THE HON’BLE MR JUSTICE R. KANTHA RAO W.P.No.14868 of 2001 Date:03.08.2011 Between: Ch. Prabhakar Rao …Petitioner And The Deputy Inspector General of Police, New Delhi and three others … Respondents THE HON’BLE MR JUSTICE R. KANTHA RAO W.P.No.14868 of 2001 ORDER: This writ petition is filed under Article 226 of the Constitution of India seeking issuance of writ of mandamus declaring that the action of the respondents 1 and 3 in dismissing the petitioner from service vide proceedings No.P.VII2/98, ESTT- II, dated 11.08.1998 of the third respondent which was confirmed by the first respondent vide proceedings No.R.XIII-4/98-E.C.III, dated 22.12.1998, as illegal, arbitrary and consequently to direct the respondents to reinstate the petitioner into service as Constable in C.R.P.F. with all other consequential benefits. 2. I have heard the learned counsel appearing for the petitioner and the respondents. 3. The brief facts necessary for considering the present writ petition may be stated as follows: 4. The petitioner was recruited as C.T.(Constable) at the Group Centre, CRPF in Hyderabad in the year 1998. While he was working in the 55 Battalion, CRPF in Jaipur, Rajasthan, he applied for 60 days earned leave with effect from 16.01.1997 to 16.03.1997 to attend his personal affairs at his native place. The said leave was granted. He submits that though after the expiry of the leave, he had to report duty, he could not join due to some unforeseen calamities, such as, his son aged 4 years broke his leg in an accident, his mother and he himself fell sick which made him to spend nearly six months in the hospitals. According to him, due to the said reasons, he became imbalanced and requested the Commandant -3rd respondent by representation dated 08.09.1997 to discharge him from service. However, the third respondent without considering his representation directed him to report duty. In obedience to the orders of the third respondent dated 16.09.1997, he joined duty on 29.04.1998. 5. The version of the petitioner that his over-staying from duty after expiry of leave from 17.03.1999 to 08.03.1998 was not willful but under the circumstances which were beyond his control. He explained that he hails from a very poor background, pursued his studies with great difficulty, by the grace of God, he was selected for the job in CRPF and he cannot afford to lose the job under any circumstances. His over-staying from duties cannot therefore, said to be willful disobedience of the orders of the superiors. 6. The petitioner further submitted that for the first time he was issued a memo by the third respondent vide his proceedings No. P.VIII-2/98-55-EC.II, dated 11.02.1998 for disobedience and neglect of duty and a departmental enquiry was conducted against him as per claim in requisite charges. After receiving the enquiry report, the third respondent-disciplinary authority vide proceedings No.P.VIII-2/98-Estt.II, dated 11.08.1998 imposed on him the penalty of dismissal from service. 7. Against the said order, the petitioner preferred an appeal to the first respondent herein on 20.10.1998. The first respondent rejected his appeal by his proceedings No.R.XIII-4/98.EC.III, dated 22.12.1998 on the sole ground that his absence from duty for a period of 11 months and 23 days could not be explained by any authentic proof, justifying such options. But, it is the version of the petitioner that he submitted some medical certificates before the third respondent and they were not at all taken in to consideration with a view to impose on him the severe penalty of dismissal from service. 8. He further submitted that he had put in nearly 10 years of service in CRPF. There were no allegations of any sort of misconduct against him except the only charge being the present one for over-staying after the expiry of the leave period and it is submitted by the petitioner that it was under the circumstances which were beyond his control, but not willful as held by the authorities. 9. It is further submitted that under Central Reserve Police Force Act, 1949 the offences were classified under Sections 9 and 10 as more heinous offences and less heinous offences and his case falls under Section 10(m) of the Act. It is considered to be less heinous offence for which the penalty of dismissal from service is unwarranted and contrary to law. 10. In the counter affidavit filed by the respondents it has been contended, inter alia that a regular departmental enquiry was conducted against the petitioner duly framing the article of charges by the enquiry officer vide order No. P.VIII-2/98-55-EC.II, dated 21.02.1998. The petitioner was sanctioned 60 days of earned leave with effect from 16.01.1997 to 16.03.1997 on the ground of illness of his wife. He filed an application for extension of leave for one month vide his application dated 16.03.1997, but his extension of leave was not granted and he was directed by the Officer Commandant, A/55 Bn.CRPF for rejoining duty forthwith vide letter No. L.II-2/97-A/55, dated 20.04.1997 and 26.04.1997. The petitioner neither reported for duty nor responded to the letters. As regards the submission that the petitioner had number of incidents one after another in his family which made him to over-stay the leave by attending the hospitals for six months, he applied for discharge vide his application dated 08.09.1997, it is contended that the petitioner was informed that he should first rejoin his duty and deposit three months pay and allowances as per the existing directions since he had not completed 10 years of service, the petitioner did not rejoined the duty, but continued to remain absent without leave. 