Constable in Central Industrial Security Force (CISF) on June 16, 2000.
After completion of training at RTC Sidhabari, he was posted at CISF unit,
NALCO, Angul with effect from May 01, 2001 and thereafter with effect
from November 1, 2004 at Ranchi; from May 31, 2007 at BIOP DEP-5;
from March 1, 2008 at SSG Greater Noida, from October 17, 2009 at CISF
6
th Reserved Battallion, Deoli and with effect from November 1, 2010 at
STPP Simhadri till the first impugned order dated December 7, 2011 was
passed. It is his case that while working at NTPC Unit, Simhadri, he
received a movement order dated October 21, 2011 whereby he was directed
to proceed on temporary duty to CISF Headquarters, New Delhi on October
24, 2011. At the CISF Headquarters, the petitioner was asked by IG and
DIG about his Facebook account and he truthfully told them as to how he
joined the site and also told them that he neither did nor he could have
disclosed any kind of information. It is also the case of the petitioner that as
per the directions of the IG, the petitioner signed a written statement under
duress and was not given a copy of his statement despite his request. After
his return to the Unit, the petitioner was shocked to receive an order dated
December 7, 2011, whereby he was informed that since he has involved
himself in chatting on a social networking site namely Facebook with a
person whose identity has been established by very reliable sources, to be a
person of neighbouring country and working as an under cover agent of that
country and he is alleged to have exchanged information with that person,
which is inimical to the interest of the organization and adverse to the overall
public interest and therefore, he was being dismissed from service, since the
respondent No.3 was of the opinion, it was not practicably possible to hold a
regular departmental inquiry.
Having said so, from the perusal of the aforesaid reasoning and noting
the allegation against the petitioner of divulging information with regard to
CISF Units and his colleagues, is surely an aspect, which is detrimental to
the security interest of the organization, moreso, when the person to which
the information has been divulged, is an under cover agent of a hostile
foreign country and such person to whom the information divulged, is an
important witness, who cannot be produced in the disciplinary proceedings.
The plea of Ms. Palli that the information divulged can be obtained from the
Facebook Inc. is also not sustainable, when such company is based abroad.
In any case, such is not the case of the petitioner also in his representation
made to the Director General of the CISF. It is not a case where there was
no material before the competent authority while dispensing with the
inquiry. There was material in the form of a statement of the petitioner
himself and the information given by the Sister Intelligence Agency and on
analyzing the same, if the competent authority concludes that in the scenario,
it is not possible to hold an inquiry, this Court is of the view that the same
cannot be faulted.
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: September 07 , 2016
W.P.(C) 1191/2015
BALKAR SINGH
versus
UNION OF INDIA & ORS ..
CORAM:
HON'BLE MS. JUSTICE INDIRA BANERJEE
HON'BLE MR. JUSTICE V. KAMESWAR RAO
1. The challenge in this writ petition is, to the order dated December 7,
2011 whereby the petitioner was dismissed from service on the ground that
holding a regular departmental inquiry by serving charge memorandum and
following the due procedure in the manner prescribed in Rule 36 of CISF
Rules, 2001 („Rules of 2001‟ in short) is not practically possible and to the
order dated March 14, 2014, whereby his representation was rejected.
2. Some of the brief facts are, the petitioner was appointed as a
Constable in Central Industrial Security Force (CISF) on June 16, 2000.
