1 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPS No. 1851 of 2023 Order Reserved on 4.2.2025 Order Passed on 30.04.2025 1 - Santosh Kumar Patre S/o Shri Ramadhar Patre Aged About 37 Years R/o Village Sendri, Post Jareli, Tahsil And P.S. Pathariya, District Mungeli Chhattisgarh. ... Petitioner versus 1 - State of Chhattisgarh through its Secretary Department of Home/police, Mahanadi Bhawan, Mantralaya Police Station and Post Rakhi Atal Nagar, Nawa Raipur, District Raipur Chhattisgarh 2 - Director General of Police (DGP) Police Head Quarter (PHQ), Sector -19, P.S. and Post Rakhi, Atal Nagar, Nawa Raipur, District Raipur Chhattisgarh. 3 - Inspector General of Police (IGP), Chhattisgarh Armed Force, Police Head Quarter (PHQ), Sector 19, P.S. And Post Rakhi, Atal Nagar, Nawa Raipur, District Raipur Chhattisgarh. 4 - Deputy Inspector General of Police (DIGP), O/o DIGP, Chhattisgarh Armed Force/STF, Baghera-Durg District - Durg Chhattisgarh. 5 - Commandant, Office Of Commandant, 7th Battalion, Chhattisgarh Armed Force (CAF), Bhilai, District - Durg Chhattisgarh. Digitally signed by GOPAL SINGH Date: 2025.05.01 11:54:31 +0530 2 6 - Enquiry Officer/company Commander (Dog Squad) Office of Commandant 7th Battalion, Chhattisgarh Armed Force (CAF), Bhilai District - Durg Chhattisgarh. ... Respondents (Cause title is taken from Case Information System) For Petitioner : Shri Abhishek Pandey and Miss Swati Rani Saraf, Advocates For State/Respondents : Shri Kanwaljeet Singh Saini, Panel Lawyer Hon’ble Shri Justice Amitendra Kishore Prasad CAV Order 1. In the instant petition, the main ground taken by the petitioner is that the Respondent No. 5 Commandant 7th Battalion, CAF, Bhilai only appointed Inquiry Officer in the case of petitioner, but, not appointed presenting officer under Rule 14(5)(c) of the Chhattisgarh Civil Services (Classification, Control and Appeal) Rules, 1966 so in whole departmental inquiry proceeding the Respondent No. 6 Inquiry Officer play both the role of Judge as well as prosecutor so that the whole departmental inquiry procedure is vitiated and liable to be set-aside. During the statement of all prosecution witnesses in the departmental inquiry procedure the Respondent No. 6 Inquiry Officer did examination-in-chief of all prosecution witnesses, cross examined the petitioner, also asked suggestive and incriminating questions so the Respondent No. 6 Inquiry Officer played both the role of judge as well as prosecutor so the whole departmental inquiry procedure is vitiated and liable to be set-aside. On 19.04.2008, the petitioner went home after obtaining permission from the higher authorities on one day leave, but, due to some family problem and health reason, he could not join his service in stipulated time period and when he came to the office of Respondent No. 5 Commandant, 7th Battalion, Bhilai, District Durg then the Respondent No. 5 did not permit the petitioner for joining on the post of constable and orally 3 said that they are conducting departmental inquiry against the petitioner and going to terminate his services. Hence, this petition. 2. By this petition, the petitioner seeks the following reliefs: “(i) That, this Hon'ble Court may kindly be pleased to direct the respondent authorities to produce all the relevant records relating to case of the petitioner before this Hon'ble Court for its kind perusal. (ii) That this Hon'ble Court may kindly be pleased to quash/set aside the impugned final enquiry report prepared by Respondent No. 6 Enquiry Officer (Annexure P/3). (iii) That, this Hon'ble Court may kindly be pleased to quash/set-aside the impugned termination order of petitioner dated 28.12.2010 passed by Respondent No. 5. Commandant, 7th Battalion, Bhilai (Annexure P/4). (iv) That, this Hon'ble Court may kindly be pleased to quash/set-aside the impugned First Appellate Order dated 22.03.2018 passed by Respondent No. 4, DIGP, STF, Baghera, Distt. Durg (C.G.) (Annexure P/6). (v) That, this Hon'ble Court may kindly be pleased to quash/set-aside the impugned 2nd Appellate Order dated 06.11.2018 passed by Respondent No. 2, DGP, PHQ, Raipur (Annexure P/8). (vi) That, this Hon'ble Court may kindly be pleased to quash/set-aside the impugned Mercy Appellate Order dated 08.12.2022 passed by Respondent No. 2 DGP, PHQ, Raipur (Annexure P/10). (vii) That, this Hon'ble Court may kindly be pleased to reinstate the services of the petitioner from dated 28.12.2010 and directed the Respondents to give joining to the petitioner in 7th Battalion CAF, Bhilai, Distt. Durg (C.G.). (viii) That, this Hon'ble Court may kindly be pleased to direct the Respondent authority to pay full salary and other consequential benefits to the petitioner from dated 19.04.2008 to the date of reinstatement of service of petitioner. (ix) That this Hon'ble Court may further be pleased to direct respondents to give suitable compensation to the petitioner for the mental trauma and 4 agony, harassment and hardships suffered by him as also cost of the litigation.” 