Allahabad High Court
No. 951390463 Ct/Gd Pritam Prasad Ojha vs The Inspector General Of Police Center ... on 2 December, 2019
Equivalent citations: AIRONLINE 2019 ALL 2389
Author: Mahesh Chandra Tripathi
Bench: Mahesh Chandra Tripathi
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 36 Case :- WRIT - A No. - 30304 of 2016 Petitioner :- No. 951390463 Ct/Gd Pritam Prasad Ojha Respondent :- The Inspector General of Police Center Sector CRPF and 3 Others Counsel for Petitioner :- Mithilesh Kumar Tiwari Counsel for Respondent :- A.S.G.I., Ravi Prakash Singh, Tarun Agrawal U.O.I. Hon'ble Mahesh Chandra Tripathi,J.
Heard Sri Mithilesh Kumar Tiwari, learned counsel for the petitioner and Sri Tarun Agrawal, learned counsel for the respondents.
The present writ petition has been filed for following principal reliefs:-
"a) Issue a writ, order or direction in the nature of certiorari quashing the impugned orders dated 24.5.2016 passed by the respondent No. 1, order dated 22.1.2016 passed by the respondent No. 2 and order dated 10.11.2015 passed by the respondent No. 3 (annexure No. 21, 18 and 15 to the writ petition).
b) issue a writ, order or direction in the nature of mandamus commanding the respondents not to give effect to the impugned orders dated 24.5.2016 passed by respondent No. 1, order dated 22.1.2016 passed by the respondent No. 2 and order dated 10.11.2015 passed by the respondent No. 3 and reinstate the services of the petitioner on the post of Ct./GD in C.R.P.F. and made payment of salaries and arrears of salaries to the petitioner with interest @ 10% per annum."
Briefly stated facts of the case are that on 31.10.1995, petitioner was recruited on the post of Constable (GD) in C.R.P.F., Group Centre, Phaphamau, Allahabad. Since then he is continuously working on the aforesaid post. After serving at various places all over India, at present the petitioner is posted in Group Centre, CRPF, Phaphamau, Allahabad since June 2012. Thereafter, petitioner received the suspension order dated 27.10.2014 passed by respondent No. 3 whereby he has been placed under suspension w.e.f. 27.10.2014 and on 27.10.2014 the statement of the petitioner was also recorded by the Inquiry Officer. A copy of the suspension order dated 27.10.2014 passed by the respondent No. 3 is appended as Annexure No. 1 to the writ petition. In paragraph No. 2 of the aforesaid suspension order dated 27.10.2014 passed by the respondent No. 3 it is mentioned that the petitioner has been placed under suspension under Sub Rule (1) of Rule 10 of the Central Civil Services (Classification, Control and Appeal) Rules 1965. Although the Rule 27-A of the Central Reserve Police Force Rules 1955 is applicable. In view of the Rule 27-A of the Rules 1955, the suspension of the petitioner is permissible on the charge of serious misconduct but the respondent No. 3 has passed the suspension order dated 27.10.2014 in violation of the aforesaid Rule 27A as the respondent No. 3 has not mentioned any ground of suspension.
