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2005 DIGILAW 372 (KER)

I. S. Meena v. The Commandant C. I. S. F. Unit

2005-06-14

J.B.KOSHY, K.T.SANKARAN

body2005
Judgment :- Koshy. J. Appellants/petitioners were charge sheeted for grave dereliction of duty and negligence. Article of charge is as follows: “That No.921404781 Constable Kartar Singh of CISF Unit CPT Cochin while on duty at GS berth (i.e. The duty post adjacent to Q9) of Ernakulam wharf connived with the criminals which resulted in the theft of 73 bags of Coffee seeds from Container No.TEXU-398564-0, 1 sample packet of Mushroom from Container No. TEXU-309726-0 and 1 sample packet of tea from a Container No.TRIU-533268-0 worth of Rs.1,80,514/while in the Custody of the Cochin Port Trust, stacked at Q-9 yard of Ernakulam Wharf during the night of 23/24 May 1996, which is grave dereliction of duty and negligence, hence the charge.” Petitioners were working as Constables in the CISF Unit of Cochin Port Trust. They were on night patrol duty at Q8 and Q9 berths of the Wharf and also at the Water front from 21.00 hours on the night of 23.5.1996 till 06.00 hours of 24.5.1996. On 25.5.1996 the officials of the Customs Department informed the CISF authorities that some seals on the containers kept at the Wharf premises of the Port were found to have been broken or tampered with under suspicious circumstances. Verification was made by the CISF authorities in the presence of other officials. It was noticed that seals of three containers were broken and 73 packets of coffee seeds, one sample packet of mushroom and one sample packet of tea were missing from three different containers. The matter was reported to the police by the Assistant Manager (PW2 in the enquiry). A crime was registered by the police. The Constables/personnel who were on night patrol duty at the wharf and Water front were questioned. On the basis of the complaint made by the Assistant Traffic Manager, a crime was registered and as a result of the investigation some accused were found out and they were proceeded with. Majority of the articles were also found out and the Circle Inspector reported the matter to the Cochin Port Trust by Annexure A. The Circle Inspector of Police reported the matter to the CISF, Cochin Port Trust as follows: “The case investigated and it was revealed that altogether 15 persons from Mattanchery have committed theft of 73 numbers of coffee bags each weighing 40 kgs. By break opening the container kept in the Ernakulam Wharf at Q9 and also a sample packet each of Tea and Mushroom from the containers between 01.30 hrs and 03.00 hrs on 24.5.96.” He further informed as follows: It is learnt on investigation that Sri. Inder Singh Meena No.902293962 was on night duty on 23.5.96 at Q-9 and HC C. Mander No.895021476 and HC Sarwinder Singh (895021476) were on night patrol on the wharf. These personnel have either knowledge of the theft or they have committed grave dereliction of their duties in guarding the property. Also to state that Sri. Kartar Singh (921404781) was on duty in Q-8. It can be presumed that in the flood light of Ernakulam Wharf it is easy for this duty personnel to see the incident in Q-9. He is also suspected to have connivance in the commission of the theft and suppressed the fact.” He did not conclude anything. He only requested for taking departmental action against those personnel. Consequently, departmental action was taken. 2. CISF conducted preliminary enquiry before issuing charge sheet. PW2 in the enquiry has stated regarding occurrence of theft, finding out of theft etc., PW1 also gave evidence in support of the charges. The appellants/petitioners even though had opportunity to cross examine PWs.1 and 2. that opportunity was not availed by them. They also did not adduce any evidence in support of their defence. The enquiry officer found that the theft occurred when the appellants were in charge of Q8 and Q9 berths. Evidence would show that without their active connivance theft would not have taken place. In any event, there is grave dereliction of duty. Charge was proved beyond doubt. 3. The writ petitions were filed mainly contending that Annexure A report of the Circle Inspector of Police though marked and relied on in the enquiry without examining the Circle Inspector of Police and, therefore, enquiry was conducted in violation of the principles of natural justice and prejudice was caused with. It is true that Annexure A report was produced in the enquiry. In fact, it was annexed to the charge sheet also. Petitioners received copy of the same. As per the complaint of the Assistant Traffic Manager cases were registered by the police. Most of the stolen materials were found out and accused, six in number, were arrested. It is true that Annexure A report was produced in the enquiry. In fact, it was annexed to the charge sheet also. Petitioners received copy of the same. As per the complaint of the Assistant Traffic Manager cases were registered by the police. Most of the stolen materials were found out and accused, six in number, were arrested. There is flood light in the area and the duty personnel can