At, High Court of Judicature at Madras
By, THE HONOURABLE MR. JUSTICE S. NAGAMUTHU
For the Petitioner : M. Md. Ibrahim Ali, Advocate. For the Respondents: V. Balamurugan, Advocate.
(Prayer : Writ Petition filed under Article 226 of the Constitution of India praying for a Writ of Certiorarified Mandamus, calling for the records relating to the office Order No.V.P. VIII-2/2000-42-EC-II, dated 12.7.2000 passed by the 1st Respondent herein and quash the same and to direct the Respondent to take the Petitioner into the strength of the C.R.P.F. as Const. Dvr. With all monetary benefits.
1. The Petitioner was recruited as a Central Reserve Police Constable in the Central Reserve Police Force at Avadi Group Centre on 6.12.1992. It is attached to 42nd Battalion. The 42nd Battalion was deployed at Arunachal Pradesh, Jammu and Kashmir initially. Finally in the year 1999, the said Battalion was moved to New Delhi. While the Petitioner was deployed in New Delhi in the Battalion, he was granted leave for 15 days from 4.10.1999 and he was to return back to duty on 22.10.1999. But he did not so turn up. Instead, he turned up for duty on 17.1.2009 i.e. after an unauthorized absence for a period of 87 days. He was allowed to join duty. Thereafter, a charge memorandum was issued to him on 29.1.2000 under Section 11(1) of the Central Reserve Police Force Act (hereinafter called as ?the Act?). According to the charge, the unauthorized absence on the part of the Petitioner amounts to misconduct in terms of Section 11(1) of the Act for which he is liable for imposition of major penalty. The Petitioner, however did not raise any objections to the charge. An enquiry was therefore ordered. The Petitioner appeared before the Enquiry Officer. During enquiry 3 witnesses were examined by the Enquiry Officer. When the Petitioner was asked as to whether he pleads guilty under the charge, he tacitly admitted the same. Based on the same, a report was submitted holding that the charge has been proved. Subsequently, a copy of the report of the Enquiry Officer was forwarded to the Petitioner along with the 2nd show cause notice for which also, the Petitioner did not submit any reply. Finally, accepting the Enquiry Officer?s report, the 1st Respondent by his proceedings in No.P.VIII-2
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2000-42-EC-II, dated 12.7.2000, imposed a punishment of dismissal from service with effect from 12.7.2000. Challenging the same, the Petitioner is before this Court with this Writ Petition.2. According to the Petitioner, his absence for 87 days cannot be treated as wilful. As a matter of fact, according to him, he fell seriously ill and so he was unable to report for duty on 23.10.1999. He would further state that on 17.1.2000, when he reported for duty, he produced medical records to show that he was unwell on all these days. It was only accepting the said medical records, he was allowed to join duty. He would further contend that the said medical records were not subsequently considered during the enquiry by the Enquiry Officer. He would also contend that the medical records produced by him earlier were not considered by the Enquiry Officer as well as the Disciplinary Authority. He would also contend that his admission before the Enquiry Officer cannot be treated as admission of guilt under the charge, instead, it should be treated as only an admission of fact that he was absent for 87 days. But, according to the learned Counsel for the Petitioner, erroneously, the said admission of facts by the Petitioner before the Enquiry Officer has been misconstrued as an admission of guilt under the charge itself. Thus, according to the Petitioner, the findings of the Enquiry Officer and the ultimate punishment imposed upon him by the 1st Respondent are not at all sustainable. He would further add that if any enquiry is ordered afresh at this stage, it would be again prejudicial to him due to lapse of time.3. The learned Counsel for the Petitioner, reiterating the first ground raised in the Memorandum of Grounds would vehemently submit that even assuming that the Petitioner is guilty under the charge, still dismissal from service is highly disproportionate to the gravity of the misconduct. He would further add that the same is shockingly disproportionate and therefore, this Court may impose appropriate punishment, instead of, dismissal from service. In this regard, the learned Counsel has relied on few judgments of the Honourable Supreme Court about which I would make reference at the appropriate place. 