Gujarat High Court
Diwan Singh vs Director General R.P.F & 4 on 15 June, 2016
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/11952/2000 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 11952 of 2000
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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DIWAN SINGH....Petitioner(s)
Versus
DIRECTOR GENERAL R.P.F & 4....Respondent(s)
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Appearance:
MR NAGESH C SOOD, ADVOCATE for the Petitioner(s) No. 1
MS ARCHANA U AMIN, ADVOCATE for the Respondent(s) No. 1 - 5
RULE SERVED for the Respondent(s) No. 1 - 2 , 5
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 15/06/2016
ORAL JUDGMENT
By this writ-application under Article 226 of the Constitution of India, the petitioner, a former RPF Constable, Page 1 of 12 HC-NIC Page 1 of 12 Created On Sat Jun 18 02:32:59 IST 2016 C/SCA/11952/2000 JUDGMENT has prayed for the following reliefs :
"(A) The Honorable Court be pleased to issue a writ of mandamus or writ in nature of mandamus or writ of certiorari or writ in nature of certiorari or any other appropriate writ, direction or order quashing and setting aside the order passed by the respondent no.4 dated 29th August 1997 at Exhibit-B as well as order passed by respondent no.1 dated 31st July 2000 at Exhibit-A to this petition.
(B) Pending the final hearing and disposal of the petition, the Hon'ble Court be pleased to stay the execution and operation of order dated 31st July 2000 at Exhibit-A to this petition.
(C) The Hon'ble Court be pleased to pass such other order as may be deemed just and proper in the circumstances of the case.
(D) The cost of this petition be provided."
The facts of this case may be summarised as under :
The petitioner joined the Railway Protection Force as a Constable in the year 1991. On 8th November 1996, while on duty, he received a telephonic message that his pregnant wife was seriously ill.
It appears that he applied to the SIPF (Loco) for 45 days' leave to attend his pregnant/ailing wife. He applied on 8.11.1996 for leave. The application dated 8.11.1996 for leave addressed to the SIPF (Loco) was forwarded on 8.11.1996 itself to the DSC/RPF/Bhavnagar. However, before his leave could be sanctioned, he left for his native place. As a result, he came to be chargesheeted and was called upon to show-cause why major penalty should not be imposed for unauthorized absence.Page 2 of 12
HC-NIC Page 2 of 12 Created On Sat Jun 18 02:32:59 IST 2016 C/SCA/11952/2000 JUDGMENT Ms.Amin, the learned counsel appearing for the respondents, after taking instructions from the officer who is present in the Court, submitted that no orders were passed by the DSC, Bhavnagar on the leave application. Thus, neither the leave application was allowed nor it was rejected.
According to the charge, he remained absent for the period between 9.11.1996 and 23.12.1996. The Divisional Security Commissioner/RPF/Vadodara-4, being the disciplinary authority, passed an order dated 29th August 1997 imposing penalty of removal from service. The disciplinary authority observed as under :
"I have perused the case file, relevant documents and the efforts made by E.O. to call partycharged in DAR enquiry. Though primarily he associated with DAR enquiry but later on he did not turn up and remained unauthorised absent. His absence proves that he has nothing more to say in his defence. The statement of witnesses clearly proves his absence not only from his duty beat but also from barrack. Thus charges levelled against him are proved and this case cannot be viewed leniently. Holding him guilty of the charges the punishment of removal from service is imposed with immediate effect on constable Diwan Singh of BVP (W/S)."
The petitioner, being dissatisfied with the order of punishment imposed by the disciplinary authority, preferred an appeal before the Deputy Chief Security Commissioner, Western Railway, Churchgate. The appellate authority, by order dated 9th March 1998, dismissed the appeal observing as under :
"Ex-Constable Diwan Singh of BVP (W/S) has submitted an appeal dt. 26.11.97 against the order of removal from service issued by DSC vide order No.RPE 40/1 (BVP) dt. 29.8.97.
I have gone through the appeal and relevant records on file. The enquiry has been conducted according to provisions of RPF Rules and reasonable enquiry has been given to the appellant Page 3 of 12 HC-NIC Page 3 of 12 Created On Sat Jun 18 02:32:59 IST 2016 C/SCA/11952/2000 JUDGMENT which he did not avail and after initial enquiry, it had to be conducted ex-parte as the appellant once again went on unauthorized absence.
