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Judgment
The petitioner has preferred this writ petition under Article 226 of the Constitution of India seeking quashment of the order dated 23-6-2018, vide Annexure P-3, whereby he has been removed from service. He has also challenged the order dated 14-2-2019, vide Annexure P-2, whereby his appeal was rejected, as well as the order dated 5-8-2019, vide Annexure P-1, whereby his revision was rejected.
Facts of the case, in brief, as projected in the writ petition are that, the petitioner was initially appointed vide order dated 25-3-2009 to the post of Constable. Since the petitioner had completed more than eight years of service, he attained the status of permanency in service. On medical grounds, the petitioner was granted leave for the period from 13-2-2017 to 14-3-2017. After expiry of the period of leave, as his condition did not improve, the petitioner applied for extension of leave for another six months. In support of his application, he submitted copies of medical prescriptions and other relevant documents, including a medical certificate. The said request was rejected by respondent No. 3 vide communication (Annexure P-4) dated 1-4-2017, whereby the petitioner was directed to report for duty forthwith, failing which disciplinary action would be taken against him. After receiving the said communication, the petitioner reported for duty on 7-6-2017; however, respondent No. 3 did not permit him to join. It is pleaded that the petitioner remained under medical treatment till 6-6-2017, as reflected from Annexure P-5. For these reasons, he could not participate in the disciplinary enquiry proceedings initiated against him and, ultimately, respondent No. 4, vide order dated 23-6-2018 (Annexure P-3), removed him from service. Against the order of removal from service, the petitioner preferred an appeal (Annexure P-8) before respondent No. 3/Commandant, 219 Batallian, CRPF, Sukma; however, the same was dismissed vide order dated 14-2-2019 (Annexure P-2). Thereafter, the petitioner preferred a revision (Annexure P-9) before respondent No. 2/Inspector General of Police, CRPF, Pune Range, Pune, which was dismissed vide order dated 5-8-2019 (Annexure P-1).
The petitioner initially preferred a writ petition before the Hon'ble High Court of Judicature at Bombay, Nagpur Bench, challenging the orders contained in Annexures P-1 and P-2. The said petition was registered as Writ Petition No. 5495 of 2022. However, since the petitioner was appointed in the office of respondent No. 4, which falls within the territorial jurisdiction of this Court, the petition was dismissed as withdrawn with liberty to approach the appropriate Court vide order dated 15-3-2023 (Annexure P-10). Hence, the petitioner has preferred the present writ petition before this Court seeking following reliefs :-
“10.1Call for the entire records pertaining to the case of the Petitioner from the possession of respondents for its kind perusal of this Hon'ble Court.
10.2That this Hon'ble Court be pleased to quash the impugned orders Annexure P-1, Annexure P-2 and Annexure P-3, in the interest of justice.
10.3This Hon'ble Court be further pleased to pass such other order(s) or direction(s), as this Hon'ble Court may deem fit and proper in favour of the Petitioner against the respondents including the costs of the petition under the facts and in the circumstance of the case and in the interest of justice.”
Learned counsel for the petitioner submits that, as the petitioner was suffering from chest pain and other ailments, he was granted leave for 30 days from 13-2-2017 to 14-3-2017. Since his health did not improve, he submitted an application seeking medical leave for six months. The same was not granted, and he was directed either to report for duty or to undergo treatment at the Combined Hospital, Central Reserve Police Force, Nagpur, vide communication dated 1-4-2017 (Annexure P-4). The petitioner reported for duty on 7-6-2017; however, respondent No. 3 did not permit him to join and treated him as unauthorizedly absent with effect from 15-3-2017. He further submits that, on account of treating him as unauthorizedly absent, disciplinary proceeding was initiated against him, in which an ex parte enquiry report was submitted by the Inquiry Officer. On the basis thereof, the final order dated 23-6-2018 (Annexure P-3) was passed by respondent No. 3/Commandant, and he has been removed from service.
