Satyendra Kumar Singh v. Union of India through Inspector General, Jharkhand, C.R.P.F, P.O. Dhurwa

thereby affirming the order dated 31.07.2014 passed by the Appellate Authority i.e. the Deputy Inspector General and the order dated 28.02.2014 passed by the Disciplinary Authority i.e. the Commandant, C.R.P.F, Ranchi by which the petitioner was removed from the services. 1

3. Learned Senior Counsel for the petitioner submitted that the impugned order dated 28.02.2014 passed by the Commandant, C.R.P.F is arbitrary, illegal and not sustainable in the eye of law. It is submitted that the petitioner had taken leave for treatment of his son. However, due to gravity of situation, he remained on leave for around 287 days on account of serious ailment of his son and father and in support of the same he had filed several documents before the Enquiry Officer as well as the Disciplinary Authority but the same were not taken into consideration and he was dismissed from his services for his absence from 19.02.2013 to

02.12.2013 i.e. for 287 days. It is submitted that the Disciplinary Authority i.e. the Commandant has not considered the document of treatment of his son and father filed by the petitioner.

4. It is submitted that the petitioner had filed appeal before the Deputy Inspector General, Ranchi through proper channel for reinstatement of his service on 26.05.2013. However, the Appellate Authority i.e. Deputy Inspector General had dismissed the appeal vide order dated 31.07.2014 by concurring with the finding of the Disciplinary Authority. Thereafter the petitioner had filed revision before the Inspector General, C.R.P.F on 17.09.2014 through proper channel which was also dismissed vide order dated

24.12.2014 by the Inspector General, C.R.P.F. It is submitted that the punishment order dated 28.02.2014 passed by Commandant, C.R.P.F is disproportionate to the gravity of offence.

5. In support of his contention, learned Senior Counsel for the petitioner has relied upon the judgment passed in the case of S.R. Tewari vs. Union of India and Another reported in (2013) 6 SCC 602 at Paragraph nos.24 and 26. It is submitted that the above judgment was relied by this Court in the case of Bishram Minz, Ex Constable No.1686 vs. The State of Jharkhand and Others 2 reported in 2015 SCC OnLine Jhar 2060 at Paragraph nos.7 and 8. Learned Senior Counsel for the petitioner has also relied upon the judgment passed in W.P.(S) No.605 of 2024 (Bhavesh Kant Jha vs. The State of Jharkhand and Ors.) disposed of on 15.03.2024 by the Co-ordinate Bench of this Court (Justice Sanjay Kumar Dwivedi). It is submitted that in view of the above, the impugned orders may be set aside and this writ petition may be allowed and the petitioner may be reinstated in service.

6. On the other hand, Mr. Anil Kumar, learned Addl.SGI for the Respondent-Union of India has submitted that the impugned order dated 28.02.2014 passed by the Disciplinary Authority i.e. the Commandant which was affirmed by the Appellate Authority i.e. the Deputy Inspector General vide order dated 31.07.2014 and the Revisional Authority i.e. Inspector General, C.R.P.F, Ranchi vide order dated 24.12.2014, are fit and proper and no interference is required from this Court. It is submitted that the writ petitioner is an absentee for 287 days and the authorities had proceeded against him as per Section 11 of the C.R.P.F Act and Rule 27 of the C.R.P.F Rules.

7. It is further submitted that the petitioner has failed to show any document as to whether he had been granted further permission from the authorities for remaining absent for 287 days. It is submitted that petitioner had taken leave for ten days with other admissible leave. However, he absconded and even after sending various letters which has been discussed by the Enquiry Officer as well as the Disciplinary Authority in the impugned order dated 28.02.2014, the petitioner has failed to produce any document seeking leave for further permission for treatment of his son and father. It is submitted that the petitioner could have joined 3 his duty also and informed the matter to the authorities concerned but he failed to do so.

