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Rajasthan High Court · body

2014 DIGILAW 803 (RAJ)

Shyam Lal S/o Basta Ram v. U. O. I.

2014-03-27

VINEET KOTHARI

body2014
JUDGMENT : - Hon'ble Dr. KOTHARI, J.—The petitioner, Shyam Lal S/o Basta Ram, Ex-Constable vide No.921320226, was working in the Central Reserve Police Force (CRPF, for short) has filed the present writ petition in this Court on 28.5.2001 at the age of 28 years, aggrieved by the order of the Disciplinary Authority, namely, Commandant of the respondent C.R.P.F., 52 Battalion, on the ground of over-stay without leave for 37 days, for which the respondent, Commandant, considered it appropriate to dismiss him from the services of the respondent-C.R.P.F. vide the impugned order dated 12.11.1999 (Annex.1). The appellate and revisional authorities, upheld the said order and, therefore, being aggrieved by the said orders dated 8.3.2000 (Annex.2) and the order dated 1.2.2001 (Annex.3) also, the present writ petition was filed in this Court. 2. The undisputed facts giving rise to the present writ petition are like this. The petitioner was appointed as Constable in the respondent- C.R.P.F., on 27.02.1992 and on a casual leave sanctioned for 10 days, for the period 08.07.1996 to 18.07.1996 when he was away to Delhi, he was arrested in a case relating to possession of opium by him on 15.07.1996 and along-with one more co-accused, Constable of the same respondent- C.R.P.F., namely, Mr. Tana Ram Soda, of E/52 Battalion, of CRPF, the petitioner and the other person were arrested and tried for the said offence of possession of contraband article by the competent court and while the said co-accused, namely, Tana Ram Soda, appears to have been acquitted or discharged by the competent court on 28.11.1996 at the initial stage of the trial itself, the present petitioner was so acquitted later on upon completion of the trial on 09.07.1999 after about a period of three years. After 09.07.1999, he reported for duty on 16.08.1999 and he was allowed to resume his duties but an enquiry was held against him on the charge of over-stay than the sanctioned leave for a period of 37 days from the date 10.07.1999 (next day after his acquittal on 09.07.1999) to 15.08.1999 since he reported for duty on 16.08.1999. The Enquiry Officer, found him guilty of such over stay and the Disciplinary Authority passed the impugned order (Annex.1) dated 12.11.1999, imposing the punishment of dismissal from the service. The relevant para 7 of the impugned order dated 12.11.1999 is quoted herein below for ready reference:- “07. The Enquiry Officer, found him guilty of such over stay and the Disciplinary Authority passed the impugned order (Annex.1) dated 12.11.1999, imposing the punishment of dismissal from the service. The relevant para 7 of the impugned order dated 12.11.1999 is quoted herein below for ready reference:- “07. I have carefully gone through the departmental enquiry proceedings, report of the enquiry officer and having examined each and every aspect of the case in detail and also having applied my mind judiciously to the facts of the enquiry, documentary evidences brought out by the enquiry officer during the course of departmental enquiry it leaves no doubt in my mind that the article of charge framed against the delinquent No.921320226 Ct. Shyam Lal of E/52, Bn. CRPF, has been proved without any shadow of doubt. I, therefore, do not consider No.921320226 Ct. Shyam Lal of E/52 Bn., CRPF, fit to be retained in the force and in exercise of powers vested to me under Section 11 (1) of CRPF Act, 1949 read with the table below Rule-27 of CPRF Rules, 1955, hereby impose penalty of 'DISMISSAL FROM SERVICE' on No.921320226 Ct. Shyam Lal of E/52 Bn. CRPF, with immediately effect (i.e. from the date of issue of office order). His suspension period wef 16/7/96 to 22/8/99 is hereby regularised as such for all purposes and sanctioned CL wef 8/7/86 to 15/7/96 is regularised as 08 days earned leave. 08. He is also struck off from the strength of this unit from the date of issue of this order. His other particulars are as under:- 1. Father's name Shri Basti Ram 2. Village & P.O. Ransigaon 3. Police Station Bilara 4. Distt. Jodhpur 5. State Rajasthan 6. Date of birth 20.7.73 7. Date of enlistment 27.2.92. 9. All medals and decorations, if any earned by him during service are also ordered to be forfeited under Section 12 (1) of CRPF, Act, 1949.” 3. The appellate and the revisional authority also upheld the order passed by the disciplinary authority vide their respective orders dated 08.03.2000 (Annex.2) and the order dated 01.08.1997 (Annex.3). Being aggrieved by the same, the petitioner has filed the present writ petition. 4. Mr. The appellate and the revisional authority also upheld the order passed by the disciplinary authority vide their respective orders dated 08.03.2000 (Annex.2) and the order dated 01.08.1997 (Annex.3). Being aggrieved by the same, the petitioner has filed the present writ petition. 