Gauhati High Court
Rahul Kumar vs The Union Of India And 4 Ors on 4 December, 2018
Author: Sanjay Kumar Medhi
Bench: Sanjay Kumar Medhi
Page No.# 1/8
GAHC010125952015
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 8039/2015
1:RAHUL KUMAR
S/O. SRI MAHAVIR SINGH, WORKING AS H.C.M, CRPF, VILL. MANDIYA
MEERPUR MOHAN CHAK, P.O. MALAKPUR SEMLI, P.S. THAKURDWARA,
DIST. MORADABAD, UTTAR PRADESH PRESENTLY POSTED AT DIGP,
GROUP CENTRE, CRPF, 9TH MILE, AMERIGOG, GHY.-23, ASSAM, PIN-
781023.
VERSUS
1:THE UNION OF INDIA and 4 ORS
REP. BY THE SECY. TO THE GOVT. OF INDIA, MINISTRY OF HOME
AFFAIRS.
Advocate for the Petitioner : MR.B RAMCHIARY
Advocate for the Respondent :
BEFORE
HONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI
JUDGMENT
Date : 04-12-2018 Heard Mr. R. Mazumdar, learned Counsel for the petitioner as well as Ms. A. Gayan, learned Central Government Counsel.
2. In challenge is an order dated 28.11.2014 passed in a disciplinary proceeding against the petitioner by which he was inflicted the following penalty:
"The accused is awarded a punishment of stoppage of annual increment with Page No.# 2/8 cumulative effect for one year. This will remain effective till the date of increment in the next year i.e. 01.07.15. During the period in which this punishment remains in force his increment will remain withheld. The withholding of increment will have the further effect of postponing his future increment.
The period of unlawful absence of 32 days i.e. from 17.09.13 to 18.10.13 of the Force No.095190074 H/Ministrial Rahul Kumar shall be considered as 'Dies Non' for all purposes."
3. The departmental appeal preferred by petitioner was also rejected vide order dated 6.4.2015 and challenging the same, the petitioner has approached this Court.
4. The brief facts of the case may be narrated as follows:-
5. The petitioner was appointed as a Head Constable (Ministerial) in the CRPF in the year 2009. While the petitioner was posted at Khonsa, Arunachal Pradesh, a disciplinary proceeding was initiated against him on the following charges:
"Charge 1 That, while being in service in the post of H/Ministerial and being a member of the Force under the provision of Section 11(1) of CRPF act 1949, Force No.095190074 H/Ministerial, Rahul Kumar, 36 Bn. CRPF, disobeyed the rules/lapsed in his duties/neglected his duties/and did other misconducts including that on 17.09.13 he left the camp without the permission of competent officer, without obtaining leave and without preparing charge report which is against well established discipline of the Force and is a punishable offence.
Charge 2 That , while being in service in the post of H/Ministerial and being a member of the Force under the provision of Section 11(1) of CRPF act 1949, Force no.095190074 H/Ministerial, Rahul Kumar, 36 Bn. CRPF, disobeyed the rules/lapsed in his duties/neglected his duties/and did other misconducts including that on 17.09.13 he left the camp. Thereafter he was informed over Page No.# 3/8 phone to immediately report the Head Quarter and two notices were sent to this house directing him to immediately report the Head Quarter but disobeying all the given instructions and orders and in the morning of 19.10.13 he reported the Head Quarter at his whim after a long absence of 32 days which is a conduct of indiscipline and is a punishable offence."
6. The petitioner submitted his defence statement and not being satisfied with the explanation, an enquiry was conducted to enquire into the charges against the petitioner. In the said enquiry, 4 nos. of witnesses were examined by the authorities, while the petitioner chose not to adduce any evidence. After completion of the enquiry, the Inquiry Officer submitted a report dated 29.09.2014 in which the following findings were given.
Findings of the Inquiry Officer with regard to the charges:
The Charge 1 that while being in service in the post of H/Ministerial an being a member of the Force under the provision of Section 11(1) of the CRPF act 1949, Force No.095190074 H/Ministerial, Rahul Kumar, 36 Bn. CRPF, disobeyed the rules/lapsed in his duties/neglected his duties/and did other misconducts including that on 17.09.13 he left the camp without his leave being granted, without the permission of the competent officer and without giving charge which is against discipline and a punishable offence is found proved.
