Central Administrative Tribunal - Ernakulam
Safeer Karim vs The Under Secretary Police - 1 Division ... on 7 June, 2023
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CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No.180/00775/2019
Wednesday, this the 7th day of June, 2023
CO RAM :
Hon'ble Mr. Justice Sunil Thomas, Judicial Member
Hon'ble Mr. K. V. Eapen, Administrative Member
Safeer Karim, Aged 31 years,
S/o. Karim Aziz, Kollomparambil House,
Kunnukara P.O.,
Aluva, Ernakulam, Kerala - 683 524. -Applicant
(Party in Person)
VERSUS
1. Union of India, represented by
Under Secretary Police - I Division,
(IPS - IV Section), Ministry of Home Affairs,
Government of India, New Delhi - 110 001. -Respondent
(By Advocate: Mrs. O. M. Shalina, SCGSC)
This Original Application having been heard on 17 th May 2023, the
Tribunal on 7th June, 2023 delivered the following: -
ORDER
Per: Justice Sunil Thomas, Judicial Member The applicant herein was selected to Indian Police Service in the Civil Services Examination held in the year 2014. He joined the Police Service on 28.12.2015. He was allotted the Tamil Nadu Cadre and after initial training, was posted as the ASP, Tirunelveli District on Training and on probation. While so, he attended the preliminary Civil Services Examination of the year 2017 and stood qualified. He attended the final examination at a High School in Chennai. It was alleged that on 30.10.2017, during the final examination at around 8.50 AM, an I phone O.A 775 of 2019 -2- was searched out from his possession. A bluetooth device was recovered from his car. Alleging that these gadgets were in his possession during the examination and that they were meant to be used in writing the examination, FIR No.1646/2017, under Section 120 (b), 420 IPC and Section 66 of IT Act was registered by the Egmore Police. Later, Annexure A5 Show Cause Notice was issued to the applicant by the Government of India, alleging that he had violated Rule 14 of the Civil Service Examination Rules, 2017. It alleged that he was found in possession of a mobile phone, typed note, electronic devices (bluetooth, wireless, earphone, earplug, speakers etc.) concealed inside his dress. Alleging that they were meant for clandestinely obtaining answers from his wife at Hyderabad, proceedings were proposed to be initiated against him. It was stated that for the above misconduct, he was liable to be discharged under Rule 12 of the IPS (Probation) Rules, 1954. He was called upon to show cause why he shall not be discharged from the Indian Police Service. Annexure A7 reply dated 05.12.2017 was submitted by him denying all the allegations. By Annexure A9 dated 25.01.2018 he was informed that his reply was not satisfactory and accordingly a summary enquiry under Rule 12 of the IPS (Probation) Rules, 1954 for violation of Rule 14 of Civil Service Examination was ordered. On the basis of the inquiry report dated 27.02.2018, by Annexure A1 order of the Government of India, the applicant was informed that the allegations against him stood established. Consequently he was discharged from the Indian Police Service.
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2. Annexure A1 stands challenged in the present O.A at the instance of the applicant. The relief sought was to declare that the action taken by the respondents against the applicant was in violation of various Articles of the Constitution of India. Relief sought was to set aside Annexure A1 and to grant consequential reliefs.
3. A detailed reply statement was filed denying the various allegations and affirming the stand taken by the Union of India in Annexure A1. It was alleged that he had indulged in unfair methods during the examination and thereby committed misconduct as mentioned in Rule 14 of the Civil Service Examination. Hence he was liable for discharge.
4. Heard the applicant in person and the learned SCGSC in extenso.
5. The applicant, relying on the grounds set up in the OA contended that all the allegations were false and fabricated. He had not adopted any illegal means, nor violated Rule 14 of Civil Service Examination. Consequently there was no ground for invoking Rule 12 (b) and (d) of the IPS (Probation) Rules. It was not established that he had used any illegal means, during the course of examination. The mobile phone in his possession was surrendered before the examination. The bluetooth was meant for contacting his wife and was recovered from his car, which was parked outside. None of the documents relied on by the prosecution could establish that he had used any illegal or improper means for answering the questions. Even as per the allegations, the recovery was at some time in between 8.50AM and 8.55 AM, on the relevant day. The examination was to commence at 09.00 AM. Hence, the allegation that he had committed O.A 775 of 2019 -4- malpractice or unfair practice during the conduct of examination was false. Even assuming that the device was recovered from him, it was prior to the examination and not during the examination. He had voluntarily handed over the mobile phone. It was asserted that the allegation in the Annexure A5 Show Cause Notice that he had adopted unfair means "during" examination was incorrect.