4. Mr. B.S. Sachan, learned counsel for the petitioner urged that the punishment of dismissal from the service is highly disproportionate and unjustified and incidentally the other co-accused person in the same case, who also over stayed after his acquittal/discharge from the competent court, for a period of 37 days by the order dated 01.08.1997 passed by the Disciplinary Authority of CRPF, the copy whereof is placed on record as Annex.A/12, imposed a far lesser punishment on the said Constable, namely, Tana Ram Soda, only to the extent of 10 days confinement to line w.e.f. 02.08.1997 to 11.08.1997, whereas in the case of the present petitioner for exactly same period of over stay than the leave sanctioned/arrest and trial period by the competent court, for which he was charged with alleged misconduct of over stay than the sanctioned leave, for a period of 37 days, from 10.07.1999 to 15.08.1999 and, therefore, such disproportionately higher punishment of dismissal, deserves to be quashed and set aside by this Court by allowing the present writ petition. 5. Learned counsel for the petitioner relied upon the following judgments in support of his contentions: 1. Shri Bhagwan Lal Arya vs. Commissioner of Police, Delhi & Anr. reported in (2004) 4 SCC 560 , 2. Ram Autar Singh vs. State Public Service Tribunal & Ors. reported in (1998) 9 SCC 666 3. Sardar Singh vs. State of Rajasthan & Ors. reported in 2009(1) WLN 352 (Raj.). 6. As against this, the learned counsel for the respondents, Mr. reported in (2004) 4 SCC 560 , 2. Ram Autar Singh vs. State Public Service Tribunal & Ors. reported in (1998) 9 SCC 666 3. Sardar Singh vs. State of Rajasthan & Ors. reported in 2009(1) WLN 352 (Raj.). 6. As against this, the learned counsel for the respondents, Mr. V.K. Mathur, justified the impugned orders on the ground that the explanation submitted by the petitioner for such over stay that he was not given the subsistence allowance for the period of suspension, when he was under arrest and in under trial, and therefore, on account of his failure to receive such subsistence allowance from E/52 Bn., Unit of CRPF, where he was employed, he could not square up the bill for fees of his lawyer, who defended him in the competent court, and in this process the delay of 37 days took place and finding this explanation as not plausible, the respondent, Commandant, however, imposed the said punishment of dismissal from service, which was justified. He also relied upon certain case-laws, the list which was given by the learned counsel for the respondents during the course of arguments. In support of his contentions, learned counsel for the respondents relied upon these case-laws: 1. Bhagat Ram vs. State of Himachal Pradesh & Ors., reported in AIR 1983 SC 454 . 2. Ranjit Thakur vs. U.O.I. & Ors., reported in (1987) 4 SCC 611 3. Ex-Naik Sardar Singh vs. U.O.I. & Ors., reported in (1991) 3 SCC 213 4. Chairman-cum-Managing Director, Coal India Ltd. & Anr. vs. Mukul Kumar Choudhri & Ors., reported in (2009) 15 SCC 620 . 5. Chairman & Managing Director, V.S.P. & Ors. vs. Goparaju Sri Prabhakarn Hari Babu, reported in (2006) 4 SCC 322. 6. Director General of Police & Ors. vs. G. Dasyan, reported in (1998) 2 SCC 407 7. I have heard the learned counsel for the parties at length and perused the record and the judgments cited at Bar. 8. 5. Chairman & Managing Director, V.S.P. & Ors. vs. Goparaju Sri Prabhakarn Hari Babu, reported in (2006) 4 SCC 322. 6. Director General of Police & Ors. vs. G. Dasyan, reported in (1998) 2 SCC 407 7. I have heard the learned counsel for the parties at length and perused the record and the judgments cited at Bar. 8. The punishment by way of dismissal from service in the facts and circumstances narrated above upon the petitioner, appears to be highly disproportionate, more so, when another person of the same rank, working with the petitioner and incidentally, involved in the same alleged offence against both of them under the N.D.P.S. Act, the other person, namely, Tana Ram Soda, got the punishment at the hands of the Disciplinary Authority for over stay of 37 days, by way of 10 days confinement in the Battalion Lines, whereas the petitioner after full trial and acquittal by the competent court on 9.7.1999, and tried for the same alleged misconduct of over stay of 37 days (incidentally the period of over stay by both is also same) he is awarded the punishment by the Disciplinary Authority by way of dismissal from the service. Merely because, subsequently the order is passed by a successor in the office, altogether ignoring the previous order passed by the earlier incumbent in the office of the Commandant of the same Battalion, on almost identical facts and circumstances, such penalty poles apart in nature, shocks the conscience of this Court. 