Madhya Pradesh High Court
S.K.Gurappa vs The Union Of India And Ors. on 26 September, 2022
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 26th OF SEPTEMBER, 2022
WRIT PETITION (SERVICE) No. 3276 of 2004
Between:-
S.K. GURAPPA S/O SHRI SOMNNA
CONSTABLE/G.D. FORCE
NO.913146642 R/O GRAM AND POST
CHINCHOLI POLICE STATION
AFJALPUR DISTRICT GULBARGA,
KARNATAKA.
........PETITIONER
(BY SHRI AMIT BANSAL - ADVOCATE)
AND
1. UNION OF INDIA THROUGH
SECRETARY, MINISTRY OF
DEFENCE, NEW DELHI.
2. DIRECTORATE GENERAL OF
POLICE CENTRAL RESERVE
POLICE FORCE, CRPF HEAD
QUARTER, LODHI ROAD, NEW
DELHI.
3. DY. INSPECTOR GENERAL OF
POLICE, CRPF BANRASIA,
BHOPAL
4. ADDITIONAL DY. INSPECTOR
GENERAL OF POLICE G.C. CRPF
2
A.B. ROAD PANIHAR GWALIOR
........RESPONDENTS
(SHRI PRAVEEN NEWASKAR - DSG FOR
RESPONDENTS/UOI)
----------------------------------------------------------------------------------------
This petition coming on for hearing this day, the Court passed the
following:
ORDER
This petition under Article 226 of the Constitution of India has been filed seeking following reliefs :
(i) The order Annexure P/1 and P/2 passed by the respondents may kindly be set aside.
(ii) Any other relief for the ends of justice may also be awarded in favour of the petitioner.
2- It is submitted by counsel for petitioner that petitioner was working as Constable/GD in CRPF. At the relevant time, he was posted in Shivpuri. The petitioner is the permanent resident of Gulbarga Karnataka. Since he was suffering from Hepatitis, therefore he was remained under treatment of Resident Medical Officer Gulbarga from 15.11.2002 to 25.11.2003. Earlier, he was under depression psychosis and remained under treatment of psychiatrist Karnataka Institute of Medical Health, Belgaum Road, Dharwad from 02.08.2002 to 26.08.2002. 3- For the aforesaid reasons, the petitioner remained on unauthorized absence from his duty. When the petitioner tried to submit his rejoining, then he was informed that in an ex-parte departmental enquiry, he has 3 been found guilty of desertion and accordingly, he has been dismissed from service. The petitioner preferred an appeal before the appellate authority i.e. respondent No.3 which was dismissed by order dated 15.03.2004 and order of dismissal has been confirmed. It is submitted that since the petitioner was seriously ill, he was admitted in District Hospital Gulbarga from 15.11.2002 to 25.11.2003, therefore, he was unable to attend the duty and was also unable to inform his department about his absence. He was not in a position to participate in departmental enquiry. The petitioner could not avail opportunity of hearing during the said period. The departmental enquiry suffers from bias and prejudices. It is submitted that appellate authority as well as disciplinary authority has not considered illness of petitioner and without perusing the true facts, has erroneously passed the order of dismissal.
4- Per contra, petition is vehemently opposed by counsel for respondents. The respondents have filed their return and submitted that petitioner was posted at Group Center CRPF Shivpuri (Now Gwalior) since 14.07.1999. On 04.11.2002 at about 8:30 hours, the petitioner deserted from lines without any permission and order of the competent authority. Accordingly, a warrant of arrest was issued against petitioner on 08.11.2002 but no communication was received from the petitioner. Neither he was arrested by the civil police nor he surrendered himself. Thereafter, a COI was conducted to enquire into the reasons/circumstances of unauthorized absence of petitioner under Rule 31 (g) of CRPF Rules,1955, and accordingly he was declared as deserted with effect from 04.11.2002 Thereafter, the departmental enquiry was proposed to be initiated against the petitioner on the ground that he has 4 deserted from GC line with effect from 04.11.2022 without any permission of the competent authority. The office memorandum dated 18.03.2003 was sent at the permanent address of the petitioner by a registered post with a request to the petitioner to file his return within 10 days but the petitioner did not participate in the enquiry proceedings. In such a situation, the enquiry officer concluded the enquiry ex-parte. A copy of enquiry report was served on the petitioner by giving a 15 days time to submit reply but the petitioner did not file any reply. Thereafter, petitioner was dismissed from service with effect from 23.10.2003 and desertion period of petitioner from 04.11.2002 to 22.10.2003 was regularized as dies non.
