Madras High Court
P. Kaveri vs The Group Commandant/Cisf on 9 April, 2012
Author: M.Jaichandren
Bench: M.Jaichandren
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 9.4.2012
CORAM
THE HON'BLE MR.JUSTICE M.JAICHANDREN
Writ Petition No.21047 of 2009
P. KAVERI [ PETITIONER ]
Vs
1 THE GROUP COMMANDANT/CISF
RAJAJI BHAVAN, BESANT NAGAR GROUP HEAD
QUARTERS, CHENNAI 90.
2 THE DEPUTY INSPECTOR GENERAL
CISF, SOUTH ZONE HEAD QUTS, CHENNAI.
3 THE INSPECTOR GENERAL
CISF AIR PORT SECTOR H QRS.,
OFFICE OF THE ADDL. DIRECTOR GENERAL AIRPORT SECTOR
CENTRAL INDUSTRIAL SECURITY FORCE
(MINISTRY OF HOME AFFAIRS)
BLOCK NO.13, CGO'S COMPLEX
LODHI ROAD, NEW DELHI.
4 THE UNION OF INDIA
REP BY ITS SECRETARY
MINISTRY OF HOME AFFAIRS
NEW DELHI. [ RESPONDENTS ]
This writ petition is filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus calling for the records relating to the compulsory retirement of the petitioner by the impugned order No.V-11014/APS/305/LS/2009/8957 dated 1.9.09 passed by the 3rd respondent herein, namely, the Inspector General of CISF, Air Port Sector H Qrs., Office of the Addl. Director General Airport Sector, Central Industrial Security Force (Ministry of Home Affairs), Block No.13, CGO Complex, Lodhi Road, New Delhi-3 by which the name of the petitioner was struck off from the rolls and quash the same and direct the respondents to re-instate the petitioner, P.Kaveri, in Service, with full backwages, attendant benefits and continuity of service.
For petitioner : Mr.S.S.Vasudevan
For respondents : Mr.C.P.R.Kamarraj CGC
for R1 to R3
O R D E R
Heard the learned counsels appearing on behalf of both sides.
2. This writ petition has been filed by the petitioner challenging the order of the third respondent, dated 1.9.2009, enhancing the penalty of reduction of pay, by one stage, for a period of 2 years, with increment cut, imposed on the petitioner, by the second respondent, to that of compulsory retirement from service.
3. It has been stated that the petitioner had joined the Tamil Nadu Police Force in the year, 1972. He had been selected, as a constable, in the Central Industrial Security Force, during the same year. Thereafter, he had been given various promotions, based on his seniority and on merits. He had served in a number of Central Government establishments, in various places. While so, on 27.1.2004, one Pushp Raj Singh, an Inspector in the Central Industrial Security Force, had abused the petitioner and had also assaulted him, without having proper reasons to do so. Pursuant to the said incident, the petitioner had been issued with a charge memo, dated 28.2.2004, issued by the first respondent, suspending the petitioner from service, pending enquiry.
4. It has been stated that a charge memo had also been issued, with five charges. The petitioner had submitted a reply, on 3.3.2004, denying the charges. However, a domestic enquiry had been ordered, by the first respondent. Based on the report of the domestic enquiry, the first respondent, who is the disciplinary authority, had imposed the punishment of compulsory retirement from service, on the petitioner, by his order, dated 16.7.2004. Challenging the said order, the petitioner had preferred an appeal, before the second respondent, under Rule 42 of the Central Industrial Security Force Rules, 2001, stating that the said order had been passed in violation of the provisions of law and the principles of natural justice, and the punishment imposed on the petitioner is grossly disproportionate in nature. The appeal filed by the petitioner had been allowed, partly, by the second respondent, by its order, dated 16.11.2004, modifying the penalty, from compulsory retirement to that of reduction in pay, by one stage, for a period of two years, and an increment cut, for the said period, and postponing of his future increment, on account of pay reduction.
5. It has also been stated that the petitioner had filed the revision petition challenging the said order, before the third respondent. The third respondent had issued a show cause notice, dated 19.12.2006, to the petitioner, asking the petitioner as to why the original punishment imposed on him should not be revived. The petitioner had submitted a reply, dated 23.1.2007. Thereafter, the petitioner had submitted a petition, dated 5.2.2007, signed on 10.2.2007, requesting the third respondent to permit the petitioner, to withdraw the revision petition filed by him. However, without considering the request made by the petitioner, the third respondent had passed an order, dated 21.3.2007, rejecting the request of the petitioner, for the withdrawal of the revision petition stating that there was no provision of law for such withdrawal. He had also enhanced the stoppage of increment, for two years, to that of compulsory retirement, with the right to pension, without giving proper reasons for such an order. Hence, the petitioner had filed the writ petition, in W.P.No.13902 of 2008, challenging the order of the third respondent, stating that no proper opportunity had been given to the petitioner to put forth his case, before the order had been passed by the third respondent.
6. It has been stated that, this Court, by its order, dated 11.6.2009, had set aside the order of the third respondent and had remitted the matter back to the third respondent, for fresh consideration. The third respondent had been directed to take up the revision petition, filed by the petitioner, and to consider all the contentions raised by him and to pass orders, afresh, after giving a reasonable opportunity to the petitioner, within a period of two months from the date of receipt of a copy of the said order. However, in spite of the said directions, the third respondent had passed the impugned order, dated 1.9.2009, confirming its earlier order, without giving proper reasons for the same. As such, the impugned order of the third respondent, dated 1.9.2009, is arbitrary, illegal and void.
