RespondentsMr v. D. Sapkal, Senior
Legal Reasoning
1 wp 647-2021.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD WRIT PETITION NO. 647 OF 2021Devidas s/o Lachamanna Kadalwar,Age : major, Occu. : Nil,R/o. : Degloor, Tq. DegloorDist. Nanded – 431717... PetitionerVersus1.The Union of India,Through its Secretary,Home Department,New Delhi.2.Inspector General of Police,(Communication/Information Technology)CRPF, East Block No. 0-7, Level 4,R. K. Puram, Sector- 1,New Delhi – 110066.3.Deputy Inspector General of Police,Signal Range, CRPF, Sector – 5,Salt Lake, Kolkata,West Bengal – 700091.4.Commandant – 119 Battalion,CRPF, Rauriaya,Jorhat, Assam – 785004.5.Radio Grid Supervisor,119 – Battalion,CRPF, Rauriaya,Jorhat, Assam – 785004... RespondentsMr. V. D. Sapkal, Senior Advocate i/by S. R. Sapkal a/w Mr. Yash A Jadhav, Advocates for the Petitioner.Mr. Bhushan B. Kulkarni, Advocate for Respondent Nos. 1 to 5. 1 of 12 2 wp 647-2021.odt CORAM : KISHORE C. SANT, J.Date on which reserved for order :07th January, 2025.Date on which order pronounced :05th February, 2025. ORDER :- .The unsuccessful petitioner before all the authorities hasapproached this Court by challenging the judgment and order passedby the learned Inspector General of Police(Communication/Information Technology) CRPF, New Delhi. In therevision, the learned Inspector General of Police i.e. respondent No. 2confirmed the order passed by the Deputy Inspector General of Police,Signal Range, CRPF, Kolkata i.e. respondent No. 3. The learned DeputyInspector General of Police by the said order confirmed the orderpassed by the Commandant – 119 Battalion, CRPF, Rauriaya, Jorhat,Assam thereby dismissing the appeal. He further prayed for relief ofreinstatement of the petitioner with continuity in service andconsequential benefits. 2.The first respondent is the Union of India. The secondrespondent is the Inspector General of Police(Communication/Information Technology) CRPF, New Delhi. The thirdrespondent is the Deputy Inspector General of Police, Signal Range,CRPF, Kolkata. The Fourth respondent is the Commandant – 119 2 of 12 3 wp 647-2021.odtBattalion, CRPF, Rauriaya, Jorhat, Assam. The fifth respondent is theRadio Grid Supervisor, 119 – Battalion, CRPF, Rauriaya, Jorhat, Assam.3.The facts in short giving rise to the present petition are asbelow :4.The petitioner was appointed on 12.02.1999 to the post ofConstable in CRPF. In the service he passed examination of radiooperator in the year 2004. On completion of training he was appointedas radio operator at Nimach, Madhya Pradesh. In the year 2005, hewas transferred from place to place. The last such posting was at 119 –Battalion, Assam. While in service he applied for 40 days leave from21.04.2016 to 30.05.2016 to attend the rituals of death anniversary ofhis mother. The said leave was sanctioned. After leave period he wassupposed to report on 31.05.2016. However, he could not join theduties as he felt ill and was diagnosed with Pulmonary Tuberculosiswhich required a prolong treatment. When he was on leave an offencecame to be registered against him. He was therefore arrested and wasin custody from 21.07.2018 till 30.11.2018. From the jail he sentcommunication to the authorities stating that he is in jail. Hethereafter also preferred the said communication seeking extension ofleave along with supporting medical certificates and reports. 3 of 12 4 wp 647-2021.odt5.The department, however, decided to hold departmental enquiryfor overstaying and for disobedience. A memo was issued on24.01.2019 by the Deputy Inspector General of Police. A charge wasframed under Section 11 (1) of the Central Reserve Police Force Act(hereinafter referred to as “CRPF Act”). A charges was fordisobedience and being negligent in duties as he was on leave from21.04.2016 to 30.05.2016. He was to report on 31.05.2016, but he didnot report to the duties in spite of repeated letters sent on his homeaddress. He was ordered to visit in CRPF hospital or nearby CTC, CRPF,Nanded (Maharashtra) with complete medical reports for treatment orfor on duty treatment to report to Battalion Headquarter. In spite ofsuch directions, he did not report for treatment of disease to CRPFhospital. The second charge was that, he committed misconduct bydisobedience of order by remaining absent from duties for treatmentfrom 21.07.2018 to 30.11.2018 for 133 days . In the departmentalenquiry, it was held that the charges against the petitioner are proved.The punishment was proposed of dismissal from service. On receivingexplanation and finding that the same was not satisfactory, an order oftermination came to be passed on 20.07.2019 by respondent No. 3. Thepetitioner therefore filed an appeal before respondent No. 3. The samecame to be dismissed on 21.11.2019. Against the judgment in appeal,the petitioner preferred revision. The said revision also came to be 4 of 12 5 wp 