Bera vs Union Of India & Ors

(1) Appellant herein was appointed as a Constable in the Central Reserve Police Force. He allegedly proceeded on medical leave on 17.2.1992. He reported for duty on 1.4.1992. He was found medically fit and declared as such on 6.4.1992. He again applied for medical leave and without such leave being sanctioned he unauthorisedly left his place of posting on 9.4.1992. He remained unauthorisedly absent for a period of 67 days. He returned back to his duty only on 12.7.1992. On the charges of having remained unauthorisedly absent, he was sentenced to seven days confinement to Civil Lines. As against the said order, he made a representation. The said representation, however, was not routed through proper channel,whereupon a proceeding was again initiated against him. He was directed to be confined for ten days in the Civil Lines and on the premise that he refused to comply with the requirements of such confinement to Civil Lines, another disciplinary proceeding was initiated against him. In the said proceedings the charges against him were held to be partially proved. He was dismissed from service but then another disciplinary proceeding was directed to be initiated.

(2) The order of dismissal was passed in the year 1994. He preferred an appeal thereagainst. The appeal filed by him was also dismissed on 5.4.1995. (3) He filed a writ petition before the Calcutta High Court questioning the said order of dismissal in the year 1997 which was marked as W.P. 85/1997. On the premise that the said writ petition was filed after a lapse of two years, a learned Single Judge of the High Court refused to exercise his discretionary jurisdiction under Article 226 of the Constitution of India. Aggrieved by and dis-satisfied therewith an intra Court appeal was preferred thereagainst. By reason of the impugned judgment dated 9.11.2006,the said appeal has also been dismissed stating:

(7) The next question which arises for our consideration is as to whether we would follow the normal rule, namely, set aside the impugned judgment and remit the matter back to the High Court or deal with the matter ourselves. One other option which is available to us was to set aside the punishment recorded by the disciplinary authority and request the High Court to consider the matter afresh on the basis of the materials brought on record in the disciplinary proceedings. (8) Fifteen years, however, in the meantime have elapsed. Ordinarily, although, we would not interfere with the quantum of punishment but keeping in view the fact that the disciplinary authority must be held to have misdirected itself by not complying with Rule 27 of the Central Reserve Police Force Rules stricto sensu and having directed a further inquiry after ordering for the dismissal of services of the appellant, we are of the opinion that in the peculiar facts and circumstances of this case which may not be treated to be a precedent, we shall pass an appropriate order in exercise of our discretionary jurisdiction under Article 142 of the Constitution of India.

(9) In our view in terms of the foregoing reasons and on the finding aforementioned, the appellant should be directed to be reinstated in service. The question, however, remains as to whether he should be granted back wages. We think not.

(13) Having regard to the said fact, we are of the opinion that interest of justice would be subserved if the appellant is denied the back wages for the said period. He, however, should be reinstated in service and be given all other consequential benefits.

(14) The appeal is allowed to the aforementioned extent. In the facts and circumstances of this case, however, there shall be no order as to costs.