Union of India and CISF (1-6) v. Karayi Gopalan and Secretary, UPSC

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HON'BLE THE CHIEF JUSTICE DR. MANJULA CHELLUR & THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN THURSDAY, THE 11TH DAY OF JULY 2013/20TH ASHADHA, 1935 ## **W.A.No.570 of 2013** ------------------------------------- AGAINST THE JUDGMENT IN W.P.(C).No.20997/2010-Y, DATED 20/11/2012 OF HIGH COURT OF KERALA. --------------------------- ## **APPELLANTS/** RESPONDENTS 1 TO 6 IN THE WRIT PETITION:- ----------------------------------------------------------------------------------------- 1. THE UNION OF INDIA, - REPRESENTED BY THE SECRETARY, - MINISTRY OF HOME AFFAIRS, NORTH BLOCK, - NEW DELHI - 110 001. 2. THE DIRECTOR GENERAL, CISF HEADQUARTERS, 13, CGOS COMPLEX, - LODHI ROAD, NEW DELHI - 110 003. 3. THE GROUP COMMANDANT, CISF HEADQUARTERS, KENDRIYA BHAVAN, CSEZ POST, - KAKKANAD, KOCHI - 37. 4. THE DEPUTY INSPECTOR GENERAL/PERS, CISF HQRS, BLOCK NO.13, CGO COMPLEX, - LODHI ROAD, NEW DELHI - 110 003. 5. THE DEPUTY COMMANDANT & ENQUIRY OFFICER, CISF UNIT, NMPT, MANGLORE - 10. 6. K.KORAPPAN, ASSISTANT COMMANDANT, CISF UNIT, NMPT, PANAMBUR, MANGLORE - 10. - BYSENIOR PANEL COUNSEL FOR GOVT. OF INDIA SRI.K.M.JAMALUDHEEN. - 2 - W.A.NO.570 OF 2013 **RESPONDENTS/** PETITIONER AND 7TH RESPONDENT IN THE WRIT PETITION:- ---------------------------------------------------------------------------------------------------------------- 1. KARAYI GOPALAN, - S/O. S.AMBU, KARAYI HOUSE, RAMAPURAM, - NIRMALAGIRI POST, KANNUR - 670 701. 2. THE SECRETARY, - UNION PUBLIC SERVICE COMMISSION, DHOLPUR HOUSE, SHAHJAHAN ROAD, NEW DELHI - 110 069. - R1 BY ADV. SRI.N.JAMES KOSHY - R2 BY STANDING COUNSEL FOR U.P.S.C. SRI.THOMAS MATHEW NELLIMOOTTIL. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 11-07-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:- W.A.NO.570 OF 2013 ## **APPENDIX** APPELLANTS' ANNEXURE:- --------------------------------------- ANNEXURE-A TRUE COPY OF THE JUDGMENT IN W.A.NO.1319/2009 DATED 26.5.2011. ## RESPONDENT'S ANNEXURES:- --------------------------------------------- NIL. ( true copy ) Manjula Chellur, C.J. & K.Vinod Chandran, J. ---------------------------------W.A.No.570 of 2013 ---------------------------------Dated this, the 11th day of July, 2013 ## JUDGMENT ## K.Vinod Chandran,.J. The Union of India and the authorities of the Central Industrial Security Force (CISF) are aggrieved by the impugned judgment setting aside Exhibit P2 order which imposed a penalty of “cut in monthly pension of 25% on permanent basis” on the 1st respondent. The 1st respondent retired from the CISF as an Assistant Sub Inspector and had more of less unblemished service of 35 years till the alleged incident on the eve of his retirement, which led to the penalty. The incident occurred on 8.5.2008 when the 1st respondent had supervisory control over the constables who were on guard duty at New Mangalore Port Trust, Mangalore. Admittedly the 1st respondent had only supervisory duty at one of the gates and the offence alleged was that the 6th appellant, Assistant Commandant of the unit, on surprise inspection recovered an amount of Rs.4,144/- from the duty post area. Hence, gross indiscipline, criminal negligence and breach of trust coupled with W.A.No.570 of 2013 **- 2 -** violation of lawful orders and tarnishing the image of CISF were the charges raised against the 1st respondent. 2. Since the 1st respondent was due to retire on 31.05.2008, a charge memo was issued on 10.5.2008 and after considering the reply dated 16.05.2008, an enquiry was ordered. The 1st respondent having retired on superannuation, the enquiry officer completed the enquiry and submitted his report on 6.6.2008, finding the 1st respondent guilty of the charges framed. The copy of the enquiry report was forwarded to the charged official and a representation was also received on 16.7.2008. It was pursuant to that Exhibit P2 was passed on 26.11.2009. The penalty imposed by Exhibit P2, being 25% reduction of monthly pension on a permanent basis, was purportedly in exercise of the powers under Rule 9 of the Central Civil Services (Pension) Rules, 1972. 