V. Jaganathan v. Union of India, Rep. by its Secretary to Government, Ministry of Home Affairs, New Delhi
2020-12-08
A.P.SAHI, SENTHILKUMAR RAMAMOORTHY
body2020
DigiLaw.ai
JUDGMENT : Senthilkumar Ramamoorthy, J. (Prayer: Writ Appeal is filed under Clause 15 of Letters Patent, to set aside the order in W.P.No.20600 of 2013 dated 30.11.2018.) 1. This writ appeal is directed against the order dated 30.11.2018 in W.P. No.20600 of 2013. The said writ petition was filed by the Appellant herein to challenge the order dated 01.07.2013 of the third Respondent, confirming the order dated 18.04.2013 of the fourth Respondent, which, in turn, confirmed the order of compulsory retirement with full pension and gratuity benefits dated 17.12.2012 of the fifth Respondent. 2. The Appellant joined the services of the Central Industrial Security Force (CISF) on 16.09.1989. While serving at the CISF Unit at Chennai Port Trust, a charge memorandum was issued to him. The said charge memorandum dated 09.09.2012 stipulated three Articles of Charges. The first charge related to being in possession of unaccounted money while being deployed in the ‘B’ shift duty from 13.00 hours to 21.00 hours on 03.09.2012. The second charge related to his refusal to comply with the instruction to remove his shoes and the act of swallowing the currency note after taking it out from his socks. The third charge related to the continued acts of misconduct and indiscipline in spite of being charge sheeted and penalised on three previous occasions for having over stayed, found sleeping on duty and misbehaving with his senior. Upon receipt of the charge memorandum, the Appellant submitted a reply dated 17.09.2012. 3. Based on the aforesaid charges, an enquiry was instituted. At the said enquiry, five witnesses, PW-1 to PW-5, were examined on behalf of the employer and each of these witnesses were cross-examined by the Appellant. In addition to oral evidence, documentary evidence was adduced through PW1, 2 and 5. The Appellant did not produce witnesses or documentary evidence but filed a defence statement on 22.10.2012. Upon consideration of the aforesaid, the Enquiry Officer presented his report on 26.11.2012. After considering the explanation of the Appellant, the Disciplinary Authority passed orders on 17.12.2012. The Disciplinary Authority also took into consideration the prior punishments that had been imposed on the Appellant, in respect of which oral and documentary evidence was adduced through PW-5. On that basis, by the order dated 17.12.2012, the Appellant was awarded the punishment of compulsory retirement from service with full pension and gratuity benefits.
The Disciplinary Authority also took into consideration the prior punishments that had been imposed on the Appellant, in respect of which oral and documentary evidence was adduced through PW-5. On that basis, by the order dated 17.12.2012, the Appellant was awarded the punishment of compulsory retirement from service with full pension and gratuity benefits. This order was carried in appeal before the fourth Respondent. By the order dated 18.04.2013, the fourth Respondent confirmed the order of the fifth Respondent. In particular, the fourth Respondent recorded that the corroborative statements of all the eye-witnesses, namely, PW 1, 2 and 3 reveal that the Appellant swallowed the currency note and that the same establishes his mala fide intention to destroy the evidence and also puts his integrity in question. The appellate authority also recorded that the Appellant had been provided due opportunity to defend his case and had availed such opportunity. On that basis, the appellate authority refused to interfere with the order passed by the Disciplinary Authority. 4. The Appellant filed a revision petition against the order of the appellate authority. The said revision petition was decided by the order dated 01.07.2013. The order dated 01.07.2013 in revision recorded that the Appellant was heard in person on 06.05.2013. It was further noted that the appellate authority had passed a detailed speaking order after taking all aspects into consideration and that the Appellant had not made out any new points other than those discussed in the appellate order. The said order recorded that the disciplinary enquiry had been conducted as per the prescribed procedure and that the penalty awarded by the Disciplinary Authority and confirmed by the appellate authority are based on and commensurate with the gravity of the offence. Consequently, the revision petition was rejected and the authority refused to interfere with the penalty awarded to the Appellant. The writ petition was filed in these facts and circumstances. 5. By the impugned order dated 30.11.2018, the learned Judge considered the facts and circumstances in detail and discussed the order of the Disciplinary Authority, the appellate authority and the revision authority in considerable detail. On that basis, the learned Judge concluded that there is no infirmity in the said orders. Consequently, the writ petition was dismissed resulting in the present appeal. 6. We heard Mr.K.Sivasubramanian, the learned counsel for the Appellant and Mr.Venkatasamy Babu, the learned counsel for the Respondents. 7.
