Chattisgarh High Court
Aswani Kumar Dubey vs Union Of India on 15 January, 2025
Author: Rajani Dubey
Bench: Rajani Dubey
1
2025:CGHC:2544
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Order reserved on : 05-11-2024
Order passed on : 15-01-2025
WPS No. 2347 of 2015
Aswani Kumar Dubey S/o Late Shri Shyam Murari Dubey Ex. CT/Cook
No. 040640044, d/139 bn CRPF, Kondagaon Chhattisgarh, presently
R/o village - Chandauli Post- Deidiha, Tah.- Gola Bazar, Distt.-
Gorakhpur Utter Pradesh Pin- 273409, Uttar Pradesh
... Petitioner
versus
1 - Union Of India Through Director General (D.G.) C.R.P.F.
Government Of India, New - Delhi.
2 - Inspector General, HQ Western Sector, Central Reserve Police
Force, Navi Mumbai 40 M.S.
3 - Deputy Inspector General Central Reserve Police Force, Nagpur
Range, 440019 Maharashtra
4 - Commandant, 139 Battalion, Central Reserve Police Force,
Kondagaon, Distt- Bastar Chhattisgarh.
... Respondents
For Petitioner : Mr. Mohan Lal Kaushik and Mr. Yogesh Chandra
Sharma, Advocates.
For Respondents : Mr. Sumit Singh, Advocate.
Hon'ble Smt. Justice Rajani Dubey, J
C A V Order
In this petition, the petitioner is challenging the order dated 24.2.2012
(Annexure P/1) issued by respondent No.4 removing the petitioner
from service and treating his absence from duty from 27.10.2010 to
10.4.2011 (135 days) as dies non; the order dated 20.7.2012
(Annexure P/2) passed by respondent No.3 dismissing the appeal of
the petitioner as also challenging the order dated 24.1.2013 (Annexure
P/3) whereby respondent No.2 too has dismissed the revision of the
petitioner.
02. Case of the petitioner is in brief is that the petitioner was
appointed in Central Reserved Police Force (CRPF) in the year 2004
and enlisted as Cook on 7.7.2004. Vide movement order dated
26.2.2010 he was transferred from 64 Battalion, CRPF to 139
Battalion, CRPF, Kondagaon and was relieved on the same day to join
his duty at transferred place. However, the petitioner's wife fell ill and
was suffering from breast abscess and at the same time, petitioner's
mother was also reported to have some trouble in heart. Hence the
petitioner applied for grant of leave for treatment of his wife and mother
and after a lapse of one month he was granted casual leave for 15
days i.e. from 8.11.2010 to 26.11.2010. Thereafter the petitioner went
to his native place i.e. Village-Chandauli, Distt. Gorakhpur (UP) where
his wife and mother were residing. He started treatment of his wife in
Primary Health Center, Uruwa Bazar on 8.11.2010 and the doctor
advised for two months complete bed rest. Since there was no
progress in her condition, he visited Dr. Ran Vijaya Dubey at Maa
Vindhyavasini Neuro Clinic at Gorakhpur for treatment and during
treatment from 20.12.2010 to 29.3.2011 she was completely confined
to bed as per doctor's advice. Being a single working member in the
family and critical condition of wife and mother and their inevitable
needs of attendant, the petitioner could not report on duty by end of the
leave granted to him. As such, he was compelled by circumstances to
overstay during the period of 27.11.2010 to 10.4.2011 and reported on
duty on 11.4.2011 (morning) at Kondagaon. However, in the given
circumstances, the petitioner being over busy could not send
application on due course of time for extension of leave from
27.11.2010 and onwards. The petitioner at the time of reporting on duty
submitted all the medical documents before respondent No.4 who,
considering the issue, allowed the petitioner to continue on duty.
Meanwhile, an arrest warrant was issued by the Commandant/Judicial
Magistrate on 3.2.2011 which was later cancelled on 11.4.2011 on
account of petitioner resuming his duties.
03. Surprisingly, a departmental inquiry was instituted against the
petitioner vide memorandum No.P.VIII-8/2011-139-EC-II dated
17.4.2011 of respondent No.4 and the petitioner was served with a
copy of charge sheet along with list of documents and witnesses. After
departmental inquiry, the petitioner was supplied copy of the inquiry
report dated 12.8.2011 to which the petitioner submitted his reply
explaining in detail his overstay for 135 days. Thereafter, respondent
No.4 acting on the inquiry report, without considering the statements of
the departmental witnesses in its proper perspective and documents
on record, confirmed the findings of Inquiry Officer and vide order
dated 24.2.2012 (Annexure P/1) removed the petitioner from service
and 15 days casual leave from 8.11.2010 to 26.11.2010 with
permission to avail other leaves granted to the petitioner was
regularized against earned leave and period of his absence from
27.11.2010 to 10.4.2011 was treated as dies non with a direction that
pay and allowances of the said period would not be payable to the
petitioner.
