Petitioner was a Constable in Central Reserve Police Force and has been removed from service vide order dated 28th April, 2015. An appeal and revision filed against the order of removal has also been rejected on 21.7.2015 and 3.2.2016. Aggrieved by these orders, the petitioner is before this Court.
Petitioner was appointed in respondent CRPF on 18.2.2010. It appears that in the month of November, 2013 an application was moved by petitioner for grant of 30 days' leave on account of various domestic problems, but the authority concerned allowed 20 days' leave to petitioner which was to remain effective from 12.11.2013 to 1.12.2013. The petitioner was required to resume his duty on 2.12.2013, but he did not do so. Certain orders were issued by the authorities requiring the petitioner to appear, but he failed to do so. Ultimately warrants of arrest were issued against the petitioner on 24.4.2014. It appears that petitioner was thereafter declared deserter and disciplinary proceedings were initiated against him. Disciplinary proceedings got initiated on 3.7.2014 and two charges were levelled against him. The first charge was with regard to petitioner having not reported for duty after availing 20 days' leave; whereas the second charge was in respect of the failure on part of the petitioner to comply with various notices issued to him; whereby the petitioner was required to report for work. The act of petitioner has been treated to be misconduct in terms of Section 11 of the Central Reserve Police Force Act, 1949.
Petitioner submitted a reply in which it was asserted that petitioner had fallen seriously ill and he was suffering from psychological disorder on account of which he was not in fit state of mind to resume work. Petitioner further stated that he has been sending various letters informing the authorities of his medical illness. It has also been asserted that petitioner was continuously treated at Regional Institution of Medical Sciences and his treatment was continuing. Petitioner in such circumstances, submitted his unconditional apology and urged that since petitioner was not well, therefore, he could not report for work and that his absence from duty is not deliberate and intentional.
The enquiry proceeded in the matter and the enquiry report dated 1.4.2015 is on record. The Enquiry Officer has opined that petitioner has admittedly not reported for work on 2.12.2013. The Enquiry Officer has taken note of the reply of petitioner as per which he was suffering from psychological disorder and was being treated in the Regional Institute of Medical Sciences for his illness. The Eqnuiry Officer has, however, recorded that petitioner's act of not joining after the leave came to an end amounts to an act of misconduct and, therefore, the charge against the petitioner has been held to be proved. Based upon such enquiry report the orders of punishment have been passed against the petitioner in which the facts noticed above have been reiterated. Orders impugned are primarily assailed on the ground that petitioner's plea that he could not join on account of his severe mental illness has not been examined by the Enquiry Officer and his plea in that regard has also not been disbelieved. It is contended that unless the authorities found petitioner's plea of suffering from seriously mental disorder to be factually incorrect the absence from duty could not be presumed to have been intentional and deliberate so as to constitute an act of misconduct. Reliance is placed upon a judgment of the Supreme Court in Krushnakant B. Parmar Vs. Union of India and another; 2012 (3) SCC 178. The Supreme Court in paragraphs 16, 17 and 18 of the judgment has been pleased to hold as under:-
"16. In the case of appellant referring to unauthorised absence the disciplinary authority alleged that he failed to maintain devotion of duty and his behaviour was unbecoming of a Government servant. The question whether `unauthorised absence from duty' amounts to failure of devotion to duty or behaviour unbecoming of a Government servant cannot be decided without deciding the question whether absence is wilful or because of compelling circumstances.
17. If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence can not be held to be wilful. Absence from duty without any application or prior permission may amount to unauthorised absence, but it does not always mean wilful. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalisation, etc., but in such case the employee cannot be held guilty of failure of devotion to duty or behaviour unbecoming of a Government servant.
18. In a Departmental proceeding, if allegation of unauthorised absence from duty is made, the disciplinary authority is required to prove that the absence is wilful, in absence of such finding, the absence will not amount to misconduct."
In the facts of this case no finding is returned by the enquiry officer that absence of 221 days by the petitioner is wilful. Various medical certificates are noticed in the enquiry report explaining existence of compelling circumstances on account of which the petitioner could not report for work. The defence of petitioner about existence of compelling circumstances has also not been adverted to in the enquiry report. Non consideration of petitioner's defence clearly vitiates the enquiry report itself.
For the reasons recorded above, the writ petition succeeds and is allowed. The orders impugned, dated 28.4.2015, 21.7.2015 and 3.2.2016 stands quashed.
Matter stands remitted to the disciplinary authority for consideration of cause in light of the above observations. The petitioner shall be at liberty to annex material in support of his illness and the defence of the petitioner in that regard would be got examined, on merits. A fresh order would be passed within a period of three months. The question of grant of backwages shall abide by the fresh orders to be passed by the authority, as indicated above. Petitioner's reinstatement in the meantime shall be made only for the purposes of conducting the enquiry from the stage it has gone bad.
Order Date :- 22.2.2021 Ranjeet Sahu