Jharkhand High Court
Praveen Kumar @ Praveen Kumar ... vs The Union Of India on 24 January, 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Letters Patent Appellate Jurisdiction)
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LPA No. 119 of 2022
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Praveen Kumar @ Praveen Kumar Singh, son of Sri Rajnikant Singh,
resident of village Jhagarpur, PO & PS Basaura, District Palamau, Jharkhand.
... ... Appellant
Versus
1. The Union of India.
2. The Inspector General, Central Reserve Police Force, Patna, PO,PS and
District Patna, Bihar
3. The Deputy Inspector of Central Reserve Police Force, Patna, PO,PS and
District Patna, Bihar
4. The Commandant of Central Reserve Police Force, ITI More, Chas, PO
and PS Chas, District Bokaro, Jharkhand ... ... Respondents
PRESENT
HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
HON'BLE MR. JUSTICE RATNAKER BHENGRA
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For the Appellant : Mr. Lalit Kumar Singh, Advocate
For the UOI : Mr. Anil Kumar, ASGI;
Mr. Shiv Kumar Sharma, CGC
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JUDGMENT
24th January 2023
Per, Shree Chandrashekhar,J.
After dismissal of the writ petition which was filed by the
appellant against the order of removal from service, he has filed the present
Letters Patent Appeal against the order dated 16 th December 2021 by which
WP(S) No. 4906 of 2015 has been dismissed.
2. In the aforesaid order dated 16th December 2021, the writ Court
has held as under:
"8. After going through the aforesaid report it is clear that the
respondents have given ample opportunity to the petitioner on the
one hand and had taken serious initiative to find out the reason for
absence of this petitioner on the other hand. However, the fact
remains that petitioner was lethargic enough not even to submit the
list of documents before the inquiry officer nor filing the reply to
second show cause; as such this Court holds that petitioner is not
entitled for any relief in the background that the petitioner was
appointed as police personnel in Central Reserve Police Force and
any delinquent employee of the respondent force must be
disciplined.
9. In view of the aforesaid discussions and looking to the
documents available on record it appears that neither there is any
procedural irregularity; nor there is any perversity in the order; as
such this Court refrains from interfering with the impugned orders.
10. Consequently, the instant writ application stands dismissed. "
3. To contest the aforesaid findings of the writ Court, Mr. Lalit
Kumar Singh, the learned counsel for the appellant, has referred to the order
dated 17th May 2014 passed by the disciplinary authority wherein a reference
of the documents regarding illness of the wife and elder brother of the
appellant has been made.
4. On the basis of such facts recorded in the order dated 17 th May
2014, the learned counsel for the appellant has challenged the order of
removal from service dated 27th February 2015 passed by the disciplinary
authority whereunder he has recorded that the appellant did not produce any
documentary evidence to justify his unauthorized absence from duty.
5. In our opinion, this contention has been raised by the learned
counsel for the appellant completely in ignorance of a conceptual difference
between initiation of a departmental inquiry and a preliminary inquiry. The
order dated 17th May 2014 clearly indicates that the said order was passed
under Rule 31(a) of Central Reserve Police Force Rules, 1955 whereas the
departmental proceeding against the appellant has been initiated by serving a
charge memo dated 11th July 2014. May be the medical records pertaining to
illness of the wife and elder brother of the appellant are on the files of the
disciplinary authority but on that basis the findings recorded in the order
dated 27th February 2015 passed by the disciplinary authority cannot be
faulted. It was the duty of the appellant to furnish the medical records of his
wife and elder brother along with his explanation to the memorandum of
charge dated 11th July 2014, which he has failed to do. This is not in dispute
that the departmental proceeding against the appellant was conducted
following the rules of natural justice and he had sufficient opportunity to put
forth his defence and lead evidence. This is also a matter of record that in the
domestic inquiry the appellant did not cross-examine any of the witnesses
produced by the employer. From the materials on record, this also does not
appear that the appellant has made any communication to the employer after
he absented himself from the duty.
