IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 7516 of 1992 Date of Decision:02-08-2004 --------------------------------------------------------- JIVANBHAI SHIVABHAI GARODA Versus UNION OF INDIA --------------------------------------------------------- Coram: The Hon'ble Mr. Justice Bhawani Singh, Chief Justice The Hon'ble Mr. Justice H.K. Rathod, Judge Whether approved for reporting? For the Petitioners: MR PR THAKKAR for Petitio For the Respondents: MR JS YADAV for Respondents -------------------------------------------------------------- PER: BHAWANI SINGH, CHIEF JUSTICE (C.A.V.):- 1. Petitioners were serving in the Security Force, a Branch in the Indian Petrochemicals Corporation Limited (IPCL) Baroda, till 1972. Sometime during this year, Director General, Central Industrial Security Force (CISF), proposed to Management of IPCL that policy of the Central Government required security of CISF to protect --------------------------------------------------------- Whether Reporters of Local Papers may be allowed to see the Judgment? the Industries of the Government. Therefore, Security Force maintained by IPCL was sought to be inducted into CISF. When this proposal was conveyed to the employees of Security Force of IPCL, which included the petitioners and some other employees, induction was protested since it would cause injustice and inconvenience to the petitioners. It was stated that induction into CISF would mean transfer anywhere in India, which was neither conducive nor in the interest of the petitioners. Moreover, they had been engaged in Security Force of IPCL since they had lost their agricultural lands for the formation of IPCL Complex, and they belong to villages surrounding IPCL, meaning thereby, they were not prepared for the induction since it may result in transfers outside IPCL. Director General, CISF, IPCL Unit, Baroda, arranged meeting with IPCL Management and Representatives of the Petitioners. In the meeting, it was assured and promised by Director General, CISF that employees opting for induction in CISF, Vadodara, would not be transferred out of IPCL, Baroda, till promoted up to the rank of Inspector. This settlement was published in authenticated journal "Prerana" of IPCL. Accordingly, petitioners opted for induction in CISF and became its employees. In the absence of assurance against transfer till they are promoted to the rank of Inspector, they would not have opted for induction into CISF. This assurance was honoured by the authorities till 1983. Thereafter, the Commandant holding the charge of IPCL Unit, attempted to commit mischief against the interest of the petitioners giving a go by to the assurances and settlement of 1972 and the petitioners were transferred at his instance to States like Bihar, Andhra Pradesh, Kerala, Maharashtra, Madhya Pradesh, etc. Petitioners, belonging to nearby villages and belonging to Class III and IV grade in service, could not move out of IPCL Complex, Baroda. They protested against the transfers and represented to the authorities against the transfers, bringing to their notice the promise they had extended to them and the inconvenience they were likely to suffer. However, no attention was paid, therefore, some of the petitioners filed writ petition (Special Civil Application) challenging the transfers. High Court having said that existence of agreement was highly disputed question of fact, therefore, petition could not be entertained, petitioners filed Civil Suits in Civil Court (S.D.), Baroda, obtained interim injunction restraining the respondents from transferring the petitioners. Later, this interim injunction was confirmed, transfers stayed, till the final disposal of the Suit. The appellate Court dismissed the Appeal against this order. 2. Thereafter, the respondents preferred a revision petition before this Court. Allowing the same, the Court directed the Civil Court to expedite the Suits. Civil Court, dismissed the suits, against which First Appeal is pending before the appellate Court, Baroda. 3. The petitioners represented to IPCL stating interalia that they belong to poor families. They have no other source of income except salary. They were aggrieved by the turn around of CISF, therefore, they could not be taken back by IPCL. Persistent efforts were made to secure relief from IPCL and the respondents, but nothing was done. Petitioners were constrained to approach the management collectively and protested the injustice meted out to them, sat before IPCL Corporate Office with a bonafide belief that the protest may invite the attention of IPCL Management to their genuine grievances. However, CISF took it serious act of misconduct and indiscipline, and passed orders for the dismissal of petitioners from service without serving notice, charge sheet and offering an opportunity of being heard and defend themselves, thereby committing flagrant violation of principles of natural