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2010 DIGILAW 1217 (RAJ)

Shish Ram v. Union of India

2010-07-13

MEENA V.GOMBER, NARENDRA KUMAR JAIN

body2010
Hon'ble JAIN, J.—Learned Single Judge, while hearing the writ petition, considered the judgment of the Division Bench of this Court in Shyamsingh vs. Deputy Inspector General of Police, CRP, Ajmer & Ors., AIR 1965 (Raj.) 140 = 1965 RLW 26, and took a view that penalty of dismissal can only be awarded under Section 12 of the Central Reserve Police Force Act, 1949 (hereinafter referred to as `the Act of 1949') and not under Section 11 of the Act of 1949, as held by the Division Bench in Shyamsingh's case. Therefore, he vide his order dated 30.11.2009 directed the Deputy Registrar (Judicial) to place the matter before Hon'ble the Chief Justice to constitute appropriate Bench for reconsideration of Division Bench judgment in Shyamsingh's case (supra). 2. As directed by the learned Single Judge, the Deputy Registrar (Judicial) placed the matter before Hon'ble the Chief Justice, who vide order dated 15.4.2010 constituted our Bench. 3. We have heard the learned counsel for both the parties at length and examined the reasonings given by the learned Single Judge as well as Division Bench of this Court in Shyamsingh's case in the light of Sections 11 and 12 of the Act of 1949. 4. For ready reference, Sections 11 and 12 of the Act of 1949 are reproduced as under:- "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 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 extra guard, fatigue or other duty, and (e) removal from any office of distinction or special emolument in the Force. (2) Any punishment specified in clause (c) or clause (d) of sub-section (1) may be awarded by any gazetted officer when in command of any detachment of the Force away from headquarters provided he is specially authorised in this behalf by the Commandant. (3) The assistant commandant, a company officer or a subordinate officer, not being below the rank of subedar or inspector, commanding a separate detachment or any outpost or in temporary command at the headquarters of the Force, may, without a formal trial, award to any member of the Force who is for the time being subject to his authority any one or more of the following punishments for the commission of any petty offence against discipline which is not otherwise provided for in this Act, or which is not of a sufficiently serious nature to require prosecution before a Criminal Court, that is to say,- (a) confinement for not more than seven days in the quarter-guard or such other place as may be considered suitable, with forfeiture of all pay and allowances during its continuance; (b) punishment drill, or extra-guard, fatigue or other duty, for not more than thirty days, with or without confinement to quarters, lines or camp; (c) censure or severe censure: provided that this punishment may be awarded to a subordinate officer only by the Commandant. (4) A jamadar or sub-inspector who is temporarily in command of a detachment or an outpost may, in like manner and for the commission of any like offence, award to any member of the Force for the time being subject to his authority any of the punishments specified in clause (b) of sub-sec. (3) for not more than fifteen days. 12. Place of imprisonment and liability to dismissal on imprisonment.-(1) Every person sentenced under this Act to imprisonment may be dismissed from the Force, and shall further be liable to forfeiture of pay, allowance and any other moneys due to him, as well as of any medals and decorations received by him." (2) Every such person shall if he is so dismissed, be imprisoned in the prescribed prison, but he is not also dismissed from the Force, he may, if the Court or the Commandant so directs, be confined in the quarter-guard or such other place as the Court or the Commandant may consider suitable." 5. The question for consideration before us is "whether an order of dismissal of any member of the Force can be passed under Section 11 of the Act of 1949 as held by Division Bench in Shymasingh's case or Shyamsingh's case requires reconsideration? 