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2012 DIGILAW 294 (JHR)

Pandav Kumar v. Union of India

2012-02-24

P.P.BHATT

body2012
JUDGMENT The present petition has been filed under Article 226 of the Constitution of India for issuance of an appropriate writ/order/direction for quashing and setting aside the order dated 08th January, 2001 passed by the Commandant, 67 Battl., C.R.P.F. (Respondent No. 3), whereby the petitioner has been dismissed from service for charges of absent without leave and misconduct for the period between 05.05.2000 to 13.07.2000 (70 days) and also on the ground of helping petitioner's brother to get appointment in Bihar Police as Constable, for which he was arrested and prosecuted. 2. The brief facts, giving rise to the present case, are as under: - The petitioner was appointed as a Constable in C.R.P.F. on 07.09.1992 and for the purpose of settlement and solemnization of his own marriage, he applied for 60 days' leave from 06.03.2000 to 04.05.2000 before the Respondent No. 3 and he was accordingly, granted leave. After he proceeded on leave, his grand-mother expired on 28th March, 2000 and as a result, his marriage was postponed by a month to be held on 21st May, 2000. According to the petitioner, he applied for extension of his leave by 30 days on 28.04.2000 by a registered letter to the Commandant, but he did not receive any reply. During this period, the petitioner accompanied his elder brother to Gumla for joining of his brother as a Constable in Bihar Police Home Guard and during physical verification and getting signature on some blank papers, the police officials arrested the petitioner and his elder brother and he was kept in custody from 25.09.2000 to 01.07.2000. Thereafter, he was released on bail on 01.07.2000 and when he reported for duty, he was refused to join his post and the petitioner was suspended from duty and for two charges i.e. (i) for unauthorized absence and (ii) in respect of his arrest by the Police in respect of a criminal case filed against him for helping his brother in getting job as Police Constable by adopting illegal methods, the departmental enquiry was conducted against the petitioner and thereafter, on the basis of report submitted by the enquiry officer, he was dismissed from service by the disciplinary authority on 08.01.2001. Being aggrieved and dissatisfied with the order of the disciplinary authority, the petitioner preferred an appeal before the appellate authority. The appellate authority by order dated 16.10.2001 confirmed the order of the disciplinary authority. Being aggrieved and dissatisfied with the order of the disciplinary authority, the petitioner preferred an appeal before the appellate authority. The appellate authority by order dated 16.10.2001 confirmed the order of the disciplinary authority. It is the case of the petitioner that so far as unauthorized absence is concerned, he submitted valid reasons for not joining the duty on expiry of the leave. However, the Respondents did not consider the reasons explained by the petitioner and so far as the involvement in a criminal case is concerned, it is the case of the petitioner that he has been honourably acquitted by the court and therefore, the factum of acquittal is required to be considered by the disciplinary authority as well as the appellate authority, who decided the appeal after the order of acquittal, passed by the Court. 3. The learned counsel for the petitioner has vehemently submitted that the order of dismissal is a very harsh penalty, looking to the charges levelled against the petitioner and more particularly in view of the fact that in the criminal case, the petitioner has been honourably acquitted in respect of the charges levelled against him. The learned counsel for the petitioner submitted that even the appellate authority did not consider the submissions made before it, in respect of acquittal by the criminal court, in its proper perspective. In support of his contentions, the learned counsel for the petitioner has referred to and relied upon the following judgments : - (i) In the case of Dilip Kumar De-versus-The Punjab National Bank & Others reported in 1992 (2) P.L.J.R. 57 (ii) In the case of Chairman-cum-Managing Director, Coal India Limited and another-versus-Mukul Kumar Choudhuri and others reported in (2009) 15 SCC 620 (iii) In the case of Shri Bhagwan Lal Arya-versus-Commissioner of Police, Delhi & Others reported in 2004 (2) J.L.J.R. 184 (SC) (iv) In the case of B.C. Chaturvedi-versus-Union of India and others reported in (1995) 6 SCC 749 . In support of his contentions, learned counsel has further relied upon the judgment rendered in the case of Ram Deo Singh-versus-The State of Bihar & Others, passed by the Patna High Court in C.W.J.C. No. 3154 of 1995. In support of his contentions, learned counsel has further relied upon the judgment rendered in the case of Ram Deo Singh-versus-The State of Bihar & Others, passed by the Patna High Court in C.W.J.C. No. 3154 of 1995. Relying upon the ratio laid down in the aforesaid judgment, the learned counsel for the petitioner