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2018 DIGILAW 205 (ORI)

Mantu Kumar Mahanta v. Director General, CRPF

2018-02-20

BISWANATH RATH

body2018
JUDGMENT : BISWANATH RATH, J. 1. This is a writ petition wherein the petitioner challenges the orders vide Annexure-1 involving a Memorandum of Charge, the Annexure-2, an order dismissing the petitioner from service by the Disciplinary Authority in disposal of a Departmental Enquiry and further seeking consequential directions contained therein. 2. Short background involved in this case is that the petitioner while serving as Constable in the border area, Manipur, availed leave for fifteen days on account of illness of his mother. Following the leave order the petitioner was to rejoin his duty on 30.08.1997. The petitioner states that unfortunately he suffered from Jaundice and viral fever, for which he was bedridden for a long period and it is only after his recovery from illness he reported back to opposite party no. 3 on 11.12.1997. It is on the premises of petitioner availing unauthorized leave thereby committing breach of service conditions, a Charge memorandum was served on the petitioner along with the communication of the imputation involving the petitioner vide Annexure-1. Consequent upon the dissatisfaction on the show-cause involving the petitioner, a Disciplinary Proceeding was initiated. It is contended in the Disciplinary Proceeding that in course of enquiry the petitioner filed medical certificates issued by the Government Hospital to show that he was suffering from jaundice and viral fever and was advised by the treating doctor to take bed rest for a particular period. Prosecution examined two witnesses to prove the charges. In spite of petitioner’s filing medical documents to satisfy the absence and evidence of PW-1 that during the entire service career petitioner was not only sincere but also had never overstayed and PW-2 stating that the petitioner was sincere in his duties, the Enquiry Officer being not satisfied with the case of the petitioner submitted report to the Disciplinary Authority suggesting that the petitioner remained absent from duty deliberately and without any authority. It is alleged, based on the submission of the Enquiry report the Disciplinary Authority mechanically accepted the report of the Enquiry Officer, holding that the charges levelled against the petitioner have been proved, imposed punishment of dismissal of the petitioner from service as appearing in Annexure-2. 3. It is alleged, based on the submission of the Enquiry report the Disciplinary Authority mechanically accepted the report of the Enquiry Officer, holding that the charges levelled against the petitioner have been proved, imposed punishment of dismissal of the petitioner from service as appearing in Annexure-2. 3. Assailing the impugned order, Miss Arundhoti Sahoo, learned counsel appearing for the petitioner submitted that finding of the Enquiry Officer and the Disciplinary Authority that the petitioner has managed to obtain medical certificates is contrary to the disclosers in the medical certificate and for the medical certificates being issued by the competent persons of a Hospital none else than the District Headquarters Hospital, there was no question of discarding such materials by the Enquiry Officer or the Disciplinary Authority. Further, on the allegation against the petitioner for violation of the Rules and procedures meant for an employee of such establishment, Miss Sahoo, learned counsel appearing for the petitioner submitted that the unauthorized absence of the petitioner being bona-fide and on account of serious illness of the petitioner and for his confining to bed for his suffering from “viral hepatitis” making the petitioner impossible to send any intimation to the Disciplinary Authority has not been properly visualized by the Disciplinary Authority. It is under the pretext that the petitioner has reported back to the Appointing Authority immediately after recovery from his illness, Miss Sahoo, learned counsel appearing for the petitioner claimed that the absence ought to have been treated as bona-fide and not intentional. Further, taking this Court to the quantum of punishment imposed involving the petitioner on the ground of unauthorized absence, Miss Sahoo, learned counsel for the petitioner contended that the punishment of dismissal imposed against the petitioner also remained disproportionate looking to the gravity of offence. It is under the circumstance, Miss Sahoo, learned counsel appearing for the petitioner requested this Court for interfering in the impugned order and setting aside the same and further passing appropriate direction in the matter of reinstatement of the petitioner. 4. In her opposition, Miss Vijay Laxmi Tripathy, learned counsel appearing for the CRPF establishment, the contesting opposite parties while admitting that the petitioner proceeded on fifteen days Casual Leave with effect from 08.08.1997 to 29.08.1997, contended that looking to the period of leave granted in favour of the petitioner the petitioner was supposed to join his duty on 30.08.1997. 