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2022 DIGILAW 178 (MAN)

Romi Kumar v. Union of India

2022-09-14

M.V.MURALIDARAN

body2022
JUDGMENT 1. By consent, the main writ petition itself is taken up for disposal at the admission stage. 2. Heard Mr. M. Devananda, the learned counsel for the petitioner and Mr. Boboy Potsangbam, the learned Central Government Standing Counsel for the respondents. 3. The writ petition has been filed by the petitioner to issue a writ of certiorarified mandamus to quash the dismissal order dated 18.1.2005, as it has violated Article 311(2) of the Constitution of India and also the principles of natural justice in view of the judgment of the Hon'ble Apex Court dated 2.7.2018 passed in Civil Appeal No.2608 of 2012 and to direct the respondents to reinstate the petitioner back into service. 4. Brief facts which led to the filing of the writ petition are as follows:- On 2.9.2003, while petitioner was serving as CT/GD in E/23 Bn, CRPF located at Baramulla (J&K) applied 15 days casual leave due to the serious illness of his father and the Officer Commanding also sanctioned the leave on 31.8.2003 and the petitioner also proceeded on leave with effect from 4.9.2003 to 23.9.2003 with the permission to avail 3 days joining time with effect from 24.9.2003 to 26.9.2003. Unfortunately, his father expired due to his illness and the petitioner's wife left him. This leads to serious bouts of drinking and substance abuse, thereby driving him into depression. 4.1. It is alleged that in the year 2003, the petitioner was admitted in RIMS, Imphal after he complained of sleep disturbances and other difficulties association with substance abuse and drinking. The Doctors diagnosed the petitioner as suffering from depression with psychotic features. Disregarding the advice of the Doctors, the petitioner discontinued the treatment and sought help from the quacks, which worsens his conditions. Again in the year 2010, he continued the treatment at RIMS, Imphal till later part of 2019. 4.2. While the petitioner was undergoing treatment for depression with psychotic features ADS since 2003, the respondents initiated departmental enquiry against him on the ground of misconduct and absenting from duty continuously with effect from 27.9.2003 without any permission of the competent authority. In fact, the departmental proceedings against the petitioner was proceeded by appointing only the Enquiry Officer, but the Presenting Officer was not appointed. In fact, the departmental proceedings against the petitioner was proceeded by appointing only the Enquiry Officer, but the Presenting Officer was not appointed. The report of the Enquiry Officer was presumably communicated to the petitioner vide letter dated 29.11.2004 and consequently, the impugned order dated 18.1.2005, thereby dismissing the petitioner from service was issued. Challenging the same, the writ petition has been filed. 5. Assailing the impugned order, Mr. M. Devananda, the learned counsel for the petitioner submitted that the petitioner proceeded on leave, however, unfortunately, his father expired due to illness and his wife left him, which lead to serious bouts of drinking and substance abuse, thereby driven the petitioner into depression and he was treated as such at RIMS, Imphal. He would submit that the petitioner was not overwhelmed by the series of unfortunate events that led to his severe depression and could not inform the authorities of his conditions nor could he appear before the disciplinary authority and take part in the departmental enquiry. 6. The learned counsel further submitted that as soon as the petitioner recovered from his depression and came to his full sense, he applied for the dismissal order as well as the departmental proceedings under RTI Act and the same were furnished to him on 21.8.2019. He submits that the dismissal order was never furnished to the petitioner, thereby depriving and forfeiting the right of appeal against the dismissal order dated 18.1.2005 and that the petitioner could not appear before the disciplinary authority during the departmental enquiry due to the circumstances beyond his control. The learned counsel added that by not furnishing the dismissal order, the petitioner was deprived of his right of appeal, thereby violating the principles of natural justice. 