Dharmraj Bhagat, son of late Lalan Bhagat, aged about 31 years, resident of village v. …
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (S) No. 1653 of 2023 Dharmraj Bhagat, son of late Lalan Bhagat, aged about 31 years, resident of village Sonatand, P.O. Siwandih, P.S. Bokaro Steel City, District Bokaro Versus … … Petitioner 1. The Union of India, Ministry of Home Affairs, Jai Singh Marg, Hanuman Road Area, P.O. & P.S. Connaught place, New Delhi, 110001 2. The Director General of Border Security Force, Block 10, CGO Cmples Lodhi Road, New Delhi-110003, P.O. + P.S. & District Delhi 3. Inspector General of Border Security Force (BSF), Punjab Frontier, BSF Campus, Jalandhar Cantt. Punjab, P.O. + P.S. & District Jalandhar, Punjab 4. The Commandant 136 Battilion, BSF, KMS WALA, P.O. Khai Pheme Ke, … … Respondents P.S. Ferozepur, Dist. Ferozepur, Punjab CORAM: HON’BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY --- For the Petitioner For the UOI 09/18th April 2024 --- ---
Legal Reasoning
: Mr. Munna Lal Yadav, Advocate : Mr. Anil Kumar, ASGI Ms. Chandana Kumari, AC to ASGI 1. 2. Learned counsel for the parties are present. This writ petition has been filed for the following reliefs: “(I) To quash/set aside the Office Order dated 04.09.2019 (Annexure-3) the Commendent-136 BATTALION, BSF,KMS WALA, passed by Ferozepur, Punjab, whereby and where under the petitioner has been dismissed from service for absence without leave with effect from 04.09.2019 and also other penalty was given to the petitioner. (II) To also quash/set-aside the order dated 04.05.2020(Annexure-4) passed by the Office of the Inspector General, Frontier Headquarter BSF, Jalandhar, Punjab whereby and whereunder appeal, which is filed by the petitioner has been dismissed and confirmed the order passed by the Commandant, 136 Battalion, BSF, KMS WALA, Ferozepur, Punjab. (III) To quashed/set aside the entire departmental proceeding initiated against the petitioner. (IV) To grant of all consequential benefits and for direction to the petitioner to be deemed to have been service continuously. (V) For any other appropriate relief or reliefs to which the petitioner is found to be entitled in the facts and circumstances of the present case.” Argument of the petitioner 1 3. The learned counsel for the petitioner submits that the petitioner has been dismissed from service on account of absence without leave but the authorities have failed to consider that the absence is not willful rather the petitioner had applied for leave on account of illness of his mother for the period from 05.05.2019 to 19.05.2019 and thereafter he did not report back for duty on account of compelling circumstances. The learned counsel has referred
Decision
to paragraph 7 and 8 of the writ petition, which are quoted as under: - “7. That the mother of the petitioner was seriously ill as a case of both kidney failure and admitted in ICU and there was no one to look after her. Thus the petitioner overstayed of the leave on compelling circumstances. Unfortunately his mother subsequently died. 8. That thereafter, petitioner reported his duty and submitted the petition before the commandant 136th BN. B.S.F alongwith the medical certificate regarding the treatment of his mother and he stating that due to serious illness of his mother and subsequently she died as such he over stayed the leave.” 4. The learned counsel has referred to the judgment passed by the Hon’ble Supreme Court reported in (2012) 3 SCC 178 (Krushnakant B. Parmar vs. Union of India & Anr.) and has referred to paragraph Nos. 17 to 19, which are quoted as under: - “17. If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence cannot be held to be wilful. Absence from duty without any application or prior permission may amount to unauthorised absence, but it does not always mean wilful. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalisation, etc., but in such case the employee cannot be held guilty of failure of devotion to duty or behaviour unbecoming of a government servant. 18. In a departmental proceeding, if allegation of unauthorised absence from duty is made, the disciplinary authority is required to prove that the absence is wilful, in absence of such finding, the absence will not amount to misconduct. 19. In the present case the Inquiry Officer on appreciation of evidence though held that the appellant was unauthorisedly absent from duty but failed to hold the absence was wilful; the disciplinary authority as also the Appellate Authority, failed to appreciate the same and wrongly held the appellant guilty.” 