Commandant Central Industcial Security Force Unit Tpt, Tuticorin 628 004 v. N.subramanian

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 30.09.2019 CORAM: THE HONOURABLE MR.JUSTICE S.MANIKUMARANDTHE HONOURABLE MR.JUSTICE SUBRAMONIUM PRASAD Review Application No.94 of 2019inWA.No. 2558 of 2018inWP.No. 30695 of 2012 1.Union of India Represented by its Secretary Ministry of Home Affairs North Block, Central Secretariat New Delhi 110 011. 2.The Inspector General/South Sector Central Industrial Security Force South Sector, Chennai Port Trust No.1, Rajaji Salai, Chennai 600 001.3.The Deputy Inspector General South Zone, Central Industrial Security Force Rajaji Bhavan, Besant Nagar Chennai 600 090. 4.Commandant Central Industcial Security Force Unit TPT, Tuticorin 628 004....Applicants /Appellants/Petitioners -vs- N.Subramanian... Respondent/Respondent/Respondent Review Application has been filed, for a review of theorder, dated 08.01.2019, passed by a Division Bench of thisCourt, in W.A.No.2558 of 2018. W.A.No.2558 of 2018: Writ Appeal filed under Clause 15 of the Letters Patentagainst the Order dated 15.02.2018 made in W.P.No.30695 of2012.https://hcservices.ecourts.gov.in/hcservices/ WP.NO.30695/2012: Petition filed Under Article 226 of the Constitution ofIndia praying to issuance a Writ of Certiorarified Mandamus tocall for the records of the 2nd respondent made in referenceNo. V-15014/L&R/SS/ Rev/NS/2012-133 dated 27 April 2012 andquash the same and consequently direct the respondents toreinstate the petitioner into service with all attendantservice benefits along with back wages and continuity ofservice. Mr.N.Subramanian, respondent herein, joined the serviceof CISF as Security Guard on 14.7.1976 and the said post wassubsequently reclassified as Constable in the year 1985. Inthe year 1998, he was promoted as Head Constable. However,during his service, a surprise check was conducted on18.8.2009 and he was found having amount in excess of theamount declared by him in the General Diary, as per the rules.According to the officials, who conducted the inspection, theamounts were unaccounted and therefore, it was presumed thathe must have received the unaccounted money, by way of illegalgratification from the Truck drivers, who were passing throughthe Check Post. In this regard, disciplinary proceedings wereinitiated against him and another constable Mr.P.Pandian, whowas also posted along with him at the same Check Post. As perthe rules, charge memo, dated 15.9.2009 was issued. Though hefiled written statement of defence to the charges, an enquriywas ordered to be conducted. Witnesses were examined. Heexamined himself and documents were marked on both sides.After careful consideration, the enquiry officer found thatthe charges as proved. Based on the findings of the enquiryofficer, the disciplinary authority passed an order dismissinghim from service. Against which, an appeal was filed againstthe punishment, but the appellate authority has rejected thesame on 29.8.2011, as devoid of merits. Revision filed alsocame to be rejected on 27.4.2012. 2.Aggrieved by the orders of the disciplinary,appellate and revisional authorities, he filed W.P.No.30695 of2012. Writ Court, while considering the exoneration of otherconstable, Mr.P.Pandian, who was issued with a similar chargesheet and also in the absence of direct evidence, vide order,dated 15.02.2018, set aside the order passed in the revision,https://hcservices.ecourts.gov.in/hcservices/dated 27.04.2012 and consequently, directed the appellants to pay all the terminal benefits, as he had attained the age ofsuperannuation. 2.Aggrieved by the orders of the disciplinary,appellate and revisional authorities, he filed W.P.No.30695 of2012. Writ Court, while considering the exoneration of otherconstable, Mr.P.Pandian, who was issued with a similar chargesheet and also in the absence of direct evidence, vide order,dated 15.02.2018, set aside the order passed in the revision,https://hcservices.ecourts.gov.in/hcservices/dated 27.04.2012 and consequently, directed the appellants to pay all the terminal benefits, as he had attained the age ofsuperannuation. 3.Against the order of the learned single Judge, theappellants have filed W.A.No.2558 of 2018. Considering theorder made in W.P.(MD)No.8885 of 2013, dated 10.11.2017, filedby Mr.P.Pandian, who was also issued with a similar chargesheet and the orders in W.A.(MD)No.520 of 2018, dated30.10.2018, a Hon'ble Division Bench of this Court, videorder, dated 08.01.2019, dismissed the same. Order reads thus,"12. Though the appellants filed W.A. No.2558of 2018 on the very same grounds as raised in thepresent appeal, Madurai Bench of the Madras HighCourt did not agree with the department's case anddismissed W.A. (MD) No.520 of 2018 on 30.10.2018insofar as the matter pertains to Pandian, isconcerned. 13. As stated supra, grounds raised in thepresent appeal, evidence and the materials on recordare one and the same, and there cannot be anydivergent views. If there is any decision renderedon the same set of facts and law, a Coordinate Benchis bound to follow the same, unless and until thereis a strong reason to differ on law, which on thefacts and circumstances of the case, does not arise.Therefore, inasmuch as facts pleaded, evidenceadduced etc. are one and the same, we are inclinedto follow the decision made in W.A. (MD) No.520 of2018 dated 30.10.2018. Accordingly, instant writ appeal is dismissed.As the respondent has attained the age ofsuperannuation on 31.07.2014, appellants aredirected to notionally reinstate the writ petitionerin service with all consequential service andmonetary benefits including back wages, increment,if any, arrears of pay benefits, etc. The aforesaidaction of reinstatement and payment of monetarybenefits shall be made by the respondents within aperiod of two months from the date of receipt of acopy of this judgment. No costs. Consequently, theconnected civil miscellaneous petition is closed." 