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Non-Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No. 2148 of 2015

CENTRAL INDUSTRIAL SECURITY FORCE & ORS.

.... Appellant(s) Versus

ABRAR ALI  

….Respondent

J U D G M E N T

L. NAGESWARA RAO, J.

The  Respondent  was  appointed  as  a  Constable  in

Central Industrial Security Force (CISF) on 10.09.1990.  By a

memorandum dated  08.10.1999,  an  inquiry  was  proposed

under Rule 36 of the C.I.S.F. Rules, 1969 for allegations of

misconduct and misbehavior for the following Charges:

“Article of Charge-I No.903190893,  Ct.  Abrar  Ali,  Area  No.  IV,

Central  Industrial  Security  Force,  BCCL  Unit,

Dhanbad was granted 2 days casual leave from

12.08.1999 to 13.08.1999 and 14.08.1999 was a

second Saturday. He had to resume his duty on

15.08.1999 (F/N).  But, he reported for his duty at

1730 hrs.  Thereafter, Asstt. Commandant of Area

No. 4 directed the said Abrar Ali to remain inside

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the Camp as there was apprehension of danger to

his  life  from  the  residents  of  nearby  Basti.   At

about 1900 hrs when Abrar Ali was searched by

C.H.M.  to  serve  his  suspension  order,  he  was

again  found  absent  from  the  Camp.   The  said

member of the force did not even deposit his leave

Certificate in the Unit Office after coming back from

leave.  Therefore, Abrar Ali No.903190893 being a

member  of  armed  forces,  is  grossly  negligent

towards  his  duties  and  has  disobeyed  the

Orders/directions  of  the  Superior  Officers,  which

amounts to gross misconduct  and indiscipline on

the part of the said member.  Hence, this Charge.  

Article of Charge-II No.903190893,  Ct.  Abrar  Ali,  Area  No.  IV,

Central  Industrial  Security  Force,  BCCL  Unit,

Dhanbad was granted 2 days casual leave from

12.08.1999 to 13.08.1999 and 14.08.1999 was a

second Saturday.  The said member of  the force

while  proceeding  on  leave  took  one  girl  named

Anita Kumari D/o Shri Rajendr Rajbar R/o Lalten

Basti,  Angarpathra (Dhanbad),  aged about 15-16

years with him to Delhi on the pretext of getting her

married  to  a  Hindu  boy  and  come  back  after

leaving the said Anita Kumari at the house of an

old man.  The brother of  the said force member,

Jamaruddin,  who also  is  a  member  of  the  Delhi

Armed Police took Anita Kumari to Dhanbad.  On

20.08.1999,  Anita  Kumari  made  a  statement

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before  the  Judicial  Magistrate,  Dhanbad,  in  FIR

No.260/99 dated 13.08.1999.  Thereafter, the said

force member Abrar Ali surrendered in the Court of

C.J.M.,  Dhanbad  on  20.08.1999  from  where  he

was sent  to  jail  for  committing  the  said  offence.

No. 903190893 Ct. Abrar Ali being a member of me

force has committed an act of indiscipline and has

maligned the image of the force, which is a serious

misconduct.  Hence, this Charge.   

Article of Charge - III Ct.  Abrar  Ali  No.  903190893,  Area  No.IV,

Central  Industrial  Security  Force,  BCCL  Unit,

Dhanbad,  has  already  been  awarded  three

punishments,  2  major  punishments  (deduction in

pay)  and  one  minor  punishment  (deduction  of  7

days’  salary)  for  various acts of  indiscipline and

negligence  during  the  short  span  of  his  service.

Despite  the  aforesaid,  he  has  failed  to  improve

himself and to abide the rules, which shows that

the  said  member  is  habitual  of  committing

indiscipline.  Hence this Charge.   

