HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Reserved Court No. - 1 Case :- SPECIAL APPEAL No. - 37 of 2015 Appellant :- Praveen Kumar Sharma (Inre 1106 S/S 2011) Respondent :- Union Of India Thru. Secretary Ministry Of Home & 3 Others Counsel for Appellant :- Amit Bose Counsel for Respondent :- A.S.G. Hon'ble Dinesh Maheshwari,J.
Hon'ble Rakesh Srivastava,J.
[Per Dinesh Maheshwari, J.] The petitioner-appellant, who was appointed as Constable (Bigular) in the Central Reserve Police Force ('CRPF') but was ultimately awarded the punishment of removal from service for absenteeism, has preferred this intra-Court Appeal against the order dated 7.1.2015 passed in Writ Petition No.1106 (SS) of 2011 whereby, the learned Single Judge has dismissed the writ petition after finding no merit in challenge to the orders passed in the departmental proceedings.
The basic ground of challenge to the departmental proceedings by the petitioner-appellant had been that when an order had already been passed declaring him a 'deserter', the respondents were neither justified nor authorized to take any disciplinary action against him; and hence, no such order of removal could have been passed in the disciplinary proceedings.
The relevant background aspects of the matter had been as follows: The petitioner-appellant was appointed in CRPF as Constable (Bigular) on 16.9.2003. He applied for earned leave that was granted for the period 12.03.2008 to 10.04.2008. However, he failed to report on duty after expiry of the period of sanctioned leave. It appears from the material placed on record that the respondents, under the communications dated 18.04.2008, 20.04.2008 and 03.05.2008, asked and directed the petitioner to report on duty at the earliest but he failed to comply; and even an arrest warrant issued on 23.05.2008 remained unexecuted. Ultimately, a Court of Inquiry was ordered on 25.06.2008 and after its report, the Commandant passed an order on 23.05.2009 declaring the petitioner as deserter from the service in terms of Rule 31 (c) of the Central Reserve Police Force Rules, 1955 ['the Rules of 1955'] which have been framed by the Central Government in exercise of powers vested in it under Section 18 of the Central Reserve Police Force Act, 1949 ['the Act of 1949']. The said order dated 23.05.2009, while declaring the appellant as deserter, further provided in terms of Rule 31 ibid. that the appellant would not cease to be the member of Force and whenever he would report or surrender, shall be treated to be guilty of the offence described in Section 10 (m) of the Act 1949 and would also be liable to be punished under Section 11 (1) of the said Act.
After having declared the appellant as deserter, the department issued a charge sheet to him under the memorandum dated 02.06.2009, essentially on the allegation that he had misconducted himself for not reporting on duty after availing 30 days' earned leave from 12.03.2008 to 10.04.2008 and thus, he was absent from duty without any leave or permission of the appropriate authority w.e.f. 11.04.2008. The appellant submitted a representation dated 12.06.2009 suggesting that he was undergoing treatment in Guru Tej Bahadur Hospital at Delhi for stammering and had furnished Medical Certificates to the authorities concerned; and that he was still under treatment and would report on being declared fit. In this communication, the appellant also suggested his temporary changed address at Ghaziabad.
In the matter of inquiry against the appellant, the Deputy Commandant was appointed as Enquiry Officer and it is borne out that notices were sent even to his suggested changed address too, but the appellant failed to respond and failed to participate in the enquiry. Ultimately, the enquiry proceedings were concluded ex parte and the Enquiry Officer submitted his report dated 08.09.2009 finding the appellant guilty of charge of absence without leave and overstaying without sufficient cause. Under the communication dated 15.10.2009, the enquiry report was also forwarded to the appellant by the disciplinary authority requiring him to make representation, if so desired, but the appellant failed to respond. Ultimately, the Commandant, 85th Battalion, Central Reserve Police Force, Bijapur (Chattisgarh), after considering the entire matter, awarded the punishment of removal from service to the appellant by his order dated 16.11.2009. The appeal preferred by the appellant was dismissed by the Deputy Inspector General of Police, Central Reserve Police Force, Lucknow Range, Lucknow on 04.03.2010 and then, the revision preferred by him was also dismissed by the Director General on 24.11.2010.
