Ashok Kumar vs The Union of India and Others

Hon''ble Mr. Justice Jayanta Kumar Biswas

The petitioner in this WP under art.226 dated August 23, 2011 is questioning his dismissal from service. The petitioner was working in the CRPF as an S/K. By an order dated March 4, 2006 the Officer Commanding (H.Q.) Coy, 138 Bn, CRPF granted him earned leave from March 06, 2006. On expiration of the leave period he was to report for duty on April 04, 2006. He failed to do so and did not give any intimation for overstaying the leave period.

The Commandant, 138 Bn, CRPF issued a charge-sheet dated April 26, 2007 that by overstaying the sanctioned leave he committed a misconduct under s.11(1) of the Central Reserve Police Force Act, 1949. The charge-sheet was sent to his recorded home address by registered post. The post office concerned sent it back writing that he was always found out of home.

Steps were taken for serving the charge-sheet through the police station within whose territorial limits the petitioner''s residence was located. Steps were also taken for serving the charge-sheet through the Superintendent of Police of the district concerned. Warrant of arrest was issued by the Chief Judicial Magistrate-cum-Commandant, 138BN, CRPF requesting the Superintendent of Police, Patna to arrest and produce the petitioner. Nothing could bring the petitioner back to the Unit.

The Commandant initiating the minor punishment proceeding appointed an officer for conducting the inquiry. The officer submitted his findings that the charge was established. Accepting the findings, the Commandant passed the final order dated September 11, 2007 (WP p.43) inflicting the penalty of dismissal from service with effect from September 11, 2007. The petitioner maintaining silence from April 04, 2006 surfaced with a lawyer''s letter dated October 21, 2009 (WP p.38) to the Commandant.

Relevant parts of the letter are quoted below:-

I understand that my client was employed in the service of C.R.P.F. as S/K. He came on leave in the year 2006, fell in serious illness and immediately was in urgent need of medical treatment of his recovery. After prolonged treatment he has became fit for his duty on and from 30-03-09.

I also understand that he went to report to his duty place but was not allowed to join his duty on the ground that his service has been terminated on dismissal.

I further understand that there is no paper in possession of my client leading to his dismissal from service, thereby keeping him in total dark about his service in C.R.P.F.

You are requested to send me directly or to my client all the relevant copies of the papers once again, if it was sent earlier but not accepted by my client. If necessary, my client shall pay the usual postal charges for sending those papers/documents.

In response to the lawyer''s letter the Commandant wrote a letter to the petitioner, a copy whereof was sent to his lawyer with a memo dated November 07, 2009 (WP p.42). Relevant parts of the letter are quoted below:-

Refer to letter dated 21/10/2009 received from Shri Mujibar Rahman, Advocate, High Court Kolkata on behalf of you.

As a result of Departmental Enquiry conducted against you, you have been awarded the penalty of "Dismissal" from service with effect from 11/09/2007 vide this office order of even No. dated 11/09/2007. The said dismissal order was already forwarded to you in your above mentioned home address. However, cop of said office order again enclosed with this letter.

Thereafter the petitioner sent an appeal dated February 15, 2010 (WP p.47) to the Deputy Inspector General, CRPF, Durgapur. He assailed the order of the Commandant without stating why he remained absent from the Unit and silent from April 04, 2006 till October 21, 2009, when his lawyer wrote a letter asking the Commandant to send the papers concerning his dismissal from service.

The story of illness and prolonged treatment till March 30, 2009 stated in the lawyer''s letter was not repeated in the appeal dated February 15, 2010. By an order dated May 14, 2010 (WP p.51) the Deputy Inspector General rejected the appeal.

Feeling aggrieved, the petitioner filed a revision petition dated March 30, 2011 (WP p.64). In the revision petition he stated that because of "Mental illness" he was unable to report for duty on April 04, 2006, and that after a prolonged treatment he recovered from the illness only on March 30, 2009.

With the revision petition he produced copies of prescriptions dated April 01, 2006, November 07, 2006, November 11, 2007, November 16, 2008 and fit certificate dated March 30, 2009 all issued by one Dr. Ashok K. Prasad of Ranchi. He, however, did not produce anything to show that he ever took any of the medicines prescribed by the doctor.

By a very detailed order dated June 20, 2011 (WP p.81) the Inspector General, CRPF, ES, Kolkata rejected the revision petition. He considered each and every ground taken in the revision petition and with respect to the plea of mental illness he said as follows:-

10) & 11) The plea put forth by the petitioner in this para about his mental illness is found not reasonable and justified as neither petitioner nor his family members has informed about his illness during the entire absence period to the Unit Commandant. He has also not produced any documents of treatment of any Govt. Hospital or any CRPF Doctor/Hospital in support of his long treatment, which speaks that his plea of illness is an after thought action of petitioner.

Questioning the orders of the Commandant, the DIGP, CRPF, Durgapur and the IGP, CRPF, ES, Kolkata this WP has been brought.

Mr. Rahman appearing for the petitioner and relying on Sarjug v. Coal India Ltd. & Ors., 2005 (3) CHN 213 has submitted as follows. The disciplinary proceedings were vitiated by gross violation of the principles of natural justice. The petitioner was not given any opportunity to defend himself.

His contentions are these. Proceedings under s.11(1) of the Act could not be initiated, because the allegation, at best, could constitute an offence under s.10(m) of the Act. Since the allegation was of desertion and absence without leave, proceedings could be initiated only under r.31 of the Central Reserve Police Force Rules, 1955 and the petitioner could be punished, if at all, only after trial according to r.36 of the rules.

I am unable to accept that minor punishment proceedings could not be initiated against the petitioner. True it is that the petitioner, admittedly, overstaying the leave granted to him could be tried for an offence committed under s.10 of the Act, if he overstayed the sanctioned leave without sufficient cause.

The Commandant initiating the proceedings wanted to ascertain whether he was overstaying the leave without sufficient cause. The allegation that he was overstaying the leave granted to him was sufficient to initiate minor punishment proceedings under s.11. Hence there was no reason to take steps according to rr.31 and 36.

It is not acceptable that the petitioner was not given reasonable opportunity to defend himself. The Commandant, the DIGP and the IGP all stated in detail in their respective orders how steps were taken from time to time to serve the charge-sheet, notices and orders on the petitioner. He was never found at his recorded address.

It is very important to note that from April 04, 2006 till October 21, 2009 (the date of his lawyer''s letter) he never gave any intimation why he was unable to report for duty. No member of his family gave any intimation as well.

With respect to his case that from April 01, 2006 till March 30, 2009 he was suffering from mental illness stated in his revision petition, the revising authority concluded that it was an afterthought. Though he had produced several prescriptions written by a doctor, he did not produce anything to show that he had ever taken any of the medicines prescribed by the doctor.

In the facts and circumstances of the case, I am unable to accept that injustice was really done to the petitioner. He never cared for his employment. His story of mental illness is just not believable. His conduct shows that he overstayed the leave granted to him wilfully and deliberately. This constitutes an act of misconduct. Penalty of dismissal was just and proper. I am unable to see how the cited decision is of any assistance. For these reasons, the WP is dismissed. No costs. Certified xerox.