Suvendu Kumar Mohanta Vs. Union of India and Others - Court Judgment

SooperKanoon Citationsooperkanoon.com/1138153
CourtOrissa High Court
Decided OnApr-21-2014
AppellantSuvendu Kumar Mohanta
RespondentUnion of India and Others
Excerpt:
high court of orissa: cuttack. w.p.(c) no.1562 of 2008 in the matter of an application under articles 226 and 227 of the constitution of india. suvendu kumar mohanta ……. petitioner - versusunion of india & others ……. opp. parties for petitioner : m/s a.c.mohanty, g.n.rout, b.pradhan & s.bhagat for opp. parties : mr. s.k.patra, central govt. advocate present: the honourable shri justice i.mahanty and the honourable shri justice s.pujahari date of hearing –16.04.2014 s.pujahari,j.: date of judgment – 21.04.2014 the petitioner in this writ petition challenges the order dated 18.3.2006 passed by opposite party no.4 at annexure-9, imposing the punishment of removal from service in a disciplinary proceeding initiated against him vide annexure-5 and prayed for quashing the same and also direct the opposite parties to reinstate him in service with back wages .2. facts relevant for disposal of the writ petition are as follows:the petitioner was enrolled as a constable in 26 battalion, central reserve police force (hereinafter referred to as 2 ‘crpf’), keirengei, imphal, manipur on 4.4.1991. while continuing in the service, the petitioner applied for 60 days earned leave and was allowed earned leave from 17.11.2001 to 15.01.2002. on expiry of the leave, petitioner did no.report on his duty and sought for extension of the leave telegraphically on the ground of self illness on 2.2.2002. thereafter, as the mother of the petitioner died on 18.3.2002, the petitioner sent a resignation letter on the ground of domestic problem and self illness which was no.acted upon. on 11.11.2004 petitioner made a representation to allow him to join in his duty as in the meanwhile he became physically fit and had financial constraint. the authority pursuant to such representation of the petitioner allowed him to join on his duty w.e.f. 12.01.2005 in 26 battalion, crpf at jammu (j&k). while he was continuing in such duty, a disciplinary proceeding was initiated against him on 16.09.2005 by opposite party no.4 on the charges of unauthorized absence from the duty from 16.01.2002 to 11.01.2005 which for about 1092 days. the petitioner participated in the said departmental proceeding and took the defence that the absence from the duty was due to self illness and death of petitioner’s mother. in the conclusion of the departmental proceeding, punishment of removal from service was imposed on the petitioner vide the impugned order at annexure-9, which the petitioner challenges in this writ petition, inter alia, on the ground that the finding in the departmental proceeding is an outcome of non-application of mind on the part of the enquiry officer and also violative of principle of natural justice. besides the same the petitioner has also challenged the punishment imposed by the disciplinary authority to be disproportionate. 3 3. the opposite parties in their counter to the averments made in the writ petition denied the fact that action taken against the writ petitioner suffers from the vice of violation of the principles of natural justice, an outcome of non-application of mind on the part of the enquiry officer and the punishment imposed by the disciplinary authority to be disproportionate, inasmuch as the petitioner was given due chance of hearing and after going through the material on record, the enquiry officer found him guilty of the charges by a reasoned order, which was accepted by the disciplinary authority, so also the misconduct being serious, as the petitioner was a member of the discipline force, punishment of removal of service can never be deemed as disproportionate. hence, the writ petition is devoid of merit. furthermore it has also been averred that a speedy and efficacious remedy being available against the order of the disciplinary authority, inasmuch as the rules framed under central reserve police force act (fort short “crpf act”.) provides for an appeal against such order at the instance of the petitioner, the writ petition is no.maintainable.4. during the course of hearing, it has been contended by the learned counsel for the petitioner that it is well settled in law that availability of an alternative is no bar to approach this court under article 226 of the constitution of india and regard being had to the fact that in spite of availability of the same, this court having entertained the prayer of the petitioner, the challenge to the maintainability of the writ petition on the said ground at this stage, is without any substance. however, during the course of hearing, the counsel for the petitioner has no.challenged the finding of the enquiry officer on the misconduct which was accepted by the 4 disciplinary authority. it has only been submitted that for the delinquency/misconduct, punishment imposed to be shockingly disproportionate and, as such, liable to be quashed and substituted by any other punishment.5. in response to the same, it is submitted by the learned counsel for the opposite parties that it is settled in law that availability of an alternative remedy does no.preclude a party to approach this court under article 226 of the constitution of india for redressal of his grievance, but considering the fact that the remedy