Sudip Ahluwalia JUDGMENT
Sudip Ahluwalia, J.
1. The Writ petitioner is a CIFS Constable lastly attached to the DMRC Unit at Delhi. The background of the matter is that on 10.10.2013 he was on duty at the Metro Station in Delhi. At that time some persons in plain clothes asked him about the location of the Railway Reservation Counter/Office. The petitioner allegedly acted in a rude aggressive manner with the person concerned who then revealed that he himself was a CISF Personnel. It was alleged that the petitioner assaulted that person without any reason or provocation, although the allegation was disputed by the petitioner. His contention on the other hand was that the other person in plain clothes raised his hand to assault the petitioner, and so he had to act in self-defence as he was not aware of the assailant's identity, and was himself carrying his Service weapon which had to be protected. Nevertheless, a scuffle did take place after which other Personnel of the CISF present near the spot separated them. The petitioner was thereafter produced before the Superior Officers. Disciplinary proceedings were then drawn up against him. The Charge against him was as follows-
"Force No. 061340060 Ct./In charge P.K. Modak (Susp), Yellow Line, CISF unit DMRC, Delhi had a fight with the Head Constable/In Charge A.C. Co. while in duty in the first shift at the south side of New Delhi Metro Station on 01.10.2013 at 09.58 hrs. The said force member exercised force during his posting at a public spot, which caused breach of peace at the Metro Station and tarnished the image of the force. Hence this act by Force No. 061340060 Ct./In charge P.K. Modak shows grave negligence towards duty, indiscipline, misconduct and bad conduct."
2. The concerned Enquiry Officer (Assistant Commandant/QRT) found the aforesaid charge against the petitioner proved, in his Enquiry Report submitted on 30.12.2013. On the basis of the Enquiry Report, the Disciplinary Authority i.e., Commandant/Ops, CISF Unit DMRC Delhi passed an Order for of dismissal of the petitioner from service after observing-
"10. The charge force member is liable for stringent punishment for his act because on 01.10.2013 while on duty at the New Delhi Metro Station on being asked the way to railway reservation by a force member working in green line on around 09.58 hrs. He did not reply properly and on being asked again he started arguing and openly assaulted HC/GD AC Coe with kicks and punches. If the charged force member was facing some hindrance during duty then he should have immediately informed the shift in-charge, metro control or higher officers but he did not do so and without self-discretion manhandled HC/GD AC Coe corroborated by PW Nos. 02, 03 & 04 and exhibits produced by them. The charged member belongs to a trained force, he should have used his discretion and patience not become suddenly agitated and started an assault. His behaviour has tarnished the image of the force. The act of the charged force member is of a serious nature because the metro is a very important institution and all classes of people commute all the time so he should have used his patience. To behave like this before the general public is contrary to discipline and directly impacts the image of the force. Hence I the undersigned on the basis of the documentary evidence and circumstantial evidence come to the conclusion that the act of the charged force member is condemnable because on seeing the CCTV footage it is clear that he has brutally assaulted PW 2 and constantly punched and kicked him. This is not expected from the member of a trained armed force. His act is unpardonable for which he is liable for stringent punishment. In exercise of the powers under schedule 1 of Rule 32 and Rule 34(ii) of the CISF Rules 2001 the undersigned am passing an order of removal from service with immediate effect against Force No. 061340060 Ct./GD P.K. Modak, Yellow Line, CISF Unit, DMRC Delhi as punishment."
3. The petitioner thereafter appealed against the above order of the Disciplinary Authority, being the DIG, CISF Unit, DMRC Delhi. But his appeal was rejected by the appellate authority who in his Order dated 13.05.2014 observed-
"4. On carefully scrutinizing the appeal petition, I have observed that the appellant has not brought out any new facts or material other than what has already been considered by the Disciplinary Authority. The appellant was afforded all reasonable opportunities to defend himself. Being a trained member of the force he should have proper knowledge about the location in and around of his duty place where he was deployed and his behavior should have been polite and courteous towards the metro passengers. He should have informed the matter to the shift I/C as well as Metro Control, if he had any difficulty, but he failed to maintain patience and peace in the public place and provoked himself, resulting which scuffle broke out and turned into manhandling and he used force on the other member of the force publicly. By doing so the appellant has tarnished the image of the force, which cannot be expected from a member of disciplined force where discipline and conduct are of paramount importance. Such attitude by the force member for manhandling during duty on public place is very serious in nature and not tolerated at any cost. The Appellant has thereby displayed scant regard, respect of his duties as a member of force. After due application of mind and an objective analysis of the evidences on record, I find that the Disciplinary Authority has rightly awarded the punishment in accordance with the provision to meet the ends of justice which is commensurate with the gravity of proven misconduct. Hence, I find no mitigating circumstances warranting different nuance in the order passed by the Disciplinary Authority. I have also not come across any procedural irregularity or miscarriage of justice."
4. The Writ Petition has firstly been opposed on behalf of the Respondent Authorities on the ground that this Court has no territorial jurisdiction since the occurrence in question admittedly take place in Delhi, the enquiry was held in Delhi where the petitioner was posted at the relevant time, and that the impugned orders passed by the Disciplinary Authority as well as the Appellate Authority were also passed in Delhi and that all the respondents themselves are based in Delhi.
