Delhi High Court

Ishwar Singh vs Union Of India & Ors. on 10 February, 2012

Author: J.R. Midha

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

                      +    W.P.(C)No.4160/1999

    %                          Reserved on : 09th January, 2012
                           Date of decision : 10th February, 2012


        ISHWAR SINGH                              ..... Petitioner
                           Through : Mr. H.S. Dahiya, Advocate.

                      versus

        UNION OF INDIA & ORS.               ..... Respondents
                       Through : Ms. Barkha Babbar, Advocate
                                 for respondent/UOI.

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE J.R. MIDHA

J.R. MIDHA, J.

1. The petitioner has challenged the order dated 10th/15th

January, 1996 passed by the disciplinary authority levying the

penalty of removal from service on the petitioner on account of

unauthorized absence with effect from 28th May, 1994,

disobedience of the office order dated 1st March, 1994 and

changing the residential address without information/prior

permission of the competent authority. The petitioner has also

challenged the order dated 8th/9th October, 1998 rejecting the

appeal filed by him against the dismissal order.

2. The relevant facts of this case in brief are as under:-

(i) The petitioner, while serving at CISF Unit, LPG,

Tikrikalan, Delhi, submitted an application dated 20th February,

1990 seeking out-living permission at Bahadurgarh which was

allowed vide order dated 16th April, 1990.

(ii) On 23rd May, 1994, the petitioner was transferred to

Dulhasti, Jammu and Kashmir. The petitioner was to be

relieved on 31st May, 1994.

(iii) On 25th May, 1994, the petitioner did not report for

duty. On 30th May, 1994, the petitioner sent the medical

papers informing that he had been advised 20 days bed rest

with effect from 28th May, 1994 by Medical Officer In-charge,

Ram Roop Health Centre, Kanjhawala, MCD.

(iv) Vide letter dated 1st June, 1994, call-up notice was

issued to the petitioner intimating him that the petitioner

should have taken medical treatment from the panel doctor,

Dr. B.L. Khatri who could have referred him. The petitioner

was directed to immediately report for duty. However, the

above notice was received back with the remarks that the

petitioner was not found at the given address.

(v) On 3rd June, 1994, a Sub-Inspector and a Head

Constable went to the Bahadurgarh address of the petitioner to

serve the call-up notice and were informed that the petitioner

had left the said address a year ago. In the meantime, the

petitioner sent a letter dated 17th June, 1994 about his

continued illness and mentioned another address whereupon a

second call-up notice dated 20th June, 1994 was sent to the

petitioner at the fresh address which was also returned back

with the report that he was staying in that house on rent and

had left the same. On 7th July, 1994, a third call-up notice was

sent to the petitioner which also returned with the report that

he had left the given address.

(vi) On 20th July, 1994, a charge memo was issued to the

petitioner under Rule 34 of CISF Rules, 1969, containing the

following articles of charge:-

"(a) ARTICLE OF CHARGE-I CISF No.8235123 Constable Ishwar Singh of CISF Unit LPG (T), Delhi is charged for gross misconduct and indiscipline in that he is absenting without leave (AWL) with effect from 28.5.1994 till date without proper permission of the competent authority.

(b) ARTICLE OF CHARGE-II CISF No.8235123, Const. Ishwar Singh of CISF Unit LPG (T), Delhi is charged for gross misconduct and indiscipline in that he disobeyed the lawful orders issued vide office letter no.E-42013/CISF/LPG/ADM/94-115 dated 1.3.1994.

(c) ARTICLE OF CHARGE-III CISF No.8235123, Const. Ishwar Singh of CISF Unit LPG (T), Delhi is charged for gross misconduct and indiscipline in that he changed his permitted residential address without any information and prior permission of the competent authority. A copy of memorandum dated 20.7.1994 is annexed as Annexure-14 to the writ petition."

(vii) The said charge memo could not be served immediately

on the petitioner as his whereabouts were not known to the

office. However, the office made continuous efforts and were

able to trace out his fresh address on 27th September, 1994

whereupon the charge memo was sent through a Constable to

the petitioner who refused to accept the same. Finally the

charge memo was served upon the petitioner through the local

police station on 29th October, 1994. The petitioner did not

submit his response to the charge memo within the stipulated

period and, therefore, an enquiry officer was appointed vide

order dated 25th November, 1994.

(viii) On 26th November, 1994, enquiry notice was issued to

the petitioner fixing the date of enquiry as 6th December, 1994.

The petitioner appeared before the enquiry officer and

submitted a written application seeking change of the enquiry

officer. The application was considered and vide order dated

19th December, 1994, a new enquiry officer was appointed. In

the meantime, the petitioner also submitted his written

statement of defence on 1st December, 1994 denying the

charges levelled against him.

(ix) Repeated enquiry notices were issued to the petitioner

on 9th January, 1995, 14th January, 1995, 17th January, 1995,

19th January, 1995, 9th February, 1995, 13th February, 1995, 3rd

March, 1995, 7th March, 1995 and 8th April, 1994 which were

received back undelivered. The enquiry officer, therefore,

proceeded ex-parte against the petitioner and submitted his

report on 28th October, 1995.

