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2006 DIGILAW 328 (ORI)

Srikanta Das v. Inspector General of Police

2006-04-24

A.K.SAMANTARAY, P.K.TRIPATHY

body2006
ORDER 24.04.2006 : Heard both the parties and this writ petition is disposed of in the following manner. 2. Petitioner assails the enquiry report Annexure-1 and the consequential order of dismissal from service passed by the Commandant. 102 Battalion R.A.F., C.R.P.F. On 21.02.1995, Annex¬ure-2 and the concurring order of the appellate and the revision¬al authority, Annexures-3 and 4. It appears from the Articles of Charges that on 10.06.1994 while working as Constable Driver at C.R.P.F., Bhubaneswar petitioner did not obey the order of the authority and refused to proceed on duty at another station (Article II of the Charges) and that from 11.06.1994 afternoon to 08.07.1994 afternoon and again from 7 p.m. of 09.07.1994 to noon of 10.07.1994 he remained absent unauthorisedly (Article 1 of the Charges). In course of the enquiry, petitioner admitted his absence from 11.06.1994 to 08.07.1994 on the ground that he applied for C.L. on account of marriage ceremony of his sister and remained absent from the campus because of that function. He also admitted to have not abided by the order passed on 10.06.2004 for joining on duty and in that context he stated that he was sick and had the advise of the doctor to take bed rest for five weeks. He disputed to the allegation of unauthorised absence on 9th and 10th of July, 1994. 3. In course of enquiry, the Department relied on both oral and documentary evidence in support of each of the charges. Petitioner made his defence statement and also adduced documen¬tary evidence, i.e., the Register from the Medical Center of the campus and the medical certificate granted by Unit- VI Hospital, Bhubaneswar. On consideration of such evidence on record, the Enquiry officer came to the conclusion that the plea of illness of the petitioner is not true and admission of the petitioner about his absence on the ground of sister’s marriage before consideration of the application for leave amounts to gross negligence in duty and a major misconduct. The Disciplinary Authority, i.e., the above noted Commandant dismissed him from service and the appellate as well as the revisional authority, as noted above, refused to interfere with that order. 4. The Disciplinary Authority, i.e., the above noted Commandant dismissed him from service and the appellate as well as the revisional authority, as noted above, refused to interfere with that order. 4. Learned counsel for the petitioner argues before us that so far as it relates to Charge No.1 (Article -1), the docu¬ments relied on in support of petitioner’s absence on 9th and 10th July, 1994 were not supplied to him and similarly the docu¬ments relied on in the context of Charge No.2 (Article -II) were also not supplied to him. The above conduct of the Department caused breach of the principle of natural justice as against the petitioner and, therefore, the impugned order be quashed. Further contention of the petitioner is that absence of the petitioner, as admitted by him, is not whimsical but because of the marriage ceremony of his sister and non-obeying the command on 10.06.1994 due to illness was proved through the medical certificate pro¬duced by him at the time of enquiry and, therefore, the authority should have appreciated the same in proper perspective before taking a harsh view against the petitioner. Petitioner further states that in any event punishment imposed on him is dispropor¬tionate to the misconduct alleged against him and, therefore, this Court while exercising the writ jurisdiction may interfere with that excessive punishment and to minimize the same. In support of the aforesaid first contention, petitioner relies on the ratio in the case of Chandrama Tewari v. Union of India, A.I.R 1988 S.C. 117. 5. Learned Addl. Standing Counsel (Central) on the other hand supporting the impugned order, refers to and relies on the provisions in Sections 7and 9 (e) & (f) of the Central Reserve Police Force Act, 1949 (in short ‘the Act’) and states that when the misconduct is established through acceptable evidence togeth¬er with the admission of the delinquent officer, therefore, the mandate of law required that he was to be inflicted with major punishment. He further states that in view of the admission to different charges in course of his defence, the claim of preju¬dice and breach of the principle of natural justice is not ap¬plicable. He further states that in view of the admission to different charges in course of his defence, the claim of preju¬dice and breach of the principle of natural justice is not ap¬plicable. In that respect he elaborates that such a ground was never taken by the petitioner at any stage of the enquiry or before the appellate or the revisional authority and that such a plea had also not been advanced when the writ petition was filed in the year 1997 but that ground was added amending the writ petition in the year 1999. In other words, he emphasizes that this after-thought plea of breach of the principle of natural justice is no ground to interfere with the order of dismissal from service. Accordingly he prays to dismiss the writ petition. 6. On perusal of the impugned enquiry report and the orders of the Disciplinary Authority. Appellate and the Revisional Authority, we do not find any illegality therein. Indeed the admission of the petitioner made in course of the en¬quiry about breaches in duty and misconduct of indiscipline makes out the case of “More heinous offences” as mentioned in Clauses (e) and (f) of Section 9 of the Act. When the petitioner has admitted his absence, non-supply of two relevant documents does not violate the principle of natural justice, which has been propounded by the Apex Court in the case of Chandrama Tewari (supra). 7. In course of submission, learned Addl. Standing Counsel (Central) rightly points out that petitioner avoided to obey the command on 10.06.1994 on the ground of sickness and, in that respect, instead of obtaining a certificate from the in-house doctor, he obtained the certificate from the general hospital in the township. In that certificate there was advise to the peti¬tioner for bed rest for five weeks and, on his own admission, petitioner admits that between 11.06.1994 to 08.07.1994 he re¬mained busy in the marriage function and repayment of dues to different parties towards the expenditure of the marriage. There¬fore, the plea of illness is a myth. We need not go into that aspect afresh. The matter was duly considered and we find no illegality in the impugned orders. 8. There¬fore, the plea of illness is a myth. We need not go into that aspect afresh. The matter was duly considered and we find no illegality in the impugned orders. 8. We considers the alternative argument advanced by the petitioner regarding the punishment of dismissal from service being disproportionate to the amount of misconduct and for impos¬ing a lesser punishment by allowing the petitioner to continue in service and find no justification or reasonableness in such submission. Central Reserve Police Force is an armed force main¬tained by the Central Government. It being a para-military force, discipline within is the sine-qua-non. Admittedly, petitioner breached the discipline by availing leave without obtaining it, did not carry out the command on the pretext of illness which was found to be false and remaining absent from the campus unautho¬risedly. Yet petitioner never regretted fro the said misconduct. He has not brought to our notice any document to show that for the aforesaid misconducts he regretted before the authorities and applied for compassionate consideration of his apology to mini¬mize severity of delinquency for imposing a lesser punishment while allowing him to continue in service. Punishment, which has been imposed, is provided under law to be inflicted in a case of present nature, i.e, a case relating to “More heinous offences”. Discretion vested in a Court is to be invoked in appropriate case and not be distributed as charities to undeserving persons. On the basis of the aforesaid analysis of the facts, law and princi¬ple, we do not find it to be a fit case for reduction of punish¬ment. 9. For the reasons indicated above, we do not find any merit in the writ petition and the same is accordingly dismissed. No cost. Petition dismissed.