Ex. Const/CISF Sushil Kumar v. UOI & Ors.

1. The present Petitions have been preferred by Ex. Const/CISF Sushil Kumar and Ex. Const/CISF Jagatbir Singh (hereinafter collectively referred to as „Petitioners‟ unless the context otherwise requires) under Article 226 of the Constitution of India for issuance of appropriate writ against the Respondents for quashing of Punishment Orders, Appellate Orders, and the Revision Orders, as impugned in the writ petitions, passed by the relevant Adjudicating Authorities. The Petitioners, in both the writ petitions, have been removed from service. They pray that the Orders removing them from service be set aside and the entire period of suspension and intervening period be treated as period spent on duty and grant of consequential benefits.

2. The Petitioner in W.P.(C) 4722/2007 was recruited in the CISF as Constable in the year 1990. In April, 2003, the Petitioner was posted at CISF Unit, AUGPS/NTPC, Dibiyapur, Aurariya, Uttar Pradesh.

3. The Petitioner in W.P. (C) 4982/2007 was recruited in the CISF as Constable in the year 1991. In July, 2003, the Petitioner was posted at CISF Unit, AUGPS/NTPC, Dibiyapur, Aurariya, Uttar Pradesh.

4. Shorn of unnecessary details, facts leading to the filing of the present Writ Petitions are as follows: a. NTPC organized a cultural/orchestra programme on the occasion of Raising Day celebration of NTPC on 07.11.2004 at the Kendriya Vidyalaya, NTPC ground. The personnel of CISF including both the Petitioners, were deployed at the the programme which commenced around 8:30 PM. b. During the programme, there was a scuffle between the Petitioners and one Mr. B.K. Panday, Officer (HR) - NTPC, wherein Mr. B.K. Panday sustained injuries which were inflicted on him by the Petitioners. It is the case of the Respondents that at around 11 pm, Asst. Commandant (Fire) Mr. O.P. Sharma/Respondent No. 8, reached the venue and the Petitioners were ordered to go back to their respective homes. c. Based on the said events that transpired at the KV, NTPC ground; an Order of Suspension was issued to both the Petitioners on the very next day, i.e., 08.11.2004, suspending both the Petitioners indefinitely. Relevant extract of the said Suspension Orders dated 08.11.2004 is as follows: In W.P.(C) 4722/2007 "Whereas a disciplinary proceedings against NO. 901402800 Constable Sushil Kumar CISF Unit, AnGPS/NTPC Dibiyapur, Auraiya is contemplated.

2 Now, therefor, the undersigned in exercise of the powers conferred by Sub-Rule (1) of Rule 33 of CISF Rules, 2001 places the above said member of the Force under suspension with immediate effect.

3. It is further ordered that during the period that this order shall remain in force, the HQrs, of the above said member of the Force shall be CISF Unit, AGPS/NTPC Dibiyapur, Auraiya and he shall not leave HQrs without obtaining the prior permission of the undersinged.” In W.P.(C) 4982/2007 “Whereas a disciplinary proceedings against NO. 914526526 Constable Jagatbir Singh CISF Unit, AnGPS/NTPC Dibiyapur, Auraiya is contemplated.

2. Now, therefor, the undersigned in exercise of the powers conferred by Sub-Rule (1) of Rule 33 of CISF Rules, 2001 places the above said member of the Force under suspension with immediate effect.

