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2017 DIGILAW 1366 (ORI)

Mukesh Kumar @ Mukesh Chandra v. Union of India

2017-11-27

SUJIT NARAYAN PRASAD

body2017
JUDGMENT : S. N. Prasad, J. This writ petition is under Article 226 and 227 of the Constitution of India, wherein the order dated 22.04.2004 passed by the disciplinary authority whereby and where under the petitioner has been dismissed from service the order dated 24.9.2004 passed by the appellate authority and the order dated 9.5.2005 passed by the revisional authority whereby and where under the order of punishment passed by the disciplinary authority has been confirmed. 2. Brief facts of the case of the petitioner as per the pleading of the writ petition is that while continuing as Constable under the 34 Battalion, Central Reserve Police Force, the petitioner was proceeded with a domestic enquiry for his unauthorized absence from duties. According to the petitioner, he has availed one month leave w.e.f. 28.04.2003 to 27.5.2003 and went to his village after sanction of his leave but during that period his wife fell seriously ill and as such she was remain under treatment from 23.05.2003 to 18.09.2003 and thereafter he himself fell ill from paralysis in his right leg and remain under medical treatment and as such he could not be able to report for duty and accordingly he remained absent. The authorities have initiated domestic enquiry for such unauthorized absence and subjected him to participate in the enquiry wherein the petitioner has participated by giving his defence regarding two charges; first relates to unauthorized absence and second of not following the order passed by the competent authority. The Enquiry Officer has found the charge no.1 proved but the charge no.2 has partially been proved. The disciplinary authority while accepting the finding of the enquiry officer regarding the charge no.1 but differed with the finding related to charge no.2 by giving difference of reason, communicating it to the petitioner and on receipt of the reply, has inflicted punishment of dismissal from service vide order dated 22.04.2004. The petitioner has preferred an appeal as well as revision before the appellate authority as well as revisional authority but both of them have declined to interfere with the finding. The petitioner has assailed these three orders by way of this writ petition on the ground that cause of absence is shown by him is beyond his control and the punishment imposed is not commensurate with the offence committed. 3. The petitioner has assailed these three orders by way of this writ petition on the ground that cause of absence is shown by him is beyond his control and the punishment imposed is not commensurate with the offence committed. 3. The opposite parties have appeared and filed detail counter affidavit inter alia therein it has been stated that the petitioner has been appointed as a member of the discipline Force under the C.R.P.F. but he absented himself from duty and remain unauthorisedly absent for a period of 45 days and even on the direction by the higher authorities to report on duty, he has not reported to duty, as such treating the same a gross misconduct, domestic enquiry has been initiated by providing all adequate opportunity of being heard to him to defend himself which the petitioner has availed and thereafter the Enquiry Officer has found the charge no.1 proved, however charge no.2 has partially been proved but the same has been differed by the disciplinary authority by assigning the reasons of differences by communicating a copy of the difference of reason upon the petitioner asking him for response and on consideration of the reply, the disciplinary authority has inflicted punishment of dismissal from service in exercise of power conferred under the CRPF Act/Rules, considering the fact that the petitioner being a member of the discipline force who is accountable to maintain internal security of the country cannot be allowed to remain absent from duties unauthorisedly. He submits that even before the Enquiry officer, he has failed to produce the medical certificates in original rather he has produced only photocopies and when asked by the Enquiry officer, the original has never been provided, as such the said documents has been disbelieved by the Enquiry Officer, hence the plea taken by the petitioner that the reason shown for unauthorized absence is beyond his control, cannot be said to be beyond his control because he himself is responsible to cause suspicion in the mind of the enquiry officer or the disciplinary authority by not producing the original medical certificates/prescriptions, as such the petitioner deserves no sympathy by this Court. On the point of quantum, it has been submitted that the petitioner being a member of the discipline Force, is duty bound to perform duty and obey the direction of the higher authority and if any leniency will be shown to such member of the discipline Force, the entire Force for the purpose of which it has been constituted, will be frustrated. In view of such submission, it has been submitted that the petitioner does not deserve any relief in this writ petition. 