Ex. Constable Ashok Kumar vs Union Of India & Ors.
2012 Latest Caselaw 3476 Del

       *      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Date of Decision: 24.05.2012

+                              W.P.(C) No.7098/1999

Ex. Constable Ashok Kumar                       ...      Petitioner

                                 Versus

Union of India & Ors.                            ...     Respondents

Advocates who appeared in this case:

For the Petitioner       :     Mr.Sheetesh Khanna & Mr.Gautam
                               Anand, Advocates
For Respondents          :     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 15th

January, 1999 passed by the Commandant 5th Res/Bn Ghaziabad

dismissing the petitioner from service under Rule 29 (1) of the Central

Industrial Security Forces Rules, 1969 and the order dated 30th

September, 1999 passed by the Deputy Inspector General, NZ

dismissing the appeal of the petitioner.

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

petitioner while serving in the Central Industrial Security Forces (CISF)

was posted at the Central Wrestling Team at Shakurbasti, Delhi. The

petitioner was, thereafter, directed to move on 21st November, 1996 to

report to IOC Mathura on 26th November, 1996. The petitioner,

however, did not report on 26th November, 1996 allegedly on account of

an injury on his right leg, suffered by him during the wrestling practice,

because of which he remained absent from 20th November, 1996 up to

14th March, 1997, i.e. a total of 115 days without the alleged proper

permission of the concerned officer. The petitioner also admitted that he

had received the letters dated 20th January, 1997, 9th February, 1997

and 7th March, 1997 directing him to report to the IOC Mathura, but he

couldn‟t do so since he was undergoing treatment for his injury.

3. The petitioner further submitted that he had received a letter

dated 8th February, 1997 from the Deputy Commandant, CISF declaring

the petitioner as a deserter and intimating him that his act of remaining

absent without permission from a Competent Authority is an act of

indiscipline. Referring to the letter received from the petitioner, wherein

he had stated that he was not well and that he had injured his foot

during practice, the respondents had categorically intimated in the

letter dated 8th February, 1997 that the date on which he had fallen ill

or had incurred the injury had not been disclosed by him in his

communication, nor was any medical certificate sent by the petitioner

along with his letter. The respondents, therefore, cautioned that the

petitioner must appear before the Government Hospital CISF

Headquarters, New Delhi along with the necessary medical certificates,

otherwise stern action would be taken against him.

4. According to the petitioner, he took the medical fitness certificate

and documents of his treatment from the concerned Hospital

Dispensary and reported for duty on 15th March, 1997, however, he was

served with a notice, vide letter No.V-15014/5RB Disc./8/98-974 dated

24th April, 1998 stipulating the framing of the charges of absence

without proper permission from the Competent Authority for the period

of 20th November, 1996 up to 14th March, 1997. The charge which was

framed against the petitioner is as under:-

"No.854507511 Cost. Ashok Kumar was asked to report wrestling team Mathura but member of the force did not report to Mathura Unit and he remained absence from 20.10.96 to 14.03.1997 i.e. 115 days without proper permission of officer which is sign of indiscipline gross misconduct and negligence."

5. The charge sheet was sent to the petitioner by registered post at

his home address and he was asked to reply within 10 days. The

petitioner replied to the charge sheet. Without taking the reply into

consideration and on the assumption that reply had not been filed by

the petitioner, an Inquiry Officer was appointed by order dated 4th May,

1998.

6. The Inquiry Officer, thereafter, sent notices to the witnesses and

three witnesses, namely Chinamuthu, Clerk, Jai Bhagwan, Clerk, and

Sh. Rohtas Singh, Wrestling Coach, were examined on behalf of the

respondents, and the petitioner was given the opportunity to cross-

examine them. K. Chinnamuthu, PW-1 who was the dealing assistant

regarding documents, had categorically deposed about the letter dated

8th February, 1997 sent by the Deputy Commandant R.H.P.P. Pipri to

the petitioner intimating him that he has been declared as a deserter,

since he had remained absent without any leave and that he should

appear with the relevant documents and medical certificate before the

respondents. The said witness was cross-examined by the petitioner as

well. The petitioner had asked him about the letter dated 20th

November, 1996 whereby the petitioner was sent to IOC Mathura for

practice. The respondents also examined Sh. Jai Bhagwan, PW-2, who

had deposed that he was posted at Mathura since 11th October, 1996.

He deposed that the petitioner had reported on 15th March, 1997 which

is when he had submitted his medical papers regarding his treatment.

The next witness examined by the respondents was Sh. Rohtas Singh,

Chief Wrestling Coach Central Team, CISF, PW-3, who had deposed

that the petitioner had injured himself on 20th November, 1996. Due to

the injury the petitioner was sent to the hospital along with two other

wrestlers. He also deposed that the Commandant had told him about

the receipt of the medical papers of the petitioner by registered post and

that the petitioner had also reported on 15th March, 1997 at IOC,

Mathura. To the Court‟s question as to where they were training on 20th

November, 1996, the witness replied that they were practicing at

Rajendra Nagar Gymnasium (Vyayamshala), and he also categorically

stated that the petitioner had suffered an injury on his right foot during

practice.

