Subash Naik v. The Union of India, Rep. by the Secretary, Ministry of Home Affairs, New Delhi & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 23.04.2009CORAM :THE HONOURABLE MR.JUSTICE D.MURUGESANandTHE HONOURABLE MR.JUSTICE C.S.KARNANW.P. No.33705 of 2007Subash Naik.. Petitioner-vs-1. The Union of India, Rep. by the Secretary, Ministry of Home Affairs, New Delhi.2. The Inspector General, CISF Southern Sector, Chennai Port Trust Complex, Chennai.3. The Deputy Inspector General, CISF South Zone, D-Block, Rajaji Bhavan, Besant Nagar, Chennai.4. The Group Commandant, CISF Group Headquarters, D-BLock, Rajaji Bhavan, Besant Nagar, Chennai... RespondentsPetitions filed under Article 226 of the Constitution of Indiapraying for issue of Writ of Certiorarified Mandamus to call for therecords relating to the impugned order of the second respondent inOrder NO.V-15014/Disc/Rev/SN/SS/2007-2589 dated 31.5.2007, confirmingthe order of the third respondent in Order No.V-11014/16/2006/L&R(SZ)/6309 dated 09.11.2006 and the order of the fourth respondent inNo.V-15014/GHC/AD-VI/SN/CPCL/2005/2658 dated 12.12.2005 and quash thesame and direct the respondents to grant the petitioner allconsequential benefits.For Petitioner:Mr.T.N.SugeshFor Respondents:Mr.M.Prabhakaran, ACGSC https://hcservices.ecourts.gov.in/hcservices/ O R D E R(Made by D.MURUGESAN, J.)The petitioner was appointed as a constable in the CentralIndustrial Security Force during July 1989. While he was working atManali, he was issued with the following three charges:-Article of Charge - IThat No.891401832 Constable Subash Naik of CISF Unit,CPCL, Manali during his A shift duty from 0500 hrs. to 1300hrs. at West Gate II on 18.05.2005 was found handing over ofillegally obtained money from a driver of a vehicle, to acleaner namely R.Sivaraman with the intention to receive itlater for personal gain.Article of Charge - IIThat No.891401832 Constable Subash Naik of CISF Unit,CPCL, Manali, while he was on A shift duty from 0500 hrs. to1300 hrs. at West Gate II on 18.5.2005 at about 1245 hrs.managed to escape from the place of searching when searchingwas carried out by Insp/Exe.M.Kannaian, to avoid search onhim.Article of Charge-III No.891401832 Constable Subash Naik of CISF Unit, CPCL,Manali, failed to improve his conduct and adhere todiscipline even after he earned 6 punishments as per hisservice records and thus, become incorrigible in characteras a mamber of the Force.As the explanation of the petitioner was not accepted, an enquiry wasconducted and the enquiry officer found all the charges proved.Based on the enquiry officer's report, the disciplinary authorityimposed the punishment of reduction of pay by one stage for two yearsand the said reduction will have the effect of postponing his futureincrements of pay. The petitioner took out an appeal, which wasrejected and thereafter, a revision, which was also rejected.Aggrieved by the imposition of punishment, the present writ petitionhas been filed.2.The learned counsel for the petitioner submitted that as faras the first charge is concerned, neither the driver nor the cleanerwas examined. The statement recorded from the cleaner was heavilyrelied upon by the enquiry officer to find that the first charge isproved. The report was relied upon behind the back of the petitionerand he was not given any opportunity to refute the said statement.Further, the petitioner had requested examination of the Assistant https://hcservices.ecourts.gov.in/hcservices/ Sub Inspector and the constable, who were at the duty time and thenon-examination of those witnesses had seriously prejudiced thepetitioner, as he has handed over the charge after the duty time wasover and the charge that he escaped from the place to avoid thesearch is, therefore, false. He would also submit that insofar asthe third charge that he earned six punishments, those charges areall minor and therefore, that cannot be a ground for imposing a majorpenalty.We have heard the learned counsel appearing for therespondent.3.Asfaras the non-examination of the cleaner is concerned, it istrue that when the charge is made for collection of bribe from thedriver and handing over of the said money to the cleaner by thedelinquent employee and especially when the said amount has beenrecovered from the cleaner, the examination of the cleaner in theenquiry is necessary to prove the charges. Failure to enquire thecleaner, in the said circumstances, would result in causing prejudiceto the delinquent employee, especially when the statement recordedfrom the said cleaner during the preliminary enquiry was relied uponby the enquiry officer. In this context, the learned counsel wouldrely upon the judgment of a Division Bench of this Court inB.Padmaiah v. The Union of India & 5 others (2007 Writ L.R. 7).4.As far as the proposition of law is concerned, we are entirelyin agreement with the said judgment. But, we are not inclined toapply the ratio laid down in the said judgment in view of the factsof this case. Though the first charge relates to the collection ofmoney from the driver and handing over the said money to the cleanerof a truck by the delinquent employee and the said cleaner has notbeen examined to prove the said charge, from the evidence of P.Ws.2to 4, who are official witnesses, it is seen that after theoccurrence, the cleaner was taken to the office and a search wasconducted and from him a sum of Rs.60/- was recovered. The cleanerhad given a statement that the said money was handed over to him bythe delinquent employee. He also identified the delinquent employee,who was present at the relevant point of time. This is spoken to byP.W.2 as well as by P.Ws.3 and 4. Further, P.Ws.3 and 4 have spokenthat after the seizure of Rs.60/- was made from the cleaner, thedelinquent employee, who was present at that time, in order to avoidfurther search, had escaped from the said place. P.Ws.2 to 4 arecategorical as to the above act of the delinquent employee inescaping from the place presumably that by such act, he could avoidfurther search. By the above evidence, the second charge is proved.If once the second charge is proved, naturally the disciplinaryauthority can draw an inference that the delinquent employee hadcollected the said amount of Rs.60/- from the driver and the saidmoney alone was handed over to the cleaner, which was seen by P.W.2.In the circumstances, merely because the cleaner was not examined,the petitioner/ delinquent employee can neither claim that the https://hcservices.ecourts.gov.in/hcservices/ charges are not proved nor it can be construed that without anyevidence, the disciplinary authority had given a finding that thefirst charge is proved.5.That apart, the third charge, though in respect of minorpenalties, cannot be disputed, whereby the petitioner had beenearlier inflicted with six minor penalties. In these circumstances,the finding of the enquiry officer holding all the three charges asproved cannot be found fault with. It is well settled law that in adisciplinary proceeding, strict rule of evidence is not required andpreponderance of probabilities of the case would be sufficient forholding that the misconducts are proved.6.In these circumstances, we are not inclined to interfere withthe impugned order of punishment. Accordingly, the writ petition isdismissed. No costs. Sd/- Asst.Registrar/true copy/ Sub Asst.RegistrarsraTo1. The Secretary, Union of India, Ministry of Home Affairs, New Delhi.2. The Inspector General, CISF Southern Sector, Chennai Port Trust Complex, Chennai.3. The Deputy Inspector General, CISF South Zone, D-Block, Rajaji Bhavan, Besant Nagar, Chennai.4. The Group Commandant, CISF Group Headquarters, D-BLock, Rajaji Bhavan, Besant Nagar, Chennai.+ 1 CC to Mr.K.K.Senthil Velan,Advocate,SR.17335W.P.No.33705 of 2007GV(CO)EM/30.4