4. Heard the learned counsel for the parties and on appreciation of the rival submission, it is evident that the petitioner has been appointed as Constable under the CRPF on 9.5.1994 and posted at 34 Battalion, CRPF, Koraput in the State of Odisha. The petitioner while performing his duty has taken leave for a period of one month from 28.04.2003 to 27.05.2003 and rushed to his native place after sanction of his leave. The petitioner after end of the leave has not reported to his duty even after specific direction issued by the higher authority to report on duty, he remained absence for a period of 145 days, as such the authorities have initiated a domestic enquiry by inflicting two charges; charge no.1 relates to negligence in his duty by remaining absent after completion of leave from 28.04.2003 to 19.10.2003 without obtaining prior permission of the competent authority. Charge no.2 relates to disobedience of the order and neglect in duties. The petitioner has tried to impress upon the Enquiry Officer by taking the plea of the ailment of his wife as well as himself and in order to substantiate his defence, he has produced photocopy of Medical Certificate. The Enquiry Officer in course of enquiry time and again has directed the petitioner to produce original of the Medical Certificate/prescription but in spite of ample opportunity given to him, he has not produced the same. Accordingly, the Enquiry Officer has found the charge no.1 proved while charge no.2 has partially been proved. The Enquiry Officer has referred the report before the disciplinary authority who in turn has accepted the finding of the enquiry officer related to charge no.1 while differed with the finding of the Enquiry Officer related to charge no.2, whereby and where under the said charge has partially been proved. The Enquiry Officer has referred the report before the disciplinary authority who in turn has accepted the finding of the enquiry officer related to charge no.1 while differed with the finding of the Enquiry Officer related to charge no.2, whereby and where under the said charge has partially been proved. It is evident from the record that the disciplinary authority has differed with the finding by assigning the reason and by providing opportunity to the petitioner to make representation with respect to the difference of reason, the petitioner has responded to it and thereafter the disciplinary authority has imposed punishment of dismissal from service. The order of the disciplinary authority has been affirmed by the appellate authority as well as revisional authority. These three orders are under challenge in this writ petition. 5. The petitioner has taken two grounds; first ground is related to the reason for unauthorized absence which according to him was beyond his control, so far as this ground is concerned, it is evident from the material available on record that initially the petitioner has been sanctioned leave for one month, he came to his native place, after end of the period of sanctioned leave he has not reported on duty. He has been asked to come on duty by the order passed by the competent authority in this regard and when he has reported he has subjected to domestic enquiry, he has given the reason of illness of his wife as well as himself. He has produced photocopy of the Medical Certificates in support of his defence. It is evident from the finding of the Enquiry Officer that the Enquiry Officer while disbelieving the photocopy of the Medical Certificates has asked the petitioner to produce original of the same in order to verify the genuineness of the certificates but in spite of ample opportunity given to him, he could not be able to produce the original Medical Certificate/prescription. 6. 6. Hence, the considered view of this Court in the light of this factual aspect is that the petitioner has been afforded with the adequate opportunity to defend, when there is specific charge of unauthorized absence, it was open to him to put his defence by producing original Medical Certificates/prescription but he has not produced the same and as such the finding of the Enquiry Officer cannot be said to be improper and illegal, it is because of the reason that if any plea is being taken by any of the delinquent employee it is upon him to satisfy the Enquiry Officer, if the Enquiry Officer is demanding any documents for his satisfaction it is incumbent upon such delinquent employee to produce the relevant documents before it. The petitioner has taken plea of his medical ailment as well as his wife and while he has produced the photocopy of the Medical Certificates/prescriptions, it is not understandable what prevented him to produce the original to show his bona fide but he has not produced it, hence the Enquiry Officer has found the charge proved, so far as the charge no.1 is concerned. So far as the charge no.2 is concerned, the same has partially been proved but the disciplinary authority while differing with the finding by assigning the reason had also provided opportunity to defend with respect to the finding of reason. According to the considered view of this Court, there is no infirmity in inflicting the punishment even on account of charge no.2 by the disciplinary authority since ample opportunity has been provided and the petitioner has disobeyed the order passed by the higher authorities. 7. In view thereof, the ground taken by the petitioner that the reason for unauthorized absence is beyond his control is also not acceptable to this Court, hence it cannot be said that the Enquiry Officer in reaching to such conclusion or the disciplinary authority while taking decision on the charges leveled against the petitioner has committed any error. 8. 