(x) On 18th November, 1995, a copy of the enquiry report

was served on the petitioner's wife at his residence. The

petitioner did not submit any response to the enquiry report.

The disciplinary authority thereafter took a final decision

awarding the punishment of dismissal from service to the

petitioner vide order dated 10th/15th January, 1996. The

disciplinary authority concurred with the findings of the

enquiry officer and held the charges to be proved. The final

order was pasted on the petitioner's door as he was again not

traceable.

(xi) The petitioner filed an appeal dated 28th July, 1998

which was rejected vide order dated 8th/9th October, 1998 as

being barred by time.

3. The learned counsel for the petitioner has made the

following submissions at the time of hearing of the petition:-

(i) With respect to the charges No.1 and 2, it was

submitted that the petitioner fell sick on 28th May, 1994 and

was advised rest by the doctors. The petitioner sent the

medical certificate by the registered post as well as UPC. The

petitioner could not take treatment from the panel doctor who

was available for only two hours in a day.

(ii) With respect to charge No.3, the petitioner submitted

that he gave the address of his brother but due to family

differences, he had to leave that house and live separately.

Vide letter dated 28th May, 1994, the petitioner gave the fresh

address of Mahabir Park which he had to vacate on being

compelled by the landlord. However, the petitioner admitted

that he could not officially and separately communicate the

change of addresses to the office.

(iii) The documents were not supplied to the petitioner

along with the charge memo and proper opportunity was not

afforded to the petitioner to cross-examine the witnesses.

(iv) The punishment awarded to the petitioner is

disproportionate.

(v) The petitioner had given sufficient explanation for delay

in filing of the appeal.

4. The learned counsel for the respondent has submitted

that the enquiry has been conducted following the principles of

natural justice and all the charges have been proved by

sufficient evidence against the petitioner. It is submitted that

the petitioner did not lead any evidence in the enquiry. It is

submitted that the petitioner absented without leave with

effect from 28th May, 1994 without prior permission of the

competent authority, disobeyed the office order dated 1st

March, 1994 and changed his address without any information

and prior permission of the competent authority. The learned

counsel has further urged that the petitioner has raised

frivolous pleas in this petition. It is further submitted that the

petitioner has committed serious act of indiscipline and the

punishment of removal from service is proportionate to the

guilt of the petitioner. The learned counsel for the respondent

has referred and relied upon the following judgments:-

(i) Union of India v. Datta Linga Toshatwad, (2005) 13

SCC 709 - In this case, a Constable did not report for almost a

year and thereafter filed a writ petition before the High Court

seeking re-instatement. The Supreme Court held the dismissal

to be valid. The Court held that the members of uniformed

Forces cannot absent themselves on frivolous pleas having

regard on the nature of duties enjoined on such Forces. The

findings of the Court are as under:-

"6. One cannot ignore the large number of cases which come to this Court of members of uniformed forces remaining absent from duty without any reasonable explanation. Whenever action is taken, the usual plea taken is of having been ill or some such false pretext, and even fake or false medical certificates are produced in support of such a plea. We would not have taken a serious view of the matter had it not been a case of a constable belonging to CRPF remaining

absent for an indefinite period. Even if we assume that the respondent was suffering from depression and was being treated as an outdoor patient, the medical certificates produced by him show that he was restored to normalcy on 4-4-1998 yet the respondent did not choose to report for duty. The order of dismissal was passed seven months later i.e. on 2-11- 1998. This itself discloses the hollowness of the claim of the respondent regarding mental depression and imbalance which he claims to have suffered.

8. The present case is not a case of a constable merely overstaying his leave by 12 days. The respondent took leave from 16-6-1997 and never reported for duty thereafter. Instead he filed a writ petition before the High Court in which the impugned order has been passed. Members of the uniformed forces cannot absent themselves on frivolous pleas, having regard to the nature of the duties enjoined on these forces. Such indiscipline, if it goes unpunished, will greatly affect the discipline of the forces. In such forces desertion is a serious matter. Cases of this nature, in whatever manner described, are cases of desertion particularly when there is apprehension of the member of the force being called upon to perform onerous duties in difficult terrains or an order of deputation which he finds inconvenient, is passed. We cannot take such matters lightly, particularly when it relates to uniformed forces of this country. A member of a uniformed force who overstays his leave by a few days must be able to give a satisfactory explanation. However, a member of the force who goes on leave and never report for duties thereafter, cannot be said to be one merely overstaying his leave. He must be treated as a deserter. He appears on the scene for the first time when he files a writ petition before the High Court, rather than reporting to his Commanding Officer. We are satisfied that in cases of this nature, dismissal from the forces is a justified disciplinary action and cannot be described as disproportionate to the misconduct alleged."

