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2018 DIGILAW 740 (ORI)

Chittaranjan Pradhan v. Union of India

2018-08-16

SUJIT NARAYAN PRASAD

body2018
JUDGMENT S.N. PRASAD, J. - This writ petition is under Article 226 of the Constitution of India wherein the order dtd. 13.5.2018 as contained under Annexure-6 has been assailed, whereby and where under the petitioner has been removed from service and the period with effect from 29.5.2007 to 12.1.2008 has been directed to be treated as dies-non for all purpose. 2. The brief facts of the case of the petitioner, as per the pleading made in the writ petition is that he was appointed as a constable under Central Reserve Police Force in the year 2004, gone on leave from 30.3.2007 to 28.05.2007. During the leave period, he fell ill, hence could not be able to report to his duty after expiry of the leave period. In consequence thereof he has been proceeded by initiating departmental proceeding and after submission of repot by the duly constituted Enquiry Officer, in which the charge of unauthorized absence related to declaring him as deserter has been proved, accepting the aforesaid enquiry report, the disciplinary authority has passed an order of removal from service, against which an appeal has been preferred before the Deputy Inspector General of police, CRPF which has also been dismissed vide order dtd. 4.9.2008 affirming the order of removal. The writ petition has been filed inter alia on the grounds that marshaling office has not been appointed, the enquiry officer has acted as a prosecutor and the principle of natural justice has not been followed. 3. The opposite parties have appeared and filed counter affidavit, inter alia therein it has been stated that the petitioner after being appointed, has proceeded on 60 days sanctioned earned leave with effect from 30th March 2007 to 28.5.2007 but did not report back in spite of letters issued repeatedly to report for duties but a telegram received on 27.06.2007 stating therein that the petitioner is under treatment at MKCG Medical College due to mental depression. The opposite party thereafter has again directed him to report on duty with all medical documents vide letter dtd. 05.07.2007, instead of sending medical documents, an application, duly signed by the petitioner, was received on 9.7.2007 with a request to extend his leave for further 30 days as he is suffering from mental depression since 29.7.2007 and is under treatment under Cuttack Medical College in the department of psychiatric. He was again directed vide letter dtd. 05.07.2007, instead of sending medical documents, an application, duly signed by the petitioner, was received on 9.7.2007 with a request to extend his leave for further 30 days as he is suffering from mental depression since 29.7.2007 and is under treatment under Cuttack Medical College in the department of psychiatric. He was again directed vide letter dtd. 1.8.2007 directing him to forward full medical documents within 10 days or report on duties along with full medical documents but he did not turn up for duties nor any reply received, accordingly warrant of arrest was issued to the Superintendent of Police, Phulbani vide the letter dtd. 25.8.2007 to apprehend him but he was neither apprehended nor reported back for duties, accordingly declared as deserter vide office order dtd. 9.11.2007 and charge was framed vide office order dtd. 18.12.2007 to conduct departmental enquiry. The petitioner has been given ample opportunity to defend himself, in his defence, he has submitted medical certificate issued by one Dr. A.K. Mohanty, MBBS MD (Medicine) Medicine Specialist, District Headquarters Hospital, Phulbani in which it was certified that the petitioner was suffering from Malaria, Typhoid, anemia and advised rest from 25.05.2007 to 20.08.2007 and again from 22.8.2007 to 28.11.2007 which is contradictory to the earlier contention of the petitioner. He has also not produced any valid document during course of the departmental enquiry in support of his medical treatment. Thus the full opportunity was given before the enquiry officer. The enquiry officer, thereafter, has submitted report of proving the charge which, having been accepted by the disciplinary authority, decision was taken to remove the petitioner from service and accordingly he was removed from service vide order dt. 13.05.2008 against which an appeal has been preferred before the Deputy Inspector General of Police, CRPF but the same has also been rejected vide order dtd. 4.9.2008. In these facts and circumstances it has been submitted that the petitioner has been provided with all opportunity to defend himself before the enquiry officer and all procedures have been taken before inflicting the punishment of removal of service. It has been submitted that the petitioner has failed to make out a case of medical ailment since the enquiry officer has found that his report of illness is contradictory and even though the doctor has given certificate of fitness, he has not chosen to report on duty. It has been submitted that the petitioner has failed to make out a case of medical ailment since the enquiry officer has found that his report of illness is contradictory and even though the doctor has given certificate of fitness, he has not chosen to report on duty. A telegram has been received from his brother stating therein that he