Parity Regarding Punishment Is To Be Maintained: Delhi HC Reinstates 2 CISF Constables
The Delhi High Court reinstated two CISF Constables after noting that they have been without a job for the past five years. The Court observed that the CAPFs (Central Armed Police Forces), all being bodies of the MHA, are governed by almost the same set of Rules and any variation in punishment among the CAPFs would lead to injustice to the other CAPFs.
The petitioners moved the petitions under Article 226 of the Constitution, raising a common issue whether the punishment of removal from service awarded to them by the Disciplinary Authorities vide separate Orders which were upheld by the Appellate and Revisional Authorities pursuant to the disciplinary proceedings held against them, was violative of the principles of natural justice, when the other member of the CAPF having a similar/bigger role in the same incident, was let off with a minor penalty.
The Division Bench comprising Justice Shalinder Kaur and Justice Navin Chawla asserted, “The Disciplinary Authorities cannot impose a punishment, which is disproportionate in as much as lesser punishment is imposed for serious offences and stringent punishment for lesser offences.”
Advocate P. Sureshan represented the Petitioners while Senior Panel Counsel Sanjay Kumar Pathak represented the Respondents.
The petitioners were enrolled as Constables (General Duty) in the Central Industrial Security Force (CISF). They were posted on deputation, under the Ministry of External Affairs, in its High Commission of India (HCI) at Dhaka. They, along with two other Indo-Tibetan Border Police ( ITBP) Force members, namely, Head Constable (HC) (GD) Mahesh Makhwana and HC (GD) Shyam Sunder were deployed at the HCI. However, due to the incident in question, they were prematurely repatriated to India, under an inquiry held against them.
The allegation against them was that they did not report the entry of an unauthorised lady at the Chancery, when the officials of High Commission were away hosting the Republic Day parade. The said lady, along with ITBP Force member HC (GD) Mahesh Makhwana had entered the Chancery after the petitioner had already entered the cabin gate, yet the petitioner failed to report the unauthorised entry of the said lady to the higher officers. Thereupon, the HCI issued a Show Cause Notice to the petitioners, individually. Dissatisfied with the reply sent by the petitioners to the said notice, the petitioners were prematurely repatriated from the High Commission duty.
However, the office of the High Commission, in this regard made no recommendation to the CISF, being the lending department, to take any action in respect of the alleged incident. Further, no inquiry report was sent to the CISF, recommending that any further action in respect of the alleged incident be taken against the petitioners.The respondents decided to initiate a disciplinary inquiry against both the petitioners and issued a Memorandum of Charge and also an imputation of Charge under Rule 36 of the CISF Rules, 2001.
The petitioners claimed that the lady in question came at the request of the ITBP security personnel to clean his room. The petitioners were deployed in the Morcha with a weapon and ammunition and thus, it was not their duty to check the visitor’s entry at all. The Disciplinary Authorities held the petitioners guilty and awarded the punishment of “removal from service with immediate effect”. Being aggrieved, the petitioners submitted an appeal petition against the Impugned Order but the same was dismissed. The petitioners approached the High Court after their revision petitions where dismissed.
On a perusal of the facts of the facts and the submission of the parties, the Bench said, “In the cases at hand, the petitioners have demonstrated a clear dereliction of their duties. Their actions, or lack thereof, have shown their non-serious approach towards their duty. Undoubtedly, they have facilitated and aided a breach of security at a critical and sensitive post, which could have resulted in a serious lapse and breach of security.”
Thus, the Bench didn’t find any merit in the argument of the petitioners that since an inquiry was conducted at HCI, Dhaka, the purpose of which was merely to find out if petitioners should be repatriated or not, no further inquiry could be conducted in India by the lending department against them.
Considering that the petitioners had relied upon Rule 14, the Bench referred to the same and said that it provides for deputation of Force personnel to industrial undertaking in the public sector, joint venture or private sector. Rule 41 deals with the powers of the Borrowing Authority to be that as of the Appointing Authority, to place such enrolled member of the Force under suspension to conduct a disciplinary proceeding against him, under information to the Lending Authority. “Distinguishably, the same does not debar the powers of the Lending Authority to initiate a disciplinary inquiry against the Force personnel, if not conducted by the Borrowing Authority”, it added.
One of the primary concerns of the petitioners was about disproportionality and discrimination in penalties. The Bench was of the view that the CAPFs, all being bodies of the MHA, are governed by almost the same set of Rules and any variation in punishment among the CAPFs would lead to injustice to the other CAPFs. In the present case, while HC (GD) Mahesh Makhwana, member of the ITBP, who was involved in the same incident, having a similar role, was ‘severely reprimanded’, the petitioners had been “removed from service”. This was held to be against the spirit of the rules of parity governing the CAPFs.Placing reliance upon the judgment in Rajendra Yadav vs. State of Madhya Pradesh & Ors (2013), the Bench said, “From a reading of the aforesaid decision, what emerges is that when several individuals are involved in the same incident, parity regarding punishment is to be maintained, which should not be disproportionate while comparing the role of each individual, who are parties to the same transaction or incident.”
Given such factual and legal aspects, the Bench held that the punishment of “removal from service with immediate effect” awarded to the petitioners is liable to be set aside. Thus, the Bench set aside the Orders of the Disciplinary Authorities along with the Appellate Orders as also the Revisional Orders. The Bench took note of the submission of the petitioners that the petitioners were removed from service in the year 2019 and have been without a job for the past five years and they would be satisfied with their reinstatement in the Service.
Thus, the Bench disposed of the petition by observing, “In light of the above submission, we are of the view that being out of service for more than five years will act as a sufficient deterrent to the petitioners. Accordingly, the respondents are directed to reinstate the petitioners in service immediately, albeit without any consequential benefits and back wages.”
Cause Title: Vikesh Kumar Singh & Anr. v. Director General Central Industrial Security Force and Ors. (Neutral Citation: 2024:DHC:9487-DB)
Appearance:
Petitioners: Advocate P. Sureshan
Respondents: Senior Panel Counsel Sanjay Kumar Pathak, Advocates Sunil Jha, K.K. Kiran Pathak, M.S. Akhtar, A.C., CISF G.S. Rathore, Advocates Sanjeev Uniyal, Dhawal Uniyal, SI, CISF Prahlad
