DISTRICT BURDWAN

IN THE HIGH COURT AT CALCUTTA CONSTITUTIONAL WRIT JURISDICTION APPELLATE SIDE

W.P.No 12213(W) of 2011
IN THE MATTER OF An application under Article 226 of the Constitution of India,

-ANDIN THE MATTER OF A Writ in the nature of Mandamus and/ or Certiorari and/ or Prohibition and/ or any other writ or writs and/ or order or orders and/ or direction or directions, -ANDIN THE MATTER OF Purported departmental proceedings conducted violating the principles of Natural Justice and denying the Reasonable opportunity to the petitioner -ANDIN THE MATTER OF Central Industrial Security Forces Act, 1968 and Rules framed there under, -ANDIN THE MATTER OF Purported departmental proceedings initiated without any good or sufficient reasons, -ANDIN THE MATTER OF Violation of Principles of Natural Justice and denial of Reasonable opportunity to defend the case,

-ANDIN THE MATTER OF Discrimination in the matter of penalty due to bias, -ANDIN THE MATTER OF Purported Final Order , Purported Appellate Order and Purported Revision Order, issued by the authorities concerned, without application of mind, -ANDIN THE MATTER OF Purported penalty of Removal from Service without any evidence, -ANDIN THE MATTER OF Article 14, 16, 21 read with Article 300A of the Constitution of India, -AND-

IN THE MATTER OF Santosh Kumar Roy, Ex- Constable, Central Industrial Security Force Unit, National Thermal Power Corporation Limited, Farakka, P.O Nabarun, District- Murshidabad. .Petitioner -Versus1. Union of Indian, service through the Secretary, Ministry of Home Affairs, North Block, New Delhi-3 2. The Director General, Central Industrial Security Force, 13, CGOs Complex, Lodhi Road, New Delhi- 3

3. The Inspector General, Central Industrial Security Force, North Eastern Sector, premises No. 553, East Kolkata Township, Kasba, Kolkata -107

4. The Deputy Inspector General, Central Industrial Security Force, North Eastern Sector, premises No. 553, East Kolkata Township, Kasba, Kolkata -107

5. The Commandant, Central Industrial Security Force, NTPC, Farakka, P.O Nabarun, District- Murshidabad. 6. Sri R.R.Sinha, Assistant Commandant, Enquiry Officer, Central Industrial Security Force, NTPC, Farakka, P.O Nabarun, District- Murshidabad.

..Respondents Affidavit in-Opposition on behalf of the Respondents , above named,

I, Sri., son of .., aged about years, by faith .., by Occupation ., working for gains as .. .., residing at ., do hereby solemnly affirm and state as follows :-

1. That the copy of the Writ Petition under Article 226, of the Constitution of India was served upon me and I have gone through the contents of the Writ Petition and the documents annexed thereto, for short, the said Petition and have understood the meaning, purport and scope thereof.

2. That at the outset the averments and allegations made in the Writ Petition are denied and disputed save and except those which are matters of record and are expressly admitted by me hereunder.

3. That in respect of the said Petition I shall now proceed to make the following preliminary submissions, before presenting my Para wise comments on the allegations and averments, there onto.

a) That the Writ Petitioner, Constable Santosh Kumar Roy, No. 034340286 of B Coy, CISF Unit, FSTPP, Farakka, was detailed for shift duty from 5.00 P.M to 5.00 AM on 20.01.10 and as per duty deployment register the petitioner was detailed from VVT No. 9 to Scrap Yard PTL duty, which is synonym of duty post Watch Tower NO. 09 to Watch Tower No. 10, Scrap Yard and nearby vicinity of including Perimeter Wall. He was

provided with necessary arms and ammunition for providing security coverage to the area of watch tower 9 to watch tower 10, and the scrap yard and nearby vicinity including the perimeter wall.

b) That during the Petitioners duty hours, miscreants taking advantage of his negligence, slackness and dereliction towards his duty, were able to penetrate the complex by making a hole of approximately 3 x 3.10 size and through which they were able to carry out with them 6 wooden boxes containing Air Handling Cooling Coils made of copper and worth to the a tune of Rupees 10 Lakhs. The said boxes were taken from open yard store area of M/S ABB Pvt. Ltd. located inside and near to the perimeter wall of NTPC Farraka. This area of occurrence though was in between watch tower 9 and 10, it was more in close proximity to watch tower 9.

