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2025 DIGILAW 201 (KER)

Union Of India v. Usha M. R. W/o. Mohammed Shafi

2025-02-06

AMIT RAWAL, K.V.JAYAKUMAR

body2025
JUDGMENT : K. V. JAYAKUMAR, J. This writ appeal is preferred by Union of India-respondent before writ court against the judgment of the learned Single Judge in W.P(C).No.11070/2015 whereby the learned Single Judge has quashed Exts.P12, P14 and P15 orders passed by the respondents. Impugning the said order, Union of India and its officers preferred this writ appeal. 2. The facts in a narrow compass are as follows: The respondent-writ petitioner, Usha M.R., was a Woman Constable in CISF, dismissed from service after a disciplinary enquiry. She was aggrieved by Exts.P12, P14 and P15 orders passed by the Union of India and its officers. The respondent/petitioner was working in the Fertilizers and Chemicals Travancore Ltd., Udyogamandal since September 2011. Immediately, she had submitted a complaint against an officer regarding the harassment from him. The complaint was rejected as per Ext.P1 order dated 05.10.2012. 3. It is stated in the complaint that, on 16.10.2012, she made a request to arrange a vehicle to visit hospital due to back pain, her request was turned down by the department. Therefore, she went to the St.Joseph’s Hospital, Manjummal along with her husband and was admitted therein. 4. While she was undergoing treatment in the hospital, Ext.P2 movement order was issued on 17.10.2012, transferring her to Vishakhapattanam. The respondent/petitioner challenged transfer by filing W.P(C).No.24842/2012 and this Court as per Ext.P3 order dated 02.11.2012 granted a stay of the transfer order observing that the transfer during the academic year was unwarranted. 5. While continuing so, Ext.P4 memo of charges dated 04.01.2013 was served upon the respondent/petitioner. 6. The respondent/petitioner submitted her explanation. An enquiry was conducted thereafter. As per Ext.P10 enquiry report, the charges were found proved against the respondent/petitioner. 7. Even though she submitted Ext.P11 explanation against the findings contained in Ext.P10 enquiry report, vide Ext.P12 order dated 29.04.2013, she was dismissed from service. Appeal and the revision submitted by the respondent were rejected, as per Exts.P14 order dated 29.08.2013 and Ext.P15 order dated 28.03.2014 respectively. 8. The main contention of the respondent-writ petitioner is that, enquiry was conducted without furnishing documents as well as not permitting her to examine the witnesses, as per her request. 9. The contention of the appellants-respondents was that the respondent-writ petitioner is in the habit of submitting irrelevant complaints (dated 12.04.2012 and 23.07.2012) against her seniors. 8. The main contention of the respondent-writ petitioner is that, enquiry was conducted without furnishing documents as well as not permitting her to examine the witnesses, as per her request. 9. The contention of the appellants-respondents was that the respondent-writ petitioner is in the habit of submitting irrelevant complaints (dated 12.04.2012 and 23.07.2012) against her seniors. The complaint submitted by her on 23.07.2012 was rejected as per order dated 05.10.2012. Before that date, she had not made any complaints with regard to back pain and it is only a pretext to avoid her duty and responsibility. The respondent-writ petitioner herself got admitted in the hospital knowing that she is under order of transfer. 10. She had given interviews to the editors of various newspapers and TV channels, violating Section 15A of the CISF Act and Rules. Therefore, disciplinary action was initiated against her under Rule 36 of the CISF Rules. 11. The appellants further contended that she was awarded punishments on seven occasions within a period of ten years of her service but failed to improve her conduct. Ext.P12 was issued in that context, much less was given sufficient opportunity to defend the case. 12. Noticing the rival contentions of the parties, the learned Single Judge disposed of the writ petition in the following manner. “12. In this case the petitioner has pointed out the relevance of the documents atleast in the explanation to the Inquiry Report as well as in her appeal and revision. The request of petitioner for the Beat book was rejected saying that she was aware of the contents thereof. The Inquiry officer ought to have found that her awareness would not substitute documentary evidence to be brought out in the inquiry. Petitioner has not called for any documents, production of which will be against the public interest or security of the stay. Therefore the contention that the rules relating to departmental enquiry do not provide for permitting the delinquent officer to submit a list of CISF personnel as witnesses is not seen covered by the CISF Rules is unsustainable and contrary to provisions containing in Rule 36. 