M. Sreenivasan v. Union of India and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI** **THURSDAY, THE 13TH DAY OF MARCH 2014/22ND PHALGUNA, 1935** ## **WP(C).No. 12481 of 2011 (I)** **----------------------------** **PETITIONER(S): --------------------------** **M. SREENIVASAN, AGED 63 YEARS, S/O.M. CHEKKINI (LATE), SENIOR COMMANDANT (RTIRED), CENTRAL INDUSTRIAL SECURITY FORCE, (MINISTRY OF HOME AFFAIRS), (THE FERTILIZERS AND CHEMICALS TRAVANCORE LIMITED, (FACT), UDYOGAMANDAL, KOCHI), RESIDING AT MANGALASSERI, A-12, STATE BANK NAGAR, KUMARAPURAM, MEDICAL COLLEGE (P.O.), THIRUVANANTHAPURAM-11.** ## **BY ADV. SRI.P.V.MOHANAN.** ## **RESPONDENT(S):** **----------------------------** ## **1. UNION OF INDIA,** **REPRESENTED BY SECRETARY, MINISTRY OF HOME AFFAIRS, LODHI ROAD, NEW DELHI-110 003.** ## **2. DEPUTY INSPECTOR GENERAL (PERS),** **DIRECTORATE GENERAL, CENTRAL INDUSTRIAL SECURITY FORCE, (MINISTRY OF HOME AFFAIRS), BLOCK NO.30, CGO COMPLEX, LODHI ROAD, NEW DELHI-110 003.** ## **3. THE SECRETARY,** **UNION PUBLIC SERVICE COMMISSION, DHOLPUR HOUSE, SHAJAHAN ROAD, NEW DELHI-110 001.** **R1 & R2 BY ADV. SRI.P.PARAMESWARAN NAIR, ASG OF INDIA. R3 BY ADV. SRI.THOMAS MATHEW NELLIMOOTTIL, SC.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13-03-2014, ALONG WITH WP(C).NO. 28932 OF 2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **rs.** ## **WP(C).No. 12481 of 2011 (I)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:-** - **EXT.P1 COPY OF THE MEMORANDUM OF CHARGES.** - **EXT.P2 COPY OF THE PROCEEDINGS DATED 18/03/2011 ALONG WITH THE RECOMMENDATION MADE BY THE UNION PUBLIC SERVICE COMMISSION DATED 25/01/2011 COMMUNICATED TO THE PETITIONER BY LETTER DATED 26/03/2011.** - **EXT.P3 COPY OF THE REPORT OF THE ENQUIRY OFFICER DATED 08/02/2010.** - **EXT.P4 COPY OF THE EXPLANATION SUBMITTED BY THE PETITIONER TO THE DISCIPLINARY AUTHORITY BASED ON ENQUIRY REPORT DATED 18/02/2010.** - **EXT.P5 COPY OF THE EXTRACT OF THE PRELIMINARY ENQUIRY REPORT SUBMITTED BY V.B. SHARMA, ASSISTANT COMMANDANT/ VIGILANCE, CENTRAL INDUSTRIAL SECURITY FORCE, HEAD QUARTERS (PW7).** - **EXT.P6 COPY OF THE EXTRACT OF THE REPORT DATED 04/08/2007.** - **EXT.P7 COPY OF THE EXTRACT OF THE REVISED PRELIMINARY ENQUIRY REPORT DATED 17/01/2008.** ## **RESPONDENT'S EXHIBITS:NIL.** ## **//TRUE COPY//** ## **P.A. TO JUDGE** **rs.** ## **A. V. RAMAKRISHNA PILLAI, J.** **- - - - - - - - - - - - - - - - - W.P.(C). Nos. 12481 & 28932 of 2011 - - - - - - - - - - - - - - - - Dated this the 13[th] day of March, 2014.** ## **JUDGMENT** The petitioners in these writ petitions, who are retired Commandants of the Central Industrial Security Force, challenge the penalty imposed on them resulting in 10% reduction of pensionary benefits. Both the petitioners would allege that their service in CISF was unblemished and the penalties imposed upon them were quite illegal. The petitioner in W.P.(C) No. 12481 of 2011 was the Senior Commandant who demitted his office on 31.12.2006 and the petitioner in W.P.(C) No. 28932 of 2011 was the Deputy Commandant of the CISF who demitted his office on 31.10.2009. 2. Disciplinary proceedings by invoking rule 9 of CCS (Pension) Rules, 1972 read with Rule 14 of CCS (CCA) Rules were initiated against the petitioners alleging that in the recruitment process which occurred in the year 2005 in which the petitioners were the members of the Board, there occurred impersonation of selection of one Ajay kumar. The grievance of the petitioners is that the disciplinary action was W.P.(C). Nos. 12481 & 28932 of 2011 : 2 : initiated against them in violation of the rules and norms and the penalty imposed is shockingly disproportionate to the gravity of the charges. They would allege that no prosecution was initiated against the aforesaid Ajay Kumar and he retired without any stigma. It is in this background that the petitioners have came up before this Court. 3. In the counter affidavit filed by the respondents, they justified the stand. According to them, the petitioners were given full opportunity to defend their case during the course of enquiry. It was, however, added that there is no provision under the Central Civil Services (Classification, Control and Appeal) Rules, 1965 for grant of personal hearing by the disciplinary authority before the imposition of penalty. According to them, the petitioner in W.P.(C) No. 28932 of 2011 was the Chairman of the Recruitment of Constables and the petitioner in W.P.