CWP No. 13107 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 13107 of 2010 Date of Decision: 27.07.2010 Subhash Chand ...Petitioner Vs. Union of India & Ors. ...Respondents CORAM Hon'ble Mr.Justice Vinod K.Sharma Present: Mr.Rajiv Anand, Advocate, for the petitioner. Mr.C.M.Sharma, Addl. Central Govt. Standing Counsel for the respondents. --- 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in Digest? --- Vinod K.Sharma, J . (Oral) The petitioner has invoked the writ jurisdiction of this court under Articles 226 and 227 of the Constitution of India, seeking a writ in the nature of certiorari for quashing the pre trial and post trial departmental CWP No. 13107 of 2010 2 proceedings, including charge memo dated 23.3.2008, Annexure P.1, and order of compulsory retirement dated 12.3.2009, Annexure P.10, vide which appeal filed against the order of punishment was dismissed, the petitioner has also challenged the order passed on revision by asserting that it has been passed with extraneous consideration. The petitioner was enrolled in the Central Reserve Force on 14.6.1986. On request of the petitioner, he was posted to 5th Signal Battalion for treatment of his two sons, who were suffering from active epileptic attacks and were under treatment at the PGI. In October, 2007, the petitioner while on duty in battalion became unwell due to excessive hypertension and heart problem and was under observation and treatment at Government Medical College and Hospital, Chandigarh. The case of the petitioner is, that even though the petitioner was posted to Chandigarh, on compassionate ground for emergent regular treatment of his children from PGI, Chandigarh, but he was posted and ordered to join duties at Srinagar (J&K). Instead of joining the new place of posting, the petitioner proceeded on sanctioned leave of 40 days from 7.12.2007 onwards. The petitioner was to report on 16.1.2008 on expiry of leave period. The petitioner failed to join the duties on expiry of leave period. The petitioner claims that he got unwell and was under regular treatment from Swami Kalyan Dev Government District Hospital, and was advised bed rest for 6 weeks on 16.1,2008, four weeks on 23.2.2008, three weeks on 26.3.2008, two weeks on 15.4.2008, followed by two weeks on CWP No. 13107 of 2010 3 30.4.2008, four weeks on 15.4.2008 and three days on 19.5.2008. The case of the petitioner is, that his son was also under treatment of epilepsy. The petitioner without any sanctioned leave reported for duty on 4.6.2008 i.e. after overstay of leave by 134 days. Preliminary inquiry was held with regard to the absence of the petitioner and thereafter, a regular inquiry was ordered on the following charges:- “ Article - One That the above named Force No.861190919 Hav./G.D. Subhash Chand C/5 Signal Battalion, CRPF while working as Havildar/G.D. Committed a negligence in which he was relieved from his duties for C/5 Signal on 7.12.2007 at 1945 and 40 days earned leave was accepted. He was to report back on duty on 16.1.2008 (AP) but he did not report and in this way he neglected Section 11(1) of Central Reserve Police Force Act, 1949 being a member of the force. Article- Two That above named Force No.861190919 Hav./G.D. Subhash Chand C/5 Signal Battalion, CRPF was relived for C/5 Signal on 7.12.07 at 1945 hrs and 40 days earned leave was accepted. He was to report back on duty on 16.1.08 (AP) but he did not reported for duty on time. As per letter No.T.No.5/08- Admn dated 10.02.08, 24.02.08 and 08.03.08 of Company Commander C/5 Signal orders were issued to report back on CWP No. 13107 of 2010 4 duty but he neither sent any reply to the same nor reported back on duty while obeying the order/directions of his senior officers. In this way he disobeyed the order of the senior officers which is against discipline under Section 11(1) of Central Reserve Police Force Act, 1949 and is punishable.” Inquiry officer found the petitioner guilty of charges. When the matter was put up before the Punishing Authority, it was noticed that the inquiry officer had not followed the rules and principles of natural justice in holding the petitioner guilty of charges. Accordingly a de novo inquiry was ordered. Office order passed by the competent authority reads as under:- “ Whereas an inquiry under section 11(1) of CRPF Act, 1949 and rule 27 of CRPF Rules 1955 is being held against No.861190919 HC/GD Subhash Chand C/5 Signal Bn.CRPF. 2. Whereas Shri Sunil Kumar Asstt Comdt was appointed Inquiry Officer to esquire into the charge against No.861190919 HC/GD Subhash Chand C/5 Signal Bn.CRPF vide this office order No.P.VIII.1/2008-5-EC-II dated 19.08.2008. 