1. Petitioner challenges Ext.P3 order awarding him a punishment of "withholding of one increment for a period of two years without cumulative effect and the orders Exts.P4 and P6 upholding the same in appeal and revision.
2. While the petitioner was working as Constable in CISF Unit, Vikram Sarabhai Space Centre (VSSC for short), Thumba Ext.P1 memo of charge was issued to him with the following allegations:
Article - I
"In that CISF No. 934523129 Constable/GD L. Venkatapati of VRC Sector of CISF Unit, VSSC Thumba was detailed for day shift duty on 25.01.2013 from 0600 hrs to 1800 and was deployed at VRC Gate, VSSC Thumba. While on duty he misbehaved with SI/Exe K. K. Yadav, Shift I/C VRC Gate in presence of shift personnel. In this regard a GD entry No. 26 dated 25.01.2013 at about 0730 hrs at VRC Gate. This act on the part of 934523129, Constable/GD L. Venkatapati of VRC Sector of CISF Unit, VSSC Thumba amounts to gross misconduct, indiscipline, misbehavior, violation of lawful orders and dereliction of duty." Hence the Charge.
Article - II
"In that CISF No. 934523129, Constable/GD L. Venkatapati of VRC Sector of CISF Unit, VSSC Thumba remained absent from regimental duties/pass checking despite being warned in orderly room on several occasions in the past and instead found in Gymnasium during regimental hours without prior permission from competent authority. This act on the part of 934523129, Constable/GD L. Venkatapati of VRC Sector of CISF Unit, VSSC Thumba amounts to gross misconduct, indiscipline, violation of lawful orders and dereliction of duty." Hence the Charge.
3. Petitioner submitted Ext.P2 explanation denying the charges stating that he was undergoing treatment and medical advice was to detail him on sedentary duty and he was medically decategorised as Shape II. Petitioner submitted that on 25.01.2013, he was detailed for day shift duty in 70 Acre New building. But his shift in charge who is aware of his physical condition and that he was being detailed for sedentary duty only for the last four months, purposely detailed him in sensitive area duty post. He was posted at ATF Road barrier and VRC gate where the duty can be performed standing only. He stated that he had only requested to change the duty, on the basis of the medical advice. He stated that he was unable to stand for more than 20 minutes as his back pain will increase. He was unable to attend PET Parade and strenuous duties. He stated that on the basis of the advice of the Doctor he performed Yoga and he is going to Gymnasium, which is a common place for Yoga and exercise and this is arranged for CISF personnel's welfare. However, Ext.P3 order was issued finding the petitioner guilty of the charges and awarding him a punishment of barring one increment for two years. While issuing Ext.P3 order, the disciplinary authority relied on the statements made regarding the duty assigned to the petitioner. It was stated that petitioner shouted and misbehaved with the shift in charge in the presence of shift personnel which is clearly corroborated by various witnesses. The relevant portion in Ext.P3 order reads as follows:
"The Shift In-Charge, SI/Exe K. K Yadav told the Charged Official that some time on requirement in emergency you have to adjust with the situation, but the Charged Official shouted and misbehaved with the Shift In Charge in the presence of Shift Personnel. If the charged official had any problem regarding health or in performing duty as assigned by the Shift I/C, he could have met the Coy. Commander or Sector Commander regarding the same. Instead he shouted and misbehaved with Shift I/C SI/Exe K. K Yadav in presence of Shift personnel which is clearly corroborated by various witnesses adduced during the PE. Thereby, the Charged Official violated the lawful order of the shift-in-charge and misbehaved with him. The Shift In charge is fully empowered to adjust the duty deployment is respect of the personnel under his command as per the need basis and exigencies of service. Hence, the plea put forth by the Charged Official is absolutely baseless".
4. He further referred to the evidence adduced in the preliminary enquiry and the records available. The relevant portion in Ext.P3 reads as follows:
"As per the evidence adduced during the preliminary enquiry and the records available, the charged official has been regularly attending the Gym and doing strenuous exercises despite the advice by the Medical Board in their report dated 26.06.2012 to avoid activities of forward Bending and Jumping. The charged official has been advised several times in orderly room that he has to be present during regimental hours. The Charged Official is not attending/marking his presence in regimental duties stating that he is a SHAPE - II person and got exemption of Doctor from the above regimental duties."
