Pato Hembram v. Union of India — 1999 DIGILAW 559 (CAL)

Judgment Samaresh Banerjea, J. In the present writ application, the petitioner, who was a constable in Central Industrial Security Force at Hindusthan Fertiliser Corporation Ltd., Durgapur Unit, has challenged his order of dismissal dated 21.7.92 passed in a disciplinary proceeding. 2. Admittedly, the petitioner while in service proceeded on out pass to his native place from 17.12.87/1500 hrs. to 19.12.87/1800 hrs. Admittedly, the petitioner could not return within the aforesaid time but reported for duty at 06.44 hours on 20.12.87 and was allowed to join his duties. 3. Thereafter, admittedly a disciplinary proceeding was initiated against the petitioner on the following two charges : "Article of Charge I : A gross misconduct and indiscipline in that No. 834310050 constable P. Hembram proceeded on out pass for his native place from 17.12.87/1500 hrs. to 19.12.87/1800 hrs. with the direction to report back for duty on 19.12.87/1800 hrs. but failed to report back on due date and time i.e. 19.12.87/1800 hrs. Article of Charge II : A gross misconduct and indiscipline act in that No. 834310050 constable P. Hembram over-stayed his out pass permission granted to him and further fail to inform about his involvement in the criminal case." 4. A disciplinary proceeding was thereafter initiated against the aforesaid charges wherein ultimately, it appears that the Enquiring Officer submitted a report finding the petitioner guilty of misconduct, a copy of which was admittedly supplied to the petitioner. It also appears admittedly, the petitioner made a representation against the same and thereafter by the impugned final order, the petitioner was dismissed from service. 5. It may also be recorded that admittedly, the Superintendent of Police, Hooghly by his Memorandum dated 4.1.88 forwarded, a prayer of the Investigating Officer to Pandua P.S. Case No.8 dated 19.12.87 under section 302 of the Indian Penal Code to the Commandant of the CISF Durgapur, intimating him that the petitioner was wanted in such case. The petitioner was thereafter arrested. Admittedly, in the said Criminal Case the petitioner, ultimately has been acquitted honourably by judgment and order dated 16.2.98 passed by the learned Additional Sessions Judge, 2nd Court, Hooghly, in Sessions Trial No. 141/98. The petitioner was thereafter arrested. Admittedly, in the said Criminal Case the petitioner, ultimately has been acquitted honourably by judgment and order dated 16.2.98 passed by the learned Additional Sessions Judge, 2nd Court, Hooghly, in Sessions Trial No. 141/98. In the said judgment it was held by the learned Judge that the prosecution neither adduced direct evidence nor circumstantial evidence that the accused person caused the death of Panu Soren, the daughter of the de facto complainant or the accused person did any act with intention of causing death of said Panu Soren. Be it noted that the victim is the sister-in-law of the present writ petitioner. 6. The present writ petition has been moved challenging the aforesaid order of dismissal after the acquittal of the petitioner from the said criminal case. 7. The main challenge of the order of dismissal of the writ petitioner is that the Charge No. II, namely, that the petitioner overstayed his out-pass permission granted to him and further, failed to inform about his involvement in the criminal case is absolutely void and illegal. 8. Learned Counsel for the petitioner has submitted, inter alia, that a person can be said to be involved in a criminal case only when he is an accused in such case and the police puts him under arrest, in the instant case, admittedly, the petitioner came to know that he is an accused in the said case only when the Superintendent of Police, Hooghly, forwarded a report of the Investigating Officer to the Commandant on 4.1.88 when the petitioner was also put under arrest but prior thereto, he Bever being in custody of the Police nor being aware that he is an accused in criminal case, the question of knowing about his alleged involvement in the criminal case cannot arise. 9. It has been further submitted that so far as the other charge is concerned, namely, that he failed to report back to duty on due date i.e. by 18 hrs. 9. It has been further submitted that so far as the other charge is concerned, namely, that he failed to report back to duty on due date i.e. by 18 hrs. of 19.12.87, the disciplinary authority as also the Enquiring Officer did not consider at all that it was the specific case of the petitioner that such failure to report to his duty was not wilful but because of unavoidable circumstances, inasmuch as, on going to native place, he came to know about the murder of his sister-in-law for which he had to go to the Police Station which caused delay and therefore the report of the Enquiring Officer as also the second show cause notice issued by the disciplinary authority are absolutely perverse. 10. It has also been submitted by the learned Advocate for the petitioner relying on the decision of the Supreme Court in the case of Paul Antony reported in 1999(3) SCC 679 that the petitioner admittedly having been acquitted honourably in the criminal case but for ends of justice the order of dismissal cannot stand. 11. Learned Counsel for the respondents on the other hand has contended, inter alia, that the petitioner not having preferred an appeal against the order of dismissal which is provided for under the rules, no relief should be given to the petitioner. It has also been submitted by the learned Advocate for the respondents that the Enquiring Officer having come to a finding on evidence that the petitioner is guilty of the misconduct and petitioner having obtained all reasonable opportunities of hearing therein and the second show cause notice having been issued accepting such report of the Enquiring Officer, it is not for the writ Court to sit in appeal over such decision of the Enquiring Officer and the Disciplinary Authority. 