ZAKIR HUSSAIN CONSTABLE NO 901310895 E COY 66TH BATTALION CENTRAL RESERVE Vs. COMMANDANT 66TH BATTALION CENTRAL RESERVE POLICE FORCE

JUDGEMENT

(1.) By means of the preset writ petition the petitioner has approached this Court for issuing a writ of certiorari quashing the impugned order of dismissal dated 19.12.92, Annexure-5 to the writ petition.

(2.) The facts arising out of the writ petition is that the petitioner was appointed as constable and was working as constable (E) 66 Battalion, Central Reserve Police Force and was posted at Ludhiyana. On 28.4.1992 the petitioner who was in football match team was went to Durgapur Group Centre for football match. The petitioner reached Durgapur on 30.4.92. Before departing the petitioner has informed his father that he would be going to Durgapur to play football. After reaching Durgapur the petitioner's nephew who resides in Calcutta, came to Durgapur Group Centre on 3.5.92 and searched out the petitioner and told the petitioner that his father was seriously ill. On getting the aforesaid information the petitioner was totally confused and on account of the information of the illness of his father, the petitioner left with his nephew and he went to his father's place. The petitioner found that the condition of the father was very serious. The petitioner stayed at Calcutta for the medical treatment as there was nobody to look after the father of the petitioner. On account of the aforesaid reason the petitioner remained, with his father till 20.7.92 and the petitioner returned and joined at 66 Battalion on 24.7.92. The petitioner was suspended under Rule 27 of the Central Reserved Police Force Rules 1955 by the order dated 24.7.92. A charge sheet was also issued to the petitioner in which there were two articles of charges relating to desertion of the petitioner from football team on 4.5.92. A copy of the said charge sheet has been annexed by the petitioner as Annexure-1 to the writ petition. An inquiry was held against the petitioner and before the Inquiry Officer, one Jamadar Marandi gave an application to the Inquiry Officer in which he has stated that a person came at Durgapur Group Centre and told the petitioner that his father was seriously ill. He also stated that when the petitioner did not return by 4.5.92, the report about desertion was given. The petitioner also made an application on 3.11.92 in which he has pointed out the compelling circumstances in which he has to leave. Durgapur Group Centre. An Inquiry Officer was appointed and has submitted a report dated 24.11.1992. The Inquiry Officer found that the father of the petitioner was seriously ill. The Inquiry Officer has placed reliance upon a certificate of a doctor and that of counselor of Calcutta Municipal Corporation in proof of the fact of the illness and information thereof to the petitioner. The Inquiry Officer has held that the petitioner left the Group Centre in the compelling circumstances. The Inquiry Officer held that the charges are not proved. A copy of the inquiry report has been annexed as Annexure-4 to the writ petition. The petitioner submits that by an order dated 19.12.92, the commandant, 66 Battalion, Central Reserved Police Force, Ludhiyana has dismissed the services of the petitioner with effect from 19.12.92 due to the absence from 4.5.92 to 24.7.92 which had been treated as dies-non. The respondent Commandant has held that the petitioner has deserted on 4.5.92 and an information to this effect was given to the petitioner at his home address by letter dated 15.5.92 to report at Battalion Headquarter. The petitioner did not join the duties inspite of the directions and no proper medical certificate, bills and documents were submitted by the petitioner and the petitioner remained deserter for a period of 82 days. The petitioner submits that the petitioner has filed the medical certificate and has explained the circumstances for remaining absent. The respondent has not considered the finding recorded by the Inquiry Officer and has not recorded any reason for disagreeing with the finding of the Inquiry Officer, hough the Inquiry Officer has held that the petitioner left under compelling circumstances on getting the news of his father's illness.

(3.) It has been argued on behalf of the petitioner that the order of disciplinary authority is an order which is non-speaking and has been passed on non-application of mind. The punishment of dismissal is disproportionate to the gravity of the case against the petitioner and the punishment of dismissal is excessive. The disciplinary authority has also erred in treating the period 4.5.92 to 24.7.92 as dies-non. The petitioner further submits that the petitioner has not been given full opportunity to defence his case and to cross-examine the witnesses. It has also been submitted that it was incumbent on the part of the respondent to issue a show cause notice if the disciplinary authority was not agreeing with the report of the Inquiry Officer. As no note or reasons had been recorded by the disciplinary authority, the circumstances disagreeing with the inquiry report, the punishment which have been awarded is against the settled principles of law. The petitioner has placed reliance upon a judgment of the Apex Court reported in 1998 (7) SCC 84, Punjab National Bank and Ors v. Kuni Behari Misra and has placed reliance upon paras 11 and 12 of the said judgment which are reproduced below: "11. The controversy in the present case, however, relates to the case where the disciplinary authority disagrees with the findings of the enquiring authority and acts under Regulation 7(2). The said sub-regulation does not specifically state that when the disciplinary authority disagrees with the findings of the enquiring authority and is required to record its own reason for such disagreement and also to record its own finding on such charge, it is required to give a hearing to the delinquent officer.