IN THE HIGH COURT OF JUDICATURE AT PATNA

Civil Writ Jurisdiction Case No.21188 of 2012

======================================================
Deo Narayan Singh S/O Shri Surendra Singh R/O Village- Akbarpur, P.S.-

Paliganj, District-Patna

... ... Petitioner/s

Versus
1. The Union Of India through the Secretary, Department Of Homes,
Government Of India, New Delhi
2. Director General (Central Industrial Security Force) C.G.O. Complex, New
Delhi
3. Inspector General (C.I.S.F.), Eastern Zone Head Office Boring Road, Patna,
Bihar
4. Deputy Inspector General (C.I.S.F. Unit), B.C.C.L., Dhanbad, Jharkhand
5. Commandant (C.I.S.F. Unit), B.C.C.L., Dhanbad, Jharkhand

... ... Respondent/s

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Appearance :

For the Petitioner/s : Mr. Bhairaw Nand Sharma, Advocate

Mr. Binod Kumar Jha, Advocate
For the UoI : Mr. Radhika Raman, Sr. CGC
Mr. Ram Tujabh Singh, CGC
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CORAM: HONOURABLE MR. JUSTICE PURNENDU SINGH
ORAL JUDGMENT

Date : 25-06-2024

Heard Mr. Bhairaw Nand Sharma along with Mr.

Binod Kumar Jha, learned counsels appearing on behalf of the

petitioner and Mr. Radhika Raman, Sr. CGC along with Mr.

Ram Tujabh Singh, CGC appearing on behalf of the Union of

India.

2. The petitioner has, inter alia, prayed for

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following relief/s in the paragraphs No.1 of the writ petition:-

“That this Writ application is being filed

for issuance of a Writ in the nature of Writ of
Certiorari, for quashing the Order dated
3.11.2011, passed by the Respondent No.3 along
with Appellate Order dated 28.06.2011, passed
by the Respondent No.4 and punishment Order
dated 5.2.2011, passed by Respondent No.5 as
the petitioner has been punished with a
punishment of "Compulsory Retirement from
service with 100% Pension and Gratuity" and the
same punishment Order has been affirmed by the
Appellate Authority (Respondent No.4) and
further the same was affirmed by the Revisional
Authority (Respondent No.3), without applying
his Judicial mind and without going through the
real facts and circumstances of this case as well
as without considering the real and true
statements on the part of the petitioner and
violating the rules of enquiry and Article 311(2)
of the Constitution of India for Natural Justice
and further be pleased to issuance of a Writ in the
nature of Writ of Mandamus, commanding and
directing the concerned respondents, to allow the
petitioner to serve to the Department on his
required post, giving all consequential benefits
accordingly. And/or pass such other
Order/Orders, Writ/Writs as your Lordships may
think fit and proper.”

BRIEF FACTS

3. The petitioner was posted as Constable at

C.I.S.F. Unit, BCCL, Dhanbad. He was issued with charge

memorandum under Rule 36 of the C.I.S.F. Rules, 2001

(Amended Rules, 2007), contained in memo no.5423 dated

04.09.2010. The Authority had conducted an enquiry based on

the complaint made by one Sahdeo Thakur, who was posted as

Loading Clerk, against the petitioner on the allegation of having

committed misconduct, misbehaving and scuffled with him

during duty hour and was not present at his duty post.
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Departmental enquiry was initiated against the petitioner as per

the provision of Rule 36 of C.I.S.F. Rules, 2001, as amended up-

to-date and an enquiry Officer was appointed. It is the case of

petitioner that in course of the Departmental enquiry, the

petitioner was not afforded with a reasonable opportunity to

cross examine the witnesses and also neither preliminary

enquiry was held, nor the preliminary show cause was served to

the petitioner. The proceeding was initiated on the basis of

allegation made by one Sahdeo Thakur, who was posted at

Dahibara Loading Office, with whom the petitioner had scuffled

on duty. Aggrieved by the punishment order dated 05.02.2011

and the Appellate order dated 28.06.2011, the petitioner has

filed the present writ petition. It is the case of the respondents

that prescribed procedures were followed in conduct of

Departmental Enquiry. Petitioner was served with all the

required documents and there is no violation of principle of

natural justice by the Disciplinary Authority.