In his appeal, he has not raised any specific point except that his wife was seriously ill and he had to go. Sickness in family may need compassion but not a right for leave. He should have waited for his leave to be sanctioned. The charge of unauthorized absence is proved beyond doubt.
The punishment is also not on the higher side. I do not want to interfere with the punishment imposed by the disciplinary authority. I confirm the punishment."
Being dissatisfied with the order passed by the disciplinary authority, he preferred a revision application before the Chief Security Commissioner. By order dated 9th November 1998, the revision application was rejected. The revisional authority observed as under :
"In the revision petition filed by Ex-Constable Diwan Singh dated 8.9.98, the petitioner has failed to bring out any material point which could go in his defence. The petitioner was given an opportunity to appear before the revisional authorit. He had appeared before the CSC on 30.9.98. He had only pleaded that he may be given the job and that he had failed to bring out any material fact which may have forced him to remain on unauthorised absence. The DAR enquiry was conducted in accordance with the provisions of rules and instructions in vogue and there is no flaw what-so-ever. Since the petitioner has failed to bring out any fresh point in his defence, therefore, the petition is rejected and the punishment already imposed is confirmed."
Being dissatisfied, he preferred a review petition before the Director General/RPF Railway Board. The review petition came to be partly allowed. The punishment of removal was substituted with that of compulsory retirement from service. The order passed by the reviewing authority reads as under :
"Shri Diwan Singh, Ex-Constable/RPF No.05862 of BVP (Workshop), Western Railway has submitted a review petition against the orders of DSC/RPF/BVP dated 29.8.1997 imposing Page 4 of 12 HC-NIC Page 4 of 12 Created On Sat Jun 18 02:32:59 IST 2016 C/SCA/11952/2000 JUDGMENT upon him the punishment of removal from service, Appellate Order dated 29.3.1998 passed by Dy. CSC/WR rejecting his appeal, as also against revisionary order dated 9.11.1998 passed by CSC/PRF/Western Railway rejecting his revision petition.
2. While perusing the submissions of Ex-Constable Diwan Singh made in his review petition, I have decided to review the case under the provisions of Rule 219.4 of RPF Rules, 1987.
3. I have gone through the case file. In brief, the facts of the case are that Constable Diwan Singh submitted an application for 45 days' leave to attend his pregnant/ailing wife. His application was forwarded to DSC/RPF/Bhavnagar by the SIPF (Loco), Bhavnagar. However, before his leave could be sanctioned, the Constable left for his native place. Thus, he was chargesheeted for major penalty for unauthorised absence. The charges were proved during the departmental enquiry and the Disciplinary Authority imposed upon him the punishment of removal from service. His Appeal and Revision Petitions were rejected by the Competent Authorities.
4. The only point raised by the petitioner in his review petition is that he had applied for 45 days' leave. It has also been submitted that in normal practice over the Division, the staff submit their application for leave and proceed on their leave. Their leave is sanctioned by the Divisional Authority in due course.
5. On perusal of the records, I find that the petitioner had asked for leave, but he left his duty without waiting for sanction of leave. He returned to his duty after 44 days. There is no doubt that the Constable was absent without leave. However, considering the circumstances of his wife's sickness and the fact that his application for leave is well documented and he has returned for duty after 44 days, it appears that the Ex- Constable's intention was not to abscond or desert, but to attend his ailing wife.
6. Taking into consideration his overall service record, I fee that ends of justice would be met if the punishment of removal from service imposed by DSC/RPF/BVP is modified to that of compulsory retirement from service.
7. I, therefore, order that the punishment of removal from service imposed by DSC/RPF/BVP be modified to that of compulsory retirement from service.
8. The petitioner may be informed accordingly."
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C/SCA/11952/2000 JUDGMENT
Thus, the findings recorded by the reviewing authority in para 5 are plain and clear.
This writ-application has been opposed by Ms.Amin, the learned counsel appearing for the respondents. She has relied on the affidavit-in-reply filed on behalf of the respondents duly affirmed by the Divisional Security Commissioner, Western Railway, Bhavnagar. She submitted that the petitioner, being a member of the police force, was expected to maintain discipline and could not have left the headquarter without prior permission and without his leave being sanctioned.
Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is, whether the authorities were justified in passing the order of removal from service which, later on, came to be substituted with that of compulsory retirement from service.