3. And whereas Shri Sunil Kumar Khatri after having herd and recorded the whole evidence,completed the inquiry was submitted its report vide his ltr No.G.II.1/08-09 – SKK dated23.10.2008, but ongoing through the inquiry it has been CWP No. 13107 of 2010 5 revealed that the inquiry has not been done,as per laid down procedure as sufficient opportunity to defend himself has not been given to the delinquent by the Enquiry officer during the course of enquiry, and it is necessary to appoint another officer as Inquiry Officer to inquire into the charges against No.861190919 HC/GD Subhash Chand of C/5 Signal CRPF farmed vide this office Memorandum No.P.VIII.1/2008-5- S/G- EC-II dated 23.7.2008. 4. Now therefore, the undersigned in exercise of the powers conferred by Rule 27 of CRPF Rules, 1955 hereby appoints Shri Manoj Kumar Songra, Asstt Comdt as Inquiry officer to inquire into the charges de-novo framed against No.8611190919HC/GD Subhash Chand in place of Sunil Kumar Khatri, Asst.Comdt.” The petitioner thereafter was associated by the Inquiry Officer in the inquiry and thereafter on consideration of evidence led before the inquiry officer, a detailed inquiry report was submitted holding the petitioner guilty of charges. The operative part of the finding of the inquiry officer reads as under:- “ After perusing all the evidence and documents it was found that No.861190919 Hav./G.D. Subhash Chand C/5 Signal Battalion, CRPF was relieved for C/5 Company on CWP No. 13107 of 2010 6 7.12.07at 1945 hrs and 40 days earned leave was accepted. He was to report back on duty on 16.1.08 (AP) but he did not reported for duty on time. It was told by the official that he remained absent due to illness, in respect of which he got himself treated as per medical certificate dated 21.5.2008 of District Hospital Muzaffarnagar and other related OPD slips bearing No.10300, 72244, 84712. Therefore, the above said official was on medical rest on the advice of the doctor of Government Hospital as he was suffering from MILDYPERTENSION-C HEAD and was declared fit by the District Hospital Muzaffarnagar on21.05.2008.On perusal it was found that all the certificates were attested by a registered doctor. 1. But on perusal of the original slip of OPD bearing No.10300 it was found that the above doctor during the treatment period from 16.01.2008 to 26.03.2008 used the same day and pen for the same. 2. Official was to report back on duty on 16.01.08 but the above said Havildar as per OPD Slip No.10300 started his treatment for MILD HYPERTENSION-C HEAD on 16.01.08, which depicts the wrong intention of the officer. 3. As per the documents presented by the officer he was suffering from MILD HYUPERTENSION-C HEAD CWP No. 13107 of 2010 7 and was getting himself treated in Swami Kalyan Dev State District Hospital Muzaffarnagar as an OPD patient. Therefore, the officer was neither admitted for any serious illness in the hospital nor was so disable that he could not inform this office in respect of his illness or request fore extension of leave after reporting back. 4. Every kind of facility is available in Chandigarh for treating all types of illness but the non receipt of the letters sent by this office by the officer on one pretext or the other clearly shows that his absence from leave was unauthorised in the garb of medical documents. No.861190919 Hav./G.D. Subhash Chand C/5 Signal Battalion, CRPF was relieved from his service on 7.12.07 at 1945 hrs for C/5 Company and 40 days earned leave was accepted. He had to report back on duty on16.1.08. But he did not report back on duty on time. As per letter No.T.No.5/08-Admn. Dated 10.02.08, 24.02.08 and 08.03.08 of Company Commander C/5 Signal orders were issued to report back on duty but he neither sent any reply to the same nor reported back on duty while obeying the order/directions of his senior officers. Hav.Subhash Chand presented the receipts of Telegrams sent CWP No. 13107 of 2010 8 on dated 20.01.08 to Commandant 5 Sig. And dated 20.03.08, 26.04.08 and 03.01.08 to O.C. C/5 Sig. The official through letter dated 13.01.09 sent by J.T.O. (CSC- 20) Tele Exchange Bldg. Sec.20-C, Chandigarh to C.O. 5 Sig. Batt. In respect of delivery of the telegram, proved that on dated 29.01.08 the telegram was received at Tele Exchange Building Sector 20 Chandigarh and on the same day at 1730 hrs the same