Judgment · High Court · 2012

A counter affidavit has been filed by the DIGP, GC, CRPF, Guwahati on be 3. half of all the respondents. It has been averred by the respondents that the pet itioner on being appointed as constable (GD) in the Force, reported to 183 BN on 16.01.2006 and his basic training started at Lidhran Camp at Jalandhar w.e.f. 2 3.01.2006. On 16.02.2006, the petitioner deserted the camp without taking leave or prior permission of the competent authority. To this effect, an FIR was lodge d on 17.02.2006 with Kartarpur P.S. (Jalandhar) vide letter No.D.11-1/06-ADJT/18

#3. Further contentions of the respondent is that even after lapse of more than 5 0 (fifty) days from the date of issuance of letter dated 21.02.2006 (vide Annexu re-C to the writ petition), the petitioner did not report for joining his duty a nd therefore his service was terminated under Sub-Rule (1) of Rule 5 of the 1965 Rules. It has been further contended that the petitioner never reported or comp lained to anybody about his illness or depression while he was undergoing traini ng. Had the petitioner reported his illness which he was allegedly suffering fro m, he would have been provided treatment at CRPF Hospital at GC, CRPF, Jalandhar . It has also been contended by the respondents that the story of petitioner’s s uffering from illness is not believable, more so, when he undertook four days lo ng journey on his own to reach home from Jalandhar. While acknowledging receipt of the telegram and a medical certificate in respect of the petitioner’s illness issued by the SMCH advising him to take rest for 30(thirty) days, the responden ts contended that even after expiry of 30(thirty) days, the petitioner did not r eport for duty nor did he submit medical certificate to the authority concerned. Further contention of the respondent is that the petitioner served CRPF only fo r a period of 1(one) month and payment of Risk Fund Contribution deducted throug h EDP sum comes to Rs.150/- (Rupees one hundred and fifty) only and the Risk Fun d Forms has already been sent to the petitioner for filling up the same for draw al of Rs.150/- only. The respondent urged that the writ petition has been filed after lapse of more than 2(two) years from the date of termination of the servic es of the petitioner and the same is devoid of merit.

#4. The petitioner has filed an affidavit-in-reply controverting the content ions of the respondents so made in their affidavit-in-opposition. The petitioner stated in his reply affidavit that it has been one of the terms and conditions of his offer of appointment that his services would be governed by CRPF Act, 194 9 and the Rules 1955. However, the respondents have failed to justify their reco urse to Sub-Rule 1 of Rule 5 of the 1965 Rules. Apart from that the petitioner c ontends that the respondents have jumped on to a conclusion not to believe the f act of petitioner’s suffering from illness without holding any enquiry. Since th e impugned termination of his services is necessarily punitive one, the provisio ns of 1965 Rules are not applicable in his case.

#5. I have heard Mr. R Mazumdar, learned counsel appearing for the petitione r. Also heard Mr. B Pathak, learned Central Govt. counsel, appearing for the res pondents.

#6. During the course of hearing, Mr. Mazumdar, learned counsel appearing fo r the petitioner has strenuously urged that the respondents are estopped from ta king recourse to the provisions of 1965 Rules, inasmuch as, it has been one of t he terms and conditions of the petitioner’s appointment as stipulated by the res pondents themselves that petitioner will be governed under CRPF Act, 1949 and th e Rule 1955 framed thereunder. It has been urged by Mr. Mazumdar, that since the impugned order of termination is stigmatic and punitive one, recourse to 1965 R ules by the respondent is illegal. Mr. Mazumdar, further contended that the resp ondent’s refusal to believe the facts pertaining to petitioner’s suffering from illness and treatment is not founded by reasonableness and judicious application of mind.

#7. Per contra, Mr. Pathak, learned Central Govt. counsel has submitted that there is nothing to interfere with the impugned order of termination in view of the fact that the petitioner deserted the Force on his own and remained absent in duty unauthorizedly till termination of his services though he was served wit h an order dated 21.02.2006 (Annexure-C) to report for duty. Apart from that, th e petitioner has approached this Court after lapse of a period of more than 2(tw o) years from the date of his termination from services. Therefore, learned coun sel for the respondents submits that the order of termination may not be interfe red with taking into consideration facts and circumstances of the case and to di smiss the writ petition.

#8. Upon hearing the rival contentions of the learned counsel appearing for the parties, two questions arise for adjudication by this Court viz., (i) whethe r the impugned termination of service is a stigmatic and punitive one (ii) wheth er the respondent authority has illegally terminated the services of the petitio ner by invoking the provisions of 1965 Rules.

#9. The services of the petitioner has been terminated by the impugned order dated 07.04.2006 (Annexure G) basically on two grounds - (i) desertion (ii) una uthorized absence. It is an admitted position that the services of the petitioner is govern 10. ed by the CRPF Act, 1949 and CRPF Rules 1955 as it appears from the conditional offer of appointment order dated 29.12.2005 (Annexure-A).

#11. AIR 1999 SC 983 Dipti Prakash Banerjee Vs. S.N. Bose National Centre fo Mr. Mazumdar, learned counsel for the petitioner has referred to various decisions of the Apex Court as well as of this Court. In support of his submiss ion, on the point of termination of probationer on allegations, learned counsel has relied upon the following decisions:- (i) r Basic Sciences, Calcutta and Others. (ii) iences and Another. (2010) 8 SCC 220 Union of India Vs. Mahaveer C. Singvi. (iii) Judgment and Order dated 21.05.2007 passed by this Court in WP(C) No. 97 (iv) 4/2003, (constable Shesh Nath Vs. Union of India & Ors.) which has been upheld b y the Division Bench of this Court vide Judgment and Order dated 06.05.2010 pass ed in WA No. 307/2008. (2002) 1 SCC 520 Pavendra Narayan Verma Vs. Sanjay Gandhi PGI Medical Sc

#12. On meticulous examination of the other decisions referred to and relied upon by the learned counsel for the petitioner, I have found that the ratio laid down in the case of Dipti Prakash Banerjee (supra) has been reiterated by the Apex Court in its subsequent decisions viz; Pavendra Narayan (supra) and Mahavee r Singvi (supra). This Court also strictly adhered to the ratio laid down by the Apex Court in Dipti Prakash Banerjee’s (supra) case in Shesh Nath’s case and he nce, I feel that discussion of the subsequent decisions of the Apex Court as wel l as of this Court in detail is not necessary to determine as to whether the imp ugned order of the case in hand is a punitive/stigmatic one or simpliciter. The Court may, therefore, usefully notice the decisions of the Apex Court in the cas e of Dipti Prakash Banerjee (supra). In the case of Dipti Prakash Banerjee (supra) while answering the questi 13. on as to in what circumstances the termination of a probationer’s service can be said to be founded on misconduct and in what circumstances could it be said tha t the allegations were only the motive, the Apex Court held in paragraphs 21 and 22 of Dipti Prakash (supra) as thus :