Manipur High Court

Serou P.O. Sugnu & P.S. Serou vs The Union Of India Through The ... on 14 September, 2022

Digitally signed by SHAMURAILATPAM SUSHIL
SHARMA                                                                        Page |1
Date: 2022.09.15 15:30:01 +05'30'

                                     IN THE HIGH COURT OF MANIPUR
                                               AT IMPHAL

                                                WP(C) No. 676 of 2022

                              Shri Romi Kumar, Ex-CT/GD No.951150364, aged

                              about 46 years, S/O Santosh Kumar, a resident of

                              Serou P.O. Sugnu & P.S. Serou, District-Kakching,

                              Manipur-795101.

                                                                        ---Petitioner

                                                    -Versus-

                              1. The Union of India through the Secretary, Ministry

                                   of Home Affairs, Government of India, Shastri

                                   Bhawan, New Delhi-110001.


                              2. The Director General of Police, CRPF, Head

                                   Quarters, CGO Complex, New Delhi: 110003.


                              3. The Dy. Inspector General of Police, G.C. CRPF,

                                   Pinjore (Haryana)-134104.


                              4. The DIGP, GC, CRPF Imphal, Langjing, P.O. &

                                   P.S. Lamphel, Imphal West District, Manipur, Pin-

                                   795113.




                        WP(C) No. 676 of 2022
                                                           Page |2



       5. The Commandant, 23 Bn CRPF, C/O 565 APO.

                                               ---- Respondents

BEFORE HON'BLE MR. JUSTICE M.V. MURALIDARAN

For the Petitioners :: Mr. M. Devananda, Advocate.

For the Respondents :: Mr. Boboy Potsangbam, CGSC

Date of Hearing and reserving Judgment & Order :: 24.08.2022

Date of Judgment & Order :: 14.09.2022

JUDGMENT AND ORDER (CAV)

By consent, the main writ petition itself is taken up

for disposal at the admission stage.

2. Heard Mr. M. Devananda, the learned counsel for

the petitioner and Mr. Boboy Potsangbam, the learned Central

Government Standing Counsel for the respondents.

3. The writ petition has been filed by the petitioner to

issue a writ of certiorarified mandamus to quash the dismissal

order dated 18.1.2005, as it has violated Article 311(2) of the

Constitution of India and also the principles of natural justice in

view of the judgment of the Hon'ble Apex Court dated 2.7.2018

WP(C) No. 676 of 2022 Page |3

passed in Civil Appeal No.2608 of 2012 and to direct the

respondents to reinstate the petitioner back into service.

4. Brief facts which led to the filing of the writ petition

are as follows:-

On 2.9.2003, while petitioner was serving as

CT/GD in E/23 Bn, CRPF located at Baramulla (J&K) applied

15 days casual leave due to the serious illness of his father and

the Officer Commanding also sanctioned the leave on

31.8.2003 and the petitioner also proceeded on leave with

effect from 4.9.2003 to 23.9.2003 with the permission to avail

3 days joining time with effect from 24.9.2003 to 26.9.2003.

Unfortunately, his father expired due to his illness and the

petitioner's wife left him. This leads to serious bouts of drinking

and substance abuse, thereby driving him into depression.

4.1. It is alleged that in the year 2003, the petitioner

was admitted in RIMS, Imphal after he complained of sleep

disturbances and other difficulties association with substance

abuse and drinking. The Doctors diagnosed the petitioner as

suffering from depression with psychotic features. Disregarding

the advice of the Doctors, the petitioner discontinued the

WP(C) No. 676 of 2022 Page |4

treatment and sought help from the quacks, which worsens his

conditions. Again in the year 2010, he continued the treatment

at RIMS, Imphal till later part of 2019.

4.2. While the petitioner was undergoing treatment for

depression with psychotic features ADS since 2003, the

respondents initiated departmental enquiry against him on the

ground of misconduct and absenting from duty continuously

with effect from 27.9.2003 without any permission of the

competent authority. In fact, the departmental proceedings

against the petitioner was proceeded by appointing only the

Enquiry Officer, but the Presenting Officer was not appointed.