2 5. The learned counsel has also relied upon the judgment passed by this Court in W.P. (S) No. 3313 of 2015 (Vijay Kumar Oraon vs. Union of India & Others) dated 17.12.2021 and has referred to paragraph 7 thereof, which is quoted as under: - “7. However, from the order of the revisional authority (Annexure 9), it transpires that he had considered one letter dated 15.12.2014 in his order and had accepted the contention of the petitioner with regard to illness of his wife. This clearly goes to show that the petitioner was under compelling circumstance due to illness of his wife. However, there is no finding given by the revisional authority with regard to willful absenteeism. In the case of Krushnakant B. Parmar versus Union of India and Another reported in (2012) 3 SCC 178 the Hon’ble Apex Court has dealt this issue and laid down the law at Paragraph 17, 18 and 19 which is quoted herein below: “17. If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence cannot be held to be willful. Absence from duty without any application or prior permission may amount to unauthorized absence, but it does not always mean willful. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalization, etc., but in such case the employee cannot be held guilty of failure of devotion to duty or behavior unbecoming of a government servant. 18. In a departmental proceeding, if allegation of unauthorized absence from duty is made, the disciplinary authority is required to prove that the absence is willful, in the absence of such finding, the absence will not amount to misconduct. 19. In the present case the enquiry officer on appreciation of evidence though held that the appellant was unauthorisedly absent from duty but failed to hold that the absence was willful; the disciplinary as also the appellate authority, failed to appreciate the same and wrongly held the appellant guilty.” After going through the aforesaid judgment it is clear that to hold unauthorized absence as misconduct the department must give a finding of willful absence. The order dated 21.11.2015 passed by the revisional authority clearly goes to show that though he has taken into consideration the documents filed by the petitioner and has accepted the contention that his wife was ill, however, without giving any finding on the illness/willful absenteeism he has held the petitioner guilty and sustained the order of punishment.” 6. The learned counsel has submitted that the matter in W.P. (S) No. 3313 of 2015 (supra) was remitted back to the authority for a fresh order on the quantum of punishment. The learned counsel has also submitted that the proper enquiry was not conducted and therefore the impugned order is fit to be set- aside. 3 7. The learned counsel has also submitted that aforesaid aspects of the matter have not been properly considered by the appellate authority and therefore the appellate order is also fit to be set-aside. 8. Without prejudice to the aforesaid submission, the learned counsel for the petitioner has submitted that the punishment of dismissal is harsh and shockingly disproportionate and therefore the matter may be remitted for passing an appropriate order on quantum of punishment. Arguments of the respondents 9. The learned counsel appearing on behalf of the respondents, while opposing the prayer of the writ petitioner, has submitted that the petitioner was undergoing punishment of 89 days rigorous imprisonment with effect from 14.03.2019 to 10.06.2019 in Force custody and during this period he applied and was granted earned leave of 15 days from 05.05.2019 to 19.05.2019 on parole but thereafter he neither informed the respondent authorities nor reported for duty. Consequently, three registered letters were sent to the petitioner at his home address with a direction to resume his duty but he neither resumed his duty nor gave any reply. Thereafter a court of enquiry was set up and after considering the materials, it was reported that the petitioner is habitual of overstaying the leave and he was absenting without any information of prior permission from the authority. Otherwise also, he should have requested for extension of leave. His conduct showed that he overstayed the leave intentionally and without sufficient cause and in such circumstances, it was directed that a show cause notice be issued to the petitioner to report back to duty, but in spite of that the petitioner did not report back for duty and ultimately the petitioner has been terminated from service. 10. The learned counsel submits that the procedure as per the provisions of Section 62 of the Border Security Force Act, 1968 has been followed and there is no procedural irregularity. 11. The petitioner filed an appeal and the same was also dismissed. 4 12. The learned counsel has also submitted that vague statement has been made in the writ petition with regard to illness and also death of the mother of the petitioner. 