Narender Kumar @APPELLANT@Hash Union Of India &Ors.

,,

Through the medium of the instant petition, the petitioner seeks quashing of Office Memorandum No. E-31014/MACP/IOC (H)/Admn. II/II-2138",,

dated 13.07.2011 (Annexure-P1) whereby his request made in the representation was rejected by referring to the letter of CISF Head Quarter,,

regarding rejection of the representation. He also seeks quashment of Order dated 18.09.2009 (Annexure P-3) issued by Assistant Commandant,",,

CISF Unit, PGICL, Wagoora (respondent No.4), Communication dated 14.01.2008 (Annexure P-4) issued by respondent No.4 and Final Order dated",,

06.09.2007 (Annexure P-5) issued by respondent No. 4 by which the punishment of censure was awarded to him.,,

2.The facts as projected in this petition, briefly put, are that the petitioner joined CISF on 27.06.1987 on the post of Constable. After joining the CISF,",,

he completed his training at BSL Bokaro,",,

i. Whether approved for reporting in Press/Media        :    Yes/No,,

ii. Whether to be reported inÂ,,

 Digest/Journal              :     Yes/No,,

Bihar and after completion of his training; he was posted at Sri Harikote, Andhra Pradesh. During his long service career, he has performed his duty",,

at various places all over India, i.e., at Hindustan Petroleum Corporation Ltd. Refinery, Visakhapatnam, Parichha, Thermal Power Project, Jhansi,",,

Indian Oil Complex, Shakur Basti, Delhi National Fertilizers Ltd. Nangal (Punjab), Industrial Retraining Institute, Naini, Allahabad, (U.P), Indian Oil",,

Corporation, Panipat (Haryana), PGCIL, Wagoora (J&K), Iron & Steel Plant, Burnpur (West Bengal) and presently he is posted at India Oil",,

Corporation, Haldia, West Bengal. On account of his hard work, utmost devotion, dedication and unblemished service record, there has been no major",,

punishment to his discredit. Because of his excellent performance of duties, the petitioner was awarded with more than 40 Commendations, entries",,

of excellent service and Good Turnout Certificate issued by the DG. He was also awarded with seven days Special Leave with Cash award too.,,

It is contended by the petitioner that he was transferred to PGCIL, Wagoora (J&K) on 05.12.2004 and the respondent No.4 joined PGCIL",,

Wagoora somewhere in the year 2007 on the post of Assistant Commandant. It is further submitted that since December 2005 to December, 2006",,

there was nothing adverse against him and he was performing his duties excellently to the full satisfaction of his superiors.Â,,

Further case of the petitioner is that after respondent No.4 joined as Assistant Commandant, he started having grudges against him inasmuch as he",,

started harassing him on one pretext or the other. In order to cause damage to the service career of the petitioner, respondent No.4 with his deep",,

rooted prejudice and bias against him issued an Advisory Memo dated 11.07.2007 without even calling any explanation, reply or representation on the",,

most unfounded allegations. Advisory was in the following manner:-Â,,

“from reliable sources, it is learnt that you are visiting off and on this officers of PGCIL Management and maintaining relations with them, which is",,

not desirable from the members of the Force. It is also learnt that some of the personnel from the management staff are visiting your residence. Being,,

member of the Armed Force of the Union, this act on your part speaks your indiscipline activity on your part and a defaming factor for the Forceâ€.Â",,

It is stated that the allegations leveled in the Advisory Memo were totally false, frivolous and concocted. It is further contended that respondent",,

No.4 again served another Memo dated 03.08.2007 thereby alleging therein that the petitioner was found absent from his duty at 7.45 AM on,,

17.07.2007 when checked by him despite that previously also the petitioner had been given warning/instructions by him. It is contended that except for,,

the Advisory Memo dated 11.07.2007 containing false allegations, no such warning/instructions were issued to the petitioner, because the petitioner",,

was not lacking anywhere.,,

It is further case of the petitioner that the Memo dated 03.08.2007 was totally false. He had fully explained that on that day, he was suffering from",,

acute dysentery inasmuch as that his trouser and underwear had got dirty and at 7.40 AM, he had to go to his quarter situated just near to the duty",,

point to change the clothes. It is submitted that the distance between the quarter and the post was just about 9 meters, thus, the petitioner fully",,

explained that there was no laxity on his part. It is stated that the medicine was taken by him on the advice of the concerned doctor without taking any,,

meal, due to which he suffered from dysentery. It is submitted that in the reply filed by the petitioner, he explained the true and correct facts of the",,

matter, however, no order in pursuant to the reply was passed/issued by respondent No.4 and on the contrary, respondent No.4 again out of prejudice",,

and bias issued Memorandum dated 16.08.2007, thereby proposing to initiate disciplinary proceedings against the petitioner under Rule 37 of the CISF",,

Rules, 2001 on the basis of the charges leveled in Memo dated 03.08.2007. Vide Memorandum dated 16.08.2007, the petitioner was directed to submit",,

his representation against the allegations.,,

It is further stated that in response to the Memo dated 16.08.2007, the petitioner submitted his reply dated 23.08.2007, wherein the petitioner fully",,

explained that he had already submitted his reply in response to the Memo dated 05.08.2007 and the same was his reply to the Memo dated,,