7. The petitioner was also examined by the respondents. In his

statement recorded on 17th July, 1998, the petitioner had categorically

stated that he did not require a copy of any of the documents in relation

to the enquiry. He also stated that he does not want to examine any

witnesses in support of his defense. Regarding the question whether he

wants to produce any documents, the petitioner had stated that he has

medical documents pertaining to his injury which he would like to

produce.

8. In the statement of the petitioner recorded by the respondents, he

had categorically stated that on 20th November, 1996, his team was

practicing at Rajender Nagar Gymnasium (Vyayamshala) and that while

doing the exercises he had injured his right foot. He also categorically

deposed that he was sent to the hospital by the Coach along with two

other persons. The petitioner further deposed that the doctor at the

Govt. Dispensary Bupania had advised him to take medicine and

complete rest. During this time, he came to know that his entire team

had gone to IOC Mathura. The petitioner categorically stated that he

was told that on recovery he should report at IOC Mathura. He also

stated that he had intimated IOC Mathura that as soon as he would

recover, he would join them. The petitioner deposed that he had

recovered only on 15th March, 1997 which is when he had reported

there.

9. The Inquiry Officer considered the statements of the witnesses

and the documents produced by the respondents which were the

Wireless Message of Deputy Commandant Sports on 13th January,

1997, Wireless Message of Deputy Commandant, RHPP Pipri dated 20th

January, 1997, Call Up Notice dated 7th March, 1997 and OSL Report

dated 6th March, 1997. The documents of the petitioner which were

considered were the application of the petitioner dated 7th February,

1997, 21st February, 1997, 20th February, 1997 and the medical

papers/certificate of AMO, Govt. Ayurvedic Hospital, Bupania, Rohtak.

The Inquiry Officer also considered the Court Exhibits. Ex. CE-1 which

was a communication addressed by the Deputy Commandant to

AIG/Sports regarding the salary for the month of November, 1996 being

returned back; Ex. CE-2 about the petitioner not reporting to the Unit

Coach of the team and that the whereabouts of the petitioner was not

known to them; Ex. CE-3 which is a letter by the Deputy Commandant

to the petitioner at his home address to report for the concentration of

wrestling team; Ex. CE-4 which is a letter by the Coach of the wrestling

team informing the Commandant the home address of the petitioner

and Ex. CE-5 which is a letter by the Deputy Commandant whereby he

requested the Commandant at IOC Mathura to send all the documents

pertaining to the petitioner for further action.

10. The Inquiry Officer, after careful consideration, gave its report

holding that the petitioner had failed to report at the IOC Mathura for

the wrestling practice in the Central Team and remained AWL w.e.f. 20th

November, 1996 to 14th March, 1997 for 115 days on his own without

prior permission of the competent authority and that he did not

respond to the call up notices for joining duty and thus, the article of

charge framed against the petitioner stipulating that he remained

absent from 20th November, 1996 to 14th March, 1997 for 115 days

without permission of any superior officer is made out. The copy of the

report was sent to the petitioner who replied by his representation dated

6th January, 1998 stating that on 20th November, 1996 he had injured

his foot seriously because of which he was sent to the Govt. hospital

where the doctor advised him complete rest. He stated that he had

undergone treatment continuously and that in the meantime, the

wrestling team had gone to IOC Mathura Unit and that he could not

report on account of his injury and also that as soon as he was fully

recovered, he had reported at the IOC Mathura. The petitioner further

stated that he had periodically intimated the respondents about his

medical rest and the treatment received by him. The Disciplinary

Authority, however, by order dated 15th January, 1999 held that the

inferences of the Inquiry Officer were correct and that it is apparent

that the petitioner had been directed to go along with the wrestling team

to Mathura, however, the petitioner did not go with the wrestling team

and was, thereafter, declared as a deserter, which was also intimated to

the petitioner by the order from the Deputy Commandant, Pippari dated

8th February, 1997. Since the petitioner did not report to duty, he was

also sent other letters dated 9th February, 1997 and 7th March, 1997.

The Disciplinary Authority, however, considered the reply dated 6th

January, 1998 and the medical certificates stipulating that he had

suffered a serious injury in his right foot. The Disciplinary Authority

also held that since the petitioner was getting treatment from an

Ayurvedic Dispensary, therefore, his injury/disease was not so serious

so as not to report for duty and remain absent (AWL) for 115 days. It

was held that since the petitioner could go to the dispensary and was

getting treatment as an outdoor patient, therefore, clearly the petitioner

was in a position to move about and thus he could have very well

reported to his Unit. From the medical certificate, it was also inferred

that though the petitioner had injured his right leg, however, he was

taking the treatment for another disease as per the medical certificated

produced by him. The Disciplinary Authority also held that since the

petitioner had not produced any bill regarding the purchase of the

medicines, therefore, the medical certificates submitted by him did not

justify his period of absence without leave and consequently, the charge

framed against the petitioner is made out. The Disciplinary Authority

thereby passed the order of dismissal from service under Rule 29 (1) of

the CISF Rules, 1969.

11. The appeal filed by the petitioner was also dismissed by the

respondents by order dated 30th September, 1999. The Appellate

Authority, while dismissing the appeal, held that the movement order is

not issued to every individual member of a team but is instead issued to

the in-charge of the team. The Appellate Authority also emphasized that

the appellant was given an opportunity to cross-examine the

respondents‟ witnesses, however, he did not ask any questions

regarding the plea that he had not received any movement order from

PW-3, Coach, Rohtas Singh. It was further observed that in the first

statement recorded during the course of the inquiry, the petitioner was

given an opportunity and it was asked whether he wanted any

documents in relation to the inquiry, and the petitioner had replied that

he does not want any documents.

