Rajeev Kumar Bansal vs Union Of India & Ors.
2012 Latest Caselaw 2882 Del

*               IN THE HIGH COURT OF DELHI AT NEW DELHI

%                        Date of Decision: 02.05.2012

+                        W.P.(C) No.2599/2012

Rajeev Kumar Bansal                               ...     Petitioner
                                 versus

Union of India & Ors.                             ...     Respondents

Advocates who appeared in this case:

For the Petitioner       :     Ms.Malini Poduval, Advocate.
For Respondents          :     Ms.Barkha Babbar, 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 of dismissal

dated 16th February, 2009 passed by the Deputy Inspector General

Sector HQ SSB Lakhimpur and order dated 31st January, 2012 passed

by the Director General, Sashastra Seema Bal dismissing the appeal of

the petitioner. The petitioner has sought his reinstatement with

continuity of service, arrears of pay and allowances and all other service

benefits.

2. Brief facts to comprehend the disputes raised by the petitioner

are that he was enrolled in Sashastra Seema Bal (SSB) in 1991 as Sub

Inspector (P). The petitioner was thereafter, transferred by order dated

28th December, 2005 from Delhi to Palia Kalan. The petitioner had

sought the cancellation of the transfer order, however, the petitioner

was relieved from FHQ by order dated 24th January, 2006, and he was

directed to report to the Commandant 25th Bn. It was also pointed out

that in the transfer order dated 28th December, 2005 the name of the

petitioner was, mentioned as Rajesh Kumar Bansal in place of Rajeev

Bansal.

3. The petitioner however, did not join the 4th Bn.SSB at Palia Kalan

and consequently, by order dated 23rd February, 2007 he was declared

as `deserter‟ from the force with effect from 1st April, 2006 under Rule

31 of CRPF Rules, 1955.

4. The petitioner had challenged the order dated 23rd February,

2007 declaring him as „deserter‟ by filing a writ petition being W.P(C)

No.2097/2007 titled as „Rajeev Kumar Bansal v. Director General SSB

& Ors.‟ which was disposed off by order dated 19th March, 2007. While

disposing off the writ petition of the petitioner, the Court had directed

that the petitioner be not arrested pursuant to the impugned order

declaring him as a `deserter‟ for the period of 10 days ending 29th

March, 2007, and the petitioner was also given the liberty to join the

unit on or before the said date at Palia Kalan, Uttar Pradesh. This Court

had, however, clarified that if the petitioner does not join the duties in

the Battalion within the time fixed by the Court that is by 29th March,

2007, the authorities would be entitled to apprehend the petitioner. The

respondents were, however, permitted to initiate such action against the

petitioner as were permissible in law for overstaying of leave.

5. A departmental enquiry was conducted against the petitioner

under Rule 27 of CRPF Rules, 1955 in respect of three charges i.e.

conducting gross misconduct and neglect of duty and remissness in

discharge of duty as after being relieved on 31st March, 2006 from FHQ,

Delhi, the petitioner did not join his duty at 4th Bn, SSB, Palia Kalan

and remained absent at his own will without permission of the

competent authority; the petitioner on completion of temporary

attachment did not report to join duty at 4th Bn. HQ Palia Kalan; and

that the petitioner had sought sanction of leave without pay upto 31st

December, 2006 due to family problems whereas by application dated

8th January, 2007 and 1st February, 2007 he had intimated the

respondents that he is taking treatment since May, 2006 due to severe

backache which allegations were found to be contradictory, misleading

and amounted to gross misconduct. The third charge against the

petitioner was that the resumption notices were sent to the petitioner

which were received back undelivered as the postal authorities had

given the report/remarks that he is staying away from his home and

thus the petitioner was charged with avoiding to receive official

communication sent to him and thus had committed an offence of

misconduct in discharge of the duty.

