IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 19-01-2007 Coram : The Hon’ble Mr. Justice P.SATHASIVAM and The Hon’ble Mr. Justice S.TAMILVANAN Writ Petition No.13804 of 2001 V.Shanmuganathan ... Petitioner Vs. 1. The Government of India rep. by its Under Secretary to the Govt. of India Ministry of Home Affairs, North Block, New Delhi. 2. The Director General Central Industrial Security Force, Ministry of Home Affairs, Block No.13, CGO Complex, Lodhi Road, New Delhi. 3. The Inspector General O/o. The Inspector General Central Industrial Security Force / NES Ministry of Home Affairs, No.41, Karaya Road, Park Circus, Calcutta – 17. 4. The Deputy Inspector General Central Industrial Security Force / NES Ministry of Home Affairs, No.41, Karaya Road, Park Circus, Calcutta – 17. 5. The Deputy Inspector General Central Industrial Security Force Unit, OIL Duliajan, Dibrugarh, Assam. https://hcservices.ecourts.gov.in/hcservices/ 6. The Enquiry Officer Assistant Commandant / CISF CISF Unit Sail Paharpur, Calcutta – 88. 7. The Commandant CISF Unit Oil Duliajan, Central Industrial Security Force, Dibrugarh District, Assam – 786 602. 8. The Enquiry Officer Deputy Commandant, CISF Unit Oil Duliajan, Central Industrial Security Force, Dibrugarh District, Assam – 786 602. .. Respondents Petition is filed under Article 226 of the Constitution of India, to issue a writ of certiorarified mandamus to call for the records, relating to the order of the first respondent made in No.V- 11014/27/99-L&R/CISF/Pers.I/MHA 2668, dated 13.08.1999 and also the enquiry report, dated 11.10.1999, submitted by the sixth respondent and the consequential order, dated 02.02.2000 made in No.V- 15014/5/99/VS/Ad.II/1471, passed by the fourth respondent, confirmed in Ref.No.V-15099/NES/LD/APL/03/2000/10249, dated 07.11.2000 by the third respondent and in Ref.No.V-11014/27/1999-L & R/1516, dated 24.05.2001 by the second respondent and to quash the same and direct the respondents to reinstate the petitioner in service with all attendant benefits. For Petitioner : Mr.G.Ethirajulu For Respondents : Mr.S.Udayakumar, SCGSC O R D E R (Order of the Court was made by S.TAMILVANAN, J.) Writ of certiorarified mandamus is preferred by the petitioner seeking to call for the records relating to the order, No.V- 11014/27/99-L&R/CISF/Pers.I/MHA 2668, dated 13.08.1999, passed by the first respondent, so far, it is against the petitioner and the enquiry report, dated 11.10.1999, submitted by the sixth respondent and the consequential order, dated 02.02.2000 made in No.V- 15014/5/99/VS/Ad.II/1471, passed by the fourth respondent, confirmed in Ref.No.V-15099/NES/LD/APL/03/2000/10249, dated 07.11.2000 by the third respondent and in Ref.No.V-11014/27/1999-L & R/1516, dated 24.05.2001 by the second respondent and quash the same and direct the respondents to reinstate the petitioner in service with all attendant benefits. https://hcservices.ecourts.gov.in/hcservices/ 2. It is not in dispute that the petitioner was appointed as Assistant Sub Inspector (Clerk / Typist) in the Central Industrial Security Force ( herein called as CISF), by way of direct recruitment in the year 1976 and thereafter, promoted to the rank of Inspector in the year 1990. While, he was working as Inspector in the Office of Assistant Inspector General / ESTT, New Delhi, on administrative grounds, by order dated 10.12.1993, he was transferred from CISF Head Quarters to CISF Unit, Oil Duliajan (Assam) and movement order, dated 13.12.1993 was issued by the Assistant Commandant / HQ.Estt, by his office proceedings and the petitioner was directed to report duty on or before 28.12.1993, but he did not join duty on the specified date. 3. According to the petitioner, on 06.12.1993, he met with an accident at New Delhi, due to which complications arose and hence, he moved to Chennai for treatment. According to him, he had sent leave application, enclosing medical certificate, issued by the Government Doctor, advising complete bed rest, due to severe internal injuries and other complications. Subsequently, he received charge memorandum, dated 21.08.1995, treating the medical leave as unauthorised absence. The charge framed against him was as follows : "Gross misconduct, indiscipline and dereliction of duty in that No.7639021 Inspector, (Min). V.Shanmuganathan while functioning as Inspector / Min. at CISF Hqrs posted at CISF Unit Oil Duliajan and SOS from CISF Hqrs. w.e.f. 13.12.1993 (FN) failed to join duty at CISF Unit, Oil Duliajan on 28.12.1993 on expiry of his joining time and is unauthorisedly overstaying the joining time till date. " 4. As per the enquiry report, dated 19.07.1997, submitted by the eighth respondent,it was held that the charge framed against the petitioner was not proved and as per the proceedings, dated 31.07.1997 of the seventh respondent, the Commandant, CISF Unit, Oil Duliajan, by his proceedings, in No.V-15014/Maj/Vs/Oil/Disc/97-2468, dated 31.07.1997, the petitioner herein was exonerated from the above charge. Pursuant to the same, on 10.04.1996, the petitioner joined duty in the office of the