5. However, this does not appear to be a tenable ground since admittedly an Order for dismissal from service becomes operative only after its service upon the concerned employee. In the present case such order of the Appellate Authority was served upon the petitioner by Post in his native village which is within the jurisdiction of this Court. The same therefore forms a part of the cause of action for filing of this writ petition in terms of Article 226(2) of the Constitution, and so there is no bar to the jurisdiction of this Court to entertain the same.
6. The next objection raised on behalf of the respondent is that the petitioner has failed to take recourse to the prescribed statutory remedy of Revision against the order of Appellate Authority in terms of Section 9(2)(A) of the CISF Act 1968.
7. In the case of "General Manager, Eastern Coalfields ltd. & Anr. Vs. Rajender Singh @ Rajendra Singh & Ors." cited in MANU/WB/0103/2003 : 2003(2) CHN, a Division Bench of this Court had observed-
"............14. We are first taking up the contention regarding alternative remedy. The position of law, as it stands, is that availability of alternative remedy for a cause of action is not an absolute bar to the Writ Court's entertaining a petition based thereon. Generally, the Writ Court declines to exercise its extraordinary discretionary power when an equally efficacious alternative remedy is provided by a statute. There can be no dispute that remedy provided to an aggrieved workman by the Industrial Disputes Act, 1947, is an efficacious remedy provided by a special statute. In the absence of compelling and extraordinary circumstances, the Writ Court should not allow a workman who has suffered a punishment in a disciplinary proceeding to by-pass the fora established under the said statute, because an adjudicatory system functioning under a legislation is never pushed to the back seat by it. There is no axiomatic proposition that by alleging violation of Articles 14 and 21 a workman within the meaning of the said statute becomes entitled to challenge straight-away in the Writ Court the steps and decisions taken in the disciplinary proceeding, and by-pass the regular forum. For the same purpose a workman whose employer is a 'State' within the meaning of Article 12 does not stand on a different footing, although for the purposes indicated by the Apex Court in the case of Bombay Telephone Canteen Employees' Association, Prabhadevi Telephone Exchange v. Union of India and Anr., seeking judicial review of his employer's decision he can move the Writ Court without first approaching the forum set up under the said statute. The writ Court's powers under Article 226 is not system destructive or supererogatory. A power of secondary judicial review is exercised by the Writ Court in cases of above-mentioned nature, while the power of primary judicial review invested in the fora established under the Industrial Disputes Act, 1947.
16. But, in the instant case, we are not inclined to hold in favour of the appellants on the question of availability of alternative remedy. The writ petition was entertained in the year 1995, and at this distance of time throwing out the writ petition on the ground of availability of alternative remedy to the respondent No. 1 will amount to sheer injustice. Since the existence of statutory alternative remedy does not altogether oust the Writ Court's jurisdiction to entertain a petition, it is always for the respondent in such petition to agitate, at the earliest opportunity, the question of availability of statutory alternative remedy. If the respondent chooses not to agitate the question with due diligence, and allows the writ petition to remain pending for years, in such case the respondent in the writ petition should not be allowed to take the plea at the stage of final hearing of the case. ........ Accordingly, we hold that, on the facts, the writ petition is not to be dismissed on the ground of availability of alternative remedy..........."
(Emphasis Added).
8. It is therefore clear that existence of an alternative remedy is not by itself a sufficient ground to dismiss a writ petition particularly if no objection on this count is taken at the very initial stage. It is verified from the record that the Writ Petition which was filed on 9th July, 2014 was admitted in presence of both sides on 02.03.2015 when no objection on this ground of existence of alternative remedy was taken. Even in the affidavit-in-opposition filed subsequently on 04.05.2015, no objection regarding existence of the alternative remedy of revision has been raised. Consequently, this Court is not inclined to reject the writ petition on this particular ground as well.
9. In the given circumstances what remains to be considered by the Court is whether the penalty in the form of dismissal from service of the petitioner is commensurate with his alleged acts of misconduct or not. For this purpose this Court on 22.03.2016 had called for production of the CCTV footage to see for itself the alleged misconduct imputed to the petitioner in a "Public Place" since admittedly otherwise no Public/Non-Official witness apart from CISF personnel themselves was examined during the course of enquiry.
10. The Court has subsequently seen that CCTV footage in which clearly the petitioner in uniform is seen to assault and manhandle the other person in plain clothes. The manner of such assault is certainly aggressive and there is little in the recording to indicate any particular provocation which could have justified such overtly rash and aggressive attitude of the petitioner. It is also seen that the occurrence was witnessed by any number of civilian passengers present on the Railway premises/Station. A lenient view might have been taken if the petitioner was an employee in any routine Civilian Department. But in the present case he is a trained member of a disciplined Force, and had assaulted the other CISF Personnel in plain clothes, while being in full uniform himself, in a public place. Consequently this Court is in agreement with the decision of the authorities that the petitioners behaviour has tarnished the image of the Force at large, on account of which, it cannot be said that the punishment of dismissal from service is unduly harsh in the present case. This Court is therefore not inclined to interfere with the decision of the Respondent Authorities, on account of which the Writ Petition is dismissed.
The Application being CAN 605 of 2016 also thus stands disposed off.
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