Kushalprajapati v Union of India and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V TUESDAY, THE 7[TH] DAY OF NOVEMBER 2023 / 16TH KARTHIKA, 1945 WP(C) NO. 12773 OF 2021`** ## **`PETITIONER/S:`** ``` KUSHALPRAJAPATI AGEDABOUT31YEARS S/O.SHRIMOOLCHANDPRAJAPATI,R/OMOHALLA PATHAKPURA,TEHSILMAURANIPUR,DISTRICTJHANSI, UTTARPRADESH-284204 PRESENTLYRESIDINGATAMOORTHI,S.N.COLLEGEROAD, PERANGADI,NEARMADURAIAIRPORT,TAMILNADU625022. BYADVS. T.SANJAY SANILKUMARG. ``` ## **`RESPONDENT/S:`** ``` 1UNIONOFINDIA THROUGHSECRETARY,MINISTRYOFHOMEAFFAIRS, NORTHBLOCK,CENTRALSECRETARIAT,NEWDELHI11001. 2DIRECTORATEGENERAL, CISFHQ,LODHIROAD,CGOCOMPLEX, NEWDELHI110001. 3IGAPS, CISFAIRPORTSECTOR,CISFFORCEHQ, NEWDELHI11011. 4COMMANDANT, CENTRALINDUSTRIALSECURITYFORCE, TRIVENDRUMINTERNATIONALAIRPORT. BYADVSMT.M.S.KIRAN,CGC ``` ``` THISWRITPETITION(CIVIL)HAVINGCOMEUPFORADMISSION ON07.11.2023,THECOURTONTHESAMEDAYDELIVEREDTHE FOLLOWING: ``` W.P.(C.) No.12773 of 2021 2 ## **JUDGMENT** The petitioner states that he is an ASI serving in the Central Industrial Security Force (CISF). He has approached this Court being aggrieved by the order dated 28.4.2020 passed by the Commandant, by which the said authority confirmed the order passed by the Assistant Commandant, CISF. By the aforesaid order, the petitioner has been awarded a minor penalty of seven days deduction in salary as punishment in the exercise of the powers granted under Rules 34 and 37 of the Central Industrial Security Force Rules, 2001. 2. The short facts of the case are as under: a. The petitioner herein, while functioning as an Assistant Sub Inspector, was posted in Madurai Airport for security duties. He was deployed at the Security Hold Area (SHA) to carry out the pre-embarkation security check of passengers. His duty time in the Domestic Security Hold Area of Madurai Airport was during the A-shift, which was from 06:00 hrs to 13:00 hrs on 2.11.2019, and he was expected to frisk the passengers. The specific allegation against the petitioner is that while performing frisking duty, the petitioner intentionally returned a passenger who came for frisking and thereafter closed the duty post (Male Frisking Booth) by W.P.(C.) No.12773 of 2021 3 placing the “Queue Manager Tape” and left the duty post without handing over the charge to the reliever or with due permission of the shift-in-charge. b. When dereliction of duty was found, a charge sheet was framed under Rule 37 of the CISF Rules, 2001, against the petitioner by the Assistant Commandant, CISF ASG Madurai. c. The petitioner furnished an explanation that he urgently wanted to use the bathroom, and though he requested the officers present there, including his superiors, they refused to relieve him. d. During the enquiry, the CCTV footage for the period from 13:01:32 to 13:04:11 on 2.11.2019 was perused. As per his request, the petitioner was also granted access to the CCTV footage. The footage disclosed that the petitioner returned the passenger at 13:01:32 hrs closed the Queue Manager Tape at 13:01:40 hrs, waited for a few minutes at the Domestic Security Hold Area, took his lunch bag, and left the security hold area at 13:04:11. The respondents noticed that the petitioner had not shown any urgency to go to the washroom immediately after closing the frisking booth. They concluded that the plea during the enquiry that he left the frisking booth abruptly to relieve himself was without any basis and was raised as an afterthought. e) On the basis of the available evidence, they W.P.(C.) No.12773 of 2021 4 concluded that the action on the part of the petitioner in returning the passenger, closing the duty post and leaving the area without the permission of the shifting charge was a violation of the protocol and an act of indiscipline and accordingly he was awarded a minor penalty of fine equivalent to his seven days pay. f) An appeal was preferred before the Deputy Commandant which was dismissed and a revision petition filed thereafter was also dismissed by the Commandant. g) Challenging the order in revision, the petitioner preferred a representation before the DIG, which authority passed order dated 17.12.2020 and refused to interfere. 