13. The learned Central Government Counsel pointed out that petitioner did not further challenge the rejection of the documents or denial of permission to examine the witnesses. But the petitioner has been challenging the same before the disciplinary authority as well as the appellate and divisional authorities. 13. The learned Central Government Counsel pointed out that petitioner did not further challenge the rejection of the documents or denial of permission to examine the witnesses. But the petitioner has been challenging the same before the disciplinary authority as well as the appellate and divisional authorities. The very contention of the petitioner was that the movement order was not furnished to her and that can be proved in case the Beat book was marked in the inquiry and questions were put to the witnesses referring to the said Beat book. Therefore it is seen that the inquiry is not held consistent with the principles of natural justice. Hence the findings in the inquiry report as well as the punishment awarded on the basis of such an inquiry report are unsustainable. 14. Exts.P12, P14 and P15 shall stand set aside. The respondents shall therefore see that the inquiry is conducted after furnishing the documents to the petitioner from the stage when the petitioner requested for the documents and requested for permission to examine witnesses. In view of the fact that petitioner had been working from 2001 onwards, it would also be open to the respondents to consider whether the punishment can be modified instead of conducting the inquiry at this stage. At any rate, final orders shall be passed within a period of four months from the date of receipt of a copy of the judgment. Till orders are passed petitioner shall be deemed to be under suspension. This writ petition is disposed of, accordingly.” 13. The learned counsel for the respondent-writ petitioner supported the judgment of the learned Single Judge. 14. Per contra, the learned Central Government Counsel for the appellants/Union of India, Adv.Suvin R. Menon, submitted that the impugned judgment is unsustainable in law as the departmental enquiry was held in consonance with the principles of natural justice. 15. We have heard the rival submissions of the counsel for the parties and appraised the paper book. 16. 14. Per contra, the learned Central Government Counsel for the appellants/Union of India, Adv.Suvin R. Menon, submitted that the impugned judgment is unsustainable in law as the departmental enquiry was held in consonance with the principles of natural justice. 15. We have heard the rival submissions of the counsel for the parties and appraised the paper book. 16. Before further discussion, it may be useful to extract the memo of charges hereunder: Article of charge-I "That the act of No.014481169 LADY CONSTABLE/GD USHA MR CISF Unit, FACT, Udyogamandal tantamount to disobedience of order gross indiscipline, insubordination and sheer misconduct on her part that on 16.10.2012 at about 1655 hrs when Company Commander in the presence CHM had issued an Inter Office Memorandum to L, Ct/Gd Usha M R, in which she was directed to carry out the DIG SZ Chennai posting Order No. 109/2012 Dated 15/10/12 (stands posting to CISFUnit VSP Vizag), but She refused to receive the official document/order issued from this office vide letter No. E -42099/CISF/FACT/PA/MISC/2012/642 DT. 16/10/2012. This act of No. 014481169 LADY CONSTABLE/GD USHA M R CISF Unit, FACT, Udyogmandal tantamount to disobedience of official order, gross indiscipline, misconduct, insubordination and unbecoming member of a disciplined Armed Force of the Union. Hence the charge. Article of charge – II "That the act of No. 014481169 LADY CONSTABLE/GD USHA M R of CISF Unit FACT Udyogamandal (UD Sector) tantamount to gross indiscipline, and sheer misconduct on her part that, after refusing to receive the Office Memorandum No E-42099/CISF/FACT/PA /MISC/2012/642 Dated. 16.10.12 issued to her, on 16.10.2012 at about 1655 Hrs, She got herself intentionally admitted in the hospital at about 1930 Hrs on 16.10.12 itself, which clearly shows avoidance of responsibilities and duty by pretending to be ill (malingering). Such act on the part of No. 014481169 LADY CONSTABLE/GD USHA M R tantamount to gross indiscipline, misconduct, irresponsible towards duty and unbecoming member of a disciplined Armed Force of the Union. Hence the charge. Such act on the part of No. 014481169 LADY CONSTABLE/GD USHA M R tantamount to gross indiscipline, misconduct, irresponsible towards duty and unbecoming member of a disciplined Armed Force of the Union. Hence the charge. Article of charge-III That the act of No. 014481169 LADY CONSTABLE/GD USHA M R of CISF Unit FACT Udyogamandal tantamount to gross indiscipline, and misconduct in that she has given interview with electronic media (EC TV) on 17.10.12, blaming the CISF authority for her transfer to VSP VIZAG, without permission of competent authority and in violation of CISF Circular No.