Ex.Sepoy/Driver Mahesh Kumar vs Union Of India & Ors.
2010 Latest Caselaw 1267 Del

*    IN THE HIGH COURT OF DELHI AT NEW DELHI


+                      W.P.(C) No.1353/2010

                                   Date of Decision: 8th March, 2010

     EX.SEPOY/DRIVER MAHESH KUMAR        ..... Petitioner
                    Through Mr. Somvir Singh Deswal, Adv.

                 versus


     UNION OF INDIA & ORS.                 ..... Respondents

Through Mr. A.K. Bhardwaj, Adv. with Mr. Anuj Aggarwal, Adv. & Mr. Gaurav Khanna, Adv. for UOI.

CORAM:

HON'BLE MS. JUSTICE GITA MITTAL HON'BLE MR. JUSTICE VIPIN SANGHI

1. Whether reporters of local papers may be allowed to see the Judgment? No

2. To be referred to the Reporter or not? No

3. Whether the judgment should be reported in the Digest? No

GITA MITTAL, J (Oral)

1. By this writ petition, the petitioner assails an order dated 9 th

January, 2004 passed against him pursuant to an inquiry under

Section 11 (1) of the Central Reserve Police Force Act, 1949

(hereinafter referred to as "CRPF Act, 1949" for brevity) on account of

his continuous absence without leave from the 21st April, 2003. It is

stated that the petitioner was sanctioned leave w.e.f. 19th February,

2003 to 19th April, 2003. As per the order dated 9 th January, 2004 of

the disciplinary authority passed on the report of the inquiry officer,

the petitioner failed to respond to the communication dated 12th May,

2003 requiring him to join duty immediately. The petitioner was

communicated the memorandum of charges by a letter dated 6 th

August, 2003 enclosing also the allegations of misconduct and

misbehaviour in support of the charges. The respondents also sent

the list of documents and list of witnesses on the basis of which the

allegation against the petitioner was sought to be proved, to the

petitioner at his residential address.

2. The disciplinary authority appointed Shri Kalyan Singh, Assistant

Commandant of the 13 battalion as the inquiry officer to conduct the

proposed inquiry. The inquiry officer also issued communication

dated 22nd August, 2003 to the petitioner informing him of the conduct

of the inquiry and required him to report immediately for this purpose.

The petitioner was also informed that in case he fails to report then

the matter shall be proceeded against ex parte against him. The

petitioner failed to either appear before the inquiry officer or give any

information with regard to his absence.

3. In this background, the inquiry officer was compelled to record

ex parte proceedings against the petitioner. Statements of two

witnesses were examined on 21st October, 2003. Copies of the

statement of the prosecution witnesses were sent to the petitioner by

registered post at his residential address in terms of Rule 27 (c) of the

Central Reserve Police Force Rules, 1955 (hereinafter referred to as

"CRPF Rules, 1955" for brevity) by the inquiry officer under cover of a

letter dated 22nd October, 2003. The petitioner was once again given

an opportunity to submit a statement of evidence in his defence by

this communication but he failed to respond to the same. In this

background, the inquiry officer completed the proceedings and

submitted his inquiry proceedings dated 4th November, 2003 to the

disciplinary authority.

4. It is noteworthy that a copy of the inquiry report was also sent

to the petitioner under the cover of a letter dated 28th November,

2003. The petitioner was again given an opportunity to comment

upon the departmental inquiry as well as the report of the inquiry

officer. The respondents directed the petitioner to produce his

statement in writing with complete evidences failing which it would be

considered that the petitioner agreed completely with the report of

the inquiry officer.

5. Even this evoked no response at all from the petitioner. In this

background, the disciplinary authority carefully perused the report of

the inquiry officer and arrived at a conclusion that proceedings have

been conducted as per the applicable rules. The petitioner was found

to be guilty of the charges of having been absent from duty without

prior permission of the competent authority and without information

of proceeding on leave amounting to disobedience of order and

dereliction of duty. Consequently, in exercise of powers under Section

11 (1) of the CRPF Act, 1949 and Rule 27 of the CRPF Rules, 1955, the

penalty of removal from service was imposed upon the petitioner

which was effective from the date of issuance of the order. That

disciplinary authority further directed that the petitioner's period of

unauthorised absence from leave w.e.f. 21st April, 2003 till the date of

the order by the disciplinary authority shall be treated as "dies non"

and also that the petitioner would not be entitled to pay, allowances

and other benefits for the period w.e.f. 21st April, 2003.

6. We find from the record placed before us and the averments in

the writ petition that the petitioner has not bothered to even inform

the respondents with regard to his proposed absence w.e.f. 21st April,

2003.

The petitioner has placed before us a copy of the purported

letter dated 24th October, 2008 wherein the petitioner has vaguely

mentioned "some family unavoidable circumstances" resulting in his

inability to join duty after a lapse of two months. A vague reference

to "umpteen number of letters" to the commandant is also made.

Interestingly, the petitioner sought information from the commandant

with regard to steps taken in respect of his service. We find that in

para 4 of this letter, the petitioner has clearly stated that if he had

been removed from service, then his GPF, Risk Fund, GIS Fund and

other benefits be sent to him. The petitioner further stated that he

had informed the respondents of his account number by the letter

dated 16th December, 2004.

7. Before us, it has been contended that the petitioner was not

aware of the proceedings conducted by the respondents. The above

narration would show that every reasonable step was taken by the

respondents before they proceeded to conduct the disciplinary inquiry

against the petitioner. It is the petitioner who failed to respond to the

several letters sent by the respondents. The communication dated

24th October, 2008 suggests that the petitioner was aware of the fact

that disciplinary action against him stood taken. Even in this

communication, the petitioner did not seek to resume duty but sought

release of his monetary benefit in case he has been dismissed.

8. No procedural infirmity is pointed out in the conduct of the

disciplinary inquiry. Learned counsel for the petitioner has also not

been able to place violation of any statutory provisions or principles of

natural justice.

9. We may also find that the impugned order was passed against

the petitioner on 9th January, 2004. There is not a whisper of an

explanation for the delay and laches in filing the present writ petition.

For all these reasons, we find no merit in this writ petition which

is hereby dismissed.

However, in view of the order of dismissal dated 9th January,

2004, it is directed that in case any monetary amounts as per rules

are due to the petitioner on any account, the same may be processed

as per applicable rules and forwarded to the petitioner within a period

of eight weeks from today.

GITA MITTAL,J

VIPIN SANGHI, J MARCH 08, 2010 aa