High Court · 2012

6. C. Baruah along with Mr. R.K. Talukdar, learned CGC. I have Mr. A. Maleque learned counsel for the petitioner as well as Mr.

7. Mr. Maleque, learned counsel for the petitioner submits that when a crim inal case was pending against the petitioner, the respondents ought not to have conducted the departmental proceeding with the final result of removal from serv ice. He also submits that the petitioner was falsely implicated in the criminal case and without waiting for the outcome of the said criminal case, the responde nts ought not to have initiated the departmental proceeding against him. He also submits that the fact that in the particular incident the petitioner also recei ved bullet injury would go to show that there was no criminal act on the part of the petitioner.

8. Mr. C. Baruah, learned CGC, on the other hand submits that the fact find ing authorities like the enquiring authority, departmental authority, appellate authority and the revisional authority having arrived the findings on the basis of the evidence on record, this Court exercising its power of judicial review un der Article 226 of the Constitution of India will not sit on appeal over those f indings so as to arrive at a different conclusion. He also submits that the plea of the petitioner that the departmental proceeding could not have been initiate d against the petitioner is wholly misconceived inasmuch as the charge in the cr iminal proceeding and that in the departmental proceeding are completely distinc t and different. Referring to the charges levelled against the petitioner, Mr. B aruah, learned CGC submits that the said charges being serious in nature, more p articularly when the person concerned was a member of disciplined force, the dis ciplinary authority passed the impugned order taking note of entire evidence on record.

9. The charge against the petitioner was that of unauthorized absence from duty without any information during the period w.e.f. 16.7.99 to 29.11.99. Anoth er charge levelled against the petitioner was that he was guilty of committing s erious misconduct in discharge of his duty as a member of Force under Section 11 of the CRPF Act, 1949 as he failed to inform the competent authority regarding his arrest on criminal charge and detained in policy custody w.e.f. 25.6.1999 to 29.9.99 in connection with Dalgaon P.S. Case No. 149/99 under Section 302/34 IP C which constitute suppression of material fact.

10. In the enquiry, both the charges were found to have been established and thereafter following the due procedure, the petitioner was imposed with the pen alty of removal from service. The order was passed on 19.3.2002. As recorded in the impugned order of removal, the Enquiry Officer had examined witnesses in pre sence of the petitioner and he was allowed to cross examine them. The petitioner was also provided with copies of documents and statements of the witnesses imme diately after its recording. Copies of the prosecution document were also made a vailable to the petitioner for inspection. The petitioner was also provided with opportunity to adduce defence evidence.

11. The defence witness examined by the petitioner stated in their evidence that during July/August 1999, the wife and brother of the petitioner had come to the Battalion office and reported that the petitioner was admitted in hospital and sought for financial assistance for his treatment. However, no written infor mation/ intimation was furnished to them about detention of the petitioner in po lice custody and his involvement in criminal case.

12. The appellate authority appreciating entire evidence on record found tha t the petitioner had proceeded on 45 days medical leave w.e.f. 1.6.99 to 15.7.99 . He was due to report for duty on 10.7.99. But he remained absent from duty una uthorisedly without any sanction/permission from the competent authority and rep orted at his own on 30.11.99 after remaining absent for 137 days. It is in the e vidence that during the period of absence and while he was going with one MSF su rrendered dacoit namely Kadim Ali, some unknown persons fired upon them about 1 KM away from E/131 Bn. location at Dalgaon on National Highway-52. While the dac oit was killed on the spot, the petitioner sustained bullet injury. He was admit ted to hospital and thereafter on the basis of report furnished by the police, t he aforesaid criminal case under Section 302/34 IPC was registered against the p etitioner. He had to remain in police/judicial custody w.e.f. 25.6.99 to 29.9.99 . It was his duty to inform the authority about such detention. However, he did not do so and after remaining absent unauthorisedly for 137 days reported back f or duty. The charge against the petitioner was not that of his involvement in a c 13. riminal case under Section 302/34 IPC. The facts related to the criminal case ar e not involved in the departmental proceeding. The charges against the petitione r in the departmental proceeding are that of unauthorized absence from duty and material suppression of fact in not informing the authority about his involvemen t in a criminal case. Both the charges have been established in the enquiry and the departmental authority imposed the penalty of removal from service.

14. As a member of disciplined force, the petitioner ought not to have indul ged in the kind of activities in which he was found to have been involved. That apart, he also did not intimate the authority about his detention in police cust ody and his involvement in the aforesaid criminal case. Although, Mr. Maleque, learned counsel for the petitioner submits that t 15. he period of absence being only 137 days, the departmental authority ought to ha ve taken a lenient view, but the fact of the matter is that said unauthorized ab sence of 137 days was due to involvement of the petitioner in a criminal case, a fact, which the petitioner deliberately withheld from the competent authority.

16. As has been held by this Court in Union of India Vs. Mithilesh Singh, re ported in 2000 (3) GLT 62 unauthorized absence by a member of the disciplined fo rce may entail removal from service. That decision of the Division Bench of this Court has been affirmed by the Apex Court in Mithilesh Singh Vs. Union of India reported in (2003) 3 SCC 309. The Apex Court has observed that unauthorized abs ence from duty by members of disciplined force is a serious misconduct and no fa ult can be attributed to the employer in respect of imposition of penalty of rem oval/dismissal from service.

17. The submission made Mr. Maleque, learned counsel for the petitioner that during pendency of the criminal case, departmental proceeding ought not have be en initiated is not correct. Apart from the fact that the facts in both the proc eedings are distinct and different, mere pendency of the criminal case is not a bar to proceed with the departmental proceeding.

18. ion and accordingly it is dismissed. For all the aforesaid reasons, I do not find any merit in the writ petit