HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No. 259 of 2002 Date of Decision: 22.3.2007 Ram singh ……. Petitioner Versus Union of India and Others …….. Respondents. Coram: The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting? Yes. For the petitioner : Mr. Onkar Jairath, Advocate. For the respondents : Mr. Janesh Mahajan, Central Govt. Counsel. --------------------------------------------------------------------------------------------------- Sanjay Karol, J. (Oral) This judgment has been dictated in open court in presence of the learned counsel for the parties. By means of this present writ petition, petitioner has assailed the order dated 28th July, 1997, whereby his services as Constable in SSB have been removed w.e.f. 28th July, 1997. He has also assailed the order dated 29th May, 1998 passed by the Appellate Authority and also the order dated 4.9.2001 passed by the Revisional Authority upholding his removal from service. Petitioner was appointed as Constable in the year 1982 and was posted on temporary duty at SSB, Shamshi, Distt. Kullu (H.P.) in the month of January, 1995. Petitioner was posted as attendant to ailing Whether reporters of Local Papers may be allowed to see the judgment? 2 Constables of Group Centre, Shamshi, who were admitted as indoor patients at Civil Hospital, Shamshi. While on duty, he left without permission /approval of the competent authority on 17th January, 1995 and failed to return and continued to be absent from duty without permission or leave from the competent authority. Two joining notices dated 30th January, 1995 and 1st March, 1995 were issued to the petitioner at his home address through Registered AD, one of which was duly received on his behalf. Inspite of the same, petitioner did not resume his duty nor sent any reply. Since his absence exceeded 60 days, the Court of Inquiry to enquire into the circumstances under which he absented himself was ordered on 31st March, 1995 . Pursuant to the recommendations of the inquiry report, departmental proceedings for misconduct, disobedience of order, neglect of duty and remissness in the discharge of duty being a member of the Force (SSB) under Section 11 (i) of CRPF Act, 1949 were initiated . Statement of articles of charge, statement of imputation of misconduct in support of articles of charge, list of documents and prosecution witnesses were served on him vide office order dated 31st March, 1995. The same stands duly acknowledge by the petitioner. The articles of charge framed against the petitioner are reproduced hereinbelow as under: “ARTICLES-1 6. That said No. 8267292 Const/GD Ram Singh of ‘C’ Coy. while functioning as Constable (GD) during the month of January, 1995, committed misconduct and disobedience of order, neglect of duty, remissness in the discharge of duty in his capacity as member of the Force (SSB) under Section 11 (i) of CRPF Act, 1949 in that No. 8267292 Const. GD Ram Singh 3 absented from GC HQ Shamshi w.e.f. 16.1.1995 (AN) and failed to return on duty till date and is continuing absent from duty without leave/permission of competent authority. 7. Court of Inquiry was conducted and he was declared deserter w.e.f. 17.1.1995 (FN) vide GC, SSB, Shamshi Office order No. PF/8267292/GCS/95/5017-24 dated 26.4.1995. ARTICLES-1I 8. No. 8267292 Const/GD Ram Singh of ‘C’ Coy. while on temporary duty at GC HQ Shamshi was detailed as attendant at C.H. Kullu with the patients No. 8768314 Ct/GD Som Dutt and No. 8868154 Ct/GD Maghir Dass. Both patients were relieved from C.H. Kullu on 14.1.1995 and 17.1.1995 respectively after proper treatment. As per report of Ct./GD Maghir Dass No. 68154, the attendant No. 8267292 Const./GD Ram Singh was still absent from 17.1.1995 (FN) . Two rejoining notices No. 1354-56 dated 30.1.1995 and No. 2812-14 dated 01.3.1995 were issued to him at his home address through Regd. AD and one Regd. AD No. 1354- 56 dated 30.1.1995 was duly received by No. 8267292 Const. /GD Ram Singh. But he did not resume his duty nor sent any reply. When the period of absence exceeded 60 days, a Court of Inquiry to enquire into the circumstances under which he absented himself was ordered vide this office order No. PF- 67292/GCS/95-3898-4002, dated 31.3.1995 and he was declared as deserter.” Inspite of having afforded sufficient and reasonable opportunities, petitioner did not participate in the inquiry at all and based on the material, statements of witnesses, the Inquiry Officer appointed to conduct inquiry held that charges against the petitioner stood duly proved. The disciplinary authority issued a show cause notice dated 29th August, 1995 duly received and acknowledged by the petitioner, proposing the penalty of removal from service. The petitioner did not make any 4 representation and he was removed from service w.e.f. 15.9.1995 and the period of absence from 17.1.1995 to 28.7.1997 was treated as “Dies non” . Aggrieved from the said order of removal from service passed by the disciplinary authority namely; the Commandant, GC, SSB, Shamshi, the