Madras High Court
Unknown vs M.M.Baig on 8 February, 2022
1 W.A.No.1631 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 08.02.2022
Coram
THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN
AND
THE HONOURABLE MR.JUSTICE MOHAMMED SHAFFIQ
W.A.No.1631 of 2021
and CMP.No.10214 of 2021
1.The Union of India
Rep.by its Secretary to Government,
Ministry of Home Affairs,
New Delhi.
2.The Inspector General,
Central Industrial Security Force,
Southern Sector, Head Quarters,
Near War Memorial,
Chennai- 600 009.
3.The Deputy Inspector General,
Central Industrial Security Force,
South Zone, Head Quarters,
Rajaji Bhawan,
Besant Nagar,
Chennai- 6000 090.
4.The Group Commandant,
Central Industrial Security Force,
South Zone, Head Quarters,
Rajaji Bhawan,
Besant Nagar,
Chennai- 600 090.
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2 W.A.No.1631 of 2021
5.The Deputy Commandant,
Central Industrial Security Force Unit,
VTPP Vallur,
Chennai - 600 103. ... Appellants
Vs
1.M.M.Baig
HC/GD.No.854503755
CISF Unit,
VTPP Vallur,
Chennai - 600 103. ... Respondent
Prayer:Writ Appeal is filed under clause 15 of the Letter Patent praying to
allow the Writ Appeal and set aside the order made in WP No.22631 of
2014 by the order dated in 03.12.2020.
For Appellants : M/s.DR.G.Babu
For Respondent : A.S.Mujibur Rahman
JUDGMENT
S.VAIDYANATHAN, J.
&
MOHAMMED SHAFFIQ, J.
The present appeal has been preferred against the order of the learned
Single Judge dated 03.12.2020 in W.P.No.22631 of 2014.
2. It is the case of the writ petitioner that he was working as Head
constable/GD in CISF Unit VTPP Vallur, Chennai and he was found absent
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from the Unit Lines of CISF, CPCL Manali at about 22:30 hours on
03.04.2013. In the meantime, at about 23:45 hours on 03.04.2013 a
telephonic message was received by SI/Exe K.K.Rangaiya, CISF Unit
CPCL Manali from Inspector of Police S.K.Rajkumar of R.K.Nagar Police
Station (Tondiarpet) that petitioner was found under influence of liquor at
Netaji Nagar and also created nuisance to the public. He remained under
police custody till 01:05 hrs on 04.04.2013. After a detailed enquiry, a
charge memo was issued, which resulted in imposition of a major
punishment of "Reduction of pay by one increment from Rs.10,890/- +
2800/- GP for a period of three years. It was further directed that he will not
earn increment of pay during the period of reduction and that on expiry of
this period, the reduction will have the effect of postponing his future
increment of pay by Group Commandant CISF Gp.Hqrs., Chennai under
Rule-34 (Nature of Penalty) of CISF Rules 2001 vide final order dated
17/18.09.2013. Since the punishment awarded to the writ petitioner was not
commensurate with the gravity of the offence committed, the case was suo
motu reviewed by the next Superior Authority i.e., the DIG CISF SZ Hqrs,
Chennai, as per the provision of Rule-54 of CISF Rule 2001, who enhanced
the punishment to "Reduction of pay to the minimum stage of Rs.7510/- in
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the pay band - I with grade pay of Rs.2800/- for a period of five years with
further direction that during the period of reduction he will not earn any
increments and on expiry of this period, the reduction will have the effect of
postponing his future increments of pay" vide his order No.(1405) dated
21.02.2014 after duly following the procedural formality by issuing show
cause notice to the petitioner. Against the order of the Superior Authority,
the writ petitioner preferred an appeal to the next Higher Authority, i.e., IG
SS Hqrs., Chennai, who, after consideration of all the material evidence
upheld the order passed in the Review Petition, thereby rejected the appeal
petition as devoid of merit, vide order No.(123) dated 06.06.2014. Hence
the writ petitioner filed the writ petition and obtained a favourable order and
aggrieved by the order of the learned Single Judge, the Appellants are
before this Court.
3. The learned counsel for the appellants submitted that the appellants
gave opportunity to the writ petitioner at all levels to explain his own
mistake before the Authority as per the CISF Rules. Despite the same, the
writ petitioner filed writ petition, without exhausting his revision provision
within the Department itself. He was also unable to establish his case and
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his rights before the Disciplinary Authorities and failed to make revision
before the next Authority, who is the 1st Appellant herein. It was the writ
petitioner who has not come with a suitable explanation or reply to the
Authorities. He further submitted that the Appellants have not given any
double punishment to the writ petitioner, whereas the punishment was
awarded only based on the available materials on record in terms of the
existing Act & Rules of the CISF alone, hence there is no violation of
principles of natural justice.
