W.P.(C) No.38669 of 2010 (G)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN** **TUESDAY, THE 5TH DAY OF JUNE 2012/15TH JYAISHTA 1934** ## **WP(C).No. 38669 of 2010 (G)** **---------------------------** **PETITIONER(S):** - **------------------------** **NO.994120014 SI/EXE. V.RAVIKUMAR, B COY, CISF UNIT ASG, THIRUVANANTHAPURAM AIRPORT-695 008.** **BY ADVS.SRI.G.SASIDHARAN CHEMPAZHANTHIYIL SRI.S.VISHNU** ## **RESPONDENT(S):** - **---------------------------** ## **1. THE DEPUTY COMMANDANT,** - **AIRPORT SECURITY UNIT, CENTRAL INDUSTRIAL SECURITY FORCE, THIRUVANANTHAPURAM AIRPORT-695 008.** **2. THE SENIOR COMMANDANT, AIRPORT SECURITY UNIT, CENTRAL INDUSTRIAL SECURITY FORCE, THIRUVANANTHAPURAM AIRPORT-695 008.** **3. THE DEPUTY INSPECTOR GENERAL/AP-SZ, CENTRAL INDUSTRIAL SECURITY FORCE, 2ND FLOOR, D BLOCK, RAJAJI BHAVAN, BASANT NAGAR, CHENNAI-600 090.** **4. THE DIRECTOR GENERAL, CENTRAL INDUSTRIAL SECURITY FORCE, LODHI ROAD, NEW DELHI-1.** **BY ADV. SRI.K.M.JAMALUDHEEN,SENIOR PANEL COUNSEL BY ADV. SRI.T.P.M.IBRAHIM KHAN,ASST.S.G OF INDIA** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05-06-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Kss** ## **WPC.NO.38669/2010 G** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **P1: COPY OF THE MEDICAL LEAVE CERTIFICATE DULY SIGNED BY THE MEDICAL OFFICER OF AAI, THIRUVANANTHAPURAM AIRPORT.** **P2: COPY OF THE MEDICAL CERTIFICATE DATED 5/06/2009 ISSUED BY SENIOR CONSULTANT IN MEDICINE, ANANTHAPURI HOSPITAL, THIRUVANANTHAPURAM.** **P3: COPY OF THE MEDICAL FITNESS CERTIFICATE ON 12/06/2009 ISSUED BY THE MEDICAL OFFICER, AAI, THIRUVANANTHAPURAM AIRPORT.** **P4: COPY OF THE MEDICAL RECORDS IN RESPECT OF THE TREATMENT UNDERTAKEN BY THE PETITIONER.** **P5: COPY OF THE MEMORANDUM NO.V-15015/CISF/AN/MIN./APSU(TVM)/09-3427 DATED 19/06/2009 ISSUED BY THE 1ST RESPONDENT.** **P6: COPY OF THE REPLY DATED 29/06/2009 TO THE 1ST RESPONDENT.** **P7: COPY OF THE FINAL ORDER NO.V-15015/CISF/TVM/DISC/09-4489 DATED 11/08/2009 ISSUED BY THE 1ST RESPONDENT.** **P8: COPY OF THE ORDER NO.V-15014/CISF/APSU(T)/AKS/2009/5646 DATED 12/10/2009 ISSUED BY THE 2ND RESPONDENT.** **P9: COPY OF THE REVISION PETITION DATED 19/01/2010 TO THE 3RD RESPONDENT.** **P10: COPY OF THE ORDER NO.V-15019/L&R/AP-SZ/REV-1(TVM)/2010/1165 DATED 17/03/2010 ISSUED BY THE 3RD RESPONDENT.** ## **P11: COPY OF THE JUDGMENT IN WPC.NO.23584/2010.** **P12: COPY OF COMMUNICATION NO.F-38022(19)/1/2010/AS/ADM/PCP SI TO INSP/2783 DATED 23/3/2010 ISSUED BY THE ADDL.DIRECTOR GENERAL (AIRPORT SECTOR).** **P13: COPY OF THE REPRESENTATION DATED 28/4/10 TO THE ADDITIONAL DIRECTOR GENERAL, AIRPORT SECTOR, CGO COMPLEX, NEW DELHI.** **Kss** **..2/-** **..2....** ## **WPC.NO.38669/2010 G** ## **P14: COPY OF THE REPRESENTATION DATED 9/07/2010 TO THE 4TH RESPONDENT.** **P15: COPY OF O.M.NO.V-15014/CISF/ASG-TVM/DISC/2010-3739 DATED 1/07/2010 ISSUED BY THE 1ST RESPONDENT.** **P16: COPY OF COMMUNICATION NO.E-42099/CISF/ASG (TVM)/MISC/2010-2108 DATED 16/04/2010 ISSUED BY THE 2ND RESPONDENT.** **P17: COPY OF THE SHOW CAUSE NOTICE NO.V-15019/L&R/AP-SZ/REV-1(TVM)/ 2010/4323 DATED 24/09/2010 ISSUED BY THE 3RD RESPONDENT.** ## **P18: COPY OF THE REQUEST DATED 29/09/2010 TO THE 1ST RESPONDENT.** **P19: COPY OF THE REPRESENTATION DATED 16/10/2010 TO THE 3RD RESPONDENT.** **P20: COPY OF SHOW CAUSE NOTICE NO.V-15019/L&R/AP-SZ/REV-1(TVM)/ 2010/4895 DATED 29/10/2010 ISSUED BY THE 3RD RESPONDENT.** **P21: COPY OF THE ORDER NO.V-15019/L&R/AP/SZ/REV-1(TVM)/2010/5150 DATED 12/11/2010 ISSUED BY THE 3RD RESPONDENT.** **P22: COPY OF THE PHONE CALL DETAILS ON 6/06/2009 AT 8.51 P.M. TOCELL NO.9895208388.** **P23: COPY OF RELEVANT PAGES OF THE PARADE STATEMENT OF B COY.** **P24: COPY OF THE ORDER NO.V-15014/CISF/ASG(TVM)/DOC/2010/1113 DATED 24/02/2010 ISSUED BY THE 2ND RESPONDENT.** ## **RESPONDENT'S EXHIBITS:** **N I L** **/TRUE COPY/** **P.A.TO JUDGE** **Kss** ## **P.N.RAVINDRAN,J.** ------------------------------W.P.