Partly allowed

K.K.Pramod v. the Director General, Central Industrial Security Force

Kerala HC3 Nov 2016WP(C)/9390/2013

Case brief

AI extract

What is this about?

The High Court held that it could not interfere with a disciplinary order under Article 226 due to procedural compliance, rejecting the petitioner's plea to re-appreciate evidence. However, it set aside an order withholding a past annual increment, holding it was entitled to be granted as no valid order existed to deny it at that time.

What did the court decide?

The petitioner is entitled to the grant of the normal increment which fell due in July 2011; the order withholding the same is set aside.

K.K.Pramod Vs the Director General, Central… — Pension and Retirement Benefits | 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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THURSDAY, THE 3RD DAY OF NOVEMBER 2016/12TH KARTHIKA, 1938

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WP(C).No. 9390 of 2013 (W)

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PETITIONER(S):

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PRAMOD. K.K., CONSTABLE NO.014501047, CENTRAL INDUSTRIAL SECURITY FORCE, BHARATH DYNAMIC LIMITED, DHANUR, ANDRAPRADESH, PERMANENT RESIDENT OF KALLIGAPURAM HOUSE, AVITTATHOOR P.O., IRINJALAKUDA, THRISSUR.

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BY ADVS.SRI.B.S.SWATHY KUMAR,

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SMT.V.BEENA.

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RESPONDENT(S):

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1. THE DIRECTOR GENERAL, CENTRAL INDUSTRIAL SECURITY FORCE, HEAD QUARTERS, 13, CGO COMPLEX, LODHI ROAD, NEW DELHI-3.

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2. THE INSPECTOR GENERAL, CENTRAL INDUSTRIAL SECURITY FORCE, SOUTH SECTOR HEAD QUARTERS, CHENNAI-9.

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3. THE DEPUTY INSPECTOR GENERAL, CENTRAL INDUSTRIAL SECURITY FORCE, SOUTH ZONE HEAD QUARTERS, RAJAJI NAGAR, BESANT NAGAR, CHENNAI-5.

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4. THE SENIOR COMMANDANT, CENTRAL INDUSTRIAL SECURITY FORCE, COCHIN PORT TRUST UNIT, COCHIN-3.

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5. O.P. THAKUR (ENQUIRY OFFICER), INSPECTOR/EXECUTIVE CENTRAL INDUSTRIAL SECURITY FORCE UNIT, COCHIN PORT TRUST, COCHIN-3.

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BY ADVS. SRI.T.SANJAY, CGC, SMT.O.M.SHALINA, CGC.

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25-10-2016, THE COURT ON 03/11/2016 DELIVERED THE FOLLOWING:

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rs.

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WP(C).No. 9390 of 2013 (W)

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APPENDIX

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PETITIONER'S EXHIBITS:-

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EXHIBIT-P1: TRUE COPY OF THE MEMORANDUM NO.V.15014/MAJ-02(PKK) ADM.IV/2011/2630 DATED 02.07.2011.

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EXHIBIT-P2: TRUE COPY OF THE REPLY FILED BY THE PETITIONER BEFORE THE 4TH RESPONDENT DATED 06.07.2011.

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EXHIBIT-P3: TRUE COPY OF THE STATEMENT FILED BY THE PETITIONER BEFORE THE 5TH RESPONDENT DATED 29.08.2011.

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EXHIBIT-P4: TRUE COPY OF THE WRITTEN BRIEF SUBMITTED BY THE PETITIONER BEFORE THE PRESENTING OFFICER DATED 03.09.2011.

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EXHIBIT-P5: TRUE COPY OF THE ENQUIRY PROCEEDINGS DATED 07.09.2011 SUBMITTED BY THE 5TH RESPONDENT.

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EXHIBIT-P6: TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER BEFORE THE 4TH RESPONDENT DATED 28.09.2011.

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EXHIBIT-P7: TRUE COPY OF THE FINAL ORDER NO.V-15014/MAJ-02(PKK)ADMIV/2011/3230 DATED 03.10.2011.

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EXHIBIT-P8: TRUE COPY OF THE ORDER NO.V.15014/SUSP/ADM-IV/2011/3229 DATED 03.10.2011.

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EXHIBIT-P9: TRUE COPY OF THE APPELLATE ORDER DATED 30.12.2011.

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EXHIBIT-P10: TRUE COPY OF THE ORDER NO.V.15014/L&R/SS/REV/RS/2012-397 DATED 17.10.2012.