justice. They submit that Rule 34, Central Industrial Security Force Rules 1969 (CISF Rules 1969) prescribes procedure for inflicting penalty, but the same was not followed, and punishment of dismissal from service was imposed on the petitioners, the action of the respondents is thoroughly capricious, arbitrary, unreasonable and unjustified, therefore, liable to be set aside. Petitioners preferred appeal to Director General, CISF, however, they were asked to file appeal before the DIG, CISF, Western Zone. Accordingly, it was followed up by reminders, but the same had been rejected. They also preferred appeal to Director General, CISF, but the same has also been rejected. Thereafter, they approached the President of India, highlighting injustice caused to them, which was sent to Ministry of Home, Central Government. When none of these authorities took decision on their appeals, representation was submitted to the Prime Minister of India on 13-05-1985. Petitioners submit that orders of dismissals from service be quashed, respondents directed to reinstate them in service with all privileges, benefits and full backwages. 4. Through affidavit dated 6th April, 1993, CISF, IPCL Unit, Baroda, submitted that the Petition is not maintainable because of separate dismissal orders against the petitioners, therefore, separate cause of action. It is submitted that petitioners were formerly serving in Security Department of IPCL, and their employer was IPCL, Baroda. CISF was inducted in IPCL in accordance with the provisions of Section 14 of The Central Industrial Security Force Act, 1968. To avoid petitioners losing jobs, option was given to them for induction and absorption in CISF. Accordingly, an agreement was executed by the petitioners, and there was no stipulation that employees who opted to join CISF will not be transferred outside Baroda until they reached the rank of Inspector, rather, stipulation is that after induction they are liable to serve anywhere in India, however, the matter of transfer is subject to Civil Suits and not of this petition. 5. As regards the order of dismissal challenged in this petition, it is submitted that it was passed since they were members of Armed Force of the Union, CISF. The need of discipline is of paramount importance in CISF, petitioners indulged in agitational activities, which seriously and adversely affected the discipline in the Force, and the direct and resultant consequence of agitational activities of petitioners was creating serious law and order problems in the Unit of CISF, therefore, the disciplinary authority was satisfied for the reason recorded in writing that it was not reasonably practicable to follow the procedure prescribed for holding inquiry, therefore, the disciplinary authority in exercise of the powers conferred under Rule 37(b) of CISF Rules 1969 imposed penalty of dismissal from service upon the petitioners, the reasons are recorded in the original record of CISF Unit, Baroda, which is confidential and could be shown to the Court, therefore, in exercise of power under Rule 37(b) there was no need to follow the procedure prescribed, and principles of natural justice stand excluded. It is denied that CISF extended any kind of assurance to the petitioners at the time of their absorption in CISF, and terms and conditions of absorption, which were reduced into writing. Assuming that assurance was given by unauthorised person, the same cannot be said of CISF Authorities, as there cannot be any assurance against provisions. Negotiations between IPCL, petitioners and CISF are denied, similarly, the contents of article published in the magazine "Prerana", since it was not part of any settlement nor treated an Authority and majority of watchmen were absorbed in CISF, who otherwise were to be retrenched and CISF was under no obligation to take them. Petitioners were transferred in administrative exigency and allegations of malafide against the Commandant are absolutely baseless and set up with great prejudice. Since IPCL is no longer the employer, representation could not be made to it. Petitioners represented to IPCL and not to CISF, therefore, created law and order problem for CISF. IPCL had nothing to do with the transfer of the petitioners. It was done by the CISF of which they were the employees. They adopted agitational course, displaying placards against CISF and IPCL. They did not resume duty during the strike period, thus, involved themselves in serious misconduct, therefore, it was not reasonably practicable to follow the procedure for holding inquiry. Action was taken in accordance with Rule 37(b) of CISF Rules, 1969, action is within the statutory provisions, therefore, it is not capricious, and the allegation that it is capricious, is unjustified; representation to Prime Minister of India has been decided by order dated 09-06-1989, petitioners have not resorted to statutory remedy available to them, they stand dismissed from service from 30-11-1985, there is no substance in the petition, therefore, deserves to be dismissed. 