Jharkhand High Court
Namita Singh vs Central Industrial Security ... on 3 August, 2023
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 2070 of 2020
Namita Singh .... .... Petitioner
Versus
1. Central Industrial Security Force through its Director General, New
Delhi.
2. Inspector General, Eastern Sector, Central Industrial Security
Force, Ranchi.
3. Deputy Inspector General, Eastern Region Headquarters, Central
Industrial Security Force, Patna.
4. Senior Commandant, CISF 2nd Reserve Battalion, Ranchi.
5. Deputy Commandant, CISF, 2nd Reserve Battalion, Ranchi.
.... .... Respondents
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CORAM : HON'BLE DR. JUSTICE S.N. PATHAK
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For the Petitioner : Mr. Kumar Vaibhav, Advocate
Mr. Vikas Kumar, Advocate
Mr. Nawal Kishor Pandey, Advocate
For the Respondents : Mr. Anil Kumar, ASGI
Mr. Shiv Kumar Sharma, CGC
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6 / 03.08.2023 Heard the learned counsel for the petitioner and learned
counsel for the respondents.
2. The petitioner has approached this Court for quashing of the
order dated 9.10.2018, whereby the petitioner has been dismissed from
service. Petitioner has also prayed for quashing the appellate order dated
18.1.2019 as well as revisional order dated 9.5.2019 confirming the
dismissal order. Further prayer has been made for reinstatement of service
with all consequential benefits.
3. As per the factual matrix, the petitioner was appointed on the
post of Lady Constable in the year 2008 in Central Industrial Security
Force. While the petitioner was posted at 2nd Reserved Battalion, Ranchi,
she was proceeded for casual leave from 12.3.2018 to 18.3.2018. Though,
she was supposed to join the duty on 19.3.2018, but she did not join
despite issuance of three notices on 22.3.2018, 31.3.2018 and 6.4.2018 at
the address of her native place. This unauthorized overstayal of the
petitioner led to issuance of memo of charge under Rule 36 of the CISF
Rules, 2001 on 17.5.2018. Two charges were levelled against her, which
includes the current unauthorized absenteeism as well as past misconduct
for overstayal leave, in which, minor punishments were inflicted. Being
duty bound, the petitioner submitted her reply denying the charges
levelled against her with supportive documents. She explained that
overstayal is neither willful nor deliberate, rather, it was due to compelling
circumstances. Further case of the petitioner that due to medical problem
of her son, as he was suffering from epilepsy, as also due to ailments of
her mother, she could not join duty on time. It was also stated in the reply
that on earlier occasions while she was posted at different places, she was
made victim of sexual harassment by the superior authorities and due to
those disputes, several cases are pending in the Court and the petitioner
has to attend the Court periodically. It was further stated in the reply that
the petitioner has been embroiled in a divorce case with her husband,
which is going on at Hazaribagh Court, wherein also the petitioner has to
attend the case time to time. These facts have already been informed by
the mother of petitioner to the authority concerned. However, having
found the reply of the petitioner unsatisfactory, the enquiry started and
finally the enquiry officer submitted the report holding the charges to be
proved. Agreeing with the findings returned by the enquiry officer, the
disciplinary authority issued second show cause notice on 19.9.2018 to
which the petitioner replied on 9.10.2018 stating therein that the enquiry
report is not in consonance with her reply, though it has come in the
enquiry report itself that the mother of the petitioner has already informed
the Authority about these compelling situations. However, the petitioner
was inflicted with capital punishment by dismissing her from service by
order dated 9.10.2018. The appeal preferred thereagainst was also rejected
by the appellate authority by order dated 18.1.2019. Thereafter the
petitioner preferred revision, which also got rejected by the revisonal
authority vide order dated 9.5.2019. Challenging these three impugned
orders, the petitioner has approached this Court.
4. Mr. Kumar Vaibhav, learned counsel assisted by Mr. Vikas
Kumar, learned counsel appearing for the petitioner submits that the
impugned order of dismissal passed by the disciplinary authority is neither
sustainable in law nor on facts for the reason that the disciplinary
authority has passed the order without taking into account the medical
reports and without considering the compelling situations of the petitioner,
as narrated in her reply, though it has been mentioned in the enquiry
report itself that the same is well within the knowledge of the authority.
Learned counsel further submits that once the medical certificates have
been brought to the knowledge of the respondents and without giving a
finding it cannot be inferred that the absence of the petitioner was
unauthorised. He further submits that the absence was not intentional or
wilful, rather, it was under the compelling circumstances, which was
beyond the control of the petitioner. Learned counsel for the petitioner
further submits that if the allegation of unauthorized absence from duty is
made, the disciplinary authority is required to prove that the absence was
wilful and in absence of such finding, absenteeism of the petitioner will
not amount to misconduct, rather, the burden of proving the charge is
shifted upon the petitioner. Learned counsel further adds that the
respondents have acted in a biased manner in proving the charge due to
complaints of sexual harassment against her superior authorities. Learned
counsel submits that the enquiry report is based on mere conjecture and
surmises and hence, it is a case of no evidence. Learned counsel further
submits that the appellate authority as well as revisional authority has not
considered the reply submitted by the petitioner in its right earnest and
without applying their independent application of mind, they have rejected
the appeal / revision.
