Andhra Pradesh High Court - Amravati
M. Jayarama Krishna, vs The Union Of India, on 4 May, 2022
HON'BLE DR. JUSTICE K. MANMADHA RAO
WRIT PETITION No.25564 of 2013
ORDER :
This petition is filed under Article 226 of the Constitution of India for the following relief:-
"to issue WRIT OF MANDAMUS declaring the action of the 1st respondent in so far as imposing the punishment of Reduction of pay by four( 04) increments for a period of four(
04) years from the date of reinstatement in service with further direction that during the period of reduction he will not earn increments of pay and on expiry of this period the reduction will have the effect of postponing his future increments of pay and with further direction that the intervening period from the date of compulsory retirement from the service to the date of reinstatement into service is proposed to be treated as dies-
non for all purposes of service and further ordered that the service rendered by the petitioner prior to the compulsory retirement from service will have break in service provided petitioner not refunds all the pensionary benefits drawn by him along with prescribed rate of interest within one month from the date of receipt of this order along with penal interest at the prescribed rate @ 2% p.a will be charged in addition to normal rate of interest vide proceedings No.V11014/DOS /LR/Appl(MJK- SDSCS /13 dated 13.8.2013 is illegal, arbitrary, violative of Article 14 of the Constitution of India and consequently direct the respondents to fix the pay of the petitioner along with all arrears of salary including seniority promotion and all attendant benefits on par with his juniors and pass such other order or orders......."
2. Brief facts of the case are that the petitioner was appointed as CISF Constable on 9.4.1992 and since then he has been discharging his duties to the satisfaction of all the concerned. The petitioner, while working under the control of the 2nd respondent-The Commandant, CISF unit, Sriharikota, Nellore, in A-Shift from 0500 hours to 1300 hours on 7.7.2008 at S.P.P Area in B-Zone, Miss Eeswaramma D/o Sri Nallaiah 2 and Miss E.Krishnama, D/o Sri Papaiah who are the civilians working as Contract Labourers, were found moving suspiciously at Jungle, which is coming within the jurisdiction of B-Zone, as such the petitioner questioned them. But they did not answer properly as such he asked them to go away but they did not do so. A false report has been given by the above two women against the petitioner to the respondent who has initiated the disciplinary proceedings against the petitioner even though he has not competency to initiate the departmental action against the petitioner as it is civil police has the jurisdiction to deal with such type of alleged complaints.
It is further stated that the 2nd respondent has issued Charge Sheet No.V-15014/SHAR/ADM-III/DISC/MAJ- 3/08/1033, dated 28.7.2008 alleging that the petitioner has assaulted the above two women, which amounts to misconduct and appointed Sri Krishnaiah, the Assistant Commandant as Enquiry Officer to conduct enquiry and submit his report. It is further submitted that the 2nd respondent has amended the Charge Sheet dated 28.7.2008 and issued amended Charge Memorandum vide proceedings No.V-15014/SHAR/ADM- III/DISC/MAJ-3/08/1068 dated 01.08.2008. Though the 2nd respondent has no jurisdiction to issue charge sheet alleging incidents that are private in nature as per Section 18(2A) of the Central Industrial Security Force Act, 1968. , which reads as follows:
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"Notwithstanding anything contained in the Code of Criminal Procedure, 1973 the Central Government may invest the commandant with the powers of a Magistrate of any class for the purpose of inquiring into or trying any offence committed by an enrolled member of the Force and punishable under this Act, or any offence omitted by an enrolled member of the Force against the person or property of another member of the Force; Provided that:
i) When the Offender is on leave or absent from duty; or
ii) When the offence is not connected with the offender's duties as an enrolled member of the Force; or
iii) When it is a petty offence even if connected with the offender's duties as enrolled member of the Force; or
iv) When, for reasons to be recorded in writing, it is not practicable for the Commandant invested with the powers of a Magistrate to inquire into or try an offence."
The offence may, if the prescribed authority within the limits of whose jurisdiction the offence has been committed so requires, be inquired in not or tried by an ordinary criminal court having jurisdiction in the matter." It is submitted that the above rule and also taking into consideration of various judgments of the Supreme Court of India including a judgment of this Court in WP No.12066 of 1999, dated 4.9.2003 holding that the department has no jurisdiction to enquire into the incidents which are purely within the jurisdiction of Civil Police who can deal with such type of offences if any, under ordinary Criminal Jurisprudence. It is further submitted that though the 2nd respondent has no jurisdiction to enquire into the incidents that are private in nature more particularly when it is not related to the employees within the force, has passed compulsory retirement orders vide proceedings No.V-15014/SHAR/ADM- III/DISC/MAJ-03/2008/1877, dated 13.12.2008 is illegal and arbitrary. Challenging the same, the petitioner filed WP No.28274 of 2008 before this Court and during pendency of 4 the writ petition, the petitioner preferred an appeal to the 1st respondent-Union of India and the same was rejected confirming the 2nd respondent order dated 12.8.2010 which was further confirmed by the Revisional authority vide order dated 24.2.2011. subsequently, this Court vide order dated 15.07.2013 in WP No.28274 of 2008, held that "having regard to the facts and circumstances of the case, the impugned order dated 13.12.2008 is set aside and the matter is remanded back to the disciplinary authority with a direction to consider as to whether any other punishment other than compulsory retirement from service can be imposed on the petitioner."