available being speedy and efficacious, this court should be loathed in interfering in this matter in exercise of power under article 226 of the constitution of india. furthermore, it is also submitted by him that otherwise also the punishment imposed being no.shockingly disproportionate in the facts and circumstances of the case, inasmuch as the petitioner remained absent unauthorizedly for about 1092 days though a member of the discipline force, the same is no.subject to interference of this court within the scope available.6. the order passed against the petitioner removing him from service is an appeallable one under rule 28 of the central reserve police force rules, 1955. therefore, a speedy and efficacious remedy is available against the petitioner for redressal of his grievance. it has since been well settled in law that when speedy and efficacious remedy is available, a writ petition though in strict sense canno.be said to be no.maintainable, but the court should be loathed in entertaining the prayer in a writ petition. in this regard reliance can be placed on a decision of the hon’ble apex court in the case of thansingh nathmal v. superintendent of taxes, air 1964 5 sc 1419, wherein the hon’ble apex court at para-7 have been pleased to hold as follows:“the jurisdiction of the high court under article 226 of the constitution is couched in wide terms and the exercise thereof is no.subject to any restriction…..but the exercise of the jurisdiction is discretionary; it is no.exercised merely because it is lawful to do so. the very amplitude of the jurisdiction demands that it will ordinarily be exercised subject to certain well imposed limitation. resort to that jurisdiction is no.intended as an alternative remedy of relief which may be obtained in a suit or other mode prescribed by the statute. ordinarily, the court will no.entertain a petition for writ under article 226 where the petitioner has alternative remedy, which without being unduly onerous, provides an equally efficacious remedy…the high court does no.therefore act as a court of appeal against the decision of a court or tribunal to correct errors of fact, and does no.by assuming jurisdiction under article 226 trench upon an alternative remedy provided by statute for obtaining relief. where it is open to the aggrieved petitioner to move another tribunal or even itself another jurisdiction for obtaining redress in the matter provided by a statute, the high court normally will no.permit by entertaining under article 226 of the constitution the machinery created by the statute to be bypassed and leave the party applying to it to seek resort to that machinery so set up.”.7. in a case of champalal v. cit, air 1970 sc 645, the hon’ble apex court have held that if some body approached the high court under article 226 without availing himself the alternative remedy, he must make out a strong case or there must be good grounds to invoke the extraordinary remedy. in the case of manek custodji v. sarafaraz ali, air 1976 sc 2446, the hon’ble apex court strongly disapproved the approach made by a party in a writ jurisdiction to the high court under article 226, where he could have otherwise approached the high court in some other capacity. in the case of jagadeesan v. a.n.j.a. college, air 1984 sc 1512, 6 the approach under article 226 was no.approved where the incumbent had a right to prefer appeal against the order of termination of service under the relevant college act. therefore, the normal rule is that high court would no.interfere in a matter in exercise of its writ jurisdiction, if a speedy and efficacious remedy is available for redressal of the said grievance, though has jurisdiction to do so. but, the aforesaid rule laid down by the hon’ble apex court is also subject to certain exception. in the case of himmatlal v. state of m.p., air 1954 sc 403, the hon’ble apex court held that where there is any allegation of infringement of fundamental rights, the bar alternative remedy does no.apply. so also in the case of baburam v. zila parishad, air 1969 sc 556, the hon’ble apex court referring to its earlier decisions held that there were at least two well recognized exceptions to the doctrine of exhaustion of statutory remedies. in the first place, it is well settled that where proceedings are taken before tribunal under provision of law which is ultra vires, it is open to a party aggrieved thereby to move the high court for quashing the proceedings on the ground that they are incompetent, without a party being obliged to wait until those proceedings run their full course, as held in carl still v. state of bihar, air 1961 sc 1615 and bengal immunity v. state of bihar, air 1965 sc 661. in the second place, the doctrine has no application where the impugned order has been made in violation of the principles of natural justice vide state of u.p. v. mohd. nooh, air 1958 sc 86.8. when the impugned order in this case is examined taking note of the aforesaid law laid down, the learned counsel for the petitioner has no.brought to our notice that the order impugned 7 fall on any of the categories no.there is material to substantiate them though pleaded that there was violation of the principle of natural justice. therefore, we would have held that this writ petition filed by the petitioner challenging the impugned order is no.maintainable in view of the law laid down as above, inasmuch as the