6. The Division Bench of this Court in Shyamsingh's case reproduced Sections 11 and 12 of the Act, in para 6 of the judgment, and opined that "It is, therefore, clear that section 11 deals with only those minor punishments which may be awarded in a departmental inquiry, and a plain reading thereof makes it quite clear that a punishment of dismissal can certainly be awarded thereunder even if the delinquent is not prosecuted for an offence under Section 9 or section 10." The relevant portion of para 6 and paras 7 and 8 of the judgment in Shyamsingh's case are reproduced as under:- "(6).....The perusal of section 12 shows that it enables the authorities concerned to dismiss the convict if he is sentenced under the Act to imprisonment. It further renders him liable to forfeiture of pay, allowance and any other moneys due to him, as well as of any medals and decorations received by him. It is thus clear that the punishment of dismissal under this section may be given to a delinquent in addition to the sentence of imprisonment awarded to him under the law. If the authorities mean to proceed under this section, it will not be necessary to observe the formalities of a regular disciplinary inquiry and action may be taken up after a person's conviction and punishment of imprisonment under the Act. It does not lay down that a person would not be liable to dismissal if he is not convicted and sentenced under the Act. (7) The perusal of Section 11 shows that it deals with minor punishments as compared to the heavier punishment prescribed in the preceding section. It lays down that the Commandant or any other authority or officer, as may be prescribed, may, subject to any rules made under the Act, award any one or more of the punishments to any member of the Force who is found guilty of disobedience, neglect of duty, or remissness in the discharge of his duty or of other misconduct in his capacity as a member of the Force. According to learned counsel for the petitioner, the only punishments which can be awarded under this section are reduction in rank, fine, confinement to quarters and removal from any office of distinction or special emolument in the Force. In our opinion, this interpretation is not correct, because the section says that these punishments may be awarded in lieu of, or in addition to, suspension or dismissal. The use of the words `in lieu of, or in additional to, suspension or dismissal' appearing in sub-section (1) of section 11 before clauses (a) to (e) shows that the authorities mentioned therein are empowered to award punishment of dismissal or suspension to the member of the Force who is found guilty and in addition to, or in lieu thereof, the punishments mentioned in clauses (a) to (e) may also be awarded. (8) It may be further pointed out that section 9 of the Act mentions serious or heinous offences and also prescribes penalty which may be awarded for them. Section 10 deals with less heinous offences and clause (m) thereof shows that absence of a member of the Force without leave or without sufficient cause, or over-stay without sufficient cause, is also mentioned as less heinous offence and for that also a sentence of imprisonment is provided. It is, therefore, clear that section 11 deals with only those minor punishments which may be awarded in a departmental inquiry, and a plain reading thereof makes it quite clear that a punishment of dismissal can certainly be awarded thereunder even if the delinquent is not prosecuted for an offence under section 9 or section 10." 7. The submission of the learned counsel for the petitioner is that the petitioner was served with a charge-sheet under Section 11 and not under Section 12 of the Act of 1949, therefore, the dismissal order of petitioner is per-se illegal. His sole submission is that no person of Force can be dismissed under Section 11 of the Act of 1949 as it deals with minor punishments only, therefore, Shyamsingh's case requires reconsideration and if this Bench takes a different view, then matter is required to be sent to Larger Bench for adjudication of the issue. 8. His sole submission is that no person of Force can be dismissed under Section 11 of the Act of 1949 as it deals with minor punishments only, therefore, Shyamsingh's case requires reconsideration and if this Bench takes a different view, then matter is required to be sent to Larger Bench for adjudication of the issue. 8. The learned Single Judge in his order dated 30.11.2009 has taken a view that under Section 11 of the Act, a person cannot be dismissed from service and only minor punishment can be awarded. The relevant portion of order is reproduced as under:- "As per provisions of Section 12 of the Act on imprisonment a person may be dismissed from the Force. For better appreciation it would be proper to quote Section 12 of the Act which runs as under:- "12. Place of imprisonment and liability to dismissal on imprisonment- x x x x. Thus, it become clear that if any person is sentenced under Section 9 or Section 10 of the Act, he may be dismissed from the Force he may be dismissed from the Force under Section 12 of the Act. Section 11(1) deals with minor punishment, which runs as under:- "11. Minor punishment- xxxxx. Heading of Section 11 of the Act makes it clear that only minor punishments mentioned in Clause (a) to (e) of sub-section (1) can be awarded and that too in lieu of or in addition to suspension or dismissal under Section 12 of the Act. In my view, penalty of dismissal cannot be imposed under Section 11 of the Act and only minor punishments can be awarded