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2023 DIGILAW 352 (JK)

Rakesh Kumar v. Union of India

2023-08-04

RAJNESH OSWAL

body2023
JUDGMENT : 1. This writ petition has been filed by the petitioner for quashing the order dated 05.09.2011 by virtue of which the petitioner has been removed from the service by the respondent No. 4 and a prayer has also been made for directing the respondents to allow the petitioner to join the service. 2. It is stated that the petitioner was appointed as a Constable (GD) in the Central Reserve Police Force in the year 2000 and since then the petitioner continuously performed the duty to the utmost satisfaction of the superiors. It is stated that the petitioner after performing duty in Assam, was assured by the Company Commander for sanctioning his leave after reaching Jammu and when the petitioner reached Vijaypur, Jammu, he again made a request to his Company Commander for sanctioning his leave as the wife of the petitioner was seriously ill and was confined to bed. None was at home to look after the wife of the petitioner. However, the Company Commander told the petitioner that after reaching Srinagar, he would definitely look into the matter but when the petitioner objected, the Company Commander permitted him to go and see his wife and report back on 21.05.2011. On the instructions of the Company Commander, the petitioner left the company from Vijaypur, Jammu and reached his place of residence on 19.05.2011 and on the very next day he left his place of residence and reached Srinagar on 21.05.2011. 3. The petitioner has impugned the order dated 05.09.2011 on the ground that the respondents have violated the procedure prescribed by the Central Reserve Police Force Act 1949 and CRPF Rules, 1955 and also harsh order of removal from the service has been passed in a haste manner. The petitioner filed an appeal against the order dated 05.09.2 011 but the DIG, CRPF dismissed the appeal filed by the petitioner. Thereafter, the petitioner referred a revision before the respondent No.3 against order dated 02.12.2011 and the same too was dismissed by the respondent. Thereafter the petitioner filed the present writ petition. 4. The respondents have filed the response, wherein it has been stated that D/3 Coy of this Unit was deployed in election duties in Assam and West Bengal and the petitioner was also posted in the said Unit. Thereafter the petitioner filed the present writ petition. 4. The respondents have filed the response, wherein it has been stated that D/3 Coy of this Unit was deployed in election duties in Assam and West Bengal and the petitioner was also posted in the said Unit. After the completion of the election duty while returning by special train, the petitioner deserted from Vijyapur (Jammu) Railway Station on 19.05.2011 at 1100 hours, without any permission from the competent authority. The said information was given by the OC -D/3 to the Commandant-03 BN, CRPF by the signal dated 20.05.2011 and on the same date, FIR was also lodged about the desertion of the petitioner with Bandipora Police Station. In addition to above, all J&K based Units alongwith the higher authorities were also informed about the desertion of the petitioner by the signal dated 20.05.2011. The petitioner on his own reported in the Coy HQrs on 21.05.2011 at 2145 hours and the information regarding that was sent by OC-D/3 vide signal dated 22.05.2011 to Unit Hqrs. Coy OC of D/3 submitted preliminary enquiry report on 27.05.2011. Thereafter, the departmental enquiry was ordered vide 3rd Bn Memorandum dated 01.06.2011. The memorandum was also forwarded to the petitioner through OC of D/3. Sh. Ranjit Mahto, Assistant Commandant was detailed as Enquiry Officer vide 3rd Bn order No. P.VIII-6/2011-EC-2 dated 23.06.2011 to conduct the departmental enquiry. The enquiry officer conducted the departmental enquiry as per the laid down procedure. In the presence of the petitioner, the Enquiry Officer conducted hearing of all the witnesses and the copy of statements of all the witnesses were handed over to the petitioner. The petitioner was given the opportunity to defend himself within 15 days time. The petitioner had accepted all the charges levelled against him vide his application dated 20.07.2011 and denied to submit any witness/documents against the charge. Accordingly, the Enquiry Officer submitted the enquiry report vide letter No. P.VIII-1/2011 dated 21.07.2011. Enquiry officer proved the charge against the petitioner. After going through the enquiry report and the statements of the witnesses and other evidence in depth, the competent authority passed the order to remove the petitioner from service with effect from 06.09.2011 (AN) vide order No. VIII-6/2011-EC-II dated 05.09.2011. Prior to it, the petitioner was dismissed from the service vide order dated 29.12.2008. After going through the enquiry report and the statements of the witnesses and other evidence in depth, the competent authority passed the order to remove the petitioner from service with effect from 06.09.2011 (AN) vide order No. VIII-6/2011-EC-II dated 05.09.2011. Prior to it, the petitioner was dismissed from the service vide order dated 29.12.2008. The petitioner preferred an appeal against his dismissal and he was reinstated vide order dated 23.03.2011. In view of the repeated disobedience of orders, negligence/remissness to duty, the order of removal from service was issued by the competent authority. It is stated that the petitioner was dismissed from service as he deserted and desertion is a serious and cognizable offence. 