Telangana High Court

D. Balaram vs The Enquiry Officercumassistant ... on 26 February, 2024

Author: Juvvadi Sridevi

Bench: Juvvadi Sridevi

        THE HON'BLE SMT. JUSTICE JUVVADI SRIDEVI

                  WRIT PETITION No.24020 of 2007

ORDER:

Petitioner has questioned the order, dated 31.07.2007, by which, he

was compulsorily retired from service.

2. Heard both sides and perused the record.

3. Petitioner is working as a Constable in the Central Industrial

Security Force (CISF). A complaint was lodged by his wife

Smt.Padmamavathi, basing on which, a crime was registered against him

by the Police of Malkajgiri Police Station for the offences under Sections

494 and 498-A of IPC and Sections 4 and 5 of Dowry Prohibition Act.

The petitioner was arrested in connection with the said crime and was later

released on bail. Thereafter, the wife of petitioner has made a

representation to the 2nd respondent on the same set of allegations,

pursuant to which, the 2nd respondent had issued memorandum of charges

on 20.06.2006 and placed him under suspension. Questioning the same,

the petitioner has filed W.P.No.18965 of 2006, wherein, interim

suspension was granted on 18.09.2006. When the said writ petition came

up for hearing, the respondents have sought permission for withdrawal of 2 JS, J

the writ petition as well as the order of suspension of petitioner with liberty

to initiate further disciplinary proceedings. Accordingly, the said writ

petition was dismissed as infructuous by order, dated 26.02.2007.

Thereafter another charge memo, dated 17.03.2007 was issued by adding

three more charges with regard to unauthorized absence of the petitioner

and an inquiry was ordered. The Inquiry Officer i.e. the 1st respondent has

issued notice intimating the dates of inquiry, however, the petitioner could

not attend the same due to his ill-health. He forwarded the prescriptions as

well as the medical certificates to the respondents in proof of his illness.

Inspite of the same, the inquiry was concluded ex parte and the inquiry

report was submitted, basing on which, the major punishment of

compulsory retirement from service is imposed on him. It is the case of

petitioner that the allegations made against him in the criminal proceedings

have nothing to do with regard to discharge of his official duties as a CISF

Constable and inspite of the same, the major punishment is imposed on

him, that too, basing on the ex parte inquiry. Hence, he prayed to set aside

the impugned order of punishment.

4. Respondents have filed counter affidavit stating that the wife of the

petitioner, namely, Smt. D.Padmavathi has submitted a complaint, dated

25.04.2006 alleging that her husband i.e. the petitioner herein had married 3 JS, J

another woman during the subsistence of their marriage and started

harassing her. Basing on the same, a preliminary inquiry was conducted

and the petitioner was granted three days of earned leave from 27.04.2006

to 29.04.2006, which was later extended up to 15.05.2006 on the request

made by the petitioner. While so, a fax message was received on

19.05.2006 from the Inspector of Police, Malkajgiri stating that the

petitioner and his parents were arrested on 31.05.2006 in connection with

the crime registered on the complaint made by his wife and they were

remanded to judicial custody and later the petitioner was released on bail

on 20.05.2006.

5. It is further stated that basing on the preliminary inquiry report, a

charge memorandum, dated 20.06.2006 was issued to the effect that the

petitioner had married for the second time while his first wife is still alive

and not legally divorced, which is prejudicial to the disciplined force and is

violative of Rule 18(b) of CISF Rules, 2003. Questioning the same, the

petitioner has filed W.P.No.18965 of 2006, wherein, interim suspension

was granted. The said writ petition was dismissed as withdrawn without

prejudice to initiation of further disciplinary proceedings. Thereafter,

departmental inquiry was conducted under Rule 6 of CISF Rules on the

five charges, the first two of which relate to unauthorized absence, the 4 JS, J

third one relates to awarding of penalties on six occasions in his past

service, the fourth one relates to his failure to inform the competent

authority about his arrest by the Police and the fifth one relates to his

refusal to receive the official communication from the department sent

through registered post.

