Sukhpal Singh (Ex. Const.) vs Union of India and Others

DR. M.K.Sharma, J.—This writ petition is directed against the order dated 2.2.1994 imposing on the petitioner by the respondents a penalty of removal from service with effect from 7.2.1994. The petitioner has also challenged the orders passed by the appellate authority on the appeal preferred by the petitioner as also the order passed by the revisional authority on the revision petition dismissing the same.

The petitioner was charge-sheeted u/s 11(1) of the CRPF Act. The charge relates to remissness of the petitioner in the discharge of duty. As against the aforesaid charge-sheet, the petitioner submitted his reply to the Memo of charges. The disciplinary authority considered the said reply and found that the reply is not satisfactory and accordingly appointed an Enquiry Officer to enquire into the charges framed against the petitioner. The Enquiry Officer after completion of the enquiry proceeding submitted his report. The petitioner was afforded opportunity to make a representation which was filed by the petitioner and thereafter, aforesaid penalty of removal from service was imposed on the petitioner. The petitioner filed an appeal, but since the said appeal was barred by time, the appeal was not entertained and rejected as such by the appellate authority. As against the same, the petitioner filed a revision which was dismissed by the respondents by order 25.9.1995. Being aggrieved by the aforesaid orders, the petitioner preferred the present writ petition in this Court only on 1.7.1996.

Mr. S.M. Hooda, counsel appearing for the petitioner submitted before me that the petitioner had over-stayed leave because of compelling circumstances of happening of natural calamity which fact although was pointed out to the disciplinary authority as also to the higher authorities like the appellate authority and the revisional authority was not taken note of and, Therefore, the impugned orders are required to be set aside.

The next submission of the learned counsel appearing for the petitioner is that the petitioner was not given any personal hearing by the revisional authority while disposing of the revision petition and, Therefore, the stay order passed by the revisional authority is required to be set aside. Learned counsel also submitted before me that the punishment awarded to the petitioner is disproportionate to the offence alleged inasmuch as for overstayed of leave, the petitioner should not have been imposed with a harsh penalty like removal from service. In support of his submission that the punishment awarded should have been lighter than what was ordered, counsel relied upon a decision of the Supreme Court in Mohinder Singh Chemma Vs. State of Punjab & others reported in JT 1990 (2) S.C. 648.

Ms Barkha Babbar, counsel appearing for the respondents, however, states that the petitioner was granted 60 days earned leave from 14.5.1993 to 12.7.1993 and that after expiry of the aforesaid period the petitioner did not report for duty till 19.9.1993 and, Therefore, the petitioner overstayed leave by about 68 days. Counsel stated that the petitioner submitted an application for extension of leave only on 20.7.1993 and there also prayed for extension of leave only for 30 days. The said application was rejected and by memo dated 6.8.1993 the petitioner was directed to report for duty immediately, but in spite of the aforesaid memo the petitioner failed to report for duty as commanded and reported for duty only on 19.9.1993.

Counsel for the respondents further submitted that the petitioner is in the habit of over-staying his leave inasmuch as on earlier occasions also the petitioner never used to report back to the Unit after expiry of leave during the period of 3 years prior to the institution of the present departmental proceeding. The respondents have set out details of overstayed of leave/punishment awarded to the petitioner in paragraph 8 of the counter affidavit relating to reply on merits to the grounds. Four incidents have been set out therein to show that the petitioner had over-stayed leave on earlier occasions also. Relying on the said facts counsel submitted that the punishment awarded to the petitioner is definitely in commensurate with the offence.

In the light of the aforesaid submissions, let me consider the merit of the submissions of the learned counsel appearing for the petitioner.

Admittedly after 14.5.1993, when the petitioner went on earned leave, he over-stayed leave by 68 days. On that count the departmental proceeding was instituted by the respondents and on conclusion of the enquiry the petitioner was found guilty of the charge and thereafter the disciplinary authority passed the order imposing the punishment of removal from service on the petitioner. Counsel for the petitioner has not assailed before me the legality of the departmental proceeding. Accordingly, I am not called upon in this case to determine the issue as to whether there was any violation of the principles of natural justice in conducting the enquiry. Nor sufficiency of materials in the proceeding is challenged before me. After proper and due enquiry, the petitioner was found guilty of the charge and accordingly the disciplinary authority imposed the penalty of removal from service. The disciplinary authority as also the revisional authority being fact finding authorities have exclusive power to consider the evidence with a view to maintain discipline and on consideration thereof both of them are of the opinion that the punishment imposed on the petitioner is proper and valid. The said authorities are also invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of misconduct. In B.C. Chaturvedi Vs. Union of India and another reported in 1996 S C C 80, the Supreme Court has held that the High Court/Tribunal while exercising the power of judicial review, cannot normally substitute their own conclusion on penalty and impose some other penalty. It was further held that if in case the High Court is of the opinion that the punishment imposed shocks the conscience, then the only course open to it is to direct the disciplinary/appellate authority to reconsider the penalty imposed. The decision of the Supreme Curt in Mohinder Singh Chemma (supra) is distinguishable on facts for in that case the petitioner overstayed leave just by one day each in two consecutive years. The same is not the case here in the present case.

In view of the aforesaid settled law in respect of the issue with regard to quantum of punishment, this Court even if it considers that the punishment awarded is disproportionate cannot substitute the same, but, has to refer back the matter either to the revisional authority or to the appellate authority or to the disciplinary authority. The only question, Therefore, to be considered here is whether the punishment awarded by the disciplinary authority to the petitioner is in any manner shocking and/or arbitrary. The petitioner over-stayed leave by about 68 days for which the departmental proceeding was instituted wherein he was found guilty. Past incidents of the petitioner over-staying leave within three years thereto have also been indicated in the counter affidavit. It thus appears that the petitioner is in the habit of over-staying his leave as and when he is permitted to avail of leave. When those circumstances are taken note of and considered together with the fact that the petitioner was working with a disciplined force, it cannot be said that the punishment awarded to the petitioner is disproportionate to the offence or that the punishment awarded to the petitioner is shocking to the conscience.

Counsel for the petitioner also submitted no finding has been recorded by the Enquiry Officer holding the petitioner guilty of the charge. On perusal of the record of the disciplinary authority, I find the allegation to be baseless. The Enquiry Officer found the petitioner guilty of the charge on consideration of the evidence on record.

The next issue raised is with regard to not giving personal hearing to the petitioner by the revisional authority. It is settled law that personal hearing is called for only when the Statute requires such a personal hearing to be given to the person aggrieved. No such Rule is in existence in the CRPF Rules, 1995 which governs the case of the petitioner. In absence of any such Rule enjoining the respondent to give a personal hearing to the petitioner no infirmity is found in the action of the respondents in not giving a personal hearing to the petitioner before disposal of the revision petition. No other ground is urged by the petitioner in the present case and thus there is no merit in this writ petition and the same accordingly stands dismissed.