12. It may be recorded that the respondents produced before this Court the entire records of the disciplinary proceeding. 13. After hearing the respective submissions of the parties and considering the materials on record, I am of the view that the impugned order of dismissal cannot be sustained on more than one ground. 14. 12. It may be recorded that the respondents produced before this Court the entire records of the disciplinary proceeding. 13. After hearing the respective submissions of the parties and considering the materials on record, I am of the view that the impugned order of dismissal cannot be sustained on more than one ground. 14. It appears to this Court on examination of records that the contention raised by the learned Counsel for the petitioner that the Enquiring Officer has come to his finding and the disciplinary authority has issued a second show cause notice without even considering the specific defence of the petitioner is correct. It appears that at the disciplinary enquiry, the petitioner on being examined by the Enquiring Officer himself made out a case as regards Charge No.1 that his failure to report within time for duty was not at all intentional but for reasons beyond his control. 15. In his statement taken by the Enquiring Officer himself during enquiry on 18.1.92. It appears the writ petitioner specifically deposed, inter aila, that he could not report back to duty within time due to the reason that in his native place his sister-in-law was reported to be murdered and he had to take the dead body to the Police Station at 14.45 hrs. of 19.12.87 and due to the said reason he had to condole his family members and thereafter could go back to duty in time. Thereafter, it appears the Enquiring Officer himself cross-examined the petitioner but his statement remained undemolished. 16. From the report of the Enquiring Officer, however, it appears that while considering whether the first charge against the petitioner has been proved or not, the Enquiring Officer did not consider such evidence of the writ petitioner at all. It appears merely relying on the evidence of others who merely stated that the petitioner failed to report back in time held the petitioner guilty of Charge No.1. But nowhere, the Enquiring Officer ever took into consideration such evidence of the petitioner which was to the effect that such failure was not deliberate or wilful but because of the aforesaid circumstances which were beyond his control. 17. It also appears from the records that after the petitioner was supplied with a copy of the report of the Enquiring Officer, he made a representation against the same to the disciplinary authority. 17. It also appears from the records that after the petitioner was supplied with a copy of the report of the Enquiring Officer, he made a representation against the same to the disciplinary authority. In his aforesaid representation, he again reiterated his stand that his failure to report in time was not wilful but because of the aforesaid circumstances which were beyond his control. Unfortunately, it appears the disciplinary authority also while issuing the show cause notice on finding the petitioner guilty of Charge No.1 did not consider the representation of the petitioner. 18. The result is both the Enquiring Officer and the disciplinary authority came to the finding of alleged guilty of the petitioner totally ignoring the evidence of the writ petitioner. Under such circumstances, in my view, not only the aforesaid report of the Enquiring Officer as also the second show cause notice as to the finding in respect of Charge No.1 are pervese the same also amounted to denial of reasonable opportunity of hearing vitiating the entire proceeding. 19. It has also been rightly submitted by the learned Advocate for the petitioner relying on a Supreme Court decision that mere absence of an employee from duty ipso facto cannot amount to misconduct warranting maximum punishment of dismissal and there may be circumstances when such absence might be unavoidable. In the case of Malkiat Singh vs. State of Punjab & Ors., 1996(7) SCC 634 , the Supreme Court while considering a similar situation where the delinquent was charged with absenteeism and was discharged from service, held, inter alia, while discipline in service is required to be maintained absence some time may be unavoidable. Under the facts and circumstances of that case, it was held by the Supreme Court an opportunity should be given to the appellant to prove his excellence setting aside the order of dismissal. In the instant case, it appears to this court that this aspect of the matter was not considered wither by the Enquiring Officer or by the Disciplinary Authority and in total disregard of such evidence of the petitioner, the Enquiring Officer/Disciplinary Authority has come to its finding as aforesaid which therefore cannot be sustained. 20. In the instant case, it appears to this court that this aspect of the matter was not considered wither by the Enquiring Officer or by the Disciplinary Authority and in total disregard of such evidence of the petitioner, the Enquiring Officer/Disciplinary Authority has come to its finding as aforesaid which therefore cannot be sustained. 20. Even in case of such failure to report for duty by a member of the force, unless the same is wilful or deliberate, there may be other reasons when the disciplinary authority may condone the same if it is found that such absence was caused because of unavoidable delay. That apart, if such absence was not deliberate but because of such situation like the present one where the petitioner deposed that such delay was caused as his sister-in-law was murdered, he had to take her dead body to the Police Station for which the absence was caused, absence under such circumstances, can hardly warrant maximum punishment of dismissal. 21. The writ petition, in my view, therefore, liable to succeed on the ground that the punishment which has been inflicted upon the petitioner is totally disproportionate to the gravity of misconduct. 