M. Gopalakrishna v. Divisional Security Commissioner, Railway Protectio n Force, S.C. Railway and two
Case Details
WP(C) 1128/2004 BEFORE THE HON’BLE MR. JUSTICE B.K. SHARMA The petitioner, while was serving as constable in the Assam Rifles was charge sh eeted on 14.9.2003 alleging unauthorized absence from duty for long 13 months an d 2 days. Pursuant to a summary court martial proceeding, he was dismissed from service by order dated 22.12.2003. Being aggrieved he has filed the instant writ petition. The petitioner was granted leave from 11.5.2002 to 9.7.2002 enabling him to proc eed to his home. He was to report back for duty on 9.7.2002 (AM). However, he fa iled to do so and rejoined duty on 11.8.2003 i.e. after expiry of long 13 months and 2 days. According to the respondents, the petitioner remained absent from d
Decision
uty unauthorisedly as he did not furnish any intimation. Although in the writ petition, the petitioner has stated that he could not rejoi n duty on expiry of leave earlier granted on 9.7.2002 because of his illness and had sent intimation over telephone, but the respondents had denied the same in their counter affidavit. According to the petitioner, after reaching home, he ha d fallen sick and resultantly could not rejoin duty on 9.7.2002. However, he cou ld join after expiry of 13 months and 2 days. In the meantime, he was declared d eserter. In the summary court martial proceeding, the petitioner was provided with all re asonable opportunity of being heard. He was provided with the opportunity to eng age his defence friend and was also allowed to cross examine the witnesses. All the witnesses examined on behalf of the disciplinary authority stated about unau thorized absence of the petitioner from duty. However, the petitioner declined t o cross-examine them. As is evident from the materials on record, during the pro ceeding he had also admitted his guilt. In the writ petition, it is the plea of the petitioner that since he was sick an d could not join duties on the stipulated date i.e. 9.7.2002, the respondents ou ght to have considered that aspect of the matter and granted leave to him for th e period. Further case of the petitioner is that for a single offence of oversta ying leave, he could not have been awarded with the extreme penalty of dismissal from service. Mr. S.S.S. Rahman, learned counsel for the petitioner submits that since the pet itioner had to take leave because of his brother’s fatal accident and reaching h ome he himself had fallen sick, the respondents ought to have taken a pragmatic approach to the matter towards regularizing the leave instead of dismissing him from service. Referring to the decision of the Apex Court reported in AIR 1999 S C 3367 (M. Gopalakrishna Vs. Divisional Security Commissioner, Railway Protectio n Force, S.C. Railway and two Ors.), he also submits that even if the misconduct attributed to the petitioner is said to have been established in the summary co urt marital proceeding, the penalty of dismissal is disproportionate to the grav ity of the said misconduct. Mr. D.C. Chakraborty, learned CGC, however, submits that the petitioner being a member of the disciplined force ought not to have taken the things lightly and r emained absent from duty unauthorisedly for long 13 months and 2 days. Referring to the stand of the respondents in their counter affidavit, he submits that sin ce the petitioner was provided with all reasonable opportunities to defend his c ase in the summary court martial proceeding, it is not for the Writ Court to sub stitute the penalty of dismissal from service with that of another penalty. He s ubmits that the authority in the Assam Rifles considering the entire service pro file of the petitioner and also the facts and circumstances involved in the case having formed the opinion to dismiss the petitioner from service, such opinion cannot be interfered with exercising the power of judicial review under Article 226 of the Constitution of India. I have duly considered the submissions made by the learned counsel for the parti es and have also perused the entire materials on record. The admitted position i s that the petitioner overstayed leave for long 13 months and 2 days. Although i n the writ petition, the plea of the petitioner is that he had furnished intimat ion over telephone, apart from the fact that such plea of the petitioner had bee n denied by the respondents in their counter affidavit, such telephonic instruct ion even if any, was also unauthroised. It was incumbent on the part of the peti tioner to furnish intimation in writing. He did not do anything of the sort, but remained away from duty for long 13 months and 2 days. In the enquiry, the peti tioner could not justify such absence from duty. As noted above, he also admitte d the fact of remaining unauthorisedly absent from duty for 13 months and 2 days . As has been held by the Apex Court in Channabasappa Basappa Happali Vs. The St ate of Mysore reported in AIR 1972 SC 32, admission of fact indicated in the cha rge amounts to admission of the charge itself. The authority on the basis of the summary court martial proceeding having come to the conclusion that the petitio ner as a member of the disciplined force was not fit to be retained in service, this Court exercising its power of judicial review under Article 226 of the Cons titution of India cannot substitute the said finding. In Union Union of India Vs. Mithilesh Singh, reported in 2000 (3) GLT 62 which h as been affirmed by the Apex Court in Mithilesh Singh Vs. Union of India reporte d in (2003) 3 SCC 309, it has been held that unauthorized absence from duty by m ember of the disciplined force may entail the penalty of removal from service. A s in the instant case, in the said case also the petitioner was a member of the disciplined force (RPF). He remained absent from duty unauthorisedly and accordi ngly pursuant to a proceeding, he was removed from service. Learned Single Judge inferring with the penalty of removal form service issued direction for imposin g any other lesser penalty. The challenge to the said direction was upheld by th e Division Bench of this Court and affirmed by the Apex Court. As indicated abov e, it was held that unauthorized absence from duty by member of the disciplined force is a serious misconduct and the penalty of removal imposed cannot be fault ed with. The decision, on which, Mr. Rahman, learned counsel for the petitioner has place d reliance i.e. M. Gopalakrishna (supra) is not applicable to the fact situation of this case. In the said case, the incumbent had overstayed leave only by 12 d ays and could explain the circumstances in which it was impossible for him to re join and had to continue on leave as he was forced to do so, on account of unexp ected circumstances. It was in such circumstances, the Apex Court held that the order of dismissal from service was excessive and accordingly interfering with t he same, a minor penalty was awarded. Unlike the said case, in the instant case, the petitioner overstayed the leave by 13 months and 2 days and that too withou t explaining the circumstances and furnishing any intimation to the authority, b ecause of which, he had also to be declared as deserter. Above being the position, I do not find any merit in the writ petition and accor dingly, it is dismissed. At this stage, Mr. Rahman, learned counsel for the petitioner submits that neces sary direction may be issued to release the admissible final settlement dues to the petitioner, to which, Mr. D.C. Chakraborty, learned CGC does not have any ob jection. It is hereby provided that if any dues are payable to the petitioner, t he respondents shall make the said payment as expeditiously as possible.