Shri.P.Binoy v. Union Of India And ORS
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION [CIRCUIT BENCH AT PORT BLAIR] PRESENT : THE HON'BLE JUSTICE SUVRA GHOSH AND THE HON'BLE JUSTICE MD. SHABBAR RASHIDI WP.CT/22/2025 SHRI P BINOY ... PETITIONER VS.
THE UNION OF INDIA AND OTHERS ... RESPONDENTS For the Petitioner : Mr. Gopala Binnu Kumar Ms. Vinita Devi For the Respondents : Mr. Shatadru Chakraborty, Sr. Adv.
: Mr. Rakesh Kumar Hearing concluded on : August 05, 2025 Judgment delivered on : August 08, 2025 SUVRA GHOSH, J.
1.
The petitioner has assailed the order passed by the learned Central Administrative Tribunal, Kolkata Bench, holding circuit at Port Blair on March 11, 2025 in Original Application No. 351/740/2024 affirming the desertion order passed by the third respondent and affirmed by the second respondent. 2.
The petitioner was appointed as Constable under the second respondent pursuant to selection process vide Order Book No. 3880 dated July 15, 2002 and was promoted to the rank of Head Constable
on June 22, 2016. He remained absent from duty without intimation to/permission of the competent authority from July 7, 2017 for which an absentee notice was issued upon him on July 17, 2017 directing him to report at his place of posting immediately. Despite receiving such notice, he neither reported for duty nor submitted any intimation to the reporting authority. A departmental inquiry was initiated against the petitioner and upon consideration of the material on record as well as submission made by the petitioner, penalty of withholding his future increment for a period of one year with cumulative effect was imposed upon him. The period of his unauthorized absence from July 07, 2017 to August 04, 2017 for 49 days was treated as "loss of pay" on the principle of "no work no pay".
He was reinstated in service by an order passed by the Deputy Superintendent of Police on August 24, 2017. The petitioner was again found to be unauthorizedly absent from his duty from December, 2017 to September, 2018 and October, 2018 to September, 2019 for 223 days without intimation and a disciplinary inquiry was again initiated against him.
3.
He admitted his guilt before the authority and penalty was imposed upon him to the effect that the period of his unauthorized absence was treated as "loss of pay" on the principle of "no work no pay". He was warned to be more careful in future. On a third occasion, the petitioner remained absent from duty from April 14, 2023 without authorization and was served an absentee notice on
April 24, 2023. The petitioner did not comply with the said notice for which a desertion notice was issued upon him on May 12, 2023. Since his unauthorized absence from duty exceeded 21 days, he was declared a deserter in terms of Rule 6.19 of the 1963 manual and his name was struck off from the rolls of the police force with effect from April 14, 2023.
4.
Under Rule 6.19(b), he was granted an opportunity to appear before the authority with an explanation for reinstatement within two months from the date of commencement of his absence and on his failure to do so, the desertion order was made absolute by an order passed on June 15, 2023. The said order was carried in appeal by the petitioner and upon consideration of the submission of the petitioner, the Appellate Authority being the Director General of Police, Andaman and Nicobar Islands, by an order passed on July 31, 2023, dismissed the appeal and affirmed the order of the Disciplinary Authority. The petitioner approached the learned Tribunal against the said order. The learned Tribunal, by the order impugned, turned down the prayer of the petitioner and dismissed the original application. The said order is assailed before this Court. 5.
Learned counsel for the petitioner has submitted that the order impugned is in violation of Article 311 of the Constitution of India. No inquiry was initiated against the petitioner and no opportunity of hearing granted to him prior to his dismissal. The petitioner has put in 20 years of service in the police force and was entitled to the
minimum requirement of an opportunity of hearing before he was dismissed from service. He was unable to join his duty due to unavoidable situation in his family and seeks an opportunity to serve the force by setting aside the order of dismissal. 6.
Learned counsel has placed reliance on an order of a coordinate Bench of this Court passed on June 11, 2024 in WP.CT/29/2024 (Ramu Sekhar vs. Union of India and others). The petitioner claims to be similarly situated with the petitioner in the said application.
7.
