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2012 DIGILAW 3 (GAU)

Union of India v. Md. Irfan Ali

2012-01-03

I.A.ANSARI, P.K.MUSAHARY

body2012
JUDGMENT I.A. Ansari, J. 1. This is an appeal against the judgment and order, dated 12.06.2007, passed, in WP(C) No. 8954/ 2004, by a learned Single Judge of this Court, whereby the learned Single Judge, while not interfering with the findings of guilt reached against the writ petitioner-respondent, directed imposition of any punishment save and except dismissal from service. We have heard Mr. A.K. Bora, learned Central Govt. Counsel, appearing on behalf of the appellant, and Mr. H.R.A. Choudhury, learned senior counsel, for the writ petitioner-respondent. 2. While considering the present appeal, let us take note of the three Articles of Charges, whereunder the writ petitioner faced a disciplinary proceeding. The Articles of Charges read as under : ARTICLE-I. That No. 921240598 Ct/GD Arfan Ali of HQ Coy 104 BN RAF, CRPF, committed an act of misconduct in his capacity as a member of the Force under Section 11(1) of CRPF Act 1949 in that he overstayed leave w.e.f. 27.05.2002 to 15.08.2002 without leave or permission from the competent authority which is prejudicial to good order and discipline of the Force. ARTICLE-II That during the aforesaid period and while functioning in the aforesaid office, No. 921240598 Ct/GD Arfan Ali of HQ Coy 104 BN RAF, CRPF, is guilty of disobedience of orders in that he failed to respond to the official communication made with him by the Commandant, 104 BN RAF CRPF which is prejudicial to good order and discipline of the Force. ARTICLE-III That during the aforesaid period and while functioning in the aforesaid office, No. 921240598 Ct/GD Arfan Ali of HQ Coy 104 BN RAF, CRPF, is guilty of remissness in the discharge of his duties in that he is habitual of overstaying leave which is prejudicial to good order and discipline of the Force. 3. The petitioner did not respond to the charges levelled against him. The disciplinary enquiry was accordingly held ex parte and the petitioner, having been found guilty of the charges framed against him, was awarded punishment of dismissal from service. The petitioner preferred a statutory appeal, which was also dismissed by order, dated 15.09.2004, with the observation that no good reasons for interference with the order of dismissal could be shown by the petitioner and that the order of dismissal was passed after according full opportunity of hearing to the petitioner. 4. The petitioner preferred a statutory appeal, which was also dismissed by order, dated 15.09.2004, with the observation that no good reasons for interference with the order of dismissal could be shown by the petitioner and that the order of dismissal was passed after according full opportunity of hearing to the petitioner. 4. As the appeal did not evoke any favourable result, the petitioner put the findings of guilt and also the punishment of dismissal from service, passed against him, to challenge by filing a writ petition under Article 226 of the Constitution of India, which gave rise to WP(C) No. 8954/ 2004. The learned Single Judge, as already indicated above, has directed the appellants to impose a punishment on the petitioner other than dismissal from service. 5. While considering the present appeal, it is necessary to bear in mind that the learned Single Judge has clearly recorded that as far as findings of guilt against the petitioner are concerned, the same are not interfered with. 6. In the backdrop of the charges on which the petitioner faced the disciplinary proceeding, whether punishment of dismissal from service could have been interfered with, in exercise of this Court's extra-ordinary jurisdiction under Article 226, is, therefore, the question raised in the present appeal. 7. While considering the above aspect of the matter, it needs to be pointed out that the learned Single Judge, has reached the conclusion that since the petitioner had faced disciplinary proceedings on the charges, which called for, at best, imposition of punishment as prescribed by Section 10 of the Central Reserve Police Force Act, 1949, (in short, 'the CRPF Act'), no punishment, other than what have been prescribed by Section 10, could have been imposed on the petitioner- respondent. It is also specifically held by the learned Single Judge that Section 11 does not empower imposition of punishment of dismissal from service and what Section 11 provides is a set of five punishments, which are (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. The writ petitioner could not have, therefore, been, held the learned Single Judge, dismissed from service. 8. What, now, needs to be noted is that the CRPF Act has two sets of punishments for offences, which have been made punishable under the said Act. While Section 9 imposes punishments for 'more heinous offences', Section 10 prescribes punishments for 'less heinous offences'. Clause (m) of Section 10 provides for punishment to a person, who, without sufficient cause, absents himself without leave or who overstays without leave granted to him. 9. Since the case of the petitioner-respondent fell within the ambit of Section 10(m), the learned Single Judge reached the conclusion that as Section 10 merely prescribes punishment of imprisonment for a term not exceeding one year or with fine, which may extend to a period of three months pay or with both, Section 11 could not have been invoked inasmuch as Section 11, according to the learned Single Judge, did not provide for punishment of dismissal from service. 