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2010 DIGILAW 225 (JK)

Khurshid Ahmed v. Union Of India

2010-04-23

Sunil Hali

body2010
1. On 18th of June’98, petitioner who was serving as Constable in the CRPF, was directed to proceed to Transit Camp, Jammu, alongwith other personnel. On reaching Transit Camp, Jammu, petitioner left the station without prior permission from the competent authority and was found absent from duty on 21st of June’98, when he was to be deputed for convoy escort duty. 2. A departmental inquiry came to be initiated against the petitioner for having committed the above act of misconduct and disobedience. The charges having been proved against the petitioner, an order of removal from service came to be passed against the petitioner dated 17th of April’99. It is this order which is being challenged in the present petition. 3. Learned counsel for the petitioner submitted that the charges were framed against the petitioner in terms of Section 11(1) of the CRPF Act, 1949 (here-in-after called the Act of 1949). It is stated that the procedure as contained in Rule 27 of the CRPF rules, 1955 (herein-after referred to as the Rules), for the purposes of conducting the enquiry, has not been followed by the respondents. It is stated that Section 11 of the Act of 1949, makes mention of only minor punishment whereas, in the case of petitioner, he has been removed from service which is a major punishment, which could not have been imposed upon the petitioner as the same is not commensurate with the alleged act of misconduct on the part of the petitioner. It is further contended that the petitioner had filed an appeal against his order of removal from service in terms of Rule 28 of the Rules, wherein all the facts and circumstances were detailed but the same were not taken into consideration by the respondents and no decision was taken in the appeal. 4. Learned counsel for the petitioner further stated that under similar circumstances, when similarly situated persons had been imposed the penalty of removal from service and they preferred an appeal against their removal, the said appeal was allowed and all of them were reinstated in service along with other benefits. It is stated that respondents having adopted a discriminatory approach while considering the case of the petitioner have not taken any action on the appeal filed by the petitioner. It is stated that respondents having adopted a discriminatory approach while considering the case of the petitioner have not taken any action on the appeal filed by the petitioner. On facts, it is stated that the petitioner before leaving the station had taken prior permission from the authority concerned, and therefore, there was no misconduct on the part of the petitioner for which a major punishment of removal from service could have been imposed upon him. It is thus stated that without affording any proper opportunity of being heard and taking into consideration the facts and circumstances of the case as also the fact that similarly situated persons were given the benefit of reinstatement, the order impugned came to be passed by the respondents which is not in accordance with the law. 5. Respondents in their counter have stated that the petitioner left the transit camp without the permission from the competent authority and the said misconduct on the part of the petitioner was treated as neglect of duty in terms of Section 11(1) of the Act of 1949. So far as the allegation of the petitioner regarding non conduct of the inquiry in terms of Rule 27 of the Rules is concerned, the same is denied. It is further stated that in terms of Section 11 of the Act, even major punishment, as has been done in the present case, could be imposed by the competent authority. It is further pleaded that the petitioner was afforded proper opportunity of hearing before the order impugned came to be passed against him. 6. The further stand taken by the respondents is that the charge against the persons of whom reference is being made by the petitioner was different, and therefore, no equation can be sought by him. It is stated that the appeal filed by the petitioner was considered and rejected being without any merit. The petitioner, however, is said to have not filed any appeal before the revisional authority. It is thus stated that the petitioner has rightly been awarded the punishment of removal from service which is commensurate with the commission of offence on the part of the petitioner. 7. Heard learned counsel "or the parties and perused the record. 8. The order impugned in the present case has been passed against the petitioner taking recourse to Section 11(1) of the Act. 7. Heard learned counsel "or the parties and perused the record. 8. The order impugned in the present case has been passed against the petitioner taking recourse to Section 11(1) of the Act. For facility of reference, the said Section, in so far as relevant is being reproduced below: - "11. Minor punishment.-(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." 