Court No. - 34
Reserved on :03.01.2019 Delivered on:30.05.2019
Case :- WRIT - A No. - 40428 of 2004 Petitioner :- Sanjay Kumar Respondent :- Union Of India Thru' Sec., (Defence) And Others Counsel for Petitioner :- Vashistha Tiwari,Awadhesh Rai,B.S. Pankaj,S.K.Singh,Sandeep Kr.Singh,Shivendra Nath Singh Counsel for Respondent :- S.S.C.,Gaurav Tiwari,K.C.Sinha,Naresh Chandra Nishad,P.N.Rai,Pramod Kumar Singh
Hon'ble Sudhir Agarwal,J.
1. Heard Sri Awadhesh Rai, learned counsel for petitioner, learned Standing Counsel for State-respondent and Sri Pramod Kumar Singh, learned counsel for respondent.
2. This writ petition has been filed under Article 226 of Constitution of India by Sanjay Kumar, who was a Constable in Central Reserve Police Force (hereinafter referred to as “C.R.P.F.”) and has been dismissed from service by Commandant-93, Batallion, C.R.P.F., Hajaribagh (State of Jharkhand), vide order dated 12.03.2002; and appeal has been dismissed by Deputy Inspector General of Police (Group Centre), C.R.P.F., U.P., Allahabad (hereinafter referred to as “D.I.G.”) vide order dated 19.08.2004.
3. Facts in brief giving rise to present petition are that petitioner was appointed as Constable in C.R.P.F. in 1994. While posted in 93 Batallion, C.R.P.F., Hajaribagh, he was granted casual leave on 09.04.2001 to 10.04.2001 with permission to leave station on 08.04.2001, being Sunday. However, he did not report for duty till 13.10.2001. Consequently, a departmental enquiry was initiated against him by serving charge sheet dated 26.11.2001. Two charges were levelled, as under :
micU/k&1 mDr cy la[;k 940930434 flikgh lat; dqekj] us flikgh ds in ij dk;Zjr jgrs gq, cy ds lnL; dh gSfl;r ls ds0fj0iq0 cy] vf/kfu;e dh /kkjk 11 ¼1½ ds rgr nqjkpkj dk vijk/k fd;k ftlesa dkfeZd fnukad 18-4-2001 ¼vijkUg½ ls fnukad 13-10-2001 rd dqy 186 fnu fcuk fdlh vodk'k ds l{ke vf/kdkjh dh vuqefr ds fcuk fM;wVh ls vuqifLFkr jgkA micU/k&2 cy la[;k 940930434 flikgh lat; dqekj tks fd Mh@ 93 cVkfy;u ds0fj0iq0 cy eas njLFkkfor gS dks fnukad 9-4-2001 ls 10-4-2001 rd fnu dk vkdfLed vodk'k o fnukad 8-4-2001 jfookj vuqefr ds lkFk Lohd`r fd;k x;k Fkk ,oa rnkuqlkj mDr dkfeZd viuh fM;wVh fu/kkZfjr le; ij gkftj u gksdj fnukad 13-10-2001 ¼vijkUg½ esa dqy 156 fnu xSj gkftj gksdj viuh fM;wVh ij fjiksVZ fd;k tks fd fcuk fdlh vodk'k ds @ l{ke vf/kdkjh dh vuqefr ds fcuk 186 fnuksa rd xSj gkftj jgkA mDr dkfeZd us ds0fj0iq0 cy vf/kfu;e 1949 dh /kkjk 11 ¼1½ ds vuqlkj cy ds lnL; dh gSfl;r ls viuh fM;wVh ds fuokZgu eas vnkpkj dk O;ogkj fd;k gSA ” “Charge (1) Constable Sanjay Kumar, the aforesaid Force No. 940930434, while working on the post of the constable and by virtue of being a member of the force, committed an offence of misconduct u/s 11(1) of the Central Reserve Police force Act; in which he remained absent from duty for a total of 186 days from 18.04.2001 (afternoon) to 13.10.2001 without availing any leave or permission of the competent officer.
Charge (2) Constable Sanjay Kumar, Force No. 940930434, who is posted in D/93 Battalion, was on 08.04.2001 (Sunday) permitted and granted casual leaves from 09.04.2001 to 10.04.2001; and accordingly, he, instead of joining his duty on time, reported for his duty on 13.10.2001 (afternoon) after remaining absent for 156 days; thus, remaining absent for 186 days without any leave/permission of the competent authority. The aforesaid personnel, by virtue of being a member of the force, has committed an offence of misconduct in discharging his duty u/s 11(1) of the CRPF Act, 1949.”
(English translation by Court)
4. One Sri R.K. Singh, Assistant Commandant, 93 Batallion, C.R.P.F., Hazaribagh, was appointed Enquiry Officer, who sent letter dated 19.12.2001 directing petitioner to appear before him on 02.01.2002 at 10.00 A.M. in his personal capacity. However, petitioner was suffering from mental illness, on account whereof, neither he could resume duty nor could attend enquiry on 02.01.2002.
