M. Jayarama Krishna, vs The Union Of India,
2022 Latest Caselaw 2238 AP

           HON'BLE DR. JUSTICE K. MANMADHA RAO

               WRIT PETITION No.25564 of 2013
ORDER :

This petition is filed under Article 226 of the Constitution

of India for the following relief:-

"to issue WRIT OF MANDAMUS declaring the action of the 1st respondent in so far as imposing the punishment of Reduction of pay by four( 04) increments for a period of four(

04) years from the date of reinstatement in service with further direction that during the period of reduction he will not earn increments of pay and on expiry of this period the reduction will have the effect of postponing his future increments of pay and with further direction that the intervening period from the date of compulsory retirement from the service to the date of reinstatement into service is proposed to be treated as dies- non for all purposes of service and further ordered that the service rendered by the petitioner prior to the compulsory retirement from service will have break in service provided petitioner not refunds all the pensionary benefits drawn by him along with prescribed rate of interest within one month from the date of receipt of this order along with penal interest at the prescribed rate @ 2% p.a will be charged in addition to normal rate of interest vide proceedings No.V11014/DOS /LR/Appl(MJK- SDSCS /13 dated 13.8.2013 is illegal, arbitrary, violative of Article 14 of the Constitution of India and consequently direct the respondents to fix the pay of the petitioner along with all arrears of salary including seniority promotion and all attendant benefits on par with his juniors and pass such other order or orders......."

2. Brief facts of the case are that the petitioner was

appointed as CISF Constable on 9.4.1992 and since then he

has been discharging his duties to the satisfaction of all the

concerned. The petitioner, while working under the control of

the 2nd respondent-The Commandant, CISF unit, Sriharikota,

Nellore, in A-Shift from 0500 hours to 1300 hours on 7.7.2008

at S.P.P Area in B-Zone, Miss Eeswaramma D/o Sri Nallaiah

and Miss E.Krishnama, D/o Sri Papaiah who are the civilians

working as Contract Labourers, were found moving

suspiciously at Jungle, which is coming within the jurisdiction

of B-Zone, as such the petitioner questioned them. But they

did not answer properly as such he asked them to go away but

they did not do so. A false report has been given by the above

two women against the petitioner to the respondent who has

initiated the disciplinary proceedings against the petitioner

even though he has not competency to initiate the

departmental action against the petitioner as it is civil police

has the jurisdiction to deal with such type of alleged

complaints.

It is further stated that the 2nd respondent has issued

Charge Sheet No.V-15014/SHAR/ADM-III/DISC/MAJ-

3/08/1033, dated 28.7.2008 alleging that the petitioner has

assaulted the above two women, which amounts to misconduct

and appointed Sri Krishnaiah, the Assistant Commandant as

Enquiry Officer to conduct enquiry and submit his report. It is

further submitted that the 2nd respondent has amended the

Charge Sheet dated 28.7.2008 and issued amended Charge

Memorandum vide proceedings No.V-15014/SHAR/ADM-

III/DISC/MAJ-3/08/1068 dated 01.08.2008. Though the 2nd

respondent has no jurisdiction to issue charge sheet alleging

incidents that are private in nature as per Section 18(2A) of the

Central Industrial Security Force Act, 1968. , which reads as

follows:

"Notwithstanding anything contained in the Code of Criminal Procedure, 1973 the Central Government may invest the commandant with the powers of a Magistrate of any class for the purpose of inquiring into or trying any offence committed by an enrolled member of the Force and punishable under this Act, or any offence omitted by an enrolled member of the Force against the person or property of another member of the Force; Provided that:

i) When the Offender is on leave or absent from duty; or

ii) When the offence is not connected with the offender's duties as an enrolled member of the Force; or

iii) When it is a petty offence even if connected with the offender's duties as enrolled member of the Force; or

iv) When, for reasons to be recorded in writing, it is not practicable for the Commandant invested with the powers of a Magistrate to inquire into or try an offence."

The offence may, if the prescribed authority within the limits of whose jurisdiction the offence has been committed so requires, be inquired in not or tried by an ordinary criminal court having jurisdiction in the matter."

It is submitted that the above rule and also taking into

consideration of various judgments of the Supreme Court of

India including a judgment of this Court in WP No.12066 of

1999, dated 4.9.2003 holding that the department has no

jurisdiction to enquire into the incidents which are purely

within the jurisdiction of Civil Police who can deal with such

type of offences if any, under ordinary Criminal Jurisprudence.

It is further submitted that though the 2nd respondent has no

jurisdiction to enquire into the incidents that are private in

nature more particularly when it is not related to the

employees within the force, has passed compulsory retirement

orders vide proceedings No.V-15014/SHAR/ADM-

III/DISC/MAJ-03/2008/1877, dated 13.12.2008 is illegal and

arbitrary. Challenging the same, the petitioner filed WP

No.28274 of 2008 before this Court and during pendency of

the writ petition, the petitioner preferred an appeal to the 1st

respondent-Union of India and the same was rejected

confirming the 2nd respondent order dated 12.8.2010 which

was further confirmed by the Revisional authority vide order

dated 24.2.2011. subsequently, this Court vide order dated

15.07.2013 in WP No.28274 of 2008, held that "having regard

to the facts and circumstances of the case, the impugned order

dated 13.12.2008 is set aside and the matter is remanded back

to the disciplinary authority with a direction to consider as to

whether any other punishment other than compulsory retirement

from service can be imposed on the petitioner."

