Meghalaya High Court
The Union Of India vs Shri Puran Singh on 29 July, 2016
Bench: Dinesh Maheshwari, Ved Prakash Vaish
1
IN THE HIGH COURT OF MEGHALAYA AT
SHILLONG
: ORDER :
WA No.16 of 2015 Union of India and others ..... Appellants
-Versus-
Shri Puran Singh ..... Respondent
Date of Order: :: 29.07.2016
PRESENT
HON'BLE SHRI JUSTICE DINESH MAHESHWARI, CHIEF JUSTICE HON'BLE SHRI JUSTICE VED PRAKASH VAISH Shri R Deb Nath, for the appellants Shri BK Deb Roy, for the respondent AFR BY THE COURT: (per Hon'ble the Chief Justice) (Oral) This intra-court appeal is directed against the order dated 13.06.2014 as passed in WP(C) No.121 of 2013 whereby, the learned Single Judge of this Court has found the punishment awarded to the writ petitioner/respondent, of removal from service under Section 11 (1) of the Central Reserve Police Force Act, 1949 [hereinafter referred to as „the CRPF Act‟] to be impermissible in law, for being that of major punishment; and unjustified too, for being disproportionate to the alleged delinquency.
Having heard learned counsel for the parties and having perused the material placed on record, when we find that the learned Single Judge has overlooked the statutory provisions as also the binding decision of the Hon‟ble Supreme Court; and has not examined the relevant grounds of challenge by the writ petitioner in the correct perspective, it appears just and proper that the matter be remanded for 2 re-consideration. Thus, when the matter is proposed to be remanded for re-consideration, only a brief reference to the relevant background aspects would suffice.
The writ petitioner (respondent herein) was serving as Constable in the Central Reserve Police Force [„CRPF‟]. It was alleged that on 21.05.1998, he did not turn up on duty from 2030 hrs, but was found sleeping in an intoxicated state. It was also imputed that when the concerned Head Constable approached the respondent and asked the reason for not turning up on duty, he replied in an un-parliamentary language under the influence of liquor. On these imputations, the proceedings were drawn up against the respondent under Section 11 (1) of the CRPF Act read with Rule 27 of the CRPF Rules, 1955. The Articles of Charges served on the respondent read as under:-
"ARTICLE -I "That the said No.810060086 HC Puran Singh of E/35 Bn CRPF was detailed for patrolling duty on 21/5/98 from 2030 hours but he did not turn up for his duty, but was sleeping in his charpoy in an intoxicated state. He was medically examined and the intoxication was confirmed by the report of the medical officer. Thus, he was guilty of neglect/remissness in the discharge of duty in his capacity as a member of the Force under Section 11(1) of the CRPF Act, 1949".
ARTICLE-II "That during the aforesaid period and while functioning in the aforesaid office, the said No.810060036 HC/GD Puran Singh of E/35 Bn CRPF, did not turn up for his duty from 1030 hrs on 21/5/98 (Patrolling duty in the night). When CHM of E/35 Bn CRPF No.690380032 HC Radhey Shyam Pandey had asked No.810060086 HC/GD Puran Singh as to why he did not turn up for his duty, the said HC Puran Singh had replied using the un-parliamentary language "Main Nahin Uthunga, Main Tumhara naukar nahin hun" etc. On seeing that HC Puran Singh was under the influence of liquor and was not in a condition to perform the duties, HC Radhey Shyam Pandey (CHM) himself performed the duties in place of HC/GD Puran Singh. Thus, HC/GD Puran Singh is guilty of mis-conduct in his capacity as a member of the Force U/S 11(1) of the CRPF Act, 1949". After taking evidence and examining the record, the enquiry officer submitted his report with the findings that the charges leveled against the respondent stood proved; and based on this report, the 3 Commandant 35th Battalion CRPF Thoubal, Manipur issued the impugned order dated 06.08.1998, awarding the respondent punishment of „removal from service‟, while concluding on the matter as under:-
"5. I have carefully gone through the D.E. proceedings, report of the Enquiry Officer and other documents available before me and found that article of charges leveled against the delinquent No. 810060086 HC/GD Puran Singh (Under Suspension) have been PROVED BEYOND ANY SHADOW OF DOUBT. He has committed the offences of serious mis-conduct/mis- behaviour in his capacity as a member of the Force under Section 11 (1) of the CRPF Act, 1949 and I do not consider the delinquent No. 810060086 HC Puran Singh, to be a fit person to be retained in service.
