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SANDEEP MOUDGIL, J. –

1. Prayer

The present matter comes before this Court upon remand by the Division Bench of this court vide order dated 03.03.2020, whereby the earlier judgment dated 04.05.2018 passed in CWP-10905-1999 was set aside and the matter was remitted for fresh consideration on merits. Pursuant to the said remand, the record has been placed before this Court for adjudication afresh.

2. Brief Facts

The petitioner was enrolled as a Constable (No. 921171106) in the 6th Battalion, Amritsar, on 07.07.1992 and was later posted as Constable (GD) in the 91st Battalion. While stationed at Chenni Himat, Jammu, in 1996, his wife had to undergo surgery for childbirth, leading to financial hardship for the family. On 01.01.1997, the petitioner proceeded on sanctioned leave till 30.01.1997 to make necessary arrangements. During this period, his wife’s condition deteriorated. She was hospitalized between 28.01.1997 and 07.02.1997. The petitioner claims to have informed the Commandant of 91^st Battalion about his wife’s illness through telephone and registered letters, and applications seeking extension of leave. However, he was charged for overstaying leave without authority from 31.01.1997 to 14.05.1997. and was placed under suspension w.e.f 1.07.1997 and was charge sheeted on 17.07.1997. during inquiry he was assured by respondent no 4 that he shall be pardoned in the case leading the petitioner to admit his guilt. However to his surprise he was ordered to be dismissed from service vide order dated 11.09.1997. Feeling aggrieved by the order of dismissal, he has exhausted his departmental remedies of appeal as well as revision wherein he has suffered orders dated 04.07.1998 and 09.04.1999 respectively. Consequently he filed the writ petition before this court whereby his petition was allowed dated 04.05.2018 but was subsequently set aside in LPA 1481-2018 dated 03.03.2020 and the matter was remanded back to this court to decide afresh on merits.

3. Observations in LPA -1481-2018

The present matter was remanded back because the learned Single Judge had set aside the dismissal order of the petitioner merely on the ground that the objections to the inquiry report filed by the petitioner were not duly considered. However, the record revealed that the petitioner’s reply contained no substantive objections and rather he admitted the findings of the Inquiry Officer. Since the judgment was based on this narrow technical ground without examining the case on merits, both parties consented that the proper course would be to remand the matter to the Single Judge for fresh adjudication on merits.

4. Contentions:

On behalf of Petitioner

Learned counsel for the petitioner has submitted that the impugned order of dismissal is vitiated as the petitioner’s admission of guilt was not voluntary but induced by assurance from the superior that he would be pardoned, amounting to compelled self-incrimination contrary to Article 20(3) of the Constitution.

It is further argued that the petitioner was denied a fair opportunity of defence, having been dissuaded from producing evidence on the assurance of pardon, which is a clear breach of the essential tenet of Principles of Natural Justice being audi alteram partem. Also, there was procedural impropriety with the proceedings, as only 12 days were given to the petitioner to file reply to the inquiry report instead of the mandatory 15 days, thereby nullifying the fairness of the process.

The counsel for petitioner vehemently argues that the punishment of dismissal is shockingly disproportionate to the charge of overstaying leave, which was occasioned by genuine family exigency, offending the settled doctrine of proportionality.

On behalf of Respondents

Per contra learned counsel for the respondents,, submits that the petitioner was guilty of grave misconduct in overstaying leave for as many as 104 days, despite repeated directions to report back, and in disobeying orders of his superior officers. Such indiscipline in a disciplined force cannot be tolerated.

It is further submitted that the inquiry was conducted strictly in accordance with the prescribed procedure, and the petitioner was afforded adequate opportunity to defend himself. His representation to the inquiry report was duly considered but did not disclose any substantive defence. The allegation that admission of guilt was obtained under inducement or undue influence is merely an afterthought, raised only to evade the consequences of his misconduct.

He further contends that proportionality must be viewed in the context of service in a paramilitary force, where discipline is the bedrock. In such forces, even a single act of wilful absence undermines operational efficiency and merits strict punishment. It is therefore argued that the penalty of dismissal, imposed after due inquiry and confirmed in departmental appeal and revision, does not warrant interference under Article 226 of Constitution of India, and the writ petition deserves to be dismissed.

5. Analysis:

Having given our thoughtful consideration to the rival submissions advanced by counsel for both parties and carefully perused the material available on record. The jurisdiction of this Court under Article 226 of the Constitution is supervisory in nature and does not ordinarily extend to reappreciating the evidence as if sitting in appeal. However, this Court is well within its domain to examine whether the disciplinary proceedings suffer from patent illegality, perversity, or violation of constitutional and statutory safeguards, and whether the punishment imposed is disproportionate to the nature of the misconduct.

