Writ petition challenging dismissal order under CCS (CCA) Rules where initial minor penalty proceedings were withdrawn to initiate major penalty. Court held such switch is permissible and found willful absence established, dismissing the petition.
Petition dismissed with no directions to reinstate petitioner in service.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 6405 of 2007
Binod Kerketa, son of Sri Israil Kerketta, Resident of Mr. S. Kispotta, Sarvodaya Nagar, Kanke Dam side Road, P.O. : Gandhi Nagar, P.S. Gonda, District: Ranchi … … Petitioner
Versus
… … Respondents
CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
For the Petitioner : Mr. C.S. Pandey, Advocate For the Respondents : Ms. Nitu Sinha, Advocate ---
31 /09.06.2022 Heard Mr. C.S. Pandey, learned counsel appearing on behalf of the petitioner.
2. Heard Ms. Nitu Sinha, learned counsel appearing on behalf of the respondents.
3. This writ petition has been filed for the following reliefs:-
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Arguments of the Petitioner .
4. Learned counsel for the petitioner has submitted that two points are required to be considered in the present case.
5. Learned counsel for the petitioner has relied upon the judgment reported in (1971) 2 SCC 102 (K.R. DEB versus The Collector of Central Excise, Shillong) to submit that the proceedings having been initiated under Rule 16 of aforesaid Rules of 1965, no proceeding could have been initiated under Rule 14 of the aforesaid Rules of 1965 and therefore the entire impugned proceeding and order is vitiated.
6. Learned counsel submits that the petitioner had sent repeated communications for extension of his leave and accordingly neither any finding has been recorded regarding his willful absence , nor there is any material on record to suggest willful absence and therefore the imposition of punishment of dismissal is uncalled for and is harsh and disproportionate to the allegations levelled against the petitioner. For this, he has relied upon a judgment passed by the Hon’ble Supreme Court reported in (2012) 3 SCC 178 (Krushnakant B. Parmar versus Union of India and another) .
Arguments of the Respondents.
7. Learned counsel appearing on behalf of the respondents has opposed the prayer and has submitted that the finding of the enquiry officer clearly reflects that the petitioner remained willfully absent . She also submits that the petitioner had received a number of letters from the respondents asking him to join his duty, but did not join. Learned counsel for the respondents has referred to the enquiry report
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to submit that a clear finding has been recorded rejecting the plea of the petitioner that he had not received any communication and it has been recorded that there was no excuse after 16.08.2001, to draw a conclusion ,that his leave was being extended by the Commandant.
8. Learned counsel has also submitted that there is no doubt that initially a charge memo was issued to the petitioner under Rule 16 of CCS(CCA) Rules, 1965, for imposition of minor penalty but thereafter another order was drawn dated 16th June, 2003 that considering the nature of allegation against the petitioner, the same calls for major penalty under Rule 14 of CCS(CCA) Rules, 1965 and accordingly the matter was not taken forward and no penalty was imposed pursuant to the first charge sheet and thereafter second charge memo was issued under Rule 14 of CCS(CCA) Rules 1965 in which the petitioner duly participated and ultimately the punishment has been imposed by the impugned order. The learned counsel submits that in the matter of discipline forces there is no scope for absence without leave and the punishment imposed is neither illegal nor shockingly disproportionate to the charges levelled calling for any interference under article 226 of the Constitution of India.
Findings of this Court
9. As per the factual background, the petitioner had proceeded for 45 days earned leave w.e.f. 16.04.2001 to 30.05.2001 and thereafter he did not report for duty on the due date i.e. on 31.05.2001 and sent repeated letters for extension of leave on the ground of construction of his father’s house. It was alleged that since the unit was to move to a new location and the petitioner was required to attend a Review Medical Board in connection with his promotion, his request for extension of leave was considered and rejected and the petitioner was directed to re-join his duties by various letters. The petitioner instead of joining duty had made repeated request for extension of leave and ultimately, he reported for duty only on 03.12.2001 and accordingly there was total period of overstay of 186 days. It was alleged that conduct of the petitioner amounted to failure on his part to maintain absolute devotion to duty and the petitioner had acted in a manner unbecoming of a government servant and therefore had violated the provisions of Rule 3 (1) (ii) and (iii) CCS (Conduct) Rules, 1965.