4. In her opposition, Miss Vijay Laxmi Tripathy, learned counsel appearing for the CRPF establishment, the contesting opposite parties while admitting that the petitioner proceeded on fifteen days Casual Leave with effect from 08.08.1997 to 29.08.1997, contended that looking to the period of leave granted in favour of the petitioner the petitioner was supposed to join his duty on 30.08.1997. It is also alleged that in spite of communication of the Officer Commandant-B/26 BN CRPF on 12.09.1997 in the home address directing the petitioner to rejoin the duty forthwith to avoid a Disciplinary Proceeding, neither the petitioner sent any information nor the petitioner reported for duty. It is under the compelling situation, a complaint was lodged by the Officer commanding in the Court of the Chief Judicial Magistrate-cum-Commandant-26th BN CRPF, ultimately the petitioner reported at his place of posting on 11.12.1997. The Chief Judicial Magistrate released the petitioner on bail for the petitioner’s involving in unauthorized absence. The petitioner was dealt departmentally following the procedures involving the conditions of service. Departmental proceeding ended with a dissatisfactory note for the petitioner’s unable to satisfy his case and for the reasons borne therein, Miss Tripathy, learned counsel appearing for the contesting opposite parties submitted that there is no infirmity in the impugned order. Further, on the medical certificate produced by the petitioner, Miss Tripathy, learned counsel referring to the materials available on record, submitted that on examination of medical certificates, the Department found the medical certificates remained silent about the admission of the petitioner in the Hospital or the petitioner undertaking treatment as an OPD patient. Further, even though the petitioner claimed that he was suffering from jaundice (viral Hepatitis), but the medical certificate establishes that the petitioner was suffering from viral fever. Besides, there has been two medical certificates twice declaring the fitness of the petitioner to join his duty. Miss Tripathy, learned counsel, therefore, contended that though the petitioner became fit to resume duty on 29.10.1997 and for reasons best known, the petitioner arranged another medical certificate showing himself to be fit to join duty after 06.12.1997. It is under the above circumstance, Miss Tripathy, learned counsel appearing for the contesting opposite parties submitted that there is absolutely no infirmity either in the enquiry or in the Disciplinary proceeding requiring interference in the same by this Court. 5. It is under the above circumstance, Miss Tripathy, learned counsel appearing for the contesting opposite parties submitted that there is absolutely no infirmity either in the enquiry or in the Disciplinary proceeding requiring interference in the same by this Court. 5. Considering the rival contentions of the parties, this Court finds, admittedly, the petitioner was granted fifteen days C.L. with effect from 08.08.1997 on the ground of his mother’s illness. There is also no dispute that the petitioner had availed unauthorized absence and the petitioner to substantiate his case, filed two medical certificates attempting to establish his case that his absence is a bona-fide one. In the absence of any allegation of infirmity in the Disciplinary proceeding, this Court at this stage is required to only assess as to if the petitioner had a bona-fide reason for unauthorized absence and whether the imposition of penalty of dismissal from service is justified for the gravity of offence involved. Looking to the allegation of unauthorized absence involving the petitioner, the petitioner had faced the following charges:- “That No. 913141924 CT Montu Kumar Mahanta of B/26th BN CRPF while functioning as CT/GD has committed misconduct and disobedience of orders in his capacity as a member of the Force punishable under Section 11(1) of the CRPF Act, 1949 read with Rule 27 of the CRPF Rules, 1955 in that he was sanctioned 15 days Casual leave w.e.f. 8.8.97 to 29.8.97 with permission to avail prefix/suffix/interfix etc. He has due to report for duty on 30.8.97 (FN) but did not report on due date and also failed to send any communication seeking extension of leave. He remained OSL without any authority of sanction. He has also been directed by the officer Commanding 8/26th Bn CRPF to report for duty immediately vide Letter No. L.II-1/97-8/26 dated 12.9.97 but despite clear direction he neither reported for duty nor sent any communication for extension of leave. He reported at his own on 9.12.97 (FN) at T.C. Jammu after 101 days OSL which does not appear genuine and justified. He reported at his own on 9.12.97 (FN) at T.C. Jammu after 101 days OSL which does not appear genuine and justified. The act of individual is prejudicial to good order of the force.” Attending the charges framed against the petitioner, it appears, the petitioner produced two medical certificates in his support establishing a case that for his suffering from jaundice and viral fever in the first spell from 20.08.1997 to 20.10.1997 and in the second spell from 30.10.1997 to 06.12.1997 being granted by the District Medical Hospital, Baripada. Finding that there is no communication by the petitioner to the employer regarding his illness this Court now proceed to decide whether the medical certificates produced by the petitioner comes to the rescue of the petitioner? 6. Perusal of one of the medical certificates filed as Annexure-4, this Court reading of the same finds, the medical certificate was issued by a person none else than a doctor in the General Medicine stream of the District Headquarters Hospital, Baripada giving a fitness certificate in favour of the petitioner on 29.10.1997 certifying that petitioner-Sri Montu Kumar Mahanta, Constable CRPF was suffering from “viral hepatitis” and was under his treatment with advice of complete rest from 20.08.1997 till 28.10.1997. Looking to the competency of the Officer granting a fitness certificate and from the nature of suffering of the petitioner indicated therein, this Court finds, there was no doubt in believing any such medical certificate. If the Department was of any other view then the Department should have brought material to prove the contrary. For the issuance of a fitness certificate by a doctor of a Government Hospital and for the suffering of the petitioner from “viral hepatitis” this