Delhi High Court
Sanjeev Chaudhry vs Director General, Indo Tibetan Border ... on 17 August, 2015
Author: Deepa Sharma
Bench: S. Ravindra Bhat, Deepa Sharma
$~9
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 7765/2014
% Date of decision: 17.08.2015
SANJEEV CHAUDHRY ..... Petitioner
Through: Mr.Srieenivas K., Advocate
versus
DIRECTOR GENERAL, INDO TIBETAN BORDER POLICE
FORCE & ORS. ..... Respondents
Through: Mr. Rishi Kapoor, proxy for Mr.Arun
Bhardwaj, Advocate for R-1 & R-2.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MS. JUSTICE DEEPA SHARMA
MS. JUSTICE DEEPA SHARMA (OPEN COURT)
1. Aggrieved by the order of his dismissal from service, the petitioner, a
Head Constable/GD in ITBP (who overstayed his leave) has invoked the
jurisdiction of this court challenging the said order on the grounds that it was
passed without affording any opportunity to him and that the overstay was
not wilful and that the authorities had failed to consider his compelling
family circumstances including the illness of his mother of which she died
on 17.04.2013 while imposing the penalty of dismissal. Reliance is also
placed on Krushnakant B. Paramar vs.Union of India 2012 (3) SCC 178.
W.P.(C) 7765/2014 Page 1
2. The brief facts relevant for the purpose of disposal of the writ petition
are that the petitioner had proceeded on sanctioned leave from 26.10.2012 to
27.12.2012 but had overstayed without any intimation/information and was
dismissed from service on 01.04.2013 after a Court of Inquiry. The
contention of the petitioner is that he had reported for duty on 23.05.2013,
but was denied. He thereafter gave a legal notice dated 29.09.2013 and filed
W.P.(C) 5688/2013 which was disposed of with certain directions to the
respondents. On failure of the respondents to comply with all those
directions, a Contempt Case (Civil) No.8181/2013 was filed and it was then
that the copy of the ex-parte departmental proceedings were supplied to him.
He approached the appellate authority i.e. Deputy Inspector General, SHQ
(Barreilly), ITBP, under Rule-28 of ITBP Rules, 1994 and his appeal was
dismissed vide order dated 19.03.2014 on the ground of delay. Petitioner
then filed revision petition dated 09.04.2014 against the order of the
appellate authority. He again approached this court in W.P.(C) 4426/2014
and the said writ was disposed of with a direction to the respondents to
decide the Revision Petition dated 09.04.2014 by a reasoned order. The
revision petition was finally dismissed by the Revisional Authority vide
impugned order dated 21.08.2014.
W.P.(C) 7765/2014 Page 2
3. The contention of the respondent is that when the petitioner
overstayed his sanctioned leave of 60 days and did not report for duty, two
letters dated 04.01.2013 and 11.02.2013 were sent by registered post at the
address of his home town, asking him to report for duty, but he failed to
honour the letters. An apprehension roll was issued. A Court of Inquiry
was ordered under Section 74 of Indo-Tibetan Border Police Force Act,
1992 (hereinafter referred to as 'the ITBP Act') to enquire into the
circumstances of his absence from leave without permission/leave from
competent authority. On the basis of the Court of Inquiry, he was declared a
deserter, copy of which was sent to the petitioner at the address given by
him in his leave application. Thereafter, a Show Cause Notice was issued
and sent by registered post and also published in the newspaper in
circulation in the area where the petitioner was residing during his leave
period (the address was disclosed by him in his leave application). When no
communication/explanation was received from the petitioner, he was
dismissed from service under Rule 17 and 20 of ITBP Rules, 1994. Copy of
dismissal order was also sent by registered post at his given address. It is
also urged that earlier on five occasions (details of which are given in the
impugned order dated 21.08.2014) he had overstayed his leave period for
W.P.(C) 7765/2014 Page 3
which he was suitably punished and since it was his sixth misconduct of the
same nature, the penalty of dismissal from service was imposed.
4. On hearing the rival contentions and considering the record it is clear
that the plea of petitioner of denial of opportunity of being heard during the
Court of Inquiry is of no consequence in view of the facts that the
respondents had done their best to communicate with the petitioner but
could not succeed. All the letters were sent at the address supplied by the
petitioner himself in the leave application i.e. Village Khedi Sundiyana,
P.O.Sisoli, Tehsil-Budhana, Distt-Muzaffar Nagar (Uttar Pradesh). It is the
case of the petitioner that he was not residing at that address but was living
at Railpaar, Gali No.11, in front of Punjab Colony, Shaamli (Uttar Pradesh)
during his leave period. In that case it was the duty of the petitioner to
inform his office of the change of his address. It was also his duty to seek
permission/apply for extension of his leaves. He had failed to discharge
both his duties. He had subsequently in his appeal and revision had
explained the reasons of his overstay, which authorities did not find
satisfactory.
5. The learned counsel for the petitioner has urged that in view of the
findings of the Supreme Court in Krushanakant B. Paramar's case (supra),
W.P.(C) 7765/2014 Page 4
the respondents were bound to return a finding that the absence of the
petitioner from leave was wilful and since no such findings have been given,
the dismissal order is liable to be set aside. Learned counsel for the
respondent has submitted that the dismissal order cannot be set aside on this
ground alone and that the facts of this case differ from the facts in
Krushanakant B. Paramar's case (supra).