6. Therefore, in exercise of powers conferred on me Under Section 11 (1) of CRPF Act, 1949 read with Rule 27 of CRPF Rules, 1955 and table there-under, the undersigned awards No. 810060086 HC Puran Singh (Under Suspension of E/35 Bn CRPF, the punishment of "REMOVAL FROM SERVICE' w.e.f. 6/8/98 (AN). He will stand struck off strength of this Unit from the same date. He is released from suspension w.e.f. 6/8/98 (AN) and the period of his suspension from 24/5/98 (FN) to 6/8/98 (AN) shall be treated "AS SUCH" and he will not be entitled to any benefits other than the emoluments already paid to him.
7.All medals and decorations, if earned by the above delinquent during his service are also to be fore-feited under the provisions contained in Section 12 (1) of the CRPF Act, 1949 Govt. dues if any, outstanding against him, will be adjusted from the payable dues of the delinquent. ....."
The appeal taken by the respondent against the aforesaid order dated 06.08.1998 was dismissed by the Appellate Authority i.e., DGP- P, Kohima with a short order dated 23.09.1999, the relevant part whereof reads as under:-
"3. Aggrieved with the said order of disciplinary authority, the accused has come up with an appeal dated 27/10/98, received through Col. Ashok Kumar (Retd), Counsel for the petitioner vide letter dated 31/12/98 which is received in this office on 13/5/99. On checking the appeal, it is seen that the same has been addressed to the Director General, CRPF New Delhi but as per existing instructions, appeal should have been addressed to the appellate authority (i.e. DIGP, CRPF Kohima). However, the appeal has been entertained in the larger interest of natural justice under Rule 28 (e) of CRPF Rules, 1955 for consideration, though it can be barred by limitation of time.
4. I have gone through the appeal alongwith D.E. proceedings and comments offered by the disciplinary authority. The E.O. has 4 conducted the D.E. in accordance with the Rules and strictly as per guidelines on the subject and no procedural error has been noticed. The delinquent was given sufficient/ample opportunity to defend his case and copy of report of the enquiry officer was also provided, to the delinquent by the disciplinary authority to make representation, if any, if he wished to do so in writing within the prescribed time. Accordingly the delinquent submitted representation/application dated Nil, which has also been duly considered by the disciplinary authority before passing final order dated 6/8/98.
5. The appellant has not brought out any new facts in his appeal to be considered afresh except those which do not have any base or merit. The charges leveled against him have been proved duly substantiated with evidence on record adduced during the enquiry. Hence there is no valid grounds to interfere with the orders passed by the commandant and to set aside the punishment awarded to him.
6. I, therefore, feel that it is a clear case of violation of service conduct Rules and the punishment awarded to the appellant by the disciplinary authority is not only justified but appropriate too. The appeal is therefore rejected being time barred and devoid or merit."
The review petition filed by the respondent against the order of the Appellate Authority was dismissed by the Inspector General, NES, CRPF, Shillong by the order dated 01.09.2000, again after finding no reason to interfere.
It is borne out that seeking to challenge the orders aforesaid, the respondent had earlier filed a Writ Petition bearing No.1300 (S/S) of 2006 in the High Court of Uttarakhand, which was finally disposed of by the said High Court on 09.04.2013 for want of jurisdiction, but with liberty to the respondent to assail the orders impugned before the appropriate forum. It was for this reason that the writ petition against the aforesaid orders passed in the years 1998, 1999 and 2000 came to be filed in this Court in the year 2013.