petitioner has a speedy and efficacious remedy. but the hon’ble apex court in the case of hirday narain v. ito, air 1971 sc 33 having held that when a writ petition is entertained in spite of availability of the speedy efficacious remedy and hearing on the merit was done, dismissal of the same on the ground of availability of alternative remedy was no.proper, inasmuch as by the time the petition is taken up, the cause would have been barred by the law of limitation. therefore, at this belated stage, we are unable to agree with the contention raised by the learned counsel for the opposite parties that this writ petition is no.maintainable in view of the availability of speedy and efficacious remedy and as such this court should no.interfere with the impugned order in this petition under article 226 of the constitution, which has been filed by-passing or without exhausting the available statutory appellate forum.9. the learned counsel for the petitioner in this writ petition has prayed for interference with the punishment imposed by the disciplinary authority advancing the submission that the same is disproportionate in view of the mitigating circumstances and the nature of delinquency. the learned counsel for the opposite parties, however, submitted that since this court has limited scope of interference and the punishment imposed canno.be said to be disproportionate much less shockingly disproportionate, the same warrants no interference. we are conscious of the fact that the scope 8 of interference of this court on the penalty imposed in a disciplinary proceeding is limited but there is scope of interference in appropriate case, if the facts and circumstances, so warrant.10. the hon’ble apex court in the case of b.c. chaturvedi v. union of india and others, air 1996 sc 484 has dealt with the scope of interference by the high court in the matter of nature of punishment to be imposed in a disciplinary proceeding in the following words:“a review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact-finding authorities have exclusive power to consider the evidence with a view to maintain discipline. they are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. the high court/tribunal, while exercising the power of judicial review, canno.normally substitute its own conclusion on penalty and impose some other penalty. if the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the high court/tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof.”. in another decision reported in 1987 (55) f.l.r. 831(dalbir singh v. director general, crpf, new delhi), keeping in view the exceptional facts and circumstances, the hon’ble apex court had modified the punishment imposed by the departmental authority in a proceeding under the crpf act. relying on the aforesaid law laid down, a division bench of this court in the case of bhajaman pattanaik v. union of india and others, 1998(i) olr 494 have 9 interfered with the punishment imposed even if the appellate forum is available.11. in this case, it is revealed from the record that petitioner had proceeded on leave duly sanctioned in his favour, but did no.report after the expiry of the leave and overstayed. he had prayed extension on the health ground and also one point of time decided to resign on death of his mother due to domestic problem and his illhealth. the same was no.accepted. later, due to recovery of his health and poor financial condition, he desired to join and was allowed to join. but, for his delinquency of overstay, the departmental proceeding in question was initiated. under the crpf act, delinquency committed by the petitioner appears to be no.a heinous offence as seen from section-10 of the said act. for the aforesaid delinquency, the disciplinary authority may award removal from the service. however, section-11 of the said act bestowed the disciplinary authority with discretion to award the other punishment in lieu of the same or in addition to the same. the delinquency, therefore, also can be visited with lesser punishment than removal and appears to be condonable one. from the facts appearing the petitioner absence appears to be due to domestic problem and illhealth and no.intentional, inasmuch as at one point of time he had also decided to leave the service for the same. in the aforesaid facts and circumstances, especially the mitigating circumstances in which delinquency alleged to have been committed, the punishment of removal from service imposed appears to be shockingly disproportionate. hence, we feel it proper to remit back the matter to the disciplinary authority to reconsider and re-visit the punishment imposed. 10 12. in the result, the order passed under annexure-9 removing the petitioner from service is quashed. the opposite parties should no.call upon the petitioner to join at any suitable place of posting within a period of three weeks of receipt of this order and the petitioner should join the post within a period of two weeks from the date of receipt of such communication from the appropriate authorities, who shall thereafter within a period of one month pass necessary punishment except punishment of removal.13. the writ petition allowed to the aforesaid extent. in the facts and circumstance, however, there will be no order as to costs. ……………………..… s.pujahari, j.i.mahanty, j.i agree. ……………………..… i.mahanty, j.orissa high court, cuttack, the 21st april, 2014 / akd
Judgment:

