High Court · 2012

Learned counsel for the petitioner has drawn attention of this C [7] ourt to Rule 17 of the C.R.P.F Act, 1949, which reads as follows: (cid:28)17.Discharge- Subject to the provisions of the Schedule appended to the Act, an y member of the Force shall at any time before he has completed three months’ se rvice or after the completion of the full period of service for which he is enga ged, be entitled to claim his discharge from the Force by applying to his appoin ting authority through the proper channel. 17-A. Recoveries on resignation and discharge- A member of the Force seeking res ignation under rule 16 or discharge under rule 17 from service shall be require d to refund to the Government a sum equal to three months pay and allowances re ceived by him or her prior to the resignation or discharge, as the case may be, or the cost of training imparted to him or her in the Force, whichever is highe r: Provided that in the case of a member of the force seeking discharge fro m service under rule 17 within the period of three months from the date of enrol ment, the sum equal to three months pay and allowances shall be calculated with reference to three months pay and allowances which would have been received but for discharge: Provided further that a member of the Force tendering resignation of see king discharge from service for accepting a job under the Central or State Gover nments or local bodies, after having been granted cadre clearance for the same, shall not be required to refund the sum as provided hereinabove. (cid:29) [8] Learned counsel for the petitioner submits that the aforesaid pr ovisions have to be read with the Schedule appended to the C.R.P.F Act, 1949, wh ich also reads as follows. (cid:28)THE SCHEDULE RECRUITING ROLL (See Section 5) After you have served in the Force for such period as the Central Government ma y prescribe, you may, at any time when not on active duty, apply for discharge, through the officer to whom you may be subordinate to the Commandant, and you wi ll be granted your discharge after two months, from the date of your application , unless your discharge would cause the vacancies in the Force to exceed one-ten th of the sanctioned strength in which case you shall be bound to remain until this objection is waived or removed. But when on active duty, you shall have no claim to a discharge, and you shall be bound to remain to do your duty until th e necessity for retaining you in the Force ceases when you may make application in the abovementioned manner: Provided that, if you wish to withdraw from the Force, you may submit yo ur resignation at any time before the expiration of the first three months of yo ur service, but not afterwards until the completion of the period prescribed as aforesaid; the Commandant either accept your resignation forthwith or at the end of three months from the date of its receipt: Provided, also, that the Commandant may, if he thinks fit, allow you to resign at any time on your giving three months notice of your wish to do so. & & & & & & & & & & & & Signature of the member of the Force in acknowledgement of the above having bee n read out to him. & & & & & & & & & & & & & & Space for impression of the member’s left thumb to be taken in the presence of t he enrolling officer. & & & & & & & & & & & & &. Signed in my presence after I had ascertained that the candidate understood the purport of what he signed. Place & &.. Date & &.. . (cid:29) or other authorized enrolling officer Commandant, Section 5 of the Act provides that before any person is appointe [9] d to be a member of the Force, the statement contained in the recruiting roll se t out in the Schedule shall be read out and, if necessary, explained to him in p resence of the designated officials, and shall be signed by such person in ackno wledging of having being so read out to him. The Schedule referred to has been r eproduced hereinabove. [10] Learned counsel for the petitioner submits that in terms of the aforesaid Schedule read with Rule 17, any application for discharge can be accep ted only after 2 months when the employee concerned is not on active duty. Howev er, if the employee is on active duty, such discharge application cannot be acce pted until necessity for retaining the applicant in the Forces ceases. According to the petitioner since he was on active duty, such ap plication for discharge could not have been accepted till the authorities find t hat the necessity for retaining in the Forces was no more required. Learned counsel for the petitioner has also drawn attention of t his Court to the circular issued by the Director General, C.R.P.F vide order No . R.XIII-40/90-Admn.II dated 17.05.1990 (Annexure-G) wherein it has been provide d that since in many cases persons without realizing the pitfalls of leaving the service, may seek discharge from service, the authorities before accepting such application for discharge are to explain the problems to such members which may arise on seeking discharge from service. In the said circular it has