Special Director General, Airport Sector, CISF, Ministry of Home Affairs & Union of India v Rajesh K. R.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.CHITAMBARESH** ## **&** ## **THE HONOURABLE MR. JUSTICE ASHOK MENON** **THURSDAY, THE 05TH DAY OF SEPTEMBER 2019 / 14TH BHADRA, 1941** ## **WA.No.2202 OF 2015** ## **AGAINST THE ORDER/JUDGMENT IN WPC 31132/2012 DATED 26-05-2015 OF HIGH COURT OF KERALA** ## **APPELLANTS/RESPONDENTS:** **1 SPECIAL DIRECTOR GENERAL AIRPORT SECTOR, CENTRAL INDUSTRIAL SECURITY FORCE, MINISTRY OF HOME AFFAIRS, BLOCK NO.13, CGO COMPLEX, LODHI ROAD, NEW DELHI-110 003.** **2 THE DEPUTY INSPECTOR GENERAL, CENTRAL INDUSTRIAL SECURITY FORCE, MINISTRY OF HOME AFFAIRS, AP SZ HQ, 2ND FLOOR, D BLOCK, RAJAJI BHAVAN, BESANT NAGAR, CHENNAI-600 090.** **3 THE COMMANDANT CENTRAL INDUSTRIAL SECURITY FORCE, MINISTRY OF HOME AFFAIRS, CISF UNIT, ASG TRIVANDRUM, POST VALLAKKADAVU, TRIVANDRUM-08.** **4 UNION OF INDIA REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF INDIA, MINISTRY OF HOME AFFAIRS, NEW DELHI-110 001.** **BY ADV. SMT.O.M.SHALINA, CGC** ## **RESPONDENT/PETITIONER:** **RAJESH K R, S/O. RAMAKRISHNAN, AGED 39 YEARS,** **(NO.921403649, CONSTABLE (EX), CENTRAL INDUSTRIAL SECURITY FORCE, ASG, TRIVANDRUM), RESIDING AT "RAKESHMA", MELEPPAT, RAMAPURAM, ANGADIPURAM (VIA), MALAPPURAM DISTRICT, PIN-679 321.** **R1 BY ADV. SRI.T.C.GOVINDA SWAMY R1 BY ADV. SMT.T.N.SREEKALA** ## **OTHER PRESENT:** **SRI.T.V.VINU-CGC** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 29-08-2019, THE COURT ON 05-09-2019 DELIVERED THE FOLLOWING:** WA 2202/2015 -2- ## J U D G M E N T ## W.A.No.2202/2015 [Dated this the 5[th] day of September, 2019] Ashok Menon, J. The respondents in WP(C) No.31132/2012, Central Industrial Security Force (CISF), Department Officers and the Union of India, aggrieved by the impugned judgment of the learned Single Judge dated 26.5.2015 are in appeal before us. 2. The respondent-writ petitioner was a Constable in the CISF Unit, Thiruvananthapuram. He was subjected to disciplinary enquiry by the Department under four heads of charges. The third appellant-disciplinary authority imposed punishment of compulsory retirement from service vide Ext.P1 order. The appeal before the second respondent (third appellant) and the revision before the first respondent (first appellant) too failed vide Exts.P2 and P3 orders. 3. The respondent/writ petitioner challenged the concurrent findings in Exts. P1 to P3 orders in the Writ before the learned Single Judge, and accepting his contention that he was not given notice and heard on the proposed penalty to be imposed upon him, held that as a serious flaw. The Writ Petition was allowed and Exts.P1 WA 2202/2015 -3- to P3 were quashed. The learned Single Judge remitted the matter back to the respondents therein for fresh consideration from the stage at which the respondents have received Ext.P9 representation from the writ petitioner and directed the appellants to issue notice proposing the punishment proportionate to the alleged misconduct and to afford the writ petitioner an opportunity of being heard on the proposed punishment, and to take further action within a period of three months. 4. The appellants impugns the findings of the learned Single Judge mainly on the ground that the respondent herein cannot claim a second opportunity of show cause against punishment either under Article 311 (2) of the Constitution of India or under the Service Rules applicable to him, in view of the judgment in Secretary, Central Board of Excise and Customs and Others v. K.S. Mahalingam [1986 KHC 798 : AIR 1987 SC 1919], wherein the Hon'ble Supreme Court held thus: “6. It thus appears that the Division Bench as also the learned Single Judge of the High Court took the view that the order of dismissal was vitiated as the Disciplinary failed to give to the respondent an opportunity to show cause against the punishment of dismissal before the same was imposed on him. Both the Division Bench and the learned Single Judge of the High Court have completely overlooked the fact WA 2202/2015 -4- that the Constitution (42nd Amendment) Act, 1976 has deleted from Cl.(2) of Art.311 of the Constitution the requirement of a reasonable opportunity of making representation on the proposed penalty and further, it has been expressly provided inter alia in the first proviso to Cl.(2) that “it shall not be necessary to give such person any opportunity of making representation on the penalty proposed.” After the amendment, the requirement of Cl. (2) will be satisfied by holding an inquiry in which the Government servant has been informed of the charges against him and given a reasonable opportunity of being heard. In the instant case, such an opportunity has been given to the respondent. It is also not disputed that after the order of dismissal was passed, the respondent was supplied with a copy of the report of the Inquiry Officer which enabled him to prefer an appeal to the Appellate Authority against the order of dismissal.” 5. We heard the learned Central Government Standing Counsel for the appellants and the learned counsel appearing for the respondent/writ petitioner. 