Madras High Court
K.B.K.Arjun Bhai vs Union Of India on 22 July, 2022
Author: S.M.Subramaniam
Bench: S.M.Subramaniam
WP No.2312 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 22-07-2022
CORAM
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
WP No.2312 of 2015
K.B.K.Arjun Bhai .. Petitioner
vs.
1.Union of India,
Represented by its Secretary to Government,
Department of Home Affairs,
New Delhi.
2.The Director General,
CISF Head Quarters,
No.13, C.G.O. Complex,
Lodhi Road,
New Delhi – 110 003.
3.The Inspector General,
CISF Head Quarters South Sector,
Chennai Port Trust Campus,
Near War Memorial,
Chennai – 600 009.
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WP No.2312 of 2015
4.The Deputy Inspector General,
CISF DAE Zonal Head Quarters,
Post : ECIL Hyderabad – 62,
District : Ranga Rao,
Andhra Pradesh – 500 062.
5.The Commandant,
CISF Unit BARC-TAPS Tarapur,
Post : Kudan, Teh: Palghar,
District: Thane, State:
Maharashtra – 401 502. .. Respondents
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 order passed by the third respondent dated
12.07.2013 in his order No.V-15012/WS/L&R/13-1140 and upheld the
order of the fourth respondent dated 06.02.2013 in his appellate order No.V-
V-15017/A-02/DAE/2013-700 and confirming the order passed by the fifth
respondent in his final order No.V-15014/CISF/BARC-TAPS/Disc/KBKAB
/36-1535 dated 02.04.2011 and to quash the same and direct the respondents
to reinstate the petitioner into the strength of the CISF as Constable/GD
with all monetary benefits and other service benefits.
For Petitioner : Mr.A.S.Mujibur Rahman
For Respondents : Mr.K.S.,Jeya Ganeshan,
Senior Central Government Standing
Counsel.
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WP No.2312 of 2015
ORDER
The punishment of removal from service confirmed by the Appellate Authority and the Revisional Authority, is under challenge in the present writ petition.
2. The writ petitioner joined as Constable in the Central Industrial Security Force [hereinafter referred to as the 'CISF', in short]. A charge memorandum under Rule 36 of the Central Industrial Security Force Rules, 2001 [hereinafter referred to as the 'CISF Rules', in short] was issued and five charges were framed against the writ petitioner. The writ petitioner has not submitted his explanation and therefore, the Disciplinary Authority ordered for an enquiry. The Enquiry Officer conducted an enquiry by affording an opportunity to the writ petitioner. The writ petitioner participated in the process of enquiry before the Enquiry Officer and a final enquiry report was submitted holding that the charges against the writ petitioner are held proved.
3. The findings of the Enquiry Officer were accepted by the 3/26 https://www.mhc.tn.gov.in/judis WP No.2312 of 2015 Disciplinary Authority and the punishment of removal from service was imposed. The appeal, admittedly, was filed by the father of the writ petitioner, which was not taken into consideration. As per Rule 48 of the CISF Rules, the aggrieved employee alone is entitled to file an appeal and therefore, the appeal filed through the father of the writ petitioner was rejected. Thereafter, the writ petitioner filed an appeal, which was entertained by the Authority and it was rejected not on merits but was rejected on the ground of delay in filing the appeal. However, the further revision filed by the writ petitioner was entertained by the Revisional Authority, namely, Inspector General of CISF, under Rule 54 of the CISF Rules, who in turn considered the revision on merits and rejected the same by confirming the order of the Disciplinary Authority.
4. The learned counsel for the petitioner mainly contended that the petitioner was not provided with an opportunity to submit his objections on the enquiry report. The allegations against the writ petitioner are minor in nature and therefore, imposing the major penalty of removal from service is disproportionate to the gravity of allegations. That apart, the appeal, filed 4/26 https://www.mhc.tn.gov.in/judis WP No.2312 of 2015 through the father of the writ petitioner, was not considered on merits but rejected on the ground of delay is perverse.
5. The learned counsel for the petitioner is of the opinion that even with reference to the allegations of unauthorised absence, the petitioner submitted sufficient records to establish that it was not intentional. When the unauthorised absence was due to certain genuine circumstances, the Authorities ought to have considered the same and a lenient view is to be adopted. Contrarily, the Disciplinary Authority imposed the major penalty of removal from service, which caused greater prejudice to the interest of the writ petitioner.
