Madhya Pradesh High Court
Ashish Rajouria vs The Union Of India on 8 July, 2024
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
1
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
ON THE 10th OF JULY, 2024
WRIT PETITION No. 5059 of 2011
(ASHISH RAJOURIA
Vs
THE UNION OF INDIA AND OTHERS)
Appearance:
(BY SHRI D.P. SINGH- ADVOCATE FOR PETITIONER)
(BY SHRI PRAVEEN NEWASKAR - DEPUTY SOLICITOR GENERAL
FOR RESPONDENTS/UNION OF INDIA)
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ORDER
The instant writ petition under Article 226 of the Constitution of India is directed against the order dated 23.05.2011 and January, 2010 whereby the revision preferred by the petitioner challenging the order dated 22.10.2009 by which challenge was made to the order passed in appeal preferred by the petitioner in compliance to the order dated 12.08.2009 passed in W.P. No.3470/09 had been dismissed. The petitioner has further challenged the order dated 04.06.2009 passed by respondent No.4/Commandant 75 th Battalion, Central Reserve Police Force whereby without issuing any show cause notice and without giving sufficient opportunity of hearing and without assigning any reasons under which circumstances, the petitioner could not join his duties had rejected the appeal. The petitioner is further aggrieved by the order dated 28.10.2008 by which the petitioner was declared as "Bhagoda". The petitioner is also aggrieved by the order dated 08.11.2019 passed by Inspector Signature Not Verified Signed by: YOGENDRA OJHA Signing time: 20-08-2024 02:30:23 PM 2 General, Central Reserve Police Force whereby the revision preferred under Rule 29 of central Reserve Police Force Rules, 1955 has been dismissed and the order dated 19.10.2020 whereby the Revision preferred by the petitioner has been dismissed by Special Inspector General, Central Reserve Police Force, Kolkatta.
2. In brief the facts of the case are that, the petitioner was initially appointed in the Central Reserve Police Force (CRPF) on the post of Cook bearing No.050750171 at 75 th Battalion Srinagar (Jammu & Kashmir).
3. In the month of July 2008, the petitioner was posted as a Cook in 75th Battalion of CRPF at TRC, Srinagar District Srinagar. During that period, the wife of petitioner Smt. Anjana suffered from abdomen and Gynic problem and her health condition became serious, therefore, the petitioner applied for leave for giving better treatment to his wife and the competent/commanding authority granted 10 days' leave to the petitioner. After his leave was sanctioned, the petitioner went to his home and started giving treatment to his wife but the health of the petitioner's wife could not be recovered in a short period of 10 days and after the completion of the period of 10 days, the petitioner had to join his duties leaving his wife in the sick condition.
4. The health of the petitioner's wife again become serious in the month of October, 2008 as informed by the petitioner's family members therefore, immediately the petitioner applied for the leave to his Commanding/Higher authority but the Commanding/High authority of the petitioner refused to sanction the leave to the petitioner and during this period the health of the petitioner's wife further deteriorated and in such circumstances the petitioner Signature Not Verified Signed by: YOGENDRA OJHA Signing time: 20-08-2024 02:30:23 PM 3 informing to his seniors/commanding authority went on leave on 28.10.2008 and after reaching home the petitioner took her for treatment under the prescription of Gynic Specialist and her treatment continued upto the month of April 2009 and during this period, the health of his wife improved and thereafter the petitioner returned to his duty.
5. Meanwhile in the month of April 2009, this fact came to the knowledge of the petitioner that the respondents-authorities behind the back of the petitioner and without issuing any show cause notice and without giving opportunity of hearing for explaining his absence from the duty had removed him from the services.
6. The petitioner approached his higher/commanding authorities in the month of July, 2009 and then this fact came to the knowledge of the petitioner that the respondent no.4 Commanding 75th Battalion. on the basis of ex-parte inquiry report as conducted by Assistant Commandant of 75th Bn of Central Reserve Police Force without giving opportunity of hearing to the petitioner vide order dated 4.6.2009 (Annexure P/4) had removed the petitioner from his services but the petitioner was never communicated about his removal from the services nor the order of removal was sent to him.
