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2009 DIGILAW 523 (GAU)

Muhibar Ali Hazarika v. Union of India

2009-08-04

AMITAVA ROY

body2009
JUDGMENT Amitava Roy, J. 1. The subject matter of challenge is the disciplinary action against the petitioner whereby he stands removed from service. The order of penalty dated 8.1.2006 was unsuccessfully assailed departmentally. The writ jurisdiction of this Court has been therefore invoked by the petitioner for redress. 2. I have heard Mr. A.M. Mazumdar, senior advocate assisted by Mr. F.K.R. Ahmed, advocate for the petitioner and Ms. R. Borah, learned Central Government Standing Counsel for the respondents. 3. The Learned Senior Counsel having limited his challenge only to the penalty imposed contending that having regard to the nature of the charges levelled and proved, the same visibly is disproportionate, it is inessential to delve into the factual details. Suffice it to mention that the petitioner who at the relevant time was a constable (GD) in A/90 Battalion, CRPF, was served a memorandum of charges dated 3.10.2006 with the following articles of charge: ARTICLE-I Whereas No. 991242383 CT/GD M.A. Hazarika of this unit while functioning as constable (GD) in A/90 Bn. CRPF committed an act of misconduct/on his capacity as a member of he Force under Section 11(1) of CRPF Act, 1949 in that, he was found absent from duty at Morcha No. 4 while on 24 hours Guard duty on 25.10.2006 without proper permission/sanction of the competent authority which is prejudicial to good order and discipline of the Force. ARTICLE-II Whereas No. 991242383 CT/GD M.A. Hazarika of the unit while functioning as constable (GD) IA/90 Bn. CRPF committed an act of misconduct in his capacity as member of the Force under Section 11(1) of CRPF Act, 1949 in that, he had deserted from camp while on active duty on 25.10.2006 at about 0900 hours without proper permission/sanction of the competent authority and reported back on 26.10.2006 at about 1500 hours, which is prejudicial to good order and discipline of the Force. A disciplinary proceeding under Rule 27 of the Central Reserve Police Force Rules, 1955 ('the Rules') was thus initiated against him. The petitioner accordingly submitted his reply and the same not having been considered to be satisfactory, the enquiry was proceeded under the above provision of the Rules. On the culmination of the proceeding, the enquiry report was submitted on 20.12.2006 returning a finding that the charges levelled against him had been proved. The order of removal from service followed. The petitioner accordingly submitted his reply and the same not having been considered to be satisfactory, the enquiry was proceeded under the above provision of the Rules. On the culmination of the proceeding, the enquiry report was submitted on 20.12.2006 returning a finding that the charges levelled against him had been proved. The order of removal from service followed. As stated above, the statutory appeal preferred by the petitioner also failed. 4. The respondents in their affidavit in categorical terms have stated that the departmental proceeding was conducted in accordance with the prescriptions of Rule 27 in which the petitioner was afforded all reasonable opportunities of participating therein. On the basis of the evidence on record which proclaimed that the charges were proved, the disciplinary authority being satisfied with the gravity of the proved imputations, inflicted the penalty of removal from service. The respondents have also endorsed the decision of the appellate authority in dismissing the appeal. 5. Mr. Mazumdar though had initially made a faint attempt to contend that the charges levelled against the petitioner having been drawn with reference to Section 11 of the Central Reserve Police Force Act, 1949 ('the Act') which contemplates minor punishment and that therefore, the penalty of removal lacks necessary sanction in law, concentrated eventually on the excessive attribute thereof. According to the Learned Senior Counsel, having regard to the nature of the imputations levelled against the petitioner, by all means, the order of removal from service is shockingly disproportionate and therefore, it is a fit case for interference therewith in the interest of justice. In support of his contention, the Learned Senior Counsel has inter alia placed reliance on the decision of the Apex Court in Ram Kishan v. Union of India and Ors. (1995) 6 SCC 157 and of this Court in No. 690523581 Deep Chand v. Union of India 2001(2) GLT 97. 6. The learned Central Government Standing Counsel per contra, has urged that as the disciplinary proceeding does not suffer from any illegality, considering the fact that the petitioner is a member of a disciplined force, the proved charges justify infliction of the penalty of removal from service. According to Ms. Borah, the penalty is commensurate with the charges proved and therefore no interference therewith is called for. 7. I have extended due consideration to the rival contentions. According to Ms. Borah, the penalty is commensurate with the charges proved and therefore no interference therewith is called for. 7. I have extended due consideration to the rival contentions. The charges levelled against the petitioner in substance, accuse him of unauthorized absence from duties from 0900 hrs. of 25.10.2006 to 1500 hrs. of 26.10.2006 during which he was supposed