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2017 DIGILAW 624 (RAJ)

KAJOD MAL v. UNION OF INDIA

2017-02-23

SANJEEV PRAKASH SHARMA

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JUDGMENT : SANJEEV PRAKASH SHARMA, J. 1. The petitioner had been appointed as a Constable/GD on 12.4.1998 and was posted in 97 Battalion CRPF. He was served with a charge sheet on 25th January, 1999, wherein an enquiry under Rule 27 of the CRPF Rules, 1955, was to be conducted against him with regard to two charges; first charge was with regard to remaining absent from sanctioned leave w.e.f 10.11.1998 to 17.12.1998, total 38 days, without proper permission from the competent authority and having reported at his own on 18.12.1998; and the second charge was with regard to disobedience of legitimate order of the competent authority directing him to re-join and instead having remained by overstaying of leave from 10.11.1998 to 17.12.1998. In this matter, he had committed misconduct under Section 11(1) of the Act of 1949 and Rule 27 of CRPF Rules of 1955. 2. On the receipt of the aforesaid statement of allegations, the petitioner submitted his reply and pointed out that his wife was seriously unwell and for the said reason he had applied for leave on 14th September 1998. However, he was sanctioned leave vide order dated 12.10.1998 w.e.f 20.10.1998 to 09.11.1998. It was further stated that on 3rd November, 1998, his elder uncle (brother of his father) had expired and after conducting the last funeral of his uncle, when the petitioner returned back to his home on 15th November, 1998, he came to know that his niece, who was of very young age about nine years, had also expired. 3. Learned counsel for the petitioner submitted that on account of two deaths within a short spell, he lost his mental balance and after realization, he proceeded for his duty on 13.12.1998 and reported on 18.12.1998. The period between 13.12.1998 to 18.12.1998 spent on journey. It was, therefore, prayed by the petitioner that his overstaying of leave may be extended. However, the respondent conducted the enquiry and the enquiry officer submitted his report accepting the aforesaid application as acceptance of guilt. 4. It was stated by the enquiry officer that the petitioner has not raised any objection relating to the enquiry and asking the delinquent that the contents of charges were understood by him. No opportunity to engage any defence assistant was availed by the petitioner and had pleaded guilty. 4. It was stated by the enquiry officer that the petitioner has not raised any objection relating to the enquiry and asking the delinquent that the contents of charges were understood by him. No opportunity to engage any defence assistant was availed by the petitioner and had pleaded guilty. With regard to the subsequent incident, the enquiry officer has noted that the petitioner had reported back for duty on 18.12.1998 and informed the authorities that his grandfather had expired and within 13 days thereafter, his brother's daughter had also expired. The death certificate was also submitted and the enquiry officer has held the certificates to be doubtful as they are not signed by the authorized competent authority. The petitioner had also deposed before the enquiry officer that he had informed about his proof of overstaying of leave to the Headquarters of 97 Battalion CRPF, and as he could not submit any proof relating to such information, the statement was not accepted by the enquiry officer. It was further stated by the enquiry officer that the petitioner was a habitual latecomer and opined that the overstaying of leave of 38 days was not prejudicial to good order and discipline of the force and suggested punishment under Section 11(1) of CRPF Act 1949. The charges were held to be proved beyond any doubt on the basis of the said conclusions of the enquiry officer which is said to have been made available to the petitioner. The respondents stated that the order does not warrant interference by this Court. 5. A look at the letter dated 6th February, 1999, sent to the petitioner-constable goes to show that a letter was addressed to the constable through Commandant Officer of 97 Battalion CRPF. However while the letter mentions about the commanding officer having received the copy of the enquiry report, there is no noting that enquiry report was made available to the petitioner by the officer commanding. In the circumstances, it cannot be held that the petitioner has been served with copy of the enquiry report. 6. A look at the enquiry report also shows that while death certificate were submitted by the petitioner and a genuine reason for overstaying of leave was put by him, the death certificate itself was treated as doubtful. Thus, this Court finds the finding of the enquiry officer as perverse. 