High Court · 2009

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 20.01.2009CORAMTHE HONOURABLE MR.JUSTICE D.MURUGESANANDTHE HONOURABLE MR.JUSTICE M.SATHYANARAYANANW.A.No.2989 of 20041. Commandant 110 Battalion Central Reserve Police Force Poonamallee Chennai 600 0562. Commandant 110 Battalion Central Reserve Police Force Kohima, Nagaland3. Deputy Inspector General of Police Central Reserve Police Force Bangalore-644. Inspector General of Police S/Sector, Central Reserve Police Force Hyderabad 500 034..Appellants-Vs-Harisingh..Respondent Appeal filed under Clause 15 of the Letters Patent against theorder dated 24.03.2003 made in W.P.No.12946 of 2000. Petitionpresented to this Court under Article 226 of the Constitution ofIndia to issue a Writ of Certiorari calling for the records of DeputyInspector of Police, CRPF, Bangalore, the third respondent herein inNo.P.VIII-1/98-KW.DA.I dated 31/8/99 as confirmed by the Inspector atPolice,CRPF, Hyderabad, the fourth respondent herein in No.R.XIII29/99 Admn.I dated 16.2.2000For Appellants:: Mrs.R.Maheswari, SCGSCFor Respondent:: Mr.V.GangatharanJUDGMENT (Judgment of the Court was delivered by D.MURUGESAN, J.)This writ appeal is at the instance of the official respondentsin the writ petition. The respondent was enlisted in the CentralReserve Police Force on 7.12.1969 as a Constable. He was promoted as https://hcservices.ecourts.gov.in/hcservices/ Head Constable on 16.8.96. While he was working in 110 Battalion,C.R.P.F., Kohima, Nagaland, a verification was made as to his date ofbirth. After verification, a charge sheet dated 25.4.96 was issuedstating that he was found to have altered his date of birth in theeducational certificate as 3.5.1950 instead of 3.5.1953 with intentto get himself enlisted. After the receipt of the explanation, adepartmental enquiry was conducted and as the charge had been foundto be proved, he was imposed a penalty of withholding of oneincrement for a period of one year by the orders dated 16.8.96. Thesaid penalty was effected and thereafter the respondent was alsotransferred to Poonamallee. While he was serving in Poonamallee, hewas issued with the show cause notice dated 2.7.99 from the DeputyInspector General of Police, C.R.P.F., Bangalore, the third appellantpurportedly in exercise of the power under Rule 29(b) of the CentralReserve Police Force Rules, 1955 (for short, "the Rules"). By thatshow cause notice, a tentative conclusion was arrived at forreviewing the penalty imposed on the respondent and for the proposedenhancement of penalty into one of removal from service. A replydated 26.7.99 was filed by the respondent, but the same was notaccepted by the order dated 31.8.99 and the penalty of withholding ofone increment for a period of one year imposed on 16.8.96 wasmodified into one of removal from service. 2. As against the said order, the respondent preferred an appealbefore the Inspector General of Police, C.R.P.F., Hyderabad, thefourth appellant and the same was rejected by the order dated16.2.2000. Aggrieved by the above orders, the respondent approachedthis Court by way of the writ petition and by the order under appeal,the writ petition was allowed on the ground that there is no power ofrevisionary jurisdiction beyond a period of 30 days. The learnedJudge, however, taking into consideration that the respondent hadbeen found guilty and he had also not rendered any duty from the dateof removal from service, has held that the respondent would not beentitled to any arrears of salary and he should be reinstatedforthwith and would be entitled to future salary on reinstatement.This proposition is put in issue in this appeal.3. Mrs.R.Maheswari, learned Senior Central Government StandingCounsel for the appellants has submitted that inasmuch as theprovision of Rule 29(d) of the Rules stipulates that the DirectorGeneral or the Inspector General or the Deputy Inspector General maycall for the records of award of any punishment and confirm, enhance,modify or annul the same, or make or direct further investigation tobe made before passing such orders, the power of revision is vestedin the authority and therefore, it cannot be held that the authorityhas no revisionary jurisdiction. The only condition for exercise ofthe said power is that before any enhancement of punishment isproposed, the delinquent officer should be given an opportunity toshow cause either orally or in writing as to why the punishmentshould not be enhanced. Inasmuch as the respondent was givenopportunity to show cause for the proposed enhancement of punishment,the proviso has been complied with and therefore, the learned Judgehad erred in holding that the revisionary jurisdiction cannot beexercised beyond a period of 30 days, as contemplated under Rule 28(e) of the said Rules. She has not advanced any arguments on merit,except by drawing our attention to paragraph-14 of the counter https://hcservices.ecourts.gov.in/hcservices/ affidavit, where it has been stated that for the proved misconduct ofalteration of the date of birth, the punishment of removal ordismissal from service must alone be imposed. She would also submitthat as the charge is proved, the learned Judge ought not to haveinterfered with the order of the revisional authority andaccordingly, the order under appeal is liable to be set aside.4. Per contra, Mr.V.Gangatharan, learned counsel for therespondent has submitted that inasmuch as there is no power for therevisional authority to enhance the punishment beyond a period of 30days, the order questioned in the writ petition is liable to be setaside, which has been rightly done by the learned Judge. In fact thelearned Judge had taken note of the fact that inasmuch as the chargeis proved, he has denied the benefit of backwages and has onlydirected reinstatement. Such an order requires no interference.5. We have considered the rival contentions carefully. Fordisposal of the rival contentions, Rules 28 & 29 are required to beextracted and they read thus:"28.Appeal.