Writ Petition No.8717 of 2013

6th August, 2014.

Petitioner Counsel: SANDEEP V. MARNE a/w., AANCHAL SINGHANIA
Respondent Counsel: Mr. VINOD JOSHI a/w. Ms. ASHA BHAMBWANI

Cases Cited:
U.P. State Road Transport Corporation Vs. Harish Chandra & Ors., 2007 LLR 618 [Para 28]
Employers, in relation to the Management of West Bokaro Colliery of M/s. TISCO Ltd. Vs. Concerned Workman, Ram Pravesh Singh, 2008(II) CLR 220 [Para 28]
M.V. Bijlani Vs. Union of India & Ors., (2006) 5 SCC 88 [Para 23,24,25]

JUDGMENT

Ravindra V. Ghuge, J. :- Heard. Rule. Rule made returnable forthwith and heard finally by the consent of the parties.

2. By this petition, the petitioner seeks to challenge the orders of punishment dated 10/04/2009 passed by the Disciplinary Authority, dated 08/07/2009 passed by the Appellate Authority and dated 25/09/2009 passed by the Revisional Authority.

3. The submissions of the petitioner can be summarized as follows :-

a) The petitioner participated in the direct recruitment selection process for the post of "Constable" initiated by the respondents in the year 1992.

b) By the appointment order dated 14/08/1992, the petitioner was appointed on the post of constable (GD).

c) In the year 2008, the petitioner was deployed at the Central Gate of the Jawaharlal Nehru Port Trust (hereinafter referred to as "JNPT").

d) A "Morcha" means a small bunker of 3 ft. x 3 ft. wherein a single armed constable is deployed in a standing position to guard the said location.

e) A Morcha is at the Central Gate of the JNPT.

f) The petitioner was on duty on 03/10/2008 during the period of 13.00 hours to 21.00 hours.

g) The Morcha at the gate of JNPT was being manned by the personnel of Central Industrial Security Force and Customs (hereinafter referred to as "CISFC").

h) On the said date, the petitioner was not deployed at the gate in-charge of security for checking the entry and exit of persons.

i) One Shri.R.P.Tiwari was Inspector, CISF at JNPT.

j) Shri.R.P.Tiwari had requested for a hand loan of Rs.20,000/- from the petitioner in the past and the petitioner was unable to extend the hand loan.

k) The inability to extend the hand loan by the petitioner was considered by Shri.Tiwari as a deliberate refusal by the petitioner and developed animosity towards him.

l) On 03/08/2010, when the petitioner was on duty, Shri.Tiwari approached the petitioner along with Mr.C.S.Negi-Sub- Inspector and directed him to physically check the petitioner.

m) At the time of frisking, the Mr.Tiwari, who was standing behind the petitioner, suddenly shouted that some money is lying near the right leg of the petitioner.

n) The petitioner flatly denied that the said money belonged to him.

o) Shri.Tiwari handed over the money to Shri.Negi and directed him to prepare a seizure memorandum.

p) The petitioner was served with a charge-sheet dated 19/10/2008 alleging a solitary charge against him that on 03/10/2008, while being frisked at the Morcha, Shri.Tiwari saw the petitioner counting some money and therefore directed Shri.Negi to search the petitioner. While opening the petitioner's belt, some currency notes fell down near his right leg and the said amount was to the tune of Rs.500/-. The charge, therefore, levelled upon the petitioner was of carrying Indian currency more than Rs.20/- which was in violation of Office Order dated 23/08/2007.

q) A Disciplinary Enquiry was conducted against the petitioner and the charge of carrying an amount more than Rs.20/- on his person was proved.

r) Several objections were raised by the petitioner in the Enquiry which indicate violation of principles of natural justice in conducting the disciplinary proceedings.

s) The petitioner's consistent stand was that the amount of Rs. 500/- did not belong to him and Shri.Tiwari had implicated the petitioner due to antipathy towards him by dropping the currency notes behind his right leg.

t) The Enquiry Officer held the petitioner guilty and supplied him his report along with his letter dated 17/03/2009.

u) The petitioner was held guilty not only of the charge of carrying more money on his person, but that the said amount was illegally earned by the petitioner while performing his duty.

v) The petitioner's statement in defence at the end of the enquiry was not recorded.

w) The charge of illegal gratification which was held to be proved against the petitioner in the enquiry, was never levelled upon the petitioner.

x) The respondent No.4-Disciplinary Authority held the petitioner guilty and passed an order dated 10/04/2009 imposing the punishment of "removal from service".