9. A perusal of Section 11(1) of the Act of 1949, noticed above, lays down that the Commandant or any other officer/authority as may be prescribed, subject to any rules made under the Act, award any one of the punishments’ as mentioned in the said Section in addition to the punishment of suspension or dismissal from service to any member of the service if he is found guilty of disobedience, neglect of duty or remission in the discharge of any duty or of any misconduct. Therefore, the contention of the learned counsel for the petitioner that dismissal from service being a major punishment could not have been imposed under the aforementioned Section cannot be accepted. 10. There is, however, another aspect of the matter. The proceedings in the present case were to be initiated by observing provisions of Rule 27 of the Rules of 1955. The said Rule, as per the contention raised by the counsel for the petitioner has not been followed before taking action against the petitioner. 11. The said contention raised by the petitioner has, however, been denied by the respondents. The proceedings in the present case were to be initiated by observing provisions of Rule 27 of the Rules of 1955. The said Rule, as per the contention raised by the counsel for the petitioner has not been followed before taking action against the petitioner. 11. The said contention raised by the petitioner has, however, been denied by the respondents. It has specifically been pleaded that the inquiry was conducted in accordance with the Rule 27 of CRPF Rules, 1955. In para 4 of the counter, it has been stated as under:- "It is submitted that inquiry was conducted in accordance to Rule 27 of CRPF Rules 1955. It is further submitted that to establish charge against petitioner it was felt necessary to conduct PE against him and same was ordered on 26/6/98. During PE acquisition was proved against the petitioner beyond any shadow of doubt. Accordingly charges were framed against the petitioner. The Departmental enquiry was conducted within the stipulated time and conducted in accordance to rules and regulation on their subject. Hence averments of petitioner that enquiry was not conducted within the time and not in accordance to CRPF Rules is incorrect and misleading." 12. So far as the appeal filed by the petitioner is concerned, it is stated that the same was considered and decided in time by the appellate authority but the petitioner did not choose to file any appeal before the revisional authority. 13. A perusal of the record produced by the respondents shows that the appeal filed by the petitioner has been decided by the appellate authority on 29th of Sept’99, and the same has been rejected being without any merit. A copy of the said order passed by the appellate authority has been forwarded to the Commandant, 20 Bn. CRPF, and also to the petitioner at his residential address through Registered post with A/D. However, there is no acknowledgment on the record to the effect that the said copy was received by the petitioner. Under the said circumstances, it can be presumed that even though the appeal filed by the petitioner was decided by the appellate authority but a copy of the rejection order passed by the appellate authority was not received by the petitioner as a result of which he was unable to file appeal before the revisional authority. This is one aspect of the matter. 14. This is one aspect of the matter. 14. The other aspect is that the petitioner has contended that under similar circumstances, when order of removal from service came to be passed against some other similarly situated persons, the appeal preferred by the said personnel came to be allowed and they were reinstated along with all consequential benefits but in the case of the petitioner, a discriminatory approach was adopted. 15. The stand taken by respondents in this regard, as noticed above, is that the charges against those personnel of whom reference has been made by the petitioners were different, and therefore, no equation can be sought. 16. In order to address this controversy, it would be apt to notice the charges framed against the petitioner as also against other personnel in whose case order of removal passed by the authority concerned was set aside by the appellate authority. 17. The charges against the petitioner are as under:- "Article -I No. 951170338 CI/CD Khurshid Ahmed of E/20, 20 Bn, CRPF, was detailed to proceed to transit camp-t Jammu on 18.6.98 on convoy escort duty with down convoy from Srinagar to Jammu along with other personnel under command of No. 650010299 SI Dhanpat Rai. The escort party reached T.C. Jammu on 18.6.98(AN) and the above named personnel left the Camp without prior permission of the competent authority and without sufficient cause as intimated by OC-T/C and was found absent on 21.6.98 morning for convoy escort duty. Thus he committed an offence of neglect of duty under section 11(1) of CRPF Act, 1949 which prejudicial to the good orders and discipline of the force. Article-II "That No.951170338 Ct/CD Khurshid Ahmed of E/20 CRPF, having reached transit camp Jammu on 18.6.98 in the evening with the convoy escort duty under escort commander No. 650010299 SI/GD Dhanpat Rai, he left the transit camp Jammu ignoring the authority of escort commander SI/GD Dhanpat Rai and also did not bother about the briefing and instructions issued for remaining present in the TC Camp, Jammu, he thus ignored the lawful authority of escort commander and did not even inform him before leaving the transit camp, Jammu, and thus violated convoy standing orders which is against good order and discipline of the force. Further he continued to be absent even after move of up convoy on 21.6.98 morning by which he was supposed to come as escort. Further he continued to be absent even after move of up convoy on 21.6.98 morning by which he was supposed to come as escort. Thus, he committed an act of misconduct and disobedience of standing orders punishable under section 11(1) of CRPF Act, 1949." 