c) It is pertinent to mention that the properties kept inside the Plant, either of NTPC or Private Contractors, are to be guarded by CISF by means of patrolling by the sentries of CISF deployed at Watch Towers or nearby Sentries. The CISF has been deployed for providing full proof security coverage to the NTPC Plant properties. The materials and machineries were kept inside the Plant premises by the Private contractors, duly taking approval of NTPC management for use in NTPC Plant as and when required. d) That due to the Petitioners willful negligence and dereliction of duty which resulted in the theft of above mentioned goods, an Order contemplating disciplinary proceedings was given on 20.01.2010 and the Petitioner was placed under suspension under Sub Rule (1) of Rule 33 of the CISF Rules, 2001. The Petitioner as per Standing Operation Procedure/Office Order No. (103 dated 13.072007, produced during the course of enquiry and marked as PW-II/Exb-P-4&5 (copy enclosed and marked as Annexure R-I&II), had to provide security coverage of the area from Watch Tower No. 9 to Watch Tower No. 10, nearby vicinity of Perimeter Wall area and also Scrap Yard. It is also pertinent to mention at this stage that due to shortage of manpower the officer in charge for security aspect has a implied prerogative to assign to any security personnel their respective Beat area since the main aim is providing security to the concerned establishment at all cost and under any circumstances.

5 e) That a Charge Memorandum clearly spelling out detailed charge of

misconduct were annexed as Articles of Charge I and II and was handed to the Petitioner on 15.02.10, as per Rule 36 of the CISF Rules, 2001, which he acknowledged on 28.02.10. the Petitioner was also supplied with the Hindi version of the Charge Memorandum on 08.03.10, as requested by him.

f) That the Petitioner denied the Articles of charges against him, in his letter dated 15.03.10, hence vide Order no 461 and 462, dated 16.03.10 respectively, an enquiry was set up with Assistant Commandant, Sri R.R.Sinha, as enquiry officer and Assistant Commandant and Inspector Executive, Sri. R.K.Patel, as Presenting officer.

g) That a thorough and detailed enquiry into the circumstances of the above mentioned theft was carried out and a written brief to this effect was handed over by the Presenting officer on 05.07.10 to the Enquiry officer and on 06.07.10 a copy of the said enquiry brief was given to the Petitioner for facilitating him in tendering his representation, which was duly given by him on 20.07.10.

h) That the enquiry officer after having gone through the representation of the Petitioner and also after having perused evidence both oral and documentary, as also having applied his judicious mind, culminated the enquiry report holding the charges proved against the Petitioner and submitted the report on 09.08.10. i) That the Disciplinary Authority following the principle of Natural Justice, accorded ample opportunity to the Petitioner to represent against the report on 10.08.10 and also entertained his request dated 13.08.10, of providing him with Hindi version of the enquiry report and the same was handed to him on 18.08.10. The Petitioner having acknowledged the receipt of the report on 21.08.10, gave his written representation on 25.08.10, against the report. That after due consideration accorded to the Petitioners representation and after minutely going through the evidence, both oral and documentary, and judiciously applying its mind, the enquiry came to the conclusion that the Petitioner was guilty of the charge and issued its final order vide No. V-15014/ Disc/ Maj-02(DR)/ FSTPP(F)/ 2010/ 1470 dated 30.08.10,

j)

6 k) awarding the punishment of Removal from Service with Immediate Effect. l) That aggrieved with the penalty the Petitioner appealed to Dy. Inspector Genearal, CISF, NEZ, HQs, Kolkata, the Appellate Authority on 20.09.10, who after due consideration rejected the same vide Order No. 11014/ Appeal-32. SKR/ Ad.II/ NEZ/ 2010/ 8791, dated 31.12.10, as it was devoid of any merit. Thereafter the Petitioner preferred a Revision Petition before Inspector General, CISF, NES HQrs, Kolkata, which was also rejected after due deliberation, vide Order No V/ 11014/ NES/ LC/ Rev-04/ 2011-2427, dated 30.04.11..

m) That being aggrieved with the Orders of both Appellate and Revisional authorities, the Petitioner filed this instant Writ Petition No. 12213(W) of 2011 before the Honble Calcutta High Court, challenging the impugned penalty of Removal from Service.

