Hs Rana vs Union Of India & Ors
2012 Latest Caselaw 4291 Del

1
*         IN THE HIGH COURT OF DELHI AT NEW DELHI

      +      W.P.(C)No.3628/2012 and CM No.7616/2012

%                                 Date of decision: 20th July, 2012

      HS RANA                                    ..... Petitioner
                           Through : Mr.    Mukesh Kumar Verma,
                                     Adv.

                      versus

      UNION OF INDIA & ORS         ..... Respondents
                     Through : Mr. Ravinder Agarwal, Adv.

       CORAM:
       HON'BLE MS. JUSTICE GITA MITTAL
       HON'BLE MR. JUSTICE J.R. MIDHA

                          JUDGMENT (ORAL)

CM No.7616/2012

1. For the reasons stated, the delay in re-filing the petition

is condoned.

2. The application is allowed.

W.P.(C)No.3628/2012

1. This writ petition assails the order dated 17th February,

2007 passed by the office of the Commandant, CISF Unit,

BCCL, Dhanbad accepting the report of the inquiry officer who

conducted the disciplinary proceedings against the petitioner.

By the order dated 17th February, 2007, the disciplinary

authority accepted the recommendations of the inquiry officer

and has imposed the penalty of compulsory retirement upon

the petitioner.

2. The petitioner's appeal to the office of Deputy Inspector

General, CISF has been rejected by the order dated 22 nd May,

2007. The facts giving rise to the instant petition are to be

found in the orders issued to the petitioner which are

undisputed.

3. The petitioner was a Constable posted at the CISF Unit,

BCCL, Dhanbad. He was permitted/sanctioned outdoor pass

permission/night out pass from 1600 hours on 26 th April, 2006

to 1500 hours on 27th April, 2006 at his request to go to

Allahabad. The petitioner failed to report back for duty and

overstayed his leave unauthorizedly. An entry to this effect

was made in the general diary on 26th April, 2006. Three call-

up letters bearing no.ID-12013/CIDF/RIL/ISD/06-162 dated 28th

April, 2006; no.192 dated 13th May, 2006 and no.212 dated

26th May, 2006 were issued by the Company Commander, RIL

Dalmianagar, Rohtas to the petitioner, directing him to report

back for duty forthwith failing which a disciplinary action would

be initiated against him. A letter No.E-24017/CISF/BCCL/06-

3074 dated 15th June, 2006 was also issued to the petitioner on

his home address with the same direction.

4. All these call-up letters were of no avail. The petitioner

on his own accord reported back for duty only on 24th July,

2006 at 0945 hours. These call-up letters were exhibited as

PW1/P Exh.01 to Exh.10 during the course of the disciplinary

proceedings. The petitioner, therefore, it appears overstayed

his out pass permission with effect from 27th April, 2006 to 23rd

July, 2006 unauthorizedly.

5. The petitioner claims that he had fallen ill in Allahabad

and was taken to Mathura, his home town. No material in

support thereof is forthcoming on record. There is also no

evidence that the petitioner had travelled from Allahabad to

Mathura.

6. As the respondents contemplated disciplinary

proceedings against the petitioner, a charge memorandum

was served upon him on 29th July, 2006 after he reported for

duty on 24th July, 2006 charging him with the following:-

"Article-I

That, No. 761530042 Const. H.S. Rana Area No. 10 of CISF Unit BCCL Dhanbad while deployed on I.S. duty at RIL Rohtas was given out pass permission from 1600 hrs on 26.04.06 to 1500 hrs. on 27.05.06 by Coy. Commander CISF RIL Dalmianagar, Rohtas (Bihar). On completion of out pass permission he was supposed to report to Coy. Commander CISF RIL Dalmianagar, Rohtas (Bihar) by 1501 hrs. on 27.04.06 for further duty. But he failed to do so and overstaying from outpass permission unauthorisedly from 27.04.06 to till date. T he above act on the part of No. 761530042 Const. H.S. Rana amounts to gross misconduct, indiscipline act, disobedience of lawful orders

and dereliction of duty. Hence the charge.

