Jammu & Kashmir High Court
Wazir Singh vs Union Of India And Ors on 29 March, 2012
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU. SWP No. 2313 OF 2009 Wazir Singh.. Petitioners Union of India and ors Respondent !Mr. Amit Gupta, Advocate ^Ms. Deepika Mahajan, CGC. MR. JUSTICE J. P. SINGH Date: 29.03.2012 :J U D G M E N T :
The petitioner was serving as Constable in 52 Bn of Central Reserve Police Force, Jammu when pursuant to the findings of the Departmental Enquiry held on two Charges viz. (i) that he altercated with No.680384116 Kedar Nath Singh on 17.05.1992 and
(ii) that he physically assaulted NK Kedar Nath Singh on 17.05.1992, which were prejudicial to the good order and discipline of the Force, he was removed from service vide Commandant 52 Battalion CRPFs order dated 17.07.1993. His Appeal against the order to the Deputy Inspector General of Police, Central Reserve Police Force, Bhubaneswar, however, failed. He thereafter approached the High Court of Delhi where his Writ Petition against his termination was disposed of on the statement of the learned counsel for the Union of India that as Charge No.1 had not been found proved by the Appellate Authority so a fresh final order would be passed by the Disciplinary 2 Authority on Charge No.2 alone. The Court, however, left open Union of Indias challenge to the territorial jurisdiction of the Court. On reconsideration of the matter the Disciplinary Authority reiterated its earlier decision of petitioners removal from service even on Charge No.2, vide order dated 25.03.2008. The petitioner again appealed against the order. This time his Appeal succeeded in part and the punishment of Removal from service was substituted by Compulsory Retirement with Service Gratuity to meet the ends of justice.
The petitioner again appears to have approached the High Court of Delhi questioning the Appellate Authoritys order. Having not availed of the statutory remedy of Revision against the order, he was, therefore, permitted to withdraw the Petition. The Petitioner thereafter approached the Revisional Authority but remained unsuccessful. He has now approached this Court questioning the Appellate Authoritys order. The first issue raised by the petitioners learned counsel questioning petitioners Compulsory retirement from service is that the punishment awarded to him is illegal, in that, the provisions of Section 11(1)
(a) to (e) of the Central Reserve Police Force Act, which specify the punishments awardable for Misconduct, do not provide for punishment of Compulsory Retirement.
Learned counsels next plea is that the petitioner was not allowed proper opportunity of defending the Charge and the Punishment awarded to him was 3 otherwise disproportionate, in that, it was likely to adversely affect him and his family members who were solely dependent for their sustenance on his salary.
Learned counsel for the Union of India contests both the pleas advanced by the petitioners learned counsel.
To deal with the petitioners first submission, reference needs to be made to the provisions of Sections 8 and 11 of the Central Reserve Police Force Act, 1949, besides Rule 27 of the Central Reserve Police Force Rules, 1955, which read thus:-
Section 8 Superintendence, control and administration of the Force.---(1) The superintendence of, and control over, the Force shall vest in the Central Government; and the Force shall be administered by the Central Government in accordance with the provisions of this Act and of any rules made thereunder, through such officers as the Central Government may from time to time appoint in this behalf.
(2) The headquarters of the Force shall be at Neemuch or at such other place as may from time to time be specified by the Central Government.
(3) While on active duty outside its headquarters, the Force shall be subject to the general control and direction of such authority or officer as may be prescribed or as may be specially appointed by the Central Government in this behalf. Section-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) reduction in rank;
(b) fine of any amount not exceeding one months 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) of subsection (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 of the commandant. (3) The assistant Commandant, a company officer or a 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 4 otherwise provided for in this Act, or which is not of a sufficiently serious nature to require prosecution before a criminal court, that is to say:-
(a) confinement for not more than seven days in the quarterguard 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) census or severe censure:
Provided that this punishment may be awarded to a subordinate officer only by the Commandant.
(4) A jemadar or sub-inspector who is temporarily in command of a detachment or an outpost may, in like manner and for the commission of any like offence, award to any member of the Force for the time being subject to his authority any of the punishments specified in clause (b) of sub-section (3) for not more than fifteen days. Rule 27. Procedure for the Award of Punishment.-(a) [The punishments shown as items 1 to 11 in column 2 of the table] below may be inflicted or non-gazetted officers and men of the various ranks shown in each of the headings of columns 3 to 6, by the authorities named below such headings under the conditions mentioned in column 7.
