Dismissed

Mukesh Mallick v. Union of India And Ors.

Jharkhand HC9 Feb 2022WPC/1881/2011

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition challenging the dismissal of a revision application filed by a CISF constable. The court held that the dismissal due to unexplained delay was correct and that the enhanced minor punishment was not disproportionate to the proved charges.

What did the court decide?

The writ petition was dismissed; the impugned appellate order dated 17.03.2011 was upheld as correctly dismissing the revision application on account of unexplained delay.

Mukesh Mallick Vs Union of India And Ors. — Service and Employment | Jharkhand HC (2022)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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W.P. (S) No. 1881 of 2011

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Mukesh Mallick s/o Sri Chandra Pal Singh Resident of CISF Unit, UCIL, Jadugora, P.O. and P.S. Jadugora, District-Singhbhum West

… Petitioner

Versus

1.Union of India

Inspector General, CISF Western Area, Head Quarter TALOZA Camp, P.O. Kharghar, District-Rayagharm New Mumbai

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Deputy Inspector General/D.A.E. C.I.S.F. D.A.E. Headquarter at Hyderabad

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Senior Commandant, C.I.S.F. Unit, UCIL, Jadugora, P.O. and P.S. Jadugora, District-Singhbum West

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Assistant Commandant, CISF Unit, UCIL, Jadugora, P.O. and P.S. Jadugora, District-Singhbhum West

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Deputy Commandant, D.A.E., Kalpakkam, Tamil Nadu

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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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For the Petitioner : Mr. N.K. Sahani, Advocate For the Respondents : Mr. Shiv Kumar Sharma, Advocate

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Through Video Conferencing

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6/09.02.2022

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Heard Mr. N.K. Sahani, learned counsel appearing on behalf of the petitioner.

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Heard Mr. Shiv Kumar Sharma, learned counsel appearing on behalf of the respondents.

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The present writ petition has been filed seeking a mandamus upon the respondent No. 2 to dispose of the revision application filed by the petitioner on 03.02.2011 on its own merit and in accordance with law. However, during the pendency of the writ petition, the said proceeding has been dismissed vide order dated 17.03.2011 which has been challenged by way of I.A. No. 2120 of 2011. The said interlocutory application was taken up by this court on 15.12.2021 and was allowed and the interlocutory application was treated as part and parcel of the main writ application. It is important to mention here that upon perusal of the aforesaid order dated 17.03.2011, the same is an order passed by the appellate authority wherein order dated 31.12.2009 enhancing the punishment was under challenge.

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Arguments of the petitioner

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The learned counsel for the petitioner submits that the order dated 17.03.2011 which is now under challenge has been rejected on the ground of delay. Learned counsel submits that the order dated 31.12.2009 was subject matter of challenge in the impugned order dated 17.03.2011. The learned counsel submits that the petitioner had earlier challenged the order dated 31.12.2009 passed by respondent No. 3 before the learned District Judge, Jamshedpur which was found to be not maintainable and thereafter on 03.02.2011, the petitioner filed appeal before respondent No. 2 against the aforesaid order dated 31.12.2009, but while dismissing the appeal, the appellate authority has not taken this aspect of the matter into consideration. However, during the course of argument, on specific query made by this court regarding the date of filing and the number of the suit or proceeding said to have been filed before District Court at Jamshedpur, the learned counsel for the petitioner has no answer. Upon perusal of record of this case also, the petitioner could neither point out the date of filing of such case before the Jamshedpur Court nor could provide the number of such case.

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Learned counsel has further submitted that the quantum of punishment which has been imposed upon the petitioner is disproportionate to the charges levelled against him and these aspects of the matter ought to have been considered by the appellate authority. Learned counsel submits that there was some altercation with a lady officer which ultimately led to the disciplinary enquiry against the petitioner. He also submits that in the preliminary enquiry it was found that there was no fault on the part of the petitioner. He submits that show cause notice was issued to the petitioner on 24.12.2008 and vide order dated 06.01.2009, the petitioner was given warning.

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The learned counsel submits that subsequently on 24.04.2009 a charge memo was issued and the petitioner was directed to file a reply and the petitioner was ultimately punished by withholding 5 days’ salary vide order dated 27.05.2009. The petitioner filed appeal before the appellate authority on 25.06.2009 which was dismissed vide order dated 12.07.2009.