been state d that even though it was not in the interest to retain unwilling Government ser vant in service, care has to be taken that no one is allowed to proceed on disch arge/voluntary retirement without any compelling reasons. The authority competen t to accept resignation should, therefore, ensure personally that the person see king discharge/voluntary retirement has genuine and compelling reasons to do so. It was also directed that to ensure that, the authority concerned should obtain an undertaking from the individual to the effect that he has been explained in detail about the likely hardships, which he may face in this uncertain and diffi cult economic age after his discharge/voluntary retirement and that such an unde rtaking should be kept on record. In the present case, learned counsel for the petitioner has subm [11] itted that no such counselling was done nor any such undertaking was taken from the petitioner which would go to show that the earlier application submitted by the petitioner for discharge from service was not really voluntary but made unde r oppressive atmosphere created by superior authorities. Learned counsel appearing for the petitioner has also submitted that the fact that 15 days punishment of confinement imposed on the petitioners had not yet expired as it was to expire on 6.9.2004, would clearly show that th e said discharge order dated 28.8.2004 was a manipulated one in order to remove the petitioner from service by taking advantage of his unstable mental condition caused by the harassment by the superior authorities in refusing leave in the c ircumstances as explained above. Learned counsel submits that the aforesaid order of discharge da ted 28.8.2004 was passed in undue haste and also in violation of the guidelines dated 17.5.1990 issued by the Director General, CRPF. [12] The aforesaid guidelines was issued in view of the fact that a l arge number of personnel had proceeded to be discharged from service on their o wn without realising the hardships and subsequent unemployment which would follo w. In view of that, the authorities were directed to deal with such application for discharge carefully and explain to the personnel of such consequential diffi culties which may follow upon discharge from service. To ensure that such applic ations for resignation/discharge from service are genuine and for compelling rea sons, the authorities were directed to obtain an undertaking from the individual concerned to the fact that he had been explained in detail about the likelihood hardships, which he may face in these uncertain and difficult times after his d ischarge/voluntary retirement and such an undertaking is to be kept on record. [13] Learned counsel appearing for the petitioner submits that no suc h counseling was done by the authorities before issuing the aforesaid impugned d ischarge order on 28.8.2004. Furthermore, no such undertaking was obtained from the petitioner to show that the petitioner was indeed explained about the conseq uence of such discharge from service. [14] The respondent No.3 filed an affidavit-in-opposition denying the allegations. Coming more particularly to the pertinent issue regarding applicat ion for discharge and acceptance thereof, the respondents have stated in their a ffidavit-in-opposition that the petitioner had appeared before the DIGP, CRPF, G uwahati, who was visiting the Headquarter at Mathura on 27.8.2004. After hearing his grievance, the DIGP explained to him the likely hardship which he may face in this uncertain and difficult economic situation. The petitioner was also expl ained about the consequence that he may have to face after his discharge. Howeve r, the petitioner was adamant and refused to listen to the advice of the DIGP an d he insisted upon acceptance of his resignation. Accordingly, finding on other alternative, the DIGP, the respondent no.3 advised the petitioner to submit a wr itten application before the Commandant of 53 Bn.CRPF, the respondent no.4, who was the appointing authority of the petitioner. Accordingly, the petitioner subm itted a fresh application on 28.8.2004 seeking discharge from service citing dom estic problems. Accordingly, it has been stated that the action of the authoriti es in issuing the discharge order on 28.8.2004 does not suffer from any irregula rity or illegality and accordingly, the present writ petition is liable to be di smissed. [15] Learned counsel appearing for the respondents also stated that e ven if this Court finds that such undertaking as required under letter/guideline s/instructions dated 17.5.1990 issued by the Director General, CRPF, was not tak en and not kept on record, it cannot have any fatal consequence vis-à-vis the di scharge certificate as it was merely directory and not mandatory. In other words , merely because such an undertaking was not obtained from the petitioner and no t kept on record, such lapse on the part of the authorities would not have the e ffect of invalidating the discharge certificate which otherwise was voluntarily made and duly accepted