--(a) Every subordinate officer orevery officer of any other rank below him includingan enrolled follower against whom an order underserial numbers 1 to 7 of the table in rule 27 orunder Cls.(d) and (e) of Sec.13 is passed isentitled to prefer one appeal against such order tothe Inspector General; if the original order waspassed by Deputy Inspector General and to the DeputyInspector General; if the original order was passedby the Commandant.(b) No appeal shall lie against an order by thecompetent authority inflicting any of thepunishments mentioned in:(1) Serial Nos.8 to 11 of the Table in rule 27;(2) Clauses (a), (b) and (c) of Sec.13;(3) Against an order discharging recruit beforethe termination of his period of training.(c) Every appeal preferred under these rulesshall contain all material statements and argumentsrelied upon by the person preferring the appeal. Itshall contain no disrespectful or improper languageor irrelevant allegations and it shall be completein itself. Petitions or appeals filed by members ofthe Force are not chargeable with stamp duty.Copies of other documents filed with the appealshall be stamped under Sec.6 of the Court Fees Act,1870, unless they have to be stamped under Art.24of Sch.1 of the Indian Stamp Act, 1899.(d) Every appeal, whether the appellant isstill in the Force or not, shall be preferred https://hcservices.ecourts.gov.in/hcservices/ through the Commandant and shall not be sent directto the appellate authority.(e) An appeal which is not filed within 30 daysof the date of the original order, exclusive of thetime taken to obtain a copy of the order or record,shall be barred by limitation:Provided the appellant authority may entertaintime barred appeal if deemed fit. (f) The Commandant may withhold an appeal tothe Inspector General or to the Deputy InspectorGeneral in cases:(1) Where under these rules does no appeallies.(2) Where the appeal does not comply with theprovisions of sub-rules (c), (d) or (e) above.(3) Where it is a further appeal presentedafter a final decision has been given by thecompetent appellate authority and no new facts havebeen brought out necessitating reconsideration ofthe case:Provided that in every case in which an appealis withheld the person preferring the appeal shallbe informed of the fact together with brief reasonsthere for;(g) No appeal shall lie against an orderwithholding of an appeal by a competent authority:Provided that in cases of failure to complywith the conditions stated in sub-rule (c) or (d)above, the appeal shall not be withheld if it ispreferred again in the prescribed form in conformitywith the rules and is not time barred.(h) A quarterly statement of all appealswithheld with brief reasons in respect of eachappeal shall be furnished by the Commandant to theDeputy Inspector General.29. Revision.--(a) A member of the Force whoseappeal has been rejected by a competent authoritymay prefer petition for revision to the nextSuperior Authority. The power of revision may beexercised only when in consequence of some materialirregularity, there has been injustice ormiscarriage of justice or fresh evidence isdisclosed.(b) The procedure prescribed for appeals under https://hcservices.ecourts.gov.in/hcservices/ sub-rules (c) to (g) of rule 28 shall apply mutatismutandis to petitions for revision.(c) The next superior authority while passingorders on a revision petition may at its discretionenhance punishment:Provided that before enhancing the punishmentthe accused shall be given an opportunity to showcause why his punishment should not be enhanced:Provided further that an order enhancing thepunishment shall, for the purpose of appeal, betreated as an original order except when the samehas been passed by the Government in which case nofurther appeal shall lie, and an appeal against suchan order shall lie.(i) to the Inspector General, if the same hasbeen passed by the Deputy Inspector General; and(ii) to the Director General or the AdditionalDirector General if the same has been passed by theInspector General; and(iii) to the Central Government, if the samehas been passed by the Director General or theAdditional Director General.