- (1.) CHALLENGE in this writ application is to the: - (i) Order dated 05.03.2008 (Annexure -13), passed by the Respondent No. 4, whereby the petitioner was dismissed from service. (ii) Order dated 11.07.2008 (Annexure -14), passed by the Respondent No. 3, dismissing the appeal, filed by the petitioner against the order of his dismissal. (iii) Order dated 10.09.2008 (Annexure -15), passed by the Respondent No. 2, whereby the Revision application filed by the petitioner was also dismissed. The petitioner has further prayed for a direction to the Respondents to reinstate him in service with full back wages for the dismissal period alongwith all consequential benefits and also alongwith interest thereon.
(2.) HEARD Mr. R. S. Mazumdar, learned counsel for the petitioner and Mr. Md. Mokhtar Khan, learned counsel for the Respondents. Facts of the petitioner's case in brief are as follows: - The petitioner was employed as a Constable in the C.I.S.F. Unit in the Bokaro Steel Ltd. On 23.06.2007, he was posted on duty at one of the gates of the factory for preventing entry of unauthorized vehicles through the gate into the Factory premises. On the same day, a Truck bearing Registration No. WB -39 -9954 was found loaded with scrap material and copper and parked near Weight Bridge No. 5 inside the factory premises. The vehicle was seized by another Constable of the C.I.S.F., namely, Shri A. K. Sharma. [W.P. (S) No. 5437 of 2008] Consequent upon the seizure of the Truck from within the factory premises, the petitioner was placed under suspension vide Departmental order dated 23.06.2007 and later, on 05.07.2007, a memo of charge was served upon the petitioner calling upon him to submit his explanation to the charge. The substance of charge was that on 23.06.2007, while he was posted at the Mansha Singh Gate No. 2, he had failed to prevent one Truck bearing Registration No. WB -39 -9954 from unauthorisedly entering into the Factory premises. Being dissatisfied with the explanation offered by the petitioner, a departmental proceeding was initiated against him and for conducting the proceedings, an Assistant Commandant, namely, Mr. D. Oraon was appointed as the Enquiry Officer. By order dated 07.11.2007, another Officer, namely, Mr. V. K. Kakkar was designated as the Enquiry Officer in place of the earlier officer namely, Mr. D. Oroan and the new Officer was directed to conduct a fresh enquiry and submit his Report. The Enquiry Officer conducted the Enquiry and submitted his enquiry Report to the Disciplinary authority on 02.02.2008. A copy of the Enquiry Report was furnished to the petitioner on 04.02.2008, alongwith a show -cause notice calling upon him to submit his explanation against proposed punishment. The petitioner though submitted his explanation to the second show -cause notice dated 04.02.2008 and against the findings of the Enquiry Officer, the Disciplinary Authority vide the impugned order dated 05.03.2008, imposed the punishment of dismissal from service of the petitioner.[W.P. (S) No. 5437 of 2008] The Appeal preferred by the petitioner against the dismissal order was dismissed by the impugned order dated 11.07.2008. The Revision application preferred by the petitioner against the appellate order was also dismissed by the concerned authorities by the impugned order dated 10.09.2008.
(3.) ASSAILING the impugned order, the petitioner has raised the following grounds: - (i) The domestic enquiry conducted against the petitioner is against the Rules of Procedure. The disciplinary authority has acted beyond its competence, to direct the de novo enquiry against the petitioner. Referring to Annexure -9, which is the order dated 30.11.2007, issued by the Disciplinary Authority, Mr. P.A.S. Pati, learned counsel for the petitioner explains that by this order, the disciplinary authority while appointing another Enquiry officer in this case, had directed a fresh enquiry to be conducted against the petitioner on the ground that the former Enquiry Officer, did not conduct the enquiry according to the Rules. Learned counsel argues that the procedure for conducting the Domestic enquiries is stipulated in Rule 36 of the Central Industrial Security Forces Rules and it does not provide for conducting a de novo enquiry. The findings of guilt against the petitioner on the basis of de novo enquiry, cannot, according to the learned counsel, be sustained in law. To buttress his argument, learned counsel places reliance on the judgment of the apex Court in the case of K.R.Debversus - Collector of Central Excise, Shillong reported in A.I.R. 1971 SC 1447 and in the case of Kanailal Bera - versus -Union of India and Others, reported in 2007 A.I.R. SCW 6329. (ii) The findings as recorded by the Enquiry officer, was based on no reliable evidence. The Enquiry officer has relied upon the statements of hearsay witnesses and the material witnesses, [W.P. (S) No. 5437 of 2008] namely, the Driver of the Truck, in question, was not examined at all. Mr. Pati would argue that the findings of the Enquiry Officer are perverse, as it is not supported by any legal evidence. Learned counsel explains that from a cursory glance of the findings of the Report, it would be manifest that the findings were recorded by the Enquiry Officer only on the basis of suspicion and on the basis of conjectures and surmises, drawn by the Enquiry Officer. Learned counsel adds that in view of the findings of the Domestic Enquiry, being perverse and not supported by any legal evidence, the objection of the Respondents against the maintainability of this writ application is misconceived. In support of his argument, learned counsel would place reliance on the judgment of the Supreme Court in the case of Roop Singh Negiversus - Punjab National Bank and Others reported in (2009) 2 SCC 570. (iii) Even otherwise, the article of charge and the allegation against the petitioner does not make out a case of willful negligence nor does it suggest that the petitioner had acted in collusion with other persons. The article of charge only makes out a case of negligence simplicitor and as such the punishment of dismissal from service is grossly disproportionate to the guilt. Learned counsel, would explain that the negligence simplicitor would not amount to misconduct, in terms of the Conduct Rules. ;