Mohanlal Damor vs The Union Of India And Ors.
2022 Latest Caselaw 12877 MP

                                  1
             IN THE HIGH COURT OF MADHYA PRADESH
                          AT GWALIOR
                                BEFORE
             HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
                        ON THE 26th OF SEPTEMBER, 2022

                  WRIT PET. (SERVICE) No. 416 of 2005

         BETWEEN:-
         MOHANLAL DAMOR, S/O SHRI LALUJI DAMOR,
         AGED   36 YEARS, OCCUPATION: NIL, R/O
         VILLAGE NATHELY, POST BHAMSOR, DISTRIT
         BAANSWADA, RAJASTHAN.

                                                                .....PETITIONER
         (BY SHRI ALOK SHARMA- ADVOCATE)

         AND
         1.   UNION   OF INDIA,    THROUGH THE
         SECRETARY, HOME, CGO COMPLEX, NEW
         DELHI.
         2. THE DIRECTOR GENERAL, CENTRAL
         RESERVE POLICE FORCE, BLOCK NO.1,
         CENTRAL OFFICE CAMPUS, LODHI ROAD, NEW
         DELHI.
         3. THE INSPECTOR GENERAL OF POLICE, SPL
         SECTOR, CENTRAL RESERVE POLICE FORCE,
         OLD BUILDINGS, DELHI-54.
         4. THE DEPUTY INSPECTOR GENERAL OF
         POLICE, CENTRAL RESERVE POLICE FORCE,
         BHOPAL, MADHYA PRADESH.
         5. THE ADDITIONAL DEPUTY INSPECTOR
         GENERAL OF POLICE, GC CENTRAL RESERVE
         POLICE FORCE, SHIVPURI, MADHYA PRADESH.

                                                             .....RESPONDENTS
         (BY SHRI PRAVEEN NEWASKAR- ADVOCATE)

      Th is appeal coming on for hearing this day, t h e court passed the
following:
                                   ORDER

This petition under Article 226 of the Constitution of India has been filed seeking the following relief:-

It is, therefore, most humbly prayed that this Hon'ble Court may

kindly be pleased to allow the instant petition and issue a writ of Mandamus and/or any other suitable writ order or directions quashing the orders Annexure P-I to P-III passed by respondents No.5 to 3 respectively, whereby the services of the petitioner have been illegally terminated. The respondents may kindly be further directed to reinstate the petitioner to his services with all consequential benefits thereof. Cost of instant petition may also kindly be awarded.

It is submitted by the counsel for the petitioner that the petitioner was posted as Constable at GC Central Reserve Police Force at Shivpuri. The petitioner went on leave but the allegations are that he overstayed leave by 106 days. A departmental enquiry was conducted and the charge for overstaying the leave was found to be proved and, accordingly, by order dated 02.03.2002, the

petitioner was dismissed from service.

Being aggrieved by the order passed by the Disciplinary Authority, the petitioner preferred an appeal under Rule 28 of CRPF Rules,1955 (in short, Rules 1955). The appeal was filed on 03.06.2002. By order passed in September, 2002, the appeal filed by the petitioner was dismissed as barred by time. Being aggrieved by the said order, the petitioner preferred a revision under Rule 29 of CRPF Rules,1955 which too has been dismissed by order dated 02.01.2003 by the Revisional Authority.

Challenging the orders passed by the authorities below, it is submitted by the counsel for the petitioner that it is true that the petitioner had overstayed the leave by 106 days, but the respondents have not considered his defence in proper perspective. It is well established principle of law that unless and until the absence is deliberate, the authority should not take harsh view by dismissing an employee from service. To buttress his contentions, the counsel for the petitioner has relied upon the judgment passed by the Supreme Court in the

case of Chhel Singh V. MGB Gramin Bank, Pali and Others reported in (2014) 13 SCC 166.

It is further submitted that it is true that the petitioner was sanctioned leave and, accordingly, he went to his home town. There some dispute arose between the family members and, accordingly, he was ousted from the family. Under the compelling circumstances, he was left with no other option but to construct his own house. During construction of the house, he sustained an injury on the finger of his left hand. As a result, he was undergoing the treatment for the same and thus, it is clear that the absence of the petitioner from service was not intentional or deliberate.

