K. Kumar, Nellore v. Union Of India Rep By Dir Gen New Delhi
2025-02-17
HARINATH.N
body2025
DigiLaw.ai
ORDER : (HARINATH N., J.) The petitioner is challenging the proceedings dated 13.07.2001 issued by the 4 th respondent dismissing the petitioner from service. The petitioner is also challenging the proceedings dated 19.04.2006 and further proceedings dated 31.05.2011 passed by the respondents 2 and 3 respectively affirming the order of dismissal dated 13.07.2001. 2. The petitioner was working as a Constable in CISF (Central Industrial Security Force). On 14.11.2000, while the petitioner was on duty, he suffered with stomach pain and after informing his shift in-charge, the petitioner left for home, and his family members shifted him to his native place. Crime No.183 of 2000, which was registered for theft of Hybrid Micro Circuit with Kengari Police. The police recovered the Circuit, which valued Rs.1,40,000/- from K.U.Subarmani. The petitioner was also allegedly involved in the commission of theft as per the statement of K.U.Subarmani. Charge sheet dated 30.12.2000 was issued to the petitioner alleging misconduct and dereliction of duty resulting in theft of Hybrid Micro Circuit. A charge on unauthorized absence was also framed. An enquiry was conducted, and after calling for explanation on the enquiry report from the petitioner, the disciplinary authority passed orders of dismissal dated 13.07.2001. 3. It is submitted that the petitioner suffered with depression after coming to know of his dismissal. It is also submitted that the petitioner underwent treatment for depression for a considerable period of time and was found fit to rejoin duty and a certificate dated 01.03.2005 was issued by the doctor. 4. The petitioner filed an appeal on 30.05.2005 challenging the order of dismissal dated 13.07.2001. It is submitted that the 3 rd respondent has not considered the medical certificate and simply rejected the appeal filed by the petitioner vide proceedings dated 19.04.2006. It is submitted that the petitioner again underwent for treatment for depression from 2006 to 2011, and after recovering, submitted a revision petition to the 2 nd respondent on 14.03.2011. The 2 nd respondent rejected the revision vide proceedings dated 31.05.2011. 5. The learned counsel for the petitioner submits that the respondents ought to have considered the medical certificate submitted by the petitioner and also the medical condition of the petitioner before imposing the severe punishment of removal from service. It is also submitted that the petitioner, the first accused, was acquitted in a criminal case. 6.
5. The learned counsel for the petitioner submits that the respondents ought to have considered the medical certificate submitted by the petitioner and also the medical condition of the petitioner before imposing the severe punishment of removal from service. It is also submitted that the petitioner, the first accused, was acquitted in a criminal case. 6. The learned counsel for the petitioner places reliance on Rule 25 of the CCS Leave Rules, 1972, and submits that Rule 77 of CISF Rules 2001 would entitle the petitioner to rely on Rule 25 of CCS Leave Rules, 1972. As such, the petitioner, at the most, would have to be treated as on leave without permission, and such leave period ought to be treated as leave period without pay. 7. The learned Central Government Counsel appearing for the respondents submits that the petitioner failed to inform anybody about his illness. It is also submitted that the petitioner was involved in theft of a Hybrid Micro Circuit worth Rs.1,40,000/- in connivance with one K.V.Subramani. It is submitted that the petitioner submitted an appeal against the order of dismissal after almost three years and ten months of passing the said order. It is submitted that as per Regulations of CISF, an appeal is to be preferred within a period of 30 days from the date of receipt of the final order. It is also submitted that the revision petition was also rejected as the petitioner failed to submit any concrete evidence of the illness with which the petitioner claims to have suffered with. It is also submitted that a detailed enquiry was conducted and the charges were found proved by the enquiry officer. It is submitted that the punishment imposed on the petitioner is just and falls for no interference from this Court. 8. Heard the learned counsel for the petitioner and the learned Central Government Counsel appearing for the respondents. 9. Considering the various aspects of the present writ petition, the petitioner has not explained the delay and latches on part of the petitioner in taking appropriate steps at the time of passing of the impugned orders. As seen from the judgment of the learned Magistrate in CC.No.7116 of 2001 on the file of III Additional Chief Metropolitan City, Bangalore, dated 23.01.2006.
