Constitution Of India For The ... vs N.B Narawade
2022 Latest Caselaw 4125 AP

           HON'BLE DR. JUSTICE K. MANMADHA RAO

               WRIT PETITION No. 17574 of 2011


ORDER :

This writ petition is filed under Article 226 of the

Constitution of India for the following relief:-

"to issue an order direction or writ more particularly one in the nature of writ of mandamus or any other appropriate writ (i) declaring the letter No. B15015/ CISF/ANU/SS/2010/1907, dated 29.3.2010 issued by the Deputy Inspector General, CISF, as illegal and arbitrary (ii) declare the order of the appellate authority order No. V15014/LR/Appeal/IJ/SS/2010/570 dated 30.07.2010 received by the petitioner on 21.08.2010, as illegal and arbitrary (iii) declare the order of the Revisional Authority Order No.V-11014/112/L&R/2010-642 Dated 16.5.2011 received by the Petitioner on 27.5.2011, as illegal and arbitrary and (iv) consequently set aside the proceedings with a further direction to the Respondents to reinstate the Petitioner into service with all consequential benefits and to pass such other or further orders......."

2. Brief facts of the case are that :

The petitioner was joined as Constable in the Central

Industrial Security Force (for short "CISFT") on 2.3.1998 and

was transferred to Visakhapatnam Steel Plant in the month of

July, 2007. On 18.07.2009 while he was working in the B-

Shift and performing the duty on Vehicle Material Checking

duty at B.C. Old Out Material Gate from 13.00 hours to 21.00

hours, after reporting for duty, he was deployed to perform

tender duty at civil construction office at opening of the

tenders. As per orders of Shift In-charge, the petitioner has

assisted two duty officers viz., HC-GD B Talukdar and Lady

Constable Kum Meenakshi. While the petitioner was on duty,

he was called to a spot where the Commandant was standing

with one leg on piece of concrete stone and upon his reporting,

questioned about the money kept under the stone and asked

as to whom it belongs to. Then the petitioner replied in

negative since he is not aware of any money being kept there

by anybody. Thereafter, the petitioner was taken to shift office

where they recovered a sum of Rs.32/- from the pocket of the

petitioner and there the petitioner explained that he carried

Rs.40/- out of which Rs.8/- were spent for his personal

consumption. Thereafter the petitioner was placed under

suspension with Memorandum of charge.

It is further stated that on receipt of the charge memo,

the petitioner submitted his explanation on 08.08.2009. After

conducting enquiry, the enquiry officer submitted his report

dated 4.11.2009 holding that the charges leveled against the

petitioner are proved. Thereafter, the petitioner submitted his

written representation on 24.2.2010 to the 2nd respondent.

Being not satisfied with the same, the 2nd respondent, vide

impugned final order, dated 29.03.2010, had awarded

punishment of compulsory retirement from service with full

pension and gratuity with immediate effect and further ordered

that the period of suspension from 18.7.2009 to the date of

receipt of that order will be treated as Suspension Only (NON-

DUTY). Aggrieved by the same, the petitioner preferred an

appeal to the Inspector General-1st respondent on 26.04.2010

and vide order dated 30.07.2010 confirmed the punishment

and the same was communicated to the petitioner on

21.08.2010. Thereafter, the petitioner preferred W.P.No.30422

of 2010 before this Court and this Court vide order dated

8.12.2010 dismissed the writ petition and given liberty to the

petitioner avail alternative remedy available under Section

9(2)(A) of the CISF Act, by preferring a revision to the

Directorate General. Accordingly, the petitioner filed a revision

petition and the same was rejected vide order No.V-

11014/112/L&R/2010-642, dated 16.05.2011, which was

communicated to the petitioner on 27.05.2011. Questioning

the same, the present writ petition is filed.

3. Counter affidavit is filed on behalf of the respondents

denying all the averments made in the petition and contended

that the Deputy Commandant, who instituted the D.E. was of

considered opinion that the petitioner committed a gross

misconduct involving himself in collection of money illegally

and he deserves to be imposed major penalty. Therefore, in

accordance with sub-rule 20(1) of Rule 36 of CISF Rules 2001,

the Deputy Commandant, VSP Vizag has forwarded D.E case

filed 'A' &'B' along with report of enquiry officer to DIG/SZ

Chennai with a request to take suitable action in the

proceedings. Thereafter, without considering the

representation of the petitioner, awarded punishment of

"Compulsory Retirement from Service" with full pension and

Gratuity in accordance with Rule 40 of CCS (Pension) Rules,

1972 vide final order dated 29.03.2010. Thereafter, the

petitioner preferred an appeal before the 1st respondent and

the same was dismissed.

