Satish Kumar Sharma vs Union Of India And Others
2012 Latest Caselaw 1038 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

								Reserved on 16.2.2012
 
								Delivered on 30.4.2012
 

 
Case :- WRIT - A No. - 36418 of 2003
 

 
Petitioner :- Satish Kumar Sharma
 
Respondent :- Union Of India And Others
 
Petitioner Counsel :- D.K. Srivastava
 
Respondent Counsel :- Ssc,A N Roy
 

 
Hon'ble Mrs. Sunita Agarwal,J.

Heard Sri D.K. Srivastava, learned counsel for the petitioner and Sri A.N. Roy, learned counsel appearing for respondents.

The petitioner, by means of present writ petition, has challenged the order dated 13/14.7.1993 passed by the respondent no. 4 dismissing the  petitioner  from service on account of fact that the petitioner did not join his place of posting and remained  unauthorisedly absent  from duty.

The case of the petitioner is that he was posted in the office of  respondent no. 4 at  P.T.P.S., Kanpur and was  transferred  vide order dated 31.10.1992 to  D.H.E.P., Dulhasti, District  Doda, Jammu & Kashmir.  He  was  relieved on 2.12.1992 and was required to join at the place of his posting.  He further says that  since  12 days' time  was granted to  join at the place of  transfer, he   broke his journey and  went to  his native  place  at  Gwalior  on account of the fact that his wife was in pregnancy  period and her position was very  critical.  He  also  fell seriously ill at Gwalior  and  therefore  applied for leave narrating the situation. The petitioner  submitted  an application to the  Commandant  at the CISF Unit, D.H.E.P., Dulhasti, Kishtwar, Doda, Jammu & Kashmir for  extension of his  leave on the  ground stated  above.

According to the petitioner, the leave application submitted  by him was  not  entertained  on the  ground that he did not submit any documentary evidence with the application. A copy of the letter dated 24.11.1992 in this regard has been annexed alongwith the writ petition. He further submits that after receiving the fitness certificate from the doctor and delivery of his wife, he went to the place of posting i.e. Dulhasti, Doda, Jammu & Kashmir for reporting to join the duty. However, the Commandant of CISF did not allow him to join. The petitioner further submits that he submitted medical certificates of himself and the discharge certificate of his wife dated 1.1.1993 and 14.11.1992 respectively; leave application sent by him alongwith the medical certificate narrating the conditions for not being able to join the duty though supported by documentary evidence was not duly attended to. On the other hand, a charge sheet dated 9.3.1993 on the allegation that he has absconded from duty and did not join at the place of posting, was issued and served upon him. He submitted a detailed explanation to the enquiry officer within time allowed thereunder. He specifically mentioned that the leave application was submitted alongwith the medical certificate regarding extension of his leave. Further submission of the petitioner is that despite there being cogent reasons given by the petitioner for his stay at Gwalior the respondent authorities initiated an ex-parte enquiry without serving any notice to him and without following procedure under Section 8 of the Central Industrial Security Force, 1968(herein after referred to as the 'Act'). The dismissal order dated 13/14.7.1993 has been illegally passed. He preferred an appeal within time before the respondent no. 3 which was rejected vide order dated 2.12.1993. The dismissal order and the appellate order were challenged by him in the Revision filed under Section 9 of the Act which was also dismissed vide order dated 12.1.1995. A Mercy Petition was also filed by the petitioner which was rejected by the Directorate General, CISF (Ministry of Home Affairs) and was communicated vide letter dated 7.8.2000. The Mercy Petition was not entertained on the ground that there is no provision in the Act to consider the same.

The contention of the petitioner is that as there is provision under Section 9(3) of the Act whereby the Central Government may call for and examine the record of any proceedings and may make such an enquriy and pass such an order thereon, in view thereof the ground on which the Mercy Petition was dismissed cannot be sustained.

Further, the submission of the petitioner is that the punishment awarded to him of dismissal on the ground of absence from duty is highly disproportionate and there was no occasion to award major penalty of dismissal. Even otherwise the order of dismissal having been passed without giving any notice and the enquiry proceeded ex-parte is a clear case of flagrant violation of the principles of natural justice and in the circumstances, the order of dismissal is liable to be quashed by this Court.

