INSPECTOR EXE VINOD GILL Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner was enrolled as a Head Constable in the Central Industrial Security Force on 1st January, 1991. According to the petitioner, he served with due diligence, sincerity and to the satisfaction of all concerned and was promoted to the rank of Inspector. While he was posted at CISF Unit, CRT Kolkata, an enquiry was ordered against the petitioner under Rule 36 of the CISF Rules, 2001 (hereinafter referred to as the Rules) by the Commandant of the Unit on 27th March, 2003. During the pendency of the enquiry, the petitioner resumed his duties and was deputed to undergo Reorientation Course for ex - sports personnel. Consequently, the petitioner was unable to participate in the departmental enquiry, which was started by the Inquiry Officer on 30th June, 2003. The Inquiry Officer submitted his report to the Disciplinary Authority after conducting exparte proceedings despite the fact that petitioner was on official duty. However, the Disciplinary Authority remitted the case to the Inquiry Officer to conduct fresh enquiry after giving reasonable opportunity to the petitioner to defend himself. The Inquiry Officer again concluded the enquiry proceedings and held the petitioner guilty of article of charges levelled against him. The Inquiry Officer submitted his report to the Disciplinary Authority on 27th May, 2004. The Disciplinary Authority supplied a copy of the enquiry report to the petitioner, giving him an opportunity to submit a representation against the findings of the Inquiry Officer. The Petitioner did submit his representation against the findings of the Inquiry Officer with the contention that reason for overstayal from leave was due to his inability to report back being a victim of circumstances. According to the petitioner, he was undergoing treatment with doctors and it was not possible for him to seek approval of the authorities prior to his recovery. This representation was submitted by the petitioner on 1st July, 2004. When the matter was pending with the Disciplinary Authority for taking a final decision on the report of the Inquiry Officer, the petitioner on 28th September, 2004 was transferred from CISF Unit CPT Kolkata to CISF Unit BSHEP Surangini. The records relating to the enquiry were also transferred to the Deputy Inspector General, North Zone for taking final decision in the matter, which, according to the petitioner, was in violation of Rule 32 of the Rules. Vide order dated 15th December, 2004, the Deputy Inspector General, North Zone awarded a penalty of reduction of lowest stage from Rs.7300/ - to Rs.6500/ - in the time scale of pay for a period of two years with immediate effect. It was further directed that petitioner will not earn any increments of pay during the period of reduction and on expiry of that period, reduction will have effect in postponing future increments of pay. With regard to regularisation of overstayal period from 19th December, 2002 to 30th June, 2003 (194 days), it was proposed that the same would be debited against half pay leave with loss of salary in terms of Rule 25 of CCS (Leave) Rules, 1972. Against this order, the petitioner preferred a statutory appeal to the concerned appellate authority on 12th January, 2005. The appellate authority vide its order dated 28th June, 2005, without really discussing the merits of the appeal, had set aside the order of penalty and directed de - novo enquiry from the stage of appointing of Enquiry Officer by the Disciplinary Authority. In furtherance to this order of the appellate authority, the Inquiry Officer informed the petitioner on 22nd July, 2005 that he would be conducting the de - novo enquiry into the charges levelled against the petitioner. The petitioner in this writ petition challenges these actions of the respondents being arbitrary, violative of rules, principles of natural justice and without jurisdiction.

(2.) In their counter affidavit, the respondents have raised preliminary objection that the writ petition is gross misuse of process of law and Courts and should be dismissed on that ground alone. It is stated that an appeal also lies against the order of the Deputy Inspector General to Inspector General, against the order of Inspector General to the Director General and against the order of the Director General to the Central Government and as such the present writ petition is premature, Efficacious alternative remedy is available to the petitioner in law. On merits, the facts are hardly disputed. However, it is stated that re - appreciation of evidence is not within the domain of this Court as the matter relating to analysis of evidence is within the domain of the Inquiry Officer. The present case is not one in which the principles of unreasonableness is attracted. Reliance has been placed upon the judgment of this Court in the case of Shakti Singh Vs. Union of India & Others 2002 VII AD (Delhi) 529. According to the respondents under Rule 52 of the Rules, order of fresh enquiry can be made and this is fundamental principle of administrative law that an order for conducting de - novo enquiry can be passed by the competent authority. The proceedings are neither violative of rules nor principles of natural justice. The petitioner had overstayed the leave without prior permission or sanction of competent authority. Thus, his conduct tantamounts to gross - misconduct and dereliction of duties as he is a member of a disciplined force. It is also not disputed that the records have been transferred to Deputy Inspector General, North Zone to take action and final decision upon the disciplinary proceedings relating to the petitioner. It is also not disputed that the appellate authority in exercise of powers vested under Rule 52 of the Rules, without going into the merit of the case, had set aside the final order dated 15th December, 2004 without prejudice to the passing of fresh order after conducting of de - novo enquiry from the stage of appointing the Inquiry Officer by the Disciplinary Authority. According to the respondents, the petitioner has not placed any document on record to show that he had taken first aid treatment from any hospital nearer to Nehru Stadium before taking regular treatment from Primary Health Centre, Mehrauli. There is no justification in the plea of the petitioner that he could not inform any unit or competent authority. The letter of the petitioner dated 10th April, 2003 wherein he had again requested for extension of leave on the ground that he fell ill all of a sudden on the night of 15th December, 2002 and had been taking treatment from local doctor of MCD Dispensary was also an afterthought and in contradiction to the different stands taken by the petitioner. In these circumstances, the respondents submit for dismissal of this writ petition.

(3.) From the above narration of facts, it is clear that the main issue in the writ petition revolves around the correctness and legality of the appellate authority's order dated 28th June, 2005 directing de - novo enquiry. The relevant and material part of the impugned order reads as under : -