Ex. Asi Pradeep Kumar Vs. Union of India and Others - Court Judgment

ANIL KUMAR, J.

1. The petitioner has sought the quashing of order dated 8th April, 1998 removing him from the service on account of continuously overstaying after joining time from 29th April, 1997 without permission of the competent authority and the order dated 27th February, 1999 dismissing his appeal by the Deputy Inspector General.

2. Brief relevant facts are that the petitioner was appointed in the Central Industrial Security Forces i.e. CISF as ASI/Exe (Sports Quota) on 6th June, 1992 and was assigned number 922230059. The petitioner was given a regular posting to CISF Unit, UTPS, Ukai on 18th April, 1997 vide movement order No.E-38014/CISF/ADM/ 97/920 dated 18th April, 1997 with directions to report to his new place of posting i.e. at CISF Unit, UTPS, Ukai, after availing his normal joining time of 10 days.

3. The petitioner was to join his new unit on 29th April, 1997 (forenoon) but he failed to do so and continued overstaying from joining time.

4. The petitioner asserted that he fell sick on 27th April, 1997 and he reported to Dr.Ram Kishan, M.D, AY, SMO Incharge, CGHS Police Hospital, NPL Kingsway Camp, Delhi which is recognized by the Central Government as a competent authority and that his treatment continued up to 17th July, 1997. The petitioner had sent the medical certificate to the Commandant by registered post. Thereafter, the petitioner was advised to take treatment from the medical officer at Gannaur, as an outdoor patient up until 11th May, 1998 and the petitioner had sent the copies of all the medical certificates to his Commandant through registered post.

5. According to the petitioner, he received a call letter dated 6th May, 1997 from the Commandant of CISF Unit, IOC (GR) Baroda and again a letter by the Deputy Commandant of Ukai Dam Surat dated 12th May, 1997. The petitioner admitted that he was again called by letters dated 31st July, 1997 and 12th September, 1997. The petitioner also accepted that he was served with a memorandum dated 20th October, 1997 for overstaying the leave which amounted to gross carelessness and indiscipline.

6. Pursuant to the memorandum dated 20th October, 1997, Sh.S.K.Minz, Inspector/Exe. of CISF Unit, IOC (GR) Baroda was appointed as the Enquiry Officer by order dated 24th November, 1998 who thereafter conducted an ex-parte enquiry and submitted the report to respondent No.3 on 2nd March, 1998. The respondent No.3 thus passed the order dated 8th April, 1998 whereby the petitioner was removed from the service by regularizing his leave without pay.

7. According to the petitioner, though he was undergoing treatment at the time, yet he filed the appeal dated 9th May, 1998 within the stipulated time period before the Deputy Inspector General, CISF, respondent no. 2. However, the petitioner disclosed that without even giving him an opportunity of personal hearing and examining the authenticity of the medical certificates issued by the Government recognized doctors, his appeal was dismissed by order dated 27th February, 1999.

8. The petitioner has challenged the order of removal dated 8th April, 1998 and the dismissal of his appeal by order dated 27th February, 1999 on the ground that overstaying leave is not a heinous crime, as the same can be regularized against the accumulated earned leave.

Therefore, it is contended that the order of removal is not sustainable and that in any case the order was passed without following the procedure for imposing major penalties as provided in Rule 34 of the CISF Rules, 1969.

9. The order of removal is also challenged on the ground that no show cause notice was given to the petitioner for imposing the major penalty. Reliance is placed on Sada Nand Jha and Ors. v. Union of India and Ors, 1982 Lab. IC 936. The petitioner contended that Article 311 of the Constitution is applicable and that consequently the petitioner could not have been removed from the service without serving him a show cause notice proposing the proposed punishment.

10. Relying on Rule 60 of the CISF Rules, 1969 it was contended that the medical certificate issued by the competent authority could not be rejected by the respondents and since the medical certificates produced by the petitioner were not considered, the order of dismissal and rejection of his appeal are liable to be set aside. The petitioner filed the above noted petition on the above noted grounds against the order of removal dated 8th April, 1998 and the rejection of his appeal by order dated 27th February, 1999.

11. Along with the petition, the petitioner has filed a photocopy of the card issued by Central Government Health Scheme bearing the endorsements dated 28th April, 1997; 8th May, 1997 and 19th May, 1997. The card has the endorsement by Dr.Ram Kishan, MD.AY, SMO Incharge, CGHS Police Hospital, NPL Kingsway Camp, Delhi. On the said certificate by the endorsement dated 19th May, 1997, the petitioner was prescribed medicines and he was also advised bed rest. The endorsements dated 28th April, 1997 and 8th May, 1997 prescribe medicines but no bed rest. The petitioner did not file any other documents with the writ petition showing that the said medical certificate or any other communication was addressed by the petitioner to the respondents intimating them about his alleged illness.

