Arvind vs Secretary Union Of India And 03 Ors. on 25 September, 2023

[Cites 8, Cited by 0]

Madhya Pradesh High Court

Arvind vs Secretary Union Of India And 03 Ors. on 25 September, 2023

01. The petitioner has filed the present petition under Article 226 of the Constitution of India being aggrieved by the order dated 15.04.2008, whereby he has been dismissed from service w.e.f. 15.04.2008 (AN) and his unauthorized absence period from 14.04.2007 to 15.04.2008 total 372 days has been treated as 'Dies Non' for all purpose. This petition is also against the order dated 11.08.2009, whereby the appellate authority has dismissed the appeal maintaining the order of dismissal from service. The petitioner is also challenging the order dated 11.02.2010, whereby the Director General of Police has dismissed the revision.

02. Facts of the case in short are as under:-

2.1. The petitioner is a permanent resident of Village - Tok, Post Office - Amilkoni, District - Rewa. The petitioner was appointed on the post of Constable in Central Reserve Police Force (CRPF) in the year 2007 and he was posted in 156 Battalion. He was sanctioned with earned leave w.e.f. 09.02.2007 to 09.04.2007. He was required to report to the office back on 10.04.2007 but he did not report to the duty. The Chief Judicial Magistrate issued an arrest warrant on 18.06.2007 through Superintendent of Police, Rewa but the petitioner could not be arrested. Vide order dated 27.09.2007, he was declared absconder despite that he did not report in the duty.

2.2. Vide Memorandum No.P - VIII - 11/2007 - 156 - EC - II dated 13.11.2007, a decision was taken to initiate a charge-sheet to him. The charge-sheet was sent by a registered post to his residential address available in the service records, with a direction to submit a reply within 10 days. The petitioner did not submit any reply, therefore, vide order dated 04.12.2007, an Enquiry Officer was appointed to conduct an -3- enquiry against him. The Enquiry Officer sent two letters to him dated 13.12.2007 and 29.12.2007 calling upon him to participate in the enquiry, but neither he appeared nor sent any reply, therefore, the Enquiry Officer initiated an ex parte enquiry against him. After completing the enquiry, an Enquiry Report dated 19.01.2008 was submitted before the disciplinary authority. In enquiry report, the Enquiry Officer found the sole charge of absenteeism proved against him. The disciplinary authority i.e. Commandant, 156 Battalion vide letter dated 25.02.2008 sent the enquiry report to the petitioner's residential address with a show-cause notice to submit a reply / objection within 15 days. Since the petitioner did not submit any representation / reply, vide order dated 15.04.2008, punishment order of dismissal from service was passed.

2.3. Being aggrieved by the aforesaid order, the petitioner preferred an appeal as well as revision on the ground that on 09.02.2007 after taking the leave, he came to his hometown and fell ill on 29.03.2007.

Since no treatment was available there, therefore, he went to the parental house of his wife in Katni. According to him, from time to time he informed the Commandant, 156 Battalion about his illness. The appellate as well as revisional authority have held that the petitioner ought to have sent the letter by way of registered post. The letters / notices sent by the Battalion were returned undelivered as he was not found residing on the said address. The petitioner did not inform the Department about his new address. The petitioner did not inform his co- employee about his illness also who could have informed the Commandant. After one year of his absence, the termination order was -4- passed. If he was ill, he ought to have reported to nearest group hospital or CRPF Battalion. No treatment, prescription or sheets of District Medical Hospital have been produced, therefore, such a long absence without any medical treatment in the hospital has not been accepted by the appellate as well as revisional authorities and dismissed the appeal and revision. Hence, the present writ petition is before this Court.

03. Shri Bhatnagar, learned counsel for the petitioner argued that the petitioner was sending all the communications to the Commandant, 156 Battalion at Pahalgam (J&K) address and the Battalion made a communication to the address written in the service book. Thereafter, the Battalion moved from Pahalgam to Assam and the petitioner shifted from Rewa to Katni, therefore, there was a communication gap and the letters sent by the petitioner were not received by the Commandant and the notices sent by the Commandant were not received by the petitioner. The petitioner duly submitted medical documents to the respondents, but all have wrongly been rejected. The petitioner is not having any source of income to support his wife and children. He has submitted a mercy petition also, but the same has not been considered. Except overstaying the sanctioned leave, there is no adverse service record of the petitioner. By way of rejoinder, he has filed documents relating to his treatment duly issued by authorized Government Medical Officer. Therefore, one more opportunity be given to the petitioner to serve the organization.

04. The respondents filed a reply by submitting that the being the member of disciplinary force, the petitioner acted in violation of provision of Section 11(1) of the Central Reserve Police Force Act, -5- 1949. He failed to report on duty after expiry of sanctioned leave. He is out of employment since 2008 i.e. 15 years and now he is touching the age of superannuation, hence, he cannot be reinstated into the service. The disciplinary authority, appellant authority as well as revisional authority all have considered the conduct of the petitioner and found it unpardonable. The scope of interference by the High Court in the matter of disciplinary proceeding and punishment is very limited. By following the due process of law, the petitioner was declared absconder, and thereafter, the departmental enquiry was conducted. At every stage, he was sent notices, but he did not respond to anyone. If he had left his residential place, he could have inform the postal authority to divert the letters to his new address. Hence, no interference is liable to called for.