4. That the Petitioner in his Writ petition has tried to mislead this Honble Court with unsubstantiated averments, contention and misplaced allegation and it is thus pertinent to put before this Honble Court the facts while giving Para wise comments and traverse the various contentions and averments categorically and in seriatim.

5. That with regard to the first Para the averment of the Petitioner having locus standii in the instant case being the citizen of India is not a matter of dispute and the rest of his averment is necessarily borne out of his own misplaced notion and the Petitioner is put to strict proof of the same.

6. That Para two contains matters of record and need not be commented upon.

7. That the averments made in third Paragraph is misleading and an attempt to mask the slackness, negligence and dereliction of duty on the part of the Petitioner, a fact which is evident in form of theft which occurred during his watch time and day , i.e between 5.00P.M to 5.00A.M on the night of 19/ 20 of 2010.

8. That with regard to the contention raised in Para four of the Writ Petition, it is submitted that the suspension of the Petitioner was not a result of surmises and conjecture but as a result of contemplation of disciplinary

7 proceedings against the Petitioner as per as existing CISF Rules pertaining to such matters and also as a result of his omissions and commissions leading to perpetration of theft, reflecting his negligence and dereliction of duty.

9. That the contention raised in Para five regarding the purported Memorandum of Charges having been given to the Petitioner on 15.02.10 without application of mind and without sufficient grounds is vehemently denied. It is submitted that only after due deliberation and by weighing the evidence both oral and documentary, the Disciplinary Authority drew up definite articles of charge containing imputations of misconduct and enumerated relevant facts pointing finger at the Petitioners gross negligence, slackness and dereliction of duty and willful breach of trust in discharging of bona fide Government duty during his duty shift in the intervening night of 19/20/01/10. It is further submitted that a list of documents and witnesses by which each Article of Charge is proposed to be substantiated, was handed to the Petitioner to afford him reasonable opportunity to submit his written statement of defence. Thus the entire process written as above , by no stretch of imagination, could have been gone through, without due deliberation and application of mind.

10. That with regard to the averments made in Para six and Para seven are denied in toto and it is submitted that the documents which were requested by the Petitioner through letter dated 10.04.10 and not on 12.04.10 as mentioned in the said writ, from the enquiry officer, some were duly supplied to him and the documents which did not pertain to the Article of charge as given to the Petitioner, were asked to be perused and inspected through the EQ from B Coy office. The Photographs which were requested by the Petitioner had to be denied as its discloser would be detrimental to public interest and security reasons. The Petitioner was informed of the same vide letter dated 15.04.10. the said letter as annexed by the Petitioner itself speaks of the truth that at no time relevant document needed for preparing his defence was ever denied to the Petitioner and that he has falsely averred the same in the said Petition.

11. That Para eight contains averments which is a matter of record and need not be gone into details.

12. That the contentions of the Petitioner in Para nine is vehemently denied as it is the result of his own perceived notions and surmises in holding the actions of the Disciplinary authorities mechanical, which is in fact a very vague allegation and the action of the Enquiry officer as arbitrary and whimsical in proving the guilt of the Petitioner. It is submitted that the reply dated 15.03.10, submitted by the Petitioner, wherein he pleaded not guilty, did not contain any grounds which any prudent person could consider as facts or circumstances pointing towards his innocence. Thus the disciplinary committee after due consideration and deliberation instituted the inquiry against the Petitioner. The Presenting officer and the enquiry officer, as per the existing Rules and procedure as also following the tenets of Natural justice, gave full opportunity to the Petitioner to present his defence and cross- examine witnesses, supplied him with all the relevant documents to help him prepare his case and on the basis of the evidence collected and collated and after judicious application of mind only came to the cogent decision that the Petitioner was guilty of slackness, negligence and dereliction of duty.

13. That Para ten contains averments which is a matter of record and need not be gone into details. 14. That the contentions of the Petitioner in Para eleven has no basis and is denied in its entirety. None of the actions of the Disciplinary committee or the presenting officer or the enquiry officer were whimsical or arbitrary. Due notice, opportunity for cross-examination, supplying all relevant documents to the Petitioner and providing extended time to help him prepare and present ,his defence, due deliberation on the evidence collected and the detailed and reasoned order can in no way be construed as an whimsical and arbitrary and prejudged action and such contention and allegation by the Petitioner is nothing but an attempt to save his skin and the Petitioner is put to strict proof of the same.