6. The chargesheet was issued to the petitioner and thereafter, the

Enquiry Officer conducted the enquiry in respect of all charges made

against the petitioner. During the enquiry, the petitioner was given

reasonable opportunity by the Enquiry Officer as per rules and

instructions to defend himself. A copy of the enquiry report was also

sent to the petitioner and he was given an opportunity to make

submission on the report of the enquiry. The petitioner had submitted a

reply dated 9th October, 2008. The Disciplinary Authority, however,

agreed with the findings of the Enquiry Officer and disbelieved the OPD

card and other documents produced by the petitioner in respect of his

alleged disability. The Disciplinary Authority, therefore, awarded the

penalty of dismissal from Government service and the unauthorized

absence period of the petitioner was ordered to be dealt with by the

Commandant 4th Battalion, Palia Kalan as per rules, with regard to 665

days from 1st April, 2006 to 25th January, 2008 and 272 days from 6th

March, 2008 to 2nd December, 2008. Aggrieved by the order of the

Disciplinary Authority, the petitioner preferred an appeal dated 16th

March, 2009 against the punishment of dismissal imposed upon him.

7. The appeal was disposed off by order dated 4th June, 2009

holding that the decision of the Disciplinary Authority awarding the

punishment of dismissal from the service is in consonance with the

gravity of charges established against the petitioner and thus the

punishment order was upheld.

8. Aggrieved by the order of the Appellate Authority, the petitioner

had filed a writ petition being W.P(C) No.11051/2009 titled as „Rajeev

Kumar Bansal vs. Union of India & Ors.‟ which was disposed off by this

Court by order dated 26th July, 2011 holding that since the petitioner

has not availed the alternative remedy of revision, he is not entitled to

invoke the jurisdiction under Article 226 of the Constitution of India

and therefore, the petitioner was given four weeks time from 26th July,

2011 to prefer a revision petition to the Director General (SSB).

9. Pursuant to the order dated 26th July, 2011, the petitioner

preferred a revision petition which was rejected by the respondents by

order dated 31st January, 2012.

10. Aggrieved by the decision dated 31st January, 2012 and other

orders dismissing the revision petition and appeal of the petitioner and

dismissing the petitioner from service, the above noted writ petition has

been filed, inter-alia, on the grounds that the Enquiry Officer had not

considered the independent medical evidence produced on behalf of the

petitioner regarding his absence and overstaying the leave, and that the

punishment imposed upon the petitioner is disproportionate to the

alleged charges made against him.

11. The petitioner has also challenged the order on the ground that

the medical record produced by him had not been considered by the

respondents. The order of punishment is also impugned on the ground

that it was incumbent upon the respondents to get the petitioner

examined from the medical board. The petitioner has also contended

that while dismissing the petitioner from the service the respondents

have not considered the fact that the petitioner had already rendered 16

years of service.

12. The learned counsel for the respondents, Ms.Barkha Babbar who

appears on advance notice has refuted the pleas and contentions raised

by the respondents. The learned counsel for the respondents has

contended that perusal of the enquiry report rather reveals that all the

documents produced by the petitioner had been considered and dealt

with by the Enquiry Officer. The Enquiry Officer has held that the

medical record/certificates produced by the petitioner do not disclose

the name of the petitioner and the registration number. The learned

counsel has also pointed out the contradictions in the medical record in

as much as on 4th May, 2006 the petitioner was advised medicine for 15

days and he was also advised to admit himself. The petitioner, however,

has not produced any record about his admission/discharge from the

hospital. The learned counsel has further pointed out that after

completion of the 15 days the petitioner should have got himself re-

examined on 19th May, 2006 but he reported only on 6th June, 2006

after a lapse of 19 days. The learned counsel in the circumstances has

contended that the Enquiry Officer has considered the entire medical

record produced by the petitioner and this Court will not re-appreciate

the evidence produced by the petitioner, which has been disbelieved by

the Enquiry officer. The learned counsel contended that this Court will

not substitute the findings of the Enquiry Officer with the findings of

this Court. The learned counsel has also asserted that the grounds on

which the decision of the respondents in dismissing the petitioner from

the service can be reviewed are illegality, irrationality and procedurally

impropriety. The learned counsel has further contended that the

counsel for the petitioner has not made out any illegality, irrationality or

any procedural impropriety in the decision taken by the respondents.