(d) The Director General or the InspectorGeneral or the Deputy Inspector General may call forthe records of award of any punishment and confirm,enhance, modify or annul the same, or make or directfurther investigation to be made before passing suchorders:Provided that in a case in which it is proposedto enhance punishment, the accused shall be given anopportunity to show cause either orally or inwriting as to why his punishment should not beenhanced."6. It is true that as and when an order of punishment isimposed, an appeal could be preferred to the competent authority interms of Rule 28(a) & (b) of the Rules. However, in terms of Rule 28(e), such an appeal shall be barred by limitation if not filed within30 days of the date of the original order, exclusive of the timetaken to obtain a copy of the order or record. By virtue of theproviso to the said Rule, an appeal filed beyond a period of 30 daysalso could be entertained by the appellate authority. By the saidRule, of course, an officer who is aggrieved by an order ofpunishment is entitled to prefer appeal within a period of 30 daysand in case if the appeal could not be preferred within a period of30 days, the officer is entitled to satisfy the appellate authorityseeking for condonation of delay in such case with sufficient cause.If the appellate authority is satisfied with the sufficient cause, hecan entertain such an appeal. The question whether the said provision https://hcservices.ecourts.gov.in/hcservices/ is also applicable to a revisional authority while he exercises thepower under Rule 29(d) of the Rules should be considered. By thesaid Rule, the procedure prescribed for appeals under sub-rules (c)to (g) shall apply mutatis mutandis to petitions for revision.7. It is argued by the learned counsel for the appellants thatthough Rule 29 refers to the procedure enumerated under sub-rules (c)to (g) of Rule 28 should be followed for revisions, the same shallnot be applicable in view of the specific provision of Rule 29(d),which does not prohibit the revisional authority to exercise the suomotu power to revise the order. We are not convinced with the saidreason. A plain reading of Rule 29(b) would show that the procedurecontemplated under Rule 28(e) relating to the filing of the appealwithin a period of 30 days is also applicable for revisions, as thesaid Rule refers to "petitions for revision." The said Rule cannotbe restricted only for a petition filed for revision by the personaggrieved of the orders in the appeal, and it has to be extended tothe power of the Director General or the Inspector General, as thecase may be, under Rule 29(d) of the Rules as well. Of course, underRule 29(d), a power is conferred on the authority to suo motu callfor the records of award of any punishment and confirm, modify orannul the same including to enhance such punishment, but it cannot bewithout any limitation, as such an interpretation would not be inconformity with the service jurisprudence. When the Rules prescribe aspecific limitation for the delinquent officer, who has been foundguilty, either to prefer appeal or the consequent revision, theunfettered power on the authorities to revise an order of punishmentand also the enhancement of punishment cannot be without a restrictedperiod.8. It is also argued that even under Rule 28(e), in the eventthe appellate authority is satisfied he may entertain the appealbeyond a period of 30 days and therefore the revisional authority isalso entitled to exercise the power beyond the period of 30 days. Itis true that the revisional authority could suo motu revise an orderof punishment in exercise of the power under Rule 29(d), if he issatisfied that it could not be exercised within 30 days forsufficient reasons. Nevertheless, the exercise of such power cannotbe arbitrary and cannot be without any limitation as to the period.Therefore, while holding that the revisional authority has the powerunder Rule 29(d) of the Rules to revise an order of the subordinateofficer and enhance the punishment taking into consideration that thepunishment was disproportionate to the charges levelled and proved,nevertheless, he has to apply his mind to the fact as to why suchexercise of power under Rule 29(d) could not be made within areasonable period. In the absence of such application of mind andsufficient cause, an order passed in exercise of the revisional powercannot be sustained, as it would give an unfettered power to therevisional authority to revise an order at any point of time as hemay like. The intention of the legislature cannot be such to defeatthe very purpose of the power conferred on either the appellateauthority or the revisional authority.9. In this context, we may usefully refer to the judgment of theSupreme Court in State of Gujarat v. Patel Raghav Natha, (1969) 2 SCC187. In the said judgment, the Supreme Court considered the power of https://hcservices.ecourts.gov.in/hcservices/ the Commissioner to revise an order made under Section 65 of theBombay Land Revenue Code, 1879 in respect of the conversion of theagricultural land and had observed in paragraphs-11 & 12 as follows:-"11. The question arises whether theCommissioner can revise an order made under Section65 at any time. It is true that there is no periodof limitation prescribed under Section 211, but itseems to us plain that this power must be exercisedin reasonable time and the length of the reasonabletime must be determined by the facts of the caseand the nature of the order which is being revised.12. It seems to us that Section 65 itselfindicates the length of the reasonable time withinwhich the Commissioner must act under Section 211.Under