Anil Kumar Kanoojia vs Union Of India And Others
2010 Latest Caselaw 3693 Del

8
*IN THE HIGH COURT OF DELHI AT NEW DELHI

                       +       W.P.(C)No.1879/2010

                                     Date of Decision : 9th August, 2010
%

      ANIL KUMAR KANOOJIA               ..... Petitioner
                    Through : Ms. Narender Kaushik, Adv.

                      versus

      UNION OF INDIA AND OTHERS          ..... Respondents
                     Through : Ms. Sonia Sharma, Adv.


CORAM :-
HON'BLE MS. JUSTICE GITA MITTAL
HON'BLE MR. JUSTICE J.R. MIDHA

1.      Whether Reporters of Local papers may                   YES
        be allowed to see the Judgment?

2.      To be referred to the Reporter or not?                  YES

3.      Whether the judgment should be                          YES
        reported in the Digest?

GITA MITTAL, J. (Oral)

1. The present case manifests the worst abuse of process of

law possible. In as much as, there is no dispute to the material

facts giving rise to the present petition, the same to the extent

necessary are briefly noticed hereafter. It is an admitted

position that on 14th February, 2006, the petitioner was

recruited to the responsible position and post of Head

Constable with the Rapid Action Force ('RAF' hereafter) of the

Central Reserve Police Force ('CRPF' hereafter). The petitioner

sought one day's casual leave on 1st July, 2006 with permission

to avail Sunday which fell on 2nd July, 2006 without giving any

kind of explanation or reason for the same.

2. This application of the petitioner was accepted. However,

the petitioner failed to resume duties on 3rd July, 2006 and did

not at any point of time join the duties till his dismissal from

service on 21st January, 2008.

3. The respondents have pointed out that the petitioner was

due for basic training with effect from 7th August, 2006 to 3rd

November, 2006 which he could not undergo for the reason

that he failed to report on duty after 3rd July, 2006.

4. It has been pointed out that the persons who were

recruited and newly appointed as Head Constable were

assigned as Service Record Clerks.

5. So far as the reminders to the petitioner to resume duties

are concerned, the respondents have placed reliance on the

letters dated 10th July, 2006, 29th July, 2006, 14th December,

2006 and 11th January, 2007 calling upon the petitioner to

resume duties. Despite receipt of these communications, the

petitioner did not care to even respond to the same letters.

6. In this background, the respondents exercised jurisdiction

and proceeded against the petitioner in terms of Section 11(i)

of the CRPF Act, 1949 and Rule 27 of the CRPF Rule, 1955. A

memorandum of charges dated 4th August, 2007 was duly sent

to the petitioner seeking his response thereto. Upon failure of

the petitioner to respond, the respondents appointed Smt.

Santosh Rani, Assistant Commandant of the Unit as a Inquiry

Officer to inquire into the charges leveled against the

petitioner. The Inquiry officer is stated to have sent letters

dated 8th August, 2007; 18th August, 2007; 3rd September, 2007

and 11th September, 2007 calling upon the petitioner to join the

inquiry.

7. The petitioner was also given adequate opportunity to

communicate his response to the charges, etc. which were

levelled against him. It is on record before us that there was

compliance of the procedural requirements for conduct of the

inquiry. However, the petitioner failed to respond to the

entreaties of the Inquiry Officer and also did not join or contest

the inquiry. In this background, after a careful consideration of

the evidence placed before her, including the documents and

the statements of the witnesses, the Inquiry Officer arrived at a

conclusion that the charges against the petitioner stood duly

proved.

8. The report of the Inquiry Officer was also served upon the

petitioner by the disciplinary authority vide registered letter

No.1818 dated 11th December, 2007. We may note that the

petitioner was also thereby directed to submit a

representation/reply to the report of the Inquiry Officer within

15 days from the receipt of the letter. Neither any

representation nor any material was received from the

petitioner contesting the findings and conclusion of the Inquiry

Officer.

9. In these circumstances, after a careful consideration of

the entire matter, the Commandant who was the disciplinary

authority of the petitioner was left with no option but to accept

the report of the Inquiry Officer finding the petitioner guilty of

the charges levelled against him. The Commandant had further

imposed the punishment of dismissal from service upon the

petitioner in exercise of jurisdiction under Rule 27 of the CRPF

Rule, 1955 in keeping with the gravity of the offence of the

petitioner.

10. Mr. Narender Kaushik, learned counsel appearing for the

petitioner has contended that the petitioner was suffering from

grave family problems in the nature of depression of his

parents and for this reason, he had sought the casual leave and

was unable to resume duties after 3rd July, 2006. We may note

in this regard that the petitioner stated no such reason when

he submitted the application for resignation. No such reason

was also placed before the respondents in response to the

repeated communications sent by them to the petitioner to join

his duties or the several letters from the Inquiry Officer to

contest the inquiry proceedings. Even if the petitioner was

preoccupied with the sufferings of his parents, certainly

nothing prevented the petitioner from placing the same before

the respondents. Such reason certainly was not sufficient to

detain the petitioner from even addressing a single

communication to the respondents, let alone resuming duties

at any point of time. The petitioner did not even acknowledge

receipt of the communications from the respondents or contest

the inquiry report despite having been given due opportunity to

do so.

11. We may note that the respondents have made detailed

submissions with regard to the repeated opportunities given to

the petitioner to join duties for a period of almost two years.

