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2007 DIGILAW 418 (GAU)

Md. Irfan Ali v. Union of India

2007-06-12

AFTAB H.SAIKIA

body2007
1. Heard Mr. A.M. Mazumdar learned senior counsel assisted by Mr. F.K.R. Ahmed, learned counsel for the petitioner. Also heard Mr. A.K. Bora, learned CGC representing the Union of India and others. 2. The legality and correctness of the order dated 15.9.2004 passed by the appellate authority, i.e., the Deputy Inspector General of Police, Rapid Action Force, Central Reserve Police Force, ('the CRPF') affirming the initial order of dismissal of the petitioner from service vide order dated 14.6.2003 passed by the Commandant of the CRPF has been assailed in this writ petition. 3. The pleaded case of the petitioner expressed in this writ petition supported by an additional affidavit is that while the petitioner was enjoying earned leave with effect from 6.5.2002 to 25.5.2002, unfortunately he fell ill and had to be hospitalised that took long time for his recovery. In such process, he overstayed by at least 5 months beyond his sanctioned leave. Meanwhile, to his utter surprise, a warrant of arrest was issued by the authority, however, the same was not executed. He was, thereafter, informed that he was placed under suspension with effect from 15.11.2002. 4. It is also contended that in the meantime to his misfortune the petitioner lost his minor son on 15.11.2002 for which he had to submit application praying for extension of leave. 5. On consideration of the representation so submitted by the petitioner before the authority, the petitioner's suspension was revoked w.e.f. 4.2.2003, Nevertheless, he could not proceed to the place of posting due to his deteriorated ill health. 6. Sequel to such non-joining in the place of posting after revocation of suspension order, the authority concerned proceeded with the Department proceedings against the petitioner and eventually the petitioner was dismissed from service vide impugned order dated 14.6.2003 passed by the Commandant-104 Bn. RAF, CRPF, Aligarh and the same was served upon him at his home village at Adhikari, P.O. Rajghat under Mangaldoi Police Station in the district of Darrang. 7. RAF, CRPF, Aligarh and the same was served upon him at his home village at Adhikari, P.O. Rajghat under Mangaldoi Police Station in the district of Darrang. 7. Being aggrieved by such dismissal order, the petitioner, preferred the statutory appeal before the appellate authority, i.e., viz., DIG, RAF, CRPF, New Delhi who in turn by impugned order dated 15.9.2004 dismissed the appeal holding that there was no good reasons to interfere with the impugned dismissal order passed by the Commandant-104 RAF, CRPF and the same was passed after giving full opportunity of hearing in a formal departmental enquiry so proceeded against him. 8. Mr. Mazumdar, learned senior counsel assailing both the orders, i.e., the initial order of dismissal and the appellate order affirming the same has vehemently argued that punishment of dismissal against the petitioner is absolutely disproportionate to the offence allegedly committed by the petitioner, i.e., unauthorized absence for the period from 27.5.2002 to 15.8.2002. His clear stand is that though in the initial order dated 14.6.2003 there were three charges levelled against the petitioner as mentioned in the statement of articles which pin-pointedly indicate the unauthorized overstayed leave from 25.7.2002 to 15.8.2002, he was shown to have overstayed leave on previous as many as 6(six) occasions that has been reflected at paragraph 3(j)(2) of the impugned order dated 14.6.2003 though no separate charge was levelled against such alleged unauthorized leave. The learned senior counsel has fairly submitted that instead of punishment of dismissal from service, the petitioner would have been inflicted with any other lesser punishment. The reason for such submission is that admittedly there was no charge against the petitioner to the effect that he failed to discharge his duty with sincerely, honestly and diligently and his unauthorized absence cannot be said to be the act prejudicial to the disciplined force. His only offence was he remained in unauthorized absence and that too due to his own illness plus death of his minor son. Under such circumstances the dismissal of service by the impugned order can be said to be shocking the conscience. 9. Per contra, Mr. Bora, the learned C.G.C. refuting the submissions and contentions advanced by the learned senior counsel, has submitted that the offence committed by the petitioner, being a major offence, the impugned dismissal from service cannot be said to disproportionate to such allegation which were found to be proved. 