[TABLE S.No. Punishment Subedar Sub- Others except Consts Remarks (Inspector) Inspector Const & en- & enrorolled fol- lled followers lowers
1. 2 3 4 5 6 7
1. Dismissal or DIGP DIGP Comdt. Comdt. To be inflictremoval from ed after forthe Force mal departmental enquiry.
2. Reduction to DIGP DIGP Comdt. Comdt. a lower timescale of pay, grade, post or service.
3. Reduction to DIGP DIGP Comdt. Comdt. a lower stage in the timscale of pay for a specified period.
4. Compulsory DIGP DIGP Comdt. Comtd. Retirement
5. Fine of any DIGP DIGP Comdt. Comdt. amount not exceeding one months pay and allowances.
6. Confinement in --- --- ---- Comdt. To be inflicthe Quarter Guard ted after exceeding seven formal depdays but not more artmental than twenty-eight enquiry.
days with or without punishment drill or extra guard fatigue or other duty.
7. Stoppage of DIGP DIGP Comdt. Comdt.
5Increment.
8. Removal from DIGP DIGP Comdt. Comdt. May be inflany office of icted withdistinction out formal or special departmeemolument ntal enqin the Force. uiry.
9. censure Comdt. Comdt. Asstt. A.Comdt. Comdt. or Coy or Coy Comdr.
Comdr.
10. Confinement --- ---- ------- Comdt. To Quarter Guard for Not more than Seven days With or with-
Out punishment or extra guard fatigue or other duty.
11. Confinement ----- ---- ------ Comdt. to quarter lines,camp, punishment drill, fatigue duties etc. for a term not exceeding one month. Perusal of the provisions of Section 11 and particularly the expression, subject to any rules made under this Act, appearing before the word award therein, when read with the provisions of Sections 8 and 18 of the Act, vesting power in the Central Government to make rules for carrying out the purposes of the Act, inter alia, regulating the powers and duties of the officers authorized to exercise any functions by or under the Act, reveals that the Parliament while prescribing award of one or more of the punishments appearing in Section 11(a) to
(e) of the Act, in lieu of, or in addition to, Suspension or Dismissal to those found guilty of Disobedience, Neglect of duty or remissness in the discharge of any duty or of other misconduct in the capacity of a member of the Service had, in its wisdom, left the rule 6 making Authority free, inter alia, to provide for punishment(s) in lieu of or in addition to Suspension or Dismissal other than those appearing in Section 11(a) to (e) of the Act to maintain discipline in the Force.
Petitioners learned counsels submission that only those punishments as appearing in Section 11(a) to (e) may be inflicted in lieu of or in addition to Suspension or Dismissal may not thus be correct, in that, such interpretation of Section 11 may nullify the power of Superintendence, Control and Administration of the Force that the Parliament, in its wisdom, had considered it fit to vest in the Central Government, to be administered in accordance with the provisions of the Act and any rules made thereunder by enacting Section 8 of the Act and would thus be impermissible, in that, such a course would render the other provisions of the Act and rules framed thereunder meaningless. This apart, perusal of the Central Reserve Police Force Rules, 1955 and particularly Chapter VI thereof reveals that the punishments appearing in at item Nos.1 to 11 in column No.2 of the table, appearing in Rule 27, may be inflicted on a member of the Force, to maintain discipline. Rule 27(c), authorizes the Disciplinary Authority in this behalf to pass such orders as may be permissible under rules after recording requisite findings in support thereof, meaning thereby that the Rules additionally authorize the Commandant to inflict punishments appearing in Rule 27 of the Rules for maintaining discipline in the Force in addition to the 7 punishments provided under Section 11, after following the procedure as prescribed in the Rules.
The petitioners counsels submission that only those punishments which appear in Section 11 of the Act can be awarded to the member of the service in lieu of or in addition to suspension or dismissal is, therefore, found without merit, hence rejected. Perusal of the enquiry proceedings and the order passed by the Appellate Authority amply demonstrates that the petitioner was afforded full opportunity of hearing in the matter. Despite finding that the petitioner had committed Misconduct in assaulting his senior which was against good order and discipline of the Force, the Appellate Authority has been lenient in awarding punishment of Compulsory Retirement as against Removal From Service to the appellant. The petitioners case, therefore, does not call for any further compassion in the circumstances. The second contention of the petitioner too is, therefore, found without merit.
For all what has been said above, this Petition is found without merit, hence dismissed. (J. P. Singh) Judge JAMMU 29.03.2010 Vinod.