Santosh Kumar vs The Union Of India
2023 Latest Caselaw 4330 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                     Letters Patent Appeal No.1307 of 2019
                                       In
                 Civil Writ Jurisdiction Case No.12697 of 2016
     ======================================================

Santosh Kumar Son of late Kamaljeet Prasad, Resident of Village- Gaighat, P.S. Simri, District Buxar.

... ... Appellant/s Versus

1. The Union of India through the Director General of Police, Central Reserve Police Force, New Delhi.

2. The Inspector General of Police, CRPF, Ranchi, Jharkhand.

3. The Deputy Inspector General of Police, CRPF, Dhurwa, Ranchi,Jharkhand

4. The Commandant, Battalion, C.R.P.F., Udaipur (South Tripura)

5. The Commandant, 114 Battalion, C.R.P.F. Leidren Camp Jalandhar, Punjab.

... ... Respondent/s ====================================================== Appearance :

     For the Appellant/s     :     Mr. Bhola Kumar, Advocate
     For the Respondent/s    :     Mr. S.D. Sanjay (ADSG)
     For the UOI             :     Mr. Kumar Priya Ranjan, CGC
                                   Mr. Girish Nandan Abhishek, Advocate
                                   Ms. Nirmala Singh, Advocate

====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE PARTHA SARTHY ORAL JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE)

Date : 06-09-2023

The impugned judgment in appeal, rejected the

prayer of the petitioner to interfere with the punishment of

dismissal on the ground of proportionality; rejecting his prayer

that the harsh penalty of dismissal was not warranted for

unauthorized absence of 50 days. The petitioner is said to have Patna High Court L.P.A No.1307 of 2019 dt.06-09-2023

proceeded on sanctioned leave for the period 13.12.2004 to

10.02.2005 and alleged to have not reported for duty on

11.02.2005. Proceedings were initiated, ex-parte and an order

of dismissal was passed, which went through a series of

litigations, eventually culminating, again, in an order of

dismissal after due enquiry conducted. The challenge made on

various grounds was rejected by learned Single Judge of this

Court, but the appellate authority was directed to consider

mitigating circumstances, if any, which could result in a lesser

punishment. The Appellate Authority having rejected the

claim and affirmed the order of dismissal, the petitioner is

once again before the writ court.

2. The learned Single Judge found that the challenge

against the disciplinary proceedings and the order of dismissal

was earlier concluded in C.W.J.C. No. 238 of 2012 and there

could be no fresh consideration made. The petitioner was

relegated to the appellate authority only for consideration of a

lesser punishment, which prayer has been rejected by the

appellate authority. It was found based on binding precedents

of both this Court and the Hon'ble Supreme Court that unless

the punishment imposed, shocks the conscience of the Court,

there cannot be interference caused under Article 226 of the Patna High Court L.P.A No.1307 of 2019 dt.06-09-2023

Constitution of India, even on the principles of proportionality.

The disciplinary authority's prerogative to impose punishment

and the exceptional circumstances in which an interference

could be caused, was highlighted to dismiss the writ petition;

against which the instant appeal is filed by the petitioner, the

dismissed employee.

3. Learned counsel for the petitioner invited this

Court's attention to Annexure-2 order passed at the first

instance by a learned Single Judge of this Court. It was

pointed out that the extenuating circumstances in which the

petitioner could not join duty has been explained therein. The

petitioner while challenging the advisability of imposing a

punishment of dismissal for unauthorized absence of a mere

50 days, also takes the aid of the statute, to urge the illegality

involved. Reliance is specifically placed on Section 10 of the

Central Reserve Police Force Act, 1949, wherein less, heinous

offences are listed out. Clause (m) of Section 10 speaks of

absenting without leave or overstaying the leave granted

without sufficient cause. It was pointed out that the offence of

overstaying the leave is categorized as a less heinous offence,

which is punishable with imprisonment for a term and fine or

even both. Rule 31 of the Central Reserve Police Force Rules, Patna High Court L.P.A No.1307 of 2019 dt.06-09-2023

1955, is also referred to, which permits a proceeding under

Section 10, only if the absentee does not return on his own

free will, or is not apprehended within 60 days of the

commencement of the desertion. In the case of the petitioner,

the overstayal was only of 50 days, thus, prohibiting a

proceeding under Section 10, and in that context, punishment

of dismissal is gross, illegal and arbitrary. The learned counsel

would also rely on Union of India v. Giriraj Sharma reported

in AIR 1994 SC 215, with reference to the very same service

wherein the order of dismissal for overstaying the period of

leave, was held to be un-called for.