11. It has been further contended by the respondents that as per the rules in force at relevant time, since the petitioner over- stayed leave period willfully for 11 months and 23 days without any permission/sanction of eave from competent authority, a regular departmental enquiry was conducted against him, charges framed against him in the departmental enquiry were proved beyond any shadow of doubt by the Enquiry Officer and ultimately penalty of dismissal from service was imposed on him. It is the version of the respondents that the petitioner did not submit any medical certificates and the period of his willful absence has been treated as dies non as per the rules and ultimately he was dismissed from service by the competent authority. 12. The reply affidavit filed by the petitioner in the present case is crucial. Pursuant to the direction of this Court, respondents have produced copies of the records on 27.10.2010. The petitioner after going through the records, filed the reply affidavit. It is submitted by the petitioner in his reply affidavit that the order dated 11.08.1998 passed against him dismissing from service is either vindictive or a result of gross negligence, the said order was passed in utter-disregard of the rules which are required to be followed by the department. According to the petitioner, therefore, the entire proceedings ultimately resulted in order of his dismissal are null and void and are liable to be set aside. It is submitted by the petitioner that the first respondent appellate authority rejected his appeal on the sole ground that he has not produced any material document in support of his case. According to the petitioner, the appeal was rejected without even going through the records and the rejection order dated 22.12.1998 was passed without perusing the material papers. He stated that in page No.8 of the records produced on 27.10.2010, the enquiry officer in his report dated 07.06.1998 stated that the employee submitted medical documents, but the appellate authority without going through the report dated 07.06.1998 of the enquiry officer, passed orders on 22.12.1998 rejecting the appeal filed by the petitioner. 13. Upon perusing the record, it is brought to the notice of this Court by the writ petitioner that all the witnesses who were examined before the Enquiry Officer stated that the petitioner was honest and hard-working, his service record was unblemished and he had never over-stayed leave previously. But due to unavoidable circumstances and the illness of his mother, son and other family members, he was compelled to extend the sanctioned leave. Therefore, according to the petitioner, the order passed by the appellate authority is without considering the findings of the Enquiry Officer and also the evidence recorded by the Enquiry Officer. He further submitted that he produced medical certificates along with the writ petition. 14. It is further submitted by the petitioner that the alleged enquiry was not conducted in accordance with CRPF Standing Order No.20/2001, Rule 14 of CCS CCA Rules, 1956 and Rule 27 of CRPF Rules, 1955. The records produced by the respondents reveal that the statement of the petitioner was not recorded and that the respondents failed to produce the copy of the statement recorded by the Enquiry Officer. He also submitted that the statements of witnesses were recorded in his absence and therefore, the whole enquiry is vitiated, null and void for not following the procedure prescribed under the rules. 15. It is also submitted by the petitioner that no show cause notice was ever served on him before imposing penalty of dismissal and no opportunity of being heard was ever given to him as required under para 20 of CRPF Standing Order No.20/2001. 