4.Seeking review of the order made in W.A.No.2558 of2018, dated 08.01.2019, instant review petition has beenfiled, on the grounds inter alia that, "(b) The Hon'ble Division Bench has notconsidered that the respondent herein was"Dismissed from Service" on the ground that thearticle of charges was proved and the appeal beforethe appellate authority is rejected and the reviewbefore the revisional authority is also rejected.(c) The Hon'ble Division Bench has notconsidered that W.P.(MD)No.8885 of 2013 was allowedhttps://hcservices.ecourts.gov.in/hcservices/on the ground that there is no evidence in the case of Head Constable, but in the respondent's case,there is evidence. (d) The Hon'ble Division Bench has dismissedthe writ appeal on the ground that different viewcannot be taken if there is any decision renderedon the same set of facts and law and that aCoordinate Bench is bound to follow the same. Butwhen the facts are not properly appreciated, whiledeciding W.P.No.30695 of 2012, then the Hon'bleDivision Bench ought to have decide the issueindependently." of Head Constable, but in the respondent's case,there is evidence. (d) The Hon'ble Division Bench has dismissedthe writ appeal on the ground that different viewcannot be taken if there is any decision renderedon the same set of facts and law and that aCoordinate Bench is bound to follow the same. Butwhen the facts are not properly appreciated, whiledeciding W.P.No.30695 of 2012, then the Hon'bleDivision Bench ought to have decide the issueindependently." 5.ThoughMr.G.Rajagopalan,learnedAdditionalSolicitor General of India, appearing for the reviewpetitioner sought to review the judgment made in W.A.No.2558of 2018, dated 08.01.2019, on the grounds, stated supra, weare not inclined to do so, for the reason that review is notan appeal in disguise. Review can be made only if there isany mistake apparent on the face of the record or there is anyclerical error in the order sought to be reviewed. Referencecan be made to a few decisions, on the point of review. (i)The Hon'ble Supreme Court in Lily Thomas v. Union ofIndia, reported in 2000 (6) SCC 224, while considering thescope of review and the limitations imposed on its exerciseunder, Article 137 of the Constitution of India, held asfollows: “52. The dictionary meaning of the word"review" is the act of looking, offer, somethingagain with a view to correction or improvement. Itcannot be denied that the review is the creation ofa statute. This Court in Patel Narshi Thakershi &Ors. Vs. Pradyunmansinghji Arjunsinghji [AIR (1970)SC 1273], held that the power of review is not aninherent power. It must be conferred by law eitherspecifically or by necessary implication. The reviewis also not an appeal in disguise. It cannot bedenied that justice is a virtue which transcends allbarriers and the rules or procedures ortechnicalities of law cannot stand in the way ofadministration of justice. Law has to bend beforejustice. If the Court finds that the error pointedout in the review petition was under a mistake andthe earlier judgment would not have been passed butfor erroneous assumption which in fact did not existand its perpetration shall result in miscarriage ofjustice nothing would preclude the Court fromrectifying the error. This Court in S.Nagaraj &Ors.etc. Vs. State of Karnataka & Anr.etc. [1993Supp. (4) SCC 595] held:"19. Review literally and even judicially meansre-examinationorre-consideration.Basichttps://hcservices.ecourts.gov.in/hcservices/philosophy inherent in it is the universal acceptance of human fallibility. Yet in the realm oflaw the courts and even the statutes lean stronglyin favour of finality of decision legally andproperly made. Exceptions both statutorily andjudicially have been carved out to correctaccidental mistakes or miscarriage of justice. Evenwhen there was no statutory provision and no ruleswere framed by the highest court indicating thecircumstances in which it could rectify its orderthe courts culled out such power to avoid abuse ofprocess or miscarriage of justice. In Raja PrithwiChand Law Choudhury v. Sukhraj Rai the Court observed that even though no rules hadbeen framed permitting the highest Court to reviewits order yet it was available on the limited andnarrow ground developed by the Privy Council and theHouse of Lords. The Court approved the principlelaid down by the Privy Council in Rajunder NarainRae v. Bijai Govind Singh (1836) 1 Moo PC 117 thatan order made by the Court was final and could notbe altered: '...nevertheless, if by misprision in embodyingthe judgments, by errors have been introduced, theseCourts possess, by Common Law, the same power whichthe Courts of record and statute have of rectifyingthe mistakes which have crept in.... The House ofLords exercises a similar power of rectifyingmistakes made in drawing up its own judgments, andthis Court must possess the same authority. TheLords