Gujarat High Court
Valabhai Dhulabhai Vankar vs Union Of India & 4 on 11 July, 2017
Bench: M.R. Shah, B.N. Karia
C/SCA/6531/2017 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 6531 of 2017
For Approval and Signature:
HONOURABLE MR.JUSTICE M.R. SHAH Sd/
and
HONOURABLE MR.JUSTICE B.N. KARIA Sd/
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1 Whether Reporters of Local Papers may be allowed to see No
the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law as No
to the interpretation of the Constitution of India or any
order made thereunder ?
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VALABHAI DHULABHAI VANKAR....Petitioner(s)
Versus
UNION OF INDIA & 4....Respondent(s)
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Appearance:
MR HEMANT K MAKWANA, ADVOCATE for the Petitioner(s) No. 1
MR KSHITIJ M AMIN, ADVOCATE for the Respondent(s) No. 1 5
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CORAM: HONOURABLE MR.JUSTICE M.R. SHAH
and
HONOURABLE MR.JUSTICE B.N. KARIA
Date : 11/07/2017
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE M.R. SHAH) [1.0] By way of this petition under Article 226 of the Constitution of India, the petitioner has prayed for an appropriate writ, direction and order to quash and set aside the impugned order dated 29.04.2015 passed by the Commandant, 221, Battalion, CRPF, Suratgadh, Rajasthan imposing the punishment of compulsory retirement from service, further Page 1 of 5 HC-NIC Page 1 of 5 Created On Wed Aug 16 00:11:08 IST 2017 C/SCA/6531/2017 JUDGMENT confirmed by the Inspector General of Police, Bombay on 31.08.2015 as well as by the D.I.G.P., CRPF, South Zone dated 16.09.2016.
[2.0] That the petitioner herein was serving as a Havaldar (Head Constable). Lastly, he was serving at Suratgadh in Rajasthan. That a departmental inquiry was initiated against the petitioner for remaining unauthorizedly absent without leave. After completing the departmental proceedings and having found that the petitioner remained unauthorizedly absent for 89 days without leave and that after the arrest warrant was issued against the petitioner, only thereafter he reported for duty and having found that earlier 10 times he had committed similar misconduct of absentism and considering the fact that such an indiscipline cannot be tolerated in the disciplined force - CRPF, though the charge and misconduct of unauthorized absentism was held to be proved, considering his 20 years' long service, the Disciplinary Authority imposed punishment of compulsory retirement instead of dismissing him from service. The aforesaid has been further confirmed by the first Appellate Authority and the Revisional Authority. Hence, the petitioner has preferred the present Special Civil Application under Article 226 of the Constitution of India.
[3.0] Shri Makwana, learned Advocate appearing on behalf of the petitioner has made only one submission that in the facts and circumstances of the case, order of compulsory retirement can be said to be disproportionate to the charge and misconduct held to be proved.
[3.1] It is submitted by Shri Makwana, learned Advocate appearing on behalf of the petitioner that for overstay of 89 days for which there was a valid reason, such an order of compulsory retirement is too harsh. It is submitted by Shri Makwana, learned Advocate appearing on behalf of Page 2 of 5 HC-NIC Page 2 of 5 Created On Wed Aug 16 00:11:08 IST 2017 C/SCA/6531/2017 JUDGMENT the petitioner that infact the leave for the period between 12.05.2014 to 10.06.2014 was sanctioned by the Authority. However, at that time the wife of the petitioner was serious and was admitted in the hospital, the overstay of 89 days could not and should not have been viewed so harsh moreso when the petitioner had served for more than 20 years. It is submitted that though earlier there had been some minor punishment, but the same could have been ignored by the Authority while imposing the lighter punishment.
Making above submissions it is requested to interfere with the impugned order of punishment of compulsory retirement.
[4.0] Present Special Civil Application is vehemently opposed by Shri Kshitij Amin, learned Advocate appearing on behalf of the respondent. It is submitted that though the leave for the period between 12.05.2014 to 10.06.2014 was sanctioned, thereafter neither the petitioner reported for duty nor submitted any application for extension of leave and remained overstay for 89 days. It is submitted that even thereafter also an arrest warrant was issued against the petitioner for not reporting for duty and only thereafter he reported for duty and the arrest warrant was canceled. It is submitted that thereafter after holding the departmental inquiry and having held the charge and misconduct proved against the delinquent and considering his past conduct of 10 such misconducts of remaining absent without leave when the order of compulsory retirement is passed, the same is not required to be interfered with as, as such indiscipline in the disciplined force of CRPF cannot be tolerated. It is submitted that as such a sympathetic view has already been taken by the Authority and considering his 20 years' service instead of order of dismissal, he has been compulsorily retired.
[5.0] Heard learned Advocates appearing for respective parties at Page 3 of 5 HC-NIC Page 3 of 5 Created On Wed Aug 16 00:11:08 IST 2017 C/SCA/6531/2017 JUDGMENT length.
At the outset it is required to be noted and it is not in dispute that the petitioner was serving as a Havaldar (Head Constable) in the disciplined force of CRPF where the strict rule of discipline is required to be maintained. It is not in dispute that petitioner was sanctioned the leave for the period between 12.05.2014 to 10.06.2014, however thereafter after completion of the leave period he overstayed for 89 days. Neither any application for extension of leave and/or any other application was given by the petitioner justifying the overstay. That an arrest warrant was issued against him and having been served with the arrest warrant, thereafter he reported for duty and thereafter the arrest warrant was canceled on 08.09.2014. After completion of the departmental inquiry and having held the charge and misconduct proved, however considering 20 years' service instead of passing the order of dismissal, he has been compulsorily retired. It is required to be noted that neither there are any allegations of procedural irregularity while holding the departmental inquiry nor there are any allegations of breach of principles of natural justice. Considering the fact that in the year 2013 also he remained unauthorizedly absent for 65 days and even prior thereto 10 times he has remained unauthorizedly absent. Therefore, he was found to be habitual in remaining unauthorizedly absent. Considering the aforesaid facts and circumstances and the fact that he was serving in a disciplined force i.e. CRPF where strict rules of discipline are required to be maintained, thereafter when the order of compulsory retirement has been passed and the same has been confirmed by the Disciplinary Authority as well as the Revisional Authority, the same is not required to be interfered with by this Court in exercise of powers under Article 226 of the Constitution of India. It is required to be noted that as such the Disciplinary Authority itself had taken a sympathetic view by imposing the punishment of compulsory Page 4 of 5 HC-NIC Page 4 of 5 Created On Wed Aug 16 00:11:08 IST 2017 C/SCA/6531/2017 JUDGMENT retirement instead of dismissing the petitioner from service, considering his 20 years' service. As per the catena of decisions of the Hon'ble Supreme Court and this Court unless it is found by the Court that the order of punishment is found to be disproportionate to the charge / misconduct proved and if he is found to be shockingly disproportionate then and then only the Court can interfere with the order of punishment. In the facts and circumstances of the case narrated hereinabove, it cannot be said that the order of compulsory retirement can be said to be shockingly disproportionate, more particularly considering the past conduct of the petitioner. No interference of this Court is called for.
[6.0] In view of the above and for the reasons stated above, present Special Civil Application fails and the same deserves to be dismissed and is, accordingly, dismissed. Notice is discharged.
Sd/ (M.R. SHAH, J.) Sd/ (B.N. KARIA, J.) Ajay Page 5 of 5 HC-NIC Page 5 of 5 Created On Wed Aug 16 00:11:08 IST 2017