Letters Patent Appeal No.921 OF 2007 --- In the matter of an appeal under Clause 10 of the Letters Patent of Patna High Court. ----- 1. THE UNION OF INDIA, THROUGH THE INSPECTOR GENERAL OF POLICE, CENTRAL RESERVE POLICE FORCE, NEW DELHI 2. THE DEPUTY INSPECTOR GENERAL OF POLICE GROUP CENTRE, CENTRAL RESERVE POLICE, NEW DELHI. 3. THE COMMANDANT 54 BN. CENTRAL RESERVE POLICE FORCE, DETT. HEAD QUARTER, ANANTA NAG, JAMMU AND KASHMIR. 4. THE ENQUIRY OFFICER,54 BN.CENTRAL RESERVE POLICE FORCE, DEPTT. HEAD QUARTER, ANANTANAG, JAMMU AND KASHMIR. …RESPONDENT--APPELLANTS Versus MITHLESH KUMAR PATHAK, SON OF NANDLAL PATHAK, RESIDENT OF VILLAGE PANSAI, POSTVILL,, POST MAMAI, POLICE STATION ASARGANJ, DISTRICT MUNGER. ….PETITIONER-RESPONDENT For the Appellant : Mr. Rakesh Kumar Singh(CGC) For the Respondent : Mr. Alok Kumar Choudhary ---- P R E S E N T THE HON'BLE MR. JUSTICE SUDHIR KUMAR KATRIAR THE HON'BLE MR. JUSTICE KISHORE KUMAR MANDAL *** S. K. Katriar & K.K.Mandal,JJ. This appeal under Clause 10 of the Letters Patent of the High Court of Judicature at Patna raises a grievance with respect to the order dated 13.04.2007, passed by a learned Single Judge of this Court in CWJC No.5308 of 2004 (Mithilesh Kumar Pathak vs. The Union of India & Ors.), whereby the writ petition has been allowed, and the orders dismissing the petitioner from the services of the Central Reserve Police Force(hereinafter referred to as the „CRPF‟), on the ground of unauthorized absence and insubordination, has been set aside. 2. A brief statement of facts essential for disposal of the appeal may be indicated. We shall go by the description of the parties appearing in the writ proceedings, and shall draw the basic facts from the writ petition, except by - 2 - specific reference to the present appeal. The writ petitioner(respondent herein), at the relevant point of time, was posted as a constable in the CRPF, considered to be a difficult and non-family posting, in the district of Anantnag, the State of Jammu & Kashmir. The petitioner availed of authorized leave after due permission for the period 21.9.2000 to 12.10.2000. He thereafter, absented himself without permission and information to the authorities for a period of 99 days. The petitioner had, in the meanwhile, received two letters from the authorities which he did not respond to. He reported for duties on 19.01.2001. He was allowed to join, but departmental proceedings were initiated against him, levelling two-fold charges, namely, unauthorized absence for a period of 99 days, and insubordination because of his refusal to respond to the two letters from the Commanding Officer. During the course of enquiry, the writ petitioner took the plea that after he reached his village home, he suffered from infective Hepatitis and was, therefore, advised medication and complete bed rest. He tried to establish his illness on the basis of two medical certificates, issued by the Assistant Civil Surgeon of the nearest government hospital, along with the receipt(s) showing purchase of medicines. In so far as the charge of insubordination is concerned, he did receive the two letters of the Commanding Officer but was unable to respond to the same because his village home is in a remote interior without a post office. His wife is an illiterate lady and was unable to answer to the same. He had concluded that after he recuperated from his illness and was in a position to travel, he reported for duty. 3. The learned enquiry officer disbelieved the evidence produced by the writ petitioner on the ground that the two medical certificates and the money receipts showing purchase of medicines was in the same pen, the same hand writing, and the same ink. He, therefore, rejected the same as unworthy of - 3 - reliance, having been forged and fabricated for the purpose. As to the second charge, he concluded that the explanation submitted by him for his failure to respond to the two letters of the Commanding Officer to be untenable. Consequently, the learned disciplinary authority inflicted the order of dismissal from service. While passing the order of punishment, the learned disciplinary authority also observed that he was a habitual absentee and was unauthorizedly absent on earlier occasions. The relevant portion of the order of the learned disciplinary authority is reproduced hereinbelow for the facility of quick reference: “As intimated by 54 Bn.CRPF vice his signal No.W. II.1/00-EC.II dated 30.1.2001 found that he is a habitual case of O.S.L. and his previous O.S.L. details are as under: Year Period Total days 1994 13.8.94 to 22.10.94 71 days 1999 04.03.99 to 25.08.99 175 days 2000- 01 13.10.00 to 19.01.01 99 days After due consideration and taking into consideration of all pros and cons, I have come to the conclusion that the offences committed by No.913255984 CT/GD Mithilesh Kumar Pathak of E/54 Bn, CRPF warrants severe punishment. But taking consideration of his young age, I am inclined to take a lenient view and in exercise of powers vested in me u/s 11(1) of CRPF rules 1949 read with Rule 27 of CRPF Rules 1955, I hereby impose penalty of „REMOVAL FROM SERVICE‟ on No.913255984 CT/GD Mithilesh Kumar Pathak of E/54 Bn.CRPF from 31st March, 2001(A.N.) Accordingly he may be struck off the strength of this unit from same date. His particulars are as under:- Force No. Rank and Name :913255984 CT/GD Mithilesh Kumar Pathak - 4 - Father‟s Name Address :Sh. Nandlal Pathak, Vill. Panasai, P.O. Mamai, P.S. Asarganj, Distt. Munger, State Bihar Pin-813 201 D.O.B. : 01.12.1971. D.O.E. : 08th April 1991. I/Mark : A small black mole on the Rt. Chest.” 4. The petitioner‟s departmental appeal and revision failed leading to the writ petition. The same has been allowed on the ground that the learned enquiry officer and the learned disciplinary authority had erred in rejecting the medical certificates produced by the petitioner, which are worthy of reliance. The learned writ Court has also upheld the employee‟s explanation as to insubordination to be cogent and fit to be accepted. Consequently, the writ petition has been allowed and the order of punishment has been set aside. 