SRI PRATAP KAIVARTA V. THE UNION OF INDIA and ORS

WP(C)/6481/2007

AI Insights

The case involves a writ petition filed by a petitioner, a Constable in the Central Industrial Security Force (CISF), challenging the disciplinary proceedings and penalties imposed on him. The petitioner was accused of misconduct during election duty in Uttar Pradesh, which included abusive behavior towards his superiors and attempts to assault a colleague. The disciplinary authority found him guilty based on an enquiry report, which the petitioner contested, citing the non-examination of crucial witnesses and inconsistencies in the testimonies. The appellate authority upheld the penalty, leading to the filing of the writ petition. The court, after examining the procedural lapses and the principles of natural justice, set aside the penalty and the appellate order.

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 732404 (HC-MISC)
• Appeal Type: Others
• Pronouncement Date: 02-06-2015
• Assessment Year: misc
• Other Referred Cases: Oil and Natural Gas Commission -Vs- Utpal Kumar Basu, Navinchandra N Majithia -Vs- State of Maharashtra and Others, Om Prakash Srivastava -Vs- Union of India, Rajendran Chingaravelu -Vs- R K Mishra, Additional Commissioner of Income Tax, Nawal Kishore Sharma -Vs- Union of India, Hardwari Lal -Vs- State of Uttar Pradesh and Others
• Laws Referred To: Article 226 of the Constitution of India, Central Industrial Security Force Rules, 2001
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: C BARUAH
• Assessee Lawyers: A TAHBILDAR
• Keywords: Disciplinary Authority; Gross Misconduct; Natural Justice; Penalty; Procedural fairness; Reduction of Pay; Indisciplined behaviour
• Section: 36

Judgement Text

"WP(C) 6481/2007 BEFORE HON’BLE MR JUSTICE UJJAL BHUYAN Case was heard on 02.06.2015 and today is fixed for delivery of judgment . 2. Heard Mr A Tahbildar, learned counsel for the petitioner and Mr C Sharm a Baruah, learned Central Government Counsel (CGC) for the respondents. 3. By filing this petition under Article 226 of the Constitution of India, petitioner seeks quashing of order dated 08.08.2007, passed by the disciplinary authority imposing penalty of reduction of pay by one stage for a period of 4 (f our) years on the petitioner. Further challenge made by the petitioner is to the order dated 25.09.2007, passed by the appellate authority, rejecting the appeal filed by the petitioner against the order of penalty and upholding the penalty imposed on the petitioner. 4. At the relevant point of time, petitioner was serving as Constable in th e Central Industries Security Force (CIFS) Unit ISP Burnpur in the State of West Bengal. Memorandum dated 07.05.2007 was issued by the Commandant, CISF Unit, IS P, Burnpur, informing the petitioner that an enquiry was proposed to be held aga inst him under Rule 36 of the Central Industrial Security Force Rules, 2001, (CI SF Rules, 2001) on the charge framed against the petitioner. Petitioner was aske d to submit his written statement of defence. The substance of the charge agains t the petitioner was that D Company of CISF Unit, ISP Burnpur to which petitione r belonged was detailed for election duty in connection with the Assembly Electi ons of 2007 in Uttar Pradesh. The company had camped at DM Public School, Gar (G haziabad). On 13.04.2007, petitioner was detailed for duty at Booth No. 136, whi ch was in a primary school at Khera of Gar Constituency. He came back to the cam p after completion of duty on 13.04.2007 at around 2200 hours. After reaching th e camp, he started abusing in the name of the Company Commander and when Constab le Dinesh Kumar objected to it, petitioner also abused Constable Dinesh Kumar an d attempted to assault him with his SLR without any provocation. Petitioner was accordingly charged with committing gross misconduct and indisciplined behaviour unbecoming of a member of a disciplined force like the CISF. Along with the mem orandum, a list of documents and a list of witnesses were annexed. 5. Petitioner submitted his written statement of defence on 24.05.2007. Pet itioner denied the allegation that he had used abusive language against the Comp any Commander and that he had also abused and tried to assault his colleague Con stable Dinesh Kumar. He stated that after the election duty was over he had come back to the camp along with Head-Constable Sultan Ali, Constable G Kuiry and Co nstable U K Dana, partly by police-vehicle and partly by walking. After reaching the camp he went inside and unloaded his bedding materials etc. in his room. Wh en he came out of the gate to help Head Constable Sultan Ali, Constable Dinesh K umar abused them and tried to assault all of them by saying that when they had s een his vehicle why they should come back walking. He, therefore, requested the authority to accept his explanation and to drop the proceeding. 6. It appears that the written statement submitted by the petitioner was no t accepted. The Commandant acting as the Disciplinary Authority, thereafter, pas sed an order dated 26.05.2007, appointing Enquiry Officer as well as Presenting Officer to conduct enquiry against the petitioner. 