- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 1201 OF 2002 ... Shri Suresh Shivaji Desale ...Petitioner v/s. Union of India & ors. ...Respondents ... Mr.S.C.Naidu for the Petitioner. None for the Respondents. ... CORAM: D.K.DESHMUKH & V.M.KANADE, JJ. DATED: 24TH JANUARY, 2008 P.C.: 1. By this petition the Petitioner challenges the order passed by the Appointing Authority dismissing - 2 - the Petitioner from service after finding him guilty of misconduct as also the order of the Appellate Authority confirming the order passed by the Appointing Authority. 2. The facts that are material and relevant for deciding this petition are that the Petitioner was working in the Central Industrial Security Fore as a Constable. He was posted as a Writer at JNPT Container Depot. He was on duty from 21 hours of 29th October, 1998 to 05.00 hours of 30th October, 1998. At 22.45 hours on 29-10-1998 the Deputy Commandant, CISF Unit searched the Petitioner and found that he was in possession of Rs.120/- (12 notes of 10 dimension). An order was issued in April, 1998 directing all the persons working in the Unit that they should not keep with them while on duty more than Rs.10/- on their person and that if any personnel on duty posses more than Rs.10/- that person should inform before starting the duty to the Duty Shift In-charge about his possession of the amount in excess of Rs.10/- and then the Duty Shift Incharge shall make an entry to that effect in the general diary. Thereafter the person concerned can keep the money with him. The Petitioner had not made - 3 - any declaration before entering the duty that he is in possession of money in excess of Rs.10/-. Thereafter a charge sheet was served on the Petitioner alleging that he has received illegal gratification from the truckdrivers for making entry of their vehicles in the register. 3. The Petitioner submitted the reply to the charge sheet. Thereafter, departmental inquiry was held. In the departmental inquiry, witnesses were examined on behalf of the Force. The Petitioner also examined himself. In the departmental inquiry, the Petitioner was found guilty. The Appointing authority, therefore, made an order imposing punishment of dismissal. The Petitioner filed an appeal against that order. That order was dismissed. The present petition has been filed challenging both the orders. 4. The learned Counsel appearing for the Petitioner submitted that the departmental inquiry was unfair and unjust. It was submitted that only misconduct that could have been alleged against the Petitioner was not reporting before joining the duty that he had on his person money in excess of Rs.10/-. He could not have been held guilty for accepting bribe from - 4 - the truck-drivers while on duty. It is submitted that such a charge was never proved against him. It was submitted that the money found on the person of the Petitioner was not co-related with the entries in the register. There is no evidence on record to show that the money found in the pocket of the Petitioner was given by truck-drivers. It was submitted that the other employees who were on duty at the time were not examined as witnesses. There was no complaint made by any truck driver that the Petitioner was demanding money. Statement of truck driver was not recorded. It was submitted that there is no evidence on record that the Petitioner had demanded bribe from any truck driver or that any truck-driver paid any bribe. It was then submitted that the punishment of dismissal is disproportionate to the misconduct found against the Petitioner. The learned Counsel for the Petitioner relied on the judgment of the Supreme Court in the case of Management of Coimbatore District Central Co.operative Bank v/s. Secretary, Coimbatore District Central Co.operative Bank employees Association & Anr, 2007 (4) SCC 669. 5. It is an admitted position that the Deputy Commandant, Central Industrial Security Force had - 5 - issued following office order: "It is hereby directed to all Unit personnel that more than Ten Rupees shall not be kept with him/them during the duty hours. If any duty personnel possess with more than ten rupees, that person should inform to the concerned duty shift-in-charge first, the shift-in-charge should make entry the matter in the General Diary. Thereafter the individual concerned can keep the said money with him. However, if any CISF personnel posses with more than Rs.10/- as declared money, during the time of searching in the duty hrs. strict disciplinary action will be taken against him/them." Thus, a duty was imposed on every personnel who is working on the force to make a declaration before starting his duty before the duty shift-in-charge, if he is in possession of amount in excess of Rs.10/- and if a person is in possession of money in excess of Rs.10/- and that declaration is made, that - 6 - declaration is to be entered in the register and then the money can be kept by that person. The intention behind issuing this office order is obvious. So far as the Petitioner is concerned, he was working as a Writer on the gate and was making entries of the trucks entering through the gate. The intention behind issuing office order was that if during duty hours any person on duty is found to be in possession of cash in excess of Rs.10/-, which he has not declared, an inference can be drawn that he has received the money while on duty as a bribe. The charge that was levelled against the Petitioner reads thus:- "Gross indiscipline and unbecoming conduct in that CISF No.892297388 constable Suresh Desle of CISF Unit JNPT Sheva, on 29th October 98 while in ‘C‘ shift duty from 21.00 hrs. to 5.00 hrs at container gate deployed as writer for making entries of incoming vehicles when checked at 22.45 hrs by Shri N.R.Rao, Deputy Commandant CISF Unit JNPT Sheva, was found in possession of Rs.120/- (Rs.one hundred twenty only) which he received as illegal gratification from Private Truck Drivers for - 7 - making entry in the prescribed register". The relevant portion from the reply to the charge-sheet submitted by the Petitioner reads as under: 4. Sir, the applicant’s third shift duty was on date 29th October, 98 from 2100 hrs to 0500 hrs, at the container gate, for the work of making notes of the entry (admission) of vehicles coming there. I was posted therefore this work. At a time of reporting on duty the applicant was lost in thoughts (worries) about the deteriorating health of his mother and about the