Deputy Inspector General, CISF Unit, Oil Duliajan. But, subsequently, the fifth respondent herein, by his proceedings dated 12.03.1998, suo moto reviewed the earlier order, dated 31.07.1997, passed by the seventh respondent and proposed to inflict punishment of withholding of one increment for a period of three years with cumulative effect and informed that the entire period of OSL to be regularised as ' DIES NON' and also issued a show cause notice calling upon the petitioner to make his representation within 15 days from the date of receipt of the show cause notice, for which the petitioner submitted his explanation on 25.03.1998. The fifth respondent subsequently confirmed the proposed punishment, by https://hcservices.ecourts.gov.in/hcservices/ his office proceedings dated 30.03.1998. Aggrieved by the same, the petitioner herein preferred revision before the first respondent, through proper channel. The first respondent, by his order, dated 13.08.1999, set aside the order passed by the fifth respondent, but issued direction, as the competent authority to conduct " de novo enquiry" in respect of the petitioner from the stage of conclusion of the evidence, in order to re-appreciate the evidence on record. Pursuant to the same, the fourth respondent, appointed the 6th respondent as Enquiry Officer to conduct de novo enquiry, by his order dated 07.09.1999. 5. According to the petitioner, the sixth respondent without analysing the evidence on a proper, perspective, merely on surmises and conjecture held that the charge levelled against the petitioner had been proved, by his enquiry report, dated 11.10.1999, but no punishment was proposed in the said communication. Though the petitioner had submitted his detailed explanation on 27.11.1999, the fourth respondent herein, having agreed with the findings of the enquiry officer, the sixth respondent, awarded penalty of removal of the petitioner from service by his office proceedings dated 02.02.2000. Aggrieved by the same, the petitioner herein preferred an appeal before the third respondent, on 08.05.2000. According to the petitioner, the third respondent, without considering the legal submission made by the petitioner, dismissed the appeal preferred by the petitioner, by his order, dated 07.11.2000, made in No.V-15099 / NES/L&D/APL/03/2000/10249, against the said order, the petitioner filed revision on 11.12.2000 before the second respondent, but the second respondent dismissed the revision petitioner by his order, dated 24.05.2001, made in No.V-11014/27/1999-LR/1516. Aggrieved by the same, the petitioner has filed the writ petition, challenging the above said impugned orders. 6. Heard Mr.G.Ethirajulu, learned counsel for the petitioner and Mr.S.Udayakumar, learned Senior Central Government Standing Counsel for the respondents. 7. Learned counsel for the petitioner questioned the impugned orders passed by the respondents on three grounds. a. According to him, having held that the order of suo moto review passed by the fifth respondent against the petitioner, as without jurisdiction, the first respondent should have allowed the revision without ordering for de novo enquiry and as such the order of the first respondent, for de novo enquiry is contrary to law. b. The finding of the second enquiry officer, the sixth respondent herein, is perverse and contrary to the evidence and hence not sustainable in law. https://hcservices.ecourts.gov.in/hcservices/ c. The punishment of dismissal of the petitioner from service, imposed by the fourth respondent, confirmed by the appellate authority, the third respondent and revisional authority, namely, the second respondent is disproportionate, exorbitant and not sustainable in law. 8. The first contention of the petitioner is that the order for de novo enquiry passed by the first respondent is contrary to law, since the first respondent in his order, dated 13.08.1999 has held that no authority in CISF can suo moto review an order, passed by the disciplinary authority, as no such powers are vested in any authority in CISF and accordingly, set aside the order passed by the fifth respondent. 9. The first respondent has further observed in the order, dated 13.08.1999, that there was a lot of discrepancy in the medical papers submitted by the petitioner, as pointed out by the fifth respondent in the show cause notice, dated 12.03.1998, served on the petitioner. As per the operative portion of the order passed by the first respondent, it is stated that being the competent authority, in exercise of the power conferred under Section 9 (3) of CISF Act, 1968 r/w 49 of CISF Rules, 1969, the first respondent has set aside the order, dated 30.03.1998 passed by the fifth respondent and being the competent authority, the first respondent ordered that de novo enquiry might be conducted, in respect of the petitioner from the stage of conclusion of evidence. The said order reads as follows : " The competent authority in exercise of powers conferred under Section 9 (3) of CISF Act, 1968 read with Rule 49 of CISF Rules, 1969, hereby set aside the order dated 30.03.1998 passed by the DIG, CISF Unit, OIL, Duliajan. The competent authority further orders that de novo enquiry may be conducted in respect of the petitioner from the stage of conclusion of the evidence. The enquiry authority will submit fresh report after careful appreciation of the evidence held on record. The Disciplinary Authority will take appropriate action on considering the enquiry report, as per laid down procedure." 