y) The petitioner preferred an appeal dated 20/04/2009 to the respondent No.3-Appellate Authority.

z) By an order dated 08/07/2009, the Appellate Authority replaced the punishment of "removal from service" with the punishment of "compulsory retirement" with a direction that the petitioner will be entitled to full pension.

aa) The petitioner preferred a revision petition dated 12/08/2009 before the respondent No.2-Revisional Authority.

ab) By an order dated 25/09/2009, the Revisional Authority without following the procedure laid down in the Rules while hearing a Revision Petition, rejected the petitioner's petition.

ac) Since the petitioner had shifted to his home town-Rave, Madhya Pradesh, he challenged the impugned three orders before the Honourable Madhya Pradesh High Court. The said petition came to be rejected on the ground that the cause of action could be assailed before the Bombay High Court and not before the Madhya Pradesh.

ad) The petitioner contends that a charge of minor and technical character of carrying more money than permitted on his person was levelled upon the petitioner, whereas the Enquiry Officer concluded that the petitioner was guilty of having illegally earned the money while on duty.

ae) When a charge of violation of a Circular was levelled upon the petitioner, he could not be held guilty of a charge (illegal gratification) without the same having been levelled upon him in the charge-sheet.

af) Paragraph No.15 of affidavit-in-reply filed on behalf of the respondent Nos.1 to 4 indicates that the petitioner has been found guilty of illegal gratification.

ag) Though the charge of carrying more money has been proved, the charge of illegal gratification could not have been gone into, much less held to be proved against the petitioner when there was no whisper as regards the said charge in the charge-sheet.

ah) The impugned order of punishment is shockingly disproportionate to the seriousness and the gravity of the misconduct of carrying excess money on his person by the petitioner, assuming that the said money belonged to him.

ai) It was, therefore, prayed that the impugned orders be quashed and set aside and the petitioner be reinstated in service with continuity and back wages.

4. The respondents have drawn our attention to the affidavit-in-reply filed on their behalf. The submissions of the learned advocate on behalf of the respondents can be summarized as follows :-

a) The JNPT is a big Port situated in Navi Mumbai, District Raigad.

b) Huge containers make entry and exit on daily basis from the said Port.

c) Possibility of indulgence in illegal gratification from container drivers by the CISF personnel on duty cannot be ruled out.

d) An Office Order bearing No.3239 dated 23/8/2007 was circulated in the Unit whereby the CISF personnel on duty were allowed to keep only Rs.20/- on their person as pocket money (earlier it was Rs.10/-)

e) On 03/10/2008, a surprise check was conducted by Shri.Tiwari along with Shri.Negi and a sum of Rs.500/- was found with the petitioner.

f) Since by a preliminary enquiry, the act of illegal gratification was prima facie established against the petitioner, a chargesheet under Rule 36 of the CISF Rules, 2001 was served upon the petitioner.

g) It is admitted that the charge of illegal gratification was not levelled upon the petitioner in the charge-sheet.

h) The charge of illegal gratification and carrying excess money on the person was held proved in the enquiry.

i) Since the misconduct proved was of a grave and serious nature, the petitioner was awarded the punishment of "removal from service" by an order dated 10/04/2009.

j) By an order dated 08/07/2009, his appeal was allowed keeping in view his unblemished 16 years of service and the punishment was reduced to "compulsory retirement" with full pensionary benefits.

k) Surprise check of the CISF constables is commonly resorted to by the respondents since it is a sensitive installation.

l) Illegal gratification leads to a serious security breach by which unauthorized persons are allowed to enter.

m) The sum of Rs.500/- found with the petitioner can only be by way of illegal gratification as he had declared in the register by putting his signature that he carried only Rs.20/- with him.

n) The Departmental Enquiry was conducted in a fair and appropriate manner.

o) Shri.Tiwari had no animosity towards the petitioner.

p) Shri.Negi has admitted in the enquiry that bundle of notes was not found in the pouch of the petitioner but were seen lying on the ground near his leg.

q) The money was found on the ground since the petitioner was asked to loosen the belt of his trouser after which the bundle of rupees fell down from his trouser.

r) Shri.C.S.Negi had not seen the bundle of notes falling on the ground from inside the trousers of the petitioner.

s) Shri.Tiwari had lifted the bundle of notes and handed over them to Mr.Negi.

t) The punishment awarded to the petitioner is commensurate to the gravity of the charge proved against the petitioner.

u) In order to curb illegal gratification and causing of security breach at sensitive installation, the punishment awarded to the petitioner is just, fair and proper.

