IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 19.09.2022
CORAM
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
W.P.No.33967 of 2016
K.Ramachandran Petitioner
Vs.
1.The Union of India,
Rep.by its Secretary to Government,
Ministry of Home Affairs,
New Delhi.
2.The Director General,
Central Reserve Police Force,
C.G.O Complex,
Lodhi Road, New Delhi – 110 003.
3.The Inspector General,
Office of the Deputy Inspector General of Police(Adm)
Southern Sector,
Central Reserve Police Force,
Road No.10-C, Near New M.L.A. Mps Colony,
Gayathri Hills, Jubilee Hills,
Hyderabad – 500 033, Telunga State.
4.The Deputy Inspector General of Police,
Central Reserve Police Force,
Chennai Range, Avadi,
Chennai – 600 065.
5.The Commandant,
No.42, Battalion, Central Reserve Police Force,
District Police Training Centre,
Lalacheruvu, Rajahmundry – 533 106,
Andhra Pradesh. ..Respondents
Prayer : Writ Petition filed Under Article 226 of the Constitution of India, to issue a Writ of Certiorarified Mandamus, to call for the records relating to the order passed by the 3rd respondent in his Order No.R.XIII-60/2016-Adm-7, dated 10.08.2016, confirming the order of the 4th respondent dated 16.01.2016 in his Office Order No.R.XIII-08/2015-EC-3, confirming the order of the 5th respondent in his Office Order No.P.VIII-5/2015-42-EC-II(KRC) dated 17.08.2015 and quash the same and to direct the respondents to take the petitioner as Constable in the strength of Central Reserve Police Force.
For Petitioner : Mr.K.Ramachandran
(Party-in-Person)
For Respondents : Dr.D.Simon
Central Government Standing Counsel
ORDER
The punishment of removal from service issued by the Disciplinary Authority, which was confirmed by the Appellate Authority are under challenge in the present writ petition.
- The petitioner states that he joined as Constable in the Central Reserve Police Force (in short ‘CRPF’) on 15.04.1991 and had served all over India, more specifically at Ludhiana, Pattankot, Srinagar, Baramulla (Assam). When the petitioner was working at Jammu & Kashmir Area, he was transferred to GC/Avadi, Chennai. The petitioner states that he suffered Psychological and Neuro problems, for which, he had taken treatment at the Government General Hospital, Chennai. He was treated for Psychological problem of diagnosed as Anxiety OCD Disorder (obsessive – compulsive – Disorder) and was undergoing treatment from March 2004 onwards. He was issued with the provisional Fitness Certificate on 10.01.2005, stating that he had been attending to “Physhiatric out patient treatment” at Mental Health Centre – Chennai-10 regularly and declared provisionally fit and rejoined duty. After his full-improvement, he was issued with the full fitness certificate. The petitioner produced the fitness certificate before the GC/CRPF/Avadi, Chennai on 02.11.2007. The petitioner was about to get the posting orders for discharging his duties and he was informed by his colleagues that he had been transferred to 42-Battalion vide office order dated 15.09.2009. The petitioner filed Writ Petition in W.P.No.20612 of 2009 before the High Court and this Court referred the matter to CRPF, Avadi, Chennai – 65. He was advised to get a behaviour Report from CRPF, Avadi, Chennai. The respondents had advised the petitioner to come back to CRPF in February 2011 and then only, they will issue the “Final Fitness” Certificate to him. The behaviour report was given by the CRPF, Avadi on 24.09.2010 and thereafter, the provisional fitness certificate was issued on 20.11.2010 by the Senior Surgeon and Director of Mental Health Certificate is also granted after the “Behaviour Report” in February 2011. He was issued with the transfer order dated 05.01.2011 and he filed writ petition in W.P.No.7201 of 2011. The said writ petition was pending for about 1 year and 11 months and on 17.12.2012, this Court passed an order and the petitioner rejoined duty at 42nd Battalion. However, the petitioner had not joined immediately on the ground that the final fitness certificate was not issued to him and overstayed for about 720 days.