10. With regard to the competency of suo moto review, the Division Bench of this court in S.Goparam v. I.G., Central Industrial Security Force, reported in (2006) 4 MLJ 274 has held as follows: "9. The above provision makes it clear that only the Central Government has the power to review and pass appropriate order including modifying the order of the Disciplinary Authority. Inasmuch https://hcservices.ecourts.gov.in/hcservices/ as the petitioner had not preferred any appeal against the order of the Disciplinary Authority, in the light of sub-section 3, the second respondent did not have the power under the said provision to take up suo moto review, hence, the proceedings were without jurisdiction." 11. The first respondent, by his order, dated 13.08.1999, while setting aside the suo moto review order passed by the fifth respondent, has also observed that for passing an order of suo moto review, no such powers are vested with the fifth respondent or any other authority in CISF and accordingly, held that the order passed by the fifth respondent, as without jurisdiction and the consequential proceedings, whereby punishment imposed on the basis of the suo moto review was also rightly set aside by the first respondent. The first respondent, while setting aside the order passed by the fifth respondent, has not set aside the final order, dated 31.07.1997, passed by the seventh respondent, whereby the petitioner had been exonerated from the charge, but, first respondent ordered for de novo enquiry. Further, it is seen that the first respondent has ordered de novo enquiry, without finding fault with any procedural irregularity or illegality committed by the enquiry officer, the eighth respondent, in conducting the enquiry proceedings. 12. According to Mr.G.Ethirajulu, learned counsel for the petitioner, the first respondent having held that there was some discrepancies in the medical papers submitted by the petitioner, ought to have given sufficient opportunity to him to prove the validity of the same, by giving liberty to let in oral evidence, and also for examining the Doctor, who issued the medical certificates. But, the first respondent, without pointing out any patent irregularity or illegality in the enquiry proceedings conducted by the previous enquiry officer, ordered de novo enquiry from the stage of conclusion of evidence. It is not in dispute that the latin term de novo means from the beginning. As per, de novo enquiry, the departmental enquiry has to be commenced afresh and hence, without any patent procedural irregularity or illegality, de novo enquiry cannot be ordered by the authority. 13. Under Section 9 (3) of CISF Act, 1968, de novo trial was ordered by the first respondent. Section 9 (3) of CISF Act, 1968 reads as follows : " 9 (3) The Central Government may call for and examine the record of any proceeding under section 8, sub-section (2), sub-section (2A) or sub-section (2B) of this section and may make such inquiry or cause such inquiry to be made and https://hcservices.ecourts.gov.in/hcservices/ subject to the provisions of this Act, may pass such order thereon as it thinks fit. Provided that no order imposing an enhanced penalty under sub-section (2) or sub-section (3) shall be made unless a reasonable opportunity of being heard has been given to the person affected by such order." Sub Section (2A) and (2B) have been inserted as per the amendment made in the Act, which came into force with effect only from 29.12.1999 and therefore, the same is not applicable for the facts and circumstances of the case on hand. 14. Mr.S.Udayakumar, learned Senior Central Government Standing Counsel would contend that de novo enquiry was ordered properly by the first respondent, considering the facts and circumstances of the case and that there is no infirmity or illegality in the order passed by the first respondent. 15. We are of the considered view that the first respondent is empowered under Section 9 (3) of CISF Act, 1968 for passing an order for de novo enquiry, if the same is needed, on the facts and circumstances of the case. As per de novo enquiry, the departmental enquiry proceedings has to be commenced afresh, for which, the competent authority should have found fault with any patent irregularity or illegality in the enquiry conducted, so as to warrant the authority to scrap the enquiry report. The competent authority based on the illegality or patent irregularity found in the enquiry proceedings, order for de novo enquiry, for which, the authority can set aside the enquiry report and order for de novo enquiry, and if there is any error, which could be set right by the authority below, the