Jammu & Kashmir High Court
Suresh Kumar vs Union Of India (Uoi) And Ors. on 18 February, 2005
Equivalent citations: 2005(2)JKJ413, 2005 LAB. I. C. 3392, 2002 AIHC 39, (2006) 3 SERVLR 250, (2002) 2 GUJ LH 322, (2002) 3 GCD 2548 (GUJ), (2002) 4 GUJ LR 2929
Author: Permod Kohli
Bench: Permod Kohli
JUDGMENT Permod Kohli, J.
1. Petitioner has been dismissed from service vide order No. P.VIII-8/99-22-EC.II dated 31.1.2000 where under besides dismissal from service, his suspension period/period spent in jail is treated as under:
"(a) Suspension period w.e.f. 22/7/99 to 31/1/2000 be treated as such.
(b) Period spent in jail w.e.f. 24/7/99 to 21/8/99 be treated as 'Dies-Non'."
In addition to above, as a consequence of dismissal from service, it has further been ordered that all his Medals and Decorations, if any earned during the service in the Force be forfeited under the provisions contained under Section 12(1) of Central Reserve Police Force (CRPF) Act, 1949. This punishment has been imposed upon the petitioner pursuant to departmental enquiry held against him in respect to following charges :
"ARTICLE -1 That the said No. 951170178 CT/Dvr Suresh Kumar of HQ-22 BN, CRPF while functioning as Ct/Dvr in HQ 22 BN CRPF has committed an act of indiscipline /misconduct in the discharge of his duties in his capacity as a member of the Force under Section 11(1) of the CRPF Act 1949 in that when he was detailed for transshipment of BN Stores from Special Train at Rangia Railway Station to 114 BN HQ located at Industrial Estate Rani (Guwahati), on 2.7.99 at about 1415 hrs. he argued with Ct/ Driver Chaman Lal and fired two rounds from his service pistol on Ct/Dvr Chaman Lal and caused grievous hurt/injury on his right thigh on culmination and in response to teasing his as ' CHAMAR' by Ct/ Dvr Chaman Lal.
ARTICLE -II That during the aforesaid period and while functioning in the aforesaid office the said No. 951170178 Ct/Dvr Suresh Kumar of HQ-22 BN, CRPF is guilty of indiscipline/misconduct in that on 22.7.99 at about 1415 hrs. he misused his service Pistol while on duty by firing at Ct/Dvr Chaman Lal which is prejudicial to good order and discipline in the capacity as a member of the Force under Section 11(1) of CRPF Act 1949."
The Enquiry Officer after holding enquiry, submitted a detailed report holding the petitioner guilty of committing an act of indiscipline/misconduct.
This enquiry has been initiated against the petitioner for having fired at Constable/Driver Chaman Lal under the following circumstances as narrated in the writ petition: Petitioner was assigned 22nd Bn. CRPF, where he was working as Constable/driver and posted in Assam. On 21.7.99, petitioner was deputed for transporting the stores of 114 Bn. alongwith Constable/driver Chaman lal and constable/driver Young Bahadur from Rangia Railway Station to Industrial Estate Rani, Guwahati. After loading the stores at Rangia Railway Station, they proceeded to Rani Guwahati in the next morning at about 7 AM. On reaching the destination, petitioner unloaded his vehicle and the vehicle of Constable/Driver Chaman Lal was in the process of being unloaded. However, the vehicle of Young Bhadur got bogged down in the wet soil. It was after some time that the vehicle of Young Bhadur was also taken out of the wet soil and the same was unloaded. All the three drivers went for bath near the unloading site. It is stated in the petition that two fires went out of the pistol of the petitioner and one hit the driver Chaman Lal, who received an injury. It is alleged that these rounds were fired accidentally and the petitioner has very cordial relation with Chaman Lal. This incident being reported, the petitioner was placed under suspension on 22.7.1999 and departmental enquiry initiated against him. An FIR No. 104/99 also came to be registered at Police Station, Palasbari under Sections 307/326 IPC read with Section 27 of the Arms Act. According to the petitioner, case is under investigation with the concerned Police Station. The enquiry initiated against the petitioner was concluded. The competent authority on receipt of the enquiry report, passed the impugned order dated 31-01-2000 dismissing the petitioner from service and passing other consequential order noticed hereinabove. The petitioner preferred an appeal in terms of Rule 28 of the Central Reserve Police Force Rules, 1955 before respondent-3 at Jammu. This appeal also came to be dismissed vide communication No. R.XIII-2/2000-DA-II (Range) dated 4.5.2000. Petitioner has accordingly approached this court seeking quashment of his termination order and other consequential direction.
Mr. B.S. Slathia, learned counsel for the respondents has assailed the impugned order on the following grounds:
(a) That the order impugned is perverse as there is no evidence to support the punishment imposed upon the petitioner.
(b) That the petitioner has been dismissed from service, which is a major punishment whereas the petitioner was charged under Section 11(1) of the CRPF Act, which prescribed only minor punishment. Hence the punishment imposed is without jurisdiction as also violative of the Principles of natural justice.