easily see the incident if they were alert and therefore, the theft might have taken place with the connivance of the guards on duty and, in any event, there is dereliction of duty. The enquiry officer has summoned the Circle Inspector of Police. He can only request the party to be present. Enquiry Officer has no power to issue warrant to compel the presence of a witness. In fact, he requested the Circle Inspector of Police to be present. But the Sub Inspector of Police, who was also a party to the investigation team, came and proved that Annexure A letter was written by the Circle Inspector of Police. Authenticity of Annexure A letter was proved. In any event, Annexure A letter only requested for taking departmental action. Action was taken not because of the letter, but for the misconduct proved in the enquiry. The allegations were proved by the totality of evidence in this case. Domestic enquiry proceedings cannot be compared with Criminal Proceedings. Evidence of Pws.1 and 2 clearly proved that the theft occurred during the night in question when appellants were on duty. 4. With regard to violation of the principles of natural justice. Learned Judge has considered the contentions in detail and held as follows; “…. I have carefully perused the entire correspondence between the petitioners and the Enquiry Officer and also the pleadings on this aspect. I am satisfied that there was no violation of any of the principles of natural justice or denial or any opportunity in this regard.” In fact, learned Judge has considered the evidence in detail and found that misconduct alleged against him was proved in the duly conducted domestic enquiry and no interference is required. We fully agree with the findings of the learned single Judge. Therefore, we are not reiterating the observations again in this judgment. Without their connivance theft would not have happened in the area in question. We fully agree with the findings of the learned single Judge. Therefore, we are not reiterating the observations again in this judgment. Without their connivance theft would not have happened in the area in question. In any event, dereliction of duty or gross negligence is clearly proved. 5. CISF personnel are put on duty only to avoid theft and if theft is taken place, though without their knowledge, there is dereliction of duty. It cannot be stated that punishment of dismissal imposed for such misconduct is disproportionate. Graveness or seriousness of the allegation depends upon the nature of duties entrusted on the delinquents. Negligence or dereliction of duty while CISF personnel were put for watching Wharf is not a condonable offence. Classic examples of acts of negligence which warrants serious disciplinary action as highlighted by the Madras High Court in Royal Printing Works v. Industrial Tribunal (1959 II LLJ 619) are of a sentry who sleeps at his post and allows enemies to slip through: a composition placing a plus sign instead of minus sign in a question paper may cause numerous examinees to fail; a compounder in a hospital or chemist’s shop who makes up mixture or other medicines carelessly may cause quite a few deaths; the man at an airport who does not carefully filter the petrol poured into a plane may cause it to crash; the railway employee who does not set the point carefully may cause a head on collision. The Apex Court in PH Kalyani v. Air France ((1963) I LLJ 679 (SC)) upheld the order of dismissal for stray act of negligence. In that case the workman was charge sheeted for gross dereliction of duty in as much as he made mistakes in the preparation of load-sheet on one day and a balance-chart on another day, which mistakes might have led to a serious accident to the aircraft. In Caltex (India) Ltd. V. Eugene Fernandes ((1957) 1 LLJ 1 (SC)) the workman was charge sheeted for having been caught red-handed smoking, in the vicinity where smoking was strictly prohibited at the time when an aircraft was being refueled. This act of smoking would have resulted in a serious accident to the aircraft. After holding the inquiry, the workman was dismissed from service. The dismissal was upheld by the tribunal and affirmed by the Supreme Court as justified. This act of smoking would have resulted in a serious accident to the aircraft. After holding the inquiry, the workman was dismissed from service. The dismissal was upheld by the tribunal and affirmed by the Supreme Court as justified. In Bharat Forge Co.Ltd. v. Uttam Manohar Nakate ((2005) SCC (L & S) 289) it was held by the Apex Court that sleeping while on duty is a serious misconduct warranting dismissal. As far as dereliction of duty of CISF personnel, while on guard duty is a serious misconduct warranting dismissal. In any event, under Article 226 of the Constitution of India we cannot reappraise the evidence adduced in enquiry or sit in appeal over findings of the enquiry officer or the punishment, unless the findings are perverse or punishment is shockingly disproportionate resulting in injustice as held by the Apex Court in D.P.S. Rural Regional Bank v. Munna Lal Jain (2005 AIR SCW 95). All the appeals are, therefore, dismissed.