Jharkhand High Court
Hradesh Kumar vs The Union Of India on 28 March, 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S). No. 2962 of 2018
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Hradesh Kumar ......... Petitioner.
Versus
1. The Union of India.
2. The Inspector General of Central Industrial Security Force, East
Zone Head Quarter, Patna.
3. The Deputy Inspector General of Central Industrial Security Force,
CISF Unit, Bokaro.
4. The Commandant of Central Industrial Security Force, CISF Unit,
CCL Kargali, Bokaro, Jharkhand.
.......... Respondents.
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CORAM: THE HON'BLE MR. JUSTICE DR. S.N.PATHAK
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For the Petitioner : Mr. Rishikesh Giri, Advocate
For the Respondents : Ms. Vibha Bakshi, Advocate
Mr. Devendra Kumar, Advocate
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09/ 28.03.2022 Heard the parties.
2. Petitioner has approached this Court with a prayer for quashing the
order dated 13.02.2017, passed by the Revisional Authority (respondent No.
2), affirming the orders passed by the disciplinary authority and appellate
authority, by which the salary of the petitioner has been reduced by one
increment for one year with further direction that he will not earn increment
of pay during this period of one year and that on expiry of this period, the
reduction in pay will have the effect of postponing his future increment.
Petitioner has further prayed that after quashment of the above
orders, the respondents may be directed to pay all consequential benefits
along with interest.
3. As per the factual matrix, the petitioner was appointed to the post of
Constable on 14.01.2013 at Central Industrial Security Force (for short
'CISF') Unit, Kargali. Thereafter, the petitioner has worked to the full
satisfaction of the respondents and not a single adverse remark has ever
been made against him, save and except the present one. It is the case of the
petitioner that he applied for leave for 3 days which was duly sanctioned by
the competent authority and the petitioner was required to report at Unit by
08.04.2016. However, the petitioner submitted an application before the
respondent No. 4 on 06.04.2016 praying therein for extension of leave for
another 30 days, since he was ill and not fit to join his duties. However,
vide letter dated 11.04.2016, request of leave was rejected and the same was
received by the petitioner on 25.04.2016. Petitioner again sent an
application for extension of time on 04.05.2016, as the health of the
petitioner was also not good but the said request was rejected vide order
dated 11.05.2016.
It is the further case of the petitioner that on 20.05.2016, a charge-
sheet was issued against the petitioner alleging that he has overstayed the
sanctioned leave, which amounts to misconduct, dereliction of duty and the
petitioner was asked to file reply to show-cause within 10 days. Thereafter,
the petitioner reported for duty on 07.06.2016 and on 08.06.2016, charge-
sheet was served upon him. Upon receipt of the said show-cause, the
petitioner replied to the same, denying the allegations leveled him.
However, the respondents without considering his reply initiated
departmental proceeding against the petitioner. Thereafter, the enquiry
officer submitted its report on 21.07.2016, holding the petitioner guilty of
the charges. The petitioner was asked to file reply within 15 days in
contemplation of final order. It is the specific case of the petitioner that
during the enquiry, petitioner submitted his reply annexing the medical
documents and explaining the reasons for overstay, but the same was not
considered and without any evidence against the petitioner, enquiry officer
found the petitioner guilty of the charges. Thereafter, on 19.08.2016, the
disciplinary authority passed the order inflicting major punishment against
the petitioner. Being aggrieved by the same, the petitioner preferred an
appeal before the respondent No. 3 which also stood rejected vide order
dated 22.10.2016. The petitioner also preferred revision before the
respondent No. 2 on 04.11.2016 but the same was also rejected vide order
dated 13.02.2017.
Hence, the petitioner has been constrained to knock the door of this
Court.
4. Mr. Rishikesh Giri, learned counsel appearing for the petitioner
submits that the order of punishment is totally disproportionate to the
charges leveled against him and hence, it is fit to be quashed and set aside.
Learned counsel submits that the respondents ought to have considered the
reasons for absence, i.e. medical unfitness of the petitioner, before inflicting
the punishment against him. Learned counsel further submits that the major
punishment cannot be passed in case of overstay if there is a justifiable
reason and as such, quantum of punishment is disproportionate to the
charges levelled against the petitioner.