have however gone a step further, and havecorrected mistakes introduced through inadvertencein the details of judgments; or have suppliedmanifest defects in order to enable the decrees tobe enforced, or have added explanatory matter, orhave reconciled inconsistencies.” Basis for exercise of the power was stated in thesame decision as under: 'It is impossible to doubt that the indulgenceextended in such cases is mainly owing to thenatural desire prevailing to prevent irremediableinjustice being done by a Court of last resort,where by some accident, without any blame, the partyhas not been heard and an order has beeninadvertently made as if the party had been heard.' Rectification of an order thus stems from thefundamental principle that justice is above all. Itis exercised to remove the error and not fordisturbing finality. When the Constitution wasframed the substantive power to rectify or recallthe order passed by this Court was specificallyprovided by Article 137 of the Constitution. Ourhttps://hcservices.ecourts.gov.in/hcservices/Constitution-makers who had the practical wisdom to visualise the efficacy of such provision expresslyconferred the substantive power to review anyjudgment or order by Article 137 of theConstitution. And clause (c) of Article 145permitted this Court to frame rules as to theconditions subject to which any judgment or ordermay be reviewed. In exercise of this power Order XLhad been framed empowering this Court to review anorder in civil proceedings on grounds analogous toOrder XLVII Rule 1 of the Civil Procedure Code. Theexpression, for any other sufficient reason in theclause has been given an expanded meaning and adecree or order passed under misapprehension of truestate of circumstances has been held to besufficient ground to exercise the power. Apart fromOrder XL Rule 1 of the Supreme Court Rules thisCourt has the inherent power to make such orders asmay be necessary in the interest of justice or toprevent the abuse of process of Court. The Court isthus not precluded from recalling or reviewing itsown order if it is satisfied that it is necessary todo so for sake of justice." The mere fact that two views on the samesubject are possible is no ground to review theearlier judgment passed by a Bench of the samestrength. 53. This Court in M/s.Northern India Caterers(India) Ltd. Vs. Lt.Governor of Delhi considered the powers of this Court underArticle 137 of the Constitution read with Order 47Rule 1 CPC and Order 40 Rule 1 of the Supreme CourtRules and held: The mere fact that two views on the samesubject are possible is no ground to review theearlier judgment passed by a Bench of the samestrength. 53. This Court in M/s.Northern India Caterers(India) Ltd. Vs. Lt.Governor of Delhi considered the powers of this Court underArticle 137 of the Constitution read with Order 47Rule 1 CPC and Order 40 Rule 1 of the Supreme CourtRules and held: "It is well settled that a party is notentitled to seek a review of a judgment delivered bythis Court merely for the purpose of a rehearing anda fresh decision of the case. The normal principleis that a judgment pronounced by the Court is final,and departure from that principle is justified onlywhen circumstances of a substantial and compellingcharacter make it necessary to do so. Sajjan Singhv. State of Rajasthan, (1965) 1 SCR 933 at p.948.For instance, if the attention of the Court is notdrawn to a material statutory provision during theoriginal hearing. G.L. Gupta v. D.N. Mehta, (1971) 3SCR 748 at p.760. The Court may also reopen itsjudgment if a manifest wrong has been done and it isnecessary to pass an order to do full and effectivejustice. O.N.Mohindroo v. Dist. Judge, Delhi, (1971)2 SCR 11 at p.27. Power to review its judgments hasbeen conferred on the Supreme Court by Art.137 ofthe Constitution, and that power is subject to thehttps://hcservices.ecourts.gov.in/hcservices/provisions of any law made by Parliament or the rules made under Art.145. In a civil proceeding, anapplication for review is entertained only on aground mentioned in O. XLVII, Rule 1 of the Code ofCivil Procedure and in a criminal proceeding on theground of an error apparent on the face of therecord. (Order XL, R.1, Supreme Court Rules, 1966).But whatever the nature of the proceeding, it isbeyond dispute that a review proceeding cannot beequated with the original hearing of the case, andthe finality of the judgment delivered by the Courtwill not be reconsidered except where a glaringomission or patent mistake or like grave error hascrept in earlier by judicial fallibility. ChandraKanta v. Sheikh Habib (1975) 3 SCR 935." 54.Article 137 empowers this Court to reviewits judgments subject to the provisions of any lawmade by Parliament or any rules made under Article145 of the Constitution. The Supreme Court Rulesmade in exercise of the powers under Article 145 ofthe Constitution prescribe that in civil cases,review lies on any of the ground specified in Order47 Rule 1 of the Code of Civil Procedure whichprovides: "Application for review of judgment -(1) Anyperson considering himself aggrieved - (a) by a decree or order from which an appealis allowed, but from which, no appeal has beenpreferred. (b) by a decree or order from which no appealis allowed, or (c) by a decision on a reference from a Courtof Small Causes, and who, from the discovery of newand important matter or evidence which, after theexercise of due diligence, was not