High Court · 2009

2. I have heard Mr AM Mazumdar, Senior Advocate assisted by Mr FKR Ahmed, Advocate for the petitioner and Ms R Borah, learned Central Govt. Standin g Counsel for the respondents.

3. The learned Senior Counsel having limited his challenge only to the penalty imposed contending that having regard to the nature of the charges levelled and proved, the same visibly is disproportionate, it is inessential to delve into the factual details. Suffice it to mention that the petitioner who at the relevant time was a const able (GD) in A/90 Battalion , CRPF, was served a memorandum of charges dated 3.1 0.2006 with the following articles of charge :- (cid:28) ARTICLE-I Whereas No. 991242383 CT/GD M.A. Hazarika of this Unit while fun ctioning as constable (GD) in A/90 Bn. CRPF committed an act of misconduct ion his capacity as a member of he Force U/S 11(1) of CRPF Act ,1949 in that, he was found absent from duty at Morcha No.4 while on 24 hours Guard duty on 25/10.06 without proper permission/sanction of the competent authority which is prejudic ial to good order and discipline of the Force. ARTICLE-II Whereas No.991242383 CT/GD M.A. Hazarika of the Unit while functioning as consta ble(GD) I A/90 Bn. CRPF committed an act of misconduct in his capacity asa membe r of the Force U/S 11(1) of CRPF Act,1949 in that ,he had deserted from camp whi le on active duty on 25/10/06 at about 0900 hours without proper permission/sanc tion of the competent authority and reported back on 26/10/06 at about 1500 hour s, which is prejudicial to good order and discipline of the Force. A disciplinary proceeding under Rule 27 of the Central Reserve Police Force Rule s , 1955(hereafter referred to as the ’Rules’) was thus initiated against him. T he petitioner accordingly submitted his reply and the same not having been consi dered to be satisfactory, the enquiry was proceeded under the above provision o f the Rules. On the culmination of the proceeding, the enquiry report was submit ted on 20.12.2006 returning a finding that the charges levelled against him h ad been proved. The order of removal from service followed. As stated above, the statutory appeal preferred by the petitioner also failed. 4. The respondents in their affidavit in categorical terms have s tated that the departmental proceeding was conducted in accordance with the pres criptions of Rule 27 in which the petitioner was afforded all reasonable opport unities of participating therein. On the basis of the evidence on record which proclaimed that the charges were proved, the disciplinary authority being satisf ied with the gravity of the proved imputations , inflicted the penalty of remova l from service. The respondents have also endorsed the decision of the appellat e authority in dismissing the appeal.

5. Mr Mazumdar though had initially made a faint attempt to conten d that the charges levelled against the petitioner having been drawn with refe rence to Section 11 of the Central Reserve Police Force Act,1949 (hereafter refe rred to as the ’Act’) which contemplates minor punishment and that therefore, the penalty of removal lacks necessary sanction in law , concentrated eventually on the excessive attribute thereof. According to the learned Senior counsel, h aving regard to the nature of the imputations levelled against the petitioner, b y all means, the order of removal from service is shockingly disproportionate an d therefore, it is a fit case for interference therewith in the interest of just ice. In support of his contention, the learned Senior counsel has inter alia pla ced reliance on the decision of the Apex Court in Ram Kishan vs. Union of India and others (1995) 6 SCC 157 and of this Court in No.690523581 Deep Chand vs. Un ion of India ,reported in 2001(2) GLT 97 .

