Partly allowed

R. Vittoba v. the Director General, Cisf

Kerala HC7 Nov 2016WP(C)/3339/2014

Case brief

AI extract

What is this about?

This writ petition challenged disciplinary proceedings and a penalty of withholding an increment against the petitioner. The court set aside the appeal and revision orders. It directed that the penalty order be set aside and the subject remanded to the disciplinary authority to consider Central Vigilance Commission instructions on technical lapses.

What did the court decide?

The appeal and revision orders are set aside. The penalty order (Exhibit P5) is set aside. The matter is remanded to the disciplinary authority to pass fresh orders within two months considering CVC i

R. Vittoba Vs the Director General, Cisf — Service and Employment | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN

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MONDAY, THE 7TH DAY OF NOVEMBER 2016/16TH KARTHIKA, 1938

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WP(C).No. 3339 of 2014 (N)

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PETITIONER(S):

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R.VITTOBA, SON OF RAGHUPATHY NAIDU, HEAD CONSTABLE, NO.823150115, CISF UNIT, COCHIN PORT TRUST, COCHIN PRESENTLY RESIDING AT C-COY, CISF UNIT, COCHIN PORT TRUST, WELLINGTON ISLAND, COCHIN.

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BY ADV. SRI.S.VISHNU

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RESPONDENT(S):

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1. THE DIRECTOR GENERAL, CISF 13 CGO COMPLEX, LODHI ROAD, NEW DELHI-110 003.

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2. THE INSPECTOR GENERAL, CISF SOUTH SECTOR HEADQUARTERS, RAJAJI BHAVAN, BESANT NAGAR, CHENNAI, TAMIL NADU.

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3. THE DEPUTY INSPECTOR GENERAL, CISF

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SOUTH SECTOR HEADQUARTERS, RAJAJI BHAVAN, BESANT NAGAR, CHENNAI, TAMIL NADU.

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4. THE GROUP COMMANDANT, CISF GP HEADQUARTERS, D BLOCK, RAJAJI BHAVAN, BESANT NAGAR, CHENNAI, TAMIL NADU.

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5. THE SENIOR COMMANDANT CISF UNIT, COCHIN PORT TRUST, COCHIN.

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6. THE ASSISTANT COMMANDANT CISF UNIT RGN, SRIPERUMBUDUR, TAMIL NADU.

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WP(C).No. 3339 of 2014 (N)

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*ADDL.R7 IMPLEADED :

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*7. UNION OF INDIA, REPRESENTED BY THE SECRETARY, MINISTRY OF HOME AFFAIRS, NEW DELHI - 110001. ADDL.R7 IS IMPLEDED AS PER ORDER DT 7/11/2016 IN IA 18370/2016

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R1 TO R7 BY ADV. SRI.N.NAGARESH, ASG BY ADV. SRI.P.PARAMESWARAN NAIR,ASG

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 3339 of 2014 (N)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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EXT.P1: - TRUE COPY OF THE MEMO NO.E-24018/CISF/RGN(S)/ DISC/2012/1993 DATED 13-10-2012 ISSUED BY THE 6TH RESPONDENT.

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EXT.P2: - TRUE COPY OF THE ORDER NO.V-15104/CISF/RGN(S)/ DISC/2012/2215 DATED 22-11-2012 ISSUED BY THE 6TH RESPONDENT.

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EXT.P3: - TRUE COPY OF THE ORDER NO.V15014/GHC/AD.VI/DISC/APPEAL/2012/6186 DATED 22-12-2012 ISSUED BY THE 4TH RESPONDENT

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EXT.P4: - TRUE COPY OF THE MEMO NO.V-15014/MAJ01/RV/DISC/2013/613 DATED 1-2-2013 ISSUED BY THE 5TH RESPONDENT.

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EXT.P5: - TRUE COPY OF THE MEMO NO.V-15014/MAJ01/RV/DISC/2013/2424 DATED 2-5-2013 ISSUED BY THE 5TH RESPONDENT.

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EXT.P6: - TRUE COPY OF THE APPELLATE ORDER DATED 11-7-2013 ISSUED BY THE 3RD RESPONDENT.

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EXT.P7: - TRUE COPY OF THE REVISION PETITION SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT.

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EXT.P8: - TRUE COPY OF THE ORDER NO.V15014/L&R/SS/REV/HC/2013-198 DATED 27-9-2013 ISSUED BY THE 2ND RESPONDENT.

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EXT.P9: - TRUE COPY OF THE REPRESENTATION DATED 13-5-2013 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT.

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EXT.P10: - TRUE COPY OF THE RELEVANT PAGES OF THE RULE 18 OF THE CCS (CONDUCT) RULES AS WELL THE INSTRUCTIONS DETAILED IN OM NO.25/18/59-ESTS.(A) DATED 28-8-1959 AND O.M.NO. 11013/13/78-ESTT(A) DATED 11-9-1978 ISSUED BY THE MINISTRY OF HOME AFFAIRS

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EXT.P11:- COPY OF THE COMMUNICATION NO. 99/VGL/69 DT 26/2/2001 ISSUED BY THE CENTRAL VIGILANCE COMMISSION.

