Union Of India And Ors vs Kedar Nath Sharma

The aforementioned I.A. has been filed for condonation of delay of 57 days in filing the present appeal.

Considering the grounds taken in the limitation petition, showing the sufficient reasons for not filing the instant appeal within stipulated time, delay of 57 days in filing the present appeal is hereby condoned.

Heard Mr. S.D. Sanjay, learned ASG for the appellants.

The present Letters Patent Appeal has been preferred against the judgment dated 13.2.2018 passed in C.W.J.C. No. 9636 of 2003, whereby the learned Single Judge quashed the order of punishment dated 21.12.1999, passed by the Commandant, Central Industrial Security Force (hereinafter referred to as 'CISF), Unit Nalco Angul, appellate order dated 6.7.2000, passed by the DIG, CISF as well as the revisional order dated 21.12.2001, passed by the IG, CISF, as contained in contained in Annexures 6, 8 and 9 respectively to the writ application.

The factual matrix of the case is that the respondent-writ petitioner was appointed as Driver Constable on 15.6.1988 in the CISF. While the respondent writ petitioner was posted at Angul Nalco, Orissa, made a complaint on 8.8.1998 against the Head Constable/Driver Ashok Kumar and other senior officers of the Unit with regard to using the vehicle of the unit for carrying liquor. Initially an enquiry was conducted by the Deputy Commandant, CISF who came to the conclusion vide order dated 6/7.10.1998 (Annexure 2 to the writ application) that taking a lenient view in the matter, the departmental proceeding has not been initiated but an advisory was issued and thereafter a warning dated 30.12.1998 (Annexure 3 to the writ application) was communicated by the Commandant, CISF Unit, Nalco Angul to the respondent that if the respondent will repeat the said conduct, stern disciplinary action will be taken. Subsequently, a proceeding was initiated and charges were framed by the Commandant, CIFS being the competent authority on 4.9.1999 which are as follows:

Article-I

No. 883110023 HC/Dvr K.N. Sharma of CISF Unit Nalco Angul has submitted a complaint dated 8.8.98 making false and misleading allegations against HC/Drv Ashok Kumar, SI/Exe A. Bishi, Insp/Exe M. Biswal and other senior officers of this Unit.

Article-II

No. 883110023 HC/Dvr K.N. Sharma made xerox copy of Official documents i.e. Log Book of Jeep No. OR-06B-4997 without permission of competent authority with malafide intention.

Article-III

No. 883110023 HC/Dvr K.N. Sharma while detailed as driver of Jeep No. OR-06B-4997, filled up the Log Book of said jeep on his own on 23.7.98 and specifically mentioned in the column "brief purpose" that "DARU KHARIDNE" (in Hindi) with an ill motive to defame his senior officers and colleague.

Article-IV

No. 883110023 HC/Dvr K.N. Sharma is a habitual offender of disobeying the lawful orders of his superiors and indiscipline activities as he has been awarded 05 punishments during his service period as per his service record."

The Commandant, CISF imposed punishment upon the respondent in the following terms -

"REDUCTION OF PAY TO INITIAL STAGE I.E. FROM RS. 3795/- TO RS. 3200/- IN THE TIME SCALE OF PAY FOR A PERIOD OF THREE YEARS WITH IMMEDIATE EFFECT. IT IS FURTHER DIRECTED THAT HE WILL EARN INCREMENTS OF PAY DURING THE PERIOD OF REDUCTION AND THAT ON EXPIRY OF THIS PERIOD. THE REDUCTION WILL NOT HAVE THE EFFECT OF POSTPONING HIS FUTURE INCREMENT OF PAY, on No. 883110023 HC/Dvr K.N. Sharma of CISF Unit NALCO Angul. The period of suspension from 27.8.99 to the date of receipt of this order, is treated as non-duty for all purposes and he will not be paid any more pay and allowance except the subsistence allowance already paid during the period of suspension."

