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2023 DIGILAW 306 (JK)

Reyaz Ahmad Khan v. Union of India

2023-07-26

SANJAY DHAR

body2023
JUDGMENT : 1. The petitioner has challenged order bearing No.05/2017-EC-11 dated 31.07.2018, passed by respondent No.2, whereby he has been dismissed from service. Challenge has also been thrown to order No.R-XIII-231/18-EC-3 (RAK) dated 06.10.2018, whereby appeal against order dated 31.07.2018 has been dismissed by respondent No.3. A further direction seeking reinstatement of the petitioner has also been sought. 2. Briefly stated, case of the petitioner is that he was appointed as a Constable in Central Reserve Police Force (CRPF) and was posted in 231 Bn. According to the petitioner, leave was sanctioned in his favour from 10.04.2017 to 09.05.2017 but after the period of leave was over, he was unable to resume his duties. It has been submitted that while he was on leave, his son suffered vision disability, as a result of which he had to be admitted to hospital at Srinagar for treatment. It is averred that due to the deteriorating health condition of his son, the petitioner applied for extension of leave which was granted, in the first instance, for eight days and thereafter for another ten days. Ultimately, the petitioner is stated to have joined his duties in the office of respondent No.3 on 12.12.2017 and he performed his duties there upto 31st July, 2018. It has been submitted that all of a sudden services of the petitioner were terminated in terms of impugned order dated 31.07.2018 and even his appeal against the said order has been dismissed. 3. The petitioner has challenged the impugned orders on the ground that he was furnished the notice of show cause in Hindi script which he was not able to understand, as such, he could not respond to the said show cause notice. It has been submitted that the petitioner was made to sign papers without understanding contents thereof and even the charge sheet that was served upon him is in Hindi language, which he is unable to read and understand. In short, the petitioner has submitted that he could not understand the whole enquiry proceedings and the entire process of enquiry was just a formality to terminate his services. It is further contended that the petitioner has not committed any act of neglect of duty in his capacity as a member of the Force and he has remained absent from duty for the reasons beyond his control and not due to his willful conduct. It is further contended that the petitioner has not committed any act of neglect of duty in his capacity as a member of the Force and he has remained absent from duty for the reasons beyond his control and not due to his willful conduct. It has also been contended that respondent No.3 has not appreciated the grounds urged in the appeal filed against the order of termination. 4. The writ petition has been contested by the respondents by filing a reply thereto. In the reply, it has been submitted that the petitioner proceeded on thirty day’s earned leave with effect from 10.04.2017 to 09.05.2017 for the purpose of construction of his house. At his request the leave of the petitioner was extended for 18 days in two spells upto 28.05.2017 but he did not report on duty on the appointed dated i.e., 28.05.2017(AN). It has been submitted that vide communications dated 3rd June, 2017 and 1st August, 2017, issued by the Officer Commanding and communication dated 6th July, 2017, issued by Commandant 231 Bn, CRPF, the petitioner was directed to report for duty immediately but he did not pay any heed to these communications. It has been contended that since overstay from leave without any intimation and permission of the competent authority is an offence under Section 10(m) of the Central Reserve Police Force Act, 1949, as such, on 29th September, 2017, on the basis of a complaint lodged by the Company Commander with the Commandant, warrant of arrest was issued for apprehension of the petitioner. 5. It has been further submitted that a Court of Inquiry was also ordered by the Commandant vide his office order dated 17th October, 2017 and it came to the fore that the petitioner had overstayed his leave with effect from 29.05.2017 without any intimation and permission of the competent authority, which, according to the respondents, is a grave misconduct in terms of Section 11(1) of the CRPF Act. Accordingly, the petitioner is stated to have been declared as deserter by Commandant 231 Bn CRPF vide his order dated 2nd November, 2017. Accordingly, the petitioner is stated to have been declared as deserter by Commandant 231 Bn CRPF vide his order dated 2nd November, 2017. It has been submitted that a departmental enquiry under Section 11(1) of the CRPF Act read with Rule 27 of the CRPF Rules was ordered by the Disciplinary Authority vide memorandum dated 14.11.2017 and the articles of charge along with the relevant documents were served upon the petitioner at his last known home address through registered post but he did not respond. It has been further averred that Shri Amrit Kumar, Assistant Commandant, was appointed as Enquiry Officer and Mr. A. M. Ayappan was appointed as a presenting officer. The petitioner was also asked to nominate his defence assistant. 6. According to the respondents, the petitioner reported back for duties after 198 days of unauthorized absence on 13.12.2017, whereafter enquiry proceedings proceeded in accordance with the procedure prescribed under law. It has been submitted that while conducting the enquiry, the principles of natural justice and other requirements prescribed under rules were adhered to. The Enquiry Officer recorded the findings on the basis of the statements of the witnesses and the explanation tendered by the petitioner. A copy of the enquiry report dated 30.08.2018 was provided to the petitioner, against which he filed a representation before the Disciplinary Authority. After considering his representation, the Disciplinary Authority came to the conclusion that the petitioner was a habitual offender having no interest in his job and his further retention in the Force will be against the discipline and, accordingly, vide the impugned order dated 31.07.2017, the punishment of dismissal from service was awarded against the petitioner. It has been submitted that the petitioner is a habitual offender and on an earlier occasion also, he was found guilty of overstaying from leave by 336 days without permission and he was awarded punishment of reduction of pay. 7. I have heard learned counsel for the parties and perused the record including the record of enquiry. 