6. It is further stated in the counter affidavit that the petitioner did not

participate in the inquiry proceedings though the Inquiry Officer had

summoned him from time to time, therefore, the proceedings were

concluded ex parte and an inquiry report, dated 10.06.2007 was served

upon the petitioner on 07.07.2007 calling upon him to submit his

explanation on the said report within 15 days. By application, dated

16.07.2007, the petitioner had informed that he was mentally and

physically sick and was unable to perform duty as per the advise of the

Singareni Collieries Doctors and that he would join duty and also

participate in inquiry whenever the Doctors declare him fit for the same

and that if the authority cannot wait till such time, his resignation from

service may be accepted. In response, the petitioner was informed vide

letter, dated 19.07.2007 that such conditional resignation from service will

not be accepted and if he wants to submit resignation from service, he must

do so by visiting the office in person within seven days from the date of 5 JS, J

receipt of such communication. The receipt of said letter was

acknowledged by the petitioner on 20.07.2007. Since the petitioner neither

sent any reply to the said letter nor he turned up in person, a final order,

dated 31.07.2007 was issued awarding him the penalty of compulsory

retirement from service with full pensionary and gratuity benefits. The

copy of this final order was sent to the residential address of the petitioner,

where, he was not present and his sister who was present there, had refused

to receive it. Therefore, again it was sent through registered post vide

letter, dated 06.08.2007, which was returned with an endorsement that the

addressee was absent since seven days. Thereafter, the said final order was

sent to the residential address of petitioner with the help of local Police,

upon which, it was acknowledged by Sri D.Rajamani, i.e. the father of

petitioner on 30.08.2007.

7. It is further stated in the counter affidavit that in Para No.10 of the

final order, the petitioner was asked to file appeal, if he wishes, against the

said order, but the petitioner, without availing the said remedy of filing

appeal, has filed this writ petition. It is stated that the penalty of

compulsory retirement from service with full pensionary and gratuity

benefits has been imposed on the petitioner on humanitarian grounds,

keeping in view the service rendered by him to the department and also 6 JS, J

keeping in view the financial constraints that may arise on his dependants,

or otherwise, he deserves to be awarded more harsh punishment under the

Rules. It is stated that the petitioner has not submitted any documentary

proof in support of his ill-health and the treatment taken by him, which

clearly shows that he was not interested to continue in the disciplinary

force like CISF and hence, intentionally avoided the departmental inquiry

as well as instructions from the department. Accordingly, they prayed for

dismissal of the writ petition as the punishment imposed is proportionate to

the charges levelled against the petitioner.

8. The first charge against the petitioner is that when he was granted

Earned Leave, he overstayed for a period of 170 days after expiry of such

leave without any prior permission from competent authority. Similarly,

the second charge is also with regard to his overstay for a period of 42 days

without any permission. The third charge relates to the penalties awarded

on six earlier occasions and there is no specific fresh allegation in that. In

the fourth charge, it is stated that the petitioner has failed to inform to the

competent authority about his arrest by the Malkajgiri Police in connection

with a criminal case registered on the complaint made by his wife. The

final and fifth charge is that he refused to accept the official

communication sent from the office.

7 JS, J

9. With regard to his overstay after expiry of leave, the defence of the

petitioner is that he could not attend the office due to his ill-health and that

the Doctors had advised him to take rest. Same reason is also assigned for

his absent before the Inquiry Officer. With regard to his ill-health, the

petitioner has filed copies of medical certificates for the treatment taken

during various spells. A close scrutiny of the medical certificates discloses

different ailments during different spells. It is not the case as if the

petitioner has been suffering with a single ailment for a longer period of

time so that he cannot attend the office or appear before the Inquiry

Officer. Since he approached the Doctors for different ailments during

different spells with a gap in between, nothing prevented him from

attending the office and take leave for another ailment as and when

required. But, the petitioner has continuously overstayed for a period of

170 days i.e. from 16.05.2006 to 01.11.2007, however, it is to be seen that

the petitioner did not file any medical certificates for treatment, if any,

from 16.05.2006. The earliest spell of the treatment started from

20.03.2007 to 22.03.2007. Thus, it is not known as to why the petitioner

could not report for duty from 16.05.2006 onwards. This shows, the

petitioner has absconded from 16.05.2006 without valid reason and

without intimating the superiors, which amounts to misconduct.

