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2022 DIGILAW 295 (TRI)

Saurajit Paul v. Union of India

2022-07-12

INDRAJIT MAHANTY, S.G.CHATTOPADHYAY

body2022
JUDGMENT S.G. Chattopadhyay, J. - The appellant, an ex-employee of the Central Reserved Police Force (CRPF for short) has filed this appeal challenging the judgment and order dated 20.05.2020 passed by the learned Single Judge in WP(C) No.1343/2016 whereby the learned Single Judge declined to interfere with the order of dismissal of the appellant from service for his long unauthorized absence from duty and dismissed his writ petition. 2. The factual context of the case is as under:- The appellant who was a constable in CRPF proceeded on sanctioned leave for a period of 60 days commencing from 11.05.2009 to 09.07.2009. As stated by the appellant, while he was travelling back from his home-town to the place of posting for resuming duties, he fell sick. Moreover, there was road blockage due to landslide which prevented the appellant from returning to his place of posting on completion of his leave period. For these multifarious reasons, he could not join his duty. He sent intimation to his department about his inabilities to resume duties. He thereafter returned to Kulai in Dhalai District i.e. his home-town and received treatment in Kulai Primary Health Center. For further treatment he came to Agartala and received treatment from AGMC and GBP Hospital. Thereafter, he had also gone to Chennai where he received treatment from Apollo Hospital, Chennai up to 21.08.2009. From there, he returned home and continued to take treatment from the local hospital. 3. According to the appellant, he communicated to his department all these developments, despite which, the department initiated and conducted an ex parte inquiry and based on the ex parte inquiry report passed an order of dismissal from service which was illegal and untenable in law. Aggrieved with his dismissal order passed by the Disciplinary Authority he filed an appeal before the DIG, CRPF who dismissed his appeal. Appellant had challenged the order of the Appellate Authority by filing a revision petition which was also dismissed. Then he approached this Court by filing WP(C) No.1343/2016 seeking the following relieves: '(i) Admit this writ petition, (ii) Issue notice upon the Respondents, (iii) Call for the records, And (iv) After hearing the parties be pleased to set aside the Order of the Revisional Authority dated 27.04.2016 and allow the Petitioner to join in his service; And/or Pass any other Order or Orders as the Court may deem fit and proper.' 4. In reply, respondents filed counter affidavit before the learned Single Judge on 13.02.2017. It has been asserted by the respondents in their counter affidavit that petitioner was sanctioned 60 days Earned Leave with effect from 11.05.2009 to 09.07.2009. He was due to report for duty on 10.07.2009. But, he unauthorizedly overstayed with effect from 10.07.2009. The respondents further asserted that despite repeated communications, the appellant neither submitted any medical document in support of his illness nor he reported for duty. The story that he was prevented from undertaking journey to Dimapur for resuming duty due to landslide and road blockage were all manufactured by him because he could not submit any proof in support of the projected story. Despite receiving several communications for reporting for duty, petitioner maintained absolute silence and remained absent from duty over a long period of time. Thereafter, a departmental inquiry was initiated against him and the appellant was asked to submit his written representation to the Disciplinary Authority within 10 days and he was warned that the enquiry would be conducted ex-parte in case of his non-participation. Since the appellant did not turn up, ex-parte DP was held against him. In departmental enquiry, the charges framed against him were fully proved and the Disciplinary Authority having agreed with the findings of the Inquiry Authority, passed an order of his dismissal from service with effect from 10.01.2011. Five years thereafter, he filed an appeal before the Departmental Appellate Authority on 24.11.2015 even though, the stipulated time for filing appeal expired after 30 days. However, his appeal was decided on merit and dismissed by the appellate authority by order dated 05.01.2016. Appellant then filed a revision petition which was also dismissed by the revisional authority by an order dated 27.04.2016. The respondents also asserted that before the dismissal order was passed, appellant was given adequate opportunity to report for duty even during the continuance of the DP against him. It has been stated that by a communication dated 10.09.2010, the department assured the appellant that if he reports back within 10 days along with all connected medical documents, he would be allowed to continue treatment and a lenient view would be taken. Despite such communication, the appellant did not turn up. 5. It has been stated that by a communication dated 10.09.2010, the department assured the appellant