was delivered to the gate keeper. The office No. of the same is C-10 dated 29.01.08. It is found from this that the officer tried to give information about his illness through the telegram but the officer did not send any medical document or not even tried to know about the acceptance of extension of leave by the Company Office or C/5 Signal. On dated 13.05.08 a telegram was received at C/5 Sig. Batt. Sent by Hav/GD Subhash Chand, in which it was written that “SIR I M VERY ILL PLEASE EXTEND MY LEAVE.” Registered letter No.T.No.1/08-Local dated 10.02.08 sent by C/5 Signal Battalion at the house of the officer in which Subhash Chand was asked to report back on duty was not received back, which shows that this letter was received by the officer or any of his relative at his house but its reply was not sent. Out of which letter sent on 24.02.2008 was received back in the company office on 7.03.08 with the following remarks of the CWP No. 13107 of 2010 9 postman” the receiver started living somewhere outside Ratheri for the past many days, due to which the letter is returned back.” As per Telegram No.T-No.1/08-Local dated 13.03.08 of C/5 Sig. Battalion registered letter was sent at the house of No.861190919 Hav./G.D. Subhash Chand which was received back in this office. According to the remarks of postman, “receiver started living somewhere outside Ratheri for the past many days,due to which the letter is returned back”. In this respect the officer neither informed C/5 Signal regarding change of address nor informed Headquarter 5 Signal. Due to which the orders sent by the office were again received back. This act is also against the rituals of the force because at the time of grant of earned leave to the officer any kind of comminution is being sent at his permanent address which means that the officer intentionally tried to misguide the department by changing his address. In addition to this the officer never tried to present the document relating to his treatment to this office or to C/5 Signal, through which the fact of his illness could be established. The officer has completed about 22 years of service in the force and it is not believable at all that the officer is unaware of the departmental proceedings. Keeping in view the statements of the witnesses, CWP No. 13107 of 2010 10 prosecution evidence and defence evidence it is clear that No.861190919 Hav./G.D. Subhash Chand is an undisciplined officer and he illegally remained absent from leave intentionally in the garb of medical documents and temporarily remained absent from his permanent address in order to save himself from receiving the documents sent by this office. Officer was not suffering from any serious illness, due to which he remained admit in any hospital or failed to inform this office about his illness. The medical document presented by him clearly shows that he was an OPD patient and in such a situation he could inform his department. In addition to this, the OPD slips presented by the officer do not have the registration date to prove the fact of his daily treatment in the hospital,which shows that the above documents were managed keeping in view his defence. On the basis of the above facts both the allegations leveled against the officers stand proved without any doubt.” The petitioner submitted his representation against the finding recorded by the inquiry officer. The competent authority agreed with the finding of the inquiry officer and passed an order of punishment which reads as under:- “ Keeping in view the facts and circumstances of this case and while using my discretion, there is no uncertainly with CWP No. 13107 of 2010 11 regard to the fact that the allegations leveled as per Article No.1 and 2 of the accusation letter against No.861190919 Hav./G.D. Subhash Chand stands proved. I am of the view that strict disciplined action should betaken against him for the offence committed by him. But keeping in view his long service tenure and responsibilities of family, I adopt a lenient view towards him and under Section 11(1) of CRPF Act, 1949 and Rules 27 of CRPF Rules, 1955 while using my powers pass the following orders: A) Under the provisions of Rule 27 of CRPF Rules 1955 No.861190919 Hav./G.D. Subhash Chand C/5 Signal Battalion, is punished with “COMPULSORY RETIREMENT FROM SERVICE” w.e.f. 12.03.2009 and along with this under the provisions of Rule 40 of Central Civil Services (Pension) Rules 1972 from the date of COMPULSORY RETIREMENT FROM SERVICE i.e. 12.03.2009, 