3. The learned Single Judge specifically referred to another case cited by the 1st respondent/writ petitioner, of similar nature, where the charged official therein was awarded a 'minor punishment' of 'cutting down three days' salary' and noticed that the counter affidavit does not at all controvert the said ground of discrimination alleged by the 1st respondent/writ petitioner. The learned Single Judge also relied W.A.No.570 of 2013 ## **- 3 -** on a decision of the Supreme Court in _**D.V.Kapoor v. Union of India and others**_ **[AIR 1990 SC 1923]** to hold that no specific finding was recorded that the pensioner committed misconduct or negligence in the discharge of his duty and that the penalty imposed is grossly disproportionate to the gravity of the misconduct alleged. It was also found that there was no notice to the 1st respondent before invoking the procedure under Rule 9 of the CCS (Pension) Rules. On all these grounds, the order of the disciplinary authority imposing penalty was set aside and it was directed that the arrears of pensionary benefits due shall be paid within a period of three months from the date of receipt of a copy of the judgment. The learned Single Judge also consciously refrained from awarding any interest and recorded that the same is only for the reason that such denial of interest would be the proper punishment for the proven ground of supervisory lapse. 4. The learned Senior Panel Counsel for Government of India urges two grounds in assailing the impugned judgment. For one, he relies on Annexure-A judgment of a Division Bench of this Court in W.A.No.1319 of 2009 and contends that after the Forty-second Amendment of the Constitution there is no provision for issuing a notice on the question of imposition of penalty and the finding of the learned W.A.No.570 of 2013 ## **- 4 -** Single Judge that no notice was issued before invocation of Rule 9 of the CCS (Pension) Rules, is hence illegal. The next ground urged is that the 1st respondent being a member of an uniformed force, discipline is paramount and serious supervisory laches having been detected and charged against the 1st respondent; that would amount to a major misconduct warranting major penalty. 5. We have gone through the records at the stage of admission itself. On the question of law regarding the Forty-second Amendment to the Constitution of India, the same is no longer _res integra_ . A Constitution Bench of the Supreme Court in _**Managing Director, ECIL v. B. Karunakar**_ **[(1993) 4 SCC 727]** found that before the Forty-second Amendment there were 2 notices contemplated in the context of a disciplinary enquiry initiated against a delinquent employee. The 1st notice was to represent against the findings in the report and the same was a right conferred on the delinquent employee to prove innocence. The 2nd notice was one to show cause against the proposed penalty and that conferred a right to plead for no penalty or a lesser penalty. This later right alone had been taken away by the Forty-second Amendment. It was held.- “ _All that has happened after the Forty-second Amendment of the Constitution is to advance the point of_ W.A.No.570 of 2013 **- 5 -** _time at which the representation of the employee against the enquiry officer's report would be considered. Now, the disciplinary authority has to consider the representation of the employee against the report before it arrives at its conclusion with regard to his guilt or innocence in respect of the charges_ ” ( _sic_ ). 6. Before looking at whether a notice has to be issued when invoking Rule 9 of the CCS (Pension) Rules, we have to first look into whether the 1st respondent, delinquent employee, had opportunity to exercise the right conferred on him by Article 311 of the Constitution, explained by the Supreme Court in the aforementioned terms. It is trite that it is not a formality that the enquiry report is sent to the delinquent employee and a representation is received from him against the findings. It is necessary that the disciplinary authority goes into the findings in the enquiry report and come to a conclusion with regard to the guilt of the delinquent employee as discernible from the evidence recorded at the enquiry. It is also trite that the same is not an empty formality and calls for application of mind into admissible considerations and the relevant material coming out at the enquiry and it is also well settled that the findings of the enquiry officer does not at all fetter the discretion of the disciplinary authority to either concur or W.A.No.570 of 2013 ## **- 6 -** differ from such findings and thereby exonerate a delinquent employee even if