Ex. Constable/GD Trimohan No. 031456987 v. Union of India, through Secretary, Ministry of Home Affairs, Government of India & Ors.

The brief facts of the case are that the petitioner is a young man of about 28 years of age. His father expired when he was only nine years old in the year, 1990, leaving behind him, his mother, and four sisters. In May, 2003, the petitioner was enrolled in the Central Reserve Police Force (hereinafter referred to as “the C.R.P.F.”) as Constable (General Duty). On successful completion of training, he served with his Unit. In March, 2005, the petitioner proceeded on ten days leave,but unfortunately during this period his grandfather expired because of which he overstayed for seven days. The explanation given by the petitioner was accepted by the respondents and C.W.P. No. 2466 of 2010. -2- punishment was awarded to him. In May, 2005, the petitioner availed two days leave, but suffered severe illness, he overstayed for 28 days and reported back for duty. The matter was enquired into by respondents and justification for overstay of leave as submitted by the petitioner was accepted. The petitioner continued in service. On 23.10.2006, the petitioner was posted at Srinagar, he was sanctioned 11 days casual leave. The petitioner was to report back in the Unit on 06.11.2006, but unfortunately on 03.11.2006, the petitioner had very high temperature because of which he was admitted in Civil Hospital, Mahendergarh, where tests were conducted on him and he was diagonised as suffering from typhoid. He remained under treatment at Civil Hospital, Mahendergarh till 31.01.2007. He was declared fit (Annexure-P-1) to join duty by the Senior Medical Officer, Civil Hospital, Mahendergarh with effect from

01.02.2007. Due to heavy doses of medicines and antibiotics, the petitioner suffered from hepatitis and got treatment from a private specialist doctor at Farukh Nagar (Gurgaon) till 30.03.2007. He received fitness certificate from Dr. Surender Rana, who was treating him at Farukh Nagar (Gurgaon), which is dated 30.03.2007 (Annexure-P-7). He reported for duty at his Unit on

03.04.2007, which was after 148 days of his overstay of leave and submitted certificates of fitness issued by the doctors. On 05.04.2007, respondent No. 5 served Memorandum and Statement of Charge for Mis-conducts and Disobedience (Annexure-P-8) due to overstay of leave. The petitioner submitted his reply dated 13.04.2007, which was received by the Disciplinary Authority on 16.04.2007. The same was not found satisfactory and an Enquiry Officer was appointed to enquire into the charges levelled against the petitioner, vide order dated 20.04.2007. Preliminary hearing was held on 05.05.2007. The petitioner pleaded guilty of the charges levelled against him. The Prosecution Witnesses (hereinafter C.W.P. No. 2466 of 2010. -3- referred to as “the PWs”) appeared before the Enquiry Officer and proved the charges against the petitioner on the basis of the documents which included issuance of letters dated 15.11.2006 (Annexure-P-11) and 30.11.2006 (Annexue-P-12), directing the petitioner for reporting back on duty forthwith, but with no result. A complaint dated 15.12.2006 was lodged under Section 10 (m) of the C.R.P.F. Act, 1949, in the Court of C.J.M.-cum-Commandant 139 Battalion, Central Reserve Police Force against the petitioner. Warrant of arrest was issued, vide order dated 08.01.2007 for apprehension of the petitioner. The statements of the P.Ws. was recorded in the presence of the petitioner and he was given full opportunity to cross-examine the witnesses. Even copies of the statements of each of P.Ws. was also handed over to the petitioner and signature was obtained on the original copy. After conclusion of the evidence of the department, the petitioner was given 15 days time to prepare his defence and to submit his oral as well as documentary evidence in defence. In order to prove his innocence, he only submitted two certificates, i.e., Medical Fitness Certificate dated nil (Annexure-P-1) issued by the Senior Medical Officer, Civil Hospital, Mahendergarh, and Medical Fitness Certificate dated 30.03.2007 (Annexure-P-7) issued by Dr. Surender Rana, Farukh Nagar (Gurgaon). It would not be out of way to mention here that apart from these medical certificates, no other documents were submitted by the petitioner in support of the certificates, which would include results of tests conducted on him, prescription slips and copies of lab reports in proof of his illness. The Enquiry Officer on the basis of evidence led by the prosecution and the petitioner in his defence came to a conclusion that the charges against the petitioner were fully proved and the report was submitted to the Punishing Authority. On consideration of the inquiry report, the C.W.P. No. 2466 of 2010. -4- Punishing Authority agreed with the findings returned by the Enquiry Officer and proceeded to independently assess the same and came to the conclusion that the charges against the petitioner stood fully proved. It was also observed in the Order that during a small span of his service of a little above four years, the petitioner had committed offence of overstay of leave three times and, therefore, was an habitual offender, which shows his incorrigible attitude, and accordingly, the Punishing Authority imposed punishment of removal from service with effect from 16.06.2007. Copy of this order is appended as Annexure-P-14. Thereafter, Appeal, Revision, and Mercy Petition preferred by the petitioner, were dismissed, being devoid of merit, by the Competent Authority. The said Orders are dated 20.10.2007 (Annexure-P-18), 09.02.2008 (Annexure-P-20) and 05.11.2008 (Annexure-P-23) respectively. These orders are challenged by the petitioner in the present writ petition. Counsel for the petitioner submits that justifiable reasons had been submitted by the petitioner before the Competent Authority for his overstay of leave for 148 days. He contends that because of his disease, which he had suffered, while he was on leave, he could not report back on duty on 06.11.2006. He had produced the certificates issued by the competent doctors, who had treated him and, therefore, there was no reason why these documents were not accepted firstly by the Enquiry Officer and thereafter by the Punishing Authority and the higher authorities, while considering the case of the petitioner. He contends that, although, the petitioner had admitted his guilt, but that was only with regard to his overstay of leave. The justification for his overstay was provided by the petitioner and, therefore, extreme punishment of removal from service was not called for in the case and the punishment handed down to the petitioner was disproportionate to the mis- C.W.P. No. 2466 of 2010. -5- conducts, which had been committed by him. He, therefore, contends that this Court should interfere on the question of quantum of punishment and grant relief to the petitioner. In support of his contention, he relies upon the judgments of Hon'ble the Supreme Court of India in the cases of Shri Bhagwan Lal Arya Versus Commissioner of Police Delhi and others 2004 (2) R.S.J. 420, and Coal India Limited and another Versus Mukul Kumar Choudhri and others 2009 (4) S.C.T. 426, and a Single Bench Judgment of Jammu and Kashmir High Court in the case of Ex. Rifleman Tilak Raj Versus Union of India and others 2009 (4) S.C.T.645. I have heard counsel for the petitioner and have gone through the records of the case. The facts as have been enumerated hereinabove clearly spells out the conduct of the petitioner. In a short span of time, i.e., little more than four years of service in a disciplined Force, i.e., C.R.P.F., the petitioner had committed three mis-conducts of overstay of leave. It started with 7 days in March, 2005, which increased to 28 days in May, 2005, and has now reached to a proportion, where he had overstayed leave for 148 days of leave in 2007. The last span of overstay of leave was from 06.11.2006 to 03.04.2007. The observations, thus, of the Disciplinary Authority that the petitioner was an habitual offender, is correct. The reasoning given by the Punishing Authority and the Appellate Authority is fully justified as is apparent from para 4(i)(j) and 5 of the Order dated 20.10.2007 (Annexure-P-18), passed by the Appellate Authority, which reads as follow :- “(4) xxx (i) The appellant had submitted a medical certificate dated nil issued by Senior Medical Officer, C.H.C. Mahendergarh and medical certificate dated 30.03.2007 issued by Dr. Surinder Rana, Farrukh Nagar (Haryana) alongwith this appeal. As per C.W.P. No. 2466 of 2010. -6- certificate issued by CHC, Mahendergarh, the appellant remained under treatment w.e.f. 03.11.2006 to 31.01.2007. Though the certificate was issued by a Sr. Medical Officer of CHC, Mahendergarh, there was no registration No. and date on the certificate. Medical certificate issued by Dr. Surender Rana, states that the appellant was under treatment w.e.f. 07.02.2007 for Peptic ulcer and fit for duty w.e.f. 30.03.2007. The appellant did not produce any evidence i.e. prescription slips and copies of Lab Reports in support of his illness. Thus from the above facts, it is evident that the appellant had managed to get medical certificates for justifying his absence from Unit Hqr. Had the appellant been ill for such a long period, he should have reported in Composite Hospital, C.R.P.F., New Delhi or GC CRPF Hospital, Gurgaon, which were nearer to his home town where better treatment is available free of cost with the help of specialists. But the appellant did not do so and remained overstayed from leave. (j) As is evident from the DE file, during the course of enquiry the appellant was given full opportunity to defend his case. All the statements of Prosecution witnesses were recorded in the presence of the appellant. The appellant himself pleaded guilty of charges framed against him during the course of enquiry. The DE was conducted as per existing instructions.

