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2012 DIGILAW 958 (GAU)

Gyani Singh v. Union of India

2012-08-09

N.KOTISWAR SINGH

body2012
JUDGMENT N. Kotiswar Singh, J. 1. Heard Mr. C. Baruah, learned senior counsel assisted by Mr. P. Sharma, learned counsel appearing for the petitioner as well as Mr. M. Bhagabati, learned CGC appearing for the respondents. The petitioner was initially appointed as Constable (GD) in C.R.P.F. and he was discharged from service by office order dated 28.08.2004 issued by the Commandant 53rd Bn. C.R.P.F. which has been challenged in the present writ petition. 2. Brief facts of the case as may be relevant for the purpose of disposal of the writ petition may be stated as follows. 3. The petitioner states that his father-in-law aged about 72 years at the relevant time, was suffering from a chronic ailment relating to Intestine Tumor and had been undergoing treatment in Shushila Jaswant Hospital at Meerut for along time. As there was no responsible person to look after his ailing father-in-law, the petitioner had applied for grant of 60 days' earned leave to attend to his ailing father-in-law which, however, was not granted and instead, the authorities granted 15 days' casual leave. Thereafter, he again sought for 30 days' earned leave which was also not accepted by the authorities, instead, he was given 1 day's out station leave. The petitioner after over staying for 4 days reported to the Bn. Head Quarter at Mathura. As the condition of the ailing father-in-law did not improve, he again requested the authorities for sanctioning leave. Instead of sanctioning leave, the authorities directed the petitioner to proceed to Shillong where the Battalion was located and the authorities issued movement order and railway warrant to proceed to Shillong. It seems that the petitioner instead of proceeding to Shillong, again applied for leave which was not granted. According to the petitioner, he had applied for sanction of 30 days' leave and made the request to the authorities over telephone which was allowed and accordingly, the petitioner proceeded on leave to attend to his ailing father-in-law who was operated on 17.06.2004 at the aforesaid Hospital at Meerut Thereafter, the petitioner joined the Battalion on 10.07.2004 and submitted the medical documents and applied for regularizing his leave which he had taken. 4. 4. It is the case of the petitioner that on 23.08.2004 the Commandant called the petitioner in his orderly room and without any reason or assigning any reason, and also without issuing any show cause notice, awarded punishment of confinement of the petitioner in line for 15 days w.e.f. 23.08.2004 to 06.09.2004. The said punishment was duly recorded in punishment register of 53rd Bn. of the Headquarter. It is the case of the petitioner that in view of oppressive atmosphere created by the superior authorities by not granting leave as well as by keeping the petitioner in confinement, he submitted an application on 26.08.2004 seeking discharge from service. However, the Officer Commandant, D/53 Bn., C.R.R.F. informed him stating that his application for discharge submitted on 26.08.2004 was not written in proper official language and without showing any proper reasons, and accordingly, the said application was not accepted. According to the petitioner, he was given an interview by the DIGP, C.R.P.F., Guwahati who had happened to be Mathura at the relevant time on 28.08.2004, who orally assured him that he would reconsider the punishment of confinement awarded to the petitioner and directed the respondent No. 4, i.e. Commandant 53rd Bn. C.R.P.F. to obtain proper application from the petitioner to enable him to look into the same. 5. Petitioner states that on 28.08.2004, he was called by the respondent No. 4 in his chamber alone and said that he would reconsider the punishment and as certain formalities had to be completed, he asked the petitioner to sign on two blank papers. The petitioner under impression that his case would be favourably considered gave two blank papers with signatures. However, later on, on the same day, i.e. on 28.08.2004, the petitioner was handed over the impugned discharged order passed by the respondent No. 4. The case of the petitioner is that the authorities have utilized one of such blank papers in which he had put his signatures, as an application for discharge which has been annexed at Annexure-A/IV to the affidavit-in-opposition filed by the respondent No. 3, which was purportedly accepted by the authorities on the same day and the impugned discharge order was also issued on the same day. The petitioner states that he never submitted such application for discharge on 28.08.2004. The petitioner states that he never submitted such application for discharge on 28.08.2004. The petitioner states that he had submitted earlier an application for discharge on 26.08.2004 under intense pressure from the higher authorities which was not accepted as stated above but he never submitted such application for discharge on 28.08.2004. The further contention of the petitioner is that even if the aforesaid application dated 28.8.2004 is assumed to be a voluntary application for discharge duly submitted by him, the authorities could not have accepted it on the same day, in view of the specific provisions in C.R.P.F. Act, 1949, and Rules thereunder and hence, it is liable to be interfered with. 6. Learned counsel for the petitioner has drawn attention of this Court to Rule 17 of the C.R.P.F. Act, 1949, which reads as follows : 17. Discharge- Subject to the provisions of the Schedule appended to the Act, any member of the Force shall at any time before he has completed three months' service or after the completion of the full period of service for which he is engaged, be entitled to claim his discharge from the Force by applying to his appointing authority through the proper channel. 