The court ruled that while the petitioner was guilty of misconduct, the punishment of removal from service was found to be disproportionate, warranting reinstatement with a lesser penalty.

ORDER :

HEMANT CHANDANGOUDAR, J.

The challenge in this writ petition is to the order dated 05.04.2017 passed by the 3rd respondent, confirming the order dated 21.09.2016 passed by the 4th respondent and the order dated 03.03.2016 passed by the 5th respondent. By the said orders, the petitioner, while serving in the CISF Unit, Cochin, was removed from service.

2. The petitioner was issued a charge memo alleging that he had overstayed for a period of 137 days and that, despite issuance of three call up notices by the Unit Commandant directing him to rejoin duty immediately, he failed to comply with the instructions. It was alleged that such conduct amounted to gross negligence and disobedience of lawful orders issued by the competent authority.

3. The petitioner submitted an explanation to the show-cause notice denying the allegations and setting out the genuine reasons for his overstay. As the 5th respondent was not satisfied with the explanation offered by the petitioner, an Enquiry Officer was appointed. The Enquiry Officer, after recording the statements of the Presenting Officer and the petitioner and after considering the documents produced by the parties, submitted a report holding that the charges against the petitioner stood proved.

4. Thereafter, the 5th respondent issued a second show-cause notice calling upon the petitioner to explain why the Enquiry Officer’s report should not be accepted and why appropriate punishment should not be imposed. The petitioner claims to have submitted a further explanation. After considering the further explanation submitted by the petitioner and perusing the Enquiry Officer’s report, the 5th respondent passed the impugned order removing the petitioner from service. Aggrieved by the same, the present writ petition has been filed.

5.Learned counsel for the petitioner submitted that the petitioner had initially applied for 19 days of Earned Leave and that, before the expiry of the said leave period, owing to the demise of his grandfather and subsequently due to his own ill health, he overstayed for a period of 137 days. It was contended that the said absence was neither intentional nor deliberate and that, since the petitioner had offered a satisfactory explanation for his absence, the impugned order passed by the respondents is not legally sustainable.

6. Learned counsel for the petitioner further submitted that a similar charge memo had earlier been issued to the petitioner and that he had submitted his explanation thereto. Therefore, the issuance of a second charge memo and the initiation of an enquiry on the basis thereof are not legally sustainable. It was further submitted that even assuming that the petitioner had overstayed for a period of 137 days, the punishment of removal from service is grossly disproportionate to the gravity of the alleged misconduct and, on this ground also, the impugned order is liable to be set aside.

7. Learned counsel for the petitioner further submitted that, in identical circumstances, a delinquent official who had remained unauthorisedly absent for 175 days was punished only with reduction of pay for a period of three years with immediate effect. Therefore, the punishment of removal from service imposed on the petitioner is arbitrary and discriminatory and liable to be interfered with.

8. In response, learned counsel for the respondents submitted that after the commencement of the departmental enquiry, the petitioner rejoined duty and, therefore, a fresh charge memo dated 01.01.2016 was issued by cancelling the earlier charge memo dated 15.10.2015, which is in conformity with the CISF Rules. It was further submitted that the petitioner failed to produce any satisfac