7. The respondents-authorities without following the procedure as laid down under the provisions of the Central Reserve Police Force Act, 1949 and the Central Reserve Police Force Rules 1955 in respect of the departmental enquiry, passed the impugned order dated 4.6.2009 (Annexure P/4) and removed the petitioner from the services without giving any opportunity of hearing for submitting his explanation in respect of his absence from the duties.
Signature Not Verified Signed by: YOGENDRA OJHA Signing time: 20-08-2024 02:30:23 PM 48. Against the impugned order, the petitioner approached before this Hon'ble Court and filed writ petition bearing No. 3470/2009 and this Court vide order dated 12.8.209 (Annexure P/5) disposed of the petition with liberty to the petitioner to file appeal before the competent Appellate Authority.
9. In compliance of the said order the petitioner preferred an appeal but the said appeal was dismissed vide order dated 22.10.2009 observing that in nutshell appellant had failed to bring any material fact/evidence which can justify his desertion and long absence of 219 days. The respondent no. 3 further held that keeping in view the misconduct of desertion committed by the appellant read with his past record, the punishment awarded by the disciplinary authority to the appellant, in the instant departmental enquiry does very much commensurate with the gravity of offence committed by him since rampant desertion and absenteeism from office for prolonged period of time without prior permission by the Government Servant has become major cause of indiscipline which would greatly affect the administration and hence does not warrants any intervention of appellate authority.
10. Against the order dated 22.10.2009, the petitioner filed Revision Petition/fresh appeal as per Rule 29 of Rules 1955 for considering his case afresh but that appeal was not allowed and vide letter dated January 2010 (Annexure P/2), the appeal/revision filed by petitioner was returned with the remarks that earlier appeal dated 27.08.2009 had already been rejected being devoid of merits .
11. The respondents vide letter dated 18.4.2011 informed the petitioner that as per the Rule 29, the Revision Petition should be filed within a period of 1 month in case of dissatisfaction on the Signature Not Verified Signed by: YOGENDRA OJHA Signing time: 20-08-2024 02:30:23 PM 5 judgment of the appeal.
12. Since the petitioner had already filed fresh appeal/Revision Petition before the appellate authority, he prayed a decision over it but the appellate authority on extraneous grounds rejected the Revision taking exception that photocopy of earlier appeal had been sent which cannot be considered and directed to send fresh Revision whereas the petitioner had already sent the Revision for reconsideration of the order passed in the appeal. Hence, present petition has been filed.
13. During the pendency of the present petition, the petitioner had preferred Revision under Rule 29 of CRPF Rules, 1955 raising various grounds, which vitiates whole enquiry. The petitioner had also raised a ground that the order of penalty is very harsh and disproportionate and has been inflicted on the basis of an enquiry which has been concluded by the enquiry officer in flagrant violations of principles of natural justice and fair play. Receiving the memo of revision, the same was rejected vide order dated 8.11.2019, and while rejecting the Authority had failed to deal with the grounds raised in the memo of revision and dismissed the same by recording the findings, which are totally perverse and without application of mind.
14. Being aggrieved with the order passed by the Appellate Authority, which was based on perverse contentions, the petitioner preferred an Appeal under Rule 30 of CRPF Rules, 1955 but the same was also been dismissed vide order dated 19.10.2020 reiterating the same findings without due application of its own mind and as such the order dated 19.10.2020 passed by the authority is non-speaking order. Therefore, the orders passed by the revisional Signature Not Verified Signed by: YOGENDRA OJHA Signing time: 20-08-2024 02:30:23 PM 6 authority and the Appellate Authority being without considering the grounds raised in the memo of revision/appeal were dismissed by recording the findings which are totally perverse, committed patent error, the same were prayed to be set- aside.
15. It is submitted by learned counsel for the petitioner that the order dated 04.06.2009 by which the petitioner was removed from the service is an ex-parte order. The reason of absence of the petitioner was that his wife was seriously ill as she was suffering from severe gynic problem. Initially 10 days' leave was granted to him, again in the month of October, 2008, as the health condition of the wife of the petitioner became serious, the petitioner had applied for leave to his Commanding/Higher Authority but the Commanding/Higher Authority refused to grant leave to the petitioner, thus, constrained he had to take leave by informing the higher officials and was absent for a total period of 219 days. Thereafter, the petitioner tried to join the service but he was not allowed to join as vide ex-parte order dated 04.06.2009 he was removed.