the enquiry report finds him guilty and also find a person guilty of the offences charged from the evidence recorded; going against the findings of the enquiry officer exonerating the delinquent employee. The implication of the rights so conferred on the delinquent employee and the discretion left with the disciplinary authority does not mean that only when the disciplinary authority differs from the findings of the enquiry officer, there should be an application of mind and that such application of mind should be revealed from the order imposing penalty. The true spirit and purport of the rule is that at every instance the disciplinary authority when entering into findings on the basis of an enquiry report and considering the explanation of the delinquent employee, necessarily; there should be a reasoned finding even if the disciplinary authority concurs with the findings of the enquiry officer. Needless to say, the explanation offered also ought to be considered; otherwise, the same is reduced to an empty formality. 7. In the context of the above discussion, one has to look at Exhibit P2. Exhibit P2 extracts the charge, details the proceedings and then talks about the consultation with the Union Public Service Commission (UPSC), wherein it is recorded that the UPSC had advised W.A.No.570 of 2013 **- 7 -** that “the ends of justice would be met in this case, if the penalty of 25% cut in monthly pension on permanent basis” is imposed on the delinquent. Then it goes on to state so in paragraph 4: “NOW THEREFORE, after careful consideration of the records of the inquiry, the advice tendered by the UPSC and the facts and circumstances of the case, the President of India has come to the conclusion that Shri Karayi Gopalan, Ex-ASI Exe., CISF Unit NMPT Mangalore be awarded the penalty of “cut in monthly pension of 25% on permanent basis”. It is accordingly ordered”. In fact, we find that the UPSC had gone into the entire matter as is evident from Exhibit P3 to find that the Article of Charges are proved and the penalty as proposed should be imposed. It is for the disciplinary authority to find whether the articles of charge has been proved or not and the UPSC is only in an advisory capacity with respect to the penalty sought to be imposed. The UPSC, going by Exhibits P3 and P2, has usurped the powers of the disciplinary authority, which the disciplinary authority willingly conceded to. 8. There is absolutely no consideration of the findings of enquiry or the explanation offered by the delinquent employee by the disciplinary authority. Nowhere is it discernible that the disciplinary W.A.No.570 of 2013 ## **- 8 -** authority has applied its mind to the evidence on record and the explanation offered by the delinquent employee. Even Exhibit P3 merely states that **“the DA accepted the findings of the IO and forwarded a copy of IO's report to CO for making representation, if** **any”** ( _sic_ ). If the disciplinary authority accepted the findings of the enquiry officer even before the report was sent to the delinquent employee, then whither goes the right of the employee to prove his innocence and represent against the findings in the enquiry report? 9. In the said circumstances, we need not go into the aspect of whether any notice was required before Rule 9 of CCS (Pension) Rules were invoked. We are not for a moment finding that it was required or not required, because then we have to necessarily look at CCS (Pension) Rules and we cannot merely go by the Forty-second Amendment and find that no such requirement is there. But having found that even the stage of notice mandated by Article 311, as declared by the Hon'ble Supreme Court in the aforementioned decision, has not been complied with, we find serious flaw in the procedure adopted by the department. 