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2009 DIGILAW 415 (JK)

Union Of India v. Showkat Ali Chechi

2009-08-25

BARIN GHOSH, MOHAMMAD YAQOOB MIR

body2009
1. The petitioner-respondent, a Constable in the Central Reserve Police Force (CRPF), was removed from service with effect from December 1, 1996 by an order dated November 25, 1996. This order dated November 25, 1996 was challenged in 1998 by filing a writ petition. By the judgment and order under appeal dated July 18, 2005, the order of removal dated November 25, 1996 has been quashed on the ground that since the said order was passed under Section 11(1) of the Central Reserve Police Force Act, 1949 (hereinafter referred to as `the Act), the same is bad as the said Section does not authorise passing of an order of dismissal / removal. Being aggrieved thereby, the present appeal has been filed. 2. We have heard learned counsel for the appellants as well as learned counsel for the writ-petitioner-respondent. 3. It was contended by the petitioner-respondent that if we take the view that Section 11(1) of the Act authorises awarding of a punishment of removal, the writ petitioner having urged two substantial contentions, which had not been gone in by the Writ Court, the same must be taken note of by this Court. It was submitted that there had been failure of principles of natural justice, inasmuch as charge sheet was not served, nor an opportunity to deal with the charge was given. It was also contended that the writ petitioner being a resident of the State of J&K and governed by the provisions of the Constitution of the State and he being a government employee, his employment could not be brought to an end without issuing a second show cause notice. Learned counsel for the petitioner-respondent submitted that in addition to that, punishment of dismissal for two days absence is too harsh and as Honble Supreme Court has dealt with and interfered with such harsh punishment orders, this Court too should interfere with the same. We shall deal with these contentions after we have dealt with the principal contention raised in the appeal, i. e., the learned Single Judge incorrectly proceeded to hold that the departmental enquiry under Section 11(1) of the Act cannot result in an order of removal. 4. Section 11 of the Act has a caption to the effect `minor punishments. We feel that this caption has created many a misconception in mind. 4. Section 11 of the Act has a caption to the effect `minor punishments. We feel that this caption has created many a misconception in mind. It is well settled in law that a caption does not control the substance of the Section. Ignoring the caption, if Sub-Section (1) of Section 11 of the Act is read, the same to the extent we are concerned would be as follows: "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" 5. The sub-section (1) of Section 11, therefore, grants discretion to award, in lieu of, or in addition to, suspension or dismissal, any one or more of the punishments mentioned in the said Sub-section. In other words, Sub-section (1) of Section 11 recognises that it is permissible to pass an order of suspension or an order of dismissal and, accordingly, either in lieu thereof or in addition thereto, punishments, as mentioned in the said Sub-section, may be awarded. 6. Dismissal has been dealt with in Section 12 of the Act where it has been provided that sentence under the Act, resulting in imprisonment, may bring about dismissal from service of the person so sentenced. The power of sentencing has been provided in Sections 9 and 10 of the Act. While Section 9 deals with more heinous offences, Section 10 deals with less heinous offences. Commission of any such offence may result in punishment by way of imprisonment and, as aforesaid, Section 12 enables dismissal on such sentence being awarded. As a result, since dismissal has been dealt with in Section 12 of the Act, and as the caption to Section 11 is `minor punishments, it may be construed that in lieu of, or in addition to, dismissal, which may be awarded under Section 12 of the Act, punishments, as mentioned in Sub-Section (1) of Section 11 of the Act, may be awarded. However, a closer look at Sub-section (1) of Section 11 of the Act suggests that subject to any rules made under the Act suspension or dismissal may be awarded. However, a closer look at Sub-section (1) of Section 11 of the Act suggests that subject to any rules made under the Act suspension or dismissal may be awarded. One is, therefore, required to look at the rules to see whether there is any provision for suspension or dismissal apart from what has been provided in Section 12 of the Act. While Rule 27(a) deals with suspension, which has not been dealt with in the Act, apart from what