Delhi High Court

Pradeep Kumar Singh vs Union Of India & Anr. on 14 December, 2011

Author: Anil Kumar

*               IN THE HIGH COURT OF DELHI AT NEW DELHI

+                             WP(C) No.8213/2011

%                         Date of Decision: 14.12.2011

Pradeep Kumar Singh                                        .... Petitioner

                     Through Mr.Ranjeet Kumar, Advocate.

                                 Versus

Union of India & Anr.                                    .... Respondents

                     Through Mr.Rajinder Nischal, Advocate



CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA


ANIL KUMAR, J.

CM No.18510/2011

Allowed subject to all just exceptions.

WP(C) No.8213/2011

1. The petitioner has sought quashing of order dated 18th July, 2007

dismissing him from the service and direction to the respondents to

reinstate the petitioner into service without prejudice to any of his

rights and contentions.

2. The petitioner has contended that he was posted at 176th

Battalion CRPF when he was dismissed from service by order dated 18th

July, 2007 passed by the Commandant, 176th Battalion, CRPF, Greater

Noida. The petitioner alleged that he was appointed as constable and he

had been performing his duties to the post to the best of his ability.

3. According to the petitioner, he was declared as a proclaimed

offender and departmental proceedings were initiated against him.

Article of Charges were framed against him alleging him to be a deserter

on three different occasions. The petitioner contended that the charges

of desertion were framed against him despite the knowledge of the

respondents that the wife of the petitioner was unwell and was suffering

from acute vulnerable diseases as Typhoid and Poly menherea which

has led to her abortion of two months pregnancy.

4. The petitioner pleaded that his wife was in an acute physical

disturbed state of mind and he had to be present besides her and no

other family member was present to tackle the medical condition of his

wife.

5. According to the petitioner, he had timely appraised his senior

officer of his situation by letter dated 30th August, 2006. The petitioner

has also relied on the letter dated 4th December, 2006 which was

allegedly sent by the petitioner by registered post. The petitioner has

produced the postal receipts in respect of the alleged letters, however,

no registered acknowledgement due card has been produced nor any

certificate from the postal authorities that the registered articles sent by

the petitioner were served on the addressee.

6. The petitioner has also produced some of the medical records

pertaining to his wife in support of his plea that his wife was allegedly

suffering from certain ailments. The petitioner alleged that no show

cause notice was given to him nor the copies of the documents were

given to him and the enquiry officer by his report dated 4th April, 2007

had held that the charges against the petitioner were made out. During

the enquiry, seven witnesses were examined in support of the charges

that the petitioner absconded from duty during the period from 11th

April, 2006 to 3rd June, 2006; 28th June, 2006 to 4th July, 2006 and

15th August, 2006 to 4th November, 2006 and from 11th April, 2006 till

the date of the enquiry. During the enquiry proceedings, the

respondents also relied on the record of the petitioner's absence from

13th July, 2003 to 17th October, 2003; 26th November, 2003 to 2nd

December, 2003; 10th December, 2003 to 11th February, 2004; 19th

July, 2005 to 1st September, 2005; 18th September, 2002 to 13th

November, 2002; 19th March, 2002 to 22nd March, 2003 and 21st

November, 2005 to 20th December, 2005.

7. The medical record produced by the petitioner of his wife in the

present petition are the prescriptions dated 16th September, 2006; 17th

November, 2006 and 21st November, 2006. The blood report and other

body parameters of the wife of the petitioner has also been filed by the

petitioner with the writ petition. The reports are of during the period

November, 2006.

8. The enquiry officer, after considering the evidence which was

produced during the enquiry proceedings and noting the fact that the

petitioner did not appear despite an opportunity given to him, had

proceeded ex-parte against the petitioner and after considering the

documents and evidence on record gave the findings that the charges

against the petitioner were made out.

9. The disciplinary authority, Commandant of 176 Battalion, CRPF,

Greater Noida, accepted the report of the enquiry officer and awarded

the punishment of dismissal from service after the petitioner failed to

file reply to show cause notice given to the petitioner.

10. The petitioner preferred an appeal against the order dated 18th

July, 2007 dismissing him from service before the DIG Range

Headquarter who dismissed the appeal and upheld the order dated 18th

July, 2007 by his order dated 19th March, 2009. Against the order dated

19th March, 2009, the petitioner filed a writ petition, being CWJC

No.685/2010, before the High Court of Judicature at Patna which

disposed of the writ petition with direction to the petitioner to avail the

remedy of revision which was available to him under the CRPF Act.

After the disposal of the petitioner's writ petition by order dated 23rd

February, 2010, the petitioner filed a revision petition which was also

dismissed by order dated 16th April, 2010. The petitioner has filed the

present petition against his order of dismissal which has been

sustained in the appeal and the revision filed by the petitioner.