After completion of training at RTC Sidhabari, he was posted at CISF unit,
NALCO, Angul with effect from May 01, 2001 and thereafter with effect
from November 1, 2004 at Ranchi; from May 31, 2007 at BIOP DEP-5;
from March 1, 2008 at SSG Greater Noida, from October 17, 2009 at CISF
6
th Reserved Battallion, Deoli and with effect from November 1, 2010 at
STPP Simhadri till the first impugned order dated December 7, 2011 was
passed. It is his case that while working at NTPC Unit, Simhadri, he
received a movement order dated October 21, 2011 whereby he was directed
to proceed on temporary duty to CISF Headquarters, New Delhi on October
24, 2011. At the CISF Headquarters, the petitioner was asked by IG and
DIG about his Facebook account and he truthfully told them as to how he
joined the site and also told them that he neither did nor he could have
disclosed any kind of information. It is also the case of the petitioner that as
per the directions of the IG, the petitioner signed a written statement under
duress and was not given a copy of his statement despite his request. After
his return to the Unit, the petitioner was shocked to receive an order dated
December 7, 2011, whereby he was informed that since he has involved
himself in chatting on a social networking site namely Facebook with a
person whose identity has been established by very reliable sources, to be a
person of neighbouring country and working as an under cover agent of that
country and he is alleged to have exchanged information with that person,
which is inimical to the interest of the organization and adverse to the overall
public interest and therefore, he was being dismissed from service, since the
respondent No.3 was of the opinion, it was not practicably possible to hold a
regular departmental inquiry.
3. It is the case of the petitioner in the pleadings, so also argued by Ms.
Rekha Palli, learned Senior Counsel for the petitioner that the dismissal of
the petitioner after 11 years of an outstanding service on the ground that he
had involved himself in chatting on social networking site namely
“Facebook” with a person whose identity has been established by very
reliable sources, to be a person of the neighbouring country and working as
an under cover agent for that country and had exchanged information with
that person, which is inimical to the interest of the organization and adverse
to the overall public interest, is clearly untenable. She states, that the
petitioner who was part of the 140 member U.N. Peacekeeping Mission at
Haiti from October 17, 2009 to October 28, 2010, had joined Facebook and
had befriended a girl namely Tanzeela Mazeed after checking that many of
his superior officers and colleagues were also on her friend list including SI
Tiwari, S.K. Khan, Ct. Mishra and Commandant Ganguly and had been
talking to her initially by believing that she was genuinely trying to befriend,
but when she started asking questions regarding the Indian Army and other
details of the CISF, the petitioner stopped communicating with her and when
she threatened to inform his department, the petitioner immediately deleted
his Facebook account which he had created.
4. Ms. Palli submitted that the petitioner who was a Constable and
mostly remained posted in PSUs, had neither any confidential or any
important information in his possession, nor he had given any information to
Tanzeela Mazeed. The only information shared was regarding the names of
some CISF Units, which in any case are in public domain. She submits that
it was after more than one year of his return from the U.N. Mission, the
petitioner was shocked to receive a movement order dated October 21, 2011
to report to the IG, CISF Headquarters, New Delhi where he told the IG and
AIG about his Facebook account and how he had joined the website and also
about the other CISF personnel on the friend list but was asked to write a
statement as per the dictates of the IG, which he signed and though in the
said statement also, the petitioner clearly stated that though he had chatted
for 3-4 months he had not disclosed anything and had clearly told her that
“Indians are not sold”. In substance, it is the submission of Ms. Rekha Palli
that the respondents had presumed that the petitioner had exchanged
information which is inimical to the interest of the organization or the
Country. The said presumption is without any basis. She states that the
petitioner denies that he had exchanged any information, which was inimical
to the interest of the organization or the country. According to her, the
aspect whether the petitioner has exchanged any information, which was
inimical to the interest of the organization or to the country can be proved
only by way of a detailed inquiry. Even if, Tanzeela Mazeed cannot be
called in the proceedings, the respondents would be still at liberty to procure
the information from the Facebook Inc. Hence, it is not a case where the
inquiry is not practicable. She would rely upon the judgments in the case
reported as (2006) 13 SCC 581 Tarsem Singh vs. State of Punjab and
others; 172 (2010) Delhi Law Times 163 (DB) Govt. of NCT of Delhi and
ors vs. Jai Bhagwan; LPA 1238/2014 Md. Salam vs. Union of India and
others decided by the High Court of Judicature at Patna on November 30,
2015.