either in lieu of dismissal or in addition to dismissal awarded under Section 12 of the Act. Division Bench of this Court in Shyamsingh vs. Deputy Inspector General of Police, CRP, Ajmer & Ors.:AIR 1965 (Raj.) 140 has held in paras No. 7 & 8, which is as under:- "(7) xxxx (8) xxxx. In the aforesaid judgment, Division Bench of this Court has held that a punishment of dismissal can be awarded under Section 11 of the Act even if a delinquent is not prosecuted for an offence under Section 9 or Section 10 of the Act. In the aforesaid judgment, Division Bench of this Court has held that a punishment of dismissal can be awarded under Section 11 of the Act even if a delinquent is not prosecuted for an offence under Section 9 or Section 10 of the Act. I am of the view that penalty of dismissal can be awarded only under Section 12 of the Act, if a person has been sentenced under Section 9 or Section 10 of the Act and penalty of dismissal cannot be awarded under Section 11 of the Act and only minor punishments in lieu of or in addition to penalty of dismissal can be awarded as enumerated in Clause (a) to (e) of sub-section (1) of Section 11 of the Act. Division Bench judgment is binding on Single Bench, but in the light of aforesaid discussions, I am of the view that penalty of dismissal cannot be awarded under Section 11 of the Act and aforesaid judgment requires reconsideration." 9. We have examined the reasonings given by the learned Single Judge as well as the Division Bench in Shyamsingh's case. 10. Learned Single Judge has emphasized much on heading of Section 11and has opined that only minor punishments mentioned in clause (a) to (e) of sub-section 1 can be awarded under Section 11of the Act and that too in lieu of or in addition to suspension of dismissal under Section 12 of the Act. He has further opined that penalty of dismissal cannot be imposed under Section 11 of the Act. 11. Hon'ble Apex Court in M/s. Frick India Ltd. vs. Union of India, AIR 1990 SC 689 , has held that "It is well settled that the headings prefixed to sections or entries cannot control the plain words of the provision, they cannot also be referred to for the purpose of construing the provision when the words used in the provision are clear and unambiguous, nor can they be used for cutting down the plain meaning of words in the provision. Only in the case of ambiguities or doubt the heading or sub-heading may be referred to as an aid in construing the provision, but even in such a case it could not be used for cutting down the wide application of the clear words, used in the provision." 12. Only in the case of ambiguities or doubt the heading or sub-heading may be referred to as an aid in construing the provision, but even in such a case it could not be used for cutting down the wide application of the clear words, used in the provision." 12. It is also settled law that function of Legislature is to enact a law whereas the function of the Court is to interpret the law and not to amend, modify or alter it. 13. Section 12 of the Act of 1949 makes it clear that every person sentenced under this Act to imprisonment may be dismissed from the Force, and shall further be liable to forfeiture of pay, allowance and any other moneys due to him, as well as of any medals and decorations received by him. 14. From the language of Section 12, it is clear that order of dismissal can be passed against a member of the Force, in addition to punishment of imprisonment under the Act. A member of the Force can be awarded punishment of imprisonment under Section 9 for `more heinous offence' and under Section 10 for `loss heinous offence.' If a person is convicted under Section 9 or 10 then in addition to his sentence of imprisonment, he can also be dismissed from the Force under Section 12of the Act of 1949. 15. A plain reading of Section 11 of the Act of 1949 makes it clear that the use of words "in lieu or in addition to, suspension or dismissal" appearing in sub-section 1 of Section 11 before clauses (a) to (e) shows that the authorities mentioned therein are empowered to award punishment of dismissal or suspension to a member of the Force and in additional to it, the punishments mentioned in clauses (a) to (e) may also be awarded. So far as Section 12 is concerned, it will be attracted only in case, a person is sentenced to imprisonment under the provisions of the Act. It is to be noted that there is no other provision in the Act for awarding penalty of dismissal to a delinquent, in case he is found guilty of gross misconduct in departmental enquiry. We find that the only provision for dismissal for gross misconduct or other misconduct in the capacity as a member of the Force is under Sec. 11 of the Act of 1949. 16. We find that the only provision for dismissal for gross misconduct or other misconduct in the capacity as a member of the Force is under Sec. 11 of the Act of 1949. 