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EXHIBIT-P11: TRUE COPY OF THE MEDICAL CERTIFICATE DATED 17.06.2011 ISSUED BY AMRITA INSTITUTE OF MEDICAL SCIENCES.

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EXHIBIT-P12: TRUE COPY OF THE REQUEST FILED BY THE PETITIONER BEFORE THE 4TH RESPONDENT DATED 25.06.2011.

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EXHIBIT-P13: TRUE COPY OF THE OFFICE MEMORANDUM NO.E-42099/CISF/CPT/ ADM.1/2011-1336 DATED 31.03.2011.

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EXHIBIT-P14: TRUE COPY OF MOVEMENT ORDER NO.E-16015/20/PKK-I/2011-320 DATED 01.04.2011.

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EXHIBIT-P15: TRUE COPY FO THE ORDER NO.E-38018/22/ESTT.II/2011/1078 DATED 15.11.2012.

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EXHIBIT-P16: TRUE COPY FO THE OFFICE MEMORANDUM DATED 17.10.2012.

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.....2/-

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WP(C).No. 9390 of 2013 (W)

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EXHIBIT-P17: TRUE COPY OF THE REQUEST FILED BY THE PETITIONER BEFORE THE 5TH RESPONDENT DATED 06.05.2011.

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EXHIBIT-P18: TRUE COPY OF THE REQUEST FILED BY THE PETITIONER BEFORE THE 5TH RESPONDENT DATED 03.08.2011.

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EXHIBIT-P19: TRUE COPY OF THE ORDER NO.V-15014/CISF/CPT/EO/2011/2903 DATED 10/08/2011 OF THE 5TH RESPONDENT.

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RESPONDENT'S EXHIBITS:-

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EXT.R1A COPY OF THE JUDGMENT PASSED BY THIS HONOURABLE COURT DATED 21/07/2011.

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EXT.R1B COPY OF THE JUDGMENT PASSED BY THIS HONOURABLE COURT DATED 27/10/2011.

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EXT.R1C COPY OF THE ANNUAL MEDICAL EXAMINATION REPORT FOR THE YEAR 2009.

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EXT.R1D COPY OF THE ANNUAL MEDICAL EXAMINATION REPORT FOR THE YEAR 2010.

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EXT.R1E COPY OF THE LETTER DATED 01/08/2011. EXT.R1F COPY OF THE LETTER DATED 04/08/2011.

//TRUE COPY//

P.S. TO JUDGE

rs.

ANU SIVARAMAN, J.

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= = = = = = = = = = = = = = = = = = = = = = = = = = W.P.(C).No.9390 of 2013

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= = = = = = = = == = = = = = = = = = = = = = = = = Dated this the 3^rd day of November, 2016

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JUDGMENT

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The writ petition is filed challenging Exhibits P7, P9 and P10 orders issued in disciplinary proceedings as also Exhibit P16 order withholding the annual increment due w.e.f. 01.07.2011. The petitioner was placed under suspension pending enquiry. After conduct of the enquiry, Exhibit P5 enquiry report was submitted and by Exhibit P7 punishment of reduction of pay by three increments from Rs.7570/- to 6750/- in the scale of pay of R.5200-20,200/- + GP Rs.2400/- for a period of five years was imposed on the petitioner. It is further ordered that he would not earn increment during the period of reduction and the reduction would have the effect of postponing his future increments of pay. The period of suspension from 26.06.2011 to 3.10.2011 was treated “as such for all purposes”. Exhibit P7 order was taken in appeal by the petitioner. Considering the petitioner's appeal, the penalty awarded was reduced as reduction of pay by one increment for a period of five years with cumulative effect by Exhibit P9 order. Though a revision petition was attempted

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W.P.(C).No.9390/13

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against the said order, the same was dismissed by Exhibit P10. These orders are under challenge.

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

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It is the contention of the petitioner that while working at Cochin Port Trust he was detailed to undergo marine training and to attend swimming course scheduled to be held at FSTI/NISA, Hyderabad with effect from 27.06.2011 to 23.07.2011, to attend short commando course with effect from 26.07.2011 to 19.08.2011 at RTC Barwaha and marine training course at ISS, Chilka with effect from 22.08.2011 to 03.09.2011. He states that he had requested to be exempted from the training on health grounds and since he was already under orders of transfer, memo of charges was served on him alleging disobedience. An enquiry was ordered against him by the 5^th respondent and the petitioner has been penalised on the basis of the enquiry report.