On that basis, the learned Judge concluded that there is no infirmity in the said orders. Consequently, the writ petition was dismissed resulting in the present appeal. 6. We heard Mr.K.Sivasubramanian, the learned counsel for the Appellant and Mr.Venkatasamy Babu, the learned counsel for the Respondents. 7. The learned counsel for the Appellant submitted that the Appellant joined the CISF as a constable on 16.09.1980 and had a consistent record of good performance from 1989 until 2012, when the memorandum of charges were issued to him. As regards the said charges, he submitted that Constables are permitted to have a sum of Rs.50/- as pocket money on any given day. The Appellant had spent a sum of Rs.30/- on 03.09.2012. He was deployed in the ‘B’ Shift duty on the said date between 13.00 hours and 21.00 hours for checking outgoing vehicles at Gate 1A. During that shift, it was alleged by Inspector R.Bala Shanmugham, Sub-Inspector H.S.Meena and Head Constable P.Nagarajan that the Appellant was in possession of unaccounted money and that he swallowed a currency note by removing it from his socks. The learned counsel submitted that the Appellant did not swallow the currency note and that it was unnecessary for him to do so. He also submitted that none of the witnesses testified that they witnessed the receipt of illegal gratification by the Appellant. As such, there was no evidence that the Appellant possessed unaccounted money and, therefore, the charges were not duly proved. 8. As regards the prior acts of indiscipline, the learned counsel submits that these were minor acts of indiscipline such as over staying and sleeping on duty. According to the learned counsel, the Appellant was unable to defend himself adequately against the charges because the charge memorandum was in the Hindi language. Although the Appellant requested the Enquiry Officer to provide a translated version of the charge memorandum, the Enquiry Officer refused to do so merely because the Appellant could speak Hindi. On this issue, the learned counsel pointed out that the Appellant hails from Andhra Pradesh and while he could converse in Hindi, he could not read or write Hindi. The learned counsel submitted that the refusal to provide a translated copy of the charge memorandum vitiated the enquiry and the subsequent conclusion of the Disciplinary Authority which was confirmed in appeal and revision. 9.
The learned counsel submitted that the refusal to provide a translated copy of the charge memorandum vitiated the enquiry and the subsequent conclusion of the Disciplinary Authority which was confirmed in appeal and revision. 9. In addition, the learned counsel submitted that the punishment was grossly disproportionate to the offence. He submits that the Appellant was compulsorily retired from service notwithstanding the fact that he had served the CISF for at least 23 years as of the date of the charge memorandum. For all these reasons, he submitted that the impugned order of the Court of first instance is liable to be set aside. 10. On the contrary, the learned counsel, Mr.Venkatasamy Babu, submitted that the Appellant was employed in the CISF, which by the nature of services it provides requires its employees to meet the highest standards of discipline. With regard to the enquiry, he submitted that the principles of natural justice were duly complied with by providing a copy of the charge memorandum dated 09.09.2012 to the Appellant and providing an opportunity to him to respond to the said charge memo, and to cross-examine PW1 to PW5 and examine witnesses if so intended. As regards the contention that the charge memo was in Hindi and that the Enquiry Officer refused to provide a translated copy of the charge memo, the learned counsel submitted that the Appellant was conversant with the Hindi language and was clearly in a position to read the charge memo. In fact, he replied to the charge memo by reply dated 17.09.2012. He also participated in the enquiry proceedings and cross-examined the witnesses. Therefore, he contended that the principles of natural justice were duly complied with both in form and substance. With regard to the charges, he submitted that it was duly established by examining witnesses that the Appellant possessed unaccounted money and that he removed a currency note from his socks and swallowed the same instead of handing it over to the search officer. With regard to the contention that PW4 could not provide the names of port users from whom the Appellant collected illegal gratification, the learned counsel submitted that the said contention does not absolve the Appellant of the charge of possessing unaccounted money or of the charge of not complying with the instruction to remove his socks and hand over the currency note by instead swallowing the currency note.
