Raveendran M. and Jagan G v. Union of India and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **MONDAY, THE 1ST DAY OF JULY 2013/10TH ASHADHA, 1935** ## **WP(C).No. 19357 of 2012 (T)** ## **----------------------------** ## **PETITIONERS:** - **------------** **1. RAVEENDRAN M., AGED 50 YEARS SON OF G. MADHAVAN, ARUNIMA MANAPPALLIL, NORTH P.O THAZHAVA KOLLAM** **2. JAGAN G, TTHOPPUVILA VEEDU, THEKKEMURI, EAST KALLADA P.O, KOLLAM** **BY ADVS.SRI.P.B.SURESH KUMAR (SR.) SRI.R.NIKHIL** **RESPONDENTS:** - **------------** **1. UNION OF INDIA REPRESENTED BY THE SECRETARY, MINISTRY OF DEFENCE, NEW DELHI 110001** **2. THE DIRECTOR GENERAL** **NATIONAL CADET CORPS, HEAD QUARTERS, NEW DELHI 110001** **3. THE DEPUTY DIRECTOR GENERAL (K & L)** - **NATIONAL CADET CORPS, COTTON HILL BUNGLOW THIRUVANANTHAPURAM, KERALA 695001** **4. THE GROUP COMMANDER AND CHAIRMAN** - **UNIT RUN CANTEEN (URC), NCC GROUP HEAD QUARTERS KOLLAM, KERALA 691001** **BY ADV. SRI.P.PARAMESWARAN NAIR,ASG OF INDIA** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01-07-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **VK** ## **WP(C).No. 19357 of 2012 (T)** **----------------------------** **APPENDIX** **---------** ## **PETITIONER(S) EXHIBITS** ## **-----------------------** **EXT.P1 TRUE COPY OF THE CHARGE SHEET ISSUED TO THE FIRST PETITIONER BY THE FOURTH RESPONDENT DATED 27-09-2010 EXT.P2 TRUE COPY OF THE CHARGE SHEET ISSUED TO THE SECOND PETITIONER BY THE FOURTH RESPONDENT DATED 27-09-2010 EXT.P3 TRUE COPY OF THE NOTICE ISSUED TO THE FIRST PETITIONER DATED 27-09-2010** **EXT.P4 TRUE COPY OF THE NOTICE ISSUED TO THE SECOND PETITIONER DATED 27-09-2010** **EXT.P5 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE FIRST PETITIONER TO THE FOURTH RESPONDENT DATED 29/09/2010** **EXT.P6 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE SECOND PETITIONER TO THE FOURTH RESPONDENT DATED 29-09-2010 EXT.P7 TRUE COPY OF THE ORDER ISSUED BY THE FOURTH RESPONDENT TO THE FIRST PETITIONER DATED 19-10-2010 EXT.P8 TRUE COPY OF THE ORDER ISSUED BY THE FOURTH RESPONDENT TO THE SECOND PETITIONER DATED 19/10/2010 EXT.P9 TRUE COPY OF THE RULES REGULATING THE TERMS AND CONDITIONS OF SERVICE OF CIVILIAN EMPLOYEES OF UNIT RUN CANTEEN DATED NIL EXT.P9A) TRUE COPY OF SCHEDULE B TO EXHIBIT P9 RULES DATED NIL EXT.P10 TRUE COPY OF THE STATEMENT FILED BY THE RESPONDENTS IN WPC NO 15273/2011 DATED 6/12/2011 EXT.P11 TRUE COPY OF THE COPY OF THE JUDGMENT IN WPC NO 15273/2011 DATED 12/4/2012 EXT.P12 TRUE COPY OF THE DECISION OF THE THIRD RESPONDENT AS COMMUNICATED TO THE PETITIONERS DATED 30-07-2012** **VK** **WP(C).No. 19357 of 2012 (T)** **----------------------------** **RESPONDENTS' EXHIBITS :** **--------------------** **EXT.R4(a). COPY OF THE CONVENING ORDER NO.17/2010 DATED 29.3.2010 EXT.R4(b). COPY OF THE COVER4NING ORDER NO.4654/ORDER/P&C DATED 20.7.2010.** **EXT.R4(c). COPY OF ORDER DATED 19.5.2011 IN O.A. NO.961 OF 2010 OF THE HON'BLE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH.** **EXT.R4(d). THE DECISION OF APPELLAYTE AUTHORITY OPN URC KOLLAM NO.3027/UR(KLM)/adm DATED 30.7.2010.** **EXT.R4(e). COPY OF THE WARNING/COUNSELING ISSUED TO THE DEFAULTERS. EXT.R4(f). COPY OF THE WARNING/COUNSELING ISSUED TO THE PETITIONERS. EXT.R4(g). LEGAL STATUS OF THE URC.** **/ TRUE COPY /** **P.A. TO JUDGE** **VK** ## **A.M. SHAFFIQUE, J** ## **---------------------------------------** ## **W.P.(C). NO. 19357 OF 2012** **----------------------------------------** Dated this the 01[st] day of July, 2013 ## **JUDGMENT** The petitioners challenge Ext. P7, P8 and P12. Ext. P7 is an order passed by the disciplinary authority dismissing the 1[st] petitioner from service following an enquiry conducted pursuant to memo of charges and show cause notice by way of Ext. P1 and P3 for illegal possession of 10 bottles of IMFL (Indian Made Foreign Liquor) which he had inappropriately procured from unknown sources and found in his car. Ext. P8 is a similar order passed against the 2[nd] petitioner for being in illegal possession of 12 bottles of IMFL found in his car which was pursuant to Ext. P2 and P4 charge sheet and the show cause notice. Petitioners preferred an appeal against Ext. P7 and P8 which came to be rejected in terms of Ext. P12. 