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2009 Supreme(Mad) 894
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE D. MURUGESAN & THE HONOURABLE MR. JUSTICE C.S. KARNAN
N. Subramanian
Versus
The Group Commandant Central Industrial Security Force Group Headquarter & Another
W.P.No.34587 of 2005
Decided on: 01-04-2009
For the Petitioner:L. Chandrakumar, Advocate.
For the Respondents:B. Shanthakumar, Advocate.
Ratios:
a. When charge is denied, burden of proof of such charge is on the employee.
b. Even when rules do not contemplate enquiry, principles of natural justice is to be imported and enquiry to be held.
c. Even for imposing minor punishment, enquiry is necessary.
d. If the charges are serious in nature and the order of punishment contains certain adverse imputation, remarks or comments on the delinquent employee which may be considered as a stigma or which may likely to affect his reputation in the eye of public, enquiry is necessary.
Headnote:(A) Service-Disciplinary enquiry-Minor punishment-Natural justice-Petitioner was charged with delinquency in performance of his duty-Charge memo issued-Petitioner denied charge and called for enquiry to disprove the allegations-Respondents rejected the request and imposed minor punishment-Appeal to authorities dismissed-He filed writ petition and contended that principles of natural justice was violated-State contested by saying that only minor punishment was imposed and no enquiry was contemplated by the rules-Held, When charge is denied, burden of proof is on the employee-Even for imposing minor punishment, enquiry is necessary-Even when rules do not contemplate enquiry, principles of natural justice is to be imported and enquiry to be held-Test to decide requirement of enquiry is stated-Writ petition allowed-Order of authorities set aside-Authorities were directed to hold enquiry and decide the charge.
(B) Service-Disciplinary enquiry-Minor punishment-Natural justice-When charge is denied, burden of proof is on the employee-Even when rules do not contemplate enquiry, principles of natural justice is to be imported and enquiry to be held.
When the charge is denied, denial of the same must necessarily be presumed as one of placing the burden of proving the charge on the respondents. Though a right is conferred on the disciplinary authority to order enquiry if he is satisfied on the facts of the case, such a right is not conferred under Rule 37 on the delinquent employee. In such a situation, it is for the Court to import the principles of natural justice for such an enquiry in the event the charge is denied. Enquiry is a bare minimum for a delinquent to expect from the employer before he is inflicted with the penalty, even in case of minor penalty. Para 4
An enquiry is contemplated in case where a delinquent refutes the charge and by such refutal, the employer is duty bound to prove the charge levelled against the delinquent by letting in evidence. This is more so when the delinquent employee seeks for such an enquiry in his explanation as well.
Para 12
(C) Service-Disciplinary enquiry-Minor punishment-Natural justice-Even for imposing minor punishment, enquiry is necessary.
Even in case where the rules do not make a provision for enquiry in cases where minor penalties are imposed, nevertheless, the compliance of the principles of natural justice may be required and the non compliance may vitiate the order. Para 6
(D) Service-Disciplinary enquiry-Minor punishment-Natural justice- If the charges are serious in nature and the order of punishment contains certain adverse imputation, remarks or comments on the delinquent employee which may be considered as a stigma or which may likely to affect his reputation in the eye of public, enquiry is necessary.
In case if the charges are serious in nature and nevertheless the employer proceeds to follow Rule 37 and the order of punishment contains certain adverse imputation, remarks or even comments on the delinquent employee which may be considered as a stigma or which may likely to affect his reputation in the eye of public, certainly the failure to conduct enquiry by giving an opportunity to such delinquent employee would vitiate the order for non compliance of the principles of natural justice. This principle also applies to the case where charges are minor, nevertheless some imputations/ observations are made against the delinquent. Para 6
(E) Service-Disciplinary enquiry-Minor punishment-Natural justice- Even when rules do not contemplate enquiry, principles of natural justice is to be imported and enquiry to be held-Test to decide requirement of enquiry is stated.
