Jharkhand High Court
Rakesh Kumar Singh vs Union Of India on 8 August, 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 2010 of 2020
Rakesh Kumar Singh, aged about 37 years, son of Raj Kumar
Singh, resident of Qr. No. 2133, Sector-VI/C, P.O. and P.S. Sector-
VI/C, Bokaro Steel City, District-Bokaro ... ... Petitioner
Versus
1. Union of India
2. Inspector General of Central Industrial Security Force (CISF),
Eastern Divisional Head Quarter, having office at Dhurwa, P.O.
Dhurwa, P.S. Jagannathpur, District-Ranchi
3. Deputy Inspector General, CISF, Eastern Zone Head Quarter,
Patna, P.O. P.S. and District-Patna
4. Commandant, CISF Unit, C.T.P.S. Chandrapura, P.O. and P.S.
Chandrapura, District-Bokaro ... ... Respondents
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Petitioner : Mr. Saurav Arun, Advocate
For the Respondents : Mr. Shiv Kumar Sharma, Advocate
: Mr. Sujit Kumar Lala, Advocate
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09/08.08.2022 Heard Mr. Saurav Arun, learned counsel appearing on behalf of
the petitioner.
2. Heard Mr. Shiv Kumar Sharma, learned counsel appearing on
behalf of the respondents along with Mr. Sujit Kumar Lala, Advocate.
3. This writ petition has been filed for the following reliefs: -
(i) For issuance of direction in the nature of certiorari for
quashing the order dated 24.09.2012 as contained in
Annexure-10 to the writ application by which punishment
has been imposed upon the petitioner i.e. reduction of
two stage from 8440-GP- 2400 to R.7790-GP2400 in the
time scale of pay for the period of two years with
immediate effect and further directed that the petitioner
will not earn increment of pay during the period of
reduction and that on expiry of that period the reduction
will have the effective of postponing the future increment
of pay without considering the fact there is no fighting
with Ajay Srivastava outsider nor the petitioner was
absent from duty and all these aspect has not been
considered and major penalty has been imposed upon the
petitioner.
(ii) For quashing of letter dated 18 October, 2014 as
contained in Annexure-10/1 to the writ petition
subsequently a corrigendum has been issued by which the
pay scale which has wrongly been mentioned in the
impugned order, has been corrected.
(iii) For issuance of direction for quashing of the appellate
order dated 31.01.2013 contained in Annexure-12 to the
writ petition by which the appeal so preferred by the
petitioner has been rejected without considering the
ground taken by the petitioner in appeal, hence the order
of appellate authority is illegal, void and without
jurisdiction and the same has been passed without
application of mind and without considering the ground
of appeal.
(iv) For issuance of direction for quashing of letter dated
09.10.2019 as contained in Annexure-14 by which the
revision so preferred by the petitioner has been rejected
on the ground the same is barred considering the fact the
petitioner is losing increment because of the impugned
order which is excessive in nature and does not
commensurate with the charges leveled against the
petitioner.
(v) Issuance of direction for keeping in abeyance the
impugned orders as contained in Annexure- to the writ
petition during the pendency of this writ petition.
4. Learned counsel for the respondents have raised a preliminary
objection with regard to the writ petition by submitting that the
petitioner had also filed a revision application before the appropriate
authority in terms of Section 9 (2-A) of the Central Industrial Security
Force Act, 1968 after expiry of more than 6 years from the date of the
appellate order dated 31.01.2013, although the time period prescribed
is only 6 months and the revision application has been rejected on the
ground that the same was badly time barred and there was no
explanation for delay of 6 years. Learned counsel submits that the
petitioner had already accepted the order of punishment. The
revisional authority having rejected the revision as aforesaid and there
being no illegality in said order as contained in Annexure-14, no relief
can be granted to the petitioner in this writ petition.
