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2020 DIGILAW 928 (MAD)

K. Saravanan v. Commandant, Imphal

2020-06-17

V.BHAVANI SUBBAROYAN

body2020
JUDGMENT (Prayer: Writ Petition is filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus, to call for the records relating to the order passed by the 5th respondent dated 16.09.2013 and communicated on 03.12.2013 in his Order No.R.XIII-4/2013-DA (Estt-II) and quash the same and to direct the respondents to take the petitioner in to the strength of CRPF as Constable with all monetary benefits.) 1. This Writ Petition has been filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus, call for the records relating to the order passed by the 5th respondent dated 16.09.2013 and communicated on 03.12.2013 in his Order No.R.XIII-4/2013-DA (Estt-II) and quash the same and to direct the respondents to take the petitioner in to the strength of CRPF as Constable with all monetary benefits. 2. The petitioner was joined in the Central Reserve Police Force on 24.08.1994 as constable. The third respondent has appointed the petitioner as Constable. He took training at Avadi, Chennai and thereafter at Bangalore and then finally at Coimbatore under the third respondent and then he was posted at Delhi. He was sanctioned Earned leave for 60 days with effect from 05.02.1999 to 05.04.1999. During the leave period i.e., from 01.04.1999 to 10.08.1999 he was suffering from Jaundice and was advised bed rest by the Civil Assistant Surveon Dr.P.Chinapethu. Therefore, he was not able to report for duty after the completion of the earned leave period. In the meantime, the first respondent has ordered departmental enquiry and the charge memo dated 08.11.1990 has been issued for the following articles of charge. “That No.941164435 Constable K.Saravanan of D/12 Bn CRPF while functioning as a member of the Force committed a offence of misconduct/disobedience in his capacity as a member of the force under sec 11(1) of CRPS Act 1949 in that he is overstaying leave w.e.f.06.04-1999 FN without sufficient cause/permission from the competent authority.' 3. Thereafter, an enquiry was ordered and the enquiry officer has submitted an ex-parte enquiry report to the first respondent. Based on the enquiry report, the first respondent has passed the final order awarding the punishment of removal from service w.e.f. 04.03.2000. The petitioner was not able to submit the appeal within the stipulated time under Rule 28(e) of the CRPF rules within 30 days. Based on the enquiry report, the first respondent has passed the final order awarding the punishment of removal from service w.e.f. 04.03.2000. The petitioner was not able to submit the appeal within the stipulated time under Rule 28(e) of the CRPF rules within 30 days. The delay in filing the appeal is due to the problem in the family and due to his illness. In the order, the first respondent has stated that a letter has been received on 18.01.2000. In the letter dated 18.01.2000 the medical certificates and prescriptions have been sent to the first respondent. Therefore, the first respondent should have waited till his ailment is completely cured. But without waiting for that, the enquiry proceedings have been completed and Rule 31 procedure has also been completed, thereby declaring him as deserted. The first respondent has passed the order on 04.03.2000 awarding the punishment of removal from service. Therefore, the petitioner has sent a detailed appeal to the second respondent on 30.11.2002 without considering the ground urged in the appeal properly. 4. He further submitted that the petitioner has filed a writ petition in W.P.No.33461 of 2004 before this Court and this Court by order dated 12.11.2009 dismissed the writ petition. Challenging the order of dismissal, the petitioner has filed an appeal and the writ appeal was also dismissed by this Court. Thereafter, the petitioner has sent an application under the Right to Information Act to the second respondent to provide certain documents in connection with Medical checkup. But the second respondent has rejected the request on 16.10.2011. When the petitioner was severely under attack of the mental disorder, I was not able to send the message into the Inspector General of Police and Deputy Inspector General of Police. Thereafter, on 03.05.2012 the petitioner has filed an appeal to the fifth respondent enclosing the order of the District and Sessions Court, Ramanathapuram, VAO Certificate and the certificate issued by Erwadi Mental Disorder Rehabilitation Centre. But, the fifth respondent on 16.09.2013 has rejected the appeal. Aggrieved by the order of the fifth respondent, the petitioner has filed the present writ petition. 5. The learned counsel appearing for the petitioner would submit that the medical certificates produced by the petitioner along with the representation to the enquiry officer's report was not considered by the original authority before passing the punishment of removal from service. Aggrieved by the order of the fifth respondent, the petitioner has filed the present writ petition. 5. The learned counsel appearing for the petitioner would submit that the medical certificates produced by the petitioner along with the representation to the enquiry officer's report was not considered by the original authority before passing the punishment of removal from service. The absence was due to the petitioner's ailment and therefore, the major punishment awarded by the original authority is shockingly disproportionate and too harsh to the alleged misconduct. The first respondent has passed the order on 04.03.2000 awarding the punishment of removal from service. Therefore, a detailed appeal to the second respondent has been sent on 05.09.2002. But the second respondent as also rejected the appeal on 30.11.2002 without considering the grounds urged in the appeal properly. The Article of charge deals with unauthorized absence w.e.f.06.04.1999. Section 11(1) of the CRPF Act deals with only minor punishment and therefore, the major punishment awarded for the minor charges is highly arbitrary and illegal. 