Alex Stephen v. The Inspector General of Police Central Reserve Police Force 8th Sector, Hyderabad – 34 & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 10.07.2009CORAM:THE HONOURABLE MRS. JUSTICE PRABHA SRIDEVANandTHE HONOURABLE MR. JUSTICE C.T.SELVAMWrit Appeal No.1741 of 20041. The Inspector General of Police Central Reserve Police Force 8th Sector, Hyderabad – 34.2. The Deputy Inspector General of Police Central Reserve Police Force Avadi, Madras.3. The Commandant 58th Battalion Central Reserve Police Force 56, A.P.O. .. Appellants/Respondentsvs. Alex Stephen.. Respondent/PetitionerWrit Appeal against the order dated 27.06.2003 passed in WritPetition No.17502 of 1995 on the file of this Court.Petition filed under Article 226 of the constitution of India,to issue a writ of Certiorarified Mandamus calling for the recordscomprised in the proceeding of the third respondent in office orderNo.VIII-9/93-58/EC/II dt. 29.7.1993, order No.R.III-14/93 EC.1dt.21.1.1994 passed by the 2nd respondent and that of the firstrespondent in order No.R.XIII-15/94-Adm.I dt.18.8.94 and quash theproceedings of the Respondents dt. 29.7.1993, 21.1.94 and 18.8.94respectively and consequently directing the respondents herein tore-instate the petitioner in service with all attendant benefits.For Appellants : Mr.B.Santhakumar Sr. Panel Counsel for Central Govt.For Respondent : Mr.Rathina Asokan--- https://hcservices.ecourts.gov.in/hcservices/ Judgment(Judgment of the Court was delivered by PRABHA SRIDEVAN,J.)For overstayal of leave, the respondent was awarded thepunishment of dismissal. The appellate authority and the revisionalauthority confirmed the order of dismissal. The learned SingleJudge was of the opinion that the appellate authority and therevisional authority had not applied their mind, but had merely re-produced the ultimate conclusion and therefore, set aside the orderof punishment, against which, this writ appeal has been filed.2. The respondent joined the Central Reserve Police Force underSports Quota on 02.12.1985 as Lence Naik. The misconduct for whichhe had been imposed the punishment in question was illegaloverstayal between 05.03.1993 and 26.06.1993. According to him, hehad received a message that his mother was seriously ill in January1993. Therefore, he applied for 18 days casual leave, which wassanctioned with effect from 15.02.1993 to 04.03.1993. He shouldhave reported to duty on 05.03.1993. Due to domestic problem, hereported to duty only on 29.06.1993, resulting in 114 days ofabsence. An enquiry was conducted, during which he admitted that hehad overstayed. He gave certain reasons for the unavoidableoverstayal. The authorities were not inclined to accept it andawarded him the punishment of dismissal from service. As statedearlier, the appeal and the revision were dismissed.3. The learned counsel appearing for the appellants submittedthat it may not be correct to say that the appellate authority hadnot given any reason for confirming the order of dismissal and thatbefore the learned Single Judge, the entire contents of theappellate authority's order was not placed and this may be thereason for his conclusion. He has therefore enclosed in the typed-set of papers the entire order passed by the appellate authority,who is the Deputy Inspector General, Central Reserve Police Forceand the order is dated 21.01.1994. He read out the order and showedthat against every submission made by the respondent, the appellateauthority had given his finding and in conclusion had held that theappeal was devoid of merit. Learned counsel submitted that therevisional authority had only to examine whether the appellateauthority's order was correct and while confirming the appellateorder, it is not necessary for the revisional authority to givedetailed reasons, especially when the appellate authority had givenelaborate reasons for his decision. Learned counsel also submittedthat this Force being a Disciplined Force, unauthorised overstayalespecially for 114 days cannot be counted lightly and relied on thedecision of the Supreme Court in Union of India v. Ghulam Mohd. Bhat[(2005) 13 SCC 228], where for absence without sanctioned leave for https://hcservices.ecourts.gov.in/hcservices/ 300 days, the Supreme Court considering the scope and ambit ofSection 11 of the Central Reserve Police Force Act (hereinafterreferred to as "the Act") and Rule 27 of the Central Reserve PoliceForce Rules (hereinafter referred to as "the Rules"), came to theconclusion that the order of dismissal from service cannot be faultat. In all fairness, the learned counsel also placed before us thedecision of the Supreme Court in State (Union of India) v. Ram Saran[(2003) 12 SCC 578], where the Supreme Court had considered thescope of Section 10(m) of the Act, which dealt with absence withoutleave and where lesser punishment had been awarded. The learnedcounsel also produced before us the entire file relating to thisissue. The unreported judgment of this Court dated 02.12.2008passed in Writ Appeal No.1819 of 2004 was also produced before us.4. The learned counsel for the respondent submitted that if theorder of the appellate authority is seen, it would clearly show thatthe appellate authority had examined the contents of the appeal andthe comments offered by the Commandant and after extracting this,had concluded