05. Learned counsel for the petitioner has placed reliance upon a judgment delivered in the case of Krushnakant B. Parmar v/s Union of India & Another reported in (2012) 3 SCC 178, in which the Apex Court has held that the disciplinary authority as well as appellate authority ought to have considered whether the absence of the appellant was willful or not and directed for reinstatement with 50% backwages. Reliance has also been placed upon a judgment delivered in the case of State (Union of India) v/s Ram Saran reported in 2003 AIR SCW 6585, in which in the matter of member of CRPF who overstayed the period of leave, only the punishment was modified and the fine of two months' pay has been imposed. Reliance has also been placed upon a judgment delivered in the case Shantiniketan Hindi Primary School v/s Pal Hariram Ramvtar & Others reported in (2010) 2 SCC 717, wherein in case of over staying the leave, the termination has been modified to -6- the reinstatement with 50% backwages.

06. In rebuttal, learned counsel for the respondents placed reliance upon a judgment delivered in the case of Ex Sepoy Madan Prasad v/s Union of India & Others reported in 2023 Live Law (SC) 580, wherein in case of absence of member of armed force, the Apex Court has held that he did not deserve any leniency by infliction of punishment lesser than that which has been awarded to him i.e. dismissal from service. In the case of Union of India & Others v/s Ex. No.64092086A SEP/ASH Kulbeer Singh reported in AIR 2019 Supreme Court 1578, wherein in case of absence over the period of 302 days without making any effort to apply for extension of leave, the Apex Court has declined to condone the same and upheld the order of punishment being not harsh or disproportionate.

07. I have heard learned counsel for the parties at length and perused the record.

08. The Office of Commandant - 156 BN CRPF C/O 56 APO, (J&K) sanctioned 60 days E/L from 09.02.2007 to 09.04.2007 to the petitioner . He went on leave to his residential address i.e. Village - Tok, District - Rewa, and thereafter, did not report to the duties on 09.04.2007. After completion of enquiry, he was declared deserter w.e.f. 10.04.2007 (FN) vide order dated 27.09.2007. A memorandum along with statement of article of charges, imputation of misconduct, list of documents and list of witnesses were sent to the petitioner at his address vide memo dated 13.11.2007. The petitioner did not submit any reply to the charges within the time, therefore, Shri Himanshu Shaily, Assistant Commandant of the Unit was appointed as Enquiry Officer. The Enquiry -7- Officer sent various letters to the petitioner calling upon him to appear in person. Since he failed to appear before the Enquiry Officer, therefore, he proceeded ex parte and submitted the report that the petitioner overstayed the leave from 10.04.2007 at his own without prior permission / sanction of leave from the competent authority. The Disciplinary Authority considered the said as a major misconduct and penalty of dismissal from service was awarded and the unauthorized absence period i.e. from 10.04.2007 to 15.04.2008 (total 372 days) was treated as 'Dies Non' for all purpose. The petitioner preferred an appeal to Deputy Inspector General, CRPF which came to be dismissed vide order dated 11.08.2009. Thereafter, second appeal was submitted to the Director General, Special Sector, CRPF, Raipur and the said appeal was also dismissed.

09. After the aforesaid orders of dismissal of appeals, the petitioner approached Apex Court by filing a petition in the nature of Public Interest Litigation. The Assistant Registrar of the Apex Court returned the said letter, and thereafter, the present petition was filed.

10. Learned counsel for the petitioner argued that during the sanctioned leave period, the petitioner became sick and in order to take better treatment, he went to Katni at his wife's parental house. He was under treatment and sent letters to the authorities informing about his illness, but none of the letter was replied. While conducting the enquiry, the provisions of Sections 11(1) & 12(1) of the CRPF Act were not followed. Admittedly, the petitioner overstayed the leave, but there was a valid explanation, therefore, the punishment of dismissal from service is excessive and highly disproportionate. The petitioner is having family -8- dependent on him, he has already suffered the punishment as he is out of employment since 2008, therefore, the punishment order be modified and he be taken back into the service.

11. The petitioner came up with a rejoinder stating that he sent various letters to UPC (collectively filed as Annexure-P/5) and treatment papers to the respondents but none of them were considered and replied, therefore, it cannot be said that the petitioner did not inform about his absence. However, there is absolutely no pleadings about these letters in the writ petition. Even in the memo of appeal, mercy appeal, no such ground had been taken that the letters were sent by him to inform about his illness and extension of leave. According to the petitioner, he sent letter to the Battalion at Pahalgam at Kashmir Address, but the Unit was moved to Assam and the petitioner moved from Rewa to Katni, therefore, there was a communication gap.

12. The petitioner was the member of disciplinary force and if he was shifting from Rewa to Katni, then he should have informed the respondents about his changed address or he could inform the local post office about change of his address so that all the letters could have been diverted to his new address. The petitioner was aware that he was sanctioned 60 days' leave to go to home, thereafter, he was required to report to the Unit otherwise he would be prosecuted and might lose his job. In writ petition and in rejoinder, he has not given details of serious illness which totally confined him to the bed. He came into action only after the order of dismissal was passed i.e. after 372 days. He was only sanctioned 60 days' leave and overstayed more than 300 days for almost a year. The petitioner, being a member of disciplinary force, is out of -9- service since 2008 and now more than 15 years have passed. The Department is not aware about his conduct, behavior and involvement in other adverse activities during these periods, therefore, taking him back after 15 years in the disciplinary force would not be desirable. Hence, no case for interference is made out in the matter.

13. In view of the above, Writ Petition stands dismissed.

No order as to cost.

(VIVEK RUSIA) JUDGE Ravi Digitally signed by RAVI PRAKASH Date: 2023.09.26 10:21:43 +05'30'

Unlock Advanced Research with PRISMAI

Madhya Pradesh High Court