Madras High Court
S.Baskaran vs The Senior Commandant on 4 March, 2021
W.A.(MD)No.871 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 04.03.2021
CORAM:
THE HONOURABLE MR.JUSTICE M.M.SUNDRESH
AND
THE HONOURABLE MRS.JUSTICE S.ANANTHI
W.A.(MD)No.871 of 2019
S.Baskaran : Appellant
Vs.
1.The Senior Commandant
Central Industrial Security Force Unit
Cochin Port Trust,
Kerala State.
2.The Deputy Inspector General of Police,
Central Industrial Security Force,
Southern Zone, Head Quarters,
Rajaji Bhavan, Besant Nagar,
Chennai - 600 090.
3.P.S.Abhaya Kumar
Inspector of Executive,
Central Industrial Security Force Unit,
CSY, Cochin.
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W.A.(MD)No.871 of 2019
4.The Inspector General
Central Industrial Security Force,
South Sector,
Chennai Port Trust Campus,
New War Memorial,
Chennai - 600 009. : Respondents
PRAYER: Appeal filed under Clause 15 of the Letters Patent as against the order
dated 21.03.2019 made in W.P.(MD)No.5566 of 2019.
For Appellant : Mr.VR.Shanmuganathan
For Respondents : Mr.V.Malaiyendran - RR1, 3 & 4
Central Government Standing Counsel
*****
JUDGMENT
(Judgment of the Court was delivered by M.M.SUNDRESH, J.)
This writ appeal has been preferred by the appellant, who suffered a
punishment of compulsory retirement for the charges framed, while he was
working as a Head Constable.
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W.A.(MD)No.871 of 2019
2. The following are the charges framed against the appellant :
"Article of Charge-I
CISF No.854506433 HC/GD S.Baskaran of CISF
Unit, CSY Cochin, while serving at CISF Unit
VOCPT Tuticorin was detailed for "C"shift duty from
2100 hrs from 21.03.2015 to 0500 hrs on 22.03.2015
at Check Post No.01 duty post of VOCPT Tuticorin.
At about 2040 hrs on 21.03.2015 while conducting the
shift briefing by the Shift I/C, ASI/EXe Nahar Singh,
in the presence of Insp/Exe C Chinnakannan (Coy.
Commander), he created an unpleasant scene, argued
with his seniors threatening in front of other duty
personnel that he will remain in nude position during
the checking of anti-corruption team, if they want to
check him. Further, he argued and questioned the
authority of checking by anti-corruption checking
team detailed by higher formation at CISF Unit
VOCPT Tuticorin. The said act on the part of No.
854506433 HC/GD S Baskaran tantamount to severe
indiscipline, gross misconduct, and insubordination
and unbecoming a member of disciplined para-military
Force of the Union.
Article of Charge-II
CISF No.854506433 HC/GD S.Baskaran of CISF Unit,
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W.A.(MD)No.871 of 2019
CSY Cochin, while serving at CISF Unit VOCPT
Tuticorin was detailed for "C"shift duty from 2100 hrs
from 21.03.2015 to 0500 hrs on 22.03.2015 at Check
Post No.01 duty post of VOCPT Tuticorin. At about
2040 hrs on 21.03.2015 while conducting the shift
briefing by the Shift I/C, ASI/EXe Nahar Singh, in the
presence of Insp/Exe C Chinnakannan (Coy.
Commander), without any provocation he took a knife
measuring about one feet along with six inches blade
from his personal hand bag and showed to all
threatened with dire consequences by saying that he
won't hesitate to go to jail after using the knife against
anti-corruption checking team in front of other duty
personnel assembled for the same shife duty. The Coy.
Commander checked the hand bag of said HC/GD and
finds no other objectionable materials with him. he
then proceeded for duty along with the knife without
listening the advice of Coy. Commander. A GD entry
in this regard has made by the Coy. Commander vide
No.806 at 2103 hrs on 21.03.2015 and submitted a
special report in this regard vide letter No.(634) dated
22.03.2015. The said act on the part of No.854506433
HC/GD S Baskaran tantamount to gross negligence,
severe indiscipline, disobey of lawful standing
instructions, and highly unbecoming a member of
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W.A.(MD)No.871 of 2019
disciplined para-military Force of the Union.
Article of Charge-III
CISF No.854506433 HC/GD S.Baskaran of CISF Unit,
CSY Cochin (formerly of CISF Unit VOCPT
Tuticorin) was appointed in the CISF on 22.04.1985.