3. It is further ordered that during the period that this order shall remain in force, the HQrs., of the above said member of the Force shall be CISF Unit, AnGPS/NTPC Dibiyapur, Auraiya and he shall not leave HQrs without obtaining the prior permission of the undersinged." d. On 25.11.2004, both the Petitioners received their respective Charge Memos under Rule 36 of CISF Rules, 2001. Two charges were levelled on the Petitioner Sushil Kumar and three charges were levelled on the Petitioner Jagatbir Singh. The relevant extract of the Charge Memos dated 25.11.2004 is as follows: “ CHARGE-1 Act of indiscipline by Force No.901402800, Shri Sushil Kumar, posted in Unit EUGPSC/NTPC/Diviya Pur on 7.11.04 at about 2230 Hrs on the occasion of Cultural and Orchestra programmed on the occasion of Celebration of Raising Day of NTPC organised by its management, alongwith Force No.914525526 Const. Jagatbir Singh misbehaved with Shri B.K.Pandey Officer (HR) NTPC Diiviyapur and beat him resulting in injuries. This act of indiscipline by the member of the force is untenable resulting in tamishing the image of the force. CHARGE-2 Force No.901402800 Const. Sushil Kumar of CISF is posted at the Unit of NTPC, Diviya Pur area was directed on 07.11.04 at about 2300 Hrs by The Asstt Commdt. (Fire) Shri O.P.Sharma, to leave the place of NTPC where the Cultural/Orchestra programme was being organized and to go back to his residence, but instead he disobeyed the directions of his seniors Being the member of the CISF, this act of him is highly tenable and indiscipline.” “ CHARGE NO.1 An act of indiscipline by Force No.914526526, Const Jagatbir Singh, CISF posted in Unit AUGPS/NTPC, Divya Pur. Oriya. A cultural/orchestra programme was organised on the occasion of Raising Day Celebration of NTPC ON 07.11.2004 in the KV Ground. The programme started at about 2030 Hrs. The employees of NTPC and the members of CISF, Unit AUGPS/NTPC were sitting in the pandal. During the programme there started halla gulla on the demand of dance in the programme. The employees of NTPC tried to convince the CISF personnel regarding non-inclusion of the dance in the programme Shri Panday was informed regarding the situation over telephone. On receiving the intimation Shri Panday and Shri O.P Sharma, Asstt. Commandant, CISF, immediately reached the ground and directed Cons SK Rana to take away Force No.9145264526 Const. Jagatbir Singh and Force No. 901402800 Const Sushil Kumar, to their lines. In between Force No 901402800, Const. Sushil Kumar, who was sitting in the ground came to started misbehaving and beating with Shri B.K.Panday, Officer (HR) in which Shri Panday sustained multiple injuries Employees of NTPC and Asstt. Commandant interfered and get them separated And again as Shri B.K.Panday reached near to the gate, Force No 9145264526, Const. Jagatbir Singh and Force 901402800 Const. Sushil Kumar started quarrel with Shri B.K. Panday, Being a member of the force, this act of beating with the Management Official is an act of indiscipline. Hence this is a charge. CHARGE-2 Force No.914526526, Const. Jagatbir Singh CISF is posted in Unit On 07.11.2004 at about 2300 Hrs, the AUGPS/NTPC, Divya Puar, Oriya. Asstt. Commandant (Fire) Shri O.P Sharma, who was at the guest house reached the ground where the Cultural/Orchestra programme was going on, on receiving intimation. He directed the above named personnel of CISF to go back to their line. In spite of the instructions of the Sr. Officer, he did not go to his line. Being a member of CISF the act of non obeying the seniors is an act of indiscipline. Hence it is a charge. Charge No.3 Force No.914525526, Const. Jagatbir Singh CISF is posted in Unit AUGPS/NTPC, Divya Pur, Oriya. He was given punishment of deduction of salary equal to four days during his posting at OIL/Duliyan by Asstt.Commandant, CISF oil, Duliyan under Orders No.15015/27/CISF/D/JV/2002/1426 Dated 14.08.2002 for misbehaving and creating nuisance after drinking on 15.06.2002. Even then he failed to bring changes in him. Hence, it is a charge." e. Based on the abovementioned charges, enquiries were held. One Mr. Sumant Singh, Dy. Commandant/CISF, was assigned as the Enquiry Officer. After the completion of enquiry, Enquiry Reports were filed by the Enquiry Officer. The Enquiry Officer held that all the charges levelled against the Petitioners were proved. Relevant extract of the Enquiry Reports are as follows: “It is clear from the above that both the parties are blaming each other for beating and misbehavior. Medical Reports are says that both the parties received injuries. The statement of AC, CISF recorded in the CW-2 also proves that there was beating. The written & oral statement of CW- 2 and written report submitted by the employes also give rise to this that Sushil Kumar picked up quarrel with Shri B. K. Panday. It clarifies that both the parties indulged in beating each other. It is also clear that Shshil Kumar misbehaved and picked up quarrel with Shri Panday. The medical carried out after the quarrel also proves that Shri Panday sustained heavy injuries. So Allegation No.1 is proved.” “It is clear from the statement of Asstt. Commandant, CISF that he had instructed Shri Sushil Kumar to leave the Pandal and go back to his line. This is also clear from the statement of the witnesses of the prosecution and also by the accused himself. The member of the Force says that he was going to his line and this incidence happened on the way does not seems to be factual. Had he obeyed the orders of Asstt. Commandant, CISF and left for his line peacefully and not indulged with Shri Panday in unnecessary talking, the situation of quarrel would not have arisen. Remaining of the accused on the spot and indulging in unnecessary talks and quarrel clears state that he disobeyed the orders of his senior officer, Asstt. Comandant, CISF. So the allegation no.2 is proved.” f. The Disciplinary Authority vide Orders dated 16.03.2005, imposed a penalty of ‘Removal from Service’ upon the Petitioners. The relevant extracts of the Orders dated 16.03.2005 are as follows: "For the proved allegations Force No.901402800, Const. Sushil Kumar, CISF, Unit AUGPS/NTPC, Divya Pur, Oriya (U.P) is eligible for the punished and so based on the proved allegations less punishment is not legible. So as per clause 32 Anuchuchi (1) using my powers, I convey the punishment of "Removal from Service to Force No.901402800, Const. Sushil Kumar, CISF, Unit AUGPS/NTPC, Divyapur, Oriya (U.P). The suspension period from 08.11.04 to 13.03.2005 of Force No.901402800, Const. Sushil Kumar, CISF, Unit AUGPS/NTPC/Divya Pur, Oriya (U.P) would be considered as Dies Non. That only Suspension Allowance and not any allowance would eligible to Force No.901402800, Const. Sushil Kumar, CISF.. Unit AUGPS/NTPC, Divya Pur, Oriya (U.P). That if Force No 901402800, Const. Sushil Kumar, CISF, Unit AUGPS/ntpc, Divya Pur, Oriya (UP) wishes to appeal, he can appeal to the Dy. Commandant, CIFS, North Region, Head Office, Sake, New Delhi within 30 days from the date of receipt of this order. That Force. No.901402800, Const. Sushil Kumar, CISF, Unit AUGPS/NTPC, Divya Pur, Oriya, (U.P) would be provided a copy of this letter free of cost and Const.Sushil Kumar, CISF, Unit AUGPS/NTPC, Divya Pur, Oriya (U.P) would acknowledge receipt of this letter.” “For the proved allegations Force No.914526526, Const.Jagatbir Singh, CISF, Unit AUGPS/NTPC, Divya Pur, Oriya (U.P) is eligible for the punished and so based on the proved allegations less punishment is not legible, So as per clause 32 Anuchuchi (1) using my powers, I convey the punishment of "Removal from Service to Force No.914526526, Const. Jagatbir Singh, CISF, Unit AUGPS/NTPC, Divyapur, Oriya (U.P). The suspension period from 08.11.04 to 13.03.2005 of Force No.914526526, Const. Jagatbir Singh, CISF, Unit AUGPS/NTPC/Divya Pur, Oriya (U.P) would be considered as Dies Non. That only Suspension Allowance and not any allowance would eligible to Force No.914526526, Const. Jagatbir Singh, CISF.. Unit AUGPS/NTPC, Divya Pur, Oriya (U.P) That if Force No.914526526, Const. Jagatbir Singh, CISF, Unit AUGPS/NTPC, Divya Pur, Oriya (U.P) wishes to appeal, he can appeal to the Dy. Commandent, CIFS, North Region, Head Office, Sake, New Delhi within 30 days from the date of receipt of this order. That Force No.914526526, Const. Jagatbir Singh, CISF, Unit AUGPS/NTPC, Divya Pur, Oriya, (U.P) would be provided a copy of this letter free of cost and Const Sushil Kumar, CISF, Unit AUGPS/NTPC, Divya Pur, Oriye (UP) would acknowledge receipt of this letter" g. The Petitioners preferred an appeal against the said Orders of the Disciplinary Authority. The Appellate Authority vide Orders dated 17.08.2005 dismissed the appeals. h. The Petitioners filed revision petitions against the dismissal of appeals, which were also rejected by the Revisional Authority vide Orders dated 02.08.2006 and 14.08.2006 stating that the petitions lacked merit. The relevant extract of the Orders of the Revisional Authority is reproduced as under:-

