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High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE ELIPE DHARMA RAO
& THE HONOURABLE MR. JUSTICE T.S. SIVAGNANAM
Mohammed Sadique
Versus
Union of India, Rep. by its Secretary, Ministry of Home Affairs, New Delhi & Others
W.P. No.19929 of 2009
Decided on: 14-07-2009
Certiorarified Mandamus - Disciplinary Action - CISF Rules, 1969, Rule 35, Rule 50 - The court discussed the charges against the petitioner under Rule 35 of the CISF Rules, 1969 and the punishment imposed. It highlighted the issue of double jeopardy and the lack of sustainability of the second punishment imposed. The court set aside the impugned orders.
Fact of the Case:
The petitioner, a constable, was issued charge memos for submitting applications bypassing official channels. He was awarded fines and later removed from service. The petitioner's appeals were rejected, and he filed a writ petition seeking reinstatement.
Finding of the Court:
The court found that the second charge was based on the same set of materials as the first charge, rendering it unsustainable. It set aside the impugned orders and allowed the writ petition.
Issues: The issues revolved around the charges against the petitioner, the sustainability of the second punishment, and the jurisdiction of the High Court.
Ratio Decidendi: The court held that the second charge, based on the same set of materials as the first charge, could not be sustained, highlighting the principle of double jeopardy.
Final Decision: The court set aside the impugned orders and allowed the writ petition, directing reinstatement of the petitioner.
Elipe Dharma Rao, J.
1. This Writ Petition has been filed, seeking to issue a Writ of Certiorarified Mandamus, to call for the records in order passed in No. V-11014/13/2001/L&R(SZ) 3306 dated 14. 2001 on the file of the office of the Deputy Inspector General Central Industrial Security Force, Chennai-90 confirming the order passed by the Disciplinary Authority in No.V-12014/CISF/6RB/DISC/MAJ/MDS/2001678 dated 11. 2001 on the file of the third respondent and quash the same as punishment is execessive, arbitrary, disproportionate and against the law and direct the fifth respondent to reinstate the petitioner with backwages.
2. The case of the petitioner is that while he was working as Constable, he was issued with a charge memo under Rule 35 of the CISF Rules, 1969 on 16. 1999 on the allegation that he has submitted an Application on 30.4.1999 to various District and CISF personnel bypassing the prescribed official channel to redress his grievance, for which he submitted his reply dated 26. 1999, narrating all the facts, but the same was not accepted and he was awarded with the punishment of fine equivalent to seven days wages. As against the said order, the petitioner filed an Appeal and the same was also rejected.
3. The further case of the petitioner is that he received another memo of charge dated 18. 2000 alleging the same charge that he had filed his Application dated 30.4.1999 and he had submitted frivolous and mischievous Applications against his superior Officer to the CISF and Civil authorities, for which he submitted his reply dated 29. 2000. Thereafter, the enquiry proceeding was conducted ex parte because of the fact that the request of the petitioner to conduct the enquiry proceeding in Tamil or English was not considered and the same was conducted in Hindi only. Only three witnesses were examined and these witnesses are only from the side of the prosecution and two witnesses were examined and he did not get an opportunity to produce his evidence or to cross-examine the prosecution witness.
4. The further case of the petitioner js that after conducting enquiry, he was removed from service by an order dated 11. 2001 passed by the third respondent. As against the said order, the petitioner preferred an Appeal before the fourth respondent and the same was disposed of by an order dated 4. 2001 with an observation that the Disciplinary Authority had rightly dealt with the petitioner and for the proven delinquency, the penalty imposed is justified. For the same charge, when punishment of fine has already been awarded, the second punishment of removal from service imposed by an order dated 11. 2001 and confirmed by the Appellate Authority is unsustainable in law and amounts to double jeopardy.
5. The further case of the petitioner is that he filed W.P. No.32 of 2002 before the High Court of Jharkhand, believing that the said Court has territorial jurisdiction and the said Writ Petition was dismissed by an order dated 112. 2003 on the ground of lack of jurisdiction. The Appeal filed by the petitioner against the said order in L.P.A. No.254 of 2004 was also dismissed by an order dated 4. 2005 on the same ground of lack of jurisdiction. Hence, the petitioner is constrained to file the present Writ Petition.
6. The third respondent has filed the counter affidavit, denying the averments made in the affidavit filed in support of the Writ Petition.
7. Heard the learned counsel appearing for the petitioner and the respondents.
8. The petitioner was issued with a charge-sheet dated 16. 1999 for the lapses committed by him, which reads as follows:
"Statement of Article of Charge Framed Against No.952291190 Constable MD. Sadique of Cisf Unit,Shar Centre Sriharikota That the said No.952291190 Constable Md. Sadique of CISF Unit SHAR Centre, Sriharikota, has submitted an Application dated 30.4.1999 to various District and CISF Authorities bypassing the prescribed official channel to redress his grievances. This act o
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