Tapabrata Chakraborty J. - (1.) The short point which arises for consideration in the instant appeal is as to whether the denial of personal hearing to the charged officer in a proceeding, initiated under the provisions of the Central Industrial Security Force Rules, 2001 (hereinafter referred to as the said Rules of 2001), has maligned the decision making process towards issuance of the final order of punishment by the disciplinary authority upon disagreeing with the Inquiry Officer.
(2.) The said issue needs to be decided in the backdrop of the facts that initially a disciplinary proceeding was initiated against the writ petitioner/respondent through issuance of a charge sheet dated 8th July, 2008. The respondent contested the said proceedings and upon conclusion of enquiry, a report was filed to the effect that the allegations levelled do not stand proved. Subsequent thereto, by a memorandum dated 28th July, 2009 direction was issued that there should be a re-inquiry into the charges. Aggrieved by the said memorandum the respondent approached this Court by a writ petition being W.P. 8879 (W) of 2009 and the same upon contested hearing the same was disposed of by an order dated 26th August, 2009 quashing the memorandum under challenge. Thereafter the Senior Commandant issued a disagreement note dated 30th/31st December, 2009 disagreeing with the Inquiry Officer. The respondent submitted a written representation to the said disagreement note praying for grant of an opportunity to be heard. Without granting any such opportunity of personal hearing, a final order of punishment was passed on 5th February, 2010. Challenging the said order of punishment the respondent preferred a writ petition being W.P. 3090 (W) of 2010 which was allowed by an order dated 23rd July, 2015 setting aside the disagreement note and the final order of punishment. Aggrieved thereby, the present appeal has been preferred.
(3.) Mr. Sanyal, learned senior advocate appearing for the appellants argues that in the absence of any provision towards grant of an opportunity of personal hearing under Rule 36(21)(iii) of the said Rules of 2001, the learned Judge ought not to have set aside the disagreement note and the final order of punishment on the ground of denial of personal hearing to the respondent. The respondent submitted a written representation in response to the disagreement note and upon due consideration of the same, in strict consonance with the rules, the final order of punishment was passed and that as such there is no error in the decision making process warranting interference of the Hon'ble Court. Rule 36(21)(iii) only speaks of grant of an opportunity of hearing by way of a written representation or submission to the disagreement note. Such written representation was called for and the respondent duly submitted the same and upon consideration of the same the final order was passed. In the said representation the respondent himself did not pray for grant of any personal hearing. In the writ petition the said Rule 36(21)(iii) was not challenged and after submitting a representation to the disagreement note, the respondent could not have challenged the final order of punishment on the ground of denial of personal hearing. In support of such argument reliance has been placed upon a judgment delivered in the case of Ganesh Santa Ram Sirur v. State Bank of India and another, reported in (2005) 1 SCC 13.;