IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE TENTH DAY OF DECEMBER TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR WRIT PETITION No.15901 of 2001 BETWEEN M. Ramakrishna. ... PETITIONER AND The Deputy Inspector General, Central Industrial Security Force, Chennai and another. ...RESPONDENTS Counsel for the Petitioner: MR. N. JANAKI RAMA RAO Counsel for the Respondents: MR. M. GANGA RAO The Court made the following: ORDER: The petitioner, who was working as a Constable in Central Industrial Security Force (CISF), questions the order of removal passed by the second respondent dated 17.11.2000, as confirmed by the first respondent - appellate authority and seeks consequential reinstatement with all benefits. 2. The facts, in brief, are as follows: a) The petitioner while working at CISF Unit VPT, Visakhapatnam, was found deserted his duty post and gossiping with another duty personnel when checked by Assistant Commandant on 04.09.1999. On being questioned by the Assistant Commandant, he is alleged to have misbehaved with her and showed gross insubordination, which is misconduct alleged against him. The petitioner was suspended under order dated 05.09.1999 and was later served with a charge memo dated 27.10.1999 together with list of documents and witnesses proposed to be examined in the said disciplinary enquiry. Petitioner submitted a detailed explanation on 03.11.1999 and one Mr. B.B. Mohakud, Assistant Commandant, was initially appointed as enquiry officer. Petitioner objected to the said enquiry officer on the ground that he does not know Telugu language, therefore, considering petitioner’s request, one Mr. M.P. Rao, Inspector/exe, CISF Unit SAIL, Visakhapatnam was appointed as enquiry officer, as no officer in the rank of Assistant Commandant knowing Telugu language was available. Petitioner, however, objected to the said appointment under his representation dated 20.12.1999 on the ground that the enquiry officer must be higher in rank than the complainant and requested to appoint one Mr. M.V. Narasaiah, Deputy Commandant, CISF, VPT, Visakhapatnam of his choice. b) The aforesaid request, however, was not accepted by the disciplinary authority, as petitioner cannot choose an enquiry officer and therefore, in terms of Rule 34 (4) of the Central Industrial Security Force Rules, 1969 (for short ‘the Rules’), the disciplinary authority rejected the petitioner’s request by proceedings dated 10.01.2000. Meanwhile, the petitioner sought copies of the documents which was replied to by the enquiry officer under proceedings dated 14.01.2000 informing the petitioner to attend the enquiry and during the enquiry relevant documents will be provided in the due course. Petitioner again reiterated his request for change of enquiry officer under his further representation dated 02.05.2000. Meanwhile, Mr. M.P Rao, the enquiry officer conducted enquiry on 28.12.1999 and recorded statement of P.Ws.1, 2, 4 and 5 in the presence of the petitioner and gave him opportunity to cross-examine but he declined to do so. Thereafter, the enquiry officer was posted out and one Mr. S. Sekhar, Inspector/Exe. CISF Unit VPT, Visakhapatnam was appointed as a fresh enquiry officer. The said enquiry officer recorded statements of P.Ws.3 and 6 in the presence of petitioner and the petitioner though offered opportunity to cross-examine, he declined. Thereafter, Mr. S Sekhar was also posted out and another officer, Mr. M Satyanarayana, also Inspector/exe CISF Unit, VPT, Visakhapatnam was appointed as enquiry officer on 30.05.2000. The new enquiry officer fixed 12.06.2000, 16.06.2000 and 19.06.2000 for recording petitioner’s evidence and though the petitioner attended the enquiry, he refused to tender any witness nor gave defence statement. Thereupon, the enquiry was closed and the enquiry officer submitted a report dated 10.07.2000 holding the petitioner guilty of the charges leveled. c) The disciplinary authority, thereafter, gave notice to the petitioner dated 29.07.2000 requiring him to submit representation, if any, by supplying the report of enquiry. The petitioner submitted two representations dated 04.09.2000 and 19.10.2000 and after considering the same, the disciplinary authority passed a reasoned final order dated 17.11.2000 by considering the enquiry report and the evidence, dismissing the petitioner from service and the period of suspension was treated as suspension only. Petitioner, thereafter, preferred an appeal to the Deputy Inspector General, CISF, and the appellate authority by order dated 12.02.2001 concurred with the disciplinary authority’s order and dismissed the appeal. Thereafter, the present writ petition is filed by the petitioner. 3. Heard the learned counsel for the petitioner and the learned standing counsel for the respondent. 4. The primary contention raised by the learned counsel for the petitioner is that the enquiry officer, who conducted the enquiry was holding the rank lower than that of the complainant, which has resulted in a likelihood of bias against the petitioner. The allegation of bias was also submitted by the learned counsel by pointing out that the enquiry officer referred to the complainant as ‘Madam D. Shyamala' rather than ‘Smt or Kum Shyamala’. The petitioner’s counsel states that because the complainant was Assistant Commandant, the enquiry officer, who was only Inspector, was lower in rank than the complainant, the petitioner is prejudiced on account of inherent bias. A decision of Division Bench of Kerala High Court in V. ABUSALI v. COMMANDANT AND OTHERS[1] is relied upon for showing that a plea of likelihood of bias was accepted by the High Court when the enquiry officer was found to be subordinate under the defacto complainant. Learned counsel also contended that the documents sought for by the petitioner were not furnished to him. 5. Learned counsel for the respondent, on the contrary, says that as per Rule 34 (4) of the Rules, referred to above, it is not necessary that the enquiry officer should be above the rank of the complainant and secondly, he points out para 7 of the counter affidavit where it is stated that the enquiry officer was not immediate subordinate to the complainant, though he was lower or equal in rank of the complainant. 