Kerala High Court
Jalwinder Singh vs The Commandant on 28 November, 1998
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE SMT. JUSTICE P.V.ASHA
MONDAY, THE 13TH DAY OF JUNE 2016/23RD JYAISHTA, 1938
WP(C).No. 12642 of 2013 (E)
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PETITIONER:
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JALWINDER SINGH,
S/O.CHARANJEET SINGH, AGED 40 YEARS,
RESIDENT OF VILLAGE BABA-BAKALA,
DISTRICT AMRITSAR(PUNJAB),
EX-CONSTABLE CISF, ANDRA PRADESH.
BY ADV. SRI.A.DINESH RAO
RESPONDENTS:
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1.THE COMMANDANT,
CENTRAL INDUSTRIAL SECURITY FORCE,
V S S C, THUMBA,TRIVANDRUM(KERALA)-695001.
2.THE DEPUTY INSPECTOR GENERAL(SZ),
CENTRAL INDUSTRIAL SECURITY FORCE,
MINISTRY OF HOME AFFAIRS,(D)BLOCK,
RAJAJI BHAVAN, BASANT NAGAR, CHENNAI-90.
3.SH.Y.P.SABHARWAL, ENQUIRY OFFICER,
DEPUTY COMMANDANT,
CENTRAL INDUSTRIAL SECURITY FORCE,
V S S C, THUMBA-KERALA-695001.
4.UNION OF INDIA THROUGH THE SECRETARY,
GOVERNMENT OF INDIA,
MINISTRY OF HOME AFFAIRS,
NEW DELHI-110001.
BY SRI.N.NAGARESH ASST.SOLICITOR GENERAL OF INDIA
BY SRI.SRI.T.SANJAY, CGC
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 13-06-2016, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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WP(C).No. 12642 of 2013 (E)
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APPENDIX
PETITIONER(S)' EXHIBITS:
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EXT.P1:- A TRUE COPY OF THE LETTER DTD 30/8/1997 ISSUED BY THE
2ND RESPONDENT.
EXT.P2:- A TRUE COPY OF MEMORANDUM DTD 10/10/1998 ISSUED BY THE
FIRST RESPONDENT.
EXT.P3:- A TRUE COPY OF THE WRITTEN STATEMENT OF DEFENCE
SUBMITTED BY THE PETITIOENR BEFORE THE FIRST
RESPONDENT.
EXT.P4:- A TRUE COPY OF THE ADDITIONAL ARTICLE OF CHARGE ISSUED
BY THE FIRST RESPONDENT AND DTD 23/10/1998.
EXT.P5:- A TRUE COPY OF THE ENQUIRY REPORT SUBMITTED BY THE
3RD RESPONDENT ENQUIRY OFFICER.
EXT.P6:- A TRUE COPY OF THE ORDER DTD 20/1/1999 ISSUED TO THE
PETITIONER BY THE FIRST RESPONDENT.
EXT.P7:- A TRUE COPY OF THE ORDER DTD 7/6/1999 ISSUED TO THE
PETITIENR BY THE 2ND RESPONDENT
EXT.P8:- A TRUE COPY OF THE ORDER IN CWP NO 2585/2000 AND OTHER
CONNECTED WRIT PETITIONS DTD 16TH JANUARY 2013.
EXT.P9:- A TRUE COPY OF THE LETTER DTD 7/10/1998.
EXT.P10:- A TRUE COPY OF STATEMENT OF THE PETITIONER AND THE
CROSS EXAMINATION BY THE ENQUIRY OFFICER.
EXT.P11:- A TRUE COPY OF THE COMPLAINT DTD 20/10/1998 ADDRESSED
TO THE FIRST RESPONDENT.
EXT.P12:- A TRUE COPY OF THE EXTRACT OF REGISTER OF SUMMARY
TRIALS HELD BEFORE MAGISTRATE OF JUDICIAL FIRST CLASS
- II, THIRUVANANTHAPURAM.
RESPONDENT(S)' EXHIBITS:
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EXT.R1(A): TRUE COPY OF THE STATEMENT DATED 28.11.1998.
EXT.R1(B): TRUE COPY OF THE REPORT OF THE CIRCLE INSPECTOR OF
POLICE, FORT POLICE STATION.
EXT.R1(C): TRUE COPY OF THE ORAL ENQUIRY PROCEEDINGS
DATED 23.11.98.
EXT.R1(D): TRUE COPY OF THE ENQUIRY NOTICE DATED 21.11.1998.