5. On the other hand, Ms. Barkha Babbar, learned counsel appearing for W.P.(C) 1191/2015 Page 6 of 25
the respondents has submitted that AIG (VIG) CISF Headquarters had, vide
letter dated November 4, 2011 informed the Group Commandant and CISF
Headquarters, Hyderabad that CISF Headquarters has been officially
informed by a sister intelligence agency that the petitioner has been in
contact on Facebook with an agent of Pakistan and had been exchanging
information through draft mode by creating an exclusive Gmail ID for this
exchange on instructions from this person. When he was called to the CISF
Headquarters on October 24, 2011 he confessed to having given bank
account number and certain information regarding CISF Units in Rajasthan
and his Email address to Tanzeela Mazeed, who has been identified to be a
Pakistan agent. She had submitted that the fact that the petitioner created a
separate Email ID, gave his house address, gave her his bank account
number, the names of his colleagues and his cell number, the petitioner had
indulged in highly inappropriate internet talk on the forces which is inimical
to public interest and the information parted out cannot be said to be out of
innocence or ignorance. The petitioner, during his questioning denied any
wrongful contact and only when confronted with the name of Tanzeela
Mazeed, he lost his composure and came out with the statement. Ms. Babbar
has drawn our attention to the statement given by the petitioner. She states,
the competent authority was convinced, no regular inquiry could be held
against the petitioner and at the same time, his continuance is detrimental to
the interest of the department and will be against public interest, therefore on
consideration of facts and circumstances of the case, the Disciplinary
Authority awarded him, the penalty of dismissal from service vide order
dated December 7, 2011. To justify the impugned action, she would rely
upon the following judgments:-
(i) (1985) 4 SCC 252 Satyavir Singh and Ors v. Union of India & Ors.;
(ii) (1986) 2 SCC 112 Shivaji Atmaji Sawant V. State of Maharastra &
Ors;
(iii) (2003) 9 SCC 75 Sahadeo Singh & Ors vs Union of India & Ors.
6. Having heard the learned counsel for the parties, the only issue arises
for consideration is, whether in the facts of this case, the respondents could
have dispensed with the regular departmental inquiry and dismissed the
petitioner by invoking Rule 39(ii) of the Rules of 2001, which is reproduced
as under:-
“39 (ii) where the disciplinary authority is satisfied for reasons to
be recorded by it in writing that it is not reasonably practicable to
hold an inquiry in the manner provided in these rules; or”
7. Before we deal with the submissions made by the learned counsel for
the parties, the position of law on this issue, which is relatable to Article
311(2) (b) of the Constitution of India, is quite well settled. First we deal
with the judgments referred to by the learned counsel for the parties.
8. Insofar as the judgment of the Supreme Court in Tarsem Singh
(supra) is concerned, in the said case, the Supreme Court was concerned
with facts wherein the petitioner was charge sheeted for three allegations.
On the basis of the said allegations, the 4
th Commando Battalion,
Bahadurgarh, Patiala on a purported satisfaction that the petitioner could win
over the aggrieved people as well as witnesses from giving evidence by
threatening and other means, decided a formal departmental inquiry
proceedings need not be initiated. The said Authority further took into
consideration the report of the preliminary inquiry conducted through the
DSP and on that basis, opined, there seems no need to a regular departmental
inquiry against him. The petitioner was dismissed from service. The appeal
filed by the petitioner was also rejected. Thereafter, the petitioner filed a writ
petition before the High Court. The High Court dismissed the petition filed
by the petitioner. The Supreme Court noting the ground on which the formal
inquiry was dispensed with held that no material was placed or disclosed
either in the order or before the Court to show that subjective satisfaction
arrived at by the authority was based on objective criteria. The Court held,
the reasoning for dispensing with the departmental proceedings was not
supported by any document. The Supreme Court was of the view, if a
preliminary inquiry could be conducted, it failed to see any reason as to why
a formal departmental inquiry could not have been initiated against the
petitioner. The Supreme Court had referred to its judgment in the case
reported as (1991) 1 SCC 362 Jaswant Singh vs. State of Punjab and (1985)
3 SCC 398 Union of India vs. Tulsiram Patel and allowed the petition by
holding that in view of the fact that no material has been placed by the
respondents to satisfy the Court that it was necessary to dispense with a
formal inquiry, in terms of proviso (b) appended to clause (2) of Article 311
of the Constitution of India, the impugned orders cannot be sustained.