2. The  Commandant,  Central  Industrial  Security  Force,

BCCL Unit, Dhanbad by a final order dated 28.11.2000 held

the  Respondent  guilty  of  all  the  Charges.   Finding  the

Respondent unworthy of retention in Force due to his acts of

indiscipline  and  misconduct,  the  Disciplinary  Authority

dismissed the  Respondent  from service.   Aggrieved  by  the

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Order  of  dismissal,  the  Respondent  filed  an appeal  to  the

Deputy Inspector General, Central Industrial Security Force,

BCCL Unit, Dhanbad.  The Appellate Authority rejected the

appeal  by  Order  dated  01.02.2001.  The  Respondent  was

exonerated of Charge 2 and held guilty of Charges 1 and 3.

The Revision Petition filed by the Respondent was dismissed

by the  Inspector  General,  E.S.  Headquarters,  Patna by  an

Order dated 31.12.2010. The punishment of dismissal from

service  imposed  on  the  Respondent  was  found  to  be

proportionate to the gravity of the misconduct by both the

Appellate and Revisional Authorities.   The Respondent filed

Writ  Petition no.  1241 of  2001 in the High Court of  Delhi

challenging the Order of dismissal dated 28.11.2000 as well

as the Orders dated 01.02.2001 of the Appellate Authority

and 31.12.2010 of the Revisional Authority.  By its judgment

dated 11.08.2014, the High Court of Delhi allowed the Writ

Petition  and  directed  the  Respondent  to  be  reinstated

forthwith as Constable C.I.S.F. with notional seniority in his

rank.  There was a direction for payment of the entire arrears

of his salary and other allowances within 2 months from the

date of the judgment.  The Respondent was also held entitled

for costs quantified at Rs. 15,000/-.  Aggrieved by the said

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judgment dated 11.08.2014 of the High Court of Delhi, the

Appellants preferred this Appeal.

3. Mr.  Yashank  Adhyaru,  learned  Senior  Counsel

appearing  for  the  Appellants  submitted  that  the  Order  of

dismissal ought not to have been interfered with by the High

Court in exercise of its jurisdiction under Article 226 of the

Constitution of India.  He further submitted that there is no

bar of holding a departmental inquiry in spite of an acquittal

by  a  Criminal  Court.  The  past  conduct  of  the  delinquent

employee could, still,  be a subject matter of a Disciplinary

Proceeding.  He contended that the penalty of dismissal from

service is proportionate with the delinquency.

4. Dr.  L.S.Chaudhary,  Advocate  appearing  for  the

Respondent submits that the Respondent was acquitted by

the Criminal Court and he should not have been tried for the

same Charge by way of a departmental inquiry. He also relied

upon  a  judgment  of  this  Court  in  G.M.  Tank  v.  State  of

Gujarat  &  Ors.,  reported  in  (2006)  5  SCC  446  in  support

thereof.  He  further  submitted  that  Charge  No.  1  did  not

warrant  a  penalty  of  dismissal  and  penalizing  the

Respondent  for  Charge  No.  3  would  amount  to  double

jeopardy.   

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5. The relevant facts for adjudication of this case are as

follows:

The  Respondent  was  appointed  as  a  Constable  in

C.I.S.F.  on  10.09.1990.   While  working  at  C.I.S.F.,  BCCL

Unit, Dhanbad, he was granted casual leave for 2 days on

12.08.1999. On 13.08.1999, FIR No. 260/99 was registered

under Section 366 A and 376 of the Indian Penal Code, 1860

in Katras Police Station on a complaint by the residents of

Lalten Basti that the Respondent kidnapped Anita Kumari, a

minor girl.  The Respondent reported back to duty at 1730

hrs  on  15.08.1999.   He  was  informed  by  the  Assistant

Commandant  that  there  was  danger  to  his  life  from  the

people living in Lalten Basti and he was ordered to remain in

the unit lines.  He was not found in the unit lines at 1900

hrs on 15.08.1999 when a suspension order was sought to

be served on him.  The authorities were informed that the

Respondent  surrendered  before  the  Officer-In-Charge  of

Angarpathra  Police  Station  at  around  2000  hrs  on

20.08.1999.   Though  the  victim  Anita  Kumari  made  a

statement which was recorded under Section 164 Cr. P.C. by

the Magistrate, she retracted from the statement in the trial.