4. In the counter filed by the Respondents, it is contended that the Petitioner was wilfully absent for 87 days. It is further contended that the medical records, which are now produced before this Court for inspection, have been created for the purpose of this case. It is further pointed out in the counter that at no juncture, the Petitioner denied the charge by filing any memo or objection. On receipt of the charge, the Petitioner did not file any objection; during enquiry, he did not arise any objection regarding the charge and even after receiving the 2nd show cause notice along with the Enquiry Report, the Petitioner did not raise any objection. The learned Counsel pointed out that instead, the Petitioner admitted his guilt before the Enquiry Officer. The learned Counsel would take me through the proceedings of the Enquiry Officer. The original records produced before this Court for inspection would go to show that for a specific query made by the Enquiry Officer as to whether the Petitioner pleaded guilty under the charge, the Petitioner has tacitly admitted the same. Referring to the said admission made by the Petitioner coupled with the failure to raise any objection at any stage, the learned Counsel would submit that the charge has been proved against the Petitioner and therefore, the same was rightly accepted by the disciplinary Authority. It is further pointed out by the learned Counsel for the Respondents that the punishment imposed by the Respondent can never be construed as disproportionate. He would point out that Central Reserve Police is a Disciplined Force constituted for a very specific purpose to protect the internal security of the nation. In this Disciplined Force, unauthorized absence for such a long time, namely, for 87 days cannot be tolerated and lightly viewed. The learned Counsel would further contend that because of the above gravity of the charge, the 1st Respondent thought it fit and appropriate to impose the punishment of dismissal from service. The learned Counsel would submit that the said quantum of punishment cannot be found fault with in any manner. The learned Counsel would further try to distinguish the judgments relied on by the learned Counsel for the Petitioner on facts so as to submit that the principles stated in the said judgments have no application to the present case. Regarding the said submissions of the learned Counsel for the Respondents, I would elaborately deal with hereunder. 5. I have heard the learned Counsel appearing for the Petitioner and the learned Counsel appearing for the Respondents and I have also had the benefit of going through the entire file pertaining to the impugned order.6. Indisputably, the Petitioner overstayed for a period of 87 days. The question is whether the absence was out of bad health or it was willful. In order to substantiate the said contention that he was suffering from bad health and therefore, he could not turn up for duty on 23.10.1999, the Petitioner has now produced before this Court some Medical Certificates obtained from the local doctors. In my considered opinion, the said certificates cannot be accepted at this length of time. From the perusal of the records, it is crystal clear that no such certificate was produced either on 17.1.2000 when he turned up for duty or during enquiry by the Enquiry Officer or at least before the Disciplinary Authority. Therefore, I am not prepared to accept the contention of the Petitioner that he did not turn up for duty only due to bad health. The Medical Certificates produced before this Court to support the said contention are only to be rejected. As rightly pointed out by the learned Counsel for the Respondents after receipt of the charge memo, the Petitioner did not file any written explanation. Had it been true that the Petitioner was suffering from bad health and that was the reason why he turned up for duty only on 23.10.1999, nothing would have prevented the Petitioner from stating the same by submitting an appropriate explanation before the Disciplinary Authority. Curiously, before the Enquiry Officer also, he did not produce any such Medical Certificate nor had he submitted any written explanation in this regard. To the contrary, to a very specific question put to him by the Enquiry Officer as to whether he pleaded guilty under the charge, he had answered in the affirmative. Even for that question, he did not offer any explanation regarding the cause for his absence. After service of the 2nd charge memo along with the Enquiry Officer?s report also, he did not make any such explanation in writing along with the medical records. Therefore, I have no option to hold that the Enquiry Officer was right in holding that the Petitioner had no explanation to offer. Thus, the Enquiry Officer rightly had held that, the Petitioner was guilty under the charge. In this regard, the learned Counsel for the Petitioner would rely on a judgment of this Court in V. Paraman v. The Commandant, 65 Bn. Central Reserve Police Force, Shillong, Meghalaya, W.P. No.1384 of 2003 dated 16.9.2009, wherein a learned Judge of this Court in paragraph No.19 has stated as follows:?19. Admittedly, it appears that the Enquiry Officer, Disciplinary Authority and the Appellate Authority misunderstood the purport of the admission made by the Petitioner. In response to a question by the Enquiry Officer as to whether he admitted to be guilty of overstayal of leave, the Petitioner said yes. But it was qualified with the previous and subsequent statements that the was unwell and was receiving treatment in a Government Hospital and that he had sent telegrams. Therefore, it was not actually an admission of guilt, in the sense in which it could be understood.?Relying on this, the learned Counsel would submit that the admission made by the petitioner before the Enquiry Officer cannot be treated as admission of guilt.7. In my considered