PER HARISH TANDON, J. - (1.) THE petitioner in this writ petition has assailed the order of the disciplinary authority dated 14.11.2009 by inflicting the punishment of removal from service with immediate effect which was affirmed by the appellate and revising authorities by order dated 5.2.2010 and 16.4.2010 respectively.
(2.) THE short facts which are necessary for the present purposes are that the petitioner, an employee under the Central Industrial Security Force (for short CISF) was posted at CISF Unit, Kolkata Port Trust at the relevant time. The petitioner has been suspended as during the surprise visit on 14,05.2009, he was found in possession of 7 pieces of cloths for which he could not satisfactorily accounted for. The petitioner submitted his statement on 14.5.2009 pleading his guilty but subsequently filed further statement on 15.5.2009, on the s:;ore that the said statement should not be considered as has been done under tremendous pressure and mental agony. The petitioner was put under suspension with effect from 14.5.2009. The Enquiry Authority framed the article of charge and the statement of imputations of misconduct or misbehaviour together with the list of documents and witnesses and served the same upon the petitioner inviting his statement against the said charge. The witnesses on behalf of the prosecution deposed and were cross -examined by the petitioner. The Presenting Officer, thereafter, submitted his finding to the inquiry officer who afforded an opportunity to the petitioner to give reply to the said finding. Ultimately, after considering the finding of the presenting officer and the reply of the petitioner, the inquiry officer found that the charge against the petitioner is proved and forwarded his report to the disciplinary authority for further action. The disciplinary authority after giving an opportunity to the petitioner to make further representation and/or submission against the report of the inquiry officer found the petitioner guilty of misconduct having violated the prescribed standing operation procedure and inflicted the penalty of removal from service with immediate effect.
(3.) THE appellate and revising authorities also did not interfere with the said order of the disciplinary authority and merely affirms an order Inflicted the punishment of removal from service. Mr. Moloy Kumar Basu, the learned Advocate appearing for the petitioner attacked the decision of the disciplinary authority, appellate and revising authorities in contending that the employee cannot be punished on the charge which is not included in the article of charges. He further submits that if the disciplinary authority decided to hold an inquiry by appointing an enquiry officer then the enquiry officer after complying the provisions contained under Rule 36 of the Central Industrial Security Force Rules 2001 shall return the finding of guilty in respect of those article of charge for which the enrolled member of the force is found guilty under Sub Rule19 of the said rule. He contends that there is no statutory rule which provides that the enrolled member of the force should keep Rs.20/ -only while on duty. He further contends that even if there is any executive instruction, the same has no statutory force and relies upon a judgment of the Supreme Court in case of Manishankar v. Union of India and Anr. reported in 2008 3 SCC 484. He vehemently submits that the enquiry officer cannot take into consideration any fact which does not relate to the article of charge and also cannot shift the burden of proof, by placing reliance upon a judgment of the Supreme Court in case of M.V. Bijlani. v. Union of India and Anr. reported in 2006 5 SCC 88.;