Aswani Kumar Dubey Vs Union of India

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2025:CGHC:2544

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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Order reserved on : 05-11-2024

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Order passed on : 15-01-2025

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WPS No. 2347 of 2015

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Aswani Kumar Dubey S/o Late Shri Shyam Murari Dubey Ex. CT/Cook No. 040640044, d/139 bn CRPF, Kondagaon Chhattisgarh, presently R/o village - Chandauli Post- Deidiha, Tah.- Gola Bazar, Distt.Gorakhpur Utter Pradesh Pin- 273409, Uttar Pradesh

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... Petitioner

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versus

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1 - Union Of India Through Director General (D.G.) C.R.P.F. Government Of India, New - Delhi.

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2 - Inspector General, HQ Western Sector, Central Reserve Police Force, Navi Mumbai 40 M.S.

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3 - Deputy Inspector General Central Reserve Police Force, Nagpur Range, 440019 Maharashtra

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4 - Commandant, 139 Battalion, Central Reserve Police Force, Kondagaon, Distt- Bastar Chhattisgarh.

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... Respondents

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For Petitioner : Mr. Mohan Lal Kaushik and Mr. Yogesh Chandra Sharma, Advocates.

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For Respondents : Mr. Sumit Singh, Advocate.

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Hon'ble Smt. Justice Rajani Dubey, J

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C A V Order

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In this petition, the petitioner is challenging the order dated 24.2.2012 (Annexure P/1) issued by respondent No.4 removing the petitioner from service and treating his absence from duty from 27.10.2010 to 10.4.2011 (135 days) as dies non; the order dated 20.7.2012 (Annexure P/2) passed by respondent No.3 dismissing the appeal of the petitioner as also challenging the order dated 24.1.2013 (Annexure P/3) whereby respondent No.2 too has dismissed the revision of the petitioner.

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Case of the petitioner is in brief is that the petitioner was appointed in Central Reserved Police Force (CRPF) in the year 2004 and enlisted as Cook on 7.7.2004. Vide movement order dated 26.2.2010 he was transferred from 64 Battalion, CRPF to 139 Battalion, CRPF, Kondagaon and was relieved on the same day to join his duty at transferred place. However, the petitioner's wife fell ill and was suffering from breast abscess and at the same time, petitioner's mother was also reported to have some trouble in heart. Hence the petitioner applied for grant of leave for treatment of his wife and mother and after a lapse of one month he was granted casual leave for 15 days i.e. from 8.11.2010 to 26.11.2010. Thereafter the petitioner went to his native place i.e. Village-Chandauli, Distt. Gorakhpur (UP) where his wife and mother were residing. He started treatment of his wife in

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Primary Health Center, Uruwa Bazar on 8.11.2010 and the doctor advised for two months complete bed rest. Since there was no progress in her condition, he visited Dr. Ran Vijaya Dubey at Maa Vindhyavasini Neuro Clinic at Gorakhpur for treatment and during treatment from 20.12.2010 to 29.3.2011 she was completely confined to bed as per doctor's advice. Being a single working member in the family and critical condition of wife and mother and their inevitable needs of attendant, the petitioner could not report on duty by end of the leave granted to him. As such, he was compelled by circumstances to overstay during the period of 27.11.2010 to 10.4.2011 and reported on duty on 11.4.2011 (morning) at Kondagaon. However, in the given circumstances, the petitioner being over busy could not send application on due course of time for extension of leave from 27.11.2010 and onwards. The petitioner at the time of reporting on duty submitted all the medical documents before respondent No.4 who, considering the issue, allowed the petitioner to continue on duty. Meanwhile, an arrest warrant was issued by the Commandant/Judicial Magistrate on 3.2.2011 which was later cancelled on 11.4.2011 on account of petitioner resuming his duties.

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Surprisingly, a departmental inquiry was instituted against the petitioner vide memorandum No.P.VIII-8/2011-139-EC-II dated 17.4.2011 of respondent No.4 and the petitioner was served with a copy of charge sheet along with list of documents and witnesses. After departmental inquiry, the petitioner was supplied copy of the inquiry

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report dated 12.8.2011 to which the petitioner submitted his reply explaining in detail his overstay for 135 days. Thereafter, respondent No.4 acting on the inquiry report, without considering the statements of the departmental witnesses in its proper perspective and documents on record, confirmed the findings of Inquiry Officer and vide order dated 24.2.2012 (Annexure P/1) removed the petitioner from service and 15 days casual leave from 8.11.2010 to 26.11.2010 with permission to avail other leaves granted to the petitioner was regularized against earned leave and period of his absence from 27.11.2010 to 10.4.2011 was treated as dies non with a direction that pay and allowances of the said period would not be payable to the petitioner.