2. The main contention urged by the petitioners challenging Ext. P7, P8 and P12, is that the charge against W.P.(C). NO. 19357 OF 2012 **2** them were vague and they have not been convicted for any offence for being in possession of such quantity of IMFL. 3. Counter affidavit is filed by the respondents supporting the stand taken by them in Ext. P7, P8 and P12. According to the respondents the petitioners have admitted that they were in possession of IMFL of such a large quantity which is illegal. That apart it is contended that they are not employees of the defence establishment and Unit Run Canteen is not a State or other authority within the meaning of Article 226 of the constitution of India and there is no public function performed by the Unit Run Canteen and since the petitioners are not government employees as already held in Ext. P11 judgment of the Central Administrative Tribunal, this Court does not have jurisdiction to interfere with the punishment imposed on them. 4. Having regard to the factual statements made in the writ petition and the counter affidavit three questions arise for consideration i) whether the writ petition is maintainable in respect of an order of dismissal passed by W.P.(C). NO. 19357 OF 2012 **3** the Group Commander & Chairman URC, Kollam, ii) whether the charges leveled against the petitioners are vague and iii) whether the petitioners are involved in commission of any offence in order to find them guilty of misconduct. 5. Reference is made by the respondents to the judgment of Supreme Court in **R.R. Pillai vs. Commanding Officer, Headquarters, Southern Air Command & Others [(2009) 13 SCC 311]** wherein there is a finding that persons employed in Unit Run Canteens are not government employees. But in regard to the question as to whether the Unit Run Canteen can be treated as an instrumentality of the State, the Supreme Court observed in Paragraph 13 that since the Central Administrative Tribunal or the High Court did not consider the same, the question as to whether URC can be treated as an instrumentality of the State does not fall for consideration. 6. The learned Standing Counsel for the Central Government however relies upon Ext. R4(c) order of the Central Administrative Tribunal where Central Administrative W.P.(C). NO. 19357 OF 2012 **4** Tribunal comes to a conclusion that the petitioners are not government employees and cannot invoke the jurisdiction of the Central Administrative Tribunal. The question therefore would be whether the petitioners can rely upon the fact that, since the impugned orders are passed by the Government officers, whether the jurisdiction under Article 226 can be invoked. Article 226(1) reads as under:- - “ **226. Power of High Courts to issue certain writs.-** (1) Notwithstanding anything in article 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of _habeas corpus, mandamus, prohibition, quo warranto_ and _certiorari_ , or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.” 7. It is not in dispute that the High Court can exercise jurisdiction against any person or authority including in appropriate cases, the Government, any writs W.P.(C). NO. 19357 OF 2012 **5** described therein for the enforcement of the rights conferred by Part III or for any other purpose. Here is an instance where the petitioners are seeking a writ of certiorari to quash the disciplinary proceedings against them. The impugned orders apparently are service matters in which disciplinary proceedings had been taken by the 2[nd] respondent on the basis of Ext. P9 Rules which regulates the terms and conditions of service of civilian employees of Unit Run Canteen paid out of non-public fund. Therefore this Court is concerned with an action taken on the basis of the aforesaid Rules. On a perusal of the Rules it could be seen that the Rules apply to all civilian employees of Unit Run Canteens which were maintained from the non-public fund account. The Rules does not apply for serving defence personnels who may be deputed to the URC's in any capacity. Therefore, it could be seen that these canteens are not run out of Government funds but out of non-public fund account and the employees therein are governed by certain set of Rules which cannot be termed as Statutory Rules. As W.P.