Jharkhand High Court
Girish Mahto vs ) Union Of India on 9 April, 2025
Author: Ananda Sen
Bench: Ananda Sen
2025:JHHC:11005
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 1717 of 2021
Girish Mahto, S/o sri Lal Mohan Mahato, resident of Village-Babu Ram Dih, P.O.-
Babu Ram Dih, P.S.-Tamar, District-Ranchi ..... Petitioner(s).
Versus
1) Union of India, through the Director, Central Industrial Security Force,
Ministry of Home Affairs, having office at Block No. 13, CGO Complex
Lodhi Road, P.O. & P.S.- Lodhi Road, New Delhi-110033.
2) The Inspector General, Central Industrial Security Force, Ministry of Hime
Affairs, having office at Eastern Sector, Telegraph Colony, Kidwaipuri, P.O.
& P.S.-Kidwaipuri, Town and District-Patna (Bihar)
3) Deputy Inspector General, Central Industrial Security Force, Ministry of
Home Affairs, having office at Unit CCL Kargali, P.O. & P.S.-Bermo, District-
Bokaro.
4) The Commandant, Central Industrial Security Force, having office at CISF
Unit, CCL Kargali, Post-Bermo, P.S.-Bermo, District-Bokaro
.... Respondent(s).
CORAM : SRI ANANDA SEN, J.
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For the Petitioner(s) :Mr. Manoj Tandon, Advocate.
:Ms. Shivani Bhardwaj, Advocate
:Ms. Neha Bhardwaj, Advocate
For the UOI :Mr. Anil Kumar, ASGI
:Mr. Shiv Kumar Sharma, Sr. Panel Counsel
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05/09.04.2025: Heard, learned counsel for the petitioner and learned counsel
appearing on behalf of the respondent- Union of India.
2. The petitioner in this writ application has prayed to quash and set
aside the penalty order contained in Memo No. 859 dated 16th April, 1997
(Annexure-4), Appellate Order contained in Memo No.2734 dated 14.07.1997
(Annexure-6) and Revisional Order contained in Memo No.2243 dated
04.05.1998 (Annexure-7) punishment order, appellate order and revisional
order. Further he has prayed to reinstate him in service with all consequential
benefits.
3. During course of argument, it has brought to the notice of this Court that
petitioner has already attained the age of superannuation on 31st March, 2025.
Since, the petitioner has already attained the age of superannuation, there is
no question of reinstating him in service even if the dismissed order is set
aside.
4. Facts of this case, as it appears from the writ petition and the counter
affidavit is that the petitioner was a Constable in Central Industrial Security
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Force. He joined his service somewhere in the year 1986. The petitioner
applied for casual leave which was granted to him. The period of leave was
from 24.09.1996 to 28.09.1996. He was supposed to report on 30.09.1996. An
extra day of leave was granted for 29.09.1996 as the same was Sunday.
Admittedly, the petitioner did not report on 30.09.1996, on the ground that he
was taken in custody in a criminal case instituted against him for committing
offence punishable under Section 465, 467, 406 and 420 read with Section
120-B of the Indian Penal Code. He was taken in custody on 27.09.1996 and
was released on 13.01.1997. After release, he reported for duty on 15.03.1997
but prior to that, he was already suspended from service on 14.12.1996. A
departmental chargesheet was issued to him on 19.12.1996. Though, initially
he did not participate in the departmental proceeding, but at a later stage, after
his release from custody, he participated in the departmental proceeding. His
stand in the departmental proceeding is that as he was taken in custody on
27.09.1996 and was released on 13.01.1997 from custody, it was impossible
for him to report to service on 30.09.1996. After conclusion of the departmental
inquiry, a report was submitted to the Disciplinary Authority holding the
petitioner guilty on the charge of unauthorized absence. The Disciplinary
Authority served the second show-cause notice to the petitioner along with the
copy of the inquiry report. The petitioner, replied to the second show-cause
notice. After considering his reply, the petitioner was inflicted with the
punishment of dismissal from service on 16.04.1997. The departmental appeal
was filed by the petitioner which stood dismissed on 14.07.1997. The revision
preferred by the petitioner was also dismissed on 04.05.1998. In the
meantime, in the criminal case, the petitioner was convicted by the Judicial
Magistrate vide judgment dated 20.09.2008. The petitioner challenged his
conviction order in the criminal appeal. The Appellate Court vide order dated
19.03.2016 acquitted the petitioner from the charges and his conviction was
set aside. The petitioner thus in this writ petition has challenged his order of
dismissal, the appellate order and the revisional order, and has prayed for
reinstatement with all consequential benefits.
5. The counsel appearing on behalf of the petitioner, submits that
admittedly the petitioner was granted leave from 24.09.1996 till 28.09.1996
with the grace of one day i.e on 29.09.1996 which was Sunday. He was
suppose to report on 30.09.1996, but as he was taken in custody, he could not
report which resulted in framing of the departmental charge against the
petitioner. As per the learned counsel, though the absence of the petitioner
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was unauthorized, but the same was beyond his control. When a particular act
is beyond the control of the petitioner, he cannot be charged for the same act.
