Bijendra Kumar Singh v Union of India and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR** ## **THURSDAY, THE 28TH DAY OF FEBRUARY 2013/9TH PHALGUNA 1934** ## **WP(C).No. 5828 of 2011 (C)** **--------------------------------------** ## **PETITIONER:** ## **-------------------** **BIJENDRA KUMAR SINGH, NO.014470413 EX-CONSTABLE C I S F UNIT, C I A L, NEDUMBASSERY, KOCHI, PRESENTLY RESIDING AT : S/O. SWAMI NATH SINGH, DHARMAPURA, P.O.BHORE, DIST.GOPALGANJ - 841 426, (BIHAR).** ## **BY ADV. SRI.N.JAMES KOSHY.** ## **RESPONDENTS:** **-----------------------** **1. UNION OF INDIA, REPRESENTED BY SECRETARY, MINISTRY OF HOME AFFAIRS, NORTH BLOCK, NEW DELHI-110 001.** **2. THE DIRECTOR GENERAL, C I S F HEADQUARTERS, 13, C G Os COMPLEX, LODHI ROAD, NEW DELHI-110 003.** **3. THE INSPECTOR GENERAL, C I S F AIRPORT SECTOR, BLOCK NO.13, C G O COMPLEX, LODHI ROAD, NEW DELHI – 110 003.** **4. THE DEPUTY INSPECTOR GENERAL/AP-SZ, 2ND FLOOR, D BLOCK, RAJAJI BHAVAN, BESANT NAGAR, CHENNAI – 600 090.** **5. THE COMMANDANT, C I S F UNIT, KOCHI, AIRPORAT (CIAL), NEDUMBASSERY KOCHI – 683 111.** **BY SRI.P.PARAMESWARAN NAIR,ASST.S.G. OF INDIA, ADV. SRI.K.M.JAMALUDHEEN,SENIOR PANEL COUNSEL OF CENTRAL GOVT.,** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28-02-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Prv.** ## **W.P.(C). NO.5828/2011-C:** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P.1: COPY OF THE CHARGE MEMO DTD. 29/06/2009 ISSUED BY THE R.5. EXT.P.2: COPY OF THE REPLY DTD. 09/07/2009 SUBMITTED BY PETITIONER. EXT.P.3: COPY OF THE FINAL ORDER DTD. 14/01/2010 ISSUED BY THE R.5. EXT.P.4: COPY OF THE APPELLATE ORDER DTD. 19/05/2010 ISSUED BY THE R.4. EXT.P.5: COPY OF THE REVISION ORDER DTD. 03/11/2010 ISSUED BY THE R.3. EXT.P.6: EXTRACT OF HOME PAGE OF C I S F WEBSITE AND NEWS REGARDING LOST AND FOUND ARTICLES IN AIRPORTS MANNED BY C I S F.** ## **RESPONDENTS' EXHIBITS: NIL.** ## **//TRUE COPY//** ## **P.A. TO JUDGE** **Prv.** ## **T.R.RAMACHANDRAN NAIR, J.** **- - - - - - - - - - - - - - - - - - - - - - - - - -** ## **W.P.(C)No. 5828 of 2011** **- - - - - - - - - - - - - - - - - - - - - - - - - - DATED THIS THE 28[th] DAY OF FEBRUARY, 2013** ## **JUDGMENT** In this writ petition, the petitioner challenges the orders of punishment imposed on him as well as the appellate and the revisional orders. The punishment imposed is one of dismissal from service. 2. The petitioner has been working as a Constable/GD in the Central Industrial Security Force ('CISF' for short). He was appointed as such on 19.5.2001 and was posted in various units. He was posted in the CISF Unit of Cochin International Airport Limited on 2.6.2008. 3. Ext.P1 is the copy of the Articles of Charges. It is alleged that he has indulged in gross indiscipline and dereliction of duty on 17.6.2009. The substance of the first charge is that after he found that a mobile phone was lying on the floor under the roller of X-BIS of International SHA, he pushed the mobile to the underside of X-BIS with his leg and also put a paper to cover the same. He did not hand over the mobile phone to the lady passenger who came in search of it with a malafide intention. Article of Charge - II is that he was awarded two punishments for OSL and sleeping on duty during his service of over 8 years and he has not shown any w.p.(c) No.5828/2011 -2- improvement in his discipline and conduct. 4. An enquiry was conducted and based on the enquiry report, further proceedings were taken and a final order has been passed as per Ext.P3 by the fifth respondent. Ext.P4 is the order passed in appeal and Ext.P5 is the order passed in revision. 5. Heard learned counsel for the petitioner Shri N. James Koshy and Shri K.M. Jamaludheen, learned Standing Counsel for the respondents. 6. Learned counsel for the petitioner submitted that the findings on the Articles of Charges cannot be supported. He was on duty on 17.6.2009 from 21.00 hrs. to 06.00 hrs. It is only a case where while the petitioner was doing his duty of stamping the screened hand-baggage of passengers on the crucial day, that too along with 5-6 other CISF personnel at the Security Hold Area of the Airport, he found a mobile phone lying under the scanner and tried to retrieve it with his legs. He put a paper over it to keep it safe. Later, a lady passenger came in search of it. She was having another mobile phone in her hand and when the petitioner asked her to make a call to the lost mobile, she stated that she does not remember its number. Incidentally, a call came to the phone lying on the floor under the scanner w.p.