100% pension and gratuity would be granted to him. In continuation thereof, he is also suspended from the services of this force from dated 12.03.2009. b) The period of absence of the accused i.e. from 17.01.2008 to 02.06.2008 total 138 days are prescribed as DIES NON and as per provisions of Rule 27 of Central Civil Services (Pension) Rules 1972 the above CWP No. 13107 of 2010 12 period is CONDONED from the period of his previous service and for calculation of his pension payment. (c) If the accused ever won any medal, award etc. during his service tenure or is due to receive then as per the provisions of Section 12(1) of CRPF Act, 1949 the same would be confiscated. (d) The government kit and articles issue dot the above said Hav/GD be computed and if there is any deficiency then the same would be recovered from his pending payment and be got deposited in the government treasury. (e) As per provisions of Order No.46/2001 above said Hav/GD the identification card issued to him be cancelled. (f) If there is any government/ non government due pending towards the above said Hav/GD the same be recovered from his payable amount. Complete description of Residential Town of the accused is as under:- Force No. : 861190919 Post: : Hav/GD Name : Subhash Chand Father's name : Sh.Bhagwat Ram Vill.&PO : Ratheri CWP No. 13107 of 2010 13 Police Station: New Mandi, Muzaffarnagar State : Uttar Pradesh” In appeal, the appellate authority did not find any merit and also took note of his past service i.e.:- “ (i) Punishment awarded to the appellant during his service: Sr.No. Details 1. 07 days confinement to Quarter Guard from 13/10/86 to19.10.86 with forfeiture of pay and allowances due to desertion from camp. 2. Censure due to indiscipline activities in Tear Gas Squad during the year 2001. 3. Severe Censure during the year 2005 due to overstay of leave for 09 days. 4. Severe Censure during Sept, 2007 due to wrong maintenance of Mess Records and non-preparation of food as per Mess Menu. 5. Censure during Nov.2007 as he ate food of his junior and quarreled with him. (ii) Overstal of leave of the appellant during his service: 1. 02 days on 7.9.86 & 8.9.86 regularised as leave without pay. CWP No. 13107 of 2010 14 2. 20 daysfrom14.5.87 to 2.6.87 regularised as extraordinary leave/leave without pay. 3. 19 days from10.6.96 to 28.6.96 regularised as leave half pay (with no leave salary). 4. 19 days from 25.9.96 to 13.10.96 regularised as leave half pay (with no leave salary). 5. 08 days from 21.5.97 to 18.5.97 regularised as leave half pay (with no leave salary). 6. 58 days from 5.12.97 to 31.1.97 regularised as leave half pay (with no leave salary). 7. 56 days from 10.12.03 to 3.2.2004 regularised as leave half pay (with no leave salary). 8. 71 days from 16.4.06 to 24.6.06 regularised as leave half pay (with no leave salary). 9. 09 days from 8.03.05 to 16.3.05 regularised as leave half pay (with no leave salary). 10. 01 days on 5.9.97 regularized as leave half pay (with no leave salary). The appellate authority dismissed the appeal. Revisional authority also passed detailed order rejecting the revision. It is pertinent to mention here, that the impugned orders of punishment passed by the appellate authority as well as revisional authority CWP No. 13107 of 2010 15 are detailed orders dealing with the contentions raised by the petitioner, in his defence. Mr.Rajiv Anand, learned counsel appearing on behalf of the petitioner challenged the impugned orders, as well as holding of inquiry, firstly by contending, that it was not up to the punishing authority to hold of de novo inquiry, as the competent authority could have only asked for additional report. In support of his contention learned counsel for the petitioner placed reliance on the judgment of Hon'ble Supreme Court in the case of K.R.Deb Vs. Collector of Central Excise, Shillong 1971 (2) SCC 102, wherein Hon'ble Supreme Court was pleased to lay down as under:- “11. It seems to us that Rule 15, on the face of it, really provides for one inquiry but it may be possible if in a particular case there has been no proper inquiry because some serious defect has crept into the inquiry or some important witnesses were not available at the time of the inquiry or were not examined for some other reason, the Disciplinary Authority may ask the Inquiry Officer to record further evidence. But there is no provision in rule 15 for completely setting aside previous inquiries on the ground that the report- of, the Inquiring Officer or Officers does not appeal to the disciplinary, Authority. The Disciplinary Authority has enough powers to reconsider the evidence itself and come to its own conclusion under rule 9. CWP No. 13107 of 2010 16 12. In our view the rules do not contemplate an action such as was taken by the Collector on February 13, 1962. It seems to us that the Collector, instead of taking responsibility himself, was determined to get" some officer to report against the appellant. The procedure adopted was not only not warranted by the rules but was harassing to the appellant. 