12. The writ petition is contested by the respondents who filed the counter affidavit of Anil Pratham, Commandant, CISF Unit IOC (GR) Baroda contending, inter-alia, that the petitioner did not report to the unit even after availing 10 days of normal joining time on 29th April, 1997, nor did he report even after receiving the two call up notices which were sent to his permanent address by office letters No.V-15014/CISF/GR/.Disc/PK/97/1094 dated 10th May, 1997 and even No.(3002) dated 12th September, 1997. As the petitioner did not join the new unit, for his misconduct he was dealt with under Rule 34 of the CISF Rules, 1969 and a memorandum dated 20th October, 1997 was sent to the petitioner by registered post at his home address with the direction to submit a reply within 10 days from the date of receipt. The petitioner, however, did not reply to the memorandum dated 20th October, 1997.

13. Thereafter, the Enquiry Officer under Rule 34(4) of CISF Rules, 1969 was appointed to enquire into the charges made against the petitioner by order dated 24th November, 1997. The copy of the same was sent to the petitioner and was duly acknowledged by him. The Enquiry Officer gave full opportunity to the petitioner as three enquiry notices were issued and various dates were fixed for the enquiry in order to ensure that the petitioner may appear and defend himself. However, the petitioner neither filed any reply to the memorandum nor did he appear on the dates informed to the petitioner. The Enquiry Officer thus had no other option but to proceed ex-parte against the petitioner and after considering the material placed before him, he gave his report on 28th February, 1998 holding that the charges were proved against the petitioner.

14. The report of the Enquiry Officer was sent to the petitioner at his permanent address on 3rd March, 1998 with the direction to submit his final representation within 15 days from the date of the receipt of the enquiry report. The copy of the enquiry report sent to the petitioner was received and duly acknowledged by him. The petitioner, however, did not file any representation against the same. The Disciplinary Authority thereafter going through the enquiry proceedings and the relevant documents awarded the penalty of removal from service by order dated 8th April, 1998.

15. Aggrieved by order of removal dated 8th April, 1998, the petitioner had filed the appeal to the Deputy Inspector General, CISF (WZ), Mumbai. The appeal was, however, dismissed by the Appellate Authority by order dated 27th February, 1999.

16. The respondents also disclosed that the overstaying and not reporting to the new unit on 29th April, 1997 till the removal of the petitioner on 8th April, 1998 was not a solitary incident as previously also the petitioner had overstayed leave for 291 days i.e. 9 months and 21 days. Since on the earlier occasion he had overstayed for 291 days and it was the first instance on the part of the petitioner, it was regularized against his balance leave. The plea of the petitioner that he had sustained injury in 1994 during the All India Police Meet was not accepted as the petitioner had not produced any medical documents during the year 1994 for his absence for 291 days.

17. The respondents categorically denied that the petitioner had fallen sick on 27th April, 1997. Referring to the alleged medical certificate, it was contended by the respondents that the petitioner should have moved from his native place on 27th April, 1997 to join his duty on 29th April, 1997 (forenoon) at CISF Unit, UTPS, Ukai. The petitioner rather went to a hospital on 28th April, 1997 and managed to procure a manipulated medical certificate of the same date. The respondents also contended that the medical certificate for the period 28th April, 1997 to 15th September, 1997 was submitted in the month of September, 1997 which clearly demonstrates that the medical certificate had been managed by the petitioner to cover up his absence/over stay. If the petitioner was really ill, he should have submitted the medical certificate immediately. The respondents also emphasized on the fact that the petitioner was an outdoor patient from 28th April, 1997 to 15th September, 1997 including the period of medical rest for four weeks. Therefore, he should have reported to his new unit on 16th September, 1997 at least after taking the medical treatment/rest, which he failed to do. It was also disclosed that as on 30th June, 1997 no leave was in the credit of the petitioner. The respondents also stated that there is no provision for serving the show cause notice before passing the order of punishment. Regarding the medical certificates the respondent disclosed that the petitioner had not availed the medical facilities under Rule 60 of the CISF Rules, 1969. Reliance was also placed by the respondents on the letter dated 12th May, 1997 sent to the petitioner intimating that there are good medical facilities in the Gujarat Electricity Board Hospital, Ukai (new unit) which provide free medical treatment to CISF Personnel. However, the petitioner did not avail the said medical facilities at Ukai and opted to remain absent without any authorization.

18. The respondents have sought the dismissal of the writ petition also on the ground that though the remedy of revision to the Central Government is available to the petitioner under Section (3) of the CISF Act, however, this was not availed by the petitioner.

