Disciplinary removal of an employee based solely on incarceration without conviction is improper and lacks legal basis.

JUDGMENT :

RAJAN ROY, J.

1. Heard Shri S.B. Pandey, learned Senior Advocate & D.S.G.I. assisted by Shri Anand Dwivedi, learned Counsel for the appellants and Shri Durgesh Mishra, learned Counsel for the respondent.

2. This special appeal has been filed by the Union of India challenging the judgement and order dated 21.8.2024 passed by learned Single Judge in Writ Appeal No. 22248 of 2021 ( Vijay Kumar Pandey Vs. Union of India and others ) by which the writ petition filed by the respondent petitioner has been allowed.

3. In the writ petition, the petitioner sought the following reliefs :-

"i) Issue a writ, order or direction in the nature of Certiorari quashing impugned orders dated 17.12.2019; 04.02.2020 & 16.03.2021 passed by opposite party no. 5, 4 and 3 respectively (contained as Annexure No.1, 2 & 3 to the writ petition).

ii) Issue a writ, order or direction in the nature of Mandamus directing the opposite parties to reinstate the petitioner in service and pay regular salary.

iii) Issue a writ, order or direction in the nature of Mandamus directing the opposite parties to pay the forfeited remaining dues of suspension period.

iv) Issue a writ, order or direction in the nature of Mandamus directing the opposite parties to pay the back wages from the date he was ordered to be removed from service i.e. from 17.12.2019 till the date he gets reinstated in service along with interest."

4. The facts of the case in brief are that the respondent/ petitioner was appointed and was working as Head Constable in the Central Industrial Security Force (hereinafter referred to as “CISF”) eversince 4.10.2009. Prior to it, he was working in the Indian Army having been appointed therein on 23.1.1984. His engagement in the CISF was after his retirement from Indian Army on 31.1.2005. The respondent/petitioner was an accused in case Crime No.58/2019, under Sections 302, 201, 120-B I.P.C. lodged at Police Station Khampar, District Deoria and in this context, he was incarcerated from 1.5.2019 to 20.9.2019. He was enlarged on bail on 23.9.2019. He requested the appellant therein of being allowed to join duties consequent to his enlargement on bail but he was placed under suspension under Sub rule 2 of Rule 33 of the Central Industrial Security Force Rules, 2001 ( hereinafter referred to as “Rules 2001”).

5. The respondent/petitioner remained under suspension and he was served with a chargesheet dated 26.9.2019. Ultimately, he was removed from service.

6. The charge against the respondent/petitioner is being reproduced as under :-

7. The grounds for the charges were separately reduced in writing as Schedule-1 to the chargesheet which read as under:-

8. On a bare perusal of the aforesaid charge, it is evident that all that was alleged against the respondent/petitioner was that he had remained incarcerated from 1.5.2019 to 20.9.2019 in connection with the above mentioned criminal case, till he was enlarged on bail. The charge alleged was of gross misconduct on the part of the respondent/petitioner on account of his involvement in the aforesaid criminal case.

9. At the time of issuance of the chargesheet in disciplinary proceedings, the respondent/ petitioner had not been convicted.

10. Ultimately, the said disciplinary proceedings resulted in removal of the respondent/ petitioner vide order dated 17.12.2019. Obviously, consequent upon his removal, suspension of the respondent/ petitioner came to an end. The entire emoluments which would have been paid to the respondent/ petitioner were forfeited in view of his removal from ser