Charge 2 is that while being in service in the post of H/Ministerial and being a member of the Force under the provision of Section 11(1) of CRPF Act 1949, Force No.095190074 H/Ministerial, Rahul, Kumar, 36 Bn. CRPF, disobeyed the rules/lapsed in his duties/neglected his duties/and did other misconducts including that on 17.09.13 he left the camp. Thereafter he was informed over phone to immediately report the Head Quarter and two notices were sent to his house directing him to immediately report the Head Quarter but disobeying all the given instructions and orders, in the morning of 19.10.13 he reported the Head Quarter at his whim after a long absence of 32 days which is a conduct of indiscipline and is a punishable offence.
Plea of guilt by the accused: The accused pleaded guilty to this charge framed Page No.# 4/8 against him.
7. The petitioner having responded to the said report, the disciplinary authority considered the case of the petitioner and vide the impugned order dated 28.11.2014 the aforesaid penalty have been imposed. However, before imposing the said charge, the disciplinary authority took into consideration the long future and financial problems of the petitioner and his family which is reflected in paragraph 14 of the said report.
Para 14 of the report dated 28.11.2014 is quoted herein below:
"14. Force No. 095190074 H/Ministerial Rahul Kumar is not eligible to continue in the service of the force. Keeping his long future and the financial problems of his family and the principles of natural justice in view and upon going through the report of the inquiry officer and considering all aspects of the matter I award the below mentioned punishment to the accused as per the provision of Section 11(1) of CRPF Act 1949 and Rule 27(A) of CRPF Rules 1955:"
8. Being unsuccessful in the appeal preferred by the petitioner, the petitioner has filed the present petition, as has been stated above.
9. Mr. R. Mazumdar, learned counsel for the petitioner submits that the charges are absolute frivolous and have not been proved in accordance with law and therefore warrants interference. He submits that the petitioner had prayed for leave of 32 days and on being given the impression that such leave was granted, he had left the station after handing over charge to one Mahesh Sen on the direction of the Head Clerk. Therefore, the question of leaving the station without obtaining leave cannot rise. As regard the second charge of not responding to the notices directing the petitioner to immediately report to the headquarter, Mr. Mazumdar submits that there were compelling circumstances mainly illness of his pregnant wife which prevented him from reporting to the headquarter as per the said instructions. Relying upon the judgment of the Hon'ble Apex Court in the case of Krushnakant B. Parmar v. Union of India, reported in (2012) 3 SCC 178, Mr. Mazumdar submits that the absence from duties to be an offence has to be wilful in nature. However, in instance case the domestic reasons were of such that the petitioner was not in a position to report on duties. On a pointed query by the Court, Mr. Mazumdar however fairly admits that though the petitioner could have informed about the problem, the same was not done at that time. Mr. Page No.# 5/8 Mazumdar further submits that the total days of his absence which was held to be unauthorised is only 32 days and the same had happened only because the petitioner was in the impression that the leave which he had prayed for was granted.
10. Mr. Mazumdar further submits that the penalty imposed namely stoppage of annual increment with cumulative effect for 1 year is not prescribed under the Act or the Rules and therefore the same stands vitiated for want of jurisdiction. Mr. Mazumdar, learned counsel for the petitioner places reliance upon decision of the Hon'ble Apex Court reported in 1999 Supreme Court 1993 (State Bank of India & Others v. T.J. Paul) to buttress his contention that in absence of specific prescription in the Rules, a particular penalty cannot be imposed and on that count alone, the impugned penalty of stoppage of annual increment with cumulative effect is not sustainable. The further penalty of considering the absence of 32 days as 'Dies Non' is totally unreasonable and arbitrary. The submission of the learned counsel is that considering the nature of the charge and even assuming that the second charge has been admitted, the penalty imposed is absolutely harsh and wholly disproportionate to the gravity of the charge levelled to the petitioner. Mr. Mazumdar accordingly prays for setting aside the impugned penalty by exercising the equitable jurisdiction by this Court.
11. Ms. A. Gayan, learned Central Government Counsel, per contra, has submitted that in matters pertaining to disciplinary proceeding, unless, there is gross illegality which is writ large on the face of it, the Court should be slow in interfering with the findings of fact of the disciplinary authority which has been upheld by the appellate authority. Ms. Gayan further submits that the petitioner belongs to a disciplinary force and unauthorised absence is a serious offence and the impugned order itself shows that certain leniency was shown to the petitioner while imposing the penalty. Replying to the arguments of the petitioner, Ms. Gayan, who has produced the records of the case, by referring to the same, submits that the records do not reveal that the charge held by the petitioner was handed over after the leave was sanctioned. On the contrary the record reveals that the leave had not been sanctioned and in absence of such sanction, the petitioner had acted without any authority in absenting himself from duties for a period of 32 days. As regards the submission that the wife of the petitioner was suffering from certain illness and was also pregnant, no document was produced by the petitioner and the same fact is also considered by the disciplinary authority. Referring to the Page No.# 6/8 affidavit-in-reply filed by the petitioner and to the statement of one Mahesh Sen which is relied by the petitioner, Ms. Gayan submits that such statement is not substantiated by the records. Ms. Gayan further submits that even the defence statement of the petitioner which has been annexed to the writ petition does not state that the petitioner had handed over charge to anybody. Ms. Gayan finally submitted that charge no.2 is admitted and charge no.1 is fully proved and accordingly no interference is required from this Court.