The appellant filed the writ petition leading to this appeal, seeking to question the orders aforesaid. As noticed, basically the ground of challenge by the appellant had been that once he was declared to be a deserter, any other disciplinary action could not have been taken against him and order of removal could not have been passed.
The learned Single Judge surveyed the relevant provisions of the Act of 1949 and Rules of 1955 and then, specifically referred to Rule 31 (c) thereof. The learned Single Judge found the contention on the part of the appellant being totally devoid of merit in view of the plain and clear language of Sub-Rule (c) of Rule 31 ibid. that even on being declared as deserter, an absentee does not cease to belong to the Force. The consideration of the learned Single Judge, which also carries reproduction of the relevant Rule 31 of the Rules of 1955, could be taken note of as under:-
"Section 9 of the CRPF Act provides punishment for "more heinous offences". Section 10 of the Act provides punishment "for less heinous offences". Sub-Section (m) of Section 10 of the Act provides that if a member of the Force absents himself without leave, or without sufficient cause over-stays leave granted to him, may 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. Apart from making "more heinous offences" and "less heinous offences" punishable, Section 11 of the CRPF Act provides for minor punishments, according to which, any member of the Force, if found guilty of disobedience, neglect of duty or remissness in the discharge of duty or he is found guilty of other misconducts in his capacity as a member of Force, he may be awarded various punishments described in Section 11 of the Act in addition to or in lieu of suspension or dismissal.
Rule 27 of the CRPF Rules contains statutory prescription relating to procedure for award of punishment. Rule 31 of the CRPF Rules deals with desertion and absence without leave. Rule 31 (a) of the CRPF Rules provides that if a member of the Force is liable for trial under Section 9(f) or Section 10 (m) or for deserting the Force while not on active duty then the Commandant shall assemble a Court of Inquiry consisting of at least one Gazetted Officer and two other members to enquire into the desertion, absence, or overstay of leave of the member of the Force concerned. The Court of Inquiry is required to record evidence and its findings. Sub Rule (c) of Rule 31 provides that the Commandant shall then publish in the Force Order the findings of the Court of Inquiry and the absentee shall be declared a deserter from the Force from the date of his illegal absence.
Rule 31 of the CRPF Rules is reads as under:-
"31. Desertion and Absence without leave:-(a) If a member of the Force who becomes liable for trial under clause (f) of section 9 or clause (m) of section 10 or for deserting the Force while not on active duty under clause (p) of section 10 read with clause (f) of section 9, does not return of his own free will or is not apprehended within sixty days of the commencement of the desertion, absence or overstay of leave, then the Commandant shall assemble a Court of Inquiry consisting of at least one Gazetted Officer and two other members who shall be either superior or Subordinate Officers to inquire into the desertion, absence or overstay of leave of the offender and such other matters as may be brought before them.
(b) The Court of Inquiry shall record evidence and its findings. The Court's record shall be admissible in evidence in any subsequent proceedings taken against the absentee.
(c) The Commandant shall then publish in the Force Order the findings of the Court of Inquiry and the absentee shall be declared a deserter from the Force from the date of his illegal absence, but he shall not thereby cease to belong to the Force. This shall, however, not bar to enlisting another man in the place of the deserter."
What is relevant to notice, at this juncture, to consider the arguments raised by learned counsel for the petitioner in its correct perspective, is the phrase "but he shall not thereby cease to belong to Force" occurring in sub Rule (c) of Rule 31 of the CRPF Rules. After publishing the findings of the Court of Inquiry in the Force Order, the absentee can be declared as a deserter from the Force. If the provisions of Rule 31 (c) of the CRPF Rules are read appropriately, it would mean that such a declaration of a member of the Force as a deserter will not result in automatic cessation of his membership of the Force. This is amply clear from a bare reading of the provisions contained in Rule 31(c) of the Rules. In my considered opinion, no other meaning can be assigned to the aforesaid provisions of Rule 31(c) of the Rules and hence, the submission made by the learned counsel for the petitioner that once a member of the force is declared to be a deserter, he ceases to be a member of the Force and thus, any disciplinary proceedings resulting in his removal cannot be undertaken, merits rejection. The provision contained in Rule 31(c) of the Rules are more than explicit, according to which, mere declaration of a member of the Force as a deserter would not resultantly amount to depanelling him from the Force, so as to make him immune from being subjected to disciplinary action or enquiry if he is charged of some misconduct which is otherwise punishable."