5. To sum up, learned counsel submits that the punishment
imposed upon the petitioner i.e. dismissal from service is not at all in
commensurate with the charge and the materials available on record
against the petitioner. The petitioner has rendered a long tenure of service
and hence, this type of penalty would be highly disproportionate to the
nature of misconduct. Therefore, learned counsel submits that the
punishment imposed upon the petitioner is fit to be set aside and the
petitioner is fit to be reinstated in service with consequential benefits.
6. In support of his contention, learned counsel relies upon the
judgment in the case of Krushnakant B. Parmar Vs. Union of India &
Anr as reported in (2012) 3 SCC 178, as also in the case of S.R. Tiwari
Vs. Union of India, reported in (2013) 6 SCC 602.
7. Per contra, counter affidavit has been filed. Mr. Anil Kumar,
learned ASGI, assisted by Mr. Shiv Kumar Sharma, learned CGC,
representing the respondents submits that the departmental proceeding
was initiated against the petitioner on the charges of unauthorised absence
of 143 days. He further submits that three notices were sent to the
petitioner to join her post but she did not appear and finally, on the basis
of prosecution witnesses, the enquiry officer submitted the report finding
the charges as proved. The petitioner had not given proper reply for her
unauthorised absence. Taking into consideration the enquiry report
coupled with the past service records of the petitioner, the disciplinary
authority passed the penalty order. Learned counsel further submits that
the reason for absenteeism of the petitioner has duly been considered by
the disciplinary authority and having found no sufficient ground, the
impugned order has been passed. Learned counsel further submits that
dismissal order has been tested by the petitioner before two higher
authorities, wherein also, the petitioner did not succeed. Hence, there is no
infirmity in the impugned orders passed by the three superior authorities
nor the same suffer from any illegality which require interference by this
Court in its writ jurisdiction.
8. Be that as it may, having gone through the rival submissions
of the parties, this Court is of the considered view that the case of the
petitioner needs consideration for the following facts and reasons:-
(i) The petitioner was appointed in the year 2008. She proceeded for
six days casual leave on 12.3.2018 for children's final examination
and she did not join the duty on time.
(ii) Unauthorized absence of the petitioner coupled with her past
services wherein she was imposed by two minor punishments for
unauthorized absenteeism led to initiation of a departmental
proceeding which finally culminated into her dismissal, based on
the findings returned by the enquiry officer.
(iii) The petitioner has duly described the entire episode of her
absenteeism with supportive medical reports as to what prevented
her for not joining the duty. The petitioner has duly explained that
due to medical problems of her son and mother, she could not join
the duty. She has also explained that due to pending cases relating
to her divorce and others, she failed to join the duty. It is also
averred in the reply that she was subjected to sexual harassment by
the higher authorities. Hence, it cannot be ruled out that there is no
biasness in the enquiry report, which is the basis of issuance of
dismissal order.
(iv) The reply of the petitioner has not been considered in its right
perspective by the authority concerned including the appellate
authority as well as revisional authority. Even it has come in the
enquiry report that the mother of this petitioner has informed the
Department about her absenteeism. Therefore, it can comfortably
be said that the absenteeism of the petitioner is neither deliberate
nor willful, as the Department has full knowledge about the
compelling situations of the petitioner. Indeed, in the facts of this
case, it can be said that the petitioner was on leave without
sanction.
(v) Law is well settled that if an employee is absent from duty without
leave shall be treated as misbehavior and after obtaining the
explanation from the concerned employee, proceedings shall be
drawn up and departmental punishment can be inflicted. After
explanation, if it is found that the concerned employee had
remained absent from duty due to any sufficient reason, he/she
shall be granted leave admissible for that period. Law is also well
settled that whenever an officer does not return to duty in time,
enquiries shall be made from the Superintendent of Police of his/
her native district.
(vi) In the present case, the compelling circumstances have already
been forwarded by the mother of this petitioner and on enquiry, the
petitioner explained the detailed episode which prevented her not
to join the duty. As such, the Department is well versed with the
compelling situation and despite these facts, the petitioner has been
dismissed.
(vii) The petitioner has also been charge-sheeted taking support from the
past misconduct for absenteeism, just to make easy for the
respondents to oust the petitioner from service. When the petitioner
was already punished with her past misconduct, there is no nexus
to connect her past service along with the present departmental
proceeding.
(viii) Dismissal amounts to forfeiture of the entire amount which has to
be earned by an employee in his/her remaining tenure of service.
The Constitution provides right to livelihood and such right cannot
be snatched away by order of dismissal in cases where absenteeism
is not willful and intentional. The Hon'ble Apex Court in para-17
in case of Krushnakant B. Parmar Vs. Union of India Vs. Anr.,
reported in (2012) 3 SCC 178 has held as under:-
"17. if the absence is the result of compelling
circumstances under which it was not possible to report
or perform duty, such absence cannot be held to be
wilful. Absence from duty without any application or
prior permission may amount to unauthorised absence,
but it does not always mean wilful. There may be
different eventualities due to which an employee may
abstain from duty, including compelling circumstances
beyond his control like illness, accident, hospitalisation,
etc., but in such case the employee cannot be held guilty
of failure of devotion to duty or behaviour unbecoming
of a government servant."
