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2013 DIGILAW 45 (ORI)

SUSHANTA KUMAR GOUDA v. UNION OF INDIA

2013-02-07

B.K.MISRA, M.M.DAS

body2013
JUDGMENT : B.K. Misra, J. - In this writ petition the petitioner has challenged the order of removal from service recorded by the opposite party Nos. 3 and 4 vide Annexures 1 and 3 respectively. The undisputed facts of the case is that the petitioner was posted as CT/Bug attached to the Group Centre of the Central Reserve Police Force, Bhubaneswar (hereinafter referred to as "C.R.P.F."). The petitioner was transferred from the CRPF Group Centre, Bhubaneswar with a direction to report to 52 Battalion of the CRPF. Though the petitioner was relieved on transfer from the Group Centre CRPF, Bhubaneswar in the afternoon of 12.10.2007, but he did not join his new place of posting soon thereafter. But after a long lapse of 511 days he reported to 52 Battalion of the CRPF in the afternoon of 16.3.2009. It is the case of the petitioner that he could not join 52 Battalion Group Centre CRPF as he being the only male member available in the house was looking after the treatment of his old ailing mother and had requested for leave, but the authorities without considering his genuine prayer for grant of leave initiated disciplinary action and without affording him any opportunity of being heard and without following the principles of natural justice removed him from the service, which amounts to an arbitrary exercise of the powers by his authorities and therefore needs interference by this Court in exercise of the extra-ordinary jurisdiction under Articles 226 and 227 of the Constitution of India. Resultantly, the petitioner has prayed for quashing the impugned orders under Annexures-1 and 3 and with a further direction to the opposite parties to readmit him into the service on humanitarian consideration. 2. The opposite parties entered appearance and filed their counter-affidavit. It is the case of the opposite parties that the action of the petitioner in not joining at his new place of posting after being relieved from his former post is an act of gross indiscipline and though the petitioner was asked to report to his duties first and thereafter his leave would be considered but the petitioner showed a recalcitrant attitude for which he was declared a "deserter" and necessary departmental action was initiated against him. It is the further stand of the opposite parties that adequate opportunity had been given to the petitioner and all procedures have been followed by sending the memorandum along with Annexures in the home address of the petitioner with regard to holding of the departmental enquiry. In the enquiry when the petitioner was found guilty of gross misconduct, he was removed from service with effect from the afternoon of 15.5.2009 and his appeal as well as the revision have been dismissed by the appellate as well as the revisional authority by considering the materials on record and not with any caprice or malice. Thus, it is the case of the opposite parties that when there were no procedural irregularities in conducting the departmental enquiry and in view of the gravity of the offence, the punishment awarded to the petitioner cannot amount to shockingly disproportionate to the alleged delinquency and it is prayed that the writ petition being devoid of merit should be dismissed. 3. We have heard Mr. A.P. Bose, learned Counsel for the petitioner as well as learned Asst. Solicitor General appearing for the opposite parties. Mr. Bose, learned Counsel for the petitioner very strenuously contended that the petitioner is a young person and has long years to serve for the cause of nation and when he was forced to remain on leave because of the illness of his mother, the authorities should have taken a compassionate view and could have imposed minor penalty within the meaning of section- 11(1) of the Central Reserve Police Force Act, 1949. This argument of Mr. Bose was seriously countenanced by the learned Asst. Solicitor General on the ground that the tendency of not reporting at the new place of posting especially in a Para Military Organisation should not be viewed leniently and the same needs to be curbed with a firm hand and when the petitioner has been removed from service as he did not comply with the order of transfer for a long period i.e. to say 511 days, removal from service is the most appropriate order which the Disciplinary Authorities have imposed and there is no reason to interfere with the same. 4. We have perused the materials placed before us. 4. We have perused the materials placed before us. Admittedly the petitioner did not carry-out the order of transfer from Group Centre C.R.P.F., Bhubaneswar to 52 Battalion C.R.P.F. after he was relieved on 12.10.2007 and joined at the new place of posting after 511 days. It is the plea of the petitioner that he could not join his new place of posting as he was looking after his ailing mother in the absence of any other male member in the family. But this plea of the petitioner