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10. It is further not in dispute that initially vide memorandum dated 31.05.2002 it was proposed to take action against the petitioner under Rule 16 of CCS (CCA) Rules 1965 and the statement of imputation of misconduct of behaviour on which the action was proposed to be taken was enclosed. Rule 16 of the aforesaid Rules of 1965 deals with imposition of minor punishment. It further appears that the petitioner had ultimately responded to the said allegation and thereafter an order dated 16th June, 2003 was drawn considering the entire background of the case, mentioning the fact that a procedure for minor penalty was initiated against the petitioner vide aforesaid memorandum dated 31.05.2002 but the Hon’ble President, after careful consideration, directed as under .
11. This court finds that a memorandum of charge was issued to the petitioner for imposition of minor penalty under Rule 16 of aforesaid Rules of 1965, but it could not be taken to a logical end as it was found by the Hon’ble President that the allegation leveled against the petitioner warrants initiation of proceedings for a major penalty, and accordingly the memorandum of charge dated 31.05.2002 was withdrawn and it was decided to take action for imposition of major penalty under Rule 14 of the aforesaid Rules. Thereafter another memorandum of charge was issued to the petitioner under Rule 14 of aforesaid Rules of 1965 which ultimately resulted in imposition of the punishment which is impugned in the present case.
12. It is the specific case of the petitioner that the proceedings having been initiated under Rule 16 of aforesaid Rules of 1965, no proceeding could have been initiated under Rule 14 of the aforesaid Rules of 1965 and therefore the entire proceeding is vitiated. For this, the counsel for the petitioner has relied upon the judgment reported in
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(1971) 2 SCC 102 (K.R. DEB versus The Collector of Central Excise, Shillong).
13. This court has gone through the judgment passed by the Hon’ble Supreme Court in the case of K.R. Deb (supra) and is of the considered view that the said judgment does not apply to the facts and circumstances of this case. The facts of the said case reveal that there were repeated enquiry reports in favour of the delinquent but inspite of that the disciplinary authority had finally appointed another officer to enquire upon the charge and on the basis of the last enquiry report, which was against the delinquent, the delinquent was dismissed. In the aforesaid background, the Hon’ble Supreme Court held that Rule on the face of it provides only for one enquiry, but it may be possible in a particular case, that there has been no proper enquiry because of some serious defect and therefore the disciplinary authority may ask the enquiry officer to record further evidence. But there is no provision for completely setting aside the previous enquiry on the ground that the report of the enquiry officer or officers does not appeal to the disciplinary authority and also held that the disciplinary authority has enough powers to reconsider the evidence itself and come to its own conclusion. With this background, the Hon’ble Supreme Court, with regard to the last enquiry wherein the petitioner was ultimately found guilty, held that there was no proper enquiry and therefore there has been a breach of Article 311 of the Constitution of India and allowed the appeal filed by the delinquent.
14. The present case is not a case where there has been any favorable enquiry report in favour of the petitioner and the disciplinary authority ordered for fresh enquiry. In the present case, the proposed action for minor penalty , which was initiated vide aforesaid memorandum dated 31.05.2002 was never taken to a logical end ,although the charge was proved and tentatively it was decided to impose minor penalty, in as much as, by a subsequent order, the said memorandum dated 31.05.2002 was itself withdrawn with a clear stipulation that the charges called for imposition of major penalty and a proceeding under Rule 14 of the aforesaid Rules of 1965, for imposition of major penalty, was required to be initiated. Thus, the charge was not dropped, but the proceeding for imposition of minor
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penalty under aforesaid Rule 16 of Rules of 1965, was dropped with the aforesaid guidance to initiate proceedings under Rule 14 of Rules of 1965, for imposition of major penalty. Thus the judgment reported in (1971) 2 SCC 102 (K.R. DEB versus The Collector of Central Excise, Shillong), does not apply to the facts and circumstances of this case and does not help the petitioner in any manner whatsoever. The first point raised by the petitioner is decided against the petitioner. 15. This court finds that in the present case, there has been no enquiry at all, rather the proceeding which was initiated for imposition of minor penalty was itself withdrawn with a clear contemplation of initiation of proceedings for major penalty under Rule 14. Accordingly, the aforesaid judgment passed by the Hon’ble Supreme Court, which deals with calling for repeated enquiry reports by the disciplinary authority, does not apply to the facts and circumstances of this case and does not help the petitioner in any manner. The learned counsel for the petitioner has not been able to show any provision of law or any judgment to satisfy this court on the point that if a proceeding under minor penalty is initiated by issuance of charge memo, there is any legal bar for initiation of proceeding under major penalty by withdrawing the initial charge memo and issuance of fresh charge memo for imposition of major penalty in a circumstance where there has been no enquiry pursuant to the previous charge memo under the minor penalty which has not been taken to a logical end. In such circumstances, the first point urged by the petitioner has no merit which is accordingly dismissed.
