Delhi High Court
Ishwar Singh vs Union Of India & Ors. on 10 February, 2012
Author: J.R. Midha
Bench: Anil Kumar, J.R. Midha
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C)No.4160/1999
% Reserved on : 09th January, 2012
Date of decision : 10th February, 2012
ISHWAR SINGH ..... Petitioner
Through : Mr. H.S. Dahiya, Advocate.
versus
UNION OF INDIA & ORS. ..... Respondents
Through : Ms. Barkha Babbar, Advocate
for respondent/UOI.
CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE J.R. MIDHA
J.R. MIDHA, J.
*
1. The petitioner has challenged the order dated 10th/15th January, 1996 passed by the disciplinary authority levying the penalty of removal from service on the petitioner on account of unauthorized absence with effect from 28th May, 1994, disobedience of the office order dated 1st March, 1994 and changing the residential address without information/prior permission of the competent authority. The petitioner has also challenged the order dated 8th/9th October, 1998 rejecting the appeal filed by him against the dismissal order. W.P.(C)No.4160/1999 Page 1 of 14
2. The relevant facts of this case in brief are as under:-
(i) The petitioner, while serving at CISF Unit, LPG, Tikrikalan, Delhi, submitted an application dated 20th February, 1990 seeking out-living permission at Bahadurgarh which was allowed vide order dated 16th April, 1990.
(ii) On 23rd May, 1994, the petitioner was transferred to Dulhasti, Jammu and Kashmir. The petitioner was to be relieved on 31st May, 1994.
(iii) On 25th May, 1994, the petitioner did not report for duty. On 30th May, 1994, the petitioner sent the medical papers informing that he had been advised 20 days bed rest with effect from 28th May, 1994 by Medical Officer In-charge, Ram Roop Health Centre, Kanjhawala, MCD.
(iv) Vide letter dated 1st June, 1994, call-up notice was issued to the petitioner intimating him that the petitioner should have taken medical treatment from the panel doctor, Dr. B.L. Khatri who could have referred him. The petitioner was directed to immediately report for duty. However, the above notice was received back with the remarks that the petitioner was not found at the given address.
(v) On 3rd June, 1994, a Sub-Inspector and a Head Constable went to the Bahadurgarh address of the petitioner to serve the call-up notice and were informed that the petitioner W.P.(C)No.4160/1999 Page 2 of 14 had left the said address a year ago. In the meantime, the petitioner sent a letter dated 17th June, 1994 about his continued illness and mentioned another address whereupon a second call-up notice dated 20th June, 1994 was sent to the petitioner at the fresh address which was also returned back with the report that he was staying in that house on rent and had left the same. On 7th July, 1994, a third call-up notice was sent to the petitioner which also returned with the report that he had left the given address.
(vi) On 20th July, 1994, a charge memo was issued to the petitioner under Rule 34 of CISF Rules, 1969, containing the following articles of charge:-
"(a) ARTICLE OF CHARGE-I CISF No.8235123 Constable Ishwar Singh of CISF Unit LPG (T), Delhi is charged for gross misconduct and indiscipline in that he is absenting without leave (AWL) with effect from 28.5.1994 till date without proper permission of the competent authority.
(b) ARTICLE OF CHARGE-II CISF No.8235123, Const. Ishwar Singh of CISF Unit LPG (T), Delhi is charged for gross misconduct and indiscipline in that he disobeyed the lawful orders issued vide office letter no.E-42013/CISF/LPG/ADM/94-115 dated 1.3.1994.
(c) ARTICLE OF CHARGE-III CISF No.8235123, Const. Ishwar Singh of CISF Unit LPG (T), Delhi is charged for gross misconduct and indiscipline in that he changed his permitted residential address without any information and prior permission of the competent authority. A copy of memorandum dated 20.7.1994 is annexed as Annexure-14 to the writ petition."W.P.(C)No.4160/1999 Page 3 of 14
(vii) The said charge memo could not be served immediately on the petitioner as his whereabouts were not known to the office. However, the office made continuous efforts and were able to trace out his fresh address on 27th September, 1994 whereupon the charge memo was sent through a Constable to the petitioner who refused to accept the same. Finally the charge memo was served upon the petitioner through the local police station on 29th October, 1994. The petitioner did not submit his response to the charge memo within the stipulated period and, therefore, an enquiry officer was appointed vide order dated 25th November, 1994.
