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2014 DIGILAW 656 (AP)

R. A. Thorat v. Union of India

2014-06-03

R.KANTHA RAO

body2014
ORDER R. Kantha Rao, J. 1. This writ petition is filed seeking issuance of a writ of certiorari or any other order or direction in similar nature and quash the order dated 03.08.2004, No. R-XIII-7/2004-Admn-I passed by Inspector General of Police, S/Sector, CRPF Chandrayangutta, Hyderabad-5, arising out of Order dated 13.05.1999, No. R-XIII-23/98, Estt. III of Deputy Inspector General of Police, CRPF Hyderabad, arising out of Order dated 18.09.1998, No. P-VIII-5/98, Estt. 2 of Commandant 113 Bn. CRPF, Warangal (A.P.). 2. I have heard Sri Bankatlal Mandhani, learned counsel appearing for the petitioner and Sri Ponnam Ashok Goud, learned counsel appearing for the respondents. 3. The brief facts relevant for disposing of the writ petition may be stated as follows: The petitioner was serving in Central Reserve Police Force (CRPF) in the post of L/NK (GD). He was served with a notice to show cause as to why he was absent in camp from 20.15 to 21.45 hours on 31.01.1998 without permission of the competent authority and further that he was absent from the camp area from 20.15 to 21.45 hours on 01.02.1998 and thus, committed misconduct and was liable for punishment under Section 11(1) of the Central Reserve Police Force Act, 1949. 4. According to the petitioner, he gave reply on 12.05.1998 explaining that on 31.01.1998 he contacted his mother from STD booth and learnt that his mother became sick and bedridden, there was no male assistance to look after his mother, he became frustrated, he approached the competent authority but nobody was available and being in depressed mood he went to a movie and thus his absence was not deliberate. 5. The aforesaid explanation of the petitioner contains admission relating to the allegation of his absence from duty. 6. As regards the second allegation, the petitioner submitted that on 01.02.1998 he was assigned duty from 22.00 hours of night patrolling. As and since he was on night patrolling duty he was not required to attend the parade and he was in the tent when the parade was ordered. He further submitted that Sri L.B. Shindre, Head Constable who came to his tent told that since he was assigned duty from 22.00 hours and as C.H.M had not ordered to attend the parade, he was not required to attend the parade. He further submitted that Sri L.B. Shindre, Head Constable who came to his tent told that since he was assigned duty from 22.00 hours and as C.H.M had not ordered to attend the parade, he was not required to attend the parade. Thus, according to the petitioner, he was very much available in the camp, the charge that he was absent from duty is false and he prayed for excuse for not attending the parade. 7. The Department not being satisfied with the explanation offered by the petitioner, initiated disciplinary proceedings against him by appointing an Enquiry Officer. The Enquiry Officer conducted enquiry, found the petitioner guilty of the charges. Basing on the report of the Enquiry Officer, the disciplinary authority inflicted on the petitioner the punishment of removal from service which is a major punishment. Against the said order, the petitioner preferred an appeal to the Deputy Inspector General of Police, CRPF, Hyderabad and the appeal was dismissed confirming the order passed by the disciplinary authority. Against the order in appeal, the petitioner preferred a revision to the Inspector General of Police, S/Sector, CRPF, Hyderabad. The said revision was also dismissed. Aggrieved thereby, the petitioner filed the present writ petition. 8. The petitioner raised the contention in the writ petition that he was not afforded to any opportunity to cross examine the witnesses of the Department and to lead his defence evidence by examining himself as a witness on his behalf; that major punishment of removal from service was imposed upon him without serving on him any notice proposing major penalty as required under Rule 27(vii) of CRPF Rules; and that the punishment of removal from service inflicted on him is shockingly disproportionate and deserves to be reduced. 9. The respondents filed counter affidavit wherein they have stated that the petitioner has nowhere stated in his explanation to the memorandum of charges that his mother was sick and he had made a telephone call to her. Instead, according to the respondents, the petitioner stated that he tried to contact his family members on telephone and he could not get the line and he became tense and therefore went to a movie. It is further contended that the petitioner nowhere stated about making telephone call to his house and only stated that to improve his mental condition he went to watch a movie in Hanumakonda. It is further contended that the petitioner nowhere stated about making telephone call to his house and only stated that to improve his mental condition he went to watch a movie in Hanumakonda. Therefore, according to the respondents, the petitioner made contradictory statements in his explanation to the charges framed against him and in the affidavit filed in support of the writ petition. 10. It is also contended by the respondents that the petitioner without obtaining any permission from the higher officials deliberately left the camp in highly sensitive and naxalite infested area and the plea of the petitioner that the competent authority was not available is a fabricated one. It is further contended that the file relating to the departmental enquiry clearly shows that the petitioner was given ample opportunity to cross examine the prosecution witnesses 1 and 3, but the petitioner had declined to do so. As regards to cross examination of prosecution witness No. 2, it is stated that the petitioner cross examined the said witness at length which is evident from the departmental enquiry file. As regards not affording any opportunity to lead defence evidence, it is submitted by the respondents that the Enquiry Officer vide his letter dated 21.06.1998 has given the petitioner 15 days time for submitting his written statement of defence and list of defence witnesses, but the petitioner failed to do so. Subsequently, the petitioner submitted his written statement of defence dated 05.07.1998, considering the same, the Enquiry Officer passed the final order. 