Rajasthan High Court - Jaipur
The Union Of India vs Ct Sajjan Singh on 20 January, 2023
Bench: Pankaj Mithal, Shubha Mehta
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Special Appeal Writ No. 627/2021
1. The Union Of India, Through The Secretary To The Govt.,
Ministry Of Home And Internal Security Affairs, Govt. Of
India, New Delhi.
2. The Inspector General Of Police, Central Reserve Police
Force, (Eastern Range), Kolkata (Wb).
3. The Deputy Inspector General, Central Reserve Police
Force, Bhubaneshwar (Orissa).
4. The Group Commander, Group Center-Ii, Central Reserve
Police Force, Ajmer (Rajasthan).
5. The Commandant, 149 Battalion, Central Reserve Police
Force, Administrative Extension Centre, Jaisagar (Assam)
784665
----Appellants
Versus
Ct Sajjan Singh, Aged About 51 Years, No. 931320264 S/o Shri
Bidya Dhar, R/o Post And Village Togra Kalan Via Doomr Tehsil
Nawalgarh District Jhunjhunu (Rajasthan).
----Respondent
For Appellant(s) : Mr. Anand Sharma
For Respondent(s) : Mr. Satya Bhan Singh
HON'BLE THE CHIEF JUSTICE MR. PANKAJ MITHAL
HON'BLE MRS. JUSTICE SHUBHA MEHTA
Judgment
20/01/2023
1. The State respondents-appellants have preferred this intra court appeal against the judgment and order dated 02.03.2021 passed by Writ Court allowing S.B. Civil Writ Petition No.1206/2010- CT Sajjan Singh Vs. Union of India & Ors. (Downloaded on 11/11/2023 at 03:51:49 PM)
(2 of 7) [SAW-627/2021]
2. The petitioner-respondent was a Constable in the Central Reserve Police Force and was working as Black Commando on deputation with the National Security Guards (NSG). He absented himself from 27.04.2006 to 09.06.2006, 14.06.2006 to 25.06.2006, 14.07.2006 to 01.08.2006 and from 3.08.2006 to 16.11.2006 without prior information and sanction of any leave. He was chargesheeted and upon enquiry was ordered to be removed from service vide order dated 18.09.2007. The said order was confirmed in departmental appeal and the revision against the appellate order was also dismissed.
3. The petitioner-respondent thereafter invoked the writ jurisdiction of the High Court challenging the order of his removal, the appellate order and the revisional order.
4. The writ petition has been allowed by the impugned order observing that the petitioner-respondent had absented himself for a short span and that he had lost his son due to which his wife was suffering from depression. Thus, the Court considers it appropriate to set aside the order of removal more particularly when there is nothing on record to suggest that he had no leave to his credit and that instead of punishment of removal, the authorities could have passed a minor punishment. Accordingly, directions were issued to the authorities to pass a fresh order of punishment rather than removal and dismissal from service and to treat him as reinstated with all consequential pay and allowances.
5. Learned counsel for the respondents-appellants has assailed the above judgment and order on the ground that the Writ Court could not have issued the aforesaid directions without setting (Downloaded on 11/11/2023 at 03:51:49 PM) (3 of 7) [SAW-627/2021] aside any of the orders under challenge or the order of removal passed against the petitioner-respondent. The Court has not recorded any finding that the departmental enquiry conducted against the petitioner-respondent was flawed in any manner or that the punishment of removal imposed upon him is excessive and disproportionate to the misconduct alleged to have been committed by him.
6. Learned counsel for the petitioner-respondent has defended the impugned order by contending that the petitioner-respondent is a very good Officer with excellent performance and that absence of small period is not so serious enough to impose the major punishment of removal. The petitioner-respondent has absented himself only during the year 2006 and that too, on account of the death of his only son and the mental condition of his wife. In the above circumstances, the petitioner-respondent could not have been inflicted with such a grave punishment of removal from service and that some minor punishment would have suffice the purpose.
7. The record reveals that the petitioner-respondent had remained absent from duty for the period mentioned above. The absence in duty is initially for a period of about six weeks and then twice for two week and finally for three months. The aforesaid absence from duty indicates that he is habitual offender and had remained absent from duties at least for the 4 times in the year, 2006. On account of the unauthorized absence of the duty without leave and prior information, a departmental enquiry was conducted against him and that the petitioner in writing submitted (Downloaded on 11/11/2023 at 03:51:49 PM) (4 of 7) [SAW-627/2021] that he has no explanation to furnish and he admits for staying on leave without permission. In the circumstances, the misconduct against him stood proved. This apart, the Writ Court has not pointed out any lacuna or flaw in holding the said enquiry and submitting a report holding him to be guilty.
