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2012 DIGILAW 594 (UTT)

Bhaskar Chandra v. Union of India

2012-09-18

TARUN AGARWALA

body2012
Judgment : Tarun Agarwala, J. 1. The petitioner has filed an amendment application praying for addition of an additional prayer for the quashing of the order dated 16.7.1998 by which the petitioner was given the punishment of imprisonment of 10 days in the unit’s Quarter Guard. 2. The writ petition was filed in the year 1999 before the Allahabad High Court and the order of punishment was known to the petitioner. When the petition has now come for hearing after 12 years, the said relief cannot be granted at this belated stage. The amendment application is accordingly rejected. 3. The petitioner has filed the present writ petition praying for the quashing of the order of dismissal dated 17.7.1998 as well as the appellate order dated 12.3.1999 and has further prayed that he should be reinstated on the post of Constable with all service benefits including arrears of pay from the date of dismissal. 4. The facts, leading to the filing of the writ petition is, that the petitioner is an Ex Army personnel and was recruited by the Central Reserve Police Force as a Constable on 6.9.1993. The petitioner was charge-sheeted on 25.5.1998. The charge is extracted hereunder:- “That on 8/4/98 at about 2000 Hrs you after consuming liquor quarreled with 913127567 Ct. Raj Kumar Kore and boxed on his nose as a result he sustained injury. Thus, you committed an offence under section 10(a) and (n) of CRPF Act, 1949 which is punishable under the Act.” 5. On the basis of the charge sheet, a judicial trial was conducted by the Commandant under the provision of 16(2) of The Central Reserve Police Force Act, 1949 (hereinafter referred to as the Act). The trial court found the petitioner guilty of the charge levelled against him and issued an order dated 16.7.1998, imposing a punishment of imprisonment for 10 days in the unit’s Quarter Guard. Subsequently, by another order dated 17.7.1998, the Commandant issued an order u/s 12(1) of the Act, dismissing the petitioner from the service, on the ground of being convicted of an offence under section 9 and 10 of the Act. The petitioner, being aggrieved by the order of dismissal, filed an appeal, which was dismissed by an order dated 12.3.1999. Thereafter, the petitioner preferred a writ petition before the Allahabad High Court, which was transmitted to this Court upon the creation of the State of Uttarakhand. 6. The petitioner, being aggrieved by the order of dismissal, filed an appeal, which was dismissed by an order dated 12.3.1999. Thereafter, the petitioner preferred a writ petition before the Allahabad High Court, which was transmitted to this Court upon the creation of the State of Uttarakhand. 6. The learned counsel for the petitioner laid stress on the fact that the charge levelled against the petitioner was not proved by any of the witnesses and that the finding of the trial court that the charge was proved was wholly illegal and against the material evidence on record. In this regard, the petitioner referred to the statement of the witnesses in order to enable the Court to appreciate his submission as to whether the charge was actually proved or not. 7. The Court is not inclined to dwell into the findings of fact nor is impressed by the submission of the learned counsel for the petitioner inasmuch as the Court finds from the impugned order of punishment dated 16.7.1998 that the petitioner had admitted his guilt. Further, the Court finds that the order of 16.7.1998 has not been challenged by the petitioner. Consequently, the finding of the trial court and the punishment of imprisonment for 10 days having not been challenged cannot be agitated by the petitioner. 8. This now leads to the question as to whether the order of dismissal was validly passed by the authority or not. Before proceeding further, it is necessary to refer to certain provisions of the Act. 9. Section 9 provides various kinds of heinous offences such as a person who excites or causes or conspires to cause or joins in any mutiny or attempts to use criminal force or shamefully abandons or delivers up any post or guard which is committed to his charge or if on active duty disobeys the lawful command of his superior officer or deserts the Force, etc. etc. 10. Section 10 provides various kinds of less heinous offences, namely, where a person is in a state of intoxication while on duty or strikes or attempts to force any entry, etc. etc. 11. Section 11 gives power to the Commandant or any other authority prescribed to award minor punishment, in lieu of, or in addition to, suspension or dismissal. 12. Section 12 provides that a person who is sentenced under this Act to imprisonment may be dismissed from the Force. 