3. Learned counsel appearing for the petitioner submitted that the main ground of the petitioner is that the Respondent No. 5 Commandant 7th Battalion CAF, Bhilai only appointed Inquiry Officer in the case of petitioner, but, not appointed presenting officer under Rule 14(5)(c) of Chhattisgarh Civil Services (Classification, Control and Appeal) Rules, 1966 so in whole departmental inquiry proceeding the Respondent No. 6 Inquiry Officer played both the role of Judge as well as prosecutor so that the whole departmental inquiry procedure is vitiated and liable to be set-aside. During the statement of all prosecution witnesses in the departmental inquiry procedure the Respondent No. 6 Inquiry Officer did examination-in-chief of all prosecution witnesses, cross examined the petitioner, also asked suggestive and incriminating questions so the Respondent No. 6 Inquiry Officer played both the role of judge as well as prosecutor so the whole departmental inquiry procedure is vitiated and liable to be set-aside. The petitioner refers to order dated 25.03.2019 passed by a Single Bench of this Court in W.P. No. 1991/2005 in the matter of Lala Ram Shakya v. State of CG and others which squarely covers the case of the present petitioner. In the said matter, this Court has decided the issue that in absence of appointment of Presenting Officer the Inquiry Officer played both the role of Judge as well as Prosecutor so the whole departmental inquiry procedure is vitiated and liable to be set- aside. On the charges of unauthorised absence from duty for about 1 years and 8 months the Respondent No. 5 Commandant after departmental inquiry procedure against the petitioner terminated the services of the petitioner on 28.12.2010 only on the simple charge of unauthorised absence from duty. It is 5 violation of Regulation 226 of the Police Regulations, 1861 which says that the Police Employees cannot be terminated from service on a simple charge of absence from duty and on the charge of absence from duty stoppage of increment is sufficient punishment for police constables. On 19.04.2008, the petitioner went home after obtaining permission from the higher authorities on one day leave, but, due to some family problem and health reason, he could not join his service in stipulated time period and when he came to the office of Respondent No. 5 Commandant, 7th Battalion, Bhilai, District Durg then the Respondent No. 5 did not permit the petitioner for joining on the post of constable and orally said that they are conducting departmental inquiry against him and going to terminate his services. 4. Learned counsel appearing for the State/respondents submitted that the petitioner who was working on the post of Constable under Respondent No. 5 Commandant 7th Battalion, Bhilai was a habitual absentee, who on earlier occasions also remained absent from duty from the period 21.07.2006 till 25.07.2006 (total 05 days), and for the period 29.06.2007 till 06.07.2007 (total 06 days), which the petitioner later successfully converted the said period of absence from duty into Earned Leave and salary to this effect was also given to him. Whereas, the petitioner also remained absent from duty for the period 26.07.2006 till 28.05.2007 (total 307 days), to which the respondent department considered the said period of leave of the petitioner as dies non (non-working days) for the sake of which the respondent department withheld one increment of the petitioner as a punishment. Thereafter, the petitioner on 17.04.2008 gave an application for Casual Leave for the next day i.e. for 18.04.2008 with the reason that his uncle had died and that he had to attend his last rites. The petitioner was supposed to give his joining on 19.04.2008, 6 but he never turned up thereafter till date without any information. Despite several notices being served on to the petitioner by the respondent department to appear on duty, the petitioner did not appear nor did the notices so served is received by the petitioner by himself. It is pertinent to mention here that, as the petitioner remained absent from duty despite several notices, the respondent department Was constrained to issue a notice dated 15/09/2008, wherein it was informed to the petitioner that he shall have to be remain present within seven days before the competent authority to face the allegation leveled against him to which the petitioner on 20/09/2008 