3. Sri. Sanjay, the learned counsel appearing for the petitioner, submitted that the order passed by the superior authorities in appeal and revision cannot be sustained. He asserts that the deployment register of the security hold area would disclose that the shift of the petitioner started at 06:10 hrs and ended at 13:10 hrs. Four male officers were deployed at the baggage checking for frisking duty and the shift was rotated after the interval of every 20 minutes. The petitioner was posted in the area from 12:30 hrs. to 12:50 hrs and this fact would be evident from the CCTV footage. It is contended that the duty of the petitioner was over at 12:50 hrs, and he was W.P.(C.) No.12773 of 2021 5 made to do the frisking even 13 minutes thereafter. It is contended that the supervisor failed to relieve the petitioner on time, for which the petitioner could not have been faulted. It is further submitted that the inquiry is vitiated as the CCTV footage of the incident was not provided to him. According to the learned counsel, if the CCTV footage for the period from 12.30 hrs to 12.50 hrs, if perused, it would have disclosed that the petitioner had been pleading with the officers present there to relieve him and that they had not obliged. It is further submitted that Rule 37 (2) of the CISF Rules, 2001, provides that in appropriate cases, if the punishments include withholding of increments of pay and if the same is likely to affect adversely the amount of pension payable to the Government servant, an enquiry shall be held in the manner laid down in sub-rule (3) to (22) of Rule 36 before making any order imposing on the enrolled member of the Force any such penalty. It is submitted that in the instant case, the enquiry was not carried out in accordance with the procedure. 4. The learned Central Government Counsel countered the submissions and it is pointed out that the CCTV footage for the period from 13:01:32 hrs to 13:04:11 hrs clearly disclosed that the petitioner who was engaged in frisking of passengers left the security hold area after returning a W.P.(C.) No.12773 of 2021 6 passenger. It is submitted that members of the force who are trained are deployed for security duties in sensitive sectors and they are required to maintain high standards of discipline. It is submitted that the footage clearly showed that after leaving the security hold area, the petitioner loitered around without going to the toilet area, which falsifies the story now put forward by the petitioner. It is urged that as a minor penalty was imposed on the petitioner, the stipulations in Rule 37(1)(a) of the CISF Rules, 2001 were strictly followed which requires a reasonable opportunity of making a representation on the imputations of misconduct or misbehavior on which action is proposed to be taken against him. It is further submitted that section 37(2) would have no application as the petitioner was awarded a minor penalty by imposing a fine equivalent to his seven days’ pay. Only in the event of the punishment adversely affecting the amount of pension payable to the Government servant or results in withholding of increments of pay with cumulative effect for any period, the procedure under section 37(2) of the CISF Rules are required to be complied with. 5. I have considered the submissions advanced and have gone through the entire records. 6. The first contention of the petitioner is that serious prejudice has W.P.(C.) No.12773 of 2021 7 been caused by the non-furnishing of the CCTV footage for the period from 12:30 hrs to 13:05 hrs. The contention essentially is that the footage would disclose that the petitioner had been pleading with his officers to relieve him from duty as he wanted to go to the washroom at 12.50 hrs. However, I find that the petitioner was furnished with the footage from 13:01 to 13:04 hrs. The said clipping discloses that after going out from the security hold area the petitioner did not show any urgency to go to the washroom. In fact, the petitioner while performing frisking, abruptly closed the duty post, placed the Queue Manager Tape, and left the duty. The video also discloses that the petitioner stayed in the area for some time, walked around the Domestic SHA, took his lunch box, and left the area at 13:04:01. There appears to be some logic in the stand taken by the higher authorities that if the petitioner wanted to desperately go to the washroom, he would have directly gone there without wasting any time. If that be the case, the contention of the petitioner that he has been pleading with the other officers to relieve him from 12:50 hrs onwards, is clearly an afterthought. 