Member of disciplined force expected to communicate his disabilities to join service rather than overstaying leave: Bombay High Court

The least that is expected from a member of a disciplined force, is communication/intimation of his disabilities to join services after his leave period ends, the Bombay High Court remarked last week.

Not having so communicated/intimated and overstaying leave and/or by his unauthorized absence is a clear case of violation of the statutory rules, a bench of Chief Justice Dipankar Datta and Justice MS Karnik has held.

One Rahul Hiraman Birhade, a constable in the Central Industrial Security Force (CISF), who was removed from service in 2012 by his disciplinary authority, i.e the Commandant CISF RTC Arakkonam, had filed a writ petition before the High Court challenging such order.

Birhade after availing 10 days of sanctioned earned leave did not report back for duty. He did not also seek further leave or communicate the reason that disabled him from reporting for duty.

Similarly worded five call-up notices were issued to him and he was directed to report forthwith but he did not obey the order of his superior and report for duty.

This triggered disciplinary proceedings against him. He did not respond to the memorandum of charge and a CISF constable was deputed for serving such memorandum on him at his residential address.

The chargesheet was finally served on 26th November 2011. Despite receipt thereof, Birhade did not submit a written statement denying the charge. He also did not attend the inquiry proceedings.

At the outset, CJ Datta in his judgment noted that it is not desirable for an administrative authority, who is conferred the power to take punitive action, to exercise such power mechanically.

"Exercise of power must be consistent with the justification for conferment of power. The facts and circumstances before the administrative authority must be such that the adverse order, if any, in disciplinary proceeding suits the delinquency and the delinquent", CJ Datta observed.

Further, looking at the records, Court noted that Birhade received four call-up notices, but he maintained a stoic silence.

"Apart from overstaying leave without permission, which amounts to unauthorized absence, not reporting for duty despite receipt of the several call-up notices amounts to gross indiscipline and disobedience of orders at the instance of a member of the disciplined force. The conduct of the petitioner is, therefore, clearly blameworthy and called for stern action, lest a wrong message be sent to other members of the CISF that unauthorized absence/overstaying of leave are not considered to be grave at the end of the administrative/disciplinary authority....", the High Court remarked.

Since the charges against Birhade of gross indiscipline and disobedience of orders were proved during the inquiry, the High Court refused to interfere with the disciplinary authority's decision.

Case Title: Mr. Rahul Hiraman Birhade vs. Union of India & Ors.