6. The learned counsel for the petitiner reiterated that the process of enquiry was not conducted and the relevant documents were not taken into consideration by the Enquiry Officer, which resulted in denial of opportunity as contemplated under the CISF Rules in force. For all these reasons, the present writ petition is to be considered. 5/26 https://www.mhc.tn.gov.in/judis WP No.2312 of 2015
7. The learned Senior Central Government Standing Counsel appearing on behal of the respondents objected the said contentions raised on behalf of the petitioner by stating that the procedures as contemplated under the CISF Rules are scrupulously followed in the case of the writ petitioner. A charge memorandum was issued, which was acknowledged by the writ petitioner and thereafter, during the preliminary enquiry, the writ petitioner admitted the charges. When the delinquent official admitted the charges during the preliminary enquiry, the same was taken into consideration and thereafter an enquiry was ordered. Even on the allegations, the petitioner has not submitted any written explanations of defence, since he has admitted the charges during the preliminary hearing before the Enquiry Officer. But when the charged official admitted the guilty before the preliminary Enquiry Officer, then there is no reason for the Authorities to provide any further opportunity to submit explanations on the charges, which was not submitted by the writ petitioner on receipt of the charge memorandum.
8. The Enquiry Officcer proceeded on the basis of the 6/26 https://www.mhc.tn.gov.in/judis WP No.2312 of 2015 documents and the evidences available on record. Though the petitioner participated even during the enquiry, he had not submitted any written explanation of defence. Thus, the Enquiry Officer arrived a conclusion that the charges against the writ petitioner are held proved. Based on the proved charges, the Disciplinary Authority imposed the punishment of removal from service.
9. The learned Senior Central Government Standing Counsel appearing on behalf of the respondents contended that the appeal was filed by the father of the writ petitioner, which was not in accordance with the CISF Rules. Thus the said appeal was not considered. However, the petitioner submitted an appeal. Thereafter it was considered and rejected on the ground of delay. The petitioner filed a revision petition, which was considered on merits by the Revisional Authority. Thus the opportunities as contemplated under the CISF Rules were given by the Authorities Competent and there is no infirmity as such in the matter of following the procedures under the CISF Rules.
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10. The learned Senior Central Government Standing Counsel appearing on behal of the respondents drew the attention of this Court with reference to the previous conduct of the writ petitioner and in fact, the petitioner suffered 16 punishments on earlier occasions, out of which one punishment is the major punishment. That being the case, the Authorities have made an over all assessments and the possibility of change of conduct by the writ petitioner and thereafter arrived a conclusion and imposed the major penalty of removal from service. Thu, the writ petition is to be rejected.
11. This Court is of the considered opinion that while exercising the powers of judicial review, the Court must restrict its review to determine whether :
(1) The rules of natural justice have been complied with;
(2) The finding of misconduct is based on some evidence;
(3) The statutory rules governing the conduct of disciplinary enquiry have been observed;
(4) Whether the findings of the Disciplinary Authority suffer 8/26 https://www.mhc.tn.gov.in/judis WP No.2312 of 2015 from perversity; and (5) The penalty is disproportionate to the proven misconduct.
12. In this context, the rules of natural justice have been followed by the respondents in the present case. The charge memorandum was issued, an opportunity to submit an explanation was provided to the writ petitioner, but he failed to avail the said opportunity by submitting the written statements of defence to the allegations. During the preliminary hearing, the writ petitioner admitted the charges before the Enquiry Officer. Once the guilt is admitted by the charged official, then, thereafter, the Enquiry Officer proceeded the enquiry based on the documents and the evidences available on record.
13. The writ petitioner participated in the process of enquiry. However, he failed to submit any written statement of defence during the preliminary hearing itself. Despite the fact that the petitioner admitted the guilt during the preliminary hearing, the Enquiry Officer proceeded with the enquiry and submitted his final report holding that the charges against the 9/26 https://www.mhc.tn.gov.in/judis WP No.2312 of 2015 writ petitioner are held proved. The enquiry report was communicated to the writ petitioner as per the CISF Rules.
14. On receipt of the enquiry report, the petitioner has not submitted further objections on the findings of the enquiry report and therefore, it is to be construed that the petitioner has admitted the findings in the enquiry report. The Disciplinary Authority, based on the enquiry report, imposed the penalty of removal from service. Though the Appellate Authority rejected the appeal on the ground of delay, the Revisional Authority considered the merits of the case. When the Revisioal Authority considered the grounds raised by the writ petitioner on merits, the same is also to be taken into account for the purpose of forming an opinion regarding the quantum of penalty imposed on the writ petitioner.
15. Looking into the nature of allegations, five charges were framed against the writ petitoner. In this context, it is relevant to consider the previous conduct of the writ petitioner.