9. Learned counsel for the petitioner also submitted before this Court with reference to Section 10 of the Central Reserve Police Act, 1949, where Sections 9 and 10 define 'more heinous offence' and 'less heinous offence' by the Member of the force. Clause 10(m) defines less heinous offence stipulates 'absent himself without leave or without sufficient cause over stay leave granted to him'. Counsel for the petitioner further urged that when the statute itself treats over stay, than sanctioned leave, as a minor or less heinous offence by the Member of the force, imposition of punishment by way of dismissal from service by the respondent, Commandant, was not at all called for. This Court finds considerable force in this submission. The quoted portion of the impugned order passed by the Commandant would show the total non-application of mind by the said respondent to the relevant facts and circumstances. This Court finds considerable force in this submission. The quoted portion of the impugned order passed by the Commandant would show the total non-application of mind by the said respondent to the relevant facts and circumstances. The discussion in the lengthy order of the respondent, Commandant, is more about the reasons for which the subsistence allowance could not be paid to the petitioner for the period of his arrest/suspension from the service rather than the explanation furnished for such over stay for the period of 37 days and whether such reasons were found to be cogent or not, and whether even if such reasons were to be rejected, the punishment by way of dismissal from the service only would be more appropriate punishment to be imposed on the petitioner. 10. It is true that the Court would not substitute its own wisdom, while determining the quantum of the punishment in the disciplinary action against the Govt. servant(s) and more so, when they are serving a sensitive Department like the Central Reserve Police Force, but the absence for any reasons given in the impugned order(s), and highly disproportionate quantum of penalty in comparison with the alleged misconduct against another Member of the force, compels this Court to invoke its equitious jurisdiction u/Art. 226 of the Constitution of India for meeting the ends of justice and to prevent a serious mis-carriage of justice, if such disproportionately high puni-shment depriving a young man of 28 years from his entire service career was to be upheld merely because the petitioner belongs to a sensitive Department like CRPF. The precedents in this regard are not lacking when the Courts in such circumstances, have intervened and have reduced the punishment, setting aside the highly disproportionate or excessive punishment. 11. The precedents in this regard are not lacking when the Courts in such circumstances, have intervened and have reduced the punishment, setting aside the highly disproportionate or excessive punishment. 11. In the case of Shri Bhagwan Lal Arya (supra), when a police constable who remained absent for more than two months on medical grounds with sanction of leave, was removed from the service after holding enquiry, the Hon'ble Apex Court directed reinstatement back in service setting aside the dismissal order by holding as under:- “After issuing sanction for leave for the period in question, the employee's legitimate expectation would be that no stern action would be taken against him with respect to the alleged act of misconduct which by no stretch of imagination can be considered act of gross misconduct or continued misconduct indicating incorrigibility and complete unfitness for police service. 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. Thus, the punishment of dismissal/ removal from service imposed on the appellant is not only highly excessive and disproportion but is also one which was not permissible to be imposed as per the Services Rules. Therefore, the decision of the disciplinary authority inflicting a penalty of removal from service is ultra vires of Rule 8 (a) and 10 of the Delhi Police (Punishment and Appeal) Rules, 1980 and is liable to be set aside. The appellant also does not have any other source of income and will not get any other job at this age and the stigma attached to him on account of the impugned punishment, as a result of which, not only he but his entire family totally dependant on him will be forced to starve. These are the mitigating circumstances which warrant that the punishment/order of the disciplinary authority is to be set aside.” 12. These are the mitigating circumstances which warrant that the punishment/order of the disciplinary authority is to be set aside.” 12. Similarly in the case of Ram Autar Singh (supra), the Hon'ble Supreme Court again in the case of police constable who remained on a hunger strike of one day for opposing his transfer and was later on dismissed from the service for such misconduct, held that punishment by way of dismissal from service, was highly disproportionate for such an act and the Hon'ble Court directed the reinstatement back in service with 50% back wages with a warning to the petitioner constable to behave in a more disciplined manner in future and observed as under: - “4. In our view, looking to the facts and circumstances of the case that he remained absent for one day on hunger strike for opposing his transfer it could not have been said that it required the punishment of dismissal from service. Consequently, in our view, interest of justice will be served if the order of dismissal is set aside and instead the appellant is ordered to be reinstated in service with only 50 per cent of back wages as we are told that since 1991 till date, he is out of a job. The appellant shall also file a written apology for what he had done on the fateful day and must undertake to be transferred to any place to which he is ordered to be transferred by the competent authority. The appellant shall also be warned to behave in a more disciplined manner in future. The aforesaid order of punishment, in our view meets the ends of justice. The appellant shall report to the Superintendent of Police, Lalitpur under whom he was working prior to his dismissal and thereafter he will be subjected to any further orders of transfer, if any. The appellant will be reinstated with continuity of service and with all other consequential benefits. 