within hisknowledge or could not be produced by him at thetime when the decree was passed or order made, or onaccount of some mistake or error apparent on theface of the record, or for any other sufficientreason, desires to obtain a review of the decreepassed or order made against him, may apply for areview of judgment to the Court which passed thedecree or made the order." Under Order 40 Rule 1 of the Supreme Court Rules noreview lies except on the ground of error apparenton the face of the record in criminal cases.” (ii) In Aribam Tuleshwar Sharma v. Aibam Pishak Sharma ,reported in AIR 1979 SC 1047, the Hon'ble Supreme Court heldthat,https://hcservices.ecourts.gov.in/hcservices/"there is nothing in Article 226 of the Under Order 40 Rule 1 of the Supreme Court Rules noreview lies except on the ground of error apparenton the face of the record in criminal cases.” (ii) In Aribam Tuleshwar Sharma v. Aibam Pishak Sharma ,reported in AIR 1979 SC 1047, the Hon'ble Supreme Court heldthat,https://hcservices.ecourts.gov.in/hcservices/"there is nothing in Article 226 of the Constitution to preclude a High Court fromexercising the power of review which inheres inevery court of plenary jurisdiction to preventmiscarriage of justice or to correct grave andpalpable errors committed by it. But, there aredefinitive limits to the exercise of the power ofreview. The power of review may be exercised on thediscovery of new and important matter or evidencewhich, after the exercise of due diligence was notwithin the knowledge of the person seeking thereview or could not be produced by him at the timewhen the order was made; it may be exercised wheresome mistake or error apparent on the face of therecord is found; it may also be exercised on anyanalogous ground. But, it may not be exercised onthe ground that the decision was erroneous onmerits. That would be the province of a court ofappeal. A power of review is not to be confused withappellate powers which may enable an appellate courtto correct all manner of errors committed by thesubordinate court." (iii)In yet another decision in Rajindersingh v. Lt.Governor reported in 2005 (13) SCC 289, the Hon'ble SupremeCourt held that law is well settled that the power of judicialreview of its own order by the High Court inheres in everyCourt of plenary jurisdiction to prevent miscarriage ofjustice. (iv) In Union of India v. Kamal Sengupta reported in 2008(8) SCC 612, the Hon'ble Supreme Court, at Paragraphs 14 and15, has held that, "14. At this stage it is apposite to observethat where a review is sought on the ground ofdiscovery of new matter or evidence, such matter orevidence must be relevant and must be of such acharacter that if the same had been produced, itmight have altered the judgment. In other words,mere discovery of new or important matter orevidence is not sufficient ground for review exdebito justiciae. Not only this, the party seekingreview has also to show that such additional matteror evidence was not within its knowledge and evenafter the exercise of due diligence, the same couldnot be produced before the Court earlier. 15. The term `mistake or error apparent' by itsvery connotation signifies an error which is evidentper se from the record of the case and does notrequire detailed examination, scrutiny andelucidation either of the facts or the legalposition. If an error is not self-evident anddetection thereof requires long debate and processof reasoning, it cannot be treated as an errorhttps://hcservices.ecourts.gov.in/hcservices/apparent on the face of the record for the purpose of Order 47 Rule 1 CPC or Section 22(3)(f) of theAct. To put it differently an order or decision orjudgment cannot be corrected merely because it iserroneous in law or on the ground that a differentview could have been taken by the Court/Tribunal ona point of fact or law. In any case, whileexercising the power of review, the concernedCourt/Tribunal cannot sit in appeal over itsjudgment/decision." (v)Referring to various decisions of the Hon'ble ApexCourt as well as this Court, a Hon'ble Division Bench of thisCourt, in Infant Jesus Teacher Training vs. M.Manikandan(Rev.Appn.No.38 of 2010 in W.A.No.1145 of 2009, dated31.08.2010), considered the scope of review and at paragraphs14, 31 and 32, held as follows:- “14.Consideringthescopeofreviewjurisdiction and holding "mistake or error apparenton the face of the record must be self evident anddoes not require a process of reasoning, in ParsionDevi v. Sumitri Devi, ((1997) 8 SCC 715), the SupremeCourt has held as under: (v)Referring to various decisions of the Hon'ble ApexCourt as well as this Court, a Hon'ble Division Bench of thisCourt, in Infant Jesus Teacher Training vs. M.Manikandan(Rev.Appn.No.38 of 2010 in W.A.No.1145 of 2009, dated31.08.2010), considered the scope of review and at paragraphs14, 31 and 32, held as follows:- “14.Consideringthescopeofreviewjurisdiction and holding "mistake or error apparenton the face of the record must be self evident anddoes not require a process of reasoning, in ParsionDevi v. Sumitri Devi, ((1997) 8 SCC 715), the SupremeCourt has held as under: "7. It is well settled that review proceedingshave to be strictly confined to the ambit and scopeof Order 47 Rule 1 CPC. In Thungabhadra IndustriesLtd. v. Govt. of A.P.