Ashis Kumar Dutta vs Union Of India & Ors.

PARTHA SARATHI SEN, J. : –

The subject matter of challenge in the instant writ petition is the order dated 28.08.2017 as passed by the respondent no. 4 authority being the appellate authority under the Central Industrial Security Force Rules, 1969 (‘the Rules’ in short) whereby and whereunder the said appellate authority declined to interfere with the order of punishment dated 06.08.1994 as passed by the disciplinary authority being the respondent no. 5 herein in a disciplinary proceeding against the writ petitioner. It is pertinent to mention herein that in such disciplinary proceeding the respondent no. 5 authority being the disciplinary authority by an order dated 06.08.1994 directed that the present writ petitioner be removed from service with effect from 05.04.1995.

At the time of hearing Mr. Paul, learned Advocate appearing on behalf of the writ petitioner at the very outset draws attention of this Court to the Article of Charges as framed against the writ petitioner/ delinquent including the statement of imputation of misconduct or misbehavior in support of the said Articles of Charges. Attention of this Court is also drawn to OM dated 04.04.1992 as issued by the respondent no. 5 authority. It is submitted that from the said OM dated 04.04.1992 it would reveal that the said authority directed various incumbents including the writ petitioner to take part in parade, PT and other regimental duties as and when their turns come.

It is argued that on conjoint perusal of the said OM dated 04.04.1992 and the articles of charges, it would reveal that it has been alleged in the said articles of charges that on 13.11.1992, 04.01.1993, 15.01.1993, 05.02.1993, 15.02.1993 and 26.02.1993 the present writ petitioner/ delinquent allegedly did not attend parade and on 19.01.1993 and 25.02.1993 the petitioner/ delinquent did not attend PT. It is further submitted that on further perusal of the aforesaid OM dated 04.04.1992 and the contents of the Article of Charge No. II it would reveal further that it has been alleged that the present writ petitioner/ delinquent allegedly failed to attend the orderly room of Assistant Commandant on 11.01.1993, 05.02.1993 and 26.02.1993 despite direction of his superior authority.

At this juncture, attention of this Court is drawn to the copy of the said OM dated 04.04.1992. It is argued by Mr. Paul that from the bottom portion of the said OM dated 04.04.1992 it would reveal further that the said OM though bears the date 04.04.1992 however, the said OM was actually signed on 05.05.1993. It is thus argued by Mr. Paul that since sufficient materials have been placed before this Court that the said OM dated 04.04.1992 was actually issued on 05.05.1993, by no stretch of imagination it can be said that there occurred violation of the regimental duties and/or violation to attend the orderly room of the Assistant Commandant prior to the date of issuance of the said OM. It is thus argued by Mr. Paul that the said appellate authority while passing the appellate order which is impugned before this Court has failed to visualize such glaring defect in framing the articles of charges which vitiated the decision making process of the respondent no. 4 authority while passing the impugned order dated 28.08.2017 as an appellate authority.

In his next fold of submission Mr. Paul took me to the judgment dated 19.05.2017 as passed by a Coordinate Bench of this Court in CO 2065 (W) of 1996 (Ashis Kumar Dutta Vs. Union of India). It is submitted by Mr. Paul that in the aforementioned writ petition the subject matter of challenge was the charge sheet, the enquiry report, the final order of removal as passed by the respondent no. 5 authority and the earlier order in appeal as passed by the respondent no. 4 authority. It is submitted by Mr. Paul that in the earlier round of litigation a Coordinate Bench of this High Court found that the Article of Charge No. III is perverse and unsustainable in law and accordingly, the said Article of Charge No. III was set aside. It is further argued that on account of setting aside of Article of Charge No. III the said Coordinate Bench in the aforementioned writ petition directed the respondent no. 4 authority being the appellate authority to revisit the quantum of punishment on account of setting aside of Article of Charge No. III.