SUBMISSIONS OF THE PARTIES

4. Learned counsel for the petitioner submitted that

the petitioner is aggrieved by the order dated 10.09.2010, by

which the penalty order has been modified. The petitioner has

further prayed that the compulsory retirement is too harsh and

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severe and seeing the gravity of the charges, the same is

required to be interfered by considering the charges, which were

not fully proven but unilaterally, the disciplinary proceeding was

initiated against the petitioner, without serving the petitioner the

preliminary show-cause or holding any preliminary enquiry, in

respect of the allegation made by one Sahdeo Thakur, which is

against the principle of natural justice. Learned counsel further

submitted that denying to hold preliminary enquiry and before

charges being prima facie established, the entire disciplinary

proceeding becomes empty formality itself, as the enquiry

report was served to the petitioner in spite of the fact that

petitioner had objected to the one sided preliminary enquiry.

5. Learned counsel taking reference of the point

raised in his revision petition, has submitted that in spite of his

due diligence and having been sincere towards his duty and

towards his Superior Authorities, who have never complained of

any misconduct or illegal act to have been committed by the

petitioner in the past. Even the allegation that the complainant

Mr. Avdhesh Sharma had found the petitioner to be present on

duty on 29.07.2010 at 1 A.M., the punishment of compulsory

retirement can be considered to be too harsh and severe.

Learned counsel, in this regard, has relied upon the judgment

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passed by a Coordinate Bench of this Court in CWJC No.10065

of 2013 (Constable No.911120653 Hawaldar, G.D. Datta

Singh Vs. the Union of India & Ors.) passed on the basis of

law laid down by the Apex Court in case of Union of India &

Anr. vs. R.K. Sharma (Civil Appeal No. 4059 of 2015) in

which, penalty order passed by the Disciplinary Authority,

which was affirmed by the Appellate Authority and Revisional

Authority, was quashed and the matter was remanded to the

Disciplinary Authority to impose lesser punishment and extend

all monetary and service benefit to the petitioner of the said writ

petition.

6. Learned counsel restricts his relief to the extent

that the order of penalty being very harsh and the same is

required to be modified, following the principle relied, in terms

of order dated 31.08.2022 passed in CWJC No. 10065 of 2013.

7. Per contra, learned counsel appearing on behalf

of the respondents submitted that the petitioner has not been

able to make out a case for judicial review against the penalty

order, which was affirmed by the Appellate Authority, as well

as, the Revisional Authority. Petitioner has also not been able to

substantiate his stand that neither the preliminary enquiry report

nor any show cause was served upon him at any point of time in
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course of Disciplinary Proceeding and he cannot be permitted to

take the said plea in the writ petition. Learned counsel further

submitted that in reply to the paragraph no. 6 of the writ

petition, a specific statement has been made in paragraph no. 21

of the counter affidavit that “The Preliminary Enquiry report

was not made a listed document, hence his request to supply

preliminary enquiry report was considered not relevant”.

Learned counsel further submitted that the penalty order cannot

be faulted for and don’t call for any interference by this Court to

modify the same in view of the order passed in the case of

Hawaldar G.D. Datta Singh (Supra).