Learned counsel further submits that the appeal preferred by the petitioner was also rejected vide order dated 14-2-2019 (Annexure P-2) passed by respondent No. 2, and the revision petition was also rejected vide order (Annexure P-1) dated 5-8-2019. Learned counsel submits that the enquiry report and the final order of removal from service were passed against the petitioner without affording him due opportunity of hearing and in violation of the principles of natural justice. He, therefore, prays that the impugned orders be set aside and the reliefs sought by the petitioner be granted.
The respondents have filed their Reply. Referring thereto, learned counsel for the respondents submits that petitioner was a member of the armed forces and failed to report at his place of posting after expiry of his leave period. She further submits that, after expiry of the leave period, the petitioner did not join duty, and therefore, a letter (Annexure R-1 colly) dated 22-3-2017 was issued directing him to report for duty. Despite receipt thereof, he did not join his duty. Accordingly, a departmental enquiry was initiated against him and, after affording adequate opportunities of hearing to participate in the departmental enquiry, he failed to participate, which constrained the Inquiry Officer to submit an ex parte enquiry report. Thus, it cannot be contended that petitioner was denied an opportunity of hearing or that principles of natural justice were violated. She further submits that, after receipt of enquiry report, a copy thereof was served upon the petitioner and he was called upon to submit his reply/representation vide Annexure R-11 dated 2-6-2018. However, he failed to submit any reply or representation. Consequently, the final order dated 23-6-2018 (Annexure R-12) was passed removing him from service. She, therefore, submits that the present writ petition deserves to be dismissed.
Learned counsel for the petitioner filed rejoinder controverting the submission made by the respondents in their reply.
Heard learned counsel for the parties and perused the material available on record.
From perusal of record, it is apparent that the petitioner was on leave from 13-2-2017 to 14-3-2017. Thereafter, he applied for extension of leave on medical grounds, but the same was rejected and he was directed to report for duty. However, according to the petitioner, when he attempted to join duty, he was not permitted to do so. And treating him as unauthorizedly absent with effect from 15-3-2017, departmental proceeding was initiated against him, in which an ex parte enquiry report was submitted, on the basis of which he was removed from service vide order dated 23-6-2018 (Annexure P-3). In the light of the aforesaid facts, the main contention of the petitioner is that he was not afforded due opportunity of hearing and that the proceedings stand vitiated on account of violation of the principles of natural justice.
Perusal of the order dated 23-6-2018 (Annexure P-3), whereby the petitioner was removed from service by respondent No. 3, shows that the following charges were levelled against him :
"मद – 01
यह कि बल संख्या 095252863 सिपाही/जीडी-राहुल सोपान हिंगारकर ने ए समवाय/219 में सिपाही/जीडी के पद पर कार्यरत रहते हुए केन्द्रीय रिजर्व पुलिस बल अधिनियम-1949 की धारा-11 (1) के तहत बल का सदस्य होने की हैसियत से कदाचार का एक अपराध किया है, जिसमें उसे 13/02/2017 से 14/03/2017 तक 30 दिन अर्जित अवकाश स्वीकृत किया गया था तथा अवकाश की समाप्ति पर उसे दिनांक 14/03/2017 को रात्रिगणना में उपस्थित होना था, किन्तु ऐसा न कर व दिनांक 15/03/2017 (पूर्वा.) से वह बिना किसी प्राधिकार व सक्षम अधिकारी की अनुमति के, अनाधिकृत रूप से अपनी ड्यूटी से अनुपस्थित गैर हाजिर चल रहा था।
: मद-2:
यह कि बल संख्या 095252863 सिपाही/जीडी-राहुल सोपान हिंगारकर ने ए समवाय /219 में सिपाही/जीडी के पद पर कार्यरत रहते हुए केन्द्रीय रिजर्व पुलिस बल अधिनियम-1949 की धारा-11 (1) के तहत् बल का सदस्य होने की हैसियत से आदेशों की अवज्ञा का एक गम्भीर अपराध किया है, जिसमें ए/219 बटालियन के पत्र संख्या एल.दो-2/2017-ए/219, दिनांक 22/03/2017, 29/03/2017 एवं 219 बटालियन के पत्र संख्या एल.दो-2/2017-स्था-2/219 दिनांक 02/07/2017 के द्वारा ड्यूटी पर रिपोर्ट करने हेतु निर्देशित करने के बावजूद कार्मिक ने अभी तक ड्यूटी पर रिपोर्ट नहीं किया है, जो कि बल के सुनहरे वसूलों व अनुशासन के खिलाफ है ।"