50% back wages shall be paid to the appellant in six weeks of his reporting for duty. The appeal is allowed to the aforesaid extent. No costs.” 13. The appellant will be reinstated with continuity of service and with all other consequential benefits. 50% back wages shall be paid to the appellant in six weeks of his reporting for duty. The appeal is allowed to the aforesaid extent. No costs.” 13. Even a coordinate bench of this Court in the case of Sardar Singh (supra), dealt with a case of a police constable, who remained willfully absent from the duties for 39 days and the absent from the duties in his service career of 662 days on as many as 48 occasions, but the Enquiry Officer held the charges were only partially proved and partially not proved, the coordinate bench of this Court setting aside the disproportionate penalty of dismissal from service looking to the gravity of the charges proved, held as under: - “7. I shall proceed to examine the first argument first. Petitioner when he earlier filed appeal before the appellate authority, his appeal was dismissed vide order dated 18/6/1990 where-against he approached the Governor of the State by filing review petition. A perusal of the order passed by the reviewing authority dated 13/7/1993 indicates that the reviewing authority considered this aspect in detail. It was noticed that petitioner had raised objection with regard to nonsupply of the enquiry report even before the appellate authority and the appellate authority has noticed this argument in para 5 of its order dated 18/6/1990 but no finding has been given on that aspect. The reviewing authority was convinced that non-supply of enquiry report has prejudiced the petitioner which was very necessary keeping in view the principles of natural justice and due process of law. The reviewing authority, however, merely directed the copy of enquiry report to be furnished to the petitioner and remanded the matter to the appellate authority. This was wholly unreasonable and unacceptable course adopted by the reviewing authority. If at all the reviewing authority was satisfied that non-supply of the enquiry report prejudiced the petitioner, the proper course for him was to have remanded the matter to the disciplinary authority by setting aside the order of penalty with direction to supply copy of enquiry report. The enquiry report is intended to be supplied to the delinquent so that he may represent against the findings recorded therein. The enquiry report is intended to be supplied to the delinquent so that he may represent against the findings recorded therein. Due to non-supply of copy of enquiry report, he remained unaware about such findings and was unable to represent the matter before the disciplinary authority. In the present case, the prejudice is writ large because the enquiry officer has held both the charges partially proved and partially not proved. Had the enquiry report been timely supplied to the petitioner, he would have been in a position to effectively represent his case before the disciplinary authority. 8. Coming now to the next argument, finding that the enquiry office on both the charges as has been noticed above, has recorded part finding favourable to the petitioner namely; that he was able to prove that he was sick for the period of absence and that in so far as earlier period of absence is concerned, he could not be again penalised, as this would amount to punishing him again for the same charges for which he had been earlier penalised and this would be hit by principles of double jeopardy as envisaged in Article 20 (2) of the Constitution of India. The disciplinary authority has certainly committed a grave error of law in not serving upon the petitioner notice of dissent. Supreme Court in S.B.I. & Ors. vs. Arvind Kumar Shukla : AIR 2001 SC 2398 held that if the disciplinary authority disagree with the conclusions or the findings arrived at by the enquiry officer, it is required to give reasons for disagreement, which should be furnished to the delinquent enabling him to represent before the ultimate finding is recorded by the disciplinary authority. Non furnishing reasons to the delinquent vitiates the order of dismissal. 9. The Division Bench of this Court in Datar Singh supra was dealing with a case where charge was for absence on various dates. Period of all such absence had already been regularised by grant of extraordinary leave in respect of such absence much prior to issuance of the charge-sheet. It was held that granting leave due of whatever nature, tantamounts to regularising absence. After such regularisation, no action could be taken afresh. 