It is further stated that without availing further

departmental remedy i.e., by way of filing revision petition to

the respective authority, he had approached this Court by

filing W.P.No.30422 of 2010 and the same was dismissed by

this Court at the stage of admission with a direction to the

petitioner to prefer revision petition to DG/CISF as alternative

remedy available to him under Section 9(2A) of CISF Act, 1968.

In pursuance of the same, the petitioner preferred a revision

petition and the Revisional Authority had confirmed the

penalty awarded by the disciplinary authority which was

upheld by the appellate authority, rejected the revision petition

vide order dated 16.05.2011. It is further stated that the

petitioner was serving in a security organization that too in an

Armed Force of Union. His prime aim and motive is to give

better protection and security to the Government undertaking

where he has been physically deployed. By virtue of his

experience and length of service, he is expected to exhibit high

standard of Integrity, loyalty and honesty to his juniors to

emulate but he has miserably failed on this count.

It is further stated that during the departmental

proceeding it was clearly established that the petitioner was

involved in collection of illegal money by unfair means. By this

act of dishonesty and misconduct, the petitioner deserves for a

very harsh punishment but the disciplinary authority by taking

into account the length of service rendered by the petitioner

and his responsibility towards his family members while

arriving at a final decision has awarded the punishment of

"Compulsory Retirement from service" with full pension and

gratuity vide final order dated 29.03.2010 which is well

commensurate with the gravity of offence. Thereafter, the IG,

CISF, SS Chennai while disposing of the appeal of the

petitioner in the instant case observed that the charge framed

against the petitioner has been proved with adequate evidence

and the penalty awarded to him by the disciplinary authority is

found commensurate with the gravity of the charge. As such,

the appellate authority without finding any cogent reason to

interfere with the penalty awarded to the petitioner rejected the

revision petition of the petitioner being devoid of merit. Hence

the contention of the petitioner against the order of disciplinary

as well as appellate authority is not at all acceptable.

It is also stated that since the petitioner has already been

paid all the pensionary benefits and his pension payment order

has also been released by Pay and Accounts Officer, RPAO,

Chennai vide its letter, dated 19.10.2010, the filing of the

present writ petition challenging the order of compulsory

retirement from service, has no ground for consideration. The

petitioner being a member of a disciplined force entrusted with

the responsibility of protecting property of Public Sector

Undertaking, he displayed conspicuous lack of integrity

deserving severe punishment. However, he has been given

liberal treatment considering his age and length of service.

Hence, the order passed by the respondent is found legally fair

and justified. Hence, prayed to dismiss the writ petition.

4. Heard the learned counsel appearing for the petitioner

and the learned Central Government Standing Counsel

appearing for the respondents.

5. On hearing, this Court observed that the petitioner

joined as a Constable in the respondent Force and a charge

sheet was issued on the ground of misconduct and dishonesty

of a member of an Armed Force of CISF Unit. Thereafter, the

petitioner submitted his explanation on 08.08.2009. Being not

satisfied with the same, the 2nd respondent awarded

compulsory retirement of the petitioner dated 29.03.2010, and

thereafter, the petitioner preferred appeal to the 1st respondent

and the same was rejected vide order dated 30.07.2010.

Aggrieved by the same, the petitioner preferred WP No.30422 of

2010 before this Court and the same was dismissed giving

liberty to the petitioner to avail alternative remedy available to

him under Section 9(2A) of the Central Industrial Security

Force (CISF) Act 1968. Subsequently, the petitioner preferred

revision before the 4th respondent and the same was rejected

vide order dated 16.05.2011 without assigning cogent reasons.