Per contra, the petition is vehemently opposed by the counsel for the State. It is submitted that the CRPF is a disciplined force in uniform and overstaying the leave is a serious misconduct. It is submitted that the petitioner could not point out any convincing document to support his unauthorized absence. Even otherwise, the enquiry officer after considering the material, which has come on record, has given a finding that the charge of overstaying leave for 106 days is proved. Even otherwise, the petitioner has also admitted his unauthorized absence for 106 days but he has also failed to justify his absence. If the petitioner had some reason to overstay the leave, then he could have made an application for grant of leave even that was not done. No

information was given to the Department by the petitioner and thus, the defence taken by the petitioner was nothing but an afterthought.

Heard the learned counsel for the parties.

The petitioner has not disputed that he has overstayed the leave by 106 days. The only question for consideration is as to whether the petitioner had any reasonable cause for overstaying the leave or not. The defence of the

petitioner that since there was some family dispute, and therefore, he was ousted from his house and under that circumstances, he was under compulsion to construct a house is not supported by any document. The permission to construct a house granted by the Gram Panchayat has also not been placed on record. The details of the land on which the house was being constructed by the petitioner has also not been filed. The completion certificate of the house issued by the Gram Panchayat has also not been placed on record. The petitioner has not filed any document to show that he was the owner of land where he could have constructed his house.

So far as the injury sustained by the petitioner on his finger is concerned, it is really surprising that when the CRPF has all medical facilities, then why the petitioner instead of joining his service and taking the treatment from the hospital of CRPF, overstayed the leave and continued with his private treatment. Thus, the authorities have found that the defence put forward by the petitioner is nothing but an afterthought and cannot be relied upon.

The Supreme Court in the case of Channabasappa Basappa Happali v. State of Mysore reported in (1971) 1 SCC 1 has held as under:-

4. The pleas of the petitioner are quite clear; in fact he admitted all the relevant facts on which the decision could be given against him and therefore it cannot be stated that the enquiry was in breach of any principle of natural justice. At an enquiry facts have to be proved and the person proceeded against must have an opportunity to cross-examine witnesses and to give his own version or explanation about the evidence on which he is charged and to lead his defence. In this case, the facts were two-fold, that he had stayed beyond the sanctioned leave and that he had proceeded on a fast as a demonstration against the action of the authorities and also for what he called the upliftment of the country etc. These facts were undoubtedly admitted by him. His explanation was also there and it had to be taken into account. That explanation is obviously futile, because persons in the police force must be clear about extension of leave before they absent themselves from duty. Indeed this is true of every one of the services, unless of course there are circumstances in which a person is unable to

rejoin service, as for example when he is desparately ill or is otherwise reasonably prevented from attending to his duties. This is not the case here. The petitioner took upon himself the decision as to whether leave could be extended or not and acted upon it. He did go on a fast. His later explanation was that he went on a fast for quite a different reason. The enquiry officer had to go by the reasons given before him. On the whole therefore the admission was one of guilty in so far as the facts on which the enquiry was held and the learned Single Judge in the High Court was, in our opinion, right in so holding. 5 . It was contended on the basis of the ruling reported in Regina v. Durham Quarter Sessions Ex-parte Virgo [1952 (2) QBD 1] that on the facts admitted in the present case, a plea of guilty ought not to be entered upon the record and a plea of not guilty entered instead. Under the English law, a plea of guilty has to be unequivocal and the Court must ask the person and if the plea of guilty is qualified the Court must not enter a plea of guilty, but one of not guilty. The police constable here was not on his trial for a criminal offence. It was a departmental enquiry, on facts of which due notice was given to him. He admitted the facts. In fact his counsel argued before us that he admitted the facts but not his guilt. We do not see any distinction between admission of facts and admission of guilt. When he admitted the facts, he was guilty. The facts speak for themselves. It was a clear case of indiscipline and nothing less. If a police officer remains absent without leave and also resorts to fast as a demonstration against the action of the superior officer the indiscipline is fully established. The learned Single Judge in the High Court was right when he laid down that the plea amounted to a plea of guilty on the facts on which the petitioner was charged and we are in full agreement with the observations of the learned Single Judge.

