OMBIR SINGH Vs. UNION OF INDIA

JUDGEMENT

(1.) A disciplinary proceeding was initiated against the appellant by a charge sheet dated 24th July, 2004. The first charge was that he had misbehaved with Insp/Exe P.K. Das, Coy Commander at about 10.45 hrs on 16th July, 2004 at Coy commander's office and uttered filthy language against him in presence of HC/GD C.G. Saha Roy and HC/GD M.N. Mondal which amounts to gross misconduct, indiscipline and unbecoming of a member of an Armed Force of the Union. The second charge was that he physically assaulted Insp/Exe P.K. Das, who was working in the Coy commander's office at about 13.20 hrs on 16th July, 2004 and as a result P.K. Das sustained injury on his nose which amounts to gross misconduct, indiscipline and unbecoming of a member of an Armed Force of the Union. An enquiry was conducted in which the appellant duly participated and upon considering the evidence of fourteen prosecution witnesses and five documents as exhibited, the enquiry officer arrived at a conclusion that the article of charge-I levelled against the appellant has been proved orally and documentarily by the witness beyond any doubt and that the article of charge-II against the appellant of assault on P.K. Das could not be proved as the statements of prosecution witnesses do not corroborate with each other. After considering the report as filed by the enquiry officer, the disciplinary authority imposed a punishment of removal from service. Aggrieved by the said order dated 29th November, 2004, the appellant preferred a statutory appeal but the appellate authority by an order dated 22nd February, 2005 dismissed the same. The appellant challenged the entire disciplinary proceeding including the order passed by the appellate authority before this Court by a writ petition being WP 5428 (W) of 2005 and the same was dismissed by an order dated 28th March, 2005 observing that

(2.) Challenging the said order, the appellant preferred the present appeal which was dismissed for default on 20th May, 2009 and such fact came to the notice of the appellant only in the month of July, 2013 and thereafter the appellant filed a restoration application along with an application for condonation of a delay of 1491 days. In explanation of such delay, the appellant stated that the learned advocate-on-record was not able to follow the list properly and as such could not appear at the time of call. Due to the sudden expiry of the appellant's relative, he was compelled to leave station on 10th May, 2009 and since then he was staying at his native place at Uttar Pradesh along with his family members for earning his livelihood somehow and as such he was not able to keep regular contact with his learned advocate-on-record. Suddenly, in the month of July, 2013 the appellant received a phone call from the advocate-on-record informing that the writ petition has been dismissed for default and immediately thereafter he came over to Kolkata and filed the restoration application and that the delay which has occasioned is neither malafide nor arbitrary.

(3.) In view of the fact that the matter involves the imposition of the severest punishment of removal from service, we asked the learned advocates appearing for the respective parties to advance their arguments on the merits of the matter. The prime contention of Ms. Gupta, learned advocate appearing for the appellant is that only upon establishment of the first charge of use of filthy language against a person senior in rank, the employer had imposed the punishment of removal from service. The second charge alleged against the appellant could not be proved and as a consequence thereof the nexus among the first and the second charge could not be established which reduces the intensity and impact of the first charge and renders the punishment to be harsh and disproportionate. In support of such contention reliance has been placed upon the judgments delivered in the case of B.C. Chaturvedi -vs- Union of India and Others, reported in (1995) 6 SCC 749, in the case of Ranjit Thakur -vs- Union of India and others, reported in AIR 1987 SC 2386 and in the case of Union of India and others -vs- Giriraj Sharma, reported in AIR 1994 SC 215.