made a noting of receipt against the acknowledgment. Since the petitioner, despite giving his consent to cooperate in inquiry against him remained absent before the competent authority within the time prescribed and also in subsequent investigation proceedings, therefore the services of the petitioner was unilaterally terminated vide order dated 28/12/2010 passed by respondent No. 5, Commandant, 7th Battalion, Bhilai. Though the petitioner has taken averment that he has submitted reply of charge-sheet before respondent No. 5/Commandant 7th Battalion, Bhilai, but the same submission is just, vague and false as the petitioner had never participated in the departmental proceeding at any point of time and even otherwise the petitioner has not filed/annexed any documents pertaining to his reply along with his petition. Further, it is submitted that no statement of petitioner has been recorded due to his non-participation in the departmental proceedings though he has taken the averment in the petition in para 8.4 "Statement of petitioner". The petitioner, who himself did not participate and remained throughout absent in the departmental inquiry till his termination order has been passed, cannot claim as main ground of petition that Rule 14(5)(c) of the Chhattisgarh Civil Services (Classification, Control and Appeal) Rules, 1966 has not been 7 followed. Hence, the petitioner is not entitled to grant of any relief and the instant petition deserves to be dismissed. 5. I have heard learned counsel appearing for the parties and perused the record with due care. 6. In the matter of Life Insurance Corporation of India and others v. Om Parkash, Civil Appeal No.4393 of 2010, the Hon’ble Supreme Court has observed as under: “2. The challenge here to the judgment and order dated 26.06.2008 in the LPA No.6/2003 of the High Court of Himachal Pradesh whereunder, the judgment of the learned Single Judge dated 21.05.2003 was upheld by the Division Bench. Through the said judgment, the termination of the respondent ordered by the appellant(s) on 25.06.1996 was found to be unsustainable on the ground of not providing due opportunity to the delinquent. The learned Single Judge set aside the penalty of removal from service granting all consequential benefits to the delinquent. The Court ever observed that the employers were at liberty to proceed to conduct inquiry on the charges in terms of the Life Insurance Corporation of India (Staff) Regulation, 1960 (for short "LIC Staff Regulation", and take necessary action. 10. Importantly, the respondent secured employment with the FCI on 14.04.1997 and although his Writ Petition was filed six months after securing the new job, the employment with the FCI was concealed in the Writ Petition. If this vital aspect was known the High Court possibly would have taken a different view and the respondent abandoning his job with the LIC, could have been easily inferred. 8 11. Relief was granted to the respondent by the High Court on the ground that the termination order was passed without affording a reasonable opportunity or conducting an inquiry into the charge of absence from duty. But in granting such relief, the Court overlooked that it was a case of the respondent abandoning his services without informing his employer about his whereabouts. Subsequently, it came to light that he joined the FCI on 09.05.1997. 12. Such conduct of the respondent could not have been condoned by the employer and therefore, in our assessment, treating the respondent to have abandoned his service and taking appropriate action against him, in terms of the LIC Staff Regulation, cannot be faulted. It is also necessary for us to say that as the delinquent was guilty of suppression of the fact of his employment with the FCI, he was disentitled to equitable relief from the High Court in exercise of powers under Article 226 of the Constitution.” 7. In the matter of Krushnakant B. Parmar v. Union of India and another, (2012) 3 SCC 178, the Hon’ble Supreme Court has observed as under: “11. The appellant was principally charged for unauthorised absence from duty during three consecutive periods: (i) 3-10-1995 to 7-11-1995 (36 days); (ii) 9-11-1995 to 10-12-1995 (32 days); and (iii) 10-12-1995 to 2-8-1995 (234 days), in violation of Rules 3(1)(ii) and 3(1)(iii) of the Central Civil Services (Conduct) Rules, 1964. The charge was sought to be proved by the respondents on the basis of statement of three witnesses, namely, (i) Shri P. Venkateswarlu, DCIO, SIB, Hyderabad; (ii) Shri B.P. Jivrani, ACIO-II, h Palanpur; and (iii) Shri L.N. Thakkar, JIO-I(MT), Gandhidham, and seven documentary evidence, including attendance 9 register of the Office of DCIO, Palanpur, but the complainant refused to appear in the inquiry in support of the complaint and charge. 