The report of the Enquiry Officer was presumably

communicated to the petitioner vide letter dated 29.11.2004 and

consequently, the impugned order dated 18.1.2005, thereby

dismissing the petitioner from service was issued. Challenging

the same, the writ petition has been filed.

5. Assailing the impugned order, Mr. M. Devananda,

the learned counsel for the petitioner submitted that the

petitioner proceeded on leave, however, unfortunately, his

father expired due to illness and his wife left him, which lead to

serious bouts of drinking and substance abuse, thereby driven

WP(C) No. 676 of 2022 Page |5

the petitioner into depression and he was treated as such at

RIMS, Imphal. He would submit that the petitioner was not

overwhelmed by the series of unfortunate events that led to his

severe depression and could not inform the authorities of his

conditions nor could he appear before the disciplinary authority

and take part in the departmental enquiry.

6. The learned counsel further submitted that as

soon as the petitioner recovered from his depression and came

to his full sense, he applied for the dismissal order as well as

the departmental proceedings under RTI Act and the same

were furnished to him on 21.8.2019. He submits that the

dismissal order was never furnished to the petitioner, thereby

depriving and forfeiting the right of appeal against the dismissal

order dated 18.1.2005 and that the petitioner could not appear

before the disciplinary authority during the departmental enquiry

due to the circumstances beyond his control. The learned

counsel added that by not furnishing the dismissal order, the

petitioner was deprived of his right of appeal, thereby violating

the principles of natural justice.

7. The learned counsel urged that during the

departmental enquiry against the petitioner, the Presenting

WP(C) No. 676 of 2022 Page |6

Officer was not appointed and the Enquiry Officer proceeded

the disciplinary proceedings without the Presenting Officer.

Thus, the Enquiry Officer in total violation of the rules and

fundamental principles of natural justice had assumed the role

of the judge as well as the prosecution, by examining the

witnesses and exhibiting documents.

8. Mr. Devananda, the learned counsel for the

petitioner next submitted that the act of the respondent

authorities in not furnishing the dismissal order and not

appointing the Presenting Officer during the departmental

enquiry and proceeded without affording reasonable

opportunity of hearing is in violation of Article 311(2) of the

Constitution of India. More specifically, the impugned order

suffers on the ground of without appointing the Presenting

Officer and for violating the principles of natural justice. In

support, the learned counsel placed reliance upon the decision

of the Hon'ble Apex Court in Civil Appeal No.2608 of 2012,

dated 2.7.2018 [Union of India v. Ra Lakhan Sharma].

9. Per contra, Mr. Boboy Potsangbam, the learned

Central Government Standing Counsel appearing for the

respondents submitted that first of all the writ petition is liable

WP(C) No. 676 of 2022 Page |7

for dismissal on the ground of delay and latches. The

departmental proceedings was proceeded and concluded in the

year 2005 itself for the misconduct committed by the petitioner.

In fact, before the commencement of the enquiry, the petitioner

was informed about the appointment of the Enquiry Officer and

after appointment, the Enquiry Officer had also sent several

notices to the petitioner to appear for enquiry. Since the

petitioner failed to appear before the Enquiry Officer, the

departmental proceedings commenced and concluded ex parte

and after conclusion of the enquiry, a copy of the report was

communicated to him calling for representation. Since the

petitioner failed to submit any explanation and after satisfying

with the report of the Enquiry Officer, the Disciplinary Authority

had issued the impugned order of dismissal on 18.1.2005.

Since the Enquiry Officer found the charges proved and the

Disciplinary Authority having found that the petitioner is not fit

for the Force, rightly issued the impugned dismissal order.

Therefore, there is no infirmity in the impugned order and

accordingly, a prayer is made to dismiss the writ petition.

10. This Court considered the rival submissions and

also perused the materials available on record.