10. While considering the correctness of the conclusions reached above by the learned Single Judge, it needs to be noted that neither Section 9, which deals with 'more heinous offences' nor Section 10, which deals with less heinous offences', prescribes dismissal from service as one of the modes of punishment. As far as Section 11 is concerned, sub-section (1) thereof is relevant for our purpose and is, therefore, reproduced below : 11. Minor Punishments.(1) The commandant or any other authority or officer as may be prescribed, may, subject to any rules made in 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, of 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 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 on special emolument in the force. 11. 11. A careful reading of Section 11 shows that the punishments, which have been prescribed by Clause (a), (b), (c), (d) and (e), are to be awarded 'in lieu of or 'in addition to' suspension or dismissal from service. 12. Since neither Section 9 nor Section 10 prescribes, as already indicated above, penalty of dismissal from service as one of the modes of penalty, the question is : where the penalty of dismissal from service has been prescribed? This question necessary takes us to Rule 27 of the Central Reserve Police Force Rules, 1965, (in short, 'the CRPF Rules'). Clause (a) of Rule 27 reads as under : 27. Procedure for the Award of Punishments : (a) The Punishments shown as items 1 to 11 in column 2 of the table below may be inflicted on non-Gazetted Officers and men of the various ranks shown in each of the headings of column 7 : TABLE Sl. No. Punishment Subedar (Insp) SI Others Except enrobed Followers Const & enrolled followers Remark 1 2 3 4 5 6 7 1. Dismissal or removal from the force DIGP DIGP Comdt Comdt To be inflicted after formal departmental enquiry. 13. From a bare reading of Clause (a) of Rule 27, it becomes clear that following a formal departmental enquiry, a person, subject to the CRPF Act, may be dismissed or removed from service. If Rule 27 is borne in mind, it becomes abundantly clear that following a departmental proceeding, there is no impediment in dismissing a person from service. Thus, whether a person has been found guilty of offence under Section 9, which deals with 'more heinous offences', or Section 10, which deals with 'less heinous offences', he can nevertheless be dismissed from service by invoking the power under Rule 27. 14. Considering the fact that the CRPF Rules do provide for dismissal from service as one of the modes of penalty for a person, who has been found guilty of a charge under Section 9 or under Section 10 of the CRPF Act, it was not correct for the learned Single Judge to hold that there is no provision for penalty of dismissal from service for a person, who has been proceeded against under Section 10 of the CRPF Act. It is, however, correct, as pointed out by the learned Single Judge, that as far as Section 11 is concerned, it does not prescribe dismissal from service as one of the modes of punishments. What, however, appears to have escaped attention of the learned Single Judge is that Rule 27 applies to a person, who is found guilty of an offence under Section 9 or under Section 10 of the CRPF Act. In the present case, as the writ petitioner-respondent was found guilty of offence under Section 10(m) of the CRPF Act, he could have, in the light of the provisions of Rule 27, been dismissed from service. 15. Be that as it may, when Rule 27 provides for penalty of dismissal from service and Rule 27 is not under challenge, the consequence is that though the petitioner-respondent was guilty of the offence under Section 10(m), he could have been dismissed from service by invoking Rule 27. It is, therefore, not correct, contrary to what has been concluded by the learned Single Judge, that the petitioner- respondent could not have been dismissed from service on the basis of the charges on which he had faced the disciplinary proceeding. The reference, made by Mr. Baruah, learned Central Govt. Counsel, to the case of Union of India and others v. Ghulam Mohd. Bhat, reported in (2005) 13 SCC 228 , is, therefore, not incorrect inasmuch as in the case of Ghulam Mohd. Bhat (supra), the Supreme Court has clearly held that it is not correct to say that Section 11 prescribes only five modes of punishments as contained in Clauses (a) to (c) and that the expression 'in lieu of 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 the member of the Force, who is found guilty and such dismissal or suspension may be 'in addition to', or 'in lieu of the punishments mentioned in clauses (a) to (e). The relevant observations, appearing in this regard, in Ghulam Mohd, Bhat (supra), at para 7, read as under : 7. It may be noted that Section 9 of the Act mentions serious or heinous offences and also prescribes penalty which may be awarded for them. The relevant observations, appearing in this regard, in Ghulam Mohd, Bhat (supra), at para 7, read as under : 7. It may be noted 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 overstay 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. 