7. The learned counsel urged that during the departmental enquiry against the petitioner, the Presenting Officer was not appointed and the Enquiry Officer proceeded the disciplinary proceedings without the Presenting Officer. Thus, the Enquiry Officer in total violation of the rules and fundamental principles of natural justice had assumed the role of the judge as well as the prosecution, by examining the witnesses and exhibiting documents. 8. Mr. Thus, the Enquiry Officer in total violation of the rules and fundamental principles of natural justice had assumed the role of the judge as well as the prosecution, by examining the witnesses and exhibiting documents. 8. Mr. Devananda, the learned counsel for the petitioner next submitted that the act of the respondent authorities in not furnishing the dismissal order and not appointing the Presenting Officer during the departmental enquiry and proceeded without affording reasonable opportunity of hearing is in violation of Article 311(2) of the Constitution of India. More specifically, the impugned order suffers on the ground of without appointing the Presenting Officer and for violating the principles of natural justice. In support, the learned counsel placed reliance upon the decision of the Hon'ble Apex Court in Civil Appeal No.2608 of 2012, dated 2.7.2018 [Union of India v. Ram Lakhan Sharma]. 9. Per contra, Mr. Boboy Potsangbam, the learned Central Government Standing Counsel appearing for the respondents submitted that first of all the writ petition is liable for dismissal on the ground of delay and latches. The departmental proceedings was proceeded and concluded in the year 2005 itself for the misconduct committed by the petitioner. In fact, before the commencement of the enquiry, the petitioner was informed about the appointment of the Enquiry Officer and after appointment, the Enquiry Officer had also sent several notices to the petitioner to appear for enquiry. Since the petitioner failed to appear before the Enquiry Officer, the departmental proceedings commenced and concluded ex parte and after conclusion of the enquiry, a copy of the report was communicated to him calling for representation. Since the petitioner failed to submit any explanation and after satisfying with the report of the Enquiry Officer, the Disciplinary Authority had issued the impugned order of dismissal on 18.1.2005. Since the Enquiry Officer found the charges proved and the Disciplinary Authority having found that the petitioner is not fit for the Force, rightly issued the impugned dismissal order. Therefore, there is no infirmity in the impugned order and accordingly, a prayer is made to dismiss the writ petition. 10. This Court considered the rival submissions and also perused the materials available on record. 11. Therefore, there is no infirmity in the impugned order and accordingly, a prayer is made to dismiss the writ petition. 10. This Court considered the rival submissions and also perused the materials available on record. 11. The challenge to the impugned order was made mainly on the ground that it has violated the principles of natural justice and during the departmental enquiry, no Presenting Officer was appointed and the Enquiry Officer proceeded the disciplinary proceedings without the Presenting Officer, which is in total violation of the rules. Thus, not affording a reasonable opportunity of being heard to the petitioner is in violation of Article 311(2) of the Constitution of India. 12. As could be seen from the records, the following are the charges framed against the petitioner: 'As per CRPF Act 1949 Section 11(1) F.No.951150364 CTGD Romi Kumar, misconduct order of the force and he absent from duty continuously with effect from 27/09/03 without any permission of competent authority. Force No.951150364 CTGD Romi Kumar proceeded on 15 days leave with effect from 4/9/03 to 23/9/03 with permission to avail 8/9, 10/09 (RH), 7/9, 14/9 & 21/09/03 (Sunday) and Joining time (more extra) with effect from 24/09/03 to 26/09/03. He should reports back on his duty on dated 26/9/03 (AN) but without any permission of competent authority he absent. And also he did not forward any kind of application for extension of leave and absent from assignment duty. A board of court of inquiry (COI) is proceeded and declared deserter as per office order no.E-X-4/04-EC-II dated 12/7/04.' 