(ix) In the present case, though the enquiry officer has proved the
charge of unauthorized absence, but at the same time, the enquiry
officer has himself mentioned in his report that the mother of this
petitioner has informed the reasons and circumstances to the
Department, due to which the petitioner could not join the duty.
Even the order of dismissal has not decided the question as to
whether the absence of petitioner from duty was wilful or due to
compelling circumstances of ill-health or being admitted in the
hospital. Even after the petitioner produced medical certificates,
the respondents have not held any enquiry to examine the veracity
of the said documents. In absence of the said action, it can be
safely assumed that the explanation submitted by the petitioner
about her son and mother being seriously ill, coupled with the fact
that she has to attend Court in several pending cases is perfectly
valid and genuine.
(x) With regard to quantum of punishment, the Hon'ble Supreme Court
in the case of S.R. Tiwari (supra) held that the question of
interference on the quantum of punishment has already been
answered in a catena of judgments whereunder it has been held
that if the punishment awarded is disproportionate to the gravity of
misconduct, it would be arbitrary, and thus, would violate the
mandate of Article 14 of the Constitution of India. It has also been
held that if a decision is arrived at on the basis of no evidence or
thoroughly unreliable evidence and no reasonable person would act
upon it, the order would be perverse.
(xi) The aforesaid judgments are squarely applicable in the present case
in view of the fact that the impugned order of dismissal does not
indicate any evidence whatsoever against the petitioner which was
looked into in the enquiry proceedings. Even the medical
certificates and reply submitted by the petitioner have been
completely ignored. Dis-proportionality of the punishment vis-a-
vis the charges imputed against the petitioner can also be seen by
application of the judgment of Hon'ble Supreme Court in
Krushnakant B. Parmar (supra) in which Hon'ble Supreme Court
has specifically held that the question of unauthorised absence
from duty amounting to misconduct can be decided only after the
decision on the question as to whether the absence is wilful or
because of compelling circumstances. It has been further held that
if the absence is the result of some compelling circumstances under
which it was not possible to report for duty, such absence cannot
be said to be wilful and, therefore, would not amount to
misconduct whereunder dismissal from services would be effected.
(xii) In view of the material on record, it can be safely assumed that the
petitioner was under compelling circumstances due to which she
could not report back to duty resulting in her unauthorised
absence. Unauthorised absence of the petitioner was not wilful and
deliberated and, therefore, it cannot be held that such unauthorised
absence amounting to misconduct was so grave as to dismiss her
from service. However, the fact remains that this Court sitting
under Article 226 of the Constitution cannot substitute its own
conclusion on the quantum of punishment to that of the
disciplinary authority. Hence, it would be appropriate to remit
back the matter to the disciplinary authority on the quantum of
punishment. In this context, the Hon'ble Supreme Court in the
case of Naresh Chandra Bhardwaj Vs. Bank of India & ors.,
reported in (2019) 4 Supreme 614, has held as under:-
"There is really no difference in the proposition, which is
sought to be propounded except that in the latter judgment
the principles have been succinctly summarised in the last
paragraph of the judgment, which read as under: 19. The
principles discussed above can be summed up and
summarized as follows: 19.1. When charge(s) of
misconduct is proved in an enquiry the quantum of
punishment to be imposed in a particular case is
essentially the domain of the departmental authorities.
19.2. The Courts cannot assume the function of
disciplinary/departmental authorities and to decide the
quantum of punishment and nature of penalty to be
awarded, as this function is exclusively within the
jurisdiction of the competent authority. 8 19.3. Limited
judicial review is available to interfere with the punishment
imposed by the disciplinary authority, only in cases where
such penalty is found to be shocking to the conscience of
the Court. 19.4. Even in such a case when the
punishment is set aside as shockingly disproportionate to
the nature of charges framed against the delinquent
employee, the appropriate course of action is to remit the
matter back to the disciplinary authority or the appellate
authority with direction to pass appropriate order of
penalty. The Court by itself cannot mandate as to what
should be the penalty in such a case.
(emphasis supplied)
9. As a cumulative effect of the aforesaid rules, observations,
guidelines, the impugned penalty order dated 9.10.2018 (Annexure-8)
passed by the Disciplinary Authority, appellate order dated 18.1.2019
(Annexure-10) and the revisional order dated 9.5.2019 (Annexure-12) are
hereby quashed and set aside. The petitioner is directed to be reinstated in
service. However, the matter is remitted back to the disciplinary authority
to consider the case of the petitioner for grant of lesser punishment other
than the dismissal / removal / compulsory retirement, considering the
aforesaid facts and situation, in accordance with law. Let the entire
exercise be undertaken by the respondents within a period of twelve
weeks from the date of receipt of a copy of this order.
10. Resultantly, the writ petition stands allowed with the
directions and observations, as aforesaid.
(Dr. S. N. Pathak, J.)
R.Kr.