5. Mr. Sarfaraz Shah, learned counsel for the petitioner vehemently argued that the respondents have not followed the rules for the purpose of conducting enquiry against the petitioner as he was wrongly proceeded for desertion. He further submitted that the order of reinstatement dated 23.03.2011 was never placed before the Enquiry Officer and even no evidence was led by the respondents to that effect and as such without perusing the order of reinstatement, the petitioner could not have been penalised for the past act which stood condoned by the respondents. He further argued that the punishment of removal of service for absence of one day is a very harsh punishment. 6. Mr. R.S Jamwal, learned counsel for the respondents countervailing the submissions made by the learned counsel for the petitioner submitted that the petitioner had deserted the force and he has been removed from the service, after the Enquiry Officer established the charge against the petitioner. It is further submitted that due procedure as prescribed by CRPF Rules, has been followed while conducting the departmental enquiry. 7. Heard and perused the record, produced by learned counsel for the respondents. 8. A perusal of the memorandum dated 01.06.2011 reveals that the departmental enquiry was ordered against the petitioner on the charge that the Constable (GD) Rakesh Kumar, being a member of CRPF mis-conducted. He had gone to Assam and West-Bengal for election duty. While returning back, without permission from the Competent Officer on 19.05.2011 deserted the Force at Jammu and on 21.05.2011, Rakesh Kumar on his own appeared in the Company. Prior to this also, the petitioner was dismissed vide order dated 29.12.2008 but was reinstated vide order dated 23.03.2011 issued by the IGP. 9. While returning back, without permission from the Competent Officer on 19.05.2011 deserted the Force at Jammu and on 21.05.2011, Rakesh Kumar on his own appeared in the Company. Prior to this also, the petitioner was dismissed vide order dated 29.12.2008 but was reinstated vide order dated 23.03.2011 issued by the IGP. 9. Though in the article of charge, the “desertion” has been referred to but the tone and tenor of the charge reveals that the petitioner has been removed from the service for leaving the Unit without permission of the Competent Authority. Had the petitioner been proceeded for deserting the Unit in terms of Section 9 of the CRPF Act, then the order impugned would have been quashed only for the reason that the act of the petitioner in leaving the Unit without permission for one day and joining the other day, did not satisfy the requirement of Rule 31 CRPF Rules warranting initiation of proceedings against the petitioner for desertion. The petitioner remained absent for one day i.e. 20.05.2011 and appeared on his own before his company on 21.05.2011. This Court finds from the record of the Enquiry Officer that none of the witness examined by the respondents during the course of enquiry has deposed in respect of the earlier dismissal of the petitioner and his subsequent reinstatement by the competent authority. The record of the enquiry reveals that even the order dated 23.03.2011 regarding reinstatement of the petitioner by the competent authority was not placed on record during the course of the enquiry. The reasons for reinstatement of the petitioner are also not forthcoming from the record as to whether the petitioner was reinstated because the appellate/revisional authority recognized the dismissal as illegal or reinstatement was on compassionate grounds. The Enquiry Officer without there being any record in respect of the earlier dismissal of the petitioner and order of reinstatement of the petitioner, could not have held that the charge against the petitioner was fully proved as the charge against the petitioner was also that he was habitually deserting the force. Simply, on the basis of the article of charge without there being any evidence in respect of reasons of earlier dismissal and subsequent reinstatement, the petitioner has been ordered to be removed from service particularly when the petitioner joined the company just after one day. Simply, on the basis of the article of charge without there being any evidence in respect of reasons of earlier dismissal and subsequent reinstatement, the petitioner has been ordered to be removed from service particularly when the petitioner joined the company just after one day. In “High Court of Patna v. Pandey Gajendra Prasad”, (2012) 6 SCC 357 , the Hon’ble Apex Court has held as under: “18. It is trite that the scope of judicial review, under Article 226 of the Constitution, of an order of punishment passed in departmental proceedings, is extremely limited. While exercising such jurisdiction, interference with the decision of the departmental authorities is permitted, if such authority has held the proceedings in violation of the principles of natural justice or in violation of statutory regulations prescribing the mode of such enquiry or if the decision of the authority is vitiated by considerations extraneous to the evidence on the merits of the case, or if the conclusion reached by the authority, on the face of it, is wholly arbitrary or capricious that no reasonable person could have arrived at such a conclusion, or grounds very similar to the above. 10. More so, the Enquiry Officer has not returned any finding that the leaving the unit for one day was wilful, particularly when the petitioner approached and requested Anokhay Lal for grant of leave for five days, but his request was not acceded to by him and also by OC. In “Krushnakant B. Parmar v. Union of India”, (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 wilful. Absence from duty without any application or prior permission may amount to unauthorised absence, but it does not always mean wilful. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalisation, 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. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalisation, 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 unauthorised absence from duty is made, the disciplinary authority is required to prove that the absence is wilful, in the absence of such finding, the absence will not amount to misconduct.” Emphasis added 11. Further, the punishment imposed upon the petitioner of removal from the service is also shockingly disproportionate to the alleged act of misconduct on the part of the petitioner. Just for leaving the unit without permission of the competent authority, the petitioner has been removed from the service particularly when the petitioner pleaded with his superiors for grant of leave for five days. In “Bhagwan Lal Arya Vs. Commissioner of Police Delhi”, (2004) AIR SC 2131, has held as under: “We are of the view that the punishment of dismissal/removal from service can be awarded only for the acts of grave nature or as cumulative effect of continued misconduct proving incorrigibility of complete unfitness for police service. Merely one incident of absence and that too because of bad health and valid and justified grounds/reasons cannot become basis for awarding such a punishment. We are, therefore, of the opinion that the decision of the Disciplinary Authority inflicting a penalty of removal from service is ultra vires of Rule 8 (a) and 10 of the Delhi Police (Punishment & Appeals Rules, 1980) and is liable to be set aside. The appellant also does not have any other source of income and will not get any other job at this age and the stigma attached to him on account of the impugned punishment. As a result of not only he but his entire family totally dependant on him will be forced to starve. These are the mitigating circumstances which warrant that the punishment/order of the Disciplinary Authority is to be set aside. Thus, the present one is a case wherein we are satisfied that the punishment of removal from service imposed on the appellant is not only highly excessive and disproportionate but is also one which was not permissible to be imposed as per the Service Rules. Thus, the present one is a case wherein we are satisfied that the punishment of removal from service imposed on the appellant is not only highly excessive and disproportionate but is also one which was not permissible to be imposed as per the Service Rules. Ordinarily we would have set aside the punishment and sent the matter back to the Disciplinary Authority for passing the order of punishment afresh in accordance with law and consistently with the principles laid down in the judgment. However, that would further lengthen the life of litigation. In view of the time already lost, we deem it proper to set aside the punishment of removal from service and instead direct the appellant to be reinstated in service subject to the condition that the period during which the appellant remained absent from duty and the period calculated upto the date on which the appellant reports back to duty pursuant to this judgment shall not be counted as a period spend on duty. The appellant shall not be entitled to any service benefits for this period. Looking at the nature of partial relief allowed hereby to the appellant, it is now not necessary to pass any order of punishment in the departmental proceedings in lieu of the punishment of removal from service which has been set aside. The appellant must report on duty within a period of six weeks from today to take benefit of this judgment.” 12. In “S.R. Tewari v. Union of India”, (2013) 6 SCC 602 , the Hon’ble Apex Court has held as under: “24. The question of interference on the quantum of punishment has been considered by this Court in a catena of judgments and it was held that if the punishment awarded is disproportionate to the gravity of the misconduct, it would be arbitrary, and thus, would violate the mandate of Article 14 of the Constitution. In Ranjit Thakur v. Union of India, AIR 1987 SC 2386 ], this Court observed as under : “25. But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the court martial, if the decision of the court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. 27. In the present case the punishment is so strikingly disproportionate as to call for and justify interference. It cannot be allowed to remain uncorrected in judicial review.” (emphasis supplied) 13. A perusal of the order dated 07.12.2011 passed by the appellate authority reveals that the appellate authority while passing the order has relied upon certain facts reflected in paragraph-4 of the order, which were not the part of enquiry proceedings. 14. The petitioner was 33 years of age at the time of filing of writ petition and at present he must be 44-45 years of age and at this stage of life, he won’t be in a position to get any other employment. Remanding the matter back to the disciplinary authority would further prolong the litigation particularly, when this writ petition has been pending before this court for the last 12 years. In view of what has been said and discussed above, the orders impugned are set aside. The respondents are directed to reinstate the petitioner in service within the period of one month but he shall not be entitled to any service benefit for the period w.e.f 06.09.2011 till he is reinstated into service.