appellant preferred an appeal before the Divisional Organiser, Directorate General of Security, who vide his order dated 27th February, 1997, set aside the order of removal dated 16.9.1995 and directed conduct of De-Novo inquiry with full and reasonable opportunity to the petitioner to defend himself. Relevant portion of the order is reproduced hereinbelow:- “II). From the foregoing, I am of the view that despite the merits of the charge, the proceedings appear to have been vitiated due to the lacunae pointed out above in as much as a reasonable opportunity does not appear to have been afforded by holding Departmental Proceedings at a place other than the normal place of duty. The Appellant’s application submitting therewith the medical certificate was not accepted by the Inspector of the GC Office, though, it is not substantiated by any evidence, yet cannot be totally discarded. Had it been taken into account by the Disciplinary Authority or the Enquiry Officer, the scenario would have changed, in the sense that extenuated circumstances would have been taken into account by the Enquiry Officer and the Disciplinary Authority while submitting the findings and passing the final orders respectively. The appellant has submitted two Medical Certificates, one from the Civil Hospital, Kullu and the other from the Sub Divisional Hospital, Sundernagar in support of his sickness as he was suffering from fever, cough & Koch’s abdomen, which is an intestine tuberculosis. Informal consultation with the qualified Medical Officer of Group Centre, Dharampur has revealed that the disease besides affecting the 5 physical health does have adverse effect on the mental conditon of the patient. Therefore, the plea of the Appellant that he was not in a fit mental condition due to his own illness cannot be totally discarded. III) Due to the above lacunae/short-comings, the impugned final orders are hereby quashed and further it is ordered that the Departmental Enquiry may be held ‘DE-NOVO’ giving full and reasonable opportunity to the appellant to defend himself. A copy of the orders may be served on the appellant free of cost under proper receipt through the Commandant, Group Centre, Shamshi.” In compliance of the aforesaid order, removal from service was set aside and further fresh De-Novo departmental inquiry was ordered vide office order dated 26th March, 1997. In the De-Novo inquiry, the charges against the petitioner were again proved and consequently a show cause notice was issued to the petitioner calling for his views as to why the penalty of removal from service be not imposed upon him. After considering the representation made by the petitioner, the disciplinary authority removed the petitioner from service w.e.f. 28th July, 1997. His wilful absence w.e.f. 17th January, 1995 to 28th July, 1997 for 923 days was again treated as “Dies non”. While deciding the penalty, it is pointed out that the disciplinary authority has taken a lenient view, which is evident from the part of the order reproduced as under:- “ I have given an extremely sympathetic consideration to the whole case and have also kept in mind the family condition of the defendant Constable. All the same, I cannot find any reason or justification for the conduct for which he was charge sheeted. His absence without permission for a period of 923 days (w.e.f. 17.1.1995 (FN) to 28.7.1997) is absolutely without any rational justification. I, therefore, do not 6 consider his to be a fit person on whom sympathy should be wasted. However, keeping in mind his future, I would like to amend the proposed punishment in the Show Cause Notice from dismissal to removal from service.” The said order was assailed by the petitioner before the Appellate Authority, who after considering the entire material on record, and giving cogent reasons rejected the appeal filed by the petitioner upholding the order of removal from service vide order dated 28th May, 1998. In exercise of his statutory right, petitioner further preferred revision petition to the Director General, Ministry of Home Affairs, assailing the above mentioned two orders. However, vide order dated 4th August, 2001 , the revision petition was also dismissed. In this view of the matter, the petitioner has assailed the aforesaid orders by way of present writ petition. Notice in the petition has been issued and the respondent has filed joint reply, which is on record. Shri Onkar Jairath, learned counsel appearing for the petitioner has submitted that the entire disciplinary proceedings stand vitiated the fact that there is no provision for holding ‘De-Novo’ inquiry under Rules 27, 28 & 29 of CRPF Rules. He further submits that after setting aside of the dismissal order dated 15.9.1995 petitioner was deemed to be in service and since he has not been paid his salary and emoluments, he was prevented from participating in the disciplinary proceedings. This in itself is a ground which could vitiate the inquiry being against the principles of natural justice. It is further contended that there is non application of mind by the disciplinary authority since the period after the initiation of inquiry has also been taken as wilful absence, which is 7 patently wrong, illegal and perverse. On merits, he does not assail the inquiry report as perverse on the grounds stated above. Lastly, he submits that the penalty order is very harsh, disproportionate and not commensurate with the gravity of misconduct and is thus vioaltive of Articles 14 & 16 of the Constitution of India. While making his submissions, the counsel has relied upon the following judgments:- 1. 