- A charge memorandum was issued, framing two Articles of Charges. The first charge is that the petitioner was relieved on transfer from GC, CRPF, Avadi on 10.01.2011 (AN) and reported at his own on 31.12.2012 (FN) after 720 days without any permission from the competent authority. The second charge is the consequential one. The petitioner defended his case by submitting his explanations. The petitioner mainly contended that he was under Medical treatment and further, not issued with the full fitness certificate. On account of the said reasons, the petitioner was not in a position to join duty immediately and the overstay was not wilful and due to certain genuine circumstances. Not satisfied with the explanation, the Disciplinary Authority appointed an enquiry officer, who in turn, conducted an enquiry by affording opportunity to the writ petitioner. The writ petitioner availed off the opportunity and defended his case. However, the enquiry officer submitted his final report, holding that the charges are held proved. Accepting the findings of the enquiry officer, the Disciplinary Authority issued show cause notice to the petitioner, providing an opportunity to submit his further objections on the findings of the Enquiry officer and finally, the order, imposing the punishment of removal from service was issued in proceedings dated 17th August, 2015. The original order of punishment of removal from service was issued by the Commandant / 5th respondent. The petitioner preferred an appeal before the Deputy Inspector General of Police / 4th respondent, who in turn, rejected the appeal and confirmed the punishment of removal from service. Thereafter, the petitioner preferred Revision Petition before the Inspector General of Police / Southern Sector, CRPF / 3rd respondent, who in turn, rejected the Revision Petition, confirming the orders passed by the Disciplinary Authority and the Appellate Authority. Thus, the petitioner is constrained to move the present writ petition.
- The petitioner appearing in person, articulated his case by stating that he had no intention to remain absent. He was continuously taking treatment during the relevant point of time and on account of an order of transfer, which was issued in order to harass the petitioner, he filed a writ petition and due to all these reasons, he could not able to report for duty immediately. That apart, full fitness certificate was not issued to him. However, the period of overstayal was regulated by the competent authorities as Extraordinary Leave without salary. The petitioner-in-person, further contended that he had already served for about more than 20 years in the CRPF and he had not earned any punishment or adverse remarks from his superior officers. He served in various places across India and therefore, his case is to be considered. The petitioner states that he submitted an application for Voluntary Retirement Scheme on 10.02.2013 and the said application was not considered and the punishment of removal from service was issued, without considering the genuine reasons stated by him along with the documents to support the grounds. The Appellate Authority and the Revisional Authority also failed to consider the genuinity regarding the reason stated by the petitioner and the medical documents produced along with the defence statements.
- The learned Central Government Standing Counsel appearing on behalf of the respondents made a submission that the petitioner overstayed for 720 days without any permission from the competent authority. The procedures as contemplated under the Discipline and Appeal Rules were scrupulously followed by the authorities by affording opportunity to the writ petitioner. The petitioner defended his case and the enquiry officer held that the charges are fully proved. Accepting the Enquiry officers’ report, the Disciplinary Authority imposed the punishment of removal from service to the writ petitioner. The Appeal and the Revision Petitions filed by the petitioner were also rejected by the respective authorities.
- The learned Central Government Standing Counsel appearing on behalf of the respondents state that the Medical Board of Institute of Mental Health, Chennai has issued a provisional fitness certificate dated 09.06.2010 and the petitioner was relieved from GC CRPF Avadi on transfer to 42nd Battalion with effect from 10.01.2011 after completion of his tenure. The petitioner was required to report to the Commandant – 42 Battalion, but he failed to do so and remained absent from duty willfully with effect from 11.01.2011 to 30.12.2012 without prior sanction from the competent authority, which is prejudicial to good order and discipline of the force and a punishable offence.
- The learned Central Government Standing Counsel states that the petitioner might have obtained 49 days Medical Rest for Hepatitis/Entric fever from 11.01.2011 to 28.02.2011 and 45 days Medical rest from 01.03.2011 to 14.04.2011 as these certificates seems to be issued by the Senior Civil Surgeon, Madras Medical College, Government General Hospital, Chennai. But the petitioner failed to submit the other medical treatment documents in connection with Hepatitis/Entric fever as his mental health is not coming to his rescue, he managed to get above certificates to justify his absence.
- With reference to the contention of the petitioner that the overstayal of 720 days was condoned and the said period was regulated as Extraordinary Leave without salary, the respondents state that regularization of unauthorized absence from duty or over stay of leave is an separate issue at the discretion of the disciplinary authority on finalization of disciplinary proceedings initiated on the charge of absent. Thus, the plea of petitioner to quash the punishment of removal from service on the ground that over stayed period was already regularized does not find any merit.
- It is established before the enquiry that the petitioner overstayed for 720 days without any prior permission. The petitioner defended his case on medical grounds and with reference to the transfer orders and the fitness certificates etc., Beyond all the grounds raised by the petitioner, an important factor to be considered by this Court is that the period of unauthorized absence of about 720 days was regularized by the competent authority by treating the period as Extraordinary Leave without salary in accordance with the rules in force. It is not disputed between the parties that the period of unauthorized absence was regularized as Extraordinary Leave. Once the period of unauthorized absence was regularized, thereafter, imposing the penalty of removal from service would not arise at all as the period of unauthorized absence was condoned by way of regularization.