It is his contention that he has explained his unauthorized absence. Though
the foundational fact of the said explanation is admitted, the explanation was
not accepted and without accepting the said explanation, he has been
dismissed from the service. He submits that now since he has been
superannuated, the relief which he has sought for, i.e. reinstatement in service
after setting aside the penalty order be moulded and modified accordingly. In
support of his contention, he has relied upon judgment of the Hon'ble
Supreme Court as reported in (2012) 3 SCC 178 in the case of Krushnakant
B. Parmar vs Union of India & Anr.
6. The learned counsel appearing on behalf of Union of India submits that
admittedly the petitioner has overstayed. He was supposed to report on duty
on 30.09.1996, but admittedly he reported for duty on 15.03.1997. It is his
contention that admittedly the petitioner was released from custody on
13.01.1997 but what prevented him to report on duty immediately thereafter is
not known, nor explained by the petitioner. He reported after two months which
itself is a misconduct, warranting punishment. As per him, in terms of Section
18 of the CISF Act, overstaying is a misconduct for which the petitioner has
been proceeded against. It is his contention that this Court sitting in jurisdiction
under Article 226/227 of the Constitution of India cannot reappraise the entire
evidence as the Court is not sitting in an appeal. Considering the limited scope
of interference, when admittedly there is no allegation that the procedures of
law were not followed and there is no allegation that the petitioner was not
given any opportunity to defend himself, this Court should not interfere with the
order of punishment.
7. After hearing the counsel for the parties, I find that the facts are admitted
in this case. The petitioner admittedly was granted leave from 24.09.1996 till
28.09.1996 with one day extra, i.e. on 29.09.1996. He was supposed to report
on duty on 30.09.1996, but he failed. The fact that the petitioner was taken in
custody while he was on leave i.e. on 27.09.1996 is admitted by the
respondents. The fact that he was released on 13.01.1997 from custody and
he reported on duty on 15.03.1997 is also admitted. The fact that he was
suspended with effect from 14.12.1996 is also admitted, so is the fact that he
was convicted in the criminal case on 20.09.2008 and was later on acquitted
by the Appellate Court on 19.03.2016.
8. The petitioner was served with the charge-sheet dated 19.12.1996. The
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same has been brought on record as Annexure 2 to the writ petition. The
article of charge against the petitioner reflects that he is guilty of gross
indiscipline and misconduct. The charge is of overstaying as the petitioner
overstayed without any leave beyond 30.09.1996. Since the charge-sheet was
issued on 19.12.1996, the period of his overstaying should be counted from
the date he was directed to report on duty i.e. 30.09.1996 till the charge-sheet
was issued to him, i.e. 19.12.1996. The fact that he was in custody during the
aforesaid period, has been admitted by the employer. He was released only on
13.01.1997 from custody, i.e. the period when he was already under
suspension, as the suspension order is dated 14.12.1996. There is no
document filed by the petitioner on record to suggest that petitioner was taken
on custody on 27.09.1996 and was released on 13.01.1997, but this fact has
been admitted by the respondents. The facts which are admitted by the
parties, need not be proved. Thus, non-filing of documents, to support that he
was in custody during the aforesaid period is irrelevant.
9. The petitioner being a member of the Central Industrial Security Force
is governed by the Central Industrial Security Force, Act of 1968 and the rules
framed thereunder. Section 18 of the Central Industrial Security Force Act of
1968 provides for penalties when the member of the force neglect his duty.
Section 18(1) provides for the circumstances, which will attract the penalties
for neglect of duties. Section 18(2) provides that an offence punishable under
the act is cognizable and non-bailable.
Sub-Section 2-A deals with vesting powers to the commandants with the
powers of Magistrate to try the offences.
Section 18(1) is of utmost importance in this case. Section 18(1) reads
as follows:-
"18. Penalties for neglect of duty, etc.-- (1) Without prejudice to the
provisions contained in section 8, every member of the Force who shall be
guilty of any violation of duty or willful breach or neglect of any Rule or
regulations or lawful orders made by a Supervisory officer, or who shall
withdraw from the duties of his office without permission, or who, being
absent on leave, fails without reasonable cause, to report himself for duty
on the expiration of the leave, or who engages himself without authority in
any employment other than his duty as a member of the Force or who shall
be guilty of cowardice, may be taken into Force custody and shall, on
conviction, be punished with imprisonment for a term which may extend to
one year."
10. From the perusal of Section 18(1) quoted above, I find that a member of
the force would be guilty if he willfully breaches or neglects or violates his duty
or any rule or any regulation or law or order made by any superior officer, in
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respect of overstaying of leave. The aforesaid Section provides that a member
who is absent on leave fails without reasonable cause to report for duty on
expiry of the leave is guilty and can be penalized under Section 18 of the said
Act. The important provision is that if a person is on leave, without reasonable
cause (emphasis supplied by this Court), fails to report himself on duty after
expiry of the leave, then the same can be termed to be a misconduct and can
be said to be willful breach or neglect of duty. Thus, the catch phrase in this
case is "without reasonable cause". This means that an opportunity should be
given to the delinquent employee to explain the cause of his overstay and if
his cause is not reasonable, the same will be converted to a misconduct or
willful violation of an order and can be termed as neglect of duty.
