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Judgment
Pradeep Nandrajog, J.—On 28.1.2011 Respondents were granted 4 weeks'' time to file a counter affidavit.
None being filed, vide order dated 3.3.2011, 10 days'' time was further granted to file a counter affidavit. Matter was listed on 14.3.2011.
On said date last opportunity, by extending time by 4 weeks, was granted to do the needful; renotifying the matter for today. Counter affidavit has not yet been filed.
It is apparent that in spite of 3 opportunities granted, counter affidavit has not been filed. Right to file counter affidavit is closed.
The issue is short.
Petitioner''s counsel concedes the misdemeanour but questions the penalty levied urging the same to be shockingly disproportionate.
We may note that on 21.1.2011 we had noted as aforesaid requiring Respondents to file a counter affidavit limited to the issue of proportionality of the penalty and we are pained that the counter affidavit has not been filed.
Factual issues are not in dispute and the only thing which has resulted by way of counter affidavit not being filed is, the Court not having the benefit of the reasoning of the Revisional Authority to sustain the enhanced penalty of compulsory retirement inflicted upon the Petitioner.
Undisputed facts are that on account of engagement ceremony of his brother, Petitioner had applied for one day''s casual leave on 24.2.2001. The same was declined with a direction to the Petitioner to proceed to Srinagar.
There was no urgent requirement for the Petitioner to be at Srinagar. It was a routine order requiring him to proceed to Srinagar.
The Petitioner had a verbal altercation with his superior officer. Certain heated words were exchanged. Since the casual leave was not sanctioned, in anger and disgust, the Petitioner picked up his application seeking casual leave and on the aforesaid incident a charge-sheet was served upon him listing 3 Articles of Charge as under:
Article-I That No. 903020261 Const.(GD) Dharmendra Singh who was posted in the A/66 Bn. in the capacity of Constable and while he was attached with Bn. Hqr. at Pappan Kalan, New Delhi, has committed an act of misconduct u/s 11(1) of CRPF Act 1949 in that on 24.2.1001 being a member of the Force, disobeyed the orders of the Adjutant 66 Bn. by denying to proceed to A/66 Bn. and used indecent languages and shouted in front of other Jawans. Article-II That said Force No. 903020261 Const.(GD) while posted in the 66 Bn. in the capacity of Const.(GD) on 24.02.2001 and while he was attached with the Bn. Hqr. being a member of the force has committed an act of misconduct and indiscipline u/s 11(1) of the CRPF Act 1949 in that he has taken away official documents from the office of the Sub-Inspector (Adjutant) without permission and till date not returned the same to the office of the Sub-Inspector (Adjutant). Article-III That No. 903020261 Const.(GD) Dharmendra Singh who was posted in the A/66 Bn. in the capacity of Constable and while he was attached with the Bn. Hqr. at Pappan Kalan, New Delhi, has committed an act of misconduct u/s 11(1) of CRPF Act 1949 in that on 24.2.2011 being a member of the Force, in that he create pressure on the Adjutant of the Unit for sanction of leave on one after another pretext and threatened the Adjutant of the Unit with dire consequences in case of non-sanctioning of leave.
At the inquiry the Petitioner was indicted, but not fully pertaining to Charge No. I. Pertaining to said charge it was held that the Petitioner spoke loudly but did not use uncivilized language. Articles II and III of the charge were held to be proved.
Keeping in view the background under which the Petitioner had a verbal altercation with superior officer, vide order dated 20.3.2004, the Commandant i.e. the Disciplinary Authority levied the penalty of withholding 1 annual increment for 2 years with cumulative effect.
Petitioner''s appeal against the penalty levied was rejected vide order dated 3.8.2004.
Petitioner filed a Revision in which the Revisional Authority opined that the penalty was inadequate and thus issued a show-cause notice dated 23.1.2009 requiring the Petitioner to show-cause as to why the penalty be not enhanced to dismissal from service.
Considering the reply filed by the Petitioner the Revisional Authority, vide order dated 28.4.2009, inflicted the penalty of compulsory retirement.
Suffice would it be to state that the Petitioner was provoked into having a heated dialogue with his superior officer on account of a genuine request for 1 day''s casual leave being declined.
It was not a war situation. Petitioner was not required for any emergency duty. He was directed to proceed to Srinagar in routine. His brother''s engagement ceremony had to be performed. Only 1 day''s casual leave was sought for.
For the misdemeanour of arguing with the senior officer and in anger snatching back the application for leave submitted by him, we are of the opinion that the penalty levied by the Commandant was an adequate penalty and there are no reasons to enhance the same, more so when the penalty order dated 20.3.2004 was given effect to and by the year 2007, the penalty stood completed.
Accordingly, we dispose of the writ petition quashing the order dated 28.4.2009 passed by the Revisional Authority and restore the penalty order dated 20.3.2004.
We direct the Petitioner to be reinstated within 6 weeks.
Petitioner would be paid back-wages post 28.4.2009 till he is reinstated. Petitioner would be entitled to all consequential benefits.
Arrears would be paid to the Petitioner within the said period of 6 weeks.
No costs.