During his service he was dealt departmentally eight
times for various types of omissions and commissions
and awarded one major penalty and seven minor
punishments as below :
***** *****
***** *****"
3. The Enquiry Officer found that the Charge-I against the appellant
was not proved. Charge-II is to the effect that the appellant threatened the
prosecution witnesses with dire consequences with a knife by saying that he won’t
hesitate to go to jail or die. Charge-III is in respect of the past conduct of the
appellant along with the punishment suffered.
4. The Disciplinary Authority, after taking into consideration the
report of the Enquiry Officer, who held that Charge-II and III are proved,
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W.A.(MD)No.871 of 2019
particularly, in the light of the statement made by the prosecution witnesses 1 to 6,
as against the defence witnesses produced by the appellant, imposed the
punishment of dismissal. On appeal, the punishment was modified to one of
compulsory retirement with full pension. Challenging the same, the writ petition
was filed.
5.The learned Single Judge, after holding that there is no irregularity
in the procedure followed, dismissed the writ petition and hence, the present writ
appeal is filed.
6.Mr.VR.Shanmuganathan, learned counsel appearing for the
appellant made three submissions, namely, there is a violation of principles of
natural justice for not furnishing the documents, non-application of mind with
respect to the material available on record and the Charge-III being irrelevant.
7. The learned counsel appearing for the respondents submitted that
the enquiry has been conducted, after affording sufficient opportunity followed by
due procedures having been adopted by the Disciplinary and Appellate Authorities
and hence, no interference is required as held by the learned Single Judge.
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W.A.(MD)No.871 of 2019
8. On the question of violation of principles of natural justice, we do
not find any merit. The principles of natural justice has got two distinct elements,
viz., one that inheres an individual meaning that an order of civil consequence can
never be passed without affording an opportunity. The second is on the question
of prejudice for not affording an adequate opportunity. We are dealing with the
second situation. It is not as if the appellant was not given an adequate
opportunity in a full-fledged enquiry that was conducted. He was permitted to
peruse the documents and the statements made by the witnesses. The Enquiry
Officer found that the other documents sought for are not relevant. The Charge
was proved based on the statements made by the witnesses and not otherwise.
Therefore, the Enquiry Officer held that the charge has been proved as presented
by the Presiding Officer. In such view of the matter, the said contention stands
rejected.
9. On the Charge-III, we concur with the submissions made by the
learned counsel for the appellant. We are not able to comprehend as to how such a
charge can be pleaded and what explanation and element object to give such a
charge. This is the subject matter of Charge-III which are the factors to be
considered for imposing adequate punishment and not otherwise. There cannot be
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W.A.(MD)No.871 of 2019
a charge for asking delinquent employee to answer, when they have become
concluded already. Therefore, the Charge-III has to be declared as not to be
proved.
10. In coming to Charge –II, P.W.1 to P.W.6 have spoken about the
usage of brandishing of the knife by the appellant. The appellant was not
supposed to have the knife. Therefore, the evidence adduced to the contrary is
likely to be rejected, as these witnesses did not have any axe to grind against the
appellant. However, we do find force in the submission made by the learned
counsel for the appellant. The occurrence happened, when an attempt was made to
disrobe the appellant without checking. At that point of time, he only said that if
such procedure is adopted, he could react. Certainly, such reaction by brandishing
the knife, cannot be sustained.
11.The cause of action for the said action is the aforesaid proposed
action. Therefore, this charge as framed has to be looked into differently, though,
it is proved beyond doubt that the appellant was having the knife and he banned it.
There was no intention on his part to use it otherwise. It is a knee-jerk reaction on
the part of the appellant. It is nobody’s case that the appellant was carrying
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W.A.(MD)No.871 of 2019
unaccounted money at the time of checking by the Anti-Corruption Personnel.
Therefore, this aspect will have to be looked into differently. We are inclined to
hold that Charge – III stands deleted and the Appellate Authority may look at it
differently. After considering the statements made by the prosecution witnesses
namely, P.W.1 to P.W.6, we arrive at a conclusion that they have not stated that the
appellant charged them or tried to attack them.
12.In such view of the matter, we are inclined to remit the matter back
to the appellate authority, to consider the punishment of compulsory retirement as
imposed, to a lessor one. Appropriate orders will have to be passed within a
period of eight weeks from the date of receipt of a copy of this judgment.
13. Accordingly, the writ appeal stands allowed. No costs.
Index : Yes / No [M.M.S.,J.] [S.A.I.,J.]
Internet : Yes 04.03.2021
rm
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W.A.(MD)No.871 of 2019
M.M.SUNDRESH, J.
AND
S.ANANTHI, J.
rm
W.A.(MD)No.871 of 2019
04.03.2021
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