The petitioner herein is accused of having remained absent from duty for a period of 44 days. In the case of the petitioner referring to the unauthorized absence, the disciplinary authority, appellate authority, revisional authority as well as reviewing authority alleged that he failed to maintain devotion to duty and his behaviour was unbecoming of a police officer. The question, whether the 'unauthorized absence from duty' amounts to failure of devotion to duty or behaviour unbecoming of a Government servant, cannot be decided without deciding the question whether absence is willful or because of compelling circumstances.
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C/SCA/11952/2000 JUDGMENT
If the absence is the result of the compelling
circumstances under which it was not possible to wait for sanction of the leave, such absence cannot be held to be willful. Absence from duty without any application or prior permission may amount to unauthorized absence, but it does not always mean willful. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalization, etc., but in such a case the employee cannot be held guilty of failure of devotion to duty or behaviour unbecoming of a Government servant.
In a departmental proceeding, if allegation of unauthorized absence from duty is made, the disciplinary authority is required to prove that the absence is willful, in the absence of such finding, the absence will not amount to misconduct.
In the case in hand, the Inquiry Officer, on appreciation of evidence though held that the petitioner was unauthorizedly absent from duty but failed to hold that the absence was willful; the disciplinary authority, the appellate authority as also the revisional authority, failed to appreciate the same and wrongly held the appellant guilty. (see Krushnakant B.Parmar v. Union of India and another, (2012)3 SCC 178).
In the case in hand, while modifying the punishment from removal to compulsory retirement, the Director General, being the reviewing authority, has observed that although the Constable was absent without leave, yet considering the circumstances of his wife's sickness and the fact that his application for leave was well-documented and he returned for Page 7 of 12 HC-NIC Page 7 of 12 Created On Sat Jun 18 02:32:59 IST 2016 C/SCA/11952/2000 JUDGMENT duty after 44 days, the intention was not to abscond or desert, but to attend his ailing wife. In my view, the matter should conclude over here.
The Supreme Court in the case of Krushnakant B.Parmar (supra), while explaining the law in this regard, observed in para 20 as under :
"The question relating to jurisdiction of the Court in judicial review in a Departmental proceeding fell for consideration before this Court in M.B. Bijlani vs. Union of India and others reported in (2006) 5 SCC 88 wherein this Court held:
"It is true that the jurisdiction of the court in judicial review is limited. Disciplinary proceedings, however, being quasi- criminal in nature, there should be some evidence to prove the charge. Although the charges in a departmental proceeding are not required to be proved like a criminal trial i.e. beyond all reasonable doubt, we cannot lose sight of the fact that the enquiry officer performs a quasi-judicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with."
Krushnakant B.Parmar (supra) later on came to be considered by the Supreme Court in the case of Chennai Metropolitan Water Supply and Sewerage Board and others v. T.T.Murali Babu, (2014)4 SCC 108. In Chennai Metropolitan Water Supply and Sewerage Board (supra), the respondent, a Junior Engineer, remained continuously absent from duty from 28.8.1995 without any intimation to the employer and did not respond to the repeated memoranda/reminders requiring him Page 8 of 12 HC-NIC Page 8 of 12 Created On Sat Jun 18 02:32:59 IST 2016 C/SCA/11952/2000 JUDGMENT to explain his unauthorized absence and to join the duty. Disciplinary proceedings were initiated against him and the disciplinary authority imposed punishment of dismissal on 16.4.1998 observing that the belated submission of the medical certificate on 1.4.1997 irresistibly lead to the conclusion that the respondent was unauthorizedly absent from 28.8.1995. In the said case, the period of absence was between 28.8.1995 to 31.3.1997.