13. etc. 11. Section 11 gives power to the Commandant or any other authority prescribed to award minor punishment, in lieu of, or in addition to, suspension or dismissal. 12. Section 12 provides that a person who is sentenced under this Act to imprisonment may be dismissed from the Force. 13. For facility, Section 12 of the Act is extracted hereunder:- “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 if 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.” 14. A perusal of the aforesaid would indicate that Section 12(1) provides that a 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. 15. Section 12(2) provides that every person, if he is not dismissed from the Force, may be confined in the quarter-guard or such other place, as the Court or the Commandant may consider suitable. 16. Rule 27 of The Central Reserve Police Force Rules, 1955 provides the procedure for the award of punishment. Serial No.1 of the Table under Rule 27 provides the punishment of dismissal or removal from the Force. Under Column 7, a remark has been provided that such dismissal can only be inflicted after formal departmental enquiry. Serial No.11 of the Table under Rule 27 provides confinement to quarters lines, camp, punishment drill, fatigue duties etc. for a term not exceeding one month. 17. Rule 28 provides a provision for an appeal. Rule 28(b) provides that no appeal shall lie against an order of the competent authority inflicting any of the punishments mentioned at Serial No.8 to 11 of the Table in Rule 27, namely, order of confinement to imprisonment. 18. for a term not exceeding one month. 17. Rule 28 provides a provision for an appeal. Rule 28(b) provides that no appeal shall lie against an order of the competent authority inflicting any of the punishments mentioned at Serial No.8 to 11 of the Table in Rule 27, namely, order of confinement to imprisonment. 18. In the instant case, the petitioner was given a term of imprisonment under Rule 27 read with section 12(b). 19. In so far as the dismissal or removal from the Force is concerned, it is clear that such removal or dismissal can only be inflicted after a formal enquiry. Departmental enquiry is different and distinct from the procedure of inquiring into or trying any offence under Section 16 of the Act. 20. In the instant case, the trial against the charge levelled against the petitioner was the trial under the Court of Criminal Procedure by the Commandant, who had been invested with the powers under section 16 of the Act. Such trial is different from an enquiry to be conducted by the department for removal or dismissal of a member of the Force from the service. 21. In the light of the aforesaid provision, the petitioner was sentenced to imprisonment for 10 days pursuant to a charge levelled against him, which was conducted as a criminal trial under section 16 of the Act. The order dated 16.7.1998 had become final and irrevocable. The order dated 16.7.1998 is an order passed u/s 12(2) read with Rule 27 of the Rules. Based on such imprisonment, the Commandant passed a separate order on 17.7.1998 exercising his powers u/s 12(1) of the Act, dismissing the petitioner from the service, on the ground, that he was convicted of an offence. Such dismissal is against the provision of Rule 27(1) of the Rules, which provides that the dismissal has to be inflicted a after formal departmental enquiry. No such departmental enquiry was done nor a charge was issued. The mere fact that the petitioner was convicted, may be a ground for his removal, but such removal or dismissal can be only done after a departmental enquiry, and that too, after giving an opportunity of hearing to the petitioner. 22. Section 12 of the Act provides for the dismissal of a member of the Force on the ground of his imprisonment. This provision is only directory and is not a mandatory provision. 22. Section 12 of the Act provides for the dismissal of a member of the Force on the ground of his imprisonment. This provision is only directory and is not a mandatory provision. The word used is “may” and the word “shall” has not been used. The reason is not far to see. The authority has to see the mitigating circumstances which could lead to a presumption that it is a fit case for dismissal. That can only be done by holding a departmental enquiry and giving an opportunity of hearing to the petitioner. The mitigating circumstances can only be found thereafter. In the present case, no such exercise has been done. 23. In the light of the aforesaid, the impugned order of dismissal cannot be sustained and is quashed. The writ petition is allowed. The petitioner shall be reinstated with continuity of service but, in the circumstances of the case, will not be entitled for arrears of salary.