5. Enquiry Officer proceeded ex parte and recorded statements of witnesses. Thereafter, he sent letter dated 14.01.2002 to petitioner stating that statement of witnesses recorded in his absence are being sent for his perusal. Another letter sent by Enquiry Officer that since petitioner had not participated, therefore, enquiry shall proceed ex parte.
6. On 09.02.2002, Enquiry Officer submitted enquiry report holding both charges proved. He also stated in the report that several opportunities were given to petitioner, but he did not appear, therefore, enquiry was concluded ex parte, after recording statements of witnesses and charges are found proved. Copy of enquiry report sent to petitioner by Disciplinary Authority vide letter dated 15.02.2002, giving him 15 days' time to submit reply. Even then, petitioner did not submit reply. Disciplinary Authority then agreed with findings of Enquiry Officer and passed order of petitioner's dismissal from service. Petitioner approached this Court in Civil Misc. Writ Petition No.14949 of 2003, which was dismissed on 09.04.2003 on the ground of availability of alternative remedy of appeal. Thereafter, an appeal was preferred before respondent 2 i.e. D.I.G. and the same has been dismissed by appellate order dated 19.08.2004.
7. Learned counsel for petitioner contended that entire enquiry has been conducted ex parte and the Authorities have not examined the matter that petitioner suffered mental illness, therefore, neither he was in a position to resume duty nor it was possible for him to attend departmental enquiry. In any case, absence from duty for 186 days itself, is not such a serious misconduct so as to justify punishment of dismissal and such punishment is excessive, arbitrary and much beyond the gravity of charges found proved against petitioner.
8. Counsel for petitioner also submitted that desertion or disobey of lawful command of superior officers is an offence under Section 9 of the Central Reserve Police Force Act, 1949 (hereinafter referred to as “Act, 1949”) for which punishment provided therein does not include 'dismissal' or 'removal' from service. He also submitted that Section 9 of Act, 1949 deals with punishments, beyond whereof no punishment could be imposed.
9. I take up the last argument first. Section 9 and 11 of Act, 1949 deals with different proceedings. Section 9 deals with certain acts which constitutes 'offences' for which punishment of imprisonment and fine are provided. Nevertheless, these are criminal acts i.e. offences for which punishment is provided. However, punishment which are subject to disciplinary proceedings are treated to be lesser punishment, since therein act of member of service is not dealt as an offence, but as 'misconduct' in discharge of duties and punishment permissible in disciplinary proceedings are lesser and governed by Section 11 of Act, 1949.
10. These are two different cases. In the present case, petitioner has been proceeded in departmental proceedings under Section 11 read with Rule 27 Chapter VI of The Central Reserve Police Force Rules/Regulations/Scheme, 1955 (hereinafter referred to as “Rules, 1955”). Rule 27 provides for punishment of dismissal after departmental enquiry. Hence, the submission that punishment of dismissal is not provided in statute, hence, could not have been imposed, is unfounded and baseless.
11. Now coming to first aspect that proceedings have been conducted ex parte. Record shows that repeated opportunities were given to petitioner. Various notices were issued to him by Enquiry Officer, giving opportunity to appear before him. Even after recording statements of witnesses ex parte, copies of same were also supplied to petitioner but at no stage, petitioner participated in the proceedings at all. In these circumstances, petitioner cannot be allowed to raise plea of denial of adequate opportunity.
12. Supreme Court in Union of India Vs. B.K. Srivastava AIR 1998 SC 300 held :
“We have been taken through the enquiry proceedings and we find that numerous adjournments were granted to the respondent and on many dates of hearing, he was stated to be on leave on account of ill-health. The respondent was given opportunity to inspect the record which he did. It cannot be said that ... he had been prejudiced in the defence of his case. After examining the evidence on record, the enquiry officer came to the conclusion that the charges stood proved against the respondent. It is not that there was no evidence before the enquiry officer." (emphasis added)
13. Counsel for petitioner submitted that since he was mentally ill, therefore, neither could attend duty after expiry of leave nor could participate in departmental proceedings. In this regard he has placed Certificates/medical prescriptions dated 10.04.2001, 15.08.2001 and 12.10.2001, when a Fitness Certificate was issued. I have gone through photo copies of alleged medical certificates and find that petitioner's grievance is that he suffered mental illness but the Certificate is issued by Dr. C. Rai, MBBS (Bachelor of Medicine, Bachelor of Surgery), D.C.H. (Diploma in Child Health), M.A.G.S. (America), who was allegedly treating petitioner. The document shows that Consulting Doctor was a Child Specialist. Even his qualifications show that he was MBBS and DCH. Moreover, petitioner is resident of Mau and there is a Group Centre of C.R.P.F. at Allahabad, where petitioner could have easily undergone treatment at government expenses in Government Hospital. Why petitioner did not avail treatment in Government Hospital, no explanation has been given.