The other witnesses were declared hostile.  The Respondent

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was acquitted of the Charges under Section 366 A and 376

IPC  by  a  judgment  dated  29.03.2001  of  the  Sixth  Addl.

Sessions Judge, Dhanbad.      

6. The point that arises for our consideration is whether

the  finding  of  the  Disciplinary  Authorities  holding  the

Respondent  guilty  of  Charges  1  and  3  was  justified  and

whether the penalty of dismissal was proportionate.  Charge

No.1 pertains to the act of indiscipline of the Respondent in

leaving  the  unit  line  on  15.08.1999  in  spite  of  a  specific

order.   There  is  evidence  on  record  to  show  that  the

Respondent reported for duty at 1730 hrs on 15.08.1999 and

disappeared thereafter  in spite of  instructions not  to leave

the  unit  line.   Even  according  to  the  Respondent,  the

situation was tense and there was danger to his life from the

residents  of  the  Basti  who  lodged  FIR  against  him.   The

Respondent submitted in the departmental inquiry that he

did  not  resume  duty  on  15.08.1999  after  being  informed

about the registration of FIR.  He further stated that he fell ill

and  was  taking  treatment  from  a  local  doctor  from

15.08.1999  to  20.08.1999  at  Tutalmari.   He  surrendered

before  the  Police  at  2000  hrs  on  20.08.1999.  The

Respondent’s brother Jamaruddin, who is a member of Delhi

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Police Force, was examined as PW-9 and Kaniz Fatima, wife

of the Respondent was examined as PW-2.  They supported

the version of the Respondent that he availed leave for two

days, did not resume duty in view of the registration of FIR

and  that  he  surrendered  before  the  Criminal  Court  on

20.08.1999.  PW-8 Bijender Singh, HC/GD deposed before

the Inquiry Officer that the Respondent was directed by the

Assistant Commandant, Ansuman Gaur, to stay in the unit

line.  He was asked to serve a copy of the suspension order

on the Respondent at 1900 hrs. on 15.08.1999.  However,

the  Respondent  was  not  traceable  in  the  camp  or  at  his

official residence. Court Witness No.1, SB Mishra, Inspector

stated in the departmental inquiry that he was the Company

Commander  who  granted  leave  for  two  days  to  the

Respondent  on  11.08.1999.   He  deposed  that

officer-in-Charge of Angarpathra Police Station visited him at

1200  hrs.  on  12.08.1999.   The  officer  informed  that  the

Respondent had kidnapped Anita Kumari from Lalten Basti

and FIR was registered at the behest of the residents.  He

reported the incident to his higher officers.  He also stated

that the Respondent disobeyed the order of his superiors and

left  the  unit  line  on  15.08.1999.   On  appreciation  of  the

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evidence on record, the Disciplinary Authority concluded that

Charge  1  was  proved.   The  desertion  from 15.08.1999  to

20.08.1999  is  an  act  of  gross  indiscipline  warranting  a

penalty according to the Disciplinary Authority.

7. The High Court held that the Respondent resumed duty

and left the unit line in view of the fear for his life from the

residents of the locality due to the registration of FIR.   The

High Court found that no misconduct was committed by the

Respondent in disobeying the directions of his superiors not

to leave the unit line.  The High Court was of the opinion that

any prudent person would have acted in the same manner.

The High Court held that the Charge proved was not serious

for which the Respondent should be punished.  

8. Contrary to findings of the Disciplinary Authority, the

High Court accepted the version of the Respondent that he

fell  ill  and  was  being  treated  by  a  local  doctor  without

assigning  any  reasons.   It  was  held  by  the  Disciplinary

Authority  that  the Unit  had better  medical  facilities  which

could have been availed by the Respondent if he was really

suffering from illness. It was further held that the delinquent

did not produce any evidence of treatment by a local doctor.

