Letters Patent Appeal No.207 OF 2009 Against the judgment of the learned Single Judge dated 6.1.2009 passed in C.W.J.C. No. 11156 of 1999 -------- Rakesh Kumar Singh son of Shri Sharda Nandan Singh, resident of village Solahpur, P.O. & P.S. Ander, District Siwan. Versus 1. The Union Of India through the Director General-cum-Inspector General of Police, Special Range Central Reserve Police Force, New Delhi. 2. The Additional Deputy Inspector Genreral of Police, Group Centre, Central Reserve Police Force, Jamshedpur, District Singhbhum. 3. Sh. Raghibir Singh s/o. not known, the Commandant 812 Battalion, Central Reserve Police Force, Mantri Pukhri, Imphal, Manipur. 4. The State of Bihar -------- For the appellant : M/S. Prabhakar Dwivedi & Arvind kumar Pandey For Respondent Nos. 1 to 3 : M/S. Sudhir Kumar, A.S.G. & Mr. Sarvadeo Singh, C.G.C. For Respondent no. 4 : Mr. A. Amanullah, S.C. XVII --------- P R E S E N T THE HON'BLE THE CHIEF JUSTICE & THE HON'BLE JUSTICE SMT. ANJANA PRAKASH -------- P. K.Misra, CJ. This LPA has been preferred against the order of the learned Single Judge dated 06.01.2009 rejecting the prayer of the Appellant for quashing the order dated 18.06.1999 passed by Respondent No. 3 dismissing him from service. 2. The facts of the case are as follows:- 3. The Appellant was appointed as a Constable in C.R.P.F. on 06.04.1991 and had proceeded on casual leave w.e.f. 2 04.08.1998 to 17.08.1998. Before the expiry of his leave, as is revealed from Annexure-3 the order of dismissal, on 10.08.1998 the Appellant informed the authorities that he was admitted in the hospital and therefore unable to resume his duties. However, on 21.08.1998 he was directed to report for duty to which the Appellant sent an application on 29.09.1998 explaining that he was unable to join on account of leg injury and the Doctor had advised him four weeks’ rest. Without bothering to take note of this, once again on 06.09.1998, i.e. just four days later the authorities directed the Appellant to report for duty. The appellant immediately sent an application dated 09.09.1998 annexing the medical certificate that the Doctor had advised him bed rest for another four weeks from 09.09.1998. Despite this, once again on 29.09.1998 before the expiry of the four weeks and without applying themselves to the nature of the application and medical certificate asked the Appellant to report for duty. Then Memorandum of charge and other documents were purported to have been sent on 25.03.1999 to the Appellant’s home address. However, it has been noted in the order of dismissal that the Service Report was never received at the despatching office. Thereafter on 09.04.1999 the Inquiry Officer was appointed and an ex parte departmental inquiry/proceeding was initiated and a final report was submitted on 27.05.1999, a copy of which was sent to the Appellant on 03.06.1999 asking him to reply within fifteen days and pursuant thereto on 18.06.1999 the punishment order of dismissal was passed. From the dates given above it appears that 3 even though the inquiry report was sent to the Appellant on 03.06.1999 giving him fifteen days time to submit his application the final order was passed on 18.06.1999 i.e. 15th day itself from the date of order and regularizing his earlier period of unauthorized leave for which he had been declared deserter on 14.03.1999. In the meanwhile, as stated above, the petitioner was declared deserter with effect from 18.03.1998 on 14.03.1999 under Rule 31 (c) of CRPF Act, 1955. The appellant has pleaded that the same was not applicable on him since he had not run away but had remained in treatment at Primary Health Centre, Ander (Siwan) w.e.f 15.08.1998 to 14.07.1999. It is noteworthy that no counter- affidavit was filed on behalf of the Respondents in the writ proceeding and even in LPA there is no reply to this specific pleading. In fact the Respondents have not controverted most of the pleadings raised including the fact that the order of dismissal was passed in utmost haste. It is being stated in the counter- affidavit that the appeal to the DIG Special Range CRPF was also rejected on 8.9.1999 vide Office Order No. RXIII-RKS/81/99- Estt3. 4. The Counsel for the Respondents has however endeavoured to defend the order of dismissal arguing that the over-stay of persons belonging to disciplined force had to be dealt with sternly and there was no illegality in the order which was forced to be concluded ex parte since the Appellant on his own volition did not join the same. He also contended that the Appellant had not furnished any explanation for his unsanctioned 4 leave till he filed his appeal. In this regard he has relied upon a decision reported in (2005) 13 SCC 228 which also concerns the dismissal of a CRPF Constable. But, we find the facts quite different since in that case the delinquent reported for duty long after sanctioned leave period was over and no justifiable reason was given for his overstay. Whereas, in the present case, we find that even before the departmental proceeding had been initiated the Appellant had sent the Doctor’s report and later also furnished certificate to the effect that he was under medical treatment between 15.8.1998 to 14.7.1999 which apparently was not considered by the appellate authority. 