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The petitioner then filed an appeal before respondent No.3, however, vide order dated 20.7.2012 (Annexure P/2), the appeal was dismissed. The said order was challenged in revision by the petitioner before respondent No.2 and the revision was also dismissed vide order dated 24.1.2013 (Annexure P/3). Hence this petition.

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Learned counsel for the petitioner would submit that the Inquiry Officer without considering the medical documents submitted by the petitioner has recorded his findings against the petitioner that he could not justify his absence by medical documents. No reason whatsoever was given by the Inquiry Officer for disbelieving the medical documents. There was no Presenting Officer to proceed with the

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charges and the Inquiry Officer himself played the role of a Presenting Officer. The petitioner was never asked to take help of a defence assistant out of co-workers to explain the case properly. The Inquiry Officer and respondent No.4 were not justified in treating the admission of the petitioner of his overstay as admission of the allegations of disobedience of order because the petitioner had clearly explained in detail by supporting medical documents that he was compelled by the circumstances to overstay his leave and could not seek extension of leave within time. It is well settled that absence from duty without any application or prior permission may amount to unauthorized absence but it does not always mean willful. There may be different eventualities due to which an employee may abstain from duty including compelling circumstances beyond his control like illness, accident, hospitalization etc. Since absence of the petitioner is the result of compelling circumstances i.e. critical illness of his wife and mother which prevented him from joining his duties, such absence cannot be held to be willful. Therefore, the impugned order passed by respondent No.4 is erroneous and liable to be set aside.

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He would further contend that the appellate authority/respondent No.3 has erred in holding that the petitioner did not produce valid medical documents with regard to treatment of his wife and mother whereas on 11.4.2014 when the petitioner reported on duty, he submitted all the relevant medical documents. Even otherwise, validity of the aforesaid documents was not the issue in the charge sheet and

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validity of these documents was never questioned by the IO or respondent No.4. Therefore, finding of the appellate authority that the petitioner did not produce valid medical documents is misconceived and baseless. As regards the documents concerning medical treatment of petitioner's mother, the same were also faxed to the department through Superintendent of Police, Narayanpur. Validity of medical documents signed by the government doctor as well as the medical practitioner could not be denied unless it was examined by the medical experts. Respondent No.3, therefore, was not legally justified in dismissing the appeal of the petitioner. The revisional authority also in a mechanical manner confirmed the orders of respondents No. 3 & 4 and accordingly, dismissed the revision of the petitioner vide order dated 24.1.2013.

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Learned counsel for the petitioner further submitted that all these impugned orders are liable to be set aside because the petitioner was deprived of proper opportunity of hearing and the IO was biased. The IO himself was playing the role of Presenting Officer (PO) by asking questions and cross-examining every witness including the petitioner which is against the well settled law of fair inquiry. True it is that in the procedure prescribed in CRPF Rules for conducting departmental inquiry, nothing has been indicated about appointment of PO or even of providing Defence Assistant to the delinquent but the fact remains that time and again the Hon'ble Apex Court has held that the IO is to act independently and not as a representative of the department, meaning

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thereby it is expected that the IO acts fairly and without any bias but it has not been done in the present case. Furthermore, in view of Rule 102 of CRPF Rules, 1955, when no explicit provision in respect of Defence Assistant is found in the Rules of 1955, then Rule 14(8) of Civil Services (Classification, Control and Appeal) Rules will come into play. The instructions contained in Standing Order 02 of 2017 No. W.N. Inst/2017 Vig. circulated by Director General, CRPF (MHA), dated 12.7.2017 related to Instruction on Prevention of Sexual Harassment at Workplaces in CRPF has made a provision of Presenting Officer and Defence Assistant at para 5.J of the instruction. However, these instructions have not been followed while conducting inquiry against the petitioner and as such, the inquiry as well as the findings of the IO is vitiated in the eye of law.

