1. This Writ Appeal is directed against the judgment of Mohan, J. in W.P. No. 5505 of 1981.
2. The said writ petition was filed by the appellant herein for the issue of a writ of certforari from this Court to quash the order of the first respondent herein dated 25.7.1979 which confirmed the order of the second respondent dated 30.1.1979 which in turn confirmed the order of the third respondent dated 2.11.1978.
3. The facts leading to the filing of the said writ petition may briefly be noted. The appellant was working as a security guard in the Central Industrial Security Force since 1971 and was attached to the Central Industrial Security Force Unit, Madras Refineries Limited, Manali, during the year 1976-77. He was on duty at the railway gate post from 23.00 hours on 4.8.1976 to 0700 hours on 5.8.1976. At 0415 hours, Assistant Sub-Inspector Joseph while on checking rounds asked the appellant to produce his beat book which the latter flatly refused. In addition he abused the Assistant Sub-Inspector with threatening gestures. On the same day at about 0500 hours when one S. Srinivasan conveyed the orders of the duty officer that the appellant is to be relieved by him, the latter refused to hand over charge to the former. Treating the said conduct of the appellant as amounting to gross indiscipline and insubordination, a charge memo dated 6.8.1976 was served on him containing the following three charges by the Assistant Commandant.
(1) Disobedience of lawful orders of Assistant Sub-Inspector, K.I. Joseph, Duty Officer, C.I.S.F, M.R.L. at L.P.G/Asphalt area on 5th August, 1976 at about 04.15 hrs.
(2) Gross indiscipline against A.S.I.K.I.Joseph Duty Officer, C.I.S.F./M.R.L. at L.P.G. Asphalt area on 5th August, 1976 at about 04.15 hrs.
(3) Disobedience of lawful orders of A.S.I.K.I. Joseph, Duty Officer C.I.S.F/M.R. L. at L.P.G. area on 5th August, 1976 at about 0500 Hrs.
He was asked to submit his explanation on 13.8.1976. After receipt of his explanation on 13.8.1976 there was an oral enquiry in which 3 witnesses were examined on the side of the Department and they were cross-examined. On the basis of the evidence gathered at the time of the enquiry and other relevant records, the enquiry officer found that the charges framed against the petitioner were proved. Accepting the findings of the enquiry officer, the third respondent the Disciplinary Authority issued a second show cause notice calling upon the appellant to put forth his further representations and proposing a punishment of dismissal from service for the charges (sic) to have been proved. The appellant submitted his further representations on 9.9.1976. The third respondent by his order dated 2.11.1976 dismissed the appellant from service from the date of receipt of the order. Thereupon the appellant filed an appeal to the second respondent the Appellate Authority who, by his order dated 11.4.1978, set aside the order of the third respondent and directed reinstatement of the appellant in service, giving liberty to the disciplinary authority to hold a de novo enquiry from the stage of issuing the fresh charge memo after holding that the enquiry officer (Assistant Commandant) has not been properly constituted nor did he obtain the sanction of the appointing authority to hold the enquiry against the appellant. Thereafter the appellant was reinstated and a fresh charge memo was issued against him by the third respondent, Croup Commandant, on 7.7.1978 containing the, same three charges. On receipt of the appellant's explanation on 26.7.1978, the Assistant Commandant, P.S. Panicker was appointed as the enquiry officer on 1.8.1978. This time four witnesses were examined on the side of the Department and one witness on the side of the appellant. The enquiry officer, after considering the evidence found the appellant guilty of all the three charges. A show cause notice proposing punishment of removal from service was issued by the Group Commandant, the third respondent, on 25.9.1978. The appellant submitted his explanation on 21.10.1978. The third respondent passed final orders on 2.11.1978 removing the appellant from service. The appellant again filed an appeal against the said order to the second respondent which was, however, rejected. A revision was thereafter filed by the appellant to the first respondent and that was also dismissed on 25.7.1979. Thereafter the appellant filed the above writ petition seeking to quash all the orders of the respondents herein.
4. In the said writ petition the main attack against the order of removal from service is that the enquiry stands vitiated by the violation of the principles of natural justice. He complained that he was not furnished with a copy of the complaint and the statements made by various persons during the preliminary enquiry in spite of his specific requests and this has vitiated the enquiry. Another ground of attack is that there is no application of mind by the third respondent on the question as to whether the charges are proved by the evidence available in the case. Both the grounds of attack had, been rejected by Mohan, J. on the ground that the appellant was given opportunity to take extracts of the report of the original complaint and also the statements of other persons made at the preliminary enquiry and that though the disciplinary authority has hot specifically approved the findings of the enquiry officer, from the facts of the case it can be assumed that the disciplinary authority agreed with the findings of the enquiry officer.
