Vijayakumar R v Union of India and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **MONDAY, THE 6[TH] DAY OF SEPTEMBER 2021 / 15TH BHADRA, 1943** ## **WP(C) NO. 28836 OF 2020** ## **PETITIONER:** VIJAYAKUMAR R AGED 36 YEARS S/O RAMACHANDRAN, (NO.05504177, CONSTABLE/COOK,F/66 BATTALION) RESIDING AT VANCHITHEKKETHIL HOUSE P.O.PALLIPPAD, NEENDOOR, HARIPPAD, ALAPPUZHA DISTRICT-690 512. BY ADVS. MANU RAMACHANDRAN SRI.M.KIRANLAL SRI.R.RAJESH (VARKALA) SRI.T.S.SARATH ## **RESPONDENTS:** 1 THE UNION OF INDIA REPRESENTED BY THE SECRETARY TO GOVERNMENT, MINISTRY OF HOME AFFAIRS, NORTH BLOCK, NEW DELHI-110 001. 2 THE DIRECTOR GENERAL, CENTRAL RESERVE POLICE FORCE, BLOCK NO.1, C.G.O COMPLEX, LODHI ROAD, NEW DELHI 110 003. 3 THE INSPECTOR GENERAL, WEST BENGAL SECTOR, CRPF, CRPF BHAWAN, HC BLOCK, SECTOR3, SALT LAKE, KOLKATA, WEST BENGAL-700 106. 4 THE DEPUTY INSPECTOR GENERAL, HEAD QUARTERS, CRPF RANGE 14, DURGAPUR, WEST BENGAL-713 214. 5 THE COMMANDANT, 66 BATTALION, CRPF, P.H.C.KEVAKOL, POST-GWALTHOR, DISTRICT-WEST MEDINAPUR, WEST BENGAL-721 128. 2 WP(C) NO. 28836 OF 2020 6 MR. S.K.GANGOPADHYAY, 21/C, ENQUIRY OFFICER, AGE AND FATHERS NAME NOT KNOWN TO THE PETITIONER, 66 BATTALION, CRPF, P.H.C.KEVAKOL, POST GWALTHOR, DISTRICT-WEST MEDINAPUR, WEST BENGAL721 128. BY ADV SRI.P.L.VENUKUMAR, CGC ## **OTHER PRESENT:** SRI.DAYA SINDHU SREEHARI-CGC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 28836 OF 2020 3 ## JUDGMENT ## This writ petition is filed seeking the following reliefs:- “1) Call for the records pertaining to Ext.P8 order of removal from service and quash the same being violative of natural justice, fair trial principles and R.27(c) of the Central Reserve Police Force Rules, 1955. 2) Call for the records pertaining to Ext.P10 order of dismissing Ext.P9 appeal and quash the same being violative of natural justice, fair trial principles and R.28 of the Central Reserve Police Force Rules, 1955. 3) To issue a writ of mandamus, or any appropriate writ or direction directing to the 4[th] respondent to conduct de-novo hearing of Exhibit P9 appeal by affording all fair trial and natural justice principles to the petitioner. 4) To issue a writ of mandamus, or any appropriate writ or direction directing to the 5[th] respondent to conduct de-novo disciplinary enquiry by affording all fair trial and natural justice principles to the petitioner and in accordance with the provisions of R.27(c) of the Central Reserve Police Force Rules, 1955, in case they prefer to continue disciplinary proceedings against the petitioner. 5) To issue a writ of mandamus, or any appropriate writ or direction directing the 4[th] respondent to reconsider Exhibit P9 appeal in accordance with law within a time frame fixed by this Hon'ble Court. ” ## 2. Heard the learned counsel for the petitioner and the learned CGC appearing for the respondents. 4 WP(C) NO. 28836 OF 2020 3. It is submitted by the learned counsel for the petitioner that the petitioner was employed as Constable/Cook in the Central Reserve Police Force at the Group Centre of CRPF, Pallippuram. He was transferred to various places and finally he was posted with the 66 Battalion at West Midnapur, West Bengal. It is submitted that he was sanctioned 30 days leave from 07.12.2015 to 05.01.2016. Disciplinary proceedings had been initiated against him for unauthorized absence after the leave. It is submitted that the petitioner had not deserted the Force and it was only due to compelling health reasons and matrimonial issues that he was unable to rejoin duty after availing the leave. It is submitted that his request for rejoining duty has been rejected and he has declared as deserter from Force. Petitioner has approached the 4[th] respondent with an appeal which was dismissed by Ext.P10 order dated 15.10.2020. It is submitted that the petitioner was not heard and the principles of natural justice have not been complied with in the enquiry proceedings against him or during the consideration of the appeal which was resulted 5 WP(C) NO. 28836 OF 2020 in Ext.P10. It is submitted that soon thereafter, the petitioner has approached this Court raising the above contentions and the petitioner seeks a consideration of Ext.P9 appeal afresh with notice to the petitioner and after hearing him. 4. A statement has been placed on record by the CGC. Relying on the decisions of the Apex court in Registrar, Indian Maritime University, Chennai v. Dr.K.G.Viswanathan (2014 (4) KHC 451), Anand Anoop v. Union of India and Others (2014 KHC 377), Dental Council of India (DCI) v. Dr.V.Viswanath and Others (2018 (3) KHC 143 and several other judgments of this Court and the Apex Court, the learned CGC would contend that the writ petition is not maintainable before this Court for want of territorial jurisdiction. It is submitted that the petitioner was working at Midnapur at the time when he availed the leave. It is submitted that the enquiry against the petitioner had been conducted by the 6[th] respondent and that the order had been passed by the 5[th] respondent. It is submitted that the appeal was also preferred by the petitioner before the 4[th] respondent and the appellate order, WP(C) NO. 28836 OF 2020 6 which is under challenge, is one passed by the 4[th] respondent who is not a functionary within the territorial jurisdiction of this Court. 5. Relying on the decisions of the Apex Court in Nawal Kishore Sharma v. Union of India (2014 (9) SCC 329), Phool Singh Chauhan v. Chief of the Army Staff, New Delhi and Others (2007 SCC Online All 662) and of this Court in Officer-in-Charge, Army Medical Corps Records and Others v. Rajesh U. (2009 (4) KHC 395), the learned counsel for the petitioner submits that since the petitioner is a dismissed officer and he seeks only a reconsideration of the appeal preferred by him after hearing him as well, he will be put to untold hardship and difficulties, if the petitioner is now required to challenge the proceedings before the Calcutta High Court. 6. I have considered the contentions advanced on either side. The only prayer pressed before me is for a reconsideration of Ext.P9 appeal preferred by the petitioner with notice to him. The learned counsel for the petitioner submits that if the petitioner is put on notice and a hearing is conducted through WP(C) NO. 28836 OF 2020 7 video conferencing and the petitioner's contentions are considered by the 4[th] respondent, the petitioner will be satisfied and the interest of justice will be met. Though a specific objection has been raised with regard to the jurisdiction, I notice that the petitioner is a dismissed employee who was declared as a deserter. The only prayer being pressed be for a consideration of the appeal preferred by petitioner before the 4[th] respondent. Non suiting him and requiring him to approach the Calcutta High Court for a consideration of his appeal according to me would not be in the interests of justice. 7. In the above view of the matter, accepting the contentions with regard to the jurisdiction raised by the respondents, but however considering the peculiar facts and circumstances of the case, this writ petition is ordered directing the 4[th] respondent to take up, consider and pass orders on Ext.P9 appeal afresh after issuing a notice to the petitioner and after hearing him through any appropriate means including video conferencing. Appropriate steps shall be taken within a period of 8 WP(C) NO. 28836 OF 2020 three months from the date of receipt of a copy of this judgment. The petitioner may be permitted to submit detailed argument notes before the 4[th] respondent at the time of hearing which will be specifically adverted to while passing orders. This writ petition is ordered accordingly. Sd/ANU SIVARAMAN JUDGE bng/08.09.2021 WP(C) NO. 28836 OF 2020 9 ## **APPENDIX OF WP(C) 28836/2020** PETITIONER EXHIBITS - EXHIBIT P1 THE TRUE COPY OF THE MOVEMENT ORDER NIL DATED GIVEN TO THE PETITIONER - EXHIBIT P2 THE TRUE COPY OF THE APPLICATION FOR EXTENSION OF LEAVE NIL DATED GIVEN VIA EMAIL FOR EXTENSION OF LEAVE FOR 60 DAYS BEFORE THE 5TH RESPONDENT - EXHIBIT P3 THE TRUE COPY OF THE MEDICAL CERTIFICATE DATED 23.1.2016 ISSUED TO THE PETITIONER - EXHIBIT P4 THE TRUE COPY OF THE MEDICAL CERTIFICATE OF THE PETITIONER DATED 11.5.2016 - EXHIBIT P5 THE TRUE COPY OF THE JUDGMENT DATED 26.9.2015 IN O.P (HMA) NO 852/2015 ON THE FILES OF FAMILY COURT, MAVELIKARA - EXHIBIT P6 THE TRUE COPY OF THE CHARGE MEMO LIST OF WITNESSES, THEIR TESTIMONY AND THE CONCLUSION AND OPINION DRAWN BY THE ENQUIRY OFFICER ALONG WITH NOTICE DATED 7.6.2017 OF THE 5TH RESPONDENT ALONG THE ENGLISH TRANSLATION - EXHIBIT P7 THE TRUE COPY OF THE STATEMENT OF DEFENSE FILED BY THE PETITIONER CONSEQUENT TO EXT P6 ALONG WITH ITS ENGLISH TRANSLATION - EXHIBIT P8 THE TRUE COPY OF THE FINAL ORDER DATED 24.6.2017 PASSED BY THE 5TH RESPONDENT ALONG WITH ITS ENGLISH TRANSLATION EXHIBIT P9 THE TRUE COPY OF THE MEMORANDUM OF APPEAL FILED BY THE PETITIONER BEFORE THE 4TH WP(C) NO. 28836 OF 2020 10 RESPONDENT THROUGH 5TH RESPONDENT EXHIBIT P10 THE TRUE COPY OF THE ORDER DATED 15.10.2020 ISSUED BY THE 4TH RESPONDENT IN EXT.P9 APPEAL ALONG WITH ITS ENGLISH TRANSLATION