8. Learned counsel for the Respondent-Union of India has submitted that the C.R.P.F is a disciplined institution and if a person remains willfully absent for a long days then department has to take tough action against him so that other person may not do such act again. It is submitted that there is no perversity in the order passed by the Commandant and Deputy Inspector General and Inspector General of C.R.P.F and the petitioner has not challenged the proceeding on the point of non-compliance of statutory provision.

9. Learned counsel for the Respondent-Union of India has relied upon the judgment passed in the case of Praveen Kumar @ Praveen Kumar Singh vs. The Union of India in L.P.A. No.119 of 2022 vide order dated 24.01.2023 by the Division Bench of this Court and submitted that in the above case the Hon’ble Division Bench of this Court upheld the finding of the Writ Court by which the writ petition was dismissed on account of long absence. Hence, this writ petition is devoid of merit and may be dismissed.

10. Having heard learned counsel for both the sides and gone through the records of this case, it appears that the petitioner was posted in C.R.P.F having No.060811199 C/G.D. D/112 and he had taken casual leave from 08.02.2013 to 18.02.2013 with permission to remain on leave on 14.02.2013, 15.02.2013 and 10.02.2013 and

17.02.2013 with holidays. However, after 19.02.2013 he remained absent without any permission which amounts to a serious offence under the provisions of Rule 27 of the C.R.P.F Rules, 1955. It has been claimed that several letters were issued to the petitioner for his appearance and thereafter he reported to his duty. 4

11. Thereafter vide order dated 12.11.2013 departmental proceeding was initiated against the petitioner and the memo of charges along with the list of witnesses were served upon him and one Brijendra Kumar, Assistant Commandant was appointed as an Enquiry Officer vide order dated 14.12.2013 and the petitioner was also directed to produce his case.

12. It appears that the petitioner was examined firstly on

23.12.2013 and the petitioner admitted his mistake for the charges levelled against him and had admitted the charges. After recording the statement of witnesses and after issuance of second show cause notice to the petitioner on 07.01.2014, even in which the petitioner has admitted his guilt/mistake, he was given opportunity to produce his defence evidence and documents in support of his case within fifteen days.

13. Thereafter on completion of said period, he was examined on third occasion on 23.01.2014 and in which he admitted his mistake and tendered pardon from the disciplinary authority. Hence, the petitioner had not produced any witness in support of his case. Although, he had produced certain documents with regard to Medical Treatment of his son and his father and from which it reveals that the petitioner had got treated his son at ‘Shankar Netralaya’ and ‘Fortis Eye Clinic’ at Kolkata from 27.12.2012 to

15.06.2013 and for treatment of his father from 09.03.2013 to

11.11.2013 at Ranchi and Hazaribagh respectively at different clinics.

14. However, the Enquiry Officer came to the conclusion that the petitioner could have joined the duty and as such the charges fully stand established against him. Thereafter, he had submitted Enquiry Report before the Disciplinary Authority and Disciplinary Authority i.e. the Commandant had also concurred 5 with the finding of the Enquiry Officer who had held the petitioner guilty for remaining absent for 287 days and passed orders for removal of the petitioner from the services.

15. Thereafter the petitioner had filed appeal which was dismissed on 31.07.2014 by the Deputy Inspector General, C.R.P.F and even the Revision filed by the petitioner was dismissed by the Inspector General, C.R.P.F on 24.12.2014.

16. The respondents have come out with the plea that the petitioner was declared absconder for remaining absence of 287 days in terms of Rule 27 of the C.R.P.F Rules and the learned counsel for the respondents has relied upon the judgment passed in L.P.A. No.119 of 2022 (Praveen Kumar @ Praveen Kumar Singh vs. The Union of India) disposed of on 24.01.2023 by the Division Bench of this Court.

17. In the above case, the Hon’ble Division Bench of this Court has dismissed the case filed by the employee concerned on the ground that he was a habitual absentee. However, in the present case, no such case has been made by the department that the petitioner has got past history of remaining absent or any prior punishment was awarded to him. Therefore, for the present, the finding of the L.P.A. No.119 of 2022 will not be relevant in the case of the petitioner.

