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2014 DIGILAW 120 (JHR)

Cyril Toppo v. Union of India

2014-01-18

APARESH KUMAR SINGH, R.BANUMATHI

body2014
Judgment 1. By Court This Letters Patent Appeal is preferred against the order dated 24.9.2012 passed in W.P.(S) No. 2605 of 2006, whereby the learned Single Judge has dismissed the writ petition holding that the appellant was unauthorizedly absent from duty from 10.1.2002 to 10.3.2002 i.e. for sixty days and that the orders passed by the Commandant and the DIG, CISF are lawful. 2. The appellant remained absent from the duties unauthorizedly between 10.1.2002 to 10.3.2002 i.e. for sixty days. When the appellant returned back to his office on 11.3.2002, a departmental proceeding was initiated against him and a show cause was issued on 2.4.2002 vide memo no. 1773. The appellant submitted his explanation stating that his mother was seriously ill and that he was granted casual leave from 7.1.2002 for five days. The explanation submitted by the appellant was rejected and enquiry was ordered to be conducted. The Inquiry Officer found the charges proved against the appellant. Based on the Inquiry Officer's report, the disciplinary authority imposed punishment of dismissal of the petitioner appellant from service vide order dated 9.12.2002. Feeling aggrieved, the appellant preferred statutory appeal before the appellate authority, which was also dismissed vide order dated 29.4.2003. Challenging the order passed by the disciplinary authority and the appellate authority, the appellant filed W.P.(S) No.2605 of 2006. By order dated 24.9.2012, the learned Single Judge dismissed the writ petition holding that the appellant remained unauthorizedly absent without any valid reasons and the said action amounts to gross indiscipline and that the appellant being a member of disciplined force, the punishment imposed on the appellant is commensurate with the act of misconduct. Challenging the said order, the appellant has preferred this Letters Patent Appeal. 3. The learned counsel for the appellant contended that the disciplinary authority and the appellate authority as well as the learned Single Judge did not keep in view that the appellant has justifiable reason for his absence and that since his mother was unwell, he could not return back to his duties. The learned counsel placing reliance upon Civil Appeal No. 2106 of 2012 submitted that unless the disciplinary authority and the appellate authority records the finding that unauthorized absence was a willful one and that it amounted to serious misconduct, the punishment of dismissal cannot be sustained. The learned counsel placing reliance upon Civil Appeal No. 2106 of 2012 submitted that unless the disciplinary authority and the appellate authority records the finding that unauthorized absence was a willful one and that it amounted to serious misconduct, the punishment of dismissal cannot be sustained. Learned counsel for the petitioner submitted that no such finding has been recorded by the disciplinary authority, which the learned Single Judge did not keep in view. Learned counsel for the appellant further submitted that the appellant was not a habitual absentee and that it was only a one time act of unauthorized absence and that being so the punishment of dismissal from service is disproportionate to the proved charges. 4. We have heard, learned counsel for the respondent Union of India Mr.Faiz Ur Rahman. Drawing our attention to the counter affidavit filed by the respondents, the learned counsel for the respondents submitted that inspite of five call letters sent to the appellant and the communication sent through the police station, there was no response from the appellant. The learned counsel further submitted that inspite of specific direction to hand over the charge, the appellant without handing over the charge left the Unit without any information or permission on 10.1.2002 and thus the sequence of event amounts to willful misconduct and the disciplinary authority and the appellate authority rightly imposed the punishment of dismissal from service and the punishment is neither disproportionate nor harsh, warranting any interference by this Court. 5. We have considered the submissions of the learned counsel for the appellant as well as the learned counsel for the respondents. 6. The appellant applied for five days casual leave with effect from 7.1.2002 and when permission was granted to him, the appellant was specifically directed to hand over the charge of Quarter Master Store to Head Constable Prakash Chand. In the counter affidavit filed by the respondents, it is clearly pointed out that the appellant without handing over charge of Quarter Master Store to Head Constable Prakash Chand, left the Unit without any information or permission on 10.1.2002. In this regard necessary entries were also made in the General Diaries in the Unit. As pointed out by the learned counsel for the respondents, four call letters on 12.1.2002, 21.01.2002, 09.02.2002 and 02.03.2002 were sent at the appellant's permanent home address directing him to report forthwith. In this regard necessary entries were also made in the General Diaries in the Unit. As pointed out by the learned counsel for the respondents, four call letters on 12.1.2002, 21.01.2002, 09.02.2002 and 02.03.2002 were sent at the appellant's permanent home address directing him to report forthwith. Further, a letter was also addressed to Gumla Police Station with a request to direct the appellant to report his duty immediately but the appellant did not respond to any of the call letters nor the communication sent through the police station and only on 11.3.2002 the appellant reported at Kuteshwar Mines unit at his own after remaining on unauthorized leave for sixty days 7. Based on the available evidence and the materials, the Inquiry Officer found the charges to be proved against the appellant and accepting the report of the Inquiry Officer, the disciplinary authority imposed the punishment of dismissal from services. Thus, it cannot be contended that the finding of the Inquiry Officer is based on no evidence, warranting interference by exercising discretion under Article 226 of the Constitution of India. In the decision relied upon by the learned counsel for the appellant being Civil Appeal No.2106 of 2012, the delinquent therein was prevented to sign the attendance register, the defence and the evidence put forth by the delinquent was ignored. Finding that the evidence and the defence put forth by the delinquent was ignored and on the basis of irrelevant facts the authority concerned held the delinquent guilty, the Hon'ble Supreme Court interfered with the punishment of dismissal. The ratio of the said decision cannot be applied to the case in hand. The sequence of event, as pointed out earlier, amounts to willful absence. On perusal of the inquiry report, it is also found that the Inquiry Officer recorded a clear finding that the unauthorized absence is willful absence. 8. From perusal of the inquiry report, the order of the disciplinary authority as well as the order passed in appeal, it appears that initially the appellant had taken the plea of illness of his mother and later on tried to make out a case of his own illness. The disciplinary authority having examined the evidence and material, found it wholly unsatisfactory. Therefore, the willful absence of the appellant was proved. 9. The disciplinary authority having examined the evidence and material, found it wholly unsatisfactory. Therefore, the willful absence of the appellant was proved. 9. In the facts and circumstances of the case, we are not inclined to interfere with the order of the learned Single Judge, as it does not require any interference. The Letters Patent Appeal is dismissed.