v) No leniency deserves to be shown towards the petitioner as it would amount to misplaced sympathy.

w) If the punishment awarded to the petitioner is set aside, it would send a wrong signal to the other CISF personnel which would seriously affect the strict discipline maintained in the CISF.

x) The punishment of "compulsory retirement" was in itself a kind act on the part of the respondents qua the petitioner since he had a clean and unblemished past service record of 16 years.

y) Another constable namely Divakar Behra was also awarded a similar punishment which he has challenged in Writ Petition No. 19248 of 2010 before the Orissa High Court at Cuttack and the same is still pending.

z) CISF is a part of Central Armed Police Force (CAPF) entrusted with the responsibility of protecting and securing hyper sensitive installations like Airports, Atomic Energy Plants, Ports etc.

aa) The petition filed by the petitioner be, therefore, dismissed.

5. Having heard the learned advocates for the respective sides at length, we have gone through the petition paper book with their assistance.

6. At the very outset, we wish to indicate that we are conscious of the fact that the CISF is constituted mainly and primarily for the protection and security of sensitive and highly sensitive installations. We wish to further indicate that while dealing with this case, we have not, even for a single moment, compared or equated the CISF and the case of the petitioner with any given case of an employee in the public or private sector undertaking.

7. The CISF was brought into existence by the Act titled as, "Central Industrial Security Force Act, 1968" (hereinafter referred to as, "CISF Act"). The preamble of the Act states that it is an Act to provide for the constitution and regulation of an armed force of the Union for the better protection and security of industrial undertakings owned by the Central Government, certain other industrial undertakings, employees of all such undertaking and to provide technical consultancy services to industrial establishments in the private sector and for matters connected therewith.

8. The security arrangements of important industrial undertaking in the public sector were being handled by the Watch and Ward staff of the organisation concerned. The staff of the Watch and Ward were generally engaged in guarding the entrances or the perimeter of the industrial undertaking and in preventing entries of unauthorised persons. The Watch and Ward staff became ineffective to discharge its responsibilities due to unplanned recruitment, inadequate supervision, training and discipline. It was considered necessary to strengthen the security arrangements in vital industrial undertakings. For that purpose it was proposed to constitute a centrally recruited, organised and trained Industrial Security Force for the watch and ward of industrial undertakings owned by the Central Government and to be deployed at the request and cost of managements, for security of industrial undertakings in public sector. To give effect to the proposal the Central Industrial Security Force bill was introduced in the Parliament.

9. We have gone through the statement of objects and reasons of the 1968 Act, which are as under :

STATEMENT OF OBJECTS AND REASONS

At present security arrangements at important industrial undertakings in the public sector are handled by the Watch and Ward staff of the organisation concerned The Watch and Ward staff is generally engaged in guarding the entrances or the perimeter of the industrial undertaking and in preventing entries of unauthorised persons. Unplanned recruitment, inadequate supervision, training and discipline have made the existing Watch and Ward staff ill-equipped to discharge its responsibilities. It is considered necessary to strengthen the security arrangements in vital industrial undertakings. For that purpose it is proposed to constitute a centrally recruited, organised and trained Industrial Security Force. The Force will primarily be responsible for the watch and ward of industrial undertakings owned by the Central Government and may be deployed at the request and cost of managements, for security duties of industrial undertakings in public sector.

2. The Bill is intended to give effect to these proposals.

3. The following are the principal features of the Bill:-

(a) The Central Industrial Security Force will be constituted and maintained primarily for the better protection and maintenance of industrial undertakings owned by the Central Government (clause 3 of the Bill).

(b) The Superintendence of the Force shall vest in the Central Government and subject thereto the administration of the Force shall vest in the Inspector-General of the Force who will be assisted by a Deputy Inspector-General, a Chief Security Officer and other Security Officers, etc. (clause 7 of the Bill).

(c) On a request being received from the Managing Director of an industrial undertaking in public sector, such number of officers and members of the Force as the Inspector-General may consider necessary may be deputed by the Inspector- General for the protection and security of that industrial undertaking and the cost to be incurred in connection with such officers and members while on deputation shall be borne by the industrial undertaking and not by the Government (clause 14 of the Bill).

(d) The duties of the officers and members of the Force have been spelt out in great detail (clause 10 of the Bill).

(e) Limited powers of arrest and search without warrant have been given to superior officer under specified circumstances (clause 11, 12 and 13 of the Bill).

