Rakesh Chandra vs State Of U.P. And Others
2018 Latest Caselaw 3203 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

(A.F.R.)
 
Reserved on 13.07.2018
 
Delivered on 11.10.2018
 
Court No. - 34
 

 
Case :- WRIT - A No. - 26935 of 2004
 

 
Petitioner :- Rakesh Chandra
 
Respondent :- State Of U.P. And Others
 
Counsel for Petitioner :- Rakesh Pandey
 
Counsel for Respondent :- S.S.C.,Deepak Verma,K.C.Sinha,Santosh Kumar Shukla
 

 
Hon'ble Sudhir Agarwal,J.

1. Heard Sri Ved Prakash, Advocate holding brief of Sri Rakesh Pandey, learned counsel for petitioner and Sri Santosh Kumar Shukla, learned counsel for respondents as well as learned Standing Counsel for State.

2. Petitioner is a Constable, enrolled in 1983 in Central Reserve Police Force, 74 Battalion (hereinafter referred to as ''CRPF') and was initially posted at Mughalsarai, District Varanasi. In 1990, he was sent on deputation in Central Bureau of Investigation, Ghaziabad (hereinafter referred to as ''CBI'). Vide order dated 31.03.1998, CBI repatriated petitioner to his parent department i.e. CRPF vide order dated 02.04.1998 passed by Superintendent of Police (Training), CBI Academy, Ghaziabad noticing that petitioner has already been repatriated and relieved from duty with effect from 31.03.1998 and also directed to report his duty to Assistant Director (Personnel), CRPF Head Quarters, C.G.O. Complex, New Delhi after availing earned leave from 01.04.1998 to 08.05.1998. However, after expiry of earned leave, petitioner did not join CRPF. A letter was issued to Commandant CRPF 74 Batallian about non-joining of petitioner, whereafter he submitted reply vide letter dated 03.10.1998 seeking medical leave stating that he is ill and under treatment in District Hospital, Ghaziabad.

3. It further appears that repatriation order was challenged before Central Administrative Tribunal, Principal Bench, New Delhi (hereinafter referred to as "Tribunal") in Original Application (hereinafter referred to as "OA") No. 779 of 1998 along with similarly placed other persons. Tribunal disposed of said application vide judgment dated 06.04.1999 and operative part of judgment read as under :-

"(i) Applicants shall be allowed to join back and continue with the respondents (CBI) only upto the date their cases are reconsidered at a very high level particularly by R-1, in the light of the guidelines enunciated by the respondents order dated 27.8.1997;

(ii) Applicants shall stand repatriated or allowed to continue with CBI at par with others, depending on the decision to be taken by R-1. This shall be done within a period of three months from the date of receipt of a certified copy of this order.

(iii) Whatever may be the decision of Director/CBI, the same shall be communicated to applicants individually at the appropriate level within the time limit as aforementioned.

(iv) The intervening period i.e. date from which they were released on repatriation treated as leave of the kind due to them and salary paid accordingly. No action shall be taken in respect of those against whom warrants of arrests have been issued or eviction proceedings for not vacating Government quarters allotted to them have been initiated.

(v) There shall be no order as to costs."

4. Petitioner then submitted joining to CBI on 11.04.1999. CBI however, challenged Tribunal's judgment dated 06.04.1999 in O.A. No. 779 of 1998 before Delhi High Court in Writ Petition No. 3392 of 1999. Vide judgment dated 22.09.1999, writ petition was allowed. Thereafter, petitioner went in Appeal before Supreme Court wherein an interim order was passed on 25.11.1999 directing parties to maintain status quo but ultimately Special Leave Petition was dismissed vide order dated 15.12.1999. Petitioner's review application was also dismissed on 02.02.2000.

5. A charge-sheet was issued to petitioner on 03.06.2000 containing four charges. The statement of article of charges reads as under :-

"Annexure-I

STATEMENT OF ARTICLES OF CHARGES FRAMED AGAINST NO. 830745538 CT RAKESH CHANDRA of 74 BN C.R.P.F.

Article-I

That the said No. 830745538 Constable Rakesh Chandra while posted in this Unit committed an act of misconduct/disobedience of order in that he was away on deputation with CBI upto 31-3-1998. On repatriation from CBI, New Delhi, he was relieved by CBI Authorities on 31-3-1998 with the direction to report to 74 BN CRPF but he did not report in due time and remained absent himself without prior written permission/leave from the competent authority. This act on the part of individual constitute an offence under Section 11 (1) of CRPF Act-1949.