11. The petitioner has impugned the order of his dismissal on the

ground that throughout his service career from 2001 to 2006 there was

no adverse entry in his service record and he had an unblemished

record and the charges of desertion against him in the circumstances

are false. According to him, he is the only earning member and his wife

has been suffering from diseases since the year 2005 and, therefore, he

had applied for leave which was not granted. The petitioner has

challenged his order of dismissal also on the ground that the complete

set of documents were not provided to him nor any show cause notice

had been issued to him initiating departmental proceedings and charge

sheet. It is contended that in the circumstances the respondents have

violated the principles of natural justice. The petitioner has also made

the grievance that the enquiry officer concluded the enquiry proceedings

within two months and that the punishment of dismissal is

disproportionate to the misconduct attributable to the petitioner.

12. This Court has heard the learned counsel for the petitioner and

Sh.Rajinder Nischal, Advocate for the respondents who had appeared

on advance notice given to the counsel. From the record it has been

pointed out that the petitioner was placed under suspension on account

of his absence from the headquarter and the departmental enquiry was

initiated on 2nd December, 2006 and letter No.P.Eight-1/06-RSJ was

sent to the petitioner intimating him to appear for the preliminary

hearing and for presenting any objection and comments in writing. The

petitioner was granted time till 15th December, 2006, however, no reply

was received from the petitioner. Another letter dated 17th December,

2006 was sent to the petitioner at his residential address. This is not

disputed by the petitioner that the residential address in the record of

the respondent is the correct address of the petitioner. The petitioner

was asked to appear personally and to explain his position uptil 30th

December, 2006, however, no reply was received from the petitioner.

Since the petitioner was sent the notices at the address which is the

correct address of the petitioner, the plea of the petitioner that he had

not received any show cause notice cannot be accepted.

13. Since the petitioner did not appear despite the notices sent to

him, he cannot make any grievance about not receiving the copies of

the documents which were produced during the enquiry proceedings.

14. The petitioner was proceeded ex-parte during the enquiry and in

the present petition no grounds have been made on behalf of petitioner

for setting aside the ex-parte proceedings. Rather, what transpires from

the enquiry proceedings is that the petitioner remained absent from

2002 upto 2005 and again from April, 2006 to December, 2006 for

various periods. There are no grounds disclosed by the petitioner which

would show sufficient cause for non appearance of the petitioner during

November, 2006 and December, 2006 when notices were sent to him to

appear before the enquiry officer. If the petitioner could not appear on

account of alleged medical condition of his wife, the petitioner should

have replied to the allegations made against him. However, no copy of

any reply alleged to have been sent by the petitioner has been produced

except the copies of letter dated 31st August, 2006 and 4th December,

2006. The letter dated 31st August, 2006 is of the date prior to the show

cause notice which had been issued to the petitioner and the letter

dated 4th December, 2006 does not deal with anything regarding the

charges made against him. Rather, in the letter dated 4th December,

2006 the petitioner sought release of his salary for eight months and

requested to resolve his problem. The enquiry officer, the disciplinary

authority, appellate authority and the Revisional authority has noted

the unauthorized absence of the petitioner.

15. Rather in the brief history given in the order dated 16th April,

2010 it has been highlighted that the petitioner had not reported on

26th March, 2006 in 176 Battalion. On 11th April,2006 he had been

given local leave for one day, however, the petitioner did not appear for

the roll call and he reported for duty thereafter on 3rd June, 2006 after

52 days from 12th April, 2006 to 2nd June, 2006 and remained absent

without any justification and without availing the leave. A preliminary

enquiry was, therefore, initiated and he was awarded the punishment

by the Commandant of 176 Battalion of line arrest for seven days from

26th June, 2006 to 2nd July, 2006 along with packed drill for one hour

daily without salary and allowance. Even during the line arrest the

petitioner absconded and eloped from the line arrest on 28th June, 2006

and reported on 4th July, 2006 on his own. The petitioner thus did not

complete the punishment awarded to him from 26th June, 2006 to 2nd

July, 2006 nor the petitioner challenge the order of punishment

imposed by the Commandant of 176 Battalion.

16. The petitioner again absconded during the line arrest on 15th

August, 2006 entailing obstruction of his salary and allowance by letter

dated 23rd August, 2006 to the office of the Company Commander. The

petitioner was also sent a communication to be present on the date

failing which legal action was to be taken against the petitioner. The

petitioner was sent another communication by the headquarter of the

respondent by letter dated 9th September, 2006 to report for duty within

five days and on failure of the petitioner to report for the duty, to

initiate disciplinary action against him.