4. Heard both sides.
5. The learned Single Judge has proceeded on the basis that double
punishment has been imposed and has modified the punishment into the one
of reduction of pay by one increment for a period of three years, by
considering it to be a reasonable punishment to the proportionate charges
levelled against the petitioner/respondent herein. The issue in the present
appeal revolves around whether the punishment imposed by the
Disciplinary Authority namely reduction of pay by one increment for a
period of three years and that will not earn increment of pay during the
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period of reduction and that on expiry of this period the reduction will have
the effect of postponing the future increment of pay is justified or not?. For
this purpose it is necessary to refer to Rule No.34 (iv) (a) and 34 (viii) of the
Central Industrial Security Force Rules, 2001 and the same are extracted
below:-
34 (iv) reduction to lower time scale of pay, grade, post or service for
a period to be specified in the order of penalty, which shall be a bar
to the promotion of the enrolled member of the Force during such
specified period to the time scale of pay, grade, post or service from
which he was reduced, with direction as to whether or not, on
promotion on the expiry of the said specified period -
(a) the period of reduction to time-scale of pay, grade, post or
service shall operate to postpone future increments of his pay, and if
so, to what extent and
34 (viii) reduction to a lower stage in the time scale of pay by one
stage for a period not exceeding three years, without cumulative
effect and not adversely affecting his pension.
6. The punishment imposed on the writ petitioner/respondent herein
has been interfered with by the learned Single Judge by converting into a
minor penalty, invoking Rule 34 (viii) of the CISF Rules, 2001. For the
misconduct committed by the writ petitioner, wherein charges 1 & 2 stood
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proved, the Disciplinary Authority namely the Group Commandant has
passed the following order at paragraph No.18 which is extracted below:-
18. In view of the above, I find the charged official
guilty of Article of charge – I and II framed against
No.854503755 HC/GD M.M.Baig of CISF Unit VTPP
Vallur vide charge memorandum No.(106) dated
20.04.2013. I therefore, in exercise of powers conferred on
me vide Rule 32(1) of CISF Rules and Schedule – I read in
conjunction with Rule 34 (v) of CISF Rules, 2001 hereby
impose the penalty of “Reduction of pay by one increment
from Rs.10,890/- + Rs.2800/- GP to Rs.10,490/- + Rs.2800/-
GP for a period of three years. It is further directed that he
will not earn increment of pay during the period of
reduction and that on expiry of this period, the reduction
will have the effect of postponing his future increment of
pay” upon No.854503755 HC/GD M.M.Baig of CISF Unit
VTPP Vallur.
Admittedly, the writ petitioner did not prefer any appeal, provided
under Rule 54 of the said Act, which is extracted hereunder:-
54. Revision (1) Any authority superior to the authority
making the order may either on his own motion or otherwise call
for the records of any inquiry and revise any order made under
these rules and may
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a) confirm, modify or set aside the order or
b) confirm, reduce, enhance or set aside the penalty imposed
by the order, or impose any penalty where no penalty has been
imposed or
c) remit the case to the authority which made the order or to
any other authority directing such authority to make such further
enquiry as it may consider proper in the circumstances of the case or
d) pass such order as it may deem fit, within six months of the
date of communication of the order proposed to be revised.
Provided that no order imposing or enhancing any penalty
shall be made by any revisioning authority unless the enrolled
member of the Force concerned has been given a reasonable
opportunity of making a representation against the penalty proposed
and where it is proposed to impose any of the penalties specified in
clauses (i) to (v) of rule 34 or to enhance the penalty imposed by the
order sought to be revised to any of the penalties specified in those
clauses, and if any, inquiry under rule 36 of Central Industrial
Security Force Rules, 2001 has not already been held in the case no
such penalty shall be imposed except after an enquiry in the manner
laid down in the aforesaid rules.
7. The next Authority Superior to the Authority passing the order suo
mottu took up the review and decided to impose the punishment of
dismissal from service after giving an opportunity to the writ petitioner.
However, the Revisional Authority came to the conclusion that though the
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writ petitioner will have to be imposed with the punishment of dismissal
from service, taking into account the future of the children the Authority
confirmed the punishment imposed by the Disciplinary Authority, with an
observation that in case the writ petitioner is aggrieved, it is open to him to
prefer an appeal before the Appellate Authority and the relevant paragraph
of the order dated 21.02.2014 is extracted below.
✔ “Creating nuisance in public place under influence of
alcohol is a serious misconduct. When the same is
committed by a member of armed force, it becomes more
serious and an unpardonable one.
✔ In the instant case, the charged official has created nuisance
in public place under influence of alcohol that he had to be
taken away by the Police and kept in custody at the Police
Station. By indulging in an act detrimental to the peace and
tranquility of the public, he not only has committed an
unpardonable offence but also severely tarnished and
damaged the image and reputation of the department.
✔ Such offenders cannot have a place in any disciplined
armed force like CISF and, therefore, the proposed penalty
of DISMISSAL FROM SERVICE deserves to be confirmed.