//TRUE COPY//
P.S. TO JUDGE
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P.V.ASHA, J.
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W.P(C) No.12642 of 2013-E
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Dated this the 13th day of June, 2016
JUDGMENT
The petitioner while working as a Constable in the Central Industrial Security Force (CISF), Thumba was initially placed under suspension. The disciplinary action which finally culminated in his termination from service, is under challenge in this Writ Petition.
2. After completion of an anti terrorist course, the petitioner joined VSSC, Thumba on 30.08.1997, on transfer. While working there, he was placed under suspension as per Ext.P2 order dated 10.10.1998. The incident leading to the suspension was that, a crime case was registered against him by Fort Police, Trivandrum, for causing public nuisance after consuming liquor on 4.10.1998 at 13.45 hours, leading to registration of a petty case against him in the Judicial First Class Magistrate-II, Trivandrum under Section 51A of the Kerala Police Act. As per Ext.P2 memo of charges issued on 10.10.1998, the petitioner was directed to submit his statement W.P(C) No.12642 of 2013-E 2 of defence. The charges alleged against him were the following:
"ARTICLE-I "No.913441185 Constable Jaiwinder Singh of VRC Sector of CISF Unit VSSC Thumba created public nuisance after consuming liquor on 04.10.98 at about 1345 hrs at East Fort, Trivandrum, which resulted into a petty case filed against him before JFMC-II, Trivandrum by Fort Police Station authorities, Trivandrum, thereby he tarnished the good reputation of the Force. This amounts to gross misconduct and indiscipline".
ARTICLE-II "No. 913441185 Constable Jaiwinder Singh did not report for `c' shift duty at 2100 hrs on 04.10.98. This amounts to gross misconduct".
ARTICLE-III "No.913441185 Constable Jaiwinder Singh is persistently maintaining bad record of service in that during his service he has been awarded two punishments for various misconduct and indiscipline activities."
3. The petitioner submitted his explanation Ext.P3, in which he stated that he had not caused public nuisance; his blood and urine were not examined by the doctors though he was produced before the Medical Officer and a certificate was furnished. It was further stated that, he was mistakenly implicated in the offence under Section 51A of the Kerala Police Act and taken to the Fort Police Station at 1.45 p.m on 4.10.1998. He was unable to report for duty since he was relieved from the station only at 21.30 p.m. Regarding the punishments earlier imposed, it was stated that those incidents related to a period of about 5 years back and minor penalty was imposed on him, at the initial stages of employment. W.P(C) No.12642 of 2013-E 3 Immediately thereafter, Ext.P4 memo was issued informing him the appointment of an enquiry officer under Rule 34 of the CISF Rules, 1969. The lists of witnesses and documents as well as the articles of charges in respect of the enquiry were forwarded to him. He was asked to submit his statement of defence and to inform whether he required a hearing in person.
4. In the statement of articles of charges framed against him, furnished along with Ext.P4 memo, there were the following additional charges Articles IV to VI:
"ARTICLE-IV No.913441185 constable Jaiwlnder Singh abused No.714290104 Insp/ExeP.P.M.Koya in unparliamentary and threatening language like "MATHARCHOD, KATUWA THUMKO AUR THUMARA FAMILY KO MAINE KHATAM KAR DOONGA DISMISS JANE SE PAHALE" in between 1335 hrs and 1415 hrs on 10.19.98 infront of his quarter No B-120 at CISF Housing Colony. This amounts to gross indiscipline misbehaviour and insubordination.
ARTICLE-V 'No.913441185 Constable Jaiwinder Singh threatened to kill No.714290104 Insp/Exe. P.P.M.Koya, with a knife infront of his quarter No.B-120 on 19.10.98 in between 1335 hrs and 1415 hrs at CISF Housing Colony. This amounts to gross indiscipline.
ARTICLE-VI No.913441185 Constable Jaiwinder Singh, on 20.10.98 at about 1145 hrs by pouring kerosene oil on him inside his family quarters No.A.67 at CISF Housing Colony created a scene of commotion, fear among residents of CISF Colony and other members of the Force, causing avoidable Administrative problems to the CISF authorities. This amounts to gross misconduct and indiscipline leading to tarnish the good reputation of CISF."W.P(C) No.12642 of 2013-E 4
5. The petitioner denied the charges in his explanation. Inquiry was conducted thereafter and enquiry officer submitted Ext.P5 report, finding the petitioner guilty of all the charges and imposed a penalty of removal from service w.e.f 20.01.1999. While imposing the penalty, the period of his suspension was regularised limiting the pay and allowance for the said period to the subsistence allowance already drawn.