5- Heard learned counsel for the parties. 6- The controversy involved in the present case revolves in a very
narrow compass. The charge against the petitioner is that he had deserted the lines. On the contrary, the case of the petitioner is that he was suffering from mental sickness on 26.08.2002 and was declared fit to resume duty from 05.09.2002. Thereafter, he was suffering from Hepatitis and accordingly, the Resident Medical Officer, District Hospital Gulbarga had given a certificate that he was under treatment for one year. Thus, absence of petitioner from duty is an admitted fact. 7- Now, the only question for consideration is as to whether petitioner has made out a sufficient ground for remaining on unauthorized absence or not.
8- It appears that the petitioner is the resident of Gulbarga (Karnataka) but he was posted in Shivpuri. He deserted the force. The petitioner has filed a medical certificate issued by Karnataka Institute of 5 Mental Health dated 26.08.2002 to show that the petitioner was suffering from depression with psychosis and it was certified that the petitioner shall be fit enough to resume his duty from 05.09.2002. Thereafter, the next certificate was issued on 12.11.2003 to the effect that the petitioner was suffering from Hepatitis and was under medical treatment from 15.11.2002 to 25.11.2003. The petitioner has neither filed the document of the hospital to show that the petitioner was being treated as an indoor or outdoor patient. No prescription has been placed on record. The receipts of medicines have also not been placed on record. The affidavit of the so called treating Doctor has been filed. Thus, it is clear that except the medical certificate which was issued on 12.11.2003, there is nothing on record for the petitioner to show that he was suffering from any health issue. Even if the certificate is considered, then it is clear that petitioner was merely suffering from Hepatitis, and therefore, he could have very well inform his unit with regard to his sickness. Even that was not done. The petitioner never got himself treated in the hospital run by CRPF or in a hospital authorized by CRPF. The certificates issued by the Doctor in the private capacity cannot be considered in absence of supporting documents to show that the petitioner had actually taken the treatment for aforesaid period.
9- Since the petitioner himself has failed to justify the absence and did not participate in enquiry proceedings, therefore, it is clear that no other findings was required in the matter.
10- Once a delinquent officer has admitted his guilt/charges, then the holding of departmental enquiry would be a mere formality. The Supreme Court in the case of Channabasappa Basappa Happali v. State of 6 Mysore reported in (1971) 1 SCC 1 has held as under:-
4. The pleas of the petitioner are quite clear; in fact he admitted all the relevant facts on which the decision could be given against him and therefore it cannot be stated that the enquiry was in breach of any principle of natural justice. At an enquiry facts have to be proved and the person proceeded against must have an opportunity to cross-examine witnesses and to give his own version or explanation about the evidence on which he is charged and to lead his defence. In this case, the facts were two-fold, that he had stayed beyond the sanctioned leave and that he had proceeded on a fast as a demonstration against the action of the authorities and also for what he called the upliftment of the country etc. These facts were undoubtedly admitted by him. His explanation was also there and it had to be taken into account. That explanation is obviously futile, because persons in the police force must be clear about extension of leave before they absent themselves from duty. Indeed this is true of every one of the services, unless of course there are circumstances in which a person is unable to rejoin service, as for example when he is desparately ill or is otherwise reasonably prevented from attending to his duties. This is not the case here.
The petitioner took upon himself the decision as to whether leave could be extended or not and acted upon it. He did go on a fast. His later explanation was that he went on a fast for quite a different reason. The enquiry officer had to go by the reasons given before him. On the whole therefore the admission was one of guilty in so far as the facts on which the enquiry was held and the learned Single Judge in the High Court was, in our opinion, right in so holding.