12. The Appellate Authority also repelled the plea that the petitioner

had not absented himself since the reason for his absence was in the

knowledge of the Inspector/Exe. Rohtas Singh, Chief Wrestler, who was

well aware that the petitioner had sustained injuries and was receiving

treatment, on the ground that the appellant did not send any medical

certificate about his sickness, nor had he intimated the authorities. It

was also observed that even though the petitioner had sent an

application which was received at the CISF Unit, RHPP Office on 7th

February, 1997, however, in that too he did not enclose any medical

certificate, therefore, he remained AWL at his own will. The Appellate

Authority in the order dated 30th September, 1999 has held as under:-

4. The first plea of the appellant is that he had not received the movement order on 20.11.96 to proceed to CISF Unit, IOC Mathura. His plea is devoid of merit. Movement order is not being issued individually in case of movement of sports teams. It is being issued to the in charge of the team and not to all personnel whose names are mentioned in the same movement order. Appellant was given opportunity to cross examine the PWs in the departmental enquiry, but he did not ask any question on this plea from the PW-3 Coach/Inspector Rohtas Singh. In the first statement recorded during the course of enquiry, he was given an opportunity to state, as to whether he wants any document, to which he replied that he does not want any document, to which he replied that he does not want any document. The present plea of the appellant in the appeal is nothing but just to obtain sympathy of the appellate authority.

5. The second plea of the appellant is that he had not absent himself because it was in the knowledge of Inspector Exe Rohtas Singh Chief wrestler coach that the appellant had sustained injuries and sent to Hospital and is undergoing treatment. The medical papers sent by him were received by the commandant IOC Mathura and thereafter he reported at IOC Mathura on 15.3.1997 along with Fitness Certificate. As per records it appears to be correct that Inspector/Exe Rohtas Singh, Chief wrestler coach deposed in his statement that during practice, appellant sustained injury in his leg and was sent to Hospital on 20.11.96 with the help of two other wrestlers. In the mean time ordered were issued by the Force Hqrs. To the said wrestler team for reporting at IOC Mathura on 26.11.96. till issued of call up notice by the Dy. Commandant, CISF unit RHPP Pipri on 20.1.97 appellant neither sent any medical certificate about his sickness nor intimated to the authority. He sent an application which was received at CISF Unit, RHPP Office on 7.2.97 in that too he did not enclose any medical certificate. He remained AWL at his own will. Had he been actually sick, he should have sent medical papers along with his application requesting for leave, but he did not do so. Further on perusal of medical papers produced by him on his joining, it is found that he was not admitted in hospital but was

taking treatment as outdoor patient. Hence his plea is not tenable."

13. The fact that the petitioner had taken treatment as an outdoor

patient and that he was not hospitalized also weighed on the mind of

the Appellate Authority. The Appellate Authority had held that he could

have joined the duty and then proceeded on leave for taking treatment if

needed. The Appellate Authority also noticed that the plea of the

petitioner is that he suffered injury in the right foot, however, his

medical certificate shows that he was taking treatment for "Sciatica"

and gastric from an Ayurvedic Dispensary and not for any fracture. It

was also noted that since he had approached the doctor many times it

was reflective of the fact that the disease was not so grave so as to

prevent him from joining the duty. If the petitioner could go to the

doctor a number of times for his treatment, then he could have reported

to the Unit as well and thereafter, proceed on leave if needed.

14. In para 10 of the Appellate order dated 30th September, 1999 the

Appellate Authority had held as under:-

"10. His plea that Disciplinary Authority is not expert in medical line, also reflects more of his indisciplines state of mind. The appellant is a resident of Rajinder Nagar, New Delhi. This is a Central place and close to several prestigious Govt. and private hospitals, from where the appellant could take treatment, which was for sciatica and gastric and not for fracture. The appellant expects that the Disciplinary Authority should not have questioned this difference that the appellant claims to have fractured his

leg during practice, but taking Ayurvedic treatment 50 KM away for gastric and sciatica. His plea is more of arrogance rather than true presentations of facts. The sports personnel have been recruited in CISF to give them an opportunity to improve their performance and also give them opportunity to participate at National level and raise image of force. But if the appellant is not available at the time of sports meet, then the very purpose of their recruitment is lost. The appellant has not preferred to serve the Force at the time he was required and this has lost his right of service in Force in public interest."

15. Thus, what weighed with the Appellate Authority was that sports

persons are recruited in the CISF to give them an opportunity to

improve their performance and also to give them an opportunity to

participate at national level and raise the image of the force and that if

the petitioner was not available at the time of the sports meet then the

very purpose of his recruitment was lost and thus, the Appellate

Authority had dismissed the appeal and upheld the punishment of

dismissal from service.