13. Ms.Babbar, the learned counsel has also emphatically contended

that it was not incumbent upon the respondents to get the petitioner

examined from the medical board. Since the petitioner had overstayed

the leave and had absented himself without permission and sanction, it

was for the petitioner to have produced the cogent evidence in support

of his contentions, that he was not medically fit to rejoin the duty. In

the circumstances, it is asserted that there is no provision under the

relevant rules to make the respondents liable to have the petitioner

examined by a medical board. In any case, at the time of the enquiry

the medical board, if any, could not have opined about the earlier

unfitness or the disease or the problems of the petitioner. The burden to

establish his absence without authorization was on the petitioner and

he should have discharged the same, which he failed to do leading to

the Enquiry Officer giving the findings against the petitioner, which

report had been carefully considered by the Disciplinary Authority and

after due opportunity to the petitioner, the punishment was imposed in

accordance with law. The learned counsel for the respondents has also

contended that the respondents have considered even the service of the

petitioner already rendered for 16 years before awarding the

punishment. Considering the various lapses on the part of the

petitioner which have been duly proved, the punishment imposed on

the petitioner cannot be termed as disproportionate.

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

perused the writ petition and the annexures filed with the writ petition.

The plea of the learned counsel for the petitioner that the medical

record of the petitioner had not been considered is belied by the detailed

consideration of the medical record submitted by the petitioner before

the Enquiry Officer. The Disciplinary Authority while awarding the

punishment has considered the medical record of the petitioner and

had observed as under:-

"(II). SI (p) Rajeev Kumar Bansal had submitted OPD card in connection with his treatment w.e.f. 04/05/2006. On examining the OPD card during the course of inquiry following discrepancies have been noticed:-

(i) There is no name, registration No. find mention in the OPD

card.

(ii) On 04/05/2006 medicine advised for 15 days. At the same time he was advised to admit. But he has not produced any records about his admission/ discharge from the Hospital.

(iii) After completion of 15 days he should have reported to the Medical Officer for re- examination on 19/05/2006 but he did not do so whereas he reported on 06/06/06 after lapse of 19 days which could be seen in OPD card. On 06/06/2006 medicine advised for one month. After completion of 30 days the individual was liable to report the medical officer concerned on 05/07/2006. However, he reported the Medical officer on 10/7/2006 i.e. after 05 days. On 10/07/2006 he was prescreened medicine for me month thereafter he was required to report to Medical Officer concerned on 10/08/2006 for re-check up. However he submitted OPD card on dated 07/08/2007 and in that card there is no signature of Medical Officer. Moreover, a perusal of the OPD Card reveals that same has been prepared in one go. He reported Medical Officer on 01/09/2006 i.e. after one month from the due date and than he was prescribed medicine for 15 days.

(iv) Thereafter he was required to report on 16/09/2006 but he reported to medical officer on 26/12/2006 i.e. after about 3 and half months. Moreover, from the period w.e.f. 04/05/2006 to 26/12/2006 neither he was advised and medical rest nor any test was conducted during this period. He was advised MEDICINE ON OPD Card but the individual has not produced any. Cash Memo of the medicines for reimbursement From the facts on records it could be said that the individual has prepared unauthentic medical papers on 26/12/2006 in one go to cover up his unauthorized absence under question.

(v) SI(Pioneer Rajeev Kumar Bansal has also not submitted any documentary evidence in connection with his family problems for which he was compelled to apply leave without pay upto 31/12/2006 as per his contention.

(vi) During the course of inquiry SI(P) Rajeev Kumar Bansal was asked vide Question No. 13 of the statement of the individual dated 13/02/2008 by the I.O. to express his statement in right whether he was ill and getting treatment w.e.f. 04/5/2006 from Dr. Tantia or due to family problem for which he remained absent. In turn he stated that he has no word to say about this question. Therefore he

admitted his mistake and also pleaded guilty of article of charge No. II. Accordingly the article of Charges --II has been proved beyond doubt by the I.O."

