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IN THE HIGH COURT AT CALCUTTA
PARTHA SARATHI CHATTERJEE, J.
R. Kasivelu – Appellant
Versus
Union of India & Ors. – Respondents
WPA 23983 of 2014
Decided on : 26-06-2024
Disciplinary Action - Removal from Service - CISF Act, Rule 36 - The court found that the disciplinary proceedings violated principles of natural justice, particularly the right to a fair hearing and the opportunity to engage a defense representative, leading to an excessively harsh punishment.
Fact of the Case:
The petitioner, a Head Constable in CISF, was removed from service following a scuffle with a colleague. He contested the disciplinary proceedings, claiming violations of natural justice and inadequate opportunity to defend himself.
Finding of the Court:
The court determined that the disciplinary proceedings were flawed due to the denial of the right to engage a defense representative and reliance on hearsay evidence, resulting in a punishment that was shockingly disproportionate to the alleged misconduct.
Issues: Whether the disciplinary proceedings against the petitioner were conducted in accordance with the principles of natural justice and whether the punishment imposed was proportionate to the alleged misconduct.
Ratio Decidendi: The court emphasized that disciplinary authorities must adhere to fair procedures and that punishments must be proportionate to the misconduct. The failure to allow the petitioner to engage a defense representative constituted a violation of natural justice.
Result: The court set aside the removal order and substituted it with a lesser punishment, allowing for continuity of service benefits.
JUDGMENT :
Partha Sarathi Chatterjee, J.
Prelude:
1. The legal conflict revolving around the present writ petition originated from an incident of scuffling with a colleague, which eventually entailed the petitioner’s removal from service.
Facts:
2. To appreciate the conflict, the necessitous facts, as unfurled by the parties in their pleadings, need to be noticed.
3. The petitioner joined the Central Industrial Security Force (in short, CISF) as Constable (no. 831550107 HC/GD) on 13.09.1983. Subsequently, he was promoted to the post of Head Constable and posted in CISF Unit at ONGC Nazira, Assam.
4. In 2003, the petitioner was served with a Charge Memorandum vide. dated September 24, 2003, which was issued in terms of the Rule 36 CISF Rules, on the allegation that, on 01.09.2003, while he was posted in SLAA Rig Out of Lakwa Sector, he was involved in a scuffle with a constable namely, Jaibir Singh (no. 834150087) at about 12.25 hours resulting in the constable suffering a head injury and being admitted in ONGC hospital at Sivasagar.
5. The Inspector/Exe. Mr. A. N. Tiwari reported the incident to the Lakwa Sector Control Room which was registered as GDSL no. 28 and 45 dated 01.09.2003.
6. The petitioner submitted his written representation dated 13.10.2003 to the charge memo dated 24.09.2003 denying the allegations levelled against him in the charge memo.
7. Vide. an order dated 15.10.2003, an Enquiry Officer was appointed to enquire into the allegation and as such, the preliminary enquiry was conducted on 23.10.2003. The deliberation, as made by the petitioner on the allegation was recorded.
8. The petitioner, through his letter dated 2.11.2003 and subsequently, by a representation dated 4.11.2003 requested the Enquiry Officer to allow the petitioner to engage a Defence Representative. The petitioner even produced a consent letter of the proposed defence representative. However, the enquiry officer refused to issue a notice to the proposed defence representative, ultimately, depriving the petitioner of the opportunity to defend himself through a defence representative.
9. The Management produced as many as seven witnesses to bring home the charge. The Inspector/Exe. Mr. A.N. Tiwary, S.I./Exe. P.L Pareek, HC/GD, B.A. Choudhury, Constable R.N.Yadav and HC/GD. S.R. Nair testified as prosecution witnesses as PW-1, PW-2, PW-4, PW-5 and PW-7 respectively providing an account of the incident even though they were not present at the spot at the material point of time. The Constable, Mr. Singh, the alleged victim, who deposed as PW-3, however, supported the allegation but the PW-6, HC/GD, Dilip Dutta did not make any statement in support of the allegation.
10. The finding of the enquiry officer dated 17.02.2004 was communicated to the petitioner by the respondent no. 5 vide. his letter dated 19.02.2004.
11. The petitioner making an application dated 05.03.2004 sought for additional time for ten days to submit his response to the finding of the enquiry officer but turning blind eye to the petitioner’s application, an order of removal dated 08.03.2004 was served upon the petitioner.
12. The order of punishment was carried in appeal by the petitioner but the appellate authority dismissed the appeal by an order dated 31.05.2004 and the petitioner presented a petition for revision but the same also suffered dismissal on 10.07.2004.
13. Situated thus, the present writ petition has been instituted to question the legality of the charge-memo, enquiry report, and the order of punishment, the order of the appellant authority and the order passed in revision.
14. The parties have exchanged their affidavits, as directed.
Submissions:
15. Mr. Chakraborty, learned advocate, advanced his argument in support of the writ petition. The main thrust of his argument is that the disciplinary proceeding was conducted and concluded in a mechanical manner, with a pre-conceived notion in sheer violation of the Rules in vogue and the principles of natural justice. His next line of
Disciplinary proceedings must comply with natural justice principles, including the right to a fair hearing and the opportunity to engage a defense representative, to ensure proportionality in punish....
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The High Court does not act as an appellate authority in disciplinary matters and will not interfere with the quantum of punishment unless it is shocking to the conscience.
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Disciplinary proceedings must follow the principles of natural justice, including the right to evidence, but non-supply of evidence does not invalidate proceedings if the accused received a fair chan....
Disciplinary proceedings must adhere to principles of natural justice, including providing access to relevant evidence. Failure to follow these may invalidate the proceedings.
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