HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA WRIT PETITION No. 12022 OF 2005 . DATED 19th September, 2011 BETWEEN Subash Chandra Biswal …Petitioner And The Inspector General/SWS,Central Industrial Security Force, RCFL Complex, Chembur, Mumabi and ors. ….Respondents. HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA WRIT PETITION No. 12022 of 2005 ORDER: The petitioner entered the service of the Central Industrial Security Force (CISF) as a constable in the year 1972. Later he was promoted to the post of Nayak in the year 1982, and was further promoted as a Head Constable in the year 1987 and as an Assistant Sub-Inspector in the year 2001. While so, the petitioner was subjected to disciplinary proceedings on 5.2.2004 on the ground that he committed a gross indiscipline and violation of existing instructions while he was on general shift duty at TBR gate on 6.1.2004 being found in possession excess money of Rs.20/- which is contrary to the existing instructions. Dissatisfied with the explanation submitted by the petitioner to the said charge on 17.02.2004 an enquiry was conducted and based on the enquiry report thereof and the explanation submitted by the petitioner thereto, the disciplinary authority imposed upon the petitioner a penalty of reduction to the lower rank of Head Constable until he is found to be fit after three years from the date of the order. Feeling aggrieved by the same, the petitioner preferred an appeal before the second respondent, who by his order dated 8.10.2004 modified the aforesaid punishment to that of reduction in the pay of the petitioner to the minimum stage in the rank of ASI/Exe for a period of two years. It was further directed that during the period of reduction, he would not earn the increments of pay and on expiry of the said period, the reduction would have the effect of postponing his future increments of pay. The revision petition filed by the petitioner against the aforesaid order of the appellate authority, ended in dismissal by order dated 28.01.2005. Hence, the present Writ Petition. The learned Counsel for the petitioner submitted that there was no complaint either written or oral against the petitioner in indulging illegal activities of accepting any gratification while he was on duty. He argued that as long as there is no allegation of misconduct against the petitioner, the respondent authorities are not statutorily authorized to impose any punishment. The learned Counsel asserted that despite the plea of the petitioner that he brought and kept the money with him to have food in as much as his wife was unable to cook the food on account of her ailment, the respondents imposed a heavy punishment without there being any misconduct either alleged or proved. He therefore submitted that the action of the respondents in initiating the enquiry and therefore imposing the punishment is illegal and arbitrary. The learned Central Government Standing Counsel appearing on behalf of the respondents, while reiterating the counter averments, submitted that earlier the petitioner was subjected to disciplinary proceedings on four separate occasions on different omissions and commissions, such as, carelessness towards duty, sleeping on duty, OSL and accepting illegal gratification, for which he was awarded suitable punishments. He submitted that the petitioner had committed a misconduct of possessing excess money than the prescribed during the duty hours and thereby violated the instructions in regard thereto, and that initially he was placed under suspension and charge memo under Rule 36 of CISF Rules 2001 was issued to the petitioner on 5.2.2004. He further stated that the enquiry officer conducted the enquiry as per the procedure laid down under the CISF Rules and afforded a reasonable opportunity to the petitioner to defend his case and that after taking into consideration all the material available on record, the enquiry officer concluded the enquiry holding the charge levelled against the petitioner proved. He further submitted that the punishment imposed by the second respondent-appellate authority in modification of the penalty imposed by the third respondent was proportionate to the charge of misconduct levelled against the petitioner and in fact the said modification of punishment was ordered taking into consideration the length of service put forth by the petitioner in the CISF. He therefore submitted that there are no valid grounds in this Writ Petition to interfere with the orders of the respondent authorities. Perused the case file. As per the existing instructions of the respondent-CISF, the employees while on duty should not possess more than Rs.10/- as pocket money. The grave men of the charge is that the petitioner was found to have been in possession of excess money of Rs.20/- while he was on general shift duty on 6.1.2004 which is contrary to the existing instructions. To this charge, it is the case of the petitioner that due to his wife’s illness, he could not bring his lunch and brought Rs.20/- with him to meet the expenditure of his Tiffin and Lunch and the said factum of carrying excess money was not brought to the notice of his superiors though the same was required to be informed to his superiors but an entry was made in the register to that effect. P.Ws. 1 and 2 deposed in their evidence before the enquiry officer that they found the petitioner carrying excess money with him and seizure of the said money from him thereon. One S.R. Murthy, HC/GD was examined as C.W.1, who in his evidence deposed that the petitioner at the time of attending his duty endorsed his signature in the register and left for the plant duty. During the cross- examination by the petitioner, he stated that the Duty Register was meant for signature and there was no column for declaring the pocket money. Basing thereon, the primary authority on the one hand recorded that the declaration of possessing excess money of Rs.20/- in the Duty Register carried no weightage as the Duty Register was not meant for declaring the excess money and there was no such provision/column in the said register as stated by CW.1 in his evidence during the enquiry, and on the other hand, he came to the conclusion that declaration might have done by the petitioner afterwards with a view to avoid disciplinary action against him. From the above stand of the primary authority, it is clear that he expressed divergent views as to declaring excess money that there is no provision in the Duty Register for declaring excess money and even if it was declared such entry might have been done afterwards to escape from the disciplinary proceedings. It appears that the relevant entries pertaining to the date of incident have not been produced either before the domestic enquiry nor before the primary authority. Further, albeit the petitioner had agreed that he had not informed his superiors with regard to possessing excess money, the same was in fact declared in the Duty Register. Further, it is to be seen that there was no complaint against the petitioner as to indulging in illegal activities or accepting any illegal gratification. Notwithstanding the same, the respondents proceeded to conduct enquiry and imposed the punishment upon the petitioner as aforestated. The appellate authority in the operative portion of its order having observed that as there was no direct complaint against the petitioner regarding payment of illegal gratification, failed to reach the logical conclusion in regard thereto, as the said observation clearly evidences that the petitioner has not committed any misconduct. On the above analysis, the sequitur is that the petitioner was in possession of Rs.20/- during his duty hours, which is more than Rs.10/- as per the existing instructions of the respondents-CISF, as he was in fact in possession of the said money at the time of reporting to duty itself. As regards the punishment imposed on the petitioner, in my considered opinion, it is disproportionate to the charge levelled against the petitioner and thus the orders of the authorities below are wholly untenable and unsustainable under law as the respondent authorities failed to consider the fact that the petitioner was in possession of only Rs.10/- which was brought to meet his tiffin and lunch expenditure on account of his wife’s illness and in fact an entry was made with regard thereto in the Duty Register. For the foregoing discussion, the orders of the primary, appellate and review authorities are liable to be set aside and which are accordingly set aside. In the result, the Writ Petition is allowed as prayed for. There shall be no order as to costs. ------------------------------------ -- JUSTICE ASHUTOSH MOHUNTA Dated 19th September, 2011. Msnro