High Court
Case Details
WA 243/2012 BEFORE HON’BLE THE CHIEF JUSTICE MR. A. K. GOEL HON’BLE MR. JUSTICE A. K. GOSWAMI This writ appeal is directed against the judgment and order dated 29.05.2012 pas sed by the learned Single Judge in WP (C) No. 9441/03, dismissing the writ appli cation. 2. The case of the appellant as pleaded in the writ petition is that he was appointed as Constable in the Central Reserve Police Force (CRPF) in the year 1991. While he was posted at Nagaon (Fulguri ), he was granted medical leave fo r 45 days w.e.f. 01.06.2009 to 15.07.1999. On 25.06.1999, he had left for Dalga on from the residence of one of his relatives to meet one of his Constable frien ds. When he was at a distance of about 10 yards from the CRPF Camp/Coy post, so meone shot at him and as a result thereof, he had sustained bullet injuries. Th e incident had occurred at around 7:30 pm and he was shifted to Dalgaon Civil ho spital by the CRPF personnel. Later on, he learnt that one person was shot dead in the said shoot out and he was identified to be a dacoit. Though he was in n o way involved in any offence, he was also arrested in the case arising out of the said incident, registered as Dalgaon Police Station Case No. 149/99 under Sections 302/34 IPC. His condition having not improved, he was, at first shifte d to Mangaldoi Civil Hospital and later on, to Gauhati Medical College & Hospi tal, where he remained under treatment from 28.06.1999 to 30.09.1999. During suc h period of treatment, the Commandant of the unit of the petitioner as well as O .C., C/123 CRPF had also come to enquire about his well being and he had told them about the incident as well as false case framed against him. The wife of the appellant was also informed by telegram by the O.C., C/123 CRPF informing his hospitalization and offering help and assistance, if needed. He was release d on bail in the meantime on 30.9.99 and he joined his duty on 1.12.99. 3. On 09.02.2000, the appellant was suspended on the ground that a case was pending against him in respect of a criminal offence and in connection with th e said case, he was detained in custody on 25.06.1999 for a period exceeding 48 hours. By the said order, his Head Quarter was fixed at 123 BN CRPF, Jagiroad, w hich was, however, subsequently changed to Panjabari, Guwahati. On 16.08.2001, a memorandum of charges was issued against the appellant on two articles of char ges. In the departmental enquiry that followed, the appellant was imposed with penalty of removal from service by an order dated 19.03.2002 passed by the dis ciplinary authority. The appeal preferred by the appellant was rejected by the a ppellate authority by an order dated 16.12.2002 and by the order dated 18.07.200 3, the revision petition filed by the appellant was also dismissed. 4. etition. 5. gainst the appellant, which are as follows: (cid:28)ARTICLE -I That said No. 913284939 CT Sayed A. Ahmad of C/123 Bn. CRPF while functioning as such in C/123 Bn. CRPF committed an act of serious misconduct in discharge of d uty in his capacity as a member of the force under section 11(1) of CRPF Act 194 9 in that he failed to report for duty on 16.7.99 after availing 45 days Medical rest w.e.f. 1.6.1999 to 15.7.1999 and remained absent w.e.f. 16.07.1999 to 29.1 The aforesaid orders were the subject matter of challenge in the writ p At this stage, it would be relevant to take note of the charges framed a 1.99 without information or permission of the competent authority. ARTICLE-II That during the aforesaid period and while functioning in the aforesaid Office the said No. 913284939/CT Sayed A. Ahmad was guilty of committing serious misco nduct in discharge of his duty in his capacity as a member of the force under se ction 11(1) of CRPF Act 1949 in that he failed to inform to the competent author ity regarding his arrest on criminal charge and detention in police custody w.e. f. 25.06.1999 to 29.09.1999 in connection with Dalgaon P.S. Case No. 149/99 unde r section 302/34 of IPC and suppressed the fact of his detention in police custo dy to the competent authority (cid:29). 6.