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16. As far as the charges are concerned, the first charge is unauthorised absence for 13 days. The second charge is that the petitioner was found absent from Annual Firing Duty on 06.10.2010 without any prior intimation and permission from the Competent Authorities. The third charge is that he found sitting on a chair and reading a book during the duty hours when the writ petitioner was checked by the Inspector. The fourth charge is that he remained absent from his duty without any intimation and permission from the Competent Authorities on 28.09.2010. The fifth charge is that the 15 minor punishments and one major punishment was imposed on the writ petitioner on earlier occasion.
17. This Court is of the considered opinion that four charges if looked into independently, cannot be construed as grave warranting the major penalty of removal from service. However, such minor allegations togther and considering the previous conduct of the writ petitioner in the fifth charge that he suffered 16 punishments, out of which one major penalty, then the decision of the Authorities is to be tested in that angle. 11/26 https://www.mhc.tn.gov.in/judis WP No.2312 of 2015
18. If the first four charges alone framed against the writ petitioner and if the major penalty of removal from service is imposed, then the writ petitioner would have a better case for modification of punishment of removal from service as one that of the lesser punishment. However, the fifth charge is, undoubtedly, a serious concern, which is to be looked into by the Court.
19. Admittedly, the petitioner put in 11 years of service in the Central Industrial Security Force. In 11 years of service, the writ petitioner suffered 16 punishments, out of which one is major punishment. When the petitioner is a habitual offender and continue to committ such minor misconducts frequently, no doubt, it is a greatest concern to the Central Industrial Security Force. The Authorities Competent are duty bound to maintain high discipline in CISF. While doing so, if frequent misconducts are being committed by the personnel of the Central Industrial Security Force, then they are bound to view the same seriously. Therefore, Court cannot form an opinion with reference to the charges 1 to 4 alone. The fifth charge stating that the petitioner suffered 16 punishments in 11 years of 12/26 https://www.mhc.tn.gov.in/judis WP No.2312 of 2015 service, are to be considered as grave. Therefore, the Authorities Competent arrived a conclusion that there is no possibility of change of behaviour with the petitioner and accordingly, imposed the punishment of removal from service.
20. The power of judicial review by the High Court is to be exercised only to scrutinise the processes through which a decision is taken by the Competent Authorities in consonance with Statute and the Rules, but not the decision itself. Therefore, the processes through which the decision is taken alone is to be tested, while exercising the power of judicial review. The decision if it is in violation of the statutory rules, then also the High Court can interfere, but not otherwise.
21. In the present case, the respondents could establish that during the preliminary hearing of the enquiry, the petitioner admitted the charges. The said position is substantiated by confirming the fact that the petitioner has not submitted any written explanation of defence either to the charge memo or to the enquiry report. Therefore, the admission of the 13/26 https://www.mhc.tn.gov.in/judis WP No.2312 of 2015 charges by the petitioner is not disputed. When the delinquent official admitted the guilt during the preliminary hearing before the Enquiry Officer, there is no reason to continue the enquiry any further. In spite of that the Enquiry Officer continued the enquiry and submitted a report based on the materials and the evidences available on record. Thus in all respects, the procedures as contemplated were followed by affording an opportunity to the writ petitioner. The writ petitioner had not defended the allegations right from the beginning and even before the Enquiry Officer, he failed to defend the charges levelled against him. After submission of the report, the petitioner has not submitted any objections on the findings on the enquiry report and accepted the enquiry.
22. In the case of Union of India and others vs. Bishamber Das Dogra [(2009) 13 SCC 102], wherein the Hon'ble Supreme Court of India in paragraphs 18, 25, 26, 27 30, 33 and 34 held as under:-
“18. This Court in S.K. Sharma case [(1996) 3 SCC 364 : 1996 SCC (L&S) 717] held as under : (S.K. Sharma case [(1996) 3 SCC 14/26 https://www.mhc.tn.gov.in/judis WP No.2312 of 2015 364 : 1996 SCC (L&S) 717] , SCC p. 389, para
32) “32. … Justice means justice between both the parties. The interests of justice equally demand that the guilty should be punished and that technicalities and irregularities which do not occasion failure of justice are not allowed to defeat the ends of justice. Principles of natural justice are but the means to achieve the ends of justice. They cannot be perverted to achieve the very opposite end. That would be a counterproductive exercise.” (emphasis added) Similar view had been reiterated in S.K. Singh v. Central Bank of India [(1996) 6 SCC 415 : 1997 SCC (L&S) 39] and State of U.P. v. Harendra Arora [(2001) 6 SCC 392 :
