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2024 DIGILAW 82 (JK)

Sohan Lal Sharma v. Union of India

2024-02-29

SINDHU SHARMA

body2024
JUDGMENT : 1. Petitioner seeks quashing of order No. D.II-1/89-33-EC-II dated nil August, 1991, whereby the petitioner has been dismissed from service. 2. Briefly stating the material facts are as under: 3. Petitioner was appointed as a Constable in CRPF and was serving in 33 Bn. During the course of his employment, he developed some disc problem and was referred to Group Centre-I, CRPF Ajmer Hospital, for treatment on 20.12.1988 by the Unit Medical Officer. After the checkup in Group Centre-I, he had underwent treatment from 04.01.1989 to 04.02.1989 and, thereafter, was advised for seven days home rest by the Medical Officer of Group Centre-I, CRPF Ajmer with permission to avail home rest w.e.f. 05.02.1989 to 11.02.1989. The petitioner then returned home to avail the prescribed rest. 4. The ailment, which the petitioner was suffering from persisted and he remained under treatment of various doctors while he was on home rest. Petitioner informed the respondents of his persisting ailment and sought extension of leave vide various letters, and postal receipts of the letters/communications sent to respondents are enclosed by him along with the medical certificates. 5. During the period while the petitioner was under treatment, the respondents held an ex parte enquiry against him and on the basis of said ex parte enquiry, dismissed the petitioner from service vide order No. D.II-I/85-33-EC-II dated nil August, 1991. The petitioner submits that he has been declared medically fit to resume his duty and, as such, has assailed the order of dismissal by way of this petition. 6. The contention of the petitioner is that the respondents have framed charges against him under Section 11(1) of CRPF Act, 1949, whereas, under Section 11 of the Act, only minor punishment can be imposed, and there cannot be removal from service under Section 11. Learned counsel for the petitioner has submitted that the allegations leveled against the petitioner do not fall under the ambit of Section 11 of the CRPF Act, therefore, the petitioner could not have been dismissed from service. 7. Learned counsel for the petitioner has submitted that the allegations leveled against the petitioner do not fall under the ambit of Section 11 of the CRPF Act, therefore, the petitioner could not have been dismissed from service. 7. It is further urged that the order of dismissal is also liable to be quashed on the ground that the respondents have imposed punishment which falls under the category of major punishment, for which, the respondents have to conduct the proceedings under Rule 14 of CCS (CCA) Rules, 1965, in which, the charge has to be framed and the delinquent has to be afforded an opportunity to reply to the charge sheet and thereafter, the statement of witnesses were to be recorded and a chance be given to cross-examine the same. It is submitted that the respondents have by-passed the entire procedure without affording any opportunity to the petitioner and, thus, the impugned order is unsustainable in the eyes of law. Further it is stated that the respondents have also not issued the show cause notice to the petitioner regarding the proposed punishment and also not afforded an opportunity to him to reply to the same, as such, the impugned order is not sustainable and the same is liable to be set aside. 8. The respondents in their objections have stated that the petitioner initially while serving in 33 Bn. CRPF was granted 60 days leave w.e.f. 28.03.1988 to 26.05.1988, but he failed to report on duty and absented himself without any proper permission from the competent authority. Thereafter, he reported after absenting for 93 days, which was regularized as leave without pay and a warning letter in this regard was also issued to him. On reporting back to duty, the petitioner reported sick and the medical officer referred him to Bone and Joint Hospital, Srinagar for treatment. The petitioner remained under treatment w.e.f. 30.08.1988 to 21.11.1988. His medical rest period was regularized into 60 days earned leave and on 22.11.1988, he was declared unfit for belt force duty by the Bone Specialist of Bone and Joint Hospital, Srinagar. On the basis of the findings of medical authority, he was referred to Group Centre-I, CRPF, Ajmer Hospital for treatment/invalidation on 20.12.1988 by the Unit Medical Officer. The petitioner was advised for seven days rest by the Medical Officer w.e.f. 05.02.1989 to 11.02.1989 with a permission to avail home rest. On the basis of the findings of medical authority, he was referred to Group Centre-I, CRPF, Ajmer Hospital for treatment/invalidation on 20.12.1988 by the Unit Medical Officer. The petitioner was advised for seven days rest by the Medical Officer w.e.f. 05.02.1989 to 11.02.1989 with a permission to avail home rest. The respondents directed him to report for duty on 12.02.1989, but he remained absent without any authority. The petitioner was directed to report for duty forthwith but he informed to Group Centre-I, CRPF, Ajmer through telegram that he is under treatment at SMGS Hospital, Jammu. 