13. The learned counsel submits that the impugned orders do not call for interference. Findings of this Court 14. After hearing the learned counsel for the parties and considering the facts and circumstances of this case as placed on record by the petitioner, it is not in dispute that the petitioner was undergoing punishment of 89 days rigorous imprisonment with effect from 14.03.2019 to 10.06.2019 and was granted earned leave with effect from 05.05.2019 to 19.05.2019 on parole and the remaining period of rigorous imprisonment i.e. period of 37 days was to be undergone by the petitioner with effect from 20.05.2019 to 25.06.2019 on joining from leave. After expiry of leave, the petitioner was required to resume his duty on 19.05.2019 but he failed to do so. The impugned order also reflects that three registered letters were sent to the petitioner at his address with a direction to resume duty but he neither resumed duty nor gave any reply. 15. From perusal of the writ petition, this Court finds that it is not the case of the petitioner that the petitioner did not receive any of the registered notices issued to him. It further appears from the impugned order that the petitioner did not respond to any of the registered notices and accordingly neither sought any further leave nor informed the authority regarding reasons for absence from duty. 16. This Court further finds that as per the provisions of Section 62 of the BSF Act, 1968, a court of enquiry was ordered and after completion of court of enquiry, the petitioner was called upon to show cause against the proposed action of termination to which the petitioner did not respond and failed to avail of such an opportunity. The petitioner was ultimately dismissed. 17. This Court also finds that the petitioner filed appeal and the petitioner has not even annexed a copy of the memo of appeal filed by the petitioner in the writ records to bring on record the grounds on which the appeal was filed. 5 However, from perusal of the appellate order, it appears that the appeal has been dismissed considering the materials on record and it also appears from the appellate order that the appeal was filed beyond the period of limitation. No argument has been advanced by the learned counsel for the petitioner in connection with delay in filing in appeal and no explanation has been mentioned in the writ petition with regard to delay in filing appeal. 18. In the writ petition, the petitioner has taken a stand in paragraph Nos. 7 and 8 as quoted above that the mother of the petitioner was seriously ill on account of both kidney failure and was admitted in ICU and subsequently, she died. However, neither any document in connection with illness of the mother of the petitioner nor any detail regarding the period of illness or even the death certificate of the mother of the petitioner have been placed on record even to prima-facie substantiate that the petitioner was attending his mother after 19.05.2019. The petitioner has further stated in paragraph 8 of the writ petition that he reported for duty and submitted the petition before the Commandant 136th BN. B.S.F. along with medical certificate regarding the treatment of his mother, but neither such petition nor any medical certificate has been brought on record in this writ petition. 19. The fact remains that the petitioner did not respond to any of the registered letters which were said to have been served upon the petitioner asking him to join the duty. Certainly, all absence from duty are not to be treated as willful if there is some explanation from the side of the incumbent regarding his absence. However, in the present case, the petitioner neither reported for duty in spite of notices nor gave any intimation to the authorities regarding his absence or for extension of duty nor there is any cogent explanation to justify his conduct. The reasons cited in the writ petition about illness and death of the mother of the petitioner are absolutely vague, without any supporting documents and the same cannot be taken into account to give any relief to the petitioner in writ jurisdiction. 20. The judgments relied upon by the petitioner reported in (2012) 3 SCC 178 (supra) followed in W.P. (S) No. 3313 of 2015 do not apply to the facts 6 and circumstances of this case. In the said judgement it has been held that if the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence cannot be held to be willful. In the present case, the petitioner has failed to put on record any compelling circumstances which prevented the petitioner to join duty and the explanation for not joining duty, that is illness of his mother and her death is vague, not supported by any material as explained above and such explanation has been rejected by this court as mentioned above. 21. Accordingly, this Court is of the considered view that the authorities have rightly dismissed the petitioner from service. 22. Considering the aforesaid findings, and totality of the facts and circumstances of this case, this Court finds no reason to interfere with the impugned orders under Article 226 of the Constitution of India. 23. 24. Pending I.A., if any, is closed. Accordingly, there is no merits in this writ petition, which is dismissed. Mukul (Anubha Rawat Choudhary, J.) 7