7. Thereafter, enquiry was conducted and after completion of the enquiry, t he Enquiry Officer submitted his report dated 09.07.2007 before the Disciplinary Authority. In his report, the Enquiry Officer stated that the charge framed aga inst the petitioner was fully proved beyond any doubt. 8. A copy of the Enquiry Report was forwarded to the petitioner by the Comm andant vide the forwarding letter dated 13.07.2007. Petitioner was given liberty to make representation or submission against the report of the Enquiry Officer, whereafter, the Disciplinary Authority would take a suitable decision after con sidering the representation, if any. 9. Petitioner submitted representation dated 31.07.2007 before the Commanda nt, requesting him not to accept the report of enquiry. Besides pointing out var ious discrepancies in the report he also pointed out that at the time of the all eged incident, he had reached the gate of the camp (DM Public School) with Head- Constable Sultan Ali, Constable G Kuiry and Constable U K Dana, but the Enquiry Officer did not record the statements of Sri G Kuiry and Sri U K Dana. Statement of Sri Sultan Ali was recorded and relied upon. The complainant, PW-3, Constabl e Dinesh Kumar himself stated that no such incident as alleged had taken place b ut Enquiry Officer declared him to be a hostile witness. Therefore, finding of t he Enquiry Officer was not based on any evidence and prayer was made not to acce pt the same. 10. The Disciplinary Authority, however, accepted the report of the Enquiry Officer and vide order dated 08.08.2007, held the petitioner to be guilty of the charge. Accordingly, penalty of reduction of pay by one stage from Rs. 3,725/- to Rs. 3,650/- in the time scale of pay for a period of 4 (four) years was impos ed on the petitioner. It was further directed that petitioner would not earn inc rements of pay during the period of reduction and that on expiry of this period, the reduction would have the effect of postponing his future increments of pay. 11. Thereafter, petitioner was transferred to the CISF Unit in Oil India Lim ited (OIL), Duliajan, in the State of Assam, on 10.08.2007. 12. After joining at Duliajan, petitioner submitted statutory appeal dated 0 6.09.2007 before the appellate authority (DIG, CISF Unit, ISP, Burnpur) against the order of penalty dated 08.08.2007. However, vide the order dated 25.09.2007 passed by the appellate authority, the appeal filed by the petitioner was dismis sed. 13. Aggrieved, the present writ petition has been filed. 14. Contention of the petitioner is that the enquiry was conducted with a pr e-determined mind to hold the petitioner guilty. Petitioner did not abuse in the name of the Company Commander nor did he abuse or try to assault Constable Dine sh Kumar. In fact, Constable Dinesh Kumar, who was PW-3 and who denied that peti tioner had abused him or tried to assault him, was declared as hostile. It is co ntended that Constables G Kuiry and U K Dana, who were with the petitioner at t he relevant point of time as well as the sentry guard at the gate of the camp we re not examined by the Enquiry Officer. These witnesses were most vital and woul d have assisted the enquiry in arriving at the truth. Instead, the Enquiry Offic er placed undue reliance on the evidence of PW-1 and PW-4, which were not corrob orated at all by the other witnesses. Thus, the enquiry suffered from fundamenta l flaw which vitiated the finding arrived at and consequently, the penalty impos ed which was based on the enquiry report. 15. Respondents have filed counter affidavit. Stand taken in the affidavit i s that petitioner was given full opportunity of defending hlmself which he avail ed of. Principles of natural justice and procedural fairness were complied with in the course of the departmental proceeding including in the enquiry. In the en quiry, the Enquiry Officer found the petitioner to be guilty of the charge. On d ue consideration of the enquiry report as well as the response of the petitioner , the Disciplinary Authority held the petitioner to be guilty of the charge and imposed the penalty, which has also been affirmed in appeal. Therefore, there is no substance in the contention of the petitioner that the impugned penalty is u ntenable. Contending that there is no merit in the writ petition, respondents se ek dismissal of the same. A specific point has been urged by the respondents tha t at the relevant point of time petitioner was posted at Burnpur in the State of West Bengal. Penalty on the petitioner was imposed at Burnpur The appellate aut hority had decided the appeal in the State of West Bengal. Therefore, no cause o f action arose within the territorial jurisdiction of this Court and hence, on t he ground of lack of territorial jurisdiction, writ petition is not maintainable and is liable to be dismissed. 16. Learned counsel for the petitioner submits that the enquiry was conducte d against the petitioner with a pre-conceived mind. Disciplinary Authority as we ll as the Enquiry Officer were determined to hold the petitioner guilty and to i mpose penalty on him. There were no reliable or cogent witnesses to establish th e charge against the petitioner. PW-3, Constable Sri Dinesh Kumar, whom the peti tioner was alleged to have abused and tried to assault himself stated that no su ch thing had happened. He was then, declared as hostile witness. Relying entirel y on the evidence of PWs-1 and 4, the Enquiry Officer held that the charge again st the petitioner stood proved. Material witnesses were not examined which has f undamentally affected the prosecution story. Therefore, the finding of the Enqui ry Officer as well as the impugned penalty are wholly untenable and cannot be su stained. 