16. It is further submitted that the competent authority has never rejected his request dated 16.03.1997 for extension of leave and there is nothing on record to suggest that the request for extension of leave made by him to the third respondent has ever been considered at any stage. It is further submitted that the Enquiry Officer did not permit him to cross examine the witnesses as required under Sub-para 3 of para 4 of CRPF Standing order No.20 of 2001 and the records establish that the Enquiry Officer has recorded the statements of witnesses in the absence of the petitioner. Nextly, it has been submitted that the disciplinary authority, who was competent to grant leave and initiate disciplinary proceedings may at its discretion was entitled to secure a Second Medical Opinion, but the Disciplinary Authority has not obtained the second medical opinion in connection with the extension of leave on medical grounds. Further it has been submitted that the departmental Enquiry conducted under Section 11(1) of CRPF Act, 1949 is meant for awarding minor punishments, the dismissal order therefore, was not passed by way of penalty, but in exercise of power under Section 11(1) of CRPF Act, 1949. Thus, it is submitted by the petitioner that the guarantee given to an employee under Article 14 and 311 of the Constitution cannot be taken away by the employer purportedly invoking the power under CRPF Act and Rules. 17. It is also submitted by him that para 14 of CRPF Standing Order No.20/2001 says that the disciplinary authority should ensure that the enquiry should be in accordance with the principles of natural justice and the quantum of punishment awarded should be proportionate to the gravity of the charge. But the disciplinary authority violated the said standing order. It is further submitted that a single act of absence, when the petitioner has produced medical certificate in support of his extension of leave and the petitioner is receiving correspondence from his declared Headquarters, the offence if at all is covered under Section 10(m) of CRPF Act, 1949 and more particularly when his absence period from 17.03.1997 to 08.03.1998 has been dies non vide impugned order dated 11.08.1998, imposing penalty of dismissal from service is illegal and unconstitutional. 18. The specific case of the petitioner is that his application for extension of leave dated 16.03.1997 has never been rejected by any competent authority, the respondents have not adduced any evidence as to such rejection that his application for extension of leave has never been processed/considered by the competent authority. Therefore, the statement made by the respondents in their counter affidavit that the application of the petitioner for extension of leave was rejected is false and misleading. 19. It is further submitted by the petitioner that the very fact that the statement of the petitioner which was said to have been recorded during the course of enquiry was not produced by the respondents clearly shows that no such statement was recorded by the Enquiry Officer and therefore, the entire enquiry shall be treated as null and void. Ultimately it is submitted by the petitioner that the third respondent did not apply his mind to the facts and circumstances of the case and material available on record did not take in to consideration of the past good conduct of the petitioner and the statements given by the witnesses during the course of enquiry were not given their due consideration and that disciplinary authority has not passed any speaking order and therefore, the order passed imposing penalty of dismissal from service which was passed in a routine manner is illegal and liable to be set aside. 20. The learned counsel appearing for the petitioner would submit that the dismissal of the petitioner from his office by the disciplinary authority and the approval of the same by the appellate authority are the result of non-observation of principles of natural justice and non-application of mind. He would further submit that the petitioner was dismissed from service with pre- determined notions without following the proper procedure. It is also submitted by the learned counsel that the findings of the enquiry officer or the evidence before him was not at all considered by the disciplinary authority and while differing with the view taken by the enquiry officer, the disciplinary authority did not assign any cogent reasons and therefore, the order of dismissal being violative of Articles 14 and 311 of the Constitution is liable to be set aside in this writ petition. 21. One of the contentions urged on behalf of the petitioner is that his statement was not at all recorded by the enquiry officer while conducting the enquiry. The respondents failed to prove that any such statement was recorded by the enquiry officer signed by the petitioner herein. The version of the respondents is that the petitioner did not produce any medical record relating to the period of his absence of over-staying duty. But the contention of the petitioner is that, in fact, he filed the medical record and it was not even perused by the enquiry officer. The evidence available on record indicates that the petitioner in fact produced medical record relating to the period of his over-staying duty. The enquiry officer who conducted enquiry against the petitioner specifically mentioned in his enquiry report that all the witnesses stated that the petitioner was sincere to his duty and he never over-stayed the leave during his 10 years of service prior to the period of enquiry. He also mentioned in his report that in his 10 years of service, the petitioner did not receive any punishment and his behaviour and conduct are also of high quality. Though the enquiry officer held that the charges leveled against the petitioner were proved, the substance of the report reveals that there were sufficient reasons for the petitioner for over-staying the leave period. Further, the petitioner sent a letter seeking extension of leave but no evidence has been placed before the enquiry officer by the respondents to show that any such request of the petitioner was ultimately rejected. 