16. Learned counsel for the petitioner has drawn attention of this Court to Annexure P/3 by which the appeal preferred by the petitioner had been rejected. It is submitted that in Para 2 of the said order, it has been mentioned that on 05.03.2009, I.O. sent a registered AD letter to the delinquent directing him to appear before I.O. within 15 days for recording statement failing which ex parte DE will be commenced and on 4.03.2009 without completion of period of 15 days, I.O. again sent a registered letter with questionery of plea of guilty or not guilty and the charges were framed against him.
Signature Not Verified Signed by: YOGENDRA OJHA Signing time: 20-08-2024 02:30:23 PM 717. It was further submitted that alongwith the appeal the petitioner had filed all relevant medical documents with regard to illness of his wife. However, the Appellate Authority without considering those medical documents, turned down the appeal.
16. It was further submitted that the petitioner was charged with unauthorized absence of 219 days, which according to the petitioner, is less heinous offence as per Section 10 (m) of the CRPF Act, which states that for less heinous offence, the member of the force shall be punished with imprisonment for a term which may extend to one year, or with fine which may extend to three months pay, or with both. As the petitioner has committed less heinous offence, therefore, he could not have been charged with punishment of dismissal.
17. To bolster his submissions, learned counsel for the petitioner has relied upon the decision of High Court of Jammu & Kashmir And Ladakh At Jammu rendered in the case of Yoginder Singh Vs. Union of India & ors. in SWP No. 736/2008 (O & M), the relevant extract of the said judgment is reproduced below:-
15. This court could have ignored the said discrepancy in the order impugned as a mistake/remiss on the part of respondent No. 4, where a reference has been made in respect of the petitioner overstaying eight times earlier but the respondent No. 4 has repeated the said reference of overstaying of the petitioner eight times earlier. It appears that the respondent No. 4 while passing the order impugned, got swayed by the overstaying of the petitioner eight times earlier and ordered his dismissal from the service. The respondent No.4, after taking note of the overstaying of the petitioner eight times, recorded his subjective satisfaction that adequate chances were given to the petitioner but he did not rectify. The overstaying of the petitioner eight times earlier is not borne from the record and even the Enquiry Officer has not made any such Signature Not Verified Signed by: YOGENDRA OJHA Signing time: 20-08-2024 02:30:23 PM 8 reference in his enquiry report. It is not forthcoming from the record produced by the respondents as to what prompted the respondent No. 4 to make such observation while passing the order of dismissal of the petitioner from service. This Court is conscious of the settled position of law that the punishment awarded to the delinquent official is not to be interfered with until or unless it is shockingly disproportionate to the alleged misconduct of the delinquent official. In the instant case, the ground/circumstance relied upon by the respondent No. 4 is contrary to record and it would be unconscionable on the part of this court to ignore the perversity in the order impugned while imposing the punishment upon the petitioner. In "Anil Kumar Upadhyay v. SSB reported in 2022 SCC OnLine SC 478, the Hon'ble Apex Court has held as under:
"22. On the judicial review and interference of the courts in the matter of disciplinary proceedings and on the test of proportionality, few decisions of this Court are required to be referred to:
i) In the case of Om Kumar (supra), this Court, after considering the Wednesbury principles and the doctrine of proportionality, has observed and held that the question of quantum of punishment in disciplinary matters is primarily for the disciplinary authority and the jurisdiction of the High Courts under Article 226 of the Constitution or of the Administrative Tribunals is limited and is confined to the applicability of one or other of the well-known principles known as 'Wednesbury principles".
In the Wednesbury case, [1948] 1 K.B. 223, it was observed that when a statute gave discretion to an administrator to take a decision, the scope of judicial review would remain limited. Lord Greene further said that interference was not permissible unless one or the other of the following conditions was satisfied, namely, the order was contrary to law, or relevant factors were not considered, or irrelevant factors were considered, or the decision was one which no reasonable person could have taken.
ii) In the case of B.C. Chaturvedi (supra), in paragraph 18, this Court observed and held as under:
"18. A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact-finding authorities have exclusive Signature Not Verified Signed by: YOGENDRA OJHA Signing time: 20-08-2024 02:30:23 PM 9 power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof."
iii) In the case of Lucknow Kshetriya Gramin Bank (supra), in paragraph 19, it is observed and held as under:
"19. The principles discussed above can be summed up and summarised as follows:
19.1. When charge(s) of misconduct is proved in an enquiry the quantum of punishment to be imposed in a particular case is essentially the domain of the departmental authorities.