Court finds, the second spell of illness of the petitioner could be a possibility. Here also, this Court finds from the discussion in the impugned order at Annexure-2 as well as in the counter affidavit, there is no denial that the subsequent certificate was also issued by a doctor of the Government hospital. This Court, therefore, observes, once the petitioner had filed the medical certificate obtained from a Government Hospital, for the position of the doctor the disease involved therein and the Government Hospital involved therein, it becomes necessary for the Department to establish this case by proving material to establish the contrary. This Court, therefore, observes, once the petitioner had filed the medical certificate obtained from a Government Hospital, for the position of the doctor the disease involved therein and the Government Hospital involved therein, it becomes necessary for the Department to establish this case by proving material to establish the contrary. For there being no material to establish the contrary, this Court finds, there is no reason in disbelieving the medical certificate and thus answer the Issue No. (ii) framed herein in favour of the petitioner and hold that the petitioner had sufficient materials to establish that he had a reason for unauthorized absence as the absence was bona-fide and under compelling reason. 7. Now, coming to decide on the other issue indicated herein, this Court finds, as an employee in a discipline service, it was incumbent on the part of the petitioner to at least have a communication to the establishment for his absence. Admittedly, there is no communication from the side of the petitioner on his illness to his employer till he reported back before the employer on 11.12.1997. Be that as it may and taking into account that there is admitted unauthorized absence by the petitioner, but taking into account the reason of unauthorized absence being a medical ground and considering that the petitioner was suffering from “viral hepatitis” being not a simple disease, there is every possibility that a person was not in a position to move such a distance to join his duty before getting completely cured. Further, from the medical certificates, this Court also finds, the petitioner on both the occasions has been directed to take bed rest. Considering from the humanitarian point of view and as this Court finds, the petitioner did not involve in any offence involving moral turpitude or a serious offence for merely committing an offence of unauthorized absence, this Court finds, the punishment of dismissal awarded involving the petitioner becomes disproportionate to the gravity of offence involved herein. 8. Considering from the humanitarian point of view and as this Court finds, the petitioner did not involve in any offence involving moral turpitude or a serious offence for merely committing an offence of unauthorized absence, this Court finds, the punishment of dismissal awarded involving the petitioner becomes disproportionate to the gravity of offence involved herein. 8. In the case of Regional Manager & Disciplinary Authority, State Bank of India, Hyderabad and Another vs. S. Mohammed Gaffar, (2002) 7 SCC 168 , their Lordships of Hon’ble Apex Court mandated that the only scope for interfering in the punishment arises only when the penalty is either impermissible or shocking to the conscience of the High Court, in such event also the High Court has to direct the disciplinary authority to impose punishment of its choice instead of itself imposing or substituting the punishment. Similarly, in the case of State Bank of India and Others vs. Samarendra Kishore Endow and Another, 1994 (2) SCC 537 , their Lordships of the Hon’ble Apex Court held that in the circumstances wherein the punishment of removal imposed upon the delinquent employee is harsh but it is then for the consideration of the disciplinary authority and not by the High Court or the Tribunals. In another case, in the case of State of U.P. and Others vs. Ashok Kumar Singh and Another, 1996 AIR 736 involving removal of a police constable after entering into a disciplinary proceeding, the Hon’ble Apex Court also interfered in the impugned order of punishment disproportionate with the quantum of offence. In the case of Union of India and Others vs. Ghulam Mohd. Bhat, (2005) 13 SCC 228 , the Hon’ble Apex Court held the order of removal from service passed against the respondent, who was a constable in CRPF on ground that he had overstayed his leave by 315 days was confirmed, but then the Hon’ble Supreme Court held that the misconduct alleged called for a minor punishment and not a punishment of removal from service. 9. 9. Now considering the case at hand, the only charge against the petitioner involved herein is long absence from service after the expiry of leave period, further not involving any charge of misconduct of grave nature inviting extreme penalty of dismissal, this Court observes the punishment imposed herein is shockingly disproportionate to the gravity of offence involved herein and does not commensurate with the gravity of charge, further taking into consideration that the petitioner has taken the plea of illness and for filing of medical certificates to support such claim, the writ petition deserves to succeed on this point. But, for this Court having no power to convert or modify the order of punishment while setting aside the impugned order at Annexure-2 so far it relates to imposition of punishment, directs the disciplinary authority to impose any minor punishment against the petitioner. Back wages involving the petitioner shall remain dependent on the imposition of lesser punishment by the disciplinary authority. 10. The writ petition succeeds to the extent indicated hereinabove. No cost.