5. The Respondents’ next argument that the Appellant did not join the disciplinary proceeding on his own volition is also quite contrary to the records since Annexure-3 i.e. order of dismissal itself reveals that the service report of the Memo of charge-sheet had never been received at the despatching office. 6. On the other hand, Counsel for the Appellant to buttress his argument contends that since the appellant had even a cause for his over-stay, the same was not considered by the authorities before passing the impugned order. To buttress his argument the Appellant has relied upon paragraph 11 of a decision reported in AIR 2004 SC 2131 which is quoted as below:- “11. After issuing sanction for leave for the period in question, the employee’s legitimate expectation would be that no stern action would be taken him with respect to the alleged act of misconduct which by no stretch of imagination can be considered act of gross misconduct or continued misconduct 5 indicating incorrigibility and complete unfitness for police service. It is not the case of the Police Deptt. that the appellant is a habitual absentee. He had to proceed on leave under compulsion because of his grave condition of health and, therefore, the punishment of removal from service is excessive and disproportionate. Merely one incident of absence and that too because of bad health and valid and justified grounds/reasons cannot become basis for awarding such a punishment.” 7. He tries to draw similarity between the aforesaid case and the present case that there was only one incident of absence and that too because of ill-health which fact was reported to the authorities at the earliest instance and therefore he had a justifiable reason for his over-stay and in the facts of the case the punishment is grossly disproportionate to the alleged misconduct. 8. We have already noticed all the relevant facts and circumstances. Learned counsel for the respondents had produced the relevant files. After going through the materials on record it is crystal clear that the departmental proceeding was concluded ex- parte against the present appellant even though the memorandum of charge and other documents had never been served on him. It is, thus, obvious that the basic principles of natural justice have been violated. Even the memorandum of appeal or the representation made to the Inspector General was dealt with in a cavalier fashion without bothering to take note of the grievances highlighted by the appellant in such a representation/memorandum of appeal. It is no doubt true that the C.R.P.F. being a disciplined force, personnel are expected to 6 maintain proper discipline. That, however, does not mean that the concerned employee should be dismissed from service without following the principles of natural justice. The contention of the appellant that the punishment imposed also appears to be grossly disproportionate is required to be considered, particularly in the light of the observations made by the Supreme Court in AIR 2004 S.C., 2131. On the other hand the decision reported in (2005)13 S.C.C.,228 relied upon by the learned counsel for the respondents appears to be distinguishable on facts inasmuch as in the said decision there was a clear finding that the delinquent had failed to explain the circumstances. 9. In the present case on account of the fact that the enquiry had been concluded ex-parte, the appellant did not have adequate opportunity of defending himself and the memorandum of appeal/representation made by him highlighting the various aspects was simply given a short-shift. Counsel for the appellant has submitted that the course adopted by the Supreme Court in A.I.R. 2004 S.C. 2131 may be adopted and the person may be taken back in service by ignoring the period of absence. However, since in the present case the enquiry itself is vitiated by the fact that the principles of natural justice had not been followed, we feel that the interest of justice would be served by setting aside the order of dismissal of the appellant and by remanding the matter to the departmental authorities for fresh consideration. The departmental authority should serve a copy of the memorandum of charge and thereafter give opportunity to the present appellant and 7 proceed in accordance with law. It would be open to the appellant to raise all the questions including the question of proportionality of the punishment. 10. In the result, the appeal is allowed and the order of dismissal is set aside and the matter is remanded to the departmental authorities for fresh consideration in accordance with law. (P.K. Misra, CJ.) Anjana Prakash, J., I agree. (Anjana Prakash, J.) Patna High Court, The 16th September, 2009. AMIN/ (A.F.R.)