Naresh Kumar vs Union of India (UOI) and Others

H. Imtiyaz Hussain, J.—Petitioner Naresh Kumar was working as constable in 148 Bn. CRPF. In September, 2004 he proceeded on 12

days casual leave. He remained on OSL leave without permission from the competent authority. Despite directions by the higher authorities he did

not report for duty as such an enquiry was initiated against him and on completion thereof he was dismissed from service.

Through the medium of the present petition the petitioner has challenged the order of his dismissal made vide No. VIII-7/05-EC-II-148 dated

24.9.2005. He has prayed for reinstatement in service with all consequential benefits.

Respondents have in reply to the present petition stated that the petitioner was granted sufficient opportunity to make himself present before the

Enquiry Officer and produce the documents in his support but the petitioner failed to do so despite the best efforts made vide EO's letter dated

11.4.2005, 23.4.2005,10.5.2005 and 11.7.2005. It was in view of the fact that the petitioner did not cooperate with the enquiry that the same

was proceeded in exparte and the penalty of dismissal was imposed on him as he was found on unauthorised absence from duty.

Heard.

Learned Counsel for the petitioner has besides referring to the grounds taken by the petitioner in the present petition, referred to Rule 10, 27

and 31 of the Rules under the CRPF Act and would submit that under the rules enquiry against personal of CRPF is required to be conducted in

his presence but since the present enquiry has been conducted in ex-parte, the same cannot be taken as a proper enquiry. Learned Counsel for the

respondents has on the other hand relied on Board of DirectorsH.P. Transport Corporation v. K. C. Rahi (2008) 11 SCC 502 and submitted that

the petitioner was having the knowledge of the enquiry but he did not participate in it and has remained on unauthorized absence as such he cannot

complain of any violation of rules of natural justice as pleaded by him in the present petition.

I have gone through the pleas raised by the petitioner. I have also considered the submissions of learned Counsel for the petitioner.

The petitioner states that he remained mentally disturbed due to which he could not attend the duties. His wife was also ill as such he had to

proceed on leave and could not attend the duty regularly. The petitioner admits that an enquiry was initiated against him and letters were sent to

him to appear before the enquiry but submits that he could not do so due to ill health of petitioner's wife. He reported on 24.8.2005 at 148 Bn.

Jammu, where he came to know that the Commandant had left for DG course. He left for his home place in order to attend his ailing wife. The

petitioner submits that it was during this period that the enquiry was concluded and penalty of dismissal was imposed on him. From the averments

of the petition itself it would appear that the petitioner had the knowledge of the fact that the respondents had initiated an enquiry against him.

Despite this fact he did not participated in the enquiry to submit his defence. There appears no substance in the pleas regarding his illness or the

illness of his wife as he has not placed on file any document in support of it.

The authority cited by the learned Counsel for the respondents squarely applies to the facts of the present case. The Apex Court in the said case

found that where the employee had knowledge that a Departmental Enquiry was initiated against him yet he chooses not to participate in the

enquiry proceedings on his own risk, in such an event the plea of natural justice is deemed to have been waived and he is estopped from raising the

question of non-compliance with the principal of natural justice.

The petitioner had the knowledge of the enquiry but he abstained from it and did not participate in it as such he cannot now take the plea that

the respondents should have conducted the enquiry in his presence.

On the pleas raised I do not find any merit in the present petition which is hereby dismissed.