Harihar Prasad V. Union of India, Ministry of Home Affairs and Director General, Central Industrial Security Force and Ex - Commandant, CISF, Government of India, Ministry of Home Affairs and Group Commandant, Central Industrial Security Force, HEC, Ranchi and Commandant, Central Industrial Security Force, 04th Reserve Vahini, Ranchi and Group Commandant, CISF, Hyderabad

CWJC/12082/2003

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Harihar Prasad, a former Lance Naik in the Central Industrial Security Force (CISF), was initially dismissed from service for allegedly beating a Constable, which was deemed gross misconduct. The Andhra Pradesh High Court set aside this dismissal, directing a reconsideration of the punishment but not awarding back wages. The authorities, however, treated the dismissal period as a break-in-service, affecting Prasad's promotions and benefits, contrary to the High Court's directions. Prasad's subsequent writ petition in Patna challenged this interpretation, leading to the current ruling which favored Prasad by aligning the implementation with the original High Court's directives.

• Counselvise Citation: [2009] 140 COUNSELVISE.COM (IT) 803550 (HC-PATNA)
• Appeal Type: Others
• Pronouncement Date: 21-07-2009
• Assessment Year: misc
• Other Referred Cases: Oil & National Gas Commission -Versus- Utpal Kumar Basu & Others (1994) 4 Supreme Court Cases 711, Hirday Narain -Versus- Income Tax Officer, AIR 1971 Supreme Court 33
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: DHARMESHWAR MISHRA
• Assessee Lawyers: DIWAKAR DWIVEDI; D K SRIVASTAVA
• Keywords: Continuity of service; Disciplinary Proceedings; Dismissal; Gross Misconduct; Writ petition