Arguments of the petitioner
5. Upon this, learned counsel for the petitioner has submitted that
even if the revision was barred by limitation, and there was no
explanation for delay of 6 years, still the same will not be an
impediment in exercise of power under Article 226 of the Constitution
of India and the case can be taken up on merits and appropriate order
be passed. Learned counsel, while assailing the impugned order, has
submitted that primarily the petitioner has been punished by reduction
of 2 stages in the time scale of pay for a period of two years with a
further direction that he will not earn the increment of pay during the
period of reduction and on expiry of that period, reduction will have
the effect of postponing his future increments of pay. He submits that
punished imposed is shockingly disproportionate to the allegation
against the petitioner who is said to have remained absent from duty
for a period less than 24 hours. He further submits that there is no
finding recorded by the authorities regarding his willful absence and
therefore, otherwise also, the impugned action of the respondents is
bad in law. Learned counsel has relied upon a judgment passed by the
Hon'ble Supreme Court reported in 2012 AIR SCW 1633
(Krushnakant B. Parmar versus Union of India & Anr.) to submit
that in absence of any finding regarding willful absence, the impugned
order cannot be sustained in the eyes of law.
6. Learned counsel has submitted that the petitioner had gone out
to attend his ailing mother and had to take his mother to Hospital for
treatment and therefore the petitioner under compelling circumstances
had to leave from duty for a short period. He submits that there was
sufficient explanation on the part of the petitioner to leave without
permission and therefore the impugned orders call for interference by
this Court.
7. Learned counsel further submits that the appellate authority also
did not consider these aspects of the matter properly and mechanically
rejected the appeal of the petitioner.
8. However, it is not in dispute from the side of the petitioner that
the revision was filed after delay of more than six years and there was
no explanation for delay in filing the revision petition.
Arguments of the Respondents
9. Learned counsel appearing on behalf of the respondents, on the
other hand, has opposed the prayer and has submitted that on account
of the aforesaid preliminary objection and even on merits, the
petitioner does not have any case. He submits that admittedly the
petitioner had left without due permission and the plea of the
petitioner with regard to ill health of his mother being the reason to
leave without permission was rejected during the enquiry proceedings.
He further submits that the petitioner did not lead any evidence in
connection with the illness of his mother before the enquiry
proceedings.
10. Learned counsel submits that the petitioner had also taken a
plea before the enquiry proceedings that he was granted written
permission but no such document has been exhibited in the enquiry
proceedings and this aspect of the matter has also been dealt with by
the enquiry officer. Learned counsel submits that on account of the
rejection of the explanation furnished by the petitioner for his absence,
his absence was certainly willful and accordingly the judgment relied
upon by the petitioner does not apply to the facts and circumstances of
this case. Learned counsel submits that all the charges leveled against
the petitioner stood duly proved in the enquiry proceedings after
considering the materials on record. There is no perversity in the
finding recorded in the enquiry proceedings and considering the
limited scope of interference in the departmental proceedings, no
interference is called for under Article 226 of the Constitution of
India.
Findings of this Court
11. After hearing the learned counsel for the parties, this Court is of
the considered view that following points are for consideration by this
Court:
i. Whether the impugned proceeding and the order of
punishment dated 24.09.2012(Annexure - 10), upheld by the
appellate order dated 31.01.2013, against which revision
application has been dismissed as hopelessly time barred, are
fit to be interfered with in writ jurisdiction and thereby
ignoring the dismissal of the revision unexplained delay and
laches on the part of the petitioner in filing the revision
application?
ii. Whether, otherwise also, the impugned order of
punishment dated 24.09.2012, confirmed by the appellate
authority vide order dated 31.01.2013 (Annexure - 12) and
also confirmed by the revisional authority vide order dated
09.10.2019 (Annexure-14), calls for any interference under
Article 226 of the Constitution of India?
