Partly allowed

Kumar @ Sree Kumar S. v. Director General Indo Tibetan

Kerala HC21 Feb 2012OP/3569/2003

Case brief

AI extract

What is this about?

A constable in ITBP challenged his removal from service following a guilty plea. The court noted the confession was made without a cooling period. It remitted the case for compliance with mandatory rules regarding the effect of guilty pleas while quashing specific orders and suspension-related penalties, though reinstatement was denied.

What did the court decide?

Remitted for compliance with mandatory cooling period rules; quashed specific orders; suspension continued with backdated benefits.

Kumar @ Sree Kumar S. Vs Director General… — Pension and Retirement Benefits | Kerala HC (2012)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT:

¶3

THE HONOURABLE MR.JUSTICE B.P.RAY

¶4

TUESDAY, THE 21ST DAY OF FEBRUARY 2012/2ND PHALGUNA 1933

¶5

OP.No. 3569 of 2003 (Y)

¶6

PETITIONER(S):

¶7

SRI KUMAR ALIAS SREE KUMAR.S. S/O. K.SREEDHARAN PILLAI, USHAS, KANNIDA KURUMBUKARA P.O., PATHANAPURAM.

¶8

BY ADV. SRI.V.PHILIP MATHEW.

¶9

RESPONDENT(S):

¶10

1. DIRECTOR GENERAL,

¶11

INDO TIBETAN BOARDER POLICE II, CGO COMPLEX, LODHI ROAD, NEW DELHI- 110 003.

¶12

2. COMMANDANT 4TH B.N.,

¶13

INDO TIBETAN BOARDER POLICE FORCE, M.H.A/ GOVERNMENT OF INDIA, RANGRET DISTRICT, BUDGOAN,

¶14

JAMMU AND KASHMIR.

¶15

3. ENQUIRY OFFICER, R.O.E., DEPUTY COMMANDANT, 4TH B.N.,

¶16

INDO TIBETAN BOARDER POLICE FORCE, M.H.A./GOVERNMENT OF INDIA, RANGRET DISTRICT, BUDGOAN, JAMMU AND KASHMIR.

¶17

4. UNION OF INDIA,

¶18

REPRESENTED BY ITS SECRETARY, MINISTRY OF HOME, NEW DELHI.

¶19

5. THE DIG (J & K-II), INDO TIBETAN BOARDER POLICE,

¶20

MHA/ GOVERNMENT OF INDIA, P.O.PANTHACHOWK, (ZEWAN CAMP) SRINAGAR, (JAMMU & KASHMIR).

¶21

BY ADV. SRI.P.PARAMESWARAN NAIR, ASST. S.G. OF INDIA.

¶22

THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 21-02-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶23

rs.

¶24

OP.No. 3569 of 2003 (Y)

¶25

APPENDIX

¶26

PETITIONER'S EXHIBITS:-

¶27

EXT.P1	COPY OF THE SUSPENSION ORDER NO.1-26015/3/2002/ESTT-29 SRI.KUMAR)/2002 DATED 01/04/2002 ISSUED BY THE COMMANDANT IV BN ITB POLICE FORCE.
EXT.P2	COPY OF THE ORDER FOR CONDUCTING ENQUIRY AGAINST THE PETITIONER DATED 02/04/2002 ALONG WITH CHARGE SHEET.
EXT.P3	COPY OF THE RELEVANT PORTION OF THE CHARGE SHEET ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER DATED 08/04/2002.
EXT.P4	COPY OF THE ORDER NO.I-26015/3/2002/ESTT.2 (SRI.KUMAR)/2002- 374 DATED 10/04/2002 REMOVING THE PETITIONER FROM SERVICE.
EXT.P5	COPY OF THE PETITION SUBMITTED BEFORE THE ADDITIONAL 5TH RESPONDENT.
EXT.P6	COPY OF THE JUDGMENT IN O.P. NO. 21745/2002.
EXT.P7	COPY OF THE ORDER ISSUED BY THE 5TH RESPONDENT TO THE PETITIONER DATED 19/12/2002.