is suffering from mental depression but he has produced the certificate of typhoid, malaria and anemia, etc. which is absolutely contradictory and by taking into consideration the contradicted stand of the petitioner, the enquiry officer has found the charge proved, hence it is not a case of not following the principle of natural justice, in view thereof the order of punishment, passed against the petitioner, needs no interference by this Court. It has been submitted by refuting the contention of learned counsel for the petitioner that the plea of medical depression has not been taken by him rather his plea for absence all along was that he was suffering from malaria, typhoid, etc. and to that effect he has produced medical certificate but that has not been taken into consideration, but learned counsel for the opposite party submits that the medical certificate has been taken into consideration by the enquiry officer and when the same has been found to be contradictory, thereafter the charge has been found to be proved and in view thereof the petitioner has been removed from service. 4. Heard the learned counsel for the parties and after appreciation of their rival submission, going through the stand taken by the petitioner in the writ petition as also in the counter affidavit by the opposite parties, it is evident that the petitioner has been appointed as a Constable under CRPF and has gone on earned leave for a period of 60 days from 30.03.2007 to 28.5.2007 but did not report to the duty. The authorities have issued repeated letters for reporting him on duty but he has failed to do so. The authorities have issued repeated letters for reporting him on duty but he has failed to do so. Even the warrant of arrest has been issued for securing his presence by requesting to Superintendent of Police, Phulbani to execute the aforesaid warrant but neither he has been apprehended nor reported on duty, therefore a departmental proceeding has been initiated by appointing an enquiry officer, the enquiry officer has also issued communications to him for his appearance, in view thereof he has appeared before the enquiry officer, questioned by him. The petitioner has also cross-examined the witnesses. The enquiry officer, on the basis of the factual aspect produced before him, has found that the petitioner was on earned leave from 30.3.2007 to 28.05.2007 but could not report on duty on 28.5.2007, however, one telegram has been received with respect to suffering of petitioner from mental depressing with a request to extend the leave from 29.5.2007 to 28.07.2007 but the leave of the petitioner was already expired on 28.05.2007, hence he remained unauthorized absent from duty. The enquiry officer has further found that the petitioner has submitted medical certificate showing therein that he has suffering from Malaria, Typhoid and Anemia from 25.5.2007 to 20.08.2007 thereafter he has been issued fitness certificate on 22.08.2007 but even then he has not reported on duty. Again second medical certificate has been produced by him showing that he was suffering from malaria, fever and jaundice from 22.08.2007 to 28.11.2007, however he has again been shown to be medically fit from 2.12.2007 but even then he has not reported on duty. It has further been found by the enquiry officer that in both the certificates no reference of suffering from mental depression has been made, therefore, the enquiry officer has taken the plea of the petitioner as contradictory and only in order to make a case the certificates have been procured from the concerned doctor. Accordingly the charge has been found to be proved by him with respect to unauthorized absence. It is evident from the counter affidavit that for securing appearance of the petitioner, warrant of arrest has also been issued in the address of Superintendent of Police, Phulbani, but he could not be apprehended and thereafter declared as deserter, in consequence thereof departmental proceeding has been initiated in which the charge has been found to be proved by the enquiry officer. The enquiry officer has forwarded the aforesaid enquiry report before the disciplinary authority, who, after following due procedure of law and after issuing second show cause notice and on its consideration, has passed the order of removal from service which has also been confirmed by the Deputy Inspector General of Police, CRPF. The petitioner has assailed the order passed by the disciplinary authority although he has not challenged the order passed by the appellate authority, i.e. DIGP, CRPF dtd. 4.9.2008 which ought to have been challenged by the petitioner due to the simple reason that when any statutory appeal has been availed and if any order has been passed, the order passed by the original authority will merge with the order of the appellate authority, as such along with the order passed by the original authority the subsequent order passed by the appellate authority was required to be challenged. The petitioner has taken the ground that Marshaling Officer has not been appointed and the enquiry officer has acted as Marshaling Officer, hence the departmental proceeding is vitiated in the eye of law, but according to my considered view even if the Marshaling Officer has not been appointed, the entire departmental proceeding cannot be vitiated in the eye of law which is for the reason that the duty of