HIGH COURT OF ORISSA: CUTTACK. W.P.(C) No.1562 OF 2008 In the matter of an application under Articles 226 and 227 of the Constitution of India. Suvendu Kumar Mohanta ……. Petitioner - VersusUnion of India & Others ……. Opp. parties For petitioner : M/s A.C.Mohanty, G.N.Rout, B.Pradhan & S.Bhagat For opp. parties : Mr. S.K.Patra, Central Govt. Advocate PRESENT: THE HONOURABLE SHRI JUSTICE I.MAHANTY AND THE HONOURABLE SHRI JUSTICE S.PUJAHARI Date of hearing –16.04.2014 S.PUJAHARI,J.: Date of judgment – 21.04.2014 The petitioner in this writ petition challenges the order dated 18.3.2006 passed by opposite party no.4 at Annexure-9, imposing the punishment of removal from service in a disciplinary proceeding initiated against him vide Annexure-5 and prayed for quashing the same and also direct the opposite parties to reinstate him in service with back wages .

2. Facts relevant for disposal of the writ petition are as follows:The petitioner was enrolled as a constable in 26 Battalion, Central Reserve Police Force (hereinafter referred to as 2 ‘CRPF’), Keirengei, Imphal, Manipur on 4.4.1991. While continuing in the service, the petitioner applied for 60 days Earned Leave and was allowed Earned Leave from 17.11.2001 to 15.01.2002. On expiry of the leave, petitioner did No.report on his duty and sought for extension of the leave telegraphically on the ground of self illness on 2.2.2002. Thereafter, as the mother of the petitioner died on 18.3.2002, the petitioner sent a resignation letter on the ground of domestic problem and self illness which was No.acted upon. On 11.11.2004 petitioner made a representation to allow him to join in his duty as in the meanwhile he became physically fit and had financial constraint. The authority pursuant to such representation of the petitioner allowed him to join on his duty w.e.f. 12.01.2005 in 26 Battalion, CRPF at Jammu (J&K). While he was continuing in such duty, a disciplinary proceeding was initiated against him on 16.09.2005 by opposite party No.4 on the charges of unauthorized absence from the duty from 16.01.2002 to 11.01.2005 which for about 1092 days. The petitioner participated in the said departmental proceeding and took the defence that the absence from the duty was due to self illness and death of petitioner’s mother. In the conclusion of the departmental proceeding, punishment of removal from service was imposed on the petitioner vide the impugned order at Annexure-9, which the petitioner challenges in this writ petition, inter alia, on the ground that the finding in the departmental proceeding is an outcome of non-application of mind on the part of the Enquiry Officer and also violative of principle of natural justice. Besides the same the petitioner has also challenged the punishment imposed by the Disciplinary Authority to be disproportionate. 3 3. The opposite parties in their counter to the averments made in the writ petition denied the fact that action taken against the writ petitioner suffers from the vice of violation of the principles of natural justice, an outcome of non-application of mind on the part of the Enquiry Officer and the punishment imposed by the Disciplinary Authority to be disproportionate, inasmuch as the petitioner was given due chance of hearing and after going through the material on record, the Enquiry Officer found him guilty of the charges by a reasoned order, which was accepted by the Disciplinary Authority, so also the misconduct being serious, as the petitioner was a member of the discipline force, punishment of removal of service can never be deemed as disproportionate. Hence, the writ petition is devoid of merit. Furthermore it has also been averred that a speedy and efficacious remedy being available against the order of the Disciplinary Authority, inasmuch as the Rules framed under Central Reserve Police Force Act (fort short “CRPF Act”.) provides for an appeal against such order at the instance of the petitioner, the writ petition is No.maintainable.

4. During the course of hearing, it has been contended by the learned counsel for the petitioner that it is well settled in law that availability of an alternative is no bar to approach this Court under Article 226 of the Constitution of India and regard being had to the fact that in spite of availability of the same, this Court having entertained the prayer of the petitioner, the challenge to the maintainability of the writ petition on the said ground at this stage, is without any substance. However, during the course of hearing, the counsel for the petitioner has No.challenged the finding of the Enquiry Officer on the misconduct which was accepted by the 4 Disciplinary Authority. It has only been submitted that for the delinquency/misconduct, punishment imposed to be shockingly disproportionate and, as such, liable to be quashed and substituted by any other punishment.

