S. Sudhakar v. Union of India and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **MONDAY, THE 17TH DAY OF DECEMBER 2018 / 26TH AGRAHAYANA, 1940** ## **WP(C).No. 2879 of 2016** ## **PETITIONER:** **S.SUDHAKAR AGED 53 YEARS NO.844480835 HEAD CONSTABLE/GENERAL DUTY, CENTRAL INDUSTRIAL SECURITY FORCE UNIT, VIKRAM SARABHAI SPACE CENTRE, THUMBA, THIRUVANANTHAPURAM-695 022, (PRESENTLY WORKING AT CENTRAL INDUSTRIAL SECURITY FORCE UNIT, NATIONAL REMOTE SENSING CENTRE, BALNAGAR, HYDERABAD, TELANGANA-500 042).** ## **BY ADV. SRI.S.VISHNU** ## **RESPONDENTS:** |**1**|**THE SENIOR COMMANDANT**| |---|---| ||**CENTRAL INDUSTRIAL SECURITY FORCE UNIT, VIKRAM**| ||**SARABHAI SPACE CENTRE, THUMBA,**| ||**THIRUVANANTHAPURAM - 695 022.**| |**2**|**THE DEPUTY INSPECTOR GENERAL,**| ||**CENTRAL INDUSTRIAL SECURITY FORCE UNIT,**| ||**DEPARTMENT OF SPACE HEADQUARTERS, ANTARIKSH**| ||**BHAVAN, NEW BEL ROAD, BANGALORE-560 094.**| |**3**|**THE INSPECTOR GENERAL,**| ||**CENTRAL INDUSTRIAL SECURITY FORCE UNIT, SOUTH**| ||**SECTOR HEAD QUARTERS, CHENNAI-600 009.**| |**4**|**THE DIRECTOR GENERAL**| ||**CENTRAL INDUSTRIAL SECURITY FORCE UNIT, CENTRAL**| ||**GOVERNMENT OFFICES COMPLEX, LODHI ROAD,**| ||**NEW DELHI-110 001.**| W.P.(C) No.2879 of 2016 2 **5 UNION OF INDIA REPRESENTED BY THE SECRETARY, MINISTRY OF HOME AFFAIRS, NEW DELHI-110 001.** **BY ADVS. SRI.JAISHANKAR V.NAIR, CGC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17.12.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.2879 of 2016 3 ## **V.G.ARUN, J.** -------------------------------------- ## W.P.(C) No.2879 of 2016 -------------------------------------Dated this the 17[th] day of December, 2018 ## **JUDGMENT** The petitioner, while working as Head Constable in the Central Industrial Security Force Unit (CISF) at Vikram Sarabhai Space Centre, Thumba was issued with Ext P1 charge sheet under Rule 36 of the CISF Rules, proposing to impose a major penalty. The charges levelled against the petitioner in Ext P1 are as follows: **- Article I** : “In that No.844480835 Head Constable/GD S.Sudhakar of CISF Unit VSSC Thumba, while detailed for 'B' shift duty at TERLS Main Gate on 16.5.2014, kept barrier of the TERLS Main Gate open for about 30 seconds in between 1359 hrs to 14.00 hrs which resulted in two unauthorized personnel on motorcycle bearing Reg.No.KL-16 L-3987 sneaking into TERLS area through TERLS Main Gate at about 1400 hrs. By doing so, No.844480835 Head Constable/GD S.Sudhakar of CISF Unit VSSC Thumba committed an act of gross misconduct, negligence and carelessness on duty which is unbecoming of a member of an Armed Force of the Union.” **- Article II** : “In that No.844480835 Head Constable/GD S.Sudhakar of CISF Unit VSSC Thumba, while detailed for 'B' shift duty at TERLS Main Gate on W.P.(C) No.2879 of 2016 4 16.5.2014, did not react as per Standing Operating Procedure (SOP) of TERLS Gate to the sneaking of two unauthorised personnel on motorcycle bearing Reg.No.KL-16 L-3987 into TERLS area through TERLS Main Gate at about 1400 hrs. This act on the part of No. 844480835 Head Constable/GD S.Sudhakar of CISF Unit VSSC Thumba amounts to gross negligence, carelessness and violation of Standing Operating Procedure (SOP) which is unbecoming of a member of an Armed Force of the Union.” 2. Ext P1 is the Enquiry Report by which it was found that based on scrutiny of the admitted facts, documentary evidence produced and defence statement discussed the charges levelled against the petitioner stand fully proved. Thereafter, by Ext P3 the petitioner was imposed with the punishment of reduction of pay by two stages from Rs.11490 to Rs.10660 in the pay band of Rs.5200-20200 (Grade Pay Rs.2800) for a period of two years with effect from the date of issue of the order. It was further directed that the petitioner will not earn increments of pay during the period of reduction and that on expiry of this period, the reduction will have the effect of postponing his future increments of pay. 3. Though the petitioner preferred a statutory appeal followed by a revision, both the appellate as well as the W.P.(C) No.2879 of 2016 5 revisional authority concurred with the findings of the disciplinary authority and confirmed the penalty imposed on the petitioner. In this Writ Petition, the petitioner has challenged the order imposing penalty as well as the appellate and revisional orders. 4. While the disciplinary proceedings against the petitioner was being proceeded with, the screening committee found the petitioner fit for grant of financial upgradation under the Modified Assured Career Progression Scheme (MACP), with effect from 28.8.2014. Later, Ext P8 was issued denying the financial up-gradation due to the petitioner under the MACP, on account of the penalty that was imposed on the petitioner as per Ext P4. The petitioner has therefore challenged Ext P8 also in this Writ Petition. 