the Marshaling Officer is only to place the case of the disciplinary authority and if Marshaling Officer is not being appointed, no prejudice is being caused to the delinquent employee. The contention raised by the petitioner that the enquiry officer himself has put questions to the petitioner and thereby acted as Marshaling Officer which caused prejudice to the petitioner but according to my considered view, putting question by enquiry officer cannot be said to be acting as Marshaling Officer and if question is being put by the enquiry officer, that does not mean that the enquiry officer is acting as prosecutor. Moreover, the petitioner has not ever raised such objection before the enquiry officer. Further the petitioner has also not raised objection even before the disciplinary authority that how he has been prejudiced due to non-appointment of Marshaling Officer, as such merely putting question by the enquiry officer cannot be said that any prejudice has been caused. 5. Moreover, the petitioner has not ever raised such objection before the enquiry officer. Further the petitioner has also not raised objection even before the disciplinary authority that how he has been prejudiced due to non-appointment of Marshaling Officer, as such merely putting question by the enquiry officer cannot be said that any prejudice has been caused. 5. Here it is relevant to refer the judgment, as has been relied by the learned counsel for the petitioner in the case of State of Uttaranchal and Others Vrs. Kharak Singh reported in (2008) 8 SCC 236 . By putting reliance upon the said judgment, learned counsel for the petitioner submits that in exactly similar nature of case the Hon’ble Apex Court has deprecated the action of the enquiry officer who has involved himself in the investigation of a case by going to the spot and thereafter putting question to the delinquent employee, but it is settled position of law that each and every judgment is to be looked into on the basis of the factual aspect involved in each and every case. Here in the instant case the enquiry officer has not conducted any spot visit, rather he on the basis of the documents produced before him by the delinquent employee, i.e. the petitioner, has put questions and by doing that he has not exceeded his jurisdiction and thereby the judgment relied upon by the petitioner delivered in the case of State of Uttaranchal Vrs. Kharak Singh (supra) is not relevant in the facts and circumstances involved in the instant case. 6. Further ground has been taken by the petitioner that he has not been provided with adequate opportunity of hearing to defend himself as such the entire proceeding is vitiated in the eye of law, but from the materials available on record it is evident that the petitioner has appeared before the enquiry officer, defended himself by replying to the questions put by him and also cross-examined the witnesses, as such it cannot be said that there is violation of principle of natural justice, rather even before passing the order impugned, the petitioner has been issued with second show cause notice by supplying copy of the enquiry report, hence the process as stipulated under Discipline and Appeal Rule, applicable to the petitioner, has been followed. 7. 7. The third ground has been taken by the petitioner that the medical certificate has not properly been appreciated by the enquiry officer and the petitioner has never taken the plea of illness from mental depression but after going across the enquiry report, it is evident that the brother of the petitioner has responded by way of telegram showing that the petitioner was suffering from mental depression. It is also evident that the petitioner subsequently has been shown to be suffering from Malaria, Typhoid and Jaundice. The contention raised by the petitioner that merely on account of the fact that the brother has telegrammed regarding his suffering from mental disorder, cannot be said to be acceptable unless and until it will be submitted by the petitioner but the fact herein is that the telegram has been given by his brother in response to the letter issued by the disciplinary authority for reporting the petitioner on duty where reason of absence was shown to be suffering from mental depression with a request to extend the leave, that telegram has been received by making request to extend the leave from 29.06.2007 to 02.08.2007 while the petitioner ought to have reported on duty immediately after 28.05.2007, i.e. on 29.5.2007 but there is no explanation as to why the petitioner has remained unauthorized absence from 29.05.2007 to 29.06.2007. Furthermore, the petitioner thereafter has produced medical certificate of his suffering from malaria, typhoid and anemia from 25.05.2007 to 20.08.2007 as also a medical certificate showing him medically fit to resume his duty w.e.f. 22.08.2007 but not reported on duty and thereafter again medically unfit from 22.8.2007 to 20.11.2007 however he has been shown medically fit w.e.f. 02.12.2007 but not reported on duty. Thus conduct of the petitioner shows that he was intentionally has avoided to remain absent from duty and therefore the authority ;have issued non-bailable warrant of arrest for apprehending him, however he could not be able to be apprehended by the Superintendent of Police, Phulbani thereafter he has been declared to be deserter. ‘Deserter’, under the