04. The petitioner then filed an appeal before respondent No.3,
however, vide order dated 20.7.2012 (Annexure P/2), the appeal was
dismissed. The said order was challenged in revision by the petitioner
before respondent No.2 and the revision was also dismissed vide order
dated 24.1.2013 (Annexure P/3). Hence this petition.
05. Learned counsel for the petitioner would submit that the Inquiry
Officer without considering the medical documents submitted by the
petitioner has recorded his findings against the petitioner that he could
not justify his absence by medical documents. No reason whatsoever
was given by the Inquiry Officer for disbelieving the medical
documents. There was no Presenting Officer to proceed with the
charges and the Inquiry Officer himself played the role of a Presenting
Officer. The petitioner was never asked to take help of a defence
assistant out of co-workers to explain the case properly. The Inquiry
Officer and respondent No.4 were not justified in treating the admission
of the petitioner of his overstay as admission of the allegations of
disobedience of order because the petitioner had clearly explained in
detail by supporting medical documents that he was compelled by the
circumstances to overstay his leave and could not seek extension of
leave within time. It is well settled that 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. Since absence of the petitioner is the result of compelling
circumstances i.e. critical illness of his wife and mother which
prevented him from joining his duties, such absence cannot be held to
be willful. Therefore, the impugned order passed by respondent No.4 is
erroneous and liable to be set aside.
06. He would further contend that the appellate authority/respondent
No.3 has erred in holding that the petitioner did not produce valid
medical documents with regard to treatment of his wife and mother
whereas on 11.4.2014 when the petitioner reported on duty, he
submitted all the relevant medical documents. Even otherwise, validity
of the aforesaid documents was not the issue in the charge sheet and
validity of these documents was never questioned by the IO or
respondent No.4. Therefore, finding of the appellate authority that the
petitioner did not produce valid medical documents is misconceived
and baseless. As regards the documents concerning medical treatment
of petitioner's mother, the same were also faxed to the department
through Superintendent of Police, Narayanpur. Validity of medical
documents signed by the government doctor as well as the medical
practitioner could not be denied unless it was examined by the medical
experts. Respondent No.3, therefore, was not legally justified in
dismissing the appeal of the petitioner. The revisional authority also in
a mechanical manner confirmed the orders of respondents No. 3 & 4
and accordingly, dismissed the revision of the petitioner vide order
dated 24.1.2013.
07. Learned counsel for the petitioner further submitted that all these
impugned orders are liable to be set aside because the petitioner was
deprived of proper opportunity of hearing and the IO was biased. The
IO himself was playing the role of Presenting Officer (PO) by asking
questions and cross-examining every witness including the petitioner
which is against the well settled law of fair inquiry. True it is that in the
procedure prescribed in CRPF Rules for conducting departmental
inquiry, nothing has been indicated about appointment of PO or even of
providing Defence Assistant to the delinquent but the fact remains that
time and again the Hon'ble Apex Court has held that the IO is to act
independently and not as a representative of the department, meaning
thereby it is expected that the IO acts fairly and without any bias but it
has not been done in the present case. Furthermore, in view of Rule
102 of CRPF Rules, 1955, when no explicit provision in respect of
Defence Assistant is found in the Rules of 1955, then Rule 14(8) of
Civil Services (Classification, Control and Appeal) Rules will come into
play. The instructions contained in Standing Order 02 of 2017 No. W.N.
Inst/2017 Vig. circulated by Director General, CRPF (MHA), dated
12.7.2017 related to Instruction on Prevention of Sexual Harassment at
Workplaces in CRPF has made a provision of Presenting Officer and
Defence Assistant at para 5.J of the instruction. However, these
instructions have not been followed while conducting inquiry against
the petitioner and as such, the inquiry as well as the findings of the IO
is vitiated in the eye of law.
