An appellate authority does not have the right to penalise an individual without evidence: High Court of Chhattisgarh

HIGH COURT OF CHHATTISGARH BILASPUR Writ PetitionNo.30708 Order reserved on: 15 6 2021 Order delivered on: 23 6 Ashwani Kumaraged about 35 years S o Shri Joginder Pal Central Industrial Security Force Unit Bhilai Steel Plant Bhilai 01 Durgunder the Ministry of Home Government of India and was posted at CISF Unit Bhilai Steel Plant Bhilai District Durg. He was placed under suspension by the Assistant Commandant Plant I CISF Unit Bhilai Steel Plant Bhilai on 27 1 2007 in contemplation of departmental enquiry and he was served with charge sheet by the Commandant CISF Unit BSP Bhilai on 3 3 2007 which he replied and ultimately after conclusion of departmental enquiry on 31 7 2007 he was inflicted with a penalty of reduction of pay per month from ₹ 3 965 to ₹ 3 200 for a period of three years against which he preferred an appeal before the Deputy Inspector General CISF Unit BSP Bhilai on 3 9 2007 in which the appellate authority also served notice on 29 10 2007 to which he filed reply and ultimately by order dated 20 31 12 2007 the appellate authority dismissed the appeal and simultaneously enhanced the punishment of reduction in pay from three years to five years which has been called in question in the instant writ petition on the ground that the disciplinary authority has clearly erred in imposing penalty of reduction in pay for five years on the basis of no evidence and the appellate authority failed to consider the appeal in accordance with Rule 52 of the Central Industrial Security Force Rules 2001and even the procedure prescribed in Rule 52 of the said Rules has not been followed while hearing the appeal and enhanced the punishment of the petitioner therefore it is liable to be set aside 3. Mr. V.G. Tamaskar learned counsel appearing for the petitioner would submit that the petition has been admitted for hearing and remained pending for last 13 years and therefore it would be wholly inappropriate to relegate the petitioner to the remedy of appeal or revision if any as such the petition should be decided on merits. He would further submit that the petitioner’s appeal has not been heard fairly by the appellate authority and as such the orders passed by the appellate authority and the disciplinary authority are liable to be set aside. 4. Mr. Bhupendra Singh learned counsel appearing for the respondents would submit that the petitioner has rightly been punished for his misconduct by reduction in pay for three years which has rightly been enhanced to five years after serving show cause notice dated 29 10 2007 and which is strictly in accordance with law in which no interference is called for in this jurisdiction and the remedy available to the petitioner was to prefer appeal and revision as such the writ petition deserves to be dismissed 5. I have heard learned counsel for the parties and considered their rival submissions made herein above and also went through the material available on record with utmost circumspection 6. The appeal preferred by the petitioner has been dismissed by the appellate authority and the appellate authority has enhanced the punishment of reduction in pay from three years to five years. Rule 52 of the CISF Rules of 2001 provides Consideration of appeals. Sub ruleof Rule 52 provides the manner of dealing with appeals which states as under: “(2) In the case of an appeal against the order imposing any of the penalties specified in rule 34 or enhancing any penalty imposed under the said rules the appellate authority shall consider a) Whether the procedure laid down in these rules has been complied with and if not whether such non compliance has resulted in the violation of any provisions of the Constitution of India or in the failure of justice b) Whether the findings of the disciplinary authority are warranted on the basis of the evidence on the record c) whether the penalty or the enhanced penalty imposed is excessive or adequate or inadequate and pass orders i) Confirming enhancing reducing or setting aside the penalty or ii) remitting the case to the authority which imposed or enhanced the penalty or to any other authority with such direction