Sunil Kumar v. Union of India

1. This petition has been filed with the following prayers: “i. declare the Findings dated 13.07.2013 (at ANN P- 1), impugned final Order dated 31.10.2013 (at ANN P- 2), impugned appellate order dated 26.12.2013 (at ANN P-3), impugned order dated 23.01.2015 rejecting Revision Petition (at ANN P-4) and impugned Order dated 17.03.2020 (at ANN P-5) passes by respondent no.2 as unlawful and hence to quash and set aside the same. ii. direct the respondents to reinstate the petitioner with all consequential benefits including pay and allowances for the period of removal from service till joining the force, seniority, promotions and other all benefits. iii. any other relief which this Hon'ble Court may deem fit and proper in the interest of justice.”

2. The petitioner was recruited on the post constable/GD on 28.09.2011 in the Central Industrial Security Force (CISF) on compassionate grounds due to the death of his father while on duty in the same department. It is his case that on 08.06.2013 while posted in Kustaur Dhanbad, the petitioner was detailed for duty from 2100 hours i.e. 09:00 PM to 05:00 AM in the night intervening 08.06.2013 and 09.06.2013 in the area of Bhalgoda office premises while Head Constable Ved Pal [petitioner in W.P.(C) 6895/2022] was at Railway sliding. The petitioner was performing his duty when at about 03:30 AM, 12 to 14 unknown armed persons, according to the petitioner apprehended him and tied him to a tree at some distance with a rope and gagged him.

3. According to him, the unidentified persons broke seals of locks of 8 rooms out of 9 rooms between 03:30 AM to 04:15 AM. He further states that General Diary entry No. 908 dated 09.06.2013 at 05:25 AM, the entry recorded that locks had been broken and the petitioner was tied to the tree by thieves while HC Vedpal [Petitioner in W.P.(C) No. 6895/2022] was on duty. It is stated that on the same day Inspector B. N. Patra gave a written complaint about the said incident to the Police Post Burra Garh O.P incharge in P.S Jharia and also the area manager (Admn.) Bharat Coking Coal Ltd. An FIR No.241 dated 09.06.2013 under Section 461/382 Indian Penal Code, was registered.

4. It was thereafter, that a preliminary enquiry was conducted and statements of the Officials were recorded on 09.06.2013 and 10.06.2013. Additionally, on 26.06.2013, the area manager/Admn. of the said unit sent a list of articles stolen by the thieves during the night intervening between 08.06.2013 and 09.06.2013. After which a second preliminary enquiry was conducted by the Deputy Commandant and departmental proceedings were initiated against both the petitioners. The departmental enquiry concluded with the disciplinary authority ordering that the petitioner be removed from service.

5. The petitioner has challenged the findings of the enquiry report dated 13.07.2013; the final orders of penalty dated 31.10.2013, the findings of the appellate authority rejecting the appeal of the petitioner dated 26.12.2013; the findings of the authority rejecting the revision petition of the petitioner dated 23.01.2015 and the order dated 17.03.2020 pursuant to the directions of this Court on 31.01.2020

6. Mr. Vinod Dahiya, learned counsel appearing for the petitioner has strongly contended that there are discrepancies in the disciplinary enquiry in as much as the same was conducted with a premeditated mind to hold the petitioner guilty of the misconduct. He further submitted that certain material witnesses had not been examined. The disciplinary enquiry suffers from defects.

7. On the other hand, learned counsel for the respondent would justify the order passed by the disciplinary authority and also the revisional authority. According to him the said revision order has been passed after this Court had remanded the matter to the revisional authority only on the aspect of penalty. According to him, the revisional authority has passed a detailed/reasoned order justifying penalty of removal passed against the petitioner Sunil Kumar. Keeping in view the seriousness of the misconduct, more particularly the fact that the petitioner belonged to a disciplined force the penalty is justified.

8. Having heard the learned counsel for the parties, at the outset, it may be stated it is an admitted case of the petitioner that he had approached this court earlier in W.P.(C) 3221/2017 impugning the disciplinary proceedings initiated against him which resulted in the penalty of removal. The said petition was disposed of, by this Court vide order dated 31.01.2020 wherein the Court has stated as under:

of each of the Petitioners. A decision be taken afresh, uninfluenced by the earlier decision on punishment, not later than eight weeks from today. The consequential orders be communicated to each of the Petitioners by the Respondents, within a further period of two weeks. If aggrieved, it will be open either one or both Petitioners, to seek appropriate remedies in accordance with law.”

