Research › Search › Judgment

Gauhati High Court · body

2004 DIGILAW 542 (GAU)

Hari Bharti Roy v. Union of India

2004-10-08

I.A.ANSARI, TINLIANTHANG VAIPHEI

body2004
Judgment : I.A. Ansari, J. 1. Nona has appeared on behalf of the appellant. However, Mr. K. Bhattacharjee, learned senior CGSC, is present and has been heard. 2. We have perused the materials on record. 3. The appellant herein, namely, Shri Hari Bharti Roy, while working as Lance Naik in CRPF, went on earned leave from 30.6.1995 to 29.7.1995 on account of death of his mother. Though he was to resume his duties with effect from 31.7.1995, he resumed his duties only on 14.12.1995. A disciplinary proceedings was, therefore, initiated against him on two counts, namely, (1) that he had overstayed on unauthorised leave without any information and sufficient reasons with affect from 31.7.1995 to 13.12.1995 and (2) that he had overstayed leave for 136 days with effect from 31.7.1995 to 13.12.1995 in spite of the order to report for duty immediately issued, vide OC, B/S, Bn. CRPF letter No. LII 4/95-B/5, dated 3.8.1995, and also did not respond to official correspondence. 4. Upon enquiry, the Enquiry Officer found the charge No. 1 proved, but gave benefit of doubt in respect of charge No. 2. Upon accepting the findings so reached, the Disciplinary Authority imposed the penalty of dismissal from service on the petitioner-appellant. The petitioner-appellant made statutory representation but no relief having been made available to him, he approached this Court with the help of a writ application, which gave rise to Civil Rule No. 2642 of 1998. 5. By the impugned order, dated 5.3.2002, passed in Civil Rule No. 2642 of 1998 aforementioned, the learned Single Judge, while partly allowing the writ petition setting aside the penalty imposed on the petitioner-appellant, directed his reinstatement in service and further directed the authority concerned to impose any punishment other than the punishment of dismissal from service. While directing reinstatement of the petitioner-appellant, the learned Single Judge, however, made it dear that the petitioner-appellant will not be entitled to back wages. While directing reinstatement of the petitioner-appellant, the learned Single Judge, however, made it dear that the petitioner-appellant will not be entitled to back wages. Based on the directions so given the Disciplinary Authority, taking into account the fact that the petitioner-appellant had already been held not entitled to back wages for the period of absence from duty in respect of 136 days, imposed the penalty of stoppage of one increment for one year, but made it dear that the petitioner-appellant would not be able to claim any seniority for the period of his dismissal from service as the same was to be treated as dies-non. 6. It has been agitated before us, on behalf of the petitioner-appellant, that while setting aside the penalty of removal from service and directing reinstatement of the petitioner-appellant, the learned Single Judge ought not to have held that the petitioner-appellant was not entitled to back wages. 7. While considering the above aspect of the matter, it is important to bear in mind that the fact that the petitioner-appellant overstayed leave for 136 days is not in dispute. It is the case of the petitioner-appellant that he went on earned leave on account of his mother's death and while he was availing the leave, he suffered from jaundice and remained under medical treatment and could not, therefore, resume his duty. Notwithstanding the reason, which the petitioner-appellant assigned for having overstayed, the fact remains that the petitioner-appellant did not, admittedly, despite being a member of the para military force inform the authority concerned, at any point of time, that he was, on account of reasons of medical treatment, unable to resume his duties. The petitioner-appellant did not, admittedly, furnish any prescription and or cash memo showing that he had regularly been under treatment of any doctor during the period of absence from duty. The petitioner-appellant merely submitted a medical certificate from a private medical practitioner, which the Enquiry Officer refused to rely upon, for, no material in support of the medical certificate, such as, prescription or cash memo, was produced by the petitioner-appellant. In such a situation, the conclusion reached by the Enquiry Officer that the Charge No. 1, namely, that the petitioner had overstayed on unauthorised leave without any information and sufficient reason with affect from 31.7.1995 to 31.12.1995 cannot be faltered and was rightly accepted by the learned Single Judge. 8. In such a situation, the conclusion reached by the Enquiry Officer that the Charge No. 1, namely, that the petitioner had overstayed on unauthorised leave without any information and sufficient reason with affect from 31.7.1995 to 31.12.1995 cannot be faltered and was rightly accepted by the learned Single Judge. 8. However, in view of the fact that under Section 10(m) of the Central Reserve Police Force Act, a person, who absents himself without leave or without sufficient cause or overstays the leave granted to him, commits "less heinous offence", the learned Single Judge opined that the imposition of penalty of dismissal from service was a major penalty and ought not to have been imposed on the petitioner. On this consideration, while setting aside the penalty aforementioned and directing reinstatement of the petitioner, the learned Single Judge further directed the authority concerned to impose any penalty, other than dismissal from service, commensurate with the nature of the offence proved or established against the petitioner, but made it clear that the petitioner would not be entitled to back wages on his reinstatement. At the stage of directing reinstatement of the appellant and leaving the choice of penalty on the departmental authority, the learned Single Judge was not wholly justified in commanding the respondents not to pay back wages to the petitioner-appellant. The reinstatement in such a case, as the one that we have at hand, is, basically, for the purpose of enabling the employer to complete the disciplinary proceeding initiated against the employee concerned, which includes imposition of penalty on the parson proceeded against. In such cases, the question to pay or not to pay back wages and/or to impose whatever punishment permissible under the law is for the authority concerned to decide. 9. Situated, thus, we find that upon reinstatement of the petitioner-appellant, the Disciplinary Authority was competent to impose any penalty on the petitioner-appellant other than his removal from service keeping, however, in view the nature of the offence proved against the petitioner-appellant. 9. Situated, thus, we find that upon reinstatement of the petitioner-appellant, the Disciplinary Authority was competent to impose any penalty on the petitioner-appellant other than his removal from service keeping, however, in view the nature of the offence proved against the petitioner-appellant. The disciplinary authority, upon reinstating the petitioner-appellant, need not have paid the back wages and it was entirely for the authority concerned to decide as to what punishment would be imposed on the petitioner-appellant and the question as to whether the petitioner-appellant shall be paid back wages for the period of his absence from duty or not was a question, which ought to have been left at the discretion of the disciplinary authority. 10. To the extent thereof, as indicated hereinabove, that the impugned order, dated 20.6.1996, directs non-payment of back wages, we find it difficult to maintain. The fall out of this conclusion is that the penalty imposed by the Disciplinary Authority, vide order, dated 21.6.2004, aforementioned can also not be maintained. 11. In the result and for the foregoing reasons, we partly allow this appeal. While affirming the direction of the learned Single Judge to the authority concerned to impose penalty other than penalty of removal from service on the petitioner-appellant-commensurate with the nature of offence, which the petitioner-appellant is proved to have committed, we leave the Disciplinary Authority concerned at liberty to pay or not to pay the back wages to the petitioner-appellant, if such a penalty is permissible to be imposed on the petitioner-appellant 12. No order as to costs.