To buttress his arguments, learned counsel for the petitioner places
heavy reliance on the judgment passed by the Hon'ble Apex Court in
case of Chhel Singh Vs. MGB Gramin Bank, Pali & Ors., reported in
(2014) 13 SCC 166.
5. Per contra, counter-affidavit has been filed. Learned counsel
appearing for the respondents submits that after expiry of 3 days'
sanctioned leave, the petitioner was supposed to join his duties on
08.04.2016 but he did not report and overstay leave. As the petitioner did
not report for duty, call up notices were sent to his leave address/ native
place with a direction to report to the Unit forthwith. Inspite of that, the
petitioner did not report for duty and accordingly, a preliminary enquiry
was conducted and prima facie case was made out against the petitioner.
Subsequently, a departmental enquiry under Rule-36 of CISF Rules, 2001,
was conducted against the petitioner and article of charge framed against
him. Therefore, the penalty of 'Reduction of Pay by one stage from
Rs.24500/- to 23800 in the pay level-3 for a period of one year with
further direction that he will not earn increment of pay during the said
period of one year and that on expiry of this period, the reduction in pay
will have the effect of postponing his future increment' was imposed upon
the petitioner by the disciplinary authority, which commensurate with the
gravity of offence committed by the petitioner. Further, the appeal and
revision preferred by the petitioner were also rejected and hence, since there
is concurrent findings of three authorities, there is no merit in the instant
writ petition and the same deserves to be dismissed outrightly.
6. Be that as it may, having heard the rival submissions of the parties
and upon perusal of the documents brought on record, this Court is of the
considered view that case of the petitioner needs consideration.
(I) Admittedly, petitioner was inflicted with major punishment for the
charges of overstay, which cannot be said to be justified as overstay
was neither intentional nor willful. For sustaining such allegations of
unauthorized absence, it must be proved that overstay was willful and
not due to any compelling circumstances.
(II) In the instant case, reply of the petitioner regarding absence was not
considered, which was admittedly not willful rather, was due to the
compelling circumstances under which it was not possible for the
petitioner to report or perform his duties, as the petitioner was
seriously ill.
(III) The Enquiry Officer nowhere has given a finding that the medical
certificates produced by the petitioner was a forged one neither the
same was ever verified nor enquired.
(IV) As the petitioner failed to submit the medical certificates at the time
of making application for extension of leave period, his leave was
outrightly rejected which amounts to violation of the principle of
natural justice.
(V) The evidence produced by the petitioner to substantiate his claim was
completely brushed aside by the respondent-authorities and on the
basis of irrelevant facts and surmises, he was held guilty for willful
unauthorized leave.
7. The Hon'ble Apex Court in case of Krishnakant B. Parmar Vs.
Union of India & Anr. [(2013) 3 SCC 178], has held that:
"18. In a departmental proceeding, if allegation of
unauthorised absence from duty is made, the disciplinary
authority is required to prove that the absence is wilful, in the
absence of such finding, the absence will not amount to
misconduct.
19. In the present case the inquiry officer on appreciation of
evidence though held that the appellant was unauthorisedly
absent from duty but failed to hold that the absence was wilful;
the disciplinary authority as also the appellate authority, failed
to appreciate the same and wrongly held the appellant guilty.
20. The question relating to jurisdiction of the court in
judicial review in a departmental proceeding fell for
consideration before this Court in M.V. Bijlani v. Union of
India [(2006) 5 SCC 88 : 2006 SCC (L&S) 919] wherein this
Court held: (SCC p. 95, para 25)
"25. It is true that the jurisdiction of the court in
judicial review is limited. Disciplinary proceedings,
however, being quasi-criminal in nature, there should be
some evidence to prove the charge. Although the charges
in a departmental proceeding are not required to be
proved like a criminal trial i.e. beyond all reasonable
doubt, we cannot lose sight of the fact that the enquiry
officer performs a quasi-judicial function, who upon
analysing the documents must arrive at a conclusion that
there had been a preponderance of probability to prove
the charges on the basis of materials on record. While
doing so, he cannot take into consideration any
irrelevant fact. He cannot refuse to consider the relevant
facts. He cannot shift the burden of proof. He cannot
reject the relevant testimony of the witnesses only on the
basis of surmises and conjectures. He cannot enquire
into the allegations with which the delinquent officer had
not been charged with."
