Subash Naik vs The Union of India (UOI)

D. Murugesan, J.—The petitioner was appointed as a constable in the Central Industrial Security Force during July 1989. While he was

working at Manali, he was issued with the following three charges:

Article of Charge - I

That No. 891401832 Constable Subash Naik of CISF Unit, CPCL, Manali during his A shift duty from 0500 hrs. to 1300 hrs. at West Gate II

on 18.05.2005 was found handing over of illegally obtained money from a driver of a vehicle, to a cleaner namely R. Sivaraman with the intention

to receive it later for personal gain.

Article of Charge - II

That No. 891401832 Constable Subash Naik of CISF Unit, CPCL, Manali, while he was on A shift duty from 0500 hrs. to 1300 hrs. at West

Gate II on 18.5.2005 at about 1245 hrs. managed to escape from the place of searching when searching was carried out by Insp/Exe. M.

Kannaian, to avoid search on him.

Article of Charge-III

No. 891401832 Constable Subash Naik of CISF Unit, CPCL, Manali, failed to improve his conduct and adhere to discipline even after he earned

6 punishments as per his service records and thus, become incorrigible in character as a mamber of the Force.

As the explanation of the petitioner was not accepted, an enquiry was conducted and the enquiry officer found all the charges proved. Based on

the enquiry officer''s report, the disciplinary authority imposed the punishment of reduction of pay by one stage for two years and the said reduction

will have the effect of postponing his future increments of pay. The petitioner took out an appeal, which was rejected and thereafter, a revision,

which was also rejected. Aggrieved by the imposition of punishment, the present writ petition has been filed.

The learned Counsel for the petitioner submitted that as far as the first charge is concerned, neither the driver nor the cleaner was examined. The

statement recorded from the cleaner was heavily relied upon by the enquiry officer to find that the first charge is proved. The report was relied

upon behind the back of the petitioner and he was not given any opportunity to refute the said statement. Further, the petitioner had requested

examination of the Assistant Sub Inspector and the constable, who were at the duty time and the non-examination of those witnesses had seriously

prejudiced the petitioner, as he has handed over the charge after the duty time was over and the charge that he escaped from the place to avoid the

search is, therefore, false. He would also submit that insofar as the third charge that he earned six punishments, those charges are all minor and

therefore, that cannot be a ground for imposing a major penalty. We have heard the learned Counsel appearing for the respondent.

Asfaras the non-examination of the cleaner is concerned, it is true that when the charge is made for collection of bribe from the driver and

handing over of the said money to the cleaner by the delinquent employee and especially when the said amount has been recovered from the

cleaner, the examination of the cleaner in the enquiry is necessary to prove the charges. Failure to enquire the cleaner, in the said circumstances,

would result in causing prejudice to the delinquent employee, especially when the statement recorded from the said cleaner during the preliminary

enquiry was relied upon by the enquiry officer. In this context, the learned Counsel would rely upon the judgment of a Division Bench of this Court

in B. Padmaiah v. The Union of India and 5 Ors. 2007 W L.R. 7.

As far as the proposition of law is concerned, we are entirely in agreement with the said judgment. But, we are not inclined to apply the ratio laid

down in the said judgment in view of the facts of this case. Though the first charge relates to the collection of money from the driver and handing

over the said money to the cleaner of a truck by the delinquent employee and the said cleaner has not been examined to prove the said charge,

from the evidence of P.Ws.2 to 4, who are official witnesses, it is seen that after the occurrence, the cleaner was taken to the office and a search

was conducted and from him a sum of Rs. 60/- was recovered. The cleaner had given a statement that the said money was handed over to him by

the delinquent employee. He also identified the delinquent employee, who was present at the relevant point of time. This is spoken to by P.W. 2 as

well as by P.Ws. 3 and 4. Further, P.Ws. 3 and 4 have spoken that after the seizure of Rs. 60/- was made from the cleaner, the delinquent

employee, who was present at that time, in order to avoid further search, had escaped from the said place. P.Ws.2 to 4 are categorical as to the

above act of the delinquent employee in escaping from the place presumably that by such act, he could avoid further search. By the above

evidence, the second charge is proved. If once the second charge is proved, naturally the disciplinary authority can draw an inference that the

delinquent employee had collected the said amount of Rs. 60/- from the driver and the said money alone was handed over to the cleaner, which

was seen by P.W.2. In the circumstances, merely because the cleaner was not examined, the petitioner/ delinquent employee can neither claim that

the charges are not proved nor it can be construed that without any evidence, the disciplinary authority had given a finding that the first charge is

proved.

That apart, the third charge, though in respect of minor penalties, cannot be disputed, whereby the petitioner had been earlier inflicted with six

minor penalties. In these circumstances, the finding of the enquiry officer holding all the three charges as proved cannot be found fault with. It is

well settled law that in a disciplinary proceeding, strict rule of evidence is not required and preponderance of probabilities of the case would be

sufficient for holding that the misconducts are proved.

In these circumstances, we are not inclined to interfere with the impugned order of punishment. Accordingly, the writ petition is dismissed. No

costs.