5. We have perused the materials on record and considered the submissions of the learned counsel for the parties. We disagree with the approach of the learned writ Court which seems to have acted as an appellate court. Law is well-settled that this Court, in exercise of its writ jurisdiction with respect to disciplinary proceedings, exercises a very narrow and limited jurisdiction. The departmental authorities are the forums of facts who have to appreciate the evidence and come to appropriate conclusions on facts. This Court does not exercise the appellate powers and, therefore, should normally desist from appreciating the evidence and interfere with the findings of facts. The learned writ Court seems to have entered into the realm of appreciation of evidence which is the exclusive domain of the departmental authorities. The writ Court can interfere only if the findings of facts are perverse, or it is not possible for a person duly instructed in law to reach those conclusions. The writ Court also normally does not entertain the plea with respect to adequacy of evidence. - 5 - 6. The following observations of the Supreme Court made in the case of Lalit Popli vs. Canara Bank & Ors., reported in 2003 (3) SCC, 583, are relevant in the present context. That was a case where the learned Single Judge of the Delhi High Court set aside the order of punishment. The learned court of appeal in the High Court disagreed with the order of the learned Single Judge, and restored the order of punishment. The Supreme Court upheld the order of the Division Bench. The following observations of the judgment of the Supreme Court are relevant. Paras 11,12 and 22 of the judgment are reproduced hereinbelow: “11. To start with, the approach of the learned Single Judge as regards evidence of V.K.Sakhuja is clearly erroneous. Even if there were adverse remarks (which we find related to 1958-59), that did not affect the credibility of his evidence to treat it as totally irrelevant and to be no evidence in the eye of law. What was required was a careful analysis of evidence, if it was brought to the notice of the authorities that his evidence has been doubted in the past. Nothing could be shown to us as to how the report in this particular case suffers from any infirmity. There is no finding recorded by learned Single Judge to that effect. On that score alone the Division Bench was justified in upsetting the learned Single Judge‟s decision. 12. Sections 45 and 73 of the Indian Evidence Act, 1872(in short “the Evidence Act”) deal with opinion of experts and comparison of signature, writing or seal with others admitted or proved. Section 45 itself provides that the opinions are relevant facts. It is a general rule that the opinion of witnesses possessing peculiar skill is admissible. There was no challenge to the expertise of V.K.Sakhuja. He deposed to have testified in about ten thousand cases relating to disputed documents. Though the employee highlighted certain adverse remarks, it cannot be lost sight of that they were about four decades back. But we need not go into that aspect in detail as no infirmity in the report acted upon by the authority in the present case was noticed or could be pointed out. 22. Considering the limited scope of judicial review, the Division Bench was right in upholding the order of dismissal by setting aside the learned Single Judge‟s order by which interference was made with it. We find no reason to differ from the - 6 - conclusions of the Division Bench. The appeal is without merit and is dismissed accordingly.” 7. It thus appears to us that the learned writ Court exceeded its powers of judicial review and entered into the realm of appreciation of evidence, and adequacy of evidence. We are of the view that the evidence produced by the employee during the course of enquiry was rightly rejected by the departmental authorities. Once we hold that the period of 99 days was unauthorized, the very plea of illness becomes false and, therefore, the plea of insubordination and refusal to respond to the letters of the authority (Commanding Officer) per se stands proved. The writ Court has also found fault with the approach of the learned disciplinary authority in taking into account the petitioner‟s unauthorized absence on two earlier occasions indicated hereinabove leading to the conclusion that he is a habitual absentee. The learned writ Court has observed that it was not open to the learned disciplinary authority to take the same into account for the reasons that it does not form part of the charges. We entirely disagree with the approach of the learned Single Judge for the reasons that the past conduct is always a relevant factor in determining the quantum of punishment, and need not form part of the charges. It is not open to the Court to put such unwarranted and unjustified fetters on the powers of the disciplinary action of the employer. It is after all the employer which pays the salary to the employee and, therefore, is entitled to determine the guilt of the employee and quantum of punishment. To this has to be added the further dimension that the petitioner belongs to uniformed services where there cannot be any let up in discipline and devotion to duties. He unauthorizedly absented himself, and engaged himself in act of insubordination, at a point of time when he was posted in the State of Jammu & Kashmir, a very sensitive international border of this country. He obviously - 7 - did it to avoid the rigours of a difficult position. In the facts and circumstances of the case, we are of the view that the order of dismissal from service is an appropriate punishment imposed upon the petitioner. We accordingly disagree with the order of the learned Single Judge. 8. In the result, we allow this appeal, and restore the order of punishment. There shall be no order as to costs. ( S. K. Katriar ) ( Kishore K. Mandal ) Patna High Court Dated the 5th day of May, 2010 HR/NAFR