6. The facts as narrated by the applicant is discernible from the Original Application and from Annexure A7 reply. According to the applicant, he was frisked by the Police at 08.45 AM. An I phone in his possession was surrendered by him to the Police which was taken into custody. His car parked outside was searched and a bluetooth device used by him to talk to his wife was seized prior to the examination. It was permissible for any candidate to refresh memory through mobile phone. He had not entered the examination hall at the time of surrendering the mobile phone. There was absolutely nothing to evidence that the mobile phone was used by him in answering the question paper. He had not used it during the examination and it was removed much before the commencement of examination. He had not written his Roll No. nor marked his attendance. There was no violation of Rule 14, since no unfair practice was allegedly committed during the examination. He was made to sign an undertaking/admission statement which was produced as Annexure A3. Nothing incriminating was taken from his possession or body, during examination, as 15 minutes prior to the commencement of examination he had surrendered the mobile to the Police.
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7. Before analysing the various contentions on the strength of the materials available on record, it is essential to refer to Rule 14 of the Civil Services Examination 2017, which is produced as Annexure R1. Relevant portion of Rule 14 is extracted as follows: -
Rule 14. "A candidate who is or has been declared by the Commission to be guilty of: -
...... (vii) using unfair means during examination
(xi) being in possession of or using any mobile phone, pager or any electronic equipment or device or any other equipment capable of being used as communication device during the examination
(xiii)......may in addition to rendering himself liable to criminal prosecution, be liable: -
(a) to be disqualified by the Commission from the Examination for which he is a candidate; and/or ...
(c) if he is already in service under the Government to disciplinary action under the appropriate rules".
8. The above provision clearly shows that if a person is guilty of having adopted unfair means or was in possession of an electronic gadget is liable for punishment. The crux of the allegation was that he had adopted illegal means 'during the course of examination'. According to the candidate, the examination was to commence at 9.00AM. The specific case of the prosecution was that the gadgets were recovered from him at some time between 8.50 and 8.55 AM. On the other hand, the specific case of the applicant was that he had voluntarily handed over his mobile to the Police about 15 minutes prior to the commencement of the examination.
O.A 775 of 2019 -6- Annexure A2 is the e-hall ticket issued to the applicant. The learned SCGSC invited our attention to the time of the examination. The relevant examination was General Studies Paper held on 30.10.2017. The e-ticket shows that the forenoon session was to commence at 9.00AM and to continue upto 12 Noon. Clause 1 clearly stated that Mobile phones or any other communication devices such as bluetooth, etc., are not allowed inside the premises where the examination was to be conducted. Any infringement of those instructions would entail disciplinary action including bar from future examinations. The learned SCGSC pointed out that the above clause specifically prevented the use of Mobile phone or other communication devices, not only inside the examination hall, but in the "premises" even. Definitely the use of the term "premises" shows that it covers a larger area than the mere examination hall. In that context, even the claim of the applicant that he handed over the phone before entering the hall will fall within the vice of Clause 1 above.
9. Annexure A3 is the undertaking/admission statement of the applicant. It states that electronic gadgets were found in his possession at 8.50 AM. Annexure A4 is a communication of the Headmistress of the School where the examination was held, who was also the supervisor of the Centre, addressed to the Joint Secretary of the UPSC, informing about the recovery of the electronic gadget from the applicant at 8.55AM on 30.07.2017. Referring to these documents the applicant contended that even according to the available records, the incident happened before the commencement of the examination and not "during" the examination.
O.A 775 of 2019 -7- Hence, he cannot be attributed with any misconduct during the course of examination, it was contended.
