K.Lakshmanan vs Union Of India Represented By ...
2021 Latest Caselaw 1023 Ker

                  IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                     PRESENT

                   THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE

                                         &

                   THE HONOURABLE MR. JUSTICE GOPINATH P.

        TUESDAY, THE 12TH DAY OF JANUARY 2021 / 22TH POUSHA, 1942

                             WA.No.1581 OF 2020

  AGAINST THE JUDGMENT IN WP(C) 28322/2015(M) OF HIGH COURT OF KERALA


APPELLANT:

                 K.LAKSHMANAN,AGED 50 YEARS
                 S/O.N.P.CHRUKANDAN, NO.902292498 CONSTABLE, CENTRAL
                 INDUSTRIAL SECURITY FORCE UNIT, SINGARENI COLLIERIES
                 COMPANY LIMITED, SINGARENI, POST NASPUR, ADILABAD,
                 TELANGANA STAE-504 302, NOW WORKING AT CENTRAL INDUSTRIAL
                 SECURITY FORCE UNIT, AIRPORT SECTOR GROUP, GOA AIRPORT
                 TERMINAL (POST), SOUTH GOA(DISTRICT), PIN-503 801.

                 BY ADVS.
                 SRI.K.B.HARSHAN
                 SMT.SOUMINI JAMES

RESPONDENTS:

       1         UNION OF INDIA REPRESENTED BY SECRETARY, DEPARTMENT OF
                 DEFENCE, NEW DELHI-03.

       2         THE DIRECTOR GENERAL, CENTRAL INDUSTRIAL SECURITY FORCE,
                 BLOCK NO.13, CGO COMPLEX, LODHI ROAD, NEW DELHI-03.

       3         THE DEPUTY INSPECTOR GENERAL,CENTRAL INDUSTRIAL SECURITY
                 FORCE, SOUTH ZONE HEAD QUARTERS, RAJAJI BHAWAN, BESANT
                 NAGAR, CHENNAI-90.

       4         THE GROUP COMMANDANT,CENTRAL INDUSTRIAL SECURITY FORCE
                 GROUP HEAD QUARTERS, KENDRIYA BHAVAN, COCHIN-682 030.

       5         K.KORAPPAN,MITHILA, CHEMENCHERI P.O., QUILANDI TALUK,
                 KOZHIKODE DISTRICT-673 304.


                 R1-5 BY ADV. SRI.T.V.VINU

OTHER PRESENT:

                 SMT. O.M. SHALINA-CGC

THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 05-01-2021, THE COURT ON
12-01-2021 DELIVERED THE FOLLOWING:
 W.A.No.1581/2020                        2




                                                               C.R.
                               JUDGMENT

Dated this the 12th day of January 2021

Gopinath, J.

This writ appeal arises from the judgment of a learned single

Judge of this Court in W.P.(C)No.28322/2015.

2. The brief facts are that the Appellant while working as a

Constable in the Central Industrial Security Force at the New

Mangalore Port Trust was subjected to disciplinary action. The

allegation upon which he was proceeded with is that he was found

to be in possession of cash (Rs.1573/-) which was more than the amount

declared by him at the time of joining duty on that day and this was

also in violation of the unit's standing instructions whereby duty

personnel are not allowed to keep more than Rs.10 during duty hours.

Though the Appellant offered some explanations for possession of

cash, a formal enquiry was conducted and the Enquiry Officer found

the Appellant guilty. Ext.P14 order dated 22.10.2009 was passed by

the disciplinary authority agreeing with the findings of the Enquiry

Officer and imposing on the Appellant the punishment of compulsory

retirement from service with full pension and gratuity. The period of

suspension from 30.5.2009 to 3.9.2009 was to be treated as a

suspension for all purposes and payment for that period was to be

limited to the subsistence allowance already paid. Ext.P14 order was

passed by the Group Commandant, CISF Group Head Quarters,

Cochin. An appeal filed by the Appellant was rejected by the Deputy

Inspector General of the Central Industrial Security Force having his

office at Besant Nagar, Chennai. The Appellant approached this

Court by filing W.P.(C)No.12035/2010 which was disposed of

relegating the Appellant to the remedy of revision before the Director-

General of the CISF. On the revision petition preferred by the

Appellant, Ext.P19 order was passed by the Director-General of CISF.