The High Court should not have entered into the arena of

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facts which tantamounts to re-appreciation of evidence.  It is

settled law that re-appreciation of evidence is not permissible

in  the  exercise  of  jurisdiction  under  Article  226  of  the

Constitution of India.  In State Bank of Bikaner and Jaipur

v. Nemi Chand Nalwaiya reported in (2011) 4 SCC 584,

this Court held as follows:

“7. It is now well settled that the courts will not act  as  an  appellate  court  and  reassess  the

evidence led in the domestic inquiry, nor interfere

on the ground that another view is possible on

the material  on record. If  the inquiry has been

fairly  and  properly  held  and  the  findings  are

based on evidence, the question of adequacy of

the  evidence  or  the  reliable  nature  of  the

evidence will not be grounds for interfering with

the findings in departmental enquiries. Therefore,

courts  will  not  interfere  with  findings  of  fact

recorded in departmental enquiries, except where

such findings are based on no evidence or where

they  are  clearly  perverse.  The  test  to  find  out

perversity  is  to  see  whether  a  tribunal  acting

reasonably could have arrived at such conclusion

or finding, on the material on record. The courts

will  however  interfere  with  the  findings  in

disciplinary  matters,  if  principles  of  natural

justice  or  statutory  regulations  have  been

violated or if the order is found to be arbitrary,

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capricious,  mala  fide  or  based  on  extraneous

considerations. (Vide B.C. Chaturvedi v. Union of

India [(1995)  6  SCC 749:  1996  SCC (L&S)  80:

(1996)  32  ATC  44], Union  of  India v.  G.

Ganayutham [(1997)  7  SCC  463:  1997  SCC

(L&S)  1806], Bank  of  India v. Degala

Suryanarayana [(1999)  5  SCC  762:  1999  SCC

(L&S)  1036]  and High  Court  of  Judicature  at

Bombay v. Shashikant S. Patil.”  

In  Union of India & Ors. v. P. Gunasekaran reported in

(2015) 2 SCC 610, this Court held as follows:

  “12. Despite  the  well-settled  position,  it  is

painfully disturbing to note that the High Court

has  acted  as  an  appellate  authority  in  the

disciplinary  proceedings,  re-appreciating  even

the  evidence  before  the  inquiry  officer.  The

finding  on  Charge  I  was  accepted  by  the

disciplinary authority and was also endorsed by

the  Central  Administrative  Tribunal.  In

disciplinary  proceedings,  the  High  Court  is  not

and cannot act as a second court of first appeal.

The High Court, in exercise of its powers under

Articles  226/227  of  the  Constitution  of  India,

shall  not  venture  into  re-appreciation  of  the

evidence. The High Court can only see whether: (a)  the  inquiry  is  held  by  a  competent

authority; (b)  the  inquiry  is  held  according  to  the

procedure prescribed in that behalf;

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(c)  there  is  violation  of  the  principles  of

natural justice in conducting the proceedings; (d) the authorities have disabled themselves

from  reaching  a  fair  conclusion  by  some

considerations  extraneous  to  the  evidence

and merits of the case; (e)  the authorities have allowed themselves

to be influenced by irrelevant or extraneous

considerations; (f) the conclusion, on the very face of it, is so

wholly  arbitrary  and  capricious  that  no

reasonable  person  13.could  ever  have

arrived at such conclusion; (g) the disciplinary authority had erroneously

failed to admit the admissible and material

evidence; (h) the disciplinary authority had erroneously

admitted  inadmissible  evidence  which

influenced the finding; 13.(i)  the  finding  of  fact  is  based  on  no

evidence.

13. Under Articles 226/227 of the Constitution of

India, the High Court shall not: (i) re-appreciate the evidence; (ii)  interfere  with  the  conclusions  in  the

inquiry,  in  case  the  same  has  been

conducted in accordance with law; (iii) go into the adequacy of the evidence; (iv) go into the reliability of the evidence; (v) interfere, if there be some legal evidence

on which findings can be based. (vi) correct the error of fact however grave it

may appear to be;

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(vii) go into the proportionality of punishment

unless it shocks its conscience.”