9. The respondents, on the basis of the information received, asked Group Centre, CRPF, Bantalab, Jammu through a signal to confirm, whether the petitioner is actually undergoing treatment in SMGS Hospital vide signal No. M.III-I/89.33-EC-II dated 17.03.1989. In response to the said signal, the Group Centre, CRPF, Bantalab informed that the petitioner has not undergone treatment at SMGS Hospital, Jammu. Accordingly, the petitioner was again directed to report on duty within ten days, failing which, disciplinary action would be taken against him but the petitioner did not report for duty. 10. Subsequently, warrants of arrest were issued for his apprehension through civil Police vide letter dated 11.07.1989, but the same could not be executed by civil Police. The respondents, therefore, initiated court of inquiry to inquire into the circumstances under which the petitioner was overstaying the permitted home rest period since 12.02.1989 without any extension of leave or permission from the competent authority. 11. As the petitioner was declared as “Deserter from the Force” w.e.f. 12.02.1989, as a result of court of inquiry dated 05.06.1990 and 21.01.1991, the respondents initiated departmental enquiry against him. Charge sheet and a copy of Memorandum of Charges were sent to his home address, though, with a direction to reply to the memorandum of charge within 15 days from the receipt of the letter. The petitioner neither replied to the memorandum of charges nor reported for participating in departmental enquiry. 12. The Deputy Commandant of 33 Bn. CRPF was detailed as Enquiry Officer vide order dated 28.09.1990 and a copy was sent to the petitioner at his home address. The Enquiry Officer again sent a letter to the petitioner to participate in enquiry proceedings vide letter dated 04.10.1990, failing which, departmental enquiry would be initiated ex parte against him. 12. The Deputy Commandant of 33 Bn. CRPF was detailed as Enquiry Officer vide order dated 28.09.1990 and a copy was sent to the petitioner at his home address. The Enquiry Officer again sent a letter to the petitioner to participate in enquiry proceedings vide letter dated 04.10.1990, failing which, departmental enquiry would be initiated ex parte against him. Despite this warning, the petitioner did not appear before the Enquiry Officer. The Enquiry Officer sent a copy of statement to the petitioner asking him to report, failing which, enquiry would be initiated. Consequently, the enquiry was completed in his absence, and the final report was forwarded to the disciplinary authority for appropriate action on 01.12.1990. 13. The disciplinary authority again supplied the enquiry report to the petitioner for making any representation within fifteen days from the date of receipt of letter. The competent authority after going through the departmental enquiry proceedings formed an opinion that the enquiry report as well as charges leveled against the delinquent have been proved in the enquiry proceedings and under the powers conferred upon him vide Section 11(1) of CRPF Act, 1949 read with Rule 27 of the CRPF Rules, 1955, imposed the penalty of “Dismissal from service” w.e.f. 06.08.1991. 14. Heard learned counsel for the parties and perused the record. 15. Under Section 11(1) of the Act, the petitioner was liable to be awarded minor punishment but the punishment of dismissal as awarded to the petitioner is harsh and disproportionate to the offence committed by him. 16. The charged leveled against the petitioner does not fall under Section 11(1) of CRPF Act. As per Section 11, only minor punishment can be imposed and there is nothing regarding removal from service. 16. The charged leveled against the petitioner does not fall under Section 11(1) of CRPF Act. As per Section 11, only minor punishment can be imposed and there is nothing regarding removal from service. Section 11 of the Act reads as under: Section 11 -Minor Punishment: 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 considers to be guilty of disobedience, neglect of duty, 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) reduced in rank; b) fine of any amount not exceeding one month's pay and allowances; c) confinement to quarter, 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. Rule 27: Procedure for the Award of Punishment (a) The punishment shown as items 1 to 11 in column 2 of the table below may be inflicted or non-gazetted officers and men of the various ranks shown in each of the headings of columns 3 to 6, by the authorities named below such headings under the conditions mentioned in column 7. 