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Monday, December 19, 2016

CENTRAL INDUSTRIAL SECURITY FORCE AND ORS Vs. ABRAR ALI

                                                              Non-Reportable

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL No. 2148 of 2015

CENTRAL INDUSTRIAL SECURITY FORCE & ORS.
                                                           .... Appellant(s)
                                   Versus
ABRAR ALI
                                                                ….Respondent

                               J U D G M E N T


L. NAGESWARA RAO, J.
      The Respondent was appointed as  a  Constable  in  Central  Industrial
Security Force (CISF) on 10.09.1990.  By a memorandum dated  08.10.1999,  an
inquiry was  proposed  under  Rule  36  of  the  C.I.S.F.  Rules,  1969  for
allegations of misconduct and misbehavior for the following Charges:
“Article of Charge-I
            No.903190893, Ct. Abrar Ali, Area  No.  IV,  Central  Industrial
Security Force, BCCL Unit, Dhanbad was granted  2  days  casual  leave  from
12.08.1999 to 13.08.1999 and 14.08.1999 was a second  Saturday.  He  had  to
resume his duty on 15.08.1999 (F/N).  But, he reported for his duty at  1730
hrs.  Thereafter, Asstt. Commandant of Area No. 4 directed  the  said  Abrar
Ali to remain inside the Camp as there was apprehension  of  danger  to  his
life from the residents of nearby Basti.  At about 1900 hrs when  Abrar  Ali
was searched by C.H.M. to serve his suspension order,  he  was  again  found
absent from the Camp.  The said member of the force  did  not  even  deposit
his leave Certificate in the Unit  Office  after  coming  back  from  leave.
Therefore, Abrar Ali  No.903190893  being  a  member  of  armed  forces,  is
grossly   negligent   towards   his   duties   and   has    disobeyed    the
Orders/directions  of  the  Superior  Officers,  which  amounts   to   gross
misconduct and indiscipline on the part of the  said  member.   Hence,  this
Charge.
      Article of Charge-II
            No.903190893, Ct. Abrar Ali, Area  No.  IV,  Central  Industrial
Security Force, BCCL Unit, Dhanbad was granted  2  days  casual  leave  from
12.08.1999 to 13.08.1999 and 14.08.1999 was a  second  Saturday.   The  said
member of the force while proceeding on leave  took  one  girl  named  Anita
Kumari D/o Shri Rajendr Rajbar  R/o  Lalten  Basti,  Angarpathra  (Dhanbad),
aged about 15-16 years with him to Delhi  on  the  pretext  of  getting  her
married to a Hindu boy and come back after leaving the said Anita Kumari  at
the house of an old man.  The brother of the said force member,  Jamaruddin,
who also is a member  of  the  Delhi  Armed  Police  took  Anita  Kumari  to
Dhanbad.  On 20.08.1999, Anita Kumari made a statement before  the  Judicial
Magistrate, Dhanbad, in FIR No.260/99  dated  13.08.1999.   Thereafter,  the
said force member Abrar Ali surrendered in the Court of C.J.M.,  Dhanbad  on
20.08.1999 from where he was sent to jail for committing the  said  offence.
No. 903190893 Ct. Abrar Ali being a member of me force has committed an  act
of indiscipline and has maligned the image of the force, which is a  serious
misconduct.  Hence, this Charge.
      Article of Charge - III
            Ct. Abrar Ali No.  903190893,  Area  No.IV,  Central  Industrial
Security  Force,  BCCL  Unit,  Dhanbad,  has  already  been  awarded   three
punishments,  2  major  punishments  (deduction  in  pay)  and   one   minor
punishment (deduction of 7 days’ salary) for various  acts  of  indiscipline
and  negligence  during  the  short  span  of  his  service.   Despite   the
aforesaid, he has failed to improve himself and to abide  the  rules,  which
shows that the said member is habitual of  committing  indiscipline.   Hence
this Charge.

