Ex. Asi Pradeep Kumar vs Union Of India & Ors.
2012 Latest Caselaw 1280 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           WP(C) No.7076/1999

%                       Date of Decision: 24.02.2012

Ex. ASI Pradeep Kumar                                      .... Petitioner

                      Through Mr.Sheetesh Kumar, Advocate

                                Versus

Union of India & Ors.                                    .... Respondents

                      Through Ms.Archana Gaur, Advocate.


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

ANIL KUMAR, J.

*

1. The petitioner has sought the quashing of order dated 8th April,

1998 removing him from the service on account of continuously

overstaying after joining time from 29th April, 1997 without permission

of the competent authority and the order dated 27th February, 1999

dismissing his appeal by the Deputy Inspector General.

2. Brief relevant facts are that the petitioner was appointed in the

Central Industrial Security Forces i.e. CISF as ASI/Exe (Sports Quota)

on 6th June, 1992 and was assigned number 922230059. The petitioner

was given a regular posting to CISF Unit, UTPS, Ukai on 18th April,

1997 vide movement order No.E-38014/CISF/ADM/ 97/920 dated 18th

April, 1997 with directions to report to his new place of posting i.e. at

CISF Unit, UTPS, Ukai, after availing his normal joining time of 10 days.

3. The petitioner was to join his new unit on 29th April, 1997

(forenoon) but he failed to do so and continued overstaying from joining

time.

4. The petitioner asserted that he fell sick on 27th April, 1997 and he

reported to Dr.Ram Kishan, M.D, AY, SMO Incharge, CGHS Police

Hospital, NPL Kingsway Camp, Delhi which is recognized by the Central

Government as a competent authority and that his treatment continued

up to 17th July, 1997. The petitioner had sent the medical certificate to

the Commandant by registered post. Thereafter, the petitioner was

advised to take treatment from the medical officer at Gannaur, as an

outdoor patient up until 11th May, 1998 and the petitioner had sent the

copies of all the medical certificates to his Commandant through

registered post.

5. According to the petitioner, he received a call letter dated 6th May,

1997 from the Commandant of CISF Unit, IOC (GR) Baroda and again a

letter by the Deputy Commandant of Ukai Dam Surat dated 12th May,

1997. The petitioner admitted that he was again called by letters dated

31st July, 1997 and 12th September, 1997. The petitioner also accepted

that he was served with a memorandum dated 20th October, 1997 for

overstaying the leave which amounted to gross carelessness and

indiscipline.

6. Pursuant to the memorandum dated 20th October, 1997,

Sh.S.K.Minz, Inspector/Exe. of CISF Unit, IOC (GR) Baroda was

appointed as the Enquiry Officer by order dated 24th November, 1998

who thereafter conducted an ex-parte enquiry and submitted the report

to respondent No.3 on 2nd March, 1998. The respondent No.3 thus

passed the order dated 8th April, 1998 whereby the petitioner was

removed from the service by regularizing his leave without pay.

7. According to the petitioner, though he was undergoing treatment

at the time, yet he filed the appeal dated 9th May, 1998 within the

stipulated time period before the Deputy Inspector General, CISF,

respondent no. 2. However, the petitioner disclosed that without even

giving him an opportunity of personal hearing and examining the

authenticity of the medical certificates issued by the Government

recognized doctors, his appeal was dismissed by order dated 27th

February, 1999.

8. The petitioner has challenged the order of removal dated 8th April,

1998 and the dismissal of his appeal by order dated 27th February,

1999 on the ground that overstaying leave is not a heinous crime, as

the same can be regularized against the accumulated earned leave.

Therefore, it is contended that the order of removal is not sustainable

and that in any case the order was passed without following the

procedure for imposing major penalties as provided in Rule 34 of the

CISF Rules, 1969.

9. The order of removal is also challenged on the ground that no

show cause notice was given to the petitioner for imposing the major

penalty. Reliance is placed on Sada Nand Jha & Ors. v. Union of India

& Ors, 1982 Lab. IC 936. The petitioner contended that Article 311 of

the Constitution is applicable and that consequently the petitioner

could not have been removed from the service without serving him a

show cause notice proposing the proposed punishment.

10. Relying on Rule 60 of the CISF Rules, 1969 it was contended that

the medical certificate issued by the competent authority could not be

rejected by the respondents and since the medical certificates produced

by the petitioner were not considered, the order of dismissal and

rejection of his appeal are liable to be set aside. The petitioner filed the

above noted petition on the above noted grounds against the order of

removal dated 8th April, 1998 and the rejection of his appeal by order

dated 27th February, 1999.

