Dismissed

M.Balakrishnan v. Commandant

Kerala HC13 Nov 2009WP(C)/28244/2003

Case brief

AI extract

What is this about?

The court dismissed a writ petition challenging a removal from service order. It found the disciplinary authority justified in punishment due to repeated misconduct involving intoxication and negligence. The claim for compassionate allowance was left to be raised separately without decision.

What did the court decide?

Writ petition dismissed; petitioner allowed to raise claim for compassionate allowance separately before the 1st respondent.

M.Balakrishnan Vs Commandant — Pension and Retirement Benefits | Kerala HC (2009)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE ANTONY DOMINIC

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FRIDAY, THE 13TH NOVEMBER 2009 / 22ND KARTHIKA 1931

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WP(C).No. 28244 of 2003(K)

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--------------------------

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PETITIONER(S):

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-------------------

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M.BALAKRISHNAN, S/O.LATE T.V.KRISHNAN, HEAD CONSTABLE, RAF/CRPF (REMOVED FROM SERVICE), P.O.EZHILODE, KANNUR DISTRICT.

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BY ADV. SRI.V.N.RAMESAN NAMBISAN

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RESPONDENT(S):

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---------------------

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1. COMMANDANT, 107 BN, RAF/CRPF, GOVINDAPURA, BHOPAL, MADHYA PRADESH.

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2. DEPUTY INSPECTOR GENERAL, RAF/CRPF, R.K.PURAM, NEW DELHI.

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3. GOVERNMENT OF INDIA, REPRESENTED BY THE SECRETARY, DEPARTMENT OF HOME, NEW DELHI.

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ADV. SRI.V.V.SURESH, ADDL.CGSC SRI.T.P.M.IBRAHIM KHAN, ASG

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WPC NO.28244/03

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APPENDIX

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PETITIONER'S EXHIBITS

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EXT.P1: TRUE COPIES OF THE MEMORANDUM NO.P VIII-2/2001-107EC-2 DT 21.1.2001 ALONG WITH THE ARTICLES OF CHARGES AND STATEMENT OF IMPUTATIONS.

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EXT.P2: TRUE COPY OF THE DEPOSITION OF PW1 BY DY.COMMANDANT KARAN SINGH IN HINDI.

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EXT.P2(a): TRUE ENGLISH TRANSLATION OF EXT.P2.

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EXT.P3: TRUE COPY OF THE DEPOSITION OF PW2 NAINA RAM IN HINDI. EXT.P3(a): TRUE ENGLISH TRANSLATION OF EXT.P3.

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EXT.P4: TRUE COPY OF THE DEPOSITION OF PW3 DR.ASOK KUMAR IN HINDI.

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EXT.P4(a): TRUE ENGLISH TRANSLATION OF EXT.P4.

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EXT.P5: TRUE COPY OF THE DEPOSITION OF PW4 LAKHBIR SINGH IN HINDI.

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EXT.P5(a): TRUE ENGLISH TRANSLATION OF EXT.P5.

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EXT.P6: TRUE COPY OF THE DEPOSITION OF PW5 S.I.PANSINGH 107 BN. IN HINDI.

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EXT.P6(a): TRUE ENLISH TRANSLATION OF EXT.P6.

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EXT.P7: TRUE COPY OF THE ORDER NO.P-VIII-2/2001-107-EC-2 DT 10.8.2001 OF THE COMMANDANT, 107-BN RAF/CRPF, BHOPAL.

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EXT.P8: TRUE COPY OF THE MEMORANDUM OF APEPAL DT 6.9.2001.

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EXT.P9: TRUE COPY OF THE ORDER NO.13-34/2001/ESTT.3 DT 14.12.2001 OF THE DIG OF POLICE, SPEED TASK FORCE CRPF, NEW DELHI66.

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EXT.P9(a): TRUE ENLGISH TRANSLATION OF EXT.P9.

//TRUE COPY//

P.A. TO JUDGE

ANTONY DOMINIC, J. ================ W.P.(C) NO. 28244 OF 2003 (K)

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=====================

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Dated this the 13^th day of November, 2009

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J U D G M E N T

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Petitioner joined the CRPF as a Havildar on 30/4/1986. He was promoted as Head Constable and was working at Bhopal.