18. The charges against other personnel on whose case reliance has been placed by the petitioner by placing on record copy of Annexure B, be also noticed. These read as under:- "Article -I That the said above named personnel (under suspension) of D& HQ Coys 20 Bn CRPF while functioning as LNK/CT(GD) and Ct/Dvr(S) have committed an act of neglect of duty in their capacity as a member of the force under section 11(1) of CRPF Act, 1949, in that they deserted the force from the Transit Camp, Jammu on 28.1.98 from 2000 hrs without prior permission of the competent authority and without sufficient cause and were found absent for convoy escort duty on 29.1.908 morning from Jammu to Srinagar which is considered a high risk terrorist infested route and thereby jeopardizing the security of the personnel and vehicles in convoy. Article-II That the said above named personnel(under suspension) of D&HQ Coys 20 Bn CRPF while functioning as LNK/Ct(GD) and Ct/Dvr(s) have committed an act of misconduct and disobedience of orders in their capacity as a member of the force under section 11(1) of CRPF Act, 1949 in that they ignored the authority of escort commander SI KN Mishra and disobeyed his orders to remain present in transit camp Jammu as per briefing and movement order issued to them and did not even inform him before deserting from the transit camp Jammu which is against good order and discipline of the Force." 19. A perusal of the above shows that the charges against the petitioner and six other personnel whose names have been mentioned in Annexure B are similar. While framing Charge No.1 against six other personnel, it has been stated that they remained absent for convoy escort duty on 29.1.98 morning from Jammu to Srinagar which has been considered as high risk terrorist infested route, which shows that the charge against the said six persons was treated to be of more serious nature. 20. While framing Charge No.1 against six other personnel, it has been stated that they remained absent for convoy escort duty on 29.1.98 morning from Jammu to Srinagar which has been considered as high risk terrorist infested route, which shows that the charge against the said six persons was treated to be of more serious nature. 20. Therefore, keeping in view the above facts, the contention raised by the counsel for the respondents that charges against the petitioner and other personnel referred to in Annexure B’ were different, cannot be accepted. This aspect of the matter has not been taken note of by the appellate authority while deciding the appeal of the petitioner. Though, I am conscious of the fact that in such like matters, judicial review is not permissible and as to what punishment is to be imposed upon a delinquent official, falls under the arena of the punishing authority but where the facts are such as have been pleaded in the present case regarding similarity of two cases i.e. the petitioner and other six personnel who were facing the same charge and in whose case, orders of removal from service were set aside considering the said punishment to be too harsh, the appellate authority should have taken into consideration that aspect of the matter and dealt with the case of the petitioner accordingly to show that no discriminatory approach was adopted in the case of the petitioner, which has not been done. While dealing with the case of other six personnel who, as indicated above, were facing the same charge, the appellate authority has set aside the orders of their removal from service but in the case of the .petitioner, no such relief has been granted to him, and therefore, the punishment of removal from service imposed upon the petitioner cannot be said to be commensurate with the alleged misconduct on his part. It be further noted that it is not the case of the respondents that the petitioner is habitual absentee. Under these circumstances, it can be held that penalty of removal from service is highly excessive and disproportionate. In this regard, reliance can be placed on a judgment of the Apex Court reported as Shri Bhagwan Lal Arya v. Commissioner of Police, Delhi and others, (2004)4 SCC 560 . Under these circumstances, it can be held that penalty of removal from service is highly excessive and disproportionate. In this regard, reliance can be placed on a judgment of the Apex Court reported as Shri Bhagwan Lal Arya v. Commissioner of Police, Delhi and others, (2004)4 SCC 560 . In the aforementioned case, the petitioner had absented himself for 2 months, 7 days and 17 hours but the said absence was on medical grounds. The Apex Court while dealing with the matter observed as under:- "It is not the case of the respondents that the appellant is a habitual absentee. He had to proceed on leave under compulsion because of his grave condition of health and, therefore, the punishment of removal from service is excessive and disproportionate....." 