¶28

RESPONDENT'S EXHIBITS:- NIL.

//TRUE COPY//

P.A. TO JUDGE

rs.

B.P.RAY, J.

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

¶34

O.P.No. 3569 of 2003

¶35

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

¶36

Dated this 21st day of February, 2012.

¶37

JUDGMENT

¶38

The petitioner has filed this writ application with

¶39

the following prayers:

¶40

“a) Issue a writ of certiorari or other appropriate writ order or direction quashing exhibits P1 to P4 and P7.

¶41

b) Issue a writ of mandamus commanding respondents 1 to 5 to conduct an impartial enquiry and trial after supplying copies of all documents against him in Malayalam and giving reasonable opportunity to the petitioner to produce evidence and to raise his contentions.

¶42

c) Issue a writ of mandamus or other appropriate writ commanding respondents 1 to 5 to reinstate the petitioner back to service with retrospective effect from 10/4/2002 with all services benefits as if he has not been removed from service.

¶43

d) Issue a writ of mandamus or other appropriate writ order or direction commanding respondents 1 to 5 to reconsider the punishment imposed on the petitioner with special reference to question whether any punishment other than removal from service will be adequate in the facts and circumstances of the case.

¶44

e) Issue a writ of mandamus or other appropriate writ order or direction commanding respondents 1 to 5 to grant pension and other service benefits to the petitioner at least for the period during which the petitioner worked.”

¶45

2.The petitioner was a constable in 4^th Bn. ITBP Force. He

¶46

entered into the service on 30/8/1987 and was suspended on

¶47

01/04/2002. While he was working as a constable in 'D' Coy of

¶48

4^th Bn.ITBP Force on intervening night 30/03/2002-31/03/2002

¶49

O.P.No. 3569 of 2003

¶50

¶51

he was in active/ duty on C.I.(OPS) at W.W.Hostel Bemina, Srinagar he left the post/campus at his own without orders/permission of the competent authority. The Coy personnel carried out search in and around the campus, but failed to trace out. On 31/03/2002, Parimapura Police Station has informed to the Coy Head Quarters that, he was arrested last night from the National Highway I.A in the state of intoxication. Therefore, there was charge under Sections 18(d), 29(1) and Section 43 of the ITBPF Act-1992 against him. The petitioner was removed from the service after a proper trial by Summary Force Court in accordance with the provisions of ITPBF Act and Rules by giving opportunities to the petitioner and after the examination of the witness.

¶52

The counsel for the petitioner submits that even though

¶53

the petitioner pleaded guilty, no cooling time was afforded to him as required under Rule 143(2) of the ITBPF Rules. The petitioner was given the following punishments:

¶54

“1) No pay and allowance and ration allowance shall be payable for the period under which the accused remains under suspension i.e; w.e.f 31/03/2002 (F.N) to 10/04/2002 (A.N) (11 days).

¶55

He shall deposit all the kit items, equipments and clothing articles issued to him as a member of ITBP Force, failing which reduction shall be made from his admissible final payment.

¶56

O.P.No. 3569 of 2003

¶57

¶58

He shall not divulge nothing to any unauthorized person which might have come to his knowledge, during working in ITBP Force. If he does so, then he shall be liable for criminal prosecution under Official Secrets Act, 1923. “

¶59

The learned counsel for the respondents relying on the

¶60

contentions submits that the petitioner was dismissed from the

¶61

service in accordance with Rule 143 of the ITBPF Rules. The said

¶62

Rule 143 of the ITBPF herein is quoted for ready reference :

¶63

“ 143 . General plea of “Guilty” or “Not Guilty”.- (1) The accused persons' plea of”Guilty” or “Not Guilty” (or if he refuses to plead or does not plead intelligibly either one or the other a plea of “Not Guilty”) shall be recorded on each charge.