5. It was contended on the basis of the ruling reported in Regina v. Durham Quarter Sessions Ex-parte Virgo [1952 (2) QBD 1] that on the facts admitted in the present case, a plea of guilty ought not to be entered upon the record and a plea of not guilty entered instead. Under the English law, a plea of guilty has to be 7 unequivocal and the Court must ask the person and if the plea of guilty is qualified the Court must not enter a plea of guilty, but one of not guilty. The police constable here was not on his trial for a criminal offence. It was a departmental enquiry, on facts of which due notice was given to him. He admitted the facts. In fact his counsel argued before us that he admitted the facts but not his guilt. We do not see any distinction between admission of facts and admission of guilt. When he admitted the facts, he was guilty. The facts speak for themselves. It was a clear case of indiscipline and nothing less. If a police officer remains absent without leave and also resorts to fast as a demonstration against the action of the superior officer the indiscipline is fully established. The learned Single Judge in the High Court was right when he laid down that the plea amounted to a plea of guilty on the facts on which the petitioner was charged and we are in full agreement with the observations of the learned Single Judge.
11- The Supreme Court in the case of Dharmarathmakara Raibahadur Arcot Ramaswamy Mudaliar Educational Institution v. Educational Appellate Tribunal reported in (1999) 7 SCC 332 has held as under:-
8. The contention of learned counsel for the respondent is confined that there was no enquiry in terms of Section 6 of the said Act. There is no submission of any defence on merit. Even before us when we granted learned counsel an opportunity to give any prima facie or plausible explanations on record to defend her actions, nothing could be placed before us. Giving of opportunity or an enquiry of course is a check and balance concept that no one's right be taken away without giving him/her opportunity or without enquiry in a given case or where the statute requires. But this cannot be in a case where allegation and charges are admitted and no possible defence is placed before the authority concerned. What enquiry is to be made when one admits violations? When 8 she admitted she did not join M.Phil. course, she did not report back to her duty which is against her condition of leave and contrary to her affidavit which is the charge, what enquiry was to be made? In a case where the facts are almost admitted, the case reveals itself and is apparent on the face of the record, and in spite of opportunity no worthwhile explanation is forthcoming as in the present case, it would not be a fit case to interfere with the termination order.
12- The Supreme Court in the case of Manoj H. Mishra v. Union of India reported in (2013) 6 SCC 313 has held as under:-
34. We have noted in detail the submissions made by Mr Bhushan, though strictly speaking, it was not necessary in view of the categorical admission made by the appellant before the enquiry officer. Having admitted the charges understandably, the appellant only pleaded for reduction in punishment before the High Court. The learned Single Judge has clearly noticed that the counsel for the appellant has only submitted that the punishment is disproportionate to the gravity of the misconduct admitted by the appellant. The prayer made by the appellant before the Division Bench in the letters patent appeal for amendment of the grounds of appeal to incorporate the challenge to the findings of guilt was rejected.
35. In our opinion, the learned Single Judge and the Division Bench have not committed any error in rejecting the submissions made by the learned counsel for the appellant. We are not inclined to examine the issue that the actions of the appellant would not constitute a misconduct under the Rules. In view of the admissions made by the appellant, no evidence was adduced before the enquiry officer by either of the parties. Once the enquiry officer had declined to accept the conditional admissions made by the appellant, it was open to him to deny the charges. But he chose to make an unequivocal admission, instead of reiterating his earlier denial as recorded in preliminary hearing held on 9 26-12-1994. The appellant cannot now be permitted to resile from the admission made before the enquiry officer. The plea to reopen the enquiry has been rejected by the appellate as well as the revisional authority.
Thereafter, it was not even argued before the learned Single Judge. The learned counsel had confined the submission to the quantum of punishment. In letters patent appeal, the Division Bench declined to reopen the issue. In such circumstances, we are not inclined to exercise our extraordinary jurisdiction under Article 136 for reopening the entire issue at this stage. Such power is reserved to enable this Court to prevent grave miscarriage of justice. It is normally not exercised when the High Court has taken a view that is reasonably possible. The appellant has failed to demonstrate any perversity in the decisions rendered by the Single Judge or the Division Bench of the High Court.
13- Considering the case of the petitioner and the defence put forward by him, this Court is of the considered opinion that the findings recorded by the enquiry officer does not require any interference. 14- Furthermore, it is well established principle of law that in a departmental enquiry matter, this Court cannot act as an appellate Court and cannot substitute its own opinion/findings over and above the findings recorded by the enquiry officer. It cannot be said that the findings recorded by the enquiry officer are based on no evidence at all or its findings are perverse.
15- Under these circumstances, this Court is of the considered opinion that no case is made out for interference.
16- The petition fails and is hereby dismissed.
(G.S. AHLUWALIA) JUDGE Aman AMAN TIWARI 2022.09.30 15:01:15 +05'30'