RABIN CHANDRA BHUYAN Vs. UNION OF INDIA

JUDGEMENT

(1.) At the relevant point of time, the writ petitioner was employed as a Constable Driver and was posted at Group Centre, S.S.B. Tezu, Arunachal Pradesh. The petitioner was on Earned Leave for a period of 60 (sixty) days with effect from 20.11.95 to 18.1.96 and as he had not resumed his duties thereafter, a charge sheet dated 6th April, 1996 was issued to the petitioner proposing an enquiry in respect of two charges levelled by the charge sheet dated 6.4.96. The essence of the two charges brought against the petitioner is that on the expiry of Earned Leave on 18.1.96, the petitioner overstayed without any leave or permission from the competent authority and till the date of charge sheet i.e. 6.4.96, he had not resumed duties. The second charge against the petitioner is that though the petitioner had not resumed duties on the expiry of his leave, he had retained the government kits allotted to him as well as the Identity Card which also amounted to misconduct. Along with the charge memo, a list of documents on the basis of which the charges were sought to be proved as well as a list of the witnesses proposed to be examined were enclosed. The petitioner does not deny receipt of the aforesaid charge sheet and admits that in response thereto, he submitted a reply to the effect that he could not resume duties on the expiry of his leave due to pressing domestic problems and as his domestic problems were resisting, the petitioner offered to resign from service. The petitioner in the aforesaid letter also agreed to deposit the Government kits allotted to him as well as the identify Card in due course. The reply of the petitioner, as aforesaid, was however, unsigned and undated. The matter could have perhaps ended there but it did not as the disciplinary authority appointed an Enquiry Officer to enquire into the charges levelled against the writ petitioner. The Enquiry Officer after taking cognizance of the subject matter of enquiry assigned to him, issued several notices informing the petitioner of the date(s) of the proposed enquiry and requiring his presence in the enquiry. The petitioner contends that none of the aforesaid notices were served on him and he had no knowledge of the date(s) of he enquiry. The enquiry proceedings, were thereafter, held ex parte and at the conclusion thereof, the Enquiry Officer by his reports dated 21.6.96 and 23.9.96 held both the charges against the writ petitioner to have been established. A copy of the report of enquiry along with the show cause notice proposing the penalty of removal from service was issued to the petitioner on 21.11.96 and though the petitioner received the said documents, he did not respond whereafter, by the final order dated 10th December, 1996, the penalty of removal from service was imposed on the petitioner. After several abortive attempts to have the order of removal from service recalled and rectified, the instant approach to this Court has been made challenging the aforesaid final order dated 10.12.96 imposing the penalty of removal from service.In the meantime, in a Court of Enquiry instituted under Rule 31 of the Central Reserve Police Force Rules, by order dated 26.3.96, the petitioner has been declared as deserter with effect from 19th January, 1996.

(2.) Mr. A.B. Choudhury, learned counsel appearing on behalf of the writ petitioner, in support of the challenge made in the present writ application, has submitted that the very initiation of the proceeding against the writ petitioner must be held by this court to be ab initio void inasmuch as the petitioner was not given an opportunity to file a written statement denying the charges levelled against him and without affording the said opportunity to the writ petitioner, the disciplinary authority has straightway proceeded to hold an enquiry. Learned counsel has sought to persuade the court to find fault with the conduct of the disciplinary proceeding held ex parte, by contending that as the petitioner had no notice of the said proceeding, he was not in a position to place before the enquiry authority, the grounds and reasons for which he was unable to resume duties after the expirty of his earned Leave. The holding of the enquiry proceeding experte without notice being served on the petitioner is contended to be a gross violation of the provisions of the C.R.P.F. Rules and the principles of natural justice. Learned counsel has also pressed into service a further submission that having regard to the facts and circumstances on account of which the petitioner was unable to resume his duties, the punishment of removal form service is harsh and disproportionate and, therefore, would be amenable to correction at the hands of the writ Court.

(3.) Controverting the submissions advanced on behalf of the writ petitioner, Mr. C. Choudhury, learned Central Govt. Standing Counsel has submitted that the materials on record would go to demonstrate that the repeated notices of the enquiry were issued to the petitioner by registered post. Yet, the petitioner did not participate in the enquiry. As notices were sent by registered post, the petitioner must be deemed to have received such notices, it is argued. It is the further submission of the learned C.G.S.C. that in any event, the report of enquiry and the findings recorded therein are based on the materials adduced in the course of the enquiry. The petitioner was given a further opportunity, at a subsequent stage, to contest the findings of enquiry as well as the proposed punishment, which opportunity, in spite of due service of notice, was not availed of by the writ petitioner. Learned C.G.S.C. has further contend that the final order in the case having been passed by the disciplinary authority on 10.12.96, the present writ petition filed in July, 1999 is a belated approach to this Court. On the aforesaid broad basis, learned C.G.S.C. has submitted that there would be no occasion for this Court to cause any interference with the order passed by the authority.