Mani Kant Singh vs Union Of India & Ors.

Raja Basu Chowdhury, J

The instant writ petition has been filed, inter alia, challenging the entire enquiry proceeding, including the order dated 14th January, 2003, the memorandum dated 22nd March, 2002, the final order dated 11th November, 2004 and the appellate order dated 26th May, 2005.

The petitioner is an employee of the Central Industrial Security Force (in short “CISF”) and at the relevant point of time was posted at the CISF at ONGC, Jorhat, Assam. In course of his employment, the petitioner applied for and was sanctioned 35 days of Earned Leave from 16th March, 2001 to 19th April, 2001. Since, the petitioner has heart ailments, he was advised treatment from a heart specialist at the Indira Gandhi Institute of Medical Sciences where he was advised to undergo several tests. Since, his condition did not improve while availing treatment at Indira Gandhi Institute of Medical Sciences, the petitioner had contacted Sadar Hospital on 1st April, 2001 and was under the treatment of an Assistant Civil Surgeon. On 19th April, 2001, the petitioner informed the authorities of his condition and had requested for extension of leave. On 17th May, 2001, the authorities of the Sardar Hospital declared the petitioner fit to resume his duties and accordingly, on 20th May, 2001, he had returned for joining his duties.

Subsequently, on or about 12th September, 2001, the petitioner was served with a memorandum of charge issued under Rule 35 of the CISF Rules, 1969 (hereinafter referred to as the “1969 Rules”). The petitioner had responded to the said memorandum and had duly brought to the notice of the Disciplinary Authority, all facts and figures including his medical papers. The said enquiry proceeding was decided in favour of the petitioner by a final order dated 30th September, 2001, thereby exonerating him from the charges. Unfortunately, the Commandant of the CISF unit, ONGC had issued a show-cause notice on 14th January, 2002, proposing to review the said case under Rule 54 of the CISF Rules, 2001 (hereinafter referred to as the “2001 Rules”) and the petitioner was required to submit his explanation. The petitioner had duly responded to the show-cause, whereupon a fresh memorandum of charge dated 22nd March, 2002 was issued in terms of Rule 36 of the 2001 Rules.

The said charge-sheet was followed up by an enquiry, wherein, by a final order dated 13th July, 2002, the petitioner was awarded a punishment of withholding one increment for a period of one year which will have the effect of postponing his future increments of pay. Challenging the aforesaid order, the petitioner had preferred an appeal. By an order dated 27th February, 2003, the Appellate Authority had dismissed the said appeal. The petitioner had since, applied before the revisional authority. Such revisional application of the petitioner was disposed of by an order dated 12th/13th March, 2004, whereby, the Inspector General, NES, considering the infirmities in the enquiry proceedings directed a de novo enquiry to be conducted from the stage of appointing another enquiry officer, by examination of witnesses, after giving reasonable opportunity to the petitioner. Consequentially, the final order dated 13th July, 2002 passed by the Disciplinary Authority and the order passed by the Appellate Authority dated 27th February, 2003 were set aside.

Since then, a fresh enquiry was held. The petitioner was duly supplied with the report of the enquiry by a cover of letter dated 22nd September, 2004, to which the petitioner had made a representation. Ultimately, by an order dated 11th November, 2004, a final order was passed, thereby, awarding a penalty of withholding one increment for a period of one year without cumulative effect, which shall not have any effect of postponing his future increments of pay. Although, an appeal had been filed, the same was dismissed by order dated 28th September, 2006.

It appears that the Deputy Commandant by letter dated 1st December, 2006 had proposed to enhance the penalty inflicted on the petitioner by observing the follows:

“You were dealt under Rule-37 of CISF Rules-2001 and awarded the penalty of “WITHHOLDING OF ONE INCREMENT FOR A PERIOD OF ONE YEAR WHICH WILL NOT HAVE EFFECT OF POSTPONING FOR HIS FUTURE INCREMENT OF PAY” for unauthorized OSL for 18 days w.e.f. 10.07.2006 to 27.07.2006 vide this office final order No. V-15015/CISF/BDAP/Disc/2006-3457 Dated 22.08.2006.