8. It has been admitted by the Enquiry Officer that though the medical
certificates were there but the ailment was found to be not genuine rather,
suspicious. In such circumstances, it was open for the Enquiry Officer to get
the matter enquired if at all suspicion arose. Merely on the basis of surmises
and conjectures it cannot be said that though the certificates were there but
the ailments was doubtful. In the case in hand, overstay was of 60 days as
the petitioner was suffering from ailments and as such, he was prevented
from joining the duties. From the charges it appears that the main allegation
against the petitioner was with regard to absence from duties for the period
from 06.04.2016 to 07.06.2016 i.e. for almost 60 days, for which no prior
permission was obtained from the competent authorities. In response to the
show-cause, the petitioner took a plea that he was seriously ill between the
period in question and due to compelling circumstances, he could not report
for his duties. It is the specific case of the petitioner that he never intended
to contravene any of the provisions of Service Regulations. It was not the
case of the disciplinary authority nor the enquiry officer that the medical
reports submitted by the petitioner were forged and fabricated or obtained
for any consideration though he was not ill during the period in question. In
absence of such of finding, it was not open to the Enquiry Officer or the
Disciplinary Authority to disbelieve the medical certificate issued by the
Doctors.
9. The issue fell for consideration before the Hon'ble Apex Court in
case of Chhel Singh v. MGB Gramin Bank & Ors. [(2014) 13 SCC 166],
wherein the Hon'ble Apex Court has held as under:
"12. From a plain reading of the charges we find that the
main allegation is absence from duty from 11-12-1989 to 24-
10-1990 (approximately 10½ months), for which no prior
permission was obtained from the competent authority. In his
reply, the appellant has taken the plea that he was seriously ill
between 11-12-1989 and 24-10-1990, which was beyond his
control; he never intended to contravene any of the provisions
of the service regulations. He submitted the copies of medical
certificates issued by doctors in support of his claim after
rejoining the post. The medical reports were submitted after
about 24 days. There was no allegation that the appellant's
unauthorised absence from duty was wilful and deliberate.
The inquiry officer has also not held that the appellant's
absence from duty was wilful and deliberate. It is neither a
case of the disciplinary authority nor the inquiry officer that
the medical reports submitted by the appellant were forged or
fabricated or obtained for any consideration though he was
not ill during the said period. In absence of such evidence and
finding, it was not open to the inquiry officer or the
disciplinary authority to disbelieve the medical certificates
issued by the doctors without any valid reason and on the
ground of 24 days' delay."
10. From a bare perusal of the orders passed by the Disciplinary
Authority, Appellate Authority and Revisional Authority, it appears that plea
of the petitioner was never considered and mechanically order of
punishment was passed and thereafter, affirmed by the two authorities,
merely on the basis of conjectures and surmises. Though it has been held
that a lenient view was taken but from the punishment order it appears that
a lenient view was taken to award a major punishment. The said
interpretation of the Authorities concerned are not acceptable to this Court.
11. The order of punishment does not commensurate with the charges
levelled and hence, the same is not tenable in the eyes of law as for
unauthorized absence, which was not willful and deliberate rather, it was
due to compelling circumstances, the unauthorized absence of the petitioner
cannot be termed to be a misconduct. The order passed on the basis of
conjectures and surmises and in complete violation of principles of natural
justice, cannot be sustainable in the eyes of law and is fit to be quashed and
set aside.
12. As a sequitur to the aforesaid observations, rules, guidelines, legal
propositions and judicial pronouncements, I hereby quash and set aside the
order dated 19.08.2016 (Annexure-7) passed by the Disciplinary Authority;
the order dated 22.10.2016 (Annexure-9), passed by the Appellate
Authority; and the order dated 13.02.2017 (Annexure-11) passed by the
Revisional Authority. As a result of quashment of the aforesaid orders, the
petitioner is entitled for all consequential benefits including regularization
of period of absence and payment of 50% of salary for the period in
question i.e. from 06.04.2016 to 07.06.2016 and the respondents are
directed to extend the same, within a period of four weeks from the date of
receipt/ production of a copy of this order.
13. With the aforesaid observations and directions, the writ petition
stands allowed.
(Dr. S.N. Pathak, J.)
kunal/-
