Gauhati High Court
Rabin Chandra Bhuyan vs Union Of India (Uoi) And Ors. on 13 November, 2003
Equivalent citations: (2004)2GLR619
Author: Ranjan Gogoi
Bench: Ranjan Gogoi
JUDGMENT Ranjan Gogoi, J.
1. At the relevant point of time, the writ petitioner was employed as a Constable Driver and was posted at Group Centre, S.S.B. Tezu, Arunachal Pradesh. The petitioner was on Earned Leave for a period of 60 (sixty) days with effect from 20.11.1995 to 18.1.1996 and as he had not resumed his duties thereafter, a charge sheet dated 6th April, 1996 was issued to the petitioner proposing an enquiry in respect of two charges levelled by the charge sheet dated 6.4.1996. The essence of the two charges brought against the petitioner is that on the expiry of Earned Leave on 18.1.1996, the petitioner overstayed without any leave or permission from the competent authority and till the date of charge sheet, i.e., 6.4.1996, he had not resumed duties. The second charged against the petitioner is that though the petitioner had not resumed duties on the expiry of his leave, he had retained the Government kits allotted to him as well as the Identity Card which also amounted to misconduct. Along with the charge memo, a list of documents on the basis of which the charges were sought to be proved as well as a list of the witnesses proposed to be examined were enclosed. The petitioner does not deny receipt of the aforesaid charge sheet and admits that in response thereto, he submitted a reply to the effect that he could not resume duties on the expiry of his leave due to pressing domestic problems and as his domestic problems were persisting, the petitioner offered to resign from service. The petitioner in the aforesaid letter also agreed to deposit the Government kits allotted to him as well as the Identify Card in due course. The reply of the petitioner, as aforesaid, was however, unsigned and undated. The matter could have perhaps ended there but it did not as the disciplinary authority appointed an Enquiry Officer to enquire into the charges levelled against the writ petitioner. The Enquiry Officer after taking cognizance of the subject-matter of enquiry assigned to him, issued several notices informing the petitioner of the date(s) of the proposed enquiry and requiring his presence in the enquiry. The petitioner contends that none of the aforesaid notices were served on him and he had no knowledge of the date(s) of the enquiry. The enquiry proceedings, were thereafter, held ex parte and at the conclusion thereof, the Enquiry Officer by his reports dated 21.6.1996 and 23.9.1996 held both the charges against the writ petitioner to have been established. A copy of the report of enquiry along with the show cause notice proposing the penalty of removal from service was issued to the petitioner on 21.11.1996 and though the petitioner received the said documents, he did not respond whereafter, by the final order dated 10th December, 1996, the penalty of removal from service was imposed on the petitioner. After several abortive attempts to have the order of removal from service recalled and rectified, the instant approach to this Court has been made challenging the aforesaid final order dated 10.12.1996 imposing the penalty of removal from service. In the meantime, in a Court of Enquiry instituted under Rule 31 of the Central Reserve Police Force Rules, by order date 26.3.1996, the petitioner has been declared as deserter with effect from 19th January, 1996.
2. Mr A.B. Choudhury, learned counsel appearing on behalf of the writ petitioner, in support of the challenge made in the present writ application, has submitted that the very initiation of the proceeding against the writ petitioner must be held by this Court to be ab initio void inasmuch as the petitioner was not given an opportunity to file a written statement denying the charges levelled against him and without affording the said opportunity to the writ petitioner, the disciplinary authority has straightaway proceeded to hold an enquiry. Learned counsel has sought to persuade the Court to find fault Court with the conduct of the disciplinary proceeding held ex parte, by contending that as the petitioner had no notice of the said proceeding, he was not in a position to place before the enquiry authority, the grounds and reasons for which he was unable to resume duties after the expiry of his Earned Leave. The holding of the enquiry proceeding ex parte without notice being served on the petitioner is contended to be a gross violation of the provisions of the CRPF Rules and the principles of natural justice. Learned counsel has also pressed into service a further submission that having regard to the facts and circumstances on account of which the petitioner was unable to resume his duties, the punishment of removal from service is harsh and disproportionate and, therefore, would be amenable to correction at the hands of the writ Court.
