Dismissed

Mr. J.J. Lakra v. Dy. Inspector General (Wz) Cisf, Mumbai and Anr.

Bombay HC20 Apr 2005WP/344/1999

Case brief

AI extract

What is this about?

This writ petition challenged a disciplinary order of compulsory retirement for misconduct in marriage and medical benefits. The High Court declined to intervene, holding that the petitioner had implicitly admitted examining enquiry documents previously and that findings of fact regarding cohabitation were supported by evidence, rendering extraordinary jurisdiction inapplicable. Punishment was uph

What did the court decide?

Rule discharged. No order as to costs.

Mr. J.J. Lakra Vs Dy. Inspector General (Wz) Cisf… — Service and Employment | Bombay HC (2005)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO. 344 OF 1999

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Mr. J.J. Lakra ... Petitioner Vs. Dy. Inspector General (WZ) CISF, Mumbai & anr. ... Respondents Mr. P.M. Mokashi for Petitioner.

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Mr. D.A. Dubey i/by K.B. Rao for R. No. 1.

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CORAM : F.I. REBELLO & S.P. KUKDAY,JJ. DATED : APRIL 20, 2005 P.C. . The Petitioner was issued memorandum dated 3.2.1997. The said Memorandum contains two articles of charge. Article I reads as under :

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"Gross act of misconduct and indiscipline in that No. 764480377 Naik J. Lakra of CISF Unit ONGC Nhava Contingent married for the second time with one named Saroj Bhai when already married to Smt. Prafulla without her consent and without taking prior permission from the department.Hence, the charge.

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Article II reads as under :

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"Gross act of misconduct and misuse in

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that	No.		76448	0377 Naik	J. Lakra	of
CISF		Unit	ONGC	Nhava	Contingent, on	the
medical		card	issu	ed in	the name of	his
first		wife	was	taking	treatment for	his
second		wife		without	information	or
permission			from	the	competent	authority,
thus	mis	using	the	facilities.	Hence,	the
charge.						"

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.		An enquiry was	conducted		where the	respondents
examined		witnesses.	The		Petitioner	examined
himself.		The order came	to	be	passed based	on the
enquiry		on 13.4.1998	holding		the Petitioner	guilty
of	the	charges as	levell	ed.	The	disciplinary
authority		considering the	facts		of the	case,
awarded		punishment of	compulsory		retirement.	The
Petitioner		preferred an	appeal		before the	appellate
authority.		That appeal	came	to	be dismissed	by
order date	d 20.9.	1998 against which the petitioner
has filed th	e pres	ent petition.

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. At the hearing of this petition, on behalf of the Petitioner, their learned counsel submits that a preliminary enquiry was conducted. The Disciplinary authority relied on the proceedings of the said disciplinary authority without making the same available and in these circumstances, the

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finding	of the disciplinary	authority	based	on
material	not made available	to the	petitioner	is
liable	to be set aside. The	reliance	for that	is
placed in	the judgment of the	case of	State of	U.P.
Vs.	Shatrughnalal 1988(2) C.L.R.	857.	It is	next
submitted	that the complainant	wife	herself	has
subsequently	withdrawn the compl	aint.	Though	the
disciplinary	authority has taken	note	of the	same,
none	the less has not conside	red the	same.	Once
the	complaint was withdrawn,	it is	submitted	that

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will be no misconduct and consequently also the

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punishment imposed is liable to be set aside.

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.	It	is	lastly	submitted that even	assuming	that
the	charge	of	having	taken Smt. Saroj	to	Medical
Officer	is	prove	d,	considering the long	serv	ice put
in	by	the	petit	ioner, the punishment	of	compulsory
retirement		is		disproportionate to the		misconduct

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alleged and proved and in these circumstances, also

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the impugned orders are liable to be set aside.

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.	On	behalf	of the Responde	nts, an	affidavit	has
been	filed	by B	abasaheb Jangalji	Kangale.	In	the
said	affidavit	it	has been poin	ted out	that	the
Petitioner		herein	had taken	medical	facilities	for
Mrs.	Sa	roj as	his first wife	and	thereby	misused
the	facility	which	is	specifically	meant	for

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government employees and their family members.	It
is also pointed out that in the past the	Petitioner
was awarded seven minor punishments on	different
occasions for negligence, in	disciplinary
acts/negligence of duty. It is also set out	that
the statement recorded at the preliminary	enquiry
including that of Smt.Sarojabai were shown to	the
Petitioner in the course of the enquiry.	The
material on record would show that the	Petitioner
was residing with Sarojabai. This by itself is	a
gross act of misconduct. The Petitioner having	a
wife living at the relevant time. In so far	as
contention that the documents were not	made
available, in Paragraph 8 it was specifically	set
out that the Petitioner had been given	examination
of the documents and the Petitioner	had
acknowledged the same. If the Petitioner had	made
request for the copy of the same, the same	would
have been provided to the petitioner.	These

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averments are made on oath by the respondents and

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have not been denied.