It is therefore, proposed to regularize your absence period under rule 25(1) of CCS(Leave) Rules read with FR-17 treating the entire OSL period as un-authorized absence and entailing loss of pay for such absence with debit of equal numbers of HPL and excess with EOL (without medical certificate).

Your are hereby given an opportunity to submit your representation, if any, as to why your absence period should not be regularized as per proposal made in part 2 above. Your representation, if any, should reach the undersigned within 07 days from the date of receipt of this notice, failing which it will be presumed that you have nothing to represent against the proposal made as per para 02 above and the same is acceptable to you.”

Upon receipt of the petitioner’s representation, the same has, however, not been given effect to. Although, a revision was filed, by office order dated 8th June, 2006 the same was dismissed. Being aggrieved, the present writ petition has been filed.

Mr. Mahapatra, learned advocate appearing for the petitioner, submits that the initial proceeding was initiated under the 1969 Rules, wherein, the petitioner had been exonerated. However, at the instance of the revising authority, fresh proceedings were initiated under the 2001 Rules, which is impermissible in law. It is submitted that the Commandant, on his own had issued another charge-sheet on the self-same cause of action and the fresh charge-sheet was issued under Rule 36 of the 2001 Rules, which is also not permissible in law. No opportunity to show-cause was given to the petitioner at the time of issuance of the fresh charge-sheet. In support of his contention, he has placed reliance on a judgment delivered by a Division Bench of this Hon’ble Court in the case of Union of India & Ors. v. M.D. Barman, reported in 2017 (1) CLJ (Cal) 1, as also a judgment delivered by the Hon’ble Supreme Court in the case of Lav Nigam v. Chairman & Md, ITI Ltd. and Another, reported in (2006) 9 SCC 440.

By relying on the aforesaid two judgments, it is submitted that the entire initiation of proceeding by the respondents is bad in law and the same cannot be sustained. The same stands vitiated not only on account of violation of the principles of natural justice but also on account of irregularity in procedure committed by the authorities. Having regard to the same, Mr. Mahapatra submits that the present writ petition should be allowed and the entire proceeding including the final order of punishment should be set aside.

Per contra, Mr. Chatterjee, learned advocate appearing for the respondents, by placing reliance on the original records of the case, submits that there is no irregularity on the part of the revisional authority in assuming jurisdiction in this matter under Rule 54 of the 2001 Rules. It is still further submitted that the revisional authority had acted in terms of the provisions contained in Rule 54 of the 2001 Rules which not only permits the said revisional authority to confirm/modify but also to set aside the order passed by the Disciplinary Authority. In this case, it had set aside the order passed by the Disciplinary Authority, thereby, directing initiation of fresh proceeding. Mr. Chatterjee submits that there is no irregularity on the part of the revising authority in taking such a decision. The petitioner was given full opportunity to participate in the proceeding. The petitioner had duly participated in such proceeding. According to him, there is no denial of the principles of natural justice and this Hon’ble Court is not called upon to re-appreciate evidence. As such, no interference is called for and the writ petition deserves to be dismissed with costs.

Heard the learned advocates appearing for the respective parties and considered the materials on record.

From the admitted facts on record it would appear that although, the petitioner was sanctioned earn leave for 35 days from 16th March, 2001 to 19th April, 2001 the petitioner did not report back for duty. The petitioner claims that he was suffering from heart ailments. The doctor who was treating the petitioner had referred the petitioner to Indira Gandhi Institute of Medical Science. Later he was treated by an Assistant Civil Surgeon at Madhupur. The petitioner claims to have informed the authorities on 19th April, 2001 and had also sought for an extension. After being declared fit, he had reported for duty on 20th May, 2001 and had also requested the authorities to regularise his absence.