first respondent can remit back the matter for fresh disposal, for which, an order for de novo enquiry would not be warranted. In the case on hand, the first respondent, without pointing out any patent irregularity or illegality in the enquiry proceeding conducted by the eighth respondent, has passed an order for de novo enquiry and that too from the stage of conclusion of evidence, which is not sustainable in law. 16. The earlier enquiry report, dated 19.07.1997 was submitted by the enquiry officer, eighth respondent, who was in the cadre of Deputy Commandant, CISF Unit, but after de novo enquiry was ordered, sixth respondent in the cadre of Assistant Commandant, CISF Unit, who was an inferior cadre officer to the previous enquiry officer, was appointed as enquiry officer, who has filed the subsequent enquiry report, contrary to the earlier report filed by the Deputy Commandant, CSIF Unit, the eighth respondent herein. The procedure followed in appointing Assistant Commandant, an inferior cadre officer for the de novo enquiry is improper, since the earlier https://hcservices.ecourts.gov.in/hcservices/ enquiry report, dated 19.07.1997 was submitted by the Deputy Commandant, CISF Unit. As de novo enquiry was ordered by the first respondent, at least an officer not below the cadre of the earlier enquiry officer could have been appointed by the authorities, since the finding given by an inferior officer cannot prevail over the enquiry report of a superior officer, the same would violate the principles of natural justice. Therefore, we are of the view that the de novo enquiry conducted by the sixth respondent, who is inferior in cadre to the earlier enquiry officer is vitiated by principles of natural justice. 17. The second contention raised by the petitioner is that the finding of the sixth respondent, which was the basis for imposing punishment on the petitioner for removal from the service is perverse, against the evidence on record and hence not sustainable in law. 18. It has been admitted that the petitioner herein was transferred from CISF Head Quarters to CISF Unit, Oil Duliajan (Assam) and the movement order, dated 13.12.1993 was issued by the Assistant Commandant / HQ.Estt, by his office proceedings and the petitioner was directed to report duty on or before 28.12.1993. According to the petitioner on 06.12.1993, while he was travelling in an auto, he met with an accident in New Delhi and sustained serious injuries, for which treatment was taken at CISF dispensary at Head Quarters Office and on account of his ill health, he could not join duty on 28.12.1993 and hence, he sent an application seeking medical leave, with Doctor certificates from his residence at Madras (at present Chennai). It is not in dispute that the fifthrespondent, Deputy Inspector General, Duliajan had asked the Group Commandant, CISF, Madras, by his letter, dated 21.04.1994 to verify the fact of the alleged accident and also the health condition of the petitioner and by letter, dated 25.05.1994, the Group Commandant, CISF, Madras – 102, conveyed his response to the fifthrespondent, the Deputy Inspector General, CISF Unit, Oil Duliajan, which reads as follows : "The residence of No.7639021 Inspr/Min.V Shanmuganathan in the given address has been verified. The Inspector detailed for the purpose met Inspr/Min. V.Shanmuganathan and learnt that the latter had met with an accident at New Delhi on 06.12.1993, while travelling in an auto which overturned after dashing against the road divider. He sustained severs injuries on his left shoulder, head, knees and scratches on his back. As his condition was serious and no other vehicle was involved in the accident, no FIR was lodged by anyone and he took treatment from a private doctor there. Meanwhile, he was transferred to https://hcservices.ecourts.gov.in/hcservices/ CISF Unit Oil Duliajan. As the injuries did not heal during the joining period he had to continue the treatment and to avail medical rest as advised by the doctor. It came to know that Inspr/Min.V.Shanmuganathan may be recovered by the end of this month and subsequently rejoin duty." 19. Considering the above letter sent by the Group Commandant, CISF Unit, Madras and the explanation submitted by the petitioner along with the medical certificates, the first enquiry officer, namely, the eighth respondent, submitted his report, dated 19.07.1997, whereby held that the charge levelled against the petitioner was not proved and accordingly, based on the enquiry report and also considering the representation made by the petitioner, the seventh respondent, Commandant, CISF Unit, Oil Duliajan, by his order, dated 31.07.1997, exonerated the petitioner from the charge levelled against him. The operative portion of the order, dated 31.07.1997, passed by the seventh respondent reads as follows : "Hence, agreeing with the findings of the inquiry officer, I find that the charged official is not guilty of charges framed against him. Hence, I "Exonerate" him of the charge framed against him vide charge memorandum No.V- 15014/19/VS/95 / 619, dated 21.08.1995. He has further ordered that the period of overstayal from 28.12.1993 to 09.04.1996 shall be regularised separately as per rules." 