7. In the counter affidavit filed on behalf of the respondents, the averments made by the petitioner, in his affidavit filed in support of the writ petition had been denied. It has been stated that the third respondent had followed the directions issued by this Court, by its order, dated 11.6.2009, made in W.P.No.13902 of 2008, and had passed the order, dated 1.9.2009. Therefore, the impugned order of the third respondent, dated 1.9.2009, is a speaking order, as all the points raised by the revision petitioner had been considered. The revision authority had differed from the appellate authority, only in the quantum of punishment. There were no divergent views between the disciplinary authority and the appellate authority, in respect of the evidence recorded and the findings arrived at during the enquiry proceedings.
8. It had also been stated that an authority, superior to the authority making the original order, is empowered under Rule 54 of the Central Industrial Security Force Rules, 2001, to revise any such order, either on his own motion or otherwise. However, there are no Rules permitting the withdrawal of a revision petition filed by the aggrieved party.
9. It had also been stated that Pushp Raj Singh, an Inspector in the Central Industrial Security Force, who was also involved in the incident, had been proceeded against, departmentally, as per the provisions laid down in Rule 36 of the Central Industrial Security Force Rules, 2001, and a major penalty had been imposed on him. The penalty imposed on the petitioner is commensurate with the gravity of the offence committed by him. The health condition of the petitioner cannot mitigate the penalty imposed on him. Therefore, the writ petition is liable to be dismissed, as it is devoid of merits.
10. The learned counsel for the petitioner had submitted that no opportunity had been given to the petitioner, by the third respondent, before the impugned order had been passed, on 1.9.2009, as directed by this Court, by its order, dated 11.6.2009, made in W.P.No.13902 of 2008. Further, it cannot be said that the petitioner does not have the right to withdraw the revision petition filed by him before the third respondent, as there is no Rule or Regulation prohibiting such withdrawal.
11. The learned counsel appearing for the petitioner had relied on the decision of the Division Bench of this Court in V.SHANMUGANATHAN Vs. THE GOVERNMENT OF INDIA REP. BY ITS UNDER SECRETARY TO THE GOVERNMENT OF INDIA, MINISTRY OF HOME AFFAIRS AND OTHERS (CDJ 2007 MHC 739), in support of his contention that the matter need not be remitted back to the third respondent, following the directions issued by this Court, by its earlier order, dated 11.6.2009, made in W.P.No.13902 of 2008, directing the third respondent to decide the matter and to pass orders, afresh, after giving an opportunity of hearing to the petitioner. Since, the third respondent had not followed the directions issued by this Court, by its order, dated 11.6.2009, made in W.P.No.13902 of 2008, this Court could exercise its extraordinary jurisdiction, under Article 226 of the Constitution of India, to set aside the impugned order of the revision authority, dated 1.9.2009, the third respondent herein, as it had been passed without giving an opportunity of hearing to the petitioner.
12. In view of the submissions made by the learned counsels appearing for the petitioner, as well as the respondents, and on a perusal of the records available, it is seen that the third respondent had passed the impugned order, dated 1.9.2009, without following the directions issued by this Court, by its order, dated 11.6.2009, made in W.P.No.13902 of 2008.
13. It is also noted that no proper opportunity had been given to the petitioner to put forth his case, before the impugned order, dated 1.9.2009, had been passed, by the third respondent. Further, the learned counsel for the third respondent had not been in a position to show any existence of any Rule or Regulation prohibiting the withdrawal of the revision petition filed by a member of the Force. Even though the petitioner had submitted a petition, dated 5.2.2007, signed on 10.2.2007, requesting the third respondent to permit the petitioner to withdraw the revision petition filed by him, such permission had not been granted by the third respondent stating that there is no provision of law permitting such withdrawal. Even otherwise, an order had been passed, without giving a proper opportunity of hearing to the persons concerned, contrary to the directions issued by this Court. Such an order cannot be sustained in the eye of law. As such, the impugned order of the third respondent, dated 1.9.2009, is liable to be set aside. Hence, it is set aside. It is made clear that it is open to the petitioner to move the appropriate authority, including the respondents herein, with regard to the monetary and other benefits that he may be entitled to, in view of the present order passed by this Court. The writ petition is ordered accordingly. No costs.
lan To:
1 THE GROUP COMMANDANT/CISF RAJAJI BHAVAN, BESANT NAGAR GROUP HEAD QUARTERS, CHENNAI 90.
2 THE DEPUTY INSPECTOR GENERAL CISF, SOUTH ZONE HEAD QUTS, CHENNAI.
3 THE INSPECTOR GENERAL CISF AIR PORT SECTOR H QRS., OFFICE OF THE ADDL. DIRECTOR GENERAL AIRPORT SECTOR CENTRAL INDUSTRIAL SECURITY FORCE (MINISTRY OF HOME AFFAIRS) BLOCK NO.13, CGO'S COMPLEX LODHI ROAD, NEW DELHI.
4 THE UNION OF INDIA REP BY ITS SECRETARY MINISTRY OF HOME AFFAIRS NEW DELHI