Santosh Kumar vs Union Of India And Others
2021 Latest Caselaw 1686 j&K

                                                                            Sr. No. 22



      HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                      AT JAMMU
CJ Court

Case: LPA No. 113 of 2019

Santosh Kumar                                              .....Appellant/Petitioner(s)

                                   Through :- Sh. S. C. Sharma, Advocate.

                             v/s

Union of India and others                                           .....Respondent(s)
                                   Through :- Sh. Vishal Sharma, ASGI.


        CORAM:
        HON'BLE THE CHIEF JUSTICE
        HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE

                                      ORDER

1. The appeal under Clause 12 of the Letters Patent is directed against

the judgment and order dated 08.03.2019 passed by the Writ Court dismissing

SWP No. 682/2018, Santosh Kumar v. Union of India and others.

2. The petitioner/appellant was a Constable in 37th Bn., CRPF. He went

on sanctioned leave from 20.11.2003 to 18.01.2004 and was supposed to report

back on 19.01.2004 but he overstayed without any intimation and appeared on

07.09.2004, i.e. for almost over 8 months (233 days).

3. Accordingly, disciplinary proceedings were initiated against him and

finally he was ordered to be removed from service vide order dated

27.11.2004.

4. The aforesaid order of punishment was challenged in appeal as well

as in revision which proceedings finally ended on 02.05.2006 with the

dismissal of the revision.

5. It is in the above background that the petitioner/appellant invoked the

writ jurisdiction of the court wherein five points were raised by him to the

effect that:

           (i)        The charges were vague;

           (ii)       The enquiry officer acted as a prosecutor;

           (iii)      Leading questions were put to the witnesses by the enquiry

           officer;

           (iv)       The enquiry was conducted in haste and was concluded

           within four days; and

           (v)        The punishment of removal is grossly disproportionate to

           the charges leveled against the petitioner.

6. Learned counsel for the petitioner/appellant, Sh. S. C. Sharma raised

several contentions on the factual aspects which were not in issue either before

the writ court or before the disciplinary authorities and, as such, we do not

deem it proper to even refer to those contentions.

7. As far as the first 4 points which were raised on behalf of the

petitioner/appellant before the writ court, not much emphasis has been laid on

them before us and we find that all those points have been fairly dealt with by

the writ court and have been turned down for cogent reasons.

8. It leaves us only with the last point whether the punishment of

removal inflicted upon the petitioner/appellant for overstaying on leave is

disproportionate to the gravity of the charges leveled against him.

9. In this connection, Sh. S C Sharma, learned counsel for the

petitioner/appellant relying upon State (UOI) v. Ram Saran, AIR 2004 SC 481,

contends that overstaying on leave is an offence which falls in the category of

"less heinous offence" and, as such, lesser punishment would have served the

purpose.

10. The petitioner/appellant was a member of a disciplined force which

could not have afforded a member of its service to remain absent without any

information or without formally getting the leave sanctioned. Such action of

overstay on leave and that too for such a long period of 233 days is gross

misconduct which affects not only the discipline of the force but also its

morale. Therefore, such acts of indiscipline or misconduct in a disciplined

force have to be dealt with stringently. The judgment relied upon by the

petitioner/appellant as aforesaid was in relation to a criminal case wherein

while awarding the sentence of punishment, the court observed that in view of

Section 10(m) of the Central Reserve Police Force Act, 1949, as the act of

absenting himself and overstay on leave without sufficient cause is an offence

of less heinous nature, it is punishable with imprisonment of a term which may

extend to one year, or with fine which may extend to three months' pay, or

with both. The said punishment is in connection where a person is held guilty

on the criminal side.

11. The factors for imposing punishment by the disciplinary action are

totally distinct from those where a person is held guilty of committing an

offence. Therefore, the aforesaid decision is of no help to the

petitioner/appellant to contend that the punishment imposed is disproportionate

to the gravity of charges.

12. The learned Single Judge in dealing with the aforesaid point has

referred to the decisions of the Supreme Court that lay down that in invoking

the principle of proportionality of punishment, one must establish that the

punishment is so disproportionate to the charges that it shocks the conscience

of the court and it is only in extreme cases which on their face show perversity

or irrationality that a judicial review could be exercised. Thus, the court

declined to exercise its discretionary jurisdiction.

13. In view of the overall facts and circumstances of the case, we do not

deem it necessary to interfere with the decision of the writ court refusing to

exercise its discretionary jurisdiction.

14. The appeal, as such, lacks merit and is dismissed.

                          (JAVED IQBAL WANI)                      (PANKAJ MITHAL)
                                     JUDGE                           CHIEF JUSTICE

JAMMU
15.12.2021
Raj Kumar



                         Whether the order is speaking?     : Yes/No.

                         Whether the order is reportable?   : Yes/No.