3. Controverting the submissions advanced on behalf of the writ petitioner, Mr. C. Choudhury, learned Central Govt. Standing Counsel has submitted that the materials on record would go to demonstrate that the repeated notices of the enquiry were issued to the petitioner by registered post. Yet, the petitioner did not participate in the enquiry. As notices were sent by registered post, the petitioner must be deemed to have received such notices, it is argued. It is the further submission of the learned CGSC that in any event, the report of enquiry and the findings recorded, therein are based on the materials adduced in the course of the enquiry. The petitioner was given a further opportunity, at a subsequent stage, to contest the findings of enquiry as well as the proposed punishment which opportunity, in spite of due service of notice, was not availed of by the writ petitioner. Learned CGSC has further contended that the final order in the case having been passed by the disciplinary authority on 10.12.1996, the present writ petition filed in July 1999 is a belated approach to this Court. On the aforesaid broad basis, learned CGSC has submitted that there would be no occasion for this Court to cause any interference with the order passed by the authority.
4. The essence of the charges levelled against the writ petitioner, as already noticed, is one relating to his unauthorized absence. While according to the disciplinary authority, the writ petitioner did not show any justifiable ground for his failure to resume duties after expiry of the leave period, thereby rendering his absence unauthorized, the writ petitioner contends that he was prevented from doing so by good and sufficient reasons which were beyond his control. The correctness of the stand advanced by the writ petitioner is a matter which ought to have been decided in the enquiry proceeding upon due consideration of such materials and evidence that could have been brought by the writ petitioner in his defence. As noticed above, the enquiry proceedings were held ex parte and, therefore, the petitioner did not have an opportunity to adduce any evidence and materials in his defence. This is precisely why, time and again, the judicial verdict has laid repeated emphasis on the necessity of providing a delinquent with all. opportunities to defend himself. Though elaborate arguments have been advanced by the learned counsels for the parties for and against their respective stand taken, the writ Court would not convert itself into a fact finding forum and to embark upon the exercise to determine the tenability of either of the versions. This is a task assigned to the Enquiry Officer and, therefore, the validity of the ex parte enquiry held against the petitioner is the crucial aspect of the case to which this Court has to turn now.
5. The elaborate materials on record which have been perused by the Court do not indicate that though, notices were sent by registered post to the writ petitioner, the same were duly served. Learned CGSC has not able to place before the Court any material to show that the notices of the enquiry were served on the petitioner and that in spite of such service, the petitioner did not participate in the enquiry. Learned CGSC, however, has urged that as notices had been sent to the petitioner by registered post, a presumption must be drawn by the Court regarding proper service. This Court would hesitate to drawn any such presumption in the absence of any enabling provisions in the Rules similar to those contained in Order 5, Rule 19 of the Code of Civil Procedure. The presumption permissible under the Code of Civil Procedure is in respect of notices issued in connection with a Court proceeding and no extension thereof would be permissible in respect of notices issued in a disciplinary proceedings. In view of the law laid down by the Apex Court in the case of Union of India and Ors. v. Dinanath Shantaram Karekar and Ors., reported in AIR 1998 SC 2722 that in a disciplinary proceeding "the documents sent by registered post can be treated to have been served only when it is established that it was tendered addressee", this Court will have no hesitation in holding that the ex parte enquiry held against the petitioner does not conform to the requirement of the principles of natural justice and the petitioner was deprived of and opportunity to contest the proceeding initiated against him. Having reached the aforesaid conclusion, no other aspect of the case need be considered, as the denial of fair opportunity to the petitioner would go to the root of the matter and vitiate the proceeding as a whole including the report of enquiry and the final order dated 10.12.1996 passed on that basis.
6. The above conclusion reached by the Court will require the Court to appropriately interfere with the final order dated 10.12.1996 which is, before, being set aside by the present order. The next question is one of consequential relief that the petitioner would be entitled to. Naturally, as the impugned order dated 10.12.1996 is being set aside, the petitioner must be re-instead in service and must be deemed to be in service all along. The entitlement of back wages of the petitioner would, however, stand on a different footing. The grant of back wages always lies in the discretion of the Court which has to be exercised on a consideration of the totality of the fact and circumstances of a case. In the present case, as the petitioner is yet to exonerate himself from the charges levelled against him, I do not consider it appropriate to direct payment of any, back wages to the petitioner, of this stage. It must be made clear that notwithstanding the directions passed above if the disciplinary authority is of the view that the enquiry held against the petitioner in respect of the charges should be held afresh, the respondent authorities will be at liberty to do so subject to the condition that any such do novo proceeding, if initiated against the petitioner, will be brought to its logical conclusion at the earliest and without any delay.
7. The writ petition stands allowed to the extent indicated above.