(c) No.5828/2011 -3- and after identifying that it was that of the lady passenger, the duty officer took it and handed over it to the lady passenger and thereafter she left. It is submitted that she did not register any complaint regarding the missing mobile phone in the register kept for that purpose. She did not make any complaint against any CISF personnel on duty also. Therefore, it is submitted that there cannot be a case of the petitioner taking into his possession the mobile phone or concealing it. Since he was continuing to perform the assigned duty, immediately he could not report it to the higher officers. The entire matter was over by the return of the mobile phone to the lady passenger. It is submitted that the previous punishments are only on a charge of sleeping on duty and overstayal of leave and are only minor ones, which also cannot have any impact on the present disciplinary enquiry. 7. Lastly, it is submitted that the dismissal from service is grossly disproportionate to the gravity of charge. The petitioner has not found to have committed any misconduct while on duty and has not caused any loss to the establishment and that he has not indulged in any activity affecting the institution also. There is no such allegation Therefore, for a minor w.p.(c) No.5828/2011 -4- lapse, if any, on his part, he could not have been dismissed from service. 8. Learned Standing Counsel for the respondents, Shri Jamaludheen submitted that the petitioner being a personnel under the CISF, he could not have been acted in a manner like this, depriving the trust of the office held by him. Immediately he could have handed over the mobile phone to the passenger which was not done. The CCTV footage was also relied upon in the enquiry which showed that the mobile phone was put forward by the petitioner with his leg and therefore his dishonest intention is very clear which justifies the punishment. 9. I have gone through the orders passed, viz. Exts.P3, P4 and P5. In Ext.P3, para 15, the view taken is that there is a strong element of inbuilt trust of the passenger on the security officials which CISF is duty bound to honour and the act committed by the charged official not only defies the public trust but also reaches to the level of criminality by way of cornering the properties of the passenger for personal gain. In fact, a reading of the order will give the entire background. He was on duty along with P.Ws.1 to 4 Constables. The evidence of P.W.6 Inspector/Ex.S Manoj which is narrated in Ext.P3 is that when the lady passenger who was carrying a baby, w.p.(c) No.5828/2011 -5- came back and enquired about the mobile phone, the duty personnel asked her to make a call to her missing mobile phone, but she was not remembering the phone number at that time. After some time a ring tone was heard and the lady passenger said that the ring tone belongs to her mobile phone. At that time he found the phone under a paper and the phone was handed over to the lady passenger after verification. In fact, in para 10 of the order, there is a discussion of the evidence in the matter. It is clear that the version of the petitioner that he asked the passenger the number of the missing mobile phone, is evident from internal page 7 of Ext.P3. Of course, the discussion proceeds on the basis that the petitioner did not immediately return the mobile phone and did not inform to his superiors about it. 10. In appeal also, the view taken is that the appellant being a responsible member of the force, should have been sincere and trustworthy and he behaved in a quite indisciplined and untrustworthy manner. 11. The indiscipline attributed is on two aspects. One that he did not immediately report it to the superiors and secondly that he did not return it to the passenger immediately and pushed the mobile phone with his legs and w.p.