8. The challenge to the impugned order of termination has been laid by the petitioner mainly on the ground that he has not been provided the material including the charge sheet in the language which he understands but the same has been provided to him in Hindi language which he is unable to read and understand. 8. The challenge to the impugned order of termination has been laid by the petitioner mainly on the ground that he has not been provided the material including the charge sheet in the language which he understands but the same has been provided to him in Hindi language which he is unable to read and understand. According to the petitioner, the whole enquiry proceedings were a mere formality as he was unable to understand the proceedings. In order to support his contention, the learned counsel for the petitioner has relied upon the judgment of the Supreme Court in the case of Mithlesh Kumar Singh vs. Union of India & Ors. (Civil Appeal No.4472 of 2013 decided on May 01, 2013). The other ground, on the basis of which the impugned order has been challenged, is that the punishment awarded to the petitioner is disproportionate to the alleged act of misconduct committed by him. It has been contended that the petitioner has been charged for an offence which is defined as a less heinous offence under Section 10 of the CRPF Act, as such, he could not have been dismissed from service which is a major punishment. In this regard, the learned counsel has relied upon the judgment of this Court in the case of Mohd. Ashraf Shah vs. Union of India & Ors. (SWP No.16/2005 decided on 13.04.2023). 9. So far as the first ground urged by the petitioner is concerned, it is true that the proceedings of enquiry have been conducted in Hindi language. The charges have been framed in Hindi language and other minutes of proceedings including the report of enquiry as well as the impugned orders are in Hindi language. 10. According to the respondents that the petitioner understands Hindi language and he has even corresponded with them in Hindi language on numerous occasions. This fact is borne out from the record of the case. The leave applications as well as applications for extension of leave submitted by the petitioner before the respondents, copies whereof are on record, are in Hindi language. Even the representation of the petitioner made before the Enquiry Officer vide his communication dated 23.03.2018 is also in Hindi language. Another representation made by the petitioner before the Commandant on 08.07.2018 is also in Hindi language. 11. Even the representation of the petitioner made before the Enquiry Officer vide his communication dated 23.03.2018 is also in Hindi language. Another representation made by the petitioner before the Commandant on 08.07.2018 is also in Hindi language. 11. A perusal of the report of enquiry reveals that the petitioner has fully participated in the enquiry proceedings and having regard to the contents of the representations made by the petitioner before the Enquiry Officer and before the Commandant, it becomes clear that he was fully aware about the nature of allegations levelled against him that were subject matter of the of the proceedings before the Enquiry Officer. The record further shows that the petitioner had fully understood the nature of charge regarding which enquiry was being conducted. In these circumstances, it can, by no stretch of imagination, be stated that any prejudice was caused to the petitioner because the proceedings of enquiry were being conducted in Hindi. In fact, a perusal of the record relating to enquiry and the report of enquiry reveals that the petitioner has fully participated in the proceedings and if I may say so, the Enquiry Officer has done a wonderful job while conducting the proceedings and making his report. The contention of learned counsel for the petitioner in this regard is without any merit. 12. The other contention raised by learned counsel for the petitioner is with regard to nature of the charge levelled against the petitioner and the proportionality of the punishment awarded against him. 13. As has been already noted, the petitioner was charged for unauthorized absence of 198 days, which is an offence categorized as ‘less heinous’ offence in terms of Section 10(m) of the CRPF Act. Such an offence, as per Section 10 of the Act, is punishable with imprisonment for a term which may extent to one year, or with fine which may extend to three months’ pay, or with both. The question that arises for determination is as to whether a person, who has been charged and found guilty of offence under Section 10(m) of the CRPF Act, is liable to be awarded punishment of dismissal from service. In this regard, provisions contained in sub-section (1) of Section 11 of the CRPF Act are required to be noticed. The same are reproduced as under: 11. In this regard, provisions contained in sub-section (1) of Section 11 of the CRPF Act are required to be noticed. The same are reproduced as under: 11. (1) The Commandant or any other authority or officer as may be prescribed, may, subject to any rules made under 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 considered to be guilty of disobedience, neglect of duty, or 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 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 14. From a perusal of the afore-quoted provision, it is clear that once misconduct against a member of Force is established, a Commandant, in exercise of his powers under Section 11(1) of the Act, is competent to award punishment of either suspension or dismissal and if he is satisfied that some more punishment is required to be awarded against the delinquent, any of the punishments provided in Clauses (a) to (e), can be awarded but in case the Commandant does not find, misconduct to be of such a nature as would warrant awarding of additional punishment of dismissal from