(Emphasis supplied)

(ii) State of Rajasthan v. Mohd. Ayub Naz, 2006 I AD

(SC) 308 - The Supreme Court held the order of removal from

service due to willful absence for three years without

intimation to be justified. The findings of the Court are as

under:-

"9. Absenteeism from office for prolong period of time without prior permission by the Government servants has become a principle cause of indiscipline which have greatly affected various Government Services. In order to mitigate the rampant absenteeism and wilful absence from service without intimation to the Government, the Government of Rajasthan inserted Rule 86(3) in the Rajasthan Service Rules which contemplated that if a Government servant remains wilfully absent for a period exceeding one month and if the charge of wilfull absence from duty is proved against him, he may be removed from service. In the instant case, opportunity was given to the respondent to contest the disciplinary proceedings. He also attended the enquiry. After going through the records, the learned Single Judge held that the admitted fact of absence was borne out from the record and that the respondent himself has admitted that he was absent for about 3 years. After holding so, the learned Single Judge committed a grave error that the respondent can be deemed to have retired after seeking of service of 20 years with all retiral benefits which may be available to him. In our opinion, the impugned order of removal from service is the only proper punishment to be awarded to the respondent herein who was wilfully absent for 3 years without intimation to the Government. The facts and circumstances and the admission made by the respondent would clearly go to show that Rule 86(3) of the Rajasthan Service Rules is proved against him and, therefore, he may be removed from service."

                                            (Emphasis supplied)



 (iii)    K.S.         Pundir      v.        Union    of        India,

MANU/DE/1770/2011- The Division Bench of this Court

upheld the order of removal from service on account of

unauthorized absence from duty for a period of 259 days. The

findings of this Court are as under:-

"32. There is evidence that the Petitioner was not wanting to work in Uri and thus he feigned sickness. All Force Personnel have to serve in hard areas and those who unjustifiably do not so cause hardship to others, inasmuch as their burden would have to be shared by others, and indeed if this kind of deviant behaviour is overlooked, others would be tempted to do so. We concur with the view taken by the authorities concerned that such kind of deviant behaviour has to be suppressed with a heavy hand. Keeping in view the past service profile of the Petitioner we do not find the penalty inflicted to be disproportionate to the gravity of the offence and hence we dismiss the writ petition."

(iv) Dharambir Singh v. Union of India,

MANU/DE/3824/2011 - The Division Bench of this Court held

as under:-

"23. We prefer to decide on the facts of the instant case.The Petitioner is not armed with any medical certificate that he was unfit for duties except for a short period of 3 weeks, when he was hospitalized at CRPF Base Hospital. He was taking treatment as an OPD Patient. This shows that the Petitioner was in his house. It may be true that first class eye treatment is not available at Tripura where the battalion of the Petitioner was stationed, but we see No. reason why the Petitioner could not have joined duties and requested that he should be attached to a battalion of CRPF which was stationed for duties at Delhi or Chandigarh. He could have produced the medical papers pertaining to his treatment before the Commandant who could have obtained an opinion

whether medical treatment required by the Petitioner required him to be stationed at either Delhi or Chandigarh. If the Petitioner required periodic visits to AIIMS, the alternative of sanctioning medical leave for short durations to enable Petitioner to present himself before the Ophthalmologist would also have been considered as an alternative.

24. The Petitioner could not become a judge in his own cause. He could not just stay back at Delhi.

25. We must highlight that all cases of unauthorized absence or desertion being brought before us pertained to when battalions of CRPF or BSF are transferred to hard areas and it surprises us that when stationed at peace places, no officer of CRPF or BSF complains of sickness. Not a single case of desertion, or unauthorized absence, out of over 250 decided by us till today pertains to a CRPF or BSF jawan of a battalion posted in a peace station. Whenever we have called upon counsel for CRPF or BSF to advance arguments on the quantum of punishment, they have always highlighted that there is a tendency of the force personnel to feign sickness or exaggerate minor illnesses to avoid working in hard areas and if this deviancy is overlooked, it would breed insubordination in the force because jawans would not obey lawful commands of the superiors to report back. This would encourage deviant behaviour by others. Secondly, it has been pointed out to us that force personnel are sent on leave by rotation and where one jawan overstays leave, he does so at the cost to some other(s)."

(Emphasis supplied)

5. In the present case, the petitioner does not dispute that

he remained absent without leave with effect from 28th May,

1994 and never reported for duty thereafter. The petitioner

also does not dispute violation of the order dated 1st March,

1994 requiring the members of the force to take treatment

from Dr. B.L. Khatri. The petitioner also does not dispute that

he changed his permitted residential address without informing

or prior permission of the competent authority. The only

defence of the petitioner is that he was ill with effect from 28th

May, 1994 and did not take treatment from Dr. B.L. Khatri who

was available only for two hours daily. The medical certificate

relied upon by the petitioner records that the petitioner was

suffering from diarrhea, vomiting and fever and as such, his

condition was not such that he could not have visited the panel

doctor. The petitioner was admittedly not hospitalized. The

petitioner did not report for duty even once after 28th May,

1994. The petitioner did not lead any evidence to prove his

condition despite sufficient opportunity given. On the other

hand, the charge against the petitioner has been proved by

sufficient evidence. It appears that the petitioner took the

false plea of medical illness and treatment outside the health

centre to avoid proceeding to Dulhasti, Jammu and Kashmir.