Seeking to assail the orders impugned, it was submitted before the learned Single Judge that Section 11(1) of the CRPF Act dealt only with minor punishments; and the punishment of removal from service was not provided thereunder. It was, therefore, contended that the Commandant had acted wholly unauthorized in awarding the punishment of removal from service in the impugned order dated 5 06.08.1998. The appellants, on the other hand, contended that the Commandant, being the disciplinary authority, was empowered to award the punishment of removal or even of dismissal from service under Section 11(1) of the CRPF Act read with Rule 27 of the CRPF Rules, 1955. It was further contented that the offences committed by the writ petitioner were serious in nature but taking a lenient view, the disciplinary authority had only awarded the punishment of "removal from service" and not that of "dismissal from service", leaving the scope for the writ petitioner to seek employment in other organization.
The learned Single Judge proceeded to frame the question for determination in the matter to the effect „as to whether major penalty of dismissal/removal from service could have been imposed on the respondent/writ petitioner by the disciplinary authority in exercise of the powers under Section 11(1) of the CRPF Act read with Rule 27 of the CRPF Rules, 1955 for neglect of duty or remissness in the discharge of any duty or of other misconduct in his capacity as member of the Force?‟ The learned Single Judge proceeded to examine the provisions of Section 11 (1) of the CRPF Act, which read as under:-
"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 considered 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 6
(e) removal from any office of distinction or special emolument in the Force."
The learned Single Judge, thereafter, referred to the principles of interpretation of statues that no word should be considered redundant or surplus; that statutory provisions must ordinarily be construed according to their plain meaning; and that no words should be added, altered or modified unless it was plainly necessary, so as to prevent a provision from being unintelligible, absurd, unreasonable, unworkable or totally irreconcilable with the rest of the statute. The learned Single Judge also referred to several decisions of the Hon‟ble Supreme Court on the purposive of interpretation of statutes to conclude that „major penalty‟ of removal from service cannot be imposed under Section 11 (1) of the CRPF Act inasmuch as only a „minor penalty‟ could be imposed thereunder. The learned Single Judge observed and held as under:-
"12. On bare perusal of Section 11(1) of the CRPF Act, 1949, it is clear that dismissal or removal from service are not the type of minor penalties mentioned in Section 11(1) of the CRPF Act, 1949. Minor penalty under Section 11(1)(e) i.e. "removal from any office of distinction or special emolument in the Force" should not be understood as removal from service inasmuch as, the said minor penalty is only removal from any office of distinction hold by the delinquent or special emolument in the Force enjoyed by the delinquent."
It was also suggested before the learned Single Judge that the major punishment of removal from service was highly disproportionate to the alleged misconduct of the writ petitioner, of being in an inebriated state and not reporting on duty. The learned Single Judge accepted this argument with reference to the decisions of the Courts that the punishment should be proportionate to the delinquency. The learned Single Judge, of course, referred to the principles that ordinarily the Court will not interfere with the quantum of punishment 7 but then, found the punishment as awarded to the writ petitioner to be highly disproportionate and hence, concluded that the impugned orders could not be sustained. The learned Single Judge, however, ordered that the respondent/writ petitioner would be reinstated in service subject to medical fitness without any arrears of pay and allowances; and, if not found medically fit for reinstatement, he would be given pensionary benefits while taking that he had completed the qualifying service for pension and had received minor penalty as deemed fit and proper by the Disciplinary Authority. The learned Single Judge concluded on the writ petition with the following observations and directions:-
"22. For the foregoing discussions, this Court is of the considered view that the Commandant 35th Battalion, CRPF, Thoubal, Manipur (respondent No.5) in exercise of powers under Section 11(1) of the CRPF Act, 1949 which provides only minor punishments mentioned therein, cannot impose major penalty of removal or dismissal from service to the petitioner. Over and above, this Court is of the considered view that major penalty of removal or dismissal from service imposed to the petitioner for his solety incident of misconduct or negligence in the discharge of sentry duty in an inebriated state is wholly disproportionate as held by the Apex Court in Dalbir Singh's case (Supra) and other cases discussed above.
23. In the result, the impugned orders dated 06.08.1998, 23.09.1999 and 01.09.2000 are hereby set aside and quashed and the respondents No.5 & 6 may impose any of the minor penalties mentioned in Section 11(1) of the CRPF Act, 1949 to the petitioner. The respondents are further directed to reinstate the petitioner in service subject to medical fitness without any arrear pay and allowances within a period of three months from the date of receipt of a certified copy of this judgment and order.