Opposing the prayer, learned counsel for the respondents has submitted that the petitioner has not challenged the vires of Rule 6.19 of the 1963 manual and is therefore bound to abide by it. The said Rule has been scrupulously followed by the authority in dealing with the case of the petitioner. The Rule cannot be said to be in violation of Article 311 of the Constitution of India. The procedure followed by the authority can at best be termed as an exception to Article 311 in the given facts and circumstances. There have been several lapses on the part of the petitioner and two earlier disciplinary proceedings were conducted against him resulting in his reinstatement in service. The authority did not propose a third proceeding for the recurring lapses and arrived at the impugned finding upon granting reasonable opportunity of hearing to the petitioner.
8.
We have considered the material on record.
9.
It is trite law that the Constitution is the guardian of all laws in the country and no law which is contrary to the Constitution can override its mandate.
10.
In the present case, absentee notice and desertion notice were issued upon the petitioner and admittedly received by him, despite which he failed to appear before the authority with an explanation. Further opportunity was granted to him under Rule 6.19(b) of the 1963 manual to appear before the authority within two months from the date of commencement of his absence, that is, April 14, 2023. The petitioner acknowledged receipt of such notice but failed to comply with the same for reasons best known to him. After the desertion order was made absolute and his name finally removed from the rolls of police force vide order dated June 15, 2023, the petitioner preferred an appeal before the Appellate Authority, being the Director General of Police, on July 05, 2023. 11.
The petitioner submitted his case in writing before the Appellate Authority but did not appear before the authority or submit any written intimation assigning reasons for his failure to appear despite being directed by the Appellate Authority to appear on July 24, 2023. The reasons for unauthorized leave stated by the petitioner has all throughout been his family issues, depression, mental agony
etc. Nothing was placed before the authorities in support of his contention.
12.
Rule 6.19(a) of the 1963 manual envisages that absence without leave for 21 days completes the offence of desertion after which the officer's name shall be invariably struck off from the rolls of the police force from date of absence. Sub-Rule (b) allows such officer to file an application for reinstatement within two months from the date of commencement of absence without leave. 13.
In the case in hand, the absentee notice as well as the desertion notice was admittedly received by the petitioner despite which no application was filed by him under sub-rule (b) before the authority though the petitioner had sufficient time to file such application after receipt of the desertion notice. The entire proceeding appears to have been undergone in accordance with Rule 6.19 of the 1963 manual.
14.
Article 311 (2) of the Constitution of India states no person who is a member of a civil service/ all India service of the Union or a State shall be dismissed or removed except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. Proviso (b) to the said Article says that this clause shall not apply when the authority empowered to dismiss or remove a person is satisfied that
for some reason, to be recorded by the authority in writing, it is not reasonably practicable to hold such inquiry.
15.
The said provision does not mandate initiation of a formal disciplinary proceeding against the delinquent officer prior to his dismissal and an inquiry and reasonable opportunity of being heard are the two criteria which are required to be fulfilled for dismissal of the officer.
16.
Herein, the absentee notice and desertion notice were admittedly received by the petitioner and he was granted sufficient opportunity to defend his cause before the authority. The notices spelt out the allegation /charge against him and he was directed to respond to the same.
17.
Inquiry may be construed as a device to arrive at a preliminary finding as to the charges against the delinquent officer.
Absence of the petitioner having been reported to the authority and the authority having arrived at a finding with regard to the unauthorized absence of the petitioner upon considering his absence during the relevant period, such procedure can be deemed to be an inquiry held by the authority before issuance of the notices upon the petitioner. The procedure adopted by the authority cannot be said to be in violation or dilution of Article 311(2) of the Constitution of India.
18.
The judgment impugned records the period of unauthorized absence of the petitioner throughout the period from 2016 to 2023
which demonstrates habitual violation of service rules by the petitioner. The table below which is part of the judgment shall give a clear picture of such violation.
Sl.
No Period of unauthorized absence No.
of days Period treated as 1.
30.10.2016 to 02.11.2016 04 days EOL vide OB No.
dated 22/11/2016.
2.
07.07.2017 to 24.08.2017 49 days Declared as a "Deserter" vide OB No.
dated 04/08/2017.
However, reinstated into service w.e.f 24/08/2017 vide OB No. 2400 dated 24/08/2017.
Absent period treated as loss of pay and punishment imposed to stoppage of increment for the period of one year vide OB No. 2383 dated 15.10.2019.
3.
29.12.2017 to 07.01.2018 10 days 4.
29.01.2018 to 21.03.2018 52 days 5.
24.04.2018 to 26.04.2018 03 days 6.
