SCA/18271/2003 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 18271 of 2003 For Approval and Signature: HONOURABLE MS. JUSTICE R.M.DOSHIT HONOURABLE MR.JUSTICE K.M.THAKER ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= 904472013 CONSTABLE GMK RAO - Petitioner(s) Versus UNION OF INDIA & 2 - Respondent(s) ========================================================= Appearance : MR VM DHOTRE for Petitioner(s) : 1, MR KETAN A DAVE for Respondent(s) : 1 - 3. MR HARIN P RAVAL for Respondent(s) : 1 - 3. MS PJ DAVAWALA for Respondent(s) : 3, ========================================================= CORAM : HONOURABLE MS. JUSTICE R.M.DOSHIT and HONOURABLE MR.JUSTICE K.M.THAKER Date : 16/10/2008 ORAL JUDGMENT (Per : HONOURABLE MS. JUSTICE R.M.DOSHIT) SCA/18271/2003 2/7 JUDGMENT The petitioner, a Constable in Central Industrial Security Force stationed at Ahmedabad, has preferred the present petition under Articles 226 and 227 of the Constitution of India against the order of punishment of reduction in pay made on 1st February, 2002 by the Deputy Commandant and confirmed by the appellate and revisional authorities. At the relevant time the petitioner was posted on security duty at Physical Research Laboratory, Ahmedabad. On 13th January, 2002 he had been assigned night duty from 9:00 p.m. to 5:00 a.m. the next day. On that date, he is alleged to have made an attempt to pilfer fuel from a parked car. He was caught red handed by the security man one Shri V.P.Yadav. For the said incidence, a disciplinary proceeding for imposition of minor penalty was initiated against the petitioner by issuance of memorandum of charge on 17th January, 2002. The memorandum of charge was replied to by the petitioner. After holding due inquiry, by order dated 1st February, 2002 made by the Deputy Commandant, the imputation of charge was held to be proved. For the said act of misconduct the petitioner was visited with punishment of reduction in pay to SCA/18271/2003 3/7 JUDGMENT the lowest in the time scale for a period of one year without future effect or without affecting his pension. The said order has been confirmed by the appellate and revisional authorities. Therefore, the present petition. Mr.Dhotre has appeared for the petitioner. He has submitted that the inquiry proceeding was conducted against the petitioner in violation of principles of natural justice. The penalty imposed upon the petitioner is not proportionate to the guilt proved against the petitioner. He has also submitted that the inquiry was initiated under rule 35 of the Central Industrial Security Force Rules, 1969. The said Rules do not empower disciplinary authority to impose punishment of reduction in pay. The punishment of reduction in pay imposed by the disciplinary authority was thus without the authority of law. He has also submitted that the finding of guilt recorded against the petitioner is erroneous. It was not possible for the petitioner to pilfer fuel from the parked car as alleged. He has relied upon communication dated 18th January, 2002. By the said communication the petitioner had asked for the statements of the other security men recorded, which SCA/18271/2003 4/7 JUDGMENT the disciplinary authority refused to furnish. The petitioner has thus been deprived of a fair opportunity of defence. We are unable to agree with Mr.Dhotre. True, the memorandum of charge did refer to the Rules of 1969 but it obviously was an error. The Government of India has made the Central Industrial Security Force Rules, 2001 in supersession of the Rules of 1969. On and from the date of the Rules of 2001, the Rules of 1969 were repealed. The disciplinary proceeding could not have been initiated against the petitioner under the Rules of 1969. A corrigendum to that effect was also issued on 11th March, 2002. It is not in dispute that the Rules of 2001 do permit the disciplinary authority to impose punishment of reduction in pay. We, therefore, reject the contention that the impugned order of punishment had been made by the disciplinary authority without the authority of law. As to the supply of documents, we have noted that under communication dated 18th January, 2002 the petitioner had demanded that the statements of all the security men on duty on 13th January, 2002 be furnished to the petitioner. He had also demanded SCA/18271/2003 5/7 JUDGMENT that the statement of a security man one Darbar Balusinh be recorded. The said demand came to be rejected on 29th January, 2002. It was stated that the statement of the aforesaid Balusinh was not relevant and, therefore, it was not recorded. The other materials were not required to be provided because the Rules of Procedure do not contemplate furnishing of relevant materials. We are at loss, whether the Rules do contemplate or not, the principles of natural justice and fair play warrant that a delinquent be furnished all materials on which the charge is based. Admittedly, the charge was based on statement of the aforesaid Mr.Yadav. It was on the basis of the complaint made by the said Shri Yadav, the disciplinary proceeding was initiated against the petitioner. It was, therefore, absolutely necessary that the statement of Mr.Yadav and the other statements on which the charge was framed were supplied to the petitioner along with the charge- sheet. Not only that such materials were not supplied to the petitioner along with the charge-sheet, the same were not furnished to the petitioner even after he made specific demand on 18th January, 2002. The said contention was specifically raised in the departmental appeal. The appellate authority, SCA/18271/2003 6/7 JUDGMENT however, failed to consider the contention raised by the petitioner correctly. Consequently, the appellate authority and the revisional authority have also erred in upholding the order of punishment imposed upon the petitioner in contravention of the principles of natural justice. In the above circumstances, we are of the opinion that the disciplinary proceeding was held against the petitioner contrary to the principles of natural justice and fair play. The petitioner was not given fair opportunity to defend the imputation of charge made against him. The disciplinary proceeding held against the petitioner and the consequent order of punishment are bad and illegal. For the aforesaid reasons, we allow the petition. The impugned order dated 2nd August, 2002 made by the revisional authority and the order of punishment dated 1st February, 2002 made by the disciplinary authority are quashed and set-aside. The appellant be paid the amount of difference in salary for the period in question within two months from the date of the receipt of the copy of this order by the respondent no.2. Rule is made absolute with cost. SCA/18271/2003 7/7 JUDGMENT Registry will send the writ forthwith. (K.M.Thaker, J.) (Ms.R.M.Doshit, J.) /moin