submitted that the disciplinary authority as well as the appellate authority are required to consider the factum of acquittal by a competent court and the findings recorded by the Court with regard to the charges levelled against him while dealing with the enquiry proceedings as well as the disciplinary proceedings, but in the instant case, despite honourable acquittal by the Court in a criminal case, the appellate authority, who decided the appeal subsequent to the order passed by the Court, did not consider the findings given in respect of the present petitioner while acquitting him in a criminal case. It is further submitted that in view of the ratio laid down by the Hon'ble apex Court, it is open for the High Court to interfere in a decision rendered by the disciplinary authority and pass an appropriate order with regard to the quantum of penalty. In other words, the learned counsel for the petitioner has submitted that the scope of judicial review permits the High Court to interfere and modify the order of penalty. It is submitted that this is a fit case, wherein, looking to the charges levelled against the petitioner, the acquittal of the petitioner in a criminal case requires to be considered for reduction of penalty imposed by the disciplinary authority. 4. As against that, learned counsel for the Respondent-Union of India submitted that the petitioner was working with a disciplined force and looking to the seriousness of the charges levelled against him, the petitioner is not entitled for any relief. The learned counsel for the Respondents submitted that the enquiry was conducted by the enquiry officer in accordance with law. 4. As against that, learned counsel for the Respondent-Union of India submitted that the petitioner was working with a disciplined force and looking to the seriousness of the charges levelled against him, the petitioner is not entitled for any relief. The learned counsel for the Respondents submitted that the enquiry was conducted by the enquiry officer in accordance with law. Likewise, the disciplinary authority as well as the appellate authority also conducted the proceedings in accordance with law and all reasonable opportunity which was required to be afforded to the petitioner, was given to him and after careful consideration of the materials available with the enquiry officer as well as the disciplinary authority, the decision with regard to imposition of penalty of dismissal from service has been taken and therefore, no interference is called for, by this Court, while dealing with it, in the writ jurisdiction. It is submitted that the appellate authority did consider the submissions made by the petitioner that he has been acquitted from the charges levelled against him in a criminal case. However, the appellate authority while dealing with this submission came to the conclusion that the proceedings of the departmental enquiry and the criminal prosecution are two different and distinct proceedings and therefore, the acquittal of the petitioner in a criminal case have no bearing in the departmental proceedings. It is further submitted that looking to the seriousness of the charges and more particularly in a disciplined force, this kind of conduct cannot be tolerated and the decision taken by the disciplinary authority, which is confirmed by the appellate authority is required to be upheld by this Court. The learned counsel for the Respondent-Union of India has referred to and relied upon the judgments rendered in the case of (i) State of Punjab and others-versus-Mohinder Singh reported in (2005) 12 SCC 182 and also (ii) in the case of General Manager, UCO Bank and another -versus-M. Venu Ranganath reported in (2007) 13 SCC 251 and submitted that as per the ratio laid down in the aforesaid judgments, the departmental enquiry and the criminal proceedings operate in two different fields and there is no bar against initiation of disciplinary proceedings even if a person is acquitted in the criminal trial. 5. 5. In the rejoinder to the submissions made by the learned counsel for the Respondent-Union of India, the learned counsel appearing for the petitioner while relying upon the judgment in the case of Chairman-cum-Managing Director, Coal India Limited and another-versus-Mukul Kumar Choudhuri and others reported in (2009) 15 SCC 620 submitted that in the case of unauthorized absence for more than 6 months, the Hon'ble Supreme Court held that the punishment of removal from service was excessive and it was held that the delinquent upon being charged of the misconduct fairly admitted his guilt and explained the reasons for his absence, punishment of removal was not only unduly harsh but grossly in excess to allegations and in the facts and circumstances of that case, the Hon'ble apex Court directed the appellants to reinstate the respondent forthwith. However, his entitlement to any back wages, from the date of his removal until reinstatement is concerned, it has been withheld by way of punishment for proved misconduct. The Hon'ble apex Court in its judgment also made observations with regard to considerations to be