10. The learned SCGSC, answering the contention of the applicant that the incident did not happen during the course of examination invited our attention to the inquiry report produced as Annexure R3. It contains the statement of the Headmistress of the School where examination was held. She asserted that the candidates were permitted to enter the classroom on the relevant day from 8.30AM onwards. The question papers were distributed at 8.55 AM. On getting secret information that a candidate sitting in Hall No.7 was likely to adopt unfair means, a second frisking was conducted. From the possession of the applicant, cell phone and other gadgets were recovered. The DCP who aided the frisking also confirmed that applicant had entered the examination hall. It was only thereafter the frisking was conducted and gadgets were recovered.
11. In the course of investigation a google drive image stored in the memory of I phone used by the applicant was retrieved. It had captured the image of the Roll No. of the applicant written on the table allotted to the applicant, inside the examination hall. This clearly indicated that a miniature camera was operated by him while he was in the examination hall. This clearly establishes that the applicant was inside the examination hall and had operated a camera.
12. The above materials clearly establish that mobile phone and several other gadgets were recovered from the possession of the applicant after he had entered the examination hall. This coupled with the clause in Annexure O.A 775 of 2019 -8- A2 that use of electronic gadgets in the premises, which is a wider area than the examination hall, completely demolishes the contention of the applicant that the recovery, if any, was not during the course of the examination and that it was voluntarily surrendered by him. These facts clearly establish that he was in possession of the mobile phone and other gadgets inside the examination hall, when the actual examination was about to commence.
13. On merits, the specific contention of the applicant in person was that no misconduct was established against him. Annexure R3 is the inquiry report. Inquiry was conducted by the Joint Director of the Sardar Vallabh Bhai Patel National Police Academy, Hyderabad. Two crucial witnesses were examined in the Inquiry. The first one was the headmistress of the School where the examination was conducted, who was also the supervisor of the examination. The second one was the DCP who had aided the supervisor in conducting the frisking of the candidates. Their versions reveal that on 30.10.2017, candidates were permitted to enter the examination hall from 8.30AM onwards. Applicant was in Hall No.7. Question paper was distributed at 8.55 AM. In the meanwhile, the supervisor got secret information that malpractice was likely to be committed in Hall No.7. She immediately went to the hall and with the help of Police frisked the candidates. The applicant was sitting in the second row. From his possession, a cell phone, a typed note, electronic devices including bluetooth with sim card, wireless earplug and electric wired circuits were recovered. It was seen that wires were stitched to his O.A 775 of 2019 -9- inner wear. All were seized under mahazar and the matter was reported to the Police. Crime was registered. The applicant was arrested and was remanded. It seems that he was in custody for several days. The records also reveal that two other Oppo mobiles and one micro memory SD card of 16 GB were also recovered from him. A reference to Annexure A3 and A4 indicates that the recovery was from the applicant while he was in the examination Hall No.7.
14. The headmistress of the School where the examination was conducted gave detailed statement regarding the incident that happened on the relevant day. She affirmed about the recovery of electronic gadgets, I phone and typed paper, etc., from the body of the applicant. It was affirmed that before the frisking, the applicant was in the examination hall and from the examination hall he was taken to the adjoining room for frisking. The DCP who had participated the frisking was also examined by the Inquiry Officer. He also gave detailed version of the incident that led to the recovery of the I phone and electronic gadgets. According to the DCP, the I phone was kept in the pocket of the pants worn by the applicant. A miniature mike with wires were found stitched inside the T-shirt worn beneath his shirt. It was connected to a bluetooth device attached to the T- shirt near the waist. Two earphones were also recovered from his ears. A remote shutter was found from his pocket. According to the witness, though there were materials indicating that he had operated a miniature camera at 8.46AM on the relevant day, the camera could not be recovered, since possibly during the time gap before frisking of the applicant, either O.A 775 of 2019 -10- the miniature camera was swallowed by the applicant or was thrown away. He affirmed that the applicant had used miniature camera on the basis of the image on the google drive which indicated that the miniature camera was operated by the applicant at 8.46 AM inside examination hall.
15. The Inquiry Officer has noted that about 35 witnesses were questioned by the Police. The evidence gathered by the Police included several digital evidences, call details of various mobile phones used by the accused in the Crime and several other material evidences. The evidences arrayed before the investigating agency included direct oral evidence, cyber evidence and call detail records which were relied on to establish the involvement of the applicant in crime. The Inquiry Officer has also noted that the entire process of frisking was recorded by Police, which was produced in a CD.
