Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE MONDAY,THE9H DAY OF MARCH201518TH PHALGUNA, 1936 WP(C).No. 5364 of 2006 (L) --------------------------- PETITIONER(S): -------------------------- 1. JOY JAMES (DIED) HC/DVR NO.014070024, C.I.S.F. (RESIGNED DUE TO COERCION AND FORCE) C.I.S.F. UNIT, OIL (DULIAJAN), DULIAJAN P.O., DIBRUGARH DISTRICT, ASSAM RESIDING AT PULLUKKATTIL HOUSE, RAJAGIRI ROAD RAILWAY LANE, KALAMASSERY P.O.- 683104 ERNAKULAM DISTRICT, KERALA STATE REPRESENTED BY LEGAL REPRESENTATIVES2 KOCHURANI T.J.@ DIGNA W/O. LATE JOY JAMES, AGED35YEARS RESIDING AT ANTHIKKAD, ELOOR EAST UDYOGAMANDAL P.O., ERNAKULAM.
3. JAMES JOY, AGED10= YEARS, S/O. LATE JOY JAMES.
4. JOHN JOY, AGED7= YEARS, S/O. LATE JOY JAMES (PETITIONERS3& 4 ARE MINORS AND REPRESENTED BY THEIR MOTHER KOCHURANI, THE2D PETITIONER) BY ADV. SMT.LATHA PRABHAKARAN RESPONDENT(S) : ---------------------------- 1. THE DIRECTOR GENERAL OF C.I.S.F., DIRECTORATE GENERAL OF C.I.S.F. C.I.S.F. HEADQUARTERS, MINISTRY OF HOME AFFAIRS C.G.O.COMPLEX, LODHI ROAD, NEW DELHI. (Contd...) WP(C).No. 5364 of 2006 (L) -2- 2. THE DEPUTY INSPECTOR GENERAL (INTELLIGENCE), OFFICE OF THE DEPUTY INSPECTOR GENERAL OF C.I.S.F., MINISTRY OF HOME AFFAIRS, C.F.O. COMPLEX LODHI ROAD, NEW DELHI.
3. THE INSPECTOR GENERAL OF C.I.S.F., NORTH EASTERN SECTOR, KOLKOTHA, WEST BENGAL.
4. THE DEPUTY INSPECTOR GENERAL OF C.I.S.F. C.I.S.F. UNIT, OIL (DULIAJAN), DULIAJAN P.O., DIBRUGARH DISTRICT, ASSAM.
5. THE COMMANDANT, C.I.S.F. UNIT, OIL (DULIAJAN), DULIAJAN P.O., DIBRUGARH DISTRICT, ASSAM.
6. R.P.MISRA, THE COMMANDANT, C.I.S.F.UNIT, OIL (DULIAJAN), DULIAJAN P.O., DIBRUGARH DISTRICT, ASSAM.
7. C.V.S. RAO, INSPECTOR, C.I.S.F. UNIT, OIL (DULIAJAN), DULIAJAN P.O., DIBRUGARH DISTRICT, ASSAM.
8. THE UNION OF INDIA REPRESENTED BY UNDER SECRETARY MINISTRY OF HOME AFFAIRS, NEW DELHI. R1 TO R8 BY ADV. SRI.T.SANJAY, CGC THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON0903-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn ...3/- WP(C).No. 5364 of 2006 (L) APPENDIX PETITIONER'S EXHIBITS : EXT.P1 : COPY OF THE MEMORANDUM OF CHARGES DATED127.2005 ISSUED BY THE COMMANDANT, CISF UNIT. EXT.P2 COPY OF THE RESIGNATION LETTER OBTAINED FROM THE PETITIONER DATED147-2005. EXT.P3 COPY OF THE LETTER DATED217-2005 ISSUED BY THE CISF UNIT, OIL DULIAJAN. EXT.P4 COPY OF THE EXPLANATION SUBMITTED BY THE PETITIONER DATED227-2005. EXT.P5 COPY OF THE ORDER
DATED307-2005 PASSED BY THE RESPONDENTS. EXT.P6 COPY OF THE CLEARANCE CERTIFICATE DATED307-2005 SIGNED BY THE PETITIONER ON18-2005. EXT.P7 COPY OF THE FINAL ORDER
DATED28-2005 PASSED BY THE RESPONDENTS. EXT.P8 COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER DATED98-2005 WITH REGISTRATION SLIP. EXT.P9 COPY OF THE JUDGMENT
OF THIS HON'BLE COURT IN WRIT PETITION NO. 30542/2005 DATED211-2005. EXT.P10 COPY OF THE COVERING LETTER SUBMITTED BY THE PETITIONER DATED2311-2005 W3ITH JUDGMENT
. EXT.P11 COPY OF THE POSTAL COVER SENT FROM1T RESPONDENT'S OFFICE DATED511-2005 WITH ORDER
DATED410-2005. (Contd...) WP(C).No. 5364 of 2006 (L) EXT.P12 COPY OF THE TELEGRAM ISSUED TO THE PETITIONER DATED1012-2005 FROM THE1T RESPONDENT'S OFFICE. EXT.P13 COPY OF THE GATE PASS DATED1912-2005. EXT.P14 COPY OF THE ORDER
PASSED BY THE ADDITIONAL DEPUTY INSPECTOR GENERAL, OIL DULIAJAN DATED171-2006. EXT.P15 COPY OF THE JUDGMENT
OF THE HON'BLE HIGH COURT OF MADRAS DATED112-1995 IN WP NO. 8851/1989. RESPONDENT'S EXHIBITS : EXT.R1 : COPY OF THE STATEMENT OF SI/EXE ANIL KUMAR DT. 20-6-2005. EXT.R2 COPY OF THE STATEMENT OF CONSTABLE P.S. DEORI DT. NIL. EXT.R3 COPY OF THE STATEMENT OF THE PETITIONER DT. NIL. //TRUE COPY// P.S. TO JUDGE Mn A. MUHAMED MUSTAQUE, J.