17-A. Recoveries on resignation and discharge- A member of the Force seeking resignation under rule 16 or discharge under rule 17 from service shall be required to refund to the Government a sum equal to three months pay and allowances received by him or her prior to the resignation or discharge, as the case may be, or the cost of training imparted to him or her in the Force, whichever is higher : Provided that in the case of a member of the force seeking discharge from service under rule 17 within the period of three months from the date of enrolment, the sum equal to three months pay and allowances shall be calculated with reference to three months pay and allowances which would have been received but for discharge : Provided further that a member of the Force tendering resignation of seeking discharge from service for accepting a job under the Central or State Governments or local bodies, after having been granted cadre clearance for the same, shall not be required to refund the sum as provided hereinabove. 7. 7. Learned counsel for the petitioner submits that the aforesaid provisions have to be read with the Schedule appended to the C.R.P.F. Act, 1949, which also reads as follows. THE SCHEDULE RECRUITING ROLL (See Section 5) After you have served in the Force for such period as the Central Government may prescribe, you may, at any time when not on active duty, apply for discharge, through the officer to whom you may be subordinate to the Commandant, and you will be granted your discharge after two months, from the date of your application, unless your discharge would cause the vacancies in the Force to exceed one-tenth of the sanctioned strength in which case you shall be bound to remain until this objection is waived or removed. But when on active duty, you shall have no claim to a discharge, and you shall be bound to remain to do your duty until the necessity for retaining you in the Force ceases when you may make application in the above mentioned manner : Provided that, if you wish to withdraw from the Force, you may submit your resignation at any time before the expiration of the first three months of your service, but not afterwards until the completion of the period prescribed as aforesaid; the Commandant either accept your resignation forthwith or at the end of three months from the date of its receipt : Provided, also, that the Commandant may, if he thinks fit, allow you to resign at any time on your giving three months notice of your wish to do so. ............................................................. Signature of the member of the Force in acknowledgement of the above having been read out to him. ............................................................. Space for impression of the member's left thumb to be taken in the presence of the enrolling officer. ............................................................. Signed in my presence after I had ascertained that the candidate understood the purport of what he signed. Commandant, or other authorized enrolling officer Place........ Date......... 8. Section 5 of the Act provides that before any person is appointed to be a member of the Force, the statement contained in the recruiting roll set out in the Schedule shall be read out and, if necessary, explained to him in presence of the designated officials, and shall be signed by such person in acknowledging of having being so read out to him. The Schedule referred to has been reproduced hereinabove. The Schedule referred to has been reproduced hereinabove. 9. Learned counsel for the petitioner submits that in terms of the aforesaid Schedule read with Rule 17, any application for discharge can be accepted only after 2 months when the employee concerned is not on active duty. However, if the employee is on active duty, such discharge application cannot be accepted until necessity for retaining the applicant in the Forces ceases. According to the petitioner since he was on active duty, such application for discharge could not have been accepted till the authorities find that the necessity for retaining in the Forces was no more required. Learned counsel for the petitioner has also drawn attention of this Court to the circular issued by the Director General, C.R.P.F. vide order No. R. XIII-40/90-Admn. II dated 17.05.1990 (Annexure-G) wherein it has been provided that since in many cases persons without realizing the pitfalls of leaving the service, may seek discharge from service, the authorities before accepting such application for discharge are to explain the problems to such members which may arise on seeking discharge from service. In the said circular it has been stated that even though it was not in the interest to retain unwilling Government servant in service, care has to be taken that no one is allowed to proceed on discharge/voluntary retirement without any compelling reasons. The authority competent to accept resignation should, therefore, ensure personally that the person seeking discharge/voluntary retirement has genuine and compelling reasons to do so. It was also directed that to ensure that, the authority concerned should obtain an undertaking from the individual to the effect that he has been explained in detail about the likely hardships, which he may face in this uncertain and difficult economic age after his discharge/voluntary retirement and that such an undertaking should be kept on record. 