(AIR 1964 SC 1372 = (1964) 5 SCR174) (SCR at p. 186) this Court opined:“What, however, we are now concerned with iswhether the statement in the order of September 1959that the case did not involve any substantialquestion of law is an error apparent on the face ofthe record. The fact that on the earlier occasion theCourt held on an identical state of facts that asubstantial question of law arose would not per se beconclusive, for the earlier order itself might beerroneous. Similarly, even if the statement waswrong, it would not follow that it was an errorapparent on the face of the record, for there is adistinction which is real, though it might not alwaysbe capable of exposition, between a mere erroneousdecision and a decision which could be characterisedas vitiated by error apparent. A review is by nomeans an appeal in disguise whereby an erroneousdecision is reheard and corrected, but lies only forpatent error.” ...... 31. The review proceeding is not by way of anappeal. Holding that the review must be confined toerror apparent on the face of the record and re-appraisal of the entire evidence on record forfinding the error would amount to exercise ofAppellate Jurisdiction, which is not permissible, inhttps://hcservices.ecourts.gov.in/hcservices/Meera Bhanja v. Nirmala Kumari Choudhury, (1995) 1 SCC 170, the Supreme Court held as under: ...... 31. The review proceeding is not by way of anappeal. Holding that the review must be confined toerror apparent on the face of the record and re-appraisal of the entire evidence on record forfinding the error would amount to exercise ofAppellate Jurisdiction, which is not permissible, inhttps://hcservices.ecourts.gov.in/hcservices/Meera Bhanja v. Nirmala Kumari Choudhury, (1995) 1 SCC 170, the Supreme Court held as under: "8. It is well settled that the reviewproceedings are not by way of an appeal and have tobe strictly confined to the scope and ambit of Order47, Rule 1, CPC. In connection with the limitation ofthe powers of the court under Order 47, Rule 1, whiledealing with similar jurisdiction available to theHigh Court while seeking to review the orders underArticle 226 of the Constitution of India, this Court,in the case of Aribam Tuleshwar Sharma v. AribamPishak Sharma ((1979 (4) SCC 389), speaking throughChinnappa Reddy, J., has made the following pertinentobservations: (SCC p. 390, para 3) “It is true asobserved by this Court in Shivdeo Singh v. State ofPunjab (AIR 1963 SC 1909), there is nothing inArticle 226 of the Constitution to preclude the HighCourt from exercising the power of review whichinheres in every Court of plenary jurisdiction toprevent miscarriage of justice or to correct graveand palpable errors committed by it. But, there aredefinitive limits to the exercise of the power ofreview. The power of review may be exercised on thediscovery of new and important matter or evidencewhich, after the exercise of due diligence was notwithin the knowledge of the person seeking the reviewor could not be produced by him at the time when theorder was made; it may be exercised where somemistake or error apparent on the face of the recordis found; it may also be exercised on any analogousground. But, it may not be exercised on the groundthat the decision was erroneous on merits. That wouldbe the province of a court of appeal. A power ofreview is not to be confused with appellate powerwhich may enable an appellate court to correct allmanner of errors committed by the subordinate court.9. Now it is also to be kept in view that inthe impugned judgment, the Division Bench of the HighCourt has clearly observed that they wereentertaining the review petition only on the groundof error apparent on the face of the record and noton any other ground. So far as that aspect isconcerned, it has to be kept in view that an errorapparent on the face of record must be such an errorwhich must strike one on mere looking at the recordand would not require any long-drawn process ofreasoning on points where there may conceivably betwo opinions. We may usefully refer to theobservations of this Court in the case ofSatyanarayan Laxminarayan Hegde v. MallikarjunBhavanappa Tirumale (AIR 1960 SC 137), wherein, K.C.Das Gupta, J., speaking for the Court has made thefollowing observations in connection with an errorapparent on the face of the record:https://hcservices.ecourts.gov.in/hcservices/“An error which has to be established by a long-drawn process of reasoning on points where theremay conceivably be two opinions can hardly be said tobe an error apparent on the face of the record. Wherean alleged error is far from self-evident and if itcan be established, it has to be established, bylengthy and complicated arguments, such an errorcannot be cured by a writ of certiorari according tothe rule governing the powers of the superior courtto issue such a writ." long-drawn process of reasoning on points where theremay conceivably be two opinions can hardly be said tobe an error apparent on the face of the record. Wherean alleged error is far from self-evident and if itcan be established, it has to be established, bylengthy and complicated arguments, such an errorcannot be cured by a writ of certiorari according tothe rule governing the powers of the superior courtto issue such a writ." 32. As held by the Hon'ble Supreme Court inAIR 1960 SC 137, (SATYANARAYAN LAXMINARAYAN HEGDEVS.MALLIKARJUN BHAVANAPPA TIRUMALE), the error must beapparent on the face of the record i.e., error mustbe self-evident and not which has to be establishedby a long drawn process of reasoning or which has tobe