15. That Para twelve contains averments which is a matter of record and need not be gone into details.

16. That the allegations as contained in Para thirteen is not understood and seems like an desperate attempt on the part of the Petitioner to prove his wrong , unjust and negligent actions beyond reproach and such baseless

9 allegation is totally denied. The detailed inquiry found the Petitioners guilt as proven and since in his Appeal the Petitioner could not present any facts or evidence to prove his innocence and relied on a customary proclamation of not guilty, his repetition that the entire comments of the Disciplinary authority was prepared behind his back is vague and denied. 17. That Para fourteen contains averments which is a matter of record and need not be gone into details. 18. That with reference to the contention and averments made in Para fifteen, it is submitted the all the charges leveled against the Petitioner was Proved, beyond an iota of doubt and the decision was arrived at on careful and judicious application of mind and following due procedure and on th basis of overwhelming documentary, oral and careful circumspection of circumstantial evidences held on th face of record. The offence committed by the Petitioner was found to be grave in nature and highly inconsistent to the faithful discharge of duties and prejudicial to the discipline of the Armed Forces. His actions were bereft of integrity, due diligence and trustworthy, the required criteria of an Forces personnel. The Revisional Authority, after taking into consideration and due deliberation of all the aspect of the case as presented before it, and after cogitating over the Prosecution and Defence version , upheld the findings of the Disciplinary authorities as being reasoned, speaking and sustainable in the eyes of law.

19. That the contention of the Petitioner in Para sixteen itself speaks of the unbiased efforts of the disciplinary authority in reaching its judicious decision and for which it had issued charges to other personnel connected to the incident only to glean and sieve the truth and apportion rightful blame as well as penalty according to the gravity of offence. The quantum of punishment differs with the gravity of offence and after due deliberation, the Petitioners offence was found to be of grave nature to attract the penalty of removal from service and the other personnel were also accorded penalty according to their role in the incident. Such judicious decision cannot be held as biased by the Petitioner since his offence was found to be grave in nature. Hence the contention is totally denied.

20. That the contention and averments of the Petitioner in Para seventeen is nothing but a figment of his imagination and as such is emphatically denied. The charges against the Petitioner have been proven without any ambiguity, in a duly conducted departmental enquiry as per Rules and laid down

10 procedures, following the principle of Natural Justice and Due Process of Law. The Disciplinary Authority awarded the Petitioner the penalty of dismissal from service on his proven act of misconduct, gross negligence, slackness and dereliction of duty, after duly discussing the facts in the final order and the same was upheld by the Appellate Authority and Revisional Authority in their reasoned and speaking orders which are sustainable in the eyes of law. 21. That the Petitioners dissatisfaction as presented in Para eighteen, is borne out of his incompetent and negligent act, and as such with reference to the allegations made in Ground No(i) to (xvi) taken therein I deny and dispute all such allegations as contained therein, as if set out, traversed and/or denied in seriatim. To avoid repetition and prolixity I am not dealing with the individual grounds taken in the paragraph under reply suffice it to say that the said grounds do not make out a case for setting aside and/or interfering with the said Order dated 30.04.2011 passed by Revisional Authority, which was issued in the interest of the Force and the public at large. I say that for the reasons stated elsewhere in this Affidavit, the said Writ application is liable to be dismissed as no case has been made out by the Petitioner warranting issuance of the orders as prayed for by him. 22. In the facts and circumstances of the instant case and in view of what have been stated in this Affidavit, as well as Petitioners recourse to Article 300 A of the Constitution of India, it is most respectfully prayed that the writ petitioner filed by the Petitioner may kindly be dismissed on this ground among other as brought out in the instant affidavit in opposition. 23. That the statements made in . and .. of the foregoing Affidavit are true to my knowledge, those contained in paragraph including all sub clauses thereunder and paragraphs .. and . thereof are true to my information derived from records which I verily believe to be true and those made in paragraph thereof are my humble submissions before this Honble Court. Prepared in my office Advocate The deponent is known to me Clerk to : Advocate Solemnly affirmed before me On this day of ., 2011. COMMISSIONER