Shri Rakesh Kumar v. Union Of India & Ors

1. Being aggrieved by the impugned order No. I.11012/A/Discp Offr/2015 dated 05.01.2015 conveying imposition of penalty of compulsory retirement from service upon the petitioner herein as well as by the discharge certificate No. 18/2015 dated 05.01.2015, conveying compulsory retirement from service of the petitioner and finally, by the Order No. I.11011/A-RK/Appeal/2015/1083 dated 26.08.2015 whereby the appeal of the petitioner was rejected by the Director General Assam Rifles (DG AR), the petitioner has preferred this writ petition under Article 226 of the Constitution of India with a prayer to set aside and quash the abovementioned communication and orders.

2. Background details and facts would reveal that the petitioner was selected through the Central Police Organizations for the post of Assistant Commandant (Medical Officer) and was appointed as Assistant Commandant (MO) in Assam Rifles Combatant branch on 27.10.2004.

3. The petitioner had applied for leave in the month of August, 2010 on account of illness of his mother and the same was granted to him w.e.f. 23.08.2010 to 08.09.2010, but even after the expiry of his leave due to serious illness of his mother, he was not able to resume duty and could do so only on 06.10.2010. No show cause or warning was issued to him for the 28 days of overstayed leave.

4. In the year 2012, the petitioner applied for earned leave w.e.f. 14.02.2012 to 03.03.2012 for 19 days with permission to suffix 04.03.2012 on the ground that his mother was seriously ill being a patient of Osteoarthritis and Osteoporosis for many years. According to the petitioner, the condition of his mother deteriorated and she took time to recover, compelling him to fail to join duty at the end of his stipulated leave. The petitioner then informed the Adjutant over phone that he requires extension of his leave for another 20 days followed by an application dated 05.03.2012. However, on 12.03.2012, he was informed by the Commandant 3(NH) Bn Assam Rifles that he failed to report for duty on 05.03.2012. No reply was given as regard his application for extension of leave.

5. It is also the case of the petitioner that due to the prolonged illness of his parents, he has to remain at home and for this, he has informed the Commandant that he will report for duty as soon as the health of his old aged parents improve. In the meantime, the family has changed their place of residence and the petitioner informed the Commandant of the same through a fresh representation dated 03.02.2013.

6. Vide letter No. I.6000062/ARMO/2013/1138 dated 14.03.2013, the respondent No. 3 issued apprehension roll addressed to the SSP, Gautam Budh Nagar, Noida, U.P. to which the petitioner responded vide letter dated 07.05.2013 assuring the authority that he will report for duty by 16.05.2013 and accordingly, he resumed duty on the said date and after his joining, he was posted at 3(NH) Bn. Assam Rifles.

7. On 31.08.2013, the respondent No. 3 issued a convening order of Court of Inquiry enclosed with a tentative charge sheet. The charge was read out before the petitioner. The tentative charge sheet framed under Rules 46 and 54(3) of the Assam Rifles Rules containing two charges that is, charge No. 1, relates to the failure of the petitioner to rejoin duty after the expiry of the leave granted to him w.e.f. 23.08.2010 to 08.09.2010 and has instead joined only on 06.10.2010 after 28 days and charge No. 2 relates to his overstaying of leave granted to him pertaining to the period of leave w.e.f. 14.02.2012 to 03.03.2012, but the petitioner had instead rejoined duty only on 16.05.2013, the total days of unauthorized absence being 439 days.

8. Mr. S. Nath, learned counsel for the petitioner has submitted that on the basis of the tentative chargesheet filed against the petitioner, a Court of Inquiry was ordered to find out the truth of the matter in which the petitioner has also participated and has shown cause as to why he could not join duty in time. The summary of evidence in the said inquiry was concluded on 26.09.2013, however the inquiry report was not forwarded to the petitioner to enable him to file his representation. This is clearly a violation of the rights of the petitioner as far as the principle of natural justice is concerned and any statutory rules which deny furnishing of the report to the employee are against the principles of natural justice. The case of Managing Director, ECIL, Hyderabad & Ors v. B. Karunakar & Ors: (1993) 4 SCC 727, [LQ/SC/1993/843] para 20, 29, 30, 31, 50 & 57 was strongly relied upon by the learned counsel for the petitioner who has further submitted that the impugned order of compulsory retirement from service cannot be sustained on this ground alone.