13. The petitioner himself admitted that while he was serving as CT/GD proceeded on 15 days leave with effect from 4.9.2003 to 23.9.2003 with permission to avail 8/9/2003, 10/9/2003 (RH), 7/9/2003, 14/9/2003 and 21/9/2003 (Sunday) and extra three days for joining with effect from 24/9/2003 to 26/9/2003 and he should report back duty on 26/9/2003 AN. Therefore, there is no dispute on it. However, without permission of the competent authority, he absented from duty from 27.09.2003 and he had also not forwarded any application for extension of leave. The reasoning for not sending application for extension of leave stated by the petitioner is while he was on leave, his father died and his wife left him, which leads to serious bouts of drinking and substance abuse thereby driving him into depression and was treated as such at RIMS, Imphal are all not acceptable. The reasoning for not sending application for extension of leave stated by the petitioner is while he was on leave, his father died and his wife left him, which leads to serious bouts of drinking and substance abuse thereby driving him into depression and was treated as such at RIMS, Imphal are all not acceptable. Nothing prevented the petitioner in sending application for extension of leave narrating the factual situation obtained at the expiry of the leave to the authority concerned. On the other hand, without any intimation, he absented from duty. 14. The unfortunate events that led to his severe depression and could not inform the authorities of his conditions nor could appear before the disciplinary authority and take part in the departmental enquiry stated by the petitioner are all concocted for the purpose of filing the writ petition and there is no bonafide in it. The story narrated by the petitioner that as soon as he recovered from his depression and came to his full senses, he applied for the dismissal order as well as the departmental proceedings under RTI and after obtaining it he filed the writ petition is also invented for the purpose of filing the writ petition. 15. In his petition, the petitioner stated that he was furnished the dismissal order as well as departmental proceedings on 21.8.2019 itself. If the petitioner is really aggrieved by the impugned order of dismissal, he could have immediately filed petition in the year 2019 itself. However, he failed to do so and filed the writ petition only in the year 2022, which itself shows the conduct of the petitioner is not appreciable. Thus, there is every chance to hold that there is no bonafide in the claim of the petitioner and also the writ petition suffers from delay and latches. No convincing explanation forthcoming from the side of the petitioner and the reason for the delay attributed by the petitioner is not sufficient. 16. It is well settled that the power of the High Court to issue an appropriate writ under Article 226 of the Constitution of India is discretionary and the High Court in the exercise of its discretion does not ordinarily assist the tardy and the indolent of the acquiescent and the lethargic. 16. It is well settled that the power of the High Court to issue an appropriate writ under Article 226 of the Constitution of India is discretionary and the High Court in the exercise of its discretion does not ordinarily assist the tardy and the indolent of the acquiescent and the lethargic. If there is an inordinate delay on the part of the petitioner in filing a writ petition and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in the exercise of its writ jurisdiction. Therefore, the unexplained delay or latches on the part of the petitioner in filing the writ petition is a sufficient cause for this Court to refrain from exercising its extraordinary discretion. 17. Coming to the pleas of the petitioner that the impugned dismissal order suffers from violation of the principles of natural justice and also the plea that during the departmental enquiry, the Presenting Officer was not appointed are concerned, on 28.9.2004, the Commandant, 23 Bn, CRPF appointed Shri R.C. Rathore, Assistant Commandant as Enquiry Officer to inquire into the matter. Before the appointment of the Enquiry Officer, the Commandant, 23 Bn sent the charges to the permanent address of the petitioner through registered dak and upon receipt of the charges, the petitioner has failed to submit his explanation. On 4.10.2004, a registered dak was sent to the permanent address of the petitioner about the appointment of the Enquiry Officer along with the final order of the COI and other documents. The date of enquiry was also communicated to the petitioner and since the petitioner failed to appear before the Enquiry Officer on 19.10.2004 and no kind of defence assistant received from him, the Enquiry Officer proceeded the departmental enquiry as ex parte against the petitioner. 