The operative portion of Ext.P19 order reads thus:-

"10. NOW THEREFORE, having regard to the totality of the facts and circumstance of the case I conclude that though the punishment of Compulsory Retirement from service awarded to him by the Disciplinary Authority is appropriate in the case, yet on a purely humanitarian count and considering the fact that the petitioner had served for more than 19 years in CISF, I am inclined to take a compassionate view and hereby modify the penalty of Compulsory Retirement from service awarded to him by Group Commandant CISF Cochin, vide order dated 22.10.2009 to that of "Reduction of pay by two stages in the time scale of pay for a period of two years with further direction that he will not earn increments of pay during the period of reduction and that on the expiry of such period the reduction will have the effect of postponing his future increments of pay."

11. NOW THEREFORE, I hereby reinstate the petitioner in service with the above punishment and direct him to report for duty at South Zone HQrs Chennai within 15 days from the date of receipt of this order. If he failed to

report for duty within the stipulated period, it will be presumed that he is no more interested to serve in CISF and order of reinstatement will be treated as withdrawn. On reinstatement, the penalty as ordered above shall be given effect to.

12. The intervening period from the date of Compulsory retirement from service to the date of joining on re- instatement will be regularized separately. The petitioner would be given an opportunity to submit his representation against the proposal within one month of joining the duty on re-instatement and decision in this regard will be taken after consideration of the representation, if any submitted by the petitioner or after expiry of period of one month, as the case may be."

Thereafter, through Ext.P23 order, the intervening period from the date

of compulsory retirement from service to the date of joining after

reinstatement, i.e., 27.10.2009 to 2.12.2014, was directed to be treated

as 'dies non'. The petitioner, therefore, approached this Court by filing

W.P.(C)No. 28322/2015 seeking to quash Exts.P14, P16, P19 and P23

and for other consequential reliefs. On a consideration of the matter,

the learned single Judge held that this Court had no territorial

jurisdiction to decide the writ petition as no part of the cause of action

had arisen within the territorial jurisdiction of this Court. Thus, this

appeal at the instance of the Appellant.

3. We have heard Ms Soumini James, learned counsel

appearing for the appellant and Smt. O.M. Shalina the learned Central

Government Counsel for the respondents.

4. The learned counsel for the appellant would submit that

the finding of the learned single Judge that no part of the cause of

action had arisen within the jurisdiction of this Court, is completely

incorrect on facts as well as in law. She would submit that the

appellant was proceeded against while he was working in the New

Mangalore Port Trust and that he was imposed with the penalty of

compulsory retirement from service through an order issued by the

Group Commandant, CISF Group Head Quarters, Cochin. She would

submit that all consequential orders including Exts.P19 and P23 are

intrinsically connected with Ext.P14 order especially since Ext.P19 was

issued in a revision petition arising out of Ext.P14 order as affirmed

by the appellate authority in Ext.P16. She further submits that

Ext.P.19 was issued under a direction issued by this Court in W.P.

(C)No.12035/2010. Still, further, she submits that Ext.P23 order

relates to the treating of the period during which the appellant was

kept out of service following the order of compulsory retirement till

the date on which he was reinstated following the directions

contained in Ext.P19 order of the revisional authority. It is therefore

submitted that since every order impugned in the writ petition is

intrinsically connected with the original order Ext.P14 and since all

other orders arise from or out of the original proceedings (Ext.P14), it

would be wrong to suggest that this Court did not have territorial

jurisdiction to decide the matter. In support of this contention, the

learned counsel relies on the judgment of the Supreme Court in

Kusum Ingots & Alloys Limited v. Union of India and

another; (2004) 6 SCC 254. On the merits, she would submit that

the disciplinary proceedings were initiated against the Appellant only

on account of malice nurtured by the 5th respondent, who was then

working as Assistant Commandant at the New Mangalore Port Trust.

