THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.4523 OF 2004 DATED 3RD DECEMBER, 2009 BETWEEN D.Bhaskar Rao … Petitioner and Group Commandant, Central Industrial Security Force (Ministry of Home Affairs), CISF Group Headquarters, Hyderabad. And Others … Respondents THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.4523 OF 2004 ORDER: The petitioner, a constable in the Central Industrial Security Force (CISF), challenges the punishment of reduction in pay for five years with cumulative effect imposed upon him by the Deputy Inspector General, South Zone, CISF, Chennai, vide the appellate proceedings dated 10.01.2003, confirmed in revision by the Inspector General, CISF, Mumbai, under the proceedings dated 15.12.2003 and seeks a consequential direction to the CISF to allow him all service benefits including arrears of wages, increments and attendant benefits, including consideration for promotion to the next higher category. The petitioner joined the services of the CISF as a Constable on 14.05.1987 and was posted at Kanchanbagh in Hyderabad during July, 1996. He was subjected to disciplinary proceedings under charge memo dated 01.12.2000, whereby two articles of charges were framed against him, namely – “Article 1 : No.874640045 – Constable – D.Bhaskar Rao of CISF, Unit B.D.L., Kanchanbagh attempted to recruit his brother, D.Ramana in CISF by unfair means i.e. by abetting impersonation by Mr.Tejeswar Rao in place of his brother, D.Ramana, Roll No.3300721 for the one mile run at about 1200 Hrs. on 01.11.2000 during Constable recruitment in CISF, Unit N.F.C., Hyderabad. Thereby, he committed an act of gross misconduct, indiscipline, unbecoming of a good member of the force. Article 2 : No.874640045 – Constable – D.Bhaskar Rao of CISF, Unit B.D.L., Kanchanbagh obtained 5 days Casual Leave with effect from 28.10.2000 by suppressing the actual purpose of his leave from the competent authority. Thereby, he committed an act of gross misconduct, indiscipline, unbecoming of a good member of the force.” After an enquiry, wherein the charges levelled against the petitioner were held proved, the CISF passed orders on 04.12.2002 removing the petitioner from service. Upon his appeal, the Deputy Inspector General, South Zone, CISF, Chennai, vide the proceedings dated 10.01.2003, modified the said punishment to that of reduction of pay to minimum time scale for five years with cumulative effect. Aggrieved thereby, the petitioner carried the matter by way of revision before the Inspector General, CISF, Mumbai, who by the proceedings dated 15.12.2003 confirmed the appellate order. Aggrieved thereby, the petitioner filed the present writ petition. While denying the charges levelled against him on facts, the petitioner pointed out that he was entitled to avail casual leave of 15 days per year and that utilization of such casual leave was not subject to the control of the employer. He therefore alleged that the second charge was misconceived as it did not constitute a misconduct. The petitioner relied upon the Judgment dated 03.10.2002 passed by the Special Judicial First Class Magistrate for Prohibition and Excise Cases, Ranga Reddy District, in C.C.No.431 of 2002, whereby he was acquitted of a charge which was identical to Article 1 of the charges framed against him in the disciplinary proceedings. The petitioner contended that in view of his honourable acquittal by the criminal Court, the CISF ought not to have imposed any punishment upon him. In the counter affidavit, it is stated on behalf of the CISF that after duly holding an enquiry, disciplinary action was taken against the petitioner, which was substantially reduced by the appellate authority. It is asserted that the disciplinary proceedings were conducted duly following the principles of natural justice. While admitting that the alleged actions on the part of the petitioner which constituted misconduct were reported to the Police which resulted in C.C. No.431 of 2002 being instituted before the competent criminal Court, the CISF contended that criminal proceedings and departmental proceedings were altogether different in nature and that the strict proof of evidence required in criminal proceedings was not necessary in a departmental enquiry. The CISF further stated that the charges against the petitioner were grave in nature. All the more so, considering the fact that the CISF was a disciplined force and that the misconduct alleged and proved against him was unbecoming of a constable in such a disciplined force, warranting the punishment imposed. The Judgment dated 03.10.2002 passed by the Special Judicial First Class Magistrate for Prohibition and Excise Cases, Ranga Reddy District, in C.C.No.431 of 2002 is placed on record. The said case was instituted against the petitioner and one Tejeshwar