Past Misconduct Of Employee Can Be Considered In Article Of Charge For Determining Quantum Of Punishment : Calcutta HC

Background Facts

The appellant was employed as a constable with the Central Industrial Security Force (CISF). He was posted at the Bongaigaon Refinery and Petrochemicals Limited (BRPL). The department issued a major penalty charge-sheet against him on 11th December 2008 while deployed for security duty at the main gate. Three charges of misconduct were levelled against him. The appellant denied all charges. An enquiry officer was appointed. He submitted a report holding all charges as proved. The disciplinary authority agreed with the findings. It imposed the penalty of removal from service.

The appellant preferred an appeal. The appellate authority modified the punishment. It was substituted with a reduction in pay to a lower stage in the time scale for a period of three years instead of removal. It was further directed that the appellant would not earn increments during this period. Subsequently, the appellant filed a revision petition, which was dismissed by the revisional authority. Aggrieved, the appellant filed a writ petition. The Single Judge dismissed the writ petition.

Aggrieved by the order of the Single Judge, the appellant filed the appeal.

It was contended by the appellant that the charge-sheet was flawed and bad in law. It failed to provide specific details such as the names and identities of the 16 strangers who entered the premises during the appellant's absence. The lack of clarity deprived the appellant of an opportunity to defend himself. It was further submitted that Charge No. 3 was illegal as it pertained to a misconduct from the year 2007 for which the appellant had already been punished. It was argued that incorporating the past misconduct into a fresh charge-sheet amounted to imposing a second punishment for the same offence. The appellant also challenged the reliability of the prosecution's evidence of a CCTV footage contending that it was defective. Lastly, it was argued that the Single Judge failed to consider these substantive arguments.

On the other hand, it was submitted by the respondents CISF that the charge-sheet suffered from no vagueness. It was contended that reference to the past record was justified to demonstrate misconduct. Further it was contended that the nature of duties in a para-military force like the CISF is vastly different. It demands utmost discipline. The misconduct of leaving a security post unattended had to be viewed strictly from this perspective. The appellate authority had provided proportionate penalty. Therefore, the punishment could not be considered shockingly disproportionate to the misconduct.

Findings of the Court

It was observed by the court that charges against an employee must be clear and definite to ensure a proper defence. It was noted by the court that the appellant left the gate unguarded, and it was not necessary for the prosecution to disclose the names or identities of the unauthorized persons who entered during his absence. Therefore, the charge was sufficiently specific.

It was further observed that the inclusion of a past misconduct did not render the disciplinary proceedings illegal. The previous misconduct and charge is mentioned for the purposes of deciding the question of quantum of punishment. It was rather in the benefit of the employee that disciplinary authority disclosed that previous misconduct and punishment is part of a charge so that employee can put forth his defence. The judgments of the Supreme Court in State of Mysore v. K. Manche Gowda and Union of India v. Bishamber Das Dogra were relied upon by the court wherein it was held that mentioning a previous conduct is permissible for the specific purpose of determining the quantum of punishment.

It was further observed by the court that the appellant's argument about the time discrepancy regarding the crucial evidence of the CCTV CD was unsustainable. It was noted that the CCTV timing was advanced by one hour.

It was held by the court the appellant candidly admitted to leaving his post to visit an ATM without informing his shift in-charge. It was held that this admission itself proved the misconduct. It was noted by court that a member of a para-military force is tasked with guarding a sensitive installation, therefore, the act of leaving the post unguarded is a serious misconduct. It was further held that the appellate authority had already applied the doctrine of proportionality by reducing the punishment from removal to a reduction in pay. It was held that the modified penalty was proportional with the gravity of the proven misconduct.

It was concluded that the previous misconduct may be mentioned in article of charge to determine the quantum of punishment, which benefits the employee by allowing him to defend himself. With the aforesaid observations, the appeal filed by the appellant constable was dismissed by the court.

Case Name : Yeshveer vs. Union of India and Others

Case No. : FMA 1537 of 2016

Counsel for the Appellant : Pradip Kumar Roy, Sr. Adv., Shruti Mitra, Adv., Sumedha Mukhopadhyay, Adv

Counsel for the Respondent : Bishambhar Jha, Adv. Mr. Uttam Basak, Adv.