Andhra Pradesh High Court - Amravati
G.Prathapan, Nellore Dist. vs Sr. Commandant, C.I.S.F. Nellore Dist. ... on 2 December, 2019
THE HON'BLE SRI JUSTICE A.V.SESHA SAI
WRIT PETITION No.10783 OF 2007
ORDER:
In the present Writ Petition, challenge is to the order of dismissal dated 12.02.2007 passed by the 1st respondent as confirmed by the 2nd respondent, vide order dated 04.05.2007.
2. According to the petitioner, he was appointed as a Constable in the Central Industrial Security Force. The disciplinary authority issued a charge sheet on 02.08.2006, framing the following charge:
"Gross misconduct in that No.894460030 Constable G.Prathapam of CISF Unit, SDSC SHAR, Sriharikota while posted at CISF Unit, VSSC, Thumba during the month of June/July, 2004, connived with No.953210022 W/Cr. R.Prakash of CISF Unit, VSSC Thumba and one Shri K.P.Ravi, Brother-in-Law of W/Cr. R.Prakash, collected huge amount of money from the local residents of Karthikapally Taluk, Alleppy District of Kerala namely S/Shri Binu Kuttan, Praveen Kumar.P, Sanjeev.C, D.Sasidharan, Saleem.K and Gopa Kumar during the months between June, 2004 and November, 2004 for offering them job in CISF."
3. In response to the said charge sheet and the charge contained therein, the petitioner herein submitted his explanation and denied the charge. Thereafter, the disciplinary authority appointed the Assistant Commandant of CISF Unit, HCF, Hasan, Karnataka State, as Enquiry Officer on 19.09.2006. Thereafter, after completion of the enquiry, the Enquiry Officer submitted his report. The disciplinary authority, while enclosing a copy of the said enquiry report, called upon the petitioner herein to submit his objections/explanation and according 2 to the petitioner, he responded to the same. Eventually, the disciplinary authority, vide proceedings No.V-15014/SHAR/ADM.III/DISC/MA3- 05/392, dated 12.02.2007, dismissed the petitioner from service.
Subsequently, the same was confirmed by the appellate authority, vide proceedings dated 25.02.2007. In the above backdrop, the present Writ Petition came to be filed.
4. Heard Sri G.Ramesh Babu, learned counsel for the petitioner and Smt. S.Siva Kumari, learned Standing Counsel for the respondents, apart from perusing the material available before the Court.
5. Apart from the other contentions with regard to the mode and manner in which the enquiry was conducted, the principal contention advanced by the learned counsel for the petitioner is that the very initiation of the disciplinary proceedings against the petitioner herein does not have any legal sanction and is without jurisdiction and contrary to the provisions of Section 18 of the Central Industrial Security Force Act, 1968. In support of his submissions and contentions, learned counsel for the writ petitioner places reliance on the following judgments:
(1) Order of the composite High Court in W.P. No.12066 of 1999 dated 04.09.2003 in the case of T.Perumal v.
Commandant, Central Industrial Security Force, Rourkela Steel Plant, Rourkela, Orissa.
(2) Order of the Hon'ble Supreme Court in Civil Appeal No.2911 of 1981 dated 06.10.1983 in the case of Glaxo Laboratories (I) Ltd. v. Presiding Officer, Labour Court, Meerut and others reported in AIR 1984 SC 505. (3) Order of the Calcutta High Court in W.P. No.15028(W) of 2002 dated 10.03.2003 in the case of Badal Pal v. Union of India and others reported in 2003 SCC Online Cal. 89.
3(4) Order of the composite High Court in W.P. No.13221 of 1999 dated 07.07.2006 in the case of M.Gopalakrishna v. Divisional Security Commissioner, Railway Protection Force, S.C.Railway and two others reported in 2006(5) ALD 704.
6. On the contrary, it is strenuously contended by the learned Standing Counsel for the respondents Smt. S.Siva Kumari that the orders passed by the disciplinary and appellate authorities are perfectly justified and there are no legal infirmities in the said orders and in the absence of the same, this Writ Petition, filed under Article 226 of the Constitution of India, is also not maintainable. It is also the submission of the learned counsel that the enquiry initiated against the co-employee ended in dismissal from service and the said person by name R.Prakash, who was working as a Water Carrier in CISF approached the High Court of Kerala at Ernakulam by way of filing W.P.(C) No.28532 of 2007 and the Kerala High Court dismissed the said Writ Petition. A copy of the said order is placed on record.
