High Court
Case Details
WP(C) 798/2006 BEFORE THE HON’BLE MR. JUSTICE UJJAL BHUYAN J U D G M E N T AND O R D E R (ORAL) Heard Mr. M.H. Ahmed, learned Counsel for the petitioner and Ms.
Legal Reasoning
J. Huda, learned Central Government Counsel for the respondents. 2. By way of this petition under article 226 of the Constitution of India, petitioner seeks quashing of order dated 18-03-2005 passed by the Comman dant, 64 Battalion (Bn), Central Reserve Police Force (CRPF) imposing the penalt y of removal from service on the petitioner as well as the order dated 05-12-200 5 passed by the Deputy Inspector General of Police, CRPF, Nagpur as the appellat e authority upholding the penalty imposed. Case of the petitioner is that he joined service in the CRPF on 3. 01-07-2000 in the 64 Bn CRPF, which was then based at Jagiroad within the State of Assam. Petitioner served as Constable (General Duty). While in service, petit ioner was granted 15 days casual leave from 26-05-2004 to 11-06-2004. According to the petitioner, he fell ill and could not return back on time. His illness wa s diagnosed as infective Hepatitis, non-Tubercular neck gland enlargement with s uspected depressive psychosis. Officer Commanding of 64 Bn CRPF sent letters on 23-06-2004, 03- 4. 07-2004 and 10-07-2004 asking the petitioner to report for duty immediately. Sin ce the petitioner neither responded nor rejoined duty, a Court of inquiry was th en ordered against the petitioner for over staying leave w.e.f. 13-06-2004 witho ut permission/sanction of the competent authority. Following the findings of the Court of inquiry, order dated 27-09-2004 was passed by the Commandant. Petition er was declared as deserter w.e.f. 13-06-2004. Petitioner’s wife thereafter subm itted a representation dated 04-10-2004 informing the authority about petitioner ’s illness and requesting the authority to allow the petitioner to rejoin duty. 5. Charges were framed against the petitioner by the Commandant on 08-10-2004. The two charges related to over stay of leave without sufficient cau se, permission and sanction of competent authority. Petitioner was charged with committing misconduct and disobedient behaviour. Alongwith the articles of charg e, the statement of allegation, list of documents and list of witnesses were als o sent to the petitioner in his home address by registered post. Petitioner’s wi fe received the show-cause notice on 20-10-2004 and submitted reply on 02-11-200 4. In her reply, she stated that because of his illness, petitioner was incapabl e of making any submission. 6. It was decided by the authority to hold a departmental enquiry a gainst the petitioner u/s 11(1) of the CRPF Act, 1949. To conduct the enquiry, a n Enquiry Officer was appointed by the disciplinary authority on 20-10-2004. Enq uiry Officer in turn sent letter dated 27-10-2004 and 10-11-2004 calling upon th e petitioner to appear in the enquiry with necessary evidence. Since the petitio ner failed to appear and participate in the enquiry, the enquiry was proceeded e x-parte. On conclusion of the enquiry, the Enquiry Officer submitted his report to the disciplinary authority holding that both the charges against the petition er stood proved. The disciplinary authority forwarded a copy of the enquiry repo rt to the petitioner vide the forwarding letter dated 15-12-2004. Petitioner was informed that if he wanted to make any representation or submission on the enqu iry report, he may do so in writing addressed to the disciplinary authority with in 15 days. According to the petitioner, in the meanwhile, Officer Commanding vide l 7. etter dated 15-11-2004 once again asked the petitioner to report for duty immedi ately. It was stated that if he joined, proper treatment would be provided to th e petitioner. 8. Petitioner’s wife submitted application dated 27-12-2004 address ed to the disciplinary authority stating that petitioner was suffering from depr essive psychosis and as per medical advice, he was required to undergo further i nvestigation and treatment. On 03-01-2005, petitioner himself wrote to the disci plinary authority that he was under medical supervision of LGB Regional Institut e of Mental Health, Tezpur. 9. However, the Commandant of 64 Bn CRPF as the disciplinary author ity issued office order dated 18-03-2005 imposing the penalty of removal from se rvice on the petitioner w.e.f. the date of the order. The said order was passed in exercise of power u/s 11(1) of the CRPF Act, 1949 read with Rule 27 of the CR PF Rules, 1955.