(C). NO. 19357 OF 2012 **6** per Rules their appointing and disciplinary authority is the defence personnel. The law in this regard is well settled. In **Federal Bank Ltd. v. Sagar Thomas and Others [(2003) 10 SCC 733]** the Supreme Court in paragraph 18 held as under:- - “18. From the decisions referred to above, the position that emerges is that a writ petition under Article 226 of the Constitution of India may be maintainable against _(i)_ the State (Government); _(ii)_ an authority; _(iii)_ a statutory body; _(iv)_ an instrumentality or agency of the State; _(v)_ a company which is financed and owned by the State; _(vi)_ a private body run substantially on State funding; _(vii)_ a private body discharging public duty or positive obligation of public nature; and _(viii)_ a person or a body under liability to discharge any function under any statute, to compel it to perform such a statutory function.” 8. The Unit Run Canteen does not come under any of the categories mentioned above. The employment in URC is akin to a private establishment in which the parties are governed by the Rules and therefore for that reason I do not think, this Court can interfere with Ext. P7, P8 and P12 W.P.(C). NO. 19357 OF 2012 **7** orders in the writ petition under Article 226 of the Constitution of India. Merely for the reason that appointment is made by the defence personnel and disciplinary enquiry is made by them, does not change the character of employment as the Rules are not statutory in nature. 9. Having found so this writ petition can be dismissed straight away but having regard to the arguments made by the learned Senior Counsel for the petitioners, I am deciding the other grounds as well. The main contention urged by the learned Senior Counsel for the petitioners is based on the vagueness of charges. Ext.P1 and P2 are the charges and Ext. P3 and P4 are the show cause notices. The only charge is illegal possession of 10 and 12 bottles of IMFL by the petitioners respectively on 24.03.2010. 10. It is evident from Ext. P3 and P4 that there was a preliminary and subsequent enquiry by the courts of enquiry into said factual matters. The petitioners do not have a case that such an enquiry was not conducted. However the W.P.(C). NO. 19357 OF 2012 **8** petitioners admitted the charges by issuing Ext. P5 and P6. The argument of the learned Senior Counsel for the petitioners is that even if it is an admission, an enquiry in terms of Rule 24 ought to have been conducted. According to the learned Senior Counsel, the admission made in Ext. P5 and P6 are not admissions in the eye of law as the charges are very vague. I do not think that there is any vagueness in the charges. The issue concerns illegal possession of large quantity of IMFL, which is admitted by the petitioners knowing fully well the charges against them. 11. Another argument is based on Rule 22(g) of Ext. P9 which indicates that the said commission/omission shall constitute misconduct. Sub clause (g) of Rule 22 reads as under:- - (g) Any act/omission, which constitutes an offence under any law for the time being in force in the country. 12. The petitioners were well aware of the allegations against them and it cannot be disputed that possession of large quantity of IMFL is illegal in terms with the Abkari W.P.(C). NO. 19357 OF 2012 **9** Laws. The petitioners then has a case that the alleged misconduct does not amount to an offence at all. They have not taken such a contention. They have only sought for leniency. The appellate authority had also considered the matter in detail and had decided not to interfere with the order of dismissal. 