7. The next contention is that the respondents have not strictly complied with Rule 37 of the CISF Rules before imposing a minor penalty. Rule 37 details the procedure for imposing minor penalties. The relevant portion W.P.(C.) No.12773 of 2021 8 ## reads as under: - Procedure for imposing minor penalties (1) No order imposing any of minor penalties specified in rule 34 - shall be made except after (a) informing the enrolled member in writing of the imputations of misconduct or misbehaviour on which it is proposed to be taken and giving him a reasonable opportunity of making such representation as he wishes to make against the proposal; (b) holding an inquiry, if the disciplinary authority so desires, in the manner laid down in sub-rules (3) to (22) of rule 36; (c) taking the representation, if any submitted by the enrolled member under clause (a) and the record of inquiry, if any, held under clause (b) into consideration; and (d) recording the findings on each imputation of misconduct or misbehaviour; (2) Notwithstanding anything contained in clause (b) of sub-rule (1), if in a case it is proposed after considering the representation, if any, made by the Government servant under clause (a) of that sub-rule to withhold increments of pay and such withholding of increments is likely to affect adversely the amount of pension payable to the Government Servant or to withhold increments of pay for a period exceeding 3 years or to withhold increments of pay with cumulative effect for any period an inquiry shall be held in the manner laid down in sub-rule (3) to (22) of Rule 36 before making any order imposing on the enrolled member of the Force any such penalty. ## xxxxxxxxxxxxxxx W.P.(C.) No.12773 of 2021 9 8. Under Section 37(1)(a), the requirement before imposing minor penalty is to inform the enrolled member of the imputations of misconduct or misbehavior and to afford a reasonable opportunity to make a representation. It is the discretion of the disciplinary authority to proceed in the manner laid down in Sub-rule (3) to (22) of Rule 36 if the situation so warrants. In those cases wherein, after considering the representation made by the Government servant under clause (a), if the authority intends to withhold increments of pay and such withholding of increments is likely to affect adversely the amount of pension payable to the Government Servant or to withhold increments of pay for a period exceeding 3 years or to withhold increments of pay with cumulative effect for any period an inquiry is to be held in the manner laid down in sub-rule (3) to (22) of Rule 36. In the case on hand, the minor penalty imposed is a fine to an amount equivalent to seven days' pay. In that view of the matter, Rule 37(2) would have no application. 9. In **State of A.P v. S. Sree Rama Rao** (1964 3 SCR 25) the Apex Court had occasion to delineate the powers of this Court under Article 226 of the Constitution of India over the findings in an enquiry conducted by a disciplinary authority: W.P.(C.) No.12773 of 2021 10 “The High Court is not constituted in a proceeding under Article 226 of the Constitution a court of appeal over the decision of the authorities holding a departmental inquiry against a public servant; it is concerned to determine whether the inquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Where there is some evidence, which the authority entrusted with the duty to hold the inquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court in a petition for a writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence. The High Court may undoubtedly interfere where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of inquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion, or on similar grounds. But the departmental authorities are, if the inquiry is otherwise properly held, the sole judges of facts and if there be some legal evidence on which the findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding under Article 226 of the Constitution.” W.P.