Perusal of the impugned order (Annexure P-3) shows that, after completion of his leave on 14-3-2017, the petitioner was required to report for duty at the time of roll call in the night of 14-3-2017; however, he failed to join his duties. Instead, he submitted an application dated 14-3-2017 seeking extension of his leave on the ground that he was suffering from “ANEMIA WITH NON-ICTERUS HEPATITIS WITH ENTERIC FEVER” and that the doctors had advised him to remain on medical bed rest for six months. He also annexed certain medical documents in support of his request. Since the said medical documents had been prepared on the last date of his leave, i.e., 14-3-2017, and advised such a long period of medical rest at one stretch, the same were found to be suspicious. Accordingly, respondent No. 3, vide communication (Annexure P-4), directed the petitioner to report for duty as soon as possible or to report to the Combined Hospital, CRPF, Nagpur, for his treatment. He was also warned that failure to comply with the said directions would be viewed seriously and would entail initiation of disciplinary proceedings against him. However, the petitioner neither complied with the aforesaid directions nor joined his duties, despite being instructed to do so vide three communications dated 22-3-2017, 29-3-2017 and 1-4-2017. Even after he was declared an ‘absconder’ and a warrant of arrest was issued against him, he failed to report for duty. Thus, the conduct of the petitioner, even prior to the issuance of the charge-sheet, was found to be completely negligent and reckless towards his duties and the lawful directions issued by his superior authorities.
The order (Annexure P-3) further reveals that, before commencement of the departmental enquiry, the Inquiry Officer informed the petitioner of his appointment as Inquiry Officer vide registered letter (Annexure R-8) dated 16-3-2018 and directed him to cooperate in the enquiry and appear in person to present his case within 15 days, failing which the enquiry would be conducted ex parte. However, within the stipulated period, the petitioner neither appeared nor submitted any representation. Thereafter, a further communication was issued to him vide letter (Annexure R-2) dated 2-4-2018, but he again neither appeared nor submitted any representation. Consequently, the Inquiry Officer proceeded ex parte. The Inquiry Officer thereafter forwarded the statements of all the witnesses recorded during the departmental enquiry to the petitioner vide registered letter (Annexure R-10, collectively, at page 58) dated 28-4-2018 and granted him a final opportunity to appear in the departmental enquiry within 15 days. He was further informed that, in the event of his failure to appear or to submit any evidence, document or representation before the Inquiry Officer, it would be presumed that he was unwilling to participate in the enquiry and that the Inquiry Officer would proceed to complete the enquiry and submit his report to respondent No. 4. Despite being afforded the aforesaid opportunities, the petitioner did not appear. Accordingly, the Inquiry Officer completed the enquiry and submitted his report to respondent No. 4.
In the final order, respondent No. 4 also recorded a finding that the Inquiry Officer had conducted the departmental enquiry in accordance with the prescribed rules and had afforded sufficient opportunities to the petitioner to present his case and defence. It was further observed that the petitioner had been directed to join duty vide registered letters dated 22-3-2017, 29-3-2017 and 1-4-2017. The petitioner himself reported at his Battalion Headquarters on 9-6-2017 at 10:30 a.m.; however, on the same day at about 7:00 p.m., he absconded. The matter was also reported to Police Station Konta, District Sukma. The petitioner did not respond to the communications issued to him directing him to join duty. On an application submitted by the Department, the Judicial Magistrate First Class issued a warrant of arrest against him. A judicial enquiry was also conducted and, on the basis of the report submitted by the Presiding Officer, the petitioner was declared a ‘Absconder’ (भगोड़ा).