16. In Deen Dayal Yadav vs. The Deputy Inspector General of Police, C.R.P.F., 1974 LAB I.C. 929, the Jammu & Kashmir High Court also considered the provisions of Sections 11 and 12 of the Act of 1949. The issue involved in the said case was similar, "whether a person can be dismissed from the Force under Section 11 of the Act of 1949 or not?" The learned Single Judge of Jammu & Kashmir Singh Court considered the provisions of Sections 11 and 12 of the Act of 1949 and also the reasonings assigned by the Division Bench of this Court in Shyamsingh's case and took the same view which was taken by the Division Bench of this Court. Shyamsingh's case was relied upon in Deen Dayal Yadav's case (supra). Para 12 of judgment is reproduced as under:- "12. The contention of the learned counsel for the petitioner that no punishment such as removal or dismissal from service could be passed, does not seem to be correct. I have already quoted the section above and it is significant to note that in this section the important words are "in lieu of or in additional to, suspension or dismissal any one or more of the following punishments to any member of the Force whom be considers...." may be passed. The words in lieu of or in addition to' in my opinion clearly indicate that in addition to the punishments prescribed in Section 11 could be passed or in lieu of a punishment for dismissal. It has also been urged that the punishment such as removal or dismissal from the Force could be passed only under Sec. 12 which I have quoted above but I think this contention also does not seem to be correct because this section clearly lays down that if any person has been sentenced to imprisonment under the Act, then he can be dismissed and shall also be liable to forfeiture of pay etc. The heading of the section also shows that it deals with `place imprisonment and liability to dismissal or imprisonment'. The heading of the section also shows that it deals with `place imprisonment and liability to dismissal or imprisonment'. In my opinion it cannot be said that a punishment of removal or dismissal from Force can only be passed under Section 12 of the Act i.e. to say only when a person has been sentenced to imprisonment. I am strengthened in my view because a similar view has been taken by a Division Bench of Rajasthan High Court in the case of Shyam Singh vs. Dy. Inspector-General of Police, Central Reserve Police, Ajmer reported in AIR 1965 Raj 140 where also it was held that from a perusal of Section 12 it is clear that the punishment of dismissal under the section may be given to a delinquent in addition to the sentence of imprisonment awarded to him under the law. If the authorities mean to proceed under the section, it will not be necessary to observe the formalities of a regular disciplinary inquiry and action may be taken up after a person's conviction and punishment of imprisonment under the Act. It has also been further held that Section 12 does not lay down that a person could not be liable to dismissal if he is not convicted or sentenced under the Act. Similarly with regard to Section 11 it was held that the words `in lieu of' or `in addition to suspension or dismissal' appearing in sub-sec. (1) of Sec. 11 before Cls. (a) to (e) show that the authorities mentioned therein are empowered to award punishment of dismissal or suspension to the member of the Force who is found guilty and in addition to, or in lieu thereof, the minor punishments mentioned in clauses (a) to (e) may also be awarded. It was also held that a perusal of Sections 9, 10 and 11 would clearly show that a delinquent can be punished with dismissal even if he has not been prosecuted for an offence under Section 9 or 10 or the Act. I am therefore, of opinion that the Dy. Inspector General of Police under Section 11 of the Act read with Rule 27 of the Rules could impose a punishment of dismissal or removal from service." 17. I am therefore, of opinion that the Dy. Inspector General of Police under Section 11 of the Act read with Rule 27 of the Rules could impose a punishment of dismissal or removal from service." 17. After considering all the facts and circumstances of the case, relevant provisions of law, reasonings assigned by the learned Single Judge in the order dated 30.11.2009 as well as in the judgment of Division Bench in Shyamsingh's case, we are of the view that Shyamsingh's case was rightly decided. The interpretation given by Division Bench with regard to Section 11 of the Act of 1949 appears to be perfectly legal and no further reconsideration of it is required. We are of the firm view that under Section 11 of the Act of 1949, a member of the Force can be suspended or dismissed. 18. The reference is answered accordingly. 19. The matter may now be placed before the learned Single Judge for decision on merits.