Delhi High Court
Sunil Kumar vs Uoi & Ors. on 7 March, 2011
Author: Pradeep Nandrajog
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 7th March, 2011
+ W.P.(C) 2610/2010
SUNIL KUMAR ..... Appellant
Through: Ms.Rekha Palli, Advocate with
Ms.Punam Singh and Ms.Amrita Prakash,
Advocates
Versus
UOI & ORS. .....Respondents
Through: Mr.Ravinder Agarwal, CGSC with
Mr.Nitish Gupta, Advocate for UOI
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE SURESH KAIT
1. Whether the Reporters of local papers may be allowed
to see the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be reported in the Digest?
PRADEEP NANDRAJOG, J. (Oral)
1. Assigned the roster to hear writ petitions pertaining
to Para Military Forces, we are constrained to note that every
4th case dealt with by us pertains to a Constable or a Head
Constable of a Para Military Force overstaying leave or leaving
the unit in a state of distress and claiming that he told the
Company Havaldar Major of the reason why he was going to
his village and needless to state the Company Havaldar Major
not being the competent authority to sanction leave,
disciplinary action being taken against these Constables and
Head Constables for the misdemeanour of unauthorized
absence. Invariably, penalty imposed is of removal or
dismissal from service or one of compulsory retirement.
2. These cases have a cry for justice on the part of
the petitioners who render a tale of woes with reference to the
social conditions in their village. We highlight that each and
every case dealt with by us in this category pertains to a
Constable or a Head Constbale from a rural area.
3. On the other hand is the call of discipline raised by
a Para Military Force. We are told that the command structure
would be adversely affected if jawans are allowed to decide for
themselves as to when should they avail leave.
4. It is next to impossible to find a legal norm on which
these cases can be decided with precisions or with previous
cases being used as precedents.
5. Each case has its own story to tell and whatever we
can find with reference to past precedents is that, on case to
case basis, Hon'ble Judges of this Court and other High Courts
as also the Supreme Court have tried to blend compassion and
justice with discipline.
6. Having joined as a Constable with CRPF, petitioner
availed leave from 26.02.2008 till 11.3.2008. He rejoined duty
on 12.3.2008 but left the unit on 17.3.2008. He claims that he
verbally informed the Company Havaldar Major a fact denied
by the respondents, who additionally claim that the Company
Havaldar Major was not the competent officer to whom leave
application could be made. In any case, respondents state
that the petitioner never claims to have submitted any written
application seeking leave. He claims that he verbally informed
the Company Havaldar Major.
7. Be that as it may, petitioner joined back on
16.4.2008 and in the meanwhile a charge sheet had been
drawn up on 26.3.2008, which was served upon the petitioner
on 17.4.2008 i.e. the day next to his joining back.
8. It be noted that the petitioner remained absent for
30 days.
9. Unfortunately, for the petitioner, before the Inquiry
Officer, he gave no proof to justify his remaining absent, save
and except his verbal statement that he did so on account of
his wife having medical problems post caesarean operation;
for which he had already availed leave from 26.2.2008 till
11.3.2008.
10. The Inquiry Officer indicted the petitioner and
accepting the report of the Inquiry Officer the Disciplinary
Authority levied the penalty of removal from service vide order
dated 28.1.2009.
11. The Disciplinary Authority took the view that the
petitioner had shown cowardice inasmuch as the unit
concerned was to move to Chattisgarh, a Maoist affected area
on 18.3.2008, and opined that this was the probable reason for
the petitioner to abscond on 17.3.2008.
12. Appeal filed by the petitioner was rejected vide
Appellate Order dated 21.5.2009. Revision filed has been
turned down vide revisional order dated 8.10.2009.
13. That the wife of the petitioner had a caesarean
operation is not in dispute. That a second female child was
born to the petitioner is also not in dispute. That the child was
born during period when petitioner was sanctioned leave is
also not in dispute.
14. The petitioner who is personally present in Court
informs us that he had to rush to his village inasmuch as the
birth of a second female child was not to the liking of his
parents and his wife who had undergone a caesarean
operation was mentally disturbed and this was adversely
affecting her health. On the one hand he had the call of his
duty. On the other hand he had a commitment to his ailing
wife and the newly born female child.
15. No doubt, the petitioner is in default, but we feel
that the authorities have unnecessarily read into the conduct
of the petitioner, an act of cowardice.
16. It is not in dispute that after he was employed as a
Constable on 15.9.2001, petitioner has served in various parts
of India, including the troubled State of Tripura. It is apparent
that the petitioner is not a coward.
17. In a somewhat similar situation, pertaining to a
Constable in CRPF who left for his hometown without
sanctioned leave; on account of the medical sickness of his
mother, in the decision dated 29.4.2008 W.P.(C) 1917/2000
Const.P.Rajan Vs. UOI, a Division Bench of this Court set aside
the penalty order and directed the Revisional Authority to
reconsider the matter and impose an appropriate penalty. In
said case order passed was of dismissal from service.
18. Pertaining to a Constable in the Provincial Armed
Constabulary (UP), in the decision reported as 2010 (2) SCC
236 State of UP & Ors. Vs. Ram Daras Yadav, the Supreme
Court held that notwithstanding discipline being the backbone
of the police force requiring highest degree of discipline to be
maintained for the smooth functioning of a police force, justice
had to be tempered with said requirement. For an act of using
abusive language against his companion while on security
duty and adopting threatening postures with a rifle against
another companion; the threatening posture being akin to a
prepatory act to eliminate the companion, the Supreme Court
set aside the penalty of dismissal from service and substituted
that same to one of withholding two increments. The
respondent therein was reinstated in service with only 50%
back wages paid. It was held that the penalty was squarely
disproportionate.
19. We dispose of the writ petition quashing the
revisional order dated 8.10.2009 and remit the revision
petition filed by the petitioner before the Revisional Authority
requiring the Revisional Authority to pass a fresh order levying
an appropriate penalty upon the petitioner, which would not be
of a kind where the petitioner loses his job. The petitioner
would be reinstated in service and an appropriate penalty
would be levied. For the period post 28.1.2009 till he is
reinstated, and for which we fix the time limit as 6 weeks from
today, no wages would be paid to the petitioner. However,
said period would be reckoned in service for all other
purposes.
20. The penalty levied upon the petitioner would be of
a kind where the petitioner does not lose his job.
21. No costs.
(PRADEEP NANDRAJOG)
JUDGE
(SURESH KAIT)
MARCH 07, 2011 JUDGE
mm
