Karnataka High Court
Sri Basavaraj A K vs Commandant 185 Battalion on 14 August, 2013
Author: L.Narayana Swamy
Bench: L. Narayana Swamy
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IN THE HIGH COURT OF KARNATAKA, BANGALORE
DATED THIS THE 14th DAY OF AUGUST, 2013
BEFORE
THE HON'BLE MR.JUSTICE L. NARAYANA SWAMY
WRIT PETITION NO.27593/2012 (S-DIS)
BETWEEN:
Sri Basavaraj.A.K.
S/o Kadappa
Aged 33 years
R/at Jamapur Village
Anaji Post
Davanagere District-577 512 ... Petitioner
(By Sri.M.Vishwajith Rai and Sri Jayaprakash, Advs.)
AND
1. Commandant 185 Battalion
C.R.P.F., Taral, Pulwama District
Through 56-APO
Jammu & Kashmir
Pin code-190 001.
2. Deputy Inspector General of Police
C.R.P.F., Srinagar
Jammu & Kashmir
Pin code-190 001.
3. Inspector General of Police
C.R.P.F., Srinagar Sector
Jammu & Kashmir
Pin code-190 001. ... Respondents
(By Sri. Mallikarjuna Reddy, CGC)
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This Writ Petition is filed under Articles 226 and
227 of the Constitution of India, praying to call for
records from the respondents which ultimately resulted
in passing of the orders Annexure-A, B & C and quash
the order vide Annexure-A dated 1.4.2011 passed by the
1st respondent, order Annexure-B dated 15.9.2011
passed by the 2nd respondent and also the order vide
Annexure-C dated 24.5.2012 passed by the 3rd
respondent confirming the orders passed by 1st and 2nd
respondents.
This writ petition coming on for Hearing this day,
the court made the following:-
ORDER
Petitioner challenges the order of dismissal dated 01.04.2011 as per Annexure-A and also the order of appellate authority dated 15.09.2011 and 24.05.2012 vide Annexures B and C.
2. Petitioner states that he was working as a constable at 185 Battalion CRPF, Jammu and Kashmir. He was sent on duty to escort attendant for one constable G.D.Basappa Mygi from 03.04.2010 to 16.04.2010. After completion of his work, he remained absent unauthorizedly i.e, for 27 days from 17.04.2010 to 11.05.2010 and further unauthorizedly absent for 95 3 days without permission of the competent authority from 13.05.2010 to 13.08.2010. In total, he was in unauthorizedly absent for about 119 days. The reasons assigned by him that he fell sick and as per doctors advice he could not report to duty and the same thing was informed to the respondent through the telephone as well as the telegram so that he could not report back to the duty. He went back and reported to the duty at Jammu and Kashmir of 185 Battalion, CRPF and thereafter the absent period of 119 days has been regularized as per Annexure-E dated 06.09.2010 and the order was issued on behalf of the Office of the Commandant 185 Battalion, CRPF. The Office order discloses that "period of absence in all for 119 days has been regularized as LHP with no leave salary". Thereafter petitioner worked for about 7 months.
3. In the meantime, on 21.01.2011 the respondents have issued a Memorandum of Charge/charge sheet wherein he was called upon to 4 submit his explanation for his unauthorized absence. An office order dated 05.02.2011 was issued by the first respondent appointing an officer for conducting enquiry against the petitioner. Thereafter the enquiry was conducted and a report was submitted on 13.02.2011 holding that the charges made against him were proved and accordingly the disciplinary authority has issued office order dated 01.04.2011 as per Annexure-A to the petitioner. Hence this writ petition.
4. Learned counsel for the petitioner submits that the impugned order passed by the respondent is bad in law and also error of law and is in contravention of Rule 25 of the Fundamental Rules i.e., Central Civil Services Leave Rules, 1972. Once the unauthorized absence has been regularized again the respondent cannot take action. Hence the impugned order of dismissal and also confirmation order passed by the appellate authorities are bad in law and are liable to be set aside.