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Learned counsel would next contend that the disciplinary action initiated to impose punishment under Section 11(1) of the CRPF Act, 1949 could not be concluded in major punishment like removal from service. In article of charges, punishment for unauthorized absence was imposed under Section 11(1) of CRPF Act, 1949 read with Rule 27. Rule 27 does not define any misconduct and quantum of punishment to be imposed for such a misconduct, and it only deals with the procedure for award of punishment. Though the absence of the petitioner was not an unauthorized absence, even then presuming it so, removal from service is excessively harsh punishment. Since the

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petitioner after removal from service has not been gainfully employed anywhere, he is entitled to reinstatement in service with all consequential benefits including back wages as prayed in this writ petition.

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Reliance has been placed on the decisions in the matters of Sudhanshu Shekhar Deo Vs. Union of India and others, MANU/BH/0701/2013; State of Uttar Pradesh and others Vs. Saroj Kumar Sinha, (2010) 2 SCC 772; Krushnakant B. Parmar Vs. UOI, (2012) 3 SCC 178; Union of India Vs. Ram Lakhan Sharma, (2018) 7 SCC 670 and judgment dated 30.6.2022 of the Hon'ble Apex Court in Civil Appeal No.4059/2015 in the matter of UOI Vs. RK Sharma .

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Per contra, learned counsel appearing for the respondents opposing the prayer of the petitioner would submit that the petitioner has been removed from service after considering the evidence adduced in the departmental inquiry and affording a reasonable opportunity of hearing and defence to the petitioner. The charges leveled against him were found to be duly proved. His appeal was dismissed by a well reasoned order. The appellate authority recorded a finding that the petitioner has not submitted any valid medical record with regard to ailment of his wife and mother and as such, he failed to prove his absence from duty for valid reasons. The revisional authority also noticed that the petitioner is a habitual leave taker in his short service and overstayed his leave five times previously i.e. 1) 42 days

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w.e.f. 15.11.2005 to 26.12.2005, 2) 120 days w.e.f. 26.8.2006 to 23.12.2006, 3) 3 days w.e.f. 29.10.2007 to 31.10.2007, 4) 23 days excess journey period w.e.f. 27.2.2010 to 21.3.2010 and 5) during the course of inquiry 15 days earned leave was sanctioned to the petitioner on compassionate ground and he overstayed 43 days w.e.f. 15.11.2011 to 27.11.2011. It was also observed that the petitioner did not learn from his past minor punishment awarded to him for overstaying leave and therefore, the penalty of removal from service is in order to meet justice as during inquiry it was established beyond doubt that he committed an offence of disobedience/misconduct in discharge of his duty in his capacity as a member of the Force u/s 11(1) of CRPF Act, 1949 read with Rule 27 of the CRPF Rules, 1955. Accordingly, the revisional authority also dismissed the petitioner's revision. The punishment imposed on the petitioner is commensurate with the misconduct committed by him. The petitioner has not been able to point out any irregularity or illegality in the departmental inquiry proceeding or orders passed by the disciplinary authority, appellate authority and the revisional authority which may warrant any interference by this Court. Therefore, the present petition being without any substance is liable to be dismissed.

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Reliance has been placed on the order dated 23.1.2024 passed by this Court in WPS No.2244 of 2014 in the matter of Alok Mani Tripathi Vs. UOI and others .

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Heard learned counsel for the parties and perused the material available on record.

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It is an admitted position in this case that the petitioner was appointed in Central Reserve Police Force (CRPF) in the year 2004 and enlisted as Cook No.040640044 on 7.7.2004. He was transferred from 64 Battalion, CRPF to 139 Battalion, CRPF, Kondagaon and was relieved with movement order on 26.2.2010. It is also not in dispute that on 17.4.2011 a charge sheet was issued to the petitioner for his absence from duty and a departmental inquiry was initiated against him. As per order dated 24.2.2012 (Annexure P/1) he was removed from service by respondent No.4 and his appeal as well as revision was dismissed by respondent Nos. 3 & 2 on 20.7.2012 (Annexure P/2) and 24.1.2013 (Annexure P/3) respectively.