From the rejoinder which is filed by the petitioner, we find that

there is no contest at all to the same.

12. As noted above, the petitioner had succeeded in being

appointed to a disciplined para military force. As a Head

Constable, onus was laid upon him to show his sincerity and to

abide by the discipline of the force. The petitioner has acted in

a manner most unbecoming of members of a disciplined force.

He has taken his employment for granted as if it entitled him to

treat his service in any manner as he may desire and displayed

rank indiscipline. This is not only most improper but cannot be

countenanced at all by the authorities. Certainly his conduct in

the force is indefensible.

13. The petitioner has assailed the order of dismissal before

us primarily on two grounds. He has contended that in view of

his family problems, he had sent a letter of resignation dated

28th November, 2006 and that the respondents were bound to

accept the same. This submission deserves to be noted only

for the sake of rejection. This letter sent on 28 th November,

2006 further displays the callousness with which the petitioner

has treated his responsible appointment with the force. The

letter of resignation placed before us has been sent almost four

months after the sanctioned leave of the petitioner came to an

end on 3rd July, 2006 and it has been sent after repeated

entreaties and notices from the respondents to the petitioner

to join duties. Undoubtedly, the letter has been sent as a

shield for his completely illegal and unwarranted action in not

resuming his duties and as a cover for the disciplinary action

which the petitioner appeared to be aware would follow in the

light of his aforenoticed conduct.

14. We may note the manner in which the respondents have

responded to the request for resignation of the petitioner.

Upon receipt of this letter of resignation, the respondents did

not reject the same. The respondents addressed the letter

dated 14th December, 2006 to the petitioner to report for duty

so that necessary action could be taken on his application for

discharge. The admitted position is that the petitioner did not

respond any further to this request of the respondents. On 11th

January, 2007, the petitioner was directed to hand over regular

charge of the Service Record Clerk - III where he was working

and that further action would be taken on his application for

resigning from service. As noted above, none of these

communications have deserved even any acknowledgment

from the petitioner. In view of the above, the action of the

respondents in finally rejecting the application of the petitioner

cannot be assailed on any legally tenable grounds.

15. A plea of desperation has been urged on behalf of the

petitioner by Mr. Naresh Kaushik, learned counsel representing

him. It is contended that the petitioner had not taken the oath

under Rule 9 of the CRPF Rules, 1955 and for this reason, the

inquiry under the proposed charges could not have been held

against him. It is admitted by Mr. Kaushik that, after his

enrollment on 14th February, 2006, the petitioner had joined his

appointment. The petitioner submits that he was performing

duties as the Service Record Clerk from the day of his joining

103 Battalion of the RAF of the CRPF. It is admitted before us

that the petitioner received salary, wages and all benefits and

allowances as were admissible to him from the date of his

joining. The petitioner has admitted that he was regularly

enrolled with the respondents in as much as he claims to have

sought casual leave to which he was entitled under the Rules

as well. The prayer in the writ petition refers to 'resignation'

and 'discharge' which could only be if the petitioner was a

member of the force. For this reason, we find no merit in the

submission of the learned counsel for the petitioner.

16. We may notice that the petitioner is solely responsible for

the orders which came to be passed against him. It is urged

before us that the order of dismissal could come in the way of

his future prospects with the Government. Given the above

narration of facts which have transpired in the present case, we

see no reason to have sympathy for a person who has treated

his appointment with the para military force in any manner

other than the way in which the respondents have been

compelled to deal with his conduct.

17. We may also notice that conduct of such unwarranted

actions deserves stringent actions. The respondents appeared

to have been reacted to the petitioner's absence by cajolling

him to resume duties and give him the nature of duties which

the CRPF and the para military forces are required to perform.

It has also to be noted that the respondents have taken a

period of almost two years in completing disciplinary action

and finalizing the action against the petitioner.

18. We may note that in the instant case, the petitioner does

not even suggest any explanation for his absence of two years

in the writ petition. Of course, that could not have been

considered by us while considering the merits of the action

taken by the respondents. Such actions have to be contested

in the light of materials which were before the respondents and

not on material placed in the writ petition.

19. We have found that the petitioner has failed to make out

any legal ground to support his challenge. It is trite that when

the extraordinary jurisdiction of this court under Article 226 of

the Constitution of India is invoked, the court may not exercise

the same even on the making of a legal point of the petitioner.

Several material factors which include the conduct of a person

as well as the consideration of public interest would guide

exercise of such discretion (reference has been made to the

pronouncement of the Apex Court in the case of Ramnik Lal

Bhutta & Anr. vs. State of Maharashtra 1997(1) SCC

134)

20. The petitioner also assails the appellate order dated 22nd

October, 2008 and revisional order dated 9th April, 2009

whereby the said order of dismissal has been confirmed. The

challenge to these orders is premised on the same grounds as

the challenge to the order of the disciplinary authority. For the

detailed reasons recorded hereinabove, this challenge is also

not sustainable and is hereby rejected.

21. The present writ petition is wholly misconceived and

misguided.

22. For all the foregoing reasons, we find no merit in this writ

petition. Accordingly, the same is dismissed with costs which

are quantified at Rs.20,000/-. The costs shall be positively paid

within a period of four weeks from today.

GITA MITTAL, J

J.R. MIDHA, J AUGUST 09, 2010 mk