16. The petitioner has challenged the order of dismissal on the

ground that he was not a deserter and that there was sufficient reason

for him not to have reported for duty and that the punishment of

dismissal is disproportionate to the gravity of the offence imputed

against him. The petitioner also has contended that he was under bona

fide impression that permission had been granted by the Chief

Wrestling Coach, and therefore, he continued with his treatment and in

the circumstances, the severe penalty of dismissal from service could

not be imposed on the petitioner. The petitioner also contended that he

had sent copies of all the medical certificates received by him from time

to time which had not been considered either by the Disciplinary

Authority or the Appellate Authority which are, however, on the record

of the file of the respondents.

17. The writ petition is contested by the respondents who filed a

counter affidavit of Lt. Col. R.L.Mann who stated that the charge sheet

under Rule 34 of the CISF Rules, 1969 was issued by the Commandant

by memo dated 24th April, 1998 and that the petitioner was charged for

absence without leave from 20th November, 1996 to 14th March, 1997.

The petitioner had submitted a reply to the charge sheet on 6th July,

1998, however the Disciplinary Authority on not being satisfied with the

reply, had appointed an Inquiry Officer who conducted the

departmental inquiry and on considering the prosecution‟s evidence

held that the guilt of the petitioner is made out. The copy of the inquiry

report was served on the petitioner by letter dated 2nd December, 1998.

The petitioner had represented against the findings in the inquiry

report, however the Disciplinary Authority agreed with the inquiry

report and imposed the punishment of dismissal from service by order

dated 15th January, 1999. The respondents also disclosed that the

petitioner was permanently posted at CISF Oil Campus, Shakurbasti,

Delhi. He was attached to the said unit for wrestling practice with the

Central Wrestling Team, though the CISF unit of the petitioner‟s was

otherwise posted at BCCL, Dhanbad and subsequently at Pipri and

then to 5th Res./BN Ghaziabad.

18. The respondents admitted that the petitioner was attached to the

CISF Wrestling Team and was under the administrative control of the

AIG/ sports as well as Commandant CISF Unit OCS, Shakurbasti,

Delhi. The respondents, however, denied that the team‟s movement is

controlled by the authority of the Coach. According to the respondents,

the team‟s movement is controlled by the AIG/sports and that the coach

is not empowered to sanction any kind of leave or move the

team‟s/individual‟s temporary duty at his own will, as he is not the

Head of the office to have exercised such administrative power. The

respondents also disclosed that when the petitioner had injured his leg

on 20th November, 1996, he was sent to hospital, however, he went to

his village without any valid permission or leave from any competent

authority and since the injury sustained by the petitioner was not of

grave nature he was taken as an outdoor patient. According to the

respondents, it was incumbent on the part of the petitioner to have

submitted the diagnosis, medical advice, medical prescription and

medical unfitness certificate to his controlling officer along with his

leave application for the period he was given medical rest. Since the

petitioner did not seek any permission, nor inform regarding his

treatment after 20th November, 1996, therefore, his absence was treated

as an intention to desert the force. Reliance was also placed on the call

up letter sent by the Deputy Commandant, CISF Unit, Pipri on 20th

January, 1997, 9th February, 1997 and 7th March, 1997. The

respondents, however, admitted that the petitioner did sent replies that

he would join the duty after recovering from his illness, but the

respondents found the replies of the petitioner to be very vague.

Regarding the medical certificate given by the petitioner, it was asserted

that as per the medical certificates though he was getting the treatment

for "Sciatica", according to the petitioner, he had sustained injury in his

right foot and thus, the medical certificates are clearly a ploy to cover

up his unauthorized absence and are thus not genuine. The emphasis

was also laid on the fact that the Ayurvedic dispensary at Bupania was

at a distance of 25 Kms. from his village and that if he could go to the

Ayurvedic Dispensary, then he could have reported to his controlling

authority as well. Regarding the leave of the petitioner, the respondents

disclosed that he had only 232 earned leaves and 186 half pay leaves to

his credit. The respondents stated that in any case, it is not a question

of how many leaves were remaining for the petitioner, but the fact that

the petitioner had remained on unauthorized absence for 115 days.

Since the petitioner is a member of the para military force, he is

expected to follow the rules, and therefore, the dismissal of the

petitioner from service was contended to be justified.

19. The petitioner, by way of a rejoinder dated January, 2001, has

refuted the pleas and contentions raised by the respondents in their

counter affidavit and contended that for all practical purposes, the

decisions are taken by the Coach of the Team as otherwise the Coach

could not have sent them anywhere to participate in the Wrestling

matches. The petitioner has emphasized on the authenticity of the

medical certificate given by the petitioner, which have not been denied

by the respondents. Reliance was also placed by the petitioner on the

fact that he has completed an unblemished service of 12 years, and

therefore, he is entitled for pro rata pension as envisaged in the

statutory rules.

20. Reliance was also placed on the decision of the Supreme Court in

Major G.S. Sodhi v. Union Of India, JT (1992) 4 SC 337. The petitioner

has also filed an additional affidavit dated 2nd February, 2012

contending that on 20th November, 1996 he had not gone to the doctor

on his own but since he had sustained injury during practice, therefore,

the Coach had sent him to the doctor with the assistance of two other

persons. The petitioner could not have come back on the next date as

the unit had moved on 21st November, 1996 to IOC at Mathura where

he had to report by 26th November, 1996. However, as the petitioner

had been injured and he wasn‟t even aware of the movement order as

the same was not communicated to him by the Coach, therefore, he

could not report on 26th November, 1996 at IOC, Mathura. The

petitioner also referred to various medical certificates which were sent

by him to the commandant from time to time. Reliance was further

placed by the petitioner on the medical tickets/prescriptions issued

from the Govt. Dispensary Bhupania, Rohtak advising him rest.

