Hc/Gd Naresh Kumar vs Union Of India & Ors.
2012 Latest Caselaw 3569 Del

        *       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                        Date of Decision: 29.05.2012

+                        W.P.(C) No.2694/2012

HC/GD Naresh Kumar                                      ...       Petitioner

                                 Versus

Union of India & Ors.                            ...      Respondents

Advocates who appeared in this case:

For the Petitioner :     Mr.Kirpal Singh, Advocate.
For respondents :        Mr.B.V.Niren,     Mr.Utkarsh       Sharma         &
                         Mr.P.Jain, Advocates

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

ANIL KUMAR, J.

1. The petitioner has challenged the order dated 28th April, 2010

passed by the respondents, directing the removal of the petitioner from

the service and has also sought directions to the respondents to

reinstate the petitioner in the service with back wages, seniority,

promotion and all the consequential benefits.

2. The petitioner was a Head Constable (General Duty) and was

posted at CISF Unit, CPT, Cochin. The petitioner was given earned leave

from 25th November, 2008 to 9th December, 2008 for 15 days. The

petitioner after the expiry of his earned leave had to report to the unit

on 10th December, 2008 (Forenoon), however, the petitioner did not

report back after the expiry of his earned leave and remained absent

from 10th December, 2008 upto 8th April, 2009 for 120 days. The

petitioner thereafter, reported to the unit CPT at Cochin only on 9th

April, 2009.

3. During this period when the petitioner remained absent without

leave (overstayed the leave), 4 call letters were also sent to the

petitioner, however, no reply to the same was received from the

petitioner.

4. During his service the petitioner had also been penalized 12 times

by different disciplinary officers. However, despite the various penalties

awarded to him, the attitude of the petitioner did not reform. The

petitioner was issued another chargesheet dated 3rd July, 2009 under

Rule 36 of the CISF Rules, 2001. The charges made against the

petitioner were that he had committed gross misconduct while

attending the riffle cleaning parade on 1st November, 2008 at about

0700 hours, by misbehaving with Inspector/Exe. K. Parmeshwar, as he

had shouted at him and raised his finger in a show of insubordination

and used threatening language against him. The charge of overstaying

the leave for 120 days from 10th December, 2008 to 8th April, 2009 was

also made out against him by stating that his absence amounted to

gross negligence, misconduct and breach of discipline. The petitioner

was also charged with 12 previous misconducts for which various

disciplinary authorities had awarded him various punishments and

despite the earlier punishments awarded to him the petitioner had not

reformed himself and had continued to indulge in indiscipline activities.

5. A chargesheet was also served on the petitioner on 8th July, 2009,

however, despite the reasonable opportunity given to him no reply was

filed by him. Sh.M.P.Singh, AC was, therefore, appointed as an Enquiry

Officer. A presenting officer was also appointed on 27th February, 2010

in order to enquire into the charges made against the petitioner.

6. The original disciplinary proceedings file has been produced by

the counsel for the respondents today on 29th May, 2012. Perusal of the

original enquiry record reveals that Sh. K. Parmeshwar was examined

as PW-1. The said witness was not cross examined by the petitioner on

1st February, 2010 though the petitioner was given the opportunity to

cross examine the said witness. The petitioner has signed the enquiry

proceedings on the said date. In the enquiry proceedings

Sh.P.G.Krishnan was examined as PW-2 and the said witness was also

not cross examined by the petitioner, however, he stated that at that

time he did not have any questions to put to the said witness and in

case of any necessity or requirement later on he would ask the

necessary questions. Sh.M.S.K.Nayar was examined as PW-3, who was

also not cross examined by the petitioner though the opportunity was

given to him. Sh. Subba (G.D.) was examined as PW-4, who was cross

examined by the petitioner. The petitioner had put three questions to

the said witness. The next witness examined during the enquiry

proceedings was Sh.C.Nagar as PW-5, who was also put two questions

in the cross examination by the petitioner. Another witness Sh.N.R.

Murali Krishan was examined as PW-6, however, the said witness was

not cross examined by the petitioner. The statement of the petitioner

was also recorded in detail and in the statement the petitioner did not

allege that he wanted to cross examine some of the witnesses, however,

he was not allowed to cross examine them.

