G.S. SRIVASTAV Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner, who was working as a Constable in C.I.S.F. filed this application challenging the order of imposition of major penalty of removal from service by the disciplinary authority under Annexure-5 dated 18.6.1996 and confirmation thereof in appeal vide Annexure-7 dated 17.12.1996 and reaffirmation in Revision under Annexure-9 dated 8.12.1997 on the ground that the same is in gross violation of principle of natural justice. Accordingly, he seeks for quashing of the same.

(2.) The epitome of the fact in the case at hand is that the petitioner bearing Force No. 914492353 appointed as a Constable on 27.3.1991 completed his probation on 5.4.1993 and posted as a Constable at CISF Unit, Paradeep and subsequently on transfer was posted at CISF Unit, Rourkela under the administrative control of opposite party no.4. While he was so continuing, he was placed under suspension on 7.2.1996 in contemplation of initiation of disciplinary proceeding against him and accordingly a memorandum of article of charges have been served vide Annexure-1 on 5.3.1996 under Rule-34 of CISF Rules, 1969 on the allegation that while he was on duty at HSM loading point on 6.2.1996, collected Rs.30/- as illegal gratification from the representative of M/s Modern Roadways Transport Corporation, Rourkela at about 15.15 hrs, which is a gross misconduct on his part. It is further alleged that he also arrogantly refused and used filthy language to SI/EXE, Yamuna Singh when she wanted to physically search him being suspicious of taking illegal gratification from the transport representative. On the basis of such memorandum of article of charges in Annexure-1, the petitioner submitted written statement denying the allegation on 11.3.1996 vide Annexure-2 and made a request to allow him to cross-examine P.W.6, namely, Prabhat Kumar Barik, the lifter of M/s Modern Transport Corporation. Mr. S.C. Das, Inspector/EXE was appointed as Enquiring Officer on 14.03.1996 to enquire into the charges levelled against the petitioner by the opposite party no.5, basing upon which the inquiry was held on 21.3.1996, 23.03.1996, 27.03.1996, 30.03.1996, 01.04.1996, 03.04.1996, 06.04.1996 and in course of enquiry, the enquiry officer examined all the prosecution witnesses except P.W.6, Prabhat Kumar Barik of M/s Modern Transport Corporation Ltd. and after conclusion of enquiry held that the article of charge Nos. I & II are proved vide Annexure-3. The disciplinary authority-opposite party no.4 served a copy of the enquiry report to the petitioner affording opportunity to him to submit his explanation against the finding of the Enquiring Officer. The petitioner submitted his explanation to the enquiry report on 29.05.1996 vide Annexure-4 specifically stating that the prosecution has failed to produce the witness i.e. P.W.6, Prabhat Kumar Barik, the lifter of M/s Modern Transport Corporation, therefore the finding of inquiry officer is vitiated having not given opportunity to the petitioner. But the disciplinary authority-opposite party no.4 without application of mind to the evidence and without affording opportunity to the petitioner to cross-examine the vital witness Prabhat Kumar Barik, relied on the imputation of misconduct on the petitioner, and impugned the major penalty of removal from service vide order dated 18.6.1996 in Annexure-5. Against such order of removal passed by the Disciplinary Authority, the petitioner preferred an appeal under rule 42 of CISF Rule before the appellate authority reiterating the same contention which he has stated before the inquiring officer as well as the disciplinary authority that he should have been given opportunity to cross-examine Prabhat Kumar Barik, P.W.6 and non-examination of material witness amounts to violation of principle of natural justice. The appellate authority without application of mind, rejected the appeal and confirmed the punishment imposed by the disciplinary authority vide Annexure-7 and against such order of confirmation of punishment of removal from service by the appellate authority, the petitioner moved the Revisional Authority under rule 42 of the C.I.S.F. Rules reiterating the same contention which he raised in the appeal, but the Revisional Authority also without application of mind rejected the application for revision and confirmed the order of punishment of removal from service passed by the disciplinary authority under Annexure-9.

(3.) Mr. T.K. Mishra, learned counsel for the petitioner specifically urged that the statement of Prabhat Kumar Behera on whose statement prosecution has initiated a proceeding, has not been examined nor any opportunity has been given to the petitioner to cross-examine him. More so, the inquiring officer failed to produce such evidence basing upon which the article of charges were framed against the petitioner and none examination of material witness and without affording opportunity to the petitioner amount to violation of the principle of natural justice. Therefore, the order of punishment imposed on the petitioner should be quashed. Further he urged that while considering the imposition of punishment, the statement of Head Constable P.C. Sahoo, P.W.4 that the petitioner did not misbehave the SI/EXE, Yamuna Singh and the allegation with regard to use of filthy language is not specific has not been taken into consideration. In that view of the matter, the punishment imposed is absolutely misconceived one, thereby the inquiry proceeding is vitiated. Due to non-compliance of the provisions under Section 8 (i) of CISF Act, 1968 the imposition of measure penalty of removal from service is also vitiated. He further specifically urged that the order of imposition of measure penalty is vitiated due to non-compliance of principle of natural justice inasmuch as though the petitioner has raised consistent contention before the Enquiry Officer, Disciplinary Authority, Appellate Authority as well as the Revisional Authority to cross examine P.W.6, Prabhat Kumar Barik on whose statement the proceeding had been initiated, such opportunity has not been given to him, which amounts to non-compliance of principle of natural justice. Therefore the entire proceeding is vitiated. In order to substantiate his contention he has relied upon the judgments of the apex Court in Kuldeep Singh v. Commissioner of Police and others, 1999 AIR(SC) 677, Haridwari Lal v. State of U.P., 2000 AIR(SC) 277 and Bhubaneswar Chhatria v. Union of India and others, 2000 2 OrissaLR 564.