Reliance was also placed on the medical certificate dated 20th

November, 1996 advising him rest from 20th November, 1996 to 31st

December, 1996; medical certificate dated 31st January, 1997 advising

him medical rest from 31st January, 1997 to 28th February, 1997;

medical certificate dated 14th March, 1997 holding that the petitioner

had become fit to join the duty on 15th March, 1997. The petitioner also

produced the postal receipts dated 3rd February, 1997 and two postal

receipts of 15th February, 1997.

21. In the additional affidavit filed by the petitioner, it was

categorically deposed that though the petitioner had joined his duty on

15th March, 1997 and he had also furnished the relevant documents,

however, during the inquiry the documents produced by the petitioner

for the alleged unauthorized absence for 115 days had not been

considered.

22. After the petitioner had reported for duty on 15th March, 1997, he

was directed to report at RHPP, Pipri on 5th June, 1997 and was sent to

CISF Unit 5th Res. BN Ghaziabad on regular posting by order dated 7th

June, 1997 and posting order dated 1st May, 1997.

23. Refuting the inquiry report and the orders of the Disciplinary and

Appellate Authorities, it was asserted that the witness of the

respondents, PW3, had deposed that the Commandant of IOC Mathura

Unit had informed him that medical documents were received from the

petitioner by registered post. According to the petitioner, this

establishes that the petitioner had been informing regularly and

periodically about his inability to join the duty which fact is

substantiated by the medical certificates sent by the petitioner which

were also received by the concerned authorities and which are on

record. The petitioner also emphasized that he had sufficient number of

leave to his account which could have been adjusted for his absence

and in the circumstances, the order of dismissal from service is

disproportionate and has been passed without application of mind and

thus, is not sustainable.

24. Learned counsel for the petitioner also relied on Bhagwan Lal

Arya v. Commissioner of Police, AIR 2004, SC 2131; B.K.Sharma v.

Union of India & Ors., W.P.(C) 4370/1992 decided on 21st May, 2008

and K.S.Pundir v. Union of India & Ors., WP (C) 2893/1997 decided on

10th May, 2011.

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

also perused the original record pertaining to the inquiry conducted

against the petitioner, produced by the learned counsel for the

respondents. Perusal of the original file of the inquiry reveals that the

petitioner had filed the reply to the charges made against him by his

reply dated 4th July, 1998 which was received by the respondents on 6th

July, 1998. In the said reply, the petitioner had categorically disclosed

that during the wrestling practice he had hurt himself and it became

difficult for him to move around and he was sent by the Coach to the

Govt. Hospital, Bhupania for treatment. Though the petitioner had

sustained injuries in his Rt. leg, however, the medical officer on 20th

November, 1996 after investigation had told the petitioner that he is

also suffering from Sciatica and thus he had advised compete rest to

him. The petitioner also stated in his reply to the charge sheet that

since he is a sports man, he did not know much about the procedural

matters. Though the petitioner had filed the reply to charge memo but

the respondents assumed that the reply to charge memo was not filed

by the petitioner.

26. Perusal of the original file of the respondents pertaining to the

petitioner also shows letter dated 7th February, 1997 along with the

registered envelop and the other letters sent by the petitioner where he

has requested his Commandant that he is unable to join on account of

the fact that he is not fit. The original file also has the copy of the

medical certificate of fitness dated 14th March, 1997 declaring the

petitioner to be fit and capable for resuming his duty on 15th March,

1997. The original record also contains the medical certificate dated

20th November, 1996 advising complete rest to the petitioner from 20th

November, 1996 to 31st December, 1996, and the medical certificate

dated 31st January, 1997 certifying that the petitioner is suffering from

Sciatica and his absence from duty for 29 days from 31st January, 1997

to 28th February, 1997 is absolutely necessary for treatment. The

petitioner has not only produced the medical certificate certifying that

he has to take rest but he has also produced his prescription showing

that he visited the Govt. Dispensary on 20th November, 1996; 23rd

November, 1996; 30th November, 1996 and 10th December, 1996. Other

prescriptions have also been produced showing that the petitioner had

visited the dispensary on 1st January, 1997, 8th January, 1997, 14th

January, 1997, 17th January, 1997 and 24th January, 1997. Another

prescription/outdoor ticket shows the consultation done by the

petitioner on 1st March, 1997 and 8th March, 1997.

27. It is a settled law that it is not the function of the High Court

exercising its jurisdiction under Article 226 to review the findings and to

arrive at independent findings on the same evidence. However, 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 delinquent to defend himself or it is a case

where there has been non application of mind on the part of the inquiry

authority or if the charges are vague or if the punishment imposed is

shocking to the conscience of the Court, the Court will be entitled to

interfere. The Court will interfere in such matters if 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. To be "irrational" it has to be held, that on material, it is a

decision "so outrageous" so 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 and 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.