6. The findings of the Supreme Court in Krushanakant B.Paramar's
case (supra) has been discussed and distinguished in Chennai Metropolitan
Water Supply and Sewerage Board and Others vs. T. T. Murali Babu
(2014) 4 SCC 108. In this case the respondent who was a Junior Engineer,
had remained absent from duty without any intimation from 28.08.1995 and
did not respond to the letters/reminders issued to him asking him to report
for duties and to explain his unauthorized absence from duty. He only
reported on 01.04.1997 with a medical certificate. He was issued a charge-
sheet on 11.09.1996 for failing to submit any explanation to the several
reminders and notices sent to him and secondly that he deserted his post
while remaining unauthorizedly absent from duty. He subsequently was
dismissed and he challenged his dismissal. The learned Single Judge
returned the findings in favour of the respondent and ordered for
W.P.(C) 7765/2014 Page 5
reinstatement of the respondent. In appeal, the division bench of the High
Court had accepted the conclusion of the learned Single Judge. The order of
the Division Bench was challenged before the Supreme Court. The
respondent had relied on the findings of Krushanakant B. Paramar's case
(supra). The Supreme Court has dealt with the case as under:
21. Learned Counsel for the Respondent has commended us
to the decision in Krushnakant B. Parmar v. Union of
India and Anr. : (2012) 3 SCC 178 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 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
W.P.(C) 7765/2014 Page 6
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.
22. 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
W.P.(C) 7765/2014 Page 7
absence is willful even if the employee fails to show the
compelling circumstances to remain absent.
7. In the light of these findings of the Supreme Court, we find no merit
in the arguments of learned counsel for the petitioner.
8. Learned counsel for the petitioner has further argued that the overstay
was due to the compelling circumstances which include the prolonged
illness of his mother. He sought leave also due to illness of his mother who
was suffering with Carcinoma Lung Left Side (Post CT-RT), Hepatic
Metasis, Chronic Cough from which she could not recover and her condition
continued to deteriorate, and so petitioner had to stay to take care of her and
finally he lost her on 17.04.2013 and after completing all the other post
death ceremonies of his mother, he reported for duty. It is submitted that the
punishment of dismissal from service is unduly harsh. Learned counsel for
the respondents had submitted that the petitioner belongs to a force wherein
it is necessary to maintain a high standard of discipline among its cadre and
that is why in view of the repeated misconduct of the petitioner (five times
previously) this time he was dismissed from service.
9. There is no doubt that the petitioner belongs to a force of which
discipline is the backbone. However, one should not forget the fact that
these personnel work in formidable terrains and most of the times remain
W.P.(C) 7765/2014 Page 8
away from their families for long periods. They mostly come from the
villages and their wives are generally uneducated and homely and the wives
as well as old parents are totally dependent on them. On leave when they
reach home, have to complete all the tasks ranging from showing old parents
to good hospitals, to repair of house, to taking care of children's education
including their school admission etc. within that limited period of leave
which a civilian living with his family discharges on day to day basis. The
personnel of such services therefore are required to be dealt with
compassion and understanding. It is necessary that while maintaining the
discipline in the cadre, the difficulties of an individual personnel be
understood with an open mind and a human approach be adopted. It is
apparent from the record that petitioner had sought leave due to the ill health
of his mother. The fact that she could not recover and ultimately succumbed
to her illness on 17.04.2013 certifies that the leaves were sought for a
genuine reason, which continued even after the expiry of period of
sanctioned leave. There is no doubt that his absence from duty beyond the
period of sanctioned leave is an unauthorized absence but the nature of
punishment depends on various factors. The Supreme Court has so held in
State of Punjab vs. Dr. P .L. Singla (2008) 8 SCC 469 as under:
W.P.(C) 7765/2014 Page 9
"10. Where the employee who is unauthorisedly absent
does not report back to duty and offer any satisfactory
explanation, or where the explanation offered by the
employee is not satisfactory, the employer will take recourse
to disciplinary action in regard to the unauthorized
absence. Such disciplinary proceedings may lead to
imposition of punishment ranging from a major penalty like
dismissal or removal from service to a minor penalty like
withholding of increments without cumulative effect. The
extent of penalty will depend upon the nature of service, the
position held by the employee, the period of absence and the
cause/explanation for the absence ... ...."
10. It is a well settled proposition of law that where the disciplinary
authority has the discretion to quantify punishment on a proven charge, such
discretionary power is open to judicial review (Chairman-cum-Managing
Director, Coal India Limited and Anr. Vs. Mukul Kumar Choudhuri and
Ors., (2009) 15 SCC 620).
11. There is no doubt that on earlier five occasions (when petitioner had
overstayed his leave), the respondent had been very considerate in imposing
penalty for his misconduct. We are of the opinion that this time also, given
the reasons for overstay which of course were beyond the petitioner's
control, the imposition of extreme form of penalty of dismissal, is definitely
disproportionate.
12. For the reasons discussed above, the petition has to succeed in part.
The impugned order whereby the petitioner was declared a deserter is
W.P.(C) 7765/2014 Page 10
hereby quashed. We are of the opinion that the penalty of dismissal
imposed upon the petitioner be substituted and should be one of reduction to
the induction level of the pay scale/initial stage of pay enjoyed by him as
Head Constable. However, the period of service spent by him in the cadre
of Head Constable shall be taken into consideration for all other
consequential benefits.
13. The writ petition is partly allowed in the above terms.
DEEPA SHARMA, J.
S. RAVINDRA BHAT, J.
AUGUST 17, 2015 rb W.P.(C) 7765/2014 Page 11