7. In the above background, now the issue that emerges for consideration of this Court is, "Whether the order passed by the disciplinary authority, dismissing the petitioner from service, as confirmed in the appeal by the appellate authority, is sustainable and tenable, having regard to the provisions of Section 18 of the Central Industrial Security Force Act, 1968?"
8. In order to consider the issue on hand, it may be appropriate to refer to the provisions of Sections 8 and 18 of the Central Industrial Security Force Act, 1968 (for short, 'the Act'). The said provisions of law read as under:
4"Section 8: Dismissal, removal etc., of enrolled members of the Force:-
Subject to the provisions of article 311 of the Constitution and to such rules as the Central Government may make under this Act supervisory officer may -
(i) dismiss, remove, order of compulsory retirement or reduce in rank any enrolled member of the Force whom he thinks remiss or negligent in the discharge of his duty, or unfit for the same; or
(ii) award any one or more of the following punishments to any enrolled member of the Force who discharges his duty in a careless or negligent manner, or who by any act of his own renders himself unfit for the discharge thereof, namely :-
(a) fine to any amount not exceeding seven days pay or reduction in pay scale;
(b) drill, extra guard, fatigue or other duty.
(c) removal from any office of distinction or deprivation of any special emolument.
(d) withholding of increment of pay with or without cumulative effect.
(e) withholding of promotion.
(f) Censure.
Section 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 5 custody and shall, on conviction, be punished with imprisonment for a term which may extend to one year.
(2) Notwithstanding anything contained, in the Code of Criminal Procedure, 1973 (2 at 1974) an offence punished under this section shall be cognizable and non-
bail able.
(2A) 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 inquiry into or trying any offence committed by an enrolled member of the Force and punishable under this Act, or any offence committed by an enrolled member of the Force against 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 petty offence even if connected with the offender's duties as an enrolled member of the Force; or
(iv) when, for reason 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 into or tried by an ordinary Criminal Court having jurisdiction in the matter.
(3) Nothing contained in this section shall be construed to prevent any member of the Force from being prosecuted under any other law for any offence made punishable by that law, or for being liable under any such law to any other or higher penalty or punishment than is provided for such offence by this section.
6Provided that no person shall be punished twice for the same offence."
9. It is very much evident from a reading of Section 8 of the Act that the disciplinary authority is empowered to impose any of the penalties indicated in the said Section. If any employee is found guilty of any charges levelled against him/her, sub-section (2A) of Section 18 empowers the Central Government to confer on the Commandant the powers of a Magistrate of any class for the purpose of inquiry into or trying any offence committed by an enrolled member of the Force and punishable under the Act or any offence or committed by an enrolled member of the Force against person or property of another member of the Force.
10. In order to consider the issue raised in the present Writ Petition, it may be appropriate to refer to the judgments sought to be relied upon by the learned counsel for the petitioner. In the case of T.Perumal v. Commandant, Central Industrial Security Force, Rourkela Steel Plant, Rourkela, Orissa in W.P. No.12066 of 1999, one Mr. Jesai Naik filed a complaint, saying that the petitioner in the said Writ Petition had eloped with his wife and she was kept in a hotel and basing on the said complaint, the respondent assumed jurisdiction and removed the petitioner therein by way of an order dated 26.02.1998 and the same was confirmed in the appeal on 15.03.1998. Thereafter, the petitioner therein approached the composite High Court of Andhra Pradesh by way of filing the above said Writ Petition. Section 18 of the Act came up for consideration by the composite High Court. The composite High Court held as under:
7"On this question, the learned Counsel appearing on behalf of the respondents could not show any provision, which permits the respondents to deal with the private complaint. The learned Counsel while drawing attention of this Court to Clause-3 of Section 18 of the Act, submits that it shall be construed that the authorities can enquire into any matter/offence made punishable under any law. At this stage, it may be necessary to examine the provisions as noted supra. Clause-1, Clause-2 or Clause-2(a) of Section 18 of the Act does not enable the respondents to enquire into a private complaint made by a third party who is not a member of the C.I.S.F. service. Insofar as Clause-3 of Section 18 of the Act is concerned, what all it contemplates is that it does not prevent from imposing higher or other punishment notwithstanding anything contained in Section 18 of the Act and any other law for the time being in force. This does not mean that the respondents are empowered to conduct the enquiry into the complaint of this nature. The learned Counsel for the respondents further drawn my attention to the Central Civil Services (Conduct) Rules, 1964 and according to him these rules are also made applicable to the petitioner and submits that the misconduct is enumerated herein, which reads as under:
"4. If the act or conduct of the servant is so grossly immoral that all reasonable men will say that the employee cannot be trusted."
