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2023 DIGILAW 308 (JK)

Abdul Rehman v. Union of India

2023-07-27

RAJNESH OSWAL

body2023
JUDGMENT : 1. The petitioner has filed the present petition for quashing the order bearing No. P-8.01/2011-22-Est-2 dated 24.12.2011, by virtue of which the increment of the petitioner for two years without cumulative effect has been stopped and the petitioner has been treated as deserter/absentee from 24.11.2010 to 26.12.2010.The petitioner has also impugned the order dated 19.07.2012, by virtue of which the respondent No. 3 dismissed the application filed by the petitioner assailing the order dated 24.12.2011.The order dated 10.12.2012 whereby the appeal preferred by the petitioner was rejected by the respondent No. 2 has also been impugned by the petitioner. The petitioner has also prayed for directing the respondents to release the increment which has not been given to the petitioner since 29.12.2013. 2. The petitioner has impugned the orders mentioned above on the ground that the respondent No. 4 had sanctioned leave on 23.11.2010 for 20 days, on the application filed by the petitioner. As soon as the petitioner left the station, the respondent No. 4 immediately on 24.11.2010 due to some personal grudge issued warrant against the petitioner which was forwarded for its execution to the Senior Superintendent of Police, Rajouri. The petitioner even apprised the respondent No. 2 about all these facts in his application dated 27.11.2010 and further submitted that the petitioner shall immediately report to Unit after the recovery of his wife from her ailment. The comments were sought by the respondent No.2 from the respondent No. 4. After hearing the petitioner, the Commandant-cum-Chief Judicial Magistrate, 133 Bn CRPF, Ranchi, Jharkhand, cancelled the warrants issued against the petitioner. Despite the fact, that the petitioner had not deserted the force and was not un-authorized absentee, the petitioner was tried on false and frivolous charges and ultimately the punishment of stoppage of one increment for two years without cumulative effect and no pay for the leave period, was imposed upon the petitioner. The petitioner assailed the order dated 24.12.2011 before the respondent No. 3 but the respondent No. 3 without appreciating the facts and circumstances of the case rejected the application vide order dated 19.07.2012. The petitioner again approached the respondent No. 2 through the medium of appeal but the same too was dismissed vide order dated 10.12.2012. The petitioner assailed the order dated 24.12.2011 before the respondent No. 3 but the respondent No. 3 without appreciating the facts and circumstances of the case rejected the application vide order dated 19.07.2012. The petitioner again approached the respondent No. 2 through the medium of appeal but the same too was dismissed vide order dated 10.12.2012. The contention of the petitioner is that the impugned orders have been passed without appreciating the facts and circumstances of the case and without affording any opportunity of being heard to the petitioner. 3. The respondents have filed the response, wherein it has been stated that the petitioner informally met Commandant 22 Bn. and requested for 30 days leave, but due to pressure of duties, 20 days leave was sanctioned to the petitioner. The petitioner refused to accept the leave certificate and asked for his return to original company i.e. D/22 from where he would like to proceed on leave after panchayat elections. In the afternoon, BHM reported that petitioner without receiving the movement order or leave certificate was missing from the camp. After thorough search in and around the camp, it was confirmed that he had deserted the camp, which is an offence under CRPF Act 1949, read with Rules of 1955. FIR was lodged and warrants of arrest were also issued against him. The petitioner joined on his own on 27.12.2010. The warrants issued against the petitioner were recalled. After deserting the camp on 23.11.2010, the petitioner sent a written complaint dated 27.11.2010 addressed to IGP, CRPF Jammu. The para-wise comments on the application of the petitioner were submitted to IGP Jammu. IGP Jammu Sector vide signal dated 25.01.2011 directed to take disciplinary action against the petitioner. Accordingly, the departmental enquiry was ordered vide order dated 04.04.2011. The petitioner was given full opportunity to defend himself during the course of enquiry but he failed to submit any proof in support and accordingly, the order dated 24.12.2011 was passed. The petitioner preferred representation against the order dated 24.12.2011 but the same was rejected vide order dated 19.07.2012. The appeal preferred by the petitioner was also dismissed vide order dated 10.12.2012. 4. The petitioner also filed rejoinder and stated that the wife and the mother of the petitioner were not well and placed on record the medical record in respect of the ailment and the death certificate of his mother. The appeal preferred by the petitioner was also dismissed vide order dated 10.12.2012. 4. The petitioner also filed rejoinder and stated that the wife and the mother of the petitioner were not well and placed on record the medical record in respect of the ailment and the death certificate of his mother. He further submitted that overstay for 13 days was due to ailment of the wife. 5. Mr. Ankesh Chandel, learned counsel for the petitioner restricted his arguments only on two issues i.e. no finding has been returned by the respondents that the petitioner had deliberately absented himself from the duty and the increment could have been stopped for only one year in terms of Rule 72 of CRPF Rules 1955. He also placed reliance upon the judgment of this Court in case titled ‘Ajay Shankar Panday v. Union of India, JKJ ONLINE 25434’. 6. Mr. Sunil Malhotra, learned CGSC, while producing the record of the proceedings submitted that the enquiry has been conducted in accordance with the rules and the punishment also has been imposed upon the petitioner in terms of CRPF Rules. 