that if he reports back within 10 days along with all connected medical documents, he would be allowed to continue treatment and a lenient view would be taken. Despite such communication, the appellant did not turn up. 5. In this background of the facts, appellant's counsel submitted before the learned Single Judge that the grounds of serious illness of the appellant and his wife were never considered by his department. An ex parte inquiry was conducted against him without affording to him opportunity to defend himself. Even the appellate authority did not provide any opportunity of personal hearing to him and thereby breached the principles of natural justice. Counsel submitted that the findings arrived at by the Inquiry Authority were not supported by evidence and the Disciplinary Authority acted on the report of the Inquiry Authority erroneously and moreover, the entire enquiry was conducted in violation of the principles of natural justice. The learned counsel therefore, urged before the learned Single Judge for setting aside the order of his dismissal from him service. 6. The learned Asstt. S.G. appearing for the respondents argued before the learned Single Judge that the appellant was a member of Armed Force who committed serious misconduct. The charges of misconduct brought against him were fully proved in departmental enquiry. Despite repeated communications, the appellant neither turned up for duty nor he took part in the Departmental Proceedings. Even during the continuance of proceedings, he was given a chance to report for duty along with all medical documents. The appellant did not avail that opportunity. He never submitted adequate medical documents to prove that his illness prevented him from reporting for duty. It has been contended by the counsel of the respondents that the DP was conducted after giving adequate opportunity to the appellant to defend himself but, he did not turn up. Even he filed an appeal against his dismissal order after 5 years which clearly indicated total lack of seriousness on the part of the appellant. Counsel of the respondents, therefore, argued that the appellant was rightly dismissed from service for a proven misconduct. Counsel, therefore, urged for dismissal of the appeal. 7. Even he filed an appeal against his dismissal order after 5 years which clearly indicated total lack of seriousness on the part of the appellant. Counsel of the respondents, therefore, argued that the appellant was rightly dismissed from service for a proven misconduct. Counsel, therefore, urged for dismissal of the appeal. 7. On appreciation of the submissions of the counsel of the parties and the facts and circumstances of the case, learned Single Judge viewed that petitioner (appellant herein) remained absent from the duty without leave for almost 18 months which was unbecoming of a member of a disciplined force. The learned Single Judge held that the findings arrived at by the Disciplinary Authority during the course of inquiry were pure findings of facts duly supported by evidence on record which did not call for any interference in exercise of writ jurisdiction, particularly when such findings were approved by the Appellate and Revisional Authorities. Moreover, the petitioner was not able to demonstrate any breach of the principles of natural justice in the conduct of the inquiry. Having said so, the learned Single Judge dismissed the writ petition by the impugned judgment. It would be appropriate to re-produce the following observations of the learned Single Judge: '[6] The material on record would suggest that the petitioner had availed of 60(sixty) days of leave between 11.05.2009 to 09.07.2009. He had to resume duty upon completion of leave period on 10.07.2009. He did not do so and despite communications from the department when he did not join duty for a long time, a charge sheet was issued to him leveling two charges. Charge Article-1 was that he had remained absent from duty without permission from 10.07.2009 till the date of the charge sheet. Charge Article-2 was that he had also not supplied necessary documents of having treatment at G.B.P Hospital, Agartala. The department had communicated this charge sheet to the petitioner giving him an opportunity to participate in the inquiry. The petitioner did not participate. The Inquiry Officer, therefore, conducted and completed the inquiry ex parte. The inquiry report was considered by the disciplinary authority. In the impugned order of dismissal dated 10.01.2011, the disciplinary authority noted that the petitioner had fetched a petition dated 25.09.2010 stating that he was under full bed rest and unable to perform his duties. The petitioner did not participate. The Inquiry Officer, therefore, conducted and completed the inquiry ex parte. The inquiry report was considered by the disciplinary authority. In the impugned order of dismissal dated 10.01.2011, the disciplinary authority noted that the petitioner had fetched a petition dated 25.09.2010 stating that he was under full bed rest and unable to perform his duties. In response thereof, it was