed a second order, dismissing the appeal. The petitioner filed a second writ petition, challenging the second appellate order. The High Court set aside the second appellate order and directed the petitioner to be reinstated in service from the date on which the Patna High Court set aside and quashed the first appellate order. The petitioner was directed to be paid salary month by month. The arrears of salary were directed to be paid from the date of the Judgment of the Patna High Court i.e. November 23, 1991.
Finding of the Court:

The Court held that the Appellate Authority, in its second order, did not comply with the Order passed by the Patna High Court. The Appellate Authority failed to give reasons as to why it considered the punishment proportionate to the gravity of the offence. The Appellate Authority also failed to consider the evidence of the witnesses which favoured the petitioner. The Court held that such procedural irregularities and perversity in the decision-making process vitiated the second appellate order.
Issues: 1. Whether the Appellate Authority complied with Rule 47(2) of the CISF Rules in passing its second order? 2. Whether the Appellate Authority considered all the evidence on record before coming to its findings? 3. Whether there were any procedural irregularities in the disciplinary proceedings?
Ratio Decidendi: 1. Rule 47(2) of the CISF Rules requires the Appellate Authority to consider, inter alia, whether the procedure prescribed in the rules has been complied with, whether the findings are justified, and whether the penalty imposed is excessive, adequate, or inadequate. The Appellate Authority must pass orders setting aside, reducing, confirming, or enhancing the penalty, or remitting the case to the authority which imposed the penalty or to any other authority with such directions as it may deem fit in the circumstances of the case. 2. The Appellate Authority must consider all the evidence on record before coming to its findings. It cannot selectively consider only part of the evidence and ignore the rest. 3. Procedural irregularities in disciplinary proceedings, such as the failure to give the accused employee a fair opportunity to defend himself or the failure to consider all the evidence on record, can vitiate the proceedings and render the decision-making process perverse.
Final Decision: The Court set aside the second appellate order and directed the Appellate Authority to consider the appeal afresh in terms of Rule 47 of the old CISF Rules (as amended) and Rule 52 of the CISF Rules 2021. The Court directed the Appellate Authority to consider the grounds urged in the statutory appeal filed by the petitioner and to give reasons for allowing or rejecting the same. The Court also directed that the petitioner be treated in service without a break but that his arrears of salary be paid from the date of the Order passed by the Hon’ble Single Bench in 2003 and not from the date of the Order passed by the Patna High Court in 1991.

JUDGMENT :

LAPITA BANERJI, J.

1. This is an intra-court appeal preferred from an Order dated January 22, 2003, passed by an Hon’ble Single Judge of this Court. The Hon’ble Single Judge by the Impugned Order set aside the Order of the Appellate Authority dated February 28, 1992 and also the Order of the Reviewing Authority dated June 5, 1992.

2. The Writ Petitioner/Respondent in the Appeal, was dismissed from service on August 31, 1991. The writ petitioner preferred a statutory appeal. The said appeal was dismissed by the authority concerned on November 23, 1991. The petitioner filed the first writ petition in the High Court at Patna, Ranchi Bench against the Order dated November 23, 1991 passed by the Appellate Authority (hereinafter, referred to as the first “Appellate Order”).

3. By a Judgment and Order dated December 20, 1991, the Hon’ble Patna High Court quashed the “First Appellate Order” with a direction to consider the Appeal preferred by the writ petitioner afresh in terms of Rule 47(2) of the CISF Rules, 1969. The petitioner was working as a Constable with the Central Industrial Security Force (“CISF”) at the material point of time when he was dismissed from service.

4. The Second Appellate Authority considered the Appeal of the writ petitioner afresh and passed a reasoned Order dated February 28, 1992, dismissing the appeal. The petitioner preferred a Review Application which was also subsequently dismissed. The second Order passed by the Appellate Authority and the Order passed by the Reviewing Authority are under challenge in the instant writ petition being-C.O. No. 18155(W)/92.

5. The Hon’ble Single Bench held, that even though by the previous Order of the Patna High Court, the Appellate Authority was directed to consider the Appeal afresh, the Appellate Authority had done not so in terms of Rule 47(2) of the CISF Rules. The Appellate Authority proceeded to decide on the grounds of appeal, “casually” by making “general observations.” It considered only a part of the evidence and disregarded the other part. Most of the grounds challenging procedural impropriety were also not considered.

6. Furthermore, it was held that the witnesses, who were not even named in the charge-sheet, were examined by the Enquiry Officer without giving prior intimation to the writ petitioner. The fact that prior intimation was not given to the petitioner, was not taken into account. The Appellate Authority (AA) failed to give reasons as to why it considered the punishment proportionate to the gravity of the offence. Therefore, the Hon’ble Single Bench held that the AA was in gross violation of the Order passed by the Patna High Court. In violation of the principles of Natural Justice, the writ petitioner was not allowed to defend himself. The Order passed by the Reviewing Authority (RA) was also set aside for being a non-speaking order. The RA rejected the Review Petition without recording any reason.

7. Since, no one appeared to contest the writ petition despite several opportunities being granted nor was an Affidavit-in-Opposition filed on behalf of the appellants/respondents in the writ petition, the writ petition filed in 1992 was disposed of by an Impugned Order dated January 1, 2003.

8. The Hon’ble Single Bench directed the petitioner to be treated in service from the date on which the Patna High Court set aside and quashed the First Appellate Order. The petitioner was directed to be paid salary month by month. The arrears of salary were directed to be paid from the date of the Judgment of the Patna High Court i.e. November 23, 1991.

9. The present appeal being MAT 3210 of 2003 was filed on or about November 13, 2003, but, the process fee was not paid by the appellants. The appeal lay defective with the Department.

10. By an Order passed by a Coordinate Bench on March 23, 2004, the appellants were directed to pay the process fee for service of notice of appeal along with a copy of the application on the respondent, in the Department, within on