The Inquiry Officer found charges Nos. 1 and 2 to be fully proved and concluded that the conduct of the petitioner was derogatory to the dignity of the Force, contrary to its discipline, and constituted misconduct on his part as a member of the Force under Section 11(1) of the Central Reserve Police Force Act, 1949, punishable under Section 27 of the Central Reserve Police Force Rules, 1955. During the course of arguments, learned counsel for the petitioner was also unable to point out any procedural irregularity in conducting the enquiry which could demonstrate that the findings recorded by the Disciplinary Authority were perverse or otherwise illegal.
Having considered the impugned order(s) passed by the Disciplinary Authority, this Court is in agreement with the findings and conclusions of the Disciplinary Authority, as affirmed by the Appellate Authority and the Revisional Authority. Indiscipline on the part of a member of an armed force has to be viewed seriously. It is clear from the record that the petitioner intentionally disobeyed the orders of his superior authorities and remained absent from duty since 14-3-2017. He also failed to participate in the disciplinary proceedings despite being afforded repeated opportunities. Such conduct, particularly in the case of a member of a disciplined armed force, amounts to gross misconduct and warrants appropriate disciplinary action. Therefore, the contention of learned counsel for the petitioner that due opportunity was not afforded to him is wholly unsustainable in the facts and circumstances of the present case.
The issue of unauthorized absence by a member of disciplinary force was taken into consideration by the Apex Court in the case of Union of India v. Datta Linga Toshatwad reported in [(2005) 13 SCC 709], wherein it has been held as under:
“8.The present case is not a case of a constable merely overstaying his leave by 12 days. The respondent took leave from 16-6-1997 and never reported for duty thereafter. Instead he filed a writ petition before the High Court in which the impugned order has been passed. Members of the uniformed forces cannot absent themselves on frivolous pleas, having regard to the nature of the duties enjoined on these forces. Such indiscipline, if it goes unpunished, will greatly affect the discipline of the forces. In such forces desertion is a serious matter. Cases of this nature, in whatever manner described, are cases of desertion particularly when there is apprehension of the member of the force being called upon to perform onerous duties in difficult terrains or an order of deputation which he finds inconvenient, is passed. We cannot take such matters lightly, particularly when it relates to uniformed forces of this country. A member of a uniformed force who overstays his leave by a few days must be able to give a satisfactory explanation. However, a member of the force who goes on leave and never reports for duties thereafter, cannot be said to be one merely overstaying his leave. He must be treated as a deserter. He appears on the scene for the first time when he files a writ petition before the High Court, rather than reporting to his Commanding Officer. We are satisfied that in cases of this nature, dismissal from the force is a justified disciplinary action and cannot be described as disproportionate to the misconduct alleged.”
The Supreme Court in the case of State of Punjab Vs. P.L. Singla reported in [(2008) 8 SCC 469] while dealing with unauthorised absence, has held as under:
"11.Unauthorised absence (or overstaying leave), is an act of indiscipline. Whenever there is an unauthorised absence by an employee, two courses are open to the employer. The first is to condone the unauthorised absence by accepting the explanation and sanctioning leave for the period of the unauthorised absence in which event the misconduct stood condoned. The second is to treat the unauthorised absence as a misconduct, hold an enquiry and impose a punishment for the misconduct.
14.Where the employee who is unauthorisedly absent does not report back to duty and offer any satisfactory explanation, or where the explanation offered by the employee is not satisfactory, the employer will take recourse to disciplinary action in regard to the unauthorised absence. Such disciplinary proceedings may lead to imposition of punishment ranging from a major penalty like dismissal or removal from service to a minor penalty like withholding of increments without cumulative effect. The extent of penalty will depend upon the nature of service, the position held by the employee, the period of absence and the cause/explanation for the absence….”
The Supreme Court in the case of Tushar D. Bhatt Vs. State of Gujarat and another reported in (2009) 11 SCC 678 has held as under:
“19.In Mithilesh Singh v. Union of India [(2003) 3 SCC 309] the settled legal position has been reiterated. The Court held that absence from duty without proper intimation is indicated to be a grave offence warranting removal from service."