24. Even, if the petitioner is found not medically fit for reinstatement in service, he should get the pensionary benefits taking that he had completed qualifying service for pension and received minor penalty which deems fit and appropriate according to the disciplinary authority.
25. Writ petition is allowed to the extent indicated above."
Seeking to assail the order aforesaid, it has been strenuously contended on behalf of the appellants that the learned Single Judge has misinterpreted the provisions of Section 11 (1) of the CRPF Act 8 and CRPF Rules, 1955 in assuming that the punishment of removal from service cannot be awarded thereunder. It is submitted that the words „minor punishment‟ occurring in the title of Section 11 of the CRPF Act are not decisive of the matter; and the main provision carries clear stipulation that even dismissal from service could be ordered thereunder. It is also submitted that the law applicable to the case is rather not of any doubt in view of the decision of the Hon‟ble Supreme Court in the case of Union of India and others vs. Ghulam Mohd. Bhat: (2005) 13 SCC 228. On the other hand, the learned counsel for the respondent/writ petitioner has attempted his best to support the order impugned particularly with the submissions that the punishment as awarded being highly disproportionate to the alleged misconduct, the learned Single Judge has rightly interfered in the matter.
As observed at the outset, we are clearly of the view that the order impugned suffers from fundamental flaws and cannot be sustained.
In a comprehension of the impugned order dated 13.06.2014, with respect, it appears that the learned Single Judge, while elaborating on the principles of interpretation, has overlooked the scheme of the CRPF Act and particularly the Chapter relating to "Offences and Punishments" therein as also the plain language of Section 11 (1) thereof.
It is noticed that in the scheme of the CRPF Act, different offences have been classified as "more heinous offences" in Section 9; and "less heinous offences" in Section 10. For more heinous offences, higher nature punishments have been provided which may extend to transportation for life for a term of not less than 7 years or imprisonment for a term which may extend to 14 years and/or fine [per 9 Section 9] whereas, for the less heinous offences, the punishment may be of imprisonment for a term which may extend to one year or of fine or both [per Section 10]. It is in distinction to such higher degree punishments under Sections 9 and 10 of the CRPF Act that "minor punishments" have been provided in Section 11 (1) thereof, when any members of the force is considered to be guilty of disobedience, neglect of duty, or remissness in the discharge of any duty or of other misconduct. The Central Reserve Police Force being a special armed force maintained by the Central Government, the provisions aforesaid are essentially for maintaining the overall discipline and upright conduct. It is also evident that in the Chapter relating to "Offences and Punishments", the acts of disobedience or neglect of duty or remissness in discharge of duty etc., have been classified as those liable for minor punishments, which may be awarded "in lieu of, or in addition to, suspension or dismissal". In other words, the minor punishments enumerated in Section 11(1) of the CRPF Act are not the only punishments envisaged for the referred offences, of disobedience or neglect or remissness etc. but they could be awarded in lieu of , or in addition to, „suspension‟ or even „dismissal‟.
With respect, we are impelled to observe that the aforementioned scheme of the CRPF Act and clear language of Section 11 (1) of the CRPF Act seem to have escaped the attention of learned Single Judge, who appears to have proceeded to interpret the provisions in Section 11 (1) of the CRPF Act as if the same were of equivalence with the other provisions contained in the Conduct Rules of different civil services, where usually the penalties in disciplinary matters are classified as „minor penalties‟ and „major penalties‟. 10
As noticed, it would not be correct to interpret the provisions contained in Section 11 of the CRPF Act in isolation or detached from the composite scheme of the Chapter relating to "Offences and Punishments" therein. Further, the provisions contained in Section 11 of the CRPF Act cannot be interpreted as if standing at par with the provisions relating to "minor penalties", as contained in different civil service Conduct Rules. Section 11 (1) of the CRPF Act provides for „minor punishments‟ which are termed as "minor" for being much lesser in degree than the punishments which are provided in the preceding provisions, i.e., Sections 9 and 10 thereof. We need not elaborate further on Section 11 (1) of the CRPF Act as the same has been interpreted and explained in no uncertain terms by the Hon‟ble Supreme Court in Ghulam Mohd. Bhat's case (supra) in the following:-
"5. A bare perusal of Section 11 shows that it deals with minor punishment as compared to the major punishments prescribed in the preceding section. It lays down that the Commandant or any other authority or officer, as may be prescribed, may, subject to any rules made under the Act, award any one or more of the punishments to any member of the force who is found guilty of disobedience, neglect of duty, or remissness in the discharge of his duty or of other misconduct in his capacity as a member of the force. According to the High Court the only punishments which can be awarded under this Section are reduction in rank, fine, confinement to quarters and removal from any office of distinction or special emolument in the force. In our opinion, the interpretation is not correct, because the section says that these punishments may be awarded in lieu of, or in addition to, suspension or dismissal.