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The main grievance of the petitioner is that during departmental inquiry, no Presenting Officer was appointed by the department and the Inquiry Officer himself cross-examined the witnesses. The Inquiry Officer and respondent No.4 have taken incorrect view that the petitioner accepted the allegations against him whereas he admitted only the fact that he overstayed the leave granted to him and not disobedience of the order and that he explained his so-called unauthorized absence properly before the Inquiry Officer with supporting documents. However, the Inquiry Officer did not consider his explanation and also did not consider the medical documents

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submitted. The petitioner also filed copy of the statements of witnesses including the petitioner recorded during departmental inquiry. From perusal of these statements it is clear that the Inquiry Officer himself examined all the witnesses and cross-examined the petitioner. In every statement, it is written "tkap vf/kdkjh }kjk iwNs x;s iz'u rFkk vf/kdkjh@xokg ds mRrj".

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The Hon'ble Supreme Court in the matter of Saroj Kumar (supra) held in paras 28, 29 & 30 of its judgment as under:

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"28. An inquiry officer acting in a quasi-judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the department/disciplinary authority/Government. His function is to examine the evidence presented by the Department, even in the absence of the delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved. In the present case the aforesaid procedure has not been observed. Since no oral evidence has been examined the documents have not been proved, and could not have been taken into consideration to conclude that the charges have been proved against the respondents.

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Apart from the above, by virtue of Article 311(2) of the Constitution of India the departmental enquiry had to be conducted in accordance with the rules of natural justice. It is a basic requirement of the rules of natural justice that an employee be given a reasonable opportunity of being

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heard in any proceedings which may culminate in punishment being imposed on the employee.

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When a departmental enquiry is conducted against the government servant it cannot be treated as a casual exercise. The enquiry proceedings also cannot be conducted with a closed mind. The inquiry officer has to be wholly unbiased. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that a government servant is treated fairly in proceedings which may culminate in imposition of punishment including dismissal/removal from service."

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In the matter of Krushnakant B. Parmar (supra) the Hon'ble Apex Court held in paras 18, 19 & 20 of its judgment as under:

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"18. In a departmental proceeding, if allegation of unauthorised absence from duty is made, the disciplinary authority is required to prove that the absence is wilful, in the absence of such finding, the absence will not amount to misconduct.

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In the present case the inquiry officer on appreciation of evidence though held that the appellant was unauthorisedly absent from duty but failed to hold that the absence was wilful; the disciplinary authority as also the appellate authority, failed to appreciate the same and wrongly held the appellant guilty.

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The question relating to jurisdiction of the court in judicial review in a departmental proceeding fell for consideration before this Court in M.V. Bijlani v. Union of

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India, (2006) 5 SCC 88 wherein this Court held: (SCC p. 95, para 25)

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"25. It is true that the jurisdiction of the court in judicial review is limited. Disciplinary proceedings, however, being quasi-criminal in nature, there should be some evidence to prove the charge. Although the charges in a departmental proceeding are not required to be proved like a criminal trial i.e. beyond all reasonable doubt, we cannot lose sight of the fact that the enquiry officer performs a quasi-judicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with."

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In light of above decisions if the case of the petitioner is examined, it is clear that no Presenting Officer was appointed by the department and the Inquiry Officer himself cross-examined the witnesses as also the petitioner. It is also clear that the petitioner submitted medical documents relating to treatment of his wife but as per the Inquiry Officer these documents are not reliable and valid. On the basis of inquiry report, the disciplinary authority passed order against the petitioner imposing major punishment of removal from service. The appellate as well as revisional authority also did not consider this aspect and dismissed the appeal and the revision. The manner in which the whole departmental inquiry is conducted, it is against the principle of natural justice resulting in serious prejudice to

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the petitioner. The petitiner was not afforded reasonable opportunity of defending his case. Being so, the impugned orders are not sustainable in law and are liable to be set aside.

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For the reasons stated above, the writ petition is allowed and the impugned orders dated 24.2.2012 (Annexure P/1), 20.7.2012 (Annexure P/2) and 24.1.2013 (Annexure P/3) are hereby set aside. The petitioner is directed to be reinstated with all consequential benefits including 50% back wages. However, liberty is reserved with the respondent authorities to conduct departmental enquiry against the petitioner after appointment of Presenting Officer and affording the petitioner proper opportunity of hearing and defence in accordance with law.

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Digitally MOHD signed by AKHTAR MOHD KHAN AKHTAR KHAN Khan

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Sd/ (Rajani Dubey) Judge

Aswani Kumar Dubey v. Union of India

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Aswani Kumar Dubey v. Union of India

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