1971(2) SCC 102 - K. R. Deb vs. The Collector of Central Excise, Shillong. 2. CWP No. 1103/2001, titled Jaswant Singh vs. Union of India, decided on 21.7.203. 3. U.P. Financial Corpn. & Ors. vs. V. P. Sharma and Anr. 2001 Vol. IV SLR 605 4. Takrej Vasandi alias K. L. Basandhi vs. Union of India and others, 1988 Vol. III, SLR 560 (Head Note –C Para 22), 5. 1996 (III) SLR 319, Kailash Nath Pandey vs. State of U.P. & Ors. 6. 2000(7) SCC 90, Jagdamba Prasad Shukla vs. State of U.P. & Ors. 7. 1999 (2) SCC 10, Kuldeep Singh vs. Commissioner of Police and Others. 8. 2003(2) SCR 188, Chauhan Dhulsinh Chatursinh vs. District Superintendent of Police, Sabarkantha and others. While controverting the submissions made by the learned counsel for the petitioner, Shri Janesh Mahajan, learned counsel appearing for the respondents has reiterated the stand taken by the respondents in its affidavit. He has sought to justify the various orders passed by the authorities, in consonance with the provisions of law and ratio laid down by the Courts. He submits that the inquriy conducted against the petitioner, who had deserted from his duty from Civil Hospital, Kullu, is totally in accordance with law and that his removal from service is 8 also based on cogent and relevant material on record. There has been proper application of mind and the action taken by the respondents authorities is neither illegal nor perverse. The authorities below have taken a sympathetic view in the matter. Therefore, instead of dismissing the petitioner from service, the punishment of removal from service was imposed. Since all the authorities below, namely; the Inquiry Officer, the Appellate Authority and the Revisional Authority have taken the constant stand, therefore, the present case does not warrant any interference by this Hon’ble Court. I propose to deal with the contentions as under:- “It is settled law that while exercising jurisdiction under Article 226 of the Constitution of India, this Court does not act as an appellate authority. Its jurisdiction is circumscribed by limits of judicial review to correct errors of law or procedural errors leading to manifest injustice or violation of principles of natural justice. Judicial review is not akin to adjudication of the case on merits as an appellate authority. (State of A. P. vs. S. Sree Rama Rao, reported in AIR 1963 SC 1723 ). In the narration of facts, I have already stated the various proceedings and stages which have resulted in passing of the final order by the concerned authorities. The petitioner had been afforded reasonable opportunity and supplied with the entire material relied upon by the Inquiry Officer. The petitioner also availed of the statutory right of making representation against the proposed order of punishment. He was heard and duly represented at all times. With regard to the procedure, there is no infraction of any rules or principles of natrural justice at any point of time. It 9 is admitted that the principles of audi altrem pultrem have been fully complied with. It has come on record that the petitioner while being posted on duty in Civil Hospital, Kullu to attend to two patients continuously absented himself without leave and permision which resulted into initiation of the disciplinary proceedigns. His absence is continues and inspite of his earlier order of dismissal from service being set aside, he again did not join his duty against the vacant post. The explanation that the petitioner was unwell and getting treatment in Civil Hospital has not been accepted by the authorities. It is pertinent to note that there is nothing on record to show that at any point of time, petitioner made an endeavour to join his duty. Except for bald statement in para 9 of the petition that the petitioner was not allowed to join his duty, which stands refuted by the respondents in their reply there is nothing on record. In fact, it has been the petitioner’s case that he got conveyed his absence to the superior officer through his relatives. Even with regard to the same, there is no proof. The conduct of the petitioner by leaving ailing patients in the hospital and that too to get money from his relatives and then remained absent from duty for 923 days has been found serious enough for his removal from service. While dealing with the petitioner’s alleged ailment, the Appellate Authority has dealt as under : “Regarding Plea No.2, the claim of the Appellant has not been substantiated