Legal Reasoning
r an offence under Section 9 or Section 10. 8. It is fairly well-settled position in law that removal is a form of dismissal . This Court in Dattatraya Mahadev Nadkarni (Dr.) v. Municipal Corpn. of Greater Bombay explained that removal and dismissal from service stand on the same foot ing and both bring about termination of service though every termination of serv ice does not amount to removal or dismissal. The only difference between the two is that in the case of dismissal the employee is disqualified from future emplo yment while in the case of removal he is not debarred from getting future employ ment. Therefore, dismissal has more serious consequences in comparison to remova l. In any event, Section 11(1) refers to the Rule made under the Act under which action can be taken. Rule 27 is part of the Rules made under the Act. Rule 27 c learly permits removal by the competent authority. In the instant case the Comma ndant who had passed the order of removal was the competent authority to pass th e order. (cid:29) 12. In view of the judgment of the Apex Court in Ghulam Mohd. Bhat (supra), there is no merit in the submission of Mr. Mahmud that the authorities acted il legally and without jurisdiction in imposing penalty of removal from service whi ch was initiated under Section 11(1) of the Act. It is also necessary to put on record that memorandum of charge dated 16.8.2001 also referred to Rule 27 of the CRPF Rules. The learned counsel for the appellant, though argued that charges were n 13. ot proved, he was unable to show how the finding recorded is perverse. The lear ned counsel, during the course of his argument, did not raise any issue with reg ard to procedural infirmity in the departmental proceeding. Perusal of the judgm ent under appeal also shows that no such plea was advanced. 14. In Mithilesh Singh (supra), the Apex Court stated as follows: (cid:28) We find from the factual position, which is undisputed that the appellant was posted at Taran Taran in Punjab, a terrorist-affected area and was, at the relev ant time, working in the Railway Protection Special Force. Any act of indiscipli ne of such an employee cannot be lightly taken. In Ashok Kumar Singh case the em ployee was a police constable and it was held that an act of indiscipline by suc h a person needs to be dealt with sternly. As noted by the Division Bench of the High Court, penalty of removal from service is statutorily prescribed. It is fo r the employee concerned to show how that penalty was disproportionate to the pr oved charges. No mitigating circumstances has been placed by the appellant to sh ow as to how the punishment could be characterized as disproportionate and/or sh ocking. On the contrary as established in the disciplinary proceedings, the appe llant left the arms and ammunition unguarded and not in any proper custody. This aggravated the aberrations. Therefore, the order of removal from service cannot be faulted. There is no reason to interfere with the orders of the Division Ben ch of the High Court (cid:29). Scope of interference with punishment awarded by a disciplinary 15. authority is very limited and unless the punishment awarded by the disciplinary authority appears to be shockingly disproportionate , the Court cannot interfere with the same as held in B.C.Chaturvedi Vs Union of India and Ors., reported in (1995) 6 SCC 749. In Giriraj (supra), the delinquent had overstayed the leave by 12 days under admittedly compelling circumstances and it is in such circumst ances, the Apex Court had held that a major penalty of dismissal of service was not called for. Similarly, in Sardar Singh(supra), having regard to the allegati on, which was carrying of more than the permitted quota of wine bottles issued f rom the Army Canteen, the Apex Court set aside the punishment of 3(three) months ’ R.I. and dismissal from service and remanded the matter to the Court-Martial to award any of the lesser punishments that could be imposed. In the contextual factual matrix, we do not consider the punishment imposed to be disproportionate . 16. der appeal and accordingly, the writ appeal is dismissed. No cost. In view of the above discussion, we find no infirmity in the judgment un
Arguments