taken into account by the employer at the time of deciding proportion of the punishment. The learned counsel for the petitioner has also referred to and relied on a recent judgment delivered by the Hon'ble apex Court in Civil Appeal No. 2106 of 2011. While referring to paragraphs 21 and 22 of the said judgment, the learned counsel for the petitioner submitted that the disciplinary authority is required to consider as to whether the absence from duty is willful or because of compelling circumstances. On the basis of the findings given by the enquiry officer and the appellate authority, the Hon'ble apex Court held that the disciplinary authority is required to consider the question of unauthorized absence as the absence from duty without any application or prior permission may amount to unauthorized absence, but it does not always mean willful. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalization, etc., but in such case the employee cannot be held guilty of failure of devotion to duty or behaviour unbecoming of a Government servant. 6. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalization, etc., but in such case the employee cannot be held guilty of failure of devotion to duty or behaviour unbecoming of a Government servant. 6. The learned counsel for the Respondent-Union of India also submitted that under Rule 29 of the Central Reserved Police Force Rules, 1955, there is a provision for preferring a revision but in the instant case, the petitioner after rejection of his appeal, without preferring Revision straightway approached this Court and therefore, when the alternative efficacious remedy is available to the petitioner, this writ petition should not be entertained and rejected only on that ground. 7. As against that, while referring to Rule 29 of the Central Reserved Police Force Rules, 1955, the learned counsel for the petitioner pointed out that the said Rule is not a mandatory provision because in the said Rule, it is described that a member of the force, whose appeal has been rejected, 'may' prefer a petition for Revision to the next superior authority. The learned counsel for the petitioner further submitted that the petitioner has been dismissed from the services in the year 2001 and thereafter, has approached this Court in its writ jurisdiction for challenging the order of dismissal and therefore, no fruitful purpose will be served at this juncture by referring the petitioner to the Revisional authority and therefore, it is submitted that an appropriate order may be passed by this Court having regard to the facts and circumstances of the present case. 8. Considering the aforesaid rival submissions and on perusal of the materials on record, it appears that the petitioner is aggrieved by the decision of the Respondents-authorities regarding infliction of punishment of dismissal from service after holding regular departmental enquiry. The petitioner has prayed for issuance of an appropriate writ/order/direction for quashing and setting aside the order of dismissal dated 08.01.2001, passed by the disciplinary authority, which was confirmed by the appellate authority vide its order dated 16.10.2001. 9. It appears that the petitioner has been charged of misconduct as the petitioner remained absent without leave for the period between 05.05.2001 to 13.07.2002 and also involvement in a criminal case, where the allegation is of helping his elder brother to get appointment in Bihar Police as constable. 9. It appears that the petitioner has been charged of misconduct as the petitioner remained absent without leave for the period between 05.05.2001 to 13.07.2002 and also involvement in a criminal case, where the allegation is of helping his elder brother to get appointment in Bihar Police as constable. It appears that the petitioner has been acquitted by the Court as per the judgment and order dated 05.03.2001, passed in Criminal Case No. 669 of 2001 (G.R. No. 363 of 2000). It appears that in the enquiry for the charges levelled against the petitioner, one of the reasons for initiation of enquiry is the institution of a criminal case against him. On perusal of the judgment and order passed by the learned Magistrate, Gumla and more particularly on Paragraphs 9 and 10 of the judgment, it appears that the charges levelled against the petitioner could not be established by the Prosecution and therefore, the court gave benefit of doubt to the petitioner and acquitted him. It appears that this fact is not taken into account and considered by the enquiry officer as the enquiry officer did not await till the outcome of the said criminal case and proceeded on the basis of the materials available with him. 10. I found substance in the arguments advanced by the learned counsel for the petitioner, which is based on the judgment in the case of The State of Bihar & Others-versus-Javed Shaukat reported in 2002 (3) J.L.J.R. 299 , wherein, it has been held that when the departmental proceedings were initiated on the basis of a criminal case, usually it is desirable that the disciplinary authority should await till the outcome of the criminal case. Of course, the departmental proceedings and the criminal case are two distinct and different proceedings but at the same point of time, when the charges levelled against the delinquent in a departmental proceedings, vis-a-vis a criminal case are similar and more particularly when the departmental proceedings are instituted for the reason of filing of a criminal case, it is desirable that the disciplinary authority should await till the outcome of a criminal case. 11. In the instant case, the enquiry officer without awaiting for the outcome of a criminal case, arrived at the conclusion that the charges levelled against the petitioner is proved and therefore, recommended for the major penalty. 