17. This aspect has been considered by the Apex Court in “Union of India Vs. Ghulam Mohd. Bhat, AIR (SC) 4289”, which has been reproduced as under: - “...4. The scope and ambit of Section 11 and Rule 27 has been called for determination in this appeal. A few provisions having relevance need to be noted. Undisputedly, overstay without sanctioned leave is dealt with in Section 10(m) of the Act. It relates to lessor offences. Ghulam Mohd. Bhat, AIR (SC) 4289”, which has been reproduced as under: - “...4. The scope and ambit of Section 11 and Rule 27 has been called for determination in this appeal. A few provisions having relevance need to be noted. Undisputedly, overstay without sanctioned leave is dealt with in Section 10(m) of the Act. It relates to lessor offences. Section 11(1) and Rule 27 read as follows:- "Section 11 -Minor Punishment: 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 considers to be guilty of disobedience, neglect of duty, 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) reduced in rank; b) fine of any amount not exceeding one month's pay and allowances; c) confinement to quarter, 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, fatique or other duty; and e) removal from any office of distinction or special emolument in the Force. Rule 27: Procedure for the Award of Punishment -(a) The punishment shown as items 1 to 11 in column 2 of the table below may be inflicted or non-gazetted officers and men of the various ranks shown in each of the headings of columns 3 to 6, by the authorities named below such headings under the conditions mentioned in column 7. SI. No Punishment Subedar (Inspector) Sub-Inspector Others except Const. & enrolled followers Const. & enrolled followers Remarks 1234567 1. Dismissal or removal from the Force DIGP DIGP Comd. Comdt. To be inflicted after formal departmental enquiry. 2. Reduction to a lower time-scale of pay, grade, post or service DIGP DIGP Comdt. Comdt. To be inflicted after formal departmental enquiry. 3. Reduction to a lower stage in the time-scale of pay for a specified period. DIGP DIGP Comdt. Comdt. -do 4. Compulsory retirement DIGP DIGP Comdt. Comdt. -do 5. Fine to pay amount not exceeding one month's pay and allowances. DIG DIGP Comdt. Comdt. -do 6. Comdt. To be inflicted after formal departmental enquiry. 3. Reduction to a lower stage in the time-scale of pay for a specified period. DIGP DIGP Comdt. Comdt. -do 4. Compulsory retirement DIGP DIGP Comdt. Comdt. -do 5. Fine to pay amount not exceeding one month's pay and allowances. DIG DIGP Comdt. Comdt. -do 6. Confinement in the Quarter Guard exceeding seven days but not more than twenty eight days with or without punishment drill or extra guard fatigue or other duty. ---Comdt. -do 7. Stoppage of increment. DIGP DIGP Comdt. Comdt. -do 8. Removal from any office of distinction of special emolument in the Force. DIGP DIGP Comdt. Comdt. May be inflicted without a formal departmental enquiry. 9. Censure Comdt. Comdt. Asst. Comdt. Or Coy Comdr. A Comdt. Or Coy Comdr. 10 Confinement to Quarter Guard for nor more than seven days with or without punishment or extra guard fatigue or other duty. ---Comdt. 11. Confinement to Quarters lines, camp, punishment drill, fatigue duties etc. for a term not exceeding one month. ---Com dt. 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...” 18. The respondents submit that the petitioner was in the habit of overstaying beyond his sanctioned leave as evident from his previous records and despite issuance of warning by the competent authority, he failed to mend his ways. The petitioner even after being provided with sufficient opportunity for participating in the departmental enquiry failed to participate in the same. The respondents submit that the petitioner was in the habit of overstaying beyond his sanctioned leave as evident from his previous records and despite issuance of warning by the competent authority, he failed to mend his ways. The petitioner even after being provided with sufficient opportunity for participating in the departmental enquiry failed to participate in the same. The petitioner has overstayed his sanctioned leave for almost two years and there is no explanation from the petitioner for being willfully absent from duty other than the fact that he was under treatment. There is nothing placed on record by the petitioner to indicate that after expiry of his sanctioned leave, he continuously applied for the extension of leave or the leave was granted in his favour. No doubt the respondents have stated that they received one telegram after expiry of his leave on 12.02.1989 that he is under treatment in SMGS Hospital, Jammu, but on enquiry, it came to light that he was not undergoing treatment in SMGS Hospital. The medical record appended with the petition does not indicate that the petitioner was continuously under treatment from 12.02.1989 or was incapacitated to such an extent that he could not neither visit the CRPF Hospital at Jammu nor inform the respondents about his bed-ridden condition, rendering him unable to attend his duty or appear before the concerned authorities. There is no explanation forthcoming from the petitioner as to why he would not appear before the CRPF hospital for treatment and the fact that why he did not participate in either the departmental proceedings or after the notice was sent to him by the disciplinary authority. No doubt, the petitioner has stated that he had time and again sent intimation to the respondents