6. The memorandum of charge dated 11th July 2014 puts to the
notice of the appellant that at the end of the period of earned leave on
9th September 2013 he was required to report for duty but he remained absent
till forenoon of 30th March 2014 - 202 days. His past misconducts in the
years 2012 and 2013 for which he was punished in the departmental inquiry
were also specifically brought to his notice.
7. However, with reference to the judgment in "Krushnakant B.
Parmar v. Union of India" (2012) 2 Supreme 254 which has been referred to
in 2013 SCC OnLine Cal 5663, the learned counsel for the appellant has
contended that before an inference on willful misconduct is drawn the
departmental authorities are required to find out whether there was any
compelling circumstance for the delinquent employee on account of which he
could not report to the duty.
8. In "Krushnakant B. Parmar" the Hon'ble Supreme Court has
observed as under:
"16. The question whether unauthorised absence from duty
amounts to failure of devotion to duty or behaviour 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 report or perform duty, such absence
can not be held to be willful.
18. Absence from duty without any application or prior permission
may amount to unauthorised absence, but it does not always mean
willful. There may be different eventuality 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".
9. As noticed above, the appellant has failed to establish that the
illness of his wife and elder brother was such a compelling circumstance on
account of which he could not even communicate the employer his inability
to join duty at the end of the period of earned leave. During whole of 202
days, the appellant did not make any communication or representation to the
disciplinary authority. There is no doubt that absence from duty without any
application or permission shall amount to unauthorized absence and in the
context of the appellant shall also be willful and intentional absence from
duty. The medical records produced by him which may indicate illness of his
wife and elder brother cannot be an excuse for him not to at least intimate the
disciplinary authority regarding his continued absence from duty.
10. Mr. Anil Kumar, the learned ASGI, has referred to the judgment
in "Union of India and others v. Bishamber Das Dogra" (2009) 13 SCC 102
to submit that the circumstances in the present case clearly establish that the
appellant is a habitual absentee who in the past has been punished for such
absenteeism.
11. In "Bishamber Das Dogra" the Hon'ble Supreme Court has held
as under:
"31. It is settled legal proposition that habitual absenteeism means
gross violation of discipline [vide Burn & Co. Ltd. v. Workmen
(AIR p. 530, para 5) and L&T Komatsu Ltd. v. N. Udayakumar
(SCC p. 226, para 6).]
... ... ....
33. Admittedly, the respondent employee has not completed the
service of six years and had been imposed punishment three times
for remaining absent from duty. On the fourth occasion when he
remained absent for ten days without leave, the disciplinary
proceedings were initiated against him. The show-cause notice
could not be served upon him for the reason that he again deserted
the LINE and returned back after fifty days. Therefore the
disciplinary proceedings could not be concluded expeditiously. The
respondent submitted the reply to the show-cause notice and the
material on record reveal that during the pendency of the enquiry
he further deserted the LINE for ten days. There is nothing on record
to show any explanation for such repeated misconduct or
absenteeism. The court/tribunal must keep in mind that such
indiscipline is intolerable so far as the disciplined force is
concerned"
.
12. In a departmental proceeding, findings of fact recorded by the
competent authorities are not open to challenge in a proceeding for
certiorari. The law is well-settled that it is not every error of fact that shall
invite issuance of writ of certiorari to correct the error(s) committed by the
inferior tribunal(s). Even so, the appellant has failed to demonstrate that the
findings of willful absence recorded by the departmental authorities are not
based on any legal evidence or contrary to the records.
13. In the end, we may only observe that the writ Court is not
constituted as a Court of appeal in a proceeding under Article 226 of the
Constitution of India to deal with the findings of fact recorded in a
departmental proceeding [refer: "State of A.P. v. Chitra Venkata Rao"
(1975)2 SCC 557]
14. Such being the factual state of affairs, the writ Court has rightly
declined to interfere with the order of removal from service passed against
the appellant in a properly constituted departmental inquiry.
15. LPA No. 119 of 2022 is dismissed.
(Shree Chandrashekhar, J.)
(Ratnaker Bhengra, J.)
Jharkhand High Court, Ranchi
Dated:24th January 2023
Soumya/Nibha-NAFR
