POORAN SINGH BISHT Vs. UNION OF INDIA

JUDGEMENT

(1.) Heard Mr. Yogesh Pacholia, Advocate for the petitioner and Mr. V.B.S. Negi, Assistant Solicitor General of India for the respondents. The petitioner was a constable in Central Industrial Security Force (From hereinafter referred to as CISF). At the relevant time, he was posted for quarter guard duty at CISF Unit Oil and Natural Gas Corporation Campus, Dehradun. On the night of 17.9.2009 while the petitioner was on duty, the petitioner had some scuffle with another constable of CISF namely, D.K. Chand. It is alleged, that the petitioner fired from his rifle and consequently D.K. Chand sustained injuries on his chest. Consequently an FIR was also lodged under Section 307 in which a chargesheet has been filed and the petitioner is presently facing trial in Dehradun. Meanwhile the petitioner has been dismissed from service vide order dated 23.9.2009 by the Senior Commandant CISF Unit BHEL, Haridwar (Annexure No. 1 to the writ petition). Evidently, the order has been passed by invoking powers under Rule 39 of the Central Industrial Security Force Rules, 2001 which reads as follows:-

(2.) The powers given to the authority under the said rule is para materia to the provisions of Article 311 of the Constitution of India. Article 311 of the Constitution of India reads as follows:-

(3.) Though the petitioner is not a member of civil service yet the rules which are applicable to him carry the same principle on which there is a catena of decision by the Hon'ble Apex Court and by the Hon'ble High Courts. Rule 36, 37 and 38 of 2001 Rules provide for a procedure before a penalty is imposed on an enrolled member of the force (i.e. CISF). However, exception is given in Rule 39 of 2001 Rules where is three reasons the procedure as contemplated in Rules 36, 37 and 38 can be dispensed with. These contingencies are - (a) where any penalty is imposed on an enrolled member of the Force on the ground of conduct which has led to his conviction on a criminal charge, (b) where the disciplinary authority is satisfied for reasons to be recorded by it in writing that it is not reasonably practicable to hold an inquiry in the manner provided in these rules and (c) where the President is satisfied that in the interest of the security of the State, it is not expedient to hold any inquiry in the manner provided in these rules, the disciplinary authority may consider the circumstances of the case and make such orders thereon as it deems fit. In the present case, while dismissing the petitioner from services what has been invoked is Rule 39(ii). In other words, the services of the petitioner have been dismissed without having holding any departmental proceedings on the ground that according to the disciplinary authority, he is satisfied that holding a departmental enquiry by serving a charge sheet and following the due procedures in the manner as prescribed in rules 36, 37 and 38 of CISF Rules, 2001 is practicably impossible. All the same, a perusal of the impugned order dated 23.9.2009 shows that no such reasons have been assigned by the concerned authority before invoking power under Rule 39(ii) of 2001 Rules. The order only states as follows:-