28. Form the above it is apparent that while going into the

correctness of the facts established against the delinquent, though the

Court cannot take over the function of the Disciplinary Authority, nor

can it sit in appeal on the findings of the Disciplinary Authority and

assume the role of the Appellate Authority, however, if there is an

irrationality, illegality or procedural impropriety, the Court must

interfere. It also cannot be disputed that the Court can interfere with

the findings of the fact arrived at in the disciplinary procedure, in case

where there is no evidence to support the finding or the finding is such

that a person acting reasonably or with objectivity could not have

arrived at the said conclusion 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

Disciplinary Authority or if the charges are vague or if the punishment

that is imposed is shocking to the conscience of the Court. The Court

will have no option but to interfere if the decision is tainted with

vulnerability, illegality, irrationality or procedural impropriety.

29. It has to be assumed that a conclusion that is arrived at is on the

basis of careful examination of the material on record. However,if such

a conclusion is so outrageous so as to be in utter defiance of logic or

moral standard, then it is the duty of the Courts to correct the same. If

the power is exercised on the basis of the facts which do not exist and

which are patently erroneous, such exercise of power shall be vitiated.

Exercise of power is also likely to be set aside if there is any 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

ensure that the respondents have not left out a relevant factor or taken

into account an irrelevant factor.

30. The respondents have proceeded on the assumption that since

the petitioner had been only an `outpatient‟ and he was undergoing

treatment for the ailment suffered by him, it is to be assumed that the

circumstances of the petitioner were not so grievous so as to render him

completely incapable of reporting to the respondents. Apparently, this is

based on the assumption of the respondents, that if the petitioner could

go for the Ayurvedic treatment, then the ailment for which he was

treated was not so serious so as to disable him from reporting for duty.

This also cannot be disputed on the basis of the material on record, the

medical certificates and the medical report of the Govt. Dispensary, that

he was advised rest for the period the petitioner was absent. The

various certificates which had been produced by the petitioner in no

uncertain terms stipulate that the period of absence from the duty, as

indicated in the certificate, is absolutely necessary for his treatment

and the restoration of his health. If that be so, then only on account of

the fact that the petitioner had gone to the dispensary and was

receiving treatment as an outpatient, the respondents could not assume

that he was fit to re-join the duty. If the respondents had doubt about

the unfitness of the petitioner at the time he was absent without leave

and the authenticity of the medical certificates produced by the

petitioner, then they should have examined the doctors of the Govt.

Dispensary who had issued the various certificates for the different

periods advising rest to the petitioner, rather than assuming on their

own that the petitioner was fit enough to join the duty. This is not the

case of the respondents that the petitioner had procured the medical

certificates and his prescription.

31. The respondents have also doubted the medical unfitness of the

petitioner on the ground that the certificates were issued by an

Ayurvedic Dispensary. Whether the certificates are issued by an

Ayurvedic Dispensary or Allopathic Dispensary, in the opinion of this

Court, it will not make any difference. The fact which requires

consideration is whether the petitioner indeed was ill at the time he was

absent without leave and therefore whether there was sufficient cause

for the same.

32. The petitioner had explained that though he had injured his leg

during the training session and he was sent with two persons as per the

directions of the Coach, as he was incapable of going on his own, which

fact has not been denied by the respondents, the doctors discovered

that not only was there an injury to his leg but that the petitioner was

also suffering from sciatica. The respondents, however, have disbelieved

the said medical documents on the ground that the medical certificates

produced by the petitioner is clearly a ploy to cover up his unauthorized

absence and thus are not genuine since even though he complained of

the injury in his right foot, he had been treated for sciatica, which is an

altogether different disease.

33. As per Dorland's Medical Dictionary, "Sciatica" is a set of

symptoms including pain that may be caused by general compression

or irritation of one of the five spinal nerve roots that give rise to each

sciatic nerve, or by compression or irritation of the left or right or both

sciatic nerves. The pain is felt in the lower back, buttock, or various

parts of the leg and foot. In addition to pain, which is sometimes severe,

there may be numbness, muscular weakness, pins and needles or

tingling and difficulty in moving or controlling the leg. Thus, from the

said definition it is clear that sciatica is not an unrelated ailment to the

injury suffered by the petitioner in his right foot but might have in fact

been in connection or arising out of it. Therefore, the plea of the

respondent that inspite of the injury in the right foot, the petitioner was

not treated for the same but he was treated for an altogether different

ailment of `sciatica‟, is utterly irrational and cannot be countenanced. It

is clear that the respondents did not make any attempts to verify the

consequences and the reason for the sciatica suffered by the petitioner,

and instead merely, on its own, assumed in a mechanical manner that

sciatica is completely unrelated to the injury suffered by the petitioner

on his right foot and therefore the medical documents specifying its

treatment are unreliable. The respondents have, therefore, acted on the

facts which are patently erroneous and consequently their decision will

have to be vitiated. In any case, even if it is to be believed that sciatica

is a disease which is completely different to the injury suffered by the

petitioner in his right foot, it would not make any difference, since it is

quite possible that on being examined by the doctor one comes to know

of being suffering from an altogether different disease, which one might

not have been aware of oneself, but which could have only been realized

on being examined by a medical expert such as the doctor. The issue,

therefore, to be determined by the respondents in the facts and

circumstances is whether or not there was suitable cause for the

charged officer to have been absent without leave, regardless of the

ailment suffered by him which in the present facts and circumstances

was clearly there, as the petitioner was suffering from sciatica and was

therefore not in the fit condition to rejoin his duty.

