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IN THE HIGH COURT OF JAMMU AND KASHMIR AND LADAKH AT JAMMU
Wasim Sadiq Nargal, J.
Mohd. Ashraf Shah – Petitioner
Versus
Union of India & Ors. – Respondent
SWP No. 16 of 2005
Decided On : 13-04-2023
The petitioner, a CRPF constable, was absent from duty for 39 days and 1 day due to mental illness. He was subjected to a departmental enquiry and was dismissed from service. The petitioner challenged the dismissal order and the appellate authority's order upholding the dismissal. The court held that the punishment was disproportionate to the offence and quashed the dismissal order and the appellate authority's order. The court directed the respondents to reinstate the petitioner with all consequential benefits minus monetary benefits.
Fact of the Case:
The petitioner, a CRPF constable, was absent from duty for 39 days and 1 day due to mental illness. He was subjected to a departmental enquiry and was dismissed from service. The petitioner challenged the dismissal order and the appellate authority's order upholding the dismissal.
Finding of the Court:
The court held that the punishment was disproportionate to the offence and quashed the dismissal order and the appellate authority's order. The court directed the respondents to reinstate the petitioner with all consequential benefits minus monetary benefits.
Issues: Whether the punishment of dismissal was disproportionate to the offence of unauthorized absence from duty.
Ratio Decidendi: The court held that the punishment of dismissal was disproportionate to the offence of unauthorized absence from duty. The court relied on several precedents to support its holding, including the Supreme Court's decision in Capt. Virendra Kumar v. The Chief of the Army Staff. New Delhi & Ors., which held that "provisions of Sections 38 and 39 of Army Act are akin to that of Sections 9 and 10 of the present Act. In this decision the Supreme Court has clarified the word 'desertion' and has explained that it would mean that an employee who had not come to join his service. According to the learned Counsel for the petitioner, since the petitioner himself appeared in the Unit on 28.12.2001, therefore, he cannot be said to be a deserter."
Final Decision: The court quashed the dismissal order and the appellate authority's order and directed the respondents to reinstate the petitioner with all consequential benefits minus monetary benefits.
JUDGMENT :
BRIEF FACTS
1. The petitioner through the medium of the present writ petition has sought the following reliefs:
b. Certiorari quashing Order No. P-VIII-9/01-ec/II, dated 14.12.2002 passed by respondent No. 4, whereby services of the petitioner have been terminated arbitrarily, capriciously and without adhering to the service rules applicable to the petitioner.
c. Certiorari quashing the order of inquiry passed by respondent No. 4 vide his order bearing No. P-VIII-9/01-EC-II, dated 23.09.2002, whereunder, inquiry was initiated against the petitioner for the charges on which the petitioner had already been punished and also for quashing all the proceedings taken in pursuance to order mentioned supra.
d. Mandamus commanding the respondents to reinstate the petitioner with all consequential service and monetary benefits from the date of his illegal removal from service.
ARGUMENTS ON BEHALF OF PETITIONER
2. The brief facts giving rise to the filing of instant petition are that the petitioner was enrolled as a Constable in the Central Reserve Police Force.
When the petitioner was posted in Assam, he was diagnosed as a case of 'Encephalitis Sequelae' by the Medical Officer, 22nd Bn CRPF and remained under treatment in the hospital w.e.f. 07.11.2001 to 20.11.2001. The petitioner was again admitted in the hospital on 24.11.2001 and discharged on 05.12.2001. It is further submitted that during the period of his absence with effect from 01.11.2001 to 10.12.2001 i.e. 39 days and with effect from 27.12.2001 to 28.12.2001 i.e. one day, the petitioner has remained under constant treatment and re-joined his duties after he recovered from medical ailment. The alleged absence from duty on the part of the petitioner was only because of the circumstances, which were beyond his control.
3. It has been further projected that he suffered from Encephalitis Sequelae (seizure) disorder. The petitioner had lost his control over his body completely for a long time. It was known to respondent No. 4 that the petitioner was suffering from mental ailment and was being treated for the same which is evident from the medical record annexed with the writ petition.
4. The further case of the petitioner is that petitioner was enrolled as Constable in CRPF and was diagnosed as a case of Encephalitic Sequelae (seizure disorder) by Medical Officer 22nd Bn CRPF and remained admitted w.e.f. 16.07.2000 to 17.08.2000 and w.e.f. 07.09.2000 to 29.09.2000.
5. It is further urged by the petitioner that vide MRD 311, he remained under treatment for the aforesaid disease in the hospital w.e.f. 07.11.2001 to 20.11.2001. The said fact is evident from discharge slip issued by the Health Department Kashmir Division along with the investigations and treatment sheet and he further remained admitted on 24.11.2001 and discharged on 05.12.2001, which fact is substantiated from the perusal of discharge slip issued by the J&K Government Health Department, Kashmir Division MRD No. 416.
6. Further stand of the petitioner is that during the period of absence without leave w.e.f. 01.11.2001 to 10.12.2001 for 39 days and w.e.f. 27.12.2001 to 28.12.2001 for 01 day, he was under constant treatment and re-joined his duties after he recovered from medical ailment. The alleged absence from duty is the solitary lapse on the part of the petitioner and because of the circumstances which were beyond his control.
7. It is further pleaded by the petitioner that Commandant 22nd Bn CRPF ordered departmental enquiry for the alleged absence from duty of the petitioner under Rule 27 of CRPF Rules, 1955, read with Section 11(c) of CRPF Act, 1949 and accordingly, appointed Sh. B.K. Toppo, Deput
The punishment of dismissal was disproportionate to the offence of unauthorized absence from duty.
Proportionality of punishment and adherence to prescribed procedures in disciplinary proceedings.
The punishment imposed must be proportionate to the gravity of the misconduct, and the principles of natural justice and statutory regulations prescribing the mode of enquiry must be followed.
Disciplinary actions must follow due process, and absence due to illness cannot be deemed willful misconduct without proper inquiry.
The court's decision highlighted the discretionary nature of issuing a writ under Article 226 of the Constitution of India and emphasized the limited scope for interference in disciplinary matters, u....
The punishment imposed should meet the standards of fairness and be in strict compliance with principles of natural justice.
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