High Court
Case Details
W.P.(S) No. 7173 of 2005 (An application under Article 226 of the Constitution of India) No. 922334258 Ex-Constable Surinder Singh ... … Petitioner Versus 1. Union of India through its Secretary Ministry of Home Affairs, Govt. of India, New Delhi. 2. Director General, Central Industrial Security Force, New Delhi. 3. Assistant Inspector General/ IGCISF, Central Industrial Security Force, Patna .. …. …. ….. Respondents For the Petitioner For the Respondents : Mr. Sachin Kumar, Advocate : Mr. Faizur Rahman, CGC, UOI --- PRESENT HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR By Court: The petitioner has approached this Court challenging the penalty order dated 24.4.1997 and the appellate order dated 15.7.1997. 2. The brief facts of the case are that, the petitioner was appointed as constable in the year, 1992. On 26.6.1996 he was granted casual leave for 15 days and he was required to report for duty on 17.07.1996. In the meantime, he felt ill and on 15.7.1996 he informed the authority about his illness and sought 15 days' extention of leave. He resumed his duties on 15.11.1996. A Charge Memo was served upon the petitioner. The Article of Charge reads as under: Article of Charge. "CISF No. 922334258 Constable Surender Singh of 'B' Coy, CISF Unit, BSL-Bokaro is charged with gross misconduct and negligence in that he failed to report for duty on 17.7.96 (FN) after expiry of 15 days C.L. granted to him w.e.f. 26.6.96 to 12.7.96 with permission to avail holidays and remained OSL. without any valid authority/permission from the competent authority w.e.f 17.7.96 to till date inspite of the fact that he was issued with three call up notices at his home address noted in his service book. Hence the charge.” 3. An enquiry was conducted and charges levelled against the petitioner was found proved. The Disciplinary Authority passed the order of penalty on 24.4.1997 dismissing the petitioner from service and appeal preferred by the petitioner has been dismissed by order dated 15.7.1997 by the Appellate Authority. In these facts, the petitioner has approached this Court by filing the present writ petition. -2- 4. A counter-affidavit has been filed stating as under: 7. "That with respect to the question of law raised by the Petitioner in Para-3 of the Writ Petition, it is submitted that none of them are worth consideration of the Hon'ble Court and have no merit because:- I. The action taken against the petitioner by the Commandant C.I.S.F. Unit, BSL. Bokaro i.e dismissal of the petitioner from service is legal and justified. The petitioner was dealt under Rule 34 the C.I.S.F. Rules 1969 (Now under Rule 36 of the C.I.S.F. Rules, 2003). According to law a regular departmental enquiry was conducted and the petitioner was given full opportunity to defend his case. As he was found guilty in the departmental enquiry and his representation against findings of Enquiry Officer found not satisfactory, he was dismissed from service. II. The petitioner was supposed to submit from time to time relevant medical papers alongwith unfit certificate to authority when he fell ill but he did not do so and remained overstayed on leave. On his joining, all the medical papers should have been deposited, but he failed to do so. The petitioner did not produce any prescription and medical cash memo in support of his treatment for his ailment. Further the pathological tests reports have been submitted dated 01.07.96 and 15.09.96 whereas the petitioner reportedly fell ill w.e.f. 15.07.96. The pathological test conducted on 01.07.96. appears to be fabricated. It seems test report dated 15.09.1996 is also obtained to cover up his unauthorized over stay. III. The finding of enquiry officer is as per rule and regulation of the Force. The findings of Enquiry Officer are based on the fact that emerged during the course of enquiry. Enquiry Officer came to such findings after corroborating statements of Pws., Dws and documentary exhibits. IV. The petitioner was a member of an Armed Force of the Union and unauthorisedly over staying on leave for a period of 121 days is a serious act of indiscipline and misconduct.