discipline force is a major misconduct and if any member of the force is absenting himself intentionally and if the same will be allowed to be done, it will affect the entire discipline force. ‘Deserter’, under the discipline force is a major misconduct and if any member of the force is absenting himself intentionally and if the same will be allowed to be done, it will affect the entire discipline force. There might be situation of medical illness but the same should be proved from the relevant documents but as per the finding recorded by the enquiry officer, according to my considered view the conduct of the petitioner is not good showing the reason of unauthorized absence, as such it cannot be said that the disciplinary, acting upon the aforesaid enquiry report, be removing him from service is illegal and improper. The said order has also been affirmed by the appellate authority thus there is concurrent finding of the authorities and it is settled position of law that in the departmental proceeding the scope of High Court sitting under Article 226 of the Constitution of India is very limited and that ha elaborately been discussed in catena of decisions rendered by Hon’ble Apex Court, the recent is the judgment rendered in the case of State Bank of Bikaner and Jaipur v. Nemi Chand Nalwaiya, (2011) 4 SCC 584 , wherein in paragraph 7 it has been held as follows:- “7. It is now well settled that the Courts will not act as an appellate Court and reassess the evidence led in the domestic inquiry, nor interfere on the ground that another view is possible on the material on record. If the inquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be grounds for interfering with the findings in departmental enquiries. Therefore, Courts will not interfere with the findings in departmental enquiries. Therefore, Courts will not interfere with findings of fact recorded in departmental enquiries, except where such findings are based on no evidence or where they are clearly perverse. The test to find out perversity is to see whether a tribunal acting reasonably could have arrived at such conclusion or finding, on the material on record. Therefore, Courts will not interfere with findings of fact recorded in departmental enquiries, except where such findings are based on no evidence or where they are clearly perverse. The test to find out perversity is to see whether a tribunal acting reasonably could have arrived at such conclusion or finding, on the material on record. The Courts will however interfere with the findings in disciplinary matter, if principles of natural justice or statutory regulations have been violated or if the order is found to be arbitrary,10 Page 11 Capricious Marshaling, mala fide or based on extraneous considerations.” In the judgment reported in Union of India and others v. P. Gunasekaran, (2015) 2 SCC 610 , the Hon’ble Apex Court in paragraph 12 has held as follows: “12. 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 inquiry officer. The finding on charge I 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 power under Articles 226/227 of the Constitution of India, shall not venture into re-appreciation of the evidence. The High Court can only see whether. (a) the inquiry is held by a competent authority; (b) the inquiry 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; 13. (i) the finding of fact is based on no evidence. 13. (i) the finding of fact is based on no evidence. 13. Under Articles 226/227 of the Constitution of India, the High Court shall not: (i) re-appreciate the evidence; (ii) interfere with the conclusions in the inquiry, in case the same has been conducted in 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) to into the proportionality of punishment unless it shocks its conscience.” Recently, in the judgment rendered in the case of Central Industrial Security Force and others v. Abrar Ali, AIR 2017 SC 200 , the Hon’ble Apex Court in paragraph 12 held as follows: “12. Though we are of the view that the High Court ought not to have interfered with the order passed by the Disciplinary Authority, the penalty of dismissal from service is not commensurate with delinquency. The Respondent was found guilty of desertion of the Force for a period of five days and not improving his conduct in spite of imposition of penalties on three occasions earlier. For the above delinquencies, the penalty of dismissal from service is excessive and harsh. In our view, the penalty of compulsory retirement would meet the ends of justice. We are informed by the counsel for the Appellants that the Respondent is entitled for pension as he has completed 10 years of service. In order to avoid any controversy, we direct that the Respondent shall be entitled for notional continuity of service till the date of completion of minimum service required to make him eligible for pension. He will not be entitled for payment of salary and allowance for that period.” The Court after going across the aforesaid paragraphs as quoted above, has found that it is not such a case wherein interference can be shown by this Court by exercising the power conferred under Article 226 of the Constitution of India in a case of concurrent finding by two authorities. In view thereof this Court is not inclined to interfere with the order of removal, accordingly the writ petition fails and it is dismissed. Petition dismissed.