19.2. The courts assume cannot the function of disciplinary/departmental authorities and to decide the quantum of punishment and nature of penalty to be awarded, as this function is exclusively within the jurisdiction of the competent authority.
19.3. Limited judicial review is available to interfere with the punishment imposed by the disciplinary authority, only in cases where such penalty is found to be shocking to the conscience of the court.
19.4. Even in such a case when the punishment is set aside as shockingly disproportionate to the nature of charges framed against the delinquent employee, the appropriate course of action is to remit the matter back to the disciplinary authority or the appellate authority with direction to pass appropriate order of penalty. The court by itself cannot mandate as to what should be the penalty in such a case.
19.5. The only exception to the principle stated in para 19.4 above, would be in those cases where the co-delinquent is Signature Not Verified Signed by: YOGENDRA OJHA Signing time: 20-08-2024 02:30:23 PM 10 awarded lesser punishment by the disciplinary authority even when the charges of misconduct were identical or the co-delinquent was foisted with more serious charges. This would be on the doctrine of equality when it is found that the employee concerned and the co-delinquent are equally placed. However, there has to be a complete parity between the two, not only in respect of nature of charge but subsequent conduct as well after the service of charge-sheet in the two cases. If the co-delinquent accepts the charges, indicating remorse with unqualified apology, lesser punishment to him would be justifiable."
16. The heavy and onerous responsibility lies with the Disciplinary Authority to ensure that the punishment proportionate to the misconduct of the delinquent official is imposed upon him. The punishment must commensurate with the misconduct and it should neither be harsh nor light in nature. Because of this reason only, the Revisional Authority has been vested with power to enhance the punishment but after providing due opportunity of hearing to the delinquent official. Once such heavy duty has been cast upon the Disciplinary Authority and the quantum of punishment has been kept away from the consideration of the Courts unless it shocks the conscience of the Court, such duty must be discharged by the disciplinary authority very fairly and in a transparent manner. The respondent No. 4 has miserably failed in discharging his onerous responsibility of imposing adequate punishment as he has made certain observations which were not only not forthcoming from the record of the enquiry proceedings but also contrary to the enquiry report.
The respondent Nos. 2 and 3 while deciding the appeal and the revision, as the case may be, have also not considered/examined the said issue and have passed the orders impugned just by examining the validity of the enquiry proceedings. They were under obligation not only to test the enquiry proceedings on the parameters of requirements of section 27 of the Rules of 1955 but also to examine as to whether the same has been awarded on the basis of material relied upon by the Disciplinary Authority and further to ensure that the punishment awarded was proportionate to the misconduct of the delinquent official.
17. In view of what has been said and discussed above, the orders impugned in the present petition are quashed. The respondent No.4 shall pass fresh orders in respect of penalty to be imposed upon the petitioner in accordance with law, within a period of one month from the date copy of this order is served upon the respondent No. 4. Since the petitioner Signature Not Verified Signed by: YOGENDRA OJHA Signing time: 20-08-2024 02:30:23 PM 11 cannot be reinstated into service as he has crossed the age of superannuation, so entitlement of service benefits, if any, shall be subject to outcome of the decision of the respondent No. 4.
18. Learned counsel for the petitioner has further placed reliance on the decision of Single bench this court rendered in W.P. No. 927/2011(s) Ex. Sep/Dvr. No.941352587 Santosh Kumar vs. Union of India & ors. on 16.03.2018, the relevant portion of the said judgment is reproduced below:-
'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 P1) 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, 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:
Signature Not Verified Signed by: YOGENDRA OJHA Signing time: 20-08-2024 02:30:23 PM 12"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 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 Signature Not Verified Signed by: YOGENDRA OJHA Signing time: 20-08-2024 02:30:23 PM 13 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).
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.' With the aforesaid submissions, it was prayed that the punishment of dismissal imposed upon the petitioner is too harsh and deserves to be set-aside.
19. Learned counsel for the respondent vehemently opposed the submissions made by learned counsel for the petitioner but he fairly conceded that the Departmental Enquiry was concluded under Section 10 (m) of CRPC Act and under the said Section punishment of dismissal is not one of modes of punishment.
