IMPORTANT POINT
Disciplinary penalties must be proportionate to the misconduct, considering the individual's service history and circumstances surrounding the case.

JUDGMENT :

Shampa Dutt (Paul), J.

1. The present Writ Petition has been preferred against an order dated June 24, 2009 passed by the Appellate Authority of Disciplinary action under The Central Industrial Security Force Act, 1968 and the Central Industrial Security Force Rules, 2001 and order dated April 14, 2009 passed by Commandant, The Central Industrial Security Force, D.T.P.S. Unit, Durgapur, imposing penalty of removal from service of the petitioner with effect from April 14, 2009 (A.N.).

2. The petitioner’s case is that:-

“The Petitioner was appointed as a constable under The Central Industrial Security Force with effect from April 20, 1996 and was sent to training. After completion of training, the petitioner was appointed in regular posting as constable No. 964652686. The Respondent No. 5 under the impugned Memo No. V-15014/CISF/DTPS/DISC/Maj/NH/08-6420 dated November 3, 2008 had issued a Memorandum, inter alia, proposing to hold an enquiry against the petitioner under Rule 36 of the Central Industrial Security Force Rules, 2001. The petitioner states that subsistence of Imputation of Misconduct or indiscipline Act in respect of which enquiry is proposed to be held had been set out in the statement of Article of Charge. A list of documents by which a list of witnesses by whom the Article of Charge were proposed to be sustained had also been served upon the petitioner. The petitioner was also directed to submit a written statement within ten days from the date of receipt of the said Memorandum of the defence and was also directed to state as to whether he desires to be heard in person. It was also informed that an enquiry would be held if the Article of Charge is not admitted and the petitioner should specify regarding admission or denial of the Article of Charge. It was also stipulated therein that if the petitioner does not submit his written statement of defence on or before the date specified or if the petitioner does not appear before the inquiring authority or otherwise fails or to comply with the provisions of Rule 36 of the Central Industrial Security Force Rules, 2001 or the orders/directions issued in pursuance of the said Rules, the inquiring authority may hold the enquiry against the petitioner exparte.”

3. The said Article of Charges are as follows:-

i) The abovesaid member of the force is directed to submit within 10 days of the receipt of this memorandum a written statement of his defence and also to state whether he desires to be heard in person.

ii) He is informed that an enquiry will be held if the article of charge is not admitted, he should specifically admit or deny the article of charge.

iii) He is, further informed, that if he does not submit his written statement of defence on or before the date specified in para 2 above, or does not appear in person before the inquiring authority or otherwise fails or refuses to comply with the provisions of Rule 36 of CISF Rules 2001 or the orders/directions issued in pursuance of the said Rules, the inquiring authority may hold the enquiry against him ex-parte.

4. The statement of imputation or misconduct and indiscipline act in respect of article of charge framed against the petitioner are as follows:-

“That no. 964452686, Constable Nikhil Hembram of CISF, Unit DTPS (DVC) Durgapur was found absent from shift duty as well as regimental duties wef. 14.10.2008 to 20.10.2008 without any information or any kind of leave/medical rest and reported for duty on 21.10.2008 (FN) at his own after remaining 07 days unauthorized absence (AWL) which tantamounts to gross misconduct, indiscipline dereliction of duty and thus unbecoming of a member of a disciplined force like CISF.”

5. The petitioner further states that under the impugned Memo No. V-15014/CISF/DTPS/DISC/MAJ/NH/08-7342 dated December 11, 2008 the respondent No. 5 had passed an order, inter alia, to the effect that an enquiry under Rule 36 of Central Industrial Security Force Rules, 2001 (hereinafter referred to as the