JUDGMENT
S.B. Sinha, C.J.
1. The petitioner was enlisted as Constable in CRPF on or
about 27th September 1988. For 128 days’ alleged unauthorized leave,
departmental proceedings were initiated against him, as the petitioner,
despite an order to take part in the Inter-Sector Shooting Competition to be
held on 25th February 2000, went on casual leave from 1st March 2000 to
6th March 2000 with holidays falling on 29th February 2000 and Sunday 5th
March 2000.
2. Although he was to report on duty on 6th March 2000, he
remained absent till 5th July 2000. He was, there from, shown absent from
duty. By a Regd. Letter dated 22nd April 2000, he was directed to report to
duty immediately but he neither complied therewith nor sent any
information to the concerned officer. As he failed to report to his duty, a
warrant of arrest was issued against him. However, he reported on duty
on 5th July 2000 before the Commandant Group Sector, CRPF,
Mukammaghat.
3. In the departmental proceeding the petitioner was asked to
submit his written statement, list of witnesses and documents etc. before
the Inquiry Officer. On 12th September 2000, he appeared before the
Inquiry Officer and produced two certificates alleging that he was ill
during the afore-mentioned period. He also produced a First Information
Report alleging theft of a suitcase containing clothes, Identity Card, Leave
Certificate etc.
4. The Inquiry Officer in his report dated 18th September
2000, on the basis of the materials brought on records by the parties inter
alia, found that although the petitioner complained that he had been
suffering from paralysis, the Medical Certificate produced by him
disclosed that he had been suffering only from pain. He also accepted that
the registered letters sent to him to resume hi duties had been received.
The petitioner was, therefore, found guilty of the charges levelled against.
He was thereafter by an order dated 5th December 2000 dismissed from
services by the Commandant, 36 Battalion, CRPF, Kalkaji, New Delhi.
Thereagainst, he preferred an appeal to the Deputy Inspector General in
terms of Rule 28 of the CRPF Rules wherein he, inter alia, accepted that
during the period of his unauthorized absence, he even did not report his
sickness or submitted any application for leave. He, therefore, prayed:
“Sir, the punishment of dismissal from
service is very harsh considering the cause
of my absence from duty and I, therefore,
pray for a sympathetic consideration by your
honour and pray for quashing of order of
dismissal passed by the worthy
Commandant and further pray for my
reinstatement in service. Sir, I assure of not
repeating the mistake which I did as stated
above and I further assure your honour of
sincere and dedicated service without any
room for any complaint in future.”
5. He filed a supplementary petition of appeal on 11th April
2001 praying for reinstatement upon setting aside departmental
proceedings. By an order dated 2nd August 2001, the said appeal was also
dismissed.
6. In the counter-affidavit, it has been pointed out that during
the period of service, he had been awarded several punishment and
further he overstayed of leave unauthorisedly which or an under:
(a) 28 days confinement to Q.G. by
Comdt. After DE for 107 days OSL.
(b) 10 days confinement to line w.e.f.
24.09.1994 to 03.10.1994 by Comdt. As he
had deserted line himself for two days
on route from 19.09.1994 to 20.09.1994
while he was going to B.H.I. for attender
duty of Lnk. Vijay Kumar.
(c) 34 days OSL from 25.07.1992 to
27.08.1992.
(d) 107 days OSL from 13.05.1993 to
27.08.1993.
(e) one day OSL on 29.01.1996
(f) one day OSL on 24.06.1996″
7. It has further been pointed out that although the petitioner
was said to have been under treatment in a private nursing home at
Shahdara but he submitted his Fitness Certificate issued by one Dr.
Ravinder Mohan of Ghaziabad which appeared to be a fabricated one and
in any event thereby it had not been proved that he was suffering from any
illness.
8. The learned counsel for the petitioner would submit that the
respondents completely misdirected themselves in passing the impugned
orders in so far as they failed to take into consideration that having regard
to the long service of the petitioner, the punishment of dismissal from
services is disproportionate to the charge of misconduct levelled against
him.
9. In support of the said contention, reliance has been placed
on a decision of a learned single Judge of this court in Parimal Singh v.