It is submitted by Mr. Paul that while passing the impugned order dated 28.08.2017 the respondent no. 4 authority being the appellate authority practically recapitulated its earlier order without giving any adherence to the order of the Hon’ble Court as passed on 19.05.2017 in CO 2065 (W) of 1996. Drawing attention to the supplementary affidavit dated 24.03.2025 as filed by the writ petitioner, it is further submitted by Mr. Paul that before the appellate authority the writ petitioner has made out a specific case that in respect of one S. Biswas, a constable of CISF on the basis of a similar article of charge, a lesser penalty to the extent of 3 days’ pay fine was imposed while the respondent authorities more specifically, the respondent nos. 4 and 5 have taken a step-motherly attitude towards the writ petitioner by imposing major penalty without any basis at all. It is further submitted by Mr. Paul that the appellate authority in the impugned order dated 28.07.2017 most mechanically placed its reliance upon a judgment dated 23.12.2008 as passed by another Coordinate Bench of this Court in FMA 1063 of 2007 (G.D. Paul Vs. Union of India and Ors.) without looking to the facts that articles of charges as involved in FMA 1063 of 2007 are quite distinguishable from the facts and circumstances as involved in the instant writ petition. It is thus submitted by Mr. Paul that it is a fit case for allowing the instant writ petition by setting aside the impugned order dated 28.07.2017 as passed by the respondent no. 4 authority.

Per contra, Ms. Alam, learned Advocate appearing on behalf of the respondent authorities in course of her submission draws attention of this Court to page no. 25 onwards vis-à-vis the affidavit-in-opposition as filed by the respondents. Drawing attention to paragraph no. 13 of the affidavit-in-opposition, it is argued by Ms. Alam that it is the specific case of the respondents that the copy of the OM dated 04.04.1992 and the subsequent copies of the documents as have been annexed with the instant writ petition are the list of documents as Annexure- III of the charged memorandum which was certified as true copies on 05.05.1993. It is thus submitted by Ms. Alam that by no stretch of imagination it can be said that the said OM dated 04.04.1992 was actually issued to the incumbents including the writ petitioners/ delinquent on 05.05.1993 instead of 04.04.1992. Drawing attention to the judgment and order dated 19.05.2017 as passed in CO 2065 (W) of 1996 it is further argued by Ms. Alam that in the said earlier round of litigation though the charge sheet, the enquiry report, the final order of removal and the earlier appellate authority’s order were under challenge, but while disposing the said writ petition the said Coordinate Bench of this Court only interfered with the Article of Charge No. III and thus remanded the matter to the appellate authority to decide the quantum of punishment afresh in view of setting aside of the said Article of Charge No. III only. It is thus argued by Ms. Alam that since the earlier Coordinate Bench in the earlier round of litigation did not interfere with the remaining two articles of charges, it can be safely presumed that the said Coordinate Bench in CO 2065 (W) of 1996 did not interfere with the finding of the disciplinary authority as well as of the appellate authority with regard to the guilt of the present writ petitioner/ delinquent in respect of the Article of Charge Nos. I and II. It is further submitted by Ms. Alam that in this writ petition the writ petitioner/ delinquent cannot be permitted to re-agitate the legality and validity of the Article of Charge Nos. I and II afresh in this writ petition.

Drawing further attention of this Court to the impugned appellate authority’s order dated 28.07.2017 vis-à-vis the Article of Charge Nos. I and II, it is further argued by Ms. Alam that the respondent no. 4 authority being the appellate authority on careful appreciation of the entire materials as placed before it came to a factual finding with regard to the communication of OM dated 04.04.1992 upon the writ petitioner/ delinquent along with other incumbents and also noticed that the present writ petitioner/ incumbent being a constable of CISF deliberately failed to attend the regimental duties like parade and PT as well as he failed to attend the orderly room of the Assistant Commandant on the specified dates. Ms. Alam thus submits that this Court sitting in writ jurisdiction in a judicial review ought not to interfere with such factual findings in absence of any material to show that the decision of the appellate authority is perverse and/or not sustainable in the eye of law.

It is further argued on behalf of the respondents that the misconduct under the Article of Charge Nos. I and II comes within the purview of Section 10 (a) of the CISF Act, 1968 (‘Act’ in short). It is further submitted that the imposition of penalty for removal from service as imposed by the disciplinary authority and as has been affirmed by the appellate authority by the impugned order have been passed following the rules 34, 42 and 47 of the ‘said Rules’. Ms. Alam thus submits that it is a fit case for dismissal of the instant writ petition.