11. Nextly, it is contended by the respondents that there is no provision for issuing show cause notice against the proposed major punishment. As regards Rule 27(c)(vii) of CRPF Rules, 1955, it is submitted by the respondents that the said provision has been deleted and no longer operative. Thus, according to the respondents, as per Rules, there is no provision for issuing any show cause notice proposing punishment of removal from service. However, they submitted that the petitioner was given ample opportunity at all stages of enquiry before awarding major penalty. The disciplinary authority vide its letter dated 18.07.1998 had asked the petitioner to submit a representation if any and the petitioner submitted written statement/reply without any new facts. However, they submitted that the petitioner was given ample opportunity at all stages of enquiry before awarding major penalty. The disciplinary authority vide its letter dated 18.07.1998 had asked the petitioner to submit a representation if any and the petitioner submitted written statement/reply without any new facts. Therefore, the version of the respondents is that there is no procedural irregularity or violation of rules at any stage of the proceedings conducted against the petitioner and the respondents prayed to dismiss the writ petition. 12. Perusal of the material papers available on record obviously disclose that the petitioner himself kept away from the disciplinary proceedings initiated against him, having participated in the said proceedings at some stages. The very fact that the petitioner submitted written explanation to the charges leveled against him and cross examined one of the witnesses for the Department shows that he participated in the departmental enquiry held against him. Therefore, I see no substance in the contention that the Enquiry Officer did not afford him any opportunity either to cross examine the witnesses of the Department and to examine the defence witnesses. Therefore, the assertion made by the petitioner that he was denied opportunity to participate in the departmental enquiry is factually incorrect. 13. In SBI v. Narendra Kumar Pandey (2013) 2 SCC 740 relied on by the learned counsel appearing for the respondents the Supreme Court held as follows: "In case of ex parte enquiry if charges are borne out from documents kept in normal course of business, no oral evidence is necessary to prove those charges i.e. uncontroverted documentary evidence in such situation is sufficient to prove charges. Disciplinary authority is expected to prove charges on preponderance of probability and not on proof beyond reasonable doubt. High Court under Art. 226 was not justified in interfering with order of dismissal passed by appointing authority after a full-fledged inquiry, especially when Service Rules provided for an alternative remedy of appeal. High Court while exercising powers under Art. 226 does not act as an appellate authority though its jurisdiction is circumscribed and confined to correct an error of law or procedural error, if any, resulting in manifest miscarriage of justice or violation of principles of natural justice. High Court while exercising powers under Art. 226 does not act as an appellate authority though its jurisdiction is circumscribed and confined to correct an error of law or procedural error, if any, resulting in manifest miscarriage of justice or violation of principles of natural justice. In the absence of any procedural irregularity having been committed either by the Bank, presenting officer or enquiring authority, High Court was not justified in interfering with dismissal order passed in disciplinary proceedings." 14. In the instant case, as already said there is no truth in the contention put forth by the petitioner that he was not allowed by the Enquiry Officer to cross examine the witnesses of the Department or to lead defence evidence. There also no truth in the contention that he was not served with any notice proposing the penalty of removal from service. This Court while exercising jurisdiction under Article 226 of the Constitution of India is not supposed to examine the correctness of the findings unless there is a manifest miscarriage of justice or violation of principles of natural justice. 15. The next aspect requires to be considered is proportionality of the punishment and scope of interference of this Court with the punishment imposed on the petitioner. In Charanjit Lamba v. Army Southern Command (2010) 11 SCC 314 the Supreme Court has laid down that the Court can interfere with the punishment only when it is outrageously disproportionate suggesting lack of good faith, Court would not interfere merely because some lesser punishment would have been more appropriate in court's view. 16. In the case before the Supreme Court, an Army Officer was dismissed from service upon proof of misconduct of density and lack of integrity, i.e. making false TA claims and not paying electricity bills, the Supreme Court was of the view that the punishment was not disproportionate keeping in view the fact that appellant was a member of an armed force wherein utmost honesty, loyalty and commitment was required. 17. In Ramvir Singh v. Union of India (2009) 3 SCC 97 the appellant, a Constable of Border Security Force, was removed from service on account of his failure to return to place of duty despite instructions being given to him, refusal to take food in protest when he was punished and refusal to do pack drill while undergoing rigorous imprisonment. The appellant unconditionally pleaded guilty. The appellant unconditionally pleaded guilty. He offered an explanation but it was not accepted. No medical record was produced to show that he had been suffering from any kind of ailment due to which he refused to take food. He refused to take meals only as a measure of protest when sentence had been imposed on him. 18. Dealing with the said case, the Supreme Court held that in appropriate cases, the High Court exercising jurisdiction under Article 226 of the Constitution of India can invoke doctrine of proportionality. The appellant was bound to follow the rules, he is presumed to know the consequences of violation thereof. It may or may not be that he committed acts of insubordination by not taking food but appellant did not even participate in pack drilling which was imperative, and it is therefore not a case where the High Court could come to a conclusion that the punishment imposed was shocking to the conscience. 19. If the case of the petitioner is dealt with in the light of the aforesaid principles laid down by the Hon'ble Supreme Court, the petitioner was working in the Central Reserve Police Force which is a disciplined force. There is no denial to the fact that he was working in a most sensitive and naxalite infested area. The charges proved against the petitioner obviously reveal that deliberately he was absent from duty. The explanation offered by him was found to be false by all the authorities. Having regard to the facts and circumstances of the present case, the punishment imposed on the petitioner cannot be said to be shockingly disproportionate to the proved charge of misconduct. Therefore, this Court will not interfere with the concurrent findings recorded by the authorities, nor will it invoke the doctrine of proportionality to the aid of the petitioner. 20. For the reasons, stated supra, the Writ Petition is dismissed. In the circumstances there shall be no order as to costs. 21. Pending miscellaneous petitions, if any, shall stand closed in consequence. Petition dismissed