It may be noted that challenging the dismissal order, the petitioner filed a writ petition no. 2133 of 2000 (S.K. Sharma vs. Union of India & others) in the High Court of Judicature of Madhya Pradesh, Jabalpur Bench at Gwalior with the prayer of quashing of the order of dismissal, appellate order, revisional order and the order passed on the Mercy Petition as mentioned above. The said writ petition was dismissed on the ground of jurisdiction and the petitioner was granted liberty to file petition before appropriate court having jurisdiction to decide the dispute. The order on the aforesaid writ petition was passed on 12.3.2003 by the High Court of Judicature of Madhya Pradesh, Jabalpur Bench at Gwalior.

The petitioner further stated that he lost all the papers with him on account of the fact that after dismissal he suffered from mental depression and further prayer made by him to provide the copies of the documents was refused by the respondent authorities. In the circumstance, he requested that the Court may direct the learned counsel for the Union of India to supply the complete documents relating to punishment order passed again him. This Court vide detailed order dated 24.7.2009 directed the learned counsel for the Union of India to supply all the documents as enumerated in the order itself. In compliance of the said direction, a supplementary affidavit dated 27.9.2009 was filed by the learned counsel for the respondents bringing on record the enquiry report, the order dated 13/14.7.1993 imposing punishment upon the petitioner, appellate order dated 2.12.1993, the revisional order dated 12.1.1995 as Annexure SA-1 to SA-4.

Repelling the submission of the petitioner, a detailed counter affidavit has been filed on behalf of the respondents bringing on record various communications sent to the petitioner from time to time. It was stated therein that the petitioner after being relieved from CISF Unit PTRS, Panki instead of joining his duty, sent an application to the Commandant CISF Unit at the place of joining. With reference to the said application a communication dated 24.11.1992 was sent by the Deputy Commandant CISF, DHEP, Dulhasti Kistwar, Doda (Jummu & Kashmir) whereby it was informed that the application received from the petitioner for extension of leave due to self sickness and wife's delivery has been submitted without any documentary evidence. This apart, as the petitioner has not joined his duties in the said unit, no action could be taken against him by the new unit as per Para 1.2 of Discipline Manual and the Deputy Commandant CISF unit , PTPS, Panki Kanpur was requested to take necessary action at his own. Immediately upon receipt of the said letter a communication dated 4.12.1992 was sent to the petitioner at his home address directing him to report immediately to the new unit. However, no reply was received nor the petitioner reported to his new unit. As such letter dated 16.10.1992 was sent to the Station House Officer, Police Station Daboh, Bhind (Madhya Pradesh) informing him that the petitioner who remains absent without leave and has been illegally staying at his residence, be taken into custody under information to PDPS, Panki. The Station House Officer vide reply dated 6.1.1993 informed the respondent no. 4 regarding service of warrant upon the petitioner. In his report it was stated that the petitioner was not found at his home and it was informed that he has already left his home to join his duties on 30.12.1992. This report was got verified by a villager namely Kamta Prasad who also confirmed that the petitioner was not at home. However, the petitioner did not report at Dulhasti and hence a letter dated 25.1.1993 was sent to him instructing him to join his duty and only then his leave applicative can be considered. He was required to report at the unit, Dulhasti immediately.

In the meantime, another letter dated 1.1.1993 was sent to the petitioner by registered post and a last warning was given to him to report to the unit at Panki at DHEP, Dulhasti, Doda for duty. In the said letter it was clearly stated that despite repeated letters and reminders the petitioner did not join his new unit for duty nor reported to the respondent no. 4 at unit, Panki. This act of the petitioner amounts to desertion from duty. It was further mentioned that in case the petitioner fails to comply with the order, necessary disciplinary proceedings will be initiated against him. The said letter dated 21.1.1993 was received back in the unit on 23.1.1993 with the following remark:-

(a) 'feysa ugh' fnukad 15-1-93

(b) "tkusa okys M;wVh ij igqWap x;s fygktk ls.Mj dks okfil" fnukad 18-01-93

Again, vide letter dated 6.2.1993, the respondent no. 4 informed the Station House Officer, Daboh, Bhind that the petitioner had not reported for duty and a request was made that the petitioner be taken into custody and be directed to report at DHEP, Dulhasti. He has also been informed that in case he did not report, disciplinary action would be taken against him. The said letter dated 6.2.1993 was served upon the petitioner on 24.2.1993 by the SHO, Daboh, Bhind in presence of two witnesses. The copy of the letter wherein service report upon the petitioner has been shown is annexed as Annexure CA-7 to the counter affidavit which finds place at page 37 of the counter affidavit.