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5. In support of his submission, learned counsel for the petitioner referred the judgment of Hon'ble Supreme Court reported in 2007 AIR SCW 6329 in the case of Kanailal Bera Vs. Union of India and Others, by exercising its power under Article 142 of the Constitution of India, directed to reinstate the petitioner without back wages. In the instant case also learned counsel submits that the petitioner's unauthorized absence was beyond his control and it was because of ill-health. Hence the similar order i.e., reinstatement without back wages could be granted to this petitioner also.
6. On the other hand, learned counsel for the respondent/s submits that regularization of unauthorized absence cannot be considered as condonation of unauthorized absence. Before permitting the petitioner to report for duty, the unauthorized absence has to be regularized for the purpose of maintaining the true account of absence for further 6 proceedings. Hence for the said specific purpose unauthorized absence was regularized and hence at no stretch of imagination it could be considered as condonation of absence. The regularization of unauthorized absence has been done under Rule 25 of the CCS Rules (Leave) Rules, 1972 wherein Sub Rule 4 of Rule 25 of the CCS (Leave) Rules enables the respondent to regularization of unauthorized absence which is contemplated as under:
"(1) Unless, the authority competent to grant leave extends the leave, a Government servant who remains absent after the end of leave is entitled to no leave salary for the period of such absence and that period shall be debited against his leave account as though it were half pay leave due being treated as extraordinary leave (2) Wilful absence from duty after the expiry of leave renders a Government servant liable to disciplinary action. Government of India decisions also exists that a Government servant who remains absent without any 7 authority should be proceeded against immediately and this should not be put off till the absence exceeds the limit prescribed in Rule 32(2) (2) (a) of the CCS (Leave) Rules, 1972."
7. In the instant case, the respondent is a Wing of Defence Force in which the petitioner was working and remained absent for 119 days and that leave cannot be condonable even and shall not be debited since he was not due for any leave in his account. Petitioner also committed an offence leaving the headquarters or the place of work that too without the permission of the respondent is again an offence considering all those grounds, disciplinary action has been initiated against the petitioner and he has been dismissed from service.
8. In support of his submission learned counsel for the respondents referred to the judgment of the Apex Court in Civil Appeal No.4893/2007 in the case of OM 8 Prakash Vs. State of Punjab and Others, wherein it has been held that regularization of leave cannot be understood as if the absence is condoned. Petitioner has the long history of unauthorized absence right from 2003 till the date of dismissal. This fact does not ensure any confidence on the petitioner to continue in service. The basic duty of the respondent is to protect the nation and in such service the absence of this nature shall not be condoned and there is no place for persons like this petitioner.
9. I have heard the learned counsel for the parties.
10. The submission of the petitioner that he was unauthorizedly absent because of illness which was beyond his control cannot be accepted. He has produced the medical bill issued by the Government hospital at Davanagere, in which it is referred that petitioner was suffering from pain in the low back since two weeks and it has been increased while bending 9 This cannot be accepted for the reason that two weeks preceding to issuance of this certificate he was in the hospital on Escort Attendant duty of injured patient/soldier Basappa. If it is the case of the petitioner that he was not well for the last two weeks, he should have shown to the doctors in the hospital where he was having official duty. Secondly when he was sent to Bangalore on duty of Escort Attendant of injured Basappa and it was impermissible to leave the patient and the place of work without there being any permission or sanction of leave is another offence. He went without permission is also an offence that cannot be condoned. Leaving the place of work though it is not a charge, but while examining the case of the petitioner I have come across the said fact. Again he reported for duty on 11.05.2010 after the unauthorized absence of 25 days on that day, he has not produced any medical bill or certificate. It is not the case of the petitioner that he was in immobile position or suffering ill in a position 10 could not move from his work place but it was Bangalore. Rule 25 of the CCS Rules under Sub Rule (4) which enables the authority to regularize the absence for the purpose of maintaining a true account of absence and also for maintaining correct records. If the leave could be accommodated, if it is available could be debited. If it is not possible, then the same has to be treated as extraordinary leave. However, it does not prevent the respondent from initiating the disciplinary action.
11. Accordingly charges were framed initiating disciplinary action against the petitioner and they were proved. Findings of the enquiring authority cannot be re-appreciated by this court since the respondent has passed an order on the basis of the materials and evidence produced on behalf of the petitioner.