------------------------------------------------ W.P.(C) No.5364 of 2006 ------------------------------------------------ Dated this the 9th day of March, 2015 JUDGMENT
One Joy James was a driver with Central Industrial Security Force (C.I.S.F). He was engaged in an insurgency area in Assam. He filed this writ petition challenging clearance from the service after accepting his resignation letter. This writ petition is filed in the year 2006 and pending writ petition, he met with an unfortunate accident, resulted in death. This writ petition is now being prosecuted by the widow and minor children.
2. Admittedly, Joy James had not put in qualifying service for pension, now therefore, challenge would survive only to claim for dying in harness by the legal heirs of Joy James. The above claim is depend upon the challenge made by Joy James against his clearance from service, stating that he never had resigned from the service.
3. Ext.P2 is the alleged resignation letter executed by Joy James. He had narrated the facts and circumstances W.P.(C) No.5364 of 2006 2 under which Ext.P2 happened to be executed. According to him, the Sub Inspector had detected that one of the Constables namely, Devari was sleeping while in duty. Joy James was asked to give a statement as a witness. He refused to do so, as he had not witnessed sleeping by the above said Devari. Thereafter, Joy James availed leave from 21.06.2005 to 13.07.2005 to take back his family to Kerala. Joy James rejoined duty on 14.07.2005 in the forenoon. Joy James submitted that on 14.07.2005, the Commandant called him to his room and handed over a memorandum of articles of charges, alleging that Joy James had given false statement to the Principal Enquiry Officer, Mr. C.V.S.Rao, stating that the said Constable was alert during night check. Joy James denied giving such a statement. There were some verbal exchange of words by Joy James with the Commandant. Joy James's case was that he was put under close arrest under the guard of two personnel to prevent him from going outside. Joy James was thereafter asked to give a resignation letter, it is submitted that otherwise Joy James was threatened with death and such death could be termed as death W.P.(C) No.5364 of 2006 3 in an encounter with insurgents of ULFA. Joy James stated that his resignation was given under the circumstance of illegal detention. Joy James relied on Ext.P4 dated 22.07.2005, seeking an opportunity of personal hearing by the disciplinary authority. He has also relied on Ext.P5 proceedings of the disciplinary authority dated 30.07.2005. It is his case that if he had any intention to resign the service, necessarily, this would have reflected in Exts.P5 and P6. Joy James also relied on Ext.P6 clearance certificate and pointed out discrepancies in the date of signature and counter signature. Therefore, it is submitted that all these documents clearly establish that Joy James never resigned from the service, on the other hand, he was forced to resign from the service in the given circumstances.
4. The petitioners also point out the procedure for acceptance of resignation of C.I.S.F personnel. It is submitted that they will be called to the Orderly Room and reasons will have to be explained for resignation before the Commandant.
5. In the counter affidavit filed before this Court, the Establishment have denied the petitioner's allegation. The W.P.(C) No.5364 of 2006 4 learned Central Government Counsel points out paragraphs 9 and 10 of the counter affidavit and submits that Joy James had voluntarily resigned from the service.
6. In view of the fact that there is no scope for intervention for reinstatement, as Joy James is no more, the only relief that could be availed by the writ petitioners is for seeking employment under dying in harness scheme for engaging any of the legal heirs of Joy James, in case this Court accepts challenge in regard to acceptance of resignation. I am of the view that untrammelled by any of the findings against Joy James, taking note of the peculiar circumstances in which the said family landed on account of the untimely death, a compassionate and humanitarian approach need to be taken in this matter. The two children of the deceased Joy James are minor and the family is finding it difficult to eke out their livelihood.
7. Therefore, without going to the merits of the issues, this writ petition is disposed of by directing the petitioner to make a detailed representation before the 1st Respondent. This shall be done within a period of three weeks from today. Thereafter, the W.P.(C) No.5364 of 2006 5 1st Respondent, after adverting to the penurious circumstances of the petitioners, shall take an appropriate decision in the matter within a further period of three months. All the issues in this writ petition are left open. The writ petition is disposed of as above. Sd/- A. MUHAMED MUSTAQUE, JUDGE. //true copy// P.S. to Judge st/-