Judgement Text

"IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No 12082 of 2003 Harihar Prasad, son of Mukhdeo Prasad, resident of Village - Mustichak, P O - Pandooi, Dist - Jehanabad, Bihar, presently posted as Kangali, Khas Mahal, CISF, Bokaro, Dist - Bokaro - Petitioner Versus 1 Union of India, Ministry of Home Affairs through the Secretary, New Delhi - 110 001 2 Director General, Central Industrial Security Force, Lodhi State, New Delhi - 110 003 3 Ex - Commandant, CISF, Government of India, Ministry of Home Affairs, Anna Bux Naar, Madras 4 Group Commandant, Central Industrial Security Force, HEC, Ranchi, Jharkhand 5 Commandant, Central Industrial Security Force, 04th Reserve Vahini, Ranchi, Jharkhand 6 Group Commandant, CISF, Hyderabad - Respondents *** For the petitioner : M/s Diwakar Dwivedi, D K Srivastava, Advocates For the respondents : Mr Dharmeshwar Mishra, Advocate *** 5 21.07.2009 The petitioner was working as a Lance Naik in the Central Industrial Security Force in the State of Andhra Pradesh. It appears that in the night of 19.03.1988, petitioner allegedly beat up a Constable with lathi for which, after a departmental proceedings, he was dismissed from service treating it to be a gross misconduct and a gross indiscipline by order dated 29.02.1989. Petitioner challenged his dismissal order before the Andhra Pradesh High Court. The Andhra Pradesh High Court, in Writ Petition No 11688 of 1989 (Annexure-2), after hearing the parties, allowed the writ petition with certain directions on or about 09.11.1994. Against this, the respondents preferred an appeal being Writ Appeal No 133 of 1995 which was dismissed in limine on 2 23.02.1995. Thus, the order of the Andhra Pradesh High Court attained finality. The Andhra Pradesh High Court, inter alia, set aside the order of dismissal with liberty to pass fresh order with certain observations and directions. Authorities passed a de novo order. Petitioner, since his dismissal, had come back to his native village in Bihar and was residing there. On de novo fresh orders being passed, the same was communicated by letter dated 13th April, 1995 to the petitioner at his Village - Pandooi in the district of Jehanabad in this State (Annexure- 3). Being aggrieved by the order, as passed and communicated to the petitioner at Village - Pandooi in the district of Jehanabad, petitioner filed a writ petition before this Court being CWJC No 12282 of 1999 which was dismissed for default in appearance by the counsel on 22.06.2000. As there was no adjudication in the matter, stating the aforesaid facts, the present writ petition has been filed. Petitioner’s contention is simple and straightforward. He submits that even though the Andhra Pradesh High Court held that the charge of beating a Constable was proved, the said Court was of the view that the punishment of dismissal was grossly disproportionate. It, accordingly, set aside the order of dismissal and passed orders as hereunder : “… … …I therefore set aside the order of removal and direct the Disciplinary authority (the first respondent) to consider de novo the aspect relating to the quantum of punishment to be imposed against the petitioner and to pass appropriate orders within two months from the date of receipt of a copy of this order. In the circumstances of the case, I consider it just and proper not to allow any back wages to the petitioner for the period during which he has been out of service. If a decision is taken to reinstate 3 the petitioner by substituting some other punishment, the Disciplinary authority will pass appropriate orders with regard to the continuity of service, increments, etc in respect of the intervening period. The writ petition is allowed to the extent indicated above. No costs.” Petitioner submits that what the High Court had ordered was that the matter of punishment be reconsidered, dismissal being disproportionately high, High Court gave 2 further directions, (1) petitioner would not be entitled to back wages for the period he remained dismissed and (2) which is most important is that if the authorities decide to reinstate the petitioner then they will have to pass orders for continuity of service, increment etc in respect of the intervening period. But what the authorities have done by the impugned de novo order is that the period of dismissal has been treated as break- in-service, deprived petitioner of promotion and other pecuniary benefits which is in teeth of the High Court’s order. This is basically the petitioner’s grievance. On the other hand, Shri Dharmeshwar Mishra, learned counsel for the Union of India submits that the writ petition is not maintainable by this Court and secondly there being statutory appellate remedies available, this Court should not interfere though on merits, he very fairly finds it difficult to defend the order. Coming to the objection with regard to non-maintainability of the writ petition before this Court, Shri Mishra has placed reliance on the decision of the Supreme Court in the case of Oil & National Gas Commission -Versus- Utpal Kumar Basu & Others (1994) 4 Supreme Court Cases 711. In that case, the Apex Court has deprecated the manner in which the Calcutta High Court entertained writ petition. In 4 that case, the fact was that a Company of Kolkata had filed its tender papers at Delhi having read in the tender notice in the Times of India newspaper at Kolkata. The Tender Committee had to take a decision at Delhi. Negotiations and finalizations have to be done at Delhi. Still merely because the writ petitioner had read notice of tender in newspaper at Kolkata, the High Court asserted its jurisdiction in the matter. That was deprecated and rightly so. In the present case, it is not in dispute that the petitioner, after dismissal, was permanently residing at Village - Pandooi in the district of Jehanabad in this State to the knowledge of the respondents. Having passed the order impugned, the respondents themselves communicated the same to the petitioner at Village - Pandooi, district - Jehanabad directing him to join his duties. The order was duly communicated at petitioner’s permanent residence with certain directions. This, in my view, constitutes sufficient part cause of action within jurisdiction of this Court. As is well known, cause of action is a bundle of facts and by virtue of Article 226 (3) of the Constitution, any High Court in which a part cause of action arises can assume jurisdiction in the matter. In a matter, there may be cases where several High Courts simultaneously would have jurisdiction in the matter. Thus, in my view, the decision as relied upon, is clearly distinguishable and does not apply. I hold that the writ petition is maintainable. Now coming to the question of appellate remedies. It is well settled principle that availability of alternative remedy is not an absolute bar in entertaining the writ petition especially when this objection is 5 being raised after more than 6 years of the filing of the writ petition. Merely stating the objection in the counter affidavit is of no avail unless the objections are pressed into service. It was never so pressed. It is well settled that such a belated objection should not be entertained. Reference may be made to the case of Hirday Narain -Versus- Income Tax Officer, AIR 1971 Supreme Court 33 and series of cases on that line. Further, in view of their being no controversy of fact at this later juncture, I do not feel persuaded to relegate the petitioner to alternative remedy. Coming to the merit of the contention, a reference to the order of the Andhra Pradesh High Court would show that it had given 2 directions, having set aside the order of dismissal, (1) that the petitioner would not be entitled to back wages for the period he remained dismissed and (2) if the authorities interfered in the matter and proposed to impose a lesser punishment, they have to then pass an order for continuation of service and promotion. This clearly meant that the period of dismissal would be treated as continuous service without monetary remuneration. The Court did not leave this aspect of the matter to the discretion of the authority. The authorities apparently took it otherwise. The use of the word “appropriate order” in the judgment of Andhra Pradesh High Court has been taken to be a discretion given to the authorities to pass an order or not to pass an order. That, in my view, is not correct. The High Court was trying to avoid further confusion and litigation making it clear that as dismissal order was being set aside, petitioner would consequently be entitled to continuity 6 of service and promotion. The impugned order has done just otherwise. It has not only ordered for break-in-service, it has deprived petitioner of promotion and other monetary benefits as well. The order impugned is, thus, clearly in conflict with the order of the Andhra Pradesh High Court and directions contained therein. The order, in so far as it is in conflict as noted above, cannot be sustained. The order is, thus, set aside. The writ petition is allowed with the aforesaid direction. M.E.H./ (Navaniti Prasad Singh) "