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1989 DIGILAW 11 (ALL)

Giri Raj Sharma v. Union of India

1989-01-03

H.C.MITTAL, S.D.AGARWAL

body1989
JUDGMENT S.D. Agarwal, J. - This is a petition under Article 226 of the Constitution of India. 2. The petitioner was appointed as a constable fitter in the Central Reserve Police Force. At the relevant time, he was posted in Rampur. The petitioner was asked to proceed to E. M. E. Centre, Bhopal, to undergo Basic Electrician Course under the army commencing from 15 November 1982 to 15 November 1983. The petitioner joined the course at Bhopal. While he was undergoing training, on 30 November 1982, the petitioner received a telegram from his mother intimating that the condition of the petitioner's eldest sister was very serious and consequently, the petitioner applied for 15 days' casual leave to the O. C. Training Company, E. M. E Centre, Bhopal. Ten days' leave was granted to him from 1 December 1982 to 10 December 1982. 3. The condition of the petitioner's sister deteriorated and, consequently, the petitioner went to the Commandant at Rampur to seek extension of his leave. The Commandant at Rampur expressed his inability to extend the leave and asked the petitioner to write to the B. M. E. Centre, Bhopal, for extension of leave with an oral assurance that he would also request the E. M, R Centre for extension of leave. Before expiry of leave, on 10 December 1982, the petitioner, on 7 December 1982, sent a telegram for extension of leave for twelve days more from 11 December 1982 to 22 December 1982. The petitioner also sent an application by registered post on 8 December 1982, along with a medical certificate and the recommendation of a doctor for extension of hip leave. This application was, however, rejected by the E. M. E. Centre at Bhopal. In view of the fact that the application was rejected, the petitioner, ultimately joined the post after the receipt of the telegram. He joined on 22 December 1982, and thereafter continued to attend the course. 4. On 13 January 1983, rather an unusual Incident occurred inasmuch-as the petitioner's pregnant wife alongwith a minor daughter came to Bhopal as the petitioner's wife and daughter had been turned out of the house. Both the wife and the daughter were made to stay outside the camp temporarily and no accommodation was available. 4. On 13 January 1983, rather an unusual Incident occurred inasmuch-as the petitioner's pregnant wife alongwith a minor daughter came to Bhopal as the petitioner's wife and daughter had been turned out of the house. Both the wife and the daughter were made to stay outside the camp temporarily and no accommodation was available. The Officer Commanding Training intimated the petitioner that the family is not permitted at the E. M. E. Centre and he asked the petitioner to move an application explaining his difficulty and praying that, if possible, the petitioner be returned to the unit in the circumstances of the case. The petitioner was given the permission to return to the unit on 20 January 1983, and. thereafter, the petitioner reported to his Unit at Rampur on 22 January 1983. 5. The petitioner continued to work in Rampur when on 25 March 1983, he was served with a charge-sheet in regard to the period of his absence at the E. M. E. Training Centre at Bhopal. 6. A counter-affidavit has been filed on behalf of the Union of India by Sri Suresh Chandra who is a Deputy Superintendent of Police, Central Reserve Police Force in Rampur. The facts stated by the petitioner in the petitioner, mentioned above, have not been denied specifically in the counter. affidavit. 7. The charges which have been framed against the petitioner, are as under : " I. That the said No. 720170158 Ct./Ftr. Girl Raj Sharma while functioning as constable fitter on Basic Electrical Course at 3 E. M. E. Centre Bhopal, from 15 November 1982 to 20 January 1983, committed misconduct in his capacity as a member of the force under S. 11(l) of the Central Reserve Police Force Act, 1949, in that he overstayed 10 days casual leave granted to him from 1 December 1982 to 10 December 1982 by 12 days' from 11 December 1982, to 22 December 1982, without any authority or permission. II. That during the aforesaid period and while functioning in the aforesaid office, the said No. 720170158 Ct./Ftr. Girl Raj Sharma was guilty of misconduct in his capacity as a member of the force under S. 11(1) of the Central Reserve Police Force Act, 1949, in that he while undergoing the Basic Electrical Course at 3 E M. E. Centre, Bhopal, withdrew from the course at his own will without prior permission from the department. III. Girl Raj Sharma was guilty of misconduct in his capacity as a member of the force under S. 11(1) of the Central Reserve Police Force Act, 1949, in that he while undergoing the Basic Electrical Course at 3 E M. E. Centre, Bhopal, withdrew from the course at his own will without prior permission from the department. III. That during the aforesaid period and while functioning in the aforesaid office, the said No. 720170158 Ct./Ftr. Girl Raj Sharma was guilty of disobedience of orders in that he was ordered to undergo Basic Electrical Course at 31. M. E. Centre, Bhopal, from 15 November 1982. to 15 November 1983, but he did not complete the course and reported back to this headquarters against the orders ." 