The Commandant, Central Industrial Security Force, BCCL Unit, Dhanbad  by  a
final order dated 28.11.2000 held the Respondent guilty of all the  Charges.
 Finding the Respondent unworthy of retention in Force due to  his  acts  of
indiscipline  and  misconduct,  the  Disciplinary  Authority  dismissed  the
Respondent  from  service.   Aggrieved  by  the  Order  of  dismissal,   the
Respondent  filed  an  appeal  to  the  Deputy  Inspector  General,  Central
Industrial Security Force, BCCL  Unit,  Dhanbad.   The  Appellate  Authority
rejected  the  appeal  by  Order  dated  01.02.2001.  The   Respondent   was
exonerated of Charge 2 and held guilty of Charges 1  and  3.   The  Revision
Petition filed by the Respondent was dismissed  by  the  Inspector  General,
E.S. Headquarters, Patna by an Order dated  31.12.2010.  The  punishment  of
dismissal  from  service  imposed  on  the  Respondent  was  found   to   be
proportionate to the gravity of the misconduct by  both  the  Appellate  and
Revisional Authorities.   The Respondent filed Writ  Petition  no.  1241  of
2001 in the High Court of Delhi challenging the  Order  of  dismissal  dated
28.11.2000  as  well  as  the  Orders  dated  01.02.2001  of  the  Appellate
Authority and 31.12.2010 of  the  Revisional  Authority.   By  its  judgment
dated 11.08.2014, the High Court of Delhi  allowed  the  Writ  Petition  and
directed the Respondent to be reinstated  forthwith  as  Constable  C.I.S.F.
with notional seniority in his rank.  There was a direction for  payment  of
the entire arrears of his salary and other allowances within 2  months  from
the date of the judgment.  The Respondent was also held entitled  for  costs
quantified  at  Rs.  15,000/-.   Aggrieved  by  the  said   judgment   dated
11.08.2014 of the  High  Court  of  Delhi,  the  Appellants  preferred  this
Appeal.

Mr. Yashank Adhyaru, learned Senior Counsel  appearing  for  the  Appellants
submitted that the Order of dismissal ought  not  to  have  been  interfered
with by the High Court in exercise of its jurisdiction under Article 226  of
the Constitution of India.  He further submitted that there  is  no  bar  of
holding a departmental inquiry in  spite  of  an  acquittal  by  a  Criminal
Court. The past conduct of  the  delinquent  employee  could,  still,  be  a
subject matter of a Disciplinary Proceeding.  He contended that the  penalty
of dismissal from service is proportionate with the delinquency.

Dr. L.S.Chaudhary, Advocate appearing for the Respondent  submits  that  the
Respondent was acquitted by the Criminal Court and he should not  have  been
tried for the same Charge by way of a departmental inquiry. He  also  relied
upon a judgment of this Court in G.M. Tank  v.  State  of  Gujarat  &  Ors.,
reported in (2006) 5 SCC 446 in support thereof. He further  submitted  that
Charge No. 1 did not warrant a  penalty  of  dismissal  and  penalizing  the
Respondent for Charge No. 3 would amount to double jeopardy.
The relevant facts for adjudication of this case are as follows:

       The  Respondent  was  appointed  as  a  Constable  in   C.I.S.F.   on
10.09.1990.  While working at C.I.S.F., BCCL Unit, Dhanbad, he  was  granted
casual leave for 2 days on 12.08.1999. On 13.08.1999,  FIR  No.  260/99  was
registered under Section 366 A and 376 of the Indian  Penal  Code,  1860  in
Katras Police Station on a complaint by the residents of Lalten  Basti  that
the  Respondent  kidnapped  Anita  Kumari,  a  minor  girl.  The  Respondent
reported back to duty at 1730 hrs on 15.08.1999.  He  was  informed  by  the
Assistant Commandant that there was danger  to  his  life  from  the  people
living in Lalten Basti and he was ordered to remain in the unit  lines.   He
was not found in the unit lines at 1900 hrs on 15.08.1999 when a  suspension
order was sought to be served on him.  The authorities  were  informed  that
the Respondent  surrendered  before  the  Officer-In-Charge  of  Angarpathra
Police Station at around 2000 hrs on 20.08.1999.  Though  the  victim  Anita
Kumari made a statement which was recorded under Section  164  Cr.  P.C.  by
the Magistrate, she retracted from the statement in the  trial.   The  other
witnesses were declared  hostile.   The  Respondent  was  acquitted  of  the
Charges under Section 366 A and 376 IPC by a judgment  dated  29.03.2001  of
the Sixth Addl. Sessions Judge, Dhanbad.