9. The learned counsel has also submitted that against the said order dated 05.01.2015 whereby the petitioner was compulsorily retired from service, an appeal was filed before the Director General, Assam Rifles, Shillong (respondent No. 2) on 23.02.2015, submitting therein that the disciplinary proceedings conducted by the General Assam Rifles Court (GARC) did not take cognizance of the compelling circumstances and justification offered by the petitioner and has meted out a very harsh sentence of compulsory retirement, which quantum of punishment far exceeds natural justice. It is prayed that the findings of the GARC be quashed. However, vide communication dated 26.08.2015, the respondent authority has informed the petitioner that his appeal was rejected as devoid of merits.

10. The learned counsel for the petitioner has also submitted that the petitioner on the date of his discharge from service had completed 10 years of service, but the same would be counted as less than 10 years if the number of days in which he has overstayed his leave is to be counted and therefore, the penalty could not be termed as compulsory retirement, but removal from service. The penalty is therefore disproportionate to the alleged offence of overstay of leave. The case of Chairman-cum- Managing Director, Coal India Ltd. & Anr v. Mukul Kumar Choudhuri & Ors: (2009) 15 SCC 620, [LQ/SC/2009/1723] para 19, 20 & 21 and the case of Krushnakant B. Parmar v. Union of India & Anr: (2012) 3 SCC 178, [LQ/SC/2012/179] para 20, 21 & 24, have been referred to support this contention.

11. The learned counsel for the petitioner has finally submitted that the impugned order of compulsory retirement from service be set aside and quashed and the report of inquiry be furnished to the petitioner and thereafter, the proper procedure to be followed.

12. Per contra, Dr. N. Mozika, learned DSG appearing on behalf of the respondents/Union of India has submitted that the admitted fact is that the petitioner has overstayed his leave for 439 days as regard his application for earned leave w.e.f. 14.02.2012 to 03.03.2012. This is not the first instance where the petitioner has overstayed his leave, earlier, he has applied for 15 days casual leave which was granted to him w.e.f. 23.08.2010 to 08.09.2010, but he failed to join duty after the expiry of the same and rejoined duty only on 06.10.2010, again after overstaying for 28 days. Though disciplinary proceedings was not initiated for the said infringement at the relevant period, however, the present proceedings would include charges related to the said period of 2010 as well as for the latest lapse for which the authority has proceeded against him departmentally and in accordance with due procedure.

13. On the twin contention of the learned counsel for the petitioner, the learned DSG has submitted that on the issue that the penalty is disproportionate to the misconduct proved, the same cannot be accepted as the petitioner being a member of a disciplined force, he is expected to maintain the highest form of discipline and any deviation from this should invite heavy penalty. In this regard, the following judgments were cited to support this contention:

"i) Union of India & Ors v. Datta Linga Toshatwad: (2005) 13 SCC 709, para 5,6, & 8;

ii) Union of India & Ors v. Ghulam Mohd. Bhat: (2005) 13 SCC 228, [LQ/SC/2005/1069] para 9 and

iii) Pradip Kumar Tomer v. Union of India & Ors: (2003) GLR 171, para 9."

14. As to the second issue, that is, that non-issuance of the Inquiry Report to the petitioner has resulted in violation of the principles of natural justice as far as the petitioner is concerned, the learned DSG would submit that initially on 25.04.2012, a Court of Inquiry was ordered by the respondent No. 3 to investigate the circumstance under which the petitioner failed to rejoin duty on expiry of the sanctioned leave and on the proceedings of the Court of Inquiry being concluded, it was recommended that the petitioner be declared a deserter w.e.f. 05.03.2012. The petitioner did not rejoin his duty, instead on 07.02.2013, he has applied for extension of his leave, to which the HQ, IGAR (E) directed him to rejoin duty forthwith. An apprehension Roll was also issued in this regard and the petitioner having acknowledged the same, has accordingly rejoined duty on 16.05.2013.

15. After convening of the Court of Inquiry to ascertain the facts, the Court, has inter alia, come to the conclusion that the petitioner has absented himself from duty by overstaying leave granted to him in excess of 439 days and accordingly, it was recommended that suitable disciplinary action be taken against him which entails that he be tried by a General Assam Rifles Court (GARC).

16. The Court of Inquiry then framed two charges against the petitioner being the following, with recommendation for the same to be taken up by the General Assam Rifles Court.

17. It is also submitted that the petitioner pleaded guilty to both charges following which the GARC then sentenced him to face the penalty of ‘compulsory retirement from service’. It is also reiterated that during the Court of Inquiry proceedings, the petitioner was given ample opportunity to cross-examine the witnesses, but he declined to do so.

18. The learned DSG has also submitted that the case of Managing Director, ECIL (supra) cited and relied upon by the petitioner would not be applicable to the case of the parties herein as in that case, the departmental proceedings is governed by the Central Civil Services (CCS) rules, where there is a provision for the inquiry report to be supplied to the delinquent, but in the present case, the proceedings conducted is under the provisions of the Assam Rifles Act and Rules and as such, there is no requirement of furnishing of the copy of the inquiry report to the petitioner.

19. Upon hearing the learned counsels for the parties, what could be understood is that the petitioner has assailed the proceedings against him primarily on the ground that the report of the proceedings of the Court of Inquiry has not been furnished to him to enable him to prepare his defence. The case of Managing Director, ECIL (supra) particularly para 20, 29 & 30(i) was relied upon to prove his case. The said paragraphs are reproduced as under: -

“20. The origins of the law can also be traced to the principles of natural justice, as developed in the following cases: In A. K. Kraipak v. Union of India, (1970) 1 SCR 457 [LQ/SC/1969/201] : it was held that the rules of natural justice operate in areas not covered by any law. They do not supplant the law of the land but supplement it. They are not embodied rules and their aim is to secure justice or to prevent miscarriage of justice. If that is their purpose, there is no reason why they should not be made applicable to administrative proceedings also especially when it is not easy to draw the line that demarcates administrative enquiries from quasi-judicial ones. An unjust decision in an administrative inquiry may have a more far-reaching effect than a decision in a quasi-judicial inquiry. It was further observed that the concept of natural justice has undergone a great deal of change in recent years. What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the framework of the law under which the inquiry is held and the constitution of the Tribunal or the body of persons appointed for that purpose. Whenever a complaint is made before a Court that some principle of natural justice has been contravened, the Court has to decide whether the observance of that rule was necessary for a just decision on the facts of that case. The rule that inquiry must be held in good faith and without bias and not arbitrarily or unreasonably is now included among the principles of natural justice.

29. Hence it has to be held that when the enquiry officer is not the disciplinary authority, the delinquent employee has right to receive a copy of the enquiry officer's report before the disciplinary authority arrives at its conclusions with regard to the guilt or innocence of the employee with regard to the charges levelled against him. That right is a part of the employee's right to defend himself against the charges levelled against him. A denial of the enquiry officer's report before the disciplinary authority takes its decision on the charges, is a denial of reasonable opportunity to the employee to prove his innocence and is a breach of the principles of natural justice.

30. Hence the incidental questions raised above may be answered as follows:

(i) Since the denial of the report of the enquiry officer is a denial of reasonable opportunity and a breach of the principles of natural justice, it follows that the statutory rules, if any, which deny the report to the employee are against the principles of natural justice and, therefore, invalid. The delinquent employee will, therefore, be entitled to a copy of the report even if the statutory rules do not permit the furnishing of the report or are silent on the subject…”

20. There can be no quarrel with the proposition of law as indicated above, inasmuch as, in a departmental or disciplinary proceeding, when an inquiry has been instituted, on the conclusion of the same, the delinquent employee has to be given copy of the report so as to enable him to file a representation if any, before the appellate authority before any penalty or punishment is imposed upon him. This speaks of a system where initially there is an inquiry and on completion of all formalities after the report is filed, the appointing or disciplinary authority, on the basis of the inquiry report would pass its final order.

21. The relevant rules governing this procedure would be evident from a reading of Rule 14, 15, 16 & 17 of the Central Civil Services (Class Control & Appeal) Rules, 1965.

22. The petitioner herein however, is a member of the Assam Rifles, a para-military force being governed by its own Act i.e., the Assam Rifles Act of 2006 as well as by the relevant Assam Rifles Rules, 2010. As to the case of the petitioner, Section 84 of the said Assam Rifles Act provides that a court of inquiry shall be assembled when any person (employee) has been absent from duty without due authority for a period of 30 days. The provision as to how the Court of Inquiry is to be conducted is found under Chapter XV through Rules No. 181 to 189. In the context of this case, Rule 187 merits reproduction herein:

“187. Copies of court of inquiry proceedings. - A person subject to the against whom the court of inquiry has given an opinion or who is being tried by a Force Court on a charge relating to matter investigated by the court of inquiry, shall be entitled to copies of the proceedings of the court of inquiry except the findings and opinion thereon, unless the Director-General for reasons recorded by him orders otherwise.”

23. The proceedings against the petitioner did not end with the Court of Inquiry but as per procedure, the matter then proceeded to be taken up by the General Assam Rifles Court, apparently on being recommended by the Court of Inquiry with the two charges framed against the petitioner as indicated at paragraph 16 above. The petitioner by his own admission has appeared before the General Assam Rifles Court and at that point of time there was no prayer or demand made by him for the Inquiry Report to be furnished to him. Having taken part in the complete proceedings, at this point of time, he is therefore estopped from making a claim that the Inquiry Report was not furnished to him. Infact, on being communicated with the order dated 05.01.2015, wherein, the respondent authority has informed the petitioner that he is found guilty of the charges against him and was accordingly sentenced to a penalty of compulsory retirement from service, the petitioner had preferred an appeal against the said sentence vide communication dated 23.02.2015 which was considered and rejected by the authority concerned vide communication dated 26.08.2015.

24. This Court as a writ court applying the principles of judicial review does not find anything wrong or improper with the procedure adopted by the Assam Rifles authorities as far as the proceedings against the petitioner is concerned. The contention of the petitioner that the principle of natural justice in his case has been violated cannot be sustained in the light of the above findings and observations.

25. The other issue canvassed by the petitioner is that the penalty of compulsory retirement imposed is disproportionate to the alleged offence since the petitioner even though he has admitted to have overstayed his leave, has, however explained that it was because of the serious illness of his parents that he could not rejoin duty in due course, but this plea was never considered since the Inquiry Report was never furnished to him. The case of Chairman-cum-Managing Director, Coal India Ltd. (supra), para 19, 20 & 21 was cited in this regard. The same reads as follows:-

“19. The doctrine of proportionality is, thus, well-recognized concept of judicial review in our jurisprudence. What is otherwise within the discretionary domain and sole power of the decision- maker to quantify punishment once the charge of misconduct stands proved, such discretionary power is exposed to judicial intervention if exercised in a manner which is out of proportion to the fault. Award of punishment which is grossly in excess to the allegations cannot claim immunity and remains open for interference under limited scope of judicial review.

20. One of the tests to be applied while dealing with the question of quantum of punishment would be: would any reasonable employer have imposed such punishment in like circumstances Obviously, a reasonable employer is expected to take into consideration measure, magnitude and degree of misconduct and all other relevant circumstances and exclude irrelevant matters before imposing punishment.

21. In a case like the present one where the misconduct of the delinquent was unauthorized absence from duty for six months but upon being charged of such misconduct, he fairly admitted his guilt and explained the reasons for his absence by stating that he did not have any intention nor desired to disobey the order of higher authority or violate any of the Company's Rules and Regulations but the reason was purely personal and beyond his control and, as a matter of fact, he sent his resignation which was not accepted, the order of removal cannot be held to be justified, since in our judgment, no reasonable employer would have imposed extreme punishment of removal in like circumstances. The punishment is not only unduly harsh but grossly in excess to the allegations.”

26. Needless to say, the petitioner is a member of a discipline force and it is incumbent upon him to uphold this standard even to the point of sacrificing self, notwithstanding the fact that he is also entitled to the privileges and benefits which comes with the service conditions. In the case of the petitioner, being a highly intelligent and educated person and a medical officer at that, he is expected to exhibit prudence, discipline and common sense in his attitude to life and work. The fact that he remained absent without any recorded intimation for almost 439 days after sanctioned leave was granted to him for a period of only 19 days with effect from 14.02.2012 to 03.03.2012 speaks volume about his intent. In such a situation, it is the opinion of this Court that no leniency can be allowed to such a person. The case of Pradip Kumar Tomer(supra) cited by the respondent would be relevant as the facts and circumstances therein are almost identical and similar to the case in hand. The same is respectfully endorsed by this Court. At para 9 of the said judgment, the Hon’ble Gauhati High Court has held as under:-

“9. Here is a case of overstay after the expiry of the period of leave. The petitioner remained absent without authority for 40 days. Obviously, the offence committed by him cannot be taken lightly since he belongs to a disciplined force. Atleast he should have before expiry of the leave sent appropriate fillers requesting for extension of leave. He called somebody at Agartala on 30.12.1999 on phone, i.e., after expiry of leave and, thereafter, sent a telegram on 2.2.2000. The copy of the telegram is also not available. The respondent-authority denied having received any such communication. On earlier occasions also, he had committed two offences for which he was awarded 28 days rigorous imprisonment and confined to lines. Situated thus, this court is unable to agree with Mr. Sarma, learned senior counsel for the petitioner that the punishment of discharge awarded to the petitioner is harsh and disproportionate to the offence committed. Unauthorised absence from duty for 40 days without any intimation, for whatsoever reason it may be, if condoned and set a precedent to the other members of the force to follow suit and this would inevitably disturb the discipline sought to be maintained by the Organisation. This Court is, therefore, not inclined to interfere with the penalty of discharge.”

27. Without going to the other aspects of the matter or the other authorities cited by the parties, suffice it to say that this Court on a conspectus of the facts and circumstances of this case hereby finds that the petitioner has not been able to make out a case for interference by this Court. This petition is accordingly rejected.

28. Petition disposed of. There shall be no order as to costs.