DIBAKAR BEHERA Vs. UNION OF INDIA & ORS.

JUDGEMENT

(1.) The petitioner, who was working as a Constable under the Central Industrial Security Force (C.I.S.F.), has filed this application assailing the order dated 26.06.2009 passed by the Disciplinary Authority imposing on him major penalty of removal from service, vide Annexure-10 and confirmation thereof in appeal by the appellate authority vide order dated 22.09.2009, Annexure-11 and the revisional order dated 24.08.2010, vide Annexure-12.

(2.) The epitome of the facts is that the petitioner by following due process of selection was appointed as a Constable under the C.I.S.F on 28.4.2003 under the Commandant, Central Industrial Security Force, Rourkela Steel Plant, Rourkela. After completion of the training, he was posted to Bankot Press M.P. on 1.3.2004 under Dewases district and thereafter, he was transferred to JNPT SHEVA, district-Rayagarh, Mumbai. On 18.6.2006 his duty was fixed at Central Gate out Morcha of the C.I.S.F. Unit in B.Shift (i.e. from 13.00 hrs. to 21.00 hrs.) and while he was discharging his duties at the Central Gate out Morcha at about 1900 hours, the Inspector/Exe. Came nearer to the Gate (out Morcha) and directed the petitioner to go out and when he went out, the Inspector Reddy entered into the Morcha and thereafter suddenly came out and went to the control room to his post and resumed his duties. Thereafter, the petitioner came. After 15 minutes, the Inspector S.L. Reddy again came to the out Morcha followed by Sub-Inspector, C.S. Negi and constable, namely, Bilash Patil. The Inspector S.L. Reddy showed some currency notes to the Sub-Inspector, C.S. Negi from his own hand and alleged that he got the said currency notes from the Morcha of the petitioner and went away. The Inspector directed the petitioner to hand-over his rifle to constable, S.K. Sharma and detained him in the control room and took his signature in a paper without giving him any scope to read the contents. On the allegation of receipt of illegal gratification, seizure list of currency notes amounting to Rs. 395.00 was prepared by the Inspector S.L. Reddy though the same was never recovered from the custody of the petitioner. After preparing the said report about the illegal gratification, the Inspector S.L. Reddy submitted the same to opposite party no.4. On receipt of the same, opposite party no.4 issued show cause notice to the petitioner on 26.7.2008 directing him to file his reply to the allegations made against him on 18.7.2008 within ten days of receipt of the notice. The petitioner after receipt of the same made an application on 30.7.2008 requesting the opposite party no.4 to supply him certain documents so as to enable him to prepare his reply to the show cause. After receiving such application on 30.7.2008, the Deputy Commandant attached to the office of opposite party no.4 vide his letter No. 2159 dated 4.8.2008 supplied the photo copies of the documents as prayed for by the petitioner and on receipt of such documents, the petitioner submitted his reply to the show cause denying the allegations made against him. Opposite party no.4 having not been satisfied with the show cause given by the petitioner, initiated departmental proceeding against the petitioner. During enquiry, the Inspector S.L. Reddy, Sub-Inspector/Exe. C.S. Negi and Constable, Bilash Patil were examined by the Enquiry Officer. As per the statement made by P.Ws.2 and 3 followed by the deposition of the petitioner, no allegation, as alleged in the charge, has been clearly proved because both P.Ws.2 and 3 have deposed that they have never seen the petitioner with the seized money amounting to Rs. 395.00 nor did they have seen the money lying under the waste sheet, rather both of them have seen the money in the hand of the Inspector S.L. Reddy, who had narrated them a story that he seized the same from underside of the waste sheet after having seen the petitioner hunting something. Though the petitioner has made sincere effort to prove him innocent, the Enquiry Officer submitted his report to opposite party no.4 on 1.11.2008 against the petitioner. By letter dated 18.11.2008 the Enquiry Officer supplied such enquiry report to the petitioner with a direction that if the petitioner has got any objection on the report, he may file the same within a period of 15 days of receipt of the letter. On receipt of the letter from opposite party no.4 vide Annexure-6, the petitioner submitted his explanation stating therein that he is an innocent, duty abiding soldier, but he has been falsely entangled in the departmental proceeding and prayed to withdraw the charge by keeping in mind his future as well as the future of his family. But the opposite party no.4 did not accept the plea of the petitioner and imposed the punishment of withholding of increment for a period of one year, which will have the effect of postponing his future increments vide order no. 188 dated 17.1.2009 vide Annexure- 7. The petitioner being a lower cadre employee, finding no other alternative, was compelled to accept the punishment. But all on a sudden, the opposite party no.3 issued an order on 28.5.2009 directing him to show cause within 15 days as to why he would not be imposed the penalty of removal from service instead of withholding of increment for the proven act of misconduct. The petitioner submitted his reply on 11.6.2009 stating, inter alia, that none of the witnesses except Inspector S.L. Reddy has seen the seizure of Rs. 395.00 from his custody so also he was never searched before the witnesses in connection with the said alleged amount of Rs. 395.00. But he has been falsely implicated on the said charges and also prayed to exonerate him from the charge as the punishment imposed is very harsh. But without considering the same, opposite party no.3 passed the order on 26.6.2009 awarding major penalty of removal from service from the date of receipt of the order by confirming the proposed penalty as made in the show cause notice vide Annexure-8 and also by enhancing the proposed punishment suggested by the enquiry officer. Against the order of major penalty imposed by opposite party no.3, the petitioner preferred an appeal before opposite party no.2, who rejected the same on 26.2.2009 vide Annexure-11. Thereafter, the petitioner also preferred a revision, but the revisional authority without considering the facts in proper prospective, confirmed the order passed by the disciplinary authority as well as the appellate authority vide Annexure-12 dated 24.8.2010. Hence, this petition.

(3.) Mr. P.K. Kar, learned counsel for the petitioner stated that the Enquiry Officer being the fact finding authority on consideration of the relevant materials placed before it when imposed penalty of stoppage of three increments, the disciplinary authority should not have enhanced the same to a major penalty like removal from service. He further submitted that the petitioner had no way out but to accept the punishment even though an amount of Rs. 395.00 has not been recovered from his custody and no eye witness is there in the said recovery save and except the Inspector S.L. Reddy. According to the learned counsel for the petitioner, the disciplinary authority without considering the fact in proper perspective enhanced the punishment to major penalty of removal from service, which has been made confirmed in appeal and revision, which is contrary to the provisions of law. To substantiate his contention, he has relied upon Navinchandra N. Majithia Vs. State of Maharashtra and others, (2000) 7 SCC 640 , Om Kumar and others Vs. Union of India, (2001) 2 SCC 386 , Dev Singh Vs. Punjab Tourism Development Corporation Ltd. and another, (2003) 8 SCC 9 , and Chandrama Bhusan Sarangi Vs. Union of India and others, 2011(I) ILR-CUT-398 .