Sanjeev Chaudhry vs Director General, Indo Tibetan ...
2015 Latest Caselaw 5986 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI
+      W.P.(C) 7765/2014
%                                             Date of decision: 17.08.2015

       SANJEEV CHAUDHRY                                ..... Petitioner
                          Through:      Mr.Srieenivas K., Advocate
                          versus
       DIRECTOR GENERAL, INDO TIBETAN BORDER POLICE
       FORCE & ORS.                       ..... Respondents

Through: Mr. Rishi Kapoor, proxy for Mr.Arun Bhardwaj, Advocate for R-1 & R-2.

CORAM:

HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MS. JUSTICE DEEPA SHARMA

MS. JUSTICE DEEPA SHARMA (OPEN COURT)

1. Aggrieved by the order of his dismissal from service, the petitioner, a

Head Constable/GD in ITBP (who overstayed his leave) has invoked the

jurisdiction of this court challenging the said order on the grounds that it was

passed without affording any opportunity to him and that the overstay was

not wilful and that the authorities had failed to consider his compelling

family circumstances including the illness of his mother of which she died

on 17.04.2013 while imposing the penalty of dismissal. Reliance is also

placed on Krushnakant B. Paramar vs.Union of India 2012 (3) SCC 178.

W.P.(C) 7765/2014 Page 1

2. The brief facts relevant for the purpose of disposal of the writ petition

are that the petitioner had proceeded on sanctioned leave from 26.10.2012 to

27.12.2012 but had overstayed without any intimation/information and was

dismissed from service on 01.04.2013 after a Court of Inquiry. The

contention of the petitioner is that he had reported for duty on 23.05.2013,

but was denied. He thereafter gave a legal notice dated 29.09.2013 and filed

W.P.(C) 5688/2013 which was disposed of with certain directions to the

respondents. On failure of the respondents to comply with all those

directions, a Contempt Case (Civil) No.8181/2013 was filed and it was then

that the copy of the ex-parte departmental proceedings were supplied to him.

He approached the appellate authority i.e. Deputy Inspector General, SHQ

(Barreilly), ITBP, under Rule-28 of ITBP Rules, 1994 and his appeal was

dismissed vide order dated 19.03.2014 on the ground of delay. Petitioner

then filed revision petition dated 09.04.2014 against the order of the

appellate authority. He again approached this court in W.P.(C) 4426/2014

and the said writ was disposed of with a direction to the respondents to

decide the Revision Petition dated 09.04.2014 by a reasoned order. The

revision petition was finally dismissed by the Revisional Authority vide

impugned order dated 21.08.2014.

W.P.(C) 7765/2014 Page 2

3. The contention of the respondent is that when the petitioner

overstayed his sanctioned leave of 60 days and did not report for duty, two

letters dated 04.01.2013 and 11.02.2013 were sent by registered post at the

address of his home town, asking him to report for duty, but he failed to

honour the letters. An apprehension roll was issued. A Court of Inquiry

was ordered under Section 74 of Indo-Tibetan Border Police Force Act,

1992 (hereinafter referred to as 'the ITBP Act') to enquire into the

circumstances of his absence from leave without permission/leave from

competent authority. On the basis of the Court of Inquiry, he was declared a

deserter, copy of which was sent to the petitioner at the address given by

him in his leave application. Thereafter, a Show Cause Notice was issued

and sent by registered post and also published in the newspaper in

circulation in the area where the petitioner was residing during his leave

period (the address was disclosed by him in his leave application). When no

communication/explanation was received from the petitioner, he was

dismissed from service under Rule 17 and 20 of ITBP Rules, 1994. Copy of

dismissal order was also sent by registered post at his given address. It is

also urged that earlier on five occasions (details of which are given in the

impugned order dated 21.08.2014) he had overstayed his leave period for

W.P.(C) 7765/2014 Page 3 which he was suitably punished and since it was his sixth misconduct of the

same nature, the penalty of dismissal from service was imposed.