34. This is not disputed by the respondents that the injury was

sustained by the petitioner during the training session in the presence

of PW3, the Coach of the petitioner. PW3 has also deposed that the

injury was suffered by the petitioner and that he had to send two other

persons with the petitioner so that he could be taken to the hospital.

Therefore, from the facts deposed by PW-3 it is clear that the injury

suffered by the petitioner must have been so severe that he needed the

help of two other persons. During the treatment, if the doctors have also

found him to have sciatica and have advised him complete rest, the

petitioner cannot be faulted for the same. The reasoning of the

respondents that if the petitioner could go to the dispensary which was

at a distance from his place, he could have joined the duty as well, is in

total defiance of the understanding of what sciatica is, by the

respondents. The persons suffering from sciatica may be capable of

going to the dispensary, however, it cannot be assumed that he would

also be in a position to perform the normal duties expected of him or fit

to rejoin the duty. The petitioner was to rejoin the duty after becoming

medically fit and under rules and in the facts and circumstances, he

was not required to join duty though not medically fit and thereafter to

have applied for the leave. In the circumstances, the reasoning of the

Disciplinary Authority and the Appellant Authority is without any logic

and is rather reflective of their non-appreciation and their non-

understanding of the problem of the sciatica and its ramification.

35. The respondents, the Disciplinary Authority and the Appellate

Authority, have also stated that the petitioner had been only an outdoor

patient and that he had undergone Ayurvedic treatment for the ailment

suffered by him, therefore it does not lead to the inference that the

circumstances were so grievous so as to render him completely

incapable of informing the competent authority about the nature of his

illness or for requesting for leave by forwarding an application. This

reasoning is also based on the assumptions of the respondents which

is, however, contrary to the record. The petitioner may not have been

right in not intimating the respondents about his problem initially, but

it cannot be denied that he did write to the respondents. The petitioner

had written to the respondents on 7th February, 1997 besides other

communications explaining the reason for his absence. In the undated

letter which was received on 7th February, 1997 by the respondents, he

categorically stated that on account of the sudden injury in his leg and

his sudden illness he is unable to come and join and will immediately

report on becoming medically fit along with the relevant documents.

The petitioner had also sent an undated letter which was received on

21st February, 1997 and another undated letter which was received on

20th February, 1997. These letters and their contents have not been

considered by the respondents. Rather, by letter dated 8th February,

1997 the petitioner was informed that after the receipt of the said letter

he should appear before the Central Reserve Police, Headquarter Sports

Cell along with relevant documents. Since the petitioner had been

transferred to Mathura, therefore, on becoming fit he did appear before

the concerned official at Mathura Refinery and also submitted a letter

on 15th March, 1997 stating that he was getting treatment from the

doctor and he is reporting after becoming medically fit and that he

wants to join and therefore, he should be taken on duty. He also

produced a medical certificate dated 14th March, 1997 from the Govt.

Dispensary stipulating that the petitioner has become fit to resume his

duty on 15th March, 1997. The concerned doctor of the Govt.

Dispensary had also certified that he had examined the certified copy of

the medical certificate and the statement of the case on which the

absence was granted and extended and have taken these into

consideration while arriving at the decision. In the circumstances, the

observation of the respondents that the petitioner had not intimated the

respondents about his incapability before joining the duty, is contrary

to the record and suffers from the illegality of not considering the

relevant record. PW3 examined by the respondents during the enquiry

has also deposed that the Commanding Officer had admitted that he

had received the relevant medical record and the certificates from the

petitioner. Since the petitioner was asked to submit the medical

certificate and medical record about the injury to his leg and his other

medical problem on re-joining on 15th March, 1997 and since the

petitioner had duly produced the relevant documents on his joining,

nothing adverse can be inferred against the petitioner on this sole

ground that he had not produced the medical certificate along with his

communication addressed to the respondents intimating about his

illness and injury to his leg.

36. The inferences of the respondents appear to be irrational and not

based on the facts established on record and are rather based on their

own assumptions. The petitioner is not a regular soldier, which is

admitted by the respondents. The respondents have rather contended

that the Sports personnels are recruited in the CISF to give them an

opportunity to improve their performance and also to give them an

opportunity to participate at national level and raise the image of the

force. If such persons are not available at the time of tournaments then

the very purpose of their recruitment is lost. Since the petitioner did not

prefer to serve the force at the time he was required, therefore, he has

lost the right of service in the public interest.

37. The respondents have not disclosed whether during the period of

absence there had been any such sports meet in which, on account of

the absence of the petitioner, the respondents lost any wrestling

competition or due to which the purpose of the recruitment of the

sports personnels in the CRPF was lost. The reasoning of the

respondents is just based on their own assumptions. The observation of

the respondents, Disciplinary Authority and Appellate Authority are

utterly outrageous and in complete defiance of normal logic. Such

observations and reasoning have to be termed unreasonable as the

respondents have left out relevant factors and have taken into

consideration irrelevant factors and have based their findings on their

own assumptions and surmises.