18. It has been held by Hon’ble Supreme Court in the case of S.R. Tewari vs. union of India and Another reported in (2013) 6 SCC 602 at Paragraph nos.24, 25 and 26 as follows:- “Para-24:- The question of interference on the quantum of punishment has been considered by this Court in a catena of judgments and it was held that if the punishment awarded is disproportionate to the gravity of the misconduct, it would be arbitrary, and thus, would violate the mandate of Article 14 of the Constitution. In Ranjit Thakur v. Union of India [Ranjit Thakur v. Union of India, (1987) 4 SCC 611 : 1988 SCC (L&S) 6 1 : (1987) 5 ATC 113 : AIR 1987 SC 2386] , this Court observed as under : (SCC pp. 620-21, paras 25 & 27) “25. But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the court martial, if the decision of the court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. ***

27. In the present case the punishment is so strikingly disproportionate as to call for and justify interference. It cannot be allowed to remain uncorrected in judicial review.” (emphasis supplied) (See also Union of India v. G. Ganayutham [(1997) 7 SCC 463 : 1997 SCC (L&S) 1806 : AIR 1997 SC 3387] , State of U.P. v. J.P. Saraswat [(2011) 4 SCC 545 : (2011) 1 SCC (L&S) 718] , Chandra Kumar Chopra v. Union of India [(2012) 6 SCC 369 : (2012) 2 SCC (L&S) 152] and High Court of Patna v. Pandey Gajendra Prasad [(2012) 6 SCC 357 : (2012) 2 SCC (L&S) 140 : AIR 2012 SC 2319] .) Para-25:- In B.C. Chaturvedi v. Union of India [(1995) 6 SCC 749 : 1996 SCC (L&S) 80 : (1996) 32 ATC 44 : AIR 1996 SC 484] , this Court after examining its various earlier decisions observed that in exercise of the power of judicial review, the court cannot “normally” substitute its own conclusion or penalty. However, if the penalty imposed by an authority “shocks the conscience” of the court, it would appropriately mould the relief either directing the authority to reconsider the penalty imposed and in exceptional and rare cases, in order to shorten the litigation, itself impose appropriate punishment with cogent reasons in support thereof. While examining the issue of proportionality, the court can also consider the circumstances under which the misconduct was committed. In a given case, the prevailing circumstances might have forced the accused to act in a certain manner though he had not intended to do so. The court may further examine the effect, if the order is set aside or substituted by some other penalty. However, it is only in very rare cases that the court might, to shorten the litigation, think of substituting its own view as to the quantum of punishment in place of punishment awarded by the competent authority. 7 Para-26:- In V. Ramana v. A.P. SRTC [(2005) 7 SCC 338 : 2006 SCC (L&S) 69 : AIR 2005 SC 3417] , this Court considered the scope of judicial review as to the quantum of punishment is permissible only if it is found that it is not commensurate with the gravity of the charges and if the Court comes to the conclusion that the scope of judicial review as to the quantum of punishment is permissible only if it is found to be “shocking to the conscience of the court, in the sense that it was in defiance of logic or moral standards.” In a normal shockingly course, disproportionate, to direct the disciplinary authority to reconsider the penalty imposed. However, in order to shorten the litigation, in exceptional and rare cases, the court itself can impose appropriate punishment by recording cogent reasons in support thereof.” it would be appropriate punishment imposed