The above rule cannot be put above the law, which is applicable to CISF personnel under Section 18 of the C.I.S.F.Act, 1968. The parameters of misconduct, which the respondents can enquire into has been limited in Section 18 of the Act.
I am of the considered opinion that the respondents have no jurisdiction to enquire into the complaint made by one Sri Jesai Naik, which is nothing 8 to do with the C.I.S.F. services and the Department ought not to have enquired into such a complaint, assuming to be the misconduct committed within the employment of the C.I.S.F. Section 18 of 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 impermissible and illegal. Thus the whole enquiry conducted and the punishment imposed by the respondents is without jurisdiction and as such impugned order dated 26-2-1998 dismissing the petitioner from service as confirmed by the Appellate Authority is null and void and the same is liable to be quashed.
In view of the above findings, the impugned order dated 26-2-1998 removing the petitioner from service and as confirmed by the Appellate Authority by orders dated 15-3-1998 are set aside and there is no necessity to go into the other aspects of the matter raised by the petitioner in the writ affidavit i.e., that he was not permitted to cross-examine the witnesses, the witnesses were not examined as required by him and other aspects so as to evaluate the sufficiency of the evidence before the enquiry officer.
For all the above reasons, the writ petition is allowed. Petitioner is entitled for reinstatement with continuity of service, full back wages and other attendant benefits, such as, seniority, promotion, etc. No costs."
11. In the case of Glaxo Laboratories (I) Ltd. v. Presiding Officer, Labour Court, Meerut and others reported in AIR 1984 SC 505, the Hon'ble Apex Court held that there would be no reason for departing 9 from the well-established canon of construction that penal provisions must receive strict construction and such provision cannot be left the vagaries of the management.
12. When a similar situation came up before the Calcutta High Court in the case of Badal Pal v. Union of India and others reported in 2003 SCC Online Cal 89 in W.P. No.15028(W) of 2002 at paragraphs 13, 14, 16 and 19, the Calcutta High Court held as under:
"13. The allegations made against the petitioner being an offence of abduction with the intention of sexual intercourse with the wife of another member of the Force do not come within the purview of section 18 and it is not in dispute that the respondents have not taken recourse to section 18 for punishing the petitioner for committing such offence.
14. Section 8 of the Act gives power to the Supervisory Officer to dismiss an enrolled member of the Force whom he thinks remiss or negligent in discharge of his duty or unfit for the same. The present case is not one of remissness or negligence in the discharge of the duties of the petitioner mentioned in Section 10 of the Act. The petitioner however, can be declared unfit for the duty if he is found guilty of charge resulting in conviction. Therefore, so long the petitioner is not found to be so guilty by the competent Court, the Supervisory Officer cannot consider whether any penalty should be imposed against the petitioner on such ground.
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16. Therefore, so long the petitioner has not faced trial before the criminal Court leading to conviction, the supervisory officer could not even consider whether any action should be taken against the petitioner in terms of section 8 of the Act.
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19. I thus find that on the face of materials on record the respondents/authorities totally acted without jurisdiction in probing the allegation of "abduction with the intention of committing sexual intercourse with the wife of another member of the Force" which is not connected with the petitioner's duties enumerated in Section 10 of the Act. The order passed by the respondents/authorities being without jurisdiction I set aside the order of dismissal and direct the respondent to reinstate him within a month with full benefits of the service. Therefore, this is a case where there is no necessity of giving direction for filing affidavits and this case is disposed on the pure question of law mentioned above."
13. In the case of G.D.Paul v. Union of India and others reported in 2008 SCC Online Cal 788, a Division Bench of the Karnataka High Court, at paragraphs-25 to 28 held as under:
"25. The question squarely raised is whether Badal Pal is good law in that it did not take into account the Harish Chandra dictum. For, if Badal Pal is considered to lay down the correct position at law, the facts in the present case bearing verisimilitude with the facts obtaining in that case would prompt a similar result, at least as far as the first charge is concerned. The ratio in the Badal Pal judgment is that the CISF would not have the authority to initiate disciplinary proceedings in respect of a criminal charge committed outside the scope of duty till such time that a conviction resulted in the criminal proceedings. It must be appreciated here that the first charge, even if taken at face value and against the appellant, reveals the following features: that he absented himself from duty or a function akin to duty; that he travelled to the rented accommodation of a fellow 11 employee; and, that he attempted to outrage the modesty of such fellow employee's wife.
