Madhya Pradesh High Court
Santosh Kumar vs Union Of India on 16 March, 2018
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Writ Petition No.927/2011(s)
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
(SB : VIVEK AGARWAL, J.)
Writ Petition No.927/2011(s)
Ex. Sep/Dvr. No. 941352587 Santosh Kumar
Vs.
Union of India & Ors.
Shri Prem Singh Pal, leaned counsel for the petitioner.
Shri Vivek Khedkar, learned Assistant Solicitor General for
the respondents/Union of India.
Date of hearing : 15.02.2018.
Whether approved for reporting : Yes
ORDER
(Passed on 16 March, 2018) Petitioner has filed this petition being aggrieved by office order dated 19th August, 2010 passed by the Commandant of Group Centre, Central Reserve Police Force, Gwalior, Madhya Pradesh, whereby the petitioner has been visited with punishment of dismissal from service w.e.f. the date of issuance of the order and his name has been directed to be struck off from the strength of the said Group Centre on the same date, however, he has been sanctioned minimum compassionate allowance as per Rule 41 (2) of Central Civil Services (Pension) Rules, 1972 2 Writ Petition No.927/2011(s) (hereinafter shall be referred to as the Rules of 1972). It has been further directed that his period of desertion i.e. 04.01.2010 to 10.01.2010 be registered as 7 days of E.O.L.
2. Petitioner submits that once the punishment of unauthorized absence/desertion has been regularized by sanctioning E.O.L., then it may be deemed that respondents have condoned the act of delinquency of the petitioner and, therefore, there existed no justification to hand over such punishment of dismissal from service.
3. Learned counsel for the petitioner also submits that the order of punishment is too harsh and disproportionate to the alleged misconduct and, therefore, the Appellate Authority has wrongly dismissed his appeal dated 17.09.2010 vide order dated 14.10.2010 (Annexure P-2).
4. It is petitioner's contention that he was appointed in CRPF on the post of Constable (Driver) vide order dated 21.10.1994 (Annexure P-3), which was issued by ADIGP. He submits that vide office order dated 27.01.2010, there was a direction to complete preliminary inquiry against the petitioner for having deserted the Group Centre campus on 04.01.2010 (forenoon) and returning back to the campus on 10.01.2010 (afternoon). After this preliminary inquiry, charge-sheet was served on the petitioner by the Commandant vide Annexure P-5 and thereafter Departmental Enquiry was conducted, in which the inquiry officer had submitted his report (Annexure P-7) and the Inquiry Officer held that despite giving opportunity of 3 Writ Petition No.927/2011(s) hearing and producing witnesses, he did not produce any document or witness in his defence. Therefore, on the basis of material collected in the Departmental Inquiry, charges made against the petitioner were found to be proved.
5. It is petitioner's contention that petitioner had handed over his leave application to MTFAV for forwarding the same to competent authority, inasmuch as he had received telephonic call from his native place on 01.01.2010 that his wife is not keeping well and again there was a call on 03.01.2010, therefore, he had to leave the place of work, but he had done so after handing over the leave application to MTFAV and if such MTFAV had not informed the superior authorities, then petitioner cannot be punished.
6. Learned counsel for the petitioner has also placed reliance on the Judgment of this Court in case of Dal Chand Ahirwar Vs. State of Madhya Pradesh & Others as reported in ILR (2012) MP 202 to support his contention that where DIG is disciplinary authority for the petitioner, who was working as Sub-Inspector, then issuance of charge-sheet and punishment of Inquiry Officer by Superintendent of Police, who is subordinate to the disciplinary authority is without authority and proceedings initiated by unauthorized person would be illegal and entire subsequent action taken shall also stand vitiated.
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7. Learned counsel for the petitioner has also placed reliance on the Judgment of this Court in the Case of Ramesh Singh Jat Vs. State of M.P. as reported in 2013 (II) MPWN 86, wherein the ratio of law is that punishment of removal from service for remaining unauthorizedly absent is liable to be set aside if unauthorized absence was regularized by granting extraordinary leave. In this regard Coordinate Bench has relied on the judgment of Hon'ble Supreme Court in case of Bhagwan Lal Arya Vs. Commissioner of Police, Delhi & Others as reported in (2004) 4 SCC 560. Similarly, reliance has been placed on the judgment of Hon'ble Supreme Court in case of State of Punjab Vs. Dr. P.L. Singla as reported in (2008) 8 SCC 469.