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W.P.(C).No.9390/13

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The petitioner challenges the punishment on grounds of violation of principles of natural justice. He further alleges that the punishment on the second charge amounts to penalising him twice on the same allegations.

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A counter affidavit has been filed on behalf of the respondents stating that Marine Commando courses are organised involving various forces and the petitioner was the only person available and eligible to undergo the training, which he was directed to do by Office Memorandum dated 24.06.2011. The petitioner, being a member of a Uniformed force was expected to obey the movement orders served on him. He approached the Senior Commandant seeking exemption, but he was informed that he had to comply with the order. When he refused to do so, he was placed under suspension and Exhibit P1 memo of charges was served. It was only after holding an enquiry, in accordance with the rules laid down and the accepted procedure that Exhibit P7 order was passed. It is further submitted that the documents now relied upon by the petitioner were not produced before the

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W.P.(C).No.9390/13

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enquiry officer and all the contentions taken by the petitioner in the enquiry had been specifically dealt with and considered. It is further stated that writ petitions had been filed by the petitioner challenging his transfer to Singrani Colleries Company Ltd., Singrani (SCCL) as also his suspension order. By Exhibit R1(a) the writ petition was disposed of directing consideration of the petitioner's case. Though the contentions of the petitioner were accepted in part and he was granted a posting in Ramagundam in modification to earlier orders of transfer to Singrani. Petitioner again challenged the said transfer. By Exhibit R1(b), petitioner was directed to assume charge at Ramagundam and take up any further grievance with the authorities. It is further submitted that the Medical Board had certified the petitioner as being fully fit for service and no illness was detected by the Boards which examined the petitioner on 01.10.2009, and again on 15.10.2010. It is therefore contended that the petitioner had no proper reason for refusing to obey the orders deputing him for training and that as a member of a uniformed force he cannot contend that he is entitled to exemption from training.

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W.P.(C).No.9390/13

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I have considered the contentions advanced at considerable length. The principle contention of the petitioner is with regard to the merits of his case on the charges framed against him. In the absence of any procedural irregularity or allegations as to violation of principles of natural justice, it is not open to this Court in exercise of its jurisdiction under Article 226 of the Constitution of India to go into the findings of an enquiry by resorting to an exercise of re-appreciation of the evidence. The petitioner now seeks to rely on the documents which were not produced before the Enquiry Officer to establish his innocence of the charges alleged against him. This is not permissible in law. Further his contention that with regard to the 2^nd charge he had already suffered extension of duty for his delay in obeying the orders to proceed for election duty to Jharkand, it is submitted by the Assistant Solicitor General of India that such contention has found proper consideration at the hands of the appellate authority and the punishment has been considerably reduced taking note of the said contention as well.

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W.P.(C).No.9390/13

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In the above view of the matter, I am not persuaded to hold that the grounds raised by the petitioner are sufficient to justify interference by this Court into orders duly passed in disciplinary proceedings held in accordance with the prescribed procedure. The challenge against Exhibits P7, P9 and P10 therefore fails.

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However, on the contention raised by the petitioner with regard to the increment which fell due in July 2011, I find that the punishment which now stands imposed on the petitioner is only the withholding of one increment with cumulative effect for a period of five years. This punishment can only have prospective effect going by Exhibits P7, P9 and P10 orders. When the petitioner's normal increment fell due in July 2011, he was only under suspension. After the imposition of punishment, which is modified by Exhibit P9 also, only one increment of the petitioner could be withheld, that too with prospective effect. The earlier increment which fell due on July 2011 cannot, therefore, be withheld only on the ground that the petitioner's suspension has

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W.P.(C).No.9390/13

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been regularized ”as such”. It is trite law that an increment is an addition to pay which an employee becomes entitled to by reason of his length of service and can be denied only on the strength of orders passed by competent authorities. Since there was no order withholding the increment due to the petitioner which fell due in July,2011, the petitioner is entitled to be granted his normal increment. Exhibit P16 order dated 17.10.2012 denying such increment to the petitioner is, therefore, bad in law and the same is set aside. The petitioner will be entitled to the grant of his normal increment which fell due in July 2011 before the imposition of bar in increment, It is so declared.

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This writ petition is ordered accordingly.

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Anu Sivaraman, Judge

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K.K.Pramod v. the Director General, Central Industrial Security Force

Case brief

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K.K.Pramod v. the Director General, Central Industrial Security Force

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