6. The use of words "in lieu of, or in addition to, suspension or dismissal", appearing in sub-section (1) of Section 11 before clauses
(a) to (e) shows that the authorities mentioned therein are empowered to award punishment of dismissal or suspension to the member of the force who is found guilty and in addition to, or in lieu thereof, the punishment mentioned in clauses (a) to (e) may also be awarded.
7. It may be noted that Section 9 of the Act mentions serious or heinous offences and also prescribed penalty which may be awarded for them. Section 10 deals with less heinous offences and clause (m) thereof shows that absence of a member of the Force without leave or without sufficient cause or overstay without sufficient cause, is also mentioned as less heinous offence and for that also a sentence of imprisonment is provided. It is, therefore, clear that Section 11 deals with only those minor punishments which may be awarded in a departmental inquiry and a plain reading thereof makes it quite clear that a punishment of dismissal can certainly be awarded thereunder 11 even if the delinquent is not prosecuted for an offence under Section 9 of Section 10."
Moreover, the Hon‟ble Supreme Court has further laid down that in the scheme of Section 11(1) of the CRPF Act read with Rule 27 of the CRPF Rules, 1955, the order of removal could also be passed in the following:-
"8. It is fairly well settled position in law that removal is a form of dismissal. This Court in Dattatraya Mahadev Nadkarni (Dr.) v. Municipal Corporation of Greater Bombay explained that removal and dismissal from service stand on the same footing and both bring about termination of service though every termination of service does not amount to removal or dismissal. The only difference between the two is that in the case of dismissal the employee is disqualified from future employment while in the case of removal he is not debarred from getting future employment. Therefore, dismissal has more serious consequences in comparison to removal. In any event, Section 11(1) refers to the Rules made under the Act under which action can be taken. Rule 27 is part of the Rules made under the Act. Rule 27 clearly permits removal by the competent authority. In the instant case the Commandant who had passed the order of removal was the competent authority to pass the order."
In view of the above, it is at once clear that the approach of the learned Single Judge that the punishment of removal could not have been awarded in this matter cannot be endorsed and is required to be disapproved.
The order impugned also appears suffering from further errors because the question as to whether the punishment awarded to the respondent/writ petitioner was shockingly disproportionate to the proven misconduct could not have been examined on the touchstone of the principles governing the Conduct Rules pertaining to civil services. With respect, it appears that the peculiar scheme of the enactment and the related rules [CRPF Act, 1949 and the CRPF Rules, 1955] has escaped attention of learned Single Judge and the same has resulted in examination of the entire matter from an altogether wrong angle and view point.
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We would refrain from making any other observation in this matter because the writ petition is proposed to be remanded for re- consideration. Suffice it to say for the present purpose that once it is found that the basic approach of the learned Single Judge has been from a wrong angle; and the relevant grounds of challenge to the orders impugned have not been examined in their correct perspective, it is expedient that the matter be re-considered and re-examined in accordance with law.
Accordingly and in view of the above, this writ appeal is allowed to the extent and in the manner that the impugned order is set aside and the writ petition [WP(C) No.121 of 2013] is restored for re- consideration by a learned Single Judge of this Court. The parties through their respective counsel shall stand at notice to appear before the learned Single Judge for afresh hearing of the writ petition on 09.09.2016.
No costs.
JUDGE CHIEF JUSTICE Lam Item H-18