16.08.2007 as well. The petitioner further requested that keeping in view the facts of his sickness, he may be absolved from the charges. Thereafter,",,

respondent No. 4 passed Final Order dated 16.09.2007 thereby on the one hand he accepted the contention of sickness of the petitioner as correct and,,

on the other hand, imposed the punishment of censure upon him. It is submitted that the said Final Order is self-contradictory, in that, when the",,

explanation/submission of the petitioner have been found satisfactory, there is no reason to award punishment of censure to the petitioner.Â",,

It is further contended that respondent No.4 again issued another Memo dated 14.01.2008, whereby the petitioner was informed that he has been",,

rated Below Average on the allegations: “he is in habit of bypassing department and maintained relation with the management.†It is submitted by,,

the petitioner that Memo dated 14.01.2008 was totally false, frivolous and unfounded and submitted that he explained that the ACR has been recorded",,

out of prejudice, bias, casteism and discrimination to him. The representation of the petitioner was rejected vide order dated 13.05.2008. It is also",,

submitted by the petitioner that the impugned order dated 13.05.2008 shows that the same is non-speaking and the contentions and submissions made,,

by him had neither been considered by the Authority nor taken care of, while passing the said order and, thus, the representation has been rejected in",,

most mechanical manner without application of mind.Â,,

Thereafter, the petitioner submitted a representation to the DIG, North-Zone, Saket, New Delhi against the impugned order, wherein he explained",,

as to how he was meted out with hostile discrimination by respondent No.4 and how his ACR has been deliberately downgraded. Besides this, the",,

petitioner also explained his contentions of innocence. In response to the representation of the petitioner dated 13.06.2008, he was informed vide",,

Memo dated 16.12.2008 that there is no provision for second appeal and the representation was not considered.Â,,

It is further submitted by the petitioner that he was eligible for his promotion to the post of HC/GD in the year 2009 but his name was not,,

considered, while the Constables who stood juniors to him were promoted. The petitioner again made a representation dated 09.04.2009 to respondent",,

No.2 wherein he explained that his ACR has been deliberately down-graded and he is totally innocent. Thereafter he was informed vide order dated,,

S.No.,Reason,Letter No. & Date

01.,"He was found without of

B.P.Jacket on dated

24.04.2007 at about 1700

at Watch Tower No. 06

when checked by

Commandant, HEP, Uri

during visit.","Coy.Commander

Letterdated

27.04.2007. He also

accepted not to repeat such

mistake in future.

02.,"Quarreled with Constable

A.G.Lone on 25.05.2007 in

family accommodation","Verbally warned in orderly

room out to repeat such

mistake in future.

A03d.visor

officers

maintain

staff are","y memo regarding off and on

of PGCIL management and

ing liaison with them and som

visiting his residence.","tAhedvisory      Â

memo

e of the

dated 11.07.2007

04.,"Found absent from duty

post watch tower No.11 on

17.07.2007 at about 0745

hours when checked by

Asstt.

Commandant.","Awarded Censure vide

F.O. No. 134 dated

06.09.2007

05.,"Quarreled with the family of

Constable M.A. Dar on

31.8.2007 with the help of

his wife.","Warned

           Â

vide

Letter No. 138 dated

7.9.2007 with a advise not

to repeat such

mistake in future

Admittedly, in the instant case, Rule 37 has been complied with in breach. From the perusal of the records, it is apparent that a clarification was",,

sought from the petitioner by the respondent No.4 vide its Communication dated 3rd October, 2007 which was replied in detail by the petitioner.",,

Subsequently, memorandum of charges was served on the petitioner on 16th August, 2007 and in response thereof, the petitioner reiterated his stand",,

which he had taken while submitting his clarification with regard to his temporary absence from duty. The Disciplinary Authority without holding any,,

inquiry into the charge and without providing any opportunity to the petitioner to substantiate his defense taken in his reply straightway proceeded to,,

impose a minor penalty of “censure/reprimandâ€​.Â,,

That being the position, the final order imposing the minor penalty upon the petitioner too cannot sustain. Accordingly, the final order dated",,

06.09.2007 impugned in the writ petition is quashed, leaving it open to the respondents to hold an inquiry in terms of Rule 37 of the CISF Rules in",,

accordance with the norms laid down for holding an enquiry and pass appropriate order as may be warranted. Since this court has found both the,,

orders i.e. one by Commandant in appeal pertaining to the downgrading of ACRs for the year 2007 and the second pertaining to the imposition of,,

minor penalty bad in the eye of law, as such, the respondents are directed to consider the case of the petitioner for promotion to the post of Head",,

Constable (GD) as per his seniority and in accordance with the Rules, the adverse ACRs for the year 2007 and order of imposition of penalty of",,

reprimand notwithstanding. The consideration of the petitioner for promotion, however, shall be subject to the outcome of the fresh inquiry, if any,",,

initiated by the respondents and also the disposal of the appeal by the Commandant against the recording of the adverse ACRs for the year 2007. The,,

consideration of the case of the petitioner for his promotion to the post of Head Constable (GD) would depend upon disposal of the appeal by the,,

Commandant CISF. In case the appeal is decided in favour of the petitioner and adverse remarks made against him in the ACRs of 2007 are quashed,",,

the case of the petitioner shall be considered for promotion to the post of Head Constable (GD) with retrospective effect, as claimed by the petitioner.",,

He shall also be entitled to consequential benefits.Â,,

The writ petition is disposed of in the above terms.,,