The Supreme Court in the case of Chennai Metropolitan Water Supply and Sewerage Board Vs. T.T. Murali Babu reported in (2014) 4 SCC 108 has held as under :-
"26.In Tushar D. Bhatt Vs. State of Gujarat (supra), the appellant therein had remained unauthorisedly absent for a period of six months and further had also written threatening letters and conducted some other acts of misconduct. Eventually, the employee was visited with order of dismissal and the High Court had given the stamp of approval to the same. Commenting on the conduct of the appellant the Court stated that he was not justified in remaining unauthorisedly absent from of-ficial duty for more than six months because in the inter-est of discipline of any institution or organisation such an approach and attitude of the employee cannot be countenanced."
Recently Hon’ble Supreme Court in the case of Commandant and Ors. Basavraj A.K. [Civil Appeal No. ……. /2026 (SLP (C) No. 2568/2021)] Judgment dated 23-1-2026, has reiterated that, unauthorized absence or overstaying leave in a disciplined force like the CRPF is a serious misconduct.
As has been discussed in the preceding paragraphs, in the instant case, after completion of the one-month leave period, despite being warned, the petitioner neither joined his duties nor reported to the Combined Hospital, CRPF, Nagpur, for his treatment, as was advised by the respondent authorities. Rather, he was declared an ‘Absconder’ (भगोड़ा). He remained unauthorizedly absent not only for a period of more than six months, but also, despite repeated communications, he failed to participate in the disciplinary proceedings. Therefore, in the facts and circumstances of the case, the strict action taken against the petitioner cannot be held to be illegal, particularly in view of the aforesaid judgments rendered by the Apex Court.
So far as the quantum of punishment in disciplinary proceedings is concerned, it is well settled that the power of judicial review under Articles 226/227 of the Constitution of India is not directed against the decision itself but against the decision-making process. The Court cannot interfere merely because another view is possible. It is equally well settled that interference with the punishment imposed by the disciplinary authority is warranted only when the punishment is so disproportionate to the misconduct proved that it shocks the conscience of the Court.
Hon’ble Supreme Court in the matter of Union of India and Ors Vs. P Gunasekaran [(2015) 2 SCC 610], while dealing with the scope of interference in service matters held as under :-
“12.…..In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Articles 226/227 of the Constitution of India, shall not venture into reappreciation of the evidence. The High Court can only see whether:
(a)the enquiry is held by a competent authority;
(b)the enquiry is held according to the procedure prescribed in that behalf;
(c)there is violation of the principles of natural justice in conducting the proceedings;
(d)the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;
(e)the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;
(f)the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;
(g)the disciplinary authority had erroneously failed to admit the admissible and material evidence;
(h)the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;
(i)the finding of fact is based on no evidence.”
In the present case, the petitioner has failed to establish that the order imposing penalty was issued by an authority lacking jurisdiction or that the procedure prescribed under the applicable rules was not duly followed. Despite providing sufficient opportunities to participate in the departmental enquiry proceeding, petitioner did not participate in the proceeding, thus, principles of natural justice has also been followed. In my considered view, the petitioner, being member of a disciplined and armed force, cannot be permitted to remain absent from duty on untenable or frivolous grounds, particularly keeping in view the nature of the duties entrusted to such forces. Any leniency towards such conduct is likely to have an adverse impact on the discipline and functioning of the force. Conduct of this nature assumes greater significance for a member of the Force. In the circumstances of the present case, and in the light of the judgment cited above, removal from service also cannot be said to be an excessive or disproportionate punishment and, therefore, the same cannot be interfered with.
In view of the aforesaid discussion, this Court does not find any infirmity or illegality in the order(s) passed by respondent authority removing petitioner from his service and rejecting his appeal/revision by the respondent authorities.
With the aforesaid, the petition stands dismissed. No order as to costs.
Pending interlocutory application(s), if any, stands disposed of.