(C) No.38669 of 2010 -------------------------------------Dated this the 5[th] day of June, 2012 ## **JUDGMENT** The petitioner entered service as Sub Inspector in the Central Industrial Security Force in the year 1999. He availed medical leave for 7 days from 1.6.2009, which was granted on the strength of Ext.P1 medical leave certificate, issued by the Medical Officer of Trivandrum Airport. The petitioner did not rejoin duty on 8.6.2009 on expiry of the leave. He reported for duty only on 12.6.2009 along with Ext.P3 medical fitness certificate issued by the Medical Officer of Trivandrum Airport. After the petitioner rejoined duty, the first respondent issued Ext.P5 memorandum dated 19.6.2009 accompanied by a memo of charges, calling upon the petitioner to submit his representation, if any, within 10 days from the date of receipt of the memorandum. It was alleged that the petitioner who had availed leave for 7 days from 1.6.2009 to 7.6.2009 was found absent at his declared residential address when Sri.Adarsa Kumar V., Sub Inspector of Police along with Constables Sri.R.Bala Subramanian and Sri.H.K.Soren, made enquiries, that he did not join duty on 8.6.2009 after expiry of the medical leave, but overstayed the leave without intimation to or permission from the competent authority and rejoined W.P.(C) No.38669 of 2010 -2- duty only on 12.6.2009. It was also alleged that the said act on the part of the petitioner amounts to serious violation of force discipline and dereliction of duty and an act highly unbecoming of an enrolled member of an Armed Force of the Union. 2. Upon receipt of Ext.P5 memorandum, the petitioner submitted Ext.P6 reply dated 26.9.2009. In that reply he stated that while he was on medical leave his brother, who is employed in Gujarat came to visit him on 3.6.2009 and on his compulsion he went out with his brother and family in the evening of 6.6.2009 and returned at 8 pm on the same day, that in his absence three persons came and made enquiries about him, that on coming to know of it from the owner of the house where he is residing, he called Sri.Prasad Kumar, Inspector of the Crime Intelligence Wing and on the next day he contacted the Deputy Commandant and explained his medical condition to him. Along with Ext.P6 reply he also produced medical reports to prove his health condition. By Ext.P7 order passed on 11.8.2009, the first respondent awarded the punishment of "CENSURE" after entering a finding that the charge against the petitioner stands proved. 3. Aggrieved by Ext.P7 order, the petitioner filed an appeal before the second respondent. By Ext.P8 order passed on 12.10.2009 the second respondent dismissed the appeal and confirmed Ext.P7. W.P.(C) No.38669 of 2010 -3- The petitioner thereupon moved the third respondent, Deputy Inspector General of Police, Chennai by filing a revision petition. On that revision petition, the Deputy Inspector General of Police passed Ext.P10 order dated 17.3.2010, enhancing the penalty to reduction of pay by one stage for a period of two years but with the rider that the petitioner will earn increments during the period of reduction and on expiry of the period, the reduction will not have the effect of postponing his future increments and will not adversely affect his pension. Before the penalty was enhanced, the petitioner was not put on notice or heard. He thereupon filed W.P(C) No.23584 of 2010 in this Court challenging Exts.P7, P8 and P10 orders. By Ext.P11 judgment delivered on 6.8.2010, a learned single judge of this Court quashed Ext.P10 order on the short ground that the revisional authority enhanced the punishment without affording the petitioner an opportunity to make a representation against the proposal to enhance the punishment. This Court also directed the revisional authority to reconsider the revision petition filed by the petitioner and pass fresh orders in the matter. In the meanwhile, the Departmental Promotion Committee considered the eligibility of the petitioner for promotion to the category of Inspector for the year 2010 and he was found fit for promotion. Thereupon, the Additional Director General of the Central Industrial Security Force issued Ext.P12 order dated 23.3.2010 W.P.(C) No.38669 of 2010 -4- promoting the petitioner along with 38 others to the category of Inspector on a regular basis. 