Learned counsel would next contend that the disciplinary action
initiated to impose punishment under Section 11(1) of the CRPF Act,
1949 could not be concluded in major punishment like removal from
service. In article of charges, punishment for unauthorized absence
was imposed under Section 11(1) of CRPF Act, 1949 read with Rule
27. Rule 27 does not define any misconduct and quantum of
punishment to be imposed for such a misconduct, and it only deals
with the procedure for award of punishment. Though the absence of
the petitioner was not an unauthorized absence, even then presuming
it so, removal from service is excessively harsh punishment. Since the
petitioner after removal from service has not been gainfully employed
anywhere, he is entitled to reinstatement in service with all
consequential benefits including back wages as prayed in this writ
petition.
Reliance has been placed on the decisions in the matters of
Sudhanshu Shekhar Deo Vs. Union of India and others,
MANU/BH/0701/2013; State of Uttar Pradesh and others Vs. Saroj
Kumar Sinha, (2010) 2 SCC 772; Krushnakant B. Parmar Vs. UOI,
(2012) 3 SCC 178; Union of India Vs. Ram Lakhan Sharma, (2018) 7
SCC 670 and judgment dated 30.6.2022 of the Hon'ble Apex Court in
Civil Appeal No.4059/2015 in the matter of UOI Vs. RK Sharma.
08. Per contra, learned counsel appearing for the respondents
opposing the prayer of the petitioner would submit that the petitioner
has been removed from service after considering the evidence
adduced in the departmental inquiry and affording a reasonable
opportunity of hearing and defence to the petitioner. The charges
leveled against him were found to be duly proved. His appeal was
dismissed by a well reasoned order. The appellate authority recorded a
finding that the petitioner has not submitted any valid medical record
with regard to ailment of his wife and mother and as such, he failed to
prove his absence from duty for valid reasons. The revisional authority
also noticed that the petitioner is a habitual leave taker in his short
service and overstayed his leave five times previously i.e. 1) 42 days
w.e.f. 15.11.2005 to 26.12.2005, 2) 120 days w.e.f. 26.8.2006 to
23.12.2006, 3) 3 days w.e.f. 29.10.2007 to 31.10.2007, 4) 23 days
excess journey period w.e.f. 27.2.2010 to 21.3.2010 and 5) during the
course of inquiry 15 days earned leave was sanctioned to the petitioner
on compassionate ground and he overstayed 43 days w.e.f. 15.11.2011
to 27.11.2011. It was also observed that the petitioner did not learn
from his past minor punishment awarded to him for overstaying leave
and therefore, the penalty of removal from service is in order to meet
justice as during inquiry it was established beyond doubt that he
committed an offence of disobedience/misconduct in discharge of his
duty in his capacity as a member of the Force u/s 11(1) of CRPF Act,
1949 read with Rule 27 of the CRPF Rules, 1955. Accordingly, the
revisional authority also dismissed the petitioner's revision. The
punishment imposed on the petitioner is commensurate with the
misconduct committed by him. The petitioner has not been able to
point out any irregularity or illegality in the departmental inquiry
proceeding or orders passed by the disciplinary authority, appellate
authority and the revisional authority which may warrant any
interference by this Court. Therefore, the present petition being without
any substance is liable to be dismissed.
Reliance has been placed on the order dated 23.1.2024 passed
by this Court in WPS No.2244 of 2014 in the matter of Alok Mani
Tripathi Vs. UOI and others.
09. Heard learned counsel for the parties and perused the material
available on record.
10. It is an admitted position in this case that the petitioner was
appointed in Central Reserve Police Force (CRPF) in the year 2004
and enlisted as Cook No.040640044 on 7.7.2004. He was transferred
from 64 Battalion, CRPF to 139 Battalion, CRPF, Kondagaon and was
relieved with movement order on 26.2.2010. It is also not in dispute
that on 17.4.2011 a charge sheet was issued to the petitioner for his
absence from duty and a departmental inquiry was initiated against
him. As per order dated 24.2.2012 (Annexure P/1) he was removed
from service by respondent No.4 and his appeal as well as revision
was dismissed by respondent Nos. 3 & 2 on 20.7.2012 (Annexure P/2)
and 24.1.2013 (Annexure P/3) respectively.
11. The main grievance of the petitioner is that during departmental
inquiry, no Presenting Officer was appointed by the department and the
Inquiry Officer himself cross-examined the witnesses. The Inquiry
Officer and respondent No.4 have taken incorrect view that the
petitioner accepted the allegations against him whereas he admitted
only the fact that he overstayed the leave granted to him and not
disobedience of the order and that he explained his so-called
unauthorized absence properly before the Inquiry Officer with
supporting documents. However, the Inquiry Officer did not consider
his explanation and also did not consider the medical documents
submitted. The petitioner also filed copy of the statements of witnesses
including the petitioner recorded during departmental inquiry. From
perusal of these statements it is clear that the Inquiry Officer himself
examined all the witnesses and cross-examined the petitioner. In every
statement, it is written "tkap vf/kdkjh }kjk iwNs x;s iz'u rFkk
vf/kdkjh@xokg ds mRrj".