WP(C) No. 676 of 2022 Page |8

11. The challenge to the impugned order was made

mainly on the ground that it has violated the principles of natural

justice and during the departmental enquiry, no Presenting

Officer was appointed and the Enquiry Officer proceeded the

disciplinary proceedings without the Presenting Officer, which

is in total violation of the rules. Thus, not affording a reasonable

opportunity of being heard to the petitioner is in violation of

Article 311(2) of the Constitution of India.

12. As could be seen from the records, the following

are the charges framed against the petitioner:

           "As     per   CRPF   Act    1949     Section    11(1)
           F.No.951150364        CTGD          Romi       Kumar,

misconduct order of the force and he absent from duty continuously with effect from 27/09/03 without any permission of competent authority.

Force No.951150364 CTGD Romi Kumar proceeded on 15 days leave with effect from 4/9/03 to 23/9/03 with permission to avail 8/9, 10/09 (RH), 7/9, 14/9 & 21/09/03 (Sunday) and Joining time (more extra) with effect from 24/09/03 to 26/09/03. He should reports back on his duty on dated 26/9/03 (AN) but without any permission of competent authority he absent.

WP(C) No. 676 of 2022 Page |9

And also he did not forward any kind of application for extension of leave and absent from assignment duty. A board of court of inquiry (COI) is proceeded and declared deserter as per office order no.E-X-4/04-EC-II dated 12/7/04."

13. The petitioner himself admitted that while he was

serving as CT/GD proceeded on 15 days leave with effect from

4.9.2003 to 23.9.2003 with permission to avail 8/9/2003,

10/9/2003 (RH), 7/9/2003, 14/9/2003 and 21/9/2003 (Sunday)

and extra three days for joining with effect from 24/9/2003 to

26/9/2003 and he should report back duty on 26/9/2003 AN.

Therefore, there is no dispute on it. However, without

permission of the competent authority, he absented from duty

from 27.09.2003 and he had also not forwarded any application

for extension of leave. The reasoning for not sending

application for extension of leave stated by the petitioner is

while he was on leave, his father died and his wife left him,

which leads to serious bouts of drinking and substance abuse

thereby driving him into depression and was treated as such at

RIMS, Imphal are all not acceptable. Nothing prevented the

petitioner in sending application for extension of leave narrating

the factual situation obtained at the expiry of the leave to the

WP(C) No. 676 of 2022 P a g e | 10

authority concerned. On the other hand, without any intimation,

he absented from duty.

14. The unfortunate events that led to his severe

depression and could not inform the authorities of his conditions

nor could appear before the disciplinary authority and take part

in the departmental enquiry stated by the petitioner are all

concocted for the purpose of filing the writ petition and there is

no bonafide in it. The story narrated by the petitioner that as

soon as he recovered from his depression and came to his full

senses, he applied for the dismissal order as well as the

departmental proceedings under RTI and after obtaining it he

filed the writ petition is also invented for the purpose of filing the

writ petition.

15. In his petition, the petitioner stated that he was

furnished the dismissal order as well as departmental

proceedings on 21.8.2019 itself. If the petitioner is really

aggrieved by the impugned order of dismissal, he could have

immediately filed petition in the year 2019 itself. However, he

failed to do so and filed the writ petition only in the year 2022,

which itself shows the conduct of the petitioner is not

appreciable. Thus, there is every chance to hold that there is

WP(C) No. 676 of 2022 P a g e | 11

no bonafide in the claim of the petitioner and also the writ

petition suffers from delay and latches. No convincing

explanation forthcoming from the side of the petitioner and the

reason for the delay attributed by the petitioner is not sufficient.

16. It is well settled that the power of the High Court to

issue an appropriate writ under Article 226 of the Constitution

of India is discretionary and the High Court in the exercise of its

discretion does not ordinarily assist the tardy and the indolent

of the acquiescent and the lethargic. If there is an inordinate

delay on the part of the petitioner in filing a writ petition and such

delay is not satisfactorily explained, the High Court may decline

to intervene and grant relief in the exercise of its writ jurisdiction.