Finally, a charge sheet dated 9.3.1993 was sent by registered post A.D. to the petitioner at his home address which was received by him on 22.3.1993. Despite service of the charge sheet upon the petitioner, he neither reported physically in the unit nor submitted any petition/application against Memo of charge sheet, as a result of which the Court of enquiry was ordered vide office letter dated 2.4.1993 and enquiry officer was appointed. The enquiry officer vide letter dated 3.4.1993 sent by registered post A.D. informed the petitioner about the fact and asked him to participate in the enquiry on 15.4.1993. The petitioner was also informed that he may inspect the documents which he wanted to and also take note of them. In case, he wanted to inspect the documents, a list of the same may be provided by 14.4.1993. However, the said letter was received back with the remark "'feysa ugh'" fnukad 13-4-93 and another remark "ikus okys us ysus ls bUdkj fd;k fygktk okfil" fnukad 15-4-93. Second notice was sent on 16.4.1993 by the enquiry officer by the registered post fixing 26.4.1993 which also met the same fate as happened during service of notice dated 3.4.1993. There is one more remark regarding service of notice dated 16.4.1993 which may be taken note of "rdktk fd;k tkus okys M;wVh ij gS fygktk ls.Mj dks okfil" fnukad 27-4-93. Third notice was sent on 29.4.1993 fixing 10.5.1993 which was also received undelivered with the remark dated 7.5.1993 "ikus okys ckgj gS fygktk ¼vLiLV½".

The petitioner neither received any notice regarding enquiry initiated against him nor appeared before the enquiry officer, as such he proceeded ex-parte after issuing notice to the PW 1 Inspector (Admin) CISF unit, PDPS, Panki, Kanur to appear before him. After recording the oral evidence of Hamendra Singh PW 1, Inspector (Admin) of the unit at Panki and a detailed perusal of the documentary evidence, the enquiry officer concluded the enquiry and submitted a report dated 18.5.1993. In his concluding remark the enquiry officer has stated that the petitioner disobeyed order of his superior officers and this act of the petitioner is an act of indiscipline and misconduct. However, he clearly defied the order of the respondent authorities and did not even cooperate in the enquiry initiated against him. As such, the disciplinary authority i.e. respondent no. 4 proceeded to pass an order of dismissal of the petitioner from service in accordance with the Rules. It was also mentioned in the said order that he may file an appeal before the authority within a period of 30 days.

Learned counsel for the petitioner in his submissions by way of rejoinder affidavit vehemently argued that the petitioner had no knowledge about any of the notices alleged to have been sent by the respondents and the respondents proceeded ex-parte without taking into consideration the leave application of the petitioner. The enquiry report was not served upon him. In reply to various paragraphs of the counter affidavit, the petitioner in the rejoinder affidavit stated that no question arose to submit any explanation in reply as he did not receive any letter/communication as alleged. The petitioner (deponent of the rejoinder affidavit) was living at Gwalior but the respondents had sent all the letters to Daboh, District Bhind. The entire proceedings are vitiated being ex-parte and without following the principles of natural justice. The petitioner was not living at Daboh and was in Gwalior and as such there was no occasion for him to refuse to receive any notice sent by the respondent.

Learned counsel for the petitioner further laid much stress in arguing the punishment of dismissal in the matter of overstaying of leave is disproportionate punishment. He submits that the petitioner duly submitted a leave extension application and merely overstaying the period allowed to him for joining at new place, such situation does not warrant major punishment of dismissal by concluding an ex-parte enquiry without providing any opportunity of hearing to the petitioner. The punishment awarded is in violation of Articles 14,16, 21 & 311 of the Constitution of India.

Heard learned counsel for the parties and perused the record.

A perusal of the record shows that the petitioner was transferred as a consequence of his service from one unit of CISF to another unit. The transfer order dated 31.10.1992 categorically mentions two dates i.e. the date of departure as 1.11.1992 and the date of leaving from the unit as 2.11.1992. Further perusal of the transfer order shows that the petitioner was issued railway warrant serial no. 50955 for his journey from Kanpur Central to Jammu Tavi. He was ordered to proceed to his new unit immediately and was further directed to inform the unit at Panki, Kanpur and the Head Office etc. soon after his reporting at the new unit. The order dated 31.10.1992 issued was infact an Office Movement Order and it gave no scope to the petitioner to divert his journey to any other destination as stated by him.