and have placed on record the receipts of the same but what applications have been given has neither been placed on record nor is there any application on record to show that these were the applications sent by him. The only prescription put forth by the Government Medical College is of dated 11.02.1989, in which, it is stated that he has pain in his back. The only prescription put forth by the Government Medical College is of dated 11.02.1989, in which, it is stated that he has pain in his back. The next prescription is of dated 22.10.1991, in which it is stated that light duty could be given to him, but the petitioner did not appear before the respondents with regard to the fact that he is unable to attend duties, as he was in position to move back from Ajmer to Jammu. 19. The petitioner being enrolled as a Constable in the year 1980 was well aware of the conditions of service and the manner in which he had to report to the respondents. The fact that he remained at home for a period of 24 months without even informing the respondents and informing them with regard to his ailment. It is apparently clear that he did not want to appear before the authorities. 20. It was next submitted that the order is required to be set aside, as the same is violative of principles of natural justice. The respondents, it is submitted, have not afforded proper opportunity of hearing to the petitioner as neither any notice of the enquiry nor show-cause notice of the proposed punishment has been provided. The respondents have also not appointed any I.O. of the choice of the delinquent. The respondents had directed the petitioner to resume duty after the expiry of his leave but he failed to do so and remained unauthorizedly absent from duty. The respondents again directed him to report on duty and informed him that failure to do so would entail disciplinary action against him and warrant of arrest was also issued. All the communications including the Memorandum of Charges, enquiry report for making any representation were sent to his home but he failed to respond to the same. The petitioner despite receipt of the same refused to participate or reply to the same. 21. From the perusal of the record, it is reflected that various communications were issued to the petitioner from time to time to resume his duties and it is on account of his failure to respond that the court of enquiry was ordered and petitioner was declared as Deserter. 22. 21. From the perusal of the record, it is reflected that various communications were issued to the petitioner from time to time to resume his duties and it is on account of his failure to respond that the court of enquiry was ordered and petitioner was declared as Deserter. 22. The petitioner was dismissed from service in August, 1991, but he has challenged the order of dismissal in 2007, i.e., after more than sixteen years and in para 8 of the writ petition, he submitted that he has not been declared medically fit to resume his duties. This long delay has not been explained by the petitioner except by stating that he is now fit to resume duty. 23. The plea of the petitioner that he was never communicated the dismissal order is without any substance as the petitioner has never responded to any of the communications issued to him by the respondents from time to time. The order of dismissal was also sent to the petitioner by registered post. The impugned order of dismissal of the petitioner was communicated to the petitioner and there is ample evidence on record which shows that several notices, including order of dismissal was sent through registered post on his home address and it is also the report of postal authorities that he is not at his home and the family has informed that they does not know his address. Thus, the family is aware of the fact that notices have been sent to him. 24. The Central Reserve Police Force is a para military disciplined force and in-disciplined conduct of members cannot be accepted in any manner when the petitioner has availed only seven days home rest and was supposed to report for duty after 12.02.1989, but he did not do so. 25. The contention of the petitioner that he was prevented to report back on duty due to medical ailment does not find any support as the ailment was not of that nature which would prevent him from appearing before the respondents or reporting before the nearest CRPF hospital for treatment either himself or through any family member. 26. 25. The contention of the petitioner that he was prevented to report back on duty due to medical ailment does not find any support as the ailment was not of that nature which would prevent him from appearing before the respondents or reporting before the nearest CRPF hospital for treatment either himself or through any family member. 26. For the aforesaid reasons, the contention of the petitioner that the departmental proceedings were conducted against him at his back and he was not afforded an opportunity to defend his case, cannot be accepted and in view of these aforesaid facts and conditions, this writ petition is dismissed.