(C.) No.12773 of 2021 11 10. After having considered the facts of the instant case, it cannot be said that the respondents have held the proceedings against the petitioner in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of inquiry. It cannot also be said on facts that the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion, or on similar grounds. In that view of the matter, no interference is warranted. This writ petition will stand dismissed. Sd/- **RAJA VIJAYARAGHAVAN V, JUDGE** NS/7/11/2023 W.P.(C.) No.12773 of 2021 12 ## **`APPENDIX OF WP(C) 12773/2021`** |`PETITIONER EXHIBITS`|| |---|---| |`Exhibit P1`|`TRUE COPY OF LETTER DATED 08.11.2019 ADDRESSED`| ||`TO DEPUTY COMMANDANT, CISF MADURI`| ||`INTERNATIONAL AIRPORT FOR RETAINING CCTV ALONG`| ||`WITH TRANSLATION.`| |`Exhibit P2`|`TRUE COPY OF OFFICE MEMORANDUM DATED`| ||`05.12.2019 ISSUED BY ASST COMMANDANT CISF,`| ||`MADURAI INTERNATIONAL AIRPORT ALONG WITH`| ||`TRANSLATION.`| |`Exhibit P3`|`TRUE COPY OF PETITIONER'S REPLY/LETTER DATED`| ||`05.12.2019 ADDRESSED TO ASST. COMMANDANT CISF,`| ||`MADURAI INTERNATIONAL AIRPORT ALONG WITH`| ||`TRANSLATION.`| |`Exhibit P4`|`TRUE COPY OF STATEMENT OF PETITIONER RECORDED`| ||`DURING INQUIRY PROCEEDINGS ALONG WITH`| ||`TRANSLATION.`| |`Exhibit P5`|`TRUE COPY OF THE OFFICE MEMORANDUM DATED`| ||`17.12.2019 ISSUED BY THE OFFICE OF ASST.`| ||`COMMANDANT ALONG WITH TRANSLATION.`| |`Exhibit P6`|`TRUE COPY OF REPLY OF PETITIONER DATED`| ||`1812.2019 ALONG WITH TRANSLATION.`| |`Exhibit P7`|`TRUE COPY OF PETITIONER'S LETTER DATED`| ||`19.12.2019 ADDRESSED TO THE DEPUTY COMMANDANT,`| ||`CISF MADURAI INTERNATIONAL AIRPORT ALONG WITH`| ||`TRANSLATION.`| |`Exhibit P8`|`TRUE COPY OF OFFICE MEMORANDUM DATED`| ||`21.12.2019 ISSUED BY THE OFFICE OF ASST,`| ||`COMMANDANT, CISF, MADURAI INTERNATIONAL`| ||`AIRPORT ALONG WITH TRANSLATION.`| W.P.(C.) No.12773 of 2021 13 |`Exhibit `|`P9`|`TRUE COPY OF PETITIONER REPLY DATED 22.12.2019`| |---|---|---| |||`ADDRESSED TO OFFICE OF ASST. COMMANDANT CISF,`| |||`MADURAI INTERNATIONAL AIRPORT ALONG WITH`| |||`TRANSLATION.`| |`Exhibit `|`P10`|`TRUE COPY OF FINAL ORDER DATED 19.01.2020`| |||`PASSED BY ASST. COMMANDANT , MADURAI AIRPORT`| |||`ALONG WITH TRANSLATION.`| |`Exhibit `|`P11`|`TRUE COPY OF APPEAL DATED 23.02.2020 ADDRESSED`| |||`TO DEPUTY COMMANDANT ALONG WITH TRANSLATION.`| |`Exhibit `|`P12`|`TRUE COPY OF APPEAL ODER DATED 28.04.2020`| |||`PASSED BY DEPUTY COMMANDANT, MADURAI AIRPORT`| |||`ALONG WITH TRANSLATION.`| |`Exhibit `|`P13`|`TRUE COPY OF REVISION PETITION ADDRESSED TO`| |||`COMMANDANT ALONG WITH TRANSLATION.`| |`Exhibit `|`P14`|`TRUE COPY OF REVISION ORDER DATED 24.10.2020`| |||`PASSED BY THE OFFICE OF COMMANDANT TRIVANDRUM`| |||`AIRPORT ALONG WITH TRANSLATION.`| |`Exhibit `|`P15`|`TRUE COPY OF APPEAL PREFERRED AGAINST`| |||`REVISIONAL ORDER BEFORE DIG, SOUTH ZONE ALONG`| |||`WITH TRANSLATION.`| |`Exhibit `|`P16`|`COPY OF ORDER DATED 17.1.2021 ISSUED BY THE`| |||`OFFICE OF DIG/APSZ HQRS CHENNAI.`| |`Exhibit `|`P17`|`TRUE COPY OF OFFICE MEMORANDUM DATED 13.1.2021`| |||`ISSUED BY THE DEPUTY COMMANDANT, CISF,`| |||`MADURAI, AIRPORT.`| |`Exhibit `|`P18`|`COPY OF STANDARD OPERATING PROCEDURE FOR`| |||`FRISKING DATED 27.02.2019 ISSUED BY THE OFFICE`| |||`OF ADDITIONAL DIRECTOR GENERAL/AIRPORT SECTOR,`| |||`CISF (MINISTRY OF HOME AFFAIRS).`| W.P.(C.) No.12773 of 2021 14 |`Exhibit P19`|`COPY OF CIRCULAR BEARING CIRCULAR NO.23/2005`| |---|---| ||`DATED 11.07.2005 ISSUED BY BUREAU OF CIVIL`| ||`AVIATION SECURITY (MINISTRY OF CIVIL`| ||`AVIATION), GOVERNMENT OF INDIA.`| |`Exhibit P20`|`COPY OF LETTER BEARING NO.`| ||`V-12013/VIG-INSTM/WS/PA/2011-193 DATED`| ||`17.08.2011 ISSUED BY THE OFFICE OF INSPECTOR`| ||`GENERAL (WS) CENTRAL INDUSTRIAL SECURITY FORCE`| ||`(MINISTRY OF HOME AFFAIRS).`| |`RESPONDENT(S) `|`EXHIBITS :`| |`EXHIBIT R1(a)`|`THE TRUE COPY OF THE AIRPORT SERVICE ORDER`| ||`NO.22/2020 ISSUED UNDER LETTER`| ||`NO.E-38022(19)/1/2020/AS/ADM/PCP ASI TO`| ||`SI/6799 DATED 31.8.2020 WITH FHQrs SERVICE`| ||`ORDER NO.63/2020 ISSUED UNDER LETTER`| ||`NO.E-38019/13/(08)/2020/SOS/ESTT.II/3524 DATED`| ||`19.8.2020 ISSUED BY CISF HQRS., NEW DELHI.`| |`EXHIBIT R1(b)`|`THE TRUE COPY OF THE DOPT OM`| ||`NO.22011/4/91-ESTT(A) DATED 14.9.1992`| |`EXHIBIT R1(c)`|`THE TRUE COY OF THE CISF HQRS., NEW DELHI`| ||`CIRCULAR NO.16/2023 DATED 08.7.2013.`| |`EXHIBIT R1(d)`|`THE TRUE COPY OF THE CISF HQRS, NEW DELHI`| ||`LETTER NO.E-38019/13/(02)/2021/ESTT-II/354`| ||`DATED 02.0.2021.`|