8 JS, J

10. Further, the petitioner has not filed any medical evidence before

them and he has also failed to establish that he had communicated to the

respondents with regard to his illness along with medical certificates. The

petitioner has submitted application only on 16.07.2007 to the disciplinary

authority stating that he was mentally and physically sick, and as such,

could not resume duty and would attend to the inquiry as per the advise of

the Doctors of Singareni Collieries Company Limited, and further, if the

authority cannot wait till such time, his resignation from service may be

accepted. This callous attitude of petitioner shows that he was not

interested to serve in CISF. On one hand, he failed to produce medical

record before the authorities, and on the other hand, he, in a way, gives an

ultimatum to the disciplinary authority that if they cannot wait till he joins

duty, his resignation from service may be accepted. This clearly indicates

the manner in which the petitioner has treated his employment. Even after

such conduct of petitioner, the respondents have communicated to him that

he should appear in person and resign to the job. Inspite of the same, the

petitioner did not attend the office and did not resign, but remained

absconding. Under those circumstances, the order of removal came to be

passed. It is to be further noted that this order of termination was

communicated to the petitioner and he was asked to submit appeal, if any,

against such orders within 30 days from the date of its receipt. The said 9 JS, J

order was received by the father of the petitioner on 30.08.2007, but

without preferring any appeal to the higher authority, the petitioner has

directly approached this Court by way of this writ petition.

11. Learned counsel for petitioner has relied on the judgment of this

Court in M.Gopalakrishna v. Divisional Security Commissioner,

Railway Protection Force, S.C. Railway and Others 1, wherein, when the

petitioner had left the head quarters without permission and absconded

from duty, the punishment of removal from service was set aside and the

matter was remitted with a direction to the disciplinary authority to impose

appropriate punishment for leaving head quarters without permission. This

judgment is not applicable to the case of the petitioner herein, as he

unauthorizedly absconded from duty for longer periods and he also refused

to receive the official communications.

12. Counsel for petitioner has also relied on the judgment of Hon'ble

Supreme Court in Central Industrial Security Force and Others v.

Abrar Ali 2, wherein, when a punishment of dismissal from service was

imposed for desertion of the Force for a period of five days, it was held to

be disproportionate to the misconduct alleged. This judgment is also not

applicable to the petitioner's case in view of his unauthorized absence for

MANU/AP/0497/2006

MANU/SC/1995/2016 10 JS, J

longer periods of time. In Vinod Kumar v. G.N.C.T. of Delhi and

others 3, it was held that the period of suspension cannot be held as period

not spent on duty in view of Honourable acquittal of petitioner from the

criminal case. This judgment is also not applicable to the facts of the case,

as the issue in the present case is altogether different.

13. On the other hand, the learned Standing Counsel for the respondents

has relied on the judgment of Hon'ble Supreme Court in State of U.P. and

others v. Ashok Kumar Singh and Another 4, wherein it is held in

paragraph No.8 as under.

8. We are clearly of the opinion that the High Court has exceeded its jurisdiction in modifying the punishment while concurring with the findings of the Tribunal on facts. The High Court failed to bear in mind that the first respondent was a police constable and was serving in a disciplined force demanding strict adherence to the rules and procedures more than any other department. Having noticed the fact that the first respondent has absented himself from duty without leave on several occasions, we are unable to appreciate the High Court's observation that 'his absence from duty would not amount to such a grave charge'. Even otherwise on the facts of this case, there was no justification for the High Court to interfere with the punishment holding that 'the punishment does not commensurate with the gravity of the charge' especially when the High Court concurred with the findings of the Tribunal on facts. No case for interference with the punishment is made out.

W.P.(C) 1078 of 2018

(1996) 1 Supreme Court Cases 302 11 JS, J

14. The learned Standing Counsel has also relied on another judgment

of Hon'ble Supreme Court in Union of India and Others v. Ghulam

Mohd. Bhat 5, wherein, the punishment of removal from service was held

to be not disproportionate to the proved charge of the absence of a CRPF

Constable for more than 300 days without sanction of leave and without

justifiable reason.

15. Both the aforesaid judgments support the case of respondents, as in

the case on hand also, the petitioner has absconded from duty for 170 days

on one occasion and for 42 days on another occasion without there being

valid reasons and without communicating to the authorities and also