searched. In other words, it must be an error andit must be one which must be manifest on the face ofthe record. Under the guise of review, parties arenot entitled to rehearing of the same issue. An errorcan be said to be apparent on the face of the recordonly if such error is patent and can be locatedwithout any elaborate argument and without any scopefor controversy with regard to such error, whichstares at the face even by a mere glance of thejudgement. The said position of law is reiterated inthe decisions reported in (1997) 8 SCC 715, DELHIADMINISTRATION VS. GURDIP SINGH UBAN AND OTHERS (2001(1) MLJ 45 (SC)), KERALA STATE ELECTRICITY BAORD VS.HITECH ELECTROTHERMICS HYDROPOWER LTD. AND OTHERS((2005) 6 SCC 651), HARIDAS DAS VS. USHA RANI BANK(2006(4) SCC 78) and STATE OF WEST BENGAL AND OTHERSVS. KAMAL SENGUPTA ((2008) 8 SCC 612).” 6.Evidence adduced in case of Mr.P.Pandian and therespondent are one and same. While allowing W.P.(MD)No.8885 of2013, filed by Mr.P.Pandian, writ Court, vide order, dated10.11.2017, ordered thus,"29.The sum and substance of the charge madeagainst the petitioner is that a sum of Rs.419.50/-was wrapped in a piece of paper which was seizedfrom the pit near to the duty Check Post, where thepetitioner was performing security duty whichindicates that the petitioner had dishonestlyearned a sum of Rs.419.50/-, while performingsecurity duty through illegal ways from undisclosedsources. The said act on the part of thepetitioneramountstogrossmisconduct,indiscipline and violation of orders, unbecoming ofa member of the disciplined paramilitary force, andaccordingly, charge was framed. 30.Before going into the veracity of thecharge, as has been rightly pointed out by thelearned counsel appearing for the petitioner, thehttps://hcservices.ecourts.gov.in/hcservices/contradiction between the extract of G.D. Entry and the Special Report forwarded by the AssistantCommandant, can be looked into.31.In the GD Entry extract, which was preparedon the spot on 18.08.2009 at 20.20 hours, by theInspector Executive K.Annamalai, it is stated asfollows: "Shri J.M.U.Koya, AC, and myself K.Annamalaicarried out checking of sentry post and near byarea. Shri J.M.U.Koya, AC, picked up a smallbundle of currency notes which was duly wrapped bypiece of paper (Emphasis supplied) which was keptnear by partition dias by removing piece of stoneas weight. The said amount was seized in presenceof Ct. P.Pandian. The small bundle was handed overto Ct. P.Pandian for counting the same, who in turncounted and accounted. The denomination of thecurrency notes. (Rupees four hundred and nineteen and paise fiftyonly) The seizure list was prepared on the spot andmade report on the checking register of Check Post-I. During the formal enquiry, HC/GD N.Subramanianand Ct P.Pandian declined to disclose about thesource of money seized from the earth and hispossession of HC/GD N.Subramanian, a sum ofRs.45/- seized from him.Lodged for information and action. (Rupees four hundred and nineteen and paise fiftyonly) The seizure list was prepared on the spot andmade report on the checking register of Check Post-I. During the formal enquiry, HC/GD N.Subramanianand Ct P.Pandian declined to disclose about thesource of money seized from the earth and hispossession of HC/GD N.Subramanian, a sum ofRs.45/- seized from him.Lodged for information and action. Sd./.......K.Annamalai,Insp/Exe.32.WhereastheAssistantCommandantMr.J.M.U.Koya had sent a Special Report on thesurprise checking and seizure of Rs.464.50. In thesaid Special Report, in Subject portion, it isstated that "on surprise checking, seizure ofRs.464.50fromthepossessionofHC/GDN.Subramaniam -reg ". 33.In order to appreciate the said factor,the entire Special Report of the AssistantCommandant Mr.J.M.U.Koya is reproduced hereunder:https://hcservices.ecourts.gov.in/hcservices/The Commandant, CISF Unit TPT, Tuticorin.Sub: SPECIAL REPORT ON SURPRISE CHECKING,SEIZURE OF RS.464.50 FROM THE POSSESSION OF HC/GD N.SUBRAMANIAM : REG. It is to inform that I, Asstt CommandantJ.M.U.Koya along with Insp/Exe K.Annamalai carriedout surprise checking on 18.08.2009 at about 19.45hrs at Check Post-I where HC/GD N.Subramanian andConst.P.Pandian were deployed in 'B' Shiftduty on 18.08.2009 from 1300 hrs to 2100 hrs. Boththe duty personnel were called in the duty room atthe Check Post-I and carried out searching on them.WhilecarryingoutthesearchingonConst.P.Pandian, a sum of Rs.17/- was found in hispocket and a sum of Rs.45/- was found in the pocketof HC/GD N.Subramanian. After that checked thesurrounding area of Check Post-I and found awrapped bundle of paper which was concealed under asmall piece of stone near the right side ofadjacent Room of Check Post-I besides a cementbricks on the road divider. Then the bundle wasrecovered and asked Const.P.Pandian to open.Accordingly, he opened and found a sum ofRs.419.50. On asking HC/GD N.Subramanian about thesource of money which was recovered near his dutypost as well as from his pocket, he stated that hehad in possession of Rs.30/- as pocket money whilemounting of duty which was already declared by himin the duty register. Further he could not explainabout the source of money i.e., Rs.419.50 recoveredfrom adjacent of his duty post. In this connectiona GD entry was made vide No.585 at 2020 hrs dated18.08.2009 in the Control Room. After that aseizure list has been prepared in presence of HC/GDN.Subramaniam and Const.P.Pandian, and