The fact of the petitioner of having not joined the duty and diverted his journey came to the knowledge of the respondent no. 4 only when a letter dated 24.11.1992 written by the Deputy Commandant, CISF, DHEP, Dulhasti, Doda (Jammu & Kashmir) was received. Soon after receiving the information that the petitioner had diverted his journey and further moved an application to the new unit for extension of leave on the ground of sickness of his wife and himself. The respondent no. 4 issued various letters to the petitioner directing him to join his duty immediately. The petitioner had received one of the letters dated 6.2.1993 which was sent through Station House Officer, Police Station Daboh, District Bhind on 24.2.1993 in presence of two witnesses. He was warned vide the said letter dated 6.2.1993 that in case he failed to report on duty in the new unit at DHEP, Dulhasti, disciplinary proceedings would be initiated against him. The petitioner was directed to join his duty immediately. However, he did not care to reply to the directions given by his superior officers. He neither reported at the new unit nor wrote anything to the respondent no.4.

The report of the postal authorities regarding service of various notices upon the petitioner clearly shows that he petitioner willfully and deliberately evaded the service of notice upon him. He did not join the proceedings and remained absent and forced the enquiry officer to proceed ex-parte. Finally, he was dismissed from services. Soon after the dismissal from service he filed an appeal and also availed remedy of filing revision before the competent authority.

Learned counsel for the petitioner relied upon the judgment of this Court in 2002 (1) UPLBEC 325 (N.K. Musafir Yadav vs. The Commandant 47, B.N., C.R.P.F., Gandhinagar (Gujrat) & another) wherein the punishment of dismissal awarded to the employee was found to be disproportionate in view of the fact that the employee overstayed the 60 days of sanctioned leave for 49 days. The fact of the said case is different and as such the same is of no help to the petitioner.

In an another case reported in 2006(3) UPLBEC 2839 (Rajesh Pratap Singh vs. Union of India & others) the punishment of dismissal was set aside on the ground that it was highly excessive and too harsh as the petitioner was found to remain absent for 35 days without obtaining permission of the competent authority. He reported for duty by filing an application alongwith the medical certificate mentioning thereunder his illness. However, the facts of the present case are totally different from the case of Rajesh Pratap Singh (supra) and therefore, relief granted in the said case can be granted to the petitioner.

In case of Bhagwan Lal Arya vs. Commissioner of Police, Delhi and others reported in (2004)2 UPLBEC 1294 relied upon by the petitioner, the facts are that the appellant while undergoing the prescribed training, fell down on the Parade Ground. Thereupon he was sent to police dispensary. Since his condition did not improve, his relative took him to his home town in Gwalior. He remained under treatment of Government doctor there and sent application for leave on medical ground supported with the medical certificates from the competent medical authorities in accordance with the leave rules. The competent police authorities passed order for sanction of leave without pay for the period of his illness as no other leave was due to him. The case of the appellant thereunder was that since the competent authority had granted the leave, the question of issuing any charge sheet subsequently for unauthorised absence for the same period would not arise. The leave was granted to him from 7.10.1994 to 14.12.1994 vide order dated 16.1.1995. On the other hand on 15.11.1994, notice of termination from service was issued stating therein that his services stand terminated from the date of expiry of a period of one month from the date the notice is received by the appellant. The services of the appellant were terminated with effect from 31.12.1994 taking recourse to temporary service rules. The appellant made representation for reinstatement and he was reinstated with the provision that intervening period from 1.1.1995 till he was reinstated will be decided at the time of finalisation of his disciplinary enquiry. The appellant again fell ill and was on leave for several days on medical grounds and was granted leave by the respondents. In these circumstances of the case, it was argued that the appellant never misconducted and did not absent himself from duty willingly or deliberately or negligently and therefore the disciplinary authorities were wrong in holding the appellant guilty. It was also contended that absence on medical ground with proper medical certificates would not be termed as grave misconduct in terms of the rules. In the said case, the appellant had absented himself for two months and odd on medical ground and in the circumstances, the Apex Court has held that the punishment of removal from services imposed on the appellant was not permissible to be imposed as per service rules. On the other hand, in the present case, the petitioner deliberately defied the orders of the superior authorities and did not go to join at his new place of posting. The application of leave was moved to the office of new unit of posting without any documents, leave apart, the medical certificates etc. In view thereof the view taken by the Apex Court in the case of Bhagwan Lal Arya(supra) cannot be applied in the case of the petitioner.

