Delhi High Court
Renu S. Kumar vs Union Of India & Ors on 24 July, 2014
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on : 24.07.2014
+ W.P.(C) 6118/2013
RENU S. KUMAR ..... Petitioner
Through: Ms. Rekha Palli with Ms.
Amrita Prakash and Ms. Ankita
Patnaik, Advocates.
Versus
UNION OF INDIA & ORS ..... Respondents
Through: Mr. Ankur Chhibber, Adv.
CORAM:
HON‟BLE MR. JUSTICE KAILASH GAMBHIR
HON‟BLE MR. JUSTICE NAJMI WAZIRI
NAJMI WAZIRI, J. (Oral)
1. By an order dated 26.07.2012, the petitioner was levied the
penalty of removal from service under Sub Rule (22) (ii) of Rule 36
read with Rule 34 and Schedule - 1 of CISF Rules - 2001 and Clause-2
(12) (xiii) of CISF (Amendment) Rules, 2003. Her appeal against the
punishment was rejected on 31.12.2012. Even her Revision Petition
against the levy of punishment and the order-in-appeal was dismissed
on 31.05.2013. Aggrieved by the aforesaid orders resulting in her
removal from service, the petitioner has sought under Article 226 of
the Constitution of India, quashing of the three orders by a Writ of
Certiorari and a Writ of Mandamus directing the respondent to
reinstate the petitioner in service with all consequential benefits.
2. The case relates to an incident of 10th April 2012, when the
petitioner was detailed in „A‟ shift duty from 0500 hours to 1300
hours at domestic SHA X-BIS-4 of RGI Airport, Hyderabad. Her
duty was to carry out "physical-baggage-checking" of passengers
travelling to various destinations from Hyderabad Airport, her
colleague Sub Inspector Suman Punia was assigned the duty at X-BIS
(hand-baggage scanner machine) operation. It is stated that in the
course of her duty, at 0955 hours, SI Punia signalled to the petitioner
to check two handbags as she suspected the presence of some eatables,
paper cutter and a coil of thin rope in the bag as neither of these items
are allowed in the aircraft as cabin luggage.
3. Upon the petitioner‟s request, the said lady-passenger opened
the bag herself and paper cutter, eatables and a coil of thin rope etc.
were put aside in a tray on the ground; initially the passenger was
reluctant to take out the prohibited items and go outside and put the
belongings in her checked in baggage on the plea that there was very
little time left for her flight but later she relented and the petitioner
directed the stamp duty constable to give the items to the passenger.
4. While putting the prohibited items back into her bag, the lady
passenger levelled allegations that her two gold rings and one earring
were missing from her bag and she started imputing the petitioner of
pilferage. On alarm being raised, SI Suman Punia and the petitioner
were taken to the Asstt. Commandant‟s room which was about 12-15
meters away from the X-BIS machine for frisking by Ms. Shanthi
Komari, Sr. Assistant GHIAL. Amongst them, the petitioner was first
to be frisked by Ms. Shanthi Komari and while the petitioner was
being frisked, the lady passenger and SI Suman Punia kept waiting on
the sofa near the cabin in the Assistant Commandant‟s room. It is
stated that after frisking the petitioner thoroughly and finding nothing
on her person, Ms. Shanthi Komari came outside the cabin and she
noticed the missing gold items on the floor, which upon being asked
was recognized and claimed by the lady passenger to be her missing
jewellery items. Thereafter, Ms. Shanthi Komari reported to the
Commandant that she thoroughly frisked both of them whereas in fact,
only the petitioner has been frisked and nothing was found on her
person. It is stated that subsequently, during enquiry Ms. Shanthi
Komari changed her statement and falsely stated that the missing gold
items were found lying on the floor of the cabin.