4. Pursuant to Ext.P11 judgment, the third respondent issued Ext.P17 show cause notice dated 24.9.2010 calling upon the petitioner to show cause why the punishment of reduction of pay by one stage for a period of two years should not be imposed on him. The petitioner submitted Ext.P19 representation dated 16.10.2010. Even before the petitioner submitted his reply to Ext.P17 show cause notice, the second respondent, the appellate authority, issued a show cause notice dated 6.1.2010 calling upon the petitioner to show cause why the period of absence should not be regularised as half pay leave with no leave salary and thereafter passed Ext.P24 order dated 24.2.2010 regularising the period of absence from 8.6.2009 to 11.6.2009 as half pay leave with no leave salary as proposed in the show cause notice. By Ext.P21 order passed on 12.11.2010 the third respondent confirmed the proposal in Ext.P17 show cause notice and imposed the penalty of reduction of pay by one stage. The petitioner had in paragraph (M) of Ext.P19 representation referred to Ext.P24 order and stated that the period of absence has been regularised as half pay leave without leave salary. The third respondent however held that devotion to duty is grossly lacking in the petitioner and that the penalty of "CENSURE" awarded by the disciplinary authority and W.P.(C) No.38669 of 2010 -5- confirmed by the appellate authority is not commensurate with the delinquency. Hence this writ petition challenging Ext.P21 and seeking the following reliefs: _1. A writ of certiorari or other appropriate writ or order to call for the records leading to the issue of Ext.P21 and set aside Ext.P21._ _2. A writ of mandamus or other appropriate writ, order or direction directing the respondents to enforce the promotion as ordered vide Ext.P12 w.e.f. the date the petitioner's junior took charge as Insp/Exe._ _3. A writ of certiorari or other appropriate writ or order to call for the records leading to the issue of Ext.P15 and set aside Ext.P15._ _4. A writ of certiorari or other appropriate writ or order to call for the records leading to the issue of Ext.P24 and set aside Ext.P24._ 5. The main contention raised in the writ petition is that the absence of the petitioner from duty during the period from 8.6.2009 to 11.6.2009 was not wilful, that he had informed the Inspector-incharge of the Crime Intelligence Wing and the Deputy Commandant about his illness and had informed them that he would not be reporting for duty on 8.6.2009 and therefore, the finding that his absence was wilful cannot be sustained. It is also contended that the period during which the petitioner was absent without leave namely the period from 8.6.2009 to 11.8.2009 was later regularised as half pay leave without leave salary as per Ext.P24 order dated 24.2.2010 and therefore, for that reason also the impugned order cannot be sustained. 6. A counter affidavit dated 24.4.2011 has been filed on behalf of W.P.(C) No.38669 of 2010 -6- the respondents. Inter alia it is contended that the petitioner failed to inform the office about the extension of his medical leave, that he should have remained in his residence when he was advised rest by the Doctor, but instead of taking rest, he moved outside with his family and therefore he was found guilty of the charges and was awarded the punishment of cesure. Various other contentions are also raised in the counter affidavit. The petitioner has filed a reply affidavit dated 27.5.2012 reiterating the contentions in the writ petition. 7. I heard Sri.Vishnu S.Chempazhanthiyil, learned counsel appearing for the petitioner and Sri.K.M.Jamaludeen, learned counsel appearing for the respondents. I have also gone through the pleadings and the materials on record. The fact that the petitioner was granted leave on medical grounds during the period from 1.6.2009 to 7.6.2009 is not in dispute. Disciplinary action was initiated against him by issuing Ext.P5 memo of charges for failure to report for duty on 8.6.2009 and overstayal of leave till 12.6.2009 without intimation to the competent authority or permission from the competent authority. On that charge he was found guilty and by Ext.P7 order, the punishment of "CENSURE" was awarded to him. The appeal filed by the petitioner from that order was dismissed by Ext.P8 order dated 12.10.2009. The petitioner thereupon moved the revisional authority who by Ext.P10 order enhanced the punishment to reduction of pay by W.P.