The point that arises for our consideration is whether the  finding  of  the
Disciplinary Authorities holding the Respondent guilty of Charges  1  and  3
was justified and  whether  the  penalty  of  dismissal  was  proportionate.
Charge No.1 pertains to  the  act  of  indiscipline  of  the  Respondent  in
leaving the unit line on 15.08.1999 in spite of a specific order.  There  is
evidence on record to show that the Respondent reported  for  duty  at  1730
hrs on 15.08.1999 and disappeared thereafter in spite  of  instructions  not
to leave the unit line.  Even according to  the  Respondent,  the  situation
was tense and there was danger to his life from the residents of  the  Basti
who lodged FIR against him.  The Respondent submitted  in  the  departmental
inquiry that he did not resume  duty  on  15.08.1999  after  being  informed
about the registration of FIR.  He further stated that he fell ill  and  was
taking treatment from a  local  doctor  from  15.08.1999  to  20.08.1999  at
Tutalmari.  He surrendered before the Police at 2000 hrs on 20.08.1999.  The
Respondent’s brother Jamaruddin, who is a member of Delhi Police Force,  was
examined as PW-9 and Kaniz Fatima, wife of the Respondent  was  examined  as
PW-2.  They supported the version of the Respondent that  he  availed  leave
for two days, did not resume duty in view of the  registration  of  FIR  and
that he surrendered before the Criminal Court on 20.08.1999.  PW-8  Bijender
Singh, HC/GD deposed before the Inquiry  Officer  that  the  Respondent  was
directed by the Assistant Commandant, Ansuman Gaur,  to  stay  in  the  unit
line.  He was asked  to  serve  a  copy  of  the  suspension  order  on  the
Respondent at 1900 hrs. on 15.08.1999.   However,  the  Respondent  was  not
traceable in the camp or at his official residence. Court Witness  No.1,  SB
Mishra, Inspector stated  in  the  departmental  inquiry  that  he  was  the
Company Commander who granted leave  for  two  days  to  the  Respondent  on
11.08.1999.   He  deposed  that  officer-in-Charge  of  Angarpathra   Police
Station visited him at 1200 hrs. on 12.08.1999.  The officer  informed  that
the Respondent had kidnapped Anita Kumari from  Lalten  Basti  and  FIR  was
registered at the behest of the residents.  He reported the incident to  his
higher officers.  He also stated that the Respondent disobeyed the order  of
his superiors and left the unit line on 15.08.1999.  On appreciation of  the
evidence on record, the Disciplinary Authority concluded that Charge  1  was
proved.  The desertion from 15.08.1999 to 20.08.1999  is  an  act  of  gross
indiscipline warranting a penalty according to the Disciplinary Authority.

The High Court held that the Respondent resumed duty and left the unit  line
in view of the fear for his life from the residents of the locality  due  to
the registration of FIR.   The High  Court  found  that  no  misconduct  was
committed by the Respondent in disobeying the directions  of  his  superiors
not to leave the unit line.  The High Court was  of  the  opinion  that  any
prudent person would have acted in the same  manner.  The  High  Court  held
that the Charge proved was not serious for which the  Respondent  should  be
punished.