11. Along with the petition, the petitioner has filed a photocopy of the

card issued by Central Government Health Scheme bearing the

endorsements dated 28th April, 1997; 8th May, 1997 and 19th May,

1997. The card has the endorsement by Dr.Ram Kishan, MD.AY, SMO

Incharge, CGHS Police Hospital, NPL Kingsway Camp, Delhi. On the

said certificate by the endorsement dated 19th May, 1997, the petitioner

was prescribed medicines and he was also advised bed rest. The

endorsements dated 28th April, 1997 and 8th May, 1997 prescribe

medicines but no bed rest. The petitioner did not file any other

documents with the writ petition showing that the said medical

certificate or any other communication was addressed by the petitioner

to the respondents intimating them about his alleged illness.

12. The writ petition is contested by the respondents who filed the

counter affidavit of Anil Pratham, Commandant, CISF Unit IOC (GR)

Baroda contending, inter-alia, that the petitioner did not report to the

unit even after availing 10 days of normal joining time on 29th April,

1997, nor did he report even after receiving the two call up notices

which were sent to his permanent address by office letters No.V-

15014/CISF/GR/.Disc/PK/97/1094 dated 10th May, 1997 and even

No.(3002) dated 12th September, 1997. As the petitioner did not join the

new unit, for his misconduct he was dealt with under Rule 34 of the

CISF Rules, 1969 and a memorandum dated 20th October, 1997 was

sent to the petitioner by registered post at his home address with the

direction to submit a reply within 10 days from the date of receipt. The

petitioner, however, did not reply to the memorandum dated 20th

October, 1997.

13. Thereafter, the Enquiry Officer under Rule 34(4) of CISF Rules,

1969 was appointed to enquire into the charges made against the

petitioner by order dated 24th November, 1997. The copy of the same

was sent to the petitioner and was duly acknowledged by him. The

Enquiry Officer gave full opportunity to the petitioner as three enquiry

notices were issued and various dates were fixed for the enquiry in

order to ensure that the petitioner may appear and defend himself.

However, the petitioner neither filed any reply to the memorandum nor

did he appear on the dates informed to the petitioner. The Enquiry

Officer thus had no other option but to proceed ex-parte against the

petitioner and after considering the material placed before him, he gave

his report on 28th February, 1998 holding that the charges were proved

against the petitioner.

14. The report of the Enquiry Officer was sent to the petitioner at his

permanent address on 3rd March, 1998 with the direction to submit his

final representation within 15 days from the date of the receipt of the

enquiry report. The copy of the enquiry report sent to the petitioner was

received and duly acknowledged by him. The petitioner, however, did

not file any representation against the same. The Disciplinary Authority

thereafter going through the enquiry proceedings and the relevant

documents awarded the penalty of removal from service by order dated

8th April, 1998.

15. Aggrieved by order of removal dated 8th April, 1998, the petitioner

had filed the appeal to the Deputy Inspector General, CISF (WZ),

Mumbai. The appeal was, however, dismissed by the Appellate

Authority by order dated 27th February, 1999.

16. The respondents also disclosed that the overstaying and not

reporting to the new unit on 29th April, 1997 till the removal of the

petitioner on 8th April, 1998 was not a solitary incident as previously

also the petitioner had overstayed leave for 291 days i.e. 9 months and

21 days. Since on the earlier occasion he had overstayed for 291 days

and it was the first instance on the part of the petitioner, it was

regularized against his balance leave. The plea of the petitioner that he

had sustained injury in 1994 during the All India Police Meet was not

accepted as the petitioner had not produced any medical documents

during the year 1994 for his absence for 291 days.

17. The respondents categorically denied that the petitioner had

fallen sick on 27th April, 1997. Referring to the alleged medical

certificate, it was contended by the respondents that the petitioner

should have moved from his native place on 27th April, 1997 to join his

duty on 29th April, 1997 (forenoon) at CISF Unit, UTPS, Ukai. The

petitioner rather went to a hospital on 28th April, 1997 and managed to

procure a manipulated medical certificate of the same date. The

respondents also contended that the medical certificate for the period

28th April, 1997 to 15th September, 1997 was submitted in the month of

September, 1997 which clearly demonstrates that the medical

certificate had been managed by the petitioner to cover up his

absence/over stay. If the petitioner was really ill, he should have

submitted the medical certificate immediately. The respondents also

emphasized on the fact that the petitioner was an outdoor patient from

28th April, 1997 to 15th September, 1997 including the period of medical

rest for four weeks. Therefore, he should have reported to his new unit

on 16th September, 1997 at least after taking the medical

treatment/rest, which he failed to do. It was also disclosed that as on

30th June, 1997 no leave was in the credit of the petitioner. The

respondents also stated that there is no provision for serving the show

cause notice before passing the order of punishment. Regarding the

medical certificates the respondent disclosed that the petitioner had not

availed the medical facilities under Rule 60 of the CISF Rules, 1969.

