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2010 DIGILAW 311 (JK)

Manzoor Ahmad Bhat v. Union Of India

2010-05-24

MOHAMMAD YAQOOB MIR

body2010
1. Petitioner admittedly was appointed as Constable in the Central Reserve Police Force in the year 1998. On 19.12.2007, deserted leaving behind the arms and ammunition visited home then reported back on 29.12.2007. The departmental enquiry as conducted culminated in passing order dated 09.01.2009, where-under the petitioner has been dismissed from services by respondent No.4. Aggrieved thereof instant petition has been preferred. 2. The first contention is that the order impugned has been passed while having recourse to Section 11(1) of the CRPF Act read with Rule 27 of the CRPF Rules 1955 which does not provide for punishment of dismissal or removal from service, therefore, has been passed without jurisdiction. 3. This contention has to be rejected. No doubt the heading of Section 11 i.e. "Minor Punishments" is not in consonance with the text of the provisions of the Section. The Section itself envisages that 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 one or more of the prescribed punishments. 4. The various punishments as prescribed can be awarded in addition to dismissal so to say that the Section 11 does not authorize inflicting punishment of dismissal, is totally misplaced. 5. Section 11(1) of the CRPF Act absolutely authorizes the authority concerned to award dismissal from service as well. Same view has been taken by the Division Bench of this Court while rendering judgment in Union Of India and ors v. Showkat Ali Cheechi in LPA 197/2006. Furthermore, same view is fortified by the judgment rendered by the Apex Court in case Union of India & Ors. v. Ghulam Mohammad Bhat reported in (2005) 13 SCC 228 . 6. Awarding punishment of dismissal as envisaged by Section 11(1) of CRPF Act is controlled by one situation i.e. the departmental enquiry has to be conducted. The record as is available on the file would clearly indicate that the departmental enquiry has been conducted through respondent No.5. Though order is recorded in Hindi version but its English version has been got prepared by the petitioner as is available on file, same clearly indicates that the petitioner has participated in the departmental enquiry. The record as is available on the file would clearly indicate that the departmental enquiry has been conducted through respondent No.5. Though order is recorded in Hindi version but its English version has been got prepared by the petitioner as is available on file, same clearly indicates that the petitioner has participated in the departmental enquiry. He has also pleaded guilty to the charge as has been leveled against him, despite that, Enquiry Officer (respondent no.5) has recorded the statement of the witnesses. Petitioner has been given opportunity to cross examine the witnesses. Statement of the petitioner has also been recorded, he has been given chance to produce the documents, if any, in support of his defence. 7. The stance of the petitioner before enquiry officer as made mention of in the said order is that when he had received telephone call from his home to the effect that fire has broke out in the Arms Depot Khandru, near his home and inhabitants of the area include his family has been asked to vacate from the concerned area which prompted him to move the application for grant of casual leave when the same was not sanctioned, he informed the Assistant Commandant that in case leave is not granted, he will leave as deserter this way he left leaving his arms on his bed. Then after a gap of 10 days returned back. 8. When the enquiry was completed, the enquiry officer submitted his report to the disciplinary authority who has furnished copy of the report to the petitioner so as to enable him to say anything as against the report within 15 days. The petitioner in response on 19.01.2009 had repelled by stating that fire broke out in the Anns Depot Khandroo, Anantnag, in view thereof army had issued orders to the Villagers living in the area of 40 sq km to vacate from their houses as they fall in the danger zone. It was this information which was received by the petitioner, got worried and immediately requested the Assistant Commandant for two days leave when same was not sanctioned, he had left for his home for this act, he was given seven days Quarter Guard as punishment. 9. It was this information which was received by the petitioner, got worried and immediately requested the Assistant Commandant for two days leave when same was not sanctioned, he had left for his home for this act, he was given seven days Quarter Guard as punishment. 9. The disciplinary authority after examining the whole enquiry report and response as filed by the petitioner, was satisfied with the departmental enquiry, wherein, it was concluded that the petitioner had left the R.O.P. point of his own free will while leaving the weapon allotted to him on his bed and then reported back on 29.12.2007. The pretext of the petitioner that he was given 7 days Quarter Guard as punishment is not correct. The said punishment was given to him earlier for remaining absent from duty without leave in the month of February, 2008 and this explanation of the petitioner was found to be false. 10. In consonance with law and the procedure departmental enquiry has been conducted, on conclusion whereof report has been submitted to the disciplinary authority (respondent no.4) who in turn provided the copy of the report to the petitioner so as to enable him to explain his position which the petitioner availed by tendering explanation as to what made him to leave as a deserter. Therefore, the enquiry conducted and exercise of powers under Section 11(1) cannot be faulted with. 11. Confronted with the said situation, learned counsel, as a last ditch effort, contended that the punishment awarded is disproportionate. As in the circumstances, petitioner had to leave was something wherein his family was in trouble. The question which now emerges for consideration is whether the punishment awarded is disproportionate. It has to be borne in mind that when the person has chosen to become a member of disciplined force. He has to discipline himself so as to ensure that at any relevant time principle of discipline is not breached. The disciplined force cannot afford to tolerate indiscipline as the duty of such forces is such which has to meet the challenges of the time. The self interest has to be sacrificed for discharging the duties. Granting or otherwise of the leave in disciplined forces has to be in accordance with the convenience of the force not to the convenience of the members of the force. The self interest has to be sacrificed for discharging the duties. Granting or otherwise of the leave in disciplined forces has to be in accordance with the convenience of the force not to the convenience of the members of the force. Ordinarily in other departments, the situation as has been projected may present the mitigating situation so as not to award any harsh punishment but in disciplined forces same is impermissible. 12. The judgment rendered in Noharlal Verma v. District co-operative Central Bank Ltd reported in AIR 2009 SC 664 is not of any help to the petitioner as in the reported case matter pertained to the Manager of a cooperative Bank. The different yardstick has to be applied to the disciplined forces. 13. The division bench of this court in LPA 197/2006 has dealt with the question of proportionality in awarding punishment and in that connection, reference has been made to various judgments. It shall be quite apt to quote the same herein. "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 Hon’ble 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 Hon’ble Supreme Court found on fact that the petitioner respondent before the Hon’ble Supreme Court, while was on leave, had sent a telegram for ex tension of leave by twelve days which was rejected, by the respondent-petitioner joined his duty immediately after expiry of 12 days from the date his leave expired and, in that background, held that an order of dismissal for such over stay is interfereable. Learned counsel for the writ petitioner cited yet another judgment of the Hon’ble 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 Hon’ble Supreme Court was dealing with the conduct of a Bus Conductor. Learned counsel for the writ petitioner cited yet another judgment of the Hon’ble 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 Hon’ble Supreme Court was dealing with the conduct of a Bus Conductor. However, the learned Judges of the Hon’ble 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 aid Act. It is true that the aforementioned judgments of the Hon’ble Supreme Court clearly depict that in writ jurisdiction an order of punishment is interfereable on the ground that the punishment awarded is disproportionate to the offence committed, What would be the appropriate punishment would depend upon facts and circumstance of each case. 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 Electrical when the incident of over staying twelve days after expiry of the leave occurred." 14. For the sated reasons and the law as has been laid down while keeping in view the object of maintaining the norms of discipline in force, the impugned order of dismissal from services relatable to the petitioner who belongs to disciplined force, is un-interfereable. Petition, as such, being without merit, is dismissed.