6. The learned Central Govt. Standing Counsel per contra, has urged that as the disciplinary proceeding does not suffer from any illegality , consi dering the fact that the petitioner is a member of a disciplined force, the pro ved charges justify infliction of the penalty of removal from service. According to Ms Borah, the penalty is commensurate with the charges proved and therefore no interference therewith is called for. I have extended due consideration to the rival contentions. The 7. charges levelled against the petitioner in substance, accuse him of unauthorized absence from duties from 0900 hrs of 25.10.2006 to 1500 hrs of 26.10.2006 durin g which he was supposed to be on duty at Morcha No.4 of the Unit. This unauthori zed absence of the petitioner from his guard post has been construed also to be an act of desertion from the camp while on active duty for the said period. A b are reading of the enquiry report reveals that the charges against the petition er have been duly proved on the basis of the evidence adduced by the disciplina ry authority. The petitioner though had made an endeavour in course of the proc eeding to contend that he had taken the verbal permission of PW 2, the said wi tness categorically denied the correctness thereof. The petitioner also did not make any attempt to prove this stand of his.

8. The disciplinary authority on a scrutiny of the materials on record agreed with the findings of the Enquiry Officer and after taking note of the f act that the area where the petitioner’s unit was located was infested with v arious militant outfits concluded that his absence from duty without prior per mission/sanction amounted to grave misconduct. According to the disciplinary authority, retention of the petitioner in that backdrop had the potential of a dversely affecting the discipline of the force . The disciplinary authority bei ng thus satisfied that a stringent punishment is called for, inflicted the penal ty of removal from service.

9. True it is, that the penalty by way of disciplinary measure has t o be essentially proportionate to the charge proved against the concerned delin quent . However, the scope of interference with a disciplinary action would ess entially depend on a range of factors, including the service to which the cha rged officer belongs as well as the post held by him and the duties and responsi bilities attached thereto. The bearing of a relaxed approach in such matters o n the discipline and probity of the concerned service is also of an outmost re levance. If the delinquent officer belongs to a disciplined force of which its credibility dedication and commitment are of paramount importance , normally a court of law would be loathe to lightly interfere with the penalty imposed on a charge of undermining the said essentials. The administrative authority is s upposed to be the best judge of the situation in such an eventuality to decide the penalty. In other words, the yardstick to determine as to whether a penalt y by way of disciplinary measure is disproportionate or not ,would verily depe nd on the nature of the service , post held by the delinquent and the proved misconduct coupled with the cascading effect likely to be generated in the ra nks thereof, if he is let off with a penalty less than that he deserves.

10. The Apex Court in Ram Kishan vs. Union of India and Ors, (1995) 6 S CC 157, was seized with a situation where a constable of the Delhi Police was charged with the misconduct of abusing his superior. The petitioner delinquent officer was dismissed from service on that imputation. The Apex Court noticing t hat though the charge had been proved, the abusive language was not proved con cluded that ,the penalty of dismissal was harsh and disproportionate and the refore, substituted the same by one of stoppage of two increments.

11. A lenient view was taken in the facts of the same kind in the case of Deep Chand(Supra) as well interfering with the major penalty of compu lsory retirement imposed on the petitioner on the charge in indulging of busines s of borrowing and lending money.

12. In the opinion of this Court, considering the nature of the prov ed charges against the petitioner , the authorities cited at the Bar have no re levance in the case in hand. The petitioner at the relevant time was a member of a disciplined force and having been posted at the guard duty , he could not b e expected to leave the same and that too without prior information of/ permis sion from his superior. Though the materials on record do not disclose any unt oward incident during the temporary absence from the post, the very act of aband oning the duty in the estimate of this Court cannot be condoned. Not only the petitioner failed to establish his plea of prior permission of the superior aut hority nor , did he demonstrate any endeavour to contact his unit and to cite th e reason for his delay in returning to duty. The proved charges disclose that the petitioner was absent from the unit for long 30 hours and that too without a ny intimation. The departmental authority on an assessment of the materials on r ecord and all other relevant factors have been of the view that the petitioner is not a fit person to be retained in service and thus inflicted the penalty of removal from service. In the facts and circumstances of the case, this Court is of the view that any interference with the order of penalty would be a retrograd e step qua the orderliness and probity of the Force. Having regard to the limi ted scope of interference with an order of penalty taken by the disciplinary aut hority, in exercise of the power of judicial review, in the opinion of this Cour t, no interference is called for. 13. The petition lacks in substance and is therefore dismissed. No co sts.