5. The passenger later identified as Ms. Fatima Nazia and was
seen in the CCTV recording. The article of charge against the
petitioner was:
"A gross misconduct, an act of dishonesty and
serious breach of discipline on the part of
No.032650019 Lady SI/Exe Renu S Kumar, in that, on
10.-04-2012 while she was detailed in „A‟ shift duty
from 0500 hours to 1300 hours at domestic SHA X-BIS-
4 of RGIA Hyderabad, she while carrying out physical
baggage checking duty, took out personal belongings
i.e. two gold rings and one gold ear ring from the hand
baggage of a lady passenger, namely Fatima Nazia who
was bound to travel from Hyderabad to Delhi by Spice
Jet flight SG-226 during pre-embarkation security
checking at about 1000 hrs with the malafide intention
of wrongful gain"
6. The prosecution evidence regarding the allegations were
reduced to a very narrow compass. There is no dispute that the three
gold items were not found at the X-BIS machine where the lady
passenger‟s cabin-luggage were being checked. The three ladies
involved were the petitioner, her colleague - SI Suman Punia, and the
passenger herself. They were taken into a room which was about 12
to 15 meters away. The petitioner was the first one to be frisked
within the Assistant Commandant‟s room while the other two ladies
waited outside the cabin. The three gold items were not found on the
person of the petitioner. The petitioner contends that after having
undergone a thorough but futile frisking inside the cabin of Assistant
Commandant‟s office, Ms. Shanthi Komari later found the three gold
items outside the cabin of Assistant Commandant‟s room which were
then handed over to the lady passenger. SI Suman Punia (PW-2)
during her cross-examination by the petitioner in question No. 11
clearly stated that the ornaments were found lying on the floor at a
distance of 3 to 4 meters from the petitioner. Report of Ms. Shanthi
Komari to the Commandant (Annexure P-3) recorded that ornaments
were found outside the cabin in the AC‟s room when she came out
after finishing frisking of the petitioner. Therefore, the contention of
the respondent that none of the witnesses stated/deposed that the
missing items were found at a distance of 3 to 4 meters, was wrong.
The petitioner submits that there is no evidence of anyone having seen
the petitioner being in possession of the said three gold items and/or
dropping the items at the place from where they were found nor was
any metallic sound heard by anyone when the gold items fell on the
floor. The petitioner submits that Ms. Shanthi Komari later changed
her true version from the report made to the Assistant Commandant
immediately after the frisking in which she had recorded that she
found the missing gold items on the floor in the AC‟s room outside the
cabin.
7. The petitioner‟s case was that instead of her being subjected to
physical frisking first, the lady passenger should have been frisked
first to ascertain whether the gold items were on the latter‟s person.
The petitioner contends that the lady passenger was obviously irritated
on being asked to remove the prohibited items from her cabin luggage
and to check them in the check-in luggage, hence she had imputed the
charge of pilferage against her, out of spite.
8. This Court witnessed the CCTV recording of the entire incident
from the time the lady passenger arrived at the security check counter;
opened her bag, took out items from it and is seen in conversion with
the officers manning the X-BIS machine. The petitioner is identified
as standing opposite to the passenger speaking to her over the
security-check table. The passenger can be seen clearly along with her
bag and the disgorged items from the bag kept on the table. There is
no evidence or apparent removal of any item by the petitioner from the
security check counter onto her person. After sometime she is seen to
move away from the security counter and the passenger too leaves the
spot. Apparently, this is the time when all the three ladies were taken
to the Assistant Commandant‟s room for physical frisking.
9. The Revisionary Authority concurred with the finding of the
department that there is no difference in the statements of PW-6 i.e.
Ms. Shanthi Komari given after frisking of the petitioner and during
her departmental inquiry; that in her initial statement Ms. Shanthi
Komari did not specify the distance between the petitioner and the
missing gold items which were found lying on the floor. It was only
during the cross-examination that Ms. Komari had deposed that it to
be at a distance of about a foot or so from the petitioner; that the
presumption of Ms. Komari having been pressurized to depose a
tutored statement was misplaced; that the petitioner had chosen not to
exercise her right to cross-examine Ms. Komari during the
departmental inquiry; that the allegations of subjecting the petitioner
to unnecessary harassment of being frisked too was baseless. The
Revisionary Authority held that the passenger had written a complaint
about missing ornaments and partly held the petitioner responsible for
the theft but the other two ladies were not frisked because, in the
interim, the ornaments were recovered.
10. This Court notes that the Revisionary Authority recorded that
the ornaments had been recovered from the frisking of the petitioner.
This is, evidently an erroneous finding. It is not based upon the record
because the gold items were admittedly discovered not from the
person of the petitioner but were found lying on the floor outside the
cabin at some distance from her, after she had been frisked by Ms.
Shanthi Komari.