18. On a perusal of the report, this Court finds that during departmental enquiry, the following evidences were examined by the Enquriy Officer: 1. Leave application of accused. Leave certificate. OSL. Signal and recall letter for join duty. 2. Complaint of officer commanding E/23 BN letter no.C-II-2/03/E-23 date 11/11/03. 3. Warrant of arrest issued by Commandant/CJM, Shree S.S.Bala (Comdt. 23 BN) 4. Office order of Commandant 23 BN No.I-X 4/04/23-EC-II dated 12/7/04 (declared deserter) 19. Upon conclusion of the enquiry, the Enquiry Officer submitted his report. Leave certificate. OSL. Signal and recall letter for join duty. 2. Complaint of officer commanding E/23 BN letter no.C-II-2/03/E-23 date 11/11/03. 3. Warrant of arrest issued by Commandant/CJM, Shree S.S.Bala (Comdt. 23 BN) 4. Office order of Commandant 23 BN No.I-X 4/04/23-EC-II dated 12/7/04 (declared deserter) 19. Upon conclusion of the enquiry, the Enquiry Officer submitted his report. The finding of the Enquiry Officer reads thus: 'After depth study of statement of witness, produced evidence and situation the following point are found: 1. F.No.951150364 CT/GD Romi Kumar was present at E/32 BN Baramula (J&K) before availing 15 days C/L on 02/09/03. 2. F.N.951150364 CT/GD Romi Kumar of E/32 BN applied application for 15 days C/L due to father serious illness. 3. Officer commanding E/32 BN sanctioned 15 days leave on date 3/08/03. Then proceeded on leave with effect form 04/09/03 to 23/09/03 with permission to avail 8/09 & 10/09 (R.H) 7/09, 14/09 & 21/09/03 (Sun) and 3 days joining time (more extra) dated 24/09/03 to 26/09/03. He should report T/C Jammu on date 26/9/03. 4. F.N.951150364 CT/GD Romi Kumar absent from duty since 26/-09/03 and after expiry of leave without any information and without any order of competent authority. He was absent continuously from #/23 BN and OSL. 5. F.N.951150364 CT/GD Romi Kumar produced no any document against re-call letter for duty sent to permanent address of accused through Register post by Office commanding E/32 BN CRPF. 6. During the departmental Inquiry letter send through Register post at permanent home Add. of No.F.N.951150364 CT/GD Romi Kumar for present self or sent supporting documents on fixed date of hearing but he neither report nor sent any information. Therefore, inquiry officer completed the exparty departmental Inquiry. 7. Therefore, after a depth study of present evidence, witness and produced document and as per provision-1 vide office order of commandant 23 BN CRPF.No.VIII- 7/2004-23-EC-II date 13/09/04. That the accuse part-1 (as per CRPF Act- 1949) section.II (I) F.N.951150364 CT/GD Romi Kumar misconduct order of the force and absent from duty continuously with effect from 26.09.03 without any permission of competent authority). Without any doubt it's fully proved.' 20. It is seen that report of the Enquiry Officer was communicated to the petitioner calling for his explanation/representation through registered post. However, the petitioner has not submitted any explanation and the disciplinary authority proceeded to pass the impugned order. Without any doubt it's fully proved.' 20. It is seen that report of the Enquiry Officer was communicated to the petitioner calling for his explanation/representation through registered post. However, the petitioner has not submitted any explanation and the disciplinary authority proceeded to pass the impugned order. Paragraphs 7 to 10 of the impugned order are relevant and the translated version of paragraphs 7 to 10 of the impugned order read thus: 7. Report of enquiry officer is depthly study. According to report & enquiry office the charges from the accused is fully proved. 8. After a depth study of report of enquiry officer it is find out that the individual is not fit for force, therefore as per CRPF act- 1959 section and CRPF rules 1955 rule no 27 the offence is proved so F.N.951150364 CT/GD Romi Kumar sentence as dismiss from service with effect from 05/01/05. 9. The 15 days C/L sanctioned to F.N.951150364 CT/GD Romi Kumar of E/23, with effect from 04/9/03 to 26/09/03 is cancelled. The duration of 04/09/03 to 15/01/205 is converted into daize now and any facility for this period is not liable and also he is struck out from this battalion WEF 15/01/05. 10. If any medal award are given to F.N.951150364 CT/GD Romi Kumar will also ceased and warrant of arrest issued by this office vide W-11-3/03-23 EC-2 date 3/12/3 also cancelled. 