- 17 Dated 21.05.2001, in which it nas been mentioned that no officer other than Inspector General will speak to or interact with the media. Such act on the part of No. 014481169 LADY CONSTABLE/GD USHA M R tantamounts to violation of good order, misconduct, gross indiscipline, and unbecoming member of a disciplined Armed Force of the Union. Hence the charge. Article of charge-IV Gross misconduct and indiscipline on the part of No.014481169 LADY CONSTABLE/GD USHA M R CISF Unit FACT Udyogamandal is habitual offender of various indiscipline acts, misconducts, and dereliction of duties for which she has been awarded punishments for 07 (seven) times during her service. But She has not corrected herself and not improved her conduct, discipline, performance and remained incorrigible member of the force.” 17. The main contention of the learned Central Government Standing Counsel is that the enquiry was conducted in accordance with the rules and after affording reasonable opportunity of being heard to the respondent/delinquent employee. 18. But She has not corrected herself and not improved her conduct, discipline, performance and remained incorrigible member of the force.” 17. The main contention of the learned Central Government Standing Counsel is that the enquiry was conducted in accordance with the rules and after affording reasonable opportunity of being heard to the respondent/delinquent employee. 18. Before further discussion, it would be useful to extract Rule 36(10)(b) of CISF Rules: “(10) (a) xxxxx (b) The inquiring authority shall, if the enrolled member of the Force fails to appear within the specified time or refuses or omits to plead, require the Presenting Officer to produce the evidence by which he proposes to prove the articles of charge, and shall adjourn the case to a later date, not exceeding thirty days, after recording an order that the enrolled member of the Force may, for the purpose of preparing his defence - (i) inspect within five days of the order or within such further time not exceeding five days as the Inquiring Authority may allow, the documents specified in the list referred to in sub-rule (3); (ii) submit a list of witnesses to be examined on his behalf; (iii) give a notice within ten days of the order or within such further time not exceeding ten days as the Inquiring Authority may allow, for the discovery or production of any documents which are in the possession of Government but not mentioned in the list referred to in sub-rule (3);” 18. However, the learned counsel for the respondent submitted that, no opportunity was given to examine the defence witnesses and her request for the production of documents was disallowed by the Enquiry Officer. 19. We have gone through the relevant provisions with regard to the disciplinary enquiry. On perusal of the Rules, it is clear that a delinquent employee should be given a chance to submit a list of witnesses to defend his/her case. So also, the delinquent employee should be given a chance for summoning the documents which are in possession of the Department. 20. In the instant case, even though the respondent-writ petitioner has made a request for the Beat book, it was rejected saying that the respondent was aware of the contents thereof. 21. So also, the delinquent employee should be given a chance for summoning the documents which are in possession of the Department. 20. In the instant case, even though the respondent-writ petitioner has made a request for the Beat book, it was rejected saying that the respondent was aware of the contents thereof. 21. Noticing the rival contentions of the parties, the learned Single Judge set aside Exts.P12, P14 and P15 orders and directed the respondent/petitioner to consider whether the punishment could be modified instead of conducting enquiry afresh. The learned Single Judge further directed that final orders shall be passed within a period of four months from the date of the judgment. 22. Upon hearing the submissions of both sides and on appraisal of the paper book, we do not find any illegality in the impugned judgment. The learned Single Judge, after appreciating the facts and law in the correct perspective, arrived at a proper conclusion. 23. Before parting with this matter, we may add that the punishment imposed in this case is disproportionate and shocking the conscience of this Court. 