Records reveal that by issuing a memorandum of charge-sheet dated 12th September, 2001 a disciplinary action was initiated against the petitioner under Rule 35 of the CISF Rules, 1969. The description of the Articles of charge is extracted herein below:

“Description of Article of charge against No. 994720027 SI/Exe. Mani Kant Singh of CISF Unit ONGC, Jorhat. No.-994720027 SI/Exe. Manikant Singh of CISF Unit ONGC, Jorhat, Sanctioned 35 days E/L wef 16.03.2001 to 19.04.2001 with eligible permissions. On expiry of leave he supposed to rejoin duty on 20.04.2001 (F/N). But he failed to do so and remained OSL wef 20.04.2001, without the period permission of the competent authority. On 20.05.2001 (F/N) Individual rejoined duty after 30 days OSL. The above act on the part of CISF No.-994720027 SI/Exe – Manikant Singh is gross misconduct, Negligence of duty and carelessness which is unbecoming of a member of the disciplined armed force. Hence the charge.”

The petitioner had duly responded to the same. The competent authority (Sector Commander) by an order dated 29th September, 2001 by taking a lenient view had exonerated the petitioner from the charges.

It appears that Commandant by notice dated 14th January, 2002, despite acknowledging that the petitioner was under treatment, however, as according to him since, nothing serious had happened to the petitioner, which had compelled him to stay back, in exercise of powers conferred under Rule 54 of the CISF Rules, 2001 had called the petitioner to show-cause why he should not be dealt with under Rule 36 of the 2001 Rules for his unauthorised overstay from leave with effect from 20th April, 2001 to 19th May, 2001.

Although, by communication dated 24th January, 2002, while explaining his absence the petitioner had objected to the same, however, by order dated 20th March, 2002, by concluding that the petitioner had made irrelevant pleas in his written representation and by observing the plea set up to be concocted, set aside the proceeding drawn under Rule 35 of the CISF Rules, 1969 and directed fresh proceeding to be drawn up under Rule 36 of the Rules of 2001 by, inter alia, observing as follows:

“6. On considering the pros and cons of the case, it is found that the charged member has made irrelevant pleas in his written representation to cover up his fault. The concocted pleas putforth by him has no bearing at all. I find that the disciplinary authority in exonerating the charged official has not eveluated the guilt of the charged member judiciously. Therefore, I am of the opinion that the disciplinary authority has not analyzed the nature of facts deeply and thoroughly. The representation of the charged member against the show cause notice is not convincing.

Therefore, the undersigned in exercise of powers conferred on me under Rule-54 of CISF Rules, 2001 set-aside the proceedings drawn under rule-35 of CISF Rules, 1969 in which No. 994720027 SI/Exe Manikant Singh was exonerated from the charge and further confirm the proposed action that a proceeding under rule-36 of CISF Rules, 2001 be drawn against the charged member for his unauthorised overstayal from leave wef. 20-04-2001 to 19-05-2001.”

The question that falls for consideration is whether the commandant upon setting aside the previous proceeding initiated under Rule 35 of the CISF Rule, 1969 was competent to initiate fresh proceeding in respect of the self-same cause of action under Rule 36 of the Rules of 2001.

To appropriately appreciate the powers of the commandant to initiate fresh proceeding under Rule 54 of the 2001 Rules, it is necessary to consider the same.

Records reveal that the Commandant in exercise of powers under Rule 54 of the 2001 Rules after having set aside the previous proceeding had initiated a fresh proceeding by issuing a fresh charge-sheet dated 22nd March, 2002, and including therein fresh details and additional statement of imputation and misconduct.

It is clearly evident from the above that the aforesaid charge-sheet is based on the order dated 20th March, 2002. In this context, it must be noted that the original Disciplinary Proceeding was initiated under the CISF Rules, 1969. The Rules of 2001 appears to have been published in Gazette of India on 5th November, 2001. Although, the repeal and saving clause provide that anything done or action taken under the 1969 Rules, shall be deemed to have been done under the 2001 Rules, Rule 54 of the 2001 Rules did not and could not have authorised the Commandant to initiate a fresh proceeding, by issuing a fresh charge-sheet under the 2001 Rules on the selfsame cause of action of the previous charge-sheet issued under the 1969 Rules.

