THE HON’BLE SRI JUSTICE N. RAVI SHANKAR WRIT PETITION NO.2742 OF 2000 Date: 18.10.2011 Between: P.R.Mali …..Petitioner AND The Inspector General of Police, South Sector, CRPF office at Banjara Hills, Hyderabad and another …..Respondents THE COURT MADE THE FOLLOWING: THE HON’BLE SRI JUSTICE N. RAVI SHANKAR WRIT PETITION NO.2742 OF 2000 ORDER: In this writ petition under Article 226 of the Constitution the petitioner, who is a former Sepoi/Driver in the Central Reserve Police Force (CRPF), is seeking a writ of certiorari for quashing the order dated 25.09.1997 of the second respondent i.e. The Commandant Officer, 83 Battalion, CRPF, Sunny Himmat, Jammu and Kashmir, dismissing him from service. 2. According to the petitioner himself, he questioned the aforesaid order of the second respondent in Departmental Appeal before the Deputy Inspector General of Police, CRPF, Hyderabad, but his appeal was rejected by the order dated 13.3.1999. This appellate order has not been challenged. It should be noted that the first order dated 25.9.1997 stands merged in the appellate order and this itself may be sufficient to dismiss the writ petition as the appellate order has not been challenged. However, having regard to the pleas taken by the petitioner, I propose to go into the merits of the matter also. 3. The only question raised in this writ petition is whether the dismissal of the petitioner from service is in accordance with law or in the alternative whether the petitioner should have been awarded a lesser penalty as contended by the learned counsel for the petitioner. 4. A Departmental inquiry was initiated against the petitioner on two charges. The first is while working as Driver in a platoon of CRPF, he unauthorizedly abstained from duty from 26.3.1997 to 2.5.1997 for 38 days. The second charge is that subsequently again he unauthorizedly abstained from duty from 23.6.1997 to 8.7.1997. In all he abstained from duty for 54 days without any permission. An inquiry officer was appointed by the competent authority to inquire into the aforesaid two charges. The petitioner submitted his explanation and he ultimately submitted a report holding that both the charges were proved and this is evident from the order dated 25.9.1997 of the second respondent. In the said order, the second respondent observed that the petitioner pleaded guilty to both the charges and ultimately after giving opportunity of personal hearing also, the said order was passed dismissing the petitioner from service. 5. The first plea of the petitioner is that he never pleaded guilty and he came up with his own explanation which was not accepted. His explanation was that his daughter was suffering from paralysis and he requested his superior authority to grant leave both on the ground of sickness of his daughter and also his sickness (asthma) and also submitted medical report stating that he went to his native place. His plea is that it was not accepted. Another plea taken by him was the first respondent already exonerated him for abstaining from duty for the first 38 days and it was not considered. In the course of arguments, the learned counsel for the petitioner stated that the petitioner’s daughter at the relevant time was three years old and was afflicted with paralysis. 6. The second plea of the petitioner is that domestic inquiry or the departmental inquiry was conducted in English whereas he did not know that language and he pleaded for holding the inquiry in Hindi and as this request was rejected he was prejudiced and therefore the impugned order is vitiated. His further plea is that in any event, the punishment of dismissal from service is highly disproportionate. 7. One Sri J.F.D’souza, the then Additional D.I.G., CRPF, Hyderabad filed counter-affidavit on behalf of respondents resisting the writ petition. The stand of the respondents is that the petitioner’s absence for the first period of 38 days covered by charge No.1 was condoned is not correct. Here itself, it should be mentioned that the petitioner did not file any order of the competent authority or placed any material before the court to show that his absence for the first period of 38 days was condoned or he was acquitted from the said charge earlier. Hence, that plea is rejected. 8. Regarding the “language disadvantage” pleaded by the petitioner, it is stated on behalf of the respondents that the departmental inquiry was held in presence of the petitioner and the statements of the witnesses were recorded in English and the inquiry officer explained the statements of the witnesses to the petitioner in his language and the petitioner also signed the said statements and the copies of the same were also supplied to the petitioner and he never raised any objection about the language disadvantage at any time and consequently, he cannot be permitted to raise it now. Regarding this “language disadvantage”, it is observed in the appellate order that he submitted his written statement in English only to the inquiry officer and therefore he cannot complain about the language now. So is the case with regard to the plea of the petitioner that he has not pleaded guilty to the charges brought against him. It appears that the petitioner having admitted his absence during both the spells must have come up with explanation which was not accepted and in that connection his admission regarding absence must have been treated as admission. He participated in the enquiry and also signed in the statement of the witnesses after having understood what they told against him as pleaded on behalf of the respondents and the petitioner did not dispute it. Even otherwise, as will be presently seen, apart from the admission, the order of the disciplinary authority and also the appellate authority would show that there was sufficient evidence to hold the petitioner guilty of both the charges relating to unauthorized absence. Hence the said pleas of the petitioner are rejected. 9. Then coming to the plea of the petitioner based upon the sickness of his daughter and also his own sickness, the following circumstances would show that the same also cannot be accepted. The first charge relates to the period of absence from 26.3.1997 to 2.5.1997. Para 7 of the first order reads that the petitioner submitted an application dated 19.6.1997 for his daughter’s treatment and another application dated 20.6.1997 for his own treatment. In other words, the first order which is confirmed by the appellate authority would show that the petitioner did not submit any application regarding his daughter’s sickness or his own sickness before he abstained from duty during the first period i.e. from 26.3.1997 to 2.5.1997. The petitioner could not demonstratively show that he submitted applications or made a request regarding his absence and explained the same for the above first period. Hence, that plea of the petitioner is rejected. 10. Then coming to the second spell of absence, it is clear from the order dated 25.9.1997 of the second respondent that the petitioner made applications dated 19.6.1997 and 20.6.1997 regarding his daughter’s sickness and his own sickness. It is however observed in the first order that without waiting for any sanction of those applications he deserted from the duty on 23.6.1997 i.e. just two days after submitting the application dated 20.6.1997. Regarding the illness of the daughter of the petitioner, it is observed that his daughter’s illness was not new and that she had been suffering even before for a long time. The appellate authority also observed the same. Both the authorities also found that there was no material to uphold the petitioner’s plea even with regard to his illness. 11. To sum up the impugned order would show that the inquiry was held in accordance with the CRPF Rules, 1955, and the findings of the enquiry officer and the second respondent and also the appellate authority can be said to be based on material or evidence and they cannot be said to be perverse or illegal in which case alone this court can interfere. The learned counsel for petitioner lastly argued that the penalty of dismissal from service for unauthorized absence is highly disproportionate and the petitioner can be punished with a lesser penalty giving back his job without other benefits. It may be noted that the petitioner was employed in a CRPF Battalion in border area and he abstained from duties without authorization for two spells one of 38 days and the other of 16 days without showing a justifiable cause and that constitutes desertion. Both the authorities felt that for such indiscipline having regard to the place where the petitioner was posted, dismissal is the proper punishment. It is now well settled that this court cannot substitute its opinion for that of the disciplinary authority with regard to punishment in a case like this once it is found that the inquiry has been held in accordance with the rules and findings are based on evidence. In view of this, I regret that I am unable to consider the contention of the learned counsel for petitioner regarding the quantum of punishment. 12. Accordingly, for the aforesaid reasons, the writ petition is dismissed. No costs. ______________________ N. RAVI SHANKAR, J October, 2011 TJMR/cvrk