9. Having noted the order passed by this Court, the remand to the revisional authority was in respect of penalty imposed on the petitioner. Insofar as the finding of guilt of the petitioner is concerned the same has been approved by this Court in the previous writ petition. The petitioner has not challenged the said order before the higher forum. If that be so, the issue raised by the petitioner falls in a narrow compass, whether the penalty of removal imposed on the petitioner is justified. The revisional authority in the impugned order has in paragraphs 6 and 7 has retained the penalty of removal from service imposed on the petitioner by stating as under:

phone for long spell on different occasions during his duty hours, and thus the miscreants, taking this advantage committed the theft. This clearly shows careless and sheer negligence on the part of his bonafide duty. Not only so, he also concealed this factual information from his higher authorities and madeup a concocted story with the help of his other three co-accused that he was tied up with a rope to a tree by the miscreants just to cover up his misdeeds and to mislead the authorities. It was the prime duty of the petitioner to provide security and protect the plant property, during his duty and area of responsibility in the intervening night of 08/09.06.2013, but he failed do so and committed gross negligence on the part of his duty. The petitioner himself and his all the three coaccused viz. ASI/Exe S.P. Singh (PW-01), HC/GD Vedpal (PW-02) & Constable GD Kamal Narayan (PW-03) had categorically admitted their guilt in their statements during preliminary enquiry conducted by Shri R.P. Singh, then Dy. Commandant. But, later they all turned hostile during departmental enquiry being co-accused in this case. Besides, call details of petitioner's mobile No.8651408746 clearly indicate that he remained engaged in browsing internet over his mobile on different occasions from 00.14.39 hrs to 04.44.37 hrs in the intervening night on 08/09-06-

2013. The charges levelled against him had been found proved on sufficient evidences held on record. The petitioner was a member of Central Armed Police Force like CISF and his prime duty was to provide security & protection of the undertakings and thus he should have performed the assigned duty with utmost care and vigil. But he remained engaged in browsing internet over mobile phone, and resultantly, the miscreants committed theft by breaking the locks of 08 different rooms from "the area of his responsibility. The petitioner also concealed this factual information from higher authorities that he was tied up with a rope to a tree with other co-accused in the case and made a concocted story of being tied him by the miscreants, just to cover up his misdeeds. The petitioner, by doing so, defeated the very purpose of his employment in this force and thereby rendered himself unfit for further retention in the force. The petitioner being a trained soldier should have performed his duty with more vigil, especially on his duty post where valuable plant property was kept. But he failed to do so, and set a bad example amongst their colleagues, which cannot be overlooked. Hence, the disciplinary authority has rightly adjudged his case and awarded him proportionate penalty.

07. AND THEREFORE, in pursuance of the judgment order dated 31.01.2020, by Honble Court of Delhi, I have gone through the case file and other material evidences on record, which are relevant to the instant case for re-examination. The enquiry has been conducted strictly in accordance with the laid down procedure and no infirmity has been noticed. The petitioner was provided ample opportunity to defend his case. During the course of departmental enquiry, the charges levelled against the petitioner have been proved based upon the evidences, which emerged during the course of enquiry. From the evidences available on record, it has been found that the petitioner was deployed for 'C' shift duty from 2100 hours on 08.06.2013 to 0500 hours on 09.06.2013 at BCCL Kustur, Bhalgora office. During his duty hours miscreants committed theft by breaking the locks of 08 rooms out of 09 rooms from his assigned area of responsibility during his duty hours. Being a member of the Force, it was the prime duty of petitioner to provide security and protect the property of the undertaking from his assigned area of responsibility. But, he failed to prevent the theft to occur, which clearly shows his sheer negligence and gross carelessness on his part towards performing bonafide duty. The petitioner also concealed the information about the theft from higher authorities and made up a concocted story with the help of his other three coaccused that he was tied with a rope to a tree by miscreants in order to cover up his misdeeds and also with an intention to mislead the authorities. The petitioner himself and all the three co-accused viz. ASI/Exe S.P. Singh (PW-01), HC/GD Vedpal (PW-02) & Constable/GD Kamal Narayan (PW-03) have categorically admitted their guilt in their statements during preliminary enquiry. CISF is Armed Force of the Union and expects all its members of the Force to exhibit highest professional and moral standard in discharge of their duty of security and protection of Government property. But, the petitioner has shown utter disregard to his assigned responsibility and duty. The offence committed by the petitioner is very serious in nature, and thereby he has rendered himself unfit for further retention in the Force. The Disciplinary Authority rightly adjudged his case awarded the punishment of "Removal from Service", which is just and fair in accordance with the gravity of the offence committed by him. Thus, I found that the order passed by the Disciplinary Authority and upheld by the Appellate Authority stands good and does not warrant any further interference.”