Contrary to findings of the Disciplinary Authority, the High Court  accepted
the version of the Respondent that he fell ill and was being  treated  by  a
local  doctor  without  assigning  any  reasons.   It  was   held   by   the
Disciplinary Authority that the Unit had  better  medical  facilities  which
could have been availed by the Respondent if he was  really  suffering  from
illness. It was further  held  that  the  delinquent  did  not  produce  any
evidence of treatment by a local doctor. The  High  Court  should  not  have
entered into the arena of facts  which  tantamounts  to  re-appreciation  of
evidence.  It is  settled  law  that  re-appreciation  of  evidence  is  not
permissible in the  exercise  of  jurisdiction  under  Article  226  of  the
Constitution of India.  In State Bank of Bikaner and Jaipur  v.  Nemi  Chand
Nalwaiya reported in (2011) 4 SCC 584, this Court held as follows:

“7. It is now well settled that the courts will  not  act  as  an  appellate
court and reassess the evidence led in the domestic inquiry,  nor  interfere
on the ground that another view is possible on the material  on  record.  If
the inquiry has been fairly and properly held and the findings are based  on
evidence, the question of adequacy of the evidence or  the  reliable  nature
of the evidence will not be grounds for interfering  with  the  findings  in
departmental enquiries. Therefore, courts will not interfere  with  findings
of fact recorded in departmental enquiries, except where such  findings  are
based on no evidence or where they are clearly perverse. The  test  to  find
out perversity is to see whether a tribunal  acting  reasonably  could  have
arrived at such conclusion or  finding,  on  the  material  on  record.  The
courts will however interfere with the findings in disciplinary matters,  if
principles of natural justice or statutory regulations  have  been  violated
or if the order is found to be arbitrary, capricious, mala fide or based  on
extraneous considerations. (Vide B.C. Chaturvedi v. Union  of  India [(1995)
6 SCC 749: 1996 SCC (L&S) 80:  (1996)  32  ATC  44], Union  of  India v.  G.
Ganayutham [(1997) 7 SCC 463: 1997 SCC (L&S) 1806], Bank of  India v. Degala
Suryanarayana [(1999) 5 SCC 762: 1999 SCC  (L&S)  1036]  and High  Court  of
Judicature at Bombay v. Shashikant S. Patil.”

In Union of India & Ors. v. P. Gunasekaran reported in  (2015)  2  SCC  610,
this Court held as follows:

   “12. Despite the well-settled position, it  is  painfully  disturbing  to
note that the High  Court  has  acted  as  an  appellate  authority  in  the
disciplinary proceedings,  re-appreciating  even  the  evidence  before  the
inquiry officer. The finding on Charge I was accepted  by  the  disciplinary
authority and was also endorsed by the Central Administrative  Tribunal.  In
disciplinary proceedings, the High Court is not and cannot act as  a  second
court of first appeal. The High Court,  in  exercise  of  its  powers  under
Articles 226/227 of the Constitution of India, shall not  venture  into  re-
appreciation of the evidence. The High Court can only see whether:
(a) the inquiry is held by a competent authority;
(b) the inquiry is held  according  to  the  procedure  prescribed  in  that
behalf;
(c) there is violation of the principles of natural  justice  in  conducting
the proceedings;
(d)  the  authorities  have  disabled  themselves  from  reaching   a   fair
conclusion by some considerations extraneous to the evidence and  merits  of
the case;
(e) the authorities have allowed themselves to be influenced  by  irrelevant
or extraneous considerations;
(f) the conclusion, on the very face of  it,  is  so  wholly  arbitrary  and
capricious that no reasonable person 13.could  ever  have  arrived  at  such
conclusion;
(g)  the  disciplinary  authority  had  erroneously  failed  to  admit   the
admissible and material evidence;
(h)  the  disciplinary  authority  had  erroneously  admitted   inadmissible
evidence which influenced the finding;
13.(i) the finding of fact is based on no evidence.


13. Under Articles 226/227 of the Constitution  of  India,  the  High  Court
shall not:
(i) re-appreciate the evidence;
(ii) interfere with the conclusions in the inquiry, in  case  the  same  has
been conducted in accordance with law;
(iii) go into the adequacy of the evidence;
(iv) go into the reliability of the evidence;
(v) interfere, if there be some legal evidence  on  which  findings  can  be
based.
(vi) correct the error of fact however grave it may appear to be;
(vii) go into  the  proportionality  of  punishment  unless  it  shocks  its
conscience.”