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EXT.P12:TRUE REPRESENTATION DT 31/7/2014 ADDRESSED TO THE DIRECTOR GENERAL, CISF.

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WP(C).No. 3339 of 2014 (N)

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EXT.P13: - REPRESENTATION DT 17/1/2015 ADDRESSED TO THE SECRETARY, MINISTRY OF HOME AFFAIRS.

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RESPONDENT(S)' EXHIBITS :

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EXT.R5(A): COPY OF THE ANNEXURE TO THE LOAN AGREEMENT.

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EXT.R5(b): COPY OF THE LOAN APPLICATION FORM.

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EXT.R5(c): COPY OF RELEVANT PAGE OF LOAN APPLICATION FORM WITH SIGNATURE OF THE PETITIONER.

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EXT.R5(d): COPY OF RELEVANT PAGE OF LOAN APPLICATION FORM WITH THE BANK ACCOUNT DETAILS OF THE PETITIONER.

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EXT.R5(e): COPY OF THE STATEMENT OF BANK ACCOUNT.

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EXT.R5(f): COPY OF THE NOTIFICATION DT 9/5/2011.

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EXT.R5(g): COPY OF THE APPLICATION DT 25/5/2013/8/8/2013.

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EXT.R5(h): COPY OF THE LETTER DT 1/10/2013.

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EXT.R5(i): COPY OF THE COMMUNICATION DT 24/10/2013.

//TRUE COPY//

P.A. TO JUDGE

ANU SIVARAMAN, J.

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----------------------------------------------W.P(C).No. 3339 of 2014

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----------------------------------------------Dated this the 7^th November, 2016

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JUDGMENT

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The above writ petition is filed challenging disciplinary proceedings initiated against the petitioner and imposition of punishment of withholding of one increment with cumulative effect as well as the orders in appeal and revision against such imposition of penalty.

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Initially, on the charge that the petitioner had suppressed the acquisition of a movable asset, Exhibit P1 memo of charges dated 13.10.2012 was issued to him and a minor penalty was imposed. The petitioner took up the matter in appeal. By Exhibit P3 order dated 22.12.2012, the appellate authority found that the purchase of a vehicle in the name of his wife and failure to intimate the department was deliberate and was a serious misconduct. The punishment was, therefore, set aside without prejudice to the right of the disciplinary authority to initiate proceedings for imposition of major penalty. Accordingly, Exhibit P4 memo of charges was issued and Exhibit P5 order awarding the punishment of reduction of pay by one stage for a period of one year with cumulative effect was imposed. Though the petitioner had taken up the matter in appeal and revision, by Exhibits P6 and P8 orders, the appeal and revision were dismissed. It is against these orders that the petitioner has preferred the instant writ petition.

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WP(C).3339/14

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Heard learned counsel for the petitioner and the learned Assistant Solicitor General of India appearing for the respondents.

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It is submitted by learned counsel for the petitioner that Exhibit P5 penalty imposed on the petitioner was the first penalty imposed after 31 years of unblemished service. It is contended that the petitioner is only a low paid employee and he had no intention of defrauding the department and no allegation of lack of integrity has been raised against the petitioner. It is contended that the omission to report the transaction was only on account of lack of knowledge and oversight. The learned counsel for the petitioner places reliance on Exhibit P11 instructions issued by the Central Vigilance Commission, which states that failure to intimate transactions out of mistake or ignorance should be treated as only a technical lapse and should ordinarily attract only a penalty of censure/administrative warning. It is contended that in the above view of the matter, Exhibits P5, P6 and P8 orders may be set aside and the disciplinary authority may be directed to consider the case of the petitioner as one of technical lapse in the light of Exhibit P11 instructions and to issue appropriate orders in the matter, considering Exhibit P11.

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A counter affidavit has been filed by the respondents, wherein it is submitted that the charges against the petitioner as well as the contentions raised by the petitioner have been considered by the authorities concerned. However, Exhibit P11 proceedings are dated

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WP(C).3339/14

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26.2.2001. The proceedings initiated against the petitioner commenced only in the year 2012. It is evident from a reading of the counter affidavit filed on behalf of the respondents that the instructions contained in Exhibit P11 have not been taken into account by any of the authorities while dealing with the petitioner's case. The contention raised by the petitioner that no penalty of any nature had been imposed on him before Exhibit P2 order was issued has also not been controverted in the counter affidavit. In the above view of the matter, I am of the opinion that this is a fit case where Exhibit P11 should have been taken into consideration by the appropriate authorities before the penalty against the petitioner was finalised.

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In the result, Exhibits P6 and P8 orders are set aside. Exhibit P5 order to the extent of imposition of penalty is also set aside. The disciplinary authority is directed to consider the case of the petitioner in the light of Exhibit P11 instructions also and to pass orders afresh on the question of penalty within a period of two months from the date of receipt of a copy of this judgment.

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The writ petition is ordered accordingly.

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ANU SIVARAMAN

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JUDGE

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vgs10/11

R. Vittoba v. the Director General, Cisf

Case brief

What is this about?

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R. Vittoba v. the Director General, Cisf

Case brief

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