Ex.Const.Praveen Kumar vs Union Of India & Ors.
2012 Latest Caselaw 2686 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

%                        Date of Decision: 24.04.2012

+                        W.P.(C) No.2409/2012


Ex.Const.Praveen Kumar                            ...      Petitioner

                                  Versus

Union of India & Ors.                              ...     Respondents


Advocates who appeared in this case:


For the Petitioner : Mr.Anupam Raina, Advocate.
For Respondents : Mr.B.V.Niren, CGSC with Mr.Utkarsh Sharma and
                     Mr.Prasouk Jain, Advocates.

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

ANIL KUMAR, J.

1. The petitioner has challenged the enquiry report dated 20th

October, 2009 and order dated 30th November, 2009 passed by the

Commandant, SSG, CISF imposing the punishment of removal from

service and order dated 16th February, 2010 passed by the Deputy

Inspector General (Personnel), SSG, CISF dismissing the appeal of the

petitioner against the order of his removal from service. The petitioner

has also challenged the order dated 12th July, 2010 passed by the

Inspector General/Airport Sector, CISF dismissing the revision petition

of the petitioner against the dismissal of his appeal.

2. The relevant facts to comprehend the controversies are that the

petitioner was chargesheeted under Rule 36 of the CISF Rules and the

following charges were framed against him:-

CHARGE -1.

No. 9721180087 Constable Parveen Kumar, SSG, CISF , Mahipal Pur, New Delhi (Now Greater Noida, UP) remained absent from duty without leave for total 34 days from 30.09.2007 to 02.11.2007, from 23.12.07 to 26.12.07 for total 4 days and from 01.2.08 to 24.3.08 for total 53 days. Therefore being the members of discipline force like CISF, the above said act of Constable Parveen Kumar, shows grave carelessness and indiscipline towards his duty.

CHARGE-2 No. 9721180087 Constable Parveen Kumar, SSG, CISF , Mahipal Pur, New Delhi (Now Greater Noida, UP) overstayed without sanctioned leave for total 09 days from 19.11.2007 to 27.1.2007, from 10.12.07 to 11.12.07 for total 2 days and from 01.2.08 to 24.3.08 for total 53 days. Therefore being the members of discipline force like CISF, the above said act of Constable Parveen Kumar, shows grave carelessness and indiscipline towards his duty.

CHARGE-3 No. 9721180087 Constable Parveen Kumar, SSG, CISF, Mahipal Pur, New Delhi (Now Greater Noida, UP), during his service tenure, has been given minor punishments seven (07) times for over stay from sanction leave and remained absent from duty without leave. From this it appears that above said force member is in the habit to over stay from leave and to remain absent from duty without leave. Therefore being the members of discipline force like CISF, the above said act of Constable Parveen Kumar, shows grave carelessness and indiscipline towards his duty."

3. The memorandum of charges was issued to the petitioner and he

submitted his representation denying the charges levelled against him.

An enquiry was conducted against the petitioner and an Enquiry Officer

namely, Inspector Ramender Singh was duly appointed. Presenting

Officer was also appointed in accordance with the CISF Rules, 2001.

Before the Enquiry Officer, the petitioner had admitted that he had

received the chargesheet. The petitioner had sought to produce

Constable Manoj Kumar, another constable also named Manoj Kumar,

Constable Harbhajan and HC/GD Mathura Prasad as defence

witnesses, and he also proposed to produce the medical certificates

issued by RML Hospital as the documents in his defence.

4. The Enquiry Officer recorded the evidence of the witnesses

produced on behalf of the respondents and also gave the petitioner the

opportunity to cross examine the said witnesses. The defence witnesses

which were proposed by the petitioner were, however, later on

withdrawn and no document was produced by the petitioner in support

of his defence.

5. On the basis of the evidence and documents before the Enquiry

Officer, he gave a report which was submitted to the disciplinary

authority on 21st October, 2009, wherein it was held that the charges

were made out against the petitioner. A copy of the enquiry report was

given to the petitioner on 26th October, 2009. The petitioner was also

given an opportunity to make a representation against the said enquiry

report. The disciplinary authority considered the enquiry report and

agreed with the findings of the Enquiry Officer holding that the charges

against the petitioner were duly established.

6. The disciplinary authority noted that the petitioner was detailed

for refresher course at RTC, Deoli with effect from 30th September, 2007

but he remained absent without leave with effect from 30th September,

2007 without any proper permission/information and reported back on

his own only on 3rd November, 2007, i.e. after 34 days of absence

without leave. On rejoining his duty, the petitioner submitted a medical

certificate & OPD slip issued by Rao Tula Ram memorial Hospital,

Jaffar Pur, New Delhi which stipulated that the petitioner was advised

medical rest with effect from 28th September, 2007 uptil 2nd November,

2007.