service, he can, instead of awarding the punishment of suspension or dismissal, award the punishment in terms of Clauses (a) to (e) of Section 11(1) of the Act. 15. The Supreme Court has, in the case of Union of India and others vs. Ghulam Mohd. Bhat, (2005) 13 SCC 228 , after noticing the provisions of Section 11(1) of the CRPF Act, observed as under: 5. A bare perusal of Section 11 shows that it deals with minor punishment as compared to the major punishments prescribed in the preceding section. Bhat, (2005) 13 SCC 228 , after noticing the provisions of Section 11(1) of the CRPF Act, observed as under: 5. A bare perusal of Section 11 shows that it deals with minor punishment as compared to the major punishments prescribed in the preceding section. It lays down that the Commandant or any other authority or officer, as may be prescribed, may, subject to any rules made under the Act, award any one or more of the punishments to any member of the Force who is found guilty of disobedience, neglect of duty or remissness in the discharge of his duty or of other misconduct in his capacity as a member of the Force. According to the High Court the only punishments which can be awarded under this section are reduction in rank, fine, confinement to quarters and removal from any office of distinction or special emolument in the Force. In our opinion, the interpretation is not correct, because the section says that these punishments may be awarded in lieu of, or in addition to, suspension or dismissal. 6. The use of the words “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 in addition to, or in lieu thereof, the punishment mentioned in clauses (a) to (e) may also be awarded. 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. Again, in the case of Union of India and others vs. Ex. 16. Again, in the case of Union of India and others vs. Ex. Constable Ram Karan, (2022) 1 SCC 373 , the Supreme Court interpreted the provisions of Section 11(1) of the CRPF Act in the following manner: 16. The scheme of Section 11 of the 1949 Act mandates that the competent authority may, subject to rules made thereunder, award in lieu of, or in addition to, suspension or dismissal any one or more punishment if found guilty of misconduct in his capacity as member of the Force. 17. The use of words “in lieu of, or in addition to, suspension or dismissal”, appearing in Section 11(1) clearly indicates that the authorities mentioned therein are empowered to award punishment of suspension or dismissal to member of the Force who is found guilty and in addition to, or in lieu thereof, the punishment mentioned in clauses (a) to (e) may also be awarded. 18. It may be noted that more heinous offences or less heinous offences prescribe penalty of sentence of imprisonment if member of the Force is found guilty. At the same time, Section 11 is clear and unambiguous and prescribe those minor punishments which the competent authority may award in a departmental enquiry in lieu of or in addition to suspension or dismissal any one or more of the punishments to member of the Force as referred to under clauses (a) to (e) of Section 11(1) of the 1949 Act even if the member has not been prosecuted for an offence under Section 9 or Section 10 of the Act. 19. It is also well settled that removal and dismissal from service stand on the same footing and both terminate the relationship of employer-employee. The only difference between the two is that in the case of dismissal, it precludes the employee from seeking future employment in the Government while in the case of removal, he is not disqualified from any future employment. By virtue of an Explanation appended to Rule 27 of the scheme of 1955 Rules, the rule-making authority has made it clear that dismissal of a member of the Force precludes him from being re-employed in government service, while removal of any such member from the force shall not be disqualification, for any future employment (other than an employment in the Central Reserve Police Force) under the Government. 17. 17. From the foregoing analysis of the law on the subject, it is clear that the Commandant is well within his powers to pass an order of dismissal of service of a delinquent CRPF Personnel if he feels that the misconduct is of such a nature as would warrant aforesaid punishment. This can be done by him in exercise of his powers under Section 11(1) of the CRPF Act. Dismissal and removal from service are being considered to be minor punishments as per Section 11 of the CRPF Act. These punishments can be inflicted in addition to or in lieu of punishments provided under Clauses (a) to (e) of sub-section (1) of Section 11 of the Act. 18. In view of the foregoing legal position, no fault can be found in the action of respondents in passing the order of dismissal of service against the petitioner after having found him guilty of the charge of unauthorized absence, that too on repeated occasions. It is a settled law that discretion vests with the Disciplinary Authority to impose punishment commensurate with the nature of offence proved and the same cannot be interfered with by the Court. It is only in rare and exceptional cases that the Court may substitute its own view as to the quantum of punishment by assigning cogent reasons. In this regard, support can be had from the ratio laid down by the Supreme Court in the case of State of Meghalaya vs. Mecken Singh N. Marak, (2008) 7 SCC 580 . 19. In the instant case, having regarding to the past conduct of the petitioner, there is no reason, much less a cogent reason, for differing with the quantum of compensation that has been awarded by the Disciplinary Authority against the petitioner. The petitioner being a member of CRPF could not overstay without permission. Absence from duty without leave for a member of the Force is a gravest misconduct. Thus, the Disciplinary Authority was right in awarding punishment of dismissal from service. The punishment awarded against the petitioner is by no reason disproportionate. 20. For the foregoing reasons, I do not find any merit in this petition. The same is, accordingly, dismissed. Interim direction, if any, shall stand vacated with immediate effect. 21. The record be returned to learned counsel for the respondents.