17. Learned CGC on the other hand, submits that writ petition is not maintai nable since no cause of action had arisen within the territorial jurisdiction of this Court. The incident had occurred in Uttar Pradesh while the disciplinary p roceeding took place at Burnpur in the State of West Bengal. The penalty order w as issued within the State of West Bengal so also the order of the appellate aut hority. In such circumstances, this Court lacks territorial jurisdiction to ente rtain the writ petition. On merit, it is submitted that the charge against the p etitioner was proved following a full-fledged departmental proceeding wherein th e principles of natural justice and all procedural requirements were followed. T he charge against the petitioner having been proved, impugned penalty has been i mposed, which is reasonable and commensurate with the gravity of the offence. Th erefore, no interference is called for. 18. In his reply, learned counsel for the petitioner has referred to the ave rments made in paragraphs - 20, 21, 22 and 40 of the writ petition to contend th at petitioner had preferred an appeal against the order of penalty from Duliajan . The appeal was rejected and the rejection order was received by the petitioner at Duliajan which is within the territorial jurisdiction of this Court. Therefo re, it cannot be said that this Court does not have the territorial jurisdiction to entertain the writ petition. As such, writ petition is maintainable. 19. Submissions made have been considered. 20. Since a preliminary objection has been raised regarding maintainability of the writ petition on the ground of lack of territorial jurisdiction, the same may be attended to at the outset. 21. Article 226 (1) of the Constitution acknowledges the power of every High Court to issue directions, orders or writs to any person or authority including in appropriate cases any Government throughout the territories in relation to w hich it exercises jurisdiction for the enforcement of any of the rights conferre d by Part-III and for any other purpose. Article 226 (2) of the Constitution of India provides that the power of a High Court to issue directions, orders or wri ts to any Government, authority or person may also be exercised by any High Cour t exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part arises for the exercise of such power notwithstandi ng that the seat of such Government or authority or the residence of such person is not within those territories. 22. From a careful analysis of the aforesaid provisions, it is quite evident that if a cause of action, either wholly or in part arises within the territori al jurisdiction of a High Court, such High Court will have the jurisdiction to e xercise the power conferred by Clause-(1) of Article 226, i.e, power to issue wr its, directions or orders notwithstanding the fact that the seat of the Governme nt or the authority or the residence of the person responsible for the cause of action is situated outside the territorial limits of the High Court. 23. Question for consideration is whether in the facts and circumstances of the case cause of action or any part thereof arose within the territorial limits of this Court to enable this Court to exercise its writ jurisdiction. 24. As already noticed, petitioner was posted at Burnpur in the State of Wes t Bengal. While posted at Burnpur he was detailed for election duty in Uttar Pra desh, where the incident took place. Departmental proceeding was drawn up agains t the petitioner at Burnpur following which order of penalty dated 08.08.2007 wa s imposed on the petitioner. Thereafter, petitioner was transferred to OIL, Duli ajan in the State of Assam. From Duliajan, he submitted his statutory appeal on 06.09.2007, which was dismissed by the appellate authority at Burnpur on 25.09.2 007. This order of the appellate authority was received by the petitioner at Dul iajan. Appellate proceeding is a continuation of the departmental proceeding. Th e appellate authority has the jurisdiction to set aside the penalty, or to uphol d the same or to modify the same or even enhance the same subject to providing r easonable opportunity of hearing to the affected person. The width of the appell ate power is provided under Section 9 of the CISF Act, 1968 and Rule 52 (2) of t he CISF Rules, 2001. Subject to revision or suo-moto action by the Central Gover nment, decision of the appellate authority is final. 25. By the appellate order dated 25.09.2007, the order of penalty dated 08.0 8.2007 attained finality. This appellate order dated 25.09.2007 was received by the petitioner at Duliajan in the State of Assam whereafter the effect of the or der of penalty came into play. Receipt of the appellate order, therefore, can ce rtainly be construed as part of the cause of action occurring within the territo rial limits of this Court. 