(viii) On 26th November, 1994, enquiry notice was issued to the petitioner fixing the date of enquiry as 6th December, 1994. The petitioner appeared before the enquiry officer and submitted a written application seeking change of the enquiry officer. The application was considered and vide order dated 19th December, 1994, a new enquiry officer was appointed. In the meantime, the petitioner also submitted his written statement of defence on 1st December, 1994 denying the charges levelled against him.
(ix) Repeated enquiry notices were issued to the petitioner on 9th January, 1995, 14th January, 1995, 17th January, 1995, 19th January, 1995, 9th February, 1995, 13th February, 1995, 3rd W.P.(C)No.4160/1999 Page 4 of 14 March, 1995, 7th March, 1995 and 8th April, 1994 which were received back undelivered. The enquiry officer, therefore, proceeded ex-parte against the petitioner and submitted his report on 28th October, 1995.
(x) On 18th November, 1995, a copy of the enquiry report was served on the petitioner's wife at his residence. The petitioner did not submit any response to the enquiry report. The disciplinary authority thereafter took a final decision awarding the punishment of dismissal from service to the petitioner vide order dated 10th/15th January, 1996. The disciplinary authority concurred with the findings of the enquiry officer and held the charges to be proved. The final order was pasted on the petitioner's door as he was again not traceable.
(xi) The petitioner filed an appeal dated 28th July, 1998 which was rejected vide order dated 8th/9th October, 1998 as being barred by time.
3. The learned counsel for the petitioner has made the following submissions at the time of hearing of the petition:-
(i) With respect to the charges No.1 and 2, it was submitted that the petitioner fell sick on 28th May, 1994 and was advised rest by the doctors. The petitioner sent the medical certificate by the registered post as well as UPC. The W.P.(C)No.4160/1999 Page 5 of 14 petitioner could not take treatment from the panel doctor who was available for only two hours in a day.
(ii) With respect to charge No.3, the petitioner submitted that he gave the address of his brother but due to family differences, he had to leave that house and live separately.
Vide letter dated 28th May, 1994, the petitioner gave the fresh address of Mahabir Park which he had to vacate on being compelled by the landlord. However, the petitioner admitted that he could not officially and separately communicate the change of addresses to the office.
(iii) The documents were not supplied to the petitioner along with the charge memo and proper opportunity was not afforded to the petitioner to cross-examine the witnesses.
(iv) The punishment awarded to the petitioner is disproportionate.
(v) The petitioner had given sufficient explanation for delay in filing of the appeal.
4. The learned counsel for the respondent has submitted that the enquiry has been conducted following the principles of natural justice and all the charges have been proved by sufficient evidence against the petitioner. It is submitted that the petitioner did not lead any evidence in the enquiry. It is submitted that the petitioner absented without leave with W.P.(C)No.4160/1999 Page 6 of 14 effect from 28th May, 1994 without prior permission of the competent authority, disobeyed the office order dated 1st March, 1994 and changed his address without any information and prior permission of the competent authority. The learned counsel has further urged that the petitioner has raised frivolous pleas in this petition. It is further submitted that the petitioner has committed serious act of indiscipline and the punishment of removal from service is proportionate to the guilt of the petitioner. The learned counsel for the respondent has referred and relied upon the following judgments:-
(i) Union of India v. Datta Linga Toshatwad, (2005) 13 SCC 709 - In this case, a Constable did not report for almost a year and thereafter filed a writ petition before the High Court seeking re-instatement. The Supreme Court held the dismissal to be valid. The Court held that the members of uniformed Forces cannot absent themselves on frivolous pleas having regard on the nature of duties enjoined on such Forces. The findings of the Court are as under:-
"6. One cannot ignore the large number of cases which come to this Court of members of uniformed forces remaining absent from duty without any reasonable explanation. Whenever action is taken, the usual plea taken is of having been ill or some such false pretext, and even fake or false medical certificates are produced in support of such a plea. We would not have taken a serious view of the matter had it not been a case of a constable belonging to CRPF remaining W.P.(C)No.4160/1999 Page 7 of 14 absent for an indefinite period. Even if we assume that the respondent was suffering from depression and was being treated as an outdoor patient, the medical certificates produced by him show that he was restored to normalcy on 4-4-1998 yet the respondent did not choose to report for duty. The order of dismissal was passed seven months later i.e. on 2-11- 1998. This itself discloses the hollowness of the claim of the respondent regarding mental depression and imbalance which he claims to have suffered.