(f) Other provisions of the Bill deal with matters relating to recruitment, training, supervision, discipline, removal, dismissal, etc., of the members of the Force.

10. We have gone through the charge-sheet which has been placed on record. Having considered it in details, we find that besides stating the incident of frisking, the respondents have alleged that the said amount of Rs.500/- was found on the person of the petitioner while on duty. It is clearly seen that the charge of illegal gratification has not been levelled upon the petitioner in the charge sheet.

11. The Office Order dated 23/08/2007 has been placed before us. By an earlier order dated 13/08/1998, the amount to be retained by an individual while on duty was Rs.10/- and by the Office Order dated 23/08/2007 it was increased to Rs.20/-. Contention of the petitioner is that it is merely an office order and cannot assume the trappings or sanctity of a standing order or a rule. Any violation of such an Office Order can only be construed to be an act of disobedience of an Office Order and would not amount to a serious misconduct warranting the punishment of removal/compulsory retirement from service.

12. The thrust of the respondents in view of the said Office Order is that a constable is permitted to carry only Rs.20/- during his entire duration of deployment on any given day and any amount beyond Rs. 20/- would be attracted with disciplinary action. This applies even to the Officer/Inspector in-charge of the said deployment. The respondents were however unable to state whether the Inspector-Shri.Tiwari who was in-charge of the deployment of the petitioner was accordingly held responsible or not under the said Office Order.

13. We have gone through the C.I.S.F.Act as well as the C.I.S.F.Rules, 2001 framed thereunder. The respondents have drawn our attention to Section 10 which prescribes duties of the members of the Force. Section 18 pertains to penalties for "neglect of duty". The respondents have relied upon Section 18(1) of the CISF Act, which reads as under :

"18. Penalties for neglect of duty, etc.-

(1) Without prejudice to the provisions contained in section 8, every member of the Force who shall be guilty of any violation of duty or willful breach or neglect of any Rule or regulations or lawful orders made by a Supervisory officer, or who shall withdraw from the duties of his office without permission, or who, being absent on leave, fails without reasonable cause, to report himself for duty on the expiration of the leave, or who engages himself without authority in any employment other than his duty as a member of the Force or who shall be guilty of cowardice, may be taken into Force custody and shall, on conviction, be punished with imprisonment for a term which may extend to one year."

14. The respondents therefore, contend that the petitioner could have been punished under Section 18, but a lenient view has been taken. We are not convinced that Section 18 could be attracted against the petitioner for disobeying an Office Order and that too of the nature of carrying extra money in his pocket.

15. Chapter 10- Penalties and Procedure under the CISF Rules 2001 (hereinafter referred to as the "Rules") provides for Disciplinary Authorities and nature of penalties. The said Chapter under the Rules also prescribes the procedure for imposing major penalties. Rule 36(19) (i) lays down the procedure to be followed by the Disciplinary Authority. Rule 36(19)(i) reads as under :

36. Procedure for imposing major penalties -

(19)(i) After the conclusion of the inquiry, a report shall be prepared and it shall contain -

(a) the article of charge and the statement of the imputations of misconduct or misbehaviour;

(b) the defence of the enrolled member in respect of each article of charge;

(c) an assessment of the evidence in respect of each article of charge;

(d) the findings on each article of charge and reasons thereof-

Explanation - If, in the opinion of the inquiring authority the proceedings of the inquiry establish any article of charge different from the original article of the charge, it may record its findings on such article of charge;

Provided that the findings on such article of charge shall not be recorded unless the enrolled member has either admitted the fact on which such article of charge is based or has had a reasonable opportunity of defending himself against such article of charge.

This explanation and the proviso, reproduced above, assumes importance in this case.

16. We find that the Enquiry Report is necessarily required to be prepared on the basis of Rule 36(19)(i) (a) to (d). If the Enquiring Authority finds that the proceedings in the enquiry have led to establishing any article of charge which is different from the original article of charge, it may record it's finding on such article of charge provided the same has been admitted by the enrolled member or that he had a reasonable opportunity of defending himself against such article of charge.

17. We do not find that it has emerged from the enquiry proceedings or the submissions of the litigating parties that the petitioner had admitted the charge of illegal gratification or that he had any reasonable opportunity of defending himself against such a charge. It is not the case of the respondents either that the article of charge of illegal gratification was taken up in the Enquiry by the Enquiring Authority and that the petitioner was given a sufficient opportunity of defending himself and thereafter the said charge has been proved under the Explanation and the Proviso.