13. The learned Senior Counsel for the petitioners relied upon the following judgments:- ## (i) In **Govt. of A.P. and Others v. A. Venkata Raidu [(2007) 1 SCC 338]** paragraph 9 reads as under:- “9. We respectfully agree with the view taken by the High Court. It is a settled principle of natural justice that if any material is sought to be used in an enquiry, then copies of that material should be supplied to the party against whom such enquiry is held. In Charge 1, what is mentioned is that the respondent violated the orders issued by the Government. However, no details of these orders have been mentioned in Charge 1. It is well settled that a charge-sheet should not be vague but should be specific. The authority should have mentioned the date of the GO which is said to have been violated by the respondent, the number of that GO, etc. but that was not done. Copies of the said GOs or directions of W.P.(C). NO. 19357 OF 2012 **10** the Government were not even placed before the enquiry officer. Hence, Charge 1 was not specific and hence no finding of guilt can be fixed on the basis of that charge. Moreover, as the High Court has found, the respondent only renewed the deposit already made by his predecessors. Hence, we are of the opinion that the respondent cannot be found guilty for the offence charged.” ## (ii). **Union of India and Other v. Gyan Chand Chattar [(2009) 12 SCC 78]** paragraph 33 is relied upon ## reads as under:- - “33. In a case where the charge-sheet is accompanied with the statement of facts and the allegation may not be specific in charge-sheet but may be crystal clear from the statement of charges, in such a situation as both constitute the same document, it may not be held that as the charge was not specific, definite and clear, the enquiry stood vitiated. (Vide _State of A.P. v. S. Sree Rama Rao_ ). Thus, where a delinquent is served a charge-sheet without giving specific and definite charge and no statement of allegation is served along with the charge-sheet, the enquiry stands vitiated as having been conducted in vitiation of the principles of natural justice.” - (iii). Another judgment relied upon is **Narayan Dutt** **and Others v. State of Punjab and Another [(2011) 4** W.P.(C). NO. 19357 OF 2012 **11** ## **SCC 353]** paragraph 34 reads as under:- “34. Apart from this, there is another vital aspect in the order of the Governor which requires serious consideration, inasmuch as, in the order of the Governor, there are some observations about the guilt or innocence of the accused persons who prayed for pardon under Article 161 of the Constitution. It is well settled that to decide on the innocence or otherwise of an accused person in a criminal trial is within the exclusive domain of a court of competent jurisdiction as this is essentially a judicial function. A Governor's power of granting pardon under Article 161 being an exercise of executive function, is independent of the court's power to pronounce on the innocence or guilt of the accused. The powers of a court of law in a criminal trial and subsequent appeal right up to this Court and that of the President/Governor under Articles 72/161 operate in totally different arenas and the nature of these two powers are also totally different from each other. One should not trench upon the other. The instant order of the Governor, by pronouncing upon the innocence of the accused, has therefore, if we may say so with respect, exceeded the permissible constitutional limits under Article 161 of the Constitution.” The aforesaid judgments does not apply to the factual situation involved in the present case as I have already held W.P.(C). NO. 19357 OF 2012 **12** that the petitioners have categorically admitted their misconduct and therefore if possession of 10 and 12 bottles of IMFL is illegal as per any law in the country, definitely the charge levelled against is true and therefore there is nothing wrong in the disciplinary authority confirming the same. Having found so, there is no merit in the writ petition and the same is dismissed. Sd/- **A.M. SHAFFIQUE JUDGE** DCS