647-2021.odtdismissed by order dated 20.07.2020. The petitioner is therefore,before this Court.6.It is the case of the petitioner that, though the allegations arethat the petitioner did not report to the duty, it is for the reason that thepetitioner was not well and thereafter was in jail for some period.About second charge, it is the case of the petitioner that the petitionerdid not receive any communication and therefore he could not reportto the medical hospital, CRPF. 7. The learned senior advocate Mr. Sapkal for the petitionerargued the case in detail. He submits that, the leave was sanctioned on18.04.2016. While on leave he was diagnosed with Tuberculosis and itis for that reason he could not join the duties. He was thereafter falselyimplicated in a criminal case for the offence under Section 307 of theIndian Penal Code. It is for this reason he was in jail from 21.07.2018to 30.11.2018. Though intimation was sent through jail, the same wasnot received by the respondents. He submits that, no fault can befound with the petitioner for non receiving of communication by therespondents. The communication sent directing petitioner to report toCRPF hospital was also not received as that was not sent on the correctaddress given by the petitioner. None of these acts can be said to bedeliberate act on the part of the petitioner. No case is therefore made 5 of 12 6 wp 647-2021.odtout of disobedience. The revisional authority did not give any personalhearing to the petitioner. Thus, since no personal hearing was given,the petitioner did not get an opportunity to satisfy the revisionalauthority. The punishment of dismissal is a major punishment andtherefore, it was necessary to give proper opportunity to the petitioner.His further submission is that, the petitioner could not report to theduty for the reasons beyond his control. Considering this aspect, thepunishment appears to be harsh and disproportionate. This is on thebackground that the period of absenteeism was condoned by theauthorities. When the period of absenteeism is condoned, there is noquestion of taking the said charge as proved. He thus submits that, theimpugned action deserves to be quashed and set aside. 8.The learned advocate Mr. Kulkarni appearing for all therespondents strongly opposes the petition. He submits that, taking thefacts as it is, it is seen that, even after release of the petitioner from jail,there was no intimation sent by the petitioner. In any case, the samewas even not received by the authorities. It was for the petitioner toreport to the duty in time and if he could not report to duties, it was forhim to send proper communication. The petitioner was working in adisciplined force which requires to maintain a strict discipline. Anylapse on the part of member of the force is taken seriously as it has got 6 of 12 7 wp 647-2021.odtthe serious consequences. Maintaining the discipline is of paramountimportance in the forces. He submits that, the communications sent bythe authorities were sent on the address given by the petitioner himself.There is no substance in the submission that the petitioner did notreceive the communications asking him to report to CRPF hospital. Hesubmits that, no interference is required while exercising jurisdictionunder Article 227 of the Constitution of India.9.This Court has gone through the submissions. It is seen that, thepetitioner was suffering from Tuberculosis and there is recordsupporting this position. The communication dated 20.11.2016 sentfrom the jail shows the endorsement of the jail authority sending to theheadquarter of the petitioner. However, the same appears to be theonly communication sent by the petitioner in that regard. There isnothing to show that, he had made any extra efforts to see that thecommunication reached by the authorities. The papers of thedepartmental enquiry conducted by Commandant – 119 Battalion,CRPF shows that, the statement of concerned persons were recorded.The report was sufficient to come to conclusion that the petitioner hadsuppressed the fact that he was lodged in the jail. He had sentcommunications dated 08.10.2017 to 07.06.2018 and 08.06.2018 to31.01.2019 and sought extension when in fact for this period the 7 of 12 8 wp 647-2021.odtpetitioner was in jail. It is thus concluded that, when he was in jail hedid not intimate this fact though he sent communications stating thathe needs to extend the leave as he is suffering from Tuberculosis. Inthe enquiry report, all the details are recorded about sending of thecommunication by the respondents to the petitioner. The petitioner didnot cross-examine the witnesses. As many as nine witnesses wereexamined in the departmental enquiry. In the enquiry, it is consideredthat, the leave was regularized of 643 days on medical ground. It isconcluded that the petitioner suppressed the fact that, he was lodged inthe jail. In spite of specifically