9. Insofar as the judgment of this Court in the case of Govt. of NCT of
Delhi and ors vs. Jai Bhagwan (supra), the facts were that the Govt. of
NCT of Delhi after telecast of news item captioned Programme “Vishesh
with caption “Ghoos Mahal” on March 08, 2005 at about 9:30 p.m. by T.V.
news channel Aaj Tak wherein respondents posted in Tihar Jail were shown
accepting money from the persons lodged in jail and from those coming to
meet them. Similarly, respondents posted in Trade and Tax Department
were shown negotiating and accepting money from public for doing undue
favours, as a kneejerk reaction suspended all the respondents. The petitioners
also lodged an FIR against all the respondents under Prevention of
Corruption Act. Later on, vide order dated September 27, 2005 passed in
the case of respondents working in Tihar Jail and vide order dated September
08, 2006 passed in the case of employees working in Trade and Tax
Department of the said State Government, the petitioners dismissed their
services without holding any domestic enquiry on the pretext that the owners
of the T.V. News Channel Aaj Tak refused to associate themselves with any
enquiry/investigation as may be conducted in the matter. The said orders
were challenged by the respondents by filing appeals before the Appellate
Authority which were dismissed with the only modification of converting
“dismissal” to “removal”. The Central Administrative Tribunal wherein the
Original Applications were filed, referred the matter to a larger Bench. The
Tribunal vide common order dated August 31, 2009 had set aside and
quashed the impugned orders giving liberty to the petitioners to proceed
against the respondent. Before the High Court, the challenge of the
petitioners was that the inquiry was dispensed with as it was not practicable
to hold an inquiry as the news channel refused to send the reporters for
evidence. Various other grounds were also raised by the petitioners. This
Court in para 41, after noting the facts in detail was of the view that only
because the witnesses have expressed their inability to join investigation
being busy, cannot be a reason for dispensing with the inquiry as their
presence can be secured by application of law available in the Statute Books
for their appearance. This Court had further held that an inquiry can be held
by issuing a show-cause notice and giving a copy of the telecast to the
delinquent employees and give them an opportunity to explain before taking
a final view as to whether it is a case where a regular department enquiry
under Rule 14 of the CCS(CCA) Rules should be held or further enquiry be
dispensed with. However, this has also not been done by the petitioners.
The plea that the respondents have seen the recordings and therefore, they
were aware of their role in the episode and none of them disputed their
presence at the location or their appearance in the cassettes which were
telecast is of no consequence as playing of such cassettes before the
Appellate Authority would not meet the requirement of the principles of
natural justice at the Enquiry Officer level.