(C) No.38669 of 2010 -7- one stage. Before the said order was passed, the petitioner was not put on notice or heard. Therefore, by Ext.P11 judgment, this Court quashed the said order reserving liberty with the revisional authority to pass fresh orders on the revision petition filed by the petitioner. The revisional authority thereupon issued Ext.P17 show cause notice dated 24.9.2010 calling upon the petitioner to show cause why the punishment of reduction of pay by one stage should not be awarded to him. It was alleged in that show cause notice that the petitioner behaved in an insincere and indisciplined manner and he lacks devotion to duty. This in turn is based on the fact that he went out with his family without taking bed rest contrary to medical advice and also on the ground that he overstayed the leave without prior permission. 8. Ext.P1 medical certificate is dated 1.6.2009. In that certificate the Medical Officer of Trivandrum Airport had certified that the petitioner is suffering from urinary tract infection and he considers that a period of absence from duty for 7 days with effect from 1.6.2009 is absolutely necessary for restoration of his health. The Medical Officer had not in Ext.P1 certificate advised bed rest for the petitioner nor his hospitalisation and had only certified that he considers that a period of absence from duty for 7 days is necessary for restoration of his health. Absence from duty even on medical W.P.(C) No.38669 of 2010 -8- grounds does not necessarily and invariably mean that the person to whom leave is granted should be confined to his residence and should not go out even in the case of an emergency. Even the team of officers who went to the petitioner's residence had only submitted a report to the effect that when they went to the petitioner's residence he was found absent. No report was submitted by them to the effect that the petitioner is not in station. The petitioner had in the reply given by him to the disciplinary authority stated that he went out on the compulsion of his brother who is employed in Gujarath, had come to visit him on 3.6.2009 and that he had come back to his residence at about 8 pm on 6.6.2009. Before the disciplinary authority passed Ext.P7 order censuring the petitioner after finding him guilty of the charge levelled against him, no enquiry was conducted. The petitioner was not also given an opportunity to prove the reason why he overstayed the leave. Nor was he given an opportunity to examine the Inspector-in-charge of the Crime Intelligence Wing. The revisional authority enhanced the punishment on the ground that the petitioner behaved in an insincere manner, lacked devotion to duty and was indisciplined. Such a charge had not been levelled against the petitioner when disciplinary action was taken against him. He was proceeded against and the punishment of "CENSURE" awarded for two reasons; namely, for being absent from his declared residential W.P.(C) No.38669 of 2010 -9- address on 6.6.2009 at a time when he was on medical leave from 1.6.2009 to 7.6.2009 and overstayal of the leave granted to him. 9. As regards the overstayal of the leave it is not in dispute that before Ext.P21 order was passed by the revisional authority enhancing the punishment, the competent authority namely the second respondent had regularised the period of absence from 8.6.2009 to 11.6.2009 by granting half pay leave without leave salary. There was no allegation either in Ext.P5 memorandum or in Ext.P17 show cause notice issued by the third respondent revisional authority that the absence of the petitioner during the period from 8.6.2009 to 11.6.2009 was wilful and without any justifiable reason. Recently, the Apex Court held in **Krushnakant B.Parmar** v. **Union of India & Anr.** (2012 (2) SCALE) that the absence of an employee as a result of compelling circumstances under which it was not possible to report for or perform duty, cannot be held to be wilful. The Apex Court held that in the absence of any evidence to prove that the absence is wilful, mere absence will not amount to misconduct. The Apex Court also held that there may be different reasons due to which an employee may abstain from duty including compelling circumstances beyond his control like illness, accident, hospitalisation etc., and in such a case the employee cannot be held guilty of lack of devotion to duty or behavior unbecoming of a Government servant. The relevant portions of the W.P.