16. Annexure R3 reveals that in the course of Police investigation it was revealed that electronic gadgets were used by the applicant to communicate with his wife, who was at Hyderabad, to get assistance in answering the examination paper. She was a faculty of an IAS Coaching Centre at Hyderabad. She was arrested at Hyderabad. She confessed that she had helped the applicant in writing the examination on the previous day namely 28.10.2017. The modus operandi adopted, as revealed in the course of investigation was that the applicant sitting in the examination hall used to capture the image of the question paper with a micro camera and forwarded it to wife through google drive. The question paper was downloaded by the wife at Hyderabad with Laptop given to her by one O.A 775 of 2019 -11- Rambabu, who was also running an IAS Coaching Centre. Question papers of various institutions and the question paper for IAS Final Examination dated 28.10.2017 were recovered in the course of investigation from the memory of Laptop held by wife of the applicant. Rambabu had admitted that he had aided her. He was also arrested and remanded. Two other persons who had helped the applicant in writing the Preliminary examination held on 18.06.2017 were also arrested. Gadgets used for downloading the question paper and for forwarding answers were also seized. In the course of investigation it was revealed that the same modus operandi was adopted by the applicant in Civil Services (Preliminary) Examination of 2017 held on 18.06.2017. He was helped by his wife and others in answering the Preliminary examination. The investigation further revealed that wife had been communicating with the applicant on 18.06.2017 at the time of Preliminary examination from 9.29AM onwards. Answers were transmitted in a voice conference call involving the wife, applicant and two others. Definite materials were gathered to indicate that the applicant had received assistance from his wife on 28.10.2017 through mobile during examination.
17. On the basis of the materials gathered the Inquiry Officer reached the conclusion that the applicant had committed the misconduct. It was also stated that since all the devices were found stitched inside his shirt and that the applicant had entered the examination hall, clearly indicated that he had knowingly and consciously committed the misconduct referred in Rule 14 of the Civil Service Examination Rules.
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18. In the rejoinder filed by the applicant himself before this Tribunal after his Counsel who had appeared for him earlier had relinquished the Vakalath, the applicant had raised an allegation that he was discriminated on ground of his religion. In fact, at the time of argument this was vaguely referred to by the applicant. In the rejoinder, the applicant had also referred to several instances of involvement of IAS, IPS Officers in various crimes. Though the details of each case is not available, after referring to various cases, the applicant had stated that all of them were permitted to continue in service and he alone was discriminated being a member of the Muslim Community.
19. The instances which the applicant has referred to in the rejoinder are not substantiated and the facts based on which such persons were permitted to continue are also not brought on record. Hence, we are inclined to reject the above contention of the applicant as absolutely baseless, unwarranted and uncharitable.
21. In the rejoinder, the applicant had set up a contention that Rule 11(2) of the Indian Police Service (Probation) Rules, 1954, All India Service (Conduct) Rules 1968 and All India Services (Discipline and Appeal) Rules, 1969 apply to the applicant, being a probationer. As per Rule 11(3) of IPS (Probation) Rules, 1954, a probationer shall be liable to be removed or dismissed from service, if he failed to obey any order which he may receive from the Central Government or from any other competent authority or if in the opinion of Central Government he has willfully neglected his probationary studies or duties or is guilty of misconduct, O.A 775 of 2019 -13- unbecoming of a member of service. It provided that before any action was taken against the probationer, Rule 8 of All India Services (Discipline and Appeal) Rules, 1969 shall be followed. Before final orders are passed against a probationer, the Commission shall be consulted. Referring to the decision of the Hon'ble Supreme Court in Shamsher Singh and another v The State of Punjab [AIR 1974 SC 2192], the applicant contended that when an order of discharge is based on an inquiry to specific allegations of misconduct, inefficiency or corruption and the like in contradiction to a general inquiry which may be conducted by the authority with a view to satisfy itself whether on account of inadequacy for a job for any other temperamental or other failing, not involving moral turpitude, the petitioner is unsuitable for the job. The order of discharge, though innocent on its face, shall amount to an order of punishment as to attract Article 311(2) of the Constitution of India. According to the applicant, the order of discharge should form the category of punishment and the applicant was not afforded reasonable opportunity to defend himself as provided in Rule 11(3) Indian Police Service (Probation) Rules, 1954 or Rule 8 of All India Service (Discipline & Appeal) Rules, 1969, or Article 311 of the Constitution of India.