7. Heard and perused the record. 8. The petitioner was working as a Constable/GD in the CRPF and posted at Hazuribagh-Jharkhand in the month of November 2010. The departmental enquiry was initiated against the petitioner on the following charges: CHARGE NO.1 That the Force No. 941181712 SEP/GD Abdul Rehman posted as Sep/GD in 22 battalion charged under CRPF Act 1949 under section 11 (1) being member of force for disobedience of order/negligence in duty and undisciplined behaviour in which said person on dated 23.11.2010 (Noon) without the permission of any competent authority left the camp and reported on 27/12/2010 (Afternoon) in this battalion and this act of the Sep/GD of leaving the camp without the permission of any competent authority is against the rule and discipline of the force. Therefore, he is guilty for disobedience of orders/negligence on duty and undisciplined behaviour therefore punishable under section 11 (1) of CRPF Act 1949 and Rule 27 of CRPF rule 1955. Therefore, he is guilty for disobedience of orders/negligence on duty and undisciplined behaviour therefore punishable under section 11 (1) of CRPF Act 1949 and Rule 27 of CRPF rule 1955. CHARGE No.2 That the Force No. 941181712 SEP/GD Abdul Rehman was posted as Sep/GD in 22 battalion and being member of the force has committed the offence under section 11 (1) of CRPF Act 1949 in which said person on dated 23.11.2010 without the permission of any competent authority left the camp and during this period being deserter for getting the sympathy of superior officer presented the false picture of the whole incident without following proper channel and this act of SEP/GD Abdul Rehman clearly showing the indiscipline therefore he is punishable under section 11 (1) of CRPF Act 1949 and Rule 27 of CRPF rule 1955. 9. The Enquiry Officer was appointed by the respondent No.4 vide order dated 04.04.2011. The memorandum along with the article of charges was received by the petitioner and also explained to him as is evident from the proceedings conducted on 07.05.2011 and 09.05.2011. The Enquiry Officer recorded the statements of six witnesses and the petitioner cross-examined only four witnesses and did not choose to cross-examine two witnesses. Thereafter, the statement of the petitioner was also recorded. The Enquiry Officer vide his report dated 26.06.2011 arrived at the following conclusion: “As per the statements of the witnesses and documentary evidence it appears that Force No. 941181712 SEP/GD Abdul Rehman because of illness of his wife wanted to proceed for leave and his wife had been ill for many days. The accused Abdul Rehman did not intimate his higher officials for solving the family issue. Because of this family issue and without seeking permission from the competent authority, he left the force. Accordingly, the charge No.1 is fully proved.” 10. Since the Enquiry Officer vide his report dated 26.06.2011 had returned his finding only on the charge No. 1, the Commandant- 22 Bn vide his order dated 14.07.2011 returned the enquiry report to the Enquiry Officer with the observation that he had not dealt with the charge No. 2 against the petitioner. The Enquiry Officer again examined two witnesses and the petitioner did not choose to cross-examine them. The statement of the petitioner was also recorded. In his statement recorded on 22.09.2011, the petitioner accepted the charge No. 2. The Enquiry Officer again examined two witnesses and the petitioner did not choose to cross-examine them. The statement of the petitioner was also recorded. In his statement recorded on 22.09.2011, the petitioner accepted the charge No. 2. He again made a statement on 07.10.2011, wherein he stated that as per the procedure, he had made the representation to IGP and DGP. The Enquiry Officer vide his report dated 08.10.11 held the charge No. 2 as proved against the petitioner, as he not only wrote to IG Jammu Sector without following the procedure but also concealed his offence and lodged a false report against the Adjutant in light of the statement of the witnesses and also as the petitioner admitted the charge No. 2. The enquiry report was provided to the petitioner on 24.10.11 and 15 days time was granted to the petitioner to respond to the enquiry report. The petitioner submitted the reply and the respondent No.4 i.e. the Disciplinary Authority vide its order dated 24.12.2011 accepted the report of the Enquiry Officer and punished the petitioner by stoppage of one increment for two years without cumulative effect, after considering the reply passed the order impugned. The period of absence from 24.11.2011 from 27.12.2011 was treated as leave without pay. 11. The contention of the learned counsel for the petitioner is that the absence of the petitioner from the duty was not willful but because of the circumstances in the family of the petitioner as the wife of the petitioner was seriously ill and this fact is duly substantiated by the findings of the Enquiry Officer. It was also the contention of the learned counsel for the petitioner that the absence was not willful but because of the circumstances as mentioned above and no finding has been returned by the Enquiry Officer that the absence of the petitioner was willful. In “Krushnakant vs. Union of India &Anr”, (2012) 3 SCC 178 , it has been held as under: “17. If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence cannot be held to be willful. Absence from duty without any application or prior permission may amount to unauthorized absence, but it does not always mean willful. If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence cannot be held to be willful. Absence from duty without any application or prior permission may amount to unauthorized absence, but it does not always mean willful. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalization, etc., but in such case the employee cannot be held guilty of failure of devotion to duty or behaviour unbecoming of a government servant.” 