26. The rented accommodation was not within the CISF precincts. The primary charge, therefore, was his absence without excuse which is also the substance of the fourth charge. As to whether a member of a force committing a crime beyond the geographical limits of the area under the jurisdiction of the force in course of his absence from duty without excuse can be proceeded against departmentally, is the moot point. What is important to the force is the unexplained absence of the employee from duty. It seems that it would be irrelevant to the force as to whether during such unexplained absence the member of the force committed a petty theft or any grave offence or even murder, unless there is a conviction upon a criminal trial that would make the conduct relevant for the purpose of the discipline of the force. To hold otherwise would be absurd and empower the employer in such a case with draconian powers to control the movement and conduct of an employee as an extra-judicial authority not recognised by law. It would be different if the offence were committed in course of the duty or, possibly, even when a criminal offence is committed within the territorial jurisdiction of the force or the immediate vicinity of the field of duty. But to suggest that the force would have all pervasive control over the body and soul of its members when they are off duty and not within the territorial authority of the force, would be the recognition of an utterly undesirable bondage.
27. The head constable here was charged on the first count of having committed a dastardly act and grievously would he have had to pay for it, but only upon a conviction by due process of law. The expression, "unfit for the same" after the disjunctive "or" in the relevant 12 clause of section 8 of the CISF Act implies unfit for duty otherwise than in course of duty but cannot be given the enlarged scope of authorising the department to launch disciplinary proceedings against a member of the force for a perceived criminal act committed beyond the scope of his duty and outside the territorial control of the force. The situations envisaged under section 11 of the CISF Act would not apply in the present case and such provision is, in any event, only limited to arrest without warrant. Section 13 of the CISF Act mandates that the member of the force arrested under the Act would be needed to be taken to the nearest police station together with a report of the circumstances occasioning the arrest. Section 18 of the Act is concerned with neglect of duty and sub-section (1) thereof does not encompass within its fold a matter of the nature reflected in the first charge here. In the Harish Chandra case the charge against the sub-inspector was that he was negligent in his duty in failing to register complaints or process or pursue the same. The dictum in that judgment would not cover an offence committed beyond the scope of duty and outside the area of the force. It is the Badal Pal principle that is applicable in respect of the first charge in the instant case and, with respect, the Badal Pal ruling is the apt reading of the scope of authority of the force in such a case.
28. The legal fiction found in section 15(1) of the CISF Act, if construed literally, may imply that the Code of Criminal Procedure may not apply to members of the force and the mechanism for trial reflected elsewhere in the Act would govern them. But there are express provisions, as for instance in sections 13 & 18, in the CISF Act, that would preclude such a construction of section 15(1). The Punjab and Haryana High Court judgment is but an instance of the absurdity that would result on a simplistic and literal construction of such 13 provision. The appellant is right in his assertion that the first charge could never have been brought against him departmentally and all that followed the making of the first charge is a nullity."
14. In the instant case, the charge alleged is collection of money from the local residents of Karthikapally Taluk, Alleppy District of Kerala State. The principles laid down in the above referred judgments demonstrate, in vivid and clear terms, that Section 18 of the Act do not authorize the respondents to initiate the disciplinary enquiry against the petitioner. In order to press into service the said provision of law and to take disciplinary action, the complainant must be a co-employee and in the instant case, the same is admittedly absent. The principles laid down in the above referred judgments are squarely applicable to the case on hand. This Court does not find any valid reasons to take a divergent view already expressed in the above referred judgments having regard to the facts and circumstances of the case.
15. Accordingly, the Writ Petition is allowed and the order of dismissal passed by the 1st respondent, vide proceedings No.V-
15014/SHAR/ADM.III/DISC/MA3-05/06-392, dated 12.02.2007, as confirmed by the 2nd respondent, vide proceedings No.V-15015.CISF/ DOS/GP/07/2107, dated 04.05.2007, is hereby set aside, and consequently, the respondents are directed to reinstate the petitioner into service with all consequential benefits, including back wages, seniority and promotions. The said exercise shall be completed within a period of three months from the date of receipt of a copy of this order.
There shall be no order as to costs.
14Miscellaneous Petitions pending, if any, in this Writ Petition shall stand closed.
___________________ A.V.SESHA SAI, J Date: 02.12.2019 Note: LR copy to be marked B/O siva 15 THE HON'BLE SRI JUSTICE A.V.SESHA SAI WRIT PETITION No.10783 of 2007 Date: 02.12.2019 siva