opinion, the said contention is only liable to be rejected. What has been stated by the learned Judge in Paragraph No.19 is based on the facts and circumstances of that case. But, in this case, a perusal of the original records would go to show that it was not an one line question asked by the Enquiry Officer as to whether he pleaded guilty or not, instead, it was an elaborate question giving all the details. Having fully understood the facts, the nature of the charge and all the other consequences, the Petitioner had pleaded guilty before the Enquiry Officer. Therefore, the judgment relied on by the learned Counsel for the Petitioner will not come to the help of the Petitioner.8. In view of all the above, I hold that the finding of the Enquiry Officer that the Petitioner is guilty under the charge which came to be accepted by the 1st Respondent cannot be found fault with.9. Now in respect of the quantum of punishment imposed on the Petitioner, as I have already stated, it is the contention of the Petitioner that the punishment of dismissal from service is disproportionate to the gravity of the misconduct. In this regard, the learned Counsel for the Petitioner has relied upon a judgment of the Honourable Supreme Court in Arya v. Commissioner of Police, Delhi and ors., 2004 RD-SC 170 (16 March 2004) wherein, the Honourable Supreme Court in a similar situation has held as follows:?The order dated 16.01.1995 passed by the Respondents was produced by the Respondents themselves in their reply to C.W.P. before the High Court of Delhi that they had sanctioned leave without pay for the period from 7.10.1994 to 5.12.1994, the period of alleged unauthorised absence. The High Court has failed to appreciate and evaluate this aspect of the matter. The High Court also did not appreciate that after issuing sanction for leave for the period in question, the employee?s legitimate expectation would be that no stern action would be taken against him with respect to the alleged act of misconduct which by no stretch of imagination can be considered act of gross misconduct or continued misconduct indicating incorrigibility and complete unfitness for police service. It is not the case of the Respondents that the Appellant is a habitual absentee. He had to proceed on leave under compulsion because of his grave condition of health and, therefore, the punishment of removal from service is excessive and disproportionate. We are of the view that the punishment of dismissal/removal from service can be awarded only for the acts of grave nature or as cumulative effect of continued misconduct proving incorrigibility of complete unfitness for police service. Merely one incident of absence and that too because of bad health and valid and justified grounds/reasons cannot become basis for awarding such a punishment. We are, therefore, of the opinion that the decision of the disciplinary authority inflicting a penalty of removal service is ultra vires of Rule 8(a) and 10 of the Delhi Police (Punishment & Appeals) Rules, 1980 and is liable to be set aside. The Appellant also does not have any other source of income and will not get any other job at his age any other source of income and will not get any other job at his age and the stigma attached to him on account of the impugned punishment. As a result of not only he but his entire family totally dependant on him will be forced to starve. These are the mitigating circumstances which warrant that the punishment/order of the Disciplinary Authority is to be set aside.? 10. The learned Counsel has nextly relied on yet another judgment of the Honourable Supreme Court in Chairman-cum-Managing Director, Coal India Limited and another v. Mukul Kumar Choudhuri and Others, 2009 (15) SCC 620, wherein in paragraph Nos. 19, 20, 21 and 22, the Honourable Supreme Court has held as follows:?19. The Doctrine of Proportionality is, thus, well-recognized concept of judicial review in our jurisprudence. What is otherwise within the discretionary domain and sole power of the decision-maker to quantify punishment once the charge of misconduct stands proved, such discretionary power is exposed to judicial intervention if exercised in a manner which is out of proportion to the fault. Award of punishment which is grossly in excess to the allegations cannot claim immunity and remains open for interference under limited scope of judicial review.20. One of the tests to be applied while dealing with the question of quantum of punishment would be: Would any reasonable employer have imposed such punishment in like circumstances? Obviously, a reasonable employer is expected to take into consideration measure, magnitude and degree of misconduct and all other relevant circumstances and exclude irrelevant matters before imposing punishment.21. In a case like the present one where the misconduct of the delinquent was unauthorized absence from duty for six months but upon being charged of such misconduct, he fairly admitted his guilt and explained the reasons for his absence by stating that he did not have any intention nor desired to disobey the order of higher authority or violate any of the Company?s rules and regulations but the reason was purely personal and beyond his control