6. The four heads of charges levelled against the writ petitioner are as follows:- ## “ - Article of Charge I On 06.07.2010 at about 18.45 hrs. CISF No.921403649 Constable Rajesh K.R. of CISF Unit ASG Trivandrum was arrested by Vanchiyur Police for riding motorcycle in a drunken condition in a reckless and negligence manner. The Vanchiyur Police registered a case against him vide crime No.531/2010 under section 279 IPC & 185 Motor Vehicle Act and later released him on bail on the same day. He also did not bring WA 2202/2015 -5- details of this case to the notice of his superiors. It came to the knowledge of his seniors through CIW. The above unbecoming act on the part of Constable Rajesh K.R. amounts to grave misconduct of unbecoming conduct in public bringing bad image to the Force and dereliction from duty. Hence was the charge. The charge has been proved. ## - Article of Charge II CISF No.921403649 Constable Rajesh K.R. of CISF Unit ASG Trivandrum willfully absented from duty beyond one (01) day medical rest on 06.07.2010. Neither did he turn up for duty at Airport with effect from 07/07/2010 nor produce any supporting medical documents in spite of instructions to that effect by his superiors and remained himself absent from duty unauthorizedly without any intimation to the Competent authority. The above act on the part of Constable No.921403649 Constable Rajesh K.R. amounts to gross indiscipline, serious dereliction of duty and an act unbecoming of an enrolled member of a disciplined Force. Hence was the charge. The charge has been proved. ## - Article of Charge III CISF No.921403649 Constable Rajesh K.R. of CISF Unit ASG Trivandrum vacated his local residential house i.e., C/o.Rajasekharan (Proprietor), Vadakathil House, Near Rly. Over Bridge, Chakkai, Pettah, Trivandrum where he has been permitted to reside with his family members with living out permission with HRA since 01.12.2007 without information, while continuously claims HRA. Firstly, he deliberately failed to intimate about vacating his declared family residential address immediately to the competent authority. Secondly, he has been deceitfully drawing HRA even after vacating the house and shifting his family from the declared residential address. The above act on the part of No.921403649 WA 2202/2015 -6- Constable Rajesh K.R. of CISF ASG Unit Trivandrum amounts to misconduct, deceitfulness and dereliction from duty. Hence was the charge. The charge has been proved. ## - Article of charge IV During the short span of service since 03.07.1992 in CISF, No.921403649 Constable Rajesh K.R. of CISF Unit ASG Trivandrum has been awarded with 01- Major and 10-minor penalties under CISF Rules - 2001 on various offence committed by him. He was given sufficient/reasonable opportunities to mend his ways to become a disciplined member of the Force. However, No.921403649 Constable Rejesh K.R. has not shown any improvement in his conduct to become a good member of the Force. The incorrigible act on the part of No.921403649 Constable Rajesh K.R. amounts to serious violation of Force discipline and dereliction of duty and an act of highly unbecoming of an enrolled member of the Force. Hence, was the charge. The charge has been proved.” 7. Nothing wrong was found by the learned Single Judge vitiating the disciplinary enquiry and the learned Judge also came to the right conclusion that the High Court cannot under Article 226 of the Constitution of India sit in appeal on the findings of the enquiry officer. 8. The writ petitioner was only 39 years old and had a number of years of service left. The allegations as could be seen from the aforementioned charges cannot be said to be so serious which could fit WA 2202/2015 -7- into the category of gross violation of discipline. True, the Constable has already been penalised under ten minor heads and one major head indicating that he is a constant violator, but terminating the services of a young man for getting involved in a case of drunken driving which has not been confirmed, or for taking leave without medical certificate, or for drawing HRA after having vacated the house occupied by him are not grounds to impose the punishment of termination from service. We can understand if the delinquent was guilty of being drunk during duty, or was guilty of financial irregularity, or some other such serious default, he could be visited with grievous punishment, as he is a member of a disciplined Force. 9. Proportionality of punishment is definitely a good ground under which this Court could interfere under Article 226 of the Constitution of India. In exercise of power of judicial review, this Court can interfere with the punishment imposed when it is found to be totally irrational or is outrageous in defiance of logic. Limited scope of judicial review is permissible and interference is available when the punishment is outrageously or shockingly disproportionate to the nature of charge, suggesting lack of good faith principle of WA 2202/2015 -8- proportionality comes into play. 10. We do agree that the learned Single Judge was not justified in holding that the writ petitioner was entitled to a further notice of show cause prior to imposing of penalty in view of the amendment brought about to Article 311(2) of the Constitution of India. But nevertheless, we are in agreement regarding the proportionality of the punishment imposed for the alleged misconduct. For that reason, we uphold the findings of the learned Single Judge in quashing Exts.P1 to P3. The judgment of the learned Single Judge is therefore modified and the matter is remitted to the appellants for fresh consideration of the punishment to be imposed on the respondent/writ petitioner. The Writ Appeal is disposed of as above. ## **Sd/-** ## **V.CHITAMBARESH** ## **JUDGE** ## **Sd/-** ## **ASHOK MENON** ## **JUDGE** jg