SUBASH CHANDRA SAHU Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner, while serving as Head Constable/GD at Central Industrial Security Force (CISF) Unit, Nalco, Angul, having faced with a departmental proceeding, was imposed with major penalty of dismissal from service by the disciplinary authority vide Annexure-16 dated 15.09.2009, which was confirmed by the appellate authority, vide order dated 16.12.2009 in Annexure-18, as well as revisional authority vide order dated 31.03.2010 in Annexure-20, which are subject matter of challenge before this Court.

(2.) The factual matrix of the case, in hand, is that the petitioner, while serving as Head Constable/GD at CISF Unit, Nalco, Angul, on 26.12.2008 was detailed for duty in 'B' shift, i.e., from 13:00 hours to 2100 hours at Expansion Gate of Nalco, Angul, along with Sub-Inspector K.K. Pallai and Lady Constable Kameli Khatun. At about 16:30 hours of the same day, a tipper bearing registration number OR-06-E-2919 laden with 27 nos. of rejected aluminium ANODE Stem arrived at the said gate to go outside the plant premises, but due to protest of the duty personnel, the said tipper was seized and handed over to Nalco Nagar, Police Station. First Information Report was lodged at 9.30 PM alleging theft against driver of the said tipper. On the basis of his statement recorded under Section 161, Cr.P.C. by the concerned police, the petitioner was arrested in connection with Nalco P.S. Case No. 144 dated 26.12.2008 for alleged commission of offence under Sections 379/34, IPC.

(3.) Mr. L. Samantray, learned counsel for the petitioner contended that denial of defence assistance to the petitioner amounts to violation of principles of natural justice. The inquiry officer concluded the inquiry without recording oral evidence and without giving opportunity of hearing to the petitioner to cross-examine the witnesses examined in support of the charge. The statement recorded by the authority during the preliminary inquiry was adopted as evidence and immediately the petitioner was directed to cross-examine the witnesses, which is against the known procedure of law, as the statement recorded in preliminary inquiry is not a part of record nor has it been exhibited, particularly when the inquiry officer is not authorized under law to accept the same as evidence. So far as allegation of mala fide intention is concerned, neither it has been discussed, nor any material was produced or examined and, as such, no finding has been arrived at to that extent, thereby, the same cannot sustain in the eye of law. It is further contended that the allegation of gross negligence and dereliction in duty are based on no evidence and, as such, none of the witnesses examined have stated anything either about the mala fide intention or with regard to allegation of gross negligence and dereliction in duty by the petitioner. Therefore, the report submitted by the inquiry officer cannot have any leg to stand and on that basis the imposition of major penalty of removal from service by disciplinary authority and confirmation made thereof by the appellate authority as well as revisional authority, cannot sustain in the eye of law. Furthermore, such punishment is grossly disproportionate to the charge levelled against the petitioner. Therefore, he seeks for quashing of the entire proceeding initiated against the petitioner.