(c) No.5828/2011 -6- accordingly concealed it. The explanation of the petitioner on this aspect is that he was continuously performing his duties and actually when the lady passenger came, she was asked about the missing mobile phone number and she stated that she does not remember the number and therefore he felt suspicious. It is the case of the petitioner that he had to get a correct identity of the mobile phone before he could return it. There is a system maintained for registering the missing objects which alone could have been done by him legally. Otherwise, it would have been gross indiscipline, if without properly identifying the passenger he handed over it to the lady. 12. After having heard the learned counsel on both sides, I am of the considered view that the punishment imposed is strikingly disproportionate to the gravity of the charges. The authorities below rested their conclusion on the plea that the petitioner cornered the property of the passenger with a malafide intention. It is not a case where the mobile phone was reduced into his possession by the petitioner and no such charge is there. It was lying in the premises itself. Therefore, it cannot be conclusively said that he had actually taken the same into his possession and kept it for his own purposes. That much evidence is not there. It was w.p.(c) No.5828/2011 -7- lying in the public space itself. Therefore, the attribution of criminality only because he had pushed the mobile phone with his legs, cannot be conclusively charged on him. If the entire issues are considered together, it can be seen that simultaneously the officer was performing his duties and there is no charge that he has failed in discharge of his official duties to any extend. 13. The question therefore is whether the punishment of dismissal from service is warranted. The previous punishments were only minor. It was for overstay of leave and for sleeping on duty. Barring of one increment was awarded as punishment on both occasions. He has completed 8 years of service also. In that view of the matter, it cannot be said that such previous punishments have a great impact on the present charge also to the extend of dismissing him from service. 14. Of course, learned Standing Counsel for the respondents submitted that this Court will not be justified in re-appreciating the evidence. This Court has considered the relevant aspects only to find out whether the punishment could be justified. It is well settled that this Court cannot act as an Appellate Court and re-assess the whole evidence. In w.p.(c) No.5828/2011 -8- proceedings under Article 226 of the Constitution of India, this Court can consider whether the punishment is strikingly disproportionate and one shocking the conscience of the court. 15. In the whole background of this case, it can be safely concluded that the punishment imposed is strikingly disproportionate to the gravity of the charges and thus is arbitrary. It is fairly well settled that, proportionality principle will apply in such circumstances. In **Chairmancum-Managing Director, Coal India Ltd. and another v. Mukulkumar Choudhuri** {(2009) 15 SCC 620} the Apex Court has held in para 19 that “Award of punishment which is grossly in excess to the allegations cannot claim immunity and remains open for interference under limited scope of judicial review.” An assessment of the entire aspects will only show that there was some indiscretion on his part. In the absence of any evidence to show that he has reduced the mobile phone into his possession for keeping it to him itself, it cannot be said that the punishment of dismissal could be justified. The view taken is clearly perverse. To that extent Exts.P3 to P5 cannot be sustained. Accordingly, they are quashed. The petitioner will therefore be reinstated in service but without any backwages. The period w.p.(c) No.5828/2011 -9- from the date of suspension till the date of reinstatement will be treated as duty for other purposes, viz. length of service and not for grant of any monetary benefits. The respondents will be free to impose any minor punishment after issuing appropriate notice and calling for objection, if any, to such proposal, if they wish to proceed afresh. He will be reinstated in service within a period of one month from the date of production of a certified copy of this judgment. The writ petition is allowed as above. No costs. ## **(T.R.RAMACHANDRAN NAIR, JUDGE)** ## **kav/**