He further submitted that the Appellant’s contentions were considered by the Disciplinary Authority, appellate authority and the revision authority and that, therefore, there is no scope for interference. 11. We considered the submissions of the learned counsel for the parties and examined the materials on record. 12. The first question that arises for consideration is whether the impugned orders warrant interference for any reason. At the outset, it is necessary to bear in mind that this Court does not sit in appeal over such disciplinary proceedings. In exercise of judicial review, this Court is largely concerned with the process adopted by the Disciplinary Authority, the appellate authority and the authority in revision. With regard to the process followed, the main ground of challenge is the refusal to provide a translated copy of the charge memorandum. From the documents on record, we find that the Appellant submitted a reply dated 17.09.2012 to the charge memo. From the said reply, it appears that the Appellant was in a position to fully understand the nature of charges against him. He also submitted a written statement of defence on 22.10.2012 and a written brief dated 31.10.2012 in response to the presenting officer’s note. Upon perusal of the Enquiry Officer’s report, it is clear that a personal hearing was provided to the Appellant. The Appellant was also provided with an opportunity to and, in fact, cross examined each of the witnesses. The Enquiry Officer also duly considered the documentary and oral evidence adduced before him. Upon examining the order of the Disciplinary Authority dated 17.12.2012, we find that the Disciplinary Authority took into consideration the Enquiry Officer’s Report, the written representation of the Appellant dated 10.12.2012 in response to the said report, the statements of witnesses and the exhibits. 13. Likewise, the appellate authority also carefully examined the record and applied its mind while issuing a detailed and reasoned order confirming the decision of the Disciplinary Authority. In the revision proceedings, we find that the revision authority provided a personal hearing to the Appellant on 06.05.2013 and considered his submissions before concluding that the offences committed by the Appellant are serious, inasmuch as the Appellant concealed the unaccounted money by swallowing the same in spite of being directed by the searching officer to hand over the amount.
In the revision proceedings, we find that the revision authority provided a personal hearing to the Appellant on 06.05.2013 and considered his submissions before concluding that the offences committed by the Appellant are serious, inasmuch as the Appellant concealed the unaccounted money by swallowing the same in spite of being directed by the searching officer to hand over the amount. In revision, the authority also took note of the fact that the appellate authority had issued a detailed speaking order after taking into consideration all aspects. Upon consideration of the aforesaid, we find that due process was followed while enquiring into the charges against the Appellant and principles of natural justice were adhered to. The learned counsel for the Appellant contended that the allegation that the Appellant took illegal gratification was not proved by adducing evidence of the alleged eye witness. As regards this contention, it is pertinent to bear in mind that the charges were of possession of unaccounted money; refusal to remove his socks when instructed and instead swallowing the currency note; and continued acts of indiscipline. During the course of enquiry, witnesses were examined and they deposed that they witnessed the swallowing of the currency note. On that basis, the charges were held to be proved. This Court does not test the quality or sufficiency of evidence except to the limited extent of assessing whether the order was perverse. In this case, it cannot be said that the order was passed without evidence or that material evidence was disregarded or that irrelevant evidence was the basis of the order. Therefore, it cannot be said that the order was perverse. 14. The next issue to be examined is whether the punishment imposed on the Appellant is grossly disproportionate and whether it warrants interference by this Court. With regard to the quantum of punishment, it is pertinent to bear in mind that the imposition of punishment is entirely within the domain of the disciplinary authority concerned and the Court would interfere only if the punishment is so grossly disproportionate as to shock the conscience of the Court. On the scope for interference with punishment, reference may be made to the judgment of the Hon’ble Supreme Court in B.C. Chaturvedi v. Union of India, (1995) 6 SCC 749 , where, at paragraph 18, it was held as under: “18.
On the scope for interference with punishment, reference may be made to the judgment of the Hon’ble Supreme Court in B.C. Chaturvedi v. Union of India, (1995) 6 SCC 749 , where, at paragraph 18, it was held as under: “18. A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact-finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof.” On the question of proportionality of punishment, we find that the Appellant was awarded the punishment of compulsory retirement with full pension and gratuity benefits. Although the quantum of unaccounted money is minuscule, the Disciplinary Authority concluded that it establishes lack of integrity of an employee in an organization, which by its nature, requires the highest standards of discipline and integrity. In the facts and circumstances and bearing in mind the limited scope of judicial review in such matters, we find that it cannot be concluded that the said punishment shocks the conscience of the Court. As such, as per the applicable principles, the Appellant has failed to make out a case to interfere with the quantum of punishment also. 15. We find that the learned Judge of the Court of first instance examined the order of the Disciplinary Authority, appellate authority and the revision authority in considerable detail, before concluding that no case is made out to interfere with the order in revision. For the reasons set out above, the order of the learned Judge does not warrant interference. 16. In the result, this Writ Appeal fails and the same is dismissed. No costs. Consequently, connected miscellaneous petition is closed.