cannot at all be believed for a moment in view of the own assertion of the petitioner in the writ petition that his father is a Senior Clerk in the Office of the Inspector of Ayurveda at Rayagada. The elder brother of the petitioner is a businessman, the younger brother of the petitioner is a student. It is something fallacious to believe that the father of the petitioner who is a Senior Clerk in the Office of the Inspector of Ayurveda could not find any time to look after the treatment of his wife. Without entering into the geniuses of the treatment papers furnished in support of the illness of mother of the petitioner, suffice is to say that the petitioner un-authorisedly remained absent from duty for 511 days and did not join at his new place of posting. 5. It is needless to reiterate the settled position of law that a Government servant is duty bound to comply with the order of transfer and when the present petitioner himself had no physical incapacitation he having failed to join at his new place of posting and applying leave for a long period, the same amounts to gross misconduct on the part of the person belonging to a Para-Military organization. 6. Coming to the contention of Mr. Bose, learned Counsel for the petitioner that section 11(1) of the C.R.P.F. Act does not contemplate removal from service but speaks of imposition of minor punishment and therefore the impugned orders at Annexures-1 and 3 are bound to be quashed. We find that on a bare perusal of section 11 of the C.R.P.F. Act, 1949, it appears that the said section deals with minor punishment as compared to the major punishments prescribed in the preceding section. We find that on a bare perusal of section 11 of the C.R.P.F. Act, 1949, it appears that the said section deals with minor punishment as compared to the major punishments prescribed in the preceding section. It lays down that the Commandant or any other authority or officer as may be prescribed, may subject to any rules made under the Act, award any one or more of the punishments to any member of the force who is found guilty of disobedience, neglect of duty or remissness in the discharge of his duty or of other misconduct in his capacity as a member of the force. The use of words 'in lieu of, or in addition to, suspension or dismissal' appearing in sub-section (1) of section 11 before clauses (a) to (e) shows that the authorities mentioned therein are empowered to award punishment of dismissal or suspension to the member of force who is found guilty and in addition to, or in lieu thereof, the punishment mentioned in clause (a) to (e) may also be awarded. It is the fairly well settled position of law that removal is a form of dismissal as both stand on the same footing and bring about termination of service. Rule 27 of the C.R.P.F. Rules clearly permits removal by the competent authority. In the instant case the Commandant who had passed the order of removal was the competent authority to pass the order. Dr. Dattatraya Mahadev Nadkarni (since deceased by his L. Rs.) Vs. Municipal Corporation of Greater Bombay, Union of India (UOI) and Others Vs. Ghulam Mohd. Bhat, The Apex Court in the case of the State of U.P. and others Vs. Ashok Kumar Singh and anothers, and Mithilesh Singh Vs. Union of India (UOI) and Others, have held that a police constable who overstayed though belong to a disciplined force, for such act of indiscipline he has to be dealt with sternly. It is for the employee concerned to show how that penalty was disproportionate to the proved charges. In the instant case/no mitigating circumstance has been placed by the petitioner to show as to how the punishment could be characterized as disproportionate and/or shocking. Therefore, the order of removal from service in our considered views cannot be faulted as the petitioner without any justifiable reason stayed away from duty for over a period of 511 days. In the instant case/no mitigating circumstance has been placed by the petitioner to show as to how the punishment could be characterized as disproportionate and/or shocking. Therefore, the order of removal from service in our considered views cannot be faulted as the petitioner without any justifiable reason stayed away from duty for over a period of 511 days. Under the circumstances, we are of the view that retaining the petitioner in service or showing any leniency in the matter of punishment would set a bad example for other members of a disciplined organization like C.R.P.F. In support of our conclusions, we draw support from the case of Union of India and others v. Gulam Mohd. Bhat (supra), S.C. Saxena v. Union of India and others, (2006) 9 SCC 583 and two decisions of this Court in Santosh Kumar Sahu (dead) after him Santosh Ku. Sahu (Dead) after Him Sabita Sahu Vs. Additional D.I.G.P., Group Centre, CRPF, BBSR and Another Laxmidhar Nayak Vs. Union of India and Others For the reasons stated above, we find no material in this writ petition and accordingly the same stands dismissed. M.M. Das, J. I agree. Final Result : Dismissed