18. We are of the view that a charge of illegal gratification is an extremely serious and a grave charge. We have no hesitation or doubt in our minds that such a charge if proved would necessarily attract the punishment of dismissal from service notwithstanding any length of clean and unblemished past service record of an employee. At the same time, the said charge being of an extremely grave and serious nature, necessarily requires an adequate opportunity to the employee to defend himself on the said charge.

19. The respondents affidavit-in-reply no where puts forth a case that the oral and documentary evidence to prove illegal gratification has been brought on record in the Enquiry. The affidavit-in-reply of the respondents deals with the evidence placed before the Enquiry Officer, in as much as, analysis of the evidence recorded through the witnesses of the respondents. It is clearly admitted that neither Mr.Negi saw the bundle of currency notes falling down from the trousers of the petitioner, nor is it the case of Mr.Tiwari that he saw the said bundle inside his trousers or falling from his trousers. It is stated that the said bundle of notes was found fallen on the ground near the right leg of the petitioner and Mr.Tiwari picked up the said bundle and handed it over to Mr.Negi stating that it was found near his leg. The entire oral and documentary evidence recorded in the Enquiry does not satisfy the requirement of the explanation and the proviso below Rule 36(19)(i)(a) to (d), which is reproduced verbatim herein above.

20. The main thrust of the petitioner's case is that neither was the charge of illegal gratification levelled against him, nor was it proved in the Enquiry. We are in agreement with the said submission of the petitioner. So also, the respondent has conceded that no such article of charge was mentioned in the charge-sheet.

21. We have, for our own satisfaction, considered the pleadings and the submissions of the rival parties especially in light of the explanation and the proviso referred to herein above only to assess as to whether the petitioner was given a sufficient opportunity of defending himself on the allegation of illegal gratification.

22. With due circumspection, we are of the considered view that there was no material before the Enquiry Officer who could have relied upon the explanation as well as the proviso reproduced above to arrive at a conclusion that the charge of illegal gratification is proved. The respondents are unable to convince us that even if the article was not mentioned in the charge-sheet, the said conclusion of illegal gratification was reasonably arrived at in the Enquiry on the basis of the evidence recorded in the enquiry. Though this is not the case of the respondents, we have ourselves gone into this aspect only to ensure that since the CISF deals with security of sensitive and highly sensitive installations, the petitioner constable should not be unduly benefited merely on the basis of a technical flaw in the charge-sheet.

23. In the case of M.V.Bijlani V/s. Union of India & Ors. reported at (2006) 5 Supreme Court Cases 88, the Honourable Apex Court dealing with a similar situation has observed in Paragraph Nos. 14,23,24, and 25 as follows :

"14. From a perusal of the Enquiry Report, it appears to us that the disciplinary authorities proceeded on a wrong premise. The Appellant was principally charged for non-maintenance of ACE-8 Register. He was not charged for theft or misappropriation of 4000 kgs. of telegraph copper wire or misutilization thereof. If he was to be proceeded against for misutilisation or misappropriation of the said amount of copper wire, it was necessary for the disciplinary authority to frame appropriate charges in that behalf. Charges were said to have been framed after receipt of a report from CBI (Anti Corruption Bureau). It was, therefore, expected that definite charges of misutilization/misappropriation of copper wire by the Appellant would have been framed. The Appellant, therefore, should have been charged for defalcation or misutilisation of the stores he had handled if he was to be departmentally proceeded against on that basis. The second charge shows that he had merely failed to supervise the working of the line. There was no charge that he failed to account for the copper wire over which he had physical control.

23. Evidently, the evidences recorded by the Enquiry Officer and inferences drawn by him were not commensurate with the charges. If it was a case of misutilisation or misappropriation, the Appellant should have been told thereabout specifically. Such a serious charge could not have been enquired without framing appropriate charges. The charges are otherwise vague. We have noticed herein before that the High Court also proceeded on the basis that the non-maintenance of diary amounted to misutilisation of copper wire.

24. Mr. Verma, when questioned, submitted that the Appellant might have utilised the same on unsanctioned works. If that be so, a specific charge to that effect should have been framed.

25. It is true that the jurisdiction of the court in judicial review is limited. Disciplinary proceedings, however, being quasi-criminal in nature, there should be some evidences to prove the charge. Although the charges in a departmental proceedings are not required to be proved like a criminal trial, i.e., beyond all reasonable doubts, we cannot lose sight of the fact that the Enquiry Officer performs a quasijudicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with."