Point no. (i)
12. So far as the point no. (i) is concerned, this Court finds that the
order of punishment, arising out of disciplinary proceedings, was
dated 24.09.2012 (Annexure-10) and the appeal against the same was
dismissed vide order dated 31.01.2013 (Annexure-12) and admittedly,
the revision in terms of Section 9 (2-A) of Central Industrial Security
Force Act, 1968 was filed after expiry of more than six years from the
date of the appellate order which was admittedly barred by limitation
as prescribed period for filing revision was only six months.
Admittedly, from the records of this case and also from the impugned
order, the petitioner failed to furnish any explanation, much less any
cogent explanation for such inordinate delay and consequently the
revision application was rejected as "time barred".
13. This Court is of the considered view that once the statutory
remedy of revision available to the petitioner has been held to be
barred by limitation and being without any explanation for inordinate
delay and no arguments having been advanced in connection with the
legality and validity of the revisional order dismissing the revision as
time barred, any interference in writ proceedings against the order of
punishment and/or appellate order would amount to stretching the
exercise of power under Article 226 of the Constitution of India too
far and beyond the permissible limits. In the present case, neither any
jurisdictional issue nor any serious allegation of infraction of any
fundamental right of the petitioner nor any serious allegation of
arbitrary action on the part of the statutory authorities, are involved.
The petitioner has also not given any explanation of the inordinate
delay on the part of the petitioner in approaching the revisional
authority calling for any interference in the rejection order of the
revisional authority holding the revision hopelessly barred by
limitation. This Court is of the considered view that unexplained and
inordinate delay and laches in approaching the statutory authorities
invoking statutory remedies is also an important consideration in
exercising discretionary powers under Article 226 of the Constitution
of India. It is well settled that the writ courts do not sit in appeal
against the orders passed by the authorities in the matter of
disciplinary proceedings and the scope of judicial review is very
limited. This Court finds no illegality in the order of revisional
authority holding the revision hopelessly barred by limitation and in
such circumstances, there is no scope of interfering in the order of
punishment and also the appellate order as any such interference will
amount to ignoring the order of dismissal of revision. Accordingly,
the point no. (i) is decided against the petitioner and in favour of
the respondents.
Point no. (ii)
14. The crux of the arguments which has been advanced by the
learned counsel for the petitioner before this Court is that he had gone
to attend his ailing mother who had to be taken to hospital for
treatment and therefore the petitioner was compelled to leave from
duty for a short period and consequently there was sufficient
explanation on the part of the petitioner to leave without permission
and in such circumstances, there is no willful absence on the part of
the petitioner. Therefore, it has been submitted that in view of the
judgment passed by the Hon'ble Supreme Court reported in 2012 AIR
(SCW) 1633 (Krushnakant B. Parmar Vs. Union of India & Anr.),
the impugned punishment is perverse and fit to be set aside. The
learned counsel has also submitted that there is no finding of willful
absence and therefore the impugned action of the respondent is bad in
law. He has submitted that the impugned action touches upon the
violation of the fundamental rights of the petitioner, in as much as, the
impugned action is arbitrary and violative of Article 14 of the
Constitution of India. It has also been argued that the punishment
imposed is disproportionate to the charges levelled against the
petitioner.