(C) No. 12481 of 2011 was one of the members. The respondents allege that when the candidate Ajay Kumar with roll No.5600044 was reported at the Recruitment Centre, his physical measurement and examination of the documents was re-checked by a Board of Officers. On that re-checking, his actual handwriting did not W.P.(C). Nos. 12481 & 28932 of 2011 : 3 : tally with the one available in the answer sheet reportedly written by him during the examination of Constables and both the handwritings were entirely different. For the purpose of verifying the fact, the original answer sheet and specimen handwriting of Shri. Ajay Kumar were sent to Central Forensic Laboratory, Central Bureau of Investigation, New Delhi for scientific examination and expert opinion. The report received from there confirmed that the answer sheet in respect of Shri. Ajay Kumar was written by some other person. Moreover, the physical measurement of the candidate was taken by the Board. The height and chest of Shri. Ajay Kumar was recorded as 179 cms and 81-87 cms respectively. When his physical measurement was re-checked at the recruitment training centre, his height and chest measurements were found as 169 cms and 80-83 cms respectively. This, according to the respondents, was due to the failure on the part of the petitioners to discharge their duties effectively. On enquiry, the cases against the petitioners were found to be proved and thus, they justified the action against the petitioners. 4. Arguments have been heard. 5. The main argument advanced by the learned counsel W.P.(C). Nos. 12481 & 28932 of 2011 : 4 : for the petitioners is that the order withholding 10% of pension was passed by the respondents without serving notice prior to invocation of rule 9 of the Central Civil Services (Classification, Control and Appeal) Rules, 1972. The Apex Court in the decision in **D.V. Kapoor v. Union of India and others** - AIR 1990 SC 1923 observed that a finding should be recorded either in departmental enquiry or judicial proceedings that the pensioner committed grave misconduct or negligence in the discharge of his duty while in office. In the absence of such a finding, the President is without authority of law to impose penalty of withholding pension as a measure of punishment either in whole or in part permanently or for a specified period, or to order recovery of the pecuniary loss in whole or in part from the pension of the employee. 5. The Apex Court in its judgment dated 16.03.2011 in the matter of **Union of India and others v. S.K. Kapoor** - (2011) 4 SCC 589, held that if any material is to be relied upon in a departmental proceedings, copy of the same must be supplied in advance to the charge sheeted employee so that he may have a chance to rebut the same. It was also observed that there may be a case where the report of the Union Public W.P.(C). Nos. 12481 & 28932 of 2011 : 5 : Service Commission is not relied upon by the disciplinary authority and in that case, it is certainly not necessary to supply a copy of the same to the concerned employee. However, if it is relied upon, then a copy of the same must be supplied in advance to the concerned employee, otherwise, there will be violation of the principles of natural justice. 6. It was submitted by the learned Standing Counsel that now the Central Government has issued a OM dated 06.01.2014 directing that in all disciplinary cases where the Commission is to be consulted, the following procedures are to be adopted: 1. On receipt of the Inquiry Report, the DA may examine the same and forward it to the Commission with his observations; 2. On receipt of the Commission's report, the DA will examine the same and forward the same to the Charged Officer along with the Inquiry report and his tentative reasons for disagreement with the Inquiry Report and/or the advice of the UPSC. 3. The charged Officer shall be required to submit, if he so desires, his written representation or submission to the Disciplinary Authority within fifteen days, irrespective of whether the Inquiry Report/advise of UPSC is in his favour or not. 4. The Disciplinary Authority shall consider the representation of the Charged Officer and take further action as prescribed in sub-rules 2(A) to (4) of Rule 15 of CCS (CCA) Rules, 1965. As it is discernible from the matters now placed on W.P.(C). Nos. 12481 & 28932 of 2011 : 6 : record that the aforesaid conditions has not been followed in the present case, the petitioners are entitled to succeed. Therefore, the writ petitions are allowed and the impugned orders are quashed. **sd/- A. V. RAMAKRISHNA PILLAI, JUDGE.** rv W.P.(C). Nos. 12481 & 28932 of 2011 : 7 :