13. Before the Judicial commissioner the point was put slightly differently and, it was urged that the proceedings showed that the Disciplinary Authority had made up its mind to dismiss the appellant. The Judicial Commissioner held that on the facts it could not be said that the Disciplinary Authority was prejudiced against the appellant. But it seems to us that on the material on record a suspicion does arise, that the Collector was determined to get some Inquiry Officer to report against the appellant. 14. In the result we hold that no proper inquiry has been conducted in the case and, therefore, there has been a breach of art. 311(2) of the Constitution. The appeal is accordingly allowed and the order dated June 4, 1962 quashed. and it is declared that the appellant should be treated as still continuing in service. He should be paid his pay and allowances for the period he has been out of office. The appellant will have his costs here and in the Court CWP No. 13107 of 2010 17 of the Judicial Commissioner. Fees shall be payable by the appellant to his advocate and be allowed on taxation.” On consideration, I find no force in this contention. In the case of K.R.Deb Vs. Collector of Central Excise, Shillong (supra), Hon'ble Supreme Court held that the inquiry officer had exonerated the officer of the charges thrice and it was in these circumstances that the Hon'ble Supreme Court held that no de novo inquiry could have been ordered, and that too 4th time, when the officers were exonerated earlier in three inquiries by the inquiry officer. In the present case, order holding de novo inquiry, was for the reason that the inquiry had stood vitiated, for violation of principles of natural justice and the Rules and Regulations, which had caused prejudice to the petitioner. The de novo enquiry, therefore, was in the interest of the petitioner. Thus, no fault can be found with the holding of inquiry afresh, by giving chance to the petitioner to defend himself. Learned counsel for the petitioner thereafter contended that the finding recorded by the Inquiry Officer stands vitiated, as the Inquiry Officer had called for report from the hospital. The report received, showed that the certificates produced by the petitioner in his support were genuine and therefore, the impugned orders suffer from patent illegality, as the enquiry officer failed to take note of the report. This contention of the learned counsel for the petitioner is again misconceived. It is not in dispute that the report was not received by CWP No. 13107 of 2010 18 the Inquiry Officer till conclusion of enquiry and submission of the report. It was only received thereafter. The contention of the learned counsel for the petitioner also cannot be accepted for the reason that it was not recorded by the Inquiry Officer that the certificates were not issued by the authorities, but the inquiry officer recorded a finding that these slips, were prepared on the same day, as all slips were written with the same pen. Though different dates were mentioned. The finding by the Inquiry Officer, thus, were based on appreciation of document on record, which has been accepted. No fault can be found with the report on the contentions raised, specially when it was proved that the petitioner evaded the receiving of information, from the department by claiming to have shifted to a different place, without intimation to the department. This stand was not permissible under the Service Rules. This conduct cannot be expected from an employee who had put in long service, in the department and was in know of the rules and regulations. The record of the petitioner is also such which leads to the conclusion, that the petitioner was habitual in overstaying the leave. No other point was urged. The contentions raised by the learned counsel for the petitioner, therefore, stand rejected, for the reasons recorded. No merit. Dismissed. (Vinod K.Sharma) 27.07.2010 Judge rp