BRIJ KISHOREYADAV Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS application has been filed for quashing the order dated 14.2.2000 (Annexure 7) whereby the petitioner has been visited with the penalty of dismissal from service. Further prayer made by the petitioner is to quash an undated order of October 2000 (Annexure -8) whereby the appeal preferred by him against the order of the disciplinary authority has been dismissed.

(2.) SHORN of unnecessary details, facts giving rise to the present application are that the petitioner, at the relevant time, was employed as Lance Nayak in the Central Reserve Police Force and by order dated 4.12.1999, a departmental proceeding was initiated against him. Charge against him was that while functioning as Lance Nayak (General Duty) he had committed an act of misconduct by overstayal after leave with effect from 10.5.1999 to 2.10.1999 he. for 146 days without any prior permission/ sanction of the authority. According to the charge, the aforesaid allegation constitutes an offence under section 11(1) of the Central Reserve Police Force Act, 1949 read with Rule 27 of the Central Reserve Police Force Rules, 1915 (sic1955?). In the departmental proceeding, petitioner did not deny the fact of over -stayal but his plea was that on account of the fact that he was suffering from jaundice i.e. situation beyond control, he had no option than to stay at his home. The enquiry officer considered the plea of the petitioner and finding that the prescriptions filed by the petitioner for treatment were from a private medical practitioner and not from any Primary Health Centre or the District Hospital, did not accept the plea of the petitioner and held him guilty of the misconduct. Petitioner was provided with a copy of the enquiry report with liberty to file show cause and on consideration of the same, the disciplinary authority, by the impugned order dated 14.2.2000, inflicted the penalty of dismissal from service and the appeal preferred by him against the said order was also rejected by an undated order of October, 2000 (Annexure -8).

(3.) MR . Amresh Kumar Singh, with all the vehements at his command, submits that failure on the part of the respondents to give notice to the petitioner to show cause against the proposed punishment, vitiates the impugned order. He vehemently contends that the amendment brought about in the first proviso to Article 311 (2) of the Constitution of India by the Constitution (Forty Second Amendment) Act. 1976 had, in sum and substance, brought about no change. He points out that there are two stages in the departmental enquiry, first, the stage prior to the submission of the enquiry report and the second stage starts with making available the copy of the enquiry report and giving show cause notice against the proposed punishment and the ultimate decision. Mr. Singh contends that one of the important requirement of the second stage of the disciplinary proceeding is of giving show -cause notice against the proposed punishment and failure thereof shall invalidate the impugned order. In support of his submission Mr. Singh has placed reliance on a decision of the Constitution Bench of the Supreme Court in the case of Khem Chand V/s. Union of India and others reported in AIR 1958 SC 300. He placed reliance on the following passage from para -22 of the judgment: "22.It is on the facts quite clear that when Shri J.B.Tandon concluded his enquiry and definitely found the appellant guilty of practically all the charges he for the first time suggested that the punishment of dismissal should be the proper form of punishment in this case. Shri J.B.Tandon was not, however, the competent authority to dismiss the appellant and, therefore, he could only make a report to the Deputy Commissioner who was the person competent to dismiss the appellant. When the Deputy Commissioner accepted the report and confirmed the opinion that the punishment of dismissal should be inflicted on the appellant, it was on that stage being reached that the appellant was entitled to have further opportunity given to him to show cause why that particular punishment should not be inflicted on him. There is, therefore, no getting away from the fact that Art. 311 (2) has not been fully complied with and the appellant has not had the benefit of all the constitutional protection and accordingly his dismissal cannot be supported."