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2015 DIGILAW 169 (ORI)

Krushna Chandra Behera v. Union of India

2015-03-12

B.R.SARANGI

body2015
JUDGMENT : B.R. Sarangi, J. The petitioner, while working as a C.T. (FTR) in 94 BN, CRPF, C/o-56 APO, Srinagar, (J&K) following a disciplinary proceeding initiated against him, was dismissed from service vide order dated 03.04.2004 in Annexure-4, which was confirmed by the Appellate Authority, vide order dated 09.09.2004 in Annexure-6 and re-affirmed by the Revisional Authority vide order dated 27.07.2005 in Annexure-8. 2. The short fact of the case, in hand, is that the petitioner while working as a constable, was served with a memorandum along with articles of charges on 06.08.2003, vide Annexure-1 series by the Commandant proposing to hold an enquiry against him under Rule 27 of the CRPF Rules, 1955 (hereinafter referred to as "1955 Rules") for imputation of disobedience/negligence in duty/remissness in the discharge of duty or other misconduct in his capacity as a member of the Force. The petitioner was served with the following articles of charges. "Article-I That the said No. 889940348 CT (Ftr) K.C. Behera while functioning as CT (Ftr) in HQR/94 Bn., CRPF committed an act of disobedience of Orders under Section 11(1) of CRPF Act, 1949, in that he left the camp at his own on 25/12/02 at about 1200 hrs. without any information/permission of the competent authority and proceeded to Dumchera Market i.e. 29 km. away from the Unit HQR., and is a highly sensitive and terrorist infested area of Tripura. Article-II That during the aforesaid period and while functioning in the aforesaid office the said No. 889940348 CT (Ftr) K.C. Behera of HQR/94 Bn. CRPF committed an act of grave misconduct in his capacity as a member of the Force U/S 11(1) of CRPF Act, 1994, in that he consumed liquor outside of the campus which is a highly sensitive and terrorist infested area of Tripura. Article-III That during the aforesaid period and while functioning in the aforesaid office the said No. 889940438 CT (Ftr) K.C. Behera committed an act of disobedience of orders under Section 11(1) of CRPF Act, 1949 in that he was relieved on attachment duty for war like situation on 18.7.02 with direction to report to 118 Bn. CRPF, but he did not report to 118 Bn. CRPF in time after having been relieved by this Unit with proper briefing for important duty and remained absent for 17 days at his own without any information/permission of the competent authority. CRPF, but he did not report to 118 Bn. CRPF in time after having been relieved by this Unit with proper briefing for important duty and remained absent for 17 days at his own without any information/permission of the competent authority. Thus the said No. 889940348 CT/Ftr K.C. Behera acted in a manner unbecoming of a member of the Force and thereby violated the provisions contained under Section 11(1) of CRPF Act, 1949." Preliminary inquiry was conducted by the Dy. Commandant, on the basis of which departmental enquiry was started and in the departmental enquiry, the Enquiring Office found that the petitioner is guilty of the charges leveled against him and accordingly submitted report before disciplinary authority on 22.01.2004. On 26.02.2004, the petitioner was handed over a letter of the Commandant along with enquiry report asking him to make a written representation within 15 days to the disciplinary authority as the disciplinary authority was going to take a decision against the petitioner basing on the report of the Enquiry Officer submitted in the departmental Enquiry. On receipt of such letter, the petitioner submitted his representation before the disciplinary authority, wherein the petitioner admitted the guilt and sought for pardon for his fault. But the disciplinary authority without considering the same, dismissed the petitioner from service vide order dated 03.04.2004 in Annexure-4. Against the said order of dismissal, passed by the disciplinary authority, the petitioner preferred an appeal before the appellate authority and the appellate authority on consideration of the materials available on record confirmed the order of dismissal, vide order dated 09.09.2004 in Annexure-6. Being aggrieved by the order of the appellate authority, the petitioner preferred a revision before the Revisional authority, explaining all the situation and the irregularity committed by the disciplinary authority. But the Revisional authority without considering the same, reaffirmed the order of punishment passed by the disciplinary authority which was confirmed by the appellate authority. Hence this petition. 