21. On a thorough reading of the report of the Enquiry Officer, this Court is of the view that there is no procedural violation of conducting and concluding the departmental enquiry against the petitioner. On the other hand, despite giving opportunity to the petitioner to defend the enquiry, he has not responded and availed of the opportunity. Therefore, he cannot now come and state that he has not been afforded sufficient opportunity of hearing. As stated supra, he overstayed from attending the office for nearly 17 years. Such a long absence that too without any communication/information cannot be taken lightly and it is a serious misconduct. 22. The petitioner being a member of Central Reserve Police Force could not overstay without permission. Absence from duty without leave under Central Reserve Police Force is a gravest misconduct and that the disciplinary authority was right in awarding punishment of dismissal from service. Thus, there is no disproportionate in awarding the punishment. 23. 22. The petitioner being a member of Central Reserve Police Force could not overstay without permission. Absence from duty without leave under Central Reserve Police Force is a gravest misconduct and that the disciplinary authority was right in awarding punishment of dismissal from service. Thus, there is no disproportionate in awarding the punishment. 23. In State of Meghalaya and others v. Mecken Singh N.Marak, reported in (2008) 7 SCC 580 , the Hon'ble Supreme Court held: '14. In the matter of imposition of sentence, the scope for interference is very limited and restricted to exceptional cases. The jurisdiction of the High Court, to interfere with the quantum of punishment is limited and cannot be exercised without sufficient reasons. The High Court, although has jurisdiction in appropriate case, to consider the question in regard to the quantum of punishment, but it has a limited role to play. It is now well settled that the High Courts, in exercise of powers under Article 226, do not interfere with the quantum of punishment unless there exist sufficient reasons therefor. The punishment imposed by the disciplinary authority or the appellate authority unless shocking to the conscience of the court, cannot be subjected to judicial review. In the impugned order of the High Court no reasons whatsoever have been indicated as to why the punishment was considered disproportionate. Failure to give reasons amounts to denial of justice. The mere statement that it is disproportionate would not suffice.' 24. In Union of India v. Dwarka Prasad Tiwari, reported in (2006) 10 SCC 388 , the Hon'ble Supreme Court held that unless the punishment imposed by the disciplinary authority or the appellant authority shocks the conscience of the Court/Tribunal, there is no scope for interference. When a member of the disciplined force deviates to such an extent from the discipline and behaves in an untoward manner which is not conceived of, it is difficult to hold that the punishment of dismissal as has been imposed is disproportionate and shocking to the judicial conscience. 25. As stated supra, the petitioner being a member of CRPF, high level of discipline is required to be maintained by him. The petitioner has admittedly failed to maintain the discipline and had done grave misconduct. 25. As stated supra, the petitioner being a member of CRPF, high level of discipline is required to be maintained by him. The petitioner has admittedly failed to maintain the discipline and had done grave misconduct. The proved charges clearly establish that the petitioner, who was a member of disciplined force failed to discharge his duties with utmost integrity, honesty, devotion and diligence and his act of overstaying of leave without permission was prejudicial to the department. Therefore, this Court, is not inclined to interfere with the punishment imposed by the disciplinary authority. 26. The judgment relied upon by the petitioner in the case of Rama Lakhan Sharma, supra is entirely on different context and the same is not applicable to the given facts and circumstances of the present case. Except the decision in Rama Lakhan Sharma, supra, no other decision in support of the petition has been submitted by the petitioner. 27. For the foregoing discussions, this Court is of the view that apart from merits, the writ petition suffers from delay and latches and therefore, the writ petition is liable to be dismissed. 28. In the result, the writ petition is dismissed. No costs.