order and revision petition submitted by the petitioner, I found that during the course of enquiry it has been fully established from the statements of all PWs that on 07.11.04 at about 2230 hours while the Orchestra programme on the eve of Raising Day of NTPC was in progress, there was a loud appeal for a lady's dance from the audience consisting of employees of the NTPC and CISF. Shri G.V.K. Moorthy, General Secretary contacted Shri B.K. Pandey and requested him to come over along with AC/CISF as the CISF Jawans were making nuisance in the ground. While, Shri B.K. Pandey tried to pacify the situation. Constable Sushil Kumar together with Constable Jagatvir Singh physically assaulted Shri B.K. Pandey, officer (HR) by punching.him in his stomach and chocking his neck which resulted in Shri Pandey sustaining injuries. In support of his injuries, Shri Pandey produced a medical examination report issued by the Medical Officer, PHC Dibiyapur, Auraya. Besides, the petitioner together with Constable Jagatvir Singh not only manhandled Shri Pandey, but also abused Shri Pandey using unparliamentary language. However, the statements of witness Constable S.K. Rana, Constable Gauri Shanker and Constable Satbir Singh speaks that it was Shri B.K. Pandey who hit the petitioner and the petitioner sustained injury on his nose. In support of injury, the petitioner also produced his medical certificate issued by the Medical Officer PHC, Dibiyapur. The medical report submitted by the petitioner indicates that the petitioner sustained a minor injury i.e on his nose, whereas Shri Pandey has sustained multiple injuries on different part of his body. In the departmental enquiry, it has been established that Shri Pandey and petitioner both sustained injuries on the said date and time, but majority of the depositions of prosecution witnesses clearly establish the charges levelled against the petitioner. The statements of all the PWs are also corroborating each others statement in conformity of the charges and therefore, I have no reason to disbelieve their depositions, as they were eye-witness account of the incident. Being a member of Armed Force of the Union; the misconduct on the part of the petitioner has undoubtedly tarnished the image of the CISF.