5. Advocate Sri.Vishnu S.Chempazhanthiyil, the learned counsel for the petitioner has fairly conceded that as far as the procedural formalities with respect to the conduct of Departmental Enquiry against the petitioner is concerned, he does not have much of a challenge. On the other hand, it is contended that, the duty at the security gate, where the petitioner was on duty at the relevant point of time, was entrusted with four personnel of the CISF Unit in spite of W.P.(C) No.2879 of 2016 6 which the petitioner was singled out and imposed with punishment. In reply, Advocate Jaishankar V.Nair, the learned CGC, contended that each personnel of the CISF is entrusted with specific duties and that on the particular day on which the incident occurred, the duty of operating the barricade was entrusted to the petitioner. It is therefore, contended that trespass of unauthorised persons into the high security area had occurred due to a serious lapse on the part of the petitioner in having failed to keep the barricade shut. It is pointed out that the other personnel, who had charge at the security gate, were also imposed with punishment, though minor, based on the gravity of the lapses on their part. 6. As far as interference with disciplinary proceedings in exercise of the jurisdiction under Article 226 of the Constitution of India is concerned, it is settled law that the scope of judicial review is limited. The learned CGC relied on the decisions reported in **Tewari.S.R v Union of India and another [(2013)6 SCC 602], Sreedharan.G v Union of India and others [(2016(3) KHC 71]** and **Government of Andhra Pradesh and others v Mohd.Narsullah Khan [(2006)2 SCC 373]** to drive home the point that the disciplinary proceedings initiated and penalty imposed on the W.P.(C) No.2879 of 2016 7 petitioner does not warrant interference in exercise of jurisdiction under Article 226, in as much as no procedural infirmity or statutory violation has been pointed out and also since, even according to the petitioner, it is not a case of no evidence having been tendered in the Departmental Enquiry. I find force in the contention urged on behalf of the respondents. A reading of Exts P1 and P3 would show that the enquiry was conducted and the punishment imposed after complying with all requisite procedural formalities and in strict adherence to the principles of natural justice. Therefore, there is no scope for interference against Exts P3, P5 and P6 and the challenge against those orders must necessarily fail. 7. The learned counsel for the petitioner contended that after having found the petitioner fit and eligible for financial up-gradation by the MACP screening committee and the order to that effect having been actually published, the respondents are not vested with any authority to deny the benefit of financial up-gradation to the petitioner. The petitioner relies on Ext R1(g) order dated 5.3.2014 to contend that the decision to grant financial up-gradation to the petitioner, along with others, had been taken as per Ext W.P.(C) No.2879 of 2016 8 R1(g). Of course, a reading of Ext R1(g) would show that the personnel, whose names are mentioned in the order, were found fit for financial up-gradation under the MACP scheme with effect from the dates shown against their names. The petitioner's name figures at serial No.15 in Ext R1(g). The question to be considered is as to whether Ext R1(g) by itself would confer the benefit of financial up-gradation to the petitioner or whether a separate order is required to implement Ext R1(g). It is not in dispute that after the petitioner was found eligible for MACP as per Ext R1(g) dated 5.3.2015, he was imposed with penalty, on conclusion of disciplinary proceedings, vide Ext P3 dated 7.9.2014. Imposition of punishment was prior to implementation of Ext R1(g), with respect to the petitioner. It was in those circumstances that clarification was sought from the DOS Head Quarter, Bangalore Vide letter dated 15.12.2014 clarification was issued to the following effect. In Annexure-I (paragraph 18) of DOP&T Office Memorandum No. 35034/3/2008-Estt(D) dated 19.5.2009, it is mentioned that in the matter of disciplinary/penalty proceedings, grant of benefit under the MACPs shall be subject to rules governing normal promotion. Such cases shall therefore be regulated W.P.