8. Heard the parties.

9. The facts in brief giving rise to the present writ

petition are that :

(i). The petitioner was constable in the CISF, which

is a Central Armed Police Force. It is an Armed Force of the

Union of India. It is deployed in sensitive Sectors such as

Airports, Ports, Units of Department of Atomic Energy,

Department of Space, Metro, Power and Steel. The Force is also

deployed on Internal Security duties and Election Duties. The

Force, therefore, requires maintaining discipline of the highest

order. The petitioner formerly of CISF Unit, BCCL Dhanbad

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was issued with charge memorandum under Rule-36 of CISF

Rules, 2001 (amended Rules 2007) vide charge memorandum

No. (5423) dated 04.09.2010 (Annexure:1 to the writ petition)

for the following Articles of Charges:

Article of Charge-1

“cy la[;k 921500021 vkj{kd Mh0,u0flag] dsvkSlqc bdkbZ

Hkkdksdksfy /kuckn {ks= la[;k&07 fnukad 29-07-2010 dks le; 2100 cts ls

fnukad 30-07-2010 le; 0500 cts rd cy la[;k 943440942 vkj{kd fot;

[kkYdks ds lkFk jkf= ikjh M~;wVh ds fy, nghokM+h odZ”kkWi esa drZO; gsrq rSukr

fd;k x;k FkkA mDr rSukrh ds nkSjku vkj{kd Mh0,u0flag viuh ethZ ls vius

M~;wVh ls le; yxHkx 2300 cts rd vuqifLFkr jgk] tksfd mlds drZO; ds

izfr ?kksj ykijokgh] vuq”kklughurk] ,oa ofj’B vf/kdkfj;ksa }kjk fof/klEer fn;s

x;s vkns”kksa dh vogsyuk ds d`R; dks n”kkZrk gSA vr% vkjksi gSA”

Article of Charge-2

“cy la[;k 921500021 vkj{kd Mh0,u0flag] dsvkSlqc bdkbZ

Hkkdksdksfy /kuckn {ks= la[;k&07 fnukad 29-07-2010 dks le; 2100 cts ls

fnukad 30-07-2010 le; 0500 cts rd jkf= ikjh M~;wVh ds fy, nghokM+h

odZ”kkWi esa drZO; gsrq rSukr fd;k x;kA ijUrq mDr cy lnL; viuk drZO;

iksLV NksM+dj] drZO; ds nkSjku le; yxHkx 0100 cts nghckM+h yksfMax vkWfQl

esa tkdj yksfMax DydZ Jh lgnso Bkdqj ds lkFk >xM+k ,oa xkyh&xykSt

fd;kA cy dzekad 921500021 vkj{kd Mh0,u0flag] }kjk fd;k x;k mDr d`R;

mlds drZO; ds izfr ?kksj dnkpkj] vuq”kklughurk ,oa ofj’B vf/kdkfj;ksa }kjk

fof/klEer fn;s x;s vkns”kksa dh vogsyuk dks n”kkZrk gSA vr% vkjksi gSA”
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Article of Charge-3

“cy la[;k 921500021 vkj{kd Mh0,u0flag] dsvkSlqc bdkbZ

Hkkdksdksfy /kuckn {ks= la[;k&07 dks mldh lsok vof/k ds nkSjku fHkUu&fHkUu

vuq”kklughu d`R;ksa ds fy, 11 ltkvksa ls nf.Mr fd;k x;k gSA fQj Hkh og

vius dk;Zdyki esa lq/kkj ykus esa foQy jgk gS] tksfd mlds vknru vijk/kh

dh izd`fr dks n”kkZrk gSA vr% vkjksi gSA”

(ii). The petitioner had received the charge

memorandum on 08.09.2010 and submitted his written

submission against the charge memorandum on 10.09.2010,

denying the charges leveled against him. Departmental enquiry

was ordered under the provisions of Rule-36 of CISF Rules,

2001 (Now amended Rules 2007) by Appointing Authority R.B.

Prasad, Asstt. Commandant of CISF Unit BCCL Dhanbad as

Enquiry Officer and Sub-Inspector/Exe C.S. Dani as Presenting

Officer vide order No. (5751) and No. (5752) dated 17.09.2010

respectively.