5. In this appeal the grounds of attack against the order of removal from service are five-fold. They are (i) there has been a violation of Rule 34(9) of the Central Industrial Security Force Rules, 1969; (ii) The principles of natural justice stand violated as the copies of the relevant documents have not been furnished to the appellants during the enquiry; (iii) There was no reasonable opportunity given to the appellant at the stage of the second show cause notice; (iv) As regards charge No. 3, the enquiry is vitiated by official bias and (v) In any event the quantum of the punishment is excessive.
6. From the above narration, it will be seen that the fourth and the fifth grounds of attack had not been considered by the learned single Judge even though the point has been raised in the affidavit filed in support of the writ petition. We now proceed to consider the tenability of the above grounds of attack.
7. So far as the first ground urged by the appellant that there has been a violation of Rule 34(9) is concerned, it is seen that the said provision is as follows:
34. Procedure imposing major penalties:
(9) The disciplinary authority shall, if it is not the Inquiring Authority referred to above, consider the record of the inquiry and report its findings on each charge.
According to the appellant, the disciplinary authority has overlooked the said provision and he merely affirmed the findings of the enquiry officer. Therefore, the ultimate order imposing penalty is vitiated. However, a perusal of the final order passed by the third respondent shows that he has considered each charge separately reference to the evidence and recorded his findings. Though there is no elaborate discussion about the oral and other evidence, as has been done by the enquiry officer, it cannot be said that the disciplinary authority did not consider each charge with reference to the records of enquiry and did not come to his own conclusion. From the final order it is seen that there is application of mind on the part of the disciplinary authority on each charge and it is only after applying his mind, the disciplinary authority has come to the conclusion that the charges stand proved on the materials on record. It is not, therefore, possible to say that Rule 34(9) stands violated in this case as alleged by the appellant.
8. Coming to the third ground that there was no reasonable opportunity given to the appellant at the second show cause notice stage, it is seen that the second show cause notice containing the provisional conclusion was issued by the third respondent on 25.9.1978 and the appellant has submitted his representations on 21.10.1978. In those representations he has asked for a personal hearing through his counsel and since such a personal hearing was not given, the appellant claims that the final order is vitiated. It is no doubt true in this case that the appellant was not given a personal hearing through his counsel after the second show cause notice was issued and before the final orders were passed. But it is to be remembered that even at the stage of the enquiry before the enquiry officer, the appellant was not represented by a counsel and in those circumstances to ask the disciplinary authority for an opportunity of personal hearing through the counsel is not a reasonable request. Therefore the mere fact that the appellant was not given a personal hearing through the counsel before the final orders were passed by the disciplinary authority cannot be said to violate the principles of natural Justice. The learned Counsel relies on the decision of the Supreme Court in Khem Chand v. The Union of India and Ors. : (1959)ILLJ167SC wherein the Supreme Court has pointed out as follows:
It is true that the provision (Article 311(2)) does not, in terms, refer to different stages at which opportunity is to be given to the officer concerned. All that it says is that the Government servant must be given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. He must not only be given an opportunity but such opportunity must be a reasonable one. In order that the opportunity to show cause against the proposed action may be regarded as a reasonable one, it is quite obviously necessary that the Government servant should have the opportunity, to say, if that be his case, that he has not been guilty of any misconduct to merit any punishment at all and also that the particular punishment proposed to be given is much more drastic and severe than he deserves. Both these pleas have a direct bearing on the question of punishment and may well be put forward in showing cause against the proposed punishment.
We do not see how the said decision, of the Supreme Court helps the appellant in this case. Here the appellant merely asked for a personal hearing through his counsel. It cannot be said that in all cases the refusal to permit a counsel to appear before the domestic tribunals can be said to be a denial of reasonable opportunity to defend. Having regard to the fact that in this case the enquiry was conducted in his presence and he had the opportunity to cross-examine the witnesses, the disciplinary authority might have felt that there was no justification for the grant of the appellant's request for an oral hearing through a counsel. Thus we find that the complaint of the appellant that no reasonable opportunity was given at the second show cause notice stage cannot legally be sustained.
9. Coming to the fourth ground of attack that there is an official bias on the part of the disciplinary authority, it is seen that the disciplinary authority is different from the Assistant Sub-Inspector who during the course of his routine inspection, ordered the appellant to hand over duty charge at the railway gate post to P.W.4 another employee. It is for the disobedience of that order the third charge came to be framed. Here the disciplinary authority himself has framed the charge and the charge is that he disobeyed the orders of the Assistant Sub-Inspector who is superior to the appellant. We do not see how an inference of bias could be inferred here. Even if some sort of bias could be inferred from the facts, such official bias cannot be taken to vitiate the enquiry. In the nature of things such administrative and official bias cannot be taken to have vitiated the ultimate order passed after due enquiry. Therefore, the complaint of bias against the disciplinary authority as regards charge No. 3 has to fail. With reference to this complaint, the case of the appellant that since no written order has been issued to him to hand over charge and an oral order alone has been communicated to him through P.W. 4, he will be within his rights not to obey such orders. In a security force to which the appellant belonged, he cannot insist on written orders and he had to obey even oral orders passed by superiors. It has been pointed out by the appellate authority in this case in his order dated 30.1.1979 as follows:
It is a common feature that a SG is sent to relieve another S.G. for many purposes and it is not always possible to send written orders for this purpose. The appellant would have been fully covered had he taken the signature of P.W.4 on his beat book and got him to write that as per orders of the duty officer he is relieving the appellant. Subsequently if there was any dispute it would have been P.W.4's responsibility and not that of the appellant. His failure to thus hand over charge was clearly a disobedience of orders which had been communicated to him by P.W.4.