8. After the charge-sheet was issued to the petitioner, an enquiry was held against the petitioner. In the departmental enquiry it was held that all the charges against the petitioner had been established. He pleaded guilty. Ultimately by an order, dated 7 May 1983, the petitioner was dismissed from service. The petitioner, thereafter, filed an appeal against the said order of dismissal. The appeal was also dismissed by an order, dated 24 October 1983. The petitioner, thereafter, filed a revision against the appellate order. The revision was dismissed by the revisional authority by an order, dated 7 May 1984. The petitioner has now challenged the orders, dated 7 May 1983, 24 October 19 83 and 7 May 1984, by means of the present petition. 9. We have beard the learned counsel for the petitioner and the learned Standing Counsel for the Union of India. . 10. Learned counsel for the petitioner has raised two contentions before us. His first contention is that the charges have been framed against the petitioner under S. (11)(1) of the Central Reserve Police Force Act. 1949 (hereinafter referred to as the Act). Under S. 11 of the Act, only minor punishments can be awarded, which have been specified in the said sub-section. No order for dismissal could have been passed by the authorities and, as such, the submission is that the order dismissing the petitioner is wholly without jurisdiction. the second submission of the learned counsel for the petitioner,is that he did not plead guilty of the charges. No order for dismissal could have been passed by the authorities and, as such, the submission is that the order dismissing the petitioner is wholly without jurisdiction. the second submission of the learned counsel for the petitioner,is that he did not plead guilty of the charges. In fact his statement was only a conditional statement that there was no intention on his part to disobey the order and consequently, the entire proceedings held against him *without holding an enquiry are vitiated in law. 11. Section 11(I) of the Act reads as under : "11 (1). The Commandant or any other authority or officer as may be prescribed, may, subject to any rules made under the Act, award in lieu of, or in addition to suspension or dismissal any ore or more of the following punishments to any member of the force whom he considers to be guilty of disobedience, neglect of duty or remissness in the discharge of any duty or of other 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 and allowances ; (c) confinement to quarters, lines or camp for a term not exceeding one month ; (d) confinement in the quarter-guard for not more than twenty eight days with or without punishment drill or earth guard, fatigue or other duty ; and (e) removal from any office of distinction or special emolument in the force." 12. From a reading of S. 11(t) of the Act, it is apparent that only the punishments specified in Sub-sec. (1) of S. (1I) of the Act could have been awarded to a person against whom an enquiry is instituted under S. 11(1) of the Act. the punishments do not include a punishment by way of dismissal. In the instant case, it is not disputed that the enquiry was conducted under S. 11(1) of the Act. That was for a minor punishment. In the circumstances, it is apparent that the authorities could not have dismissed the petitioner on the basis of a charge-sheet issued under S. 11(t) of the Act. The petitioner has rightly submitted that the order of dismissal passed against him is wholly -without jurisdiction. The first submission made by the learned counsel for the petitioner is in our opinion, is well founded. 13. The petitioner has rightly submitted that the order of dismissal passed against him is wholly -without jurisdiction. The first submission made by the learned counsel for the petitioner is in our opinion, is well founded. 13. In regard to the second submission in Fail. 16 of the petition, it has been categorically stated that the question which has been asked by the petitioner was "do you plead guilty or not guilty." The petitioner gave the following answer : " I plead guilty of the article of charges framed against me. However, I wish to submit that I did not commit the offence wilfully but under compulsion of unexpected circumstances which made me helpless." 14. From a reading of the answer given by the petitioner, it is apparent that what the petitioner intended to mean was that though he admitted that be could not complete the course in the E. M. E. Centre at Bhopal, but it was because of unexpected circumstances. His statement cannot possibly t e construed to be an unequivocal acceptance of the charges framed against him. It was only a conditional acceptance. In our opinion, the petitioner gave a straight forward answer to the question put to him, as it was the petitioner's own case that he could not complete the course due to the special circumstances which he has enumerated in the petition filed in this Court, which have not been denied by the respondents. In view of this factual position, in our opinion, the action taken against the petitioner without holding a proper enquiry is also vitiated in law and the second submission of the lea, red counsellor the petitioner is also well founded. 15. In view of the above, we allow the petition, quash the orders, dated 7 May 1983, 24 October 1983 and 7 May 1984. The petitioner will be entitled to and shall be reinstated with all monetary and service benefits. Parties are directed to bear their own costs.