The power of the Disciplinary Authority/Superior Authority to differ with the findings of the Enquiry Authority and the manner of exercise of power to propose imposition of punishment has been explained in the case Lav Nigam (supra). In paragraphs 11 and 12, the Hon’ble Supreme Court has been pleased to observe as follows:

“11. In Punjab National Bank v. Kunj Behari Misra a Bench of this Court considered Regulation 7(2) of the Punjab National Bank Officer Employees' (Discipline and Appeal) Regulations, 1977. The Regulation itself did not provide for the giving of any notice before the disciplinary authority differed with the view of the enquiry officer. This Court held: (SCC p. 97, para 19)

“The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7(2). As a result thereof, whenever the disciplinary authority disagrees with the enquiry authority on any article of charge, then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the enquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the enquiry officer. The principles of natural justice, as we have already observed, require the authority which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer.”

This view has been reiterated in Yoginath D. Bagde v. State of Maharashtra . In this case also Rule 9(2) of the Maharashtra Civil Services (Discipline and Appeal) Rules, 1979 did not specifically provide for a disciplinary authority to give an opportunity of hearing to the delinquent officer before differing with the view of the enquiry officer. The Court said: (SCC p. 758, para 29)

“But the requirement of ‘hearing’ in consonance with the principles of natural justice even at that stage has to be read into Rule 9(2) and it has to be held that before the disciplinary authority finally disagrees with the findings of the enquiring authority, it would give an opportunity of hearing to the delinquent officer so that he may have the opportunity to indicate that the findings recorded by the enquiring authority do not suffer from any error and that there was no occasion to take a different view. The disciplinary authority, at the same time, has to communicate to the delinquent officer the ‘tentative’ reasons for disagreeing with the findings of the enquiring authority so that the delinquent officer may further indicate that the reasons on the basis of which the disciplinary authority proposes to disagree with the findings recorded by the enquiring authority are not germane and the finding of ‘not guilty’ already recorded by the enquiring authority was not liable to be interfered with.””

In this case, it is noticed that the Superior (Competent) Authority, while disagreeing with finding of the Disciplinary Authority and while setting aside the same had proposed a fresh enquiry under the 2001 Rules. This, in my view, was not permissible, the Commandant could not have while disagreeing with the findings of the enquiry, set aside the same for holding a fresh enquiry, in respect of the original cause of action by issuing a new charge-sheet.

It is well settled that no person can be vexed twice for same offence. Admittedly, the Commandant as the superior authority while differing with finding of the Disciplinary Authority did not propose any punishment by giving his tentative findings. The Commandant had in fact expressed his final opinion when he had concluded that the petitioner had put forth concocted pleas to cover up his fault. The consideration for setting aside the proceeding was the non-evaluation of the guilt of the petitioner. As such, the petitioner was already held guilty by the Commandant when the order dated 20th March, 2002 was passed.

Issuance of a fresh charge-sheet was obviously made with the intent of improving the previous charge-sheet based on the enquiry already held. In my view, the lacuna, if any, in the previous proceeding cannot be permitted to be cured by issuing a fresh charge-sheet. The aforesaid appears to be a substantive defect which cannot be cured.

For reasons morefully indicated herein above since, no fresh charge-sheet could be issued to charge the petitioner for the same offence which had already been decided, the charge-sheet dated 22nd March, 2002 cannot be sustained. As a sequel thereto all subsequent steps including the final order dated 11th March, 2004 and the Appellate Order dated 26th May, 2005 cannot be sustained. The same are accordingly, set aside and quashed.

With the aforesaid observations and directions, the writ petition being WPA 13155 of 2007 is allowed.

There shall be no order as to costs.

Urgent Photostat certified copy of this order, if applied for, be given to the parties on priority basis upon compliance of requisite formalities.