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Thereafter vide Notice dated 27.10.2009, the respondent No. 3 issued a show cause to the petitioner for enhancement of punishment under purported exercise of powers under Rule 54(1) (b) of the CISF Rules to which the petitioner filed his show cause reply but the respondent No. 3 arbitrarily enhanced the punishment of the petitioner from withholding of five days salary to withholding of one increment for a period of three years which will not have any effect on future increment of the pay of the petitioner. Learned counsel submits that although the enhanced punishment imposed is also a minor punishment but considering the nature of allegation against the petitioner, the enhancement of punishment is not in accordance with law and disproportionate to the charges.

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Arguments of the Respondents

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Learned counsel appearing on behalf of the respondents Mr. Shiv Kumar Sharma has opposed the prayer. He has also submitted that a counter affidavit has been filed in the present case and the power has been rightly exercised by the Authority and only a minor punishment has been imposed and the same cannot be said to be disproportionate to the allegations proved against the petitioner. He also submits that this court does not sit in appeal under Article 226 of the Constitution of India against the departmental proceedings or the punishment imposed by the competent authorities. Learned counsel has also submitted that only the order of the appellate authority is under challenge which has been dismissed on account of unexplained delay and therefore no interference is called for in the present writ petition. Findings of this Court

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This court finds that it is not in dispute that the petitioner was posted as a constable in the CISF Unit at Kalpakkam and it is alleged that he picked up a quarrel with a lady constable namely Usha Rani. A preliminary enquiry report submitted on 22.12.2008 and petitioner filed his show cause reply on 30.12.2008 and the petitioner was warned vide order dated 06.01.2009.

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10.However, a departmental proceeding was initiated by respondent No. 5 on 24.04.2009 by issuance of a charge memo in connection with the aforesaid incident which allegedly constituted misconduct. The petitioner was directed to file his show cause and ultimately the

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petitioner was punished with withholding of five days’ salary vide order dated 27.05.2009 against which the petitioner filed an appeal before the appellate authority which was ultimately dismissed.

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11.Thereafter in exercise of power conferred under Rule 54(1) (b) of the CISF Rules, the respondent No. 3 issued a show cause for enhancement of punishment to which the petitioner responded, but the said authority enhanced the punishment of withholding of five days’ salary to punishment of withholding of one year increment for a period of three years which will not have the effect of postponing his future increment of pay. It is not in dispute that the aforesaid punishment is a minor punishment and there is power vested by virtue of Rule 54 (1) (b) of CISF Rules to confirm, reduce, enhance or set aside the penalty imposed by the order, or impose any penalty where no penalty has been imposed. Considering the nature of charges proved against the petitioner, this court does not find the enhanced punishment disproportionate to the proved charges and this court is not inclined to interfere with the order of punishment in exercise of powers under 226 of the Constitution of India.

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12.This court also finds that the only order which is under challenge is the order dated 17.03.2011 which has been dismissed by the Revisional Authority on account of unexplained delay and latches. This court finds that the order dated 17.03.2011 does not suffer from any illegality or perversity considering the fact that petitioner has not been able to give any plausible reason for delay of 13 months in filing the appeal. Although the petitioner has stated that he had filed a petition before the District Judge, Jamshedpur which was found to be not maintainable but, neither the date of filing of such petition has been mentioned, nor the number of such petition has been mentioned, nor the date on which it was dismissed by the District Judge, Jamshedpur as not maintainable has been mentioned and even the socalled order of district judge is not on record. Only a vague statement has been made with regard to filing of the case before the District Judge, Jamshedpur in the writ petition as well in the memo of appeal filed before the appellate authority, annexed as Annexure- 7 to this writ petition. On account of absence of foundational fact regarding the claim of the petitioner that he had moved the District Judge,

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Jamshedpur, it cannot be said that delay in filing the appeal has been explained in any manner from the side of the petitioner. Thus, this court is of the considered view that impugned appellate order dated 17.03.2011 has been rightly dismissed as time barred on account of unexplained delay in filing the appeal.

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13.As a cumulative effect of the aforesaid findings, the present writ petition is hereby dismissed.

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Pending I.A., if any, stands dismissed as not pressed.

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(Anubha Rawat Choudhary, J.)

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Binit/

Mukesh Mallick v. Union of India And Ors.

Case brief

What is this about?

What did the court decide?

Mukesh Mallick v. Union of India And Ors.

Case brief

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What did the court decide?

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