6. Learned counsel, therefore, submits that there is neither any bias nor any likelihood of bias, as alleged by the petitioner. He also distinguishes the Division Bench judgment, referred to above, by pointing out that, that was a case where the enquiry officer was immediate subordinate officer to the defacto complainant, which is not the fact situation here. So far as supply of documents is concerned, the report of the enquiry officer mentions that out of 11 documents requested, 4 documents were found relevant and were supplied, but the petitioner refused to receive the same. The learned counsel, therefore, says that due and adequate opportunity having been given to the petitioner and the charges against the petitioner having been proved, as held by the disciplinary and appellate authorities, this Court would not substitute its opinion and no case for interference under Article 226 of the Constitution of India is made out. 7. It is well settled that this Court exercising certiorari jurisdiction, is only concerned with the decision making process and not the decision itself. It is also evident that the enquiry officer is required to be appointed in terms of Rule 34(4) of the Central Industrial Security Force Rules, which is extracted hereunder: “34. Procedure for imposing major penalties – 1… 2… 3… 4. On receipt of the written statement of defence or if no such statement is received within the time specified, the disciplinary authority may itself inquires into such of the charges as are not admitted or if it considers it necessary so to do, appoint a supervisory officer or an officer not lower in rank than an Inspector, or a Board of Inquiry as the Inquiring Authority to conduct the inquiry.” 8. Initially, though an officer of the rank of Assistant Commandant was appointed, the petitioner objected by seeking a Telugu knowing officer and acceding to that request the disciplinary authority appointed Mr. M.P. Rao, Inspector, as enquiry officer. Petitioner, thereafter, started objecting to this enquiry officer on the ground that he is lower in rank to the complainant. The Rule extracted above, requires that the enquiry officer should not be an officer lower in rank than Inspector. It is to be noted that the enquiry officer was only required to conduct enquiry and submit a report with his findings on each charge. The final decision ultimately lay with the disciplinary authority. No allegation in that respect is raised by the petitioner. The defacto complainant, who was examined as P.W.1, has stated about the incident in question dated 04.09.1999 at about 20:45 hrs and that she immediately turned her vehicle back to the control room to make GD entry, which is marked as P1 made at 20:55 hrs on 04.09.1999 in the presence of P.W.6, who was on duty in the control room at that time. The entries at serial No.55 in English already record the incident, which is basis of charges in question. P.Ws.2, 4, and 5 corroborate the statement of P.W.6 regarding the said GD entry having been made by P.W.1 on that date. Thus, what is stated by P.W.1 and recorded by the enquiry officer is primarily an imputation of charge appearing against the petitioner. Mere recording of the said statement of the complainant as P.W.1 by the enquiry officer, cannot be said to lead to any bias or real likelihood of bias, as contended. The charges and the imputations refer to the very same incident, which is recorded in the evidence of P.W.1 and for the sake of convenience it would be appropriate to notice the article of charge, which speaks of the said incident: ARTICLE OF CHARGE – I That CISF No.843380015 Constable M. Ramakrishnan of ‘A’ Coy, CISF Unit VPT Visakhapatnam was found deserting from his duty post and gossiping with another duty personnel when checked by D. Shyamala, Asst. Commandant on 04.09.99 at about 2045 hrs and on questioning, he misbehaved with D. Shyamala, Asst. Commandant and threatened her in dire consequence and further challenged her authority in highly insubordinate manner, which amounts to gross misconduct and a serious act of indiscipline on the part of No.843380015 Constable M. Ramakrishnan. Hence, the charge. 9. The disciplinary authority has duly considered the enquiry report in the light of the representations of the petitioner and has applied his mind afresh to the evidence recorded in the enquiry and the documents and has recorded his findings that the enquiry officer’s conclusions are objective and reasoned and the charge was held as fully proved. Before passing the order, the disciplinary authority also called the petitioner on 25.10.2000 and though the petitioner attended, he refused to say anything. The petitioner being a member of a uniformed disciplinary force, the misconduct established against him was held to tarnish the image of the force in public eye and amounted to serious insult to the dignity and honour of the senior member of the force. The petitioner was, therefore, imposed the punishment of dismissal from service, as above. The appellate authority, on appeal by the petitioner, has once again applied his mind to the record as well as disciplinary authority’s order and recorded a clear concurrent opinion that there is no infirmity in the conduct of the enquiry and the order of the disciplinary authority including that the punishment was commensurate with the gravity of offense and declined to interfere with the order of the disciplinary authority. 10. Learned counsel for the petitioner is neither able to point out any perversity nor any breach of the Rules relating to conduct of enquiry nor is able to show any other infirmity in the decision making process. The writ petition is thus devoid of merits and is liable to be dismissed and is accordingly dismissed. However, in the circumstances, there shall be no order as to costs. _____________________ VILAS V. AFZULPURKAR, J December 10, 2010 DSK [1] 1995 (1) LLN 640