Article-II

As per service records of No. 761530042 Const. H.S. Rana Area No. 10 of BCCI Dhanbad, he has been awarded with 11 punishment earlier during his service career for various indiscipline acts. Even then he failed to correct himself and remained incorrigible."

7. On the petitioner's request, a charge memorandum in

Hindi was furnished to him on 18th August, 2006 but he failed

to submit his written statement of defence. In this

background, a departmental inquiry was ordered against him

under the provisions of Rule 36 of the CISF Rules, 2001 by the

order dated 23rd September, 2006. The petitioner submitted

his written statement of defence only on 8th October, 2006.

The inquiry officer was required to be changed on account of

administrative reasons by an order passed on 20 th November,

2006.

8. The inquiry officer issued notice to the petitioner fixing

the inquiry on 25th November, 2006 but the petitioner failed to

attend the inquiry on the scheduled date as he was again

overstaying his leave w.e.f. 24th November, 2006. The inquiry

officer finally conducted preliminary hearing of the case on 3rd

December, 2006 and sent a questionnaire to the petitioner in

writing on 4th December, 2006 through registered post with the

direction to him to submit reply by 15th December, 2006 failing

which ex-parte inquiry would be conducted. The petitioner

again neither submitted his reply to the questionnaire nor

reported for inquiry on 15th December, 2006. To enable the

petitioner to appear, the inquiry was fixed now on 5th January,

2007 but again the petitioner neither reported for inquiry nor

intimated anything about his inability to attend the inquiry. On

5th January, 2007, the inquiry officer received a message from

the Area Incharge that the petitioner had reported back from

overstaying leave. In this background, the inquiry officer

adjourned the inquiry and posted it from 9th January, 2007 to

11th January, 2007.

9. The inquiry was conducted on these dates and

statements of prosecution witnesses were recorded in the

presence of the petitioner. The petitioner was granted

opportunity to cross-examine the prosecution witnesses which

he availed. The inquiry officer examined the petitioner. The

opportunity to lead evidence was also granted to him. The

petitioner was given the written brief submitted by the

presenting officer to which the petitioner also submitted his

own brief.

10. So far as the unauthorized absence is concerned, the

petitioner claims to have fallen ill at Allahabad. It has been

noted in the inquiry report that again instead of returning back

to his Unit in Rohtas which was closer, the petitioner

proceeded to his home town despite knowledge that he was

given only a limited out pass permission. The petitioner

miserably failed to support his contentions with any evidence.

The respondents on the other hand led evidence to prove the

allegations levelled against the petitioner. The call letters to

the petitioner were not heeded by him. The documentary

evidence in support of the second charge could not be

challenged by the petitioner. After a consideration of the

entire material placed on record in the inquiry, the inquiry

officer was of the view that the charges which were framed

against the petitioner had been proved. A copy of the inquiry

report was duly furnished to the petitioner by the disciplinary

authority under the cover of the letter dated 15 th/16th January,

2007. The petitioner submitted his written representation

dated 30th January, 2007. The petitioner had stated that the

inquiry officer had held that the charges were proved against

him only "on the basis of the statement of the prosecution

witnesses". It was also contended by him that if his request for

extension of leave was not considered by the competent

authority then he should have been informed of the same by

the competent authority and told to report back for duty

immediately but this was not done. The petitioner also

contended that he could not be punished twice for the

punishments which he had already undergone.

11. After considering the proceedings of the inquiry, the

recommendation of the inquiry officer and the representation

made by the petitioner, the disciplinary authority passed a final

order dated 17th February, 2007 agreeing with the

recommendations of the inquiry officer and found the

petitioner guilty of the charges. It was held that the petitioner

had committed gross misconduct, indiscipline act, dereliction

of duty and disobedience of lawful orders by overstaying out

pass permission and that his past service record showed that

he was a habitual offender of overstaying leave/absence

without leave. He had failed to improve his conduct despite

previous punishments and, therefore, he deserved stringent

punishment.