11. After having witnessed the CCTV recording and having
considered the submissions of counsel for the parties, this Court is of
the view that there is nothing on record to show that the petitioner
removed, picked-up or pilfered the gold ornaments from the baggage
of the lady passenger. The ornaments were, evidently, found outside
the cabin which was located inside the Assistant Commandant‟s room
where the petitioner was physically frisked. They were not found on
the person of the petitioner but, at some distance from her. The
distance claimed by the petitioner is 3 to 4 feet away from her and
outside the cabin where she was physically frisked and that there is no
evidence of anyone witnessing the petitioner dropping the gold
ornaments on the floor or the tinkeling sound of the gold items falling
on the floor. An extract of the CISF General Diary (DOM SHA) dated
10.4.2012 (Page 23) notes: "the said lady Pax found her golden
earring & ring found near the ground." There is no direct evidence of
the gold items ever being on her person or in her possession.
Therefore, the allegation against the petitioner was baseless, misplaced
and untrue and the finding against her was clearly wrong.
12. This Court is further of the view that logically, when the lady
passenger complained of loss of the gold items, it should have been
first ascertained whether she had actually lost it or had erroneously
removed it into some pocket of her apparel. It is well possible that she
had it on her person and could have dropped it on the floor just when
the physical frisking was taking place. At the time of security check of
hand bag, an airline passenger is always anxious to clear the security
check. Any obstacle in quick clearance or being subjected to further
checking of their cabin luggage could cause annoyance,
embarrassment and also be perceived as harassment. The pressure to
clear out from the checking counter is always there, all-the-more
because of the mounting queue of passengers behind who are awaiting
their turn to clear into secure area for boarding of the plane. In such
circumstances an anxious and perhaps spiteful passenger could well
impute a charge against an officer who though being diligent in her
duty may be perceived by the passenger as the embodiment of
harassment. It is well possible that the lady passenger could have
removed the three gold ornaments from her body lest it create a
problem while passing through the metal detector frame. She could
well have been holding them in her hand or having kept it somewhere
else in her belongings or apparel, have forgotten it in the confusion,
after being subjected to detailed checking of the cabin baggage. The
gold ornaments could have innocently got mixed up in her own
belongings while lending her the erroneous impression, that the same
had been pilfered by the petitioner. It is also possible that the lady
passenger discovered her mistake when she along with two CISF
officers were being taken for physical frisking and to escape
embarrassment, it could have been dropped in the Assistant
Commandant‟s room. Therefore, logically, the lady passenger should
have been frisked first so as to obviate any possibility of the gold
items being on her person.
13. Insofar as there is no direct evidence inculpating the petitioner
of the offences she was charged with, the domestic inquiry was
vitiated by ignoring the likelihood of the gold items having been
dropped inside the Assistant Commandant‟s room by someone else.
14. A separate statement of the passenger has not been recorded
during the trial nor was she put to any cross-examination in this
regard. Therefore, the presumption, by the CISF that the gold
ornaments which were found on the floor were either dropped or left
by the petitioner just before she went in for physical frisking, is
without any basis and is wrong. Subjecting the petitioner to physical
frisking first instead of the complainant lady passenger, to ascertain
whether the missing items were on the person of the petitioner
displays a clear bias against the petitioner and a presumption that the
petitioner had indeed, pilfered the gold ornaments.
15. The petitioner has spent nine years of unblemished service but
has been removed from service on the complaint of just an agitated
passenger, whose bags were checked by the petitioner, not only in
front of the passenger but in the presence of her other on-duty CISF
colleagues who were aware of the entire checking.
16. From the aforesaid discussion, the charge of misconduct,
dishonesty and breach of discipline in misappropriating the personal
belongings i.e. three gold ornaments is not made out. Her removal
from service is fully unjustified. The innocence of the petitioner is
witnessed from the CCTV recording as well as from the aforesaid
discussion. There is nothing to inculpate the petitioner and she is
innocent. The petition succeeds. The impugned orders dated
26.07.2012, 31.12.2012 and 31.05.2013 are set aside. The petitioner is
to be reinstated in the service with full salary and all benefits of pay
increments, seniority etc. for the intervening period. The respondents
are directed to issue necessary orders in this regard within four (4)
weeks. No orders as to costs.
NAJMI WAZIRI
(JUDGE)
KAILASH GAMBHIR
JULY 24, 2014/acm (JUDGE)