by the appointing authority. [16] I have heard the learned counsel appearing for the parties. Lear ned counsel appearing for the respondents had produced the records relating to t he aforesaid discharge application filed by the petitioner. [17] A perusal of the provisions of the CRPF Act and Rules and the gu idelines/instructions/circulars issued by the CRPF authorities in this regard wo uld indicate that any application for resignation/ voluntary retirement by a mem ber of the Force is to be dealt with carefully keeping in view the interest of t he individual concerned and also the larger interest of the Force and society. [18] Schedule to the Act, as reproduced above, would clearly indicate that the application for discharge is not to be accepted mechanically merely on the ground that a person has voluntarily applied for discharge. A reading of th e Schedule would show that when not on active duty, an application for discharg e by a member of the Force will be granted after two months from the date of app lication, unless such discharge would cause vacancies in the Force to exceed 1/1 0th of the sanctioned strength. The Schedule also provides that when on active duty, a member sh all have no claim to discharge and shall be bound to remain to the duty until th e necessity for retaining a member in the Force ceased. The aforesaid provision, therefore, makes it very clear that nor mally a member will not be discharged before two months of the application. Seco ndly, even such application for discharge after two months cannot be allowed if it would cause vacancy in the Force to exceed 1/10th of the sanctioned strength. Till such problem is removed or waived, any such application for discharge cann ot be entertained. Thirdly, if one is on active duty, a member cannot be dischar ged till the authorities decide on the necessity for retaining of the member in the Force. [19] The above provisions, therefore, make it abundantly clear that w henever a member makes an application for discharge, the authorities would not g rant discharge before two months and that too, without examining whether such a discharge would lead to more vacancies than 1/10th of the sanctioned strength a nd when on active duty, whether his necessity is required or not. In other word s, there has to be a conscious application of mind on the aforesaid consideratio n regarding the strength of the Force before the authorities decide on any appli cation for discharge. The aforesaid provisions have been made in the larger interest o f the Force so that any such application for discharge does not disturb the opti mal level of functioning of the Force which are enjoined upon to discharge vario us duties of sensitive nature as well as maintaining law and order through out t he country. [20] e, the authorities also have to consider the interest of the member concerned. Apart from considering the interest of the Force as stated abov This is clearly evident from the guidelines /instructions /circular /let ter dated 17.5.1990 issued by the Director General of CRPF enjoining upon all th e competent authorities/ appointing authorities to counsel such members who seek discharge/ resignation from the force of the peril of unemployment and the cons equential hardships one may face after leaving the service. The authorities are directed to advice and counsel such members from taking such an extreme steps of leaving the service. Therefore, to ensure that such advice and counseling takes place genuinely and not to reduce it to a mere formality, it was required that the authorities concerned take an undertaking in writing from the concerned mem ber of having been explained of such eventualities and keep such an undertaking on record. It may not be far fetched to assume that the aforesaid guidelines/ instr uctions/circular/letter was issued not only in the interest of the individual bu t also in the larger interest of the society. It may, perhaps, be seen from this aspect also that when a person traine d in arms, after leaving the service gets confronted with the spectre of unemplo yment and other hardships, may prove to be a serious danger to the society. Ther efore, insistence on adhering to the instruction as laid down in 17.5.1990 canno t be lightly brushed aside as it serves as a preventive measure against any poss ible harm to the individual as well as to the larger interest of the society. [21] Therefore, any application for discharge has to be dealt with by the authorities concerned, from two perspectives; one from the perspective of t he individual and another from the perspective of the Force and the society at large. [22] he issue at hand. Keeping the aforesaid considerations in mind, we shall examine t [23] Skirting the issue raised by the petitioner that the petitioner was asked to submit two blanks papers with his signatures, one of which was ulti mately converted to an application for discharge, we shall proceed to consider w hether the petitioner had indeed voluntarily submitted an application for discha rge. [24] If indeed the