9. We are in agreement with the findings and conclusion of

the  Disciplinary  Authority  as  confirmed  by  the  Appellate

Authority  and  Revisional  Authority  on  Charge  No.  1.

Indiscipline on the part of a member of an Armed Force has

to be viewed seriously.  It is clear that the Respondent had

intentionally  disobeyed  the  orders  of  his  superiors  and

deserted the Force for a period of 5 days.  Such desertion is

an act of gross misconduct and the Respondent deserves to

be punished suitably.  

10. Charge  No.  3  was  that  the  Respondent  had  become

habitual  in  committing  indiscipline  and  disorderliness.   A

reference was made to two major penalties of deduction of

pay and one minor punishment of reduction of seven days

salary  earlier.   The  Disciplinary  Authority  found  that  the

Respondent  did  not  improve  in  spite  of  being  punished

earlier.   The High Court agreed with the contention of the

Respondent and held that a fresh enquiry cannot be initiated

into  a  misconduct  for  which  a  delinquent  had  already

suffered a penalty.  The High Court found that any penalty

imposed  under  Charge  No.  3  would  amount  to  double

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jeopardy.  We disagree with the finding of the High Court as

we are of the view that the Respondent was not being tried

again for previous misconduct.  As the Respondent did not

improve in spite of being punished earlier and had become

habitual in indiscipline and disorderliness, the Disciplinary

Authority  rightly  found  Charge  No.  3  as  proved.   The

desirability of continuance of the Respondent was considered

on the basis of his past conduct which does not amount to

double jeopardy.  In any event, past conduct of a delinquent

employee  can  be  taken  into  consideration  while  imposing

penalty.  We are supported in this view by a Judgement of

this  Court  in  Union  of  India  v.  Bishamber  Das  Dogra,

reported in (2009) 13 SCC 102 held as follows:   

"30.  ...... But in case of misconduct of grave nature or indiscipline, even in the absence of statutory rules,

the  authority  may  take  into  consideration  the

indisputable  past  conduct/service  record  of  the

employee  for  adding  the  weight  to  the  decision  of

imposing the punishment if the facts of the case so

require."      

11. The Respondent was exonerated of Charge No. 2 by the

Appellate Authority.  The Revisional Authority confirmed the

order of the Appellate Authority.  The judgment relied upon

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by the Respondent in G.M. Tank Vs. State of Gujarat and Ors.

(supra) is  not  relevant  as  in  that  case  the  point  for

consideration was whether the departmental proceedings can

be held after acquittal of a public servant in a criminal case

on similar set of facts.

12.  Though we are of the view that the High Court ought

not  to  have  interfered  with  the  order  passed  by  the

Disciplinary Authority, the penalty of dismissal from service

is  not  commensurate  with  delinquency.    The Respondent

was found guilty of desertion of the Force for a period of five

days and not improving his conduct in spite of imposition of

penalties  on  three  occasions  earlier.   For  the  above

delinquencies,  the  penalty  of  dismissal  from  service  is

excessive and harsh. In our view, the penalty of compulsory

retirement would meet the ends of justice. We are informed

by  the  counsel  for  the  Appellants  that  the  Respondent  is

entitled for pension as he has completed 10 years of service.

In  order  to  avoid  any  controversy,  we  direct  that  the

Respondent shall be entitled for notional continuity of service

till  the date  of  completion of  minimum service  required to

make him eligible for pension.   He will not be entitled for

payment of salary and allowances for that period.   

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13. For the aforesaid reasons,  the Appeal  is  allowed with

the above modification in the penalty.      

 .....…...........................CJI                  [T. S. THAKUR]

      ........................................J [Dr. D. Y. CHANDRACHUD]

                 ..……................................J                                            [L. NAGESWARA RAO]

New Delhi, December 14, 2016

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