10. In the present case, learned counsel for the petitioner has submitted that no such counselling was done nor any such undertaking was taken from the petitioner which would go to show that the earlier application submitted by the petitioner for discharge from service was not really voluntary but made under oppressive atmosphere created by superior authorities. 10. In the present case, learned counsel for the petitioner has submitted that no such counselling was done nor any such undertaking was taken from the petitioner which would go to show that the earlier application submitted by the petitioner for discharge from service was not really voluntary but made under oppressive atmosphere created by superior authorities. Learned counsel appearing for the petitioner has also submitted that the fact that 15 days punishment of confinement imposed on the petitioners had not yet expired as it was to expire on 6.9.2004, would clearly show that the said discharge order dated 28.8.2004 was a manipulated one in order to remove the petitioner from service by taking advantage of his unstable mental condition caused by the harassment by the superior authorities in refusing leave in the circumstances as explained above. Learned counsel submits that the aforesaid order of discharge dated 28.8.2004 was passed in undue haste and also in violation of the guidelines dated 17.5.1990 issued by the Director General, CRPF. 11. The aforesaid guidelines was issued in view of the fact that a large number of personnel had proceeded to be discharged from service on their own without realising the hardships and subsequent unemployment which would follow. In view of that, the authorities were directed to deal with such application for discharge carefully and explain to the personnel of such consequential difficulties which may follow upon discharge from service. To ensure that such applications for resignation/discharge from service are genuine and for compelling reasons, the authorities were directed to obtain an undertaking from the individual concerned to the fact that he had been explained in detail about the likelihood hardships, which he may face in these uncertain and difficult times after his discharge/voluntary retirement and such an undertaking is to be kept on record. 12. Learned counsel appearing for the petitioner submits that no such counseling was done by the authorities before issuing the aforesaid impugned discharge order on 28.8.2004. Furthermore, no such undertaking was obtained from the petitioner to show that the petitioner was indeed explained about the consequence of such discharge from service. 13. The respondent No. 3 filed an affidavit-in-opposition denying the allegations. Furthermore, no such undertaking was obtained from the petitioner to show that the petitioner was indeed explained about the consequence of such discharge from service. 13. The respondent No. 3 filed an affidavit-in-opposition denying the allegations. Coming more particularly to the pertinent issue regarding application for discharge and acceptance thereof, the respondents have stated in their affidavit-in-opposition that the petitioner had appeared before the DIGP, CRPF, Guwahati, who was visiting the Headquarter at Mathura on 27.8.2004. After hearing his grievance, the DIGP explained to him the likely hardship which he may face in this uncertain and difficult economic situation. The petitioner was also explained about the consequence that he may have to face after his discharge. However, the petitioner was adamant and refused to listen to the advice of the DIGP and he insisted upon acceptance of his resignation. Accordingly, finding on other alternative, the DIGP, the respondent No. 3 advised the petitioner to submit a written application before the Commandant of 53 Bn. CRPF, the respondent no. 4, who was the appointing authority of the petitioner. Accordingly, the petitioner submitted a fresh application on 28.8.2004 seeking discharge from service citing domestic problems. Accordingly, it has been stated that the action of the authorities in issuing the discharge order on 28.8.2004 does not suffer from any irregularity or illegality and accordingly, the present writ petition is liable to be dismissed. 14. Learned counsel appearing for the respondents also stated that even if this Court finds that such undertaking as required under letter/guidelines/instructions dated 17.5.1990 issued by the Director General, CRPF, was not taken and not kept on record, it cannot have any fatal consequence vis-a-vis the discharge certificate as it was merely directory and not mandatory. In other words, merely because such an undertaking was not obtained from the petitioner and not kept on record, such lapse on the part of the authorities would not have the effect of invalidating the discharge certificate which otherwise was voluntarily made and duly accepted by the appointing authority. 