10. Period of all such absence had already been regularised by grant of extraordinary leave in respect of such absence much prior to issuance of the charge-sheet. It was held that granting leave due of whatever nature, tantamounts to regularising absence. After such regularisation, no action could be taken afresh. 10. In view of the findings on first charge, the argument that the penalty of dismissal for the period of 39 days was wholly disproportionate to the gravity of the charge proved, need not be examined, although on facts it does appear that charge of absence of 39 days would not justify grave penalty of dismissal or removal.” 14. Contrary to this, the judgment relied upon by the learned counsel for the respondents in the case of Director General of Police & Ors. vs. G. Dasyan reported in (1998) 2 SCC 407 and the other case laws, the list is given in the preceding paras, are mainly on the narrow scope of judicial review in such cases and noninterference by the Courts in the quantum of punishment in exercise of jurisdiction under Article 226 of the Constitution of India. From a perusal of the details of these cases, it is clear that each case has turned on its own facts and depending upon the gravity of the offence, the Courts have on some occasions interfered and on some occasions refused to interfere in the quantum of punishment. No case nearer to the facts of the present case has been cited at Bar by the learned counsel for the respondents, which would prevent this Court from interfering with the highly disproportionate punishment of dismissal from the service in the present case of over stay, than the sanctioned leave by a period of 37 days. The case of the similarly situated person, namely, Tana Ram Soda, in the present case stares in the face and had the Disciplinary Authority really passed a speaking order touching the relevant aspects of the matter and satisfying the principles of natural justice, which mandates such authorities to give well reasoned orders, this Court would not have interfered with the impugned orders. However, this Court finds from the perusal of the impugned order and particularly para 7, quoted above, that though the disciplinary authority has used the words “ each and every aspect of the case in detail and also having applied my mind judiciously to the facts of the enquiry”, these words employed in the impugned order are rendered hollow as there is really no discussion at all of the relevant facts in the impugned order. 15. As already stated above, the payment of non-payment of subsistence allowance to the present petitioner during the relevant period itself or once he reported back for the duty, could not really determine the quantum of punishment to be imposed on the present petitioner and if one were to believe the version given by the petitioner that in the absence of his subsistence allowance paid to him, which got accumulated with the Commandant, 52 Bn. of the C.R.P.F., was not paid even when he reported back on duty and thus remittance of said subsistence allowance to him or his family members even during the period of his suspension or arrest/trial, this Court feels that even that could be a reasonable cause for the minor delay of 37 days caused in reporting back on duty on 16.08.1999 instead of the next date after his acquittal and release from the jail on 09.07.1999. The gap of 37 days and the punishment of dismissal from service, cannot be said to be commensurate or proportionate, by any stretch of imagination. 16. Therefore, it is obvious that all the three authorities below in their original, appellate and the revisional jurisdiction, really failed to appreciate the facts in their correct perspective and trigger happy as if they were, dismissed the petitioner from the services itself. It is thus shockingly dis-proportionate punishment, which compels this Court to invoke its jurisdiction under Article 226 of the Constitution of India and quash the impugned orders as being without any reason whatsoever. 17. It is thus shockingly dis-proportionate punishment, which compels this Court to invoke its jurisdiction under Article 226 of the Constitution of India and quash the impugned orders as being without any reason whatsoever. 17. The writ petition is, accordingly, allowed and quashing the impugned orders 12.11.1999 (Annex.1) passed by the Disciplinary Authority, and the order dated 08.03.2000 (Annex.2) and the order dated 01.02.2001 (Annex.3) passed by the appellate and the revisional authorities respectively, the respondents are directed to reinstate the petitioner back in service forthwith with 50% back wages for the period for which he was kept out of job under the impugned orders and such payment of back wages should paid to the petitioner within a period of three months from today. 18. With these observations and directions, the writ petition is, accordingly, allowed. No costs. A copy of this order be sent to the concerned parties forthwith.