(c) That the punishment imposed upon the petitioner is disproportionate to the charge/ allegation allegedly established against the petitioner.
As far the counter affidavit is concerned, it is stated that the petitioner confessed the guilt at the out set. However, the charges were enquired into and during the course of the enquiry, the witness namely; Young Bhadur in whose presence, the offence was committed has deposed clearly against the petitioner. Mr. B.S. Slathia, learned counsel appearing for the petitioner has tried to impress upon the court that Chaman lal, injured has not supported the prosecution story and therefore, there is no evidence warranting passing of the impugned order.
I have gone through the statement of Chaman Lal recorded by the Enquiry Officer on 19.12.1999, wherein the injured stated as under:-
"Ct/Dvr. Young Bahadur was taking bath and myself was just short of about 8 paces from bathing point. Ct/ Driver Suresh Kumar was following me and suddenly at about 1415 Hrs. on 22.7.99, Ct. /Driver Suresh Kumar fired two rounds from his pistol issued to him from the Coy. Kote. Ct./Dvr. Suresh Kumar was behind me about 5 paces. Only one shot hit on my right thigh at culminating point caused grievous hurt/injury to me..."
In addition to this, Young Bahadur, who was admittedly an eye witness stated that before the incident, there was hot exchange between Chaman Lal and petitioner. Chaman lal told the petitioner though he has done the job of removing the vehicle from the wet soil, but he remains a Chamar. This infuriated the petitioner who challenged Chaman Lal of dire consequences. On this, Chaman Lal accepted the challenge and said he may do so in case he has sipped the milk of his mother. The witness intervened and separated them and went to take bath and while he was taking bath, two shots were fired, one of which hit on the right thigh of Chaman Lal. The shot was fired from the weapon of the petitioner so and so on. In presence of this evidence, contention of the learned counsel that there is no evidence against the petitioner warranting any punishment, cannot be accepted. As noticed above, it is clearly recorded in the impugned order that the petitioner pleaded guilty to the charges. Therefore, this ground of challenge has no basis.
The main challenge put-fourth is, regarding the punishment being not covered under Section 11 of the CRPF Act. With a view to appreciate this contention Section 11(1) is 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 considers to be guilty of disobedience, neglect of duty, or remissness in the discharge of any duty or of the 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 28 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."
It is contended that Section 11 deals with minor punishments as specified in Clauses 'a to e' of Sub-section 1 of Section 11. Punishment of dismissal being not one of the prescribed punishments, impugned order dismissing the petitioner under Section 11(1) is liable to be set aside. In order to support his contention, learned counsel for the petitioner relies upon some judgments of this court by co-ordinate benches. In SWP No. 1626/1996 titled B.S. Pandey v. Union of India and Ors., the court held as under:-
"The petitioner was proceeded against under Section 11(1) of the CRPF Act, 1949. For facility of reference, this Section is reproduced below:
After reproducing Section 11(1), the court further observed :
This Section thus contemplates imposing of punishment upto reduction of rank. It does not deal with punishment of removal. Therefore, the petitioner is right in his submission that if action is also taken in terms of Section 11(1) then punishment of removal cannot be imposed. For this reason and for the reason given in SWP No. 2/1996(supra), this writ petition is allowed. The order of removal of the petitioner is set aside."
In case titled Dambru Dhar Naik v. Union of India and Ors. (HC), another co-ordinate bench of this court relying upon the judgment in case B.S. Pandey v. Union of India and Ors., observed as under:
".... As noticed above, the removal from service is not warranted by Section 11 because it is not a minor punishment. Therefore, the order of removal from service is thus without jurisdiction..."
Mr. B.S. Slathia, learned counsel for petitioner has also referred to another judgment of the Gauhati High Court in case titled Deep Chand v. Union of India and Ors. reported in 2001(4) SCT 965 wherein, while considering the scope of Section 11(1) of the CRPF Act 1949, the court held as under:
"In the present case, admittedly the punishment of compulsory retirement imposed upon the petitioner has been made under the procedure prescribed under Rule 27 of the CRPF Rules, 1955, which is a major punishment. Rule 27 of the CRPF Rules only prescribed procedure for award of major punishment. It is not a penal provision itself. This apart, the petitioner has been charge-sheeted under the provisions of Section 11(1) of the Act, the disciplinary proceedings initiated against him under that section, he was allowed to defend himself by cross- examining the prosecution witnesses under that section, and therefore, the Disciplinary Authority is not permitted to convert a charge under Section 11(1) which is minor penalty to that a major penalty for the completion of the enquiry. This amounted to denial of reasonable opportunities to defend himself and is hit by Article 311 of the Constitution."