17. The petitioner did not report for duty and thereafter arrest

warrants were issued against the petitioner. The petitioner thereafter

reported on 4th November, 2006 and he was suspended by order dated

4th November, 2006. While the petitioner had reported for duty, memo

dated 13th November, 2006 was given to the petitioner for departmental

enquiry against him and he was asked to submit his reply within 10

days. However, the petitioner again absconded from the camp on 11th

November, 2006 after the initiation of departmental enquiry. The

enquiry officer also sent the communication dated 2nd December, 2006

and 17th December, 2006 at the residential address of the petitioner by

registered post asking him to come and participate in the enquiry till

30th December, 2006. On failure of the petitioner to appear before the

enquiry officer, ex-parte proceedings were initiated against him under

Section 14 of CCS/CCA Rules.

18. From the record it is also apparent that copy of the enquiry report

was sent to the petitioner by letter dated 22nd May, 2007 by registered

post and the petitioner was given time to file the reply within 15 days.

The petitioner, however, did not file any reply and consequently the

enquiry report was considered by the disciplinary authority and

accepted and the punishment of dismissal from service was awarded.

19. The learned counsel for the petitioner in the facts and

circumstances has not been able to substantiate that the petitioner was

not given any show cause notice or that the petitioner has an

unblemished record. The petitioner has not been able to show sufficient

cause for his non appearance and for setting aside the ex parte enquiry

proceedings initiated against him. From the record it is apparent that

the petitioner has been absconding and deserting the service without

any just and sufficient reason. In any case for whatsoever reason, if the

leave of the petitioner was not sanctioned, the petitioner was not

entitled to leave the service un-authorizedly.

20. Learned counsel for the petitioner has also contended that the

punishment of dismissal awarded to the petitioner is disproportionate

to his alleged misconduct of leaving the service without getting his leave

sanctioned as his wife was seriously ill and there was no one to look

after her. The petitioner was in a disciplined force and he could not

leave the service till sanctioning of his leave. Though the petitioner has

produced the copies of medical report of his wife for November, 2006,

however, he had been absenting for different periods from 2003 for

which he has not even given any explanation and has rather contended

that he had unblemished record. The pleas and contentions raised by

the petitioner cannot be accepted in the facts and circumstances.

21. It has been held by the Supreme Court that the relief granted by

the Courts should be legal and tenable within the frame work of law

and should not incur and justify the criticism that the jurisdiction of

the Courts tend to degenerate into misplaced sympathy/generosity and

private benevolence. The Supreme Court in Life Insurance Corporation

of India Vs. R.Dhandapani, AIR 2006 SC 615 has held as under:-

"9. In recent times, there is an increasing evidence of this, perhaps well-meant but wholly unsustainable, tendency towards a denudation of the legitimacy of judicial reasoning and process. The reliefs granted by the Courts must be seen to be logical and tenable within the framework of the law and should not incur and justify the criticism that the jurisdiction of the Courts tends to degenerate into misplaced sympathy, generosity and private benevolence. It is essential to maintain the integrity of legal reasoning and the legitimacy of the conclusions. They must emanate logically from the legal findings and the judicial results must be seen to be principled and supportable on those findings. Expansive judicial mood of mistaken and misplaced compassion at the expense of the legitimacy of the process will eventually lead to mutually irreconcilable situations and denude the judicial process of its dignity, authority, predictability and respectability. [See: Kerala Solvent Extractions Ltd. v. A. Unnikrishnan and Anr. MANU/SC/0885/1993: (1994) IILLJ888SC.]"

The petitioner in the facts and circumstances is not entitled for

any relief on the ground that his wife was seriously ill and that there

was no one to look after her.

22. In exercise of its jurisdiction under Article 226 of the Constitution

of India, it has always been the discretion of the High Court to interfere

or not to interfere depending upon the facts and circumstances of the

case. In Sangrila Food Production Ltd. & Anr. v. Life Insurance

Corporation of India & Anr., (1996) 5 SCC 54, it was held that the court

in exercise of its jurisdiction can take cognizance of the entire facts and

circumstances of the case and pass appropriate orders to give a party

complete and substantial justice. The jurisdiction of the High Court, in

exercise of its extraordinary jurisdiction, is normally exercisable keeping

in mind a principle of equity. Regarding the scope of judicial

interference, it was held that in (2006) 5 SCC 88, 'M.V.Bijlani v. Union

of India & Ors.' that the judicial review is of the decision making

process and it is not the re-appreciation of the evidence. The Supreme

Court had held at page 95 as under;-

"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 proceedings are not required to be proved like a criminal trial, i.e., beyond all reasonable doubts, 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."

23. The learned counsel for the petitioner is unable to show any

procedural lapses in conducting the enquiry and awarding of

punishment by the disciplinary authority after copy of the enquiry

report was sent to the petitioner. The petitioner has not been able to

make out sufficient cause for his non appearance before the enquiry

officer despite notice to him. The petitioner has not satisfactorily

explained his act of abandoning his service and remaining absent

without leave on many occasions.

24. In the totality of facts and circumstances, the learned counsel for

the petitioner has not been able to show any such illegality, irregularity

or such perversity in the order of the respondent dismissing the

petitioner from service which would require interference by this Court in