Decision
V. The impugned order is in order and strictly as per rule. 8. That in reply to Para-5 of the Writ Petition, the Answering Respondents say and submit that the statement made therein is denied. In fact as per service records of the petitioner, he was habitual in overstaying leave and in addition to the present case he overstayed from leave for a period of 57 days from 04-05-95 to 29-06-95 in the past. He was also dealt with under Rule 34 of the C.I.S.F. Rules 1969 (now amended as Rule 36 of C.I.S.F. Rules, 2003) for the above misconduct of overstayed on leave and awarded -3- penalty of Reduction of pay by 02 stages from Rs. 900/- to Rs. 870/- for a period of one year with cummulative effect vide order dated 30.12.95. 9. That in reply to Para -6 & 7 of the Writ Petition, the Answering Respondents say and submit that the averments of the petitioner in these para are false, fabricated and not acceptable. In this connection it is submitted that the petitioner had sent a telephone on 15.7.96 to the Commandnant C.I.S.F., Unit BSL, Bokaro stating that he was ill and to extend 15 days leave, whereas as per medical certificate dated 15-07-96 produced by the petitioner on 15.11.96 when he rejoined from overstayal, he was reportedly advised 48 days rest by a village vaidya. This medical certificate dated 15.07.96 does not bear the signature of the petitioner, whereas it has been mentioned that petitioner has signed on it. It may be seen that if the petitioner was actually advised medical rest for 48 days on 15-07-96 then how he requested for extention of leave for 15 days only instead of 48 days in his telegram dated 15-07-96. Hence it is clear that the petitioner was neither sick nor he obtained the medical unfit certificate on 15-07-96, but managed to get it at a later date from a Vaidya to cover up his unauthorized absence. If he was really sick or seriously ill he should have sent his medical unfit certificate enclosing treatment prescription to his authority for extension of leave. But he failed to do so. Only he had sent a telegram for extension of leave for 15 days. On receipt, the petitioner was directed to report duty immediately as his request was not supported by any medical paper. Thereafter, the petitioner did not make any correspondence with his department. After remaining 121 days unauhorisedly he rejoined on 15.11.96 to the Commandant C.I.S.F. Unit, BSL, Bokaro for extention of leave Under Certificate of Posting (UCP) is not correct. The Commandant C.I.S.F., Unit, BSL, Bokaro has not received any request/application for extention of leave from petitioner as stated above except a telegram. The petitioner has taken a false and fabricated plea that he had sent request letter for extention of leave. It seems that he has managed the certificate of delivery of letter under UCP from postal authority who is not reasonable for delivery of letter sent in under certificate of posting. 5. Heard learned counsel for the parties and perused the documents on record. 6. Mr. Sachin Kumar, learned counsel appearing for the petitioner has raised two-fold contentions namely, (i) for the charge of unauthorized absence for 121 days, the order of dismissal from service without ascertaining the truthfulness of the defence taken by the petitioner and without recording a finding that such absence was willful, is liable to be quashed and, (ii) the Appellate Authority while deciding the appeal of the petitioner should not have taken note of the past misconduct of the petitioner and rejected the appeal of the petitioner. He has further submitted that it was incumbent upon the respondents -4- to get the petitioner medically examined which admittedly has not been done in the present case. He further submits that the enquiry officer recorded a finding that the medical prescription submitted by the petitioner cannot be ignored however, since the petitioner failed to get himself treated in Government Hospital which is 25 k.m. from his village, the defence taken by the petitioner seems to be doubtful, is not justified. The departmental authorities have not taken care to examine the veracity of the defence taken by the petitioner and therefore, order of dismissal from service inflicted upon the petitioner is liable to be quashed. 7. Per contra, Mr. Faizur Rahman, learned counsel appearing for the respondents has submitted that a perusal of documents on record and enquiry report clearly indicate that enquiry officer has taken notice of the fact that petitioner get himself examined by the local practitioner in village though the Government Hospital was only 25 k.m. away from his village. This has admitted that a telegram has been received in the office of the respondents however, the defence taken by the petitioner has been doubted and rejected on two grounds namely, (i) medical prescription submitted by the petitioner does not bear his signature and, (ii) though Government Hospital is nearby at about 25 k.m. from his village, the petitioner did not get himself medically examined in the Government Hospital rather he was treated by a local practitioner, and as per medical prescription, the petitioner was advised bed rest of 48 days he however, has written a letter for extention of leave for 15 days, and this creates doubt to the defence taken by the petitioner. 8. Learned counsel appearing on behalf of the respondents while adverting to the contention has submitted that petitioner’s unauthorized absence cannot be condoned and the order of dismissal is the appropriate penalty which would have imposed upon the petitioner by the Disciplinary Authority. Learned counsel for the respondents relied on judgments of the Hon'ble Supreme Court reported in (2005) 13 SCC 228 and (1996) 1 SCC 302. 9. It is a matter of record that the petitioner requested for extention of leave and that has been admitted by the -5- respondents. It is also a matter of record that it was open to the respondents to get the petitioner medically examined, however, no step has been taken by the respondents to get the petitioner examined by the Medical Board or doctor. There is no evidence on record to suggest that absence of 121 days from duty was intentional. No step has been taken either by the enquiry officer or by the appellate authority to ascertain the defence taken by the petitioner. I am of the opinion that ultimate conclusion arrived at by the enquiry officer to which the disciplinary authority concurred, is erroneous and is liable to be interfered with by this Court. 10. It is also appearing that the Appellate Authority while rejecting the appeal of the petitioner has considered past misconduct of the petitioner, which is not permissible in law. 11. In case of “Mohd. Yunus Khan Vs. State of Uttar Pradesh and others” reported in (2010)10 SCC 539, the Hon'ble Supreme Court has held as under; 34.”The courts below and the statutory authorities failed to appreciate that if the disciplinary authority wants to consider the past conduct of the employee in imposing a punishment, the delinquent is entitled to notice thereof and generally the charge-sheet should contain such an article or at least he should be informed of the same at the stage of the show- cause notice, before imposing the punishment.” 12. In view of the aforesaid, even it is admitted that the petitioner remained absent from duty for a period of 121 days without any just and proper cause, the penalty of dismissal from service is definitely excessive and disproportionate which has been framed against the petitioner and therefore, it is liable to interfered with by this Court. Accordingly impugned order dated 24.4.1997 is quashed. Since the petitioner was appointed in the year 1992 and he was dismissed from service by order dated 24.4.1997, it would be appropriate to remand the matter to the authorities for taking a decision on the question of punishment. Such decision should be taken by the Disciplinary Authority within a period of six weeks from the production of copy of this order. Jharkhand High Court, Ranchi Dated the 19/7/ 2013 Satyarthi/A.F.R. (Shree Chandrashekhar, J.)