and, as a matter of fact, he sent his resignation which was not accepted, the order of removal cannot be held to be justified, since in our judgment, no reasonable employer would have imposed extreme punishment of removal in like circumstances. The punishment is not only unduly harsh but grossly in excess to the allegations.22. Ordinarily, we would have sent the matter back to the appropriate authority for reconsideration on the question of punishment but in the facts and circumstances of the present case, this exercise may not be proper. In our view, the demand of justice would be met if Respondent 1 is denied back wages for the entire period by way of punishment for the proved misconduct of unauthorized absence for six months.?11. In this case, on facts, it is not brought to the notice of this Court that the Petitioner had involved in any other misconduct on earlier occasions. Admittedly, it was the only and one occasion that the Petitioner was absent for 87 days. Though belatedly, he has got some explanation to offer. Though the said explanation cannot be accepted to hold the Petitioner not guilty under the charge, the same can be taken note of while deciding the quantum of punishment. At the time of the incident, he was hardly 26 years of age. Having regard to the age, the fact that previously he did not involve in any such misconduct, the fact that he was maintaining clean record of service and all the other attending circumstances, as held by the Honourable Supreme Court, I am of the view that the punishment of dismissal from service is surely disproportionate to the gravity of the misconduct. In Arya?s case cited supra, in a similar circumstance, while dealing with a Police Constable attached to Delhi Police Establishment, the Honourable Supreme Court was also of the view that the dismissal from service for the single incident of absenting from duty is excessive an disproportionate. Applying the same, if I analyse the background of this case, I have no hesitation to hold that the punishment is excessive and shockingly disproportionate warranting interference at the hands of this Court. As held by the Supreme Court in normal course while holding that the punishment is highly disproportionate, this Court would have remitted the matter back to the 2nd Respondent for imposing appropriate punishment other than dismissal from service. But, in this case, this Writ Petition was filed in the year 2000 and it is disposed of in the year 2010. All these years, the Petitioner was out of employment. Having regard to the age, the time taken for getting the judicial verdict and all the other attendant circumstance, I am of the view that this is a rare case where this Court, instead of remitting the matter to the 2nd Respondent for imposing appropriate punishment deems it absolutely necessary to modify the punishment. As held by the Honourable Supreme Court in Arya?s case, the Petitioner may be made to loose the service benefits for all these years with a further direction that the period till today shall not be treated as period spent on duty. At this juncture, it would be worthwhile to extract the last paragraph of the judgment in Arya?s case cited supra:?However, that would further lengthen the life of litigation. In view of the time already lost, we deem it proper to set aside the punishment of removal from service and instead direct the Appellant to be reinstated in service subject to the condition that the period during which the Appellant remained absent from duty and the period calculated up to the date on which the Appellant reports back to duty pursuant to this judgment shall not be counted as a period spent on duty. The Appellant shall not be entitled to any service benefits for this period. Looking at the nature of partial relief allowed hereby to the Appellant, it is now not necessary to pass any order of punishment in the Departmental proceedings in lieu of the punishment of removal from service which has been set aside. The appellant must report on duty within a period of six weeks from today to take benefit of this judgment.?Therefore, I deem it appropriate to modify the penalty as hereunder.12. In the result, the Writ Petition is partly allowed in the following terms:1. The punishment and dismissal from service imposed upon the Petitioner is set aside and he is directed to be reinstated in service forthwith;2. It is further directed that the period during which the Petitioner remained absent from duty and the period from the date of dismissal till today shall not be counted as a period spent on duty;3. It is further directed that the Petitioner shall not be entitled for any service benefits for the above period mentioned in the Direction No.2;4. The 2nd and 3rd directions shall be treated as appropriate punishment for misconduct and there shall be no other punishment imposed by the 2nd Respondent for the same; and 5. The 2nd Respondent shall issue a consequential order to the Petitioner to join duty and such order shall be issued within a period of two months from the date of receipt of a copy of this and on receipt of such consequential proceedings, the Petitioner shall report duty without fail on the appointed date. No costs.
"2010 (2) CWC 450"