Letters Patent Appeal No.898 OF 2001 Against the judgment and order dated 17.7.2001 passed in CWJC no.11286 of 1999 ------------- SANJAY KUMAR------------------------------------------------------(Appellant) Versus THE UNION OF INDIA & ORS-----------------------------------(Respondents) For the appellant: Mr Anil Kumar Singh For the respondents: None P R E S E N T THE HON'BLE MR. JUSTICE BARIN GHOSH THE HON’BLE MR JUSTICE J.N.SINGH The Hon’ble Mr Justice Barin Ghosh & The Hon’ble Mr Justice J.N.Singh, JJ The appellant, a constable appointed under the Central Reserve Police Force Act.1949 and the Rules framed thereunder, had to take leave of l5 days. He was to report back on 6th May,1999. He reported on 7th August,1999. For over staying his leave, a disciplinary proceeding was initiated. In the disciplinary proceeding the appellant contended that the over stay was not deliberate, but was a consequence of his illness. He purported to substantiate his illness by relying upon a certificate issued by a doctor. The doctor did not depose in the proceeding. Such a certificate, therefore, was not binding on the disciplinary authority. There was nothing else to substantiate illness. It is true that the Enquiry Officer misread the certificate, but ultimately the certificate was not accepted. The appellant could not bring on the records of the - 2 - Enquiry any piece of evidence, which would demonstrate that soon after falling ill on 30.4.1999 he approached his superior officers either through correspondence or otherwise. The first time appellant purported to write a letter was on 10.5.1999, when the leave of the appellant had already expired. For such unauthorized absence, the appellant has been dismissed from service. The appeal against the order of dismissal having been dismissed, the appellant approached this court by filing a writ petition, but that too has been dismissed by the judgment and order under appeal. We have heard learned counsel for the appellant, who wanted to impress us that there was no just reason not to hold that the appellant was compelled to over stay his leave, but in view of what has been narrated above, we have not been impressed. Learned counsel then submitted that it was the contention in the charge sheet that the appellant over stayed his leave and it was not contended that the appellant had deserted. In such circumstances, it was submitted that even assuming the finding that the appellant overstayed his leave - 3 - can not be questioned, but such finding would tantamount to a findings of commitment of a less heinous crime leading to a lesser punishment. He submitted that there is no finding that there was desertion by the appellant and, accordingly, on the finding, no case of more heinous crime had been made out. It was, accordingly, submitted that for a less heinous offence said to have been committed by the appellant, he should have been accorded a minor punishment and not a major punishment, as that of dismissal. Section 9 of the Act defines what are heinous offences, which, amongst others, includes desertion. The said Section provides that offences of the nature mentioned in said section may entail transportation for life for a term of not less than seven years or with imprisonment for a term which may extend to fourteen years or with fine which may extend to three months’ pay or with fine to that extent in addition to such sentence or transportation or imprisonment. Section 10 of the Act defines less heinous offences. Such offences include, amongst others, over stay of leave. The said Section makes it clear that such offences would - 4 - entail imprisonment for a term which may extend to one year, or with fine which may extend to three months’ pay or with both. At the same time section 12 of the Act makes it abundantly clear that every person sentenced under the Act to imprisonment may not be dismissed from the Force. Sub- section(2) of Section 12 makes it abundantly clear that imprisonment under the Act does not automatically entail dismissal from service. In that background one is required to look at section 11 of the Act, which, in lieu of or in addition to suspension or dismissal, authorizes imposition of any one or more of the punishments mentioned therein to any member of the Force, who is considered to be guilty of disobedience, neglect of duty, or remissness in the discharge of any duty or of other misconduct in his capacity as a member of Force. Minor punishments mentioned in the said section are, therefore, either in lieu of or in addition to dismissal. The Act no doubt provides that for a less heinous offence one shall be awarded a minor punishment and for a - 5 - more heinous offence, a major punishment but both of them are punishment by way of imprisonment, which may entail dismissal. In the circumstances, there is no scope of considering the argument that since the facts disclose non- commitment of more heinous offence, a minor punishment should have been accorded. The court was required to see in the background of the case whether the punishment of dismissal was justified or not. In view of the finding recorded in the background of the case and in particular the conduct immediately before expiry of the sanctioned leave clearly establish that the appellant took very casually his obligation to join his post on expiry of leave. In such circumstance, the decision, as was taken to disassociate the appellant from the Force in order to maintain discipline in the Force, was not interferable. That having not been interfered, there is no scope of interferance in the appeal. The appeal fails and is dismissed. (Barin Ghosh,J) (J.N.Singh, J ) Patna High Court The 9th July,2008 Shahid /NAFR - 6 -