that there was no procedural flaw in conducting theenquiry and therefore, the order of the learned Single Judge did notwarrant any interference. Without prejudice to the abovesubmission, the learned counsel submitted that when explanation hasbeen given for his overstayal, this Court shall consider a lesserpunishment than dismissal. According to the learned counsel, thecircumstances were such that the respondent could not come away fromhis home town earlier than he did and the order of dismissal fromservice especially after 16 years of service is totallydisproportionate to the misconduct.5. The Central Reserve Police Force Act, 1949 and CentralReserve Police Force Rules 1955 have been produced before us.Section 10 of the Act, which deals with "Less Heinous Offences",reads as follows:"10. Every member of the Force who:-(a) to (l) ...(m) absents himself without leave, or withoutsufficient cause overstays leave granted to him; orSection 11 of the Act deals with Minor Punishments,which reads as follows:11(1) The Commandant or any other authority orOfficer as may be prescribed, may, subject to any rulesmade under this Act, award in lieu of, or in additionto, suspension or dismissal any one or more of thefollowing punishments to any member of the Force whom heconsiders to be guilty of disobedience, neglect of dutyor remissness in the discharge of any duty or of other https://hcservices.ecourts.gov.in/hcservices/ misconduct in his capacity as a member of the Force,that is to say:-(a) reduction in rank;(b) fine of any amount not exceeding one month's pay andallowances;(c) confinement to quarters, lines or camp for a termnot exceeding one month;(d) confinement in the quarter-guard for not more thantwenty eight days, with or without punishment drill orextra guard, fatigue or other duty; and(e) removal from any office of distinction or specialemolument in the ForceRule 27 of the Rules: Procedure for the Award ofPunishments:(a) The Punishments shown as items 1 to 11 in column 2of the Table below may be inflicted on non-gazettedofficers and men of the various ranks shown in each ofthe headings of columns 3 to 6, by the authorities namedbelow such headings under the conditions mentioned incolumn 7: (GSR – 631 dt. 27.8.83)TABLESl. Punishment Subedar Sub Others Consts Remarks (Inspector) Inspector except & enro- Const& lled enrolled follow- followers. wers. ---------------------------------------------------------------------------1 2 3 4 5 6 71. Dismissal or DIGP DIGP Comdt. Comdt. from the Force.2. Reduction to a lower DIGP DIGP Comdt. Comdt. Time-scale of pay, grade. post or service.3. Reduction to a lower stage DIGP DIGP Comdt. Comdt. To be in the time scale of pay inflic- for a specified period ted after4. Compulsory retirement DIGP DIGP Comdt. Comdt. Depa- ment-5. Fine of any amount DIGP DIGP Comdt. Comdt al not exceeding one enqu- month's pay and iry allowances. (S.No. 1to7) https://hcservices.ecourts.gov.in/hcservices/

6. Confinement in the - -- Comdt Quarter guard exceeding seven days but not more than twenty eight days with or without punishment drill of extra guard fatigue or other duty.7. Stoppage of increment DIGP DIGP Comdt. Comdt. 8. Removal from any DIGP DIGP Comdt. Comdt. Office of distinction or special emolument in the Force 9. Censure Comdt. Comdt. Asstt. A.Comdt. Comdt. or Coy or Coy Comdr. Comdr. 10. Confinement to Quarter Guard for - - Comdt. not more than seven days with or without punishment or extra- guard fatigue or other duty. 11. Confinement to quarters lines, - - Comdt. may be camp, punishment inflicted drill, fatigue duties etc. without a for a term not excee- formal ding one month. depart- (GSR-75 G/1 26.1.80) ment enquiry (S.No.8 to 11)Note:-When the post of Deputy Inspector General remainsunfilled for a period of over one month at a time theCommandant shall exercise the powers of punishing theSubedars (Inspectors) and Sub Inspectors except the powersof ordering dismissal or removal from the Force.Note:-2 When the post of Commandant remains unfilled for aperiod of over one month at a time consequent on theincumbent proceeding on leave or otherwise, the AssistantCommandant shall exercise the powers of punishment vested inthe Commandant, except the powers of ordering dismissal orremoval from the Force.(sub rule (a) and table substituted vide GSR 47 dated https://hcservices.ecourts.gov.in/hcservices/

5.1.67. GSR 75 dated 141.80and GSR 631 date 10.8.83)Explanation:-Dismissal of a member of the Force precludeshim from being re-employed in Government service, whileremoval of any such member from the Force shall not be dis-qualification for any future employment (other than anemployment in the Central Reserve Police Force) under theGovernment. 