6. Before adverting to the submissions advanced by learned counsel for the parties, we may refer to some of the provisions of CISF Act, 1968 and CISF Rules, 1969. Section 7, 8 and 9 provide for superintendence and administration of the Force, dismissal, removal, etc. of members of the Force, appeal and revision and Section 10 provides for duties of members of the Force. Section 14 provides for deputation of the Force to Industrial undertakings in public sector. Section 15 envisages officers and members of the Force to be considered always on duty and liable to be employed anywhere in India, while Section 15-A imposes restrictions respecting right to form association, etc. Section 16 deals with responsibilities of member of the Force during suspension and Section 18 penalties for neglect of duty, etc. Section 22(2) authorises the Central Government to make rules for carrying out the purposes of this Act. They are quoted: "7.Superintendence and administration of the Force.- (1) The superintendence of the Force shall vest in the Central Government, and subject thereto and to the provisions of this Act and of any rules made thereunder, the command, supervision and administration of the Force shall vest in the Director-General. (2) Subject to the provision of Sub-sec.(1), the administration of the Force within such local limits as may be prescribed shall be carried on by an Inspector-General, a Deputy Inspector-General, a Commandant, A Deputy Commandant or an Assistant Commandant in accordance with the provisions of this Act and of any rules made thereunder and every supervisory officer placed in charge of the protection and security of an industrial undertaking shall subject to any directions that may be given by the Central Government or the Director General in this behalf, discharge his functions under the general supervision, direction and control of the Managing Director of that undertaking. 8.Dismissal, removal, etc. of members of the Force.- Subject to the provisions of Art. 311 of the Constitution and to such rules as the Central Government may make under this Act, any supervisory officer may - (i) dismiss, remove order for compulsory retirement of or reduce in rank any enrolled member of the Force whom he thinks remiss or negligent in the discharge of his duty or unfit for the same; or (ii) award any one or more of the following punishments to any enrolled member of the Force who discharges in a careless or negligent manner or who by any act of his own renders himself unfit for the discharge thereof, namely: (a) fine to any amount not exceeding seven days' pay or reduction in pay scale; (b) drill, extra guard, fatigue or other duty; (c) removal from any office of distinction or deprivation of any special employment; (d) withholding of increment of pay with or without cumulative effect; (e) withholding of promotion; (f) censure. 9. Appeal and revision.- (1) Any enrolled member of the Force aggrieved by an order made under Sec.8 may, within thirty days from the date on which the order is communicated to him, prefer an appeal against the order to such authority as may be prescribed, and subject to the provisions of Sub-sec.(2-A), Sub-sec. (2-B) and Sub-sec. (3), the decision of the said authority thereon shall be final: Provided that the prescribed authority may entertain the appeal after expiry of the said period of thirty days, if it is satisfied that the appellant was prevented by sufficient cause from filling the appeal in time. (2) In disposing of an appeal, the prescribed authority shall follow such procedure as may be prescribed. (2-A) Any enrolled member of the Force aggrieved by an order passed in appeal under Sub-sec.(1) may, within a period of six months from the date on which the order is communicated to him, prefer a revision petition against the order to such authority as may be prescribed and in disposing of the revision petition, the said authority shall follow such procedure as may be prescribed. (2-B) The authority, as may be prescribed for the purpose of this sub-section, on a revision petition preferred by an aggrieved enrolled member of the Force or suo moto, may call for, within a prescribed period, the records of any proceeding under Sec.8 or Sub-sec.(2) or Sub-sec. (2-A) and such authority may, after making inquiry in the prescribed manner, and subject to the provisions of this Act, pass such order thereon as it thinks fit. (3) The Central Government may call for and examine the record of any proceeding under Sec. 8, Sub-sec. (2), Sub-Sec.(2-A) or Sub-sec. (2-B) of this section and may make such inquiry or cause such inquiry to be made and 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-sec.(2) or Sub-Sec. (3) shall be made unless a reasonable opportunity of being heard has been given to the person affected by such order. 