The test to decide whether an enquiry is required or not is not the mere fact of minor penalty is imposed, but the nature of charges, the nature of observations or findings of the disciplinary authority while passing final orders of penalty. While deciding the question as to whether the failure on the part of the employer to hold an enquiry in the absence of rules would by itself vitiate the order, the Court must keep the above principles in mind. This is more so when the delinquent employee seeks for such an enquiry before he is mulcted with any penalty. Para 6
D. Murugesan, J.
1. The petitioner was appointed to the Central Industrial Security Force during the year 1976 as a Constable. He was issued with a charge memo dated 11. 2004 containing the following charge:-
"CISF No.763470027 HC(GD) N. Subramanian of CISF Unit CPCL Manali, Chennai-68, when detailed for "A" shift duty from 0500 hrs to 1300 hrs on 26.09.2004, during shift mounting has voluntarily requested the shift I/c to detail at ETP-II gate with an ulterior motive on the pretext that some relatives would meet him at ETP-II gate. Accordingly he was detailed at ETP-II gate. At about 0550 hrs on 26.09.2004 SI(Exe) L.Stalin I/c CIW and Constable (CIW) M. Rajan of CISF Unit CPCL Manali who were returning after completion of ambush duty noticed suspicious movement of Tempo Van (Model 407), coming out of ETP-II gate but fled towards Thiruvottiyur, before the CIW personnel tried to stop the vehicle. Being the Gate I/c he failed to record the movement of the vehicle through the ETP-II gate. The above act on the part of CISF No.763470027 HC(GD) N. Subramanian tantamounts to gross misconduct, indiscipline and dereliction of duty. Hence the charge."
By explanation dated 111. 2004, he disputed the charge and had also stated that if an enquiry is held, he would certainly establish that the charge is false and unsubstantiated and the action is only to victimize him. In spite of such denial and the request for enquiry, the Deputy Commandant, Central Industrial Security Force, the second respondent passed the impugned order dated 211. 2004 imposing a minor penalty of withholding of one increment for a period of one year which will not have the effect of postponing his future increments of pay. The said order was taken on appeal before the Group Commandant, Central Industrial Security Force, the first respondent and the same was rejected on 22. 2005. The orders of both the original authority as well as the appellate authority are questioned in this writ petition.
2. We have heard the learned counsel for the petitioner and the learned counsel for the respondents.
3. The only ground of challenge is that inasmuch as the charge is denied, the respondents ought to have conducted enquiry before imposing the penalty. The respondents ought to have conducted enquiry as the same was requested. On the other hand, it is the stand of the respondents that in the event the respondents impose a minor penalty, no enquiry is contemplated in terms of Rule 37 of the Central Industrial Security Force Rules, 2001 (for short, "the Rules"). The punishment of withholding of increment is a minor penalty in terms of Rule 34(ix) of the Rules. Hence no enquiry is contemplated.
4. We have carefully considered the above submissions. Of course, as per Rule 34(ix) of the Rules, withholding of increment is a minor penalty. Section 37 of the Rules reads as under:-
"37. Procedure for imposing minor penalties: (1) No order imposing any of minor penalties specified in rule 34 shall be made except after-
(a) informing the enrolled member in writing of the imputations of misconduct or misbehaviour on which it is proposed to be taken and giving him a reasonable opportunity of making such representation as he wishes to make against the proposal;
(b) holding an inquiry, if the disciplinary authority so desires, in the manner laid down in sub-rules (3) to (22) to rule 36;
(c) taking the representation, if any, submitted by the enrolled member under Clause (a) and the record of inquiry, if any, held under Clause (b) into consideration; and
(d) recording the findings on each imputation of misconduct or misbehaviour."
Rule 37(1)(b) empowers that in the event the disciplinary authority so desires can order enquiry. Learned counsel for the respondents would submit that only in the event the disciplinary authority desires depending upon the case warranting an enquiry, such an enquiry could be ordered and not otherwise. In our opinion, the stand taken by the respondents cannot be acc