16. So far as the second point urged by the learned counsel for the petitioner, that there has been no finding of willful misconduct against the petitioner, this court finds that the petitioner had participated in the disciplinary proceeding and the enquiry report is on record. The findings of the enquiry officer clearly record willful absence for duty and accordingly, willful misconduct on the part of the petitioner. Some relevant portions of the findings are as under: -
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17. The learned counsel appearing on behalf of the respondent has also referred to the following finding as recorded in the enquiry report : -
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“ The plea taken by the officer that he did not receive any communication after 30.5.01 doesn’t sustain as he had received signal No. LII-1/01-95-ST dated 29/5/01 of the Commandant 95 Bn vide which it was intimated that it was not possible to extend his leave and he was directed to join his duties in the interest of the Unit. It is evident from his signal dated 1/6/01 originated from SGC Ranchi in which reference of the signal of the Commandant 95 Bn dated 29/5/01 is given. He had also received Commandant 95 Bn letter No. I,II-1/01-95-ST dated 16/8/01 at his Patna address which he had admitted in his statement in the PF. The pay of officer was also stopped by the Commandant 95 Bn. CRPF vide signal No. I.II-1/01-95-ST dated 2/8/01 and 17/08/01. There was no excuse after August 2001 to draw the conclusion that his leave was being extended by the Commandant 95 Bn.”
18. This court finds that there is clear finding recorded by the enquiry officer that the petitioner refused to join duties by ignoring the directions issued to the petitioner. He ignored the directions and remained absent from duty without permission/sanction of leave by the competent authority and the ground put forth by the officer during the enquiry proceeding for his overstaying from leave was not found sufficient to justify his overstaying for long period. The findings of the enquiry officer were accepted by the disciplinary authority and ultimately the impugned order of dismissal has been passed. Therefore, the argument of the learned counsel for the petitioner that there is no finding of willful absence of the petitioner is devoid of any merit and hence rejected.
19. So far the judgment which has been relied upon by the petitioner reported in (2012)3 SCC 178 is concerned this court finds that the said judgment does not apply to the facts and circumstances of this case particularly in view of the fact that delinquent in the said judgment has proper reasons for his absence for certain period and in fact the delinquent had also challenged his transfer order before Central Administrative Tribunal who had set aside the order of transfer on account of bias and malice. There are no corresponding or similar facts in the present case justifying absence of the petitioner from duty even after expiry of the leave period and the explanation given by the petitioner for non-joining has been rejected by the authority. In view of the fact and circumstances, the aforesaid
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judgment does not help the petitioner in any manner. Accordingly, second point argued by the petitioner is also rejected.
20. So far as the argument of the petitioner regarding disproportionate punishment while considering the proved charge is concerned, this court is of the considered view that in the matter of disciplined force, there is no scope of overstaying after the leave period and there is no scope of non-adherence to the directions issued by the superior authority. This court is also of the considered view that punishment imposed upon the petitioner is appropriate and no interference is called for under Article 226 of the Constitution of India. Accordingly, the present petition is dismissed.
(Anubha Rawat Choudhary, J.)
Binit
3 issues framed by the court
Whether disciplinary proceedings for major penalty can be initiated after withdrawing a major charge memo for minor penalty without legal bar.
Whether the absence of a finding on willful absence by the enquiry officer vitiates the dismissal order.
Whether the punishment of dismissal was disproportionate and arbitrary warranting interference under Article 226 of the Constitution.
Colour shows how this judgement treated each authority
K.R. DEB versus The Collector of Central Excise, ShillongDistinguished¶41
(1971) 2 SCC 102 · Who else cites this
Krushnakant B. Parmar versus Union of India and anotherDistinguished¶62
(2012) 3 SCC 178 · Who else cites this
3 provisions across 2 enactments
Binod Kerketa
Union of India
Director General, C.R.P.F.
Union Public Service Commission
Anubha Rawat Choudhary
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