3. Mr. A.K. Mishra, learned Senior Counsel for the petitioner strenuously urged that the proceeding is vitiated due to non-compliance of the principle of natural justice, inasmuch as the petitioner was not supplied with the documents like Medical Examination Report dated 25.12.2002, on the basis of which charges have been levelled against him. Hence this petition. 3. Mr. A.K. Mishra, learned Senior Counsel for the petitioner strenuously urged that the proceeding is vitiated due to non-compliance of the principle of natural justice, inasmuch as the petitioner was not supplied with the documents like Medical Examination Report dated 25.12.2002, on the basis of which charges have been levelled against him. Section 11 of the CRPF Act, 1949 (in short, "1949 Act") which provides for so many minor punishments for the charges which have been levelled against the petitioner and law is well settled that lesser punishment should always be preferred for any disobedience/misconduct or remissness in duty and while alternative punishment is available, imposition of major punishment like dismissal from service is disproportionate to the act committed by him without giving any adequate opportunity to defend in the case. Therefore, he seeks for quashing of the orders passed by the disciplinary authority, appellate authority and revisional authority vide Annexutes-4, 6 and 8 respectively. In order to substantiate his case, he has relied upon the judgment of the apex Court in Union of India and others v. Giriraj Sharma and others, AIR 1994 SC 215 . 4. Mr. S.K. Singh, learned Central Government Counsel has categorically stated that the petitioner having appointed in a disciplined job, while he was posted in HQ/94 Bn., CRPF, left the camp at Panisagar, North Tripura District on 25.12.2002 at about 1200 hour without information/permissions of the competent authority and proceeded to Damchera by a civil Bus which is 29 Kms. away from the Unit HQ Panisagar, which is a highly sensitive and terrorist infested area of North Tripura. On that day he proceeded to the nearby market without any information and permission. Such activity on the part of a member of the disciplined Force like CRPF is highly prejudicial to good order and discipline of the Force. He was detailed for attachment duty in a war like situation on 18.07.2002 with a direction to report to 118 Bn. CRPF, but he failed to report at his duty in time and remained absent for 17 days at his own without any information/permission of the competent authority. Such action is highly irresponsible on the part of the petitioner being a member of a disciplined Force. CRPF, but he failed to report at his duty in time and remained absent for 17 days at his own without any information/permission of the competent authority. Such action is highly irresponsible on the part of the petitioner being a member of a disciplined Force. A preliminary enquiry was conducted to find out the facts and prima facie of the offence was established and hence departmental enquiry was initiated against the petitioner. The enquiring officer submitted departmental enquiry proceedings duly completed in which articles I, II, III charges levelled against him stood proved. Therefore, copy of the enquiry report was provided to the petitioner to enable him to make representation and considering his representation, the disciplinary authority issued the final order of dismissal from service w.e.f. 03.04.2004, vide Annexure-4. In paragraph-4(C) of the counter affidavit the stand taken by the authority is as follows:- "4(C) The petitioner was also a habitual offender. On previous occasion he was sanctioned 30 days leave w.e.f. 17.07.91 to 15.8.91 but he did not report for duty on due date and overstayed from his sanctioned leave from 350 days w.e.f. 16.08.1991 to 30.07.1992 without permission from the competent authority and he was declared deserter from the force on 07.04.1992. He was judicially tried by Shri S.D. Pandey, Judicial Magistrate 1st Class-cum-2nd-in-Commandant in 94 Bn. CRPF under Section 10(m) of CRPF Act 1949 and he was convicted and sentenced to imprisonment for 28 days Quarter Guard in Dett-94 Battalion, CRPF vide Judgment dated 28.08.1992. Subsequently he was dismissed from service vide this office order No. J.II-3/92-Estt.