6. The petitioner preferred an appeal against Ext.P6 and the appeal was rejected as per Ext.P7 order. Challenging these orders, the petitioner filed Civil Writ Petition No.2585/2000 before the High Court of Punjab and Haryana and Chandigarh. In Ext.P8 order dated 16.1.2013, High Court held that it did not have jurisdiction to entertain the writ petition and directed the registry to return the same to the petitioner for presentation before the proper court having territorial jurisdiction.
7. It is the case of the petitioner that the enquiry was conducted in violation of the procedural formalities. Cross examination conducted by the enquiry officer, according to the petitioner, nullified the enquiry as well as the punishments awarded to him. The petitioner relied on a series of judgments of this Court, according to which, the enquiry officer has to elicit W.P(C) No.12642 of 2013-E 5 facts from the delinquent, by putting leading questions. The learned counsel for the petitioner relied on the judgments of this Court in S.Krishnan Nair v. Divisional Supdt. S. Rly. (Kerala) [1973 (2) S.L.R 353 (para.11)], The Workmen, Madura Co. v. The Lab. Court [AIR 1966 Kerala (para.167)] & Sreedharan v. Chief Security Commissioner [1993 (3) ILR 138] with respect to the question by the enquiry officer, pointing out that the very attitude by the enquiry officer was not proper or legal and the entire enquiry got vitiated on account of the same.
8. The respondents have filed a counter affidavit denying the allegations raised by the petitioner. It is stated that, the enquiry was conducted observing all the procedural formalities and in accordance with the rules; the petitioner did not avail the opportunity for having the services of a Government servant to assist him; the acquittal from criminal court cannot absolve the petitioner from being proceeded against or punished under the departmental action; he was afforded an opportunity of hearing in its full spirit; the allegations against the enquiry officer are not correct; referring to the evidence adduced and the documents relied on, it was stated that the punishment awarded W.P(C) No.12642 of 2013-E 6 to the petitioner was just and proper; petitioner, who underwent anti terrorist course, was expected to maintain discipline without causing harm to the reputation of the CISF; it is stated that the petitioner created a scene in front of the premises of the quarters of CISF officials and he himself poured kerosene on his body and tried to commit suicide. The additional charges were levelled against him in those circumstances.
9. The petitioner submits that the enquiry officer furnished the report relying on the statement of the Circle Inspector of Police, even without examining him, thereby the petitioner was denied opportunity to cross examine him. He stated that the enquiry officer questioned him at the close of the enquiry putting leading questions in such a manner to elicit answers from him as if he was conducting a cross examination. The medical certificate relied on in the inquiry was only to the effect that he consumed alcohol and he was not found to be under the influence of alcohol. Referring to Ext.R1(a) which is the deposition of the Police constable, PW1, the petitioner pointed out that there was nothing in his deposition against the petitioner. He only deposed that there was no complaint against the petitioner from the public and that his behaviour was good. W.P(C) No.12642 of 2013-E 7 According to the petitioner, he along with another Police Constable was apprehended by the Police but he alone was proceeded with disciplinary action. The petitioner points out that there was no material for coming to the conclusion that the petitioner had created public nuisance. Moreover, it is his case that he was acquitted by the criminal court. Therefore, the charges levelled against him in respect of the public nuisance and registration of crime were proved to be incorrect. The petitioner submitted that the enquiry officer acted as a Prosecutor as well as Judge and the questions put to him revealed his bias against the petitioner, as held by this Court in several judgments. In paragraph 27 of Ext.P6 order, the disciplinary authority relied on the report of the Circle Inspector of Police, Fort Station and the certificate issued by the Medical officer, Government Hospital, Peroorkada to conclude that he created public nuisance. It is also pointed out that in para.27 of Ext.P6 order, the disciplinary authority refers to the cross examination done by the enquiry officer, which reads as follows:
"27. Xxxxx xxxxxx xxxxxxx xxxxxxx xxxxxx xxxxx xxxxxx xxxxxx xxxxxxx In the written statement of defence, during cross examination of the charged official by the Enquiry Officer to ascertain the real fact, he stated that he received a copy of medical examination report but the report W.P(C) No.12642 of 2013-E 8 was not in his name. xxxxx xxxxx xxxxxx xxxxxx."