Mr. Mahmud, learned counsel for the appellant has submitted that departm ental enquiry was ordered under Section 11(1) of the Central Reserve Police Forc e Act, 1949, for short, the CRPF Act, 1949 and Rule 27 of the Central Reserve Po lice Force Rules, 1955, for short, the Rules of 1955. Section 11(1) deals with minor punishments and therefore, imposition of penalty by way of removal from se rvice, which is a major penalty, is wholly impermissible in law and on this grou nd alone the order of removal is liable to be set aside. He further submits that there is no dispute that the appellant had sustained bullet injuries which requ ired hospitalization and the materials on record demonstrate that the authoritie s were aware of his hospitalization and therefore, Article-I of the charge to th e effect that he remained absent w.e.f. 16.07.1999 to 29.11.1999 without informa tion or permission of the competent authorities cannot be sustained. It is also submitted that there was no suppression of the fact of his detention in police c ustody as contained in Article-II of the charge. He also submits that in the fac ts and circumstances of the case, imposition of penalty by way of removal from s ervice is grossly disproportionate to the charges and therefore, the same requir es interference at the hands of this Court. In order to buttress his argument, the learned counsel has placed reliance in the following cases: (i) Ex- Naik Sa rdar Singh Vrs. Union of India and Others, reported in (1991)3 SCC 213 and (ii) Union of India and Others Vrs. Giriraj Sharma, reported in (1994) Supp (3) SCC 755. Mr. C Baruah, learned CGC, on the other hand, submits that the charges h 7. aving been proved, the argument of the learned counsel for the appellant that th e penalty imposed is grossely disproportionate is wholly misconceived, inasmuch as, being a member of the disciplined force, appellant’s unauthorized absence fr om duty cannot be viewed lightly. What is more, he was involved in a criminal ca se in which he was arrested and although there were interactions with the author ities, the appellant deliberately withheld and suppressed the fact of his being arrested by the police. In support of his submissions, the learned counsel refe rs to a decision in the case of Mithilesh Singh Vrs. Union of India and Others, reported in (2003) 3 SCC 309. He has further submitted that the Apex Court in th e case of Union of India and Others Vrs. Ghulam Mohd. Bhat, reported in (2005) 1 3 SCC 228 has held that Section 11 of CRPF Act, read with Rule 27 of the CRPF Ru les permit removal from service by the competent authorities. 8. e submissions. We have also perused the materials on record. 9. It will be appropriate to first deal with the contention raised on behal f of the appellant with regard to the scope and ambit of section 11(1) of the CR PF Act. Section 11(1) reads as follows: (cid:29) Minor punishments - (1)The Commandant or any other authority or officer as may be prescribed, may, subject to any rules under this Act, award in lieu of, or i n addition to, suspension or dismissal or any one or more of the following puni shments to any other member of the Force whom he considers to be guilty of disob edience, neglect of duty, or remissness in the discharge of any duty or of other We have heard the learned counsel for the parties and have considered th misconduct in his capacity as a member of the Force, that is to say,- Confinement in the quarter guard for not more than twenty-eight days, wi Reduced in rank; Fine of any amount not exceeding one months’ pay and allowances: Confinement in the quarters, lines or camp for a term not exceeding one (a) (b) (c) month; (d) th or without punishment drill or extra guard, fatigue or other duty; and (e) 10. Perusal of the aforesaid provision shows that the use of the words (cid:28)in lieu of, or in addition to, suspension or dismissal (cid:29)’, appearing in sub-section (1) of Section 11 before clauses (a) to (e) shows that the authorities mentione d therein are empowered to award punishment of dismissal or suspension to the me mber of the Force who is found guilty and in addition to, or in lieu thereof, th e punishment mentioned in clauses (a) to (e) may also be awarded. 11. In paragraphs 7 and 8 of Ghulam Mohd. Bhat (supra) , the Apex Court laid Removal from any office of distinction or special emolument the Force. (cid:29) down as follows: (cid:28)7. It may be noted that Section 9 of the Act mentions serious or heinous offenc es and also prescribes penalty which may be awarded for them. Section 10 deals w ith less heinous offences and clauses (m) thereof shows that absence of a member of the Force without leave or without sufficient cause or overstay without suff icient cause, is also mentioned as less heinous offence and for that also a sent ence of imprisonment is provided. It is, therefore, clear that Section 11 deals with only those minor punishments which may be awarded in a departmental inquiry and a plain reading thereof makes it quite clear that a punishment of dismissal can certainly be awarded thereunder even if the delinquent is not prosecuted fo