She would refer to the averments in paragraphs 2, 3 and 4 of the writ

petition, wherein the allegations of malafides against the 5th respondent

have been narrated. She would also submit that the petitioner's

explanation for having more than the permitted amount, in hand, was

a reasonable one and was supported by the evidence tendered during

the enquiry. She would submit that the enquiry was conducted by a

person subordinate to the 5th respondent as a result of which the 5th

respondent was able to manipulate the finding into one of guilt. She

would also submit that, at any rate, the punishment imposed on the

Appellant is grossly disproportionate to the charges and that the

Appellant is seriously prejudiced by Ext.P23 directing to treat the

period between 27.10.2009 to 2.12.2014 as 'dies non'.

5. The learned counsel appearing for the respondents, on the

other hand, submits that this Court has no territorial jurisdiction to

consider the writ petition on merits. She would specifically refer to the

finding of the learned single Judge in paragraph 18 of the impugned

judgment and reiterate that for the reasons mentioned therein the

writ petition was not maintainable before this Court. In reply to the

contentions raised by the learned counsel for the appellant on the

merits of the matter, she would submit that even in Ext.P19 order, the

Appellant had not been exonerated and that the revisional authority

had only reduced the quantum of punishment purely on

humanitarian grounds. She would submit that it is settled law that

this Court in the exercise of the powers of judicial review would not

enter into findings of fact recorded by the Enquiry Officer

/Disciplinary Authority, as judicial review is concerned only with the

decision making process and not with the decision itself. In support of

this contention, the learned counsel places reliance on the judgments of

the Supreme Court in Union of India and others v.

P.Gunasekharan; (2015) 2 SCC 610, Central Industrial

Security Force and others v. Abrar Ali; (2017) 4 SCC 507 and

State of Karnataka & anr v. N. Gangaraj; (2020) 3 SCC 423.

She submits that the penalty imposed by the revisional authority in

the modification of the penalty imposed by the disciplinary authority

and affirmed by the appellate authority, cannot be said to be

disproportionate in any manner. She submits that the penalty

imposed by the revisional authority is, after taking a very lenient view of

the grave charges against the Appellant especially because the Appellant

was working in the Central Industrial Security Force which is a

disciplined force. Regarding the treatment of the period between the

date of compulsory retirement and the date of the reinstatement as 'dies

non' she submits that such a course of action is perfectly justified in

terms of Rule 55 of the Central Industrial Security Force Rules, 2001.

6. We have considered the contentions raised by either side. At

the outset, we must consider the question as to whether the writ petition

was at all maintainable before this Court. We are completely in

agreement with the Learned Single Judge regarding his analysis of the

legal position flowing from the decisions of the Supreme Court in

State of Rajasthan v. Swaika Properties, (1985) 3 SCC 217,

ONGC v. Utpal Kumar Basu, (1994) 4 SCC 711, Union of

India v. Adani Exports Ltd., (2002) 1 SCC 567, Ambica

Industries v. CCE, (2007) 6 SCC 769 and Nawal Kishore

Sharma v. Union of India, (2014) 9 SCC 329. However, we are

of the view that in deciding the question of territorial jurisdiction

even a minute difference in the facts can lead to a different result. We

believe that in the facts of the present case, the Writ Petition was

maintainable before this Court for the simple reason that the original

order was issued by an officer stationed at Kochi. In Kusum Ingots

(supra) it was held: -

" 27. When an order, however, is passed by a court or tribunal or an executive authority whether under provisions of a statute or otherwise, a part of cause of action arises at that place. Even in a given case, when the original authority is constituted at one place and the appellate authority is constituted at another, a writ petition would be maintainable at both the places. In other words, as order of the appellate authority constitutes a part of cause of action, a writ petition would be maintainable in the High Court within whose jurisdiction it is situate having regard to the fact that the order of the appellate authority is also required to be set aside and as the order of the original authority merges with that of the appellate authority."

We, therefore, have no hesitation to hold that the Writ Petition was

maintainable before this Court since the original order (Ext.P.14) was

issued by an officer stationed at Kochi and all other proceedings

including Ext.P.16 (the appellate order), Ext P.19 (the revisional

order) and Ext P.23 (the order treating the period from the date of

compulsory retirement to the date of reinstatement as 'dies non') arise

from or emanate from that order.