22. In the case at hand the applicant was specifically informed that he was proceeded under Rule 12 (B) and 12 (D) of the IPS (Probation) Rules for violation of Rule 14 of the Civil Service Examination and liable for removal. He was given an opportunity of replying to the Show Cause Notice. He had replied to the Show Cause Notice. Inquiry was O.A 775 of 2019 -14- contemplated in the manner as laid down under Rule 14 and the applicant was removed after complying with all legal formalities. Rule 14 provides for discharge of the officer if he is guilty of misconduct. In the light of specific statutory provision which empowers the competent authority to discharge an officer, the contention of the applicant cannot survive.
23. On an evaluation of the entire materials referred in the Inquiry, we are satisfied that the authority had conducted a proper inquiry after affording all reasonable opportunity to the applicant to place on record his objections. Sufficient material has been gathered in the Inquiry which prima facie establish that the applicant had indulged in malpractices in the course of the Civil Services Examination on the relevant date. The various contentions set up by the applicant in person do not merit any consideration and they are devoid of any merit. The applicant was rightly removed from service by virtue of Annexure A1. We do not find any ground for interference in Annexrue A1 or to sustain any of the ground set up by the applicant.
24. Original Application hence fails and is dismissed. No costs.
(Dated this the 7th day of June, 2023)
K. V. Eapen Justice Sunil Thomas
(Administrative Member) (Judicial Member)
bp
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List of Annexures
Annexure A1- True copy of the order No.I-26011/64/2017-IPS.IV dated
04.05.2018.
Annexure A2- True copy of the e-hall ticket issued to the applicant.
Annexure A3- True copy of undertaking/admission statement dated nil.
Annexure A4- True copy of Report dated 30.10.2017 issued by supervisor.
Annexure A5- True copy of show cause notice dated 22.11.2017 issued to the
applicant.
Annexure A6- True copy of Rule 14 of the Civil Service Examinations.
Annexure A7- True copy of the reply submitted by the applicant dated
05.12.2017.
Annexure A8- True copy of the order passed by Additional Chief Secretary to
Government having No.G.O.Ms.No.822 dated 07.11.2017. Annexure A9- True copy of the order No.1-26011/64/2017-IPS.II/IV dated 25.01.2018.
Annexure A10- True copy of the Indian Police Service (Probation) Rules 1954. Annexure A11- True copy of the relevant extract of the All India Services (Discipline and Appeal) Rules.
Annexure A12- True copy of the Possession notice issued by the Indian Bank dated 06.08.2019 under the SARFEASI Act, 2002.
Annexure A13- True copy of summons dated 26.05.2018 issued by Munsiff's Court Aluva in O.S.No.178/2018 with English translation. Annexure A14- True copy of the newspaper clipping that appeared in the Hindu daily dated 25.08.2018.
Annexure A15- True copy of the statement of Joicy Joy. Annexure A16- True copy of the statement of Sajana.
Annexure A17- True copy of the statement of Laila Usman. Annexure A18- True copy of the statement of Salam Aziz. Annexure A19- True copy of the statement of Kunjadima. Annexure A20- True copy of the statement of Jaleel K.A. Annexure A21- True copy of the statement of Samjad Abdul Gafoor. Annexure A22- True copy of the statement of Muhammed Shabeeb Khan. Annexure A23- True copy of the statement of Karim Aziz. Annexure A24- True copy of the statement of Noorjahan Kareem. Annexure A25- True copy of the statement of Raja A.R. Annexure R1- True extract of Rule 14 of the Civil Services Examination Rules 2017.
Annexure R2- True extract of Rule 12 of Indian Police Service (Probation) Rules 1954.
Annexure R3- True copy of the report of summary enquiry.
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