The facts and circumstance in present case suggest that the entire departmental enquiry, and finally the punishment of dismissal of service was, in entirety, based on the petitioner’s admission of guilt which could not have been the sole basis of the decision of the Commandant, and no evidence was led as to the justification for the period of unauthorised absence of 104 days, for which the petitioner has submitted that he was absent due to family exigency and had sent regular intimation of the same to the respondents.

It is pertinent to observe that the evidence presented during the inquiry, comprising statements of Prosecutions Witnesses i.e. the Company writer, Company hawaldar major, and Company commander, related solely to the absence of the delinquent official but, no documentary evidence or any other form of proof was produced to examine or verify the justifications put forth by the petitioner for his absence. This indicates a procedural lapse on the part of the department, as it failed to thoroughly investigate or consider the reasons advanced by the petitioner, thereby undermining the fairness and completeness of the inquiry process.

The court is mindful that the well settled principles of natural justice are not empty formalities, but fundamental to fair procedure. It is not a disputed fact that the petitioner admitted his guilt during the Departmental enquiry but the submissions by the petitioner disclose that the so called admission of guilt by the petitioner was not out of his free will, but pertained to the assurance of Respondent no. 4 that he would be pardoned only if he admitted the charge. Such an admission, obtained under inducement and undue influence, cannot form the sole basis of punitive action and would amount to violation of Article 20(3) of the Constitution, which affords protection to the accused against testimonial compulsion.

Moreover, even though the respondent has submitted that the petitioner was indeed given an opportunity to produce defence but this court cannot overlook the submission of the petitioner that he was dissuaded from producing any defence material qua the assurance made by the respondent no. 4 that his admission alone would suffice for lesser punishment or even pardon, inevitably denying him a reasonable opportunity of defence and striking at the root of the principle of audi alteram partem. An inquiry conducted in violation of fair hearing is a nullity in the eye of law

Furthermore, the court is of the considered opinion that there are manifest procedural impropriety as the material placed on record clarifies that the copy of the inquiry report dated 23.08.1997 was forwarded to the petitioner on 30.08.1997, yet the order of dismissal came to be passed on 11.09.1997 violating the statutorily prescribed limit of a minimum 15 days to submit representation to the report as the petitioner was given only 12 days to respond even though Annexure P-6 mentioned 14.09.1997 as the last day to submit the representation by the petitioner. This denial of statutory time for reply is not a mere irregularity but vitiates the fairness in procedure. Guidance may be derived from the Supreme Court judgement in “Managing Director, ECIL v. B. Karunakar, (1993) 4 SCC 727” and relevant paragraph is as below:

The reason why the right to receive the report of the Inquiry Officer is considered an essential part of the reasonable opportunity at the first stage and also a principle of natural justice is that the findings recorded by the Inquiry Officer form an important material before the disciplinary authority which along with the evidence is taken into consideration by it to come to its conclusions. It is difficult to say in advance, to what extent the said findings including the punishment, if any, recommended in the report would influence the disciplinary authority while drawing its conclusions. The finding further might have been recorded without considering the relevant evidence on record, or by misconstruing it or unsupported by it. If such a findings is to be one of the documents to be considered by the disciplinary authority, the principles of natural justice require that the employee should have a fair opportunity to meet, explain and controvert it before he is condemned. It is the negation of the tenets of justice and a denial of fair opportunity to the employee to consider the findings recorded by a third party like the Inquiry Officer without giving the employee an opportunity to reply to it.

Lastly, the penalty of dismissal for overstaying leave, even assuming misconduct, is shockingly disproportionate to the charge. The doctrine of proportionality, firmly embedded in service jurisprudence, Man ates that the punishment must be commensurate with the gravity of misconduct. In the present case, the punishment imposed is excessive and reliance may be place upon the judgement rendered by the Supreme Court in “Ranjit Thakur v. Union of India, (1987) 4 SCC 611”, held that the sentence has to suit not only the gravity of the offence but also the circumstances of the offender. Tested on this touchstone, the impugned penalty cannot be sustained.

Thus, the proceedings culminating in the order of dismissal dated 11.09.1997 and its affirmance in appeal and revision are unsustainable in law as they stand vitiated on three counts (i) violation of constitutional guarantee against self-incrimination, (ii) denial of natural justice in not affording an effective defence, and (iii) imposition of grossly disproportionate punishment.

6. Conclusion

Therefore, the impugned orders are set aside and the writ petition is allowed. The petitioner shall be entitled to reinstatement with all consequential benefits.

Accordingly, the present writ petition is allowed.

Petition allowed.

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