26. The Apex Court in the case of Oil and Natural Gas Commission -Vs- Utpal Kumar Basu; reported in (1994) 4 SCC 711, considered at length the question of territorial jurisdiction under Article 226 (2) of the Constitution of India. The Apex Court held that on a plain reading of clauses (1) and (2) of Article 226 o f the Constitution of India, it becomes clear that a High Court can exercise the power to issue directions, order(s) or writs for the enforcement of any of the fundamental rights conferred by Part-III of the Constitution or for any other pu rpose if the cause of action wholly or in part, had arisen within the territorie s in relation to which it exercises jurisdiction notwithstanding the fact that t he seat of the Government or authority or the residence of the person against wh om the direction, order(s) or writ is issued is not within the said territory. 27. The judgment in Utpal Kumar Basu (supra) has been approvingly referred t o in Navinchandra N Majithia -Vs- State of Maharashtra and Others, reported in ( 2000) 7 SCC 640. On due consideration, it was held that maintainability or other wise of a writ petition in the High Court depends on whether the cause of action for filing the writ petition arose, wholly or in part, within the territorial j urisdiction of that Court. The Apex Court in the aforesaid case referred to the history behind insertion of Clause (2) in Article 226 of the Constitution of Ind ia and went on to explain the concept of cause of action. It has been held that it is well settled with the expression cause of action means that bundle of fac ts which the petitioner must prove, if traversed, to entitle him to a judgment i n his favour. For determining cause of action or part of cause of action, the Hi gh Court must look into the pleadings in the writ petition to satisfy itself tha t cause of action or any part thereof has arisen within the territorial limits o f that High Court. For that it is not necessary to examine the correctness or ot herwise of the pleadings. 28. The above position has been reiterated in Om Prakash Srivastava -Vs- Uni on of India; reported in (2006) 6 SCC 207 and Rajendran Chingaravelu -Vs- R K Mi shra, Additional Commissioner of Income Tax; reported in (2010) 1 SCC 457. Final ly in Nawal Kishore Sharma -Vs- Union of India; reported in (2014) 9 SCC 329, it has been held that on a plain reading of the amended provision in Article 226 ( 2), it is clear that the High Court can issue a writ even when the authority or the person against whom the writ is issued is located outside its territorial ju risdiction if cause of action wholly or partially arises within the Court’s terr itorial jurisdiction. It has been held that cause of action for the purpose of A rticle 226 (2) of the Constitution of India for all intent and purpose must be a ssigned the same meaning as envisaged under Section 20 (c) of the Civil Procedur e Code though the expression cause of action has neither been defined in the Civ il Procedure Code nor in the Constitution. The question whether or not cause of action wholly or in part for filing a writ petition has arisen within the territ orial limits of any High Court has to be decided in the light of the nature and character of the proceeding under Article 226 of the Constitution of India. In o rder to maintain a writ petition, the petitioner has to establish that a legal r ight claimed by him has been infringed by the respondents within the territorial limits of the Court’s jurisdiction. In that case, declaration of the petitioner as medically unfit and subsequent communication informing him that he was not e ntitled to receive disability compensation though issued outside the State of Bi har were received by the petitioner in his native place within the State of Biha r. It was, therefore, held that Patna High Court had the territorial jurisdictio n to entertain the writ petition. 29. In the light of the law as discussed above and considering the pleadings of the petitioner as noticed above, i.e., in paragraphs 20,21, 22 and 40 of the writ petition, Court is of the view that it has the territorial jurisdiction to entertain the writ petition. Even otherwise also, the writ petition was admitte d for hearing on 19.12.2007. More than 7 (seven) years have gone by since then. Therefore, at this belated stage, contention of the respondents that this Court lacks territorial jurisdiction to entertain the writ petition cannot be accepted . Accordingly, preliminary objection raised as to the maintainability of the wri t petition on the ground of lack of territorial jurisdiction is rejected. 30. Having answered the preliminary objection as above, the substantive issu e may now be adverted to. It is the case of the petitioner that material witness es were not examined by the Enquiry Officer, which is fatal as because the same has materially affected the outcome of the enquiry which has been relied upon by the disciplinary authority while imposing the impugned penalty. The Enquiry Off icer mainly relied on the evidence of PW-1, Rahatu Lal and PW-4, Constable Loken dra Singh. PW-1 stated before the Enquiry Officer that petitioner had quarrelled with Constable Dinesh Kumar (PW-3) hurling abusive language. Head Constable Sul tan Ali (PW-2), Constable Lokendra Singh (PW-4) and Constable B D Roy (PW-6) tri ed to control the petitioner but they could not succeed. PW-4 also narrated the same story. But the other witnesses did not corroborate the evidence of the said 2 (two) witnesses. In fact, PW-2 stated that no such quarrel had taken place be tween the petitioner and Constable Dinesh Kumar (PW-3) and that he did not hear the petitioner using abusive language against anyone. As a matter of fact, PW-3, the complainant, himself denied that petitioner had quarrelled with him or atte mpted to assault him. However, PW-3 was declared as a hostile witness, though, t he aforesaid narration is supported by PW-5 and PW-6. 