We are in agreement with the findings and  conclusion  of  the  Disciplinary
Authority as confirmed by the Appellate Authority and  Revisional  Authority
on Charge No. 1. Indiscipline on the part of a member of an Armed Force  has
to be viewed seriously.  It is clear that the Respondent  had  intentionally
disobeyed the orders of his superiors and deserted the Force  for  a  period
of 5 days.  Such desertion is an act of gross misconduct and the  Respondent
deserves to be punished suitably.

Charge No. 3 was that the  Respondent  had  become  habitual  in  committing
indiscipline  and  disorderliness.   A  reference  was  made  to  two  major
penalties of deduction of pay and  one  minor  punishment  of  reduction  of
seven days salary  earlier.   The  Disciplinary  Authority  found  that  the
Respondent did not improve in spite of being  punished  earlier.   The  High
Court agreed with the contention of the Respondent and  held  that  a  fresh
enquiry cannot be initiated into a misconduct for  which  a  delinquent  had
already suffered a penalty.  The High Court found that any  penalty  imposed
under Charge No. 3 would amount to double jeopardy.  We  disagree  with  the
finding of the High Court as we are of the view that the Respondent was  not
being tried again  for  previous  misconduct.  As  the  Respondent  did  not
improve in spite of being  punished  earlier  and  had  become  habitual  in
indiscipline and disorderliness, the Disciplinary  Authority  rightly  found
Charge No. 3 as proved.  The desirability of continuance of  the  Respondent
was considered on the basis of his past conduct which  does  not  amount  to
double jeopardy.  In any event, past conduct of a  delinquent  employee  can
be taken into consideration while imposing penalty.   We  are  supported  in
this view by a Judgement of this Court in Union of India  v.  Bishamber  Das
Dogra, reported in (2009) 13 SCC 102 held as follows:

"30.  ...... But in case of misconduct  of  grave  nature  or  indiscipline,
even in the  absence  of  statutory  rules,  the  authority  may  take  into
consideration the indisputable past conduct/service record of  the  employee
for adding the weight to the decision of  imposing  the  punishment  if  the
facts of the case so require."


The Respondent was exonerated of Charge No. 2 by  the  Appellate  Authority.
The Revisional Authority confirmed the order  of  the  Appellate  Authority.
The judgment relied upon by  the  Respondent  in  G.M.  Tank  Vs.  State  of
Gujarat and Ors.(supra) is not relevant  as  in  that  case  the  point  for
consideration was whether the departmental proceedings  can  be  held  after
acquittal of a public servant in a criminal case on similar set of facts.
12.    Though we are of the view that the  High  Court  ought  not  to  have
interfered with the order passed by the Disciplinary Authority, the  penalty
of dismissal from  service  is  not  commensurate  with  delinquency.    The
Respondent was found guilty of desertion of the Force for a period  of  five
days and not improving his conduct in spite of imposition  of  penalties  on
three occasions earlier.   For  the  above  delinquencies,  the  penalty  of
dismissal from service is excessive and harsh. In our view, the  penalty  of
compulsory retirement would meet the ends of justice.  We  are  informed  by
the counsel for the Appellants that the Respondent is entitled  for  pension
as  he  has  completed  10  years  of  service.   In  order  to  avoid   any
controversy, we direct that the Respondent shall be  entitled  for  notional
continuity of service  till  the  date  of  completion  of  minimum  service
required to make him eligible for pension.   He will  not  be  entitled  for
payment of salary and allowances for that period.
13.   For the aforesaid reasons,  the  Appeal  is  allowed  with  the  above
modification in the penalty.


                     .....…...........................CJI
                 [T. S. THAKUR]


........................................J
                           [Dr. D. Y. CHANDRACHUD]



                    ..……................................J
                                                   [L. NAGESWARA RAO]

New Delhi,
December 14, 2016

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