15. I have heard the learned counsel appearing for the parties. Learned counsel appearing for the respondents had produced the records relating to the aforesaid discharge application filed by the petitioner. 16. 15. I have heard the learned counsel appearing for the parties. Learned counsel appearing for the respondents had produced the records relating to the aforesaid discharge application filed by the petitioner. 16. A perusal of the provisions of the CRPF Act and Rules and the guidelines/instructions/circulars issued by the CRPF authorities in this regard would indicate that any application for resignation/voluntary retirement by a member of the Force is to be dealt with carefully keeping in view the interest of the individual concerned and also the larger interest of the Force and society. 17. Schedule to the Act, as reproduced above, would clearly indicate that the application for discharge is not to be accepted mechanically merely on the ground that a person has voluntarily applied for discharge. A reading of the Schedule would show that when not on active duty, an application for discharge by a member of the Force will be granted after two months from the date of application, unless such discharge would cause vacancies in the Force to exceed 1/10th of the sanctioned strength. The Schedule also provides that when on active duty, a member shall have no claim to discharge and shall be bound to remain to the duty until the necessity for retaining a member in the Force ceased. The aforesaid provision, therefore, makes it very clear that normally a member will not be discharged before two months of the application. Secondly, even such application for discharge after two months cannot be allowed if it would cause vacancy in the Force to exceed 1/10th of the sanctioned strength. Till such problem is removed or waived, any such application for discharge cannot be entertained. Thirdly, if one is on active duty, a member cannot be discharged till the authorities decide on the necessity for retaining of the member in the Force. 18. The above provisions, therefore, make it abundantly clear that whenever a member makes an application for discharge, the authorities would not grant discharge before two months and that too, without examining whether such a discharge would lead to more vacancies than 1/10th of the sanctioned strength and when on active duty, whether his necessity is required or not. In other words, there has to be a conscious application of mind on the aforesaid consideration regarding the strength of the Force before the authorities decide on any application for discharge. In other words, there has to be a conscious application of mind on the aforesaid consideration regarding the strength of the Force before the authorities decide on any application for discharge. The aforesaid provisions have been made in the larger interest of the Force so that any such application for discharge does not disturb the optimal level of functioning of the Force which are enjoined upon to discharge various duties of sensitive nature as well as maintaining law and order through out the country. 19. Apart from considering the interest of the Force as stated above, the authorities also have to consider the interest of the member concerned. This is clearly evident from the guidelines/instructions/circular/letter dated 17.5.1990 issued by the Director General of CRPF enjoining upon all the competent authorities/appointing authorities to counsel such members who seek discharge/resignation from the force of the peril of unemployment and the consequential hardships one may face after leaving the service. The authorities are directed to advice and counsel such members from taking such an extreme steps of leaving the service. Therefore, to ensure that such advice and counseling takes place genuinely and not to reduce it to a mere formality, it was required that the authorities concerned take an undertaking in writing from the concerned member of having been explained of such eventualities and keep such an undertaking on record. It may not be far fetched to assume that the aforesaid guidelines/instructions/circular/letter was issued not only in the interest of the individual but also in the larger interest of the society. It may, perhaps, be seen from this aspect also that when a person trained in arms, after leaving the service gets confronted with the spectre of unemployment and other hardships, may prove to be a serious danger to the society. Therefore, insistence on adhering to the instruction as laid down in 17.5.1990 cannot be lightly brushed aside as it serves as a preventive measure against any possible harm to the individual as well as to the larger interest of the society. 20. Therefore, any application for discharge has to be dealt with by the authorities concerned, from two perspectives; one from the perspective of the individual and another from the perspective of the Force and the society at large. 21. Keeping the aforesaid considerations in mind, we shall examine the issue at hand. 22. 20. Therefore, any application for discharge has to be dealt with by the authorities concerned, from two perspectives; one from the perspective of the individual and another from the perspective of the Force and the society at large. 