19. The above judgment was followed in the case of Bishram Minz, Ex Constable No.1686 vs. The State of Jharkhand and Others reported in 2015 SCC OnLine Jhar 2060 and Paragraph nos.7 to 10 read as follows:- “Para-7:- After having heard learned counsel for the parties the rivalized and giving my anxious consideration submissions, it is admitted fact that no procedural irregularity has been committed in conducting enquiry, but, the fact remains that the impugned order was passed without considering and examining the fact that the alleged absence was not willful and during his absence, the petitioner was mentally ill. Hence, the question that falls for consideration by this Court is whether the punishment of dismissal disciplinary authority is proportionate to the delinquency proved. from services awarded by Para-8. The Hon'ble Apex Court the case of S.R. Tewari (Supra) has exhaustively dealt with the issue of proportionality/quantum of punishment considering the catena of judgments delivered on this issue and reiterated that Court interfere with quantum of punishment only where punishment awarded is found to be shockingly disproportionate to gravity of misconduct. Para-9:- Applying the law laid down by Hon'ble Apex Court in right perspective, it can safely be said that this is a fit case, where the matter ought to be remitted back to the disciplinary authority for its re-consideration. Para-10:- On the conspectus of facts and on cumulative effects of above-narrated facts, reasons and judicial pronouncements, 8 the impugned order of punishment under Annexure 3 dated 25.11.2005 and the appellate order dated 6.7.2007 are hereby quashed and set aside. The matter is remitted back to the disciplinary authority-respondent no. 4 to consider the matter afresh on the quantum of punishment considering the fact that the petitioner was mentally ill and the absence was not willful and pass appropriate order in accordance with law within a period of eight weeks from the date of receipt/production of copy of this order.”

20. It has been held in the case of Bhavesh Kant Jha vs. The State of Jharkhand and Ors. passed in W.P.(S) No.605 of 2024 on 15.03.2024 by the Co-ordinate Bench of this Court (Justice Sanjay Kumar Dwivedi) at paragraph nos.5, 6 and 7 as follows:- “Para-5:- It is admitted position that the petitioner was appointed under the respondents as clerk-cum-cashier under the pilot project centre Maheshpur Raj, Pakur on 27.10.1984 and his services was confirmed and by the earlier order and the services of the petitioner was terminated and the said order was challenged before this Court in W.P.(S) No.4177 of 2008 which was allowed by the order dated 18.04.2016 and the matter was remanded back to the competent authority to pass a fresh order and pursuant to that, the Director, Handloom, Sericulture and Handicraft, Government of Jharkhand, has taken a decision by the order dated 24.03.2017 contained in annexure-3 holding that the case of the petitioner is identical to one Shailendra Kumar and he is also entitled for the same benefits and after three years the present impugned order i.e. 12.11.2020 has been passed by which the salary for the period 01.04.1998 till 12.04.2017 has been denied on the ground that for that period the petitioner had not worked. Further once the dismissal order was set aside and the decision was already there in favour of the petitioner, there is no reason why the salary for the period from 01.04.1998 till 12.04.2017 will not be provided to the petitioner. There is no doubt that the petitioner has not worked for certain period from 01.04.1998 till 12.04.2017 and the principle of „no work no pay‟ will apply in the facts and circumstances of each case, but there are parameters of passing such orders. If the Court comes to the conclusion that there is illegality on behalf of the authority concerned, and the petitioner was not allowed to work, the Court is required to quash the order and pass appropriate order. In the case in hand, it has already been held by this Court that by the impugned order by which the petitioner was terminated, was not found to be legal, and it was quashed and the predecessor of the present respondent no.2 has also taken a decision in favour of the petitioner, however, after three years, the present order has been passed. Thus, for the wrong of the respondent 9 State, the petitioner was prevented to work and if such a situation is there, the case of the petitioner is covered in light of the judgment of the Hon‟ble Supreme Court in the case of Pradeep, son of Raj Kumar Jain v. Manganese Ore (India) Limited, (2022) 3 SCC 683 in which it has been held that the question arises as to whether the back wages is to be given and as to what would be the extent of back wages and these are the aspects which depends on the facts of the case as noted in the case of Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (D.Ed.) and Others, (2013) 10 SCC 324. Thus, it is well settled that in the case where it is found that the employee is not at all at fault and yet he was visited with illegal termination which is actually a device by malice which may be unfair to deny him the fruits of employment which would have enjoyed, but for mala-fide termination, he was not allowed. In view of above facts and considering the law on the issue in question, the petitioner is entitled for salary with effect from 01.04.1998 till 12.04.2017. Para-6:- Further the impugned order is passed on the strength of Rule 58 and Rule 59 of Jharkhand Service Code. Rule 58 and 59 of Jharkhand Service Code and Rule 74 of the Bihar Financial Rules do not make complete bar of retrospective promotion, nor debar payment of arrears of salary on such retrospective promotion will be evident from Rule 74 of the Bihar Financial Rules where the authorities are competent to sanction benefit from retrospective effect. A reference in this regard may be made to the judgment rendered by the Hon'ble Patna High Court in the case of Sri Mahavir Pandey v. The State of Bihar & Ors., reported in 1999 SCC OnLine Pat 899. Paragraphs 10 and 11 of the said judgment are quoted herein below: “10. So, far as Rule 58 of the Bihar Service Code is concerned, it is to be read alongwith other relevant rules, namely, Rule 74 of Bihar Financial Rules and other guidelines/rules issued by the State from time to time.