19. Though the petitioner filed a rejoinder to the counter affidavit filed by the respondent, however, nothing new was disclosed in the same. The petitioner has denied that on earlier occasions also he had overstayed for 291 days on the ground that no details had been given by the respondents in support of their plea. The petitioner, however, averred in his rejoinder that he had sent telegrams and registered letter dated 5th May, 1997 and 9th May, 1997 informing the Commandant, CISF Unit, UTPS, Ukai about his illness which was not considered by the Enquiry Officer.

20. This Court has heard the learned counsel for the parties and has also considered the documents placed on the record. The admitted facts are that the petitioner did not join the new unit on 29th April, 1997 after availing the normal 10 days joining time. The petitioner has also not denied that the call-up notices were sent to him. The copy of the notice dated 12th May, 1997 which has been produced by the respondents categorically stipulates that the petitioner was to report at his new unit on 29th April, 1997 after the regular posting from CISF Unit, IOC (GR) Baroda. In the said communication though it is admitted that the petitioner had sent two telegrams and two registered letters about his sickness, however, it was categorically stated that the petitioner had neither submitted any medical certificate in support of his sickness nor had he mentioned the details of his sickness in his application. By the said communication, the petitioner was even intimated that there are good medical facilities in the GEB Hospital at Ukai which provides free medical treatment to the CISF Personnel and, therefore, petitioner was directed to report at his unit and to continue treatment at Ukai. The receipt of the said letter has not been categorically denied by the petitioner.

21. After the letter dated 12th May, 1997, copy of no communication or telegram has been produced by the petitioner showing as to what disease he was suffering from or for what reason he was incapable of reporting to his unit. The medical certificate could not be sent with the telegram, however, the nature of the disease could have been mentioned in the same. The petitioner, however, has not produced the copy of any telegram which would show the nature of disease or medical treatment availed by him which could be disclosed by the petitioner to the respondents. In the writ petition too filed by the petitioner, he has not disclosed as to what disease he had contracted or what medical treatment he was undergoing which physically made him incapable of reporting to his new unit. The copy of the card produced by the petitioner along with the writ petition also has the endorsement dated 28th April, 1997, 8th May, 1997 and 19th May, 1997 only. On 28th April, 1997, the petitioner was prescribed some medicines and syrups. On 8th May, 1997 the petitioner was again prescribed medicines and syrups, however, on 18th May, 1997 petitioner had been advised bed rest. The medical certificate, however, does not disclose any physical disability or disease which rendered the petitioner incapable of reporting for duty.

22. From 29th April, 1997 till 18th April, 1998 when the order of removal from service was passed against the petitioner, no such documents had been produced by the petitioner which would have shown that the petitioner was not in a physically fit state to go to his unit at Ukai. The petitioner has also not disclosed as to why he could not get his alleged medical problems treated at GEB Hospital at Ukai about which it was intimated to the petitioner by letter dated 12th May, 1997.

23. Though the learned counsel for the petitioner contended that the petitioner had his muscle pulled, no such averment has been made by the petitioner in his petition. In any case, what prevented the petitioner from filing a reply to the memorandum of charges and raise his defense has not been disclosed. It is not disputed that the petitioner was sent the copy of the enquiry report and that no representation was filed by the petitioner against the same before the Disciplinary Authority. The Appellate Authority has also emphasized and observed that the home town of the petitioner is Village Kheri Asra, Tehsil Jhajjar, Haryana, however, he had taken treatment at Delhi. If the petitioner could travel from his hometown in Rohtak to a considerable distance at Delhi for treatment, then the petitioner could have very well travelled to report to his new unit at Ukai where further medical facilities could have been availed by him at GEB Hospital.

24. This Court in exercise of its jurisdiction under Article 226 of the Constitution of India does not normally have to go into the correctness and the truth of the charges as it cannot take over the functions of the Disciplinary Authority nor it can sit in appeal on the findings of the Disciplinary Authority and assume the role of the Appellate Authority. The Court in exercise of its jurisdiction also does not have to interfere with the findings of the fact arrived at by the Disciplinary Authority except in the case of malafides or perversity i.e. where there is no evidence to support a finding or where the finding is such that anyone acting reasonably or with objectivity could not have arrived at the same or where a reasonable opportunity has not been given to the delinquent to defend himself or if it is a case where there has been non application of mind on the part of the Enquiring Authority or if the charges are vague or if the punishment imposed is shocking to the very conscience of the Court. The petitioner, despite the intimation to him to report to his new unit at Ukai, did not join the same nor did he disclose any cogent reasons with sufficient material justifying his alleged misconduct. Though the petitioner sent telegrams and two letters, however, he did not send any medical certificate with them. The petitioner has acknowledged that the copy of the memorandum of charge was received by him, however, the petitioner did not reply to the same. The Enquiry Officer had also sent three notices and fixed various dates directing the petitioner to appear before the Enquiry Officer, however, he did not appear. No cogent reasons have been disclosed by the petitioner as to why he did not appear before the Enquiry Officer. The copy of the enquiry report was sent to the petitioner, however, he did not make any representation in respect of the same.