21. Keeping the aforesaid considerations in mind, we shall examine the issue at hand. 22. Skirting the issue raised by the petitioner that the petitioner was asked to submit two blanks papers with his signatures, one of which was ultimately converted to an application for discharge, we shall proceed to consider whether the petitioner had indeed voluntarily submitted an application for discharge. 23. If indeed the petitioner had submitted an application for discharge on 28.8.2004 as stated by the Respondents, it ought to have been followed up by counselling and advice by the authorities to refrain from taking such step of resignation from the service and if the petitioner still remained adamant to his stand, an undertaking ought to have been obtained from the petitioner to show that the authorities had indeed counselled him from taking such a step and a copy thereof, ought to have been placed on record. 24. However, a perusal of the records produced before this Court shows that there are only two documents available on record preceding the issue of the discharge order dated 28.8.2004, i.e., the forwarding letter containing the application for discharge dated 28.8.2004 stated to have been submitted by the petitioner. In the said forwarding letter dated 28.8.2004, it has been mentioned as follows:- Sir, Please find herewith a discharge Petition submitted by F/No. 911180799 C/GD Gyani Singh by which he has sought discharge from the Force on account of his family problems. On an earlier occasion, he took a personal audience with the DIGP, CRPF, Guwahati (Assam). On that occasion, the letter explained to him in details about the severe hardships he would have to face in the event of his discharge from service. Now, the petition of the Force Member is sent to your office for necessary action. Sd/- Illegible 28.8.2004 The aforesaid forwarding letter does not indicate as to when the petitioner had submitted the earlier application for discharge. Now, the petition of the Force Member is sent to your office for necessary action. Sd/- Illegible 28.8.2004 The aforesaid forwarding letter does not indicate as to when the petitioner had submitted the earlier application for discharge. It also merely says that on earlier occasion, the petitioner took a personal audience with the DIGP, CRPF, Guwahati (Assam), on which the DIGP had explained to him in detail about the sufferings/hardships he would have to face in the event of his discharge from service. The said forwarding letter also does not indicate when such personal audience took place and also whether the petitioner insisted on submitting his discharge application inspite of such personal audience with the DIGP. There is nothing on record of any prior application submitted by the petitioner which necessitated such a counselling. 25. In the affidavit-in-opposition filed by the respondents, it had been stated in para No. 13 that the petitioner had appeared before the DIGP on 27.8.2004 where the DIGP had explained the likely hardship but the petitioner was adamant and refused to listen to the advice of the DIGP and insisted on accepting his resignation. Accordingly, the DIGP advised the petitioner to submit a written application before the Commandant of 53 Bn. CRPF which he did accordingly on 28.8.2004 citing domestic problems which was accepted. 26. It is not understood as to how the aforesaid averments were made in para No. 13 of the affidavit-in-opposition in absence of anything on record, as stated above. The record produced before this Court reveals only the said forwarding letter dated 28.8.2004 which does not contain any such details as had been mentioned in Para No. 13 of the affidavit-in-opposition. Therefore, this Court is reluctant to take credence to the submission made in para No. 13 of the affidavit-in-opposition filed by the respondent No. 3 stating that the petitioner was given audience on 27.8.2004 and he was counselled by the DIGP, which he adamantly refused to listen and insisted on acceptance of his resignation and that having no other alternative, the DIGP had directed the petitioner to submit an application before the respondent no. 4. It may be stated that if there were any such counselling on the issue of application for discharge, some application should have preceded such counselling. 4. It may be stated that if there were any such counselling on the issue of application for discharge, some application should have preceded such counselling. Neither in the forwarding application, nor in the records, there is any reference to such an application for discharge submitted by the petitioner. 27. In this regard, it may be mentioned that the petitioner himself had claimed in the writ petition that he had submitted an application for discharge from service on 26.8.2004, which, however was rejected by the Commandant stating that the application submitted by the petitioner on 26.8.2004 is not written in the proper official language and if the petitioner wanted to go on discharge from service, another application in the proper official language by showing proper reasons should be submitted and accordingly sent back the application dated 26.8.2004. 