7. In view thereof, the ground taken by the petitioner that the reason for unauthorized absence is beyond his control is also not acceptable to this Court, hence it cannot be said that the Enquiry Officer in reaching to such conclusion or the disciplinary authority while taking decision on the charges leveled against the petitioner has committed any error. 8. The second ground taken by the petitioner is that the punishment is not commensurate with the offence, as such the order of dismissal needs consideration by the authorities since according to the petitioner there are other punishment provided under the statute which is lesser in quantum but this Court while considering this submission and ground, is the of the view that the petitioner was a member of the discipline Force and he came to his native place only for a period of one month and thereafter he continued to remain absent from duty without any prior permission of the competent authority and without any extension of the said leave period and when he has been proceeded departmentally, he even has not produced the original Medical Certificates, the ground which he has taken in justifying his absence. 9. It is settled that so far as the question of quantum is concerned, the High Court sitting under Article 226 of the Constitution of India can exercise the power of judicial review but when it hits the conscience of the Court but in the facts and circumstances involved in this case as has been discussed hereinabove, it is not a case of like nature to exercise the power of judicial review by this Court sitting under Article 226 of the Constitution of India, as such this argument of the petitioner is also not worth to be considered, accordingly rejected. The petitioner has assailed the order of punishment before the appellate authority as well as revisional authority and both have concurred with the order passed by the disciplinary authority. This Court is conscious of the power to exercise by the High Court sitting under Article 226 of the Constitution of India in the matter of departmental proceeding and in this regard the judgment rendered by the Hon’ble Supreme Court may be made in the case of Union of India and Others Vrs. This Court is conscious of the power to exercise by the High Court sitting under Article 226 of the Constitution of India in the matter of departmental proceeding and in this regard the judgment rendered by the Hon’ble Supreme Court may be made in the case of Union of India and Others Vrs. P. Gunasekaran, AIR 2015 SC 545 , it has been pleased to laid down a guideline in order to make interference with the order of punishment which is being quoted herein below:- “13. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, re-appreciating even the evidence before the enquiry officer. The finding on Charge No.1 was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Art.226/227 of the Constitution of India, shall not venture into reappreciation of the evidence. The High Court can only see whether: a. The enquiry is held by a competent authority; b. The enquiry is held according to the procedure prescribed in that behalf; c. There is violation of the principles of natural justice in conducting the proceedings; d. The authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case; e. The authorities have allowed themselves to be influenced by irrelevant or extraneous considerations; f. The conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion; g. The disciplinary authority had erroneously failed to admit the admissible and material evidence; h. The disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding; i. The finding of fact is based on no evidence. Under Article 226 / 227 of the Constitution of India, the High Court shall not: (i) Re-appreciate the evidence; (ii) Interfere with the conclusions in the enquiry, in case the same has been conducted in a accordance with law; (iii) Go into the adequacy of the evidence; (iv) Go into the reliability of the evidence; (v) Interfere, if there be some legal evidence on which findings can be based. (vi) Correct the error of fact however grave it may appear to be; (vii) Go into the proportionality of punishment unless it shocks its conscience.” This Court has appreciated the factual aspect of this case and after going through the guideline formulated by the Hon’ble Supreme Court to interfere in exercise of power conferred under Article 226 of the Constitution of India and not to interfere, is of the considered view that this case is not in the nature where the power conferred to this Court under Article 226 of the Constitution of India can be exercised by way of exercising the power of judicial review, since the finding given by the Enquiry Officer and the punishment imposed by the disciplinary authority having been affirmed by the appellate as well as revisional authority are based upon the cogent evidence and as such it would not be proper for this Court to reverse the fact finding which is based upon the documents and the finding of the Enquiry Officer in which the petitioner has fully participated. 9. The finding of the disciplinary authority has been concurred with the appellate authority as well as revisional authority and as such there are three concurrent findings, hence should not be appropriate for this Court to exercise the power of extraordinary jurisdiction conferred under Article 226 of the Constitution of India to interfere with the punishment. In view thereof, the writ petition fails and is dismissed.