25. Though the petitioner has alleged that he was entitled for a show cause notice before imposing the punishment upon him, however, the learned counsel for the petitioner is unable to show any provision under which the petitioner is entitled for a notice before imposing the punishment on him.

26. In the circumstances, the petitioner has failed to make out any procedural illegality, irregularity or procedural impropriety. This is no more res integra that the action of the respondents, in the facts and circumstances, is subject to control by judicial review only in the case of illegality, irrationality or procedural impropriety. Whether the action of the respondents’ falls within any one of the categories mentioned above, is to be established by the petitioner and a mere assertion in that regard is not sufficient. The action of the respondents’ cannot be held to be irrational in the facts and circumstances. The respondents have exercised the power on the basis of facts which have not been repudiated by the petitioner nor has the learned counsel for the petitioner been able to show any patent illegality which will vitiate any of the actions of the respondents’. In the facts and circumstances, this Court is also unable to infer any procedural impropriety in the actions of the respondents. In (2006) 5 SCC 88, M.V.Bijlani and Orv v. Union of India and Ors it was held that judicial review is of the decision making process and is not the re-appreciation of the evidence. The Supreme Court in para 25 at page 96 had held as under:- 25. It is true that the jurisdiction of the court in judicial review is limited. Disciplinary proceedings, however, being quasi-criminal in nature, there should be some evidence to prove the charge. Although the charges in a departmental proceeding are not required to be proved like a criminal trial i.e. beyond all reasonable doubt, we cannot lose sight of the fact that the enquiry officer performs a quasi-judicial function, who upon analyzing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with.

In B.C. Chaturvedi v. Union of India, (1995) 6 SCC 749, at page 762 the Supreme Court had held that the disciplinary authority being the fact finding authority has exclusive power to consider the evidence with a view to maintain discipline. It was held as under: 18. 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, cannot 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.

27. In Union of India v. Datta Linga Toshat Vad, (2005) 13 SCC 709, it was held that the members of the uniform forces cannot absent themselves on frivolous pleas, having regard to the nature of the duties enjoined on these forces. The Court had held that desertion is a serious matter and a member of the uniformed forces who overstays his leave even by a few days must be able to give a satisfactory explanation. A member of the force, who goes on leave and never reports for duty thereafter, cannot be said to be one merely overstaying his leave and he must be treated as a deserter. In such cases the Apex Court had held the dismissal from service justifiable and the punishment of dismissal was held not to be disproportionate to the misconduct. In that case the petitioner after leave did not join despite various notices given to him. Even the arrest warrant was issued against him though the arrest warrant remained unexecuted. In the circumstances, after following due procedure, the official was dismissed from the service. Similarly in (2005) 13 SCC 228, Union of India v. Gulam Md.Bhat, it was held by the Supreme Court that overstay by persons belonging to the disciplined forces needs to be dealt with sternly. It was further held that it is for the employee concerned to show how the penalty was disproportionate to the proved charges. In that case the order of dismissal from service was held to be in accordance with the misconduct as the employee had remained absent for 300 days and had failed to give any justifiable reasons. The petitioner also remained absent and no justifiable reason has been given for absence from 29th April, 1997 upto 8th April, 1998 when the order of dismissal was passed against him. It is also important to note that this is not the first instance when the petitioner had remained absent without any justifiable reason. The medical certificate produced by the petitioner has been disbelieved.

28. The petitioner had remained absent even on an earlier occasion for 291 days, however, as that was the first instance, the respondents had regularized his absence towards his balance leave. Though the petitioner has denied the same on the ground that the particulars have not been given by the respondents, however, in the facts and circumstances the averment that the petitioner had remained absent on an earlier occasion also for 291 days cannot be doubted. Rather, the plea taken for earlier absence was that he had sustained injury during the All India Police Meet which was not accepted as on earlier occasion also the petitioner had not produced any medical certificate or proof about his alleged injury.

29. For the foregoing reasons in the facts and circumstances, there are no grounds to interfere with the orders of removal of petitioner from service dated 8th April, 1998 and dismissal of his appeal by order dated 27th February, 1999 by this Court in exercise of its jurisdiction under Article 226 of the Constitution of India. The writ petition is without any merit and it is, therefore, dismissed.