28. It is interesting to note that there is no such reference to the application dated 26.8.2004 stated to have been submitted by the petitioner nor the letter dated 27.8.2004 returning the said application either in the forwarding letter dated 28.8.2004 or in the record. Therefore, in the context of vehement argument by the petitioner that the petitioner had never submitted application for discharge from service on 28.8.2004, the failure on the part of the authorities to produce the relevant records showing the circumstances under which the so called application was submitted by the petitioner for discharge from service on 28.8.2004, does not inspire confidence about the genuineness of their stand. The fact that no such undertaking is also in the file creates further doubt on the genuineness of the actions of the authorities in issuing the discharge order on 28.8.2004. Therefore, this Court is of the view that the aforesaid application dated 28.8.2004 stated to have been filed by the petitioner is suspect and also as the authorities have not resorted to the precautionary procedures before accepting such an application for discharge from service, the impugned discharge order dated 28.8.2004 is liable to be interfered with. Further, since the petitioner was on active duty, which was not denied by the respondents, the application for discharge submitted by the petitioner could not have been accepted till the authorities took a decision regarding the necessity for retaining in service as mentioned in the Schedule to the Act. There is no such reference in the records about such decision being taken by the authorities. 29. There is no such reference in the records about such decision being taken by the authorities. 29. It may be also stated that if the petitioner was not on active duty, the authorities had to apply their mind as regards the issue of maintaining optimum level of vacancy to the extent of 1/10th of the sanctioned strength in the Force as mentioned in the Schedule to the Act. There is nothing on record to show that the authorities had at all considered this aspect. Therefore, in absence of either of the exercises required to be undertaken by the authorities in the case, where the personnel is on active duty or not when on active duty, this Court is of the view that the decision of the authorities in issuing the impugned discharge order dated 28.8.2004 suffers from the vice of non-application of mind. 30. As regards the contention of the learned counsel appearing for the respondents that the aforesaid guideline/instruction/circular dated 19.5.1990 is not mandatory and violation of such instructions therein would not render the impugned order illegal, it has to be mentioned that the said guideline/instruction/circular would have the force of law inasmuch such guideline/instruction/circular is not repugnant or contrary to any specific provisions of the CRPF Acts and Rules but rather such guideline/instruction/circular has been issued to effectuate the provisions of the Acts and Rules. Even otherwise also such guideline/instruction/circular being beneficial not only to the interest of the individual members but also the society at large, cannot be ignored by the authorities. Such guideline/instruction/circular ought to be substantially complied with as otherwise the whole public purpose for issuing such a guidelines/instruction/circular would be frustrated. 31. As discussed above, the record or materials available before this Court do not inspire confidence of this Court to the effect that the petitioner was indeed counselled not to take such a step and also that he insisted upon for discharge from service inspite of such advice. In other words, circumstances, as discussed above and records available, do not indicate that the petitioner had submitted an application for discharge from service knowing fully well the consequence thereof, and that authorities had applied their mind properly on the issue of the proper maintenance of the strength of the Force, as provided under the Schedule to the Act before the discharge order was issued. 32. 32. On the other hand, if the contention of the Respondents is to be believed, what would transpire is that there was an application filed by the petitioner for discharge from service (regarding which there is nothing on record) and assuming that after the application was filed on 26.08.2004 and that the petitioner was counselled on 27.08.2004 and as the petitioner was adamant, he submitted his application for discharge on 28.08.2004 which was accepted on the same day on 28.8.2004 and was discharged on 28.8.2004. It is to be mentioned again that there was no written undertaking from the petitioner as required under the guidelines dated 17.9.1990 available in the record, nor the Respondents have stated that the same was taken. The aforesaid sequence would reveal that the entire episode of the discharge took place at such a fast pace, which in the facts and circumstances as discussed above, does not inspire confidence of this Court to believe it to put a stamp of approval to the actions of the Respondents. Consequently, the aforesaid impugned discharge order dated 28.8.2004 is liable to be interfered with. As a result, the impugned discharge order dated 28.8.2004 is set aside. The petitioner is directed to be reinstated in service within a period of one month. In view of the fact that the petitioner had not rendered any service, the petitioner would not be entitled to back wages upon reinstatement. However, the period from the date of discharge i.e. 28.8.2004 till reinstatement will be deemed to be in regular service for all purposes except for the payment of arrears of salary as stated above. The writ petition is, accordingly, disposed of.