15. This Court is of the considered view that no jurisdictional issue
is involved in the present case. The present case is also not a case of
violation of principle of natural justice or violation of any provision of
the applicable rules regarding conduct of the disciplinary proceeding
as pointed out by the learned counsel appearing on behalf of the
respondents. Upon perusal of the enquiry report, it is clear that the
specific case of the petitioner before the enquiry officer was that he
was granted written permission to leave, but no such document was
ever exhibited in the enquiry proceeding and this aspect of the matter
has been dealt with upon enquiry officer and the cited reason for
absence has been rejected. On account of rejection of the explanation
furnished by the petitioner for his absence, there being no explanation
for his absence as proved in the departmental enquiry, the case of the
petitioner would certainly fall within the realm of willful absence. In
case of absence from duty and when allegation is made regarding
willful absence, it is certainly for the delinquent employee to plead
and prove the reasons for his absence from duty as such reason for
absence from duty, if any, is certainly within the exclusive knowledge
of the delinquent employee. In case, the reason for absence is not
proved or not brought on record by the delinquent employee, the onus
to prove the reasons for absence being bonafide or to prove that the
absence was not willful, cannot be said to have been discharged by the
concerned delinquent employee. In the present case, the reason for
absence as put forth by the petitioner was rejected by the enquiry
officer. The enquiry officer has considered the materials on record and
concluded that the charge no. (i) as imposed against the petitioner that
on 28.06.2012, the petitioner had fought with one civilian namely
Ajay Shrivastava, but no information to that effect was given to the
department amounted to gross indiscipline on the part of the
petitioner. With regard to charge no. (ii), the enquiry officer recorded
that on 28.06.2012 at 18.30. pm., the petitioner was found absent
without any permission and this act of the petitioner was act of gross
indiscipline on his part. With regard to charge no. (iii), the enquiry
officer recorded that on 28.06.2012 at 18.30 hours, the petitioner had
remained absconder without any permission and came back only on
29.06.2012 at 11.30 hours which was also an act of gross indiscipline
on the part of the petitioner. The perusal of the enquiry report reflects
that the reason of absence as submitted by the petitioner that he had
gone to attend his mother for her treatment and that he had taken a
written permission from the Commandant could not be proved by the
petitioner having granted opportunity to do so and the petitioner could
not produce any such material oral or documentary evidence in
support of his contention. The enquiry report of the enquiry officer
further reflects that the petitioner had also taken a plea that he after
attending his mother returned on 28.06.2012 at 22 hours, but this
aspect of the matter could also not be proved by the petitioner in the
enquiry proceeding and his plea was rejected by taking into
consideration the materials available on record including the various
entries at the main gate register. Thus, the absence of the petitioner
remained totally unexplained from the side of the petitioner which was
coupled with the fact that during his absence, he fought with one
civilian and his various explanation regarding his absence could not be
established by the petitioner during the enquiry proceeding and
accordingly, the argument of the petitioner that the enquiry officer did
not record a finding that the absence of the petitioner was willful is
devoid of any merit. A copy of the enquiry report was forwarded to
the petitioner to which the petitioner duly responded and his
explanation was considered threadbare by the disciplinary authority
while passing the impugned order of punishment dated 24.09.2012
and the disciplinary authority concurred with the finding of the
enquiry report and held that the petitioner on 28.06.2012 at 18.30
hours was found absent from his duty on his own violation without
any permission and was absconder till he returned to duty on
29.06.2012 at 11.30 hours. This finding was with regard to charge no.
(iii). The disciplinary authority held that the petitioner on 28.06.2012
at 18.30 hours was found absent at the time of check roll call and the
disciplinary authority also rejected the explanation furnished by the
petitioner that he had gone for treatment of his mother. This was with
regard to the finding of charge no.(ii). The disciplinary authority also
recorded that the petitioner on 28.06.2012 was involved in physical
assault with one Ajay Shrivastava (civilian) and this aspect of the
matter was not disclosed by the petitioner which amounted to gross
violation of indiscipline and consequently the disciplinary authority
found that charge no. (i) stood also proved. The punishment of the
disciplinary authority was followed by corrigendum dated 18.10.2014.
The appellate authority vide impugned order dated 31.01.2013 as
contained in Annexure 12 has rejected the appeal after considering the
grounds raised and passed a detailed order considering the materials
on record which is apparent from para 4 of the order passed by
appellate authority and the appellate authority did not find any reason
to interfere with the order of the disciplinary authority and recorded
that the appeal was bereft of any merit and dismissed the same. The
revisional authority found the revision hopelessly barred by limitation
as revision was filed after expiry of period of six years, although, the
prescribed time period was only six months.