8. Learned counsel for the petitioner-respondent has also not been able to demonstrate any discrepancy in the enquiry so conducted. His only thrust of the argument is that it was on account of the death of his only son and the illness of his wife that he had to remain absent/leave and such absence is liable to be condoned. More particularly, when he has been allowed to re-join meaning thereby, that the absence stood regularized.
9. The argument may appears to be attractive in the first blush but upon deeper scrutiny has no legs to stand. The respondents- appellants may have allowed him to resume duties after remaining absent which may give an impression that his absence stood regularized but it does not mean that the respondents-appellants have exonerated him from his misconduct of remaining absent from duty without leave and prior information. It has to be remembered that the petitioner-respondent was a member of a disciplined force who could not have afforded to go on leave in such a manner.
10. A three Judges Bench of the Supreme Court in the case of Central Industrial Security Force & Ors. Vs. Abrar Ali, (2017) 4 SCC 507, in dealing with a matter relating to misconduct, the disciplinary enquiry and infliction of punishment upon a Constable in Central Industrial Security Force held that in (Downloaded on 11/11/2023 at 03:51:49 PM) (5 of 7) [SAW-627/2021] such matters re-appreciation of evidence is not permissible so as to interfere with the findings of the disciplinary authority. Secondly, deserting the force for a period of 5 days was held to be an act of misconduct. The infliction of punishment in such circumstances was held to be imperative and the punishment of dismissal from service was modified to compulsory retirement. It was also held that the punishment of dismissal was excessive and harsh but modification of it to compulsory retirement would not entitle him of payment of salary and allowances.
11. In Union of India & Ors. Vs. Datta Linga Toshatwad, (2005) 13 SCC 709, the Supreme Court observed that absenteeism of a duty of a member of armed forces is a gross misconduct and if such indiscipline is allowed to go unpunished, it will affect the discipline of the armed forces. In cases of such nature, dismissal from the Force is a justifiable disciplinary action and cannot be described as disproportionate to the alleged misconduct. It was also stated that in exercise of judicial review even where punishment is found to be disproportionate to the misconduct alleged, the High Court should remit the matter to the disciplinary authority to reconsider the punishment inflicted.
12. The view taken by us in earlier paragraphs finds support from the decision of the Supreme Court in the case of Om Prakash Vs. State of Punjab & Ors. (2011) 14 SCC 682. The said case was also a case of unauthorized absence from duty resulting in proved misconduct. The Court held that even if the period of absence was regularized that is only for the purposes of maintaining the correct service record and adjustment of leave (Downloaded on 11/11/2023 at 03:51:49 PM) (6 of 7) [SAW-627/2021] due to the delinquent officer but it does not take to mean to condone the absence/misconduct. If looked into in the light of the aforesaid authorities, as there was no discrepancy in holding the enquiry and no explanation was put-forth by the petitioner- respondent either before the Enquiry Officer, or the appellate, or the revisional authority that he had absented himself on account of the death of his only son and ailment of his wife, the Writ Court was not justified in holding that the case of the petitioner- respondent was akin to the case of Veerndra Kumar Dubey Vs. Chief of Army Staff & Ors., (2016) 2 SCC 627. The Writ Court further erred in giving credit to the petitioner-respondent of the leave alleged to be due to him when adjustment of the said leave would have been for the purposes of putting the service record straight rather than for condoning the misconduct of the petitioner-respondent. The Court further committed an error of law in holding that overstaying on leave required imposition of a minor punishment and not of removal or dismissal from service when no finding was recorded that the punishment imposed was excessive and disproportionate to the misconduct alleged.
13. The Writ Court also went wrong in directing for treating the petitioner-respondent to be reinstated with all consequential pay and allowances. It is settled law that where the Court is of the opinion that the punishment inflicted is disproportionate to the misconduct alleged, the Court should remit the matter to the disciplinary authority to reconsider the nature and quantum of punishment to be imposed upon the delinquent, but it is not the job of the Court to direct for the reinstatement of an employee (Downloaded on 11/11/2023 at 03:51:49 PM) (7 of 7) [SAW-627/2021] who has been found guilty of misconduct in a departmental enquiry and upon whom a major punishment of removal has been imposed without recording a finding that the punishment was excessive which hurts the conscience of the Court and that the enquiry was not proper and in accordance with law.
14. In view of the aforesaid facts and circumstances, we are of the opinion that the impugned judgment and order dated 02.03.2021 allowing the writ petition cannot be sustained in law. Accordingly, it is set aside with liberty to the petitioner-respondent to represent to the competent authority to revisit the order of punishment.
15. In case any such representation is moved within a period of one month from today, the authority concerned is directed to consider it and review the punishment imposed, if necessary, in the light of the various pronouncements of the Apex Court on the subject.
16. The appeal is allowed.
(SHUBHA MEHTA),J (PANKAJ MITHAL),CJ
NAVAL KISHOR/15
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