Union of India and Ors., 2001 IV AD (Delhi) 679 wherein, inter alia, it has
been held:
“7. The Disciplinary Authority was well
aware of the discretion available to him
which is palpably evident from the
underlined portions in the extract of the
impugned order given above. He himself
stated that he could have taken a lenient
view. This is also borne out from the
provisions of Section 11 of the Act itself. It
does not mandate that a dismissal order must
be passed in all cases. The petitioner could
have been punished with a reduction in rank,
or a fine not exceeding one month’s pay and
allowances, or confinement to quarters etc.
or removal from any office of distinction or
special emolument. The officer did not
correctly exercise the discretion expected of
him in holding that the intentions of the
delinquent were purposeful. Had his action
not been ‘purposeful’, necessary means read or
guilt would have been absent and he would
not have been liable to any punishment. The
Disciplinary Authority ought to have also
kept in mind the fact that the petitioner had
already served for over seven long years and
that his ignorance was writ large by the fact
that he could have otherwise been recruited
by invoking the relaxation contained in Rule
11(h) of the Rules. Courts of law do not
normally review the exercise of jurisdiction.
Such judicial review is, however, called for
where the exercise of discretion is perverse
or lacking in substance.”
10. The factual matrix involved in the said decision is quite
different. In that case, this court inter alia made the said observations
having regard to the fact that a forged document was allegedly filed only
as regards age which was within the power of relaxation of the competent
authority. However, we do not agree in the broad proposition of law laid
down therein.
11. The learned counsel has further placed reliance upon the
decision of the Apex Court in Union of India v. Giriraj Sharma, wherein the Apex Court held:
“2. Mr. Jain the learned counsel for the
appellant Union of India contended that the
interpretation placed on Section 11(1) of the
Central Reserve Police Force Act, 1949
(hereinafter called ‘the Act’) is not correct
and it is on account of this erroneous
understanding of the provision that the High
Court quashed the order of dismissal. In
support of his contention he invited our
attention to a decision of the Rajasthan High
Court . He
also relied on certain other decisions but it is
sufficient to state that according to him the
learned Judges of the High Court had
committed an error in interpreting the said
sub-section. In our opinion it is not
necessary for us to construe Sub-section (1)
of Section 11 of the Act in the backdrop of
the fact of the present case. Assuming Mr.
Jain is right, we are of the opinion that so far
as the present case is concerned the
allegation is in regard to the incumbent
having over-stayed the period of leave by 12
days. The incumbent while admitting the
fact that he had over stayed the period of
leave had explained the circumstances in
which it was inevitable for him to continue
on leave as he was forced to do so on
account of unexpected circumstances. We
are of the opinion that the punishment of
dismissal for over-staying the period of 12
days in the said circumstances which have
not been controverter in the counter is harsh
since the circumstances show that it was not
his intention to willfully flout the order, but
the circumstances force him to do so. In that
view of the matter the learned counsel for
the respondent has fairly conceded that it
was open to the authorities to visit him with
a minor penalty. If they so desired, but a
major penalty of dismissal from service was
not called for. We agree with this
submission.”
12. In the instant case, the petitioner not only was
unauthorisedly absent for 128 days, it was found as of fact that he had
produced a bogus Medical Certificate. His defense had been disbelieved
for cogent and sufficient reasons. His past conduct, as noticed
hereinbefore, has also been taken notice of by the disciplinary authority.
13. The question as to whether in a situation of this nature, this
court should exercise its discretionary jurisdiction or not is squarely
covered by a recent decision of the Apex Court in Om Kumar and Ors. v.
Union of India, 2000(8) Supreme 217 : AIR 2000 SC 3689 wherein it was
observed:
“Where an administrative decision
relating to punishment in disciplinary cases
is questioned as ‘arbitrary’ under Article 14,
the Court is confined to Wednesbury
principles as a secondary reviewing
authority. The Court will not apply
proportionality as a primary reviewing Court
because no issue of fundamental freedoms
nor of discrimination under Article 14
applies in such a context. The Court while
reviewing punishment and if it is satisfied
that Wednesbury principles are violated, it
has normally to remit the matter to the
administrator for a fresh decision as to the
quantum of punishment. Only in rare cases
where there has been long delay in the time
taken by the disciplinary proceedings and in
the time taken in the Courts and such
extreme or rare cases can the Court
substitute its own view as to the quantum of
punishment.”
14. In view of the afore-mentioned decision of the Apex Court
wherein a large number of earlier decisions had been taken into
consideration, we are of the opinion that it is not a fit case wherein this
court should exercise its discretionary jurisdiction.
15. This writ petition is dismissed accordingly without any
order as to costs.