Rao, who is said to have impersonated the petitioner’s brother in the one mile run during the recruitment for constables in the CISF conducted on 01.11.2000 at Hyderabad. By the said Judgment, the criminal Court acquitted the petitioner, holding that the prosecution had failed to place sufficient material before the Court to substantiate that he had instigated Tejeshwar Rao to impersonate his brother. In the light of this finding by the competent criminal Court, the Judgment of the Supreme Court in G.M.TANK v. STATE OF GUJARAT[1] would come into operation. It is no doubt true that the degree of proof required in criminal proceedings is far higher than that required in disciplinary proceedings. However, when the issues before the criminal Court and the disciplinary authority are identical and the findings in the two proceedings are contradictory, the observations of the Supreme Court i n G.M.TANK would become very relevant. In this context, the Supreme Court observed as under: “……….. the criminal court on the examination came to the conclusion that the prosecution has not proved the guilt alleged against the appellant beyond any reasonable doubt and acquitted the appellant by its judicial pronouncement with the finding that the charge has not been proved. It is also to be noticed that the judicial pronouncement was made after a regular trial and on hot contest. Under these circumstances, it would be unjust and unfair and rather oppressive to allow the findings recorded in the departmental proceedings to stand. In our opinion, such facts and evidence in the departmental as well as criminal proceedings were the same without there being any iota of difference, the appellant should succeed. The distinction which is usually proved between the departmental and criminal proceedings on the basis of the approach and burden of proof would not be applicable in the instant case. Though the finding recorded in the domestic enquiry was found to be valid by the courts below, when there was an honourable acquittal of the employee during the pendency of the proceedings challenging the dismissal, the same requires to be taken note of and the decision in PAUL ANTHONY [(1999) 3 SCC 679] will apply………” In the present case, once the criminal Court gave a clean chit to the petitioner in so far as his alleged involvement in the impersonation of his brother by Tejeshwar Rao is concerned, the contrary finding of the Enquiry Officer on Article 1 of the charges framed against the petitioner relating to the very same aspect cannot stand. Allowing such a contradictory and diverse finding to operate in the sphere of the disciplinary proceedings, completely opposed to the finding of the criminal Court, would not only be unfair and unjust as pointed out by the Supreme Court but would also be oppressive. So far as Article 2 of the charges is concerned, the same is as vague as could be. By its very nomenclature, casual leave is allowed to an employee without his having to account for the reason therefor. Unless a duty is cast upon the petitioner to explain the reason for availing casual leave, the question of his suppression of the actual purpose for such casual leave does not arise. Sri A.Sanjeev Kumar, learned counsel for the CISF, was unable to produce any rule or regulation of the CISF which required its Constables to disclose the reasons for availing casual leave. In the absence of such a rule or regulation, the general rule would apply and an employee who avails casual leave is not required to justify such leave. A copy of the application submitted by the petitioner to avail the subject casual leave is placed before this Court and the learned counsel pointed out that the petitioner had indicated “domestic problem” as the reason for availing leave. The learned counsel further submitted that the petitioner was physically present at the place of recruitment of Constables, in which his brother was participating and therefore the second charge stood established against the petitioner. However, in the absence of a duty being placed upon the petitioner to disclose the actual reason for availing casual leave, he cannot be indicted for the alleged suppression of the actual purpose of such leave. The punishment of reduction in pay for a period of five years with cumulative effect imposed on the petitioner, based on the above charges, is therefore unsustainable. The proceedings dated 10.01.2003 passed by the appellate authority, visiting the said punishment upon the petitioner, confirmed in revision by the proceedings dated 15.12.2003, are accordingly set aside. The petitioner shall be entitled to all consequential benefits pursuant thereto. The writ petition is allowed. There shall be no order as to costs. ____________________ SANJAY KUMAR, J. 3rd December, 2009. VGSR [1] (2006) 5 SCC 446