6. A look at the enquiry report also shows that while death certificate were submitted by the petitioner and a genuine reason for overstaying of leave was put by him, the death certificate itself was treated as doubtful. Thus, this Court finds the finding of the enquiry officer as perverse. A look at the impugned order dated 23rd February, 1999 also shows that while 38 days period has been treated as dies on, it has been noted that there was no justifiable reason for the petitioner for overstaying of leave and the petitioner has managed to obtain forged death certificate of his relatives simply to justify his overstaying of leave period. The order does not show as to how the disciplinary authority has reached to the conclusion that the death certificate was forged as there was no such reasoning by the enquiry officer. The punishment of removal from service has been imposed on the petitioner. 7. With regard to the gravity of charge and the delinquency committed by the petitioner, no reasons have been assigned in the punishment order as to why the penalty of removal from service has been imposed. 8. The theory of proportionality with regard to punishment to be imposed after an individual is found guilty of delinquency was the subject matter of discussion by the Apex Court time and again. 9. In the case of "Apparel Export Promotion Council v. A.K. Chopra" 1999(1) SCC 759 , the Supreme Court has held that the gravity pointed out should commensurate with the charges proved. However, it has opined that the High Court should not have substituted its own discretion with that of the authority. 10. In the case of Chairman-cum-Managing Director, Coal India Ltd. v. Mukul Kumar Choudhari - (2009) 15 SCC 620 , it was held that where a person had admitted his guilt and explaining the circumstances for his absence and it could be from the facts that there would be no commanding to disobey or abundant the job, no reasonable employer would have imposed such penalty of removal when explanation for absence has been furnished by the delinquent, taking into consideration measure, magnitude and decree of misconduct and also other relevant circumstances and exclude irrelevant matters before imposing punishment. 11. In the present case, enquiry officer has on his own whims and fancies proceeded to doubt the death certificate. 11. In the present case, enquiry officer has on his own whims and fancies proceeded to doubt the death certificate. It is not known as to which competent authority was he looking for assigning the death certificate. The disciplinary authority has proceeded further to hold that the death certificates were forged without there being any such case made out by the prosecution. Thus it can be safely said that both the enquiry officer as well as the disciplinary authority have acted on their own whims and caprices and the conclusions arrived at by them cannot be sustained. 12. While it is true that the petitioner was serving with the CRPF which is a disciplined force and in certain circumstances even an absence of two days or more may be fatal while on active duty or work but coming to above, the circumstances have to be examined. It cannot be just out of the blue that a person can be punished for overstaying of leave which may be on account of genuine reasons. The absence cannot be held to be willful. 13. Taking into consideration the circumstances which the petitioner had put forward along with documentary proof relating to death of his two near relatives in the intervening period due to which he remained for overstaying of leave of 38 days, punishment awarded is shockingly disproportionate. It is not only unduly harsh but grossly in excess of the allegations levelled against him. 14. My view is fortified by the judgment passed by Hon'ble the Supreme Court in the cases cited above as well as the recent view taken by this court in the case of Ramesh Chandra Soni v. State of Rajasthan & Ors.: 2015(1) WLC 522 , Inder Singh v. UOI & Ors.: 2016(1) SLR 33 (Raj.). It is not a case where the petitioner can be said to be willing to perform his duties. Another judgment passed by this court in case of Siya Ram Sharma v. Union of India & Ors.: 2011 (3) WLC 214 also lays down a similar view taken by the Hon'ble Supreme Court in case of Coal India Ltd. & Anr. v. Mukul Kumar Choudhari & Ors.: 2009 (15) SCC 620 . 15. Another judgment passed by this court in case of Siya Ram Sharma v. Union of India & Ors.: 2011 (3) WLC 214 also lays down a similar view taken by the Hon'ble Supreme Court in case of Coal India Ltd. & Anr. v. Mukul Kumar Choudhari & Ors.: 2009 (15) SCC 620 . 15. Thus, in view of the above principles laid down by Apex Court as well as this High Court, this Court is of the opinion that the proceedings conducted against the petitioner were wholly vitiated as well as the penalty of removal on the basis of said delinquency was also unduly harsh. 16. Accordingly this writ petition is allowed. The order dated 23.02.1999 of punishment of removal from service as well as the appellate order dated 13.05.1999 are quashed and set aside. 17. It is now directed that the respondents shall revisit departmental proceedings as well as punishment order. The petitioner is directed to be reinstated with liberty to the respondents to pass any other order of penalty other than dismissal, removal or compulsory retirement. The petitioner shall also be entitled to be paid subsistence allowance for the intervening period from the date of passing of the order of removal @ 75% of his salary till today. 18. A compliance of this order shall be made within a period of three months from today from the date of production of the copy of this order.