Pursuant to the order of this Court, though the disciplinary authority is 2nd respondent, the 1st respondent taken up the matter and modified the order as "Reduction of pay by four increments for a period of four years from the date of reinstatement in service. It is further directed that during the period of reduction, he will not earn increments of pay and on expiry of this period, the reduction will have the effect of postponing his future increments of pay." In view of the above, requested to declare the impugned proceedings as illegal, arbitrary and issue a direction as stated supra.
3. Counter affidavit is filed by the respondents denying all the allegations made in the petition inter alia contended that the contention of the petitioner is untenable as the respondent being a disciplinary authority has initiated action against the petitioner under the power on authority under sub-section 2A 5 and 3 of Section 18 of CISF Act 1968 and nominate to conduct enquiry and charge memorandum was issued on the basis of statement of the witnesses. It is also stated that the petitioner relied on a judgment of this Court in WP No.12066 of 1999 however the case in respect of the petitioner is not similar to the above writ petition. The incident happened in this Case during the duty hours of the petitioner and within the premises of the establishment i.e., work place which is prohibited place where only authorized personnel are allowed to enter inside the plant. Since the petitioner was involved in misconduct and indiscipline activities with two lady labourers during his duty hours, the 2nd respondent being a disciplinary authority is well empowered under Section 18 of CISF Act 1968 to deal any enrolled member of the Force. After a detailed enquiry , the disciplinary authority, taking a lenient view considering his 16 years of service, passed final order on 13.12.2008 awarding him punishment of "Compulsory retirement from service with full pension and gratuity benefits for the qualifying service rendered in the department with immediate effect."
It is further submitted that in pursuance of the judgment dated 15.7.2013 in WP No.28724 of 2008, the matter was taken up with the higher authority. Accordingly, the higher formations directed the DIG/DOS Hqrs, Bangalore to implement the above order. Subsequently, the DIG/DOS had considered his case and commuted the original penalty awarded to the petitioner vide order dated 13.12.2008. 6
It is further stated that there was no specific direction given in the judgment dated 15.7.2013 in WP No.28724 of 2008 for treatment of intervening period from the date of compulsory retirement to date of reinstatement. As such, a proposal has been incorporated in the order dated 13.08.2013 issued by the DIG/CISF/DOS to regularize the period from the date of compulsory retirement to the date of reinstatement as Dies-Non as per rule-55 of CISF Rules, 2001. Moreover, the petitioner was given an opportunity to submit his representation against the proposal within 15 days from the date of reinstatement in service. But instead of preferring representation against the above proposal, the above proposal, he has straight away approached this Court which is highly objectionable.
4. Reply affidavit is filed by the petitioner inter alia contended that Section 18 2(A) of the CISF Act, 1968 is only applicable to the members of the posts and the Commandant has got power only to deal with the matters which relates to members of the Force and any offences if any committed against the member by the other member only, but in the present case the alleged offences relate to the private citizens who are not the members of the force. As such the Commandant has no power to enquire into the offences relate to the private citizens which is exclusively dealt by the Ordinary Criminal Courts. As such the impugned punishment order issued by the respondent is illegal and arbitrary and the punishment order is too excessive and disproportionate though 7 the High Court remanded the matter to impose minor punishment the department has imposed heavy punishments which is disproportionate to the alleged charge.
It is further submitted that the respondent themselves have released the pension benefits at the time of compulsory retirement which the petitioner has used for his family necessities and he is not having any amount to repay the said amount and it is harsh order imposed by the authority even without considering the submission made by the petitioner. He further stated that the respondents have not considered the Rule 55 of CISF Rules property and the hardship caused to the force member while ordering refund of the entire pensionary benefits to be repaid by the Force member who has utilized the said amount for his family necessities. It is further stated that there is no court order to refund the pensionary benefits for counting the past service for the purpose of pay fixation and other benefits. The petitioner being the poor ST Force member he has no source of livelihood except the job and now getting very low amount in view of denial of past service. Hence requests a direction as stated supra.
5. Heard Sri J.M. Naidu, learned counsel for the petitioner and Sri J.U.M.V. Prasad, learned Standing Counsel for Central Government appearing for the respondents.
6. Upon considering the submissions of both the learned counsels and upon perusing the entire oral and documentary evidence on record, this Court is the considered 8 opinion that the respondents have no jurisdiction to enquire into the complaint made by the complainant which is nothing to do with the CISF services and the Department ought not have enquired into such complaint, assuming to be the misconduct committed within the employment of the CISF section 18of the Act or any other law does not empower the respondents to enquire into such a complaint and came to the conclusion that the petitioner has committed gross immoral act and as such he deserves punishment of removal from the service. The very assumption of jurisdiction by the respondents is impressible and illegal. Thus the whole enquiry conducted and the punishment imposed by the respondents is without jurisdiction and as such the impugned order dated 13.12.2008 confirmed by the appellate authority dated 13.08.2013 is null and void and the same is liable to be quashed.
7. In view of the above findings, the impugned order dated 13.12.2008 compulsory retirement of the petitioner from the service and as confirmed by the appellate authority by order dated 13.08.2013 are set aside. Consequently, the respondents are directed to fix the pay of the petitioner along with all arrears of salary including seniority promotion and all attendant benefits on par with his juniors, within a period of eight (08) weeks from the date of receipt of a copy of this order.
8. Accordingly, the Writ Petition is allowed. There shall be no order as to costs.
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As a sequel, interlocutory applications, if any pending, shall stand closed.
______________________________ DR. K. MANMADHA RAO, J.
Date : 04-05-2022 Gvl 10 HON'BLE DR. JUSTICE K. MANMADHA RAO WRIT PETITION No.25564 of 2013 Date : 04-05-.2022 Gvl