2001 SCC (L&S) 959 : AIR 2001 SC 2319] .
25. In India Marine Service (P) Ltd. v. Workmen [AIR 1963 SC 528 : (1963) 3 SCR 575] this Court while considering a similar issue held as under : (AIR p. 529, para 6) “6. … It is true that the last sentence suggests that the past record of Bose has also 15/26 https://www.mhc.tn.gov.in/judis WP No.2312 of 2015 been taken into consideration. But it does not follow from this that that was the effective reason for dismissing him. The Managing Director having arrived at the conclusion that Bose's services must be terminated in the interest of discipline, he added one sentence to give additional weight to the decision already arrived at. Upon this view it would follow that the Tribunal was not competent to go behind the finding of the Managing Director and consider for itself the evidence adduced before him. The order of the Tribunal quashing the dismissal of Bose and directing his reinstatement is, therefore, set aside as being contrary to law.” (emphasis added)
26. Similarly in DG, RPF v. Ch. Sai Babu [(2003) 4 SCC 331 : 2003 SCC (L&S) 464] this Court held as under : (SCC p. 334, para 6) “6. … Normally, the punishment imposed by a disciplinary authority should not be disturbed by the High Court or a tribunal except in appropriate cases that too only after reaching a conclusion that the punishment imposed is grossly or shockingly disproportionate, after 16/26 https://www.mhc.tn.gov.in/judis WP No.2312 of 2015 examining all the relevant factors including the nature of charges proved against, the past conduct, penalty imposed earlier, the nature of duties assigned having due regard to their sensitiveness, exactness expected of and discipline required to be maintained, and the department/establishment in which the delinquent person concerned works.”(emphasis added)
27. In Bharat Forge Co. Ltd. v. Uttam Manohar Nakate [(2005) 2 SCC 489 : 2005 SCC (L&S) 298] this Court reiterated the similar view observing as under : (SCC p. 499, para 32) “32. … In the facts and circumstances of the case and having regard to the past conduct of the respondent as also his conduct during the domestic enquiry proceedings, we cannot say that the quantum of punishment imposed upon the respondent was wholly disproportionate to his act of misconduct or otherwise arbitrary.” (emphasis added)
30. In view of the above, it is evident that it is desirable that the delinquent employee may be informed by the disciplinary authority that his past conduct would be taken into consideration 17/26 https://www.mhc.tn.gov.in/judis WP No.2312 of 2015 while imposing the punishment. But in case of misconduct of grave nature or indiscipline, even in the absence of statutory rules, the authority may take into consideration the indisputable past conduct/service record of the employee for adding the weight to the decision of imposing the punishment if the facts of the case so require.
33. Admittedly, the respondent employee has not completed the service of six years and had been imposed punishment three times for remaining absent from duty. On the fourth occasion when he remained absent for ten days without leave, the disciplinary proceedings were initiated against him. The show-cause notice could not be served upon him for the reason that he again deserted the LINE and returned back after fifty days. Therefore the disciplinary proceedings could not be concluded expeditiously. The respondent submitted the reply to the show-cause notice and the material on record reveal that during the pendency of the enquiry he further deserted the LINE for ten days. There is nothing on record to show any explanation for such repeated misconduct or absenteeism. The court/tribunal 18/26 https://www.mhc.tn.gov.in/judis WP No.2312 of 2015 must keep in mind that such indiscipline is intolerable so far as the disciplined force is concerned.
34. The respondent was a guard in CISF.
No attempt had ever been made at any stage by the respondent employee to explain as to what prejudice has been caused to him by non-
furnishing of the enquiry report. Nor had he ever submitted that such a course has resulted in failure of justice. More so, the respondent employee had never denied at any stage that he had not been punished three times before initiation of the disciplinary proceedings and deserted the LINE twice even after issuance of the show-cause notice in the instant case. No explanation could be furnished by the respondent employee as under what circumstances he has not even considered it proper to submit the application for leave. Rather, the respondent thought that he had a right to desert the LINE at his sweet will. It was a case of gross violation of discipline. Appeal filed by the respondent employee was decided by the statutory appellate authority giving cogent reasons.” 19/26 https://www.mhc.tn.gov.in/judis WP No.2312 of 2015
23. In the judgment of the Supreme Court in the case of Bishamber Das Dogra (cited supra), the respondent-employee therein remained absent from duty without any justification or leave for more than five years within a short span of less than six years in service. During the relevant point of time, the respondent-employee was imposed with several minor punishments and later dismissed from service. The question aroused for consideration in that case was whether the order of punishment would be vitiated if the Disciplinary Authority takes into consideration the past conduct of the delinquent employee for the purpose of punishment. The respondent-employee in the abovesaid case, submitted the reply to the show cause notice and the materials on record would reveal that during the pendency of the enquiry, the respondent-employee further deserted the LINE for 10 days. There is nothing on record to show any explanation for such repeated misconduct or absenteeism. The Court/ Tribunal must keep in mind that such indiscipline is intolerable so far as the disciplined force is concerned. The respondent-employee was a Guard in the CISF. No attempt had ever been made at any stage by the respondent-employee to explain as 20/26 https://www.mhc.tn.gov.in/judis WP No.2312 of 2015 to what prejudice has been caused to him by non-furnishing of the enquiry report. Nor he ever submitted that such a course has resulted in failure of justice.