5. From the factual position explained above, I have come to the conclusion that the action taken by the disciplinary authority for imposing punishment of 'Removal from service' against the appellant was just, fair and in order and well within the framework/provision of rules existing on the subject. The appellant has not brought out any new facts/material evidence in his present appeal to decide the case in his favour. The DE was conducted as per laid down procedure and existing instructions and charges levelled against him were proved beyond any doubt. The appellant was given ample opportunity to defend his case at all levels during the course of DE as well as by the disciplinary authority before finalizing and issuing the final orders on DE. Therefore, I find the punishment imposed on the appellant fully C.W.P. No. 2466 of 2010. -7- commensurate with gravity of offence committed by him and thus, I find no reason to interfere with the orders passed by the Commandant 139 Bn C.R.P.F. vide his O/Order No. P.VIII-1/2007- EC-II, dated 16.06.2007.” A perusal of the above order clearly shows that no proper appreciable stand was taken by the petitioner during the inquiry proceedings and at the subsequent stages. The inquiry was held by the Enquiry Officer in accordance with the Rules governing the disciplinary proceedings and there was no violation of the principles of natural justice by him. Due opportunity was given to him during those proceedings and the petitioner had fully participated therein. In a disciplined Force, such conducts of overstay of leave and not once or twice, but three times in a short span of four years of service, leaves no manner of doubt that the petitioner was having incorrigible attitude and was unfit for employment in the Force. Discipline is the lifeline of the Force of which the petitioner was a member. Leniency was on two earlier occasions shown to the petitioner for overstay of leave created a feeling of taking things lightly and had grown into a bad habit, which if not dealt with sternly has a tendency to spread to other members of the Force, which would lead to disastrous consequences, which cannot be permitted. The conclusions, thus, drawn by the Authorities are fully justified and does not call for any interference by this Court. The punishment awarded to the petitioner was as per the mis- conducts committed by him, which is not disproportionate as would call for any interference by this Court. The judgments relied upon by counsel for the petitioner would not be of much help to the petitioner in the light of the fact that the petitioner has not been able to justify his overstay of leave, which mis- conduct is not an isolated instance of this mis-conduct on his part. C.W.P. No. 2466 of 2010. -8- Finding no merit in the present writ petition, the same stands dismissed. (AUGUSTINE GEORGE MASIH) JUDGE February 11, 2010. sjks.