12. A perusal of the records gives the impression that a recommendation of leave of the petitioner was made, based on which, it was observed that the petitioner may be permitted to proceed on leave, if approved. In the same recommendation, even observation has been made upon whom the petitioner would handover charge in case of going for leave. Though ultimately the leave was not granted at that time with the observation "his leave will be sanctioned after submission of pending works", based on the said recommendation, the petitioner had left the headquarter.
13. Section 10 of the Central Reserve Police Force Act, 1949 lays down certain offences which have been termed as less heinous amongst others the offence of absence without leave finds place in 10(m). Section 11 given the minor punishments and five points of final punishment has been mentioned.
a. Reduction in rank.
b. Fine of any amount not exceeding 1 month's pay and allowances.
c. Confinement to quarter line or camp for the terms not exceeding one month.
d. Confinement in the quarter guard for not more than 28 days with or without
punishment deal or extra guard fatigue or other duty and
e. Removal from any office of distinction or special emolument in the Force.
14. It is seen that the Act does not prescribe for the penalty of stoppage of annual increment with cumulative effect. However, in the Rules framed there under namely the Central Reserve Police Force Rules 1955, more specifically Rule 27, the procedure for imposition of punishment is laid down. In the table appended thereto, in serial no.7 "stoppage of increment" finds place. However even in the Rules, there is no mention about Page No.# 7/8 "cumulative effect". The difference between the penalty of "stoppage of increment" and "stoppage of increment with cumulative effect" is a major difference where the later penalty is more severe where the stoppage of increment is for all times to come.
15. Considering the rival submissions made by the parties, no doubt the service of the petitioner is in a discipline force, the penalty inflicted has to be tested vis-a-vis the nature and gravity of the charge. The record reveals that there was indeed a recommendation for grant of leave to the petitioner and the same recommendation per se was not rejected. Only the condition was imposed that the leave would have sanctioned after completion of the pending works. However, based on the said recommendation, the petitioner had already left the headquarter after handing over the charge to one Mahesh Sen which was also done as per the recommendation. Ideally, the petitioner should have left the station after ascertaining that leave was duly sanctioned and leaving the station prior to grant of such sanction and only on the strength of the recommendation can perhaps be the only fault of the petitioner. However, the petitioner stated that there was an emergent situation for which he had to leave. In view of the same, it cannot be said, that petitioner had a deliberate intention to remain absent without grant of leave. However, it is also a fact that the petitioner was directed to report back to duties which he failed to do so. This fact has been admitted by the petitioner, however by giving certain explanation regarding his wife's illness.
16. Future prospect of the petitioner is relevant factor to be considered while taking a decision to impose penalty in a disciplinary proceeding which is seemed to be done in the instant case. However, the penalty imposed of stoppage of annual increment with cumulative effect for 1 year apart from being harsh vis-a-vis the nature of charge read with the explanation, is not a prescribed penalty either in the Act or the Rules. As held by the Hon'ble Apex Court in the case of State Bank of India (supra) the authorities cannot impose any penalty which is not one of the enumerated penalties under the rules in force. This Court exercising powers under Article 226 of the Constitution of India can, in appropriate cases mould the relief to minimise litigation and the time undertaken in such litigation. In this connection, one may refer to the landmark judgment of the Hon'ble Apex Court laid down in the case of B.C. Chaturvedi v. Union of India & Others, reported in (1995) 6 SCC 749.
17. In view of such settled position of law and taking into consideration Rule 27 of the Page No.# 8/8 aforesaid Rules, the impugned order of penalty dated 28.11.2014 as well as the order of the Appellate Authority of April, 2015, which are interfered with in the following manner:
i. The first punishment of stoppage of annual increment for 1 year would be without cumulative effect.
ii. The period of 32 days from 17.09.2013 to 18.10.2013 shall not be treated as 'Dies Non'. It is made clear that the petitioner would not be entitled to any pay for the said period but would be deemed to be in continuous service for consideration of other notional benefits.
iii. The said penalty shall not come as an impediment for future service career of the petitioner.
The writ petition is accordingly disposed of in the terms as indicated above.
The records produced by Ms. A. Gayan, is returned to her.
JUDGE Comparing Assistant