16. In the case of the appellant referring to unauthorised absence the disciplinary authority alleged that he failed to maintain devotion to duty and his behaviour was unbecoming of a government servant. The question whether "unauthorised absence from duty" amounts to failure of devotion to h duty or behaviour unbecoming of a government servant cannot be decided without deciding the question whether absence is wilful or because of compelling circumstances. 19. In the present case the inquiry officer on appreciation of evidence though held that the appellant was unauthorisedly absent from duty but failed to hold that the absence was wilful; the disciplinary authority as also the appellate authority, failed to appreciate the same and wrongly held the appellant guilty. 24. In the result, the appeal is allowed. The impugned orders of dismissal passed by the disciplinary authority, affirmed by the appellate authority; the Central Administrative Tribunal and the High Court are set aside. The appellant stands reinstated. 25. Taking into consideration the fact that the charged officer has suffered a lot since the proceeding was drawn in 1996 for absence from duty for a certain period, we are not remitting the proceeding to the disciplinary authority for any further action. Further, keeping in view the fact that the appellant has not worked for a long time we direct that the appellant be paid 50% of the back wages but there shall be no order as to costs.” 10 8. In the matter of Chennai Metropolitan Water Supply and Sewerage Board and others v. T.T. Murali Babu, (2014) 4 SCC 108, the Hon’ble Supreme Court has observed as under: “3. As the respondent had already remained unauthorisedly absent and did not respond to the memos by offering an explanation, a charge-sheet had already been issued on 11-9-1996 under the Chennai Metropolitan Water Supply and Sewerage Board Employees (Discipline and Appeal) Regulations, 1978 (for brevity "the Regulations"). The charge memo contained two charges, namely, that the respondent herein had failed to submit an explanation to the first charge memo dated 11-10-1995 in spite of reminders and second, he deserted his post by remaining unauthorisedly absent from duty from 28-8-1995, and thereby committed misconduct under Regulations 6(1) and 6(2) respectively of the Regulations. Be it noted, though the charge memo was duly acknowledged by the respondent on 19-11-1996, yet he chose not to submit his explanation till 6-1-1997, much after the charge-sheet was issued. 4. As the factual matrix would further uncurtain, an enquiry was conducted against the respondent and his explanation in the enquiry was that he could not attend to the duties and could not give explanation to the first charge memo because of ill health. The enquiry officer found charges were proved and, accordingly, submitted the enquiry report which was accepted by the disciplinary authority and after following the due procedure punishment of dismissal was passed on 16-4-1998. In the order of dismissal, the disciplinary authority observed that belated submission of medical certificate on 1-4-1997 irresistibly led to the conclusion that the respondent employee was unauthorisedly absent from 28-8-1995. A conclusion was also arrived at that the first charge, namely, that he had not responded to the letters and reminders, also stood proved. Being of this 11 view, the disciplinary authority thought it apt to impose the punishment of dismissal from service and it did so. 32. The learned counsel for the respondent has endeavoured hard to impress upon us that the respondent had not been a habitual absentee. We really fail to fathom the said submission when the respondent had remained absent for almost one year and seven months. The plea of absence of "habitual absenteeism" is absolutely unacceptable and, under the obtaining circumstances, does not commend acceptation. We are disposed to think that the respondent by remaining unauthorisedly absent for such a long period with inadequate reason had not only shown indiscipline but also made an attempt to get away with it. Such a conduct is not permissible and we are g inclined to think that the High Court has erroneously placed reliance on the authorities where this Court had interfered with the punishment. We have no shadow of doubt that the doctrine of proportionality does not get remotely attracted to such a case. The punishment is definitely not shockingly disproportionate. 