as it may deem fit in the circumstances of the case iii) No order imposing enhanced penalty shall be made in any other case unless the appellant has been given a reasonable opportunity as far as may be in accordance with the provisions of rule 37 of making a representation against such enhanced Provided that i) If such enhanced penalty which the appellate authority proposes to impose is one of the penalties specified in clausestoof rule 34 and an inquiry under rule 36 has not already been held in the case the appellate authority shall subject to the provisions of rule 39 itself hold such an inquiry or direct that such inquiry be held in accordance with rule 36 and thereafter on a consideration of the proceedings of such inquiry make such orders as it may deem fit and ii) If the enhanced penalty which the appellate authority proposes to impose is one of the penalties specified in clausetoof rule 34 and an inquiry under rule 36 has already been held in the case the appellate authority shall make such orders as it may deem fit.” 7. A careful perusal of the aforesaid provision would show that the appellate authority while deciding the appeal is required to consider whether the procedure laid down in the rules has been complied with and if not whether such non compliance has resulted in the violation of any provisions of the Constitution of India or in the failure of justice The appellate authority is further required to record whether the findings of the disciplinary authority are warranted on the basis of the evidence on record and whether the penalty or the enhanced penalty imposed is excessive or adequate or inadequate and pass orders confirming enhancing reducing or setting aside the penalty Likewise for enhancing the penalty sub ruleand provisos appended therein provide the procedure 8. A careful perusal of the appellate order dated 20 31 12 2007 would show that the appellate authority up to para 5 recorded the facts and in paras 6 and 7 held as under: eS v|ksgLrk{kjh] izdj.k QkbZy oa mlls lacaf kr lHkh nLrkostksa dk lw{ekoyksdu fd k vkSj ik k fd vihykFkhZ ds }kjk izLrqr vihy kfpdk esa dkssbZ u k rF izLrqr@mtkxj ugh fd k gS ftl ij fopkj fd k tk ldsA fQj Hkh mlds ifjokfjd fLFkfr] nks NksVs cPpksa] cq<+s ekrk&firk oa mlds Hkfo" dks ku esa j[krs gq oa uez :[k viukrs gq d ckj lq kjus dk ekSdk iznku djrk gWqA fQj Hkh vihykFkhZ ds d`R dks ns[krs gq ] vuq’kklfud vf kdkjh }kjk “cy la[ k 921405869 vkj{kd v’ouh dqekj dks mlds vxyh osru o`f ns gksus dh frfFk ls :i s 3200&85&4900 ds osrueku esa :i s 3965@& ls :i s 3200@& ij 3 o"kZ ds fy ykus dh ltkA blds vfrfjDr g Hkh vkns’k ikfjr djrk gWw fd] kVksRrjh ds nkSjku og okf"kZd osru o`f) vftZr ugh djsxk vkSj ltk lekfIr ds mijkUr kVksRrjh ds nkSjku og okf"kZd osru o`f)vks ij Hkh izHkko MkysxkA” ikfjr dh xbZ gS] tks fd cy lnL ds d`R dh xaHkhjrk ds lerqY ugh gSA ysfdu vihykFkhZ ds mijksDr leL ksa dks ku esa j[krs gq bl dk kZy ds i= la[ k fnukad 29 10 2007 ds }kjk tkjh fd k x k cy dh lsok ls gVk s tkus dk izLrko dks T knk ikrk gWwA vr% eS v|ksgLrk{kjh] dsvkSlqc fu ekoyh 2001 ds fu e&52 ds mifu e 2(i) esa iznRr kfDr ksa dk mi ksx djrs gq cy la[ k 921405869 vkj{kd v’ouh dqekj dks vuq’kklfud vf kdkjh }kjk ikfjr ltk “cy la[ k 921405869 vkj{kd v’ouh dqekj dks mlds vxyh osru o`f) ns gksus dh frfFk ls :i s 3200&85&4900ds osrueku :i s 3965@& ls :i s 3200@& ij 3 o"kZ ds fy ykus dh ltkA blds vfrfjDr g Hkh vkns’k ikfjr djrk gWw fd] kVksRrjh ds nkSjku og okf"kZd osru o`f) vftZr ugh djsxk vkSj ltk lekfIr ds mijkUr kVksRrjh mlds Hkfo" ds osru o`f) ks ij Hkh izHkko MkysxkA” dks c<+kdj “cy la[ k 921405869 vkj{kd v’ouh dqekj dks mlds vxyh osru o`f) ns gksus dh frfFk ls :i 3200&85&4900 ds osrueku esa :i s 3965 ls :i s 3200@& ij 05 o"kZ ds fy s ykus dh ltkA blds vfrfjDr g Hkh vkns’k ikfjr djrk gWWw fd] kVksRrjh ds nkSjku og okf"kZd osru o`f) vftZr ugh djsxk vkSj ltk lekfIr ds mijkUr kVksRRkjh mlds Hkfo" ds osru o`f) ks ij Hkh izHkko MkysxkA” dk vkns’k ikfjr djrk gWwA 9. A careful perusal of the aforesaid order would show that the appellate authority did not address on the issues raised by the petitioner though series of grounds have been raised by the petitioner. Even otherwise the appellate authority was obliged to comply Rule 52(2) of the CISF Rules of 2001 for adjudicating