Research › Search › Judgment

Calcutta High Court · body

2011 DAILYLAW 450 (CAL)

G. C. Bilarwan v. UNION OF INDIA

2011-03-29

J.K.BISWAS

body2011
JUDGMENT 1. THE Court-THE petitioner in this art.226 petition dated November 24, 2006 is aggrieved by an order dated May 31, 2006 (at p.88) issued by the Deputy Inspector General (Pers), Central Industrial Security Force inflicting on him the penalty of "Withholding of one increment for three years without cumulative effect." 2. BY issuing a charge-sheet dated June 5, 2002 (at p.29) the Deputy Inspector General (Pers/Hqrs) initiated the departmental proceedings against the petitioner who was working as a Deputy Commandant, CISF Unit, BSL Bokaro. The charge was as follows: "That Shri GC Bilarwan while posted and functioning as DC in CISF Unit, BSL Bokaro committed a gross misconduct in that when there was a scuffle between CISF personnel and the villagers of Lewatand village on 15.01.2002 which finally led to the abduction of Constable V.S. Rai by the villagers, he did not appreciate the ground reality, in right prospective, nor did he carry out the rescue operation methodically and tactfully instead, he left the CISF personnel free to carry out the rescue operation even by using physical force. As a result, the CISF personnel not only beat up the villagers but also damaged their houses and house hold articles. Thus, Shri G.C. Bilarwan, DC failed to perform his duties with full devotion and gave very poor account of his leadership and also lowered the image of the CISF. Shri G.C. Bilarwan, DC also and in a manner unbecoming of an officer of his status, rank and service of an Armed Force of the Union like CISF." 3. AFTER conclusion of the inquiry held in terms of the provisions of r. 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 which were applicable to the case, the Inquiring Authority prepared a report dated March 24, 2005 (at p.49) containing his findings that the charge was not proved and forwarded the report with all the records in terms of the provisions of sub-r.(23) of r. 14 to the Disciplinary Authority. 4. THE Disciplinary Authority who was required to take action on the report in terms of r. 15 issued a letter dated June 17, 2005 (at p.70) forwarding thereunder a copy of the report and the reasons for which he was unable to agree with the Inquiring Authority. 4. THE Disciplinary Authority who was required to take action on the report in terms of r. 15 issued a letter dated June 17, 2005 (at p.70) forwarding thereunder a copy of the report and the reasons for which he was unable to agree with the Inquiring Authority. THE petitioner asked to make representation, if any, submitted a detailed representation dated August 20, 2005 (at p.74) contending why the Disciplinary Authority should not disagree with the findings of the Inquiring Authority. 5. IT appears that under cover a letter dated November 22, 2005 the Secretary, Ministry of Home Affairs, Government of India forwarded the matter to the Union Public Service Commission for its advice, and that by its letter dated April 25, 2006. (at p.91) the Commission advised that, on the facts, "ends of Justice would be met" if a penalty of withholding of one increment for three years without cumulative effect was imposed on the petitioner. 6. ON the basis of the advice the Disciplinary Authority passed the impugned order dated May 31, 2006. The petitioner had no remedy of appeal against the order passed by the Disciplinary Authority by order and in the name of the President. 7. MR Mahapatra appearing for the petitioner has submitted that the punishment order passed by the Disciplinary Authority without hearing the petitioner and recording his findings of disagreement and based solely on the advice of the Union Public Service Commission, being contrary to law, is liable to be set aside. He has relied on Punjab National Bank and Ors. v. Kunj Behari Misra, (1998)7 SCC 84 ; Yoginath D. Bagde v. State of Maharashtra and Ann, (1999)7 SCC 739 ; Lav Nigam v. Chairman and MD, ITI Ltd. and Anr., (2006)9 SCC 440 and Shekhar Ghosh v. Union of India and Anr., (2007)1 SCC 331 . 8. MR Roy appearing for the respondents has submitted that there is no reason to say that without recording his findings the Disciplinary Authority proceeded to consider the question of inflicting punishment, for in the document supplied to the petitioner under cover of the letter dated June 17, 2005 the Disciplinary Authority recorded his findings of disagreement. 9. 8. MR Roy appearing for the respondents has submitted that there is no reason to say that without recording his findings the Disciplinary Authority proceeded to consider the question of inflicting punishment, for in the document supplied to the petitioner under cover of the letter dated June 17, 2005 the Disciplinary Authority recorded his findings of disagreement. 