14. In Fitness Certificate, at page 23 of Paper Book, Consulting Doctor has examined illness of petitioner as hypertension, psychoneurosis and depression, but I do not find any proximity in medical examination of lung, MRI, scan etc. as has been suggested and how a doctor can diagnose psychoneurosis with such medical tests, is not very clear, moreso, when doctor was not a Neurologist or Psychiatrist, but a Child Specialist.
15. Further if petitioner for his treatment could have gone from his village-Kukundaina, Gopaganj to Miti Bahadurganj Mod, Mau, then why he could not travel to Varanasi, which was also nearer and much better medical facilities, that too at government expenses, were available to petitioner. Therefore, I am not satisfied that petitioner had any valid reason for not attending duty and/or enquiry proceedings. He remained absent for almost six months, after expiry of two days' sanctioned leave and also for more than a year, he did not participate in departmental enquiry, without any valid reason.
16. Now coming to quantum of punishment, I am not impressed with submission advanced by learned counsel for petitioner. He was a member of a disciplined force i.e. C.R.P.F., which is always deployed in tough situation and circumstances and he was expected to remain in a strict code of conduct so as to maintain law and order. Here petitioner himself has shown a conduct of lack of devotion to duty and compliance of orders of superior authorities. This conduct of petitioner cannot be said to be justified in any manner and when the charges are found proved, punishment imposed cannot be said disproportionate.
17. Moreover, time and again, Courts have considered the scope of judicial review in the matter of quantum of punishment. Such power of judicial review is limited. It cannot be done in a routine manner.
18. In Chairman and M.D. Bharat Petroleum Corporation Ltd. And Others Vs. T.K. Raju, 2006 (3) SCC 143 referring to earlier decisions in V. Ramanna Vs. APSRTC and Others (2001) 5 ALD 427 and State of Rajasthan and another Vs. Mohammad Ayub Naz JT 2006(1) SC 162, Court said that interference with the quantum of punishment should not be done in a routine manner.
19. In Administrator, Union Territory of Dadra and Nagar Haveli Vs. Gulabhia M. Lad, 2010 (5) SCC 775, Court held:
"In the matter of imposing of sentence, the scope for interference is very limited and restricted to exceptional cases. The jurisdiction of the High Court, to interfere with the quantum of punishment is limited and cannot be exercised without sufficient reasons. The High Court, although has jurisdiction in appropriate case, to consider the question in regard to the quantum of punishment, but it has a limited role to play. It is now well settled that the High Courts, in exercise of powers under Article 226, do not interfere with the quantum of punishment unless there exist sufficient reasons there for. The punishment imposed by the disciplinary authority or the appellate authority unless shocking to the conscience of the court, cannot be subjected to judicial review."
20. In Charanjit Lamba Vs. Commanding Officer, Southern Command and Others, AIR 2010 SC 2462, Court held:
"... the quantum of punishment in disciplinary matters is something that rests primarily with the disciplinary authority. The jurisdiction of a Writ Court or the Administrative Tribunal for that matter is limited to finding out whether the punishment is so outrageously disproportionate as to be suggestive of lack of good faith. What is clear is that while judicially reviewing an order of punishment imposed upon a delinquent employee the Writ Court would not assume the role of an appellate authority. It would not impose a lesser punishment merely because it considers the same to be more reasonable that what the disciplinary authority has imposed. It is only in cases where the punishment is so disproportionate to the gravity of charge that no reasonable person placed in the position of the disciplinary authority could have imposed such a punishment that a Writ Court may step in to interfere with the same."
21. In the above caution, restriction and limitation, as also the expositions of law, it is clear that Court can have judicial review on the quantum of punishment when it is so outrageous and so excessive as to shock the conscience of a person of ordinary prudence. In my view, in the case in hand, conduct of petitioner is not such so as to make punishment disproportionate to the charges proved against him.
22. It has been held repeatedly, if quantum of punishment is found to be shocking or so disproportionate as to no person of ordinary prudence would have come to such conclusion, only then Court may interfere and not otherwise.
23. This Court in Veerpal Singh Vs. Senior Superintendent of Police, Agra & others 2006 (5) ADJ 318 has held as under:
"Lastly the petitioner contended that the punishment is harsh and not commensurating to the offence and therefore, is liable to be set aside. Once the misconduct of the petitioner has been found proved, the scope of interference in the matter of punishment is extremely limited. It is only when the punishment imposed is so disproportionate to the act or omission constituting misconduct that it shocks the conscience of the court or a person of ordinary prudence, only then the court may interfere and not otherwise. In any country where bigamy is an offence, a government servant guilty of committing an offence cannot ask to continue in service after award of minor or lesser punishment. Therefore, I do not find any reason to hold that the punishment imposed in the present case is arbitrary or so disproportionate to the act of misconduct so so as to warrant interference by the Court in exercise of powers under Article 226 of the constitution."
24. In view of above, the writ petition lacks merit. Dismissed accordingly.
25. Interim order, if any, stands vacated.
Order Date : 30.05.2019 Manish Himwan