In support of his submissions learned counsel for the respondents relied upon the judgment of the Apex Court reported in 2009(3) ESC 399(SC) Government of Andhra Pradesh vs. P. Chandramouli & another. Para 13 of the said judgment is as below:-

"It is trite that the power of punishment to an employee is within the discretion of the employer and ordinarily the Courts do not interfere, unless it is found that either the enquiry, proceedings or punishment is vitiated because of non-observance of the relevant rules and regulations or principles of natural justice or denial of reasonable opportunity to defend, etc. or that the punishment is totally disproportionate to the proved misconduct of an employee. All these principles have been highlighted in Indian Oil Corpn. Ltd. v. Ashok Kumar Arora, 1997(3) SCC 72 and Lalit Popli v. Canara Bank, 2003(3) SCC 583."

In another case of Union of India vs. Bishamber Das Dogra reported in (2009) (3) ESC 499 (SC) the Apex Court while dealing with the order of punishment of removal awarded by the disciplinary authority to the respondent who was an employee as Security Guard in CISF, had observed that the respondent employee deserted the Line at his sweet will. It was a case of gross violation of discipline. The order passed by the disciplinary authority is after issuing the show cause notice upon him and the remedy of statutory appeal and revision was availed by the respondent employee. The fact of the case did not present special features warranting interference by the Court in the limited exercise of its power of judicial review and in view thereof, the order of punishment imposed by the statutory authority has been restored.

In an another judgment of Division Bench of this Court in the case of Shreenath Upadhyay vs. State of U.P. And another reported in 2005 (2) ESC, 906 All. (DB) relied upon by the respondents, it has been held in para 39 as under:-

"39. Thus, in view of the above, the legal position can be summarised that judicial review in a disciplinary proceedings is permissible only in exceptional circumstances wherein the Court comes to the conclusion that the matter suffers from errors of law or decision is wrong for not following the fundamental procedural requirement, which have led to manifest injustice. The quantum of punishment cannot be interfered with and substituted by the Court like an Appellate Authority unless it shocks the judicial conscience being disproportionate to the misconduct and for that, reasons have to be recorded as to why the punishment is not commensurate to the delinquency. Thus, the punishment itself should be held to be arbitrary by the writ Court before interfering with it."

It is trite law that Principles of natural justice cannot be put in a straight jacket formula. Its application depends upon the facts and circumstance of each case. To sustain a complaint of noncompliance with the principles of natural justice, one must establish that he has been prejudiced thereby for non-compliance with the principles of natural justice.

In the disciplinary proceedings, the scope of judicial review is limited to the extent of decision making process. The judicial review can not be extended to the examination of correctness or reasonableness of a decision as a matter of fact as it is not an appeal from the decision. The purpose of judicial review is to ensure that the individual receives a fair treatment during the course of enquiry. The truth or otherwise of the charges is a matter of further examination for the disciplinary authority to go into. The record of the present case clearly shows that the petitioner being a member of the disciplined force was bound to follow the directions of the superiors. There was no occasion for the petitioner to divert his journey after the Office Movement Order dated 31.10.1992 was issued and he was ordered to proceed to report at the new unit at DHEP, Dulhasti (Jammu & Kashmir). The plea of the petitioner that the leave application having been moved by him before the authority at Dulhasti, as such the enquiry proceeding could not have been initiated against him is not sustainable at all. The record further establishes that the petitioner was directed by various orders to immediately report to duty and he deliberately defied the orders of the superiors on one or other pretext. This apart, he deliberately avoided to receive the notice regarding disciplinary proceedings initiated against him.

The aforesaid facts clearly establishes that the petitioner was provided full opportunity to defend himself. However, he chose not to defend himself . Thus in the facts of the case, the order impugned can not be interfered on the ground of non-observance of the principles of natural justice or denial of reasonable opportunity to defend.

In view of the discussion, it can be safely concluded that the petitioner committed an act of gross indiscipline and the order of the disciplinary authority cannot be faulted as there is no lacuna in the decision making process.

The plea of violation of natural justice is not available to the petitioner in the facts and circumstance of the present case.

So far as the punishment awarded to the petitioner, suffice is to say that quantum of punishment cannot be interfered with and substituted by the Court like an appellate authority unless it shakes the judicial conscience being disproportionate to the misconduct.

In view of the facts and circumstance discussed above, no interference in the order of punishment is warranted in as much as the same does not fall in the exceptional circumstances wherein the Court can interfere. The orders impugned in the present petition do not warrant any interference by this Court.

The writ petition is hereby dismissed.

Order Date :- 30.4.2012

P.P.