asking to report to the hospital he didnot report.10.On 20.07.2019, the Commandant – 119 Battalion sentcommunication calling for the explanation. It is only thereafter heconsidered the questions and answers between the enquiry officer andthe petitioner. In the answer, it was stated that though he received thecommunication of asking him to report to the CRPF hospital, he did notreport. It is stated that, since he was taking treatment in Governmenthospital he did not feel it necessary to approach the CRPF hospital. Itwas again asked that why he was required treatment for about threeyears when Tuberculosis is normally cured within 6-9 months. Theanswer was that since he used to feel omitting after taking the tablet 8 of 12 9 wp 647-2021.odtand he was getting reactions. It is stated that, for this reason he didnot take tablets regularly. During the course of enquiry it came onrecord that the petitioner was not even at home for three months afterlodging the complaint against him and for that he had not made anycommunication. This all shows that, the conduct of the petitioner wasunbecoming a member of disciplined force. It is considered that, all thecommunications were sent on the address given by the petitioner. It isthe petitioner who was staying away from his residence. Thus,considering all, the order was passed of dismissal. In the meantime,the petitioner had also approached this Court by filing Writ Petition No.13887/2019 seeking certain reliefs. However, subsequently thatbecome infructuous in view of communication dated 21.11.2019. Aleave was granted to challenge the said communication in appropriateproceeding. 11.So far as not giving personal hearing to the petitioner isconcerned, this Court finds that, no provision is shown requiringpersonal hearing to be given to a member of force in a revision. Fromthe order of dismissal of petitioner this Court finds that, the medicalauthority had considered all the documents and the enquiry report. Theimpugned order shows that there was proper application of mind. It isspecifically considered that, though the petitioner was in jail he was 9 of 12 10 wp 647-2021.odtsending communications along with the medical papers seekingextension of leave period without disclosing that he was in jail. This isheld to be act of indiscipline. In the enquiry the petitioner also acceptedthat, since he was trying for bail, he was not at his home for aboutthree months. It is further considered that, he deliberately suppressedthe fact of his custody in jail. He stayed at a distant place from hisresidential place. Thus, all these things were considered.12.The learned senior advocate for the petitioner during the courseof argument relied upon the judgment in the case of Akhilesh PrasadVs. Union Territory of Mizoram1. This Court does not find that, the saidjudgment is useful in any manner to the petitioner. 13.He further relied upon the judgment in the case of Union of Indiaand others Vs. Giriraj Sharma2. In the said case, the delinquent hadover stayed the period of leave by 12 days. It was the case of theemployee that, because of unexpected circumstances he was requiredto over stay for 12 days. For such duration of over stay action ofdismissal was taken against the employee. In that view the High Courthad set aside the dismissal order. In an appeal before the Hon’ble ApexCourt, it is held that the penalty of dismissal from service was not1AIR 1981 SC 806.2AIR 1994 SC 215 10 of 12 11 wp 647-2021.odtcalled for in that case. It was left open for the authorities to impose aminor penalty. This Court finds that, the said judgment is also of nouse to the petitioner. In that case the period of over stay was only 12days and the High Court had accepted that it was because of theunexpected circumstances. 14.In the present case, the petitioner has over stayed for muchlonger period about 643 days and that too by suppressing the fact thathe is in jail. From the jail, he was sending the communications statingthat he is not well and suffering from Tuberculosis and was praying forextension of leave period. This is certainly a deliberate act on the partof the petitioner. 15.Considering all above and the judgments cited, this Court finds itdifficult to hold that the petitioner was Innocent. To hold that thepetitioner did not remain absent deliberately and that he could notobey the orders of the superiors as he did not receive thecommunication is difficult. It has clearly come on record that thepetitioner was staying at a distant place from his residence and it is forthis reason he did not receive the communications. Secondly, for allthese reasons this Court is not convinced by the submissions of thepetitioner. 11 of 12
Decision
12 wp 647-2021.odt16.This Court does not find any merit in the writ petition and thewrit petition, therefore, stands dismissed. No order as to costs. ( KISHORE C. SANT, J. ) P.S.B. 12 of 12