In this case P.W.4 who is a co-employee has deposed at the enquiry that an - oral order directing the appellant to hand over charge to him was made by the higher authority but the appellant refused to obey the same. Having regard to the admitted position that he refused to hand over charge on oral orders issued by his superiors which stands established, there is no question of any official or administrative bias vitiating the enquiry.
10. Corning to ground No. 5 relating to the quantum of punishment, reliance has been placed by the learned Counsel for the appellant on Section 8 of the Central Industrial Security Force Act, 1968 for the proposition that the punishment of removal meted out to the appellant cannot be justified thereunder. Section 8 deals with dismissal, removal or reduction in rank of any member of the Security Force. That section is as follows:
8. Dismissal, removal, etc. of members of the Force: Subject to the provisions of Article 311 of the Constitution and to such rules as the Central Government may make under this Act, any supervisory officer may-
(i) dismiss, suspend or reduce in rank any 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 member of the Force who discharges his duty 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 emolument.
According to the learned Counsel for the appellant, dismissal, removal and reduction in rank of any member of the force can be resorted to only when the member of the Force has been remiss or negligent in the discharge of his duties or unfit for the same and if a member of the Force who discharges his duty in a careless or a negligent manner or who by any act of his own rendered himself unfit for the discharge thereof can only be punished with fine not exceeding seven days' pay or reduction in pay scale or the extra drill guard or other duty. In this case, the appellant having been found to have discharged his duty in a negligent manner he can be only subjected to a minor penalty contemplated by Section 8(ii) and not to a major penalty contemplated by Section 8(i). The appellant's case is that the fact that he disobeyed an oral order issued by the superior has not made him unfit for the post and therefore Section 8(i) cannot be invoked. However, we are of the view that the disobedience of the orders of superiors while he is in a Force like the Central Industrial Security force which is intended to give better protection and security for the various industrial undertakings cannot be treated lightly as good order, regularity and discipline is the hall-mark of such a Security Force. Once the appellant is found to have disobeyed the orders of the superiors, it can be taken that he has made himself unfit to be a member of the Force. That is sufficient to attract Section 8(i). Therefore, we are of the view that there is no violation of Section 8 of the Act as contended by the learned Counsel for the appellant.
11. In ground No. 2 the appellant had also complained that he had not been given the copies of the original complaint and the statements made by various persons at the stage of the preliminary enquiry and the non-supply of the copies thereof amounted to violations of principles of natural justice. We find that the appellant was actually permitted to inspect the documents and the statements and also to take extracts therefrom and it is only after taking such extracts, he cross-examined the witnesses at great length. Further it is seen that the contents of the original report have been set out in annexure 2 of the charge memo and therefore, the appellant cannot be taken to have been prejudiced by the non-supply of the copies of the original report and the statements taken at the preliminary enquiry. It has been held by the Supreme Court in Fateh Bahadur Singh v. Union of India and Ors. (1979) L.I.C. 1102 : (1979) S.L.J. 607 that mere procedural irregularity, in the conduct of the enquiry will not vitiate the same unless substantial prejudice is established to have been caused to the persons against whom the disciplinary action has been taken and any procedural irregularity in the conduct of the disciplinary proceedings is more a consideration to be taken into account by an appellate or revisional authority than by the civil court. In that case, after the closing of the evidence on behalf of the disciplinary authority and after the defence had filed its statement of defence, fresh evidence was let in on behalf of the disciplinary authority at the enquiry and that was questioned as having vitiated the enquiry and the final order passed thereon. The Supreme Court held that the induction of new evidence after the closing of the case by the prosecution may, amount to only irregularity and that such irregularity, unless shown to have been prejudicial to the case of the defence, cannot be taken to vitiate the enquiry. In that case the defence was held not prejudiced by the letting in of the new evidence after the prosecution has closed its case, as the enquiry officer gave a further opportunity to the defence to file its additional statement of defence as a result of the new evidence having been let in by the prosecution. In this case, as already stated, the original report and the statements taken at the preliminary enquiry have been given inspection of and the appellant had also taken extracts therefrom. Therefore, the mere non-supply of the copies of those documents in full cannot be taken to vitiate the enquiry unless prejudice is shown to have been caused. Before us the learned Counsel for the appellant was not in a position to show how the non-supply of the copies as such had disabled. the appellant in the conduct of his defence.
12. Thus all the contentions urged by the appellant having failed, the writ appeal fails and is dismissed. There will, however, be no order as to costs.