7. The disciplinary authority after perusing the evidence on record

also noticed that the doctor who had advised the petitioner 36 days rest

with effect from 28th September, 2007 to 2nd November, 2007 had done

so without going through any X Ray report, though the plea of the

petitioner was that he had sustained severe injury in his leg. In the

circumstances, it was held that the medical treatment report given by

the petitioner was doubtful. The disciplinary authority also noted that

thereafter, the petitioner was sanctioned 2 days medical rest with effect

from 17th November, 2007 to 18th November, 2007 and the petitioner

had to report for duty on 19th November, 2007, however, the petitioner

overstayed the leave and reported only on 28th November, 2007. After 9

days of overstay, he again submitted the OPD slips, however, on the

OPD slips it was noticed that the number of days advised for rest had

been overwritten which created doubt about the authenticity of the

medical papers produced by the petitioner. The petitioner did not

produce any witness who had treated the petitioner or who had been

conversant with his medical conditions nor produced any document in

the enquiry proceedings.

8. Thereafter, the petitioner again availed one day casual leave on

7th December, 2007 and he was to report for duty on 10th December,

2007 however, he reported for duty on 12th December, 2007 after

remaining absent for two days and the plea taken was that he had

overstayed on account of the death of his maternal uncle. However,

again the petitioner had not sought any permission for overstaying the

leave, nor had sent any intimation, nor produced any evidence to

substantiate the death of his maternal uncle.

9. Thereafter, the petitioner was detailed for night shift at Gate no. 1

for vehicle checking at CISF campus at Mahipalpur on 23rd December,

2007, but he did not report for duty and absented himself. For

absenting himself from the duty the petitioner was required to obtain

prior permission from the competent authority. However, after

remaining absent the petitioner reported on his own only on 27th

December, 2007 and the reason disclosed was his sickness. The

petitioner, however, did not produce any documents or oral evidence of

any concerned medical doctor or hospital to establish his sickness.

10. The petitioner was again detailed for vehicle checking on 1st

February, 2008 and yet again the petitioner did not turn up. It had

transpired that the petitioner had been removed from service in another

disciplinary case with effect from 25th March, 2008 and thus he was

marked as absent without leave for 53 days with effect from 1st

February, 2008 to 24th March, 2008. The disciplinary authority noticed

that the brother and wife of the petitioner had informed the unit control

room that the petitioner was hospitalised in RTM M Hospital, New

Delhi. Two call letters dated 11th February, 2008 and 10th March, 2008

were sent to the petitioner directing him to send medical papers in

support of his sickness or report immediately to the unit. But the

petitioner failed to report and also failed to provide the supporting

medical papers to the respondents.

11. The disciplinary authority thus held that the charges against the

petitioner were made out and it was also noticed that he had been

awarded four minor punishments earlier for the offences of over staying

the leave and absence without leave. On another occasion during his

posting in CISF 2RB at Mahipalpur he had been awarded two other

minor punishments for the offence of over staying the leave and

absence without leave. Another minor punishment for the offence of

absence without leave, when the petitioner was posted in CISF Unit,

SSG also came to the notice of the disciplinary authority. Thus it was

inferred that the petitioner is a habitual offender of remaining OSL &

AWL as despite several punishments he had not corrected himself. The

medical papers produced on behalf of the petitioner from Rao Tula Ram

Memorial Hospital, Jaffar Pur, New Delhi were considered and it was

held that the medical papers were doubtful and had been produced just

to cover up his OSL & AWL periods as there were lot of discrepancies in

the medical papers. It was further noted that the petitioner also could

not adhere to the official procedure to prevent from being dubbed as

OSL/AWL.

12. The disciplinary authority also noticed that though the copy of

the enquiry report was received by the petitioner on 26th October, 2009,

however, no representation was made by the petitioner against the

enquiry report and in the circumstances, it was held that the charges

against the petitioner were made out and thus the disciplinary

authority awarded the punishment of removal from service in view of

the fact that the CISF is a disciplined force and discipline is of

paramount importance and the petitioner is unfit for further retention

in the force.