4. On hearing the rival contentions and considering the record it is clear

that the plea of petitioner of denial of opportunity of being heard during the

Court of Inquiry is of no consequence in view of the facts that the

respondents had done their best to communicate with the petitioner but

could not succeed. All the letters were sent at the address supplied by the

petitioner himself in the leave application i.e. Village Khedi Sundiyana,

P.O.Sisoli, Tehsil-Budhana, Distt-Muzaffar Nagar (Uttar Pradesh). It is the

case of the petitioner that he was not residing at that address but was living

at Railpaar, Gali No.11, in front of Punjab Colony, Shaamli (Uttar Pradesh)

during his leave period. In that case it was the duty of the petitioner to

inform his office of the change of his address. It was also his duty to seek

permission/apply for extension of his leaves. He had failed to discharge

both his duties. He had subsequently in his appeal and revision had

explained the reasons of his overstay, which authorities did not find

satisfactory.

5. The learned counsel for the petitioner has urged that in view of the

findings of the Supreme Court in Krushanakant B. Paramar's case (supra),

W.P.(C) 7765/2014 Page 4 the respondents were bound to return a finding that the absence of the

petitioner from leave was wilful and since no such findings have been given,

the dismissal order is liable to be set aside. Learned counsel for the

respondent has submitted that the dismissal order cannot be set aside on this

ground alone and that the facts of this case differ from the facts in

Krushanakant B. Paramar's case (supra).

6. The findings of the Supreme Court in Krushanakant B.Paramar's

case (supra) has been discussed and distinguished in Chennai Metropolitan

Water Supply and Sewerage Board and Others vs. T. T. Murali Babu

(2014) 4 SCC 108. In this case the respondent who was a Junior Engineer,

had remained absent from duty without any intimation from 28.08.1995 and

did not respond to the letters/reminders issued to him asking him to report

for duties and to explain his unauthorized absence from duty. He only

reported on 01.04.1997 with a medical certificate. He was issued a charge-

sheet on 11.09.1996 for failing to submit any explanation to the several

reminders and notices sent to him and secondly that he deserted his post

while remaining unauthorizedly absent from duty. He subsequently was

dismissed and he challenged his dismissal. The learned Single Judge

returned the findings in favour of the respondent and ordered for

W.P.(C) 7765/2014 Page 5 reinstatement of the respondent. In appeal, the division bench of the High

Court had accepted the conclusion of the learned Single Judge. The order of

the Division Bench was challenged before the Supreme Court. The

respondent had relied on the findings of Krushanakant B. Paramar's case

(supra). The Supreme Court has dealt with the case as under:

21. Learned Counsel for the Respondent has commended us to the decision in Krushnakant B. Parmar v. Union of India and Anr. : (2012) 3 SCC 178 to highlight that in the absence of a finding returned by the Inquiry Officer or determination by the disciplinary authority that the unauthorized absence was willful, the charge could not be treated to have been proved. To appreciate the said submission we have carefully perused the said authority. In the said case, the question arose whether "unauthorized absence from duty" did tantamount to "failure of devotion to duty" or "behavior unbecoming of a Government servant" inasmuch as the Appellant therein was charge-sheeted for failure to maintain devotion to duty and his behavior was unbecoming of a Government servant. After adverting to the rule position the two-Judge Bench expressed thus:

16. In the case of the Appellant referring to unauthorized absence the disciplinary authority alleged that he failed to maintain devotion to duty and his behavior was unbecoming of a government servant. The question whether "unauthorized absence from duty" amounts to failure of devotion to duty or behavior unbecoming of a government servant cannot be decided without deciding the question whether absence is willful or because of compelling circumstances.

17. If the absence is the result of compelling circumstances under which it was not possible to

W.P.(C) 7765/2014 Page 6 report or perform duty, such absence cannot be held to be willful. Absence from duty without any application or prior permission may amount to unauthorized absence, but it does not always mean willful. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalization, etc., but in such case the employee cannot be held guilty of failure of devotion to duty or behavior unbecoming of a government servant.

18. In a departmental proceeding, if allegation of unauthorized absence from duty is made, the disciplinary authority is required to prove that the absence is willful, in the absence of such finding, the absence will not amount to misconduct.

22. We have quoted in extenso as we are disposed to think that the Court has, while dealing with the charge of failure of devotion to duty or behavior unbecoming of a Government servant, expressed the aforestated view and further the learned Judges have also opined that there may be compelling circumstances which are beyond the control of an employee. That apart, the facts in the said case were different as the Appellant on certain occasions was prevented to sign the attendance register and the absence was intermittent. Quite apart from that, it has been stated therein that it is obligatory on the part of the disciplinary authority to come to a conclusion that the absence is willful.