18. In a departmental proceeding, if allegation of unauthorized absence from duty is made, the disciplinary authority is required to prove that the absence is willful, in the absence of such finding, the absence will not amount to misconduct. 19. In the present case the inquiry officer on appreciation of evidence though held that the appellant was unauthorized absent from duty but failed to hold that the absence was willful; the disciplinary authority as also the appellate authority, failed to appreciate the same and wrongly held the appellant guilty. 12. It needs to be noted that the allegations against the petitioner in the charge No.1 were composite i.e. leaving the battalion unauthorizedly and being absent from duty and because of this reason, the period from 24.11.2010 to 26.12.2010 has been treated as leave without pay. If the case of the petitioner is examined on the anvil of the law laid down by Hon’ble Apex Court in the judgment (supra) this Court finds that absence of the petitioner from the force was not willful but because of the illness of the wife of the petitioner. Though the petitioner was sanctioned 20 days leave by the Adjutant, but the petitioner left the station without permission or movement order. Thus, the charge for leaving the Battalion without permission was fully proved. As such, this Court is of the considered view that the charge No.1 was partially proved. 13. Though the petitioner was sanctioned 20 days leave by the Adjutant, but the petitioner left the station without permission or movement order. Thus, the charge for leaving the Battalion without permission was fully proved. As such, this Court is of the considered view that the charge No.1 was partially proved. 13. This Court while exercising the power of judicial review cannot appreciate the evidence brought on record during the course of departmental proceedings but it is required to be seen as to whether the procedure as prescribed by law has been followed by the Enquiry Officer for the purpose of proving the guilt of the delinquent employee and further as to whether the punishment imposed upon the delinquent employee is disproportionate to the alleged act of misconduct of the delinquent employee and as such, is shocking to the conscience of the Court. From the record, this Court finds that proper procedure has been followed during the course of enquiry as prescribed by the Rule 27 of Rules 1955. The proper opportunity of cross-examining the witnesses was also granted to the petitioner. The petitioner cross-examined four witnesses who were examined for proving the charge No. 1 but did not cross-examine the two witnesses, examined for proving the charge No. 2. The petitioner in fact in one of his statements, admitted the allegations in the charge No. 2. In view of above, this Court does not find any illegality in the finding of the Enquiry Officer in respect of charge No. 2. 14. It was also contended by the learned counsel for the petitioner that under Rule 72 of the Rules of 1955, the duration of the stoppage of increment cannot be beyond one year. Rule 72 of CRPF Rules 1955 is extracted as under: 72. Withholding of Increment:- If the increment of a member of the Force is withheld, the period for which it is withheld and the reason for withholding it shall be stated in the Force Orders. Such period shall not exceed one year. 15. The rule (supra) clearly provides that if the increment of the member of the force is withheld then the duration cannot exceed one year. In case of the petitioner, one increment has been stopped for the period of 2 years, which clearly is in violation of Rule 72. Such period shall not exceed one year. 15. The rule (supra) clearly provides that if the increment of the member of the force is withheld then the duration cannot exceed one year. In case of the petitioner, one increment has been stopped for the period of 2 years, which clearly is in violation of Rule 72. The Rule 27(6) of the Rules of 1955 authorizes the Commandant to impose only those punishments, which are prescribed under the Rules. The stoppage of increment has been prescribed by Rule 27 as one of the punishments and equally true is that in terms of Rule 72, the duration of stoppage of increment cannot be beyond one year. In ‘Ajay Shankar Panday v. Union of India’, JKJ ONLINE 25434, though a Coordinate Bench was confronted with the case where the punishment for stoppage of two increments with cumulative effect was imposed upon the delinquent employee but it was held as under: “Her next contention that the punishment of `stoppage of two increments with cumulative effect' was not countenanced by the Central Reserve Police Force Rules, 1955, is, however, found tenable because the provisions of the Central Reserve Police Force Rules, 1955 do not contemplate "stoppage of increment with cumulative effect", as one of the punishments, which may be imposed on the members of the service. The rules contemplate only "stoppage of increments" and nothing beyond that. In terms of Rule 72 of the rules, the period of withholding of increment cannot be beyond one year.” 16. Thus, it is evident that the respondent No. 4 could not have stopped the increment of the petitioner for the period of two years as the same de hors the Rule 72 of the Rules of 1955. 17. As a sequitur of the above discussion, the writ petition is disposed of with the following directions: a. The order bearing No P-8.01/2011-22-Est-2 dated 24.12.2011 is quashed to the extent of stoppage of increment for two years by providing that the duration of stoppage of increment shall remain only for one year in terms of Rule 72 of Rules of 1955. b. The petitioner shall be entitled to all the benefits, which he would have been entitled to, had the increment been stopped for one year only. b. The petitioner shall be entitled to all the benefits, which he would have been entitled to, had the increment been stopped for one year only. The monetary benefits, if any shall be paid to him within the period of three months from the date, the copy of this order is served upon the respondents.