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2010 DIGILAW 511 (JHR)

Anant Kumar Mishra v. Union of India

2010-04-21

D.G.R.PATNAIK

body2010
Order Learned counsel for the Respondent U.O.I. in forms at the outset that in compliance with the directions contained in the order dated 25.3.2010, the cost of Rs. 2,000/- has since been deposited by him. 2. Heard the learned counsel for the parties on the merits of the case. 3. The petitioner being a Constable in the Central Reserve Police Force, was proceeded against departmentally on the charge of unauthorized absence from duty. He was served with the show-cause notice to explain the charge. The explanations, which he had offered was that though he had proceeded on leave for 15 days but he could not report for duty at the end of the period of leave because his mother was undergoing medical treatment for cancer at Meharbai Tata Memorial Hospital at Jamshedpur. 4. Subsequently, when he reported for duty, he was arrested and taken into custody and was released on bail only on 26.3.1999, where after, he was put under suspension to face the departmental enquiry for the charge of unauthorized absence from duty. 5. The grievance of the petitioner is that the Disciplinary Authority, without appreciating the genuine reason for the petitioner's absence and treating the explanations offered as misleading, has proceeded to pass order of removal from service. The petitioner's further contention is that though in the departmental proceedings, as many as four witnesses on behalf of the prosecution were examined and the Enquiry Officer proceeded to, rely entirely on the statements of the said witnesses but did not bother to verify and appreciate the documents produced by the petitioner including the Certificates, which the petitioner had produced to support his contention that his mother was suffering from Cancer and that he had to attend her during. the relevant period. Learned counsel argues further, that in case of unauthorized absence/desertion, a procedure has been laid down, both under Section 10(m) of the Central Reserve Police Force Act, 1949 and Rule 31 of the C.R.P.F. Rules, 1955. Learned counsel explains that under Section 10(m) of the Act,• the punishment for absence without leave has. the relevant period. Learned counsel argues further, that in case of unauthorized absence/desertion, a procedure has been laid down, both under Section 10(m) of the Central Reserve Police Force Act, 1949 and Rule 31 of the C.R.P.F. Rules, 1955. Learned counsel explains that under Section 10(m) of the Act,• the punishment for absence without leave has. been provided and the effect of absence without leave has been considered as a less serious offence for which ,a lesser punishment of imprisonment for a term which may extend up to one year or with fine which may extend up to three months pay has been provided and it does not provide for the punishment for dismissal from service. Furthermore, as per Rule 31 of the Rules under the Act, even if, an Enquiry was desired to be conducted, the procedure laid down, was to constitute a Court of Enquiry consisting of at least one Gazetted Officer and two other members who shall be either superior or officers subordinate to the Commandant, to enquire into the matter of desertion/absence or overstay of leave of the offender and only after recording the evidences in course of enquiry, the appropriate punishment may be imposed Learned counsel submits that in the instant case, no proper Court of Enquiry was constituted inasmuch as no Gazetted Officer was appointed as a member of the Court of Enquiry. It •is lastly submitted that even otherwise, the punishment inflicted upon the petitioner is highly disproportionate to the gravity of the charge. 6. Replying to the petitioner's grounds, learned counsel for the Respondents submits that instead of rushing to this Court by filing this writ application, the petitioner ought to have preferred Appeal, which is provided under the provisions under the Act. Learned counsel for the petitioner argues that since the manner in which the enquiry was conducted is in gross violation of the provisions of the Rules and the order impugned being perverse on the very face of it, this Court may exercise its extraordinary jurisdiction to interfere with the impugned order and pass an appropriate order in accordance with law. 7. 7. Learned counsel for the Respondent-Union of India informs that contrary to the contention of the petitioner, the Court of Enquiry was duly constituted by the appointment of a Gazetted Officer and other members, who had conducted the enquiry in accordance with the Rules and after considering the evidences on record, recorded .their findings, declaring that the charge against the petitioner stood proved and considering the nature of charge, the decision of the petitioner's dismissal from service, was rightly passed. 