has been stated in Sub-section (1) of Section 11 of the Act, dismissal has been dealt with under Rule 27 of the Rules. In Rule 27 it has been provided that the punishments shown thereunder may be inflicted on non-gazetted officials and men of the ranks shown in each of the headings and columns 3 to 6 by authorities named in the table under the conditions mentioned in column 7 thereof. It has been provided that punishment of dismissal or removal from the Force may be inflicted after formal departmental enquiry. Therefore, the power to dismiss, as recognised in Sub-section (1) of Section 11 of the Act, exercise whereof is subject to rules made under the Act, and Rule 27 having specifically provided the manner of exercise of such power, it goes without saying, that a Constable under the Act can be dismissed or removed from service, but only after formal departmental enquiry. This view was expressed by a Division Bench of Rajasthan High Court in Shyamsingh v. Deputy Inspector General of Police, reported in AIR 1965 Rajasthan 140. The view so expressed by the Division Bench of the Rajasthan High Court was accepted by a learned Single Judge of this Court in Deen Dayal Yadav v. The Deputy Inspector General of Police, reported in 1974 Lab. IC 929. The Rajasthan judgment has been noted by the Honble Supreme Court in Union of India v. Giriraj Sharma, reported in AIR 1994 SC 215 without any interference. 7. While the learned Single Judge did not notice the judgment of this Court in Deen Dayal Yadav v. The Deputy Inspector General of Police (supra) he relied upon a Single Bench judgment rendered by the Gowahati High Court in Deep Chand v. Union of India, reported in 2001 (4) SCT 965. 7. While the learned Single Judge did not notice the judgment of this Court in Deen Dayal Yadav v. The Deputy Inspector General of Police (supra) he relied upon a Single Bench judgment rendered by the Gowahati High Court in Deep Chand v. Union of India, reported in 2001 (4) SCT 965. We think, for the reasons indicated above, the views expressed by the learned Single Judge of our High Court, referred to above, is the correct view and the view expressed by the Gowahati High Court in the case referred to above, is not the correct view. The conclusion, therefore, would be that upon concluding a formal departmental enquiry initiated against the writ petitioner-respondent, the writ petitioner could be dismissed or removed from service and such authority has been specifically bestowed by the Act read with the Rule upon the authority who inflicted the punishment impugned in the writ petition. 8. The charge in the disciplinary proceeding was as follows: "That the said No. 871171106 CT/GD Shaukat Ali of HQ/20 Bn, CRPF while functioning as CT in A/20 Bn, CRPF has committed an act of misconduct in his capacity U/S II(1) of CRPF Act, 1949, in that he deserted the Force from Railway Station Jammu on 6/5/96 at 0930 hrs. while coy was under move, while undergoing punishment of confinement to lines without prior permission of the competent authority and without sufficient cause." 9. The said charge itself would suggest that the writ petitioner was in custody on a sentence awarded by appropriate authority against him for an offence earlier committed by him, when the writ petitioner slipped away and left his arrest or confinement. There is, however, no dispute at this stage that the writ petitioner left his arrest of confinement only for two days. While in the writ petition, it has been stated in one breath that there had been failure of compliance of the rules of natural justice, i. e., by not serving the charge sheet upon the writ petitioner giving him an opportunity to file a written reply thereto, subsequent opportunity to defend himself at the enquiry stage, etc., it has been stated in the petition in the same breath that the writ petitioner has signed the proceedings of the enquiry. In a situation of this nature, the allegation of non-compliance of principles of natural justice loses its force. In a situation of this nature, the allegation of non-compliance of principles of natural justice loses its force. It has been stated in the petition that the petitioner was not aware of Hindi, the proceedings of the enquiry were noted down in Hindi and, accordingly, his signature on such proceedings would not make any difference. That the petitioner did not know Hindi and that he protested to the proceedings being recorded in Hindi are also vitiated by his acceptance of the enquiry proceedings under his own signature. 