10. Insofar as the judgment of the Patna High Court is concerned, there
the Court was concerned with the facts wherein the petitioner was dismissed
from service under Rule 39(ii) of the Rules of 2001 on an incident of July 5,
2010 when he was assigned “B” shift duty from 1 pm to 9 pm at the Barauni
unit for gate checking. The petitioner did not turn up for duty and allegedly
remained absent without any intimation and prior permission of the
competent authority. He was also not found in the unit barrack. The Shiftin-Charge
of the Barauni Unit made a general diary entry to the aforesaid
effect at CISF Control Room of Indian Oil Corporation, Barauni at about
3:00 PM. On the same day, the police out post, FCI, Barauni intimated the
CISF Control Room on telephone that at about 1.15 AM, the petitioner was
apprehended by local people indulging in an act of molestation of a minor
girl, aged about 12 years, with an intention to commit rape. The local people
handed him over to the police. The father of the victim got registered a case
for the offence under section 376/511 of the IPC. The petitioner therein was
taken into custody. On the very next day of incident i.e. July 6, 2010, the
petitioner was dismissed from service by the Group Commandant, CISF,
Group Headquarter, Patna, taking recourse to Rule 39(ii) of the Rules. The
petitioner aggrieved by the order of the Group Commandant, dismissing him
from service filed a departmental appeal, which was also rejected on
September 9, 2010. The revision preferred before the IG, CISF, was also
rejected on October 30, 2010. The writ application filed against order of
dismissal also met the same fate on March 26, 2014. The Division Bench in
the Intra-Court appeal relied upon the judgment of the Supreme Court in the
case of Satyavir Singh (supra) and was of the view, the reasoning given by
the Disciplinary Authority for not holding departmental inquiry, was on an
apprehension that initiation of an enquiry may generate communal
sentiments among two religious communities and the inquiry would attract a
lot of public attention, media coverage and adverse comments, which may
tarnish the image of the force. On the other hand, a departmental action
would help in maintaining the discipline and conduct of the members of the
force and furthermore, it was improbable to summon the witnesses, who
were strangers and passerby. The aforesaid reasoning given by the
Disciplinary Authority was held to be irrelevant and cannot be a ground for
dispensing with the departmental inquiry.
11. The Court also rejected the ground that it was improbable to summon
the witnesses by holding that it is not a case of the respondents that the father
and daughter were not willing to depose in the inquiry against the petitioner.
The Court held no reason has been assigned as to why the father or the
victim/girl who could be the best witnesses, could be chosen to be not
examined. Furthermore, there is no material on record to even remotely
come to the conclusion that the petitioner either had threatened the victim,
her father or the officials.
12. Insofar as the judgments relied upon by the learned counsel for the
respondents are concerned, in Satyavir Singh vs. Union of India (supra), the
Court referred to its judgment in Tulsiram Patel’s case (supra), wherein The
Counter–Intelligence Section (CIS) of the Research and Analysis Wing
(RAW) of Government of India located in New Delhi introduced as a
security measure the requirement of showing identity cards by the employees
when going from one floor to the other. The employees of the RAW started
agitation against this measure. The agitation took aggressive turn and
several employees held the Director and an Assistant Director as hostages in
a room in order to have their demand conceded. The police had to intervene
to release the officers. A number of agitators were arrested on various
charges under Penal Code and they were later suspended under Rule
10(1)(b) of the Central Civil Services (Classification, Control and Appeal)
Rules, 1965. The employees demanded immediate withdrawal of the
criminal cases and the said security measure and resorted to pen-down strike.
This resulted in future suspension of some more employees who were taking
a leading, active and aggressive role in the agitation and indulging in these
activities. The pen-down strike gradually spread to other offices of the
RAW in New Delhi as well as in different parts of India including Lucknow
and Jammu. The position was fast deteriorating. Employees were being
instigated into further acts of indiscipline and insubordination and loyal
employees and senior officers were being intimidated. Meetings and
demonstrations were regularly being held within the office premises and
their precincts and there was no possibility of any witness coming forward to
give evidence against the appellants who were said to have taken a leading
part in this agitation. The atmosphere was charged with tension and there
did not seem any hope of the situation becoming normal. Ultimately, the
appellant-employees were dismissed from service without holding any
inquiry by orders issued by appointing authority under clause (b) of the
second proviso to Article 311(2) of the Constitution read with Rule 19 of the
Central Services Rules. The orders stated that whereas they had been
indulging in “various acts of misconduct, indiscipline, intimidation and
insubordination”, “regularly holding meetings and demonstrations
unauthorisedly and in violation of specific orders”, “resorted to coercion,
intimidation and incitement of other fellow employees” due to which the
atmosphere became “so tense and abnormal that no witness would cooperate
with any proceedings”, that the authority was satisfied that the circumstances
were such that it was “not reasonably practicable to hold a regular inquiry”
and that “the penalty of dismissal from service should be imposed” on the
appellants. When the first batch of dismissal orders was served upon some
of the appellants on December 8, 1980, the pen-down strike was called off
on December 9, 1980. The appellants approached the High Court under
Article 226. The High Court dismissed the writ petitions of the appellants.