(C) No.38669 of 2010 -10- ## decision of the Apex Court are extracted below : "14. Rule 3(1)(ii) and Rule 3(1)(iii) of Central Civil Services (Conduct) Rules, 1964, relates to all time maintaining integrity, devotion to duty and to do nothing which is unbecoming of a Government servant and reads as follows: "Rule 3 - General. - (1) Every Government servant shall at all times -- - (i) maintain absolute integrity; - (ii) maintain devotion to duty; and - (iii) do nothing which is unbecoming of a Government servant" 15. In the case of appellant referring to unauthorised absence the disciplinary authority alleged that he failed to maintain devotion of duty and his behaviour was unbecoming of a Government servant. 16. The question whether 'unauthorised absence from duty' amounts to failure of devotion to duty or behaviour unbecoming of a Government servant cannot be decided without deciding the question whether absence is wilful or because of compelling circumstances. 17. If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence can not be held to be wilful. 18. Absence from duty without any application or prior permission may amount to unauthorised absence, but it does not always mean wilful. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalisation, etc., but in such case the employee cannot be held guilty of failure of devotion to duty or behaviour unbecoming of a Government servant. 19. In a Departmental proceeding, if allegation of unauthorised absence from duty is made, the disciplinary authority is required to prove that the absence is wilful, in absence of such finding, the absence will not amount to misconduct. 20. In the present case the Inquiry Officer on appreciation of evidence though held that the appellant was unauthorisedly absent from duty but failed to hold the absence is wilful; the W.P.(C) No.38669 of 2010 -11- disciplinary authority as also the Appellate Authority failed to appreciate the same and wrongly held the appellant guilty." 10. The principles laid down by the Apex Court in the aforesaid decision apply on all fours to the case on hand. The petitioner was not charge sheeted on the allegation that he was wilfully absent from duty from 8.6.2009 to 11.6.2009. The only charge levelled against him was that he overstayed the leave. In the absence of any charge that absence from duty was wilful and a finding to that effect and in view of the fact that the period during which the petitioner was absent was later regularised as half pay leave without leave salary, I am of the opinion that imposition of the enhanced punishment of reduction of pay by the revisional authority was not called for. Likewise, I am also of the opinion that for being absent at the declared residential address in the evening of 6.6.2009 at a time when the petitioner was admittedly on leave medical grounds cannot also be held out as a reason to enhance the punishment of "CENSURE" awarded by the disciplinary authority. The revisional authority proceeded to enhance the punishment of "CENSURE" awarded by the disciplinary authority and awarded the punishment of reduction of pay by one stage not on the ground that the petitioner had gone out while on medical leave, but on the ground that he was indisciplined and was insincere. Such charge was had not been levelled against the petitioner at any point of W.P.(C) No.38669 of 2010 -12- time by the disciplinary authority and therefore, in the absence of such a charge, the revisional authority could not have in my opinion enhanced the punishment awarded by the disciplinary authority. I accordingly hold that the enhancement of the punishment awarded to the petitioner cannot be sustained. For the reasons stated above, I allow the writ petition and set aside Ext.P21. Consequently the petitioner will be entitled to have Ext.P12 order promoting him to the rank of Inspector given effect to. There will be accordingly an order directing the competent authority among the respondents to give effect to Ext.P12 order promoting the petitioner. Needless to say the petitioner will be entitled to all service benefits including seniority with effect from the date on which his junior if any included in Ext.P12 list was promoted to the category of Inspector. The parties shall bear their respective costs. Sd/- **P.N.RAVINDRAN JUDGE** /TRUE COPY/ P.A. To JUDGE vpv