Against the suspension order dated 27.10.2014, the petitioner has been before this Court by preferring Writ Petition No. 58632 of 2014 (Pritam Prasad Ojha Vs. Union of India and 2 others). Vide order dated 5.11.2014 passed by this Court, effect and operation of the aforesaid suspension order dated 27.10.2014 passed by the respondent No. 3 was stayed. In compliance of the said order dated 5.11.2014 passed by this Court, the suspension order dated 27.10.2014 has been revoked vide order dated 18.11.2014 passed by the respondent No. 2. Consequently, the aforesaid Writ Petition No. 58632 of 2014 (Pritam Prasad Ojha Vs. Union of India and 2 others) has been dismissed as infructuous vide order dated 6.4.2015 passed by this Court. Vide letter dated 26.11.2014 passed by the respondent No.2, the charge sheet dated 26.11.2014 was served upon the petitioner by levelling charge to the effect that the petitioner was appointed as Attendant of one Smt. Munni Devi Dwivedi to go to the PGI Hospital Lucknow with her in ambulance but the petitioner has not gone with the said patient. Vide order dated 17.12.2014 issued by the respondent No.3, one Sri Pramendra Narain, Deputy Commandant, GC, CRPF, Allahabad has been appointed as Inquiry Officer to conduct disciplinary inquiry against the petitioner and vide order dated 30.12.2014 Sri A.B. Thapa was appointed as Presenting Officer in the aforesaid matter of disciplinary inquiry of the petitioner. During the course of inquiry the petitioner has pleaded that he is not guilty and thereafter the respondent No. 2 has issued a letter dated 11.4.2015 by which he has appointed Shri S.K. Pandey as a Presenting Officer in place of Shri A.B. Thapa in the said departmental inquiry.
During the course of disciplinary inquiry, PW-1 Subedar Major GD Santosh Kumar Mandal, PW-2 Subedar Major/Office Superintendent, Emil Kindo, PW-3 SI/SMM Damodar Reddy, PW-4 ASI/GD Dukh Haran, BHM, PW-5 Constable/GD Rakesh Rai were examined. Further DW-1 Constable/GD Rakesh Kumar Yadav, was also examined. During the aforesaid disciplinary inquiry DW-1 Constable/GD Rakesh Kumar Yadav was examined as defence witness of the petitioner and in his statement, he has specifically mentioned that the petitioner was already appointed as Attendant of Constable/GD Sartaj Alam, who was admitted in Prachi Hospital, Shantipuram, Allahabad since 23.10.2014. Thereafter the petitioner was directed to be appointed as Attendant of patient Munni Devi Dwivedi, who has been referred to PGI Hospital Lucknow for better treatment and in place of petitioner (P.P. Ojha) one G.D. Rakesh Kumar Yadav was appointed as attendant of Sartaj Alam and thereafter the ambulance reached in Prachi Hospital and the petitioner P.P. Ojha has shifted the patient Munni Devi Dwivedi in the aforesaid ambulance from ICU room by stretcher with the help of Ward Boy and Rakesh Kumar Yadav. Petitioner has stated to the ambulance party that he is coming within two minutes after giving money to patient Sartaj Alam and thereafter the driver of the ambulance has started the ambulance then witness Rakesh Kumar Yadav informed the ambulance driver that attendant of the patient Munni Devi Dwivedi namely P.P. Ojha will come within two minutes and when he was arriving from the stair of the Hospital but the ambulance was moved and the petitioner (P.P. Ojha) has made call to the driver of ambulance but his call was not received by the ambulance party.
Vide letter dated 28.9.2015 issued by the respondent No. 3, the petitioner was required to submit his representation alongwith evidence in his defence in respect of the Inquiry Report dated 9.9.2015 filed by the Inquiry Officer. A copy of the aforesaid letter dated 28.9.2015 alongwith inquiry report dated 9.9.2015 is appended as Annexure No. 13 to the writ petition. In pursuance of the aforesaid letter dated 28.9.2015 issued by the respondent No. 3 the petitioner has filed his representation dated 13.10.2015 before the respondent No.3 against the Inquiry Report dated 9.9.2015 submitted against him by the Inquiry Officer. Without considering the explanation/representation dated 13.10.2015 filed by the petitioner before the respondent No. 3, the impugned order of compulsory retirement from service has been passed by the respondent No. 3 on 10.11.2015. Copy of the impugned order dated 10.11.2015 is appended as Annexure No. 15 to the writ petition.