9. With regard to Article of Charge-2, I found that on 7.11.04 at about 2230 hours when the employees and CISF Jawans created a nuisance, Shri Pandey (officer- HR) and Shri O.P. Sharma, Asstt. Commandant/Fire reached the spot and enquired from Constable S.K. Rana(Court Witness) and the petitioner about the quarrel. On receiving a negative reply from both of them, Shri O.P. Sharma directed Constable S.K. Rana to take the petitioner out of the ground. Further, when Shri O.P. Sharma arrived near KV Gate, he saw the petitioner and Constable Jagatvir Singh involved in a quarrel. On this the petitioner was directed to leave the spot and proceed to his residence by Shri O.P. Sharma, AC/Fire but the petitioner did not obey the order of Shri O.P. Sharma AC/Fire continued to remain there. The above facts have also been established on the statements of PWs adduced during the course of enquiry.

10. I find that the departmental enquiry has been conducted as per laid down procedure and petitioner has been punished on proven charges. I am of the view that the appellant's misconduct as well as disobedience of lawful order of superiors stands fully established. The depositions of the witnesses as well as circumstantial and documentary evidence brought forth in the enquiry have clearly brought home the charges against the petitioner. There is no infirmity in conducting the departmental enquiry as the EO has conducted the DE as per the laid down procedure. The appellant was given ample opportunity to defend his case at all stages. As such the pleas put forth by the petitioner in his revision petition are devoid of merit.

11. The act committed by the appellant being a member of disciplined armed force of the Union constitutes grave misconduct. Such an act not only bring a bad name to the uniformed force, but its gravity gets compounded, if done by a person in khaki. Allowing such persons to remain in the uniformed force would be a stigma to the organization, which is supposed to act as a protector of life & property. Thus, in view of the above, I do not find any reason whatsoever, to interfere in the order passed by the Disciplinary Authority and upheld by the Appellate Authority i.e. DIG/NZ, which is commensurate with the gravity of the proven misconduct. Therefore, in exercise of power conferred upon me under rule 54 of CISF Rules 2001, I, REJECT the revision petition submitted by No. 901402800 Ex- Constable Sushil Kumar being devoid of merit.”

Shri B.K. Pandey, an Officer (HR) NTPC Dibiyapur who sustained minor injuries. At about 2215 hrs, during the ongoing Orchestra programme, the audience demanded a dance on a particular song from the Orchestra party, which was not agreed to by the Organizing Committee. On this, the audience on a particular side including the petitioner and Const Sushil Kumar started making noise. The officials Human Resource of Management (Organizing Committee) including Shri B.K. Pandey, Officer (HR) NTPC reached the spot and asked the audience including the petitioner to leave the place. On this an argument followed by a scuffle between the petitioner and Shri B.K. Pandey, causing minor injuries to Shri Pandey. Besides, when AC/CISF ordered the petitioner to leave the place and to proceed to the Unit lines/residence, the petitioner disobeyed his order. The statements of all the PWs & other evidence adduced during the enquiry are strongly corroborative and in conformity with the charges leveled against the petitioner. During the course of departmental enquiry ample opportunity was given to the petitioner to defend himself, but he could not rebut the allegations and completely failed to prove his innocence. Therefore, the pleas put forth by the petitioner in his revision petition are neither justified nor tenable.