8. I have heard the learned counsel for the parties and I have gone through , the documents on record. 9. From perusal of the Enquiry Report (Annexure-2), it appears that the enquiry was conducted by a Senior Officer and not by any Court of Enquiry as laid down in the procedure under Rule 31 of the C.R.P.F. Rules, 1955 under the Act. It further appears that while recording his finding of guilt against the petitioner, the Enquiry Officer has also observed that though the petitioner has been found to have absented himself from duty by overstaying the period of leave granted to him, but such act on his part was due to his ignorance of the rules and procedure and therefore, the Enquiry Officer had recommended for a lenient view in the matter of punishment, to be imposed upon the petitioner. 10. From perusal of the impugned order of the Disciplinary Authority, it appeals that a serious view has been taken against the petitioner on the impression that the Medical Certificate produced by him in support of his claim that his mother was suffering from some serious ailments, was a forged document, inasmuch as, the date has been manipulated in order to correspond to the period of the petitioner's absence and to mislead the Enquiry Officer. Upon this aspect being brought to the notice of this Court on the last date a direction was given to the respondents to obtain requisite information from the concerned Hospital and after due verification to ascertain as to whether the petitioner's mother was actually undergoing medical treatment for the ailment during the period, stated and declared by the petitioner. Upon this aspect being brought to the notice of this Court on the last date a direction was given to the respondents to obtain requisite information from the concerned Hospital and after due verification to ascertain as to whether the petitioner's mother was actually undergoing medical treatment for the ailment during the period, stated and declared by the petitioner. In the statements filed on affidavit by the Respondents, it appears that though they have made an enquiry in this regard and have reiterated the same stand that the Medical Certificate produced by the petitioner, does not correspond to the period of the petitioner's absence and therefore, the petitioner has mislead by filing a fake and forged certificate but the respondents also appear to have admitted the fact that the petitioner's mother was admitted to the Hospital in August, 1996 and again in November, 1996 and she is still undergoing treatment for the same ailment. The fact that she is still under treatment, is confirmed from Annexures-A and B, which are the copies of the medical file pertaining to the medical treatment of the petitioner's mother. 11. From the above discussions of the facts, it appears that though a departmental enquiry was conducted against the petitioner, but a proper Court of Enquiry was not constituted in terms of Rule 31 of-me C.R.P.F. Rules, 1955. Furthermore, it also appears that though the Disciplinary Authority has acknowledged the fact that the petitioner's mother was ailing from cancer ever since, 1996 and used to be admitted frequently to the Hospital and she is still undergoing medical treatment for the ailment the Disciplinary Authority has drawn the inference that the gravity of the charge against the petitioner becomes serious on account of the fact that the petitioner has produced a Medical Certificate which did not correspond to the period of his leave and has not produced the relevant certificate in support of his claim that his absence was• on account of the ailment of his mother during the said period. 12. In this view of the matter, it appears that the punishment imposed upon the petitioner is highly disproportionate to the gravity of the charge and is also contrary to the recommendation made by the Enquiry Officer himself. 13. 12. In this view of the matter, it appears that the punishment imposed upon the petitioner is highly disproportionate to the gravity of the charge and is also contrary to the recommendation made by the Enquiry Officer himself. 13. The above facts do suggest that the manner of enquiry as conducted against the petitioner was contrary to the mandatory procedure laid down in the Rules and therefore, the findings as also the order passed by the Disciplinary Authority on the findings of such enquiry, has to be treated as perverse. 14. In the light of the facts and circumstances, I am satisfied that the impugned order of Disciplinary Authority cannot be sustained and the same is hereby set aside. The matter is however, remitted back to the Disciplinary Authority to conduct a fresh enquiry against the petitioner in accordance with the procedure as laid down under the Rules and take an appropriate decision after giving petitioner a reasonable opportunity of being heard. 15. Let a copy of this order be given to the learned counsel for the Respondent-Union of India.