Punjab-Haryana High Court
Ankit Kumar vs Union Of India And Others on 18 March, 2024
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CWP-14650-2018 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
117 CWP-14650-2018
Date of Decision: 18.03.2024
Ankit Kumar ...Petitioner
Versus
Union of India and others ...Respondents
CORAM: HON'BLE MR. JUSTICE JAGMOHAN BANSAL
Present:- Mr. Gursharan Singh, Advocate for the petitioner
Ms. Anita Balyan, Senior Panel Counsel
for Union of India-respondents
***
JAGMOHAN BANSAL, J. (Oral)
1. The petitioner through instant petition under Article 226 of the
Constitution of India is seeking setting aside of order dated 03.04.2017
(Annexure P-9) whereby he was dismissed from service and order dated
30.06.2016 (Annexure P-5) whereby his appeal has been dismissed on the
ground of delay.
2. The petitioner joined I.T.B.P. as Constable (G.D) on 25.09.2013.
He w.e.f. 25.11.2014 proceeded on 30 days earned leave but he did not report
back after the expiry of said period. He over-stayed for 16 days and his over-
stay was regularized as extraordinary leave vide office order dated
09.04.2015. He again absented himself w.e.f. 22.08.2015. The respondent
issued a letter of apprehension to District Magistrate and Superintendent of
Police, Aligarh. A Court of Inquiry was constituted and he vide order dated
02.11.2015 was declared deserter. He, after remaining absent from duty for
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129 days, reported back on 28.12.2015. He again w.e.f. 07.02.2016 opted to
remain absent from duty. The respondent again sent information to District
Magistrate and Superintendent of Police. He was directed to be apprehended
and handed over to the unit. A Court of Inquiry was again constituted and he
was declared deserter. A show cause notice dated 01.06.2016 came to be
issued to him calling upon to show cause as to why punishment should not be
awarded to him. He did not report, consequently, the respondent vide order
dated 30.06.2016 removed him from service.
The petitioner feeling aggrieved from order of dismissal
preferred CWP No.1228 of 2017 before Allahabad High Court which came to
be dismissed vide order dated 12.01.2017 on the ground of alternative
remedy. He in the month of February' 2017 preferred an appeal before
Appellate Authority which vide order dated 03.04.2017 dismissed on the
ground of delay. He again approached Allahabad High Court by way of CWP
No.34956 of 2017 which came to be dismissed vide order dated 08.08.2017
on the ground of maintainability. The petitioner was granted liberty to
approach the Competent Court. This is how the matter has come up before
this Court.
3. Mr. Gursharan Singh, Advocate submits that appellate authority
has mechanically dismissed appeal of the petitioner. He remained absent on
account of illness of his father. The respondents may be asked to take a lenient
view because it is a question of livelihood of the entire family.
4. Ms. Anita Balyan, Advocate submits that conduct of the
petitioner was not condonable. He repeatedly opted to remain absent from
duty. He, at this stage, has cooked a story of illness of his father. He never
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brought this fact before the authorities and in any case, he had no right to
remain absent on the ground of illness of his father. He was part of Armed
Forces where discipline is of paramount consideration.
5. I have heard the arguments of learned counsels for both sides and
perused the record with their able assistance.
6. The petitioner was concededly a part of disciplined force and he
was bound to strictly follow the rules and regulations. Armed Forces cannot
retain any undisciplined member. It is not case of the petitioner that he, for the
first time, committed alleged offence and was subjected to harsh punishment.
Had the alleged offence been his first offence, this Court could consider
principle of proportionality and ask the respondents to reconsider quantum of
punishment, however, as noted above, the petitioner is a habitual offender and
he has been punished more than once. The case of the petitioner is squarely
covered by judgment of Apex Court in Ex Sepoy Madan Prasad v. Union of
India and others, (2023) 9 SCC 100. The relevant extracts of the judgment
read as:
"11. It is apparent from the above table that the appellant
was a habitual offender. There were four red ink entries and
one black ink entry against him before the present incident
cited at Serial No. (f) above. Such gross indiscipline on the part
of the appellant who was a member of the Armed Forces could
not be countenanced. He remained out of line far too often for
seeking condonation of his absence of leave, this time, for a
prolonged period of 108 days which if accepted, would have
sent a wrong signal to others in service. One must be mindful of
the fact that discipline is the implicit hallmark of the Armed
Forces and a non-negotiable condition of service.
XXXX XXXX XXXX XXXX
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18. For the aforesaid reasons, we do not find any infirmity
in the impugned judgment [Madan Prasad v. Union of India,
2015 SCC OnLine AFT 887] passed by the AFT. The appellant
had been taking too many liberties during his service and
despite several punishments awarded to him earlier, ranging
from imposition of fine to rigorous imprisonment, he did not
mend his ways. This was his sixth infraction for the very same
offence. Therefore, he did not deserve any leniency by infliction
of a punishment lesser than that which has been awarded to
him.
19. Accordingly, the present appeal is dismissed as
meritless, while upholding the impugned judgment [Madan
Prasad v. Union of India, 2015 SCC OnLine AFT 887] . The
parties are left to bear their own costs."
7. As the petitioner despite being member of disciplined Armed
Force was habitual offender and did not mend his behaviour, this Court does
not find it appropriate to look into quantum of punishment awarded to him.
8. In the wake of above facts & findings and judgment of the Apex
Court in Madan Prasad (Supra), this Court is of the considered opinion that
the present petition being bereft of merit deserves to be dismissed and
accordingly dismissed.
(JAGMOHAN BANSAL)
JUDGE
18.03.2024
Mohit Kumar
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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