Reliance was also placed by the respondents on the letter dated 12th

May, 1997 sent to the petitioner intimating that there are good medical

facilities in the Gujarat Electricity Board Hospital, Ukai (new unit)

which provide free medical treatment to CISF Personnel. However, the

petitioner did not avail the said medical facilities at Ukai and opted to

remain absent without any authorization.

18. The respondents have sought the dismissal of the writ petition

also on the ground that though the remedy of revision to the Central

Government is available to the petitioner under Section (3) of the CISF

Act, however, this was not availed by the petitioner.

19. Though the petitioner filed a rejoinder to the counter affidavit filed

by the respondent, however, nothing new was disclosed in the same.

The petitioner has denied that on earlier occasions also he had

overstayed for 291 days on the ground that no details had been given by

the respondents in support of their plea. The petitioner, however,

averred in his rejoinder that he had sent telegrams and registered letter

dated 5th May, 1997 and 9th May, 1997 informing the Commandant,

CISF Unit, UTPS, Ukai about his illness which was not considered by

the Enquiry Officer.

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

also considered the documents placed on the record. The admitted facts

are that the petitioner did not join the new unit on 29th April, 1997 after

availing the normal 10 days joining time. The petitioner has also not

denied that the call-up notices were sent to him. The copy of the notice

dated 12th May, 1997 which has been produced by the respondents

categorically stipulates that the petitioner was to report at his new unit

on 29th April, 1997 after the regular posting from CISF Unit, IOC (GR)

Baroda. In the said communication though it is admitted that the

petitioner had sent two telegrams and two registered letters about his

sickness, however, it was categorically stated that the petitioner had

neither submitted any medical certificate in support of his sickness nor

had he mentioned the details of his sickness in his application. By the

said communication, the petitioner was even intimated that there are

good medical facilities in the GEB Hospital at Ukai which provides free

medical treatment to the CISF Personnel and, therefore, petitioner was

directed to report at his unit and to continue treatment at Ukai. The

receipt of the said letter has not been categorically denied by the

petitioner.

21. After the letter dated 12th May, 1997, copy of no communication

or telegram has been produced by the petitioner showing as to what

disease he was suffering from or for what reason he was incapable of

reporting to his unit. The medical certificate could not be sent with the

telegram, however, the nature of the disease could have been mentioned

in the same. The petitioner, however, has not produced the copy of any

telegram which would show the nature of disease or medical treatment

availed by him which could be disclosed by the petitioner to the

respondents. In the writ petition too filed by the petitioner, he has not

disclosed as to what disease he had contracted or what medical

treatment he was undergoing which physically made him incapable of

reporting to his new unit. The copy of the card produced by the

petitioner along with the writ petition also has the endorsement dated

28th April, 1997, 8th May, 1997 and 19th May, 1997 only. On 28th April,

1997, the petitioner was prescribed some medicines and syrups. On 8th

May, 1997 the petitioner was again prescribed medicines and syrups,

however, on 18th May, 1997 petitioner had been advised bed rest. The

medical certificate, however, does not disclose any physical disability or

disease which rendered the petitioner incapable of reporting for duty.

22. From 29th April, 1997 till 18th April, 1998 when the order of

removal from service was passed against the petitioner, no such

documents had been produced by the petitioner which would have

shown that the petitioner was not in a physically fit state to go to his

unit at Ukai. The petitioner has also not disclosed as to why he could

not get his alleged medical problems treated at GEB Hospital at Ukai

about which it was intimated to the petitioner by letter dated 12th May,

1997.

23. Though the learned counsel for the petitioner contended that the

petitioner had his muscle pulled, no such averment has been made by

the petitioner in his petition. In any case, what prevented the petitioner

from filing a reply to the memorandum of charges and raise his defense

has not been disclosed. It is not disputed that the petitioner was sent

the copy of the enquiry report and that no representation was filed by

the petitioner against the same before the Disciplinary Authority. The

Appellate Authority has also emphasized and observed that the home

town of the petitioner is Village Kheri Asra, Tehsil Jhajjar, Haryana,

however, he had taken treatment at Delhi. If the petitioner could travel

from his hometown in Rohtak to a considerable distance at Delhi for

treatment, then the petitioner could have very well travelled to report to

his new unit at Ukai where further medical facilities could have been

availed by him at GEB Hospital.

24. This Court in exercise of its jurisdiction under Article 226 of the

Constitution of India does not normally have to go into the correctness

and the truth of the charges as it cannot take over the functions of the

Disciplinary Authority nor it can sit in appeal on the findings of the

Disciplinary Authority and assume the role of the Appellate Authority.