¶64

(2) If an accused person pleads “Guilty” that plea shall be recorded as the finding of the Court, but before it is recorded, the Court shall ascertain that the accused understands the nature of the charge to which he has pleaded guilty and shall inform him of the general effect of that plea and in particular of the meaning of the charge to which he has pleaded guilty, and of the difference in procedure which will be made by the plea of guilty and shall advise him to withdraw that plea if it appears from the record or abstract of evidence (if any) or otherwise that the accused ought to plead not guilty.

¶65

(3) Where an accused person pleads guilty to the first two or more charges laid in the alternative, the Court may after subrule (2) has been complied with and before the accused is arraigned on the alternative charge or charges, withdraw such alternative charge or charges and follow the charge to which the accused has pleaded guilty without requiring the accused to plead thereto, and record to that effect shall be made in the proceedings of the Court.”

¶66

The aforesaid Rule 143 contemplates that a person

¶67

should be given sufficient instructions as required under Rule

¶68

143(2) of the ITBPF Rules with regard to the consequence of the

¶69

confession, pleaded guilty. The records were produced before me

¶70

O.P.No. 3569 of 2003

¶71

¶72

and I have perused the same. The learned Sr.Assistant Solicitor General appearing for the respondents vehemently argued that the conduct of the petitioner is perfectly an unbecoming one to the disciplinary force. While he was on duty, he left the place and he was arrested by the Police in an intoxicated stage. Therefore, no leniency can be shown. He has relied upon the judgment of this Court in W.P.(C).No.16395 of 2011 dated 2^nd February 2012 wherein the Court observed that since the petitioner was given adequate opportunity by the Enquiring Officer with regard to the consequence of confession, the entire proceedings and consequent procedures adopted by the Enquiring Officer is not contrary to the mandate of the statute.

¶73

The counsel for the petitioner argues that the petitioner was not given an opportunity to defend himself. By Exhibit P3, order dated 8/4/2002, the petitioner was informed that Summary Force Court will be held on 10/4/2002 at 10 AM and he was directed to produce list of witness and friend of accused by 9/4/2002. Only less than 24 hours time was granted for production of witness list. Learned counsel for the petitioner

¶74

O.P.No. 3569 of 2003

¶75

¶76

relies on the decision in Delhi Cloth & General Mills Co.Ltd v.Thejvir Singh in 1972 (1) LLJ 201. Even though, the learned Assistant Solicitor General appearing for the respondents submits that the petitioner was given adequate opportunity after his pleading of guilty, during the course of the enquiry, the Summary Force Court explained the contents of the charge sheet and record of evidence, which was in Hindi, in the language known to the petitioner and he also submits that there is no procedure to regulate in the instant case.

¶77

Since the order of punishment was passed based on the confession, for the limited purpose of considering the effect of such confession made within a short time without time for cooling, I remit the matter to the learned Summary Force Court and direct that from the stage of confession of the petitioner, the petitioner shall be given adequate opportunity to defend himself as required in the mandatory provisions of Section 143(2) of the ITBPF Rules and in accordance with law. I quash Exts.P1 to P4 and Ext.P7 orders. The petitioner shall continue under suspension and shall not be reinstated in service. Even though, I direct that

¶78

O.P.No. 3569 of 2003

¶79

¶80

the petitioner shall remain under suspension, he shall be given all suspensional benefits including pay and allowances till date within two months from the date of receipt of a copy of this judgment. The entire proceedings shall be concluded within three months from the date of receipt of a copy of this judgment after following mandates of Section 143(2) of the ITBPF Rules.

¶81

The writ petition is disposed as above.

¶82

B.P.RAY,JUDGE

¶83

Kumar @ Sree Kumar S. v. Director General Indo Tibetan

Case brief

What is this about?

What did the court decide?

Kumar @ Sree Kumar S. v. Director General Indo Tibetan

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Parties & counsel

Coram

Case details

Similar cases

K.N.Ravichandran Vs the Kerala State Electricity Board

P.a.Salim Vs Kseb

C.J.Mathew Vs Kerala State Road Transport Corporation

Vidyasagaran Vs Sub Inspector of Fisheries

Viju Paul Vs Kerala State Electricity Board

Abdul Azeez Vs Sulaiman