12. The Hon'ble Supreme Court in the matter of Saroj Kumar
(supra) held in paras 28, 29 & 30 of its judgment as under:
"28. An inquiry officer acting in a quasi-judicial authority is
in the position of an independent adjudicator. He is not
supposed to be a representative of the
department/disciplinary authority/Government. His function
is to examine the evidence presented by the Department,
even in the absence of the delinquent official to see as to
whether the unrebutted evidence is sufficient to hold that
the charges are proved. In the present case the aforesaid
procedure has not been observed. Since no oral evidence
has been examined the documents have not been proved,
and could not have been taken into consideration to
conclude that the charges have been proved against the
respondents.
29. Apart from the above, by virtue of Article 311(2) of the
Constitution of India the departmental enquiry had to be
conducted in accordance with the rules of natural justice. It
is a basic requirement of the rules of natural justice that an
employee be given a reasonable opportunity of being
heard in any proceedings which may culminate in
punishment being imposed on the employee.
30. When a departmental enquiry is conducted against the
government servant it cannot be treated as a casual
exercise. The enquiry proceedings also cannot be
conducted with a closed mind. The inquiry officer has to be
wholly unbiased. The rules of natural justice are required to
be observed to ensure not only that justice is done but is
manifestly seen to be done. The object of rules of natural
justice is to ensure that a government servant is treated
fairly in proceedings which may culminate in imposition of
punishment including dismissal/removal from service."
13. In the matter of Krushnakant B. Parmar (supra) the Hon'ble
Apex Court held in paras 18, 19 & 20 of its judgment 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 wilful, 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
wilful; the disciplinary authority as also the appellate
authority, failed to appreciate the same and wrongly held
the appellant guilty.
20. The question relating to jurisdiction of the court in
judicial review in a departmental proceeding fell for
consideration before this Court in M.V. Bijlani v. Union of
India, (2006) 5 SCC 88 wherein this Court held: (SCC p.
95, para 25)
"25. It is true that the jurisdiction of the court in judicial
review is limited. Disciplinary proceedings, however,
being quasi-criminal in nature, there should be some
evidence to prove the charge. Although the charges in
a departmental proceeding are not required to be
proved like a criminal trial i.e. beyond all reasonable
doubt, we cannot lose sight of the fact that the enquiry
officer performs a quasi-judicial function, who upon
analysing the documents must arrive at a conclusion
that there had been a preponderance of probability to
prove the charges on the basis of materials on record.
While doing so, he cannot take into consideration any
irrelevant fact. He cannot refuse to consider the
relevant facts. He cannot shift the burden of proof. He
cannot reject the relevant testimony of the witnesses
only on the basis of surmises and conjectures. He
cannot enquire into the allegations with which the
delinquent officer had not been charged with."
14. In light of above decisions if the case of the petitioner is
examined, it is clear that no Presenting Officer was appointed by the
department and the Inquiry Officer himself cross-examined the
witnesses as also the petitioner. It is also clear that the petitioner
submitted medical documents relating to treatment of his wife but as
per the Inquiry Officer these documents are not reliable and valid. On
the basis of inquiry report, the disciplinary authority passed order
against the petitioner imposing major punishment of removal from
service. The appellate as well as revisional authority also did not
consider this aspect and dismissed the appeal and the revision. The
manner in which the whole departmental inquiry is conducted, it is
against the principle of natural justice resulting in serious prejudice to
the petitioner. The petitiner was not afforded reasonable opportunity of
defending his case. Being so, the impugned orders are not sustainable
in law and are liable to be set aside.
15. For the reasons stated above, the writ petition is allowed and the
impugned orders dated 24.2.2012 (Annexure P/1), 20.7.2012
(Annexure P/2) and 24.1.2013 (Annexure P/3) are hereby set aside.
The petitioner is directed to be reinstated with all consequential
benefits including 50% back wages. However, liberty is reserved with
the respondent authorities to conduct departmental enquiry against the
petitioner after appointment of Presenting Officer and affording the
petitioner proper opportunity of hearing and defence in accordance
with law.
Digitally
MOHD signed by Sd/
AKHTAR MOHD
KHAN AKHTAR
KHAN
(Rajani Dubey)
Judge
Khan