20. Subsequently, the fifth respondent issued show cause notice, dated 12.03.1998, based on his suo moto review, he passed an order, proposing to inflict punishment of withholding of one increment for a period of three years, with the effect of postponing future increments, for which the petitioner submitted his explanation, then the fifth respondent passed his final order, dated 30.03.1998, based on his suo moto review, it was ordered for withholding one increment for a period of three years and as per the order, the entire period of OSL was ordered to be regularised as ' DIES NON'. The operative portion of the order, dated 30.03.1998 passed by the fifth respondent, Deputy Inspector General, CISF, reads thus : "I am constrained to form the opinion that the act of overstayal on joining time was a deliberate one in order to avoid the transfer to North East and to cover-up his prolonged absence from duty, he used the medical papers as a fig- leaf with a view to mislead the department. Such https://hcservices.ecourts.gov.in/hcservices/ an act of deliberate misconduct, indiscipline and dereliction of duty is not expected from a Senior Inspector. Therefore, while setting aside the final order No.V.15014/Maj/VS/OIL (D)/DISC/97- 2468, dated 31.07.1997 passed by Commandant, CISF Unit OIL Duliabaj, I do hereby confirm the imposition of the punishment, as proposed in the Show Cause Notice, dated 12.03.1998. on NO.7639021 Insp/Min V.Shanmuganathan. The entire period of overstayal on joining time (28.12.1993 to 09.04.1996) is to be regularised as DIES NON and non-qualifying service for all purposes, in cancellation of this office USO Pt-II No.334/97, 27/29.09.1997. Necessary recovery will be made accordingly." 21. Aggrieved by the aforesaid suo moto review order passed by the fifth respondent, the petitioner herein preferred revision before the first respondent and the first respondent, by his order, dated 13.08.1999, has held that neither the fifth respondent, nor any other authority in CISF is vested with the power of suo moto review, under the CISF Act, 1968. The order, at paragraph number 6, reads thus : " On examination of the case of the petitioner, it is observed by the competent authority that according to the existing provision, such powers are not vested in any authority in CISF. The competent authority has further observed that there were a lot of discrepancies in the Medical papers submitted by the petitioner which had been pointed out by the DIG, CISF Unit, OIL, Duliajan in the Show Cause Notice, dated 12.03.1998, served to the petitioner." 22. The first respondent, in exercise of power conferred under Section 9 (3) of CISF Act, 1968 r/w Rule 49 of CISF Rules 1969, has set aside the order, dated 30.03.1998 passed on the basis of suo moto review by the fifth respondent, Deputy Inspector General, CISF, Oil Duliajan and further ordered that de novo enquiry might be conducted in respect of the petitioner from the stage of conclusion of evidence. Pursuant to the order of the first respondent, dated 13.08.1999, the sixth respondent, Assistant Commandant, CISF Unit, Sail Paharpur, Calcutta conducted 'de novo' enquiry and held that the charge was proved against the petitioner. 23. In the enquiry report, dated 11.10.1999 submitted by the sixth respondent, the enquiry officer, namely, the Assistant Commandant, CISF Unit, has given a finding that the very genuineness of the medical certificates produced by the petitioner, charged https://hcservices.ecourts.gov.in/hcservices/ official, had raised serious doubt and suspicion and the charged official had also failed to produce any valid document to justify his unauthorised absence from duty to establish the so called accident, met by him in New Delhi and held that the charge is "proved". Based on the finding, the fourth respondent, passed the order, dated 02.02.2000, for removal of the petitioner from service, The operative portion of the order reads thus : " Accordingly, in commensurating with the gravity of the offence committed by him, I hereby award the penalty of "Removal from service" to No.7639021 Insp / Min. V.Shanmuganathan, to meet the ends of justice as disciplinary authority, in exercising the powers conferred upon me under Rule 29A of CISF Rules, 1969 reads with schedule- II thereof. The order of removal from service shall be effective from the date of its service upon No.7639021 Insp/Min.V.Shanmuganathan. The entire period of overstayal from joining time (from 28.12.93 to 9.4.96) is regularised as EOL without medical certificate." 24. It is seen from the enquiry report of the sixth respondent that P.W.1, No.7111337 SI / Min.P.M.Gopalakrishnan, CISF Unit, FACT, Udayogamandal, has deposed that medical certificates which were issued by the doctor of the Government General Hospital, Madras were received at CISF H.Qrs, New Delhi along with the case file from Deputy Inspector General, CISF Unit, OIL, Duliajan. As per the enquiry report, it is seen that the