the appeal but the appellate authority did not address on the issues relating to the requirements of clauses a) andof sub ruleof Rule 52 and only concentrated on the enhancement of the quantum of punishment and accordingly in para 7 of the order enhanced the quantum of punishment awarded to the petitioner. Once the rule provides particular procedure to be followed in deciding the appeal against imposing major penalty the appellate authority was fully obliged by law to clearly address clauses(b andof sub ruleof Rule 52 of the CISF Rules of 2001 before dismissing the appeal and thereafter could have proceeded to consider the infliction of enhanced penalty on the petitioner and thereafter the appellate authority could have proceeded to enhance the quantum of punishment but the learned appellate authority did not thought it fit to follow clauses(b) andof sub ruleof Rule 52 of the CISF Rules of 2001 and directly proceeded to record that the penalty is not commensurate with the misconduct committed by the petitioner and proceeded to enhance the penalty and even did not record whether the procedural requirement as stated in Rule 52(2)(c iii) and the provisos appended thereto have been complied with or not. 10. The procedure adopted by the appellate authority directing for enhancement of the quantum of punishment only considering the enhancement of punishment to the petitioner and the act of not considering the appeal on merits in accordance with Rule 52(2)(a) to c) of the CISF Rules of 2001 is not in accordance with law and thus the impugned order of the appellate authority dated 20 31 12 2007 being contrary to the CISF Rules of 2001 deserves to be and is hereby set aside. The matter is remitted to the appellate authority to follow the rules as contained in Rule 52(2) of the CISF Rules of 2001 either for enhancing reducing or setting aside the penalty strictly in accordance with law and then to pass a reasoned order after hearing the petitioner within two months from the date of receipt of a copy of this order. It is made clear that this Court has not expressed any opinion on the merits of the matter. 11. The writ petition is allowed to the extent indicated herein above. No order as to cost(s Sanjay K. Agrawal

Summary: An appellate authority must first hear the case of the petitioner and then pass the order based on the merits of the case. No penalty can be imposed without proper evidence and reasoning. This was held by a single member bench of the High Court of Chhattisgarh consisting of Justice Sanjay K. Agarwal in the case of Ashwani Kumar v Union of India [Writ Petition (S) No. 3074 of 2008] on the 23rd of June 2021. The petitioner, Ashwani Kumar was a 35 year old constable in the Central Industrial Security Force (CISF) under the Ministry of Home Affairs and was posted at a unit of the CISF at Bhilai, District Durg. On 27th January 2007 he was placed under suspension by the assistant commandant for alleged misconduct and after a departmental enquiry, he was penalised with a pay reduction from Rs.3,965 to Rs.3,200 for a period of three years. The petitioner appealed against this penalty to the Deputy Inspector General of the unit at Bhilai, who was the appellate authority. The Deputy Inspector General immediately dismissed the appeal and increased the pay reduction period from three years to five years. The petitioner filed a writ petition before the High Court of Chhattisgarh and contended that the appellate authority violated Rule 52 of the Central Industrial Security Force Rules, 2001 by failing to even consider the appeal and furthermore enhanced the punishment period from three years to five years without any evidence or reason. As a result of this, the petitioner pleaded that the order passed by the Deputy Inspector General of the CISF unit at Bhilai be set aside. The petitioner’s counsel also added that as the petition has been pending for over thirteen years and the petitioner is yet to have a fair hearing, the petition should also consider the facts of the case which the appellate authority failed to do. The respondent’s counsel strongly opposed the petitioner’s prayer and stated that the petitioner has duly been punished for misconduct with five years of pay reduction.