Therefore, the unexplained delay or latches on the part of the

petitioner in filing the writ petition is a sufficient cause for this

Court to refrain from exercising its extraordinary discretion.

17. Coming to the pleas of the petitioner that the

impugned dismissal order suffers from violation of the principles

of natural justice and also the plea that during the departmental

enquiry, the Presenting Officer was not appointed are

concerned, on 28.9.2004, the Commandant, 23 Bn, CRPF

appointed Shri R.C.Rathore, Assistant Commandant as Enquiry

WP(C) No. 676 of 2022 P a g e | 12

Officer to inquire into the matter. Before the appointment of the

Enquiry Officer, the Commandant, 23 Bn sent the charges to

the permanent address of the petitioner through registered dak

and upon receipt of the charges, the petitioner has failed to

submit his explanation. On 4.10.2004, a registered dak was

sent to the permanent address of the petitioner about the

appointment of the Enquiry Officer along with the final order of

the COI and other documents. The date of enquiry was also

communicated to the petitioner and since the petitioner failed to

appear before the Enquiry Officer on 19.10.2004 and no kind of

defence assistant received from him, the Enquiry Officer

proceeded the departmental enquiry as ex parte against the

petitioner.

18. On a perusal of the report, this Court finds that

during departmental enquiry, the following evidences were

examined by the Enquriy Officer:

1. Leave application of accused. Leave certificate. OSL. Signal and recall letter for join duty.

2. Complaint of officer commanding E/23 BN letter no.C-II-2/03/E-23 date 11/11/03.

WP(C) No. 676 of 2022 P a g e | 13

3. Warrant of arrest issued by Commandant/CJM, Shree S.S.Bala (Comdt. 23 BN)

4. Office order of Commandant 23 BN No.I-X 4/04/23-EC-II dated 12/7/04 (declared deserter)

19. Upon conclusion of the enquiry, the Enquiry

Officer submitted his report. The finding of the Enquiry Officer

reads thus:

"After depth study of statement of witness, produced evidence and situation the following point are found:

1. F.No.951150364 CT/GD Romi Kumar was present at E/32 BN Baramula (J&K) before availing 15 days C/L on 02/09/03.

2. F.N.951150364 CT/GD Romi Kumar of E/32 BN applied application for 15 days C/L due to father serious illness.

3. Officer commanding E/32 BN sanctioned 15 days leave on date 3/08/03. Then proceeded on leave with effect form 04/09/03 to 23/09/03 with permission to avail 8/09 & 10/09 (R.H) 7/09, 14/09 & 21/09/03 (Sun)

WP(C) No. 676 of 2022 P a g e | 14

and 3 days joining time (more extra) dated 24/09/03 to 26/09/03. He should report T/C Jammu on date 26/9/03.

4. F.N.951150364 CT/GD Romi Kumar absent from duty since 26/-09/03 and after expiry of leave without any information and without any order of competent authority. He was absent continuously from #/23 BN and OSL.

5. F.N.951150364 CT/GD Romi Kumar produced no any document against re-call letter for duty sent to permanent address of accused through Register post by Office commanding E/32 BN CRPF.

6. During the departmental Inquiry letter send through Register post at permanent home Add. of No.F.N.951150364 CT/GD Romi Kumar for present self or sent supporting documents on fixed date of hearing but he neither report nor sent any information. Therefore, inquiry officer completed the exparty departmental Inquiry.

7. Therefore, after a depth study of present evidence, witness and

WP(C) No. 676 of 2022 P a g e | 15

produced document and as per provision-1 vide office order of commandant 23 BN CRPF.No.VIII-

7/2004-23-EC-II date 13/09/04. That the accuse part-1 (as per CRPF Act-

1949) section.II (I) F.N.951150364 CT/GD Romi Kumar misconduct order of the force and absent from duty continuously with effect from 26.09.03 without any permission of competent authority). Without any doubt it's fully proved."