On an apposite understanding of the judgment we are of the opinion that the view expressed in the said case has to be restricted to the facts of the said case regard being had to the rule position, the nature of the charge levelled against the employee and the material that had come on record during the enquiry. It cannot be stated as an absolute proposition in law that whenever there is a long unauthorized absence, it is obligatory on the part of the disciplinary authority to record a finding that the said

W.P.(C) 7765/2014 Page 7 absence is willful even if the employee fails to show the compelling circumstances to remain absent.

7. In the light of these findings of the Supreme Court, we find no merit

in the arguments of learned counsel for the petitioner.

8. Learned counsel for the petitioner has further argued that the overstay

was due to the compelling circumstances which include the prolonged

illness of his mother. He sought leave also due to illness of his mother who

was suffering with Carcinoma Lung Left Side (Post CT-RT), Hepatic

Metasis, Chronic Cough from which she could not recover and her condition

continued to deteriorate, and so petitioner had to stay to take care of her and

finally he lost her on 17.04.2013 and after completing all the other post

death ceremonies of his mother, he reported for duty. It is submitted that the

punishment of dismissal from service is unduly harsh. Learned counsel for

the respondents had submitted that the petitioner belongs to a force wherein

it is necessary to maintain a high standard of discipline among its cadre and

that is why in view of the repeated misconduct of the petitioner (five times

previously) this time he was dismissed from service.

9. There is no doubt that the petitioner belongs to a force of which

discipline is the backbone. However, one should not forget the fact that

these personnel work in formidable terrains and most of the times remain

W.P.(C) 7765/2014 Page 8 away from their families for long periods. They mostly come from the

villages and their wives are generally uneducated and homely and the wives

as well as old parents are totally dependent on them. On leave when they

reach home, have to complete all the tasks ranging from showing old parents

to good hospitals, to repair of house, to taking care of children's education

including their school admission etc. within that limited period of leave

which a civilian living with his family discharges on day to day basis. The

personnel of such services therefore are required to be dealt with

compassion and understanding. It is necessary that while maintaining the

discipline in the cadre, the difficulties of an individual personnel be

understood with an open mind and a human approach be adopted. It is

apparent from the record that petitioner had sought leave due to the ill health

of his mother. The fact that she could not recover and ultimately succumbed

to her illness on 17.04.2013 certifies that the leaves were sought for a

genuine reason, which continued even after the expiry of period of

sanctioned leave. There is no doubt that his absence from duty beyond the

period of sanctioned leave is an unauthorized absence but the nature of

punishment depends on various factors. The Supreme Court has so held in

State of Punjab vs. Dr. P .L. Singla (2008) 8 SCC 469 as under:

W.P.(C) 7765/2014 Page 9 "10. Where the employee who is unauthorisedly absent does not report back to duty and offer any satisfactory explanation, or where the explanation offered by the employee is not satisfactory, the employer will take recourse to disciplinary action in regard to the unauthorized absence. Such disciplinary proceedings may lead to imposition of punishment ranging from a major penalty like dismissal or removal from service to a minor penalty like withholding of increments without cumulative effect. The extent of penalty will depend upon the nature of service, the position held by the employee, the period of absence and the cause/explanation for the absence ... ...."

10. It is a well settled proposition of law that where the disciplinary

authority has the discretion to quantify punishment on a proven charge, such

discretionary power is open to judicial review (Chairman-cum-Managing

Director, Coal India Limited and Anr. Vs. Mukul Kumar Choudhuri and

Ors., (2009) 15 SCC 620).

11. There is no doubt that on earlier five occasions (when petitioner had

overstayed his leave), the respondent had been very considerate in imposing

penalty for his misconduct. We are of the opinion that this time also, given

the reasons for overstay which of course were beyond the petitioner's

control, the imposition of extreme form of penalty of dismissal, is definitely

disproportionate.

12. For the reasons discussed above, the petition has to succeed in part.

The impugned order whereby the petitioner was declared a deserter is

W.P.(C) 7765/2014 Page 10 hereby quashed. We are of the opinion that the penalty of dismissal

imposed upon the petitioner be substituted and should be one of reduction to

the induction level of the pay scale/initial stage of pay enjoyed by him as

Head Constable. However, the period of service spent by him in the cadre

of Head Constable shall be taken into consideration for all other

consequential benefits.

13. The writ petition is partly allowed in the above terms.

DEEPA SHARMA, J.

S. RAVINDRA BHAT, J.

AUGUST 17, 2015
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W.P.(C) 7765/2014                                                     Page 11