C.K.G.Nathan v. The Assistant Commandant Central Industrial Security Force CISF Unit, CPCL, Manali Chennai 600 0682

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 01.04.2009CORAMTHE HONOURABLE MR.JUSTICE D.MURUGESANANDTHE HONOURABLE MR.JUSTICE C.S.KARNANW.P.No.26265 of 2007C.K.G.Nathan .. Petitioner-Vs-1. The Assistant Commandant Central Industrial Security Force CISF Unit, CPCL, Manali Chennai 600 0682. The Deputy Commandant Central Industrial Security Force CISF Unit, CPCL, Manali Chennai 600 068..Respondents Petition filed under Article 226 of the Constitution of India,praying for the issue of a Writ of Certiorarified Mandamus, to callfor the records relating to the final order No.V-15014/CISF/CPCL/MIN(2)/CKGN/2007-204 dated 09.02.2007 passed by the 1st respondent and asconfirmed by the appellate order No.V-15014/CISF/CPCL/MIN(3)/CKG/2007-878 dated 25.06.2007 passed by the 2nd respondent and quashthe same and to direct the respondents to pay all the benefits to thepetitioner.For Petitioner:: Mr.M.Md.Ibrahim AliFor Respondents::Mr.K.Sivakumar Kennedy, ACGSCORDER (Order of the Court was delivered by D.MURUGESAN, J.)The petitioner was appointed to the Central Industrial SecurityForce during the year 1990 as a Constable. He was issued with acharge memo dated 9.1.2007 containing the following charges:-"(1) Gross misconduct and negligence in thatNo.914440095 Constable C.K.G.Nathan of CISF UnitCPCL Manali was detailed for "A" shift duty from0500 hrs to 1300 hrs on 12.12.2006 at West Gate-IIin checking Rifle failed to take care of his dutyarea due to which unclaimed amount of Rs.485/-recovered from his area of responsibility by a teamwhile raiding the area at about 1235 hrs on12.12.06. Hence the charge.(2) Gross misconduct, in that No.914440095Constable C.K.G.Nathan of CISF Unit CPCL Manalidiscarded the rifle issued to him without properly https://hcservices.ecourts.gov.in/hcservices/ handing over it and intentionally ignored to changethe rifle duty as per the instructions at WestGate-II on 12.12.2006. Hence the charge."By explanation dated 19.1.2007, he disputed the charges. In spite ofsuch denial, the Assistant Commandant, Central Industrial SecurityForce, the first respondent passed the impugned order dated 9.2.2007imposing a minor penalty of withholding of one increment for a periodof one year which will not have the effect of postponing his futureincrements of pay. The said order was taken on appeal before theDeputy Commandant, Central Industrial Security Force, the secondrespondent and the same was rejected on 25.6.2007. The orders ofboth the disciplinary authority as well as the appellate authorityare questioned in this writ petition. 2. We have heard the learned counsel for the petitioner and thelearned counsel for the respondents.3. The only ground of challenge is that inasmuch as the chargesare denied, the respondents ought to have conducted enquiry beforeimposing the penalty. On the other hand, it is the stand of therespondents that in the event the respondents impose a minor penalty,no enquiry is contemplated in terms of Rule 37 of the CentralIndustrial Security Force Rules, 2001. The punishment of withholdingof increment is a minor penalty in terms of Rule 34(ix) of the saidRules. Hence no enquiry is contemplated.4. We have carefully considered the above submissions. Ofcourse, as per Rule 34(ix) of the Rules, withholding of increment isa minor penalty. Rule 37(1)(b), of course, empowers that in theevent the disciplinary authority so desires can order an enquiry.Learned counsel for the respondents would submit that only in theevent the disciplinary authority desires depending upon the casewarranting an enquiry, such an enquiry could be ordered and nototherwise. In our opinion, the stand taken by the respondents cannotbe accepted. When the charges are denied, denial of the same mustnecessarily be presumed as one of placing the burden of proving thecharges on the respondents. Though a right is conferred on thedisciplinary authority to order enquiry if he is satisfied on thefacts of this case, such a right is not conferred under Rule 37 onthe delinquent employee. In such a situation, it is for the Court toimport the principles of natural justice for such an enquiry in theevent the charges are denied. Enquiry is a bare minimum for adelinquent to expect from the employer before he is inflicted withthe penalty, even in case of minor penalty.5. The principles of natural justice means "fair play in action"and the requirement of natural justice depends upon the facts of eachcase. In judging the validity of an order when the complaint isadmittedly non compliance of the principles of natural justice, thefollowing principles must be kept in mind. In case the rulescontemplate either a notice calling for explanation or an enquiry ora personal enquiry, compliance of the same is mandatory. In fact,Rule 36 of the Rules relating to the procedure for imposing majorpenalties contemplates the above procedure and to this extent therecannot be any dispute. https://hcservices.ecourts.gov.in/hcservices/