5. In response to the same, it is submitted by the learned counsel for the opposite parties that it is settled in law that availability of an alternative remedy does No.preclude a party to approach this Court under Article 226 of the Constitution of India for redressal of his grievance, but considering the fact that the remedy available being speedy and efficacious, this Court should be loathed in interfering in this matter in exercise of power under Article 226 of the Constitution of India. Furthermore, it is also submitted by him that otherwise also the punishment imposed being No.shockingly disproportionate in the facts and circumstances of the case, inasmuch as the petitioner remained absent unauthorizedly for about 1092 days though a member of the discipline force, the same is No.subject to interference of this Court within the scope available.

6. The order passed against the petitioner removing him from service is an appeallable one under Rule 28 of the Central Reserve Police Force Rules, 1955. Therefore, a speedy and efficacious remedy is available against the petitioner for redressal of his grievance. It has since been well settled in law that when speedy and efficacious remedy is available, a writ petition though in strict sense canNo.be said to be No.maintainable, but the Court should be loathed in entertaining the prayer in a writ petition. In this regard reliance can be placed on a decision of the Hon’ble Apex Court in the case of Thansingh Nathmal v. Superintendent of Taxes, AIR 1964 5 SC 1419, wherein the Hon’ble Apex Court at para-7 have been pleased to hold as follows:“The jurisdiction of the High Court under Article 226 of the Constitution is couched in wide terms and the exercise thereof is No.subject to any restriction…..But the exercise of the jurisdiction is discretionary; it is No.exercised merely because it is lawful to do so. The very amplitude of the jurisdiction demands that it will ordinarily be exercised subject to certain well imposed limitation. Resort to that jurisdiction is No.intended as an alternative remedy of relief which may be obtained in a suit or other mode prescribed by the statute. Ordinarily, the court will No.entertain a petition for writ under Article 226 where the petitioner has alternative remedy, which without being unduly onerous, provides an equally efficacious remedy…The High Court does No.therefore act as a court of appeal against the decision of a court or tribunal to correct errors of fact, and does No.by assuming jurisdiction under Article 226 trench upon an alternative remedy provided by statute for obtaining relief. Where it is open to the aggrieved petitioner to move another tribunal or even itself another jurisdiction for obtaining redress in the matter provided by a statute, the High Court normally will No.permit by entertaining under Article 226 of the Constitution the machinery created by the statute to be bypassed and leave the party applying to it to seek resort to that machinery so set up.”

.

7. In a case of Champalal v. CIT, AIR 1970 SC 645, the Hon’ble Apex Court have held that if some body approached the High Court under Article 226 without availing himself the alternative remedy, he must make out a strong case or there must be good grounds to invoke the extraordinary remedy. In the case of Manek Custodji v. Sarafaraz Ali, AIR 1976 SC 2446, the Hon’ble Apex Court strongly disapproved the approach made by a party in a writ jurisdiction to the High Court under Article 226, where he could have otherwise approached the High Court in some other capacity. In the case of Jagadeesan v. A.N.J.A. College, AIR 1984 SC 1512, 6 the approach under Article 226 was No.approved where the incumbent had a right to prefer appeal against the order of termination of service under the relevant College Act. Therefore, the normal rule is that High Court would No.interfere in a matter in exercise of its writ jurisdiction, if a speedy and efficacious remedy is available for redressal of the said grievance, though has jurisdiction to do so. But, the aforesaid rule laid down by the Hon’ble Apex Court is also subject to certain exception. In the case of Himmatlal v. State of M.P., AIR 1954 SC 403, the Hon’ble Apex Court held that where there is any allegation of infringement of fundamental rights, the bar alternative remedy does No.apply. So also in the case of Baburam v. Zila Parishad, AIR 1969 SC 556, the Hon’ble Apex Court referring to its earlier decisions held that there were at least two well recognized exceptions to the doctrine of exhaustion of statutory remedies. In the first place, it is well settled that where proceedings are taken before tribunal under provision of law which is ultra vires, it is open to a party aggrieved thereby to move the High Court for quashing the proceedings on the ground that they are incompetent, without a party being obliged to wait until those proceedings run their full course, as held in Carl Still v. State of Bihar, AIR 1961 SC 1615 and Bengal Immunity v. State of Bihar, AIR 1965 SC 661. In the second place, the doctrine has no application where the impugned order has been made in violation of the principles of natural justice vide State of U.P. v. Mohd. Nooh, AIR 1958 SC 86.

