Madras High Court
A. Subhan Ali vs The Union Of India on 23 March, 2022
1 W.A.No.698 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 23.03.2022
Coram
THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN
AND
THE HONOURABLE MR.JUSTICE MOHAMMED SHAFFIQ
W.A.No.698 of 2022
and CMP.No.4840 of 2022
A. Subhan Ali
No.911310641, Constable / GD
CISF Unit, RSTPS Ramagundam,
Jothinagar Post, Karimnagar District,
Andhra Pradesh. ...Appellant
Vs
1. The Union of India,
Rep.by its Secretary to Government
Ministry of Home Affairs,
New Delhi.
2. The Director General
CISF Headquarters,
Block No.13, CGO Complex,
CGO Complex,
Lodhi Road, New Delhi.
3. The Inspector General,
CISF, South Sector,
Near War Memorial,
Chennai 600 009.
https://www.mhc.tn.gov.in/judis
2 W.A.No.698 of 2022
4. The Deputy Inspector General,
Central Industrial Security Force,
South Zone Head Quarters,
Besant Nagar, Chennai 600 090.
5. The Group Commandant,
Central Industrial Security Force,
Group Head Quarters,
NISA Complex, Hakimpet,
Hyderabad – 78. ...
Respondents
Prayer: Writ appeal is filed under clause 15 of the Letter Patent
praying to allow the Writ Appeal and set aside the order dated 01.12.2020
in W.P.No.33064 of 2013.
For Appellant : Mr.R.Thiyagarajan
For Respondents : Mr.Venkataswamy Babu
SPC - GOI
JUDGMENT
S.VAIDYANATHAN, J.
&
MOHAMMED SHAFFIQ, J.
The present appeal has been preferred against the order dated
01.12.2020 in W.P.No.33064 of 2013.
2. The case of the writ petitioner is that he was recruited as Constable
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in the Central Industrial Security Force (in short "CISF") on 04.07.1991 and
was posted as HPCL, Visakapattinam on 05.06.2009. The 5 th respondent
granted leave to the petitioner from 08.04.2010 to 28.04.2010 and he
proceeded to his native place, wherein, he was arrested on 27.04.2010 based
on the complaint given by his wife on 13.04.2010 and the same was
informed through fax to the Deputy Commandant, CISF Unit, by his father-
in-law on 28.04.2010. It is the further case of the petitioner that he was
issued with a charge memo alleging that his involvement in the criminal case
and the subsequent judicial custody have not been informed to the
Department, which amounts to gross indiscipline, misconduct, tarnishing the
image of the force and unbecoming of a member of an Armed Force of the
Union. The petitioner submitted his written statement of defence against the
charge, however, the Disciplinary Authority appointed an Enquiry Officer to
enquire into the charges and also appointed a Presenting Officer on his
behalf to present the article of charges. After completion of the disciplinary
proceedings and upon receipt of the report of the Enquiry Officer, the
Disciplinary Authority awarded the punishment of compulsory retirement
from service with two third pensionary benefits. Thereafter, the petitioner
preferred an appeal before the Appellate Authority. The Appellate Authority
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modified the punishment to that of reduction of pay by three increments
from Rs.8400/- to Rs.7510 in the pay band – I with grade pay Rs.2,400/- for
a period of three years with further direction that during the period of
reduction, he will earn increments and on expiry of this period, the reduction
will not have the effect of postponing his future increments of pay. The
period from the date of compulsory retirement from service to the date of re-
instatement into service was proposed to be treated as 'dies non' for the
purpose of service as per Rule 55 of CISF Rules, 2001. Aggrieved by the
same, he preferred revision before the third respondent, however, the said
revision was dismissed as time barred by the third respondent on
29.01.2013. Hence the petitioner filed the writ petition.
3. The learned counsel for the Appellant submitted that the Appellant
has rendered 30 years of constabulary services in the CISF and the
respondents have awarded the penalty of reduction of pay by three
increments for three years without any valid reasons and the alleged criminal
case was filed by his wife due to misunderstanding. He further contended
that there is no proper evidence except the false complaint i.e., criminal case
against him and the enquiry conducted was a biased one. The prosecution
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witnesses failed to prove that the Appellant has not informed about his arrest
and the subsequent arrest in the criminal case to the respondents. The
Appellant has availed the leave from the respondent office on the ground of
domestic problem and there is no intention to suppress the facts before the
respondents. The learned Single Judge has confirmed the punishment
awarded by the Appellate Authority with a direction to treat the period from
the date of compulsory retirement upto the date of re-instatement into service
as 'duty period' for the purpose of pension. Aggrieved by the said order, the
Appellant is before this Court.
4. The learned counsel appearing for the respondents contended that
the writ petitioner/Appellant herein during the course of enquiry stated that
he had informed about his arrest to the Unit Commander through
communication dated 17.05.2010, which was after his release on bail on
05.05.2010. He further contended that even after issuing two call up notices
to him, to report for duty, he rejoined duty only on 30.06.2010 and he
instead of reporting for duty on 29.04.2010, intentionally overstayed for
long time on leave. Hence, he prayed for dismissal of the appeal.