during the course of the Departmental Enquiry as no such alleged intimation was received in Group Centre, Shamshi. It seems to be an after thought on the part of the appellant to has prepared a copy in order to justify his unauthorised absence. The medical certificates produced by the appellant disclose that initially when he got himself checked up 10 at District Hospital, Kullu on 18.1.1995, he was checked up of having suffering from ‘PUO’ (with cough) for which he was advised 15 days medical rest . Subsequently, he was diagnosised of being suffering from ‘Koch’s Abdomen’, an altogether different ailment, at Sub Divisional Hospital at Sundernagar District Mandi. As per his own admission, the appellant remained as outdoor patient in Sundernagar and visited the Hospital/Sundernagar about 10 times till 20.10.1995. During this period he had not sent any intimation of his absence and illness to the GC HQ. It is pertinent to mention here that Sub Divisional Hospital, Sundernagar is more than double the distance from his village as compared to the District Hospital, Kullu. Further, the Group Centre HQ has its own M.I. room with qualified MBBS doctors to attend to the Group Centre personnel. It is hard to believe that the appellant could visit Sundernagar (about 75 kms.) 10 times and did not visit GC HQ or District Hospital, Kullu (about 40 kms. ) even once.” In support of his contention that the rules do not provide for holding De-Novo inquiry and, therefore, inquiry and all proceedigns arising thereof are vitiated . Learned counsel has relied upon K.R. Deb and Jaswant Singh cases (supra). In my view, the judgment is not applicable at all. In the present case, in terms of the order dated 27th February, 1997, the Divisional Organiser, SSB set aside the order of dismissal dated 16.9.1995 on the ground that the petitioner had not been afforded reasonable opportunity by holding departmental proceedings at a palce other than the normal place of duty and also the articles of charges were not served upon the petitioner. In fact in 1991 Vol. I SLR 159, Union of India & Ors. vs. Mohd. Ramzan Khan, the Apex Court has held that it is open for the disciplinary authority to record findings on the report and pass an apropriate order including the orders of De-Novo 11 inquiry where the procedure adopted by the Inquiry Ofricer was contrary to the rules and effected the rights of the parties. In this view of the matter, I do not accept the contention of the learned counsel that the entire discliplinary proceedings inlcuding inquiry report and orders stand vitiated. It is no doubt true that the Appellate Authority while setting aside the order of dismissal did make certain observations with regard to the petitioner’s ailment and medical certificate. However, the authority did not come to any conclusion in regard thereto. He had left the matter open for consideration of the Inquiry Officer. The perusal of the record shows that the petitioner failed to join the service even after the earlier order of dismissal was set aside. In the absence of the petitioner’s joining the service, there is no question of he being paid any salary. He had deserted and/or absented without permission. It is not his case that he was forcibly prevented from joining or that he asked for salary and that it was refused. His total absence is a reason enough for the authorities not to pay salary. Therefore, it is not correct to contend that the inquiry stands vitiated for want of payment of salary. On the plea of the penalty imposed being disproportionate, I have already referred to the order passed by the disciplinary authority wehrein a compasioante and sympethatic view has been taken keeping in view the family condition of the petitioner. The proposed penalty of dismissal has been reduced to removal from service. On the issue of punishment being disproportionate to the offence alleged to have been committed by the petitioner, the ratio of law laid down of the apex Court in State of UP vs. Sheo Shanker Lal 12 Srivastava and others, reported in (2006) 3 SCC 276, is reproduced hereinbelow:- “22. It is now well settled that principles of law that the High Court or the Tribunal in exercise of its power of judicial review would not normally interfere with the quantum of punishment. Doctrine of proportionality can be invoked only under certain situations. It is now well settled that the High Court shall be very slow in interfering with the quantum of punishment, unless it is found to be shocking to one’s conscience.” In my view, the authorities below have already taken a compassionate and considerate view in the matter. There is also no merit in the contention that the Inquiry Officer could not have held the petitioner absent for the period after initiation of the inquiry. No other point was urged by the learned counsel for the parties. In view of the aforesaid facts and circumstances, I find no merit in the writ petition and the same is accordingly dismissed. No costs. ( Sanjay Karol ), Judge. March 22, 2007. (rana) 13