8. The present case is not a case of a constable merely overstaying his leave by 12 days. The respondent took leave from 16-6-1997 and never reported for duty thereafter. Instead he filed a writ petition before the High Court in which the impugned order has been passed. Members of the uniformed forces cannot absent themselves on frivolous pleas, having regard to the nature of the duties enjoined on these forces. Such indiscipline, if it goes unpunished, will greatly affect the discipline of the forces. In such forces desertion is a serious matter. Cases of this nature, in whatever manner described, are cases of desertion particularly when there is apprehension of the member of the force being called upon to perform onerous duties in difficult terrains or an order of deputation which he finds inconvenient, is passed. We cannot take such matters lightly, particularly when it relates to uniformed forces of this country. A member of a uniformed force who overstays his leave by a few days must be able to give a satisfactory explanation. However, a member of the force who goes on leave and never report for duties thereafter, cannot be said to be one merely overstaying his leave. He must be treated as a deserter. He appears on the scene for the first time when he files a writ petition before the High Court, rather than reporting to his Commanding Officer. We are satisfied that in cases of this nature, dismissal from the forces is a justified disciplinary action and cannot be described as disproportionate to the misconduct alleged."
(Emphasis supplied) W.P.(C)No.4160/1999 Page 8 of 14
(ii) State of Rajasthan v. Mohd. Ayub Naz, 2006 I AD (SC) 308 - The Supreme Court held the order of removal from service due to willful absence for three years without intimation to be justified. The findings of the Court are as under:-
"9. Absenteeism from office for prolong period of time without prior permission by the Government servants has become a principle cause of indiscipline which have greatly affected various Government Services. In order to mitigate the rampant absenteeism and wilful absence from service without intimation to the Government, the Government of Rajasthan inserted Rule 86(3) in the Rajasthan Service Rules which contemplated that if a Government servant remains wilfully absent for a period exceeding one month and if the charge of wilfull absence from duty is proved against him, he may be removed from service. In the instant case, opportunity was given to the respondent to contest the disciplinary proceedings. He also attended the enquiry. After going through the records, the learned Single Judge held that the admitted fact of absence was borne out from the record and that the respondent himself has admitted that he was absent for about 3 years. After holding so, the learned Single Judge committed a grave error that the respondent can be deemed to have retired after seeking of service of 20 years with all retiral benefits which may be available to him. In our opinion, the impugned order of removal from service is the only proper punishment to be awarded to the respondent herein who was wilfully absent for 3 years without intimation to the Government. The facts and circumstances and the admission made by the respondent would clearly go to show that Rule 86(3) of the Rajasthan Service Rules is proved against him and, therefore, he may be removed from service."
(Emphasis supplied) W.P.(C)No.4160/1999 Page 9 of 14
(iii) K.S. Pundir v. Union of India, MANU/DE/1770/2011- The Division Bench of this Court upheld the order of removal from service on account of unauthorized absence from duty for a period of 259 days. The findings of this Court are as under:-
"32. There is evidence that the Petitioner was not wanting to work in Uri and thus he feigned sickness. All Force Personnel have to serve in hard areas and those who unjustifiably do not so cause hardship to others, inasmuch as their burden would have to be shared by others, and indeed if this kind of deviant behaviour is overlooked, others would be tempted to do so. We concur with the view taken by the authorities concerned that such kind of deviant behaviour has to be suppressed with a heavy hand. Keeping in view the past service profile of the Petitioner we do not find the penalty inflicted to be disproportionate to the gravity of the offence and hence we dismiss the writ petition."