✔ However, keeping in view of education and future of his
Children who are in their graduation stage and also his duty
of taking proper care of his age old mother, I am inclined to
take a lenient view this time only on extreme compassion by
not confirming the proposed penalty and enhance the
penalty awarded by the disciplinary authority vide order
dated 17/18-09-2013 to that of “Reduction of pay to the
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minimum stage of RS.7,510/- in the pay band -I with grade
pay Rs.2,800/- for a period of five years with further
direction and during the period of reduction he will not earn
any increments and on expiry of this period, the reduction
will have the effect of postponing his futher increments of
pay” to meet the ends of justice
6.If No.854503755 HC/GD M M Baig of CISF Unit, VTPP
(V) is aggrieved with above enhanced penalty, he may prefer
an appeal to the IG CISF SS HQ Chennai within 30 days
from the date of receipt of this Order.
7. No.854503755 HC/GD M.M.Baig of CISF Unit.VTPP (V)
to acknowledge receipt of this order”.
Aggrieved by the order passed by the DIG South Zone, the writ petitioner
preferred an appeal which was taken up by the Appellate Authority, who has
confirmed the order of the Disciplinary Authority, as had been affirmed by
the Revisional Authority. While dismissing the appeal, the Appellate
Authority has discussed as follows:-
06. In view of the foregoing discussion, pleas put forth by the
appellant are not acceptable. The Appellant is a habitual
delinquent. He has earned one major and five minor
punishments in his service so far. Inspite of being punished
repeatedly, there appears to be no inclination on his part to
change his ways. Under the Circumstances, the enhanced
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punishment inflicted by DIG SZ although less commensurae
with the delinquency committed is in the right spirit and
direction. I Uphold the action of DIG/SZ achieved through
suo-moto review in this case. It is further seen that the
appellant has not endeavoured to bring any fresh points
worthy of consideration. Further, it is found that the DE
against the Appellant had been conducted as per laid down
procedure and the appellant had been given all reasonable
opportunities to defend is case. Hence, I do not find any
cogent reason to interfere with the penalty awarded to him
by DIG/SZ, CISF Chennai. His appeal petition, is therefore,
considered and rejected being devoid of merit.
8. One of the main contentions advanced by the writ petitioner before
this Court was that Section 9 deals with the provision of preferring appeal
and revision and that the Revisional Authority is completely a different
person and the Revisional order dated 21.02.2004 is non-est in the eye of
law, as he has no jurisdiction to confirm the order of the Disciplinary
Authority. For the sake of convenience, Section 9 of the said CISF Act,
1968 is extracted below:-
“ 9. Appeal and revision :-
(2-A) Any enrolled member of the Force agrrieved by an
order passed in appeal under sub-section (1) may within a
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period of six months from the date on which the order is
communicated to him, prefer a revision petition against the
order to such authority as may be prescribed and in disposing
of the revision petition, the said authority shall follow such
procedure as may be prescribed.”
9. We are unable to accept the argument of the writ
petitioner/respondent herein, as this provision cannot be read in isolation
without reference to Rule 54 of the said Act. Even going by the provisions
of the Act, the next immediate Authority would be the Revisional Authority
and in case the aggrieved person has not preferred any appeal, the suo motu
powers available with the department cannot be curtailed. The next
immediate Authority to the Original Authority will be the Revisional
authority and the said Authority need not wait and watch as to whether any
appeal is going to be filed by the aggrieved person or not. The Revision is
completely independent from the appeal provision. In case, any appeal is
preferred, there is no need for the Revisional Authority to proceed further,
as the Appellate authority will be dealing with it independently.
10. In the present case on hand as there is no appeal preferred by the
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writ petitioner, suo motu revision was taken up by the DIG South Zone,
who ultimately came to the conclusion as aforestated in paragraph No.7.
Aggrieved by the order of the Revisional Authority dated 21.02.2014 appeal
has been preferred which has been rejected and thereafter impugned orders
have been tested before the learned Single Judge. Learned Single Judge
after considering the facts and circumstances of the case has modified the
punishment on the ground that the punishment imposed on the writ
petitioner amounts to double punishment being hit by the principle of
Double Jeopardy.
11. A reading of the provisions of 34 (4A) and 34(A) shows a
different picture to the issue on hand. What the learned Single Judge wanted
to impose on the petitioner was a minor punishment and when there is a
power under rules to impose a major punishment in terms of rule 34(4A)
and 34(A) as stated supra, we are of the view that it cannot be construed as
double jeopardy in the present case on hand and the learned Single Judge,
instead of confirming the punishment has simply modified the same which
was imposed by the Disciplinary Authority, confirmed by the Revisional
Authority, which has been ultimately upheld by the Appellate authority in
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the appeal preferred by the writ petitioner and the order of learned Single
Judge does not hold good. Hence, we are of the view that the order of the
learned Single Judge needs to be interfered with and the order passed by the
Disciplinary Authority is restored.
12. Accordingly, the Writ appeal is allowed on the above terms. No
costs. Consequently connected miscellaneous petition is also closed.
(S.V.N.J.,) (M.S.Q.J.,)
08.02.2022
dpq
Speaking order/Non-speaking order
Index: Yes/No
Internet: Yes/No
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S.VAIDYANATHAN, J.
and
MOHAMMED SHAFFIQ, J.
dpq
W.A.No.1631 of 2021
08.02.2022
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