20. Heard learned counsel for the parties and perused the record.
Signature Not Verified Signed by: YOGENDRA OJHA Signing time: 20-08-2024 02:30:23 PM 1421. Section 9, 10, 11 and 12 of The Central Reserve Police Force Act, 1949 which are relevant for adjudication of controversy are reproduced herein-below:-
9. More heinous offences. Every member of the force who- (a) begins, excites, causes or conspires to cause or joins in any mutiny, or being present at any mutiny, does not use his utmost endeavour to suppress it, or knowing, or having reason to believe in , the existence of any mutiny, or of any intention or conspiracy to mutiny or of any conspiracy against the State does not, without delay, give information thereof to his superior officer; or
(b) uses, or attempts to use, criminal force to, or commits an assault on, his superior officer, whether on or off duty, knowing or having or having reason to believe him to be such; or
(c) shamefully abandons or delivers up any post or guard which is committed to his charge, or which it is his duty to defend ; or
(d) directly or indirectly holds correspondence with, or assists or relieves any person in arms against the State or omits to discover immediately to his superior officer any such correspondence coming to his knowledge; or who, while on active duty,-
(e) disobeys the lawful command of his superior officer; or
(f) deserts the Force; or
(g) being a sentry, sleeps upon his post or quits it Signature Not Verified Signed by: YOGENDRA OJHA Signing time: 20-08-2024 02:30:23 PM 15 without being regularly relieved or without leave; or
(h) leaves his commanding officer, or his post or party, to go in search of plunder ; or
(i) quits his guard, picquet, party or patrol without being regularly relieved or without leave; or
(j) uses criminal force to, or commits an assault on, any person bringing provisions or other necessaries to campo or quarters, of forces a safeguard or breaks into any house or other place for plunder, or plunders, destroys or damages property of any kind; or
(k) intentionally causes or spreads a false alarm in action or in camp, garrison or quarters; or
(l) displays cowardice in the execution of his duty. shall be punishable with imprisonment for a term which may extend to fourteen years or with imprisonment for a term which may extend to fourteen years or with fine which may extend to three months pay or with fine to that extent in addition to such sentence of transportation or imprisonment.
10. Less heinous offences -Every member of the force who- (a) is in a state of intoxication when on, or after having been warned for, any duty or on parade or on the line of march; or
(b) strikes or attempts to force any sentry; or
(c) being in command of a guard, piquet or patrol, refuses to receive any prisoner or person or person Signature Not Verified Signed by: YOGENDRA OJHA Signing time: 20-08-2024 02:30:23 PM 16 duly committed to his charge or without proper authority releases any person or prisoner placed under his charge or negligently suffers any such prisoner or person to escape; or
(d) being under arrest or in confinement, leaves his arrest or confinement, before he is set at liberty by lawful authority; or
(e) is grossly in-subordinate or insolent to his superior officer in the execution of his office ; or
(f) refuses to superintend or assist in the making of any fieldwork or other work of any description ordered to be made either in quarters or in the field; or
(g) strikes or otherwise ill-uses any member of the force subordinate to him in rank or position ; or
(h) designedly or through neglect injures or loses or fraudulently disposes of his arms, clothes, tools, equipments, ammunition or accountrement or any such articles entrusted to him or belonging to any other person ; or
(i) malingers or feigns or produces disease or infirmity in himself, or intentionally delays his cure, or aggravates his disease or infirmity; or
(j) with intent to render himself or any other person unfit for service , voluntarily causes hurt to himself or any other person; or
(k) does not, when called upon by his superior officer so to do or upon ceasing to be a member of Signature Not Verified Signed by: YOGENDRA OJHA Signing time: 20-08-2024 02:30:23 PM 17 the force forthwith deliver up, or duly account for, all or any arms,. Ammunition, stores, accountrements or other property issued or supplied to him or in his custody or possession as such member; or
(l) knowingly furnishes a false return or report of the number or state of any men under his command or charge or of any money, arms ammunition, clothing, equipments, stores or other property in his charge, whether belonging to such men or to the Government or to any member of or any
(m) person attached to the force or who through design or culpable neglect, omit, or refuses to make or send any return or report of the matters aforesaid; or
(n) absent himself without leave, or without sufficient cause overstays leave granted to him: or
(o) is guilty of any act or omission which, though not specified in this Act, is prejudicial to good order and discipline: or
(p) contravenes any provision of this Act for which no punishment is expressly provided: or who, while not on active duty:- (q) commits any of the offences specified in clauses (e) to (l) (both inclusive) of section 9.
shall be punishable with imprisonment for a term which may extend to one year, or with fine which may extend to three months pay, or with both.