Before the Supreme Court, it was argued that the absence was not willful. The Supreme Court, while allowing the appeal filed by the Board, took the view that recording of finding that the absence was willful is not a must. It took the view that it is not an absolute proposition in law that whenever there is a long unauthorized absence, it is obligatory on the part of the disciplinary authority to record a finding of willful absence even when an employee fails to show compelling circumstances for remaining absent. The respondent relied on the decision of the Supreme Court in Krushnakant B.Parmar (supra) in this regard. Considering Krushnakant B.Parmar (supra), the Supreme Court held as under :
"22. Learned counsel for the respondent has commended us to the decision in Krushnakant B.Parmar v. Union of India to highlight that in the absence of a finding returned by the Inquiry Officer or determination by the disciplinary authority that the unauthorized absence was willful, the charge could not be treated to have been proved. To appreciate the said submission we have carefully perused the said authority. In the said case, the question arose whether "unauthorized absence from duty" did tantamount to "failure of devotion to duty" or "behavior unbecoming of a Government servant" inasmuch as the appellant therein was charge-sheeted for failure to maintain devotion to duty and his behavior was unbecoming of a Government servant. After adverting to the rule position the two-Judge Bench expressed thus: -
"16. In the case of the appellant referring to unauthorized absence the disciplinary authority alleged Page 9 of 12 HC-NIC Page 9 of 12 Created On Sat Jun 18 02:32:59 IST 2016 C/SCA/11952/2000 JUDGMENT that he failed to maintain devotion to duty and his behavior was unbecoming of a government servant. The question whether "unauthorized absence from duty"
amounts to failure of devotion to duty or behavior unbecoming of a government servant cannot be decided without deciding the question whether absence is willful or because of compelling circumstances.
17. If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence cannot be held to be willful. Absence from duty without any application or prior permission may amount to unauthorized absence, but it does not always mean willful. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalization, etc., but in such case the employee cannot be held guilty of failure of devotion to duty or behavior unbecoming of a government servant.
18. In a departmental proceeding, if allegation of unauthorized absence from duty is made, the disciplinary authority is required to prove that the absence is willful, in the absence of such finding, the absence will not amount to misconduct."
23. We have quoted in extenso as we are disposed to think that the Court has, while dealing with the charge of failure of devotion to duty or behavior unbecoming of a Government servant, expressed the aforestated view and further the learned Judges have also opined that there may be compelling circumstances which are beyond the control of an employee. That apart, the facts in the said case were different as the appellant on certain occasions was prevented to sign the attendance register and the absence was intermittent. Quite apart from that, it has been stated therein that it is obligatory on the part of the disciplinary authority to come to a conclusion that the absence is willful. On an apposite understanding of the judgment we are of the opinion that the view expressed in the said case has to be restricted to the facts of the said case regard being had to the rule position, the nature of the charge levelled against the employee and the material that had come on record during the enquiry. It cannot be stated as an absolute proposition in law that whenever there is a long unauthorized absence, it is obligatory on the part of the disciplinary authority to record a finding that the said absence Page 10 of 12 HC-NIC Page 10 of 12 Created On Sat Jun 18 02:32:59 IST 2016 C/SCA/11952/2000 JUDGMENT is willful even if the employee fails to show the compelling circumstances to remain absent."
Thus, the Supreme Court, in Chennai Metropolitan Water Supply and Sewerage Board (supra), has not laid down any law which could be said to be running contrary to the law laid down by the Supreme Court in Krushnakant B.Parmar (supra). The Supreme Court, in Chennai Metropolitan Water Supply and Sewerage Board (supra), considered the gross facts and took the view that it was not obligatory on the part of the disciplinary authority to record a finding that the said absence was willful as the employee had failed to show the compelling circumstances to remain absent.
In the case in hand, the petitioner could very much show the compelling circumstances and such compelling circumstances were believed and accepted by the Director General while modifying the order of penalty.
In my view, having regard to the circumstances in which the petitioner had to leave the headquarter and the fact that his explanation has been accepted by the authority i.e. the Director General, the imposition of penalty of compulsory retirement was not proper and justified.
As a result, this writ-application succeeds and is allowed. The order passed by the disciplinary authority, appellate authority, revisional authority and reviewing authority is quashed and set-aside. The petitioner stands reinstated in service on the post of Constable.
Taking into consideration the fact that the petitioner has Page 11 of 12 HC-NIC Page 11 of 12 Created On Sat Jun 18 02:32:59 IST 2016 C/SCA/11952/2000 JUDGMENT suffered a lot since the proceeding was drawn in 1997 for absence from duty for a period of 44 days, I am not inclined to remit the proceeding to the disciplinary authority to consider the proportionality of the punishment. Further, keeping in view the fact that the petitioner has not worked for a long time, I direct that the petitioner be paid 50% of the backwages but there shall be no order as to costs.
Rule made absolute to the aforesaid extent.
(J.B.PARDIWALA, J.) MOIN Page 12 of 12 HC-NIC Page 12 of 12 Created On Sat Jun 18 02:32:59 IST 2016