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5. Heard both sides.
6. It is seen that the Appellant joined the services of CISF on
04.07.1991 and was granted leave by the fifth respondent to proceed to his
native place. During the period of leave, due to domestic problem, the
Appellant was arrested on 27.04.2010, on the complaint given by his wife
and the same was informed by the petitioner's father-in-law on 28.04.2010
to the Deputy Commandant, CISF Unit. As the Appellant was in custody,
which fact was not brought to the attention of the Department, a charge
memo was issued for suppression of his involvement in the criminal case
and detention. A detailed enquiry was conducted and the fairness of the
enquiry has not been questioned. After due process of following the
procedure and accepting the Enquiry Officer's report, the Disciplinary
Authority imposed the punishment of compulsory retirement from service
with 2/3rd pensionary benefits. Aggrieved by the order passed by the fifth
respondent, the appellant preferred an appeal before the 4th
respondent/Department in which the punishment was modified as stated
supra and the period of compulsory retirement from service to the date of
reinstatement into service was ordered to be treated as 'dies non' in terms of
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Rule 55 of CISF Rules 2001.
7. The learned counsel appearing for the CISF would contend that the
Appellant informed about his arrest only on 17.05.2010 after his release on
bail on 05.05.2010 and that in spite of two notices calling him to report for
work, he reported for duty only on 30.06.2010 instead of 29.04.2010. The
learned single Judge, after hearing both the parties, came to the conclusion
that the punishment imposed on the petitioner by the Appellate Authority
was excessive and while confirming the punishment of the Appellant
Authority the learned single Judge has modified and deleted the period of
'dies non' from the punishment order and treated the entire period as 'duty
period'.
8. Learned counsel for the appellant argued that in respect of a
domestic problem, the Appellant was arrested on a complaint given by his
wife and the punishment imposed is excessive and the learned Single Judge
ought to have modified the punishment and imposed a lesser punishment.
9. It is apposite to refer to the judgment of the Apex Court in the case
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of Union of India vs. P.Gunasekaran, reported in (2015) 2 SCC 610
wherein, it was held that unless the punishment is disproportionate and
shocks the conscience of the Court, the punishment imposed by the
employer need not be interfered with. For the sake of convenience the
relevant paragraph of the judgment is extracted below:-
"13. Under Articles 226/227 of the Constitution of India, the
High Court shall not:
(i) re-appreciate the evidence;
(ii) interfere with the conclusions in the enquiry, in
the case the same has been conducted in accordance with law;
(iii) go into the adequacy of the evidence;
(iv) go into the reliability of the evidence;
(v) interfere, if there be some legal evidence on which
findings can be based;
(vi) correct the error of fact however grave it may
appear to be;
(vii) go into the proportionality of punishment unless
it shocks its conscience."
10. It is not in dispute that there was a domestic problem between the
appellant and his wife and though the powers of this Court are very limited,
if the punishment is shockingly disproportionate, the Court is empowered to
interfere with the same in the light of the judgment referred to supra. In view
of the dictum laid down by the Apex Court and taking note of the fact that
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for a family dispute such a harsh punishment has been imposed, which is
really and shockingly disproportionate, we are inclined to modify the
punishment as that of the one falling under Rule 34 (viii) of the Central
Industrial Security Force Rules, 2001 which reads as follows:-
"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".
11. Though in the aforesaid Rule the punishment period is prescribed
as "not exceeding three years", we reduce the punishment period into "ONE
YEAR". Admittedly the Appellant has not worked from date of arrest till
30.06.2010 and therefore, he will not be entitled to any wages for that
period.
12. With the above direction, the Writ Appeal is disposed of. No
costs. Consequently connected miscellaneous petition is also closed.
(S.V.N.J.,) (M.S.Q.J.,)
23.03.2022
dpq
Speaking order/Non-speaking order
Index: Yes/No
Internet: Yes/No
https://www.mhc.tn.gov.in/judis
S.VAIDYANATHAN, J.
and
MOHAMMED SHAFFIQ, J.
dpq
1. The Secretary to Government
Ministry of Home Affairs,
New Delhi.
2. The Director General
CISF Headquarters,
Block No.13, CGO Complex,
CGO Complex,
Lodhi Road, New Delhi.
3. The Inspector General,
CISF, South Sector,
Near War Memorial,
Chennai 600 009.
4. The Deputy Inspector General,
Central Industrial Security Force,
South Zone Head Quarters,
Besant Nagar, Chennai 600 090.
5. The Group Commandant,
Central Industrial Security Force,
Group Head Quarters,
NISA Complex, Hakimpet,
Hyderabad – 78.
W.A.No.698 of 2022
and CMP.No.4840 of 2022
https://www.mhc.tn.gov.in/judis