9. HIS argument is that though it is true that before passing the final order the Disciplinary Authority did not give the petitioner any opportunity of hearing, on the facts, and in view of the advice of the Union Public , Service Commission, it cannot be said that absence of hearing prejudiced the petitioner in any manner; and that since the provisions of r.15 do not provide for giving any opportunity of hearing before recording the findings of disagreement, it cannot be said that absence of hearing vitiated the punishment order. 10. HE has submitted that if this Court is of the view that absence of hearing vitiated the final order, then applying the ratio of Luv Nigam v. Chairman and MD, 1TI Ltd. and Anr. (2006)9 SCC 440 the Disciplinary Authority should be given liberty to proceed afresh from the stage of hearing. 11. I am unable to accept the argument that with the letter dated June 17, 2005 the Disciplinary Authority supplied to the petitioner his findings of disagreement. At the stage the letter was issued there was no scope for recording the findings of disagreement. The Disciplinary Authority found the report of the Inquiring Authority unacceptable. Hence for the purpose of conclusion of the disciplinary proceedings the report virtually lost its significance. 12. IN view of the decisions in Punjab National Bank and Ors. v. Kunj Behari Misra, (1998)7 SCC 84 ; Yogindra D. Bagde v. State of Maharashtra and Anr. (1999) 7SCC 739 and Luv Nigam v. Chairman and MD, ITI Ltd. and Anr., (2006)9 SCC 440 the Disciplinary Authority finding reasons to disagree with the findings of the Inquiring Authority while supplying a copy of the report, was required to inform the petitioner his tentative reasons for disagreement, and not his findings of disagreement. 13. (1999) 7SCC 739 and Luv Nigam v. Chairman and MD, ITI Ltd. and Anr., (2006)9 SCC 440 the Disciplinary Authority finding reasons to disagree with the findings of the Inquiring Authority while supplying a copy of the report, was required to inform the petitioner his tentative reasons for disagreement, and not his findings of disagreement. 13. HE could record his findings of disagreement, if any, only after giving the petitioner an opportunity of making representation stating why he should not disagree with the findings of the Inquiring Authority, and giving him hearing to persuade him not to disagree with the findings of the Inquiring Authority. 14. ADMITTEDLY, after the petitioner submitted his representation against the tentative reasons stated by the Disciplinary Authority, the Disciplinary Authority neither gave the petitioner any opportunity of hearing, nor recorded any findings of disagreement. Instead, it is evident, he referred the whole matter to the Home Ministry of the Central Government that in turn forwarded the matter to the Union Public Service Commission for advice in terms of the provisions of sub-r.(4) of rl5. Sub-rule(4) of r.15 is quoted below: "(4) If the Disciplinary Authority having regard to its findings on all or any of the articles of charge and on the basis of the evidence adduced during the inquiry is of the opinion that any of the penalties specified in Clauses (v) to (ix) of Rule 11 should be imposed on the Government servant, it shall make an order imposing such penalty and it shall not be necessary to give the Government servant any opportunity of making representation on the penalty proposed to be imposed: Provided that in every case where it is necessary to consult the Commission, the record of the inquiry shall be forwarded by the Disciplinary Authority to the Commission for its advice and such advice shall be taken into consideration before making an order imposing any such penalty on the Government servant." 15. IT is, therefore, evident that the Disciplinary Authority passed the order imposing the penalty on the petitioner in gross violation of the principles of natural justice. 16. IN view of the three Supreme Court decisions noted hereinbefore the Disciplinary Authority was under an unqualified obligation to give the petitioner an opportunity of hearing and record his findings of disagreement, even though the provisions of r. 15 do not provide for an opportunity of hearing. 16. IN view of the three Supreme Court decisions noted hereinbefore the Disciplinary Authority was under an unqualified obligation to give the petitioner an opportunity of hearing and record his findings of disagreement, even though the provisions of r. 15 do not provide for an opportunity of hearing. The requirement, as has been held by the Supreme Court in Yoginath D. Bagde v. State of Maharashtra and Anr., (1999)7 SCC 739 , was "to be read into the rule." 17. IT is also important to note that the petitioner was not given any opportunity of showing cause against the proposed punishment, and that without proposing the penalty the Disciplinary Authority referred the whole matter to the Home Ministry of the Central Government for obtaining advice of the Union Public Service Commission. 