13. The appeal of the petitioner was also dismissed after considering

his pleas. The pleas raised by the petitioner were that he was not given

sufficient time and opportunity to prove his case; that the petitioner

could not produce all the facts properly before the Enquiry Officer as he

was doing his duty; the Enquiry Officer had not considered the fact of

withdrawal of defence witnesses; the medical records produced by the

petitioner were not verified; the medical officers from the medical

hospitals were not summoned; that the brother and the wife of the

petitioner had sent the intimation on 1st February, 2008 about the

medical health of the petitioner; and the Enquiry Officer was biased and

the punishment awarded to the petitioner was harsh. The Appellate

Authority considered all the pleas and contentions raised by the

petitioner and dismissed the appeal by order dated 16th February, 2010.

14. The petitioner filed a revision petition against the order of

dismissal of his appeal which was also dismissed by the Revisional

authority/respondent No.3 by order dated 12th July, 2010. In the

revision petition also the petitioner had reiterated the pleas and

contentions which were raised before the appellate authority.

15. The learned counsel for the petitioner has very emphatically

contended that the enquiry report is not in consonance with Rule 36(19)

(ii) (b) & (c) of Central Industrial Security Force Rules, 2001 as it does

not incorporate the defence of the petitioner, nor does it categorically

and specifically deal with the oral and documentary evidence produced

in the case before the Enquiry Officer. According to the learned counsel,

the requirements of Rule 36 detailing the procedure for imposing major

penalty are mandatory and thus the violation of any of the said

provision shall vitiate the enquiry proceedings and consequent thereto

the punishment awarded by the disciplinary authority deserves to be

set aside. No other plea was raised by the learned counsel for the

petitioner challenging the order of removal.

16. The learned counsel for the respondents, Mr.B.V.Niren who

appears on advance notice has refuted the plea of the petitioner that the

provisions of Rule 36(19) (ii) (b) & (c) have not been complied with.

17. This Court has heard the learned counsel for the parties and has

also perused the enquiry report in detail. The statement of

Inspector/Min.K.S.Dhankad has also been perused who had

categorically deposed that the petitioner had not sent any intimation

and any application seeking permission for leave in reply to the

questions which were asked from the said witness. The petitioner had

also put to the said witness that he had sent the relevant medical

documents bearing registration No.21390 dated 1st February, 2008 and

document bearing registration No.21390 dated 12th March, 2008 and

fitness certificate dated 12th March, 2008 which facts were denied by

the said witness. The said witness, however, admitted that other

medical documents i.e. medical certificate of Rao Tula Ram Hospital

registration No.174309 dated 2nd November, 2007; registration

No.174309 dated 28th September, 2007 and registration No.204274

dated 17th November, 2007 to 27th November, 2007 were available in

the record. The enquiry report also considered the statement of

Inspector/Ex.P.K.Sharma who had denied that all the documents in

relation to the treatment of the petitioner at Rao Tula Ram Hospital

were sent and were available with the respondents.

18. Perusal of the enquiry report repels the plea of the counsel for the

petitioner that the enquiry report is in violation of Rule 36(19) (ii) (b) &

(c) of Central Industrial Security Force Rules, 2001. In paras 7 to 12 of

the enquiry report, the enquiry officer has dealt with the documents

referred to by the petitioner and the pleas and contentions of the

petitioner.

19. The relevant paragraphs of the enquiry report are as under:-

7. It is clearly evident that Const. Praveen Kumar was detailed for refresher course at RTC, Deoli wef. 30.09.2007, but he became AWL wef. 30.09.2007 without any prior permission/information of the competent authority. He reported back to the unit on his own on 03.11.2007 after remaining AWL for 34 days. On rejoining his duty, he has submitted the medical certificate & OPD slip issued by Rao Tula Ram Memorial Hospital, Jaffar Pur, New Delhi which shows medical rest wef. 28.09.2007 to 02.11.2007. The charged official has stated during the course of the departmental enquiry that he received severe injury on his right leg which was caused due to heavy dash with a motor cycle on 28.09.2007. On perusal of the medical papers produced by the charged official, it is revealed that the

treating doctor advised him 36 days medical rest wef. 28.09.2007 to 02.11.2007 without going through any X-ray report. It appears inexplicable that a medical treatment for as long as 36 days for leg injury which compelled the treating doctor to advice for 36 days medical rest without any investigation raises serious doubts about the genuity of the case.

8. He was sanctioned 02 days medical rest wef. 17.11.2007 to 18.11.2007 by the competent authority and was supposed to report for further duty in the unit on 19.11.2007. But he failed to do so and remained OSL without any authorised permission of the competent authority. He reported in the unit on 28.11.2007 after remaining 09 days OSL wef. 19.11.2007 to 27.11.2007. At the time of reporting in the unit. he has submitted the OPD) slip issued by Rao Tula Ram Memorial Hospital. Jaffar Pur. New Delhi. On perusal of the medical paper, it was evident that the number of days advised for rest have been overwritten which creates suspicion about authenticity of medical papers.