conveyed by the department that the petitioner was able to travel to Chennai for treatment but claimed the requirement of full bed rest. He noted that the Inquiry officer had followed the procedure. A registered letter was written to the home address of the petitioner. Several other communications were also dispatched. Several opportunities were granted to the petitioner despite which he did not participate in the inquiry. He noted that the Inquiry Officer examined relevant witnesses and came to the conclusion that the petitioner had remained continuously absent without leave from 10.07.2009. At one stage, the petitioner had cited the reason of the illness of his wife for not being able to resume duties. It was also noted that an arrest warrant was issued against the petitioner which was served on the member of the family of the petitioner despite which he did not attend the duties. It was noted that for over 18 months he was absent without leave. He, therefore, concluded that the petitioner had committed a misconduct and he was unfit to continue in a disciplined force. He, therefore, passed the order of dismissal. [7] Against the said order of dismissal, the petitioner had preferred an appeal rather belatedly. The order of dismissal was passed on 10.01.2011 whereas appeal was filed on 24.11.2015. In the appeal, the petitioner contended that due to serious financial problems and his illness he could not undertake the journey from his residence to the place of posting and, therefore, could not challenge the order of dismissal. Quite apart from gross and inordinate delay in filing the appeal, the appellate authority considered the appeal on merits and dismissed the same. He met with each submission of the petitioner made in appeal. He came to the conclusion that the averments and evidence of prolonged illness of the petitioner were inconsistent. The petitioner had not produced any medical documents of having taken treatment at various places. He met with each submission of the petitioner made in appeal. He came to the conclusion that the averments and evidence of prolonged illness of the petitioner were inconsistent. The petitioner had not produced any medical documents of having taken treatment at various places. [8] The petitioner further preferred revision petition which was also dismissed by the revisional authority. [9] It can thus be seen that the petitioner had remained absent without leave for over 18 months. His ground of serious illness preventing him from resuming duties was not backed by necessary material and not believed by the departmental authorities. There were large gaps in documents covering the period of absence. The petitioner has also not stated as to what was the nature of such serious illness which prevented him from resuming duty for such a long period. Learned counsel for the petitioner submitted before me that he was suffering from hepatitis. It is difficult to imagine that such an ailment was not cured for nearly 18 months. The petitioner's absence and his culpability do not end with passing of the order of dismissal. The dismissal order was passed on 10.01.2011. He preferred appeal against such order only on 24.11.2015. The petitioner would also have to account for his inaction for over 4(four) years after the order of dismissal was passed. [10] The findings arrived at by the disciplinary authority during the course of inquiry are pure findings of facts duly supported by evidence on record. No interference can be made in exercise of writ jurisdiction, particularly when such findings were approved by appellate and revisional authorities. The petitioner has not been able to demonstrate any breach of principles of natural justice in conduct of the inquiry. His contention that the appellate authority did not grant personal hearing and, therefore, committed an error cannot be accepted. Personal hearing is not necessarily a part of requirement of hearing unless the statutory provisions so provide. As an appellate authority the onus was to consider the appeal and all grounds raised by the petitioner in appeal, however, requirement of personal hearing cannot be insisted upon. No disciplinary rule is pointed out to me which would require such personal hearing. [11] In the result, I find no merits in the petition. The same is, therefore, dismissed. Pending application, if any, also stands disposed of.' 8. Heard Mr. No disciplinary rule is pointed out to me which would require such personal hearing. [11] In the result, I find no merits in the petition. The same is, therefore, dismissed. Pending application, if any, also stands disposed of.' 8. Heard Mr. D.C. Roy, learned counsel appearing for the appellant. Also heard Mr. B. Majumder, learned Asstt. S.G. perused the entire record and considered the facts and circumstances of the case. 9. The records indicate that the Departmental Proceedings were initiated against the appellant under Memo dated 05.07.2010 for the following charges of misconduct: 'ARTICLE-I This battalion force no.001374235 CT/GD. Saurajit Paul A/86 BN. IN CRPF constable GD like in working condition