11. In the instant case, the enquiry officer without awaiting for the outcome of a criminal case, arrived at the conclusion that the charges levelled against the petitioner is proved and therefore, recommended for the major penalty. Based on these observations, the disciplinary authority also arrived on a conclusion that this is a fit case, wherein, the order of dismissal is required to be inflicted upon the petitioner. It appears that the present petitioner preferred an appeal, being aggrieved and dissatisfied by the said order but unfortunately, the appellate authority also did not consider the various contentions raised by the petitioner including factum of acquittal. Thus, it appears that the appellate authority has noted the submissions made by the petitioner and dealt with in its order but the observations made by the appellate authority clearly indicates that there is no sound justification given by the appellate authority while dealing with the said submission and merely by citing one judgment, the appellate authority thought it fit to reject the submissions of the delinquent/petitioner herein. I also found substance in the arguments advanced by the learned counsel for the petitioner with regard to the charge of unauthorized absence, which is levelled against the petitioner in the departmental proceedings and the recent judgment referred to and relied upon by the learned counsel for the petitioner, which is delivered by the Hon'ble apex Court in Civil Appeal No. 2106 of 2012, wherein, the Hon'ble apex Court in Paragraphs 18, 19, 21 and 25 held as under: - “18. Absence from duty without any application or prior permission may amount to unauthorized absence, but it does not always mean wilful. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalization, etc., but in such case the employee cannot be held guilty of failure of devotion to duty or behaviour unbecoming of a Government servant. 19. In a Departmental proceeding, if allegation of unauthorized absence from duty is made, the disciplinary authority is required to prove that the absence is wilful, in absence of such finding, the absence will not amount to misconduct. 19. In a Departmental proceeding, if allegation of unauthorized absence from duty is made, the disciplinary authority is required to prove that the absence is wilful, in absence of such finding, the absence will not amount to misconduct. 21.The question relating to jurisdiction of the Court in judicial review in a Departmental proceeding fell for consideration before this Court in M.B. Bijlani vs. Union of India and others reported in (2006) 5 SCC 88 , wherein this Court held: “It is true that the jurisdiction of the court in judicial review is limited. Disciplinary proceedings, however, being quasi-criminal in nature, there should be some evidence to prove the cha1rge. Although the charges in a departmental proceeding are not required to be proved like a criminal trial i.e. beyond all reasonable doubt, we cannot loss sight of the fact that the enquiry officer, performs a quasi-judicial function, who upon analyzing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cann1ot enquire into the allegations with which the delinquent officer had not been charged with.” 25. In the result, the appeal is allowed. The impugned orders of dismissal passed by disciplinary authority, affirmed by the Appellate Authority, Central Administrative Tribunal and High Court are set aside. The appellant stands reinstated. Taking into consideration the fact that the Charged Officer has suffered a lot since the proceeding was drawn in 1996 for absence from duty for a certain period, we are not remitting the proceeding to the disciplinary authority for any further action. Further, keeping in view the fact that the appellant has not worked for a long time we direct that the appellant be paid 50 % of the back wages but there shall be no order as to costs.” 12. Further, keeping in view the fact that the appellant has not worked for a long time we direct that the appellant be paid 50 % of the back wages but there shall be no order as to costs.” 