Pursuant to the order of this Court, though the

disciplinary authority is 2nd respondent, the 1st respondent

taken up the matter and modified the order as "Reduction of

pay by four increments for a period of four years from the date

of reinstatement in service. It is further directed that during the

period of reduction, he will not earn increments of pay and on

expiry of this period, the reduction will have the effect of

postponing his future increments of pay." In view of the above,

requested to declare the impugned proceedings as illegal,

arbitrary and issue a direction as stated supra.

3. Counter affidavit is filed by the respondents denying

all the allegations made in the petition inter alia contended that

the contention of the petitioner is untenable as the respondent

being a disciplinary authority has initiated action against the

petitioner under the power on authority under sub-section 2A

and 3 of Section 18 of CISF Act 1968 and nominate to conduct

enquiry and charge memorandum was issued on the basis of

statement of the witnesses. It is also stated that the petitioner

relied on a judgment of this Court in WP No.12066 of 1999

however the case in respect of the petitioner is not similar to

the above writ petition. The incident happened in this Case

during the duty hours of the petitioner and within the premises

of the establishment i.e., work place which is prohibited place

where only authorized personnel are allowed to enter inside the

plant. Since the petitioner was involved in misconduct and

indiscipline activities with two lady labourers during his duty

hours, the 2nd respondent being a disciplinary authority is well

empowered under Section 18 of CISF Act 1968 to deal any

enrolled member of the Force. After a detailed enquiry , the

disciplinary authority, taking a lenient view considering his 16

years of service, passed final order on 13.12.2008 awarding

him punishment of "Compulsory retirement from service with

full pension and gratuity benefits for the qualifying service

rendered in the department with immediate effect."

It is further submitted that in pursuance of the judgment

dated 15.7.2013 in WP No.28724 of 2008, the matter was

taken up with the higher authority. Accordingly, the higher

formations directed the DIG/DOS Hqrs, Bangalore to

implement the above order. Subsequently, the DIG/DOS had

considered his case and commuted the original penalty

awarded to the petitioner vide order dated 13.12.2008.

It is further stated that there was no specific direction

given in the judgment dated 15.7.2013 in WP No.28724 of

2008 for treatment of intervening period from the date of

compulsory retirement to date of reinstatement. As such, a

proposal has been incorporated in the order dated 13.08.2013

issued by the DIG/CISF/DOS to regularize the period from the

date of compulsory retirement to the date of reinstatement as

Dies-Non as per rule-55 of CISF Rules, 2001. Moreover, the

petitioner was given an opportunity to submit his

representation against the proposal within 15 days from the

date of reinstatement in service. But instead of preferring

representation against the above proposal, the above proposal,

he has straight away approached this Court which is highly

objectionable.

4. Reply affidavit is filed by the petitioner inter alia

contended that Section 18 2(A) of the CISF Act, 1968 is only

applicable to the members of the posts and the Commandant

has got power only to deal with the matters which relates to

members of the Force and any offences if any committed

against the member by the other member only, but in the

present case the alleged offences relate to the private citizens

who are not the members of the force. As such the

Commandant has no power to enquire into the offences relate

to the private citizens which is exclusively dealt by the

Ordinary Criminal Courts. As such the impugned punishment

order issued by the respondent is illegal and arbitrary and the

punishment order is too excessive and disproportionate though

the High Court remanded the matter to impose minor

punishment the department has imposed heavy punishments

which is disproportionate to the alleged charge.

It is further submitted that the respondent themselves

have released the pension benefits at the time of compulsory

retirement which the petitioner has used for his family

necessities and he is not having any amount to repay the said

amount and it is harsh order imposed by the authority even

without considering the submission made by the petitioner.

He further stated that the respondents have not considered the

Rule 55 of CISF Rules property and the hardship caused to the

force member while ordering refund of the entire pensionary

benefits to be repaid by the Force member who has utilized the

said amount for his family necessities. It is further stated that

there is no court order to refund the pensionary benefits for

counting the past service for the purpose of pay fixation and

other benefits. The petitioner being the poor ST Force member

he has no source of livelihood except the job and now getting

very low amount in view of denial of past service. Hence

requests a direction as stated supra.

5. Heard Sri J.M. Naidu, learned counsel for the

petitioner and Sri J.U.M.V. Prasad, learned Standing Counsel

for Central Government appearing for the respondents.

6. Upon considering the submissions of both the

learned counsels and upon perusing the entire oral and

documentary evidence on record, this Court is the considered

opinion that the respondents have no jurisdiction to enquire

into the complaint made by the complainant which is nothing

to do with the CISF services and the Department ought not

have enquired into such complaint, assuming to be the

misconduct committed within the employment of the CISF

section 18of the Act or any other law does not empower the

respondents to enquire into such a complaint and came to the

conclusion that the petitioner has committed gross immoral

act and as such he deserves punishment of removal from the

service. The very assumption of jurisdiction by the

respondents is impressible and illegal. Thus the whole enquiry

conducted and the punishment imposed by the respondents is

without jurisdiction and as such the impugned order dated

13.12.2008 confirmed by the appellate authority dated

13.08.2013 is null and void and the same is liable to be

quashed.

7. In view of the above findings, the impugned order

dated 13.12.2008 compulsory retirement of the petitioner from

the service and as confirmed by the appellate authority by

order dated 13.08.2013 are set aside. Consequently, the

respondents are directed to fix the pay of the petitioner along

with all arrears of salary including seniority promotion and all

attendant benefits on par with his juniors, within a period of

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

8. Accordingly, the Writ Petition is allowed. There shall

be no order as to costs.

As a sequel, interlocutory applications, if any pending,

shall stand closed.

______________________________ DR. K. MANMADHA RAO, J.

Date : 04-05-2022 Gvl

HON'BLE DR. JUSTICE K. MANMADHA RAO

WRIT PETITION No.25564 of 2013

Date : 04-05-.2022

Gvl