16. Turning to the impugned direction given by the learned Single Judge to consider a punishment other than the punishment of dismissal from service, it bears repetition that the learned Single Judge has clearly held that the finding of guilt is not interfered with. When the findings of guilt, reached against the petitioner-respondent, had not been interfered with, whether the penalty of dismissal from service could have been interfered with by taking recourse to Article 226? 17. We have already pointed out above that despite notice having been received by the petitioner-respondent, he did not participate in the disciplinary proceeding. Consequently, the departmental enquiry was held ex parte. The materials brought in the disciplinary proceeding, thus, remained wholly unchallenged. 17. We have already pointed out above that despite notice having been received by the petitioner-respondent, he did not participate in the disciplinary proceeding. Consequently, the departmental enquiry was held ex parte. The materials brought in the disciplinary proceeding, thus, remained wholly unchallenged. In his writ petition, the petitioner, while explaining his absence from duty without leave, submitted, at para 5, 6 and 7, to the effect that he left the place of duty with sanctioned earned leave with effect from 06.05.2002 to 20.05.2002 and, unfortunately as he fell ill, he had to be hospitalized and took long time to recover inasmuch as he had been suffering from severe hypertension and he had been advised rest and, as a result thereof, he overstayed leave for five months and as he had not reported for duty, a warrant of arrest was issued, which was, however, not executed and he was placed under suspension with effect from 15.11.2002, whereupon his suspension was revoked with effect from 04.02.2003, but he could not rejoin his duty due to his ill health and the departmental enquiry was held ex parte and the report of the enquiry was accordingly submitted. 18. Dealing with the above aspect of the case, the respondents pointed out, at para 4 of their affidavit-in-opposition, that the petitioner had overstayed leave on as many as seven occasions in the past and, at times, he had overstayed leave for more than one month. This apart, the appellants, (as respondents in the writ petition), have also pointed out, in their affidavit-in-opposition, that though the petitioner had overstayed leave for about seven months with effect from 25.05.2002, the only medical certificate, which he had produced, was of 17.12.2002 and as regards the fact that he had been under treatment and unable to move and rejoin his duties during the said period of seven months, he had not produced any material whatsoever even in the writ petition. These aspects appear to have escaped the notice of the learned Single Judge. 19. These aspects appear to have escaped the notice of the learned Single Judge. 19. When the findings of guilt, reached against the petitioner-respondent, were not interfered with and when the petitioner had not, even in the writ petition, satisfactorily explained the reasons for his overstay, the conclusion reached by the learned Single Judge that the petitioner had overstayed due to his illness and/or due to the premature death of his minor son were inferences, which had not been supported by any material on record. At any rate, in the face of the fact that the appellants had disputed the correctness of the submissions made by the petitioner explaining his reasons for delay, the cause of absence of the petitioner was ex facie a disputed question of fact and, without taking evidence, this fact could not have been decided and ought not to have been decided in favour of the petitioner-respondent. 20. In State of Punjab and others v. Mohinder Singh, reported in (2005) 12 SCC 182, the Supreme Court has pointed out that when a person belonging to paramilitary force remains absent from duty without leave, it is a gravest misconduct and an order of dismissal, if imposed by the disciplinary authority, ought not to be interfered with by the High Court. 21. In the present case too, we are of the view that when the reasons of absence of the petitioner from attending his duty had not be convincingly explained by the petitioner or, at any rate, was a disputed question of fact, the learned Single Judge ought not to have interfered with the penalty of dismissal of service imposed on the petitioner- respondent. 22. Because of what have been discussed and pointed out above, this appeal succeeds. The impugned order, directing the appellants to impose a punishment other than the punishment of dismissal from service, is accordingly set aside. To the extent as mentioned hereinbefore, this appeal stands allowed. No order as to costs. Appeal allowed.