24. In Union of India & Ors. v. P.Gunasekaran [AIR 2015 SC 545] , the Apex Court observed that “the High Court can interfere with the findings of the enquiry authority, if the punishment awarded shock the conscience of the court. The relevant paragraphs of Gunasekaran ’s case (supra) are extracted hereunder: “12. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, reappreciating even the evidence before the enquiry officer. The finding on Charge I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Articles 226/227 of the Constitution of India, shall not venture into reappreciation of the evidence. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Articles 226/227 of the Constitution of India, shall not venture into reappreciation of the evidence. The High Court can only see whether: (a) the enquiry is held by a competent authority; (b) the enquiry is held according to the procedure prescribed in that behalf; (c) there is violation of the principles of natural justice in conducting the proceedings; (d) the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case; (e) the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations; (f) the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion; (g) the disciplinary authority had erroneously failed to admit the admissible and material evidence; (h) the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding; (i) the finding of fact is based on no evidence.” 13. Under Articles 226/227 of the Constitution of India, the High Court shall not: (i) reappreciate the evidence; (ii) interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law; (iii) go into the adequacy of the evidence; (iv) go into the reliability of the evidence; (v) interfere, if there be some legal evidence on which findings can be based. (vi) correct the error of fact however grave it may appear to be; (vii) go into the proportionality of punishment unless it shocks its conscience.” 25. The law laid down in Gunasekaran ’s case (supra) was followed in the decision in Chatrapal v. State of Uttar Pradesh, [2024 KHC 6078] 26. In Bhagat Ram v. State of Himachal Pradesh and Others, [ (1983)2 SCC 442 ], the Honourable Apex Court held that it equally true that the penalty imposed must be commensurate with the gravity of the misconduct, and that any penalty disproportionate to the gravity of the misconduct would be violative of Article 14 of the Constitution. In Amalraj S. v. State of Kerala, [ 2024(1) KHC 284 ], the Division Bench of this Court reiterated the very same principle. 27. In Amalraj S. v. State of Kerala, [ 2024(1) KHC 284 ], the Division Bench of this Court reiterated the very same principle. 27. Upon hearing the submissions of the counsel for the parties and the appraisal of the paper book, we are of the view that, reasonable opportunity of being heard was not given to the respondent-writ petitioner. The Enquiry Officer shall permit the respondent to adduce evidence in support of her defence. 28. The Disciplinary Authority shall also consider the contentions of the respondent-writ petitioner before imposing the penalty, in case the charge against the delinquent employee is proved. While imposing penalty, the disciplinary authority shall consider the relevant facts and circumstances of the case. The Enquiry Officer, before awarding the penalty, should strike a balance between the rival and conflicting interest of the department on the one side and mitigating factors of the employee/staff on the other side. Extreme penalty of dismissal from service can only resorted only in exceptional cases. Such punishment cannot be imposed in a mechanical manner without proper hearing and application of mind. 29. It is indeed true that, the discipline of the armed force is of paramount importance. However, the welfare of the employee on the other hand assumes much significance. The efficiency of the institution mainly depend upon the hard work and commitment of its employees. 30. In the instant case, the delinquent employee is a woman police officer. A woman employee has to perform multiple roles in life. She has to handle the pressure of her work on one hand, and the needs of her family on the other side, therefore, the possibility of stress on the employees cannot be ignored. 31. Mental health and the welfare of the employees are, often, discarded in several departments. 32. It is disturbing to note that, suicide among the police officers have surged in the recent past. 33. In the light of the above discussion, we hold that the appellants shall reconsider the matter afresh and pass final orders within three months from the date of receipt of a copy of this judgment, after affording a reasonable opportunity of being heard to the respondent-writ petitioner. The Writ Appeal is disposed of as above.