In appeals before Supreme Court it was inter alia contended that the orders
were passed mala fide and the reasons given therein for dispensing with the
inquiry were not true and that the inquiry was reasonably practicable.
Dismissing the appeals Supreme Court.
The Supreme Court in paras 108, 109 and 110, has held as under:-
“(108) In examining the relevancy of the reasons given for
dispensing with the inquiry, the Court will consider the
circumstances which, according to the disciplinary authority, made
it come to the conclusion that it was not reasonably practicable to
hold the inquiry. If the court finds that the reasons are irrelevant,
the order dispensing with the inquiry and the order of penalty
following upon it would be void and the Court will strike them
down. In considering the relevancy of the reasons given by the
disciplinary authority, the Court will not, however, sit in judgment
over the reasons like a Court of first appeal in order to decide
whether or not the reasons are germane to Clause (b) of the second
proviso or an analogous service rule. The Court must put itself in
the place of the disciplinary authority and consider what in the then
prevailing situation a reasonable man acting in a reasonable
manner would have done. It will judge the matter in the light of the
then prevailing situation and not as if the disciplinary authority was
deciding the question whether the inquiry should be dispensed with
or not in the cool and detached atmosphere of a Court-room,
removed in time from the situation in question. Where two views are
possible, the Court will decline to interfere.
(109) Where it is alleged that Clause (b) of the second proviso or
an analogous service rule was applied mala fide, the Court will
examine the charge of mala fides. A mere bare allegation of mala
fides without any particulars of mala fides will not, however,
amount to a plea of mala fides and requires to be ignored.
(110) If the reasons for dispensing with the inquiry are not
communicated to the concerned civil servant and the matter comes
to Court, the Court can direct the reasons to be produced and
furnished to the civil servant and if still not produced, a
presumption should be drawn that the reasons were not recorded in
writing and the impugned order would then stand invalidated. Such
presumption can, however, be rebutted by a satisfactory
explanation for the non- production of the written reasons.”
13. In Satyavir Singh (supra), the Supreme Court considered the grounds
on which the inquiry was dispensed with, that the co-workers may not be
available as witnesses, which ground was challenged by the petitioner stating
that there were policemen and police officers posted inside and outside the
building and they were available to give evidence and that superior officers
were also available to give evidence. The crucial and material evidence
against the Appellants would be that of their co-workers for these coworkers
were directly concerned in and were eye-witnesses to the various
incidents. The Court was of the view, where the disciplinary authority feels
that crucial, and material evidence will not be available in an inquiry because
the witnesses who could give such evidence are intimidated and would not
come forward and the only evidence which would be available, namely of
policemen, police officers and senior officers, would only be peripheral and
cannot relate to all the charges and that, therefore, leading only such
evidence may be assailed in a court of law as being a mere farce of an
inquiry and a deliberate attempt to keep back material witnesses, the
disciplinary authority would be justified in coming to the conclusion that an
inquiry is not reasonably practicable. The Supreme Court relied upon the
affidavit on behalf of the respondents wherein copies of the written reasons
for dispensing with the inquiry were also annexed. The Supreme Court
dismissed the petition.