10. Duties of members of the Force.- It shall be the duty of every member of the Force- (a) promptly to obey and execute all orders lawfully issued to him by his superior authority; (b) to protect and safeguard the industrial undertaking owned by the Central Government together with such other installations as are specified by that Government to be vital for the carrying on of work in those undertakings, situate within the local limits of his jurisdiction: Provided that before any installation not owned or controlled by the Central Government is so specified, the Central Government shall obtain the consent of the Government of the State in which such installation is situate; (c) to protect and safeguard such other industrial undertakings and installations for the protection and security of which he is deputed under Sec.4; (d) to protect and safeguard the employees of the industrial undertakings and installations referred to in Clauses (b) and (c); (e) to do any other act conducive to the better protection and security of the industrial undertakings and installations referred to in Clause (b) and (c) and the employees referred to in Clause (d); (f) to provide technical consultancy services relating to security of any private sector industrial establishments under Sec. 14-A; (g) to protect and safeguard the organisations owned or funded by the Government and the employees of such organisations as may be entrusted to him by the Central Government; (h) any other duty which may be entrusted to him by the Central Government from time to time. 11. to 13. xx xx xx 14.Deputation of the Force to Industrial undertakings in public sector.- (1) Subject to any general directions which may be issued by the Central Government, it shall be lawful for the Director-General on a request received in this behalf from the Managing Director concerned on an industrial undertaking in public sector, showing the necessity thereof, to depute such number of members of the Force as the Director General may consider necessary for the protection and security of that industrial undertaking and any installations attached thereto and the members of the Force so deputed shall be at the charge of the Managing Director: Provided that in the case of an undertaking, owned, controlled or managed,- (i) by a Government company of which the Central Government is not a member; (ii) by a corporation established by or under a Provincial or State Act, no such request shall be entertained unless it is made with the consent of the Government of the State in which the undertaking is situate. (2) If the Director General is of the opinion that circumstances necessitating the deputation of the member of the Force in relation to an industrial undertaking under Sub-sec. (1) have caused to exist, or for any other reason it is necessary so to do, he may, after informing the Managing Director of that industrial undertaking, withdraw the members of the Force so deputed: Provided that the Managing Director may, on giving one month's notice in writing to the Director General require that the members of the Force so deputed shall be withdrawn, and the Managing Director shall be relieved from the date of expiration of such notice or from any earlier date on which the Force is so withdrawn. (3) Every member of the Force, while discharging his functions during the period of deputation, shall continue to exercise the same powers and be subject to the same responsibilities, discipline and penalties as would have been applicable to him under this Act, if he had been discharging those functions in relation to an industrial undertaking owned by the Central Government. 15.Officers and members of the Force to be considered always on duty and liable to be employed anywhere in India.- (1) Every member of the Force shall, for the purpose of this Act, shall be considered to be always on duty, and shall, at any time, be liable to be employed at any place within India. (2) Save as provided in Section in Sec.14, no member of the Force shall engage himself in any employment or office other than his duties under this Act. 15-A. Restrictions respecting right to form association, etc.- (1) No member of the Force shall, without the previous sanction in writing of the Central Government or of the prescribed authority,- (a) be a member of, or be associated in any way with, any other union, labour union, political association or with any class of trade unions, labour unions or political associations; or (b) be a member of, or be associated in any way with, any other society, institution or association or organisation that is not recognised as a part of the Force or is not of a purely social, recreational or religious nature; or (c) communicate with the press or public or cause to be published any book, letter or other document except where such communication or publication is in the bona fide discharge of his duties or is of a purely literary, artistic or scientific character or is of a prescribed nature. Explanation.