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.	We	may	also	note	memo	of	appeal	before	the
appellate		authority.		In	the	memo	of	appeal,	the
first	conte	ntion	raised	is		that	the	re is	no
material		to	show	that	the	petiti	oner	had c	onducted
second	marri	age.	There	was	no	evide	nce	and as	such

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there	can	be no presumption	t	hat there		was
marriage.	It	is therefore, set		out that		the
evidence	of	P.W. 1 would no	t be	sufficien	t	to
prove	that	there was cohabitation.		The	pho	tograph
is	contended	cannot be taken in	to	the	e	vidence.
This	is in	so far as Charge I	is co	ncerned.	IN	so
far	as	Charge II is concerned,	the	contention		is
that	there	is nothing on record	to	show that		the
petitioner	had	taken some other	person	than		his
wife	for	medical treatment. and	the	refore, it		is
set out	that	that charge also not	prove	d. T	here	is
no w	hisper	in the said appeal		memo tha	t	the
petitioner	had	asked for the	docum	ents of		the
preliminary	e	nquiry and that they	we	re denied		to
him.	Ther	e is also no averment	in	the appeal		memo
that	the	report of the prelimi	nary	enquiry		was
considered	wi	thout giving an opp	ortunity	to		the
petitioner	herein	. With the abov	e, w	e may		now

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consider the contention as raised on behalf of the

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Petitioners herein.

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.	In so	far	as	the	first content	ion	is	concerned,
it is	no	doubt	true	that	the documents		not	made
available	to	the	Peti	tioner	and whic	h	are	relevant
for	the	purpose	of	establ	ishing the	guilt	if	not
made	available	cann	ot	be	considered		to	impose
punishment	and	if	done	the	order will	have	to	be

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set	aside.	In the instant case	, as noted	earlier,
the	averments	in the affidavit-	reply filed	on
behalf	of the	respondents that the	documents	were
examined	by	the petitioner have	not been	denied.
Further	also the	petitioner raised no	such claim	in
the	appeal memo.	In other words,	what is cle	ar is
that su	ch a grou	nd was not raised	by the	petitioner
in the	appeal.	That being the case	, it is not	open
to	the petitioner	to raise the	pleas for the	first
time	in the	present petition.	Even	otherwise,
considering	that	the averments in	the affidavit	in
reply	having	not been controverted,	it must	beheld
that th	e petitioner	has examined the	documents.	In
fact	in the	examination in chi	ef, Petitioner	was
asked	about the	same and he	has admitted	that
preliminary	enquiry	was held i	n which	his
deposition	was	taken. It is	similarly	admitted
that	the deposition	of Mrs. Saroj	was taken.	His
only	contention	is that the d	eposition of	9.1.1997
is c	orrect excep	t to the extent	that they	had
married	in the	temple. Once that	be the case,	it
cannot	be said	that the enquiry	stands vitiated	on

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that count. The challenge therefore, on that count

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must be rejected.

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. In so far as second charge is concerned, the

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petitioner was put Question No. 13, which reads as

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under :

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"How many times, Ms. Saroj have been permitted free examination :

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Ans. : At the most, treatment was taken

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once or twice.

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.		The	Petitioner was shown the med	ical	bill.	He
stated	that	it	was for his wife Mrs.		Prafulla.	At
any	rate		what is material to know	is	that	the
Petitioner		admits	having taken Saroj	to	the	Doctor.
There	are	o	ther witnesses who have	been	examined	to
show		that	Mrs. Saroj was	coh	abiting	with
Petitioner.			These are purely finding	of	fact.	It
is	there	fore,	not possible for	this	court	to
interfere		with	the said finding in		exercise	of
extra		ordinar	y jurisdiction, even if	it	is	held

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that they were not married, but the evidence would show that they were cohabiting.

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. Lastly the issue is of proportionally of the punishment. In the instant case, the record would show that earlier petitioner was issued warning on seven occasions for acts of indiscipline and or negligence. The Petitioner was holding the post of Sub Inspector. The charges against the petitioner

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are	that	he	was	cohabiti	ng with	Ms.		Saroj	in	the
family		quarters		where	there	are		other		families
living.		No		doubt th	e Petitio	ner	has	put	in	twenty
years	of	service.		The	punishme	nt	imposed	is	not	of
dismissal		but		of com	pulsory	retire	ment	which		will
entitle		him	to	have	pensionary	b	enefits	Hence,		we
do	not	thin	k	this to	be a	fit	case	to		interfere

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with the impugned order in exercise of the extra

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ordinary jurisdiction.

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. Hence, rule discharged. No order as to costs.

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(F.I. REBELLO,J.)

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(S.P. KUKDAY,J.)

Mr. J.J. Lakra v. Dy. Inspector General (Wz) Cisf, Mumbai and Anr.

Case brief

What is this about?

What did the court decide?

Mr. J.J. Lakra v. Dy. Inspector General (Wz) Cisf, Mumbai and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

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