asked themfor putting their signature on the seizure list.HC/GD N.Subraamanian declined to sign on seizurememo. Further Const.P.Pandian deposed in hisstatement that while mounting for duty, he declaredRs.40/- as pocket money, out of which Rs.23/- wasspent and the balance amount of Rs.17/- kept in hispocket. On checking of money declaration register,HC/GD N.Subramanian declared a sum of Rs.30/- andConst. P.Pandian declared a sum of Rs.40/- whilemounting on 'B' Shift duty.It is further informed that as per the officeorderissuedvideletterNo.E-42099/CISF/TPT/PA/O.O/2006-1991, dated 12.05.2006under no circumstances the personnelproceeding for shift duties will not carry morethan Rs.10/-. In view of the above facts, suitable actionmay please be taken against the HC/GDhttps://hcservices.ecourts.gov.in/hcservices/N.Subramaniam. Statement obtained and extract copy of GD entry as well as money declaration registerof 'B' shift duty are enclosed herewith for perusalplease.Submitted please. ASSTT COMMANDANT CISF UNIT TPT TUTICORIN of GD entry as well as money declaration registerof 'B' shift duty are enclosed herewith for perusalplease.Submitted please. ASSTT COMMANDANT CISF UNIT TPT TUTICORIN 34.In fact, in the said Special Report, theAssistant Commandant has recommended to takesuitable action only against the Head ConstableN.Subramanian. Enabling for such suitabledisciplinary action, the Assistant Commandant hadforwarded the statements obtained from theConstable P.Pandian (the petitioner herein),Inspector Executive K.Annamalai and ConstableM.A.G.S.Velu, seizure memo and extract copy ofG.D.Entry as well as the money declarationRegister of "B" Shift duty as enclosures along withthe Special Report.35.These factors would go to show that whatexactly happened on the date of surprise checkingconducted by the Assistant Commandant and theInspector Executive, has been clearly spelt out.36.The alleged currency notes wrapped in apaper found and recovered form the earth near bythe duty area of the petitioner as well as the HeadConstable N.Subramanian, were neither recoveredfrom the petitioner nor from the Head ConstableN.Subramanian. However, depending upon thecircumstances, it was construed by theAssistant Commandant and the Inspector Executive,who conducted the surprise check up that therecovery of money of Rs.464.50 which isunaccounted, has to be vouched by the HeadConstable N.Subramanian and therefore, in theSpecial Report, suitable action was recommendedonly against the said Head Constable N.Subramanian.37.However, within a span of 30 days, on19.09.2009, charge memo was issued against thepetitioner, wherein the article of charge, whichhas already been extracted, would state that theInspector Executive K.Annamalai, picked up thecurrency bundle and counted the same in thepresence of P.Pandian, the petitioner herein, andthe Head Constable N.Subramanian, and found a sumof Rs.419.50. The charge would further state thatthe recovery of Rs.419.50 from a pit near to theduty post, where the individual was performingsecurity duty, indicates that the ConstableP.Pandian has dishonestly earned Rs.419.50, whileperforming security duty through illegal ways fromundisclosed sources. 38.Before making the charge, the DisciplinaryAuthority should have definitely gone through the https://hcservices.ecourts.gov.in/hcservices/ extract of G.D.Entry as well as the Special Reportfiled by the Assistant Commandant. Neither theextract of G.D. Entry nor the Special Reportsuggest that the reason attributable for theunaccounted money of Rs.419.50 was because of thealleged dishonest earning on the part of theConstable Pandian, the petitioner herein. Fromwhich source and on the basis of which document orprima facie evidence/proof, the Authority came tothe conclusion that the charge against thepetitioner is proved, is miserably unavailable. https://hcservices.ecourts.gov.in/hcservices/ extract of G.D.Entry as well as the Special Reportfiled by the Assistant Commandant. Neither theextract of G.D. Entry nor the Special Reportsuggest that the reason attributable for theunaccounted money of Rs.419.50 was because of thealleged dishonest earning on the part of theConstable Pandian, the petitioner herein. Fromwhich source and on the basis of which document orprima facie evidence/proof, the Authority came tothe conclusion that the charge against thepetitioner is proved, is miserably unavailable. 39.Before the Enquiry Officer, three personswere examined as prosecution witnesses and threeother persons were examined as defence witnesses.Where the Assistant Commandant Mr.J.M.U.Koyadeposed as PW1 has stated that, a bunch of currencynotes kept hidden in a pit was recovered by theInspector Executive P.Annamalai. He also deposedthat the Head Constable N.Subramanian declaredRs.30/- and the petitioner Pandian declared Rs.40/-as pocket money at the time of reporting duty. TheConstable Pandian informed that he had spent anamount of Rs.23/- for purchase of tiffin and theremaining amount of Rs.17/- was found in hispossession and the seizure list was prepared at thespot, however, the Head Constable N.Subramanianrefused to sign in the seizure list.40.During the cross examination, PW1 clarifiedthat he did not see the charged official(petitioner), while collecting money from the Portusers and he also did not witness thecharged official, while hiding in a pit adjacent toCheck Post-1. 