24. Before us, the respondents contend that a preliminary enquiry showed that the petitioner has earned the said amount by illegal gratification. If that was the situation, then the respondents cannot be excused from not levelling the said charge in the charge-sheet, as has been observed by the Apex Court in paragraph 14 of the M.V. Bijlani case (supra).

25. In view of the facts emerging from this case and in the light of the observations of the Apex Court in the M.V. Bijlani case (supra), we are of the firm view that a grave and serious charge of illegal gratification could not have been held to be proved against the petitioner for which he has been removed from employment, without levelling a charge against him in the Enquiry, much less having proved it on the basis of the explanation and proviso under Rule 36(19)(i) as reproduced herein above.

26. The first impugned order of the Disciplinary Authority dated 10/04/2009 is based upon the findings of the Enquiry Officer which we find are unsustainable in law to the extent of the charge of illegal gratification. Similarly, the impugned order of the Appellate Authority dated 08/07/2009 merely takes into account the clean past service record of the petitioner. The impugned order of the Revisional Authority dated 25/09/2009 upholds the order of the Appellate Authority. When the very foundation of the punishment awarded to the petitioner is based on an unsubstantiated charge of illegal gratification and when the conclusions of the Enquiry Officer to that extent are being set aside by us, the impugned three orders are also consequentially required to be set aside.

27. Notwithstanding the above, we find from the Enquiry Officer's Report and the evidence on record that Rs.500/- were found on the ground near the right leg of the petitioner. In service jurisprudence, the probative value of the evidence to prove a charge need not be of a high degree as like the probative value of evidence required to prove criminal charges.

28. In order to arrive at these conclusions, we are aided by the conclusions of the Allahabad High Court in the case of U.P.State Road Transport Corporation v. Harish Chandra & Ors. reported at 2007 LLR 618. Departmental Enquiries in service jurisprudence are conceptually distinct and different from criminal proceedings. Preponderance on the principles of probabilities is the principle for proving charges in service jurisprudence. Similar are the observations of the Honourable Apex Court in the case of Employers, in relation to the Management of West Bokaro Colliery of M/s. TISCO Ltd. v. Concerned Workman, Ram Pravesh Singh reported at 2008(II) CLR 220 and Deputy Inspector-General of Police v. S. Samuthiram reported at 2013 (I) CLR 16 : [2013 ALL SCR 148]. It is on the basis of the evidence recorded in the Enquiry and in view of these settled principles of law, that we have come to a conclusion that the charge of keeping excess money has been proved against the petitioner.

29. Neither the CISF Act nor the Rules indicate or define which act would amount to a misconduct. Similarly, there are no such provisions available with the respondents or under the said Act and the Rules by which particular acts of employees could be defined as minor misconducts and major misconducts. So also, there is no material placed before us which would indicate that the respondents could award particular punishment for particular acts amounting to misconducts.

30. The above stated situation, therefore, leaves us to consider whether the Circular dated 23/08/2007 mandating the amount of money to be kept on the person of an individual, would amount to a Rule or law. Ex-facie an Office Order cannot be a substitute to a rule or service condition. However, keeping in view the object and purpose for which the CISF has been brought into existence, we are of the opinion that the Office Order needs to be given due importance.

31. While assessing the gravity and seriousness of violation of such an Office Order by a constable of the CISF, it would, in our view amount to not only disobedience of a lawful order of the employer, but would also tantamount to an act unacceptable to an employer and subversive of discipline while on duty. Nevertheless, we are not convinced that punishment of removal from service which amounts to civil death of an employee could be said to be commensurate to the seriousness of an act of disobeying an Office Order.

32. The petitioner has submitted across the bar that he has been out of employment from the date of his removal till this date for about five years and has been deprived of his salary. It is, therefore, submitted by the learned counsel for the petitioner that the petitioner is willing to forgo the entire back-wages and which can be said to be sufficient punishment to the petitioner for having violated an Office Order. We have considered the said submission of the petitioner and his clean past service record. We are of the view that the said statement of the petitioner deserves to be accepted.

33. In the result, this Writ Petition is partly allowed. The impugned orders 10/04/2009, 08/07/2009 and 25/09/2009 are quashed and set aside. The respondents are directed to reinstate the petitioner in service with continuity but without back wages. The amount of back-wages from the date of his compulsory retirement till the date of his reinstatement shall amount to a punishment to the petitioner for violation of the Office Order dated 23/08/2007. The petitioner shall accordingly be reinstated in service as directed above within a period of two months from today. Rule is accordingly made partly absolute with no order as to costs.

Petition partly allowed.