IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 15TH DAY OF APRIL, 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE S. G. PANDIT WRIT APPEAL No.5189 OF 2017 (S-PRO) BETWEEN:
H C NAVIN KUMAR SON OF SRI CHANDERMANI SHARMA AGED ABOUT 52 YEARS, NOW WORKING AS HEAD CONSTABLE, 84 BATTALION BSF, ALPHA COMPANY, NAVARANGPUR DISTRICT, ODISHA AND NOW RESIDING AT NAIPOKHAR VILLAGE, RAJGIR POST, NALANDA DISTRICT, BIHAR-803 116.
...APPELLANT (BY SRI. M. SUBRAMANYA BHAT, ADVOCATE) AND 1. THE UNION OF INDIA REPRESENTED BY ITS SECRETARY MINISTRY OF HOME AFFAIRS NORTH BLOCK DHQ, P.O.NEW DELHI-110 001.
2. THE DIRECTOR GENERAL FHQ, BORDER SECURITY FORCE NO.10, CGO COMPLEX LODHI ROAD, NEW DELHI-110 003.
3. THE INSPECTOR GENERAL BSF (SPL.OPS), AF STATION, YELAHANKA BANGALORE-560 063.
4. COMMANDANT 84 BATTALION BSF POST OFFICE KARAHALLI TALUK DEVANAHALLI DISTRICT BANGALORE NORTH-562 110.
5. P.C.CHOWHAN COMMANDANT 7TH BTN. BSF POST OFFICE JAISALMER RAJASTHAN-345 002.
...RESPONDENTS (BY SRI. H. JAYAKAR SHETTY, CGC) THIS APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO ALLOW THE PRESENT WRIT APPEAL AND SET ASIDE THE ORDER DATED 19/07/2017 PASSED BY THE LEARNED SINGLE JUDGE IN WRIT PETITION NO.50993/2012 AND GRANT ALL THE RELIEFS SOUGHT FOR BY THE APPELLANT.
THIS APPEAL COMING ON FOR PRELIMINARY HEARING THIS DAY, S.G.PANDIT J., DELIVERED THE FOLLOWING:
JUDGMENT Aggrieved by the impugned order dated 19.07.2017 passed by the learned Single Judge in W.P.No.50993 OF 2012, by which the petition was rejected, the writ petitioner is in appeal.
2. The petitioner filed writ petition under Articles 226 and 227 of the Constitution of India praying to set aside impugned order bearing No.93-Estt/Re-Inst/FTR BGLR/BSF/2012/3952-57, dated 06.10.2012 issued by the 3rd respondent as illegal and arbitrary.
3. The petitioner states that the petitioner was dismissed from service after departmental enquiry, which was challenged before the High Court of Delhi in writ petition(C) No.2029 of 2006. During the pendency of the writ petition, the respondents by order dated 28.08.2008, modified the order of punishment from that of dismissal to punishment of ‘severe reprimand’, treating the period between dismissal and reinstatement as an extraordinary leave. The petitioner made representation requesting the Authorities to consider the period between dismissal and reinstatement as leave under fundamental Rule 54 Sub-
rule (2), (4) and (7) of Central Civil Services Rules. The said representation was considered by the 3rd respondent and by his detailed order dated 06.10.2012, he rejected the same. Aggrieved by the same the petitioner filed instant writ petition praying to set aside the said order and praying for a direction to respondents to reconsider the appeal submitted by the petitioner at Annexure–B.
4. Heard the learned counsel for the appellant and learned counsel for the respondents. Perused the appeal papers.
5. Learned counsel for the appellant would submit that the learned Single Judge committed an error in dismissing the writ petition without looking into the punishment inflicted on the petitioner which is only ‘severe reprimand’. It is further contended that the penalty of dismissal was modified on the ground that the petitioner was not given fair opportunity. The learned counsel would support that the respondents have duty to consider the petitioner’s representation under Rule 54 of the fundamental Rules and the respondents have failed to consider the same. It is stated that the learned Single Judge has failed to consider the legal position. Hence, prays for allowing the writ appeal.
6. Per contra, learned counsel for the respondents support the order of the learned Single Judge and submits that the respondent-Authorities have rightly passed the order dated 06.10.2012. The petitioner is not entitled for the relief sought for by him and prays for rejection of the appeal.
7. It is an admitted fact that the petitioner was dismissed from service on the proved misconduct of assaulting his Superior Officer and causing injuries on the face and body of Sri. Rakesh Sood, Deputy Commissioner, for which he was imposed with punishment ‘to suffer rigorous imprisonment for one year in civil prison’ and ‘dismissal from service’ which the DIG remitted the sentence of one year rigorous imprisonment and maintained the order of dismissal from service. The petitioner had challenged the said punishment before the High Court of Delhi in writ petition(C) No.2029 of 2006. The Delhi High Court expressed displeasure with regard to imposition of punishment on the petitioner. Sri. Rakesh Sood, Deputy Commandant who was also involved in the incident, against whom awarded DG’s displeasure. Thereafter, the 2nd respondent passed the order on 28.08.2008 commuting sentence of ‘dismissal from service’ to that of ‘Severe Reprimand’. It is to be noted that the petitioner was charged for assaulting his Superior Officer and injuring on his face and body. The said charge is proved. For the proved misconduct and having found guilty of the charges, punishment of ‘Severe Reprimand’ is imposed in place of dismissal. It is not that the petitioner is exonerated of the charges leveled against him. The learned Single Judge taking note of the fact that the petitioner is not fully exonerated of the findings in the enquiry, has exercised discretion under Article 226 of the Constitution of India and has come to the conclusion in the facts and circumstances of the case that the petitioner is not entitled for reconsideration of his representation vide Annexure-B. In fact, taking note of Rule 54, the Authorities have treated the period between date of dismissal to date of reinstatement as earned leave, half paid leave and as an extraordinary leave at petitioner’s credit, by order dated 10.10.2008. Therefore, we are of the view that no ground is made out by the petitioner to interfere with the order passed by the learned Single Judge. There is no merit in the appeal and accordingly, the writ appeal is dismissed.
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JUDGE JUDGE SMJ/CT:KHV