Decision
10. Petitioner filed WP(C) No.4999/2005 before this Court challengin g the penalty of removal from service imposed on him. A Single Bench of this Cou rt by order dated 18-07-2005 declined to entertain the writ petition in view of availability of alternative remedy by way of appeal. Petitioner was given libert y to approach the appellate authority under Rule 28 of the CRPF Rules, 1955 agai nst the order of removal from service. 11. Thereafter, petitioner filed appeal on 11-08-2005. The appellate authority by the order dated 05-12-2005 dismissed the appeal and upheld the pen alty imposed. 12. g the reliefs as indicated above. Aggrieved, petitioner has filed the present writ petition seekin 13. Respondents have filed a common affidavit. It is stated that pet itioner was sanctioned fifteen days casual leave w.e.f. 26-05-2004 to 11-06-2004 with 12-06-2004 as enhanced leave. But petitioner failed to report back for dut y. The Officer Commanding issued letter dated 23-06-2004 asking the petitioner t o report back for duty but there was no compliance. Reminders dated 03-07-2004 a nd 10-07-2004 also failed to evoke any response. No intimation was given by the petitioner as to why he was absent. In the meanwhile, a Court of inquiry was ord ered and based on its findings, petitioner was declared as deserter. However, a letter written on behalf of the petitioner’s wife, which was without her signatu re, was received on 09-11-2004 whereby she stated that her husband was suffering from jaundice and that he had lost his mental balance. It was in response to th e said letter that the Officer Commanding had issued letter dated 15-11-2004 dir ecting the petitioner to report for duty without any further delay. It was also stated that if he joined duty, his treatment would be arranged by the unit. But petitioner neither reported for duty nor submitted any reply. Since the petition er was overstaying his leave without authority and was not responding to the off icial communications, it was decided to hold departmental enquiry against him. P etitioner neither submitted written statement to the show-cause notice nor appea red in the enquiry. Enquiry Officer had to conduct the departmental enquiry ex-p arte and on conclusion of the same, submitted his report to the disciplinary aut hority, copy of which was also forwarded to the petitioner. After due considerat ion, disciplinary authority passed the impugned order of removal from servic e on 18-03-2005, which was affirmed in appeal. Contending that the action taken by the authority is fully lawful and warranted by the circumstances of the case , respondents seek dismissal of the writ petition. 14. Learned Counsel for the petitioner submits that over stay of lea ve by the petitioner was not intentional. It was because of his sickness that th e petitioner could not report back for duty. When this fact had come to the noti ce of the authority, they ought to have taken a lenient view of the matter. Inst ead, the petitioner was imposed the severe penalty of removal from service, whic h is quite disproportionate to the gravity of the misconduct. He submits that th ough the departmental enquiry was held ex-parte, even such ex-parte proceeding h as to be conducted in a proper manner. In the instant case, no Presenting Office r was appointed which vitiated the entire enquiry and the consequential penalty imposed. He, therefore, submits that impugned penalty should be interfered with by this Court. 15. Submissions made by learned Counsel for the petitioner have been strongly opposed by learned Central Government Counsel appearing for the respon dents. She submits that petitioner had over stayed leave without any permission from the competent authority and without even bothering to inform the authority about his absence. Such indiscipline and disobedience to authority cannot be acc epted in an uniformed force like the CRPF. Petitioner was declared a deserter af ter holding of Court of inquiry. In the departmental proceeding, reasonable oppo rtunity of hearing was given to the petitioner, which he failed to avail. Miscon duct of the petitioner in the context of his service and the penalty imposed can not be said to be shocking to judicial conscience or disproportionate to the gra vity of the misconduct so as to warrant interference by the Court. She, therefor e, prays for dismissal of the writ petition. 16. Submissions made have been considered. 