- (1.) HEARD the counsel for the parties.
(2.) THE order of punishment dated 2.8.1997 (Annexure -10) passed by the Commandant, CISF Unit, BSL by which petitioner was removed from service is under challenge in the present writ application. The appellate order dated 4.11.1997 (Annexure -11) passed by the D.I.G., CISF Unit confirming the punishment is also under challenge so is the Office order dated 27.1.1998 (Annexure -12) passed by the Inspector General, Eastern Sector Headquarters, Patna whereby the mercy appeal (revision) of the petitioner has also been rejected. The short facts of the case are that the petitioner was working as a constable in the Central Industrial Security Force (CISF) at the relevant point of time when on complaint of the Sub -Inspector -Fire, P.K. Thapliyal made on 13.1.1997, a departmental proceeding was initiated against the petitioner for charges of major misconduct. The petitioner was also placed under suspension by the order dated 13.1.1997 (Annexure -2). The charge -sheet dated 4.4.1997 (Annexure -4) indicates that the petitioner was charged with gross misconduct and indiscipline as he had assaulted the Sub -Inspector P.K. Thapliyal injuring him on 9.1.1997 at about 15.15 hours. The petitioner made his reply on the charges and, thereafter, it being found unsatisfactory, an inquiry officer was appointed. Petitioner objected to the appointment of the said inquiry officer, who was of the rank of Inspector and requested for appointment of another inquiry officer not below the rank of Assistant Commandant. The said request was rejected by the disciplinary authority as being devoid of merit and petitioner was asked vide letters dated 19.5.1997, 27.5.1997, 11.6.1997 and 16.6.1997 to cooperate with the inquiry officer in the departmental inquiry. The petitioner, however, did not turn up in the said inquiry. The inquiry officer, thereafter, conducted the inquiry ex -parte and submitted his findings to the disciplinary authority wherein he found the charge leveled against the petitioner to be proved. During the course of the inquiry 7 witnesses were examined. P.W. 1, Saaudagar Singh deposed that on the fateful day after hearing noise he came out to find that the petitioner was running out of the room and the S.I., P.K. Thapliyal was also coming out of the room with blood oozing out from his lateral part of his head and was told by one constable Ajit Singh that he had been assaulted by the petitioner. P.W. 2, Premchand, who was also constable, gave his statement that he also rushed on hearing noise and found the petitioner running out of the room of S.I. in a P.T. Dress and while coming out of the room, in haste he also fell down. Similarly, P.Ws. 2 to 6 have also deposed about the incident and on the basis of which the inquiry officer arrived at a finding of guilt of the delinquent -petitioner. Petitioner, thereafter was given a copy of the inquiry report for submitting his representation, if any within 15 days. The petitioner's representation had been submitted before 30.6.1997 within the time fixed for filing representation. The disciplinary authority i.e. Commandant of C.I.S.F. Unit B.S.L., thereafter, by a detailed reasoned order passed the order of punishment dated 2.8.1997. The disciplinary authority took into account the grounds raised by the petitioner that his request for change of inquiry officer was rejected and recorded in his findings that the petitioner has failed to make out a valid ground for change of the inquiry officer. He has also stated that the inquiry was conducted ex -parte since petitioner did not cooperate in the inquiry by turning up before the inquiry officer. The disciplinary authority after consideration of the entire evidences including the statement given by the witnesses, the representation as also the report of the inquiry officer, came to a finding that the petitioner had committed gross misconduct in a uniformed service like the C.I.S.F. for which he should be imposed maximum penalty by removing him from service. The petitioner, thereafter, preferred appeal before the D.I.G., C.I.S.F. The Appellate Authority by the order dated 4.11.1997 discussed all the grounds which have been taken by the petitioner -appellant, which were mere reiteration of the grounds taken before the inquiry officer inter alia that the inquiry officer was not changed, conducting ex -parte inquiry and the disciplinary authority has not considered his defence. Thereafter, the appellate authority also came to a concurrent finding that the order of the punishment imposed upon the petitioner does not suffer from any error and accordingly, the punishment of removal from service was affirmed. Petitioner once again preferred revision/mercy appeal. It is submitted by the counsel for the respondent that there is no provision of any mercy appeal rather the same was treated as revision. Accordingly, the revision preferred by the petitioner was considered by the Inspector General of C.I.S.F., Eastern Headquarters, who again discussed the entire grounds raised by the petitioner enumerated as (a) to (g) in the order dated 27.1.1998 and the order of punishment and the appellate order were also confirmed.
(3.) COUNSEL for the petitioner, during the course of his submissions has assailed the impugned order primarily on the grounds that the inquiry officer was not changed despite request of the petitioner made before the disciplinary authority; that the inquiry was conducted in an ex -parte manner; that the petitioner was not given adequate opportunity, since no second show cause was served upon him before passing of the impugned order by which maximum penalty of removal from service was imposed. Petitioner has relied upon the judgment passed by the Hon'ble Supreme Court of India rendered in the case of B.D. Gupta vs. State of Haryana reported in A.I.R. 1972 page 2472, para 16 thereof to submit that in order to enable the petitioner to make effective representation against the proposed punishment, the second show cause is an essential requirement which has not been followed in the instant case and therefore, the entire orders passed by the disciplinary authority and subsequently affirmed by the higher authorities are vitiated in law.;