Prem Singh No. 760060941 HC/GD v. Union of India & Anr.

Learned counsel for respondents has, however, supported the order on the ground that since the petitioner has not worked for the said period, he should not be entitled for any benefits. Undisputably services of the petitioner are governed by the provisions of the Act and also Fundamental Rules framed by the Central Government (hereinafter referred to F.R.). Section 9 prescribes offences which are considered to be (cid:147)more heinous offences(cid:148) and Section 10 prescribes offences which are considered to be (cid:147)less heinous offences. Petitioner has been convicted and sentenced for an offence under Section 10(m), which reads as under:- (cid:147)absents himself without leave, or without sufficient cause overstays leave granted to him(cid:148) The prescribed punishment the said offence imprisonment, which may extend to one year, or with fine which may extent to three months(cid:146) pay or with both. In terms of Section 11, Authorised Officer may in lieu of, or in addition to, suspension or dismissal award punishment of reduction in rank; fine of any amount not exceeding one month(cid:146)s pay and allowances; confinement to quarters, lines or camp for a term not exceeding one month; confinement in the quarter-guard for not more than twenty-eight days, with or without punishment drill or extra guard, fatigue or other duty; and removal from any office or distinction or special emolument in the Force. Section 12 empowers the authority to inter alia dismiss and forfeit the pay, allowances and other moneys of a person sentenced to imprisonment. Relevant provisions of Section 13 which deal with deduction of pay and allowances are reproduced as under:- (cid:147)13. Deductions from pay and allowances. (cid:150) The following penal deductions may be made from the pay and allowances of a member of the Force by his company officer, that is to say, - 4 (a) all pay and allowances for every day of absence either on (b) (c) (d) (e) desertion or without leave and for every day of imprisonment awarded by a Criminal court or of confinement awarded under section 11; all pay and allowances for every day whilst he is in custody on a charge for an offence of which he is afterwards convicted; all pay and allowances for every day on which he is in hospital on account of sickness certified by the medical officer attending on him at the hospital to have been caused by an offence committed by him under this Act; all pay and allowances ordered to be forfeited under section 11; and such sum as may be ordered by the Commandant or assistant commandant in order to make good any expenses caused by the member of the Force, or any loss of, or damage or destruction done by him to, any arms, ammunition, equipment, clothing, instrument decorations belonging to the Force or to any buildings or property.(cid:148) It is thus clear that petitioner has been convicted and sentenced for less heinous offence under Section 10(m) of the Act i.e. for remaining absent without leave w.e.f. 9.9.1993 to 25.9.1993. He is sentenced for imprisonment till the rising of the Court only. Importantly no order of any fine as envisaged under Section 11 or forfeiture of pay and allowances etc. as envisaged under Section 12 has been passed against him. Pay and allowances for every day of absence without leave alone can be deducted under Section 13(a) of the Act. In the present case, petitioner is seeking that service benefits be granted with effect from 9.9.1993 till 22.4.2002. In view of specific provisions of Section 13(a) of the Act, petitioner certainly cannot be given any benefit for the period of absence from 9.9.1993 to 25.9.1993 and the 5 order dated 3.5.2002 cannot be faulted at all. For the period between

27.9.1993 and 15.10.1993, which is period of trial and since the petitioner has admitted his guilt and has been convicted and sentenced no fault can also be found with the order treating this period as dies non. Further, for the period between 16.10.1993 to 22.4.2002 the respondents admittedly did not pass any order under Sections 11,12,13 of the Act and relied upon the provisions of F.R. 54-A to treat the said period also as dies non. Order shows that no reasons whatsoever have been assigned by the respondents while passing the impugned order. In the affidavit filed by the respondents, it is clarified that petitioner(cid:146)s case is governed under the provisions of FR 54(1)(a) and (b) and not FR 54-A, which is a typographical mistake. Since the order of dismissal dated 15.10.1993 was set aside by this Court in CWP No.927 of 2004 and respondents also of their own have reinstated the petitioner in service in terms of its order dated 17.4.2002, I am of the considered view that petitioner ought to have been granted some benefits for continuation of service for the said period. Certainly petitioner cannot be faulted for passing of an illegal order of dismissal. He has also not delayed any of the proceedings, on the contrary petitioner was forced to approach this Court, to seek redressal of his grievances. Petitioner was charged and convicted for less heinous offence i.e. absenting without leave and was convicted till the rising of the Court only. No reason whatsoever has been assigned by the respondents in passing the impugned order and even the counter-affidavit is silent, except that the decision to treat the service as dies non has been taken under F.R. 54. The decision in this regard certainly has to be of the respondents, but the same has to be tested on the touchstone of rationality. Petitioner was 6 wrongly dismissed out of service for no fault of his. In fact the respondents can be solely held responsible for the same Petitioner could not attend the office due to illegal orders passed by the respondents. However, it is not in dispute that petitioner has been convicted and sentenced to imprisonment. Certainly, the respondents could have taken a harsh view against the petitioner while reviewing its order of dismissal and reinstating the petitioner. Nothing in the Act prohibited the respondents from again dismissing the petitioner from service. Admittedly, petitioner has not worked for the period in question. Therefore, in my view interests of justice would be met if it is directed that petitioner be held entitled for 50% of salary for the said period and for the purpose of seniority and pensionary benefits he would be deemed to be in service with effect from 16.10.1993 itself. Learned counsel for the respondents submitted that there is alternate equitable remedy available with the petitioner by way of an appeal under Rule 28 of the Central Reserve Police Rules, 1955. The same is, however, disputed by the counsel for the petitioner. Be that as it may, since the matter was admitted on 30.4.2003 and pending hearing before this Hon(cid:146)ble Court, in the facts and circumstances of the case I am not inclined to go into this question in view of the fact that petitioner has approached this Court not once but twice and left the same open. The writ petition is being decided on merits. For the foregoing reasons, the writ petition is partly allowed in the aforesaid terms and the impugned order dated 26.10.2002 is quashed. However, there shall be no order as to costs. 16th July, 2007 (C) (Sanjay Karol) Judge