8. Learned counsel for the respondents on the other hand submits that post of ADIGP and that of Commandant are in the equivalent rank and only difference is that when a person works in the field, he is designated as 'Commandant' whereas when he functions in the office he is called 'ADIGP', therefore this ground of punishment being handed over by a inferior authority is not made out and thus, the law laid down in case of Dal Chand Ahirwar (supra) is not applicable to the facts and circumstances of the case.
9. It is also submitted that petitioner had opportunity of giving defence evidence but despite giving such opportunity, no defence evidence was produced by the 5 Writ Petition No.927/2011(s) petitioner, in fact, he pleaded his guilt on 05.06.2010 before the Inquiry Officer and, therefore, it cannot be said that he was not guilty of the charge. It is further submitted that nothing prevented the petitioner from producing such MTFAV as a defence witness to substantiate his claim that he had submitted his leave application but as such, since no such witness was examined, this submission of the petitioner that he had submitted a leave application before leaving the Group Centre to attend his ailing wife is not borne out from the record.
10. It is also submitted that Central Reserve Police Force is a uniform service and has placed reliance on the judgment of Hon'ble Supreme Court in case of Union of India & Others Vs. Ghulam Mohd. Bhat as reported in (2005) 13 SCC 228. Similarly, reliance has been placed on the judgment of Hon'ble Supreme Court in case of Union of India & Others Vs. Datta Linga Toshatwad as reported in (2005) 13 SCC 709 and also on the judgment of Hon'ble Supreme Court in case of Delhi Transport Corporation Vs. Sardar Singh as reported in (2004) 7 SCC 574. He has also placed reliance on the judgment of Hon'ble Supreme Court in case of Kanta Devi Vs. Union of India & another as reported in (2003) 4 SCC 753 and placing reliance on these judgments, he has submitted that where the penalty is not found disproportionate to the proved charges, then there is no scope for interference. Placing reliance in such 6 Writ Petition No.927/2011(s) judgments, he prays for dismissal of this writ petition.
11. The judgments, which have been handed over by the petitioner, namely, Dal Chand Ahirwar (supra) has already been discussed and is distinguished. As far as judgment in case of Ramesh Singh Jat (supra) is concerned, the facts of the case were that petitioner had overstayed on leave and thereafter Superintendent of Police removed the petitioner from service as a measure of punishment. It was the case in which the period of unauthorized absence was regularized by granting extraordinary leave to the petitioner and, therefore, it was held that after having grant of extraordinary leave, the petitioner cannot be treated as unauthorizedly absent for the said period and, therefore, the punishment was totally unwarranted.
12. Reliance has been placed on the Judgment of Bhagawan Lal Arya (supra), wherein the Hon'ble Supreme Court has held that a Police Constable absenting himself for two months on medical ground without sanction of leave is not such a grave misconduct or continued misconduct rendering him completely unfit for police services.
13. In case of Dr. P.L. Singla (supra), the ratio of law is that if leave is so sanctioned and the unauthorized absence is condoned, it will not be open to the employer to thereafter initiate disciplinary proceedings in regard to the said misconduct unless it had, while sanctioning leave, 7 Writ Petition No.927/2011(s) reserved the right to take disciplinary action in regard to the act of indiscipline. In such backdrop, the High Court had shown its indulgence and had quashed the punishment of removal, whereas in the cases cited by the learned counsel for the respondents, the ratio is to be deduced before any conclusion can be drawn. In case of Kanta Devi (supra), the ratio is that there is no scope for interference where penalty is found not disproportionate to the proved charges.
14. In the case of Sardar Singh (supra), the ratio is that habitual or continuous absence from duty without sanctioned leave for long, prima facie amounts to "habitual negligence of duties and lack of interest in work" which constitutes a misconduct under relevant standing order of the appellant Corporation. Burden lies on the employee concerned to prove otherwise by placing relevant material on record.
15. Ratio in case of Ghulam Mohd Bhat (supra) is that punishment of removal from service for absence without sanctioned leave can be awarded under Section 11(1) read with Rule 27 of CRPF Rules by competent authority even if delinquent is not prosecuted for offence under Sections 9 and 10. In this case, aspect of proportionality too has been discussed and it has been held that absence from duty for more than 300 days by CRPF Constable without sanctioned leave and without justifiable reason cannot be said to be disproportionate.