6. The file relating to this matter shows that before theappellate authority, the Department had given parawise comments andwe find on a comparison of the parawise comments with the orderpassed by the appellate authority, that the appellate authority haddealt with submissions of the appellant one by one and given hisfinding thereafter. Therefore, each paragraph actually deals withthe submission of the appellant and the finding of the appellateauthority. Paragraph 2 deals with the reason for overstayal and thefinding of the appellate authority that the reason given was nottenable. Paragraph 3 deals with the respondent's sending a telegramand the finding of the appellate authority is that it is notaccepted and that he had received a letter from the departmentdirecting him to report for duty and he should have been done soimmediately. Paragraph 4 deals with the respondent's plea that hereported to duty on 26.06.1993, but he was not permitted to joinduty. This is dealt with by the appellate authority holding that anenquiry was held to enquire into the charges and the appellant hadpleaded guilty and the charges had been proved and punishment hadbeen imposed. In the same way, each paragraph deals with thesubmissions made by the respondent and the findings of the appellateauthority. In fact, we find that though the appeal had been filedout of time, yet to do justice, the appellate authority hadentertained the appeal. So, we find no error or injustice orarbitrariness in the approach of the appellate authority. He hadgiven reasons for his conclusion and he had held that the ordersalready passed by the third appellant did not warrant interference.Against this, a revision is filed and the submission made by thelearned counsel for the appellants that once detail reasons aregiven by the appellate authority, while confirming, the revisionalauthority need not give detail reasons, is accepted.7. Now, we go into the question of punishment. Before that welook into the decisions pointed out by the learned counsel for theappellants. In State (Union of India) v. Ram Saran (cited supra), aConstable did not join duty after expiry of leave. A complaint waslodged and in terms of Section 10(m) of the Act, he was sentenced toundergo imprisonment for three months. The Supreme Court held that"keeping in view the essentiality of the force and imminent andever-alert situation in which with high sense of morale and duty- https://hcservices.ecourts.gov.in/hcservices/ consciousness the member of this service is expected to demonstrateat all times, a serious view of the same is being taken." TheSupreme Court then dealt with the punishment to be imposed under theAct for various offences as defined in Sections 9 and 10 of the Act,and held as follows:"12. Residual question is what would be an appropriatesentence. It is not disputed and rather fairly concededthat for a person in a disciplined service like CRPF, anyact of indiscipline deserves adequate and stringentpunishment under the Act. In terms of Section 10(m) anemployee who absents himself without leave or withoutsufficient cause overstays leave granted to him can bepunished with imprisonment for a term which may extend toone year or with fine which may extend to three months' payor with both. The offence has been treated as one of "lessheinous offences". More heinous offences are provided inSection 9. The Assistant Commandant has found theexplanation given by the respondent to be not acceptable.Therefore, he has been rightly held to have committed aless heinous offence. Taking note of the relevant aspects,we feel the fine of two months' pay which the respondentwas drawing at the time when the proceedings were notinitiated would meet the ends of justice by altering thepunishment, we are not belittling the gravity of offence,but, in our view deterrent punishment must be restored towhen such absence is resorted to avoid and evadeundertaking a testing or trying venture or deploymentessential at any given point of time, and not as a routinein the normal course. The appeal is allowed to the extentindicated above."8. In Union of India v. Ghulam Mohd. Bhat (cited supra), aConstable in CRPF overstayed for 315 days beyond sanctioned leave.The learned Single Judge held that since the Constable was proceededin terms of Section 10(m) of the Act read with Rule 27 of the Rules,the order of removal is without jurisdiction and that 10(m) of theAct only provided for minor punishment and did not provide forpunishment of removal from service. Therefore, the Supreme Courtdealt with the scope and ambit of Section 11 and Rule 27. TheSupreme Court observing that undisputedly overstay withoutsanctioned leave is dealt with in Section 10(m) of the Act, whichrefers to lesser offence, held as follows:"6.The use of the words "in lieu of, or in additionto, suspension or dismissal", appearing in sub-section (1)of Section 11 before clauses (a) to (e) shows that theauthorities mentioned therein are empowered to awardpunishment of dismissal or suspension to the member of the https://hcservices.ecourts.gov.in/hcservices/ Force who is found guilty and in addition to, or in lieuthereof, the punishment mentioned in clauses (a) to (e)may also be awarded.7.It may be noted that Section 9 of the Actmentions serious or heinous offences and also prescribespenalty which may be awarded for them. Section 10 dealswith less heinous offences and clause (m) thereof showsthat absence of a member of the Force without leave orwithout sufficient cause or overstay without sufficientcause, is also mentioned as less heinous offence and forthat also a sentence of imprisonment is provided. It is,therefore, clear that Section 11 deals with only thoseminor punishments which may be awarded in a departmentalinquiry and a plain reading thereof makes it quite clearthat a punishment of dismissal can certainly be awardedthereunder even if the delinquent is not prosecuted for anoffence under Section 9 or Section 10.8. ...In any event, Section 11(1) refers to theRules made under the Act under which action can be taken.Rule 27 is part of the Rules made under the Act. Rule 27clearly permits removal by the competent authority. Inthe instant case the Commandant who had passed the orderof removal was the competent authority to pass the order. In conclusion, the Supreme Court held that in the instant case, theoverstayal was for 300 days and without any justifiable reason andtherefore, the order of removal from service was not interfered withby the Supreme Court. 