8. When the impugned order in this case is examined taking note of the aforesaid law laid down, the learned counsel for the petitioner has No.brought to our notice that the order impugned 7 fall on any of the categories No.there is material to substantiate them though pleaded that there was violation of the principle of natural justice. Therefore, we would have held that this writ petition filed by the petitioner challenging the impugned order is No.maintainable in view of the law laid down as above, inasmuch as the petitioner has a speedy and efficacious remedy. But the Hon’ble Apex Court in the case of Hirday Narain v. ITO, AIR 1971 SC 33 having held that when a writ petition is entertained in spite of availability of the speedy efficacious remedy and hearing on the merit was done, dismissal of the same on the ground of availability of alternative remedy was No.proper, inasmuch as by the time the petition is taken up, the cause would have been barred by the law of limitation. Therefore, at this belated stage, we are unable to agree with the contention raised by the learned counsel for the opposite parties that this writ petition is No.maintainable in view of the availability of speedy and efficacious remedy and as such this Court should No.interfere with the impugned order in this petition under Article 226 of the Constitution, which has been filed by-passing or without exhausting the available statutory Appellate Forum.

9. The learned counsel for the petitioner in this writ petition has prayed for interference with the punishment imposed by the disciplinary authority advancing the submission that the same is disproportionate in view of the mitigating circumstances and the nature of delinquency. The learned counsel for the opposite parties, however, submitted that since this court has limited scope of interference and the punishment imposed canNo.be said to be disproportionate much less shockingly disproportionate, the same warrants no interference. We are conscious of the fact that the scope 8 of interference of this Court on the penalty imposed in a disciplinary proceeding is limited but there is scope of interference in appropriate case, if the facts and circumstances, so warrant.

10. The Hon’ble Apex Court in the case of B.C. Chaturvedi v. Union of India and others, AIR 1996 SC 484 has dealt with the scope of interference by the High Court in the matter of nature of punishment to be imposed in a disciplinary proceeding in the following words:“A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact-finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, canNo.normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof.”

. In another decision reported in 1987 (55) F.L.R. 831(Dalbir Singh v. Director General, CRPF, New Delhi), keeping in view the exceptional facts and circumstances, the Hon’ble Apex Court had modified the punishment imposed by the departmental authority in a proceeding under the CRPF Act. Relying on the aforesaid law laid down, a Division Bench of this Court in the case of Bhajaman Pattanaik v. Union of India and others, 1998(I) OLR 494 have 9 interfered with the punishment imposed even if the appellate forum is available.

11. In this case, it is revealed from the record that petitioner had proceeded on leave duly sanctioned in his favour, but did No.report after the expiry of the leave and overstayed. He had prayed extension on the health ground and also one point of time decided to resign on death of his mother due to domestic problem and his illhealth. The same was No.accepted. Later, due to recovery of his health and poor financial condition, he desired to join and was allowed to join. But, for his delinquency of overstay, the departmental proceeding in question was initiated. Under the CRPF Act, delinquency committed by the petitioner appears to be No.a heinous offence as seen from Section-10 of the said Act. For the aforesaid delinquency, the disciplinary authority may award removal from the service. However, Section-11 of the said Act bestowed the disciplinary authority with discretion to award the other punishment in lieu of the same or in addition to the same. The delinquency, therefore, also can be visited with lesser punishment than removal and appears to be condonable one. From the facts appearing the petitioner absence appears to be due to domestic problem and illhealth and No.intentional, inasmuch as at one point of time he had also decided to leave the service for the same. In the aforesaid facts and circumstances, especially the mitigating circumstances in which delinquency alleged to have been committed, the punishment of removal from service imposed appears to be shockingly disproportionate. Hence, we feel it proper to remit back the matter to the Disciplinary Authority to reconsider and re-visit the punishment imposed. 10 12. In the result, the order passed under Annexure-9 removing the petitioner from service is quashed. The opposite parties should No.call upon the petitioner to join at any suitable place of posting within a period of three weeks of receipt of this order and the petitioner should join the post within a period of two weeks from the date of receipt of such communication from the appropriate authorities, who shall thereafter within a period of one month pass necessary punishment except punishment of removal.

13. The writ petition allowed to the aforesaid extent. In the facts and circumstance, however, there will be no order as to costs. ……………………..… S.Pujahari, J.I.Mahanty, J.I agree. ……………………..… I.Mahanty, J.Orissa High Court, Cuttack, The 21st April, 2014 / AKD