14. In Shivaji Atmaji Sawant (supra), the Supreme Court was concerned
with the dismissal of police constables under Section 25(1) of the Bombay
Police Act, 1951 by dispensing with the inquiry. The Supreme Court while
answering to one of the contention that the reasons for dispensing with the
inquiry did not accompany the order, has held, that recording of reasons is a
condition precedent to the application of clause (b) of the second proviso to
Art. 311(2) and, if such reasons are not recorded in writing, the order
dispensing with the inquiry and the order of penalty following thereupon
would both be void and unconstitutional. The Supreme Court in Tulsiram
Patel’s case and also held that though it was not necessary to record reasons
for imposing the penalty, it would be advisable to record them in the final
order so as to avoid an allegation that the reasons were not recorded in
writing before passing the final order but were subsequently fabricated.
15. In Sawant’s case there is a finding of the Supreme Court that the
impugned order of dismissal itself sets out the reasons that it is not
reasonably practicable to hold the inquiry. The Supreme Court held that the
said order records that some Members of the Bombay City Police Force
including Sawant had been instigating others in the acts of insubordination
and indiscipline and were instigating them to withdraw from their lawful
duties, inciting them to violence any mutiny, joining rioting mobs and
participating in arson, looting and other criminal acts, wilfully disobeying
orders of superior officers and that these acts had created a situation in
Bombay whereby the normal functioning of the police force had been
rendered difficult and impossible and that in view of these facts and
circumstances, any attempt to hold a departmental inquiry by serving a
written charge-sheet and following the procedure laid down in the Bombay
Police(Punishments & Appeal) Rules, 1956 would be frustrated by the
collective action of these persons and it was therefore not practicable to hold
such an enquiry. The Supreme Court rejected the contention as raised and
upheld the action of the respondent applying clause (b) of the second proviso
to Article 311(2) of the Constitution. Similarly, in the case of one Velankar,
the Supreme Court on noting the reasons, has held that clause (b) of the
second proviso to Article 311(2) has been rightly applied.
16. Insofar as Sahadeo Singh and ors (supra) is concerned, the Supreme
Court upheld the reasoning given by the Disciplinary Authority, dispensing
with the inquiry on the ground that no independent evidence was expected
against the appellants in view of the prevailing fear among the witnesses.
The said ground was held to be justified by the Supreme Court.
17. Having noted the aforesaid position of law and perused the impugned
order dated December 7, 2011, which reads as under, it is clear that
competent authority has recorded reasons for dispensing with the inquiry in
the order of dismissal itself.
“ORDER
WHEREAS, CISF No.00440316 Constable/GD BALKAR
SINGH is serving in CISF Unit, STPP (NTPC) Simhadri w.e.f
01.11.2010.
2. AND WHEREAS, the said CISF No.004460316
Constable/GD BALKAR SINGH has been presently deployed
with CISF Unit STPP (NTPC) Simhadri to provide security
cover to the Public Sector Undertaking w.e.f 01.11.2010.
3. AND WHEREAS, the said CISF No.004460316
Constable/GD BALKAR SINGH has involved himself in
chatting on a social networking site namely Facebook with a
person whose identity has been established by very reliable
sources to be of a person of neighbouring country and working
as undercover agent for that country. He has exchanged
information with that person which is inimical to the interest of
the organization and adverse to the overall public interest.
4. AND WHEREAS, the said CISF No.004460316
Constable/GD BALKAR SINGH is a trained member of Force
and having knowledge of various aspects and resources of CISF
functioning and any further leakage of information would
further harm the interest of the department and be against
public interest. CISF guards & number of installations in the
strategic and economic importance of the country. Exchanging
information about them and Central Armed Police Force
deployed there is detrimental to the security interests of the
organizations. Thus, he has created such a situation by
involving himself with an outsider working as an undercover
agent for a hostile foreign country where he has rendered
himself unworthy of any further retention in the Force.