17. Relevant facts as noticed above are not in dispute. In such circ umstances, question for consideration is as to whether imposition of the penalty of removal from service is excessive and disproportionate to the misconduct. 18. While u/s 10(m) of the CRPF Act, every member of the force who a bsents himself without leave or without sufficient cause overstays leave granted to him, shall be punishable with imprisonment for a term which may extend to on e year or with fine which may extend to three months pay or with both. Absence w ithout leave or overstay of leave without sufficient cause is considered to be a less heinous offence. However, u/s 9(f) of the CRPF Act, desertion from the for ce is considered to be a more heinous offence and is punishable with transportat ion for life for a term of not less than seven years or with imprisonment for a term which may extend to fourteen years or with fine which may extend to three m onths pay or with fine to that extent in addition to such sentence of transporta tion or imprisonment. Rule 31 of the CRPF Rules deals with desertion and absence without leave. It provides that if a member of the force does not return from l eave of his own free will or is not apprehended within sixty days of the commenc ement of the desertion, absence or overstay of leave, then the Commandant shall assemble a Court of inquiry to inquire into the desertion, absence or overstay o f the leave by the offender. The Court of inquiry shall record evidence and its findings. Such record shall be admissible in evidence in any subsequent proceedi ng taken against the absentee. The Commandant shall then publish the findings of the Court of inquiry in the office order and the absentee shall be declared a d eserter from the force from the date of his illegal absence. 19. In the present case, a Court of inquiry was assembled against th e petitioner for overstay of leave. Following the findings recorded by the Court of inquiry, petitioner was declared as deserter by the Commandant by order date d 27-09-2004. As noticed above, desertion is considered a more heinous offence h aving serious penal consequences. 20. In the departmental proceeding, the petitioner neither submitted written statement nor appeared in the domestic inquiry, though show-cause notic e and notices by the Enquiry Officer were duly served on the petitioner. In the writ petition though the petitioner has stated that written statement was filed, no copy of such written statement has been annexed. Respondents on the other ha nd have categorically stated that no written statement was filed on behalf of th e petitioner, to which there is no rejoinder. In the enquiry, the Enquiry Office r held both the charges against the petitioner to have been proved. Copy of the enquiry report was furnished to the petitioner by the disciplinary authority, wh o then submitted his representation. His response was considered but was rejecte d by the disciplinary authority, who passed the order of removal from service. T his order of penalty was upheld by the appellate authority in appeal. Thus, it i s quite evident that petitioner was afforded reasonable opportunity to defend hi s case. Till completion of the domestic enquiry, he failed to avail such opportu nity. Therefore, it cannot be said that the impugned penalty was passed by follo wing a procedure not in conformity with the principles of natural justice and fa ir procedure. Thus, in the contextual facts of the case, moreso in view of decla ration of the petitioner as a deserter, penalty of removal from service imposed on the petitioner cannot be said to be excessive or disproportionate to the grav ity of the misconduct. 21. On the contention of the petitioner that no Presenting Officer w as appointed in the domestic enquiry to place the case of the disciplinary autho rity thereby compelling the Enquiry Officer to act as the judge as well as the p rosecutor, which vitiated the departmental proceeding against the petitioner, it is true that absence of such an officer may vitiate the enquiry proceeding and consequently the departmental proceeding itself. But in a case where the delinqu ent does not appear and defend himself in the enquiry, absence of such an office r may not be a fatal omission. This would be more so in a case like the present one where a Court of inquiry had already declared the petitioner to be a deserte r. 22. Therefore, in view of the discussions made above, this Court fin ds no error or infirmity in the order of removal from service imposed on the pet itioner. 23. missed. There is no merit in the writ petition, which is accordingly dis 24. No cost.