7. Though we have held that this Court has jurisdiction to

decide the lis, we believe that the challenge raised by the appellant to

Exts.P14, P16, P19 and P23 must fail.

8. Though there are allegations of malafides against the 5th

respondent and though the 5th respondent has not chosen to file any

counter-affidavit, we think that those allegations even if accepted to be

completely true, fall woefully short of the threshold requirement in

matters like these, where Courts would require extremely precise and

specific allegations, which even if refuted, would lead to the

irresistible conclusion that the impugned proceedings were the product

of malice.

9. We also see no merit in the contention raised by the

learned counsel for the appellant that the enquiry was vitiated as it

was conducted by an officer junior to the 5th respondent. Firstly we

have found that the allegations of malafides have not been

established. Therefore nothing turns on the fact that the enquiry

officer was junior to the 5th respondent. Secondly, the Enquiry

Officer is only a fact-finding authority. The disciplinary authority has

every right to differ even from the findings of fact recorded by an

Enquiry Officer. The appellant has no case that the disciplinary

authority was also subordinate to the 5th respondent or that he acted

under the influence of the 5th respondent. The findings of guilt

against the appellant have been confirmed in Ext.P16 and Ext.P19,

though in Ext.P19 the penalty of compulsory retirement was

modified. In that view of the matter, we have no hesitation to reject

the contention of the learned counsel for the appellant that the

enquiry was vitiated because the enquiry was conducted by an officer

junior to the 5th respondent against whom there are allegations

of malafides.

10. Then the question is whether we should examine the

proceedings minutely, reappreciate the evidence and examine the

question as to whether there was any basis for the finding of guilt

against the appellant. The jurisdiction of Courts and Tribunals in the

matter of disciplinary proceedings is well settled. The learned

counsel for the respondents is right in contending that based on the

ratio of the judgments in P.Gunasekharan (supra) Abrar Ali

(supra) and N. Gangaraj (supra); that this Court is not expected to

act as an appellate authority and examine the enquiry proceedings

with a microscope and to redetermine the facts in an application for

judicial review under Article 226 of the Constitution of India. Of

course, in a case where there is a complete lack of evidence, we would

be justified in setting aside proceedings on that ground. We are

however unable to conclude that this is a case where there is complete

lack of evidence. The fact that the appellant had money in excess of

permitted amounts is not disputed. The authorities have considered

the evidence let in and concluded that the appellant is guilty of the

charges levelled against him. The explanation offered by him for

having cash in excess of the permitted amount was found to be

unsatisfactory. That being the position, we have no reason to

interfere with the findings of fact recorded by the authorities concerned.

11. We have specifically enquired with the learned counsel for

the respondents as to whether the period during which the appellant

was out of service following the order of compulsory retirement till

the date of his reinstatement will in any manner affect the pension of

the appellant. The learned counsel, upon instructions, submitted before

us that presently, as per the Rules, pension is calculated based

on last pay drawn and the treatment of the period from the date of

compulsory retirement to the date of reinstatement as dies-non, in

the case of the appellant, will not in any manner affect his pension

since the appellant even otherwise will have the necessary qualifying

service for pension. We have considered this issue only to see

whether the punishment imposed on the appellant is grossly

disproportionate to the charges levelled against him. We also notice

that during the period from the date of compulsory retirement to the

date of reinstatement the appellant received a pension which is not

sought to be recovered from him. That apart, the appellant has not

rendered any service during the aforesaid period. We, therefore, feel

that the treatment of the period from the date of compulsory

retirement to the date on which he was reinstated as dies non is

justified and in accordance with the Rule 55 of the Central Industrial

Security Force Rules.

12. We, therefore, find no reason to interfere with Exts.P14,

P16, P19 and P23. The writ appeal, therefore, fails and is accordingly

dismissed.

Sd/-

A.M.SHAFFIQUE

JUDGE

Sd/-

GOPINATH P.

JUDGE

acd