4. Learned Standing Counsel for the C.R.P.F.

argues that the only consideration could be as to whether there

was any mitigating factor in the case of the appellant, to award

a lesser punishment. The story set up by the appellant of

having joined the transit camp and then travelling to

Guwuhati, where he was left to fend for himself in the railway

station are all cooked up stories not supported by any

documents. This is the third round of litigation and the

petitioner cannot reagitate the challenge against the order of

the disciplinary authority, per se finding him guilty of the

offence of unauthorized absence, since the same stands Patna High Court L.P.A No.1307 of 2019 dt.06-09-2023

concluded by the judgment in C.W.J.C. No. 238 of 2012. The

respondents would rely on Union of India v. Ex-Constable

Ram Karan 2022 (1) SCC 373 which upheld the primacy of

the discretion vested with the disciplinary authority to impose

punishment, commensurate with the nature of the offence

proved; which was also held to be not possible of usurpation

by a Court.

5. The period of leave and overstay as alleged by

the respondent employer have already been stated. We would

first look at the litigations initiated by the appellant.

Annexure-2 is the judgment in C.W.J.C. No. 7369 of 2005,

which challenged the order of dismissal after an ex-parte

proceeding. The proceeding was initiated for failure of the

appellant to join the battalion on 11.02.2005. A reference was

made to the supplementary counter affidavit filed by the

petitioner which stated that having availed 60 days earned

leave till 10.02.2005, he joined the Transit Camp at Jammu on

11.02.2005 and due to heavy snowfall on the Jammu-Srinagar

Highway, he was detained in the transit camp on 14.02.2005.

It was the statement of the petitioner that thereafter, he was

allowed 15 days earned leave from 15.02.2005 to 01.03.2005

so as to enable the weather conditions to improve. Again, he Patna High Court L.P.A No.1307 of 2019 dt.06-09-2023

boarded Archana Express to report at the Transit Camp, Jammu

on 01.03.2005 but due to obstruction on the railway track

beyond Ambala, he reached Jammu on 03.03.2005, at which

instance, he was again detained at Jammu till 10.03.2005, when

again he was allowed 20 days earned leave with effect from

11.03.2005 to 30.03.2005. On 31.03.2005, he is said to have

reported at Transit Camp, Jammu, and proceeded with his

battalion to Tura in the State of Meghalaya via Guwuhati and

on the way at Guwuhati, he was left to fend for himself at the

railway station by the officer-in-charge, who refused to allow

him to board the vehicle going to Tura. He is said to have

stayed in the platform on 04.03.2005; purchasing a platform

ticket, after which he proceeded back to Patna. He also made

representations on 15.04.2005 and 25.04.2005. The learned

Single Judge impressed by the aforesaid submissions, as also

noticing that it was an ex-parte proceeding, directed the

petitioner's reinstatement and payment of the entire arrears of

salary for the period between 11.02.2005 till the date of his

dismissal. A contempt petition was filed in which compliance

was recorded, of the petitioner having joined pursuant to the

office order dated 22.01.2009. On 05.05.2009, he was also

reinstated with effect from 15.12.2008.

Patna High Court L.P.A No.1307 of 2019 dt.06-09-2023

6. The disciplinary proceedings were initiated and

concluded after which the order of dismissal was again passed,

which was challenged in C.W.J.C. No. 238 of 2012.

Annexure-4 judgment indicates that the learned Single Judge

was not impressed by the contentions raised based on Section

11(1) of the Act of 1949 and the decision in Giriraj Sharma

(supra). The learned Single Judge found that under Section 9

of the Act, major punishments are prescribed while minor

punishments are prescribed under Section 11. The term

punishment that can be imposed under Section 11 of the Act

was found to be possible of imposition, in lieu of or in

addition to the order of suspension or dismissal. The petitioner

was found to have overstayed his leave by 50 days but, again,

the submission of the petitioner that he had a reasonable

explanation was reckoned to direct the appellate authority to

consider, whether the petitioner has made out a case for lesser

punishment, in which event, it was also directed that a minor

punishment could be imposed. The finding on the offence of

overstaying of leave hence, stands concluded by the aforesaid

judgment.

7. Now we come to the reference made to the

statutory provision and precedents. Section 10 describes less Patna High Court L.P.A No.1307 of 2019 dt.06-09-2023

heinous offences for which imprisonment for a term not

extending to 1 year or fine, or both, could be imposed, which

fine can only extend to 3 months pay. As was rightly pointed

out by the appellant, Rule 31 restricts any such proceeding to

be initiated against the appellant since the overstay of leave

was less than 60 days. This is not to say that the employer

would be disabled from imposing any punishment, if the

overstay is below 60 days.

8. The scheme of the penal provisions as

discussed by the learned Single Judge in C.W.J.C. No. 238 of

2012 appeals to us. Section 9 to 14 are under the sub-headings

offences and punishments; Section 9 listing out the heinous

offences while Section 10 lists out less heinous offence with

prescription of the maximum punishment for both, which is in

the nature of imprisonment, a fine or both. Section 11

specifically speaks of minor punishments, which could be

imposed by the appropriate authority, which can be in lieu of

or in addition to suspension or dismissal. Hence, the

punishment of suspension or dismissal does not come under

the said chapter and it would be covered by the rules of

classification, conduct & appeal regulating departmental

proceedings, as brought out by the Central Government. The Patna High Court L.P.A No.1307 of 2019 dt.06-09-2023

corollary to what is stated in Section 11, would be that the

punishment of suspension or dismissal does not fall under the

punishment imposed for offences committed and this could be

in addition to the punishments imposed under Section 9 to 11;

which punishment under Section 9 to 11 could also be in lieu

of suspension or dismissal.