7. The Enquiry Officer submitted his report to the Disciplinary

Authority on 27th February, 2010 holding that all the charges alleged

against the petitioner were made out. A copy of the enquiry report was

given to the petitioner by letter dated 3rd March, 2010 and he was given

15 days time to make his representation. The receipt of enquiry officer's

report was acknowledged by the petitioner on 18th March, 2010 and he

submitted a request on 30th March, 2010 seeking 30 days time for the

submission of his representation. The time uptil 15th April, 2010 was

granted to the petitioner. However, instead of submitting the

representation against the enquiry report, the petitioner had sought 30

days more time to submit the representation which was, however,

rejected by the Disciplinary Authority and it was communicated to the

petitioner on 28th April, 2010.

8. The Disciplinary Authority, therefore, considered the enquiry

report and agreed with the findings of the Enquiry Officer and passed

the final order No.(1150) dated 28th April, 2010 awarding the

punishment of removal from service.

9. Aggrieved by his order of removal, the petitioner had filed an

appeal before the DIG/ST Chennai. The appeal was considered by the

Appellate Authority in accordance with law and the order dated 15th

June, 2010 was passed dismissing the appeal.

10. Aggrieved by the order of removal dated 28th April, 2010 and the

dismissal of appeal by order dated 15th June, 2010, the petitioner

preferred a revision petition to the Director General, CISF. The revision

petition was considered by the Revisional Authority and the plea of the

petitioner that his wife had been seriously ill and that he had applied

for leave on three occasions but the leave was declined without

assigning any reasons were not accepted. The Revisional Authority had

also considered the plea of the petitioner that there was a threat to the

life of his wife and children from some unidentified persons because of

which his wife Smt.Rani Devi had lodged a complaint with the

Superintendent of Police, Haridwar and thus the situation was beyond

his control due to tension and family problems because of which the

petitioner had overstayed the leave for 120 days. After considering the

depositions of the witnesses, the plea of the petitioner that the

witnesses were not independent witnesses and were tutored was also

repelled by the Disciplinary Authority and the Revisional Authority.

11. The pleas and contentions raised by the petitioner were rejected

on the ground that the petitioner could not have been sanctioned leave

as sought by him. Considering his request, however, he had been

granted 15 days E.L from 25th November, 2008 to 9th December, 2008.

There was no justifiable reason for overstaying the leave for 120 days on

the pretext of self medical treatment. No justifiable reason was disclosed

by the petitioner for not responding to the call up notices which were

sent to the petitioner. On the basis of the evidence produced before the

Enquiry Officer it was also inferred that the misbehaviour with

Inspector/Exe.Parmeshwar is also established as the statement of PW-1

Sh.Parmeshwar has been duly corroborated by other witnesses PW-2,

PW3 & PW-4. The respondents also noticed that in his application

seeking extension of 15 days leave the petitioner had not even disclosed

anything about his medical treatment. In case the petitioner was sick

he should have undergone medical treatment from various medical

facilities available as per CCS Medical Rules and should have forwarded

the copy of medical unfitness certificate to the leave sanctioning

authority. It was also observed that the certificate which was produced

by the petitioner at the time of his joining was from 8th December, 2008

to 2nd March, 2009 for Jaundice and from 3rd March, 2009 to 9th April,

2009 for Headache which in any case were not in accordance with the

prescribed procedure. The respondents has, therefore, inferred that the

petitioner was not entitled to overstay his leave for the alleged reason of

`Headache'.

12. The plea of the petitioner that the Enquiry Officer should have

been appointed from some other unit was also repelled on the ground

that the petitioner had not alleged any bias against the Enquiry Officer,

nor had he raised any objection about the conduct of the departmental

enquiry by the Enquiry Officer, either during the preliminary hearing or

thereafter.

13. The respondents also categorically stated that the petitioner

misbehaved with the superior officer and overstayed the leave without

any justifiable reason for 120 days and in a disciplined Paramilitary

Force the action of the petitioner is not justifiable and he has remained

incorrigible which is apparent from the fact that on earlier 12 occasions

he was awarded various punishments. Consequently, the Revisional

Authority also dismissed the revision petition and upheld the order of

removal passed against the petitioner.

14. The orders of removal passed by the Disciplinary Authority,

Appellate Authority and the Revisional Authority are challenged by the

petitioner in the above noted writ petition, inter-alia, on the grounds

that the charges made against the petitioner were not correct; that

raising a finger is not an offence, nor can it be construed as indiscipline

and misbehaviour; the witness did not support the case of the petitioner

and, therefore, the petitioner is innocent and the order of removal is

liable to be set aside and the petitioner is entitled to be reinstated; that

the petitioner had not remained absent for 120 days unauthorisedly as

he had sent medical certificate of illness of his wife and himself which

were, however, not considered; that raising finger while talking to

superior officer and talking with a loud voice cannot be construed to be

an offence so serious so as to entail removal from service, as in any case

the offence alleged is such a minor thing.