10. The learned counsel for the respondents relied on the judgment of a Division Bench of this Court in Life Insurance Corporation of India and Ors. v. Jyotish Chandra Biswas [(2000)6 SCC 562] and argued that this Court is not justified in interfering with the impugned proceedings in exercise of its jurisdiction under Article 226. It is contended that the petitioner is a member of a disciplined force, who was subjected to punishment twice earlier; petitioner did have a statutory remedy of filing a revision petition as against the appellate order, but he did not choose to follow that remedy. Further it is stated that, it is on account of his own mistake, he happened to file a Writ Petition challenging the termination of his services; he filed this writ petition after the lapse of more than 13 years since the awarding of punishment; at this distance of time, there is no scope for consideration of a revision; the petitioner's acquittal by criminal court was only honourable and it was not a case of no evidence. Similarly it is not only on the basis of answers elicited from the petitioner by the enquiry officer after conducting cross examination, but also on the basis of the independent evidence in support of the charges alleged against the petitioner. W.P(C) No.12642 of 2013-E 9
11. Having considered the rival contentions, I find that there is no material to interfere with the departmental inquiry conducted. It is not a case where there is no evidence at all. Even assuming that the inquiry officer exceeded his limits by cross examining, there are materials on record relating to charges which are not touched by such questioning. Similarly the charges do not relate to the incident relating to the criminal case alone. The petitioner was a member of a disciplined force. The only question remains is whether the crime registered against him was also a factor in taking a decision as to the punishment of dismissal. The petitioner's service was terminated as early as in the year 1998. His appeal was also dismissed immediately thereafter. Unfortunately he happened to challenge the punishments before a court which did not have jurisdiction and it was only in 2013 that the case filed by him was returned to him for filing before the appropriate forum. This Writ Petition was therefore filed consequent to that. Therefore the petitioner cannot be faulted for this delay, though the respondents stoutly objected the very maintainability of this Writ Petition filed after 13 years of the impugned orders.
12. The contention raised by the learned counsel for the W.P(C) No.12642 of 2013-E 10 petitioner is that, the judgment of the criminal court acquitting him, was not considered by the disciplinary authority or the appellate authority. According to the petitioner, there was every possibility that a different punishment would have been awarded in case they had considered the same. It is also his contention that, the inquiry officer was in effect conducting a cross examination. Though I find substance in that contention, it cannot be said that the findings of guilt on all the charges are based on the answers elicited in the cross examination.
13. As rightly pointed out by Sri T.Sanjay, the learned CGSC, it is settled law by a catena of decisions of this Copurt and the Apex Court that, there is no bar in proceeding with departmental inquiry when criminal case is pending and that acquittal in a criminal case cannot absolve the delinquent from the charges levelled against him in the departmental inquiry, especially when the acquittal is honourable. {See: State of Rajasthan v. B.K.Meena [AIR 1997 SC 13]; Samar Bahadur Singh v. State of U.P & Ors [(2011) 9 SCC 94]; Avinash Sadashiv Bhosale v. Union of India [(2012) 13 SCC 142]; Jose Mathew v. KSIE Ltd. [1999(3) KLT 651]; Prakasan K.S v. State of Kerala [2012(2) KHC 581]; Baby.S v. Managing W.P(C) No.12642 of 2013-E 11 Director, KSRTC [ 2015(3) KLJ 365] : [ILR 2015(3) Ker 566]}. It is also true that, this is not a case of no evidence. It is also true that there are several other charges under which the petitioner is found guilty and it is a case where the petitioner was subjected to disciplinary action and punishment on earlier occasions and the petitioner is out of service on implementation of the punishments awarded in the year 1998. The jurisdiction of this Court to interfere with the departmental proeedings is very limited. (See Sreedharan.G v. Union of India & Ors. : 2016 (3) KHC 71). However, it is pointed out by the learned counsel for the petitioner that, neither the disciplinary authority nor the appellate authority had occasion to notice the fact that the petitioner was already acquitted in the criminal case.
In the above circumstances, I direct the 2nd respondent to consider the appeal filed by the petitioner afresh and to pass orders thereon, after affording an opportunity of hearing to the petitioner. Orders shall be passed within a period of three months from the date of receipt of a copy of this judgment. The appellate order Ext.P7 is set aside, for the limited purpose of re- consideration.
W.P(C) No.12642 of 2013-E 12
The Writ Petition is disposed of with the above directions.
Sd/-
(P.V.ASHA, JUDGE) rtr/