PREMNATH RAM v. UNION OF INDIA & Ors.

Submission of learned counsel for the petitioner is that the order of dismissal could only be passed by Commandant on a plain reading of first entry to the said table. Since the order in question has been passed by the Additional DIG Police CRPF there is an inherent defect in exercise of power in imposition of said punishment. It was in this background the Court in its order dated 10.7.2008 directed the respondents to file supplementary affidavit verifying the position. A supplementary affidavit came to be filed where a communication dated 17th January, 1984 has been brought on record. There is a notification issued by the Government of India, Ministry of Home Affairs which reads thus:

I am directed to say that the President is pleased to clarify that the Addl. DIsG in the CRPF shall be the Commandants of their respective Group Centres and the Central Training Colleges and shall continue to perform the functions of and exercise the powers vested in a Commandant under the CRPF Act 1949 and the Rules framed thereunder.

The stand in the supplementary affidavit on behalf of the respondents is that the Additional DIG CRPF have been notified as Commandant of the respective Group Centres and they are - 3 - Commandants under the CRPF Act, 1949.

Learned counsel for the petitioner thereafter submits that notification more so of the administrative kind cannot confer power on the executive to amend the statutory rule more so Rule 27. If the statute says Commandant then nobody else acquires jurisdiction even though there could be a notification issued by the Government of India. There could have been some force in the submission of learned counsel for the petitioner provided any definition of Commandant has been given under the Act. The provision with regard to superior officer is contained in Section 4 of the CRPF Act, 1949 which says as follows; Section 4: Appointment and powers of superior officers- (1) The Central Government may appoint to the Force a Commandant and such other persons as it thinks fit to be Assistant Commandants and company officer. (2) The Commandant and every other officer so appointed shall have, and may exercise such powers and authority as may be provided by or under this Act.

A plain reading of the above provision of the statue makes it quite clear that the power is vested in the Central Government to issue notification appointing such officer as a Commandant as the Central Government deems fit. The provision of Section 4(1) & (2) read with the notification, which has been filed in the supplementary affidavit, in the opinion of this Court is a complete - 4 - answer to the legal submission which has been made on behalf of the petitioner. This was one of the primary challenge made to the impugned order in question. Learned counsel thereafter submits that there is prejudice caused to him because for the four months in which he was under suspension he was not given his subsistence allowance which prevented him from defending himself adequately. But a problem lies in the said submission because the petitioner was in “force’s custody” all along the time when the departmental enquiry was going on against him.

There is basic distinction between a civil employee and where a departmental proceeding is conducted against him over a period of time and a member of the disciplined force to which the present petitioner belongs. That being the basic issue, this Court is of the opinion that no serious prejudice has been caused to the petitioner on this count because record demonstrates that he was present and participated in the proceeding at all point of time after having been given due opportunity at every stage. Mere urging that prejudice was caused may not be enough if the material in this regard is not demonstrated to the satisfaction of the Court. In sum the Court while exercising power under Article 226 of the Constitution of India does not find any legal infirmity to interfere with the orders in question. This writ application is accordingly dismissed. RPS (Ajay Kumar Tripathi, J.)