9. He was permitted to avail 01 day CL on 07.12.2007 alongwith eligible permissions and was supposed to report for further duty on 10.12.2007. But he failed to do so and remained OSL without any prior permission of the competent authority. He reported in the unit on 12.12.2007 after remaining 02 days OSL wef. 10.12.2007 to 11.12.2007 and stated that due to death of his maternal uncle, he overstayed. This shows that the charged official did not bother to seek permission from the competent authority to extend his leave, if he had any necessity.

10. On 23.12.2007, the charged official was detailed for night shift at Gate No. 1 for vehicle checking at CISF campus at Mahipalpur, but he did not report for the said duty and absented himself from his bonfaide duty without prior permission of the competent authority. He reported in the unit on his own on 27.12.2007 after remaining 04 days AWL wef. 23.12.2007 to 26.12.2007. He has stated that due to his sickness, he remained 04 days AWL wef. 23.12.2007 to 26.12.2007. But the charged official failed to produce any supporting documents which could prove his sickness.

11. On 01.02.2008, he was detailed for vehicle checking at Gate No. I of CISF Campus. Mahipalpur in `C. shift. But he did not turn up for the said bonafide duty and remained

AWI, without any prior permission of the competent authority. Since, he was removed from service in another disciplinary case wef. 25.03.2008, he was marked as AWL by 53 days wef. 01.02.2008 to 24.03.2008. However, his brother & wife had informed the unit control room stating that Const. Praveen Kumar was hospitalized in the RTMM Hospital. New Delhi. In response of their telephonic intimation, this office had sent two call up letters hearing No.F24018/CISF/SSG/Doc./Call up/08-106 dated 11.02.2008 and letter of even No. (176) dated 10.03.2008 with direction to either send medical papers in support of his sickness or report immediately in the unit. But he failed to comply with the official communications. Moreover, he did not produce any supporting documents which could justify his 53 days AWL wef. 01.02.2008 to 24.03.2008, which shows that the charged official had managed to mislead the department by sending concocted information to the unit through his family members just to cover up his intentional offence.

12. From the corroborative statements of the PW & the charged official it is revealed that Const. Praveen Kumar while posted in CISF Unit. BNP, Devas (MT) was awarded four minor punishments for the offence of OSL/AWL,. Similarly, during his posting in CISF 2RI3 at Mahipalpur, he was awarded two minor punishments for the offence of OSL/AWL. In addition, he was also awarded one minor punishment in CISF Unit. SSG for the offence of AWL."

20. From the abovenoted paras it is apparent that the defence of the

petitioner has been considered and dealt with by the Enquiry Officer

along with the oral and documentary evidence produced before the

Enquiry Officer. The plea of the petitioner that the respondents ought to

have got the record verified from the medical authorities cannot be

accepted in the present facts and circumstances. The burden was on

the petitioner to establish the documents produced by him in support of

his defence, that on account of reasons beyond his control and on

account of medical exigencies he was absent without leave and

overstayed the leave. The petitioner was given the opportunity to

examine the witnesses and relevant medical record in support of his

defence. The petitioner during the preliminary hearing had given the

names of Constable Manoj Kumar, another constable Manoj Kumar,

Constable Harbhajan and HC/GD Mathura Prasad as his defence

witnesses and had also proposed to produce the medical certificate

issued by RML Hospital as part of his defence documents.

21. For the reasons best known to the petitioner during the course of

the enquiry, he not only withdrew the names of the defence witnesses

but also did not produce the relevant record from the concerned

medical authorities and the hospitals. The petitioner cannot blame the

respondents for his failure to discharge his burden and prove his

defence by oral and documentary evidence. In the circumstances, it

cannot be held that the enquiry proceedings are vitiated on account of

non compliance of the procedure contemplated under Rule 36 of the

Central Industrial Security Force Rules, 2001 and the plea of the

petitioner in this regard is rejected.