(iii). The Disciplinary Authority, after taking into

account all the aspects had found the petitioner guilty of the

charges framed against him, which were proved in a duly

constituted departmental enquiry on the basis of statements of

witnesses and evidences during the course of enquiry. The

petitioner having found to have committed gross misconduct,

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indisciplined act, dereliction of duty and disobedience of lawful

orders by absenting from his duty post, misbehaving with and

threatening the Loading Clerk (employee of undertaking) and

considering his past service record of the petitioner, he was

provided with ample opportunities to mend his conduct, but he

did not improve himself and committed misconduct/indiscipline

one after another for which he had been imposed with 11

penalties during his service. The Disciplinary Authority had

taken a lenient view, though he deserved a stringent penalty,

considering his long service and family liability, awarded him

penalty of "Compulsory Retirement" with full pension and

gratuity benefits vide final order No.(891) dated 05.02.2011

(Annexure: 2 to the writ petition). Being aggrieved with the

aforesaid penalty, the petitioner preferred an appeal before the

Appellate Authority i.e. Deputy Inspector General, CISF Unit,

BCCL, Dhanbad. The Appellate Authority found that the

petitioner had committed gross misconduct, indiscipline,

dereliction towards duty and disobedience of lawful orders. The

Appellate Authority did not find any cogent reason to interfere

with the order passed by the Disciplinary Authority, and the

appeal of the petitioner was rejected, being devoid of merit, vide

order No. (7324) dated 28/30.06.2011. (Annexure: 3 to the writ

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petition). Against the said order passed by the Disciplinary

Authority and the Appellate Authority, the petitioner had

preferred a revision petition before the Revisional Authority i.e.

Inspector General, CISF Eastern Sector HQrs., Patna, who also,

after examining the case records, submissions made by the

petitioner, rejected the revision petition having devoid of merit,

vide order No. (11251) dated 03.11.2011 (Annexure: 4 to the

writ petition). The petitioner was paid the pensionary benefits in

terms of the final Order dated 05.02.2011, under the following

heads :-

Sl. No Particulars of Amount Date of

payment payment
01 Pension PPO Rs. 4800/-pm with eligible

No.237041202 D.A. from

205 time to time

02 Commutation Not entitled on

of Pension Compulsory

Retirement
03 Retirement Rs. 1,29,667/- 10.05.2012

Gratuity
04 GPF Rs. 1,14,901/- 06.06.2012
05 CGEGIS Rs. 11,842/- 22.05.2012
06 RMS Rs. 19,791/- 06.03.2012
07 Encashment of Rs. 72,480/- 30.04.2012

EL/HPL
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10. From the perusal of the counter affidavit,

nowhere the respondents have given information, as to whether,

upon complaint made by one Sahdeo Thakur, the petitioner was

inquired about the alleged incidence and was given any

opportunity to place his version before the Disciplinary

Authority, however, the preliminary enquiry was held, even then

no statement has been made in the writ petition that the

Disciplinary Authority unilaterally initiated a Departmental

Proceeding against the petitioner and the required procedure

was followed in conduct of the Disciplinary Proceeding.

11. The charges, framed against the petitioner, were

proved and a penalty of ‘Compulsory Retirement’ was imposed.

The petitioner’s appeal was dismissed and accordingly the

Revision was also rejected. The petitioner has challenged the

order on several grounds, however, he has sought interference

only to the extent to modify the penalty order to be very harsh

and consider his case in light of ratio laid down in CWJC

No.10065 of 2013 (supra).

12. The petitioner of CWJC No.10065 of 2013

(Supra) was charge-sheeted for being absent for 36 days and

order of ‘Compulsory Retirement’ was passed against him, by a

Coordinate Bench of this Court. The Coordinate Bench,

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considering the facts of the said case, relied upon the judgment

of the Hon’ble Apex Court in case of Amrender Kumar Pandey

Vs. Union of India and Ors. reported in 2022 Live Law (SC

600), I find apt to quote paragraph nos. 9 and 10 of the order

dated 31.08.2022 passed in CWJC No.10065 of 2013, which is,

inter-alia, reproduced hereinafter:

“09. Having regard to the length of service rendered

by the petitioner from 08.07.1991 and the fact that
he remained unauthorized absent for 13 days and
similar unauthorized absent for a period of 36 days
in the past and imposition of major penalty of
compulsory retirement would be too harsh. In the
identical circumstances, Hon’ble Apex Court in the
case of Amrendra KumarPandey vs. Union of
India & Ors. reported in 2022 Live Law(SC) 600
held as under:-
“27. The reliance placed by the learned Counsel
appearing for the respondents of the decision of this
Court in the case Satgur Singh (supra) is of no
avail. It was a case in which the appellant failed to
furnish any explanation of his absence from duty on
seven occasions. On facts, this Court took the view
that as the absence from duty was on several
different occasions for which he was imposed
punishment of imprisonment, the order of discharge
could not be said to unjustified.
40. Having regard to the nature of the misconduct
alleged against the appellant we are of the view that
the ends of justice would be met if we set aside the
order of discharge and treat the appellant herein to
have been in service till the time, he could be said to
have completed the qualifying service for grant of
pension. We are inclined to pass such an order with
a view to do substantial justice as there is nothing
on record to indicate that the nature of them is
conduct leading to the award of four Red Ink entries
was so unacceptable that the competent authority
had no option but to direct his discharge to prevent
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indiscipline in the force”

10. Also, Hon’ble Apex Court in the case of Union
of India & Anr. vs. R.K. Sharma (Civil Appeal No.
4059 of 2015) held as under:-
“11. As regards to the period for which the
respondent was absent from duty, we are satisfied
that the punishment of dismissal from service is too
harsh, disproportionate and not commensurate with
the nature of the change proved against the
respondent. We are, therefore, of the view that the
ends of justice would have been adequately met by
imposing some lesser but major penalty upon the
respondent.
12. The misconduct attributed to the respondent is
based on the charge-memo dated 04.12.1998 with
respect to which he was dismissed from service in
the year 2000. We, therefore, do not deem it
necessary to remit the case to the disciplinary
authority after such a long spell of 22 years.
Instead, we are inclined to invoke our power under
Article 142 of the Constitution, keeping in mind the
doctrine of proportionality and with a view to do
complete justice between the parties. This Court has
utilized Article 142 on numerous occasions in the
past, such as in Hind Construction & Engineering
Vs. Their Workmen and Management of the
Federation of Indian Chambers of Commerce Vs.
Their Workmen to ensure that the punishment meted
out to a public sector employee for a violation of the
applicable service laws/rules is not disproportionate
to the infraction that he/she has committed. The
doctrine of proportionality is employed to examine
whether the penalty that is imposed upon is
congruent with the charges brought against the
delinquent employee.”

13. From the aforesaid facts and law laid down by

the Apex Court, I find that the enquiry was held on the basis of

complaint made by one Sahdeo Thakur, who had alleged that

the petitioner had misbehaved with him during the duty hour
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and he was not present on his duty, on the date of alleged

misbehavior. The records reveal that the said complaint was not

handed over to the petitioner to defend and no preliminary

enquiry was held in this regard.

14. The law in respect of interference by this Court

is well settled by the Apex Court that in the case of major

penalty, Article 21 of the Constitution of India is attracted and in

view of the interdependence of the fundamental right, the

punishment/penalty awarded to be reasonable and if it be

unreasonable, Article 14 of the Constitution would be violated,

however, for the self-imposed limitation while exercising power

under Section 226 of the Constitution of India and in light of the

law laid down by the Apex Court in the case of B.C. Chaturvedi

v. Union of India & Ors. reported in (1995) 6 SCC 749, I find it

proper to direct the Disciplinary Authority/ Appellate Authority

to re-consider the penalty imposed and for passing appropriate

order, as the punishment of dismissal from service is too harsh,

hence, the matter remanded back to the Disciplinary Authority

to impose lesser penalty, in the facts and circumstances of the

case and to extend monetary and service benefits to the

petitioner. The above exercise is directed to be completed within

three months, from the date of communication of this order.

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15. For the above reasons, the present writ petition

stands disposed of.

(Purnendu Singh, J.)

Ashishsingh/-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 26.07.2024
Transmission Date NA