1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.1731 OF 2001 Mr.Subhash N.Sabe .. Petitioner V/s The Group Commandant, CISF & Ors. .. Respondents Mr.A.R.Pitale for the Petitioner. Mrs.Neeta Masurkar for Respondents. CORAM : D.K.DESHMUKH & R.G.KETKAR, JJ. DATE : 1ST OCTOBER, 2009. P.C.: 1. By this petition under Article 226 of the Constitution of India, the petitioner challenges the order dated February 16, 2001 passed by the 1st Respondent, the Group Commandant, Central Industrial Security Force (for short “CISF”), as also the order dated May 8, 2001 passed by the 3rd Respondent, Deputy Inepsctor General Westerb Zone CISF Group Headquarters. By these orders, penalty of removal from service was imposed on the petitioner. The relevant and material facts that are necessary for disposal of this petition are as under: 2. The petitioner while working as constable of CISF Unit, JNPT, Sheva, Navi Mumbai was detailed in B Shift duty from 13.00 hours to 21.00 2 hours at Bulk Gate as Writer for incoming vehicles. At about 16.00 hours shift I/c SI Exe H.B.L.Meena informed SI (Int) Rajeev Sharma that the petitioner was indulging himself in collection of illegal gratification for making entries of incoming vehicles. SI(Int) Rajeev Sharma kept a watch over the petitioner while making entries in the register, and on verifying information furnished by SI/Exe H.B.L.Meena as correct, search of the petitioner as well as of the register wherein the petitioner was making entries was carried out in the presence of H.B.L.Meena and SI/Exe Dileep M.A.in the Duty Officers Room, wherein two currency notes of Rs.10/- each were found in the register. At that time the petitioner could not give any satisfactory reply for the presence of currency notes hidden in the register. 3. By Memorandum dated January 20, 2000 the petitioner was served with the substance of imputation of misconduct or misbehaviour in respect of which the enquiry was proposed to be held, as also the statement of imputation of misconduct or misbehaviour in support of each article of charge. Enquiry was conducted under Rule 34 of the CISF Rules 1969. A list of documents by which and a list of witnesses by whom the articles of charge were proposed to be sustained were also enclosed. The petitioner was called upon to submit written statement of his defence. 3 4. The petitioner was issued with the Memorandum in respect of two charges which read as under:- Charge I- Gross indiscipline, misconduct and misdemeanure in that No.854450505 Const.Subhash Sabe who was detailed in B shift duty from 13.00 hrs to 21.00 hrs on 03.09.1999 at Bulk Gate as Writer was found in possession of Rs.20/- which was collected as illegal gratification from the Truck Drivers etc. The search of Const.Subhash Sabe was carried out on doubt that he is indulging himself in collection of illegal gratification by SI/Exe Rajeev Sharma in the presence of SI/Exe H.B.L.Meena and SI/Exe Dileep M.A.at about 17.15 hrs., recovered two currency notes in the denomination of Rs.10/- notes from the Vehicle Entry Register which was in possession of Const.Subhash Sabe. Hence the charge. Charge No.II: Gross indiscipline and disobedience in that No. 854450505 Const.(U/S) Subhash Sabe was found in possession of Rs.20/- in addition to the amount of Rs.10/- declared by him at the time of mounting on duty on 03.09.1999 in violation of Unit standing order No.E-42099/CISF/JNPT/00/98/4311 dated 13.08.1998 and E-42099/CISF/JNPT/99/375 dated 18.05.99. Hence the charge. 5. Enquiry Officer was appointed and the departmental enquiry was held against the petitioner. During the course of the enquiry, three witnesses were examined viz. PW1-H.B.L.Meena, PW2-Dileep M.A.and PW3-SI/Exe Rajeev Sharma. The petitioner examined himself as defence witness. The Enquiry Officer held that both the charges levelled against the petitioner were proved. The petitioner was issued show cause notice on January 5, 2001 and alongwith that the report of the enquiry officer was enclosed. The petitioner was called upon to 4 make representation against the said report. The petitioner made detailed representation to the Group Commandant on February 3, 2001. Considering the material on record, the Group Commandant issued final order on February 16, 2001. He came to the conclusion that the enquiry conducted by the enquiry officer was as per the procedure laid down under the rules. The petitioner was provided with reasonable and fair opportunity. The Group Commandant fully agreed with the findings of the enquiry officer and came to the conclusion that both the charges have been proved. In exercise of the powers conferred under Rule 22, Schedule II of the CISF Rules, he awarded penalty of removal from service of the petitioner and the period of suspension from September 4, 1999 to the date of issue of said order, was treated as such. 6. Being aggrieved by this decision, the petitioner preferred appeal before the Deputy Inspector General. The Appellate Authority considered the material on record and came to the conclusion that there was no procedural flaw or miscarriage of justice. He came to the conclusion that the pleas advanced by the petitioner were totally devoid of merits and there was no infirmity in the proceedings. He also did not find any extenuating circumstances to interfere with the orders passed by the Disciplinary Authority. In the result he dismissed the appeal. 