the duties that has availed on him and the duties that he is continuing in CRPF under section 1949 in rule 11(1) as a member of the force and in his behalf he has disobeyed the order/and not fulfilled his duties and has shown misconduct and misbehavior. In respect of by Officer Commandant A/86 Bn CRPF the alleged was sanctioned earned leave dated 11.05.2009 - 9.07.2009 up to 60 days with dated 9/05/2009 convey day and 10/05/2009 Sunday was sanctioned. Therefore the alleged was report in his duty at the date of 9/07/2009 in roll call. But alleged without any permission from the authority dated 10/07/2009 to till date unauthorized absent from leave. ARTICLE-II That, the above mentioned period battalion force no.001374235 CT/GD. Saurajit Paul A/86 BN. CRPF constable continuing his duty through utmost care and devotion that is vested upon him and during tat pendency of that in under section 1949 in rule 11(1) as a member of the force and in his behalf he has disobeyed the order/and not fulfilled his duties and has shown misconduct and misbehavior. In respect of by Officer Commandant A/86 Bn CRPF the alleged was sanctioned earned leave dated 11.05.2009- 9.07.2009 up to 60 days with dated 9/05/2009 convey day and 10/05/2009 Sunday was sanctioned. Therefore the alleged was report in his duty at the date of 9/07/2009 in roll call. But alleged without any permission from the authority dated 10/07/2009 to till date unauthorized absent from leave. The alleged regarding his unauthorized absent dated 18/07/2009 has submitted a prayer for treatment in G.B. Hospital Tripura but did not send any medical documents with this application.' 10. But alleged without any permission from the authority dated 10/07/2009 to till date unauthorized absent from leave. The alleged regarding his unauthorized absent dated 18/07/2009 has submitted a prayer for treatment in G.B. Hospital Tripura but did not send any medical documents with this application.' 10. It would appear from the record that the Memo where-under DP was initiated, the Articles of Charges, statements of imputation of misconduct along with all other accompanying documents were duly communicated to the appellant by sending those documents to his home address. Despite receipt of such documents, the appellant did not turn up to participate in the D.P. The Inquiry Officer, therefore, conducted the enquiry ex parte and on consideration of the report of the Inquiry Officer, disciplinary authority passed the impugned order of dismissal on 10.01.2011. 11. The appellant pleaded before the learned Single Judge that serious illness had prevented him from reporting for his duty after the period of his sanctioned leave expired on 09.07.2009. But, it would appear from the record that after his treatment in a local hospital at his home-town at Kulai in Dhalai District, the appellant had taken consultation from AGMC and GBP Hospital, Agartala. Thereafter, he had gone to Apollo Hospital in Chennai where he was admitted for treatment on 12.08.2009. He was diagnosed with hepatitis. After treatment he was discharged from the hospital on 15.08.2009 with an advice to pursue tolerable physical activities. Therefore, the plea of the appellant that he was advised full bed rest for which he was prevented from reporting for duty is not acceptable. 12. To our query, the counsel appearing for the appellant submitted that all medical documents were submitted by the appellant before the learned Single Judge and he does not have any more document to support his claim. The ex parte inquiry cannot be faulted with because the appellant was provided with adequate opportunity to take part in the enquiry. Against the order of his dismissal from service passed by the Disciplinary Authority, his appeal was also entertained by the Departmental Appellate Authority even though it was filed long after the statutory period of appeal and the same was decided on merit. Similarly, the revisional authority also decided the revision application filed by the appellant on merit by a detailed order. 13. In these circumstances, we find no breach of any of the principles of natural justice. Similarly, the revisional authority also decided the revision application filed by the appellant on merit by a detailed order. 13. In these circumstances, we find no breach of any of the principles of natural justice. The enquiry report is also founded on evidence on the basis of which the Disciplinary Authority passed the order of his dismissal from service. It is on record that the appellant remained absent without leave for a period of over 18 months. Evidently his plea of serious illness preventing him from resuming duties is not backed by sufficient materials for which is Departmental Authority did not accept his plea. The learned Single Judge has dealt with the matter elaborately and the impugned judgment is based on sound reasoning. 14. For the aforesaid reasons, we are not persuaded to interfere with the impugned judgment passed by the learned Single Judge. Resultantly, the appeal stands dismissed. In terms of the above, the writ appeal is disposed of.