15. The learned counsel for the petitioner while making submissions

on behalf of the petitioner also contended that the petitioner was not

allowed to cross examine the witnesses and that he was forced to sign

that he does not want to cross examine the witnesses. The learned

counsel for the respondents Mr. Utkarsh Sharma who appears on

advance notice has repelled the pleas and contentions raised on behalf

of the petitioner and has produced the original record pertaining to the

disciplinary action taken against the petitioner which concluded in the

punishment of removal awarded to him. The learned counsel for the

respondents has contended that the perusal of the original record

reflects unequivocally that the petitioner was given due opportunity to

cross examine the witnesses, however, the petitioner opted not to cross

examine some of the witnesses and, in fact, had cross examined only

two witnesses. In the circumstances, the allegation by the learned

counsel for the petitioner that he was not allowed to cross examine and

that he was forced to write that the opportunity was given to him but he

declined to cross examine the witnesses is not borne out from the

record and is false to the knowledge of the petitioner. The learned

counsel has also pointed out that no such plea was taken by the

petitioner either in appeal or in the revision petition filed before the

Appellate Authority and the Revisional Authority and that no such plea

has also been taken by the petitioner in the writ petition.

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

also perused the original record. The perusal of the original record

reveals that the petitioner had declined to cross examine some of the

witnesses and that, in fact, he had cross examined two witnesses. In

the circumstances, the plea of the counsel for the petitioner that the

petitioner was not allowed to cross examine the witnesses cannot be

sustained. It is also pertinent to note that no such plea has been raised

by the petitioner either in the writ petition or in the appeal or in the

revision filed by the petitioner before the Appellate Authority and the

Revisional Authority. Consequently, this plea of the petitioner is

repelled.

17. This fact has not been denied by the petitioner that he had been

punished on 12 different occasions previously by the Disciplinary

Authority. In the circumstances, overstaying the leave by 120 days

cannot be construed to be a minor offence as has been sought to be

canvassed by the learned counsel for the petitioner. The petitioner also

failed to produce any relevant medical record that could have justified

the misconduct of overstaying the leave granted to him. The medical

record which was produced by the petitioner after 120 days of

overstaying the leave is also in respect of headache. In the

circumstances, if the Disciplinary Authority has not relied on the

medical certificate produced by the petitioner, which was also, in any

case, not in accordance with the rules, as it was not endorsed by the

appropriate authorities, it cannot be held that there was sufficient

reason for the petitioner to overstay his leave by 120 days. There is also

no justifiable reason for the petitioner for not responding to four call

letters which were issued to him. Even the application which was filed

by the petitioner for extension of leave was only for 15 days in which

application also the petitioner had not disclosed about his medical

condition. In the circumstances, if the respondents have not relied on

the pleas taken by the petitioner, the same cannot be faulted on

account of any of the grounds raised by the petitioner.

18. While going into the correctness of the facts established against

the petitioner, this 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 any irrationality, illegality or procedural

impropriety, the Court can interfere with such irrationality and illegality

in the decision making of the respondents. It also cannot be disputed

that the Court can interfere with the findings of the fact arrived at by

the disciplinary procedure in case there is no just evidence to support

the finding or the finding is such that no rational person acting

reasonably or with objectivity could have arrived at the same 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 imposed is shocking to the conscience of the

Court. The Court will have no option but to interfere if the decision is

tainted by vulnerability, illegality, irrationality or procedural

impropriety.

19. The Court can also interfere if on material, the decision is so

outrageous so as to be in utter defiance of logic or moral standards. 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 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

find out if the respondents have left out a relevant factor or factors or

have taken into account an irrelevant factor or factors.

20. None of these grounds and conditions have been made out by the

petitioner so as to require any interference by this Court. In the totality

of facts and circumstances and for the foregoing reasons there are no

grounds to interfere with the orders of the respondents removing the

petitioner from service as the petitioner has failed to make out any

illegality, irregularity or such perversity which will require any

interference by this Court in exercise of its jurisdiction under Article

226 of the Constitution of India. The writ petition, in the facts and

circumstances, is without any merit and it is, therefore, dismissed.

ANIL KUMAR, J.

SUDERSHAN KUMAR MISRA, J.

MAY 29, 2012 'k'