M A ANTHONY Vs. UNION OF INDIA

JUDGEMENT

(1.) THE petitioner was an employee of the CISF. On certain allegations of misconduct, disciplinary proceedings were initiated against him, which culminated in Ext. P4 enquiry report finding the petitioner guilty of the misconducts based on which, Ext. P6 order of punishment of dismissal from service was imposed on the petitioner. His appeal against the same was rejected by Ext. P8. The petitioner is challenging Exts. P4 enquiry report and P6 and P8 orders in this original petition. Prior to joining CISF, he was in the army for the period from 1970-1983. While he was in the army, disciplinary proceedings were initiated against him for allegation of misconduct of absence without leave and other misconducts. According to the petitioner, while the disciplinary proceedings were pending he was discharged from service in 1983 and he was also issued with a discharge certificate, on the basis of which he applied for employment in CISF as a constable in the quota reserved for ex-service men. He joined CISF on 28. 5. 1986. The petitioner alleges that on 3. 10. 2001 he was called to the office of the commandant and was coerced into giving a statement to the effect that he was actually dismissed from the service of the army pursuant to disciplinary proceedings. He was suspended on 9. 10. 2001 from the employment of the CISF on the ground that he obtained employment suppressing the fact that he was dismissed form the army service. The disciplinary proceedings ended in Exts. P4 enquiry report and P6 and P8 orders. The petitioner raises three contentions now. The first is that even before the supplying a copy of the enquiry report under cover of Ext. P3 letter, disciplinary authority had already entered a finding regarding guilt of the petitioner and therefore the entire proceedings are vitiated. The second is that before imposing the punishment of dismissal, the petitioner was not given an opportunity of being heard on the punishment. The third is that there was no sufficient evidence to hold the petitioner guilty of any misconduct.

(2.) I have heard the learned Assistant Solicitor General also. As regards the first contention Ext. P3 reads thus: "2. The report of Enquiry Officer alongwith its exhibits is enclosed. The Disciplinary Authority agree with the findings of enquiry Officer with regard to Article of charges I and II. 3. If you wish to make any representation or submission against the report of Enquiry Officer, you may do so in writing to the Disciplinary Authority within 15 days from the date of receipt of this letter. The disciplinary authority will take a suitable decision after considering your representation. " of course going by the wording used in paragraph 2 of Ext. P3 it would prima facie appear that the disciplinary authority had already taken a decision to agree with the finding of the enquiry officer. However, paragraph 3 makes it abundantly clear that the agreement mentioned in paragraph 2 is only a provisional conclusion and the petitioner was being given an opportunity to represent against the findings of the enquiry officer. This is further clear from Ext. P4 order, whereby the petitioner's representation had been elaborately considered and the disciplinary authority had entered findings in respect of each charges, giving elaborate reasons for the same. Therefore I am not satisfied that the contention of the petitioner that the disciplinary authority had, even before supplying a copy of the enquiry report, already taken a decision to agree with the finding of the enquiry, is correct.

(3.) BUT I find considerable merit in the second contention of the petitioner to the effect that before passing an order of punishment the petitioner was not afforded an opportunity of being heard on the proposed punishment. In Ext. P3 there is no mention of any proposed punishment. It confines merely to the findings of the enquiry officer. Ext. P6 order refers only to Ext. P3 and no other subsequent communication giving the petitioner an opportunity to show cause against the proposed punishment. Straight away, after agreeing with the findings of the enquiry officer, the disciplinary authority had proceeded to impose punishment of the dismissal from service on the petitioner, without giving a chance to the petitioner to represent against the punishment. Going by the decisions of the Supreme Court on the subject this is clearly unsustainable. The Supreme Court has held that a delinquent employee is entitled to a chance to represent against the proposed punishment in addition to a chance to represent against the findings in the enquiry. Therefore Ext. P6 to that extent is unsustainable. Consequently Ext. P8 also is unsustainable to that extent.