Reference is also made to Hon'ble Division Bench Judgment of this court in case titled Union of India and Ors. v. B.S. Pandey passed in LPA(SW) No. 36/03 decided on 9.4.2003. In this case though the question of interpretation of Section 11 and whether punishment of removal falls within Section 11, was involved, however, the Hon'ble Division Bench did not decide this issue and observed as under:
"In these circumstances, we are of the view that in the peculiar facts and circumstances of this case, it is not necessary for us to go into the correctness of finding of learned Single Judge in regard to the interpretation of Section 11 of the CRPF Act, 1949."
A thorough reading of Section 11(1) of the CRPF Act, 1949 clearly indicate that the punishments prescribed under Clauses ' a to e ' of this section are in addition to the punishment of dismissal.
With great respect to the views expressed in judgments passed in SWP No. 1626/96 SWP No. 847/2002 and the judgment of the Gauhati High Court passed in Civil Rule No. 610/1994, I am unable to persuade myself to fall in line with the interpretation of Section 11(1) of the CRPF Act, 1949, sought to be placed in these cases. The Hon'ble Division Bench of this Court has not given its view and left the field open. In my humble view, Section 11 though is under caption of minor punishments, but it does include within its the purview of punishment of dismissal. From the scheme of the Act, it appears that the Act deals with three kinds of offences and punishments. Section 9 of the aforesaid Act deals with more heinous offences, Section 10 deals with less heinous offences whereas Section 11 deals with minor offences. There is no other Section which deals with the punishment of dismissal from service. Therefore, the argument of learned counsel for petitioner that Section 11 does not include within its scope the punishment of dismissal, cannot be accepted.
Now dealing with the last contention of the learned counsel for petitioner that the punishment is disproportionate to the allegations, it has come in the evidence that Constable/Driver Chaman Lal provoked the petitioner by calling him "CHAMAR". Even in the reply filed by respondents, it is stated as under:
"However, Ct/Dvr Suresh Kumar was successful in retrieving the vehicle. On rescuing the vehicle Ex. Ct/Dvr Suresh Kumar praised himself before Ex. Ct/Driver Chaman Lal. Immediately Ex. Ct/Dvr. Chaman Lal remarked saying that whatever achievement he might have made, but ultimately he remains a 'CHAMAR' only. When Ct/Dvr Suresh Kumar threatened him of dire consequences to the extreme extent of firing at him if Ct/Dvr Chaman Lal exceeds the limit in his remarks repeated against his sub caste "CHAMAR".
To same effect is the statement of Young Bahadur in whose presence the altercation took place between the petitioner and Chaman Lal. The injury sustained by Chaman Lal was a shot of right thigh. Though the allegation against the petitioner that he fired two shots from his weapon has been established, however, the Disciplinary Authority has not given due consideration to the circumstances under which the incident took place. On the basis of the reply and the stand taken, it is clearly evident that it was Chaman Lal, who provoked the petitioner not only by calling him "CHAMAR" but also by saying that if he has sipped the milk of his mother, he may fire at him. Despite such provocation, petitioner appears to have fired on the lower part of Chaman Lal's body and apparently he had no intention to kill him, though he had the intention to cause him injury. A criminal case filed against the petitioner, has not been concluded. Under such circumstances, I feel that the punishment imposed upon the petitioner is too harsh. It is settled proposition of law that this court cannot sit as a court of appeal against the order of the Disciplinary Authority imposing punishment. At the same time, the power of this court to interfere with the conclusion of the finding and mould relief, cannot be disputed.
This view was expressed by the Apex Court in S.K. Giri v. Home Secretary, Ministry of Home Affairs and Ors. reported in 1995 Supp(3) SC 519 wherein it has been held as under:
"After hearing the learned counsel for parties, we are of the opinion that the punishment awarded to the appellant is no doubt severe and disproportionate and the same deserves to be set aside. Consequently, having regard to the facts and circumstances of the present case, we set aside the order of removal of the appellant from service dated 23.4.1984 and the impugned order of the High Court..."
Similar view was expressed by the Apex Court in U.P. State Road Transport Corporation and Ors. v. Mahesh Kumar Mishra and Ors. , wherein the Apex Court held as under:
"This will show that not only this Court but also the High Court can interfere with the punishment inflicted upon the delinquent employee if, that penalty, shocks the conscience of the Court. The law, therefore, is not, as contended by the learned counsel for the appellants, that the High Court can, in no circumstances, interfere with the quantum of punishment imposed upon a delinquent employee after disciplinary proceedings."
Applying the ratio of the aforesaid judgment and keeping in view the facts and circumstances of this case particularly that it was Chaman Lal who provoked petitioner not only by calling him "Chamar" but also asking him to implement his threat" if he has sipped the milk of his mother", I feel it proper to set aside the punishment of dismissal being disproportionate to the act complained of and direct the reinstatement of the petitioner However, the competent authority is directed to re- examine the imposition of punishment and award such lesser punishment as may be appropriate and commensurate keeping in view nature of charge and circumstances leading to commission of misconduct. Let decision in this regard be taken within a period of three months from the date copy of this order is received by the competent Disciplinary Authority.