33. Another aspect needs to be noted. The respondent was a Junior Engineer. Regard being had to his official position, it was expected of him to maintain discipline, act with responsibility, perform his duty with sincerity and serve the institution with honesty. This kind of conduct cannot be countenanced as it creates a concavity in the work culture and ushers in indiscipline in an organisation. In this context, we may fruitfully quote a passage from Govt. of India v. George Philip, (2006) 13 SCC 1: (SCC p. 14, para 18) "18. … In a case involving overstay of leave and absence from duty, granting six months' time to join duty amounts to not only giving premium to indiscipline but is wholly subversive of the 12 work culture in the organisation. Article 51-A(j) of the Constitution lays down that it shall be the duty of every citizen to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement. This cannot be achieved unless the employees maintain discipline and devotion to duty. Courts should not pass such orders which instead of achieving the underlying spirit and objects of Part IV-A of the Constitution have the tendency to negate or destroy the same." We respectfully reiterate the said feeling and restate with the hope that the employees in any organisation should adhere to discipline for not only achieving personal excellence but for collective good of an organisation. When we say this, we may not be understood to have stated that the employers should be harsh to impose grave punishment on any misconduct. An amiable atmosphere in an organisation develops the work culture and the employer and the employees are expected to remember the same as a precious value for systemic development. 34. Judged on the anvil of the aforesaid premises, the irresistible conclusion is that the interference by the High Court with the punishment is totally unwarranted and unsustainable, and further the High Court was wholly unjustified in entertaining the writ petition after a lapse of four years. The result of aforesaid analysis would entail overturning the judgments and orders passed by the learned Single Judge and the Division Bench of the High Court and, accordingly, we so do.” 9. In the instant case, from perusal of the record, it seems that the petitioner remained unauthorisedly absent for a long period of about 307 days though notices were sent to him, however, despite that, he has neither appeared nor 13 has made any application in this respect. Earlier also, he was unauthorisedly absent for which departmental inquiry was conducted and he was punished while withholding of his one increment as punishment. He also remained absent from duties for the period from 21.07.2006 till 25.07.2006 (total 05 days), and for the period 29.06.2007 till 06.07.2007 (total 06 days), which the petitioner later successfully converted the said period of absence from duty into Earned Leave. Therefore, a charge-sheet was issued to him against his unauthorised absence and for his indiscipline in respect of again and again unauthorised absence. It would be relevant to note this fact that in the entire departmental inquiry, the petitioner remained absent and has not cooperated in the department inquiry. He has not participated in the department inquiry and orders have been passed though he was having information through notice about the department inquiry. Since the petitioner has not participated in the departmental inquiry, as such the ground raised by him that the inquiry office cannot be prosecutor in the departmental inquiry on the principle of ‘one cannot be a judge for his own cause’ in opinion of this Court would not be applicable as had it been a case where in the departmental inquiry the petitioner would have participated and raised this objection. Since he has remained absent in the departmental inquiry, as such the aforesaid principle would not be applicable to his case and it will not prejudice to him. Even otherwise also, earlier the petitioner has been found negligent in discharge of his duties. Out of total 5 years, he remained absent from duties for about 3 years from which it is evident that he is negligent in discharging his duties. Hence, in the final order, he was found liable for removal from the service, which has been confirmed by the appellate authority as well as in the mercy petition while examining his case from four corners of law. It is quite apparent that the petitioner remained negligent and as such no leniency can be granted 14 to the petitioner. He seems to be a habitual employee who remains unauthorisedly absent from his duties. 10. In view of the aforesaid aspect of the matter, this Court does not consider the present to be a fit case for interference under Article 226 of the Constitution of India. The writ petition is devoid of merit and hence it is dismissed. Sd/- (Amitendra Kishore Prasad) JUDGE Gopal Singh