22. Lastly, I find substance in the submission of the learned Advocate for the petitioner that the second charge of the petitioner that he failed to inform about his involvement in the criminal case could not have been framed against him as such charge is absolutely void. 23. Admittedly, the petitioner was not arrested before such report of Superintendent of Police, Hooghly only when it came to be known that he is an accused in the said criminal case and was wanted by the Police. It is never the case of the respondents that even when the petitioner went to his home with such leave and he came to know about the murder of his sister-in-law and the body was taken to the Police Station, he knew that he is an accused in the criminal case which was started by the Police over the matter. Neither any such allegation has been made in the charge-sheet nor any evidence to that effect has been led. Neither any such allegation has been made in the charge-sheet nor any evidence to that effect has been led. It is not therefore understood how a charge can be framed that he failed to inform about his involvement in the criminal case after he reported for joining his duties when it appears from the materials of the respondents themselves that he came to know about such involvement subsequently only after the report of the Superintendent of Police, Hooghly was sent to the Commandant. The petitioner not having known before such period that he is an accused in the said case, the question of knowing about such involvement in the criminal case could not arise and question of informing the same to his employer did not arise. 24. Learned Counsel for the petitioner has also relied on the case of Paul Antony reported in 1999 (3) SCC 679 where the Supreme Court has held, inter alia, that on the same charge on evidence in the criminal case, there is acquittal it will be unjust to sustain the order of dismissal in the disciplinary proceeding. 25. In my view, the decision of the Supreme Court aforesaid is not applicable in this case, inasmuch as, in the instant case, the petitioner was not dismissed on the ground of commission of such murder, but inter alia, on the ground that he failed to inform his involvement in the criminal case. It is not necessary, therefore, for this Court to dwell upon such decision or other decisions cited by the learned Advocate for the respondents which appears to be contrary to the decision of Paul Antony's case. But for the reason stated above certainly the order of dismissal cannot be sustained. 26. Before parting with ,the matter on examination of the records, it appears to this Court that even the disciplinary proceeding cannot stand in view of the peculiar manner in which the Enquiring Officer has conducted the enquiry. It appears from the records that the Enquiring Officer in the enquiry not only acted as an Enquiring Officer but he himself recorded the statement of the witnesses of the prosecution and also cross-examined them. Similarly, he himself recorded the deposition of the petitioner and cross-examined him. The Enquiring Officer thus not only acted as an Enquiring Officer but also assumed the role of the prosecutor which, in my view, he could not have done. Similarly, he himself recorded the deposition of the petitioner and cross-examined him. The Enquiring Officer thus not only acted as an Enquiring Officer but also assumed the role of the prosecutor which, in my view, he could not have done. Because of such reasons also the entire enquiry proceeding is vitiated. 27. It may be recorded, however, that although the order of dismissal was passed as early as on 30.7.92, the writ petitioner has been moved challenging the same almost six years thereafter. Therefore, there is no doubts that there is delay is moving the writ application. But in the instant case, it appears that the petitioner was subsequently arrested and after his trial he was acquitted in 1998 after which he moved the writ petition. Although the petitioner no doubt reportedly was on bail in the said case after remaining 90 days in custody, the failure of the petitioner to come to court earlier cannot amount to laches when involved in a criminal case where charge was under section 302 of the Indian Penal Code he was more concerned to save his life than his bread. I am not inclined to accept the contention of the learned Advocate for the respondents that the petitioner not having availed of the alternative remedy of appeal, no relief should be granted to the petitioner. While one is expected to exhaust his remedy provided under the Rules, it is well settled that such Rule is not inflexible and in a fit and proper case, the Writ Court can certainly interfere. In the instant case, the Court having found that there has been violation of natural justice, it is a fit case, in my view, where interference is warranted even though alternative remedy has not been exhausted. 28. This writ petition therefore succeeds. The impugned order of dismissal passed against the petitioner is set aside. The respondents are directed to reinstate the petitioner with effect from the date of his dismissal and pay all benefits and arrear salary which he would have been entitled to had he been in service during the intervening period. The petitioner shall be allowed to join his duty forthwith and the arrear salary shall be paid within three months from the date of communication of this order. 29. There will be no order as to costs. The petitioner shall be allowed to join his duty forthwith and the arrear salary shall be paid within three months from the date of communication of this order. 29. There will be no order as to costs. Learned Advocate for the petitioner is permitted to take down gist of this order for communication to the respondents who shall act on such communication. Certified xerox copy of this order, if applied for, be supplied as expeditiously as possible. Writ petition succeeds.