petitioner had submitted an application for discha rge on 28.8.2004 as stated by the Respondents, it ought to have been followed up by counselling and advice by the authorities to refrain from taking such step o f resignation from the service and if the petitioner still remained adamant to his stand, an undertaking ought to have been obtained from the petitioner to sho w that the authorities had indeed counselled him from taking such a step and a c opy thereof, ought to have been placed on record. [25] However, a perusal of the records produced before this Court sh ows that there are only two documents available on record preceding the issue of the discharge order dated 28.8.2004, i.e., the forwarding letter containing the application for discharge dated 28.8.2004 stated to have been submitted by the petitioner. In the said forwarding letter dated 28.8.2004, it has been mentione d as follows:- (cid:28)Sir, Please find herewith a discharge Petition submitted by F/No. 911180799 C /GD Gyani Singh by which he has sought discharge from the Force on account of hi s family problems. On an earlier ocassion, he took a personal audience with the DIGP, CRPF, Guwahati (Assam). On that occasion, the letter explained to him in d etails about the severe hardships he would have to face in the event of his disc harge from service. Now, the petition of the Force Member is sent to your office for necessa ry action. Sd/- Illegible

28.8.2004 (cid:29) The aforesaid forwarding letter does not indicate as to when the petitioner had submitted the earlier application for discharge. It also merely says that on ear lier occasion, the petitioner took a personal audience with the DIGP, CRPF, Guwa hati (Assam), on which the DIGP had explained to him in detail about the sufferi ngs/hardships he would have to face in the event of his discharge from service. The said forwarding letter also does not indicate when such personal audience to ok place and also whether the petitioner insisted on submitting his discharge ap plication inspite of such personal audience with the DIGP. There is nothing on r ecord of any prior application submitted by the petitioner which necessitated su ch a counselling. [26] In the affidavit-in-opposition filed by the respondents, it had been stated in para No.13 that the petitioner had appeared before the DIGP on 2 7.8.2004 where the DIGP had explained the likely hardship but the petitioner was adamant and refused to listen to the advice of the DIGP and insisted on accepti ng his resignation. Accordingly, the DIGP advised the petitioner to submit a wri tten application before the Commandant of 53 Bn.CRPF which he did accordingly on

28.8.2004 citing domestic problems which was accepted. [27] It is not understood as to how the aforesaid averments were made in para No.13 of the affidavit-in-opposition in absence of anything on record, as stated above. The record produced before this Court reveals only the said for warding letter dated 28.8.2004 which does not contain any such details as had be en mentioned in Para No.13 of the affidavit-in-opposition. Therefore, this Court is reluctant to take credence to the submission made in para No.13 of the aff idavit-in-opposition filed by the respondent no.3 stating that the petitioner wa s given audience on 27.8.2004 and he was counselled by the DIGP, which he adaman tly refused to listen and insisted on acceptance of his resignation and that hav ing no other alternative, the DIGP had directed the petitioner to submit an appl ication before the respondent no.4. It may be stated that if there were any such counselling on the issue of application for discharge, some application should have preceded such counselling. Neither in the forwarding application, nor in th e records, there is any reference to such an application for discharge submit ted by the petitioner. In this regard, it may be mentioned that the petitioner himself [28] had claimed in the writ petition that he had submitted an application for discha rge from service on 26.8.2004, which, however was rejected by the Commandant sta ting that the application submitted by the petitioner on 26.8.2004 is not writte n in the proper official language and if the petitioner wanted to go on discharg e from service, another application in the proper official language by showing p roper reasons should be submitted and accordingly sent back the application date d 26.8.2004. [29] It is interesting to note that there is no such reference to the application dated 26.8.2004 stated to have been submitted by the petitioner nor the letter dated 27.8.2004 returning the said application either in the forward ing letter dated 28.8.2004 or in the record. Therefore, in the context of veheme nt argument by the petitioner that the petitioner had never submitted applicatio n for discharge from service on 28.8.2004, the failure on the part of the author ities to produce the relevant records showing the circumstances under which the so called application was submitted by the petitioner for discharge from service on 28.8.2004, does