-II dated 11.09.1992 after obtaining approval from Deputy Inspector General of Police, CRPF, Bhubaneswar vide signal No. P. VIII-1/92 - Estt. dated 21.08.1992. Consequent on the appeal with Inspector General of Police, CRPF, Bihar Sector Patna, he was re-instated into service w.e.f. 23.06.1997." Therefore, it is urged that since the petitioner is a habitual offender and he admitted his guilt, the action taken by the authorities is wholly and fully justified and therefore, this Court should not interfere with the same. 5. Consequent on the appeal with Inspector General of Police, CRPF, Bihar Sector Patna, he was re-instated into service w.e.f. 23.06.1997." Therefore, it is urged that since the petitioner is a habitual offender and he admitted his guilt, the action taken by the authorities is wholly and fully justified and therefore, this Court should not interfere with the same. 5. On the basis of the above mentioned facts pleaded, the admitted case is that the petitioner while was continuing as Constable, was served with a memorandum of articles of charges on the allegation of imputation of disobedience, negligence of duty/remissness in the discharge of duty or other misconduct and following an inquiry, the Enquiring Officer submitted report finding the charges levelled against him to have been proved. The report was placed before the disciplinary authority, who on consideration of the representation submitted by the petitioner with reference to the enquiry, imposed the punishment of dismissal from service, which was confirmed by the appellate authority and reaffirmed by the revisional authority. As it appears, the petitioner committed the act of disobedience of order under Section 11(1) of 1949 Act and left the camp at his own without any information and permission of competent authority to Damchera, which is 29 kms away from the Unit Head Quarter, which is a highly sensitive and terrorist infested area of North Tripura and he has also consumed liquor outside the camp. Apart from the same, he has committed an act of disobedience of orders to the extent that he was relieved for attachment duty in a war like situation on 18.07.2002 with the direction to report to 118 Bn. CRPF but he did not report in time and remained absent for 17 days at his own without any information/permission of the competent authority. The cumulative effect of allegation lodged against the petitioner justified the disciplinary authority to pass an order of dismissal by affording reasonable opportunity in conformity with the provisions of law. That apart no allegation of commission of any procedural irregularities have been urged by Mr. A.K. Mishra, learned Senior Counsel for the petitioner before this Court nor such fact has been pleaded in the petition itself, save and except it is stated that the document which has been relied upon while framing the articles of charges, the same has not been provided to the petitioner. A.K. Mishra, learned Senior Counsel for the petitioner before this Court nor such fact has been pleaded in the petition itself, save and except it is stated that the document which has been relied upon while framing the articles of charges, the same has not been provided to the petitioner. The petitioner is well aware of the allegations made against him pursuant to the articles of charges levelled against his conduct and therefore, he has been called upon to represent against the report of the Enquiry Officer and on consideration of such representation, the disciplinary authority passed the final order imposing major penalty of dismissal from service. In a disciplined service, it is of paramount consideration that the delinquent officer has to maintain the dignity of the force inasmuch as he has to act in consonance with the direction and observation by the authority. Since the petitioner has not discharged his duty in conformity with the directions issued by the higher authority, the conduct of such member of the Force is unbecoming of a member of the Force. Therefore, the disciplinary authority has passed the order of dismissal from service which has been confirmed by the appellate authority and reaffirmed by the revisional authority vide Annexure-4, 6, and 8 respectively. 6. Factually since the findings are concurred, this Court has no scope under judicial review to disturb such findings and to come to a different conclusion than that of the conclusions arrived at by the fact finding authority and confirmed in subsequent appeal and revision. 7. Mr. A.K. Mishra, learned Senior Counsel for the petitioner urged that having regard to the allegation made against the petitioner, punishment imposed against him is shockingly disproportionate and therefore, this Court has jurisdiction to interfere with the quantum of punishment imposed against the petitioner. 8. Reliance has been placed in the case of Union of India and others v. Giriraj Sharma (supra), in which the apex Court has held that overstaying leave period by employee subsequent to order of rejection of application for extension of leave, there is no willful intention to flout the order and therefore, imposition of punishment of removal from service is harsh and disproportionate and therefore, the apex Court granted the relief of reinstatement with all monetary and service benefits granted with liberty to visit minor punishment. The fact of the said case is not akin to the present one. The fact of the said case is not akin to the present one. In the present case, the petitioner is a habitual offender and disobedience of the order of the higher authority by him was chronic one and the petitioner consumed liquor by going outside of the camp premises, which is purely a troublesome area and infested with terrorist and also in a war like situation when he has been deployed to discharge his duty, he absented himself unauthorizedly for 17 days without intimation to the higher authority. The cumulative effect of the allegations makes it clear that the conduct of the petitioner is unbecoming of a member in a disciplined Force like CRPF. The petitioner has admitted his guilt and therefore, in view of the admission made by him, in judicial review the scope of inference by this Court is very bleak. 