Being aggrieved with impugned order dated 10.11.2015 passed by the respondent No. 3, petitioner has filed a Writ A No. 64427 of 2015 which was dismissed vide order dated 26.11.2015 passed by this Court on the ground of alternative remedy of filing appeal before the respondent No. 2. Thereafter, against the impugned order dated 10.11.2015 passed by the respondent No. 3 the petitioner has filed an appeal dated 7.12.2015 before the respondent No. 2 under Rule 28 of C.R.P.F. Rules 1955 on various grounds. Vide order dated 22.1.2016 passed by the respondent No. 2 the said appeal has been dismissed and the order dated 10.11.2015 passed by the respondent No. 3 was affirmed.
Against the order dated 22.1.2016 passed by the appellate authority i.e. respondent No. 2, the petitioner has filed a revision dated 3.2.2016 before the respondent No.1 under Rule 29 of C.R.P.C. Rules 1955. Thereafter, petitioner has also sent reminder dated 4.3.2016 to the respondent No.1 with prayer to decide the aforesaid revision expeditiously. After receipt of reminder dated 4.3.2016, the respondent No.1 proceeded to pass the impugned order dated 24.5.2016 by which he has rejected the revision filed by the petitioner. Petitioner is before this Court again on account of dismissal of the appeal as well as revision.
Learned counsel for the petitioner contends that while passing the aforesaid impugned order dated 10.11.2015, the respondent No.3 has not considered the detailed representations/explanations dated 13.10.2015 filed by the petitioner against the Inquiry Report dated 13.10.2015, though the Rule 27-C (6) of the Central Reserve Police Force 1955 specifically provides for the Commandant, Group Centre, CRPF, Phaphamau, Allahabad to record the findings and pass the order of punishment after receiving the inquiry report from the Inquiry Officer against the accused employee but the respondent No. 3 has accepted the inquiry report by passing non-speaking order. While passing the aforesaid impugned order dated 22.1.2016, the appellate authority has not considered the grounds of appeal taken by the petitioner. He further submits that while passing the impugned orders dated 24.5.2016, 22.1.2016 and 10.11.2015, the respondent Nos. 1, 2 and 3 have not considered the report dated 7.8.2015 made by the Presenting Officer wherein it has been specifically stated that no movement order has been issued by the department in respect of departure of the petitioner CT/GD Preetam Prasad Ojha from Allahabad to PGI Lucknow and without movement order, member of CRPF cannot move from one district to another district as per rules.
Learned counsel for the petitioner further contends that while passing the impugned orders dated 24.5.2016 and 22.1.2016, respondents have not considered that the order dated 10.11.2015 passed by the respondent No. 3 is without providing opportunity of personal hearing to the petitioner and as such, the same has been passed in violation of principles of natural justice. He further contends that the impugned order dated 10.11.2015 passed by the respondent is illegal, arbitrary, discriminatory, perverse and violative of Article 14 and 21 of the Constitution of India and the same is not sustainable under the law and liable to be quashed as the aspect of the matter has also not been considered by the respondent Nos. 1 and 2 while dismissing the revision and appeal respectively.
Learned counsel for the petitioner further makes statement that if the petitioner is reinstated in service, he will not claim any salary for the period in which he has not worked.
On the other hand, learned counsel for the respondents submits that the petitioner belongs to disciplined force and there is no illegality or infirmity in the orders impugned. The petitioner was found to be negligent of his duties and therefore, the orders impugned have rightly been passed.
Heard rival submissions and perused the record.
The Court has proceeded to examine the record in question and finds that the petitioner has been compulsory retired by the impugned order dated 10.11.2015 passed by the respondent No. 3. The said order was subjected to challenge in appeal before the respondent No. 2 and the same has been dismissed on 22.1.2016. The said order was also affirmed by the respondent no.3 on 10.11.2015. The revision was also filed assailing the order dated 22.1.2016 and the respondent No.1 has proceeded to reject the revision.
A Division Bench of this Court in the case of Suresh Kumar Tiwari v. D.I.G., P.A.C. and Anr., 2001 (4) AWC 2630, 2002 Lab IC 259, has, while reiterating the view of the Supreme Court, held that the High Court normally does not interfere with the quantum of punishment unless the punishment shocks the conscience of the Court.