5 7. In support of this petition, Mr.Pitale, learned counsel for the petitioner submitted that the petitioner was falsely implicated in the departmental proceedings. The two currency notes of Rs.10/-each were not recovered from the petitioner but the said notes were planted in the register. There is no legal evidence to implicate the petitioner and the authorities below have committed errors apparent on the face of the record in imposing penalty on him. 8. On the other hand, learned counsel for the Respondents has submitted that the petitioner was given fair and reasonable opportunity to defend himself. The department examined three witnesses who were permitted to be cross-examined by the petitioner. The petitioner was also permitted to examine defence witnesses and accordingly, the petitioner examined himself as a defence witness. There is a material on record to hold that both the charges levelled against the petitioner have been duly established. Thus, he submitted that the enquiry was conducted by observing the principles of natural justice and on merits there is sufficient material that establishes both the charges levelled against the petitioner. 9. With the assistance of learned counsel for the parties, we have gone through the material on record. From the material on record, it is abundantly clear that the Respondents conducted enquiry by observing the principles of natural justice. The petitioner was given 6 fair and reasonable opportunity to defend himself. As set out earlier, the department examined three witnesses and were permitted to be cross-examined by the petitioner. The petitioner also examined himself as a defence witness. It therefore cannot be said that the enquiry conducted was in breach of principles of natural justice. On merits there is material on record that establishes guilt of the petitioner. The authorities below came to the conclusion that the two charges levelled against the petitioner have been duly proved. We do not find any good reason to take a different view in the matter. 10.Learned counsel for the petitioner submitted that in respect of one Mr.M.T.Kamble, being similarly situated employee, a minor punishment of stoppage of increment was inflicted, however in so far as the petitioner is concerned, the major penalty of removal from service was imposed. Learned counsel for the petitioner submitted that this is nothing but colourable exercise of power by the authorities. 11.On the other hand, learned counsel for the Respondents submitted that in the order of said Mr.M.T.Kamble, the reasons for imposing the penalty of stoppage of increment have been given by the Disciplinary Authority. The decision regarding quantum of the penalty rests with the Disciplinary Authority after considering the pros and cons of each case and also the merits of each case. We have gone through the order 7 dated May 11, 2000 passed in the case of Mr.M.T.Kamble. 12.Mr.Pitale, learned counsel for the petitioner made a statement that his client is ready and willing to give up the back wages if the penalty imposed on him by the Respondents is substituted by imposing penalty of stoppage of increment that was imposed on Mr.M.T.Kamble. He submitted that the petitioner is also similarly situated as that of Mr.M.T.Kamble, and having regard to the misconduct alleged to have been committed by the petitioner, the penalty that was imposed on Mr.M.T.Kamble be imposed on the petitioner instead of penalty of removal from service. The statement made by learned counsel for the petitioner is accepted. 13.We have gone through the material on record as also the order dated May 11, 2000 passed in the case of Mr.M.T.Kamble. In our opinion, the allegations levelled in both the cases are identical. In view of the statement made by learned counsel for the petitioner that the petitioner is not claiming any backwages for the intervening period, the following order would meet the ends of justice: (i) The order of removal from service imposed on the petitioner is hereby set aside. He is reinstated in service. However no back wages are to be paid to him. (ii) Instead of that penalty, the pay of the petitioner Mr.Subhash N.Sabe is reduced to minimum time scale of pay from Rs.3500/- to Rs. 8 3050 in the rank of constable for a period of two years with immediate effect. It is further directed that during the currency of the said penalty, he will not earn any increment and on expiry of this period this will have effect of postponing his future increment of pay. 14.In the result, petition partly succeeds and is accordingly partly allowed in the aforesaid terms. Rule is made absolute partly, with no order as to costs. (D.K.DESHMUKH,J.) (R.G.KETKAR, J.)