Article - II

That No. 830745538 Ct Rakesh Chandra on expiry of deputation period was relieved by C.B.I. Authority on 31-3-1998 with direction to report 74 Bn CRPF after availing 39 days E/L upto 8/5/1998 sanctioned to him enroute by CBI Authorities but he did not report on duty in time with one or another reasons which constitute an offence punishable under Section 11 (1) of CRPF Act, 1949.

Article -III

Despite of repeated correspondence regarding to repeat on duty, he did not report on duty and disobey the good order of the force. He reported at his own at DAD (Lines), Deputy General, CRPF, New Delhi on 28-3-2000 (FN) after unauthorized absence of 689 days w.e.f. 9-5-1998 to 27-3-2000 which constitute an offence punishable under Section 11 (1) of CRPF Act, 1949.

Article - IV

That No. 830745538 Constable Rakesh Chandra on expiry of deputation period was relieved by CBI Authorities on 31-3-1998 with the direction to report to parent Department. But he reported at DAD (Lines) Deputy General CRPF, New Delhi on 20-3-2000 (FN) after remaining absent himself for 689 days. As per movement order issued by DAD (Lines) Deputy General CRPF, New Delhi issued on 29.03.2000, the said No. 830745538 Constable Rakesh Chandra was relieved from Deputy General CRPF on 29.03.2000 (AN) with the direction to report to this Unit without any Joining Period but the said Constable reported to this Unit on 7-4-2000 (FN) after again overstaying himself for 9 days without any reason. Accordingly, he remained himself on unauthorized absence from duty for total 689+9 = 698 days which constitute an offence punishable under Section 11 (1) of CRPF Act, 1949"

6. Petitioner submitted reply dated 21.07.2000 denying allegations of misconduct levelled against him. Enquiry Officer submitted report on 29.10.2000 holding charges proved. A copy of Enquiry Report furnished to petitioner vide letter dated 03.11.2000 whereagainst petitioner submitted his representation dated 20.11.2000. Thereafter, punishment order was passed on 30.11.2000 by Commandant, 74 Batallian, CRPF Smailpur, Jammu (J & K) imposing punishments of; dismissal treating period of absence from 10.05.1998 to 06.04.2000 as "Dies Non"; forfeiture of all medals and decorations earned by petitioner during the period of service; recovery of deficiency of kit, if any; and striking off from the strength of the unit.

7. Petitioner preferred an appeal which has been rejected by Deputy Inspector General, CRPF, Chandigarh by order dated 20.04.2001. Petitioner then preferred revision which has been decided by Additional Director General, North West Zone, CRPF, Hallomajra, Chandigarh vide order dated 10.12.2001. Revisional Authority while holding charges proved against petitioner and confirming findings of Disciplinary Authority as well as Appellate Authority, however, has modified punishment order by setting aside dismissal and instead imposing punishment of "reduction of pay by three stages from Rs. 3500/- to Rs. 3275/- in the pay scale of Rs. 3050-4590/- for a period of three years with effect from 15.11.2001". It has further provided that during the period of reduction, petitioner will not earn increments after expiry of three years reduction will not have the effect of postponing future increments. Period of absence is however, directed to be treated as leave without pay.

8. Period of absence, thereafter, has been regularized as earned leave with half pay vide order dated 07.01.2001 in the following manner :-

01.04.1998 to 29.06.1998

90 days Earned Leave.

30.06.1998 to 31.12.1998

185 days Half Pay Leave.

01.01.1999 to 09.06.1999

160 days Half Pay Leave.

10.06.1999 to 30.06.1999

21 days E.O.L.

01.07.1999 to 10.07.1999

10 days Half Pay Leave.

11.07.1999 to 31.12.1999

174 days E.O.L.

01.01.2000 to 10.01.2000

10 days Half Pay Leave.

11.01.2000 to 21.02.2000

42 days E.O.L.

9. Petitioner after reinstatement joined on 02.02.2002 (after noon) and by order dated 18.03.2002 his salary was fixed on 03.02.2002 at Rs. 3275/-. Petitioner then applied for voluntary retirement but he has been informed that such request can be considered after completion of period of punishment and also on the ground that period of absence cannot be treated as qualifying service.