6. Whether such compliance of the principles of natural justiceis also required in case where the rules do not contemplate anenquiry. In our opinion, even in case where the rules do not make aprovision for enquiry in cases where minor penalties are imposed,nevertheless, the compliance of the principles of natural justice maybe required and the non compliance may vitiate the order. Then again,it depends upon the facts of each case. In the event the charges arevery minor and the order imposing minor penalty merely refers to thecharge without adversely imputing anything about the delinquentemployee, the failure to conduct an enquiry will not vitiate theorder. However, the same cannot be the general rule. In case if thecharges are serious in nature and nevertheless the employer proceedsto follow Rule 37 and the order of punishment contains certainadverse imputation, remarks or even comments on the delinquentemployee which may be considered as a stigma or which may likely toaffect his reputation in the eye of public, certainly the failure toconduct enquiry by giving an opportunity to such delinquent employeewould vitiate the order for non compliance of the principles ofnatural justice. This principle also applies to the case wherecharges are minor, nevertheless some imputations/observations aremade against the delinquent. The test to decide whether an enquiry isrequired or not is not the mere fact of minor penalty is imposed, butthe nature of charges, the nature of observations or findings of thedisciplinary authority while passing final orders of penalty. Whiledeciding the question as to whether the failure on the part of theemployer to hold an enquiry in the absence of rules would by itselfvitiate the order, the Court must keep the above principles in mind.7. When the petitioner specifically refutes the charges framedagainst him, it is but proper for the disciplinary authority toindicate the reasons in writing as to why the enquiry is dispensedwith on the facts of the given case. This is more so because theauthority is duty bound to consider the imputation of the misconductor misbehaviour committed by the delinquent officer, the explanationoffered by him and the relevant records to satisfy himself as towhether an enquiry is necessary or not in terms of Rule 37(1)(b) ofthe Rules. On the facts of this case, the explanation of refutal ofthe charges was not accepted and findings were rendered in theimpugned orders holding that the charges were proved withoutassigning any reason. In our considered view, such a procedurallapse would defeat the valuable right of a delinquent employee toestablish his case as to the imputation. In fact the question ofaffording opportunity even for imposition of minor penalty came upfor consideration before this Court in W.P.No.34587 of 2005 dated1.4.2009 and this Court, following the judgment of the Supreme Courtin O.K.Bhardwaj v. Union of India and others, 2002 SCC (L&S) 188,held that such an enquiry is mandatory, where the charges are refutedby the delinquent, and remitted the matter to the authorities forconduct of enquiry.8. In view of the above, the orders questioned in the writpetition are quashed to enable the respondents to conduct enquiry andthe matter is remitted back to the respondents to proceed from thestage where the defect had crept in by conduct of enquiry, afterconsidering the explanation of the petitioner, and pass orders in the https://hcservices.ecourts.gov.in/hcservices/ light of the observations made in this order. Such an exercise shallbe completed within a period of two months from the date of receiptof a copy of this order or on production of the same by thepetitioner. The writ petition is disposed of accordingly. No costs. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarssTo 1. The Assistant Commandant Central Industrial Security Force CISF Unit, CPCL, Manali Chennai 600 0682. The Deputy Commandant Central Industrial Security Force CISF Unit, CPCL, Manali Chennai 600 0681 cc To Mr.K.Sivakumarakennedy, ACGSC, SR.120451 cc To Mr.M.Md.Ibrahim Ali, Advocate, SR.11865W.P.No.26265 of 2007GGK(CO)SRA(11/5/2009)