Dismissed

Kanhaiya Kumar Singh v. Union of India

Uttarakhand HC2 Jul 2020WPSS/620/2020

Case brief

AI extract

What is this about?

The Court dismissed a writ petition challenging an order withholding an annual increment. It held that Rule 46 of CISF Rules, using the word 'may', grants a delinquent employee a choice to appeal or accept punishment. A statutory forum must be approached before the writ jurisdiction.

What did the court decide?

Writ petition dismissed with liberty to approach the appellate forum.

Kanhaiya Kumar Singh Vs Union of India — Pension and Retirement Benefits | Uttarakhand HC (2020)

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WPSS No. 620 of 2020 Hon’ble Sharad Kumar Sharma, J.

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Dr. Kartikey Hari Gupta, Advocate for the petitioner.

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Mr. Rakesh Thapliyal, Assistant S.G. assisted by Mr. Sanjay Bhatt, Advocate for the respondents.

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The matter is heard through video conferencing.

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The petitioner contends that the impugned order under challenge, i.e. dated 28.03.2020, is nothing but is as a consequence of the prejudices which the Deputy Commandant, CISF Unit THDC, Tehri (Uttarakhand), is carrying against him, because of the fact that he has registered a complaint against him before the D.G., CISF for the harassment faced by him at his hands.

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Be that as it may, on the basis of the said complaint, he is shown to have been charge-sheeted on 11.02.2020 and, thereafter, the proceedings have culminated by way of imposition of the punishment as referred in the impugned order under challenge, whereby, his one annual increment has been withheld.

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The petitioner contends that this order is motivated by malice and, hence, it would be amenable to the writ jurisdiction. He further submits that as far as Rule 46 of the CISF Rules, which is quoted hereunder, is concerned, the nature of an appeal as contemplated therein is not mandatory as pointed out in paragraph-5 of the petition:

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“ 46. Appeal against order imposing penalties - (1)An enrolled member may prefer an appeal against all or any of the following orders, namely :-

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(i) an order of suspension made or deemed to have been made under rule 33;

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(ii) an order imposing any of the penalties specified in rule 34, made by the disciplinary authority or by any appellate or revising authority.

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(2) Such appeal shall be made to the authority immediately superior to the authority who has imposed the penalty.

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NOTE : (i) Appeal against the order of Deputy Inspector General shall lie to the Sector Inspector General and against the order of the Sector Inspector General to the Director General.

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(ii) Appeal against the order of the Deputy Inspector General at Force Headquarters including Deputy Inspector General (Training and Fire) shall lie to Inspector General (Headquarters) and against the order of Inspector General (Headquarters) to the Director General.

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(iii) Appeal against the order of the Director General shall lie to the Central Government.

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(iv) Where the person who made the order appealed against becomes, by virtue of his subsequent appointment or otherwise the appellate authority in respect of such order, an appeal against such order shall lie to the authority to whom such person is immediately subordinate.

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(3) There shall be no second appeal. But when the appellate authority imposes a penalty higher than the one appealed against, an appeal shall lie to the authority next superior to the appellate authority.”

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Learned counsel for the petitioner harps upon the use of word ‘may’ as given in Rule 46 of the CISF Rules. The interpretation given to the use of word ‘may’ in the Rule 46, by the petitioner’s counsel is not acceptable by this Court. The use of word ‘may’ here intends to convey a choice to the delinquent employee against whom the punishment order has been imposed, either to accept an order of punishment or to prefer an appeal. Its not that the use of word ‘may’ over here will open the avenue to the petitioner to approach the writ court in a constitutional jurisdiction when an employee challenges the order of punishment.

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The use of word ‘may’ in Rule 46 of the CISF Rules would here mean and would be interpreted as to be a choice given to the delinquent employee to choose to prefer an appeal or not to prefer an appeal against the order of punishment and accept the punishment imposed by the order. The argument as extended by the learned counsel for the petitioner to the effect that the use of word ‘may’ here would mean or it relate to a forum where a person can approach is absolutely a misnormer because the expanse of Rule 46 cannot be extended to such a, extent where it would leave open a choice to a delinquent employee to choose the forum of appeal also. Forum of appeal under the law is a creation of a statute, but not a choice of a delinquent employee. Hence, the argument extended by the learned counsel for the petitioner from the said perspective is not accepted and is turned down.

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In that view of the matter, since it is an order of punishment falling to be within the definition of misconduct as defined under the rules, the petitioner has got a right of a statutory appeal, under Rule 46 of the CISF Rules. The writ petition is, thus, dismissed with a liberty open to the petitioner to approach the appellate forum leaving all contentions open to him.

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Subject to above writ petition is dismissed.

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(Sharad Kumar Sharma, J.)

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02.07.2020

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Pooja

Kanhaiya Kumar Singh v. Union of India

Case brief

What is this about?

What did the court decide?

Kanhaiya Kumar Singh v. Union of India

Case brief

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