- If any question arises as to whether any society, institution, association or organisation is of a purely social, recreational or religious nature under Clause (b) of this Sub-section the decision of the Central Government thereon shall be final. (2) No member of the Force shall participate in, or address, any meeting or take part in any demonstration organised by any body of persons for any political purposes or for such other purposes as may be prescribed. 16.Responsibilities of member of the Force during suspension.- A member of the Force shall not by reason of his suspension from office cease to be a member of the Force, and he shall, during that period, be subject to the same responsibilities, discipline and penalties to which he would have been subjected if he were on duty. 17. xxx xxx 18.Penalties for neglect of duty, etc.- (1) Without prejudice to the provisions contained in Sec.8, every member of the Force who shall be guilty of any violation of duty or wilful breach or neglect of any rule or regulation or lawful order made by a supervisory officer, or who shall withdraw from the duties of his office without permission, or who, being absent on leave, fails without reasonable cause, to report himself for duty on the expiration of the leave, or who engages himself without authority in any employment other than his duty as a member of the Force, or who shall be guilty of cowardice, may be taken into Force custody and shall, on conviction, be punished with imprisonment for a term which may extend to one year. (2)Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), an offence punishable under this section shall be cognizable and non-bailable. (2-A)Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the Central Government may invest the Commandant with the powers of a Magistrate of any class for the purpose of inquiring into or trying any offence committed by an enrolled member of the Force and punishable under this Act or any offence committed by an enrolled member of the Force against the person or property of another member of the Force: Provided that- (i) when the offender is on leave on or absent from duty; or (ii) when the offence is not concerned with the offender's duties as an enrolled member of the Force; or (iii) when it is a petty offence even if connected with the offender's duties as an enrolled member of the Force; or (iv) when, for reasons to be recorded in writing, it is not practicable for the Commandant invested with the powers of a Magistrate to inquire into or try an offence, The offence may, if the prescribed authority within the limits of whose jurisdiction the offence has been committed so requires, be inquired into or tried by an ordinary Criminal Court having jurisdiction in the matter. (3)Nothing contained in this section shall be construed to prevent any member of the Force from being prosecuted under any other law for any offence made punishable by that law, or for being liable under any such law to any other or higher penalty or punishment than is provided for such offence by this section: Provided that no person shall be punished twice for the same offence. 19 to 22 xx xx xx 22.Power to make rules.- (1) xx xx (2) In particular, and without prejudice to the generality of the foregoing powers, such rules may provide for,- (a) regulating the classes, ranks, grades, pay and remuneration of members of the Force and their conditions of service in the force; (b) regulating the powers and duties of members of the Force authorized to exercise any functions by or under this Act; (c) fixing the period of service for members of the Force; (d) prescribing the description and quantity of arms, accountrements, clothing, and other necessary articles to be furnished to the members of the Force; (e) prescribing the places of residence of members of the Force; (f) institution, management and regulation of and fund for any purpose connected with the administration of the Force; (g) regulating the punishments and prescribing authorities to whom appeals shall be preferred from orders of punishments, or remission of fines or other punishments, and the procedure to be followed for the disposal of such appeal; (gg) regulating matters with respect to Force custody under this Act including the procedure to be followed for taking persons into such custody; (ggg) regulating matters with respect to disposal of cases relating to offences under this Act and specifying the places in which persons convicted under this Act may be confined; (gggg) prescribing authority under Sub-sec.(2-A) of Sec.9, and the procedure to be followed by such authority in disposing of the revision petition; (ggggg) prescribing authority under Sub-sec. (2-B) of Sec.9, the period within which such authority may call for the records and the manner