Domnic Kindo vs Union Of India

This petition is filed under Article 226 of the Constitution of India for quashing/set aside the orders dated 02.03.2010, 14.09.2012, 02.01.2015, 20.04.2015 and 17.11.2015 passed by the Respondent Authorities and for direction to the Respondent Authorities to grant pensionary benefits such as pension, leave encashment, group insurance, gratuity etc. in accordance with the law.

Brief facts of the case are that the petitioner was appointed as Head Constable under the Indian Tibet Boarder Police Force in the year 1988 and since then the petitioner was discharging his duties. In the year 2009 the petitioner was mentally unfit, therefore, on 17.08.2009, the petitioner after taking leave from his higher authorities till 16.09.2009, came to his home at Kunkuri and from 17.08.2009 to 02.03.2010, he was taken local herbal treatment at Kunkuri, but as on 16.09.2009, the petitioner could not cure from illness, therefore orally informed to the authorities regarding his mental illness as well as inability in attending the duty and also requested for further leave. However, without affording any opportunity for a hearing and without seeking any explanation from the petitioner, vide order dated 02.03.2010 (Annexure-P/1) respondent No. 5 has dismissed the petitioner from service. Being aggrieved by the order dated 02.03.2010, the petitioner preferred an appeal/representation, which was rejected vide order dated 14.09.2012 (Annexure-P/2) against which, the petitioner preferred an appeal before respondent No. 4, which was also dismissed vide order dated 02.01.2015 (Annexure-P/3) on the ground of delay. Thereafter, the petitioner preferred a mercy petition before respondent No. 3 whereby also requested for payment of pensionary benefits, but the same was also rejected vide order dated 20.04.2015 (Annexure-P/4). After that, the petitioner preferred a representation/revision before respondent No. 2 and requested for payment of pensionary benefit which was also rejected vide order dated 17.11.2015 (Annexure-P/5) by respondent No. 2. Hence, the present petition has been filed by the petitioner.

Learned counsel for the petitioner submits that the impugned orders are bad in law being arbitrary, illegal, unwarranted and unauthorized therefore hit by the postulates of Articles 14, 16 & 21 of the Constitution of India. He further submits that the petitioner has been ex-parte dismissed from service, which is not permissible in law and contrary to the provisions of Article 311 of the Constitution of India. The impugned punishment of ex-parte dismissal of the petitioner from service is disproportionate and exorbitant, which deserves to be quashed by this Court. He next submits that the petitioner remained absent from his duties due to his ill health, after obtaining leave of one month, but the petitioner could not cure within the leave period, therefore he could not be reported on his duties. The petitioner requested the authorities to alter the punishment from dismissal to compulsory retirement, but the same was not considered. He lastly submits that the petitioner has served 22 years without any blame, complaint or stigma, therefore instead of dismissing the petitioner, the respondent authorities ought to have retired the petitioner. There are provisions contained in the Pension Rules to provide pensionary benefits to the employee, who has completed 20 years of service and the petitioner has already served more than 22 years, therefore he has entitled to pensionary benefits. He has placed reliance on the decision of Hon’ble the Supreme Court in the matters of Iqbal Nath Sharma (Dead) by Legal Representatives vs. Union of India and Another (2016) 14 SCC 243 and Manoj Kumar Vs. State of Uttar Pradesh and Others (2018) 13 SCC 161.

Learned counsel for the respondent opposes the prayer made by the counsel for the petitioner and submits that after due consideration upon the representation made by the petitioner his representation had been dismissed by the authorities and also after due inquiry the petitioner has been dismissed from his service in accordance with the law.

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

It is quite clear from the record that the petitioner was appointed in the year 1988 and since then till 2009 he has completed more than 22 years of his service. It is also clear from the documents filed by the respondent authorities that during the departmental inquiry, notices were issued against the petitioner but he did not appear before the competent authorities.

In the matter of Manoj Kumar (Supra) Hon’ble the Apex Court in paras 8, 9 and 10 has held as under:-

Before the High Court, the appellant raised the only issue of the punishment being grossly disproportionate to the charge contending that it was the first misconduct committed by him in 15 years of service. Noticing from the record, that twice earlier he had been “censured” the High Court declined to interfere with the quantum of punishment holding that even otherwise it was the prerogative of the employer.

The appellant had been in service for about 15 years before dismissal. Earlier he was “censured” only. In State of U.P. v. Jaikaran Singh, (2003)9 SCC 228, it was observed as follows:-

“…….Having regard to the facts and circumstances of the present case and also taking into account the fact that the respondent had served the appellant organisation for about more than 12 years, we think the ends of justice would be met if the order of dismissal is altered to one of compulsory retirement…..”

In the entirety of the materials, considering the suspension on 28.03.2004 and ultimately dismissal from service on 19.08.2004, the fact that he had remained out of service for such a long period of time with all the attendant consequences to him and his family, the appellant has suffered enough and therefore in the facts and circumstances of the case, the ends of justice shall be met by setting aside the order of dismissal and substituting it by an order for compulsory retirement. With the aforesaid modification of punishment the appeal stands disposed.

Also in the matter of Iqbal Nath Sharma (Supra) Hon’ble the Apex Court in paras 9 and 10 has held as under:-

Taking into account the said factors, we are of the view that though the act of misconduct found proved cannot be dealt with lightly, the punishment of removal may not be warranted while the other major punishment of compulsory retirement would meet the ends of justice. Therefore, we are convinced that the punishment of compulsory retirement, which is also one of the major punishments under Rule 11(vii) can be imposed instead of removal from service taking into account the long service of twenty years put in by the deceased appellant.

With the said modification in the matter of punishment, the impugned order [Iqbal Nath Sharma v. Union of India, 2010 SCC Online Del 441] of the High Court stands confirmed. Based on the said modified punishment of compulsory retirement whatever terminal benefits as well as family pension payable to the dependents of the deceased appellant shall be processed and wherever it needs to be granted, the same may be granted by passing appropriate orders. Since it is stated that Iqbal Nath Sharma (deceased appellant) died on 15.03.2012, it will be appreciated if the respondents pass such orders within three months from the date of receipt of copy of this order.

In the instant case, the appellant prayed for a direction to Respondent Authorities that his dismissal may be modified to compulsory retirement and direction may be given to the respondent authorities to grant pensionary benefits to him. It is clear from all the documents that the petitioner has completed 22 years of his service.

Looking to the entirety of the materials, considering the situation of the petitioner and the facts and circumstances of the case, the ends of justice shall be met by setting aside the order of dismissal and substituting it with an order for compulsory retirement. Based on the said modified punishment of compulsory retirement whatever terminal benefits as well as other benefits of pension to the petitioner, the same may be granted by passing appropriate orders by the Respondent Authorities. It will be appreciated if the Respondent Authorities pass such orders within three months from the date of receipt of the copy of this order.

With the aforesaid modification and directions, the appeal stands disposed of.