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While so, he was issued Ext.P1 memo of charges and statement of allegations. There were three charges. The first charge was that on 4/1/2001, when he was checked at 0730 hrs, he was found to have consumed liquor and thus committed offence under Section 10(a) of CRPF Act, punishable under Section 11(1) of the Act. The second charge was that being a driver, he was habitually consuming liquor and was last punished on 15/12/2000 for the same offence. The third charge was that on 4/1/2001 at 0730 hrs, the petitioner was found sleeping in lines when he was detailed as Guard Commander and was required to be on duty. Though the memo of charges and the statement of allegations were sent to him, he did not submit any reply or any written statement of defence. An enquiry officer was appointed and before the enquiry officer, despite the petitioner admitting the guilt, five witnesses were examined. None of these

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WPC 28244/03

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witnesses were cross examined by the petitioner.

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The enquiry officer submitted his report on 7/7/2001 finding the petitioner guilty of the charges. The disciplinary authority gave the petitioner an opportunity to submit his representation, if any, in the matter. Petitioner submitted a representation pleading for forgiveness and assuring good future conduct. The disciplinary authority considered the matter and passed Ext.P7 order dated 10^th August, 2001, accepting the findings of the Enquiry Officer and imposing the punishment of removal from service w.e.f.10/8/2001. Petitioner filed Ext.P8 appeal and that was rejected by the appellate authority by Ext.P9 order. It is in these circumstances the writ petition is filed challenging Exts.P7 and P9.

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Counsel for the petitioner contended that the findings of the enquiry officer are against the evidence and therefore is perverse. It is stated that for the same reason, the order passed by the disciplinary authority is also perverse.

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Exts.P2 to P6 are the depositions given by the witnesses along with its English translation. There is nothing in the evidence of PWs 1 and 2, who have given Exts.P2 and P3

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:3 :

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WPC 28244/03

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deposition, to infer that the petitioner was found in an intoxicated condition on 4/1/2001. Ext.P4 is the statement given by the Doctor, who examined the petitioner on 4/1/2001. He has stated that the petitioner was found to have consumed alcohol and was unable to even talk. Exts.P5 and P6 are the depositions of PWs 4 and 5, who also deposed to have found the petitioner sleeping while on duty in an intoxicated condition. In the light of the aforesaid evidence, it cannot be said that the finding of the Enquiry Officer is perverse.

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Learned counsel for the petitioner relied on the judgments in Bhagat Ram v. State of H.P. (AIR 1983 SC 454), Ranjit Thakur v. Union of India (AIR 1987 SC 2386), Das v. Union of India (1996(2) KLT S.N.37, Page 35), B.C.Chaturvedi v. Union of India (AIR 1996 SC 484), Kailash Nath Gupta v. Allahad Bank {2003(2) KLT S.N.37(SC)} and contended that the punishment of removal from service is too disproportionate to the gravity of the misconduct proved against the petitioner. However, when proportionality of punishment is appreciated, Court should certainly keep in mind the duty that is expected to be discharged by the delinquent and it is only on that basis, the

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WPC 28244/03

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question as to whether the punishment against a delinquent is proportionate or not, can be appreciated. Petitioner was a Havildar in CRPF, a disciplined force and he was found drunk on an earlier occasion and was punished by imposing a lesser punishment of warning, which was obviously an opportunity given to the petitioner to reform himself. He was again found to have committed the same misconduct and in the disciplinary enquiry, he pleaded guilty and did not adduce any evidence and only offered to reform himself. In such circumstances, if the disciplinary authority having regard to the facts, decided to impose the punishment of removal from service, this Court will not be justified in sitting in judgment over the wisdom of the disciplinary authority and hold that the petitioner should be retained in service. I am not persuaded to accept the contention that the punishment imposed on the petitioner was disproportionate. In such circumstances, Exts.P7 and P9 do not call for interference.

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However, the counsel for the petitioner pointed out that his family is in utter penury and that under Rule 43 of the CRPF Rules, the competent authority has the power to grant

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WPC 28244/03

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:5 :

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compassionate allowance. From the records produced in the writ petition, I do not see that the petitioner has raised a claim for such allowance. In such circumstances, the only order which can be passed is that it will be open to the petitioner to raise his claim for compassionate allowance before the 1^st respondent, in which event, the 1^st respondent shall deal with the same in accordance with law.

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Writ petition is disposed of as above.

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ANTONY DOMINIC, JUDGE

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M.Balakrishnan v. Commandant

Case brief

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M.Balakrishnan v. Commandant

Case brief

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