11. Sub-rule (b) to rule 58 relates to a direct recruitment in overseas, which is not applicable in the present case whereas sub-rule (a) of rule 58 relates to draw of pay and allowance attached to tenure of a post of incumbent which starts from the date the person assume the duties, subject to exception specifically made in the rule. The same do not make complete bar of retrospective promotion, nor debar payment of arrears of salary on such retrospective promotion will be evident from Rule 74 of the Bihar Financial Rules where the authorities are competent to sanction benefit from retrospective effect, but in exceptional circumstances and in other cases with the special approval of the Government.” 10 Moreover, Rule 58 of Jharkhand Service Code and Rule 74 of the Financial Rules of the Government of Jharkhand have been considered by the Division Bench of Patna High Court in the case of ‘Dr. Paras Nath Prasad v. State of Bihar’ and the co-ordinate Bench of this Court in the case of ‘Suryadeo Prasad v. State of Jharkhand’. The petitioner termination order is already quashed and predecessor of the authority concerned has opined that petitioner is entitled for arrears. Para-7:- In view of that, impugned order dated 12.11.2020 is quashed.”

21. This Court finds that the Enquiry Officer has merely referred the documents filed by the petitioner regarding the ailment of his son and father but has not really considered as to whether the documents are genuine or not and has treated the case of the petitioner as of ‘Absconder’ despite the fact that the petitioner was busy in getting treatment of his father as well as son.

22. Even it reveals from the report of the Enquiry Officer as contained in Annexure-3 to the counter affidavit that the petitioner has taken his son and father to different Clinics and Hospitals including the ‘Shankar Netralaya’ and ‘Fortis Eye Center’ at Kolkata and it reveals that the son of the petitioner Master Rounak Singh is aged around four years only and the photo copy of the prescription of Master Rounak Singh and his father Niranjan Singh has been enclosed as Annexure-1 series. However, the same has neither appreciated by the Enquiry Officer nor by the Disciplinary Authority while coming to the final conclusion by which the petitioner was declared absconder and willful guilty for remaining absent for 287 days. However, these aspects have not been considered during the enquiry.

23. This Court further finds that it appears to be first offence made by the petitioner and that too due to ailment of his son and 11 father and hence this Court is taking lenient view considering the facts and the circumstances of the case.

24. This Court finds that the punishment awarded to the petitioner is disproportionate to the gravity of offence in view of the law laid down by the Hon’ble Supreme Court reported in (2013) 6 SCC 602 (S.R. Tewari vs. union of India and Another) in which the judgment passed in (2005) 7 SCC 338 was relied upon by Hon’ble Supreme Court and also by the Co-ordinate Bench of this Court.

25. Thus, in view of the discussions made above, the impugned order dated 28.02.2014 passed by the Disciplinary Authority i.e. the Commandant and the Appellate Authority i.e. the Deputy Inspector General vide order dated 31.07.2014 and the Revisional Authority i.e. Inspector General, C.R.P.F, Ranchi vide order dated

24.12.2014 are set aside and the matter is remitted to the Disciplinary Authority to pass fresh order of punishment except the punishment of termination, removal or dismissal and the authority will be at liberty to pass necessary order on the point of payment of salary for the said intervening period.

26. Thus, this W.P.(S) No.1623 of 2015 is allowed with the observations mentioned above. (Sanjay Prasad, J.) Saket/- AFR 12