41.Like that, the Inspector ExecutiveP.Annamalai had deposed before the Enquiry Officer,as PW2. He deposed saying that on suspicion, theAssistant Commandant removed the small stone and abunch of currency notes were kept and he called himand shown the currency notes. Thereafter, hehanded over to the Constable Pandian, which isfound as Rs.419.50. Thereafter, the seizure listwas prepared and the Head Constable N.Subramanianrefused to sign in the seizure list. PW1, in hiscross examination, has deposed saying that theAssistant Commandant Mr.J.M.U.Koya, had picked upthe bundle of currency notes, which was kept hiddennear the Check Post-1. 42.On seeing the depositions of PW1 and PW2,who are the actual persons conducted the surprisecheck up, one can easily finds that there arenumber of contradictions between the statements oftwo witnesses. The Assistant CommandantMr.J.M.U.Koya says that the Inspector Executivehttps://hcservices.ecourts.gov.in/hcservices/K.Annamalai removed a small stone and found a bunch of currency notes kept hidden in a pit and hehanded over the paper bundle to the petitionerPandian. Whereas, PW2, the Inspector ExecutiveK.Annamalai says that the Assistant CommandantMr.J.M.U.Koya had picked up the bundle of currencynotes, which was kept hidden in a pit. As Inoticed earlier, from the Extract of GD Entry,which was prepared at 20.20 hours on the said date,by the Inspector Executive K.Annamalai, he hascategorically stated that the paper wrapped bundleof currency was picked up by the AssistantCommandant Mr.J.M.U.Koya. Only based on suchG.D.Entry, a Special Report was prepared and sentby the Assistant Commandant Mr.J.M.U.Koya, wherein,he has stated that money was recovered from thepossession of Head Constable N.Subramanian andtherefore, he recommended to take action againstthe Head Constable N.Subramanian. Thesecontradictions cannot be taken lightly because,except PW1 and PW2, no other persons involved inthe surprise check up and no other eye witnesseswere availed to vouch or reiterate the stand takenby PW1 and PW2. Even the said PW1 and PW2 have notspoken in unison or in one voice and they havegiven contradictory statements. 43.It is an admitted case that, no money, noteven a single rupee, was recovered from thepetitioner. It is also an admitted fact that, atthe time of reporting duty on the said date, thepetitioner declared Rs.40/- as pocket money. Outof which, he spent Rs.23/- for the purchase of foodand therefore, the remaining amount of Rs.17/- keptat his pocket, was recovered by PW1 and PW2. Afterhaving accepted the same, the said amount ofRs.17/- was returned to the petitioner. Only onthat basis, a Special Report was prepared by theAssistant Commandant, where recommendation has beenmade to initiate action against the Head ConstableN.Subramanian and the Special Report prepared bythe Assistant Commandant Mr.J.M.U.Koya alsoindicates that a sum of Rs.419.50/- was recoveredfrom the Head Constable N.Subramanian. 44.When that being the position, how chargeshave been framed against the petitioner and on thebasis of which materials, actions have been takenby the respondents, have not been explained by therespondents. 45.Further, before the Enquiry Officer, threedefence witnesses were examined and in thedepositions of the said three witnesses on thedefence side, i.e., DW1, DW2 and DW3, have deposedbefore the Enquiry Officer. In order to appreciatethe said evidences, extract of the statements ofhttps://hcservices.ecourts.gov.in/hcservices/defence witnesses, as mentioned by the Enquiry Officer, is reproduced hereunder: "STATEMENTS OF DEFENCE WITNESSES:- The DW-1: Mr.G.Jeya Kumar an employee ofTuticorin Port Trust stated that, he was performinghis duties in Tuticorin Port Trust since 19/11/1992as an Out Door Clerk. On dated 18/08/09 he wasdetailed for duty from 1400 hours to 22.00 hours atPass Section of Check Post-I which was at adistance of 30 feet from CISF Check Post-I. Hestood outside the Pass Section during his dutyhours for watching the vehicles like Pay loader,Crane and Pull Dozer etc. which were not issuedwith vehicle pass and also ensure their signatureon the registers of the pass section. On that day,HC/GD N.Subramanian and Const/GD P.Pandian wereperforming their duty at Check Post-I and both theCISF personnel did not receive any bribe money fromany port users. During cross examination by the presentingofficer, the DW-1 clarified that he was regularlystanding out side the pass section for watching thevehicles which were not issued with the vehiclepass and to get their signature on the register atthe pass section. He also clarified that he hadbeen the CISF officers who came at the Check Post-Ifor surprise checking but he was not aware of thedetails of money recovered/seized at Check Post-Iby the CISF officers. The DW-2: Mr.P.Suresh Kumar stated in hisstatement that he was performing duties inM/s.Nithyanantham & Company as Supervisor. He wasdetailed by the company officials to hand over somedocuments and money to the hired trucks of hiscompany. So he was waiting at the road dividernear CISF Check Post-I from 12.00 hours to 17.00Hrs on 18/08/09. Moreover on that particular daythree hired trucks of his company come late due toan accident. During his stay at Check Post-I, henoticed that both the CISF duty personnel were nottaking any money illegally from Truck Drivers,Supervisors and other personnel. The DW-2: Mr.P.Suresh Kumar stated in hisstatement that he was performing duties inM/s.Nithyanantham