Each and every overstaying after leave cannot be said to be neglect of
duty in view of this provision. It is those which is not backed by any plausible
reason or cause, will convert into neglect of duty.
11. In this case factually, I find that the petitioner was taken in custody when
he was on leave. As the petitioner was taken in custody, while he was on leave
on 27.09.1996 it was absolutely impossible and beyond his control to report on
duty on 30.09.1996, more so, when he was only released from custody on
13.01.1997. From the enquiry report which is Annexure 3 to the counter
affidavit, I find that this petitioner has given his explanation that he was taken
in custody while he was on leave and was only released on 13.01.1997, thus
he could not join on 30.09.1996. This explanation which was given by
petitioner, is a reasonable cause for not reporting to duty on 30.09.1996. The
fact that he was in custody during the aforesaid period has been accepted by
the CISF Authorities, but surprisingly his explanation was not taken to be a
"reasonable cause", that is why he was punished in terms of Section 18 of the
Act. Not accepting this explanation is not proper by the respondents as the
reason given by the petitioner is reasonable which made impossible for him to
report on duty on 30.09.1996. Non acceptance of this explanation as
reasonable is a perversity.
12. The Hon'ble Supreme Court in the case of Krushnakant B. Parmar vs
Union of India & Anr., reported in 2012 (3) SCC 178. Paragraph 17 has held
that if the absence is the result of compelling circumstances under which it was
not possible to perform the duty, such absence cannot be held to be willful.
Further in paragraph 18 it has been held that in a departmental proceeding it is
on the department to prove that the absence was willful and if the absence is
not willful the same will not amount to misconduct. It is necessary to quote
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paragraphs 17 and 18 of the aforesaid judgment:-
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.
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
13. In this case in view of the legal provision and the judgment of Hon'ble
Supreme Court, whether the absence is willful or not is not the main issue, the
issue is whether he has explained reasonably the absence, which is the
mandate of law in terms of Section 18 of the Act. An absence may be voluntary
or involuntary, but in both the cases, so far as Rule 18 of Central Industrial
Security Force is concerned, if the explanation is reasonable and the absence
is due to some genuine cause, then the unauthorized absence cannot attract
penalty as per the Act. I have already held that explanation which has been
given by this petitioner and the cause shown is definitely reasonable and it
cannot be said to be unreasonable by any stretch of imagination.
14. Learned counsel appearing on behalf of the respondents also submitted
that the petitioner even after release from custody on 13.01.1997 did not report
to his duty immediately. He has reported after two months, when he could have
reported much earlier. Thus, as per the respondents he has committed
misconduct.
I am not agreeing with the aforesaid submission of the learned counsel
for the respondents, as what the counsel for the respondents has tried to put
forth before this Court is not the charge against this petitioner. Be it noted that
the charge against the petitioner is of absence, as he has overstayed from
30.09.1996 till the chargesheet was filed. Any subsequent alleged act cannot
be read into the chargesheet which was filed against the petitioner earlier.
15. Thus, considering what has been held above, I hold that since the cause
of the petitioner of not joining duty on 30.09.1996 is reasonable and was
beyond his control. The same cannot be termed as the neglect in duty, in terms
of Section 18 of the Central Industrial Security Force Act. Consequently, the
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order of dismissal of Appeal and Revision is also bad as both the Appellate
Authority and Revisional Authority did not consider the aforesaid aspect. Thus,
I am inclined to allow this writ petition by setting aside the order of penalty
dated 16.04.1997 and subsequent order of Appeal dated 14.07.1997 and the
Revisional Order dated 04.05.1998.
16. Now the next question, which will fall for consideration is what would be
consequential relief which the petitioner is entitled to.
Admittedly, the petitioner was in custody from 27.09.1996 and was
released on 13.01.1997. In between the aforesaid period, he was also
suspended on 14.12.1996 and convicted on 20.09.2008. He was ultimately
acquitted on 19.03.2016 in Criminal Appeal which was filed by him. Now as
submitted by both the parties, the petitioner has already attained the age of
superannuation on 31.03.2025. Since he has already attained the age of
superannuation, he cannot be reinstated. I have hold that his order of
dismissal is bad, he could not have been dismissed from service in view of the
explanation given by him.
17. Since his dismissal is bad, he is entitled for back wages. Since the
petitioner has also not served the department, it will not be proper to grant
100% back wages. A balance has to be maintained. Thus, I direct the
respondents to pay 50% back wages to the petitioner, from the date of his
acquittal i.e. on 19.03.2016 till 31.05.2025 as the petitioner could not have
performed his duty before that period because he was convicted by order
dated 20.09.2008.
18. It is also made clear that after setting aside the order of dismissal, the
entire period from the date of his appointment till the date of superannuation
should be counted for the purpose of all his other post retiral benefits. The
entire amount should be calculated and paid to the petitioner within ten weeks
from the date of receipt of a copy of this order.
19. With the aforesaid observation, the instant writ petition stands allowed.
(ANANDA SEN, J.)
Rashmi/-
AFR
