Safiya Malik

The High Court of Calcutta, Division Bench of Justice Sujoy Paul and Justice Smita Das De upheld the disciplinary action against a CISF constable for leaving his security post at the Bongaigaon Refinery and Petrochemicals Limited gate unattended during duty hours. Dismissing the constable’s appeal, the Court affirmed the substituted penalty of pay-scale reduction for three years and ruled that there was no procedural irregularity or disproportionality in the disciplinary findings. The Bench further clarified that referring to an employee’s past misconduct in the charge-sheet for the purpose of determining punishment does not render the proceedings illegal.

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The appellant, a constable in the Central Industrial Security Force (CISF), was posted at the main gate of Bongaigaon Refinery and Petrochemicals Limited for security duties. A major penalty charge-sheet was issued to him on December 11, 2008, alleging that he left his assigned post unattended, allowing unauthorized persons to enter and exit the premises, and citing previous misconduct from 2007. The appellant denied all charges.

An inquiry officer was appointed who recorded evidence, including witness testimonies and CCTV footage. The inquiry report found all charges proved. Based on this, the disciplinary authority ordered the appellant’s removal from service on June 10, 2009. The appellant’s departmental appeal was partly allowed by the appellate authority on August 20, 2009, substituting the removal order with a penalty of reduction in pay for three years without increments, affecting future pay progression. A subsequent revision petition was dismissed on November 28, 2010.

The appellant challenged the disciplinary proceedings and the modified punishment in a writ petition, which was dismissed by a single judge in December 2015. He then appealed before the Division Bench. The appellant argued that the charge-sheet was vague, particularly as it did not identify the alleged intruders, and contended that referring to previous misconduct amounted to double punishment. He also challenged the reliability of the CCTV evidence, pointing out a discrepancy in the recorded time.

The CISF defended the validity of the charge-sheet, stating that naming the intruders was unnecessary since the misconduct lay in leaving the gate unguarded. It argued that past misconduct could be mentioned in the charge-sheet to assess punishment and emphasized that disciplinary proceedings are decided on preponderance of probabilities, not strict criminal standards. The CISF maintained that the inquiry and punishment complied with the principles of natural justice and relevant service rules.

The Bench, after hearing the parties, rejected the appellant’s argument of vagueness. It observed that “the allegation against the constable is that he left the gate unguarded for some time and certain strangers entered the gate unauthorizedly. It was not necessary for the prosecution to mention names of such strangers.” The Court reasoned that the core issue was the act of leaving the gate unguarded, not the identities of those who entered, and therefore the charge-sheet could not be termed vague.

On the issue of the third charge referring to prior misconduct, the Bench recorded: “Merely because description of previous misconduct and punishment is mentioned in Article of Charge III, the charge-sheet and disciplinary proceeding will not become illegal.” It held that reference to past conduct was permissible for assessing the quantum of punishment and did not attract the principle of double jeopardy.

The Bench relied upon the Supreme Court’s decisions in State of Mysore v. K. Manche Gowda (1963 SCC OnLine SC 50), Union of India v. Bishamber Das Dogra (2009) 13 SCC 102, and Mohd. Yunus Khan v. State of U.P. (2010) 10 SCC 539, observing that “nothing in law prevents the punishing authority from taking that fact into consideration during the second stage of the enquiry, for essentially it relates more to the domain of punishment rather than to that of guilt.”

Regarding the appellant’s contention on the defective CCTV footage, the Court stated that “in statement of imputation of misconduct in support of Article of charge no. 1 itself, the disciplinary authority recorded that CCTV timing was advanced by one hour which was confirmed by PW-5 A.J. Baruah.” It therefore held that the discrepancy in timing did not invalidate the evidence.

The Court held that strict principles of the Evidence Act do not apply to departmental proceedings, and that the standard of proof is one of ‘preponderance of probability’ rather than proof beyond reasonable doubt. The Bench noted that the appellant had admitted in cross-examination that his duty was to ensure no unauthorized entry or exit at the gate, and that he left his post without informing the shift in-charge. It further recorded that he admitted assigning his duties to another constable who was also absent during that period.

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The Division Bench observed that “the appellant was entrusted with a very sensitive job being a member of para-military discipline force. The appellant was not supposed to leave the gate unguarded and without permission.” The Court further stated that the negligence itself constituted misconduct regardless of whether any unauthorized entry or theft actually occurred. “The negligence of appellant in keeping the gate unguarded itself is a serious misconduct,” the Bench stated.

It noted that the appellate authority had already exercised leniency by reducing the punishment from dismissal to reduction in pay, and held that “the modified punishment is not shockingly disproportionate.”

It stated: “In view of foregoing analysis, in our opinion, there is no serious flaw in the decision making process. This is also not a case of no evidence. There is no perversity in the findings. The appellate authority has already reduced the punishment. The modified punishment is not shockingly disproportionate. Thus, we find no reason to interfere in this matter. Intra court appeal fails and hereby dismissed.”

Advocates Representing the Parties:
For the Appellant: Mr. Pradip Kumar Roy, Senior Advocate; Ms. Shruti Mitra, Advocate; Ms. Sumedha Mukhopadhyay, Advocate.
For the Respondent Union of India: Mr. Bishambhar Jha, Advocate; Mr. Uttam Basak, Advocate.

Case Title: Yeshveer v. Union of India and Others
Case Number: FMA 1537 of 2016
Bench: Justice Sujoy Paul and Justice Smita Das De