12. So far as the quantum of punishment is concerned, I have also perused the judgment cited by the learned counsel for the petitioner in the case of Chairman-cum-Managing Director, Coal India Limited and another-versus-Mukul Kumar Choudhuri and others reported in (2009) 15 SCC 620 , wherein, the Hon'ble apex Court while considering the facts and circumstances of the case before it, held that in proved charge of misconduct by delinquent for more than 6 months, the punishment of removal from service was excessive and the Hon'ble apex Court also observed in its judgment about the various factors/considerations to be taken into account by the employer, who was inflicting a major penalty like dismissal and removal. 13. I have also perused the judgments cited by the learned counsel for the Respondent-Union of India in the case of State of Punjab and others-versus-Mohinder Singh reported in (2005) 12 SCC 182 and General Manager, UCO Bank and another-versus-M. Venu Ranganath reported in (2007) 13 SCC 251 , L&T Komatsu Ltd.-versus-N. UdayaKumar reported in (2008) 1 SCC 224 and Tushar D. Bhatt-versus-State of Gujarat and another reported in (2009) 11 SCC 678 . The learned counsel for the Respondent-Union of India has also referred to and relied upon the judgment in the case of Noida Entrepreneurs Association-versus-Noida and others reported in (2007) 10 SCC 385 and submitted that the standard of proof required in criminal proceedings and departmental enquiry are distinct.1 14. On perusal of the judgment in the case of L&T Komatsu Ltd.-versus-N. UdayaKumar reported in (2008) 1 SCC 224 , it appears that the Hon'ble apex Court decided the said matter on the basis of the facts and circumstances of that matter, wherein, the delinquent was found guilty of unauthorized absence, several times (15 times in that case), therefore, considering the past conduct of the delinquent and the dotted blemished record of the delinquent in that case, the Hon'ble apex Court thought it fit to decide that the quantum of punishment is not excessive. So far as the another judgment cited by the learned counsel for the Union of India in the case of Tushar D. Bhatt-versus-State of Gujarat and another reported in (2009) 11 SCC 678 is concerned, it appears that the Hon'ble apex Court has taken view on the basis of facts and circumstances of that matter, wherein, the transfer order was made due to exigency of service and the delinquent misbehaved with the authority and remained absent unauthorizedly for more than six months and he also made unwarranted allegations against the superior officer, which is not the case here and therefore, in my opinion, the said judgment is also not applicable to the facts of the present case. Another judgment cited by the learned counsel for the Respondent-Union of India, is in the case of State Bank of Bikaner and Jaipur versus Nemi Chand Nalwaya reported in (2011) 4 SCC 584 , wherein, the Hon'ble apex Court while discussing the scope of judicial review, decided on the basis of the facts and circumstances of that case that the quantum of punishment, i.e., the dismissal was just and proper, as the Bank employee involved in that case was held to be negligent while allowing fraudulent withdrawal to a person, who is not an Account holder and causing loss to the Bank. The learned counsel for the Union of India has mainly relied upon the ratio laid down in the said judgment and submitted that in the said judgment, it has been held that the subsequent acquittal by criminal court will not in any way render a completed disciplinary proceedings invalid nor affect validity of finding of guilt or consequential punishment as the criminal proceedings and the departmental proceedings are two different and distinct proceedings and there are different standard of proofs in the departmental enquiry. 15. In the instant case, the enquiry was initiated on the basis of involvement of the delinquent petitioner in a criminal case and another charge/allegation was with regard to the unauthorized absence of 60 days and therefore, as discussed, hereinabove and as laid down by the Hon'ble apex Court in the case of Capt. 15. In the instant case, the enquiry was initiated on the basis of involvement of the delinquent petitioner in a criminal case and another charge/allegation was with regard to the unauthorized absence of 60 days and therefore, as discussed, hereinabove and as laid down by the Hon'ble apex Court in the case of Capt. M. Paul Anthony-versus-Bharat Gold Mines Ltd. and another reported in (1999) 3 SCC 679 , in the case of G.M. Tank-versus-State of Gujarat and others reported in (2006) 5 SCC 446 , and also in the case of The State of Bihar & Others-versus-Javed Shaukat reported in 2002 (3) J.L.J.R. 299 and the recent judgment rendered by the Hon'ble apex Court in Civil Appeal No. 2106 of 2012, which are relevant for the purpose of deciding this case as the facts and circumstances of the present case are similar and the ratio laid down by the Hon'ble apex Court as well as by the Patna High Court is also applicable to the present case. As held by the Hon'ble apex Court in its recent judgment, the unauthorized absence is required to be considered in the context of wilful absence from duty and the Hon'ble apex Court in Para 18 of the said judgment observed that there may be different eventualities, due to which an employee may abstain from duty including compelling circumstances beyond his control like illness. 