not inspire confidence about the genuineness of their stand. The fact that no such undertaking is also in the file creates further doubt on the genuineness of the actions of the authorities in issuing the discharge order on 28.8.2004. Therefore, this Court is of the view that the aforesaid applicat ion dated 28.8.2004 stated to have been filed by the petitioner is suspect and a lso as the authorities have not resorted to the precautionary procedures before accepting such an application for discharge from service, the impugned discharge order dated 28.8.2004 is liable to be interfered with. Further, since the petitioner was on active duty, which was not denied by the respondents, the application for discharge submitted by the petiti oner could not have been accepted till the authorities took a decision regarding the necessity for retaining in service as mentioned in the Schedule to the Act . There is no such reference in the records about such decision being taken by t he authorities. [30] It may be also stated that if the petitioner was not on active d uty, the authorities had to apply their mind as regards the issue of maintaining optimum level of vacancy to the extent of 1/10th of the sanctioned strength in the Force as mentioned in the Schedule to the Act. There is nothing on record to show that the authorities had at all considered this aspect. Therefore, in ab sence of either of the exercises required to be undertaken by the authorities in the case, where the personnel is on active duty or not when on active duty, thi s Court is of the view that the decision of the authorities in issuing the impu gned discharge order dated 28.8.2004 suffers from the vice of non-application of mind. As regards the contention of the learned counsel appearing for t [31] he respondents that the aforesaid guideline/instruction/circular dated 19.5.1990 is not mandatory and violation of such instructions therein would not render t he impugned order illegal, it has to be mentioned that the said guideline/instr uction/circular would have the force of law inasmuch such guideline/instruction/ circular is not repugnant or contrary to any specific provisions of the CRPF Act s and Rules but rather such guideline/instruction/circular has been issued to e ffectuate the provisions of the Acts and Rules. Even otherwise also such guideline/instruction/circular being be neficial not only to the interest of the individual members but also the society at large, cannot be ignored by the authorities. Such guideline/ instruction/cir cular ought to be substantially complied with as otherwise the whole public purp ose for issuing such a guidelines/ instruction/circular would be frustrated. [32] As discussed above, the record or materials available before th is Court do not inspire confidence of this Court to the effect that the petition er was indeed counselled not to take such a step and also that he insisted upon for discharge from service inspite of such advice. In other words, circumstances , as discussed above and records available, do not indicate that the petitioner had submitted an application for discharge from service knowing fully well the c onsequence thereof, and that authorities had applied their mind properly on the issue of the proper maintenance of the strength of the Force, as provided under the Schedule to the Act before the discharge order was issued. [33] On the other hand, if the contention of the Respondents is to be believed, what would transpire is that there was an application filed by the pe titioner for discharge from service (regarding which there is nothing on record) and assuming that after the application was filed on 26.08.2004 and that the petitioner was counselled on 27.08.2004 and as the petitioner was adamant, he su bmitted his application for discharge on 28.08.2004 which was accepted on the sa me day on 28.08.2004 and was discharged on 28.08.2004. It is to be mentioned aga in that there was no written undertaking from the petitioner as required under the guidelines dated 17.09.1990 available in the record, nor the Respondents h ave stated that the same was taken. The aforesaid sequence would reveal that the entire episode of the discharge took place at such a fast pace, which in the facts and circumstan ces as discussed above, does not inspire confidence of this Court to believe it to put a stamp of approval to the actions of the Respondents. Consequently, the aforesaid impugned discharge order dated 28.8. [34] 2004 is liable to be interfered with. As a result, the impugned discharge order dated 28.8.2004 is set aside. The petitioner is directed to be reinstated in ser vice within a period of one month. In view of the fact that the petitioner had n ot rendered any service, the petitioner would not be entitled to back wages upon reinstatement. However, the period from the date of discharge i.e. 28.8.2004 ti ll reinstatement will be deemed to be in regular service for all purposes except for the payment of arrears of salary as stated above. The writ petition is, accordingly, disposed of.