6. He further submitted that the petitioner had overstayed after the 60 days earned leave period sanctioned on 03.02.1999, the overstay as per Section 10(m) of the act is only a less heinous offence as defined in Section 10 of the Act. Therefore, the major punishment awarded for a minor offence defined under Section 10(m) of the Act is highly arbitrary and illegal. As per Section 10(m) of the Act the unauthorized absence has been defined as less heinous offence major punishment of removal from service awarded by the respondents is contrary to the Act and hence the same is liable to be quashed. The first respondent in its order stated that a letter has been received on 18.01.2000. In the letter dated 18.01.2000 the medical certificates and prescriptions have been sent to the first respondent. Therefore, the first respondent should have waited till the petitioner's ailment is completely cured. But without waiting for that the enquiry proceedings have been completed and Rule 31 procedure has also been completed, thereby declaring the petitioner as deserted. Therefore, the order passed by the respondents is liable to be set aside. Overstay and absence without the permission from the competent authority is also denied. But without waiting for that the enquiry proceedings have been completed and Rule 31 procedure has also been completed, thereby declaring the petitioner as deserted. Therefore, the order passed by the respondents is liable to be set aside. Overstay and absence without the permission from the competent authority is also denied. The petitioner has sent three letters dated 10.11.1999, 18.01.2000, 24.02.2000 and request for extension for leave on health grounds but the first respondent have taken into consideration of the letter of 18.01.2000 alone. Once the enquiry under Section 11(1) of the Act is initiated no proceedings under Rule 31 could be initiated. Further, the Court of enquiry proceedings dated 24.09.1999 was not communicated to the petitioner. He further submitted that the petitioner has submitted the certificate and medical bills to justify the overstay but the first respondent has ordered the enquiry regarding the certificates furnished by the petitioner. 7. Heard the learned counsel appearing for the petitioner and perused the materials available on record. 8. It is seen from the impugned order dated 16.09.2013 passed by the Special Director General, C.R.P.F., Salt Lake, HC Block, Sector-III, Kolkata that the petitioner has placed different pleas in support of his claim regarding OSL viz., alleged to be implicated fallaciously by the local police and further he was suffering from Jaundice and mental disorder etc. Nearly one year he has been absented from 06.04.1999 to 04.03.2000. He did not send any communication regarding his illness or any other cause. The direction issued by the authorities were not followed by the petitioner and he never informed that he was falsely implicated by the local police in his earlier appeal and revision petitions. He has not substantiated his absence regarding his illness by producing medical documents that he was obtained from the doctor. He submitted medical certificate dated 10.08.1999 issued by Dr.P.Chinnapettu, Civil Assistant Surgeon, Tamil Nadu which was received by 12 Bn only on 17.01.2000 and a X-ray report of his right knee. The aforesaid certificates do not have any relevance with his alleged ailment i.d., Jaundice. No proper medical records has been produced to show that the petitioner is suffering from mental disorder as well as jaundice. The aforesaid certificates do not have any relevance with his alleged ailment i.d., Jaundice. No proper medical records has been produced to show that the petitioner is suffering from mental disorder as well as jaundice. It is also clear that the petitioner has not chosen to file any documents to show that his mother was also very sick and due to the same, there was a altercation between himself and his family members and due to the same, his wife has left the house. If at all his wife is missing he ought to have file a criminal complaint before the concerned police station for missing case. There is no such materials produced to substantiate his stand taken by the petitioner that his wife is missing and due to which, he has to take care of his mother and the absence was not willful. It is also seen that the authorities have informed the petitioner to appear before the concerned authorities for taking treatment for reinstating him into service. The petitioner has stated in his representation that he was taking treatment with so many doctors and Government Hospital Out-patient sheets are also sent for their reference. He is 30 years old and only his case has to be considered sympathetically. Mere production of certificates recommending medical rests for four months would not be sufficient for authorities to extend or sanction the leave. All the documents issued by the doctors regarding his illness were private doctors, who are not authorized medical practitioner. The petitioner has not chosen to appear before the C.R.P.F., medical board, he has chosen to be treated at the private clinic, which are not sufficient to prove his illness. In spite of giving sufficient opportunity to the petitioner, he has not chosen to produce ample materials to support his claim. 9. That being the case, the CRPF which is a disciplinary force and it is a essential service and there cannot be any leniency as his absence was un-authorized absence. The impugned order passed by the fifth respondent removing the petitioner from service is not erroneous and hence, the writ petition is devoid of merits and stands dismissed. No costs. Consequently, connected miscellaneous petition is closed.