(iv) Dharambir Singh v. Union of India, MANU/DE/3824/2011 - The Division Bench of this Court held as under:-
"23. We prefer to decide on the facts of the instant case.The Petitioner is not armed with any medical certificate that he was unfit for duties except for a short period of 3 weeks, when he was hospitalized at CRPF Base Hospital. He was taking treatment as an OPD Patient. This shows that the Petitioner was in his house. It may be true that first class eye treatment is not available at Tripura where the battalion of the Petitioner was stationed, but we see No. reason why the Petitioner could not have joined duties and requested that he should be attached to a battalion of CRPF which was stationed for duties at Delhi or Chandigarh. He could have produced the medical papers pertaining to his treatment before the Commandant who could have obtained an opinion W.P.(C)No.4160/1999 Page 10 of 14 whether medical treatment required by the Petitioner required him to be stationed at either Delhi or Chandigarh. If the Petitioner required periodic visits to AIIMS, the alternative of sanctioning medical leave for short durations to enable Petitioner to present himself before the Ophthalmologist would also have been considered as an alternative.
24. The Petitioner could not become a judge in his own cause. He could not just stay back at Delhi.
25. We must highlight that all cases of unauthorized absence or desertion being brought before us pertained to when battalions of CRPF or BSF are transferred to hard areas and it surprises us that when stationed at peace places, no officer of CRPF or BSF complains of sickness. Not a single case of desertion, or unauthorized absence, out of over 250 decided by us till today pertains to a CRPF or BSF jawan of a battalion posted in a peace station. Whenever we have called upon counsel for CRPF or BSF to advance arguments on the quantum of punishment, they have always highlighted that there is a tendency of the force personnel to feign sickness or exaggerate minor illnesses to avoid working in hard areas and if this deviancy is overlooked, it would breed insubordination in the force because jawans would not obey lawful commands of the superiors to report back. This would encourage deviant behaviour by others. Secondly, it has been pointed out to us that force personnel are sent on leave by rotation and where one jawan overstays leave, he does so at the cost to some other(s)."
(Emphasis supplied)
5. In the present case, the petitioner does not dispute that he remained absent without leave with effect from 28th May, 1994 and never reported for duty thereafter. The petitioner also does not dispute violation of the order dated 1st March, W.P.(C)No.4160/1999 Page 11 of 14 1994 requiring the members of the force to take treatment from Dr. B.L. Khatri. The petitioner also does not dispute that he changed his permitted residential address without informing or prior permission of the competent authority. The only defence of the petitioner is that he was ill with effect from 28th May, 1994 and did not take treatment from Dr. B.L. Khatri who was available only for two hours daily. The medical certificate relied upon by the petitioner records that the petitioner was suffering from diarrhea, vomiting and fever and as such, his condition was not such that he could not have visited the panel doctor. The petitioner was admittedly not hospitalized. The petitioner did not report for duty even once after 28th May, 1994. The petitioner did not lead any evidence to prove his condition despite sufficient opportunity given. On the other hand, the charge against the petitioner has been proved by sufficient evidence. It appears that the petitioner took the false plea of medical illness and treatment outside the health centre to avoid proceeding to Dulhasti, Jammu and Kashmir. With respect to the change of permitted residential address without information and prior permission, the petitioner has not denied the charge but has sought to give vague explanation without any particulars. The appeal filed by the petitioner against the order of dismissal was rejected on the W.P.(C)No.4160/1999 Page 12 of 14 ground of inordinate delay and the said delay was not sufficiently explained. In that view of the matter, there is no infirmity in the order of the appellate authority to reject the appeal as time barred. The punishment inflicted upon the petitioner is also not disproportionate. This case is clearly covered by the judgments of the Supreme Court in Datta Linga Toshatwad (supra) and Mohd. Ayub Naz (supra) and of the Division Bench of this Court in K.S. Pundir (supra) and Dharambir Singh (supra).
6. In the totality of the facts and circumstances of this case and for the aforesaid reasons, there is no infirmity in the dismissal of the petitioner who absented without leave with effect from 28th May, 1994 without any permission of the competent authority, the petitioner disobeyed the office order dated 1st March, 1994 requiring all the employees to get medical treatment from the panel doctor, Dr. B.L. Khatri and the petitioner also changed his permitted residential address without any information or prior permission of the competent authority. The petitioner has failed to make out any such illegality, irregularity or perversity which will require any interference by this Court in exercise of its jurisdiction under Article 226 of the Constitution of India.
W.P.(C)No.4160/1999 Page 13 of 14
7. There is no merit in the petition which is hereby dismissed.
ANIL KUMAR, J.
J.R. MIDHA, J FEBRUARY 10, 2012 aj W.P.(C)No.4160/1999 Page 14 of 14