5. AND WHEREAS, under these prevailing circumstances,
the undersigned is fully convinced and of the opinion that any
attempt of holding a regular departmental enquiry by serving
charge memorandum and following the due procedure in the
manner prescribed in Rule 36 of the CISF Rules 2001 is not
practicably possible as the other person is an outsider and it is
difficult to get in touch with that person and to bring the
statement of that person on record for the disciplinary process
and at the same time retention of said Constable in security
Force anymore would be detrimental to interest of department
and will be against public interest.
6. AND WHEREAS, on consideration of the facts and
circumstances of the case of the view that the penalty of
“Dismissal from Service” should be imposed upon CISF No.
004460316 Constable/GD BALKAR SINGH.
7. NOW THEREFORE, in exercise of the powers
conferred by Rule 32 read with sub Rule (ii) of Rule 39 of
CISF Rules, 2001, I hereby order that CISF No. 004460316
Constable/GD BALKAR SINGH be Dismissed from Service
with immediate effect.
8. A copy of this order be served upon the CISF No.
004460316 Constable/GD BALKAR SINGH.”
18. The aforesaid reasoning satisfies the test laid down by the Supreme
Court in Union of India and another v. Tulsiram Patel’s case (supra). In
the said case, the Constitution Bench, while dealing with the exercise of
power under Article 311(2) (b), has ruled as under:-
“130. The condition precedent for the application of clause (b) is
the satisfaction of the disciplinary authority that "it is not
reasonably practicable to hold" the inquiry contemplated by
clause (2) of Article 311. What is pertinent to note is that the
words used are "not reasonably practicable" and not
"impracticable". According to the Oxford English Dictionary
"practicable" means "Capable of being put into practice, carried
out in action, effected, accomplished, or done; feasible". Webster's
Third New International Dictionary defines the word
"practicable" inter alia as meaning "possible to practice or
perform : capable of being put into practice, done or
accomplished : feasible". Further, the words used are not "not
practicable" but "not reasonably practicable". Webster's Third
New International Dictionary defines the word "reasonably" as
"in a reasonable manner : to a fairly sufficient extent". Thus,
whether it was practicable to hold the inquiry or not must be
judged in the context of whether it was reasonably practicable to
do so. It is not a total or absolute impracticability which is
required by clause (b). What is requisite is that the holding of the
inquiry is not practicable in the opinion of a reasonable man
taking a reasonable view of the prevailing situation.”
19. Having said so, from the perusal of the aforesaid reasoning and noting
the allegation against the petitioner of divulging information with regard to
CISF Units and his colleagues, is surely an aspect, which is detrimental to
the security interest of the organization, moreso, when the person to which
the information has been divulged, is an under cover agent of a hostile
foreign country and such person to whom the information divulged, is an
important witness, who cannot be produced in the disciplinary proceedings.
The plea of Ms. Palli that the information divulged can be obtained from the
Facebook Inc. is also not sustainable, when such company is based abroad.
In any case, such is not the case of the petitioner also in his representation
made to the Director General of the CISF. It is not a case where there was
no material before the competent authority while dispensing with the
inquiry. There was material in the form of a statement of the petitioner
himself and the information given by the Sister Intelligence Agency and on
analyzing the same, if the competent authority concludes that in the scenario,
it is not possible to hold an inquiry, this Court is of the view that the same
cannot be faulted.
20. This we say, because in examining the relevancy of the reasoning
given for dispensing with the inquiry, the Court will consider the
circumstances, which according to the Disciplinary Authority, made it come
to the conclusion that it was not reasonably practicable to hold the inquiry.
In the prevailing situation, the view taken in the impugned order is justified
as even if a departmental inquiry is held, the charges against the petitioner
cannot be proved in the absence of a crucial witness. In Union of India and
another v. Tulsiram Patel’s case (supra), the Supreme Court held where
two views are possible, the Court will decline to interfere. Accordingly, we
do not find any merit in the writ petition. The same is dismissed. No Costs.
V. KAMESWAR RAO, J
INDIRA BANERJEE, J
SEPTEMBER 07, 2016/ak
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