6. On perusing the material available on record, it is

observed that the enquiry officer has not considered the

admissible evidence of PWs.2 to 4. PE.1, who is the

Commandant deposed in his cross examination that he did not

put the signature in the seizure list as a witness and he was

not presented at the time of preparation of seizure list. He has

admitted in his cross examination that he did not see the

petitioner collecting money illegal at duty post, but when he

reached B.C.Gate, he observed that the petitioner was moving

the stone under which money was concealed the others were

not checked physically and he has not received any complaint

administering petitioner about collecting money illegally. PW.2

to PW.4 have categorically stated that they did not see the

Charged Official collecting money from anybody and concealing

the money under the stone/concrete brick. Therefore, there is

no evidence of collection and keeping the money beneath the

concrete stone. Without assigning any cogent reasons and

without application of mind, the respondents No.1, 2 and 4

came to a conclusion that the allegation of misconduct the

petitioner is proved and blindly imposed punishment of

Compulsory retirement from service. Therefore, the findings of

the disciplinary authority as well as appellate authority are

contrary to the admissible evidence available on record. Even

assuming that the excess of pocket money of Rs.22/- is

considered, it will be a negligent or mistake, but not a

misconduct, viewed from any angle, the evidence clearly

establishes that the said allegation is not proved and even

assuming that there is excess of Rs.22/- as pocket money and

the punishment imposed of compulsory retirement is

disproportionate to the charge alleged to have been proved.

7. The Hon'ble Supreme Court in a decision reported in

Mahindra and Mahindra Limited Vs. N.B Narawade1,

wherein, it was held in Para-20 that :

"20. It is no doubt true that after introduction of Section 11- A in the Industrial Disputes Act, certain amount of discretion is vested with the labour court/Industrial Tribunal in interfering with the quantum of punishment awarded by the Management where the concerned workman is found guilty of misconduct. The said area of discretion has been very well defined by the various judgments of this Court referred to herein above and it is certainly not unlimited as has been observed by the Division Bench of the High Court. The discretion which can be exercised under Section 11-A is available only on the existence of certain factors like punishment being disproportionate to the gravity of misconduct so as to disturb the conscience of the court, or the existence of any mitigating circumstances which requires the reduction of the sentence, or the past conduct of the workman which may persuade the Labour Court to reduce the punishment. In the absence of any such factor existing, the Labour Court can not by way of sympathy alone exercise the power under Section 11-A of the Act and reduce the punishment. As noticed herein above atleast in two of the cases cited before us, i.e. Orissa Cement Ltd. (supra) and New Shorrock Mills (supra), this Court held: "punishment of dismissal for using of abusive language cannot be held to be disproportionate." In this case all the forums below have held that the language used by the workman was filthy. We too are of the opinion that the language used by the workman is such that it cannot be tolerated by any civilized society. Use of such abusive language against a superior officer, that too not once but twice, in the presence of his subordinates cannot be termed to be an indiscipline calling for lesser punishment in the absence of any extenuating factor referred to herein above."

2005 LAWSuit (SC) 329

8. From a reading of the above decision of the Hon'ble

Supreme Court, as per Section 11-A of the Industrial Disputes

Act, punishment being disproportionate to the gravity of

misconduct so as to disturb the conscience of the court, or the

existence of any mitigating circumstances which require the

reduction of the sentence, or the past conduct of the workman

which may persuade the Labour Court to reduce the

punishment.

9. In view of the foregoing discussion and upon

considering the submissions made by both the learned

counsels, this Court is of the considered view that the

impugned orders, which are challenged before this Court

against the petitioner are liable to be set aside.

10. Accordingly, the Writ Petition is allowed with the

following directions:

i) The impugned Proceedings of the 2nd respondent

vide No.B15015/CISF/ANU/ SS/2010/1907, dated

29.03.2010; the order of appellate authority-1st

respondent vide No.V15014/ LR/Appeal/ IJ/SS/

2010/570, dated 30.07.2010 and the order of the

revisional authority vide No.V-11014/112/ L&R/

2010-642, dated 16.05.2011 are hereby set aside.

ii) Further, directing the respondents to reinstate the

petitioner into service with continuity of service of

50% of the back wages and with all consequential

benefits in accordance with law;

The above exercise shall be completed within a period of

eight (08) weeks from the date of receipt of a copy of this order.

There shall be no order as to costs.

As a sequel, all the pending miscellaneous applications

shall stand closed.

______________________________ DR. K. MANMADHA RAO, J.

Date :      -06-2022
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      HON'BLE DR. JUSTICE K. MANMADHA RAO




         WRIT PETITION No.17574 of 2011


                Date :   .06.2022




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