20. It is seen that report of the Enquiry Officer was

communicated to the petitioner calling for his

explanation/representation through registered post. However,

the petitioner has not submitted any explanation and the

disciplinary authority proceeded to pass the impugned order.

Paragraphs 7 to 10 of the impugned order are relevant and the

translated version of paragraphs 7 to 10 of the impugned order

read thus:

7. Report of enquiry officer is depthly study. According to report & enquiry office the charges from the accused is fully proved.

8. After a depth study of report of enquiry officer it is find out that the individual is not

WP(C) No. 676 of 2022 P a g e | 16

fit for force, therefore as per CRPF act-

                  1959 section and CRPF rules 1955 rule
                  no     27    the     offence   is    proved     so
                  F.N.951150364          CT/GD        Romi   Kumar

sentence as dismiss from service with effect from 05/01/05.

9. The 15 days C/L sanctioned to F.N.951150364 CT/GD Romi Kumar of E/23, with effect from 04/9/03 to 26/09/03 is cancelled. The duration of 04/09/03 to 15/01/205 is converted into daize now and any facility for this period is not liable and also he is struck out from this battalion WEF 15/01/05.

10. If any medal award are given to F.N.951150364 CT/GD Romi Kumar will also ceased and warrant of arrest issued by this office vide W-11-3/03-23 EC-2 date 3/12/3 also cancelled.

21. On a thorough reading of the report of the Enquiry

Officer, this Court is of the view that there is no procedural

violation of conducting and concluding the departmental enquiry

against the petitioner. On the other hand, despite giving

opportunity to the petitioner to defend the enquiry, he has not

responded and availed of the opportunity. Therefore, he cannot

WP(C) No. 676 of 2022 P a g e | 17

now come and state that he has not been afforded sufficient

opportunity of hearing. As stated supra, he overstayed from

attending the office for nearly 17 years. Such a long absence

that too without any communication/information cannot be

taken lightly and it is a serious misconduct.

22. The petitioner being a member of Central Reserve

Police Force could not overstay without permission. Absence

from duty without leave under Central Reserve Police Force is

a gravest misconduct and that the disciplinary authority was

right in awarding punishment of dismissal from service. Thus,

there is no disproportionate in awarding the punishment.

23. In State of Meghalaya and others v. Mecken

Singh N.Marak, reported in (2008) 7 SCC 580, the Hon'ble

Supreme Court held:

"14. In the matter of imposition of sentence, the scope for interference is very limited and restricted to exceptional cases. The jurisdiction of the High Court, to interfere with the quantum of punishment is limited and cannot be exercised without sufficient reasons. The High Court, although has jurisdiction in appropriate case, to consider the question in regard to the quantum of

WP(C) No. 676 of 2022 P a g e | 18

punishment, but it has a limited role to play. It is now well settled that the High Courts, in exercise of powers under Article 226, do not interfere with the quantum of punishment unless there exist sufficient reasons therefor. The punishment imposed by the disciplinary authority or the appellate authority unless shocking to the conscience of the court, cannot be subjected to judicial review. In the impugned order of the High Court no reasons whatsoever have been indicated as to why the punishment was considered disproportionate. Failure to give reasons amounts to denial of justice. The mere statement that it is disproportionate would not suffice."

24. In Union of India v. Dwarka Prasad Tiwari,

reported in (2006) 10 SCC 388, the Hon'ble Supreme Court

held that unless the punishment imposed by the disciplinary

authority or the appellant authority shocks the conscience of the

Court/Tribunal, there is no scope for interference. When a

member of the disciplined force deviates to such an extent from

the discipline and behaves in an untoward manner which is not

conceived of, it is difficult to hold that the punishment of

dismissal as has been imposed is disproportionate and

shocking to the judicial conscience.

WP(C) No. 676 of 2022 P a g e | 19

25. As stated supra, the petitioner being a member of