As seen from the judgment of the learned Magistrate in CC.No.7116 of 2001 on the file of III Additional Chief Metropolitan City, Bangalore, dated 23.01.2006. The first accused K.U.Subramani was acquitted in a case and the case was split up against the petitioner as the petitioner was absconding. A person who was serving in a uniformed disciplinary force ought not to have absconded from the trial in a case where the petitioner is named as the accused No.2. 10. The acquittal of the first accused in the case cannot be treated as an acquittal of the petitioner and it all depends on the evidence which is placed before the Trial Court and the role assigned to the accused in commission of the said office. 11. The medical certificates dated 01.03.2005 and 10.03.2011 relied upon by the petitioner is issued by Dr.(Prof.) S.Periyasamy, formerly Professor of Medicine, Stanely Medical College and Physician and Senior Civil Surgeon, Government Stanely Hospital, Chennai. Apart from the certificates referred above, the petitioner has not placed any other document on record to substantiate the delay in taking appropriate steps against the impugned orders. 12. The medical certificates do not instill confidence of this Court as for treating Psychotic patient as Expert Psychiatrist ought to be consulted for treatment. The medical certificates indicate that the petitioner was taking treatment intermittently from the doctor named above. 13. The delay in filing of the appeal and the further delay in filing the review are not explained and the petition is hit by delay and latches and this Court cannot condone the delay in a casual manner when the respondents have conducted a thorough enquiry and imposed the punishment of dismissal from service. It is not the case of the petitioner that the respondents have not followed the principles of natural justice, nor is the case of the petitioner that the respondents have imposed the punishment without conducting any enquiry. 14. It is trite to refer to the law laid down by the Hon’ble Supreme Court in Central Council for Research in Ayurvedic Sciences and another Vs. Bikartan and others , [ [2023] 11 S.C.R 731 ] , wherein it was held that two cardinal principles of law governing exercise of extraordinary jurisdiction under Article 226 of the Constitution more particularly when it comes to issue of writ of certiorari. 50.
Bikartan and others , [ [2023] 11 S.C.R 731 ] , wherein it was held that two cardinal principles of law governing exercise of extraordinary jurisdiction under Article 226 of the Constitution more particularly when it comes to issue of writ of certiorari. 50. The first cardinal principle of law that governs the exercise of extraordinary jurisdiction under Article 226 of the Constitution, more particularly when it comes to the issue of a writ of certiorari is that in granting such a writ, the High Court does not exercise the powers of Appellate Tribunal. It does not review or reweigh the evidence upon which the determination of the inferior tribunal purports to be based. It demolishes the order which it considers to be without jurisdiction or palpably erroneous but does not substitute its own views for those of the inferior tribunal. The writ of certiorari can be issued if an error of law is apparent on the face of the record. A writ of certiorari, being a high prerogative writ, should not be issued on mere asking. 51. The second cardinal principle of exercise of extraordinary jurisdiction under Article 226 of the Constitution is that in a given case, even if some action or order challenged in the writ petition is found to be illegal and invalid, the High Court while exercising its extraordinary jurisdiction thereunder can refuse to upset it with a view to doing substantial justice between the parties. Article 226 of the Constitution grants an extraordinary remedy, which is essentially discretionary, although founded on legal injury. It is perfectly open for the writ court, exercising this flexible power to pass such orders as public interest dictates & equity projects. The legal formulations cannot be enforced divorced from the realities of the fact situation of the case. While administering law, it is to be tempered with equity and if the equitable situation demands after setting right the legal formulations, not to take it to the logical end, the High Court would be failing in its duty if it does not notice equitable consideration and mould the final order in exercise of its extraordinary jurisdiction. Any other approach would render the High Court a normal court of appeal which it is not. 64.
Any other approach would render the High Court a normal court of appeal which it is not. 64. Thus, from the various decisions referred to above, we have no hesitation in reaching to the conclusion that a writ of certiorari is a high prerogative writ and should not be issued on mere asking. For the issue of a writ of certiorari, the party concerned has to make out a definite case for the same and is not a matter of course. To put it pithily, certiorari shall issue to correct errors of jurisdiction, that is to say, absence, excess or failure to exercise and also when in the exercise of undoubted jurisdiction, there has been illegality. It shall also issue to correct an error in the decision or determination itself, if it is an error manifest on the face of the proceedings. By its exercise, only a patent error can be corrected but not also a wrong decision. It should be well remembered at the cost of repetition that certiorari is not appellate but only supervisory. 15. It is no doubt well established law that this Court can exercise its jurisdiction of judicial review if the petitioner is able to place the case of the petitioner within the exceptions carved out by the established law and the various decisions of the Hon’ble Supreme Court of India. 16. On the facts on hand in the present case, the petitioner could not place his case for judicial review by this Court on the punishment imposed by the disciplinary authority. 17. In the result, the writ petition is dismissed without costs. Pending miscellaneous petitions, if any, shall stands closed.