29 Aug 2023 6:00 AM GMT
The Calcutta High Court has allowed a writ petition moved by a CISF constable challenging his dismissal from service for alleged lack of oversight during his duty at the ISSCO Steel Plant in Burnpur, due to which certain miscreants entered the plant wielding weapons, in an attempt to steal copper wire. In setting aside the order of dismissal, which labelled the petitioner a ‘conniver’ and...
The Calcutta High Court has allowed a writ petition moved by a CISF constable challenging his dismissal from service for alleged lack of oversight during his duty at the ISSCO Steel Plant in Burnpur, due to which certain miscreants entered the plant wielding weapons, in an attempt to steal copper wire.
In setting aside the order of dismissal, which labelled the petitioner a ‘conniver’ and of possessing ‘shady integrity’, a single-bench of Justice Partha Sarathi Chatterjee held:
A disciplinary authority acts a quasi-judicial authority and hence, observation and findings of such authority must be based on plausible evidence and such authority should not make any observation or comment which is not based on any evidence. Such an observation casts a stigma and leaves a permanent scar on the character of one person or employee and hence, it is expected that such authority must be circumspect in making such observation and/or comment.
Court said it was not proved by any convincing evidence that the petitioner allowed the vehicle through the tunnel gate without proper checking.
"An illegal order passed by the disciplinary authority does not assume the character of legality only because it has been affirmed in appeal or revision unless the higher authority is found to have applied its mind to the basic infirmities in the order. Here, without applying the mind, the order of punishment had been affirmed in appeal and in revision also," Court added.
The petitioner had been posted at the tunnel gate of ISSCO when one day in 2013, a group of miscreants drove into the premises, armed with hexa blades in an attempt to steal copper wire by loading it into their vehicle.
While the armed trespassers were ultimately apprehended from inside the premises, the petitioner, after a disciplinary proceeding was placed under suspension and thereafter dismissed from service, for lapses in thoroughly checking the vehicles entering the facility, leading to the apprehending vehicle entering unchecked or without any gate pass.
It was argued by counsel for the petitioner that initially, a preliminary inquiry was carried out into the matter, prior to the appointment of the enquiry officer, but such a report was not made available to the petitioner. Counsel submitted that the enquiry officer subsequently relied on the preliminary report, without the petitioner being served a copy, thereby violating his natural justice rights.
Petitioner argued that the findings of the enquiry officer was perverse without any evidence such as conclusive CCTV footage, since there existed a difference in witness statements, some of whom deposed as the intruding vehicle being a TATA Sumo, while another deposed of it being a Bolero vehicle, along with further inconsistencies on its registration number.
It was argued that the petitioner was only in charge of opening and closing the gate, and had been the junior-most member on his first day of duty at the tunnel gate, when the incident occurred.
Petitioner finally argued that while he had not allowed any vehicle to enter the premises without proper checking, no theft had occurred either, and that the punishment meted out to him was severely disproportionate, since many of his seniors got away with lesser punishments.
Respondents, on the other had argued that the petitioner had not adhered to the “strict discipline expected from a member of a disciplined force” and that the petitioner was not a novice at the time of occurrence and would have only needed a few seconds to check the offending vehicle.
Respondents submitted that had the petitioner intervened, such an incident would not have occurred, and that there were not procedural irregularities in the disciplinary proceedings, due to which it would not be open to the court to re-appreciate evidence.
In taking note of the submissions advanced by both parties, and observing that on the principal of preponderance of probability, there were several inconsistencies in the report made by the enquiring officer, which the prompted the “disciplinary authority to desperately fill up the lacunae,” the Court set aside the dismissal order of the petitioner and directed for him to be reinstated in service.
Burden lies upon the management to prove the allegation of misconduct and reverse onus cannot be imposed upon the delinquent. The enquiry officer returned his findings that the petitioner allowed a vehicle, WB-30H-9084 alias WB-40H-9084’ to enter into the plant premise and in claimed that allegations levelled against the petitioner stood proved. The disciplinary authority held that it was established that vehicle was a Tata sumo bearing no. WB-40H-9084 and by reason of a clerical error, ‘30H’ was recorded instead of ‘40H’.
The disciplinary authority had desperately tried to fill up the lacuna revealed in the enquiry report. In the final order, the it concluded that the vehicle bearing no. WB-40H-9084 was the vehicle which was allowed by the petitioner to enter into the plant premises, although seizure list clearly speaks that vehicle no. WB-30H-9084 was seized. In case of disciplinary proceeding when one official of a department is the complainant and another official of that department acts as quasi-judicial authority to punish, it is essential that such authority while discharging its functions must act impartially and without any bias or pre-determined mind. If it is found that a decision is perverse, irrational or grossly disproportionate, that decision will come under the purview of judicial review.
Case: Sri Ravi Kumar v Union of India & Others
Coram: Justice Partha Sarathi Chatterjee
Citation: 2023 LiveLaw (Cal) 245
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