Section 65 of the Code if the Collector doesnot inform the applicant of his decision on theapplication within a period of three months thepermission applied for shall be deemed to have beengranted. This section shows that a period of threemonths is considered ample for the Collector tomake up his mind and beyond that the legislaturethinks that the matter is so urgent that permissionshall be deemed to have been granted. ReadingSections 211 and 65 together it seems to us thatthe Commissioner must exercise his revisionalpowers within a few months of the order of theCollector. This is reasonable time because afterthe grant of the permission for building purposesthe occupant is likely to spend money on startingbuilding operations at least within a few monthsfrom the date of the permission. In this case theCommissioner set aside the order of the Collectoron 12.10.1961 i.e.more than a year after the order,and it seems to us that this order was passed toolate."10. The aforesaid judgment was quoted with approval in thesubsequent judgment in Pune Municipal Corporation v. State ofMaharashtra and others, (2007) 5 SCC 211. In paragraph-31 of thejudgment, the Supreme Court had observed that "the revisionalauthority was duty bound to take into account the length of delay,intervening circumstances and subsequent events and to considerwhether the power should have been exercised or not." The SupremeCourt further found that "in the event such exercise had not beenundertaken, the order suffers from legal infirmity and must bequashed." 11. On the facts of this case, the original authority passed theorder imposing punishment of withholding of one increment for aperiod of one year on 16.8.96. The revisional authority had issuedthe show cause notice only on 2.7.99. In view of the order dated16.8.96 imposing a penalty of withholding of one increment for aperiod of one year, the respondent had suffered the said punishmentand in fact he has not even chosen to question the said order. The https://hcservices.ecourts.gov.in/hcservices/ order of the revisional authority does not indicate the applicationof mind as to why the revisional power has not been invoked orexercised at least for a period of nearly three years i.e., between16.8.96 and 2.7.99. In the absence of any application of mind as tothe duty of the revisional authority to take into consideration ofthe length of delay and the intervening circumstances, in ouropinion, the order of the revisional authority suffers from legalinfirmity and consequently is liable to be set aside. In that viewof the matter, we find no grounds to interfere with the order of thelearned single Judge. 12. It is also argued by the learned counsel for the appellantsthat once the charge is proved, in the wake of the directions of theGovernment of India dated 19.5.93 published in C.R.P.F. GazetteNo.69/93, the punishment of removal or dismissal could alone beimposed in case of proved misconduct of alteration of the date ofbirth and therefore the learned Judge ought not to have directed forreinstatement. We are not inclined to go into the merits of thepunishment as such in view of the fact that exercise of the power ofrevision after nearly a period of three years cannot be approved, inthe absence of any explanation by the revisional authority showingthe application of mind to the said aspect, particularly, as to theintervening circumstance, namely, that the respondent had sufferedthe punishment without questioning the same. While we approve thepower of the revisional authority to suo motu revise the orders ofthe original authority in exercise of the power under Rule 29(d) ofthe Rules, we hold that such power should be exercised within areasonable period and even in case such power is exercised beyond aperiod of 30 days, the proper reason for exercise of the power shouldbe indicated in the order and failure of the revisional authority toindicate such reasons would by itself be a ground to set aside thesaid order, as the order suffers from legal infirmity. 13. For the foregoing reasons, the writ appeal is dismissed Itis seen that the order in the writ petition has been stayed by thisCourt on 7.10.2004 and by virtue of the stay order, the respondenthas not been reinstated into service. In the meanwhile, therespondent had also attained the age of superannuation. Hence thequestion of reinstatement does not arise. However, in view of ourorder, the respondent is entitled to the arrears of his salary forthe period from the date of the order in the writ petition worked outon the basis of last drawn wages and the period of service shall betaken into consideration for the purpose of pension. Consequently,W.A.M.P.No.5552 of 2004 is closed. No costs.Sd/Asst.Registrar/true copy/Sub Asst.Registrarss https://hcservices.ecourts.gov.in/hcservices/ To1. The Commandant, 110 Battalion Central Reserve Police Force Poonamallee Chennai 600 0562. The Commandant 110 Battalion Central Reserve Police Force Kohima Nagaland3. The Deputy Inspector General of Police Central Reserve Police Force Bangalore-644. The Inspector General of Police S/Sector, Central Reserve Police Force Hyderabad 500 034.1 CC To Mr.V.Gangatharan, Advocate, SR NO.22501 CC To Ms.R.Maheswari, Advocate, SR NO.2091 W.A.No.2989 of 2004kk(co)pmk/4.2.2009.