24. In the case of Bishamber Das Dogra (cited supra), it is evident that it is desirable that delinquent employee may be informed by the Disciplinary Authority that his past conduct would be taken into consideration while imposing the punishment. But in case of misconduct of grave nature or indiscipline, even in absence of Statutory Rules, the Authority may take into consideration the indisputable past conduct/service record of the employee for adding the weightage to the decision of imposing the punishment if the facts of the case so require.
25. This being the factum, this Court is of an opinion that there is no infirmity or perversity in respect of the procedures as followed by the respondents for concluding the disciplinary proceedings. Thus the enquiry or the findings in the enquiry report do not suffer any perversity. 21/26 https://www.mhc.tn.gov.in/judis WP No.2312 of 2015
26. The over all consideration of the conduct of the petitioner assessed by the Disciplinary Authority, cannot be found fault with. It is essential to consider the over all performance of the officials for imposing punishments. In the present case, beyond the first four charges, the fifth charge itself is regarding the 16 punishments imposed on the writ petitioner in his 11 years of service in the Central Industrial Security Force. Thus the Authorities Competent formed an opinion that there is no possibility of change of conduct with the petitioner and having no other way out inflicted the major penalty of removal from service.
27. The appeal filed by the father of the writ petitioner was not entertained rightly in accordance with the Rules in force. The father of the employee cannot prefer a statutory appeal and therefore, it was not considered. If the statutory appeal was filed by the petitioner after a lapse of 1-1/2 years, it was again rejectd on the ground of delay. Thus there is no infirmity in rejecting the appeal filed by the writ petitioner after a lapse of 1- 1/2 years. However, the Revisional Authority in order to provide one more 22/26 https://www.mhc.tn.gov.in/judis WP No.2312 of 2015 opportunity to deal with the case on merits, considered the grounds raised by the petitioner and passed an order on merits. Thus, the petitioner availed an opportunity of revision and the grounds raised by him were also considered. Beyond all these aspects, when the charged official admitted the charges/guilt during the preliminary hearing before the Enquiry Officer, that alone would be sufficient to form an opinion that the petitioner had admitted the allegations in all respects and in the present case, even subsequently, the writ petitioner had not defended his case before the Enquiry Officer or before the Disciplinary Authority by submitting an objection regarding the findings of the Enquiry Officer.
28. This being the factum established, this Court do not found any other acceptable grounds for the purpose of interfering with the process of enquiry or the penalty imposed. Thus, the orders passed by the respondents are confirmed.
29. Accordingly, the writ petition fails and it stands dismissed. 23/26 https://www.mhc.tn.gov.in/judis WP No.2312 of 2015 However, there shall be no order as to costs.
22-07-2022 Index : Yes/No. Internet : Yes/No. Speaking Order/Non-Speaking Order.
Svn To
1.The Secretary to Government, Union of India, 24/26 https://www.mhc.tn.gov.in/judis WP No.2312 of 2015 Department of Home Affairs, New Delhi.
2.The Director General, CISF Head Quarters, No.13, C.G.O. Complex, Lodhi Road, New Delhi – 110 003.
3.The Inspector General, CISF Head Quarters South Sector, Chennai Port Trust Campus, Near War Memorial, Chennai – 600 009.
4.The Deputy Inspector General, CISF DAE Zonal Head Quarters, Post : ECIL Hyderabad – 62, District : Ranga Rao, Andhra Pradesh – 500 062.
5.The Commandant, CISF Unit BARC-TAPS Tarapur, Post : Kudan, Teh: Palghar, District: Thane, State:
Maharashtra – 401 502.
S.M.SUBRAMANIAM, J.
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