The Court in exercise of its jurisdiction also does not have to interfere

with the findings of the fact arrived at by the Disciplinary Authority

except in the case of malafides or perversity i.e. where there is no

evidence to support a finding or where the finding is such that anyone

acting reasonably or with objectivity could not have arrived at the same

or where a reasonable opportunity has not been given to the delinquent

to defend himself or if it is a case where there has been non application

of mind on the part of the Enquiring Authority or if the charges are

vague or if the punishment imposed is shocking to the very conscience

of the Court. The petitioner, despite the intimation to him to report to

his new unit at Ukai, did not join the same nor did he disclose any

cogent reasons with sufficient material justifying his alleged

misconduct. Though the petitioner sent telegrams and two letters,

however, he did not send any medical certificate with them. The

petitioner has acknowledged that the copy of the memorandum of

charge was received by him, however, the petitioner did not reply to the

same. The Enquiry Officer had also sent three notices and fixed various

dates directing the petitioner to appear before the Enquiry Officer,

however, he did not appear. No cogent reasons have been disclosed by

the petitioner as to why he did not appear before the Enquiry Officer.

The copy of the enquiry report was sent to the petitioner, however, he

did not make any representation in respect of the same.

25. Though the petitioner has alleged that he was entitled for a show

cause notice before imposing the punishment upon him, however, the

learned counsel for the petitioner is unable to show any provision under

which the petitioner is entitled for a notice before imposing the

punishment on him.

26. In the circumstances, the petitioner has failed to make out any

procedural illegality, irregularity or procedural impropriety. This is no

more res integra that the action of the respondents, in the facts and

circumstances, is subject to control by judicial review only in the case

of illegality, irrationality or procedural impropriety. Whether the action

of the respondents' falls within any one of the categories mentioned

above, is to be established by the petitioner and a mere assertion in

that regard is not sufficient. The action of the respondents' cannot be

held to be irrational in the facts and circumstances. The respondents

have exercised the power on the basis of facts which have not been

repudiated by the petitioner nor has the learned counsel for the

petitioner been able to show any patent illegality which will vitiate any

of the actions of the respondents'. In the facts and circumstances, this

Court is also unable to infer any procedural impropriety in the actions

of the respondents. In (2006) 5 SCC 88, M.V.Bijlani & Orv v. Union of

India & Ors it was held that judicial review is of the decision making

process and is not the re-appreciation of the 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.

In B.C. Chaturvedi v. Union of India, (1995) 6 SCC 749, at page

762 the Supreme Court had held that the disciplinary authority being

the fact finding authority has exclusive power to consider the evidence

with a view to maintain discipline. It was held as under:

18. A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact-finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof.

27. In Union of India v. Datta Linga Toshat Vad, (2005) 13 SCC 709,

it was held that the members of the uniform forces cannot absent

themselves on frivolous pleas, having regard to the nature of the duties

enjoined on these forces. The Court had held that desertion is a serious

matter and a member of the uniformed forces who overstays his leave

even by a few days must be able to give a satisfactory explanation. A

member of the force, who goes on leave and never reports for duty

thereafter, cannot be said to be one merely overstaying his leave and he

must be treated as a deserter. In such cases the Apex Court had held

the dismissal from service justifiable and the punishment of dismissal

was held not to be disproportionate to the misconduct. In that case the

petitioner after leave did not join despite various notices given to him.

Even the arrest warrant was issued against him though the arrest

warrant remained unexecuted. In the circumstances, after following due

procedure, the official was dismissed from the service. Similarly in

(2005) 13 SCC 228, Union of India v. Gulam Md.Bhat, it was held by

the Supreme Court that overstay by persons belonging to the

disciplined forces needs to be dealt with sternly. It was further held that

it is for the employee concerned to show how the penalty was

disproportionate to the proved charges. In that case the order of

dismissal from service was held to be in accordance with the

misconduct as the employee had remained absent for 300 days and had

failed to give any justifiable reasons. The petitioner also remained

absent and no justifiable reason has been given for absence from 29th

April, 1997 upto 8th April, 1998 when the order of dismissal was passed

against him. It is also important to note that this is not the first

instance when the petitioner had remained absent without any

justifiable reason. The medical certificate produced by the petitioner has

been disbelieved.

28. The petitioner had remained absent even on an earlier occasion

for 291 days, however, as that was the first instance, the respondents

had regularized his absence towards his balance leave. Though the

petitioner has denied the same on the ground that the particulars have

not been given by the respondents, however, in the facts and

circumstances the averment that the petitioner had remained absent on

an earlier occasion also for 291 days cannot be doubted. Rather, the

plea taken for earlier absence was that he had sustained injury during

the All India Police Meet which was not accepted as on earlier occasion

also the petitioner had not produced any medical certificate or proof

about his alleged injury.

29. For the foregoing reasons in the facts and circumstances, there

are no grounds to interfere with the orders of removal of petitioner from

service dated 8th April, 1998 and dismissal of his appeal by order dated

27th February, 1999 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.

SUDERSHAN KUMAR MISRA, J.

February 24, 2012 'k'