16. It is important to note that while rejecting the revision as barred
by limitation, the revisional authority has also touched upon the merit
of the case and has consequently recorded that the authority had gone
through the case filed and other evidence on record with reference to
the plea put forth by the petitioner. It was found that the enquiry was
conducted as per laid down procedure and no infirmity was noticed. It
was also recorded that the petitioner was provided ample opportunity
to defend his case and no violation of natural justice has been noticed.
It was further recorded that it was proved by the enquiry officer that
on 28.06.2012, the petitioner manhandled Sri Ajay Shrivastava
(civilian), resident of Chandrapara, Pahari Basti. The revisional
authority clearly held that based on the proved facts, disciplinary
authority rightly awarded the punishment which has also been upheld
by the appellate authority. None of the aforesaid aspects of the matter,
which has been recorded by the revisional authority while dismissing
the revision application, is under challenge in the present proceedings.
It is not in dispute that the enquiry was conducted as per the laid down
procedure, the petitioner duly participated in the enquiry proceeding
and was granted opportunity to defend his case and there has been no
violation of principle of natural justice. It was also proved before the
enquiry officer that on 28.06.2012, the petitioner manhandled Sri Ajay
Shrivastava (civilian) and based on the proved misconduct, the
disciplinary authority awarded the punishment which was upheld by
the appellate authority.
17. So far as the judgement reported in 2012 AIR (SCW) 1633
(Krushnakant B. Parmar Vs. Union of India & Anr.) is concerned,
the same does not apply to the facts and circumstances of this case.
The Hon'ble Supreme Court in the aforesaid judgment has clearly
held that absence from duty without any application or prior
permission may amount to unauthorized absence, but it does not
always mean willful as 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. It has also been held that 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 and in absence of such finding, the absence will not amount to
misconduct. In the case before the Hon'ble Supreme Court, the
enquiry officer on appreciation of evidence though held that the
appellant was unauthorizedly absent from duty but the enquiry officer
failed to hold that the absence was willful and this was coupled with
the fact that the appellant had taken a specific defence in the enquiry
that he was prevented from attending duty by another officer who
prevented him to sign the attendance register and also brought on
record 11 defence exhibits in support of his defence, but his defence
and evidences were ignored and on the basis of irrelevant fact and
surmises, the enquiry officer held the appellant guilty. In the present
case also, the petitioner had tried to justify his absence from duty by
taking a plea that the leave was granted in writing and that he had
gone to attend his mother who was ill. However, such plea of the
petitioner was rejected by the enquiry officer by a detailed discussion
of the material on record. In the present case, though the petitioner had
set-up a defence explaining his absence, but the same having been
rejected by the enquiry officer after considering the materials on
record and thereafter the petitioner was held guilty of as many as 3
charges as mentioned above. Thus, the present case is clearly
distinguishable on facts from the aforesaid judgement relied upon by
the petitioner.
18. So far as the quantum of punishment is concerned, this court is
of the concerned view that considering the nature of proved charges
against the petitioner, this case is not a case of mere absence from
duty for a short time but the absence of the petitioner is coupled with
involvement of the petitioner in physical assault with one Ajay
Shrivastava (civilian) during such period of absence and this aspect of
the matter was not disclosed by the petitioner amounting to gross
indiscipline which was proved charge no (i). Considering the totality
of proved charges against the petitioner, this court is of the considered
view that the quantum of punishment for a person serving disciplined
force like the petitioner is not disproportionate to the proved charges
against the petitioner.
19. Thus, the point no. (ii) is also decided against the petitioner
and in favour of the respondents.
20. As a cumulative effect of the aforesaid discussions and
findings, this court finds no merit in this writ petition calling for any
interference in limited jurisdiction of judicial review under writ
jurisdiction. Accordingly, this writ petition is dismissed.
21. Interim order, if any, stands vacated.
22. Pending interlocutory application, if any, is closed.
(Anubha Rawat Choudhary, J.)
Mukul/