Signature Not Verified Signed by: YOGENDRA OJHA Signing time: 20-08-2024 02:30:23 PM 1811. MINOR PUNISHMENTS. -(l)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) 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.
(2) Any punishment specified in clause ( c) or clause(d) or sub section (1) may be awarded by any gazetted officer when in command of any detachment of the Force away from headquarters, provided he is specifically authorized in this behalf by the Commandant.
(3) The Assistant Commandant, a company officer or subordinate officer, not being below the rank of subedar or Inspector, commanding a separate detachment or an outpost, or in temporary command at the headquarters of the Force, may, without a formal trial, award to any member of the Force who is for the time being subject to his authority any one or more of the following punishment for the commission of any petty offence against discipline which is not otherwise provided for in this Act, or which is not of a sufficiently serious nature Signature Not Verified Signed by: YOGENDRA OJHA Signing time: 20-08-2024 02:30:23 PM 19 to require prosecution before a criminal court, that is to say, -
(a) confinement for not more than seven days in the quarter-guard or such other place as may be considered suitable, with forfeiture of all pay and allowances during its continuance;
(b) punishment drill, or extra guard, fatigue or other duty, for not more than thirty days with or without confinement to quarters, lines or camp;
(c) censure or severe censure;
12. Place of imprisonment and liability to dismissal on imprisonment - (1) Every person sentenced under this Act to imprisonment may be dismissed from the force and shall further be liable to forfeiture of pay, allowance and any other moneys due to him, as well as of any medals and decorations received by him. (2) Every such person shall, if he is so dismissed, be imprisoned in the prescribed prison, but if he is not also dismissed from the force he may if the Court of the Commandant so directs, be confined in the quarter-guard or such other place as the court or the Commandant may consider suitable.
22. On perusal of Section 9 of The Central Reserve Police Force Act, 1949, it appears that the said section mentions about serious or heinous offences and also prescribes penalty, which may be awarded for them. Section 10 deals with less heinous offence and clause (m) thereof includes that absence of a member of the force without leave or without sufficient cause or overstay without sufficient cause, and for that also a sentence of imprisonment is Signature Not Verified Signed by: YOGENDRA OJHA Signing time: 20-08-2024 02:30:23 PM 20 provided.
23. A bare perusal of section 9 and 10 of CRPF Act makes it clear that in the aforesaid sections, nowhere 'dismissal" has been mentioned rather only word "imprisonment" has been mentioned.
24 Section 12 further reveals that dismissal would only entail when the delinquent has been convicted either under Section 9 or Section 10. Hence, under section 9 and 10 of CRPF Act, there is a provision of jail sentence and only when jail sentence is awarded, the delinquent can be removed from service. In the order of punishment passed by the disciplinary authority, the petitioner has not been awarded sentence of imprisonment.
24. A plain read of Section 11 of CRPF Act, 1949 makes it apparent that the said section deals with minor punishments as compared to the major punishments. The authority exercising powers under the provisions of section 11 (1) of the CRPF Act, 1949, is 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.
25. In view of above, this court deems it appropriate to allow this petitioner. Accordingly, this petition is allowed. Resultantly, the impugned order dated 04.06.2009 deserves to be set aside and is quashed. Matter is remitted back to the disciplinary authority with a stipulation that if it so desires, conduct a fresh hearing after affording an opportunity of hearing to the petitioner and inflict punishment proportionate to the misconduct as prescribed under Sub Signature Not Verified Signed by: YOGENDRA OJHA Signing time: 20-08-2024 02:30:23 PM 21 Section 1 of Section 11 of the CRPF Act, 1949.
(MILIND RAMESH PHADKE)
ojha JUDGE
Signature Not Verified
Signed by: YOGENDRA
OJHA
Signing time: 20-08-2024
02:30:23 PM