9. Per contra, Mr. Bora, the learned C.G.C. refuting the submissions and contentions advanced by the learned senior counsel, has submitted that the offence committed by the petitioner, being a major offence, the impugned dismissal from service cannot be said to disproportionate to such allegation which were found to be proved. In order to drive home his submission, learned C.G.C. has referred to provision of sections 10 and 11 of the Central Reserve Police Force Act, 1949 ('the Act') wherein punishment of such nature has been prescribed. 10. Surprisingly, be it noted that no such punishment for dismissal has been prescribed under those cited provision of law under the statute book. 11. It would be necessary to quote the relevant portion of those provisions of law as relied upon by Mr. Bora. "10. Less heinous offences. - Every member of the Force who - (a) ... (m) absent himself without leave, or without sufficient cause overstays leave granted to him ; or shall be punishable with imprisonment for a term which may extend to one year, or with fine which may extend to three months' pay, or with both. 11. Minor punishments. - (1) The Commandant or any other authority or officer as may be prescribed, may, subject to any rules made under this Act, award in lieu of, or in addition to, suspension or dismissal any one 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 of other misconduct in his capacity as a member of the force, ha is to say, - (a) reduction in rank; (b) fine of any amount not exceeding one month's pay and allowance ; (c) Confinement to quarters, lines or camp for a team not exceeding one month ; (d) 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 (e) Removal from any office of distinction or is, special emolument in the Force." 12. An ordinary reading of the above provision of law would go to demonstrate that for absence without leave, or without sufficient cause overstays leave granted cannot literally be said to be an offence for which punishment like dismissal from service can be inflicted. 13. An ordinary reading of the above provision of law would go to demonstrate that for absence without leave, or without sufficient cause overstays leave granted cannot literally be said to be an offence for which punishment like dismissal from service can be inflicted. 13. Section 10 speaks of only punishment of imprisonment which may extend to one year or with a fine which may extend to three months pay or with both. It clearly indicates that there is no provision for dismissal for such offence like remaining absent without leave. On the other hand, under the head of minor punishment as prescribed under section 11, it only indicates about as many as five punishments which are - (a) reduction in rank ; (b) fine of any amount not exceeding one month's pay and allowance; (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 extra guard, fatigue or other duty and (e) Removal from any office of distinction or special emolument in the Force. Nowhere in this provision, dismissal is prescribed as punishment for unauthorized leave. It may fall under the head of "Less heinous offences" under section 10 of the Act. 14. Be that as it may, since departmental proceeding initiated against the petitioner following the procedural law and the findings of the departmental proceeding has also been confirmed by the appellate authority, this court in exercise of power conferred under article 226 of the Constitution of India cannot sit as a court of appeal to find fault with the findings of both the authorities as mentioned above. The impugned finding of guilt against the petitioner is, therefore, not interfered with. 15. Nevertheless, considering the submissions of Mr. Mazumdar, learned senior counsel, the court has now only to delve upon the quantum of punishment. 16. The impugned finding of guilt against the petitioner is, therefore, not interfered with. 15. Nevertheless, considering the submissions of Mr. Mazumdar, learned senior counsel, the court has now only to delve upon the quantum of punishment. 16. Keeping in view the mitigating circumstances as narrated by the petitioner which have also been admitted by the respondents to the effect that he had to over stay due to his serious illness and also due to premature death of his minor son, this court is of the considered view that punishment of dismissal for such unauthorized overstay is shocking the conscience of the court and accordingly the competent authorities is directed to reconsider their decision as regards the quantum of punishment to be inflicted upon the petitioner save and except the dismissal from service. 17. In view of what has been stated, discussed and observed above, this writ petition stands disposed of to the extend indicated above. No costs.