(C) No.2879 of 2016 9 under the provisions of CCS(CCA)Rules, 1965 and instructions issued there under. Further it was directed to take necessary action on the recommendation of the Screening Committee for granting Financial up-gradation. Based on the clarification, the petitioner's case was taken up before the MACP Board held at VSSC, Thumba on 28.1.2015 and found not yet fit due to one major punishment in the last five years. The MACP granted was consequently cancelled. The learned counsel for the respondent has relied on Ext R1(h) CISF Circular to contend that, even in cases where recommendations have been made either for promotion or for financial up-gradation, cancellation can be effected before actual implementation, if the personnel concerned is chargesheeted in the departmental proceeding or made an accused in a criminal case or imposed with punishment. Reliance was placed on paragraph 5 of Ext R1(h) which reads as follows: “As per para 7 of this Department O.M.dated 14.9.1992 issued in pursuance to Hon'ble Supreme Court judgment in K.V.Jankiraman case, recommendation of DPC in respect of a Govt.servant who is recommended for promotion but in which case any of the circumstances mentioned in para-3 of the O.M. arises after recommendation of DPC are received but before he is actually promoted, will be deemed to have been put in sealed cover. He shall not be promoted until he is completely W.P.(C) No.2879 of 2016 10 exonerated of the charges against him. In case any penalty is imposed on him, DPC recommendation would not be acted upon and his case for promotion would be considered by the next DPC.” Since reference is made in Ext R1(h) to the DoPT OM dated 14.9.1992, copy of the same was also made available for perusal. 8. Paragraph 2 of the DoPT OM No.22011/4/91-Estt(A) dated 14.9.1992 stipulate that if at the time of consideration of the cases of government servants for promotion, details of government servant in the consideration zone for promotion falling under the following category, viz. (i) government servants under suspension (ii) government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and (iii) government servants in respect of whom prosecution for criminal charge is pending, should be specifically brought to the notice of the Departmental Promotion Committee. It is contended that the financial up-gradation granted under Ext R1(g) was decided to be cancelled since the stipulations with regard to promotion is equally applicable in the case of financial upgradation also. The learned counsel for the petitioner submits that in as much as Ext R1(g) order had been issued, W.P.(C) No.2879 of 2016 11 the DoPT OM dated 14.9.1992 cannot be pressed into service to cancel the order and deny benefit to the petitioner. 9. After a careful consideration of the rival contentions, I find that even though Ext R1(g) order was issued, the petitioner was imposed with penalty prior to its implementation. It was those circumstances, that clarification was sought from the Head Quarters and the Head Quarters, relying on the OM dated 14.9.1992, had directed cancellation of the financial up-gradation. In the light of the undisputed fact that the petitioner was imposed with penalty prior to actual implementation of Ext R1(g), the departmental authorities were well within their power to have taken a decision to cancel the financial up-gradation, which is bound to be conferred on an employee for successful and satisfactory completion of a particular tenure in service. In that view of the matter, I am of the considered opinion that Ext P8 does not warrant interference. Consequently, the Writ Petition is dismissed. Sd/- **V.G.ARUN, JUDGE** cms W.P.(C) No.2879 of 2016 12 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXHIBIT P1 TRUE COPY OF THE ENQUIRY REPORT SUBMITTED AGAINST THE PETITIONER.** - **EXHIBIT P2 P2- TRUE COPY OF THE REPRESENTATION DATED 28.8.2014 SUBMITTED BY THE PETITIONER AGAINST THE ENQUIRY REPORT TO THE 1ST RESPONDENT.** - **EXHIBIT P3 P3- TRUE COPY OF THE PENALTY ORDER DATED 27.6.2014 ISSUED BY THE 1ST RESPONDENT.** - **EXHIBIT P4 P4- TRUE COPY OF THE APPEAL DATED 6.10.2014 TO THE 2ND RESPONDENT.** - **EXHIBIT P5 P5- TRUE COPY OF APPELLATE ORDER DATED 19.1.2015 ISSUED BY THE 2ND RESPONDENT.** - **EXHIBIT P6 P6- TRUE COPY OF THE REVISIONAL ORDER DATED 6.5.2015 ISSUED BY THE 3RD RESPONDENT.** - **EXHIBIT P7 P7- TRUE COPY OF THE DEFENCE STATEMENT OF THE PETITIONER IN THE ENQUIRY PROCEEDINGS DATED 7.7.2014.** - **EXHIBIT P8 P8- TRUE COPY OF THE ORDER DATED 17.3.2015 ISSUED BY THE OFFICE OF THE 1ST RESPONDENT DENYING MACP.** ## **EXHIBIT P9** - **P9- TRUE COPY OF THE PENALTY ORDER DATED 27.6.2014 ISSUED BY THE ASSISTANT COMMANDANT.** - **EXT R1(A) INCIDENT REPORT OF SI OF POLICE** - **EXT R1(B) ORDER DTD 20.5.2014** - **EXT R1(C) CHARGE MEMORANDUM DTD 26.5.2014** - **EXT R1(D) ORDER DTD 7.9.2014** - **EXT R1(E) ORDER DTD 19.1.2015** - **EXT R1(F) ORDER DTD 6.5.2015** - **EXT R1(G) ORDER DTD 5.3.2014** W.P.(C) No.2879 of 2016 13 **EXT R1(H) CIRCULAR NO.16/2013 DTD 8.7.2013 EXT R1(I) USO PART-I No.25/2015 DTD 25.2.2015 /TRUE COPY/** P.S.TO JUDGE cms