From such evidence, the disciplinary authority came to the conclusion that the offence committed by the petitioner is grave in nature and being a member of the uniformed and disciplined force he was expected to obey the orders. It is stated that "however there are overwhelming evidences held in the file which substantiate the charges levelled against the charged official. Hence, it has emerged clearly that the Charged Official has committed an act of gross misconduct, indiscipline, misbehaviuor, violation of lawful orders and dereliction of duty." The petitioner submitted an appeal, which resulted in Ext.P4 order. In Ext.P4 order also the appellate authority relies on the documentary evidence which the disciplinary authority has relied on, as can be seen from paragraph 2 of the order.
5. In paragraph 5 of the appellate order it is stated as follows:
"on my meticulous examination of the entire case file, material evidences held on record and the contention of the appellant in the instant appeal petition substantiate and clearly establish that the appellant had indeed misbehaved with the Shift In-Charge in aggressive and rude manner, which is grave offence in nature. Further the appellant remained absent from regimental duties/pass checking despite being warned in orderly room on several occasions in the past and instead found in Gymnasium during regimental hours without prior permission from competant authority and performing strenuous exercise against the recommendation of medical board. Moreover, the petitioner has not brought forward any valid ground which warrant interference of the impugned order of the disciplinary authority".
Aggrieved by the appellate order, the petitioner submitted Ext.P5 revision before the 3rd respondent pointing out his physical condition based on which he requested for change of duty. But the revisional authority has gone a step further and it is stated as follows:
"Material held on record reveal that as per exigency of services and operational requirements on Republic Day i.e on 25th January 2013, the petitioner who was initially detailed at 70 acre New Building, has been detailed at ATF road barrier by the shift I/c. Accordingly, after dropping the petitioner at ATF road barrier duty post, the shift I/c proceeded to Marine boat jetty patrolling duty post for carrying out checking. While the hift I/c was returning from there, the petitioner told him that he cannot climb over the bus for checking. Hence, the shift I/c changed the petitioner from ATF road barrier duty post and detailed him at VRC gate. The petitioner again refused to obey the orders of the shift I/c and instead told him that he 'cannot perform any other duty except sitting duty'. On this, the shift I/c advised the petitioner that at times of emergency and as per the operational requirements, the petitioner is rquired to adjust to the situation and perform his duty accordingly. On this, the petitioner started shouting at the shift I/c stating that "he will not perform duty of gate opening/closing" and that "Hamse gate nahi Khulega", "Aapka Company Commander, Sector Commander Aur Sr. Commandant mera Kuchh nahi Bigad Sakte to Aap koun hote ho" in front of other shift personnel and asked the shift I/c by stating that "Are yaar tum jao yaha se, mein to Company Commander, AC, DC, Commandant se nahi darta to aap kya hain". Evidence held on record further reveals that the shift I/c has been polite while talking with the petitioner, even asked him to calm down and then detailed him at Adm Building. In this regard, Shift I/c has made a G. D entry vide G. D entry No. 26 dated 25/01/13 at about 0730 hrs. The plea of the petitioner that he is being victimized just because he has complained against the unit authorities holds no water as the records held on file show that he has submitted the said complaint to IG/SS Chennai on dated 08/04/2013 i.e much after occurrence of the instant incident and initiation of disciplinary action against him vide charge memorandum dated 10/02/2013."
6. Further regarding the 2nd charge also it was stated: " it is clearly evident from the material held on record that the petitioner was advised by the Medical Board vide SMB report dated 26.06.2012 to avoid activities of "Forward Bending and Jumping"; whereas records held on file, like Gym attendance register, etc. indicate that he has been regularly attending Gym and doing strenuous exercises like bench press. Further it was stated that "the records on file show that he has been found absent from the regimental duties, pass checking etc., on various occasions viz. 07.01.2012, 09.11.2012, 12.11.2012, 03.01.2013, 04.01.2013, 28.01.2013 and 01.02.2013." He further referred to the G.D entries regarding absence of the petitioner from regimental duties on the particular dates and came to the conclusion that the petitioner's plea as against the punishment awarded is bereft of any merit.