10. In the view we take, we are further fortified by the procedure as contemplated in Rule 36 of the Central Industrial Security W.A.No.570 of 2013 ## **- 9 -** Force Rules, 2001; which admittedly is the provision under which proceedings were taken against the delinquent employee. We extract herewith sub-rule (21) of Rule 36:- - “(21)(i) The disciplinary authority, if it is not itself the inquiry authority, may consider the records of inquiry and record its findings on each charge. The disciplinary authority may, for reasons to be recorded by it in writing, remit the case to the inquiring authority for further inquiry and report and the inquiry authority shall thereupon proceed to hold the further inquiry according to the provisions of this rule as far as may be. - (ii) The disciplinary authority shall, if it disagrees with the findings of the inquiring authority on any article of charge, record its reasons for such disagreement and record its own findings on such charge if the evidence on record is sufficient for the purpose. - (iii) The Disciplinary Authority shall forward or cause to be forwarded a copy of the report of the inquiry, if any, held by the Disciplinary Authority or where the Disciplinary Authority is not the Inquiring Authority, a copy of the report of the Inquiring Authority together with reasons for disagreement, if any and record its own findings on any article of charge, to the enrolled member of the Force who 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 report is favourable or not to the enrolled member of the Force. W.A.No.570 of 2013 ## **- 10 -** - (iv) The Disciplinary Authority shall consider the representation, if any, submitted by the enrolled member of the Force before proceeding further in the manner as provided in sub-rule (22) of Rule 36”. Sub-clause (i) of sub-clause (21) of Rule 36 mandates that the disciplinary authority shall record its findings on each charge after considering the records of inquiry. Of course, sub-clause (ii) provides for similar recording of reasons in the event of the disciplinary authority disagreeing with the findings of the inquiring authority. It is these findings recorded by the disciplinary authority, after considering the records of inquiry, that needs to be forwarded to the “enrolled member of the Force who is proceeded against”. Clause (iv) deals with consideration of the representation by the disciplinary authority. As we have noticed in the instant case, the disciplinary authority accepted the findings of the inquiring authority and forwarded a copy of the Enquiry Officer's report to the charge-sheeted officer. There is nothing on record to show that the findings of the disciplinary authority, after considering the report of enquiry, was also forwarded to the employee. In fact it is very evident that the same is absent. It is also glaring that the representation was also brushed aside without any application of mind, **- 11 -** W.A.No.570 of 2013 as is evident from the extracted paragraph from the final order issued by the disciplinary authority. 11. We have to further notice that this is a case in which a major penalty was imposed, reducing the pension to the extent of 25% on a permanent basis. Even looking at the charges alleged, we are not convinced that the same is one warranting imposition of major penalty. We do not at all dispute the need for discipline in the uniformed force; but here is a case where a supervisory officer has been proceeded against for a charge that the subordinate officers under his supervision had committed a misconduct. There is absolutely nothing linking the supervisor with his subordinates at least in the aspect of the specific instance of misconduct alleged. Supervisory lapse cannot lead to allegation of commission of an offence as such. We are also of the opinion that the learned Single Judge has correctly found that imposition of major penalty is grossly disproportionate to the offences alleged and proved at the enquiry. We are unable to find any good reason to interfere with the findings of the learned Single Judge and we refuse to do so. We confirm the orders of the learned single Judge that the arrears of pension withheld (by reason of cut in 25% of pension) till date shall be paid within a period of three months, however, from the **- 12 -** W.A.No.570 of 2013 date of our judgment. We perfectly agree with the learned Single Judge that the punishment shall be the loss of interest with respect to the withheld pension; but make it clear that the same has to be disbursed immediately without interest. If the disbursal is not effected within three months as stipulated above, then the 1st respondent shall be entitled to interest from the date of this judgment till payment at the rate of 10%, which the Union of India-appellant shall be entitled to recover from such officer who has committed the default, which caused the delay. Writ Appeal is hence dismissed _in limine_ , with the above observations. Sd/Manjula Chellur, Chief Justice Sd/K.Vinod Chandran, Judge. vku/ ( true copy )