Madras High Court
A.Suresh vs The Assistant Director (Pers-Ii) on 5 October, 2021
W.P.(MD)No.6054 of 2016
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 05.10.2021
CORAM
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
W.P.(MD)No.6054 of 2016
A.Suresh ... Petitioner
vs.
1.The Assistant Director (Pers-II),
Directorate General,
Sashastra Seema Bal,
Block-V (East), R.K.Puram,
New Delhi – 110 066.
2.The Deputy Inspector General,
SHQ, Sashastra Seema Bal,
Gorakhpur, Uttar Pradesh.
3.The Commandant,
9th Battalion,
Sashastra Seema Bal,
Balrampur, Uttar Pradesh. ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of
India for issuance of Writ of Certiorarified Mandamus to call for records
relating to the impugned proceedings issued by the second respondent
herein in No.EB-PF (Suresh, 9th Bn)SHQ/GKP/16/1292-95, dated
02.01.2016, to quash the same and to further direct the second
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W.P.(MD)No.6054 of 2016
respondent herein to pass orders on the petitioner's appeal, dated
15.12.2015, on merits after affording opportunity of hearing to the
petitioner.
For Petitioner : Mr.T.S.Mohamed Mohidheen
For Respondents : Mr.S.Jeyasingh
*****
ORDER
This Writ Petition is filed for issuance of a Writ of Certiorarified
Mandamus to quash the impugned order passed by the second
respondent, dated 02.01.2016, and consequently, to direct the second
respondent to pass orders on the petitioner's appeal, dated 15.12.2015 on
merits after affording opportunity of hearing to the petitioner.
2.Heard Mr.T.S.Mohamed Mohidheen, learned Counsel appearing
for the petitioner and Mr.S.Jeyasingh, learned Counsel appearing for the
respondents.
3.The petitioner was appointed as a Constable under the third
respondent on 07.05.2012. It is the case of the petitioner that he applied
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W.P.(MD)No.6054 of 2016
for leave from 03.03.2014 to 01.04.2014 to see his parents at Tenkasi. It
is stated that during the leave period, the petitioner came to know that he
was falsely implicated in a case in Crime No.75 of 2012. On account of
the situation that he had to appear before the Court till the trial was
concluded in the criminal case in C.C.No.260 of 2014, it is stated that the
petitioner was not able to report duty on the expiry of leave period.
4.In the meanwhile, the third respondent initiated disciplinary
proceeding against the petitioner for his unauthorized absence. After
following the procedure, the petitioner was dismissed from service by an
order, dated 29.08.2014. The petitioner approached the third respondent
to cancel the order of dismissal. In the meanwhile, the petitioner also
filed an appeal before the first respondent on 15.12.2015 and the first
respondent dismissed the appeal by an order, dated 21.12.2015. The
petitioner preferred further appeal before the second respondent, who in
turn, rejected the appeal on the ground that the petitioner has not
submitted the appeal within a period of ninety days. Challenging the
orders, the above Writ Petition is filed.
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W.P.(MD)No.6054 of 2016
5.Referring to the grounds raised in the affidavit, the learned
Counsel appearing for the petitioner submitted that the second
respondent erred in dismissing the petitioner's appeal on the ground of
delay. Since the petitioner is in service for quite sometime, it is
submitted that the second respondent ought to have considered the
reasons given by the petitioner for the delay. Sum and substance, the
main contention of the petitioner in this case is about the irregularity in
the order of second respondent, who dismissed the appeal on the ground
of limitation, but not on merits.
6.This Court is unable to entertain the Writ Petition even on the
admitted facts. The petitioner does not dispute that the petitioner
preferred the appeal beyond the period of limitation. When an appeal is
presented with a delay, the petitioner is expected to assign reasons for the
delay. In the absence of any such attempt, the respondents have no other
option, but to dismiss the appeal. Be that as it may, this Court, having
regard to the merits of the case and the nature of misconduct alleged
against the petitioner, is unable to accept the arguments of the learned
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W.P.(MD)No.6054 of 2016
Counsel for the petitioner. The petitioner was involved in a criminal case
in C.C.No.260 of 2014. The petitioner was shown as the sixth accused in
the case, which was registered for the offences punishable under Sections
147, 341, 294B, 323 and 506(2) IPC.
7.It is also admitted that the criminal case was ended in acquittal
on the ground that the prosecution has failed to prove the charges beyond
reasonable doubt. The judgment in the criminal case was delivered on
31.08.2015. However, the charges against the petitioner are specific that
he failed to resume duty after expiry of the sanctioned leave and
continued to be absent on his own without intimation or permission from
the Competent Authority. After due enquiry, the charges against the
petitioner was held proved by the Enquiry Officer and based on the
enquiry report, the Disciplinary Authority passed an order of punishment
by dismissing the petitioner from service with immediate effect. The
petitioner has not produced before this Court even the relevant
documents, which are within his reach.
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W.P.(MD)No.6054 of 2016
8.A detailed counter affidavit has been filed by the respondents.
From the statements found in the counter affidavit, it is seen that the
petitioner did not report duty after availing leave for a long term. The
petitioner did not respond to several notices issued to him to remind him
that he was supposed to report duty. The continued absence made the
respondents to initiate disciplinary proceedings and the petitioner did not
come forward to deny the charges. Ultimately, the petitioner was
removed from service and his removal is also in public interest.
9.This Court is unable to find any violation of principles of natural
justice or want of jurisdiction. Though judicial review is permissible, in
case, there are legal infirmities in the conclusion reached by the
respondents, the jurisdiction of this Court and the scope of judicial
review cannot be enlarged to act as Court of appeal when, fairness in
disciplinary proceedings is established. The disciplinary proceeding
against the petitioner was initiated as per the provisions of SSB Act,
2007, and Rules, 2009. The second respondent rejected the petitioner's
appeal stating that no grounds are made out. The petitioner over stayed
wilfully from 02.04.2014 without any intimation or permission from the
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W.P.(MD)No.6054 of 2016
Competent Authority. The conduct of the petitioner cannot be condoned
merely on sympathetical view. The petitioner, being member of Armed
Forces, is expected to perform his duties in compliance of the Service
Rules. The petitioner by his misconduct exposed himself that he is not fit
to be in service, as he has no regret for committing such a serious
misconduct affecting the efficiency of the department.
10.In the factual background, this Court is unable to find any
merits in this case in favour of the petitioner to interfere with the order of
punishment. In the appeal memorandum, except stating that a false
criminal case was lodged involving the petitioner, which resulted in his
overstay, absolutely there is no factual basis to defend the charges.
While concluding the disciplinary proceeding awarding punishment, the
nature of irregularity or misconduct committed by the delinquent should
be considered with reference to the post or responsibility he took as a
member of Armed Forces. Merely because, the criminal Court has
acquitted the petitioner from the criminal case, it does not mean that the
charges are not proved. The charges are not relating to the criminal case,
but one for making the petitioner accountable/responsible for his
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W.P.(MD)No.6054 of 2016
unauthorized absence without an explanation.
11.In the circumstances pointed out and the factual background
explained in this order, this Court finds no merit in the Writ Petition.
Hence, the Writ Petition is dismissed. No costs.
Index :Yes / No 05.10.2021
Internet :Yes
tmg/cmr
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W.P.(MD)No.6054 of 2016
S.S.SUNDAR, J.
tmg/cmr
W.P.(MD)No.6054 of 2016
05.10.2021
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