7. The learned counsel for the petitioner points out that even though minor penalty can be imposed without conducting an enquiry, when the respondents rely on certain evidences on record it can only be after putting the petitioner on notice. In the circumstances of the case an enquiry was required before imposing such punishment.
8. The respondents have filed a counter affidavit justifying the order awarding the punishment and the appellate and revisional orders affirming the same in tune with their findings in Ext.P3, Ext.P4 and Ext.P6. Explaining the circumstances under which memo of charges were issued and punishment was awarded, it is argued that the rules do not require any enquiry to be made before awarding a minor penalty.
9. The learned Central Government Standing Counsel Smt. O. M. Shalina argued that under section 18 of the Central Industrial Security Force Act, 1968, every member of the Force, who is guilty of any violation of rules like, willful breach or neglect of any rule or regulation or lawful order made by a supervisory officer or who shall withdraw from the duties of his office without permission, to report himself for duty on the expiration of leave etc. is liable to be punished. Pointing out Rule. 37 of CISF Rules it was argued that enquiry is required only when a major penalty is imposed. The punishment awarded to the petitioner with barring of increment without postponing the future increments is a minor penalty which does not require any enquiry.
10. At the same time, the learned counsel for the petitioner pointed out that Rule 37 does not rule out an enquiry though it is not essential that an enquiry should be conducted and the circumstances of the case required that an evidence relied on by the respondents should have been proved in an enquiry and the petitioner was not informed of such records which the respondents have relied on.
11. The learned counsel for the petitioner also relied on the judgment dated 01.04.2009 of the Madras High Court in W.P. No. 34587 of 2005 in which a minor penalty imposed on a CISF personnel was under challenge on the ground that no enquiry was conducted. The contentions raised therein are identical as in the present case. The respondents relied on Rule 34 (ix) that `withholding of increment of pay' is a minor penalty where no enquiry is contemplated. Analyzing the procedure prescribed in Rule 37, the Division Bench held that requirement of natural justice depends upon facts of each case and in judging the validity of an order when a complaint is against non compliance of principles of natural justice. Relying on the judgment in O.K. Bhardwaj v. Union of India [(2001) 9 SCC 180] where the Apex Court held that even in a case of minor penalty, an opportunity has to be given to the delinquent employee to have his says or file his explanation with respect to the charges against him and if the charges are factual which are denied by the delinquent employee, enquiry is called for.
12. The learned counsel for the petitioner also relied on the judgment of this Court in WP(C) No. 15841 of 2016 (E) where relying on judgment of the Supreme Court, in O.K. Bhardwaj v. Union of India and Others [(2001) 9 SCC 180] it was found that an opportunity was to be afforded to the delinquent. The judgment of the Gauhati High Court reported in Bipin Rajbongshi v. Union of India (Uoi) And Ors. [2017 KLT 910 ] was also relied on.
13. Having heard the contentions on either side, I find that all the authorities have relied on records which are not brought to the notice of the petitioner
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which would mean that the punishment is awarded on the basis of no evidence. 14. In the circumstances of the case, I find that the petitioner is awarded the punishment in gross violation of the principles of natural justice. Though it is true that a detailed enquiry is not contemplated for awarding minor penalty, when the petitioner denied the charges and respondents relied on the "evidence adduced" in the preliminary enquiry behind the back of the petitioner, it was incumbent on the respondents to conduct an enquiry, affording the petitioner an opportunity to cross examine the persons who gave the statements. Similarly, the respondents have relied on various records, without even informing the same, denying the petitioner an effective opportunity to defend. Any statement taken behind the back of the delinquent cannot have any evidentiary value in the eye of law and hence the findings of all the authorities are based on no evidence. In the circumstances of the case an enquiry under Rule 36 was necessary, in case the respondents were to rely on such statements and records. In the above circumstances, I set aside Exts.P2, P3, P4 and P6 orders. The respondents will be free to proceed from the stage where the petitioner submitted his explanation. In case such proceedings are initiated that shall be completed and finalized within a period of six months from the date of receipt of a copy of the judgment. The Writ Petition is disposed of accordingly.