This Court has meticulously gone through the entire materials as placed before it. This Court has given its due consideration over the submissions made by the learned Advocates for the contending parties.

Since in the earlier round of litigation the charge sheet, the enquiry report, the order of removal from service as passed by the disciplinary authority and the earlier order of the appellate authority were the subject matter of challenge this Court proposes to look to some relevant paragraphs as passed by a Coordinate Bench of this Court on 19.05.2017 in CO 2065 (W) of 1995 and those are as under:

[Emphasis Supplied]

On perusal of the aforementioned order as passed by the Coordinate Bench, it reveals that out of 3 numbers of articles of charge, particular of which has been mentioned in page no. 23 of the instant writ petition, only Article of Charge No. III was interfered with in the earlier round of litigation and was set aside. It has been noticed that in the said earlier round of litigation the writ petitioner did not challenge the finding of the Enquiry Officer regarding Article of Charge Nos. I and II which according the said Coordinate Bench stood established.

In view of such legal position, this Court is constraint to hold that in this writ petition the writ petitioner cannot be permitted to re-agitate his grievance with regard to the Article of Charge Nos. I and II since the same has now become barred by the principle of res judicata.

The argument of Mr. Paul that the Article of Charge Nos. I and II are based on a post-dated OM in considered view of this Court is not tenable in view of the specific defense taken by the respondent authorities that the said OM was issued on 4^th April, 1992 and certified true copy thereof bearing the date 5^th May, 1993 was supplied to the delinquent before initiation of the enquiry proceeding. This Court has meticulously gone though the impugned order dated 28.07.2017 as passed by the appellate authority. The said appellate authority while passing the impugned appellate order came to a factual finding that the said OM dated 04.04.1992 was communicated to all the incumbents including the delinquent intimating that they were not exempted from regimental duties. The said appellate authority also noticed that despite receipt of the said OM the present writ petitioner being the delinquent for no reason whatsoever deliberately flouted the said OM dated 04.04.1992 by not attending his regimental duties like parade and PT and even declined to attend the orderly room of his superior on specified dates. In absence of any contrary material this court finds no reason to interfere with such factual findings which are based on materials on record. It is trite that in a judicial review a Writ Court cannot take a different view merely on the ground that a contrary view is possible.

At this juncture, this Court proposes to look to Section 10 of the said Act which reads as under:

This Court has also gone through some of the rules of the said Rules. Rule 34 of the said Rules prescribes the procedure for imposing major penalties, Rule 42 of the said Rules deals with the provision of appeals against order imposing penalties and Rule 47 of the said Rules deals with consideration of appeals.

Keeping in mind the aforementioned legislative provisions, if I look to the order impugned dated 28.07.2017, it appears that the said appellate authority being the respondent no. 4 while passing the appellate order dated 28.07.2017 duly considered all the parameters for consideration of appeals, justification on the part of the disciplinary authority to arrive at a finding of the guilt of the delinquent in respect of the Article of Charge Nos. I and II and also with regard to the adequacy of the penalty in relation to the said proved articles of charges. It appears to this Court that the appellate authority while passing its appellate order dated 28.07.2017 considered all the parameters as prescribed in Rule 47 of the said Rules and thus came to a logical conclusion with regard to the adequacy of the punishment of removal from service as imposed by the disciplinary authority against the writ petitioner/ delinquent.

Admittedly, the respondent authorities are the best suited person to ensure the discipline of armed force which is under their control and they are equally best suited to assess as to whether the alleged action of the writ petitioner/ delinquent as contained in Article of Charge Nos. I and II attracts the major penalties within the meaning of Rule 31 of the said Rules.

On careful perusal of the entire materials as placed before this Court, it appears to this Court that the respondent no. 4 authority being appellate authority rightly came to a logical conclusion with regard to proof of Article of Charge Nos. I and II as against the writ petitioner/ delinquent and thus had rightly given a stamp of approval over the finding of the enquiry authority as well as the finding of the disciplinary authority.

In view of the observations made hereinabove, this court finds that the instant writ petition lacks sufficient merit and is hereby dismissed. There shall be however no order as to cost.

Urgent photostat certified copy of this judgement, if applied for, be given to the parties on completion of usual formalities.