31. PW-1 in his evidence stated that at about 2200 hours the section compris ing of Head Constable Sultan Ali (PW-2), petitioner, Constable G Kuiry and Const able U K Dana had reached the gate of the DM Public School. The presence of Cons table G Kuiry and Constable U K Dana, along with petitioner has been admitted by the other witnesses as well. Petitioner in his statement before the Enquiry Off icer also stated that he was detailed for Uttar Pradesh Assembly election duty. After completion of voting, he and the others had to go to Ghaziabad to deposit the EVMs. Due to non-availability of space in the vehicle of the Election Commis sion, the Sector Magistrate dropped them along with Head Constable Sultan Ali, C onstable G Kuiry and Constable U K Dana, at the Simvawali Police Station from wh ere they had to report to their camp. Though the Company Commander was contacted on his mobile phone for sending a vehicle to the Simvawali Police Station to ta ke them to their camp, they had to return to the Camp on their own arrangement a s transportation could not be arranged. However, one police duty truck came alon g and dropped them near the camp. Thus, Constables G Kuiry and U K Dana were pre sent with the petitioner at the time of the alleged incident. Since the incident was alleged to have taken place near the entrance of the camp, the sentry guard posted at the entrance also became a relevant witness along with Constables G K uiry and U K Dana. Admittedly, they were not examined by the Enquiry Officer. Wh en this was pointed out by the petitioner, the disciplinary authority took the v iew that if the petitioner had considered production of Constables G Kuiry and U K Dana necessary in the enquiry, he was at liberty to produce them as his defen ce witness. In appeal, the appellate authority took the view that it appeared th at the charge against the petitioner had been proved on the basis of evidence ad duced during the enquiry but the petitioner failed to produce any convincing pro of to disapprove the charge. In the writ petition, petitioner has taken up the p oint of non-examination of material witnesses, Constables G Kuiry and U K Dana i n the enquiry in Para 34. Respondents in their counter affidavit simply stated i n Para-31 thereof that Constables G Kuiry and U K Dana were not prosecution witn esses and recording of their statements were considered not necessary as the cha rge against the petitioner had been proved on the basis of statements of other p rosecution witnesses. On his part, petitioner did not produce the above 2 (two) Constables for his defence. Therefore, his plea has no merit. 32. The plea taken by the respondents cannot be accepted for more than one r eason. The burden was on the prosecution to prove the charge against the petitio ner in the enquiry. Though standard of proof in a domestic enquiry is not so str ingent like in a criminal proceeding, yet it is the duty of the prosecution (dis ciplinary authority) to prove the charge. Even in a domestic enquiry the charge against the delinquent has to be proved in accordance with law. Therefore, merel y saying that petitioner had the opportunity to produce the 2 (two) material wit nesses in the enquiry, which he did not, would not absolve the prosecution (disc iplinary authority) of such omission or lapse. Consequently, non-examination of material witnesses by the prosecution would be violative of the principles of na tural justice which may vitiate the enquiry. In Hardwari Lal -Vs- State of Uttar Pradesh and Others; reported in (1999) 8 SCC 582, the Apex Court held in the f acts of that case that the Tribunal and the High Court were not justified in thi nking that non-examination of the 2 (two) vital witnesses could not be material. In the facts and circumstances of that case, it was held that the High Court an d the Tribunal had erred in not attaching importance to the aforesaid contention of the appellant. On that ground, it was held that no proper enquiry was conduc ted by the authorities and the order of penalty was quashed. 33. Following the above decision of the Apex Court in Hardwari Lal (supra), this Court is also of the considered opinion that non-examination of the 2 (two ) material witnesses, Constables G Kuiry and U K Dana had severely impeached the prosecution case vitiating the outcome of enquiry and the consequential decisio n of the disciplinary authority. 34. Accordingly and in the light of above, the impugned order of penalty da ted 08.08.2007 and the order of the appellate authority dated 25.09.2007 cannot be sustained and are hereby set aside and quashed. 35. Writ petition is allowed, but without any order as to costs. "