10. No doubt, the writ petitioner has pleaded, which has not been denied, that he is a resident of the State and that the entire action complained of, right from the stage when writ petitioner left his arrest or confinement, took place within this State and, accordingly, in terms of the provisions contained in Section 126 of the Constitution of the State, it was obligatory on the part of the appellant to give to the writ petitioner a second show cause notice and in absence thereof the order of removal being contrary to the provisions of the said Section of the Constitution is not sustainable. However, there is no pleading in the body of the petition that no second show cause notice was given to the petitioner. It is true that Section 126 of the Constriction of the State has bestowed a right in favour of the petitioner, but, unless there is a pleading that the said right has been infringed, benefit of the protection of the right cannot be granted. 11. It was submitted by learned counsel for the writ petitioner that the punishment awarded is disproportionate. Many a judgments have been cited before us by the learned counsel to which we shall refer hereafter. 12. The Act describes leaving arrest or confinement as less heinous offence under Section 10 thereof alongwith absence without leave or over staying leave without sufficient cause. Therefore, the Act brings leaving arrest or confinement on the same platform as that of absence without leave or over staying leave without sufficient cause. 13. In Syed Zaheer Hussain v. Union of India & ors., reported in AIR 1999 SC 3367, there was an unauthorized absence from January 8, 1985 to January 15, 1985 by a person who was working as Sorting Assistant. 13. In Syed Zaheer Hussain v. Union of India & ors., reported in AIR 1999 SC 3367, there was an unauthorized absence from January 8, 1985 to January 15, 1985 by a person who was working as Sorting Assistant. The Honble Supreme Court felt that for such a crime punishment by way of dismissal was too harsh and ordered accordingly. In Union of India v. Giriraj Sharma, reported in AIR 1994 SC 215, the respondent-writ petitioner was deputed to undergo a course as an Electrician. From a reading of the order, it appears that the respondent-petitioner therein was governed by the Central Reserve Police Force Act, 1949. The Honble Supreme Court found on fact that the petitioner-respondent before the Honble Supreme Court, while was on leave, had sent a telegram for extension of leave by twelve days which was rejected, but the respondent-petitioner joined his duty immediately after expiry of 12 days from the date his leave expired and, in that background, felt that an order of dismissal for such overstay is intefereable. 14. Learned counsel for the writ petitioner cited yet another judgment of the Honble Supreme Court rendered in the case of U.P. State Road Transport Corporation v. Mahesh Kumar Mishra & ors., reported in AIR 2000 SC 1151. In that case, the Honble Supreme Court was dealing with the conduct of a Bus Conductor. However, the learned Judges of the Honble Supreme Court were not concerned with an order of dismissal awarded for being absent without leave or for over staying leave or having left arrest or confinement as provided in the said Act. 15. It is true that the aforementioned judgments of the Honble Supreme Court clearly depict that in writ jurisdiction an order of punishment is intefereable on the ground that the punishment awarded is disproportionate to the offence committed. What would be the appropriate punishment would depend upon facts and circumstances of each case. 16. In the judgments referred to above, the beneficiaries thereof were engaged to undertake civilian duties. Even in the case of Union of India v. Giriraj Sharma, though the respondent was governed by the provisions of Central Reserve Police Force Act, 1949, but he was deputed to undergo a course of Electrician when the incident of over staying twelve days after expiry of the leave occurred. 17. Even in the case of Union of India v. Giriraj Sharma, though the respondent was governed by the provisions of Central Reserve Police Force Act, 1949, but he was deputed to undergo a course of Electrician when the incident of over staying twelve days after expiry of the leave occurred. 17. In the case at hand, although leaving arrest or confinement was for two days and such an offence is equated with an offence of absence without leave or over staying of leave without sufficient cause, but the fact remains that in the matter of a disciplined Force, if the decision has been taken to remove and not dismiss a member of such Force on the ground that the member had drastically left his arrest or confinement, it would be difficult for the court of equity to interfere keeping only in view the prospective requirement of discipline of the Force to be maintained. 18. We, accordingly, allow the appeal, set aside the judgment and order under appeal and, at the same time, dismiss the writ petition.