15. In view of the detailed consideration of the Disciplinary Authority,

the pleas of the learned counsel for the petitioner that the medical

record of the petitioner had not been considered by the respondents is

not made out. The plea of the petitioner is contrary to the record. The

medical record of the petitioner produced by him had been considered

by the Enquiry Officer and the Disciplinary Authority and, therefore,

this plea is not sustainable. The learned counsel for the petitioner has

failed to point out any illegality, irrationality in the consideration of the

medical record of the petitioner in the facts and circumstances.

16. It cannot be disputed that the Court, in exercise of its jurisdiction

under Article 226 of the Constitution of India, has no jurisdiction to go

into the correctness of the truth of the charges. It cannot re-appreciate

the evidence already considered by the disciplinary authority, nor can it

sit in appeal on the findings of the disciplinary authority and assume

the role of the appellate authority. Normally the Court cannot interfere

with the findings of the fact arrived at in the disciplinary proceedings

except in the case of mala fides or perversities 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 or where

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 enquiry authority or if the charges are vague or if the

punishment imposed is shocking to the conscience of the Court.

Reliance for this can be placed on State of U.P & Ors. v. Raj Kishore

Yadav & Anr., (2006) 5 SCC 673; V.Ramana v. A.P. SRTC & Ors.,

(2005) 7 SCC 338; R.S.Saini v. State of Punjab & Ors., JT 1999 ( 6) SC

507; Kuldeep Singh v. The Commissioner of Police, JT 1998 (8) SC 603;

B.C.Chaturvedi v. Union of India & Ors, AIR 1996 SC 484; Transport

Commissioner, Madras-5 v. A.Radha Krishna Moorthy, (1995) 1 SCC

332; Government of Tamil Nadu & Anr. v. A. Rajapandia, AIR 1995 SC

561; Union of India & Ors. v. Upendra Singh, (1994) 3 SCC 357 and

State of Orissa & Anr. v. Murlidhar Jena, AIR 1963 SC 404.

17. The plea of the learned counsel for the petitioner that the

respondents should have got the petitioner examined from the medical

board can also be not accepted. No rule or regulation has been shown

by the learned counsel for the petitioner which will make it obligatory

on the part of the respondents to get him examined from the medical

board after the petitioner failed to show sufficient cause for his absence.

Though his prayer for 60 days leave with effect from 1st April, 2006 to

30th May, 2006 on the ground of personal/family problem was not

sanctioned at the time of relieving him, yet the petitioner had absented

himself. The leave could not be claimed by the petitioner as a matter of

right in view of the exigencies of public service. If the leave was refused,

the petitioner could not decide on his own that he is entitled to absent

himself. In any case, if during the pendency of the disciplinary

proceedings, had any medical board constituted, such a medical board

could not have ascertained the reasons for the absence of the petitioner

after he was allegedly cured. The petitioner had to produce the evidence

of those doctors who had treated him or if he was admitted to the

hospital, then the record of such an hospital. The medical record

produced by the petitioner has been disbelieved and no other relevant

medical record has been produced. In the circumstances, the plea of the

petitioner that he should have been examined by the medical board

cannot be accepted in the facts and circumstances of the present case.

18. Considering the serious allegations and the conduct of the

petitioner earlier, it cannot be held that the punishment of dismissal

from service awarded to the petitioner is disproportionate in any

manner as has been alleged by the petitioner.

19. No procedural impropriety has been pointed out by the learned

counsel for the petitioner. The petitioner has also failed to show any

vulnerability like illegality, irrationality or procedural impropriety.

Another relevant thing is that whether the actions of the respondents

falls within any of these categories has to be established by the

petitioner and the mere assertion by the petitioner in this regard is not

sufficient.

20. The grounds on which administrative action is subject to control

by judicial review are, "illegality"; "irrationality" and "procedural

impropriety". The Court is 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 having 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 factors 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."

21. In the facts and circumstances, there are no grounds to interfere

with the order of the respondents dismissing the petitioner from service.

The writ petition is without any merit and it is, therefore, dismissed.

ANIL KUMAR, J

SUDERSHAN KUMAR MISRA, J MAY 02, 2012 „k‟