18. IT is evident from the impugned order that the Disciplinary Authority did not deal with the petitioner's contentions raised in his representation against the tentative reasons for disagreement. The Disciplinary Authority simply said as follows: "The submissions made by the Charged Officer had been carefully considered and the points raised by him were examined in the light of material held on record." 19. THE petitioner's representation to the tentative reasons was quite a long one containing a large number of grounds in support of his case that there was no reason for the Disciplinary Authority to disagree with the findings of the Inquiring Authority. In my opinion, the final order passed by the Disciplinary Authority is vitiated by total non-application of mind. 20. MY foregoing conclusions lead to the question whether the Disciplinary Authority should be given liberty to proceed afresh from the stage of giving hearing before recording the findings of disagreement. 21. RELYING on Shekhar Ghosh v. Union of India and Anr., (2007)1 SCC 331 Mr. Mahapatra has argued that since the result is a foregone conclusion a post-decisional hearing will not serve the purpose of justice. RELYING on Lav Nigam v. Chairman and MD, ITI Ltd. and Anr., (2006)9 SCC 440 Mr. Ray has submitted that to such a case as this the principle of post-decisional hearing cannot apply. 22. I do not find any reason to say that the principle of post-decisional hearing should apply to the case. RELYING on Lav Nigam v. Chairman and MD, ITI Ltd. and Anr., (2006)9 SCC 440 Mr. Ray has submitted that to such a case as this the principle of post-decisional hearing cannot apply. 22. I do not find any reason to say that the principle of post-decisional hearing should apply to the case. In such a case as this it is permissible to permit the Disciplinary Authority to proceed afresh from the stage at which the proceedings stood vitiated, and hence there is no reason to say. If necessary, that the Disciplinary Authority cannot be permitted to proceed afresh after hearing the petitioner and recording his findings. 23. THE importance of hearing the charged employee before recording the findings of disagreement is that the Disciplinary Authority recording his tentative reasons for disagreement may ultimately after hearing the employee concerned may agree with the employee that there are no valid reasons for disagreeing with the findings of the Inquiring Authority. Recording of tentative reasons for disagreement cannot lead to automatic recording of findings of disagreement. 24. IN the facts and circumstances of the case, I do not think it will be in the interest of Justice to give the Disciplinary Authority liberty to proceed afresh in the matter after hearing the petitioner and recording his findings. IN the face of the advice of the Commission there is hardly any chance that after hearing the petitioner the Disciplinary Authority will come to a conclusion that there is no reason to disagree with the findings of the Inquiring Authority. Besides, the Commission advised the penalty recording the following view: "4.4. It is not the question of time at which he was available at the incident or not. But, it was the knowledge of incident which is very crucial in this case. As per the witnesses and record, he knew about the incident about an hour before he reached the spot. He could have done something to avoid the situation but he has not done so. There are evidences from the witnesses which lead to the probability that the CO. has given unwritten approval to the Jawans to go to the place and rescue the Jawan who is alive or dead. This itself shows that he was involved in the incident as a responsible officer." 25. AS a matter of fact, a minor penalty was imposed. There are evidences from the witnesses which lead to the probability that the CO. has given unwritten approval to the Jawans to go to the place and rescue the Jawan who is alive or dead. This itself shows that he was involved in the incident as a responsible officer." 25. AS a matter of fact, a minor penalty was imposed. I do not think keeping the matter alive will serve the purpose of justice. 26. FOR these reasons, I allow the petition, set aside the impugned order imposing the penalty on the petitioner and direct the respondents to give the petitioner, within eight weeks from the date of communication of this order, all benefits to which he would have been entitled in the absence of the order. No costs.