As already noticed above, since the charges on which the punishment has been imposed are to be taken as correct, what is now left to be considered and examined is as to whether the punishment imposed was commensurate with the said charges or not.
In Mithilesh. Singh v. Union of India and Ors., 2003 (1) UPLBEC 911, the Apex Court held that absence from duty without proper intimation and permission amounted to grave offence warranting removal from service. In the case of State of U.P. v. Ramakant Yadav, 2003 (1) AWC 84 (SC) ; 2002 (3) UPLBEC 2799, the Supreme Court reversed the order of the High Court whereby the punishment had been reduced to reinstatement in service on payment of 50% of back wages with a warning to the delinquent, and held that the High Court ought not to have Interfered with the quantum of punishment in the facts of that case. The Supreme Court in the case of State of U.P. v. Ashok Kumar Singh, AIR 1996 SC 736, held that where the employee had absented himself from duty without leave on several occasions, the High Court was not correct in holding that his absence from duty would not amount to such a great charge so as to impose the penalty of dismissal from service.
On the contrary the Apex Court in the case of Ranjit Thakur v. Union of India and Ors., AIR 1987 SC 2386, has held that "the question of the choice and quantum of punishment is within the Jurisdiction and discretion of the Court-Martial. But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the Court-Marital, if the decision of the Court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. Irrationality and perversity are recognised grounds of judicial review."
In the case of Union of India and others v. Giriraj Sharma, AIR 1994 SC 215, the Apex Court held that over-staying of leave subsequent to the order of rejection of application for extension of leave could not be considered to be a sever enough charge to warrant punishment of dismissal from service and the same was held to be harsh and disproportionate. A Division Bench of this Court in the case of Harpal Singh v. State Public Services Tribunal, Lucknow and Ors. 2000 (2) AWC 1075 : 2000 (86) FLR 334, held that where it was on account of negligence of the constable of the G.R.P. that one passenger was misbehaved with and was murdered, the same could not be a case of serious misconduct and held that the punishment of dismissal from service was totally disproportionate to the offence and thus directed reinstatement of the employee in service, with half back wages and also ordered that he be given a severe warning. Further, in the case of Alexandar Pal Singh v. Divisional Operating Superintendent, 1987 (2) ATC 922 (SC), the Supreme Court held that ordinarily the Court or Tribunal cannot interfere with the discretion of the punishing authority in imposing particular penalty but this rule has an exception. If the penalty imposed is grossly disproportionate with the misconduct committed, then the Court can interfere. The railway employee on being charged with negligence in not reporting to the railway hospital for treatment was removed from service. The Supreme Court found it fit to interfere with the punishment of removal from service and modified it to withholding of two Increments.
A Division Bench of this Court in the case of Suresh Kumar Tiwari v. D.I.G., P.A.C. and Anr., 2001 (4) AWC 2630, 2002 Lab IC 259, has, while reiterating the view of the Supreme Court, held that the High Court normally does not interfere with the quantum of punishment unless the punishment shocks the conscience of the Court.
In the light of the law laid down by the Apex Court as well as this Court, in my view the broad principle which emerges is that normally, it is the disciplinary authority which should be best left with the duty of imposing the punishment after considering the facts and circumstances of the case. However, it is well settled that in case, if on the admitted facts, the punishment imposed is grossly disproportionate to the offence, which shocks the conscience of the Court, the Court has the power and jurisdiction to interfere with the punishment imposed.
In the peculiar facts and circumstances of the case, orders impugned cannot sustain and as such, the same are set aside. The petitioner is entitled to be reinstated with all other consequential benefits forthwith. However, on the basis of 'no work no pay' the petitioner is not entitled for any salary for the period in which he had not worked and the same has also been accepted by learned counsel for the petitioner. This order would not preclude the authority concerned to proceed strictly in accordance with law.
In result, writ petition is allowed.
Order Date :- 2.12.2019 Jaswant