9. In Deputy Commissioner, KVS and others v. J. Hussain, AIR 2014 SC 766 , the apex Court has held that host of factors go into the decision making while exercising such a discretion which include, apart from the nature and gravity of misconduct, past conduct, nature of duties assigned to the delinquent, responsibility of duties assigned to the delinquent, previous penalty, if any, and the discipline required to be maintained in department or establishment where he works, as well as extenuating circumstances, if any exist. Therefore, in exercise of power under judicial review, the apex Court time and again has held that the Court can interfere with the punishment imposed when it is found to be totally irrational or is outrageous in defiance of logic. This limited scope of judicial review is permissible and interference is available only when punishment is shockingly disproportionate, suggesting lack of good faith. In paragraph-11 of the said judgment, the apex Court held as follows :- “...... In all cases dealing with the penalty of removal, dismissal or compulsory retirements, hardship would result. That would not mean that in a given case punishment of removal can be discarded by the Court. That cannot a ground for the Court to interdict with the penalty. This is specifically held by this Court in H.G.E. Trust & Another. In all cases dealing with the penalty of removal, dismissal or compulsory retirements, hardship would result. That would not mean that in a given case punishment of removal can be discarded by the Court. That cannot a ground for the Court to interdict with the penalty. This is specifically held by this Court in H.G.E. Trust & Another. V. State of Karnataka and others (2006) 1 SCC 430 in the following words:- ''A person, when dismissed from service, is put to a great hardship but that would not mean that a grave misconduct should go unpunished. Although the doctrine of proportionality may be applicable in such matter, but a punishment of dismissal from service for such a misconduct cannot be said to be unheard of. Maintenance of discipline of an institution is equally important. Keeping the aforesaid principles in view, we may hereinafter notice a few recent decisions of this Court." 10. While considering the provisions contained under Article 311, the apex Court also laid down the principles with regard to the factors to be taken into consideration by the disciplinary authority while imposing punishment as mentioned supra. 11. Considering the law laid down and applying the principles decided to the case in hand, I am of the considered opinion that once the delinquent officer has admitted his guilt, compliance of the procedure envisaged in the Act and Rules would only be an empty formality. 12. In view of the law down by the apex Court in Dy. Commissioner, KVA (supra) while imposing punishment, the gravity of misconduct, past conduct, nature of duties assigned to the delinquent, responsibility of duties assigned to the delinquent, previous penalty have to be taken into consideration and by taking into account the sum total of the above effect, punishment of dismissal from service has been imposed by the competent authority which cannot be construed to be an unreasonable one, rather the same is in compliance of provisions of law. 13. In view of the aforesaid facts and circumstances, in a judicial review, this Court cannot and should not reduce the quantum of punishment imposed by the disciplinary authority and confirmed by appellate authority and reaffirmed by the revisional authority. 13. In view of the aforesaid facts and circumstances, in a judicial review, this Court cannot and should not reduce the quantum of punishment imposed by the disciplinary authority and confirmed by appellate authority and reaffirmed by the revisional authority. Therefore, this Court is not inclined to interfere with the order of punishment imposed by the disciplinary authority, confirmed in appeal and reaffirmed in revision as the punishment has been imposed by following due procedure of law. 14. Accordingly, the writ petition stands dismissed. There shall be no order as to costs.