9. We also look at the decisions relied upon by

both states. Giriraj Sharma (supra) was a case in which the

employee overstayed period of leave by 12 days and as has

been found by the Hon'ble Supreme Court, it was on account

of unexpected circumstances. Reading of the decision would

not indicate as to the nature of the unexpected circumstances

but, the learned Judges were satisfied with the explanation,

and it was in such circumstances that the order of the High

Court interfering with the punishment of dismissal was

affirmed. Ex-constable Ram Karan (supra), it has to be

emphasized was with respect to a very serious offence of the

delinquent employee having misbehaved with the

complainant; a doctor, threatened and abused him and also

raised false allegations of the complainant having sexually

abused the employee's wife. We are, however, more concerned

with the principles laid down therein, of a punishment Patna High Court L.P.A No.1307 of 2019 dt.06-09-2023

imposed by the disciplinary authority, not being interfered

with, unless it is found shocking to the conscience of the

Court. It was held that, even if such a contingency arises, it

was not for the Court to impose another punishment. The

matter should be relegated to the disciplinary authority to

reconsider the quantum of penalty. Immediately, we notice

that this was once done in writ proceedings. Only in rare and

exceptional cases, to shorten litigation, the Court's should

substitute its own view as to the quantum of punishment

which should also be supported with cogent reasons. Section

11 of the Act of 1949 was specifically referred to and it was

concluded that the authorities are empowered to award

punishment of suspension or dismissal to a member of the

force, who is found guilty of any of the offences listed out in

the Act and in addition to or in lieu of such penalty,

punishments mentioned in clause (a) to (e) may also be

awarded.

10. It is with these principles in mind, that we

have to consider the issue raised in the appeal, as argued by

the learned counsel for the respondents. For consideration of a

lesser punishment, there can be no adjudication of the

disciplinary proceedings initiated and concluded and the Patna High Court L.P.A No.1307 of 2019 dt.06-09-2023

finding of guilt of the misconduct alleged. The Appellate

Authority was directed to consider the question of mitigating

circumstances which consideration is found in Annexure-6.

The contention before the Appellate Authority was also as

stated hereinabove, from Annexure-2 judgment, in the first of

the writ petitions filed by the appellant herein. The

disciplinary authority has found that there is absolutely no

documentary evidence regarding the alleged reporting for duty

at Jammu and detention at the transit camp on 11.02.2005,

03.03.2005 and 31.03.2005. It was observed that the transit

camps are established at major rail heads to facilitate a safe

and secure journey for the personnel of the force. When

reporting at the transit camp, it is the duty of the individual

concerned to deposit the leave certificate with the designated

authority at the transit camp to enable the authority to send

him to his unit through the first available convoy, after duly

recording the date and time of his arrival and departure from

transit camp. If the appellant had reported in the transit camp

and detained therein, definitely there would have been entries

recorded in his leave certificate, which he has not submitted

along with the appeal. Further, the alleged leave granted to

him; on the ground of inclement climate, from the transit camp Patna High Court L.P.A No.1307 of 2019 dt.06-09-2023

has also not been proved with documentary evidence. This

makes the story set up by the appellant to be a cooked-up

story, as rightly argued by the learned counsel for the

respondents.

11. The Appellate Authority, not only found the

overstay of leave from 11.02.2005, but also found that the

appellant had never reported for duty on 31.03.2005. It was

also found that after reinstatement and disbursal of arrears of

salary, the appellant again deserted, from the unit headquarters

on 28.12.2008. When, the de novo disciplinary enquiry was

under progress, again the appellant deserted the unit on

04.07.2010 and he was summoned to appear on 05.07.2010 by

the enquiry officer.

12. We find absolutely no reason to interfere with

the order of the disciplinary authority as confirmed by the

appellate authority. The appellant's explanation which

impressed this Court at the first instance has been proved to be

a cooked up story. If the appellant's explanation was correct,

he would have had, with him, the original leave certificate

with the endorsement of the transit camp regarding his

reporting for duty and the further sanction of leave asserted by

him, would also be available; none of which was produced by Patna High Court L.P.A No.1307 of 2019 dt.06-09-2023

the appellant. We cannot also ignore this subsequent conduct

of the appellant after reinstatement in service, when a proper

disciplinary enquiry was proceeded against him.

13. We find absolutely no reason to entertain the

appeal and dismiss the same affirming the judgment of the

learned Single Judge.

(K. Vinod Chandran, CJ)

( Partha Sarthy, J) sharun/-

AFR/NAFR
CAV DATE
Uploading Date            12.09.2023
Transmission Date