21. In the present case, even though, there is nothing on record to show that the petitioner left the transit camp under some compulsion but the fact remains that under similar circumstances, the penalty of removal from service imposed on six other similarly situated personnel has been set aside by the appellate authority being disproportionate to the nature of misconduct on their part, which course has not been adopted by the said authority in the case of the petitioner. Therefore, keeping in view the circumstances noticed above and placing reliance upon the judgment of the Apex Court in Bhagwan Lal’s case (supra), the order impugned passed by the respondents in the present case has to be set aside. 22. Reliance in this regard can also be placed on the judgment of the Apex court reported as Damoh Panna Sagar Rural Regional Bank and another v. Munna Lal Jain, (2005)10 SCC 84 . What was observed in para 15 of the judgment is being reproduced below: - "To put differently unless the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the court/tribunal, there is no scope for interference. Further to shorten litigations it may, in exceptional and rare cases, impose appropriate punishment by recording cogent reasons in support thereof. In the normal course if the punishment imposed is shockingly disproportionate it would be appropriate to direct the disciplinary authority or the appellate authority to reconsider the penalty imposed." 23. Further to shorten litigations it may, in exceptional and rare cases, impose appropriate punishment by recording cogent reasons in support thereof. In the normal course if the punishment imposed is shockingly disproportionate it would be appropriate to direct the disciplinary authority or the appellate authority to reconsider the penalty imposed." 23. In para 18 it was further observed:- "It needs no emphasis that when a court feels that the punishment is a shockingly disproportionate, it must record reasons for coming to such a conclusion. Mere expression that the punishment is shockingly disproportionate would not meet the requirement of law. Even in respect of administrative orders, Lord Denning, M.R. in Breen v. Amalgamated Engg. Union observed (All ER P.1154h)" The giving of reasons is one of the fundamentals of good administration." In Alexander Machinery (Dudley) Ltd v. Crabtree, it was observed: "Failure to give reasons amounts to denial of justice. Reasons are live links between the mind of the decision taker to the controversy in question and the decision or conclusion arrived at." Reasons substitute subjectivity ob objectivity. The emphasis on recording reasons is that if the decision reveals the "inscrutable face of the sphinx", it can, by its silence, render it virtually impossible for the courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made, in other words, a speaking-out. The "inscrutable face of the sphinx" is ordinarily incongruous with a judicial or quasi-judicial performance." 24. In the case in hand, as indicated above, the disciplinary authority after taking note of the enquiry report, passed an order of removal from service against the petitioner, who filed an appeal before the appellate authority. The "inscrutable face of the sphinx" is ordinarily incongruous with a judicial or quasi-judicial performance." 24. In the case in hand, as indicated above, the disciplinary authority after taking note of the enquiry report, passed an order of removal from service against the petitioner, who filed an appeal before the appellate authority. The said authority, without taking note of the fact that under similar circumstances, in the case of six personnel, who had been imposed the same penalty, the order of removal from service has been set aside with an observation that the penalty imposed is highly disproportionate, passed the order impugned in the case of the petitioner removing him from service and there are no reasons forthcoming as to why the case of the petitioner has been singled out. Under the said circumstances, it has to be observed that the penalty of removal from service imposed upon the petitioner is disproportionate to the alleged misconduct on his part and he is also to be given the same benefit as has been given by respondent appellate authority to six similarly situated persons. 25. For the reasons mentioned above, this petition is allowed. Order impugned dt. 17th of April’’99, and that passed by the appellate authority dt. 29th of Sept’99, shall stand quashed. Petitioner is reinstated in service with all consequential benefits minus monetary benefits. However, relying upon the judgment of the Apex Court in Muna Lal Jain’s case (supra), it is directed that respondents shall be at liberty to reconsider the penalty imposed upon the petitioner and pass appropriate orders in accordance with the law after affording him proper opportunity of hearing. While doing so, the respondents shall also take note of the fact that under similar circumstances, order of removal from service has been set aside by the appellate authority in the case of six personnel referred to in Annexure B to the writ petition.