The Supreme Court in the case of Dharmarathmakara Raibahadur Arcot Ramaswamy Mudaliar Educational Institution v. Educational Appellate Tribunal reported in (1999) 7 SCC 332 has held as under:-

8 . The contention of learned counsel for the respondent is confined that there was no enquiry in terms of Section 6 of the said Act. There is no submission of any defence on merit. Even before us when we granted learned counsel an opportunity to give any prima facie or plausible explanations on record to defend her actions, nothing could be placed before us. Giving of opportunity or an enquiry of course is a check and balance concept that no one's right be taken away without giving him/her opportunity or without enquiry in a given case or where the statute requires. But this cannot be in a case where allegation and charges are admitted and no possible defence is placed before the authority concerned. What enquiry is to be made when one admits violations? When she admitted she did not join M.Phil. course, she did not report back to her duty which is against her condition of leave and contrary to her affidavit which is the charge, what enquiry was to be made? In a case where the facts are almost admitted, the case reveals itself and is apparent on the face of the record, and in spite of opportunity no worthwhile explanation is forthcoming as in the present case, it would not be a fit case to interfere with the termination order.

The Supreme Court in the case of Manoj H. Mishra v. Union of India reported in (2013) 6 SCC 313 has held as under:-

3 4 . We have noted in detail the submissions made by Mr Bhushan, though strictly speaking, it was not necessary in view of the categorical admission made by the appellant before the enquiry officer. Having admitted the charges understandably, the appellant only pleaded for reduction in punishment before the High Court. The learned Single Judge has clearly noticed that the counsel for the appellant has only submitted that the punishment is disproportionate to the gravity of the misconduct admitted by the appellant. The prayer made by the appellant before the Division Bench in the letters patent appeal for amendment of the grounds of appeal to incorporate the challenge to the findings of guilt was rejected.

35. In our opinion, the learned Single Judge and the Division Bench have not committed any error in rejecting the submissions made by the learned counsel for the appellant. We are not inclined to examine the issue that the actions of the appellant would not constitute a misconduct under the Rules. In view of the admissions made by the appellant, no evidence was adduced before the enquiry officer by either of the parties. Once the enquiry officer had declined to accept the conditional admissions made by the appellant, it was open to him to deny the charges. But he chose to make an unequivocal admission, instead of reiterating his earlier denial as recorded in preliminary hearing held on 26-12-1994. The appellant cannot now be permitted to resile from the admission made before the enquiry officer. The plea to reopen the enquiry has been rejected by the appellate as well as the revisional authority. Thereafter, it was not even argued before the learned Single Judge. The learned counsel had confined the submission to the quantum of punishment. In letters patent appeal, the Division Bench declined to reopen the issue. In such circumstances, we are not inclined to exercise our extraordinary jurisdiction under Article 136 for reopening the entire issue at this stage. Such power is reserved to enable this Court to prevent grave miscarriage of justice. It is normally not exercised when the High Court has taken a view that is reasonably possible. The appellant has failed to demonstrate any perversity in the decisions rendered by the Single Judge or the Division Bench of the High Court.

This Court for purposes of verifying as to whether the report given by the enquiry officer is based on some material or not, has considered the defence taken by the petitioner. This Court has come to a conclusion that no supporting document was filed by the petitioner to prove his defence. The strict proof of evidence is not applicable to departmental enquiries. The departmental enquiries are decided on preponderance of probabilities and, accordingly, this Court is of the considered opinion that the enquiry report submitted by the enquiry officer

cannot be said to be based on no evidence or perverse.

So far as the question of sentence is concerned. CRPF is a uniform disciplined force. Remaining on unauthorized absence without any information to the Department cannot be said to be a minor misconduct. So far as the judgment relied upon by the petitioner in the case of Chhel Singh (supra) is concerned, it has no application to the facts of the case for the reason that the enquiry officer as well as disciplinary authority/ appellate Authority/ revisional authority as well as this Court have already come to a conclusion that the unauthorized absence of petitioner of 106 days was intentional and was not because of any bona fide reasons.

Under these circumstances, the punishment of dismissal cannot be said to be disproportionate or shocking to the conscience of this Court.

Accordingly, the petition fails and is hereby dismissed.

(G.S. AHLUWALIA) JUDGE Avi

ABHISHEK CHATURVEDI 2022.09.30 16:15:19 +05'30'