to be on duty at Morcha No. 4 of the unit. This unauthorized absence of the petitioner from his guard post has been construed also to be an act of desertion from the camp while on active duty for the said period. A bare reading of the enquiry report reveals that the charges against the petitioner have been duly proved on the basis of the evidence adduced by the disciplinary authority. The petitioner though had made an endeavour in course of the proceeding to contend that he had taken the verbal permission of PW2, the said witness categorically denied the correctness thereof. The petitioner also did not make any attempt to prove this stand of his. 8. The disciplinary authority on a scrutiny of the materials on record agreed with the findings of the Enquiry Officer and after taking note of the fact that the area where the petitioner's unit was located was infested with various militant outfits concluded that his absence from duty without prior permission/sanction amounted to grave misconduct. According to the disciplinary authority, retention of the petitioner in that backdrop had the potential of adversely affecting the discipline of the force. The disciplinary authority being thus satisfied that a stringent punishment is called for, inflicted the penalty of removal from service. 9. True it is, that the penalty by way of disciplinary measure has to be essentially proportionate to the charge proved against the concerned delinquent. However, the scope of interference with a disciplinary action would essentially depend on a range of factors, including the service to which the charged officer belongs as well as the post held by him and the duties and responsibilities attached thereto. The bearing of a relaxed approach in such matters on the discipline and probity of the concerned service is also of an outmost relevance. The bearing of a relaxed approach in such matters on the discipline and probity of the concerned service is also of an outmost relevance. If the delinquent officer belongs to a disciplined force of which its credibility dedication and commitment are of paramount importance, normally a court of law would be loathe to lightly interfere with the penalty imposed on a charge of undermining the said essentials. The administrative authority is supposed to be the best judge of the situation in such an eventuality to decide the penalty. In other words, the yardstick to determine as to whether a penalty by way of disciplinary measure is disproportionate or not, would verily depend on the nature of the service, post held by the delinquent and the proved misconduct coupled with the cascading effect likely to be generated in the ranks thereof, if he is let off with a penalty less than that he deserves. 10. The Apex Court in Ram Kishan v. Union of India and Ors. (1995) 6 SCC 157 , was seized with a situation where a constable of the Delhi Police was charged with the misconduct of abusing his superior. The petitioner delinquent officer was dismissed from service on that imputation. The Apex Court noticing that though the charge had been proved, the abusive language was not proved concluded that, the penalty of dismissal was harsh and disproportionate and, therefore, substituted the same by one of stoppage of two increments. 11. A lenient view was taken in the facts of the same kind in the case of Deep Chand (supra) as well interfering with the major penalty of compulsory retirement imposed on the petitioner on the charge in indulging of business of borrowing and lending money. 12. In the opinion of this Court, considering the nature of the proved charges against the petitioner, the authorities cited at the Bar have no relevance in the case in hand. The petitioner at the relevant time was a member of a disciplined force and having been posted at the guard duty, he could not be expected to leave the same and that too without prior information of permission from his superior. Though the materials on record do not disclose any untoward incident during the temporary absence from the post, the very act of abandoning the duty in the estimate of this Court cannot be condoned. Though the materials on record do not disclose any untoward incident during the temporary absence from the post, the very act of abandoning the duty in the estimate of this Court cannot be condoned. Not only the petitioner failed to establish his plea of prior permission of the superior authority nor, did he demonstrate any endeavour to contact his unit and to cite the reason for his delay in returning to duty. The proved charges disclose that the petitioner was absent from the unit for long 30 hours and that too without any intimation. The departmental authority on an assessment of the materials on record and all other relevant factors have been of the view that the petitioner is not a fit person to be retained in service and thus inflicted the penalty of removal from service. In the facts and circumstances of the case, this Court is of the view that any interference with the order or penalty would be a retrograde step qua the orderliness and probity of the Force. Having regard to the limited scope of interference with an order of penalty taken by the disciplinary authority, in exercise of the power of judicial review, in the opinion of this Court, no interference is called for. 13. The petition lacks in substance and is, therefore, dismissed. No costs. Petition dismissed.