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Balender Kumar v. I.G. Police And Others - SPECIAL APPEAL No. 823 of 2007 [2007] RD-AH 10902 (2 July 2007)


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Court No.32

Special Appeal No.823 of 2007

Balender Kumar         ..Appellant


I.G. Police and others ..Respondents.


Hon'ble S. Rafat Alam, J.

Hon'ble V.C. Misra, J.

Heard learned counsel for the appellant and also perused the judgment of the Hon'ble Single Judge.

Learned counsel for the appellant vehemently contended that since the appellant was suffering from jaundice, he could not submit joining and the medical certificate furnished by him has not been properly appreciated by the disciplinary authority as well as by the Hon'ble Single Judge.  We do not find any force in the submission for the reason that the appellant was required to report back on duty on 4.11.2005. However, he remained absent for 265 days without there being any proper application and leave. It further appears that when he did not report for duty, letters were sent on 5.11.2005 and 7.12.2005 yet he did not report for duty. Thereafter, the respondents issued warrant of arrest on 16.12.2005, which could not be executed. Ultimately, the disciplinary authority decided to initiate regular departmental proceeding. Consequently, memo of charges was served. He, however, chose not to participate in the enquiry proceeding despite giving sufficient time to defend the charges. It further appears that when the enquiry officer submitted his report, a copy whereof was sent to him through letter dated 28.5.2006, only thereafter he appeared and submitted joining report on 29.7.2006. Thus, it is a case where the delinquent of his own did not participate in the proceeding despite opportunity given to him.

The contention that the petitioner-appellant was suffering from jaundice and, therefore, he was not in a position to join the duty, has also no substance and cannot be accepted in the facts and circumstances of the case for the reason that it has been found by the disciplinary authority that during the over stayed leave period, the appellant sent OPD slips of the District Hospital, Muzaffarnagar indicating that he was suffering from Enteric fever and jaundice and required rest for 2-3 weeks. But in support of the same neither cash memos of the medicines purchased nor any report of lab test whereupon one could find that he was suffering from an illness of serious nature, which could take 9 months for recovery has been filed. The OPD slips were also sent to the Medical Officer of the CRPF who opined that the nature of disease was not so serious so as to require such a long medical rest period. Admittedly, the petitioner-appellant was not getting treatment as indoor patient and was being treated as OPD, which clearly shows that the illness was not of such serious nature, which could have prevented him from travelling even during the treatment. Therefore, in the absence of any evidence or documents his such a long over stayed leave on the pretext of illness was disbelieved. Learned counsel for the appellant could not point out any procedural error or illegality in conducting the departmental proceeding. The Hon'ble Single Judge has also found that the proceeding does not suffer from any error calling for interference under the writ jurisdiction of this Court.

It is well settled legal position that the scope of judicial review in the matter of departmental proceeding is limited and it is not an appeal in disguise and only where the finding is based on no evidence or the proceeding is conducted in violation of principles of natural justice or in violation of any statutory rules prescribing mode of enquiry, the interference is called for. In the case of B.C. Chaturvedi Vs. Union of India (1995) 6 SCC749, the Hon'ble Apex Court while considering the scope of judicial review in a departmental enquiry, held as under:

"Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion, which the authority reaches, is necessarily correct in the eye of the court. When an enquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether rules or natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But the finding must be based on some evidence. Neither the technical rules or Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding when the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to respondent-appreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case. "

Therefore, in view of the exposition of law made by the Hon'ble Apex Court, the power of judicial review is meant to ensure that the delinquent was given reasonable opportunity to defend the charges and not to ensure that the conclusion arrived at by the authority is necessarily correct in the eyes of the Court. If the rules of natural justice are complied with, the finding or the conclusion is based on some evidence and the authority passing the order has jurisdiction, this Court in exercise of jurisdiction under Article 226 of the Constitution will not re-appreciate the findings arrived at with its own independent finding. Unless it is found that the view taken by the disciplinary authority and the enquiry officer on the evidence on record is so absurd that no prudent man can reach to that conclusion, no interference is called for. In the instant case, the appellant despite notice did not avail the opportunity to defend the charges. Even the OPD slips of the Civil Hospital, Muzaffarnagar, filed by him for the leave was not accepted for the reason that the disease was not found by the medical experts to be of a such serious nature which could have made impossible for the appellant to travel and to report for duty. It further appears that the respondents directed the appellant through letters dated 25.4.2006, 30.5.2006, 20.6.2006 and 27.7.2006 to report to the Base Hospital-I CRPF, New Delhi or a nearby CRPF Hospital. Even then he did not carry out the order by submitting his joining. The appellant being a Member of the disciplined force, it was expected from him to have obeyed the directions of the superior officer by submitting his joining and in the absence of any evidence justifying such abnormal overstay any interference would have serious impact on the discipline which has to be observed strictly in the Army and Para Military Force including Police.

Thus, in the absence of any irregularity or illegality in conducting the proceeding and also in the absence of any evidence given by the delinquent showing that the nature of illness was such so as to make impossible for him to report for duty, we do not find any reason to differ with the view taken by the Hon'ble Single Judge.

In the facts and circumstances of the case, we do not find any reason to differ with the view taken by the Hon'ble Single Judge.  The appeal, being without merit, is dismissed summarily.




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