The respondent challenged the said order of punishment in appeal which was rejected whereafter the respondent preferred Revision No. 58 of 2001 before the Inspector General, CISF which too was dismissed vide order 21.12.2001 as contained in Annexure 9 to the writ application. The said revisional order was challenged in writ application being CWJC No. 9636 of 2003 and the learned Single Judge came to the conclusion that for the same set of allegations, the advisory dated 6/7.10.1998 and the warning dated 30.12.1998 was issued and ultimately the order of punishment dated 12.12.1998 was passed, which is not permissible in law and is violative of the provision of Article 20(2) of the Constitution of India which postulates that no person shall be prosecuted and punished for the same offence more than once. The writ application was allowed. Hence, the present Letters Patent Appeal by the Union of India.

Mr. S.D. Sanjay, learned senior counsel appearing for the Union of India submits that the warning neither comes within the provision of major penalty as incorporated under Rule 34 of Central Industrial Security Forces Rules, 2001 nor under Rule 35 thereof as petty punishment, hence the principle of double jeopardy will not apply. Moreover, the respondent repeated his conduct of levelling false allegations against the superiors, as a result, the authorities in civilized force, decided to conduct enquiry and for all the four charges, enquiry was conducted and on being satisfied that there are materials on record to substantiate the charges, passed the order of punishment which was affirmed by the appellate as well as revisional authorities of the CISF.

From perusal of the records, we find that initial charge of making complaint with regard to use of the departmental vehicle by the members of the force for carrying liquor has been split up into four charges. Initial complaint filed by the respondent is dated 8.8.1998 and all the charges either connected with the same or otherwise are of the period prior thereto. The order dated 6/7.10.1998 passed by the Deputy Commandant, CISF, Unit Nalco Angul as contained in Annexure 2 to the writ application suggests that the preliminary enquiry was conducted with regard to the complaint made by the respondent for misuse of the vehicle of the force and it was found false and thereafter the Commandant came to the conclusion that the respondent ought to have been proceeded but keeping in view his future career, a lenient view was taken and he was issued warning with a direction that the proceeding will be initiated if he repeats the said conduct. Relevant portion of the order dated 6/7.10.1998 passed by the Deputy Commandant, CISF reads ad follows:

"03. उक्त विषयान्तर से स्पष्ट है कि आपके द्वारा अपने उच्च अधिकारी जैसे कि आपके सहकर्मी पर लगाये गये आरोप पूर्णतः गलत प्रतीत होता है। संघ के बल का सदस्य होने के बावजूद भी यह आपका बल का सदस्य न होने का परिचय है। आपके उक्त दुराचरण के लिये यद्यपि आपके विपरीत गम्भीर कायवाही करने को आवश्यक्ता हैं जबकि मैने आपके भविष्य को देखते हुये उदारता पूर्वक विचार करते आपको अपनी आदतों को सुधारने का एक मौका देता हूँ और चेतावनी यह देता हूँ कि इसको पुनरावृति होने पर आपके विपरीत कायवाही की जायेगी। जैसे कि अनुरोध कक्ष में इस मामले के सम्बन्ध में अधोहस्ताक्षरी द्वारा आपको अवगता भी कराया जा चुका है।"

It appears that subsequent thereto, vide letter dated 30.12.1998, the respondent was communicated a warning with a further stipulation to desist from making false allegation against other members of the force, otherwise stern disciplinary action will be taken against him.

The above material on record suggests that the proceeding was to be initiated for a subsequent repeated conduct but the charges have only been framed by splitting up the same charge of the complaint made by the respondent dated 8.8.1998 which is not only against the principles of punishing a person twice for the same charge but it is contrary to the own decision of the competent authority, which clearly stipulated that the regular proceeding or disciplinary proceeding will be initiated for the further similar conduct of levelling false allegation against the other members of the force. There is no charge framed of repeating the conduct by the respondent.

In the circumstances, we do not find any infirmity in the impugned order of the Single Judge.

This Letters Patent Appeal is, accordingly dismissed.