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16. In the case of Datta Linga Toshtawad (supra) Hon'ble Supreme Court has defined as to when absenteeism will amount to desertion and has held that punishment of dismissal on members of the uniformed services absenting themselves on frivolous pleas, having regard to the nature of the duties enjoined on these forces. Such indiscipline, if it goes unpunished, will greatly affect the discipline of the forces. In such forces, desertion is a serious matter. It has been held that a member of a uniformed force, who overstays his leave by a few days, must be able to give a satisfactory explanation. However, a member of the force, who goes on leave and never report for duties thereafter, cannot be said to be one, merely overstaying his leave. He must be treated as a deserter and in cases of this nature, dismissal from force is a justified disciplinary action and cannot be described as disproportionate to alleged misconduct.
17. In case of Datta Linga Toshtawad (supra), the notable fact is that respondent had joined CRPF as a Constable on 23.04.1986, applied for leave on 16.06.1997 and was on leave till 02.07.1997 with extensions, however he never reported for duty. Thereafter several notices were sent to him but there was no response. Even arrest warrant issued against him remained unexecuted. Inquiry was ordered and after inquiry disciplinary proceedings were concluded and order of dismissal was passed on 02.11.1998. Under such facts and circumstances, Hon'ble 9 Writ Petition No.927/2011(s) Supreme Court has defined as to when absenteeism will amount to desertion and has held that a member of the force, who goes on leave and never report for duties thereafter, cannot be said to be one, merely overstaying his leave. He must be treated as a deserter.
18. Under such facts, circumstances and the legal position as is attaining today, rival contentions are to be appreciated. It is apparent from office order (Annexure P-
1) that charge on the petitioner was that he left the Group Centre on 04.01.2010 at 5.45 A.M. and voluntarily absented till 10.01.2010 for a period of 7 days and on his own sweet will reported for duty at 10.00 A.M. Petitioner was charged under the provisions of Rule 27 of CRPF Rules, 1955. Punishment has been inflicted on him by the Commandant exercising the power vested in him under Section 11(1) Central Reserve Police Force Act, 1949 (hereinafter referred to as the CRPF Act read with Rule 27 of CRPF Rules, 1955.
19. Rule 27 of CRPF Rules, 1955 provides Procedure for the Award of Punishment and is contained in Chapter VI of CRPF Rules, 1955. As per the table given in the said rule, the punishment of dismissal or removal from service from the force can be inflicted on Constables and enrolled followers by the Commandant. Therefore, the contention of the petitioner that such punishment could not have been inflicted by the Commandant is not in consonance with the provisions contained in Rule 27 of CRPF Rules, 10 Writ Petition No.927/2011(s) 1955 and, therefore, this argument deserves to be rejected and is rejected.
19. As far as Section 11 of CRPF Act, 1949 is concerned, Section 11(1) read as follows:
"11. Minor punishments - (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 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 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 offence of distinction or special emolument in the Force."
A plain read of this Section makes it apparent that Section 11 of CRPF Act, 1949 deals with minor punishment 11 Writ Petition No.927/2011(s) as compared to the major punishment. The language of the Section is unambiguous and it says that 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 anyone or more of the following punishments to any member of the Force whom he considers 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 Force. Thus, it is apparent that exercising authority under the provisions of Section 11(1)of the CRPF Act, 1949, as is mentioned in the impugned order Commandant was not entitled to inflict penalty of dismissal as it amounts to a major penalty provided under Section 10 of the CRPF Act, 1949. Therefore, it is apparent that only a minor punishment as mentioned in Section 11 of the CRPF Act, 1949 could have been inflicted and Section 11 did not permit the Commandant to inflict major penalty of dismissal from service. In fact Section 10 (m) of the CRPF Act, 1949, which deals with less heinous offences, deals with absenteeism without leave, or overstaying on leave without sufficient cause. Since, petitioner had himself reported back, it cannot be said that he had deserted from his duties and his absenteeism would amount to desertion in the light of the judgment of Hon'ble Supreme Court in case of Datta Linga Toshtawad (supra).
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20. In view of such facts when that act of the petitioner cannot be termed as desertion and Section 11(1) of the CRPF Act, 1949 does not permit inflicting major penalty, inasmuch as punishment of dismissal is not mentioned under Section 11(1) of the CRPF Act, 1949, therefore, the impugned order deserves to be set aside and is quashed. Matter is remitted back to the disciplinary authority that if it so desires, afford an opportunity of hearing to the petitioner and inflict minor punishment proportionate to the misconduct as prescribed under Sub-Section 1 of Section 11 of the CRPF Act, 1949.
Accordingly, petition is disposed of.
(Vivek Agarwal) Judge 16.03.2018 shanu SHANU RAIKWAR 2018.03.20 18:15:25 +05'30' 11.0.8