9. In Writ Appeal No.1819 of 2004, the Head Constable had infact removed two official radio communications without priorpermission from the competent authority. He was removed fromservice. Against that, Writ Petition No.18675 of 1997 was filed.Learned Single Judge held that though the act amounts to misconduct,the punishment of removal from service was disproportionate to thedelinquent and therefore remanded the matter to the disciplinaryauthority for fresh consideration. Against that the authoritiesfiled an appeal. A Division Bench confirmed the order of thelearned Single Judge.10. In this matter, we find that the misconduct was proved. Hehad overstayed and he had also admitted the overstayal. Theappellate authority had considered his case and confirmed the orderof dismissal. The judgments of the Supreme Court referred to above,would show that if the punishment was disproportionate to themisconduct, it is possible for us to modify the punishment to renderjustice. The reason given by the respondent for his overstayal isthat when he went to Kerala, he could not report to duty on datebecause one Meenakumari with whom he was in love had become pregnant https://hcservices.ecourts.gov.in/hcservices/ and since both of them belonged to different religions, there wassome compulsion from both sides. After performance of the marriage,a registered marriage was effected on 27.3.1993 because of the factthat the respondent and his bride belonged to different religions.He has specifically stated that even after the matter was performed,he was prevented from leaving his place because of the hostileattitude of the relatives of both parties. He has also stated thatthere have been attempts on his life. He has produced the marriagecertificate. Therefore, it is indisputable that there was amarriage between the respondent, who is a Christian and oneMeenakumari, who is a Hindu. We cannot ignore the social conditionsprevailing in our country, especially when the married couplebelonged to two different religions or even two different castes andthat there is often violence.11. It is his case that on 18.03.1993, he had sent a telegramfor extension of his leave for a further period of two months witheffect from 04.03.1993. This telegram was not received by theauthorities. However, during the enquiry he had produced a xeroxcopy of the receipt issued from the Department of Telecommunicationand this is found in the file also. 12. In these circumstances, we feel that the punishment ofdismissal from service is disproportionate to the misconduct, whichis overstayal of leave for 114 days. We are quite conscious of whatthe Supreme Court is held in the two decisions referred to aboveregarding the discipline that must be maintained in a service likeCentral Reserve Police Force. But, this is not a case as in Unionof India v. Ghulam Mohd. Bhat (cited supra) where he was absent for300 days without any justification. In this case, he has givenreasons and an attempt appears to have been made by the respondentto get sanction for leave in March 1993. At the same time, we alsofeel that he cannot be just awarded a fine of two months' pay as wasgiven in State (Union of India) v. Ram Saran (cited supra). Thatwould be letting him off too lightly when we take into account theseriousness of the misconduct. In fact, we considered whether tosend it back to the authorities for deciding the quantum ofpunishment after observing that dismissal would be disproportionateto the misconduct committed considering the extenuatingcircumstances as explained by the respondent. But, since therespondent has already been facing these proceedings and theconsequential litigation for 16 years, we are of the opinion thatfollowing the decision of the Supreme Court in Union of India v.Ghulam Mohd. Bhat, we will consider Section 11 of the Act and Rule27 of the Rules and impose a punishment that would be justifiablefor the misconduct committed by the respondent. We hope therespondent will not commit this misconduct in future and thispunishment should be a deterrent to him. We set aside the order ofthe learned Single Judge and while doing so, we modify the https://hcservices.ecourts.gov.in/hcservices/ punishment to reduction in rank to Constable in lieu of dismissal.The appeal is therefore allowed accordingly. No costs.Consequently, WAMP.No.3262 of 2004 is closed.Sd/Asst.Registrar/true copy/Sub Asst.Registrar ATRTo1. The Inspector General of Police Central Reserve Police Force 8th Sector, Hyderabad – 34.2. The Deputy Inspector General of Police Central Reserve Police Force Avadi, Madras.3. The Commandant 58th Battalion Central Reserve Police Force 56, A.P.O.+1cc to Mr.Rathina Asohan, Advocate Sr 30612+1cc to Mr.B.Shantha Kumar, Advocate Sr 30546PUR(CO)km/21.7.W.A.No.1741 of 2004