Seeking to question the order so passed by the learned Single Judge, the basic contention on behalf of the appellant is that when he had been declared to be a deserter by the order dated 23.5.2009, no departmental proceedings were permissible against him on the very same charge of absence from duty. It is submitted that on a true interpretation, the meaning and effect of Rule 31 of the Rules of 1995 could not be that a declared deserter would be deemed to be a member of Force only for the purpose of passing of a formal order of dismissal or removal from service on the basis of a departmental enquiry, which would be nothing but farce. It is submitted that a member of Force, when being declared as deserter, could not be continued as a Member only for the purpose of formal departmental enquiry and for all practical purposes, his removal is complete once he is declared to be a deserter; and such declaration virtually amounts to cessation of his membership of the Force. It is also submitted that the appellant could not have been charged with the offence of or act of misconduct of absence from duty once he had been declared as deserter and at the most, he could have been charged of the act of desertion.
Having given thoughtful consideration to the submissions made and having examined the record, we find the case of the appellant totally bereft of substance.
The referred Rule 31 of the Rules of 1955 is reproduced in the passage quoted hereinabove. It is evident that this particular provision has been made looking to the peculiar nature of the service, i.e., the Central Reserve Police Force and in relation to the particular nature absentees, for the purpose of assembling the Court of Inquiry to examine the questions of desertion, absence and overstay and to declare the absentee as deserter. The declaration that a particular enlisted person has deserted need to be put on record and to be published so as to inform all the concerned; and then, the Rule enables enlisting of another person in place of the deserter so that the depletion of manpower in the Force could be balanced. However, it has consciously been provided in the said Rule that irrespective of such declaration, the deserter would not cease to belong to Force; meaning thereby that merely by way of absence, a member of the Force cannot escape all other responsibilities and liabilities, which include his liability to be put to trial for the offence of desertion as also the liability to be subjected to disciplinary proceedings for the delinquency related with absenteeism.
The suggestion that once a person is declared to be a deserter, he could not be subjected to disciplinary proceedings remains baseless and rather stands squarely at contradiction to the true meaning, intent, purport and effect of the Rules of 1955. The proceedings for declaring a person as deserter are entirely different and are meant for achieving different purpose; and they cannot be taken to be of substitute of the disciplinary proceedings, meant for awarding appropriate punishment for delinquency.
In the present case, the respondents have proceeded squarely in conformity with law and even after declaring the appellant as a deserter, adopted disciplinary proceedings and afforded fullest opportunity of defence to the appellant. A look at the material on record makes it further clear that the appellant had not only avoided to join the duties but also avoided to participate in the inquiry proceedings. A suggestion about his treatment for stammering, in our view, remains too remote and hardly provides justification for his not participating in the inquiry proceedings. The fact of the appellant having not rejoined after expiry of period of his leave had not been a matter of dispute. The allegation against him of absence from duty, even after expiry of period of leave and without any just cause, has been duly established in the departmental proceedings and had been rather of undeniable facts.
In the totality of the circumstances, it appears that the respondents have taken a rather liberal view of the matter and have only awarded the appellant punishment of removal from service, although in such matters of absenteeism, the punishment of dismissal from service may be awarded. In any case, we are clearly of the view that the respondents have rightly adopted disciplinary proceedings against the appellant; and the orders as passed against him call for no interference.
The learned Single Judge, in our view, has not committed any error in dismissing the baseless writ petition filed by the appellant.
Consequently, this Appeal stands dismissed.
Dt. 29.07.2015
lakshman/
[Rakesh Srivastava, J.] [Dinesh Maheshwari, J.]