22. Learned counsel appearing for the petitioner relied upon a judgment of the Supreme Court reported in UNION OF INDIA AND OTHERS v GIRIRAJ SHARMA[1] wherein the Hon’ble Supreme Court held as follows: “The incumbent while admitting the fact that he had over-stayed the period of leave had explained the circumstances in which it was inevitable for him to continue on leave as he was forced to do so on account of unexpected circumstances. We are of the opinion that the punishment of dismissal for over-staying the period of 12 days in the said circumstances which have not been controverted in the counter is harsh since the circumstances show that it was not his intention to willfully flout the order, but the circumstances forced him to do so. In the result, we see no merit in this appeal but we would modify the order of the High Court by stating that while we affirm the High Court’s order quashing the order of dismissal and directing reinstatement in service with monetary benefits, it will be open to the department, if it so desires, to visit the respondent petitioner with a minor punishment. The appeal will stand disposed of accordingly with no order as to costs.” 23. In the present case, the circumstances for over-staying the leave submitted by the petitioner before the authorities are that during the relevant period some unforeseen calamities occurred in his family, such as, his son who was aged 4 years broke his leg in an accident, he and his mother fell sick and the situation made him to spend nearly six months in the hospitals. He also stated that due to the calamities occurred in his family, he became somewhat imbalanced and sent a representation dated 08.09.1997 to the Commandant-3rd respondent stating that he may be discharged from service. It does not appear that while passing orders, the disciplinary authority did take into consideration any of the circumstances pleaded by the petitioner. Basing on the evidence of the witnesses in the course of the enquiry, the enquiry officer held that over-staying of leave by the petitioner was beyond his control and also that he never overstayed the leave, he was sincere to his duty and his work and conduct are exemplary. If the disciplinary authority if wants to take a different stand is under obligation to assign convincing reasons, but, the disciplinary authority without assigning any convincing reasons, simply passed the order of dismissal in a casual manner. The respondents are not able to show that the medical record produced by the petitioner was considered before passing the order by the enquiry officer or the disciplinary authority. The order passed by the disciplinary authority is not in accordance with the evidence which was forthcoming before the enquiry officer in the course of the enquiry. This Court, therefore, considers that the enquiry was not conducted in accordance with the procedure prescribed by law and as a result of non-observation of principles of natural justice, the order of dismissal passed by the disciplinary authority which is confirmed by the appellate authority is liable to be set aside in this writ petition. 24. Then the question comes up for consideration is as to whether the petitioner is entitled for the remuneration which he would have earned had he been permitted to work. The Supreme Court in DEVENDRA PRATAP NARAIN RAI SHARMA v. STATE OF UTTAR PRADESH AND OTHERS[2] held that when the order of suspension or dismissal is set aside by a Court of law, the effect would be that the employee never been lawfully suspended or dismissed and that he was wrongfully prevented from attending to his duties as a public servant, in such a contingency, it would not be open to the authority to deprive the public servant the remuneration which he would have earned had he been permitted to work. The Supreme Court held that when the dismissal order is set aside by a court of law the employee is entitled for the remuneration which he would have earned had he been permitted to work. 25. For the foregoing reasons, the orders of the third respondent in dismissing the petitioner from service vide Proceedings No.P.VII2/98, ESTT-II, dated 11.08.1998 which was confirmed by the first respondent vide Proceedings No.R.XIII-4/98- E.C.III, dated 22.12.1998 are set aside. The petitioner is reinstated into service with back wages. The writ petition is allowed without any order as to costs. __________________ Date:03.08.2011 R. KANTHA RAO, J Kvrm/ccm HON’BLE MR JUSTICE R. KANTHA RAO W.P.No.14868 OF 2001 DATE:03.08.2011 [1] AIR 1994 SC 215 [2] AIR 1962 SC 1334