16. While citing the said judgment, the learned counsel appearing for the Respondents submitted that the Hon'ble apex Court in a case of unauthorized absence for a period of 5 and half months without sanctioned leave or prior intimation, held that such conduct on the part of a member of a disciplined force is a grave misconduct and he cannot be retained in service. 17. In the said case, the Hon'ble apex Court observed that “However, if any representation for converting the order of dismissal into an order of reinstatement in service is made by the petitioner, who has already put in more than 22 years of service, the authorities shall be at liberty to pass an appropriate order therein. 18. In the instant case, the petitioner initially took leave for his marriage but unfortunately, the marriage was required to be postponed on account of sad demise of his grand-mother and therefore, he could not communicate the authority regarding extension of leave. 18. In the instant case, the petitioner initially took leave for his marriage but unfortunately, the marriage was required to be postponed on account of sad demise of his grand-mother and therefore, he could not communicate the authority regarding extension of leave. Thereafter, the petitioner submitted an application/representation for extension of leave but no reply has been given by the authorities concerned. The period, as alleged by the Respondents for unauthorized absence, is only for 70 days and therefore, the period of absence, which has been treated as unauthorized absence, requires consideration in the light of the recent judgment given by the Hon'ble apex Court in Civil Appeal No. 2106 of 2012 and more particularly in view of the observations given in Paragraphs 18 and 19. So far as other charge with regard to involvement in a criminal case is concerned, it appears that the present petitioner has been acquitted by the learned Magistrate as per the judgment and order dated 05.03.2001 (Annexure-5). It appears that the factum of acquittal has not been properly considered by the appellate authority. In the present case, the appellate authority did mention about the submissions raised by the appellant, but the said issue has not been properly dealt with by the appellate authority by sound reasonings, as required by the quasi-judicial authority, sitting in appeal. It appears that the present petitioner has been dismissed from the services way back in 2001 and thereafter, the petitioner preferred the present petition and therefore, in my opinion, no fruitful purpose will be served by referring this matter to the revisional authority as contended by the learned counsel for the Respondent-Union of India. The Rule, which is referred to and relied upon by the learned counsel appearing for the Respondent-Union of India, appears to be discretionary in nature and therefore, the option is left to the petitioner to approach the Revisional authority or not. In the instant case, the petitioner has approached this Court by way of filing the present writ petition. Considering the scope of judicial review in the light of the facts and circumstances discussed herein above, it appears that this is a fit case, wherein, interference is called for by this Court, as the finding recorded in judgment of criminal case and factum of acquittal has not been properly considered by the appellate authority. Considering the scope of judicial review in the light of the facts and circumstances discussed herein above, it appears that this is a fit case, wherein, interference is called for by this Court, as the finding recorded in judgment of criminal case and factum of acquittal has not been properly considered by the appellate authority. Ideally, the enquiry officer as well as the disciplinary authority would have waited till the outcome of the criminal case, as the basis of one of the charges was involvement in a criminal case. However, the disciplinary authority without waiting for the outcome of the criminal case proceeded on the basis of the materials available with him and passed an order of dismissal. 19. Having regard to the aforesaid facts and circumstances of the present case and more particularly in view of the judgment of the Hon'ble apex Court in the case of Chairman-cum-Managing Director, Coal India Limited and another-versus-Mukul Kumar Choudhuri and others reported in (2009) 15 SCC 620 , it would be just and proper in the present case also to quash and set aside the order of dismissal. Accordingly, the order of dismissal, dated 08th January, 2001 passed by the Commandant, 67 Battl., C.R.P.F. (Respondent No. 3) is hereby quashed and set aside and the petitioner is ordered to be reinstated in service within one month from the date of the order. However, it is clarified that the entitlement of the petitioner to any back wages from the date of his dismissal until reinstatement, is ordered to be withheld by way of punishment for proved misconduct. 20. This writ petition is partly allowed accordingly. 21. Let a copy of this order be supplied to the learned counsel for the parties.