talk which had taken place with the Deputy Commandant at the time of hearing. For this reason he forgot to inform the shift incharge that he (the applicant) had brought some money from his home and that the said money was to be paid to his father by the applicant after completing the third shift and going to the hospital by the vehicle(bus) of the first shift; and that the amount was more than Rs.10/-. - 8 - (5) Sir, in the course of the applicants duty on the date 29th October 1998 at 2245 hrs the Deputy commandant approached the applicant, who was making entries in the register in respect of the vehicles which were coming inside (the gate) at that time. As soon as the applicant saw the said superior officer, he stood up lifted the pocket of khaini (tobacco) which was lying on the table, and put in his pant pocket as otherwise the officer would have been angry with me on seeing the packet of slip the khaini packet in my pocket. The superior officer (Deputy Commandant) took out the aforesaid money together with the packet of khaini (from my pocket). It was the same money which the applicant’s wife had put there for his mother’s medicine. The applicant had not counted the money and had forgotten to mention the same to the shift incharge. 6. Sir, the applicant told the superior officer " I committed a mistake in forgetting to inform the shift incharge that I (applicant) was in possession of an amount of - 9 - more than ten rupees, which I had not counted". The officer disbelieved what he applicant stated and hence, the applicant lost his mental balance and tried to snatch from the officer’s hand, the money which the applicant had brought to buy his mother’s medicines. The reason was that, that was the only amount (left) at the fag end of the month which my wife and retained; I began to worry that if the medicines could not be given to my mother, what would be the effect on he (health). 7. Sir, because of the incident which occurred on date 29th October 1998 at 2248 hrs, the applicant’s mental balance was not well and that is why he gave conflicting statements in the preliminary enquiry the point is that the said amount which the applicant had not counted, was meant to buy my mothers medicine and to pay for my father’s meal in the hospital canteen for three days. From these statements quoted above following things emerge: - 10 - 1. The Petitioner admits that when his person was searched at 22.45 hrs. on 29th October, 1998, he was found in possession of 12, 10 rupees notes. 2. When the notes were seized from him, the Petitioner tried to snatch those notes from his superior officer. In the process two notes were partly torn. 3. In the statements of the Petitioner recorded during the preliminary inquiry he admitted that he received that money from the truck-drivers. 6. The only defence offered by the Petitioner was that while starting his duty he forgot, for the reasons mentioned by him like illness of his mother, to disclose to the duty shift-in-charge that he was in possession of Rs.120/-. It is clear from the disciplinary inquiry report that the disciplinary authority refused to belive the only explanation given by the Petitioner about his forgetting to make the declaration. It appears that the inquiry officer did not believe the version of the Petitioner because the practice of making declaration was in force - 11 - regularly for past so many months and the conduct of the Petitioner of trying to snatch the notes which were seized from him from the hands of the superior officer. The Appellate authority also did not believe the defence put up by the Petitioner. The Appellate authority also confirmed the finding recorded by the Disciplinary authority. The finding that the Petitioner cannot be believed that he forgot to make the declaration at the time of starting his duty that he was in possession of 120 rupees is a finding of fact. Normally when the disciplinary proceedings have been initiated and finding fact has been recorded in such inquiry, it cannot be interfered with unless such finding is based on no evidence or is perverse. In so far as the present case is concerned, the question to be decided by the authorities was whether the explanation given by the Petitioner that he was already having 120 rupees in his pocket when he started the duty, but he forgot to make the declaration, is to be believed or not. The authorities for the reasons disclosed by them in the circumstances of the case found that the explanation is not believable. In our opinion, this conclusion can neither be said to be impossible or perverse, and therefore, in our opinion, no interference at the - 12 - hands of this court is called for. Perusal of the record shows that the entire incident was admitted by the Petitioner. He has admitted that he was having 120 rupees in his pocket. He has admitted that amount was seized from his person. He has also admitted that he tried to snatch that money from his superior officer. In our opinion, considering the material on record finding recorded by the authorities is a possible view and therefore, no interference is called for at the hands of this court. In our opinion, the very purpose of issuing directions for making disclosure was to enable the authorities to draw an inference of the personnel receiving illegal gratification, in case the personnel is found in possession of undeclared amount and therefore, no fault can be found with the authorities drawing an inference of the Petitioner receiving illegal gratification on finding Rs.120/- on his person. 7. Then it was submitted that the punishment imposed on the Petitioner is disproportionate. In our opinion, the submission is not well founded. The Petitioner was found in possession of the money which the authorities found was accepted by the Petitioner - 13 - as bribe. Considering that the Petitioner was a member of the Industrial Security Force, the punishment of the dismissal, in our opinion, cannot be said to be disproportionate. While considering the question whether the punishment is disproportionate or not, apart from the misconduct committed by the Petitioner we have to consider the nature of the Force of which he is a Member. In our opinion, therefore, the punishment imposed on the Petitioner cannot be termed as disproportionate. 8. We thus, do not find any substance in the petition. Petition, therefore, fails and is dismissed. Rule discharged with no order as to costs. (D.K.DESHMUKH, J.) (V.M.KANADE, J.)