38. The charge against the petitioner is that he remained absent from

20th November, 1996 to 14th March, 1997 without proper permission of

the concerned officer, however, the petitioner has shown sufficient

cause for his absence. This also cannot be disputed that the petitioner

had suffered injury during the practice session about which the coach

Sh.Rohtas Singh, PW3, had also deposed categorically. It is also

imperative to keep in mind that the petitioner had rendered 16 years of

service without any misconduct on his part. The respondents too have

not pointed out any other misconduct or any other incident of

indiscipline against the petitioner. PW3, Sh.Rohtas Singh, had also

deposed that the Commandant himself had intimated to him that he

had received the relevant medical documents from Sh. Ashok Kumar,

the petitioner. The Coach, Sh. Rohtas Singh, was aware of the injury

caused in the Rt. foot of the petitioner which had also necessitated

sending him to the hospital accompanied by two other persons.

Thereafter, if during the treatment the doctors also discovered that the

petitioner is suffering from sciatica and treated him for the same and

during the treatment advised him rest, the petitioner cannot be faulted

for the same and the absence has therefore been sufficiently justified by

the petitioner. In these circumstances, holding that the charge is made

out against the petitioner and that he is liable to be dismissed is

nothing but unreasonable, since the said conclusion has clearly been

arrived at by leaving out the relevant factors and taking into

consideration the irrelevant factors and there is manifest error in the

finding of the respondents.

39. The penalty of dismissal is therefore, ex facie disproportionate to

the alleged misconduct on his part. This cannot be disputed that the

maximum penalty which can be awarded is dismissal. The petitioner

had already rendered 16 years of service without any other act of

indiscipline or misconduct on his part. In these circumstances,

awarding such an extreme penalty of dismissal is unwarranted,

especially in light of the above discussion that the absence has been

sufficiently justified by the petitioner and proved on record.

40. While dealing with the power of judicial review, the power of the

High Court or Tribunals in judicial review relating to the punishment

imposed by the disciplinary authority, the Supreme Court after

considering the case law on the subject had held as under. In B.C.

Chaturvedi Vs Union of India, AIR 1996 SC 484 in para 18 it was held

as under:

"18. ........ 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."

The Supreme Court in para 22 also held as under:

"22...... The aforesaid has, therefore, to be avoided and I have no doubt that a High Court would be within its jurisdiction to modify the punishment/penalty by moulding the relief, which power it undoubtedly has, in view of a long line of decisions of this Court, to which reference is not deemed necessary, as the position is well settled in law. It may, however, be stated that this power of moulding relief in cases of the present nature can be invoked by a High Court only when the punishment/penalty awarded shocks the judicial conscience."

41. The Supreme Court in U.P. State Road Transport Corporation and

Ors. v. Mahesh Kumar Mishra and Ors., (2000) ILLJ SC 1113 had held

as under:

"8. This will show that not only this Court but also the High Court can interfere with the punishment inflicted upon the delinquent employee if, that penalty, shocks the conscience of the Court. The law, therefore, is not, as contended by the learned Counsel for the appellants, that the High Court can, in no circumstance, interfere with the quantum of punishment imposed upon a delinquent employee after disciplinary proceedings."

42. Considering the nature of the charge, the punishment awarded

and the circumstances of the case, the punishment of dismissal does

not conform to the gravity of the alleged misconduct imputed against

the petitioner. In Braj Kishor Singh vs. State of Jharkhand and Ors.

2005 (2) BLJR 1415 it was held that if after explanation, it appears that

the charged officer had remained absent from duty due to any sufficient

reason, he shall be granted leave admissible to him for that period and

the punishment is to be inflicted only in the cases where it is proved

that the delinquent has violated the rules at his own will. In the said

case the petitioner, who was a constable and had over stayed leave for

38 days, had given sufficient cause for the same and had proved it on

the record with proper medical documents, which however wasn‟t duly

appreciated by the Disciplinary Authority. The Court had, therefore,

held that the punishment of compulsory retirement was

unconscionable, excessive and disproportionate to the charge imputed

against the charged officer and consequently the Court had set aside

the penalty of compulsory retirement and the charged officer was

reinstated with part of back wages.

43. Normally, in such cases when the punishment order is found to

be illegal and unsustainable, the matter is remitted to the disciplinary

authority or the appellate authority, who are competent to consider the

facts and evidences. But keeping in view the fact that the misconduct

itself has not been substantiated against the petitioner and sufficient

cause had been given by the petitioner for his absence, this Court feels

that by remitting the matter back to the authorities there would be

further delay. The petitioner was dismissed from service in 1999. He is

a wrestler and he joined the force to take part in sports events. On

account of dismissal order passed about thirteen years back, in a way it

has already ruined his career to considerable extent as wrestler. It is,

therefore, held that his period of absence be adjusted against his

admissible leave and if the petitioner is found short of leave, he be

granted extraordinary leave without pay.

44. For the foregoing reasons, the orders of dismissal passed by the

respondents dismissing the petitioner from service are set aside. The

petitioner be reinstated forthwith with 50% of his back wages from the

date of his dismissal to the date of his reinstatement. The petitioner

shall, however, be given all other consequential benefits such as

promotions etc. and there will be no discontinuity in the period of his

service. The petitioner is also awarded a cost of Rs.10,000 which shall

be paid by the respondents within four weeks. With these directions the

writ petition is allowed.

ANIL KUMAR, J.

SUDERSHAN KUMAR MISRA, J.

May 24, 2012 vk