22. The writ petition is not an appeal against the findings of enquiry

officer and the orders passed by the Disciplinary Authority and

Appellate Authority nor this court is exercising or assuming the role of

the Appellate Authority. It cannot interfere with the findings of the fact

arrived at by the respondents except in the case of mala-fides or

perversity i.e where there is no evidence to support a finding or where

the finding is such that no one acting reasonably or with objectivity

could have arrived at or where a reasonable opportunity has not been

given to the accused to defend himself or it is a case where there has

been non application of mind on the part of the enquiry officer,

disciplinary authority or if the charges are vague or if the punishment

imposed is shocking to the conscience of the Court. Reliance in respect

of jurisdiction of the High Court in exercise of its jurisdiction under

Article 226 of the Constitution of India has been placed on State of U.P

& Ors. Vs Raj Kishore Yadav & Anr., (2006) 5 SCC 673; V.Ramana Vs

A.P. SRTC & Ors., (2005) 7 SCC 338; R.S.Saini Vs State of Punjab &

Ors., JT 1999 ( 6) SC 507; Kuldeep Singh Vs The Commissioner of

Police, JT 1998 (8) SC 603; B.C.Chaturvedi Vs Union of India & Ors,

AIR 1996 SC 484; Transport Commissioner, Madras-5 Vs A.Radha

Krishna Moorthy, (1995) 1 SCC 332; Government of Tamil Nadu & Anr.

vs A. Rajapandia, AIR 1995 SC 561; Union of India & Ors. Vs Upendra

Singh, (1994) 3 SCC 357 and State of Orissa & Anr. vs. Murlidhar Jena,

AIR 1963 SC 404.

23. It also cannot be disputed that the grounds on which action of

the respondents is subject to control by judicial review are, "illegality";

"irrationality" and "procedural impropriety". The Court will not interfere

in such matters unless the decision is tainted by any vulnerability like

illegality, irrationality and procedural impropriety. Whether action falls

within any of the categories is to be established and mere assertion in

that regard may not be sufficient. To be "irrational" it has to be held

that on material, it is a decision "so outrageous" as to be in total

defiance of logic or moral standards. If the power is exercised on the

basis of facts which do not exist or reaching conclusions which are

patently erroneous, such exercise of power shall be vitiated. Exercise of

power will be set aside if there is manifest error in the exercise of such

power or the exercise of power is manifestly arbitrary. To arrive at a

decision on "reasonableness" the Court has to find out if the

respondents have left out a relevant factor or taken into account

irrelevant factors. In (1995) 6 SCC 749, B.C.Chaturvedi v. Union of

India & Ors. Supreme Court at page 759 has held as under:-

'12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to

reappreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case.'

24. The Supreme Court had also in (2006) 5 SCC 88, M.V.Bijlani Vs

Union of India & Ors. that the Judicial review is of decision making

process and not of re-appreciation of evidence. The Supreme Court in

para 25 at page 96 had held as under:

'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 analyzing 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.'

25. The learned counsel for the petitioner has not pointed out any

such illegalities, irrationalities or any procedural improprieties which

shall vitiate the enquiry report and the orders of the disciplinary

authority. It cannot be denied that while exercising the power for

judicial review what is to be seen is whether the actions of the

respondent fall within any of the categories mentioned above, has to be

established and mere assertion in this regard is not sufficient. This has

not been denied that the petitioner had been absent without leave and

had overstayed the leave which is not a normal thing. Since the

petitioner admitted his absence without leave and overstay after leave,

it was for him to give plausible and justifiable reason and to establish

the same with documentary evidence. If the petitioner failed to produce

reliable oral and documentary evidence in support of his pleas and

contentions and in the circumstances, if the respondents have held that

the charges against the petitioner have been established, it cannot be

held that the decision of the respondents is irrational. The respondents

had held that since the charges framed against the petitioner had been

proved, therefore, it is apparent that he was habitually absent without

leave and overstayed from sanctioned leave without any prior

permission/intimation of the competent authority, which in an Armed

Force like CISF, where discipline is of paramount importance is a

serious offence, and thus the serious offence on the part of the

petitioner warrants severe punishment. This Court in exercise of its

jurisdiction under Article 226 of the Constitution of India will not

substitute its inferences if any different from the enquiry officer and the

disciplinary authority so long as the inferences drawn by the enquiry

officer and the disciplinary authority are reasonably possible.

Consequently, the punishment of removal from service, which shall not

be a disqualification for further employment under the Government,

imposed on the petitioner is justified and cannot even be held to be

disproportionate consider past conduct of the petitioner.

26. The learned counsel for the petitioner has not been able to show

or demonstrate any patent error or manifest error in exercise of power

by the respondents. No such factors have been made out which will

make the decision of the respondents unreasonable or establish that

the respondents have taken into consideration any irrelevant factors

while awarding the punishment of removal from service to the

petitioner.

27. In the totality of the facts and circumstances, the petitioner has

not been able to make out any such illegality, irregularity or perversity

in the decisions of the respondents which will require any interference

by this Court in exercise of its jurisdiction under Article 226 of the

Constitution of India. The writ petition is without any merit, and it is,

therefore, dismissed.

ANIL KUMAR, J.

APRIL 24 , 2012                     SUDERSHAN KUMAR MISRA, J.
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