12. So far as the imposition of punishment is concerned,

despite the nature of the misconduct of which the petitioner

was found guilty, the disciplinary authority took a

compassionate view. It has been observed in the order dated

17th February, 2007 that keeping in view the long service of

the petitioner, in exercise of powers conferred upon him under

Rule 32(1) read in conjunction with Schedule-I and Rule 34 of

CISF Rules, 2001, the Commandant of the CISF Unit, BCCI,

Dhanbad imposed a punishment of compulsory retirement

upon him. The disciplinary authority had further directed that

the petitioner would be entitled to full pension and gratuity as

admissible to him on the date of his compulsory retirement as

per Rule 40 of CCS (Pension) Rules, 1972. The period of his

absence i.e. from 27th April, 2006 to 23rd July, 2006 was

directed to be separately regularized.

13. As noticed above, the petitioner's appeal to the Deputy

Inspector General of the force was also considered and

rejected on 22nd May, 2007.

14. Learned counsel for the petitioner is unable to point out

any procedural error or illegality in the conduct of the inquiry

proceedings, orders of the disciplinary authority or the

appellate authority. There is no grievance that the orders are

without jurisdiction. It is also not contended that the orders

are not based on material on record. No violation of principles

of justice is complained of.

15. The primary ground of challenge to the orders against the

petitioner is premised on the submission that the petitioner

had submitted applications for grant of leave with medical

certificates. It is urged that the petitioner having done so,

could not have been required to do anything further and the

petitioner's illness supported by the medical certificates was

an adequate reason for his not reporting to the unit.

We have noticed hereinabove, the call-up letters which

had been issued to the petitioner requiring him to report back

immediately. The very fact that the petitioner was repeatedly

asked to report back to the unit itself shows that his

application for extension of leave had not been granted. This

was adequate notice to the petitioner to return to his unit and

that his application for grant of extension of leave had been

rejected.

16. The petitioner claims to have sent these certificates and

applications under postal certificates.

17. We also find substance in the respondent's observation

that if the petitioner had taken ill at Allahabad, he could have

reported to his unit where he would have been adequately

treated. More so, when the petitioner had a limited out pass

permission and further when Rohtas, Bihar was closer to

Allahabad than Mathura. On a careful analysis of the fact of

the case, the respondents have found pre-meditation in the

petitioner's conduct. The petitioner has failed to produce any

document of travelling from Allahabad to Mathura. So far as

the claimed treatment at Rohtas is concerned, it has been

noticed that the petitioner is relying on certain outpatient

treatment slips which manifest that the petitioner was not so

sick as to require hospitalization and was not on any bed rest.

A perusal of a medical certificate dated 26th April, 2006 would

show that the petitioner was complaining only of pain on the

back of both hands.

18. We may also note that the respondents have proved that

the petitioner has also not reported to the standard medical

facility.

19. So far as the second charge is concerned, the same is

based on eleven previous instances of unauthorized

absence/overstay of leave/absence without leave/refusal and

disobedience of lawful orders between the period 1987 to

2004. The punishments which were imposed were reduction of

pay for one stage for one year; withholding one increment for

one year without cumulative effect, censure, etc. These had

no effect on the petitioner at all.

20. It cannot be disputed that the petitioner is the member of

a disciplined force which is performing serious functions in the

present day context. The action of the respondents is based

on the material on record; suffers from no procedural infirmity

and there is compliance of principles of natural justice. In our

view, the petitioner has failed to make out any ground for

interference with the action taken by the respondents.

21. The challenged punishment imposed upon the petitioner

on the ground of proportionality is also devoid of any merit.

The disciplinary authority has carefully considered the matter

and imposed the punishment of compulsory retirement while

further directing that the petitioner would be entitled to full

pension and gratuity as would be admissible to him on the

date of his compulsory retirement.

22. For all the above reasons, we find no merit in the writ

petition. The writ petition and application are dismissed.

GITA MITTAL, J

J.R. MIDHA, J JULY 20, 2012 aj