10. Punishment orders have been challenged by learned counsel for petitioner on the ground that absence was not without any reason. The fact is that repatriation order was challenged by petitioner in Tribunal successfully wherein an order was passed that petitioner shall be allowed to join back in CBI till his case is reconsidered by CBI. Tribunal's judgment dated 06.04.1999 was not stayed by High Court though subsequently, writ petition was allowed on 22.09.1999. Supreme Court passed an order dated 25.11.1999 directing parties to maintain status quo though appeal was ultimately dismissed on 15.12.1999. It is urged that in view of above facts, absence cannot be treated as a 'misconduct'.

11. Learned Standing Counsel appearing on behalf of respondents, however, submitted that despite repatriation petitioner did not join, therefore, his absence is deliberate and has rightly been treated as 'misconduct', hence no interference is called for.

12. Having considered the rival submissions in the facts of this case, I find that punishment imposed upon petitioner is not in accordance with law.

13. Record shows that OA No. 779 of 1998 filed before Tribunal resulted in an interim order till 22.04.1998. Subsequently, it does not appear that any interim order was continuing but fact remains that Tribunal allowed said OA vide judgment dated 06.04.1999 and permitted petitioner to join back in CBI. Judgment of Tribunal was set aside by High Court and appeal was dismissed by Supreme Court but since there was a continuous litigation in the matter, it is difficult to hold that absence of petitioner for entire period was without any reason. An unauthorized absence which is without any valid explanation, is a "misconduct" and not every unauthorized absence.

14. Dealing with this issue, Court in Krushnakant B. Parmar Vs. Union of India and another (2012) 3 SCC 178, in para 18 and 19 of the judgment, held as under:

"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 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 unauthorisedly 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." (Emphasis added)

15. In the present case, respondent-Authority/Disciplinary Authority has not applied its mind to aforesaid aspect of the matter and entire period of absence has been treated as misconduct and offence under Section 11(1) of CRPF Act, 1949.

16. In fact, act of petitioner in resorting to judicial process has not been appreciated by respondents-competent authorities but treated as an illegal act on his part and this approach of respondents-authorities cannot be appreciated. The order passed by Appellate Authority in para 4(i)(ii) clearly shows the spirit in which authorities have considered petitioner's recourse to legal remedies in a contemptuous manner. Appellate Authority also admits that petitioner has submitted medical documents dated 16.02.2000, 28.03.2000 and 07.04.2000 and there is nothing to show that these documents are forged and fictitious or otherwise unreliable, still they have been discarded only on the ground that same are not sufficient to explain unauthorized absence for the entire period of 698 days. The aforesaid period included the period when interim order of Tribunal was operating; when petitioner having a judgment of Tribunal in his favour and there was no stay by High Court and also the period of which petitioner submitted medical documents i.e. from 09.05.1998 to 27.03.2000. Revisional Authority, in para 5, has observed that petitioner has pleaded guilty of the charges though in the reply submitted by petitioner to Charge-sheet, this Court finds no admission of charge as such. Reply shows that petitioner in fact replied charge-sheet giving explanation of absence. Therefore, absence was admitted but not the allegations of 'misconduct' or the allegation of 'unauthorized absence' constituting 'misconduct'. This is clearly a misreading on the part of Revisional Authority that petitioner has pleaded guilty of charges. Revisional order further mentions that interim order was passed by Tribunal on 07.04.1998 and on 05.04.1999 Tribunal allowed Original Application, still for the entire period, absence of petitioner has been taken as 'unauthorized absence' constituting 'misconduct' though he had a valid reason under the authority of order of Tribunal. Respondents-authorities cannot sit over the said order of Tribunal and the fact that subsequently judgment of Tribunal was set aside by High Court, cannot be treated as absence on the part of petitioner without any valid reason or without any authority of law. As already discussed above, every 'absence' is not a 'misconduct' and if there is some reason or explanation or authority of law such an 'absence' cannot be treated to be 'misconduct' so as to form basis for imposing a punishment.

17. Since period of absence, therefore, has not been properly considered and petitioner has been held guilty in a mechanical manner treating entire period of absence as constituting 'misconduct', in my view punishment, Appellate and Revisional orders are not sustainable in the eye of law.

18. In the result, writ petition is allowed. Impugned orders dated 03.07.2000, 30.11.2000, 20.04.2001, 10.12.2001 and 31.07.2003 (Annexures- 4, 6, 7, 8 and 11 to the writ petition) are hereby set aside. If petitioner has already applied for voluntary retirement, respondents may consider his application for voluntary retirement in accordance with relevant statutory provisions, expeditiously.

19. No costs.

Order Date :- 11.10.2018

Siddhant Sahu/PS