27.04.2018 to 18.05.2018 22 days 7.
05.06.2018 to 06.06.2018 02 days 8.
11.07.2018 to 20.07.2018 10 days 9.
17.08.2018 to 02.09.2018 17 days A departmental Enquiry was conducted.
The period of his unauthorized absence was treated as Loss of Pay vide O.B. No.
543 dated 23.03.2021.
10.
08.09.2018 to 15.09.2018 08 days 11.
16.09.2018 to 26.09.2018 11 days 12.
23.11.2018 to 04.12.2018 12 days 13.
21.01.2019 to 03.02.2019 14 days 14.
30.05.2019 to 18.06.2019 20 days 15.
25.06.2019 to 08.07.2019 14 days 16.
13.07.2019 to 23.07.2019 11 days 17.
11.09.2019 to 23.09.2019 13 days
18.
26.01.2020 to 11.02.2020 17 days 19.
15.03.2020 to 08.04.2020 25 days Treated as Loss of Pay vide O.B. No.
1029 dated 17/06/2021 20.
10.07.2020 to 13.08.2020 35 days 21.
07.04.2021 to 20.04.2021 14 days 22.
04.11.2021 to 15.11.2021 12 days 23.
10.12.2021 to 12.12.2021 03 days 24.
03.01.2022 to 15.01.2022 13 days Treated as Loss of Pay vide O.B. No.
2301 dated 24/08/2022.
25.
20.02.2022 to 01.03.2022 20 days 26.
28.03.2022 to 14.04.2022 18 days 27.
12.06.2022 to 18.07.2022 37 days Declared as a "Deserter" vide O.B. No.
dated 07/07/2022.
However, reinstated into service w.e.f. 19.07.2022 vide O.B. No. 1999 dated 21.07.2022 and treated the period of unauthorized absence as Loss of Pay vide O.B. No.
143 dated 25.01.2023 by imposing a minor penalty of "Black Mark"
P.E has been intimated on 13.01.202 29.
15.11.2022 to 25.12.2022 41 days Availed medical rest but, failed to submit medical fitness certificate 30.
28.12.2022 to 16.01.2023 20 days Issued absentee notice vide No. 259 dated 16.01.2023 31.
20.01.2023 to 21.03.2023 61 days Declared as "Deserter" vide O.B.
No.
dated 16.02.2023 reinstated into service w.e.f. 21.03.2023 (A/N) vide O.B. No. 940 dated 06.04.2023.
28.
14.09.2022 to 02.11.2022 50 days Declared as "deserter" vide O.B.
No.
dated 07.10.2022 and reinstated into service w.e.f.
02.11.2022 (A/N) vide O.B.
No. 2975 dated 11.11.2022 19.
Each time the petitioner remained absent without intimation and his absence was condoned by the authority. Such condonation is
not synonymous to "no indisciplinary act" by the petitioner. The petitioner belongs to a disciplined service despite which there have been several instances of indisciplinary act on his part during his service tenure. Every opportunity granted to him by the authority to rectify himself was unfortunately construed as an inspiration for him to repeat the same misconduct with the confidence of being condoned every time. This cannot continue indefinitely. In the impugned judgment, the learned Tribunal has rightly refrained from interfering with the decision taken by the Disciplinary Authority and Appellate Authority.
20.
In the judgment referred to by the petitioner, the coordinate Bench directed lesser punishment to the petitioner primarily on the ground that no opportunity of hearing was given to the petitioner and the dismissal order was in violation of Article 311(2) of the Constitution of India.
21.
For the reasons stated above, the ratio decidendi of the judgment can be distinguished from the fact situation of the present case.
22.
In the said backdrop, we are inclined to hold that the order impugned is supported by sufficient reasons and does not call for interference by this Court.
23.
Accordingly, the application being WP.CT/22/2025 is dismissed.
24.
The order impugned dated March 11, 2025 passed by the learned Central Administrative Tribunal, Kolkata Bench sitting in circuit at Port Blair in O.A. No. 351/740/2024 is affirmed. 25.
There shall, however, be no order as to costs. 26.
Since affidavits are not invited, the allegations made in the application are deemed not to have been admitted. 27.
Urgent certified website copies of this judgment, if applied for, be supplied to the parties expeditiously on compliance with the usual formalities.
I agree ( MD. SHABBAR RASHIDI, J.) ( SUVRA GHOSH, J. )