12. The question whether Order of regularization is condonation of absence or not it will be appropriate to 11 refer the following decisions of the Hon'ble Supreme Court.
1. Civil Appeal No.4893/2007 in the case of OM Prakash Vs. State of Punjab and Others wherein at Para No.10 it is held as under:
" The next contention that is raised is that the period of absence of the appellant having been regularized, the aforesaid charge of unauthorized absence would fall through and, therefore, the order of punishment is required to be set aside and quashed. We are unable to accept the aforesaid contention as period of the unauthorized absence was not condoned by the authority but the same was simply shown as regularized for the purpose of maintaining a correct record".
2. In the above said very judgment the Hon'ble Supreme Court referred to a judgment reported in 1969 SLR 274 (SC) between State of Madhya Pradesh 12 Vs. Harihar Gopal, wherein at Para No.7 which reads as under:
"The order granting leave was made after the order terminating the employment and it was made only for the purpose of maintaining a correct record of the duration of service, and adjustment of leave due to the respondent and for regularizing his absence from duty."
3. In another judgment reported 2007 AIR SCW 6329 in the case of Kanailal BEra Vs. Union of India at Para No.5 it is held that:
"The question as to whether a punishment of confinement to civil Lines could have been directed or not should not detain us as we agree with the contention raised by learned counsel for the appellant that the purported order dated 05.04.1995 of the disciplinary authority was unsustainable in law. Rule 27 of the Central Reserve Police Force Rules 1955, inter alia, lays down the procedure for conducting a departmental enquiry. Once a disciplinary proceeding has been initiated, the same must be brought to 13 its logical end meaning thereby a finding is required to be arrived at as to whether the delinquent officer is guilty of charges leveled against him or not. In a given situation further evidences may be directed to be adduced but the same would not mean that despite holding a delinquent officer to be partially guilty of the charges levelled against him another inquiry would be directed to be initiated on the self same charges which could not be proved in the first inquiry"
The judgments referred above clarifies the position that the regularization of unauthorized absence is not a condonation and regularization is only for the purpose of maintaining true records and accounts of the petitioner.
13. As referred above under sub-rule 25(4) of CCS (Leave) Rules, 1972, the disciplinary enquiry has to be initiated against this petitioner. Accordingly I find justifiable ground on the part of the respondents. The respondent in the statement of objections also made 14 available the materials as to previous history of the petitioner which has been extracted as follows:
No. Sl Nature of Period of Action taken Order no. & misconduct date No. Days 1 Overstay 26/03/03 Leave with half L.II-5/2003-
from leave to pay (LHP) with 28-EC-II dt.
(OSL) 01/05/03 37 no leave salary 03/09/2003
2 Overstay 01/01/04 28 days
from leave to regularized into
(OSL) 23/02/04 LHP with No L.II-08/2008-
leave salary & 26 SRC-II-28
54 dated02/08/2
days regularized
into Extra 008
Ordinary Leave
(EOL)
3 Overstay 06/03/2005 20 days LHP and L.II-08/2008-
from leave to 31 days of No SRC-II-28
(OSL) 25/04/2005 51 leave salary dated
02/08/2008
4 Overstay 26/03/2006 OSL period L.II-08/2008-
from leave to regularized into SRC-II-28
(OSL) 46 EOL dated
10/08/2006
02/08/2008
5 Overstay 26/03/2007 OSL was
from leave regularized into
(OSL) LHP with no P.VIII
leave salary & 6/07-EC-II
also awarded
128 punishment of Dated
withholding or 27/02/2008
one increment
for a period of
one year.
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14. It is also further seen by this court that petitioner who is in a very disciplined Defence force of the Union of India, has not maintained his sincerity and discipline and on many occasions he went out of the headquarters without any permission and his unauthorized absence to duty does not impose any confidence on him to be continued in service.
15. Accordingly I find a strong force in the contentions raised by the learned counsel for the respondents. Accordingly I pass the following ORDER Writ petition is dismissed.
Sd/-
JUDGE Bsv