- This Court is of the considered opinion that once the period of unauthorized absence was regularized in accordance with the rules and in the present case as Extraordinary Leave without any salary, thereafter, the disciplinary proceedings shall not be continued for the misconduct of unauthorized absence. The said misconduct was condoned or ratified by the competent authority by regulating the period of unauthorized absence as Extraordinary Leave without salary. While so, the period of absence cannot be construed as misconduct and therefore, the authorities are not empowered to continue the departmental disciplinary proceedings, after regularizing the alleged misconduct. The period of unauthorized absence may be regularized in accordance with the rules. Once such a regularization has been done by the competent authority, the allegations of misconduct disappeared and after the disappearance of the allegations of misconduct of unauthorized absence, the disciplinary proceedings cannot be continued. It is not in dispute that before finalization of the departmental disciplinary proceedings, the period of unauthorized absence was regulated by the competent authority. While so, the punishment of removal is untenable.
- The learned Central Government Standing Counsel appearing on behalf of the respondents referred Rule 21 of the CCS (Pension Rules) 1972, which deals with Counting of periods spent on leave. The Government of India’s Decisions in this regard stipulates that proper entries for treatment of extraordinary leave for pensionary benefits is to be made by the authorities. Accordingly, under Rule 21 of the CCS (Pension Rules), Extraordinary Leave granted on Medical certificate qualifies for pension. The Appointing Authority, may, at the time of granting extraordinary leave, also allow the period of such leave to count as qualifying for pension if the leave is granted to a Government servant –
(i) due to his inability to join or rejoin duty on account of civil commotion, or
(ii) for prosecuting higher technical and scientific studies.
- Extraordinary leave taken on other grounds is treated as non-qualifying and, therefore, a definite entry is to be made in the Service Records to that effect. Entries regarding service being qualifying or otherwise are required to be made simultaneously with the event.
- The above Rules unambiguously stipulates that once the period of leave has been regulated as Extraordinary Leave, necessary entries are to be made in the Service Registers. Extraordinary Leave may be granted on certain circumstances including on the ground of inability to join or rejoin duty or on various other reasons. In the present case, the authorities competent considered the claim of the writ petitioner and regulated the period of overstayal as Extraordinary Leave without salary and accordingly, the misconduct was ratified by invoking the rules applicable for regularizing the period of leave and thereafter, the authorities/respondents are not empowered to continue the departmental disciplinary proceedings and imposed the punishment of removal from service.
- In the present case, the petitioner has served about more than 20 years in the CRPF with clean records of service. It is not in dispute that the petitioner has no adverse remarks during his entire services except the allegations of overstayal, against which, the impugned punishment was issued. When the petitioner has served with devotion for more than 20 years without any room for allegations or misconducts, the Court has to consider the said long services for the purpose of considering the proportionality of the punishment.
- No doubt, if any Uniformed personnel is a habitual offender, no leniency can be shown, but the petitioner in the present writ petition has served for more than two decades with clean records of service and on account of medical reasons, he could not able to join duty and overstayed for about 720 days. The overstayal period of 720 days was regularized by the competent authorities as Extraordinary Leave without salary and therefore, the unauthorized absence of the petitioner was ratified by the authorities in accordance with the rules in force.
- For all these reasons, this Court is of an opinion that the punishment of removal from service imposed on the writ petitioner is excessive and further, the period of unauthorized absence was regulated by the competent authorities in accordance with the rules.
- Accordingly, the orders impugned passed by the 3rd respondent in his Order No.R.XIII-60/2016-Adm-7, dated 10.08.2016, confirming the order of the 4th respondent dated 16.01.2016 in his Office Order No.R.XIII-08/2015-EC-3, confirming the order of the 5th respondent in his Office Order No.P.VIII-5/2015-42-EC-II(KRC) dated 17.08.2015 are quashed. The respondents are directed to reinstate the writ petitioner within a period of four weeks from the date of receipt of a copy of this order without any backwages, but with continuity of service.
- With these directions, the writ petition stands allowed. No costs.
19.09.2022
Index : Yes
Speaking order:Yes
kak
To
1.The Secretary to Government,
Union of India,
Ministry of Home Affairs,
New Delhi.
2.The Director General,
Central Reserve Police Force,
C.G.O Complex,
Lodhi Road, New Delhi – 110 003.
3.The Inspector General,
Office of the Deputy Inspector General of Police(Adm)
Southern Sector,
Central Reserve Police Force,
Road